Civ Pro
(Purple = from syllabus/reading schedule)
Personal Jurisdiction (PJ)
Historical origins
Personal Jurisdiction: the ability of a court to exercise power over a defendant or item of property.
- Limited by the Constitution’s Due Process clause in the 14th amendment.
- Three types of PJ:
• In personam, over the person
• In Rem, over the property
• Quasi In Rem, over ownership of the property
20th century development
“From presence to contacts”
- Pennoyer v. Neff, 1878. Neff owed Mitchell money, Mitchell filed suit in Oregon, Neff lived in CA, posted notice in OR newspaper as required,
put lien on property and sold to Pennoyer.
• Lower court said Neff was not served properly. SC agreed, must give sufficient notice to align with due process. No PJ
• Territorial analysis in place until Int’l Shoe
Contemporary doctrine
- International Shoe, Shoe sales people in WA, ISC was inc in DE, MS headquarter, no WA store. Sued in WA over unemployment
• Court said yes jx, b/c of purposeful availment, their contacts were neither irregular or casual
• Established minimum contacts rules, do not offend traditional notions of fair play and substantial justice. Still widely used!
Applying Minimum Contacts, pg 419
- Step one: there must be a statutory basis for PJ, pg 419
• Long arm statues: unlimited = up to due process, vs. limited by law
- Step two: must be constitutional under due process clause:
• D must have minimum contacts with forum state AND
• Exercising PJ over D must not offend traditional notions of fair play and substantial justice.
•
Minimum contact analysis :
- D intentionally or purposefully availed itself of the laws and benefits of the forum state; and
- Knew or reasonably anticipated that its activities in the forum made it foreseeable that it might be forced to defend itself in court there.
LOTS of cases here!
- WWVW v Woodson, car wreck in OK, car from NE. Ct said foreseeability alone (stream of commerce) is not enough, due process requires min
contacts
- J. McIntyre Mach. v. Nicastro, machine cut guys hand. No PJ because one machine does not meet min contacts test.
• D must target (reach out) the state with goods or agents (look at advertisements, etc)
- McGee v. Int’l Life, Insurance policy sold in CA, PPB TX. He was their only CA customer, he paid his dues. They targeted!
- Keeton v. Hustler, hustler met min contacts rule with magazine distrubution.
- Burger King v. Rudzewicz, D deliberately reached out to affiliate themselves with a Florida franchise. *PURPOSEFUL AVAILMENT
- Bristol-Myers Squib v CA, Plalvix class action lawsuit, BMS DE/NY, many P’s filed in CA. Ct said no gen jx unless D is “at home”
• Spec. jx suit must arise from or relate to the D’s contacts with the forum state
- Ford v. MT, vehicles were purchased in Montana (reseller). Ds argue the original sale wasn’t in MT, or designed in MT/MN, no PJ
• SC said 8-0, that it is different that Bristol Myers, bc Ford was actively serving the market.
- ARISE out of, or RELATE to is required. This is easy if the D and P had interactions in the forum.
- VERY IMPORTANT: the suit has to to relate to THOSE specific contacts contact in the forum.
- Walden v. Fiore, couple flew back with 97k cash, sued GA resident in NV over an event that happened in GA.
- PJ over a non-resident not enough to have a sole contact with the person suing them in that state.
- Contacts WITH THE FORUM are required, NOT contacts with the P! (Harm wasn’t intended to be targeted in NV)
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- Calder v. Jones, CA actress sued Nat’l Enquirer, PJ is proper over a D that has min contacts due to an intentional tort in CA
- 5 Reasonableness factors: Fair Play and Substantial Justice (The Asahi 5)
- Asahi v. Superior Ct, valve co sued in CA motorcycle crash. Ct said PJ over a foreign D was unfair because of reasonableness:
•
•
•
•
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Burden on the Defendant
Forums interests in litigation
Plaintiffs interest in litigating in that state
Interstate judicial efficiency
Interstate social policy (States interest in social policy)
And the Internet
Shaffer v. Heitner, PJ Quasi in rem jx case, still needs PJ tests done (not really covered?)
The Zippo framework:
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Zippo and zippo.com, cybersquatting case before we called it that.
Passive advertisement = NO PJ
Facilitates contractural relationships = YES, SPECIFIC PJ
In between, asses the “level of interactivity and commercial nature”
The MORE interactive, the more likely to create minimum contacts.
The “Effects” Test for Specific PJ (an alternative to purposeful availment when it doesn’t apply)
- Look at the effects on the forum, doesn’t just have to be PJ
- Shippitsa, Maintaining a website that automatically redirects users to an alternate is not enough to confer personal jurisdiction over a
nonresident.
- In class Hypo: decoy carver in ME, sells them on the internet. Is he foreseeably going to be called into court anywhere in the US?
- *Note: a single sale is not enough. It's minimum contactS, not minimum contact!
Other doctrines
Beyond Minimum Contacts: Other Bases for PJ, pg 461
PJ by presence (service of process)
- Burnham, dad visited kids and was served in CA, yes PJ because Tag JX = doesn’t violate due process
• Tag/transient PJ rarely needed in practice due to contemporary scope of Specific Jx
• You don’t need minimum contacts if you serve process on the D in the forum state
PJ by Consent
- Expressed, or forum selection clause, commonly included in contracts: the parties agree to which forum will hear disputes
- Courts regularly enforce these, and require parties to resolve the disputes as agreed!
- Bremen: two big co’s willingly entered to the contract for boat repair at sea. Valid bc reasonable, both co’s negotiated
- Carnival v. Schute: Lady hurt on a cruise. Ct upheld the forum selection clause, not unfair just because its not freely negotiated
- Schute had toto litigate in FL, b/c efficient, keeps fares low, Carnival at home, etc. The cruise is completely optional.
PJ by waiver
- legal arguments must be raised at the proper time or they MAY BE WAIVED!
- Objection to the forum’s court exercise of PJ; FRCP 12
- 4k1a
General Jx:
- The court’s ability to hear cases related to a party, regardless of whether the harm has any connection to the forum.
- Requires contact so systematic and continuous as to practically render the D at home.
- At Home:
- For individuals: where they are domiciled
- For companies: where they maintain their principle place of business, and where they are incorporated.
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- If
- Daimler v. Bauman, Argentinian war crimes being sued in CA. Claimed general jx bc they knew there was not spec jx.
• Not continuous and systematic enough to render the company at home.
• Raised the bar for American courts jurisdiction for hearing foreign cases.
- Goodyear v. Brown, kids died in bus crash in France, ct said no general jx. Foreign subsidiaries don't count as the same company as their
counterparts.
- Helicopteros, helicopter crash, wanted to sue in Tx. Event happened overseas, but they had visited TX to negotiate the contract.
• Must arise out of, or relate to, the D’s contacts with the forum state. If they were suing over the contact, PJ would exist.
• If no, does the company have “continuous and systematic general business contacts” with the forum state? (Gen jx)
General Jurisdiction v. Specific Jurisdiction
- General: Continuous and systematic activity in the state as to render them at home
- They can be sued about any kind of lawsuit from business in or out of the state!!
- Specific: D purposely exercises the privilege of doing business within the forum state
• The suit must be related to the business in the state.
- if a defendant’s minimum contacts with the forum state are isolated and sporadic (rather than systematic and continuous), a court may use
specific in personam jurisdiction if the defendant’s contacts with the forum state arise out of the plaintiff’s claims. See J. McIntyre Mach., Ltd.
v. Nicastro, 564 U.S. 873, 881 (2011).
Notice and Venue
NOTICE:
When a party is made aware of a legal proceeding that affects them. Actual = directly informed.
Why doesn’t the SC require proof that the D receive actual written notice in all circumstance?
- Due process only apples to when the govt is depriving you of life/lib/property, not your cc company charging a fee
What does the SC require instead?
- “Notice reasonable calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford an opportunity to
present their objections”
- “The means employed must be such as to desirous of actually informing the affected party might reasonably adopt to accomplish it”. (You have to
actually try to contact them!)
Notice by publication ok when:
- you can’t locate or ID the people
- People who’s interests are uncertain or unknown.
- Depending on extent of deprivation, more notice or less notice req. The more serious the deprivation, the more notice required!
- Mullane, Ct said notice by publication insufficient. Trust suit, they published an ad on the back of the newspaper without names, when they
had addresses and could have mailed the notice. Ct said notice not satisfied.
- Jones v. Flowers, notice by cert mail insufficient bc the letter came back undelivered, they knew he didn’t receive it.
Statutory limitations on PJ: Each state is free to list their own statutory limitations on PJ, up to the 14th amendment.
Most states grant PJ when the D:
- Is served with process in the forum state
- Brunham v. Superior Ct, NY Dad served w process while visiting kids in CA, valid.
- Is domiciled in forum state
- Consents to PJ
- Forum Selection Cause
- Carnival Cruise Lines V. Shute, they litigate in FL regardless. Pg 479
- Committed acts bringing them within the state’s long arm statute.
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VENUE
Venue is the proper geographic district in which to bring the action.
Venue v. PJ:
- PJ is a constitutional requirement.
- Venue is a statutory requirement, similar to PJ and similar to SMJ
- PJ limits which states can assert the power to be the location where the case is heard.
- Venue limits which judicial districts can be the location where the case is heard. Subdivision of the locations within the state.
- PJ is state level
- Venue is by district
Original Venue
Where a case can be filed for the first time.
- a fed P must file the case in a judicial district where the venue is proper under § 1391. Where a case SHOULD be heard.
- Must be fair and convenient for D. Ask:
- Does the ct have SMJ?
- Does the court have PJ?
- Is the venue properly laid in fed ct?
- § 1391 Rules:
- (b)(1): in a judicial district in which ANY D resides, IF all D’s are residents of the same state
- (b)(2): a judicial district in which a SUBSTANTIAL PART of the events took place
- (b)(3): Or, if b1 and b2 don’t apply, ANY judicial district in which any D is subject to PJ (rare! has to be for overseas events)
- Venue can be transferred/changed, pg 498.
- Transfer under §1404: P brought suit in proper venue, D seeks dismissal or transfer because of “relevant” factors
- Including: locations of witnesses and evidence, who is a residents of the forum state, consent, etc.
- Transfer under §1406: P brought suit in wrong venue
- Documents can be sent to the new venue.
- Motion to dismiss under §1406: P brought suit in wrong venue, and cannot transfer
- Forum Non conveniens - CL doctrine, ct can dismiss suit if there is a more appropriate court to hear the case either because its
burdensome or inconvenient, even if it meets jx in other ways.
- Piper Aircraft v. Reyno, Scotland crash, sued piper in PA, Sup Ct said no jx, dismissed (no transfers to Scotland)
Citizenship for purposes of venue:
- Individuals can only have one domicile, subj to Gen Jx only in one state, subject to venue only where they are domiciled.
- For corporations, it's more complicated because it's anywhere they have PJ related to the action. CHECK THIS
- Broader than the other citizenship requirements for PJ and SMJ!
- Treat the district as a state and assess PJ
Change of venue:
- If P filed in a proper venue under §1391; (could stay there)
- Motion to transfer under §1404
- The court “may” transfer. They get to decide to keep or move
-
• To a different proper 1391 venue for convenience and the interested of justice, (if the P had multiple options, the court can move
without P’s input)
• Or to any venue if all parties consent.
1404a gives standard, but the court is not going to transfer case on its own initiative.
(Family law issues will never be in Fed Court, 1391 will not apply)
- If the P didn’t file in a proper venue:
- §1406 motion to transfer from the wrong venue to a proper venue under § 1391.
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• You can just send documents to the new courthouse.
- Motion to transfer based off a forum selection clause from a contract.
- *Note: fed cannot xfer to state court CHECK THIS
- §1406 a motion to dismiss based on wrong venue
- FRCP 12b3 motion to dismissed based on improper venue (lack of SMJ/PJ,etc)
- Motion to dismiss based on form non conveniens doctrine (Piper aircraft) typically don’t apply within the US, because we just transfer the
case.
Subject Matter Jurisdiction:
The court’s authority to hear certain types of cases. Federal courts are always limited by Article II of the cx.
- State courts have general jx over almost all type of cases.
- SMJ cannot be “waived” like PJ.
• You need to assess SMJ EVERY ON EVERY SINGLE CLAIM/PARTY!!!
Federal Question jx pg, 516
- Well Pleaded Complaint rule: "a federal question is necessary to a well-pleaded complaint”.
- The case must arise under the federal laws to be subj to fed q jx, §1331:
- Louisville RR Co. V. Mottley, couple injured by a train had lifetime passes revoked, they sued.
• Ct said no SMJ, contract subject matter, fed law was a defense not a part of their claim!
- Grable, didn’t get IRS notice, they sold his property. Fed Q bc the core issue was IRS notice
• However, the lone fact that a claim is created by state & not fed, law does not necessarily prevent a court from exercising FQJ!
- Smith v. KS Trust Co, Fed bonds unconstitutional, yes FQJ bc arose from fed law, even though had a lot of state issues.
- Merrell Dowell, birth defects, they brought state claims but said the bottles weren’t labeled correctly.
• Ct said the mislabeled drug (fed issue) was not substantial, bc fed law did not give private COA for FDA violations. No FQJ
- Gunn v. Minton, atty being sued over patent. Ct said no FQJ bc malpractice is a state issue, patent law wasn’t the core issue
4 prong Fed Q test:
- If the cause of action is created by state law, but the resolution of that claim will be based on an issue of fed law, jx exists if:
- The state law claim “necessarily raises” the federal issue
- The federal issue is “actually disputed” in the case
- The federal issue is “substantial” in the case
- Deciding the issue won’t "disturb the balance” b/t fed and state courts.
- *NOTE: Most cases arising under fed law can be heard in state courts, but a small number are exclusive to fed
- E.g., bankruptcy, patent, anti-trust, etc.
- *Ask: does the P’s case depend on winning an issue of federal law?
- Look closely to see if the P’s claim is really a federal law claim, or really a state law claim.
Diversity Jurisdiction:
- Authorized by Article III § 2 of the constitution and 28 USC §1332 (a)(1)
- Must have complete diversity b/t parties, and the amount in controversy must exceed $75k
- Protects out of state defendants from local prejudice
Determining Citizenship
- Individuals: (Domicile)
- Requires presence and an intent to remain permanently or indefinitely
- Individuals cannot be domiciled in more than one state. Pg 539
- Sheehan v. Gustafson, mafia Vegas guy, had houses in NV and MN. Domicile based on date of filing and intent to remain
• Gets tricky when people move a lot, or have more than 1 home, look at their behavior. Domicile stays until it's changed.
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- Corporations: (Citizenship) 1332 (c)(1) (*Note: Same test for general jx!)
- For diversity jx, a corporation’s citizenship is determined by its principle place of business is the nerve center, and where they are
incorporated.
- Hertz v. Friend, Hertz being sued in CA, where they had the most sales. Remanded to NJ, where they are incorporated and headquartered,
where the brain power is. (set principle place of business PPB as nerve center!)
- For unincorporated associations (LLC, unions, etc)
- Wherever each member is a citizen!
- Amount in Controversy: Must exceed $75k, exclusive of interest and costs.
- JTH Tax, Inc. v. Frashier, franchise that didn’t get paid, violated non compete. D said the P didn’t meet the $75k amount
• D’s seeking to dismiss on lack of SMJ/diversity jx b/c of amount have to prove the amount to be apparent to a legal certainty that it
cannot be recovered. (Heavy burden!), pg 548.
- Actual amount recovered does not matter, we look at the beginning of the case!
Aggregation:
- Combining amounts or claims to meet the $75k threshold:
- ONE P can aggregate all claims against a single defendant, even if not related!
- P’s with joint ownership can aggregate (50/50 on property, for example)
- P against D’s that are joint tortfeasors (bar fight)
Cannot aggregate:
- Different P’s cannot aggregate, even if the same incident!
- Exxon Mobile v. Allapattah, gas dealers suing over prices through supply contracts, AND Ortega v. Starkist, sued over tuna can
- SC combined cases, said multiple P’s cannot aggregate under diversity jx, but may be joined under supplemental jx
- At least ONE P has to satisfy the amount requirement independently, though!!
- Have to be the same CNOF, and CANNOT destroy diversity or no original or supplemental jx!
• ROL: Where other elements of diversity jurisdiction are present and at least one named plaintiff satisfies the amount-in-controversy
requirement, the court may exercise jurisdiction over other plaintiffs who might otherwise be properly joined but who do not allege
damages which reach the jurisdictional amount.
- Can NEVER aggregate against separate D’s, even if same CNOF (unless under joinder, but NOT diversity jx!!)
• Unless they are not separate in the eyes of the law!
- 1367a - one non diverse party destroys original and supplemental jx. No need to protect out of state defendants.
- The amount in controversy is only to keep petty cases out of the federal system.
Supplemental jx, pg 551
- §1367, when a case has more than one claim, it allows the P/D’s to add additional claims they wouldn’t normally have jx over.
• For claims without original SMJ, courts can hear but must arise from the same nucleus of operative facts (CNOF)
- Old terminology
- “pendent” jurisdiction: additional claims by P against D
- “ ancillary” jurisdiction: additional necessary claims by Ds or third parties
- “pendent-party” jurisdiction: claims by additional Ps or additional Ds
- Now just “supplemental” jurisdiction
§1367 (a): GIVES Supp Jx over claims with CNOF
- By P’s, D’s, etc, very expansive *up to cons’t limits)
- For economy purposes - all claims should be resolved in ONE lawsuit
- For FQJ: As long as they come from the same CNOF from P’s original compliant:
- No limits on addition of new parties (regardless of citizenship, $ amt, fed/state claim)
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• Addition of new claims (by D’s, P’s, other parties) same CNOF= add them all! No way to lose the Fed Q.
- In Diversity jx cases:
- Addition of new claims not meeting amount allowed, because first claim met amount.
- Allapattah Svcs, inc. v. Exxon Mobile, Two combined cases, overcharging for fuel and a girl cutting her finger on a tuna can
- Controversial, language is unclear but SC said its ok to join P’s under supp jx in this type of case
- BUT NO addition of new parties that destroy diversity, b/c orig jx would be lost!
§1367 (b): TAKES AWAY Supp Jx for DIVERSITY JX CASES ONLY
- NOTE: VERY COMPLICATED!
- Prevents P’s from getting around complete diversity requirement by bringing parties in under Supp jx instead of including them in the
original lawsuit!
- if a civil action that has original jx relies ONLY on section 1332 (diversity jx), the fed courts shall not have supp jx over claims by PLAINTIFFS
(or parties joined as P’s) that would be inconsistent with 1332 jx requirements!
- The key here is it is ONLY BY P’s, NOT D’s or TPD’s!!!
Question: if a party is added BY a defendant, can a P use supp jx to sue the TPD if no diversity and under 75k?
Is this for CLAIMS by P’s?
Exact Text:
“In any civil action of which the district courts have original jurisdiction founded solely on [diversity jurisdiction], the district courts shall not have
supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal
Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as
plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional
requirements of [diversity jurisdiction].”
*Note: For fed Q, If all fed claims dismissed, the ct will lose jx over diversity case.
§1367 (c): Also limits Supp Jx (discretionary)
- The court may decline to exercise supp jx over claims if:
1.
2.
3.
4.
The claim raises novel or complex issue;
The state claims substantially predominate;
The rest of Orig Jx claims have been dismissed; or
Other compelling reasons in exceptional circumstances
- Reasoning: needless decisions of state law should be avoided!
- United Mine Workers v. Gibbs, mine workers protesting new location. Ct said pendant jx over state claims, bc CNOF
• ONLY FED Q JX, will be dismissed if state claims predominate, or fed claims are dismissed
Removal Jurisdiction:
- When a case is filed in state ct that could have been filed in fed ct, D has option to remove.
- Only a Defendant can remove! P already made their choice
- All defendants who have been served must agree to removal!
- They have 30 days after service to file for removal, and never more than 1 yr after commenced in state court
- OR, if the complaint or initial pleadings don’t state a case that is originally removable, they have 30 days after the defendant receives a copy of
an amended pleading, motion, order, or other paper from which it may be first ascertained that the case is or has become removable. 28 U.S.C.
§ 1446(b)(3)
- NOTE: If any ONE of the D’s is a resident of the forum state, even with complete diversity, it cannot be removed!!
- The “forum defendant rule”
- Cases that are removable:
- at least one federal question claim (§ 1331) + all related state law claims (§ 1367(a))
- reminder: “well-pleaded complaint” rule applies
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- if plaintiff has joined unrelated state law claims, the current version of § 1441(c) provides that the case is removed and the federal court
must sever and remand any state law claims not eligible for supplemental (or original) jurisdiction
- complete diversity of citizenship and amount in controversy satisfied (§ 1332) + eligible related state law claims (§ 1367(b))
- rules related to determining amount in controversy in § 1446(c)(2)-(3)
- Special removal statutes: §1442,43,54
- If claims don't qualify for supp jx, must be severed and remanded to state court (not same CNOF)
Home Depot - ???
- Spencer v. US Dist. Ct. of Ca, electrical worker killed on bucket lift, sued in Ca courts.
- The post-removal joinder of a local but diverse defendant does not require remand to state court (rare situation)
- Look at if removal was proper when it occurred.
Motions to remand
- If P believes the case was improperly removed, they must file a motion to remand in fed court
- The state court can’t do anything until/if it's sent back.
- Must be filed within 30 days of removal under 1447c. Short clock!
- UNELSS, there is no SMJ which would require remand, may be raised at any time prior to final judgement 1447(c)
- bc the court cant make a decision on a case they don’t have jx on in the first place.
- Doesn’t come up a lot, people usually realize this early in the case.
- State courts ALWAYS have SMJ!
- If the P tries to join new D’s to defeat complete diversity, the court may deny joinder (and keep the case), or permit joinder and allow remand
under 1447e. The fed court decides bad faith/manipulation.
- If fed court orders remand to state court, that decision is NOT reviewable on appeal or otherwise!! 1447(d)
- Refusal to order remand can be challenged by interlocutor appeal or writ:
- If the fed judge gets it wrong and remands, too bad!
- If the fed judge refuses to order remand you can challenge
- Events subsequent to removal do not DIVEST the fed court of removal jx (to require remand)
- The party changes domicile while the case is ongoing
- Counts when the person changes their domicile AFTER the case is filed.
- Joinder of local defendants as in Spencer… D from that state cannot remove.
- After the case is in fed ct, adding a party that would prevent it from being in fed ct. the court gets to decide. *CONFUSING
- EXCEPT (circuit split) events that destroy original jx, ie. Joinder of non-diverse party in “solely” 1332 jx.
- One option is add a non-diverse party and leave in fed ct, remand all to state ct, or make the lawsuits split bt fed and state ct
- Why would it be different from an original filing in fed ct, vs a removal case? Supreme ct has not decided on this.
REMINDER: the statutes do NOT authorize D’s to file a motion to remand a case filed in Fed court initially to be sent to state court.
- this does NOT work in the opposite direction!!!
Erie Doctrine:
Rules of Decision act: 28 USC 1652
- the laws of states, are rules of decisions in civil actions, in cases where they apply.
Basics:
FQJ = fed law applies to the entire claim
Div Jx or Supp Jx = procedural law is federal, substantive state law applies
FEDERAL COURTS MUST APPPLY STATE SUBSTANTIVE LAW IF IT WOULD BE OUTCOME DETERMINATIVE
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- the “outcome determinative test”
What is procedural: the judicial process for enforcing rights and duties
What is substantive: the actual rights and duties, available remedies, or rules of decision by which the case is decided (elements, definitions, etc.)
Could mean:
- The laws of the several states (collectively / generally)
- Swift v. Tyson, The Rule of Decision Act does not bind federal courts to state common law.
- Complicated contract choice of law case. Tyson wrote a bill of exchange aka promissory note to Norton and Keith for some land., like a
post dated check, Norton and Keith endorsed it to Swift, Swift came to Tyson and asked for the money. Turns out Norton never owned the
property they sold Tyson. **This was overruled by Erie.
- They (Storey) applied the nationwide general principle instead of the NY law.
- The laws of the several states (respectively)
- Erie RR Co v. Tompkins, guy walking on the RR tracks, injured. They filed in Fed ct to win, more lenient majority law v state law
- ROL: A federal court sitting in diversity must apply state substantive law, whether statutory or common law.
• This overruled Swift v. Tyson and applied PA law, we need continuity and uniformity, to prevent same state forum shopping!
- *Note: ”there is no federal general common law”
Erie test for our class:
1. Does the issue involve substantive law?
- if yes, state law applies
2. Does FRCP “control the issue” involved? (Is there a “direct” conflict between federal law and state law?)
- if no, state law applies (discourage forum shopping, supports continuity b/t courts)
- If yes, FRCP applies
- Except if applying it violates the limitation imposed by rules enabling act, REA.
- Ask: “would applying fed law abridge, enlarge or modify any substantive right?”
Examples:
- Statute of limitations = substantive
- Guaranty Trust Co v. NY, statute of limitation is state law, not federal case law.
- How do they select a jury, how do they amend the complaint, service of process = procedural
- Hanna v. Plumer, negligent driver died, she sued in fed ct, served process in line with federal rules but it didn’t follow state rules.
- Ct said OK, If a P serves a D properly under the fed rules, the P can proceed with a state-law claim that requires a different method of
service for establishing liability.
- In diversity cases, the federal rule wins on PROCEDURAL issues! Bc of the “rules enabling act”, to keep things uniform
- Shady Grove v. Allstate, class action filed in fed ct. Fed law applied, small class action claims being allowed is procedural.
- FRCP Rule 23 trumped the state law.
Choice of law
A forum’s courts do not always and automatically apply that forum’s law to a case before it; sometimes the difference in the two jurisdictions ’laws
can lead to a different outcome of the case.
FQJ:
- Only federal law is implicated, so only fed law applies (determined by the FRCP)
Diversity jx cases:
- Fed courts will apply state law to some issues (vertical choice of law)
- Substantive issues
- Which may include the states choice of law rules (horizontal choice of law)
- Same for Supp jx claims
Transferring cases:
- When a case is transferred under § 1404 upon defendant’s motion, the transferee court applies the same state law as the transferor court would
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have (including choice of law rules), Van Dusen (1964) (voluntary xfer!)
- When a case is transferred upon plaintiff’s motion, the interpretation of § 1404 is the same, Ferens (1990) (5-4) very close!
Choice of Law in State Court
- Historically, courts focused on “vested rights” tied to location (some states still use versions)
- lex loci contractus – where the contracting occurred
- e.g., a contract signed by both parties in NY but to be performed in FL, and later allegedly breached in FL, would be interpreted using NY
law
- lex loci delicti – where the tort occurred
Today, most states use a multi-factor analysis, considering:
- Identify the state with the “most significant relationship” to each legal issue in the case
- Conduct a “governmental interest analysis” to determine how much (or whether) each state’s policies would be served or undermined if its law
applied (or not) in this case
- Allstate v. Hague, Motorcycle passenger killed, beneficiary sued in MN court to stack the claims, Allstate said WI law should govern. There were
contacts with both states, so forum state could apply their law (split court)
- Not arbitrarily or fundamentally unfair, but she forum shopped and it worked bc no law specifically against it.
- Philips Petr. Co v. Shutts, natural gas wells, CO wasn’t paying increased royalties for 11 yeas.
- KS residents sued via class action 30k members, less than 1% of wells in KS.
- (1) A state may exercise jurisdiction over the claim of an absent class-action plaintiff, even if the plaintiff lacks minimum contacts with the
state, so long as the plaintiff is provided with minimal procedural-due-process protection.
- (2) In a class action, the forum state must have a significant contact or aggregation of contacts creating a state interest in the claims asserted
by each plaintiff class member to ensure that the choice of the forum state's law is not arbitrary or unfair.
(Midterm)
Pleadings:
Pleadings are complaints and answers only!
P’s complaint
- FRCP adopt a notice pleading system, not CL or code b/c we want cases to be based on their substance, not argue the rules.
- Complaint
- Rule 8(1)(1)
- Rule 8(1)(3)
- Rule 8(d)(1) and Rule 10(b)
- Rule 8(e)
- Rule 8(a)(2) - notice pleading standard
- The complaint must provide fair notice to the D about ‘what the P’s claim is and the grounds upon which it rests. Conley. Pg 29
- Factual allegations in the complaint must be accepted as true, bc the jury decides the facts.
- Conley v. Gibson, black RR workers sued union. A complaint is sufficient as long as the P gives a claim upon which relief can be granted,
detailed facts are not necessary!
• Short and plain statement of the claim is sufficient
• Don't dismiss unless it's clear that a P cannot support a claim based on facts given.
- Swierkiewicz v. Sorema, Employment discrimination claim against French company, they moved to dismiss for lack of facts,
• Ct held only a short statement of facts is required, details are not needed to avoid dismissal
- Bell Atlantic v. Twombly, Anti-trust COA alleging big Co’s driving out small Co’s not compete.
-
• D moved to dismiss for failure to state a claim. SC said that a complaint must allege sufficient facts that, if accepted as true, would “state a
claim to relief that is plausible on its face” (not speculative or conclusory)
• *Note: This got rid of the “no standard of facts” rule from Conley. (These P’s didn’t bring enough facts for a plausible case)
Ashcroft v. Iqbal, Pakistani that was arrested and detained post 9/11. He sued a bunch of people including John Ashcroft.
• SC held a complaint will only survive a motion to dismiss if it alleges nonconclusory facts that, taken as true, state a claim to relief that is
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plausible on its face. 5-4 vote that his complaint was insufficient, still hotly debated and cited!
• This case confirmed that Twombly applied to ALL civil suits, not just anti-trust
• These are often combined as TWIQBAL - very revolutionary!
• The claims don’t have to be probable, just plausible! (More than just possible, speculative, or conceivable!)
- 2-step Plausibility test:
• First, strike all legal conclusions (NO CONCLUSORY STATEMENTS!)
• Second, apply the plausibility analysis to the allegations that remain
Filing and service
STEPS:
- P files the complaint with the court, Rule 3
- You can’t serve process until there is a complaint filed with the court!
- Request waiver from (most) D’s, Rule 4(d)
-
• There are incentives to waive, you get 60 days instead of 21 to answer (d)(3)
• Incentives not to refuse, have to pay for the process server fees (d)(2)
If no waiver obtained, service of process must occur.
• court clerk completes summons for each defendant, (b), which must be served on along with a copy of complaint, (c)(1)
• professional process servers not required, (c)(2), (any adult not a party to the case)
• and court gets involved only at plaintiff’s request, (c)(3)
Service over Individuals: Rule 4(e)
- (e) (2) Personal delivery or at dwelling or delivery to auth agent
- Or (e) (1) under state law at place of filling or place of service
Service over Corporations and other entities, Rule 4 (h) (1)
- (h) (1) (B): delivery to officer or authorized agent
- (H) (1) (A): under state law at place of filing or place of service.
- Must serve within 90 days, Rule 4(m).
- Rule 4 only comes up with complaints! Once past, use rule 5
Service after complaint: Rule 5
- certain documents, (a) (1), incl. subsequent pleadings, (B), and motions , (D), also must be “served on every party”
- Much simpler, must be to parties attorney, usually electronic. Reasonable time, not exact.
D’s responses
Pleadings:
- Responding to complaints: OPTIONS
- Rule 12 motion first; court rules on it, then answer
- OR - Answer, and include available rule 12(b) defenses
Rule 12 Motions (MEMORIZE)
-
Rule 12(b) motions to dismiss:
1: lack of SMJ
2: lack of PJ
3: improper venue
4: insufficient process
5: insufficient service of process
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- 6: failure to state a claim upon which relief can be granted
- 7: failure to join a party under rule 19
- (h)(1): defenses (b)(2)-(5) forfeited if not raised in first response
- (h)(2): defenses (b)(6)-(7) may be raised as late as trial (not on appeal)
- (h)(3): defense (b)(1) may be raised at any time (even on appeal)
- Court must accept all well-pleaded factual allegations as true, and must draw all reasonable inferences in plaintiff’s favor
- 12(b)(6) failure to state a claim is based on pleadings alone!
- 12(e) motion for a “more definite statement” (rare, they usually just move to dismiss)
- 12(f) motion to strike “redundant, immaterial, impertinent or scandalous matter” (also rare)
Only three options for an answer:
- Admit, Deny, Lack Knowledge.
- A failure to deny = ADMITTED
- A court may or may not deal harshly with the other (improper) ways of responding.
- Using other response may be allowed in state court, but not federal
- Milton allowed them to fix their pleadings. Other courts may not, and treat the non-answers as admitted!
- May be fixable by amending.
- Pleading affirmative defenses
- Defenses for which the D has the burden of proof at the trial (usually the P has burden of proof)
- LONG list: statute of limitations, assumption of risk, fraud, distress, claim or issue preclusion, waiver, contributory negligence, etc.
- D’s Only have to respond to factual allegations, not legal conclusions.
Applying Twiqbal
- The court, in reading the complaint, ignores conclusions of law and focuses on the allegations of fact
- Those facts must support a plausible claim, not just a possible claim
- To determine plausibility, the judge uses their own experience and common sense
- Very subjective; different judges might see the same case in different ways
- 2-pronged test:
- Are the conclusions in complaint supported by factual allegations
- If factual allegations are true, could they plausibly warrant relief
- Make 12(b)(6) motions more powerful bc now will be granted if no support is provided for conclusions in complaint
Pleading
Upon conclusion of the pleadings, can still have motions before discovery
- Plaintiff’s rule 12f motions to strike an insufficient defense
- To eliminate certain arguments from the case. Wrong statute of limitations defense raised, etc. if not amended and removed.
- Rule 12 c motion for judgement on the pleadings
- 12b6 is based on just on the complaint without answering
- 12c is based on all of the pleadings, not just the complaint
- Done by P: based on the complaint plus answer’s admissions and defenses, we don’t even need discovery to prove that I won.
- IRL, why haven’t we settled? You’re going to lose, cut them a check.
- Done by D: if b6 motion to dismiss not made previously
- They might want to wait until they have an affirmative defense in place.
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- Based on complaint PLUS answer
- Either way, same standard as b6.
- Including the restriction in rule 12d.
- ON THE PLEADINGS. Just the pleadings, not the case.
- Rule 12d means is if its motion for judgement based on b on complaint or 12c on complaint and answer together, it has to be done on the
PLEADINGS alone
- If you’re looking at any other evidence rather than pleadings, its a rule 56 not a rule 12.
- If you’re adding affidavits its a rule 56. Wait to win, the other side would get to submit to an affidavit too.
- Motion to strike, under 12d? Rule 12 f is NOT listed.
Amending Pleadings
To correct errors, add claims, etc. We want pleadings to reflect the actual cases to be tried on their merits.
- FRCP 15:
- 15(a) before trial: “As a matter of course”
- Allows one amendment w/o ct permission
- If it is a complaint/answer with a counterclaim or 3p complaint it must be before the other party responds
- For all other pleadings must be within 21 days after pleading is served
- To amend a second time, must get other party or ct permission
- Ct should “freely give”
- 15(b) during and after trial: with permission from opposing party, or from the court.
- Opposing parties have 14 days to respond to an amended pleading (shorter)
- 15(c)(1) Relation Back (only matters if you’re against the clock on statute of limitations)
- An amended pleading “relates back” to the date of the original pleading when:
- (A) the applicable substantive law itself allows relation back (rare)
- (B) the amending party “asserts a claim or defense” not presented in its original pleading, and the newly added claim or defense “arose out
of the conduct, transaction, or occurrence” presented in that original pleading (usually) *same T/O*
- (C) to sue the correct party, when the original pleading sued the wrong party (or used the wrong name for a party) (sometimes, as long as
the correct party should have known)
- Must meet more criteria under C I-iii.
- 15(d) Supplemental pleadings
- For new events that happen after the original T/O
Misconduct and sanctions
- FRCP 11(b)
- Lawyers are responsible to make sure their documents are correct, warranted, have evidentiary support, and are signed/ certified as true.
- The court may impose an action on any attorney, law firm, or party that violated the rule or is responsible for the violation.
- Law firms are held jointly responsible for the actions of one employee!
- FRCP 11(c) 4-5: Sanctions
- Non-monetary directives (CLE’s)
- Pay a penalty to the court, and atty fees to the movant that prevailed.
- Opponent must provide notice and opportunity to respond and correct (safe harbor)
- Motion is served under Rule 5 to other side
- Recipient has 21 days to have challenged paper “withdrawn or appropriately corrected”
- If recipient does so, motion “must not be filed or be presented to the court”
- If recipient stands by their paper, the motion may proceed to the court, which determines whether the paper does or does not violate Rule 11
Joinder
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Claim Joinder
- FRCP 18(a)
- a party asserting a claim, counterclaim, cross claim, or third-party claim may join as many claims as it has against an opposing party (VERY
wide rule!)
• Includes “independent or alternative claims”
• Also apples with counterclaims, crossclaims, and third party claims.
** NOTE!** SMJ still has to apply!!
- Multiple claims by P against D:
- Can be alternative claims relating to the same transaction or occurrence
- Or independent claims relating to an entirely different incident
- Multiple Defenses by D against P
- Rule 8(d)(2)-(3)
- allows alternative defenses, including inconsistent ones!!
- Compulsory Counterclaims (the only compulsory claim in the world!) ** ALWAYS HAVE SUPP JX
- Rule 13(a)(1)(A): “must state as a counterclaim ... if the claim arises out of the same t/o” as the plaintiff’s claim
- But (B) not compulsory if would require adding a party lacking jurisdiction
- They always will be eligible for supp jx, because they come from same T/O
• Same T/O = same evidence, logically related
- Forfeited if not raised in the current case!! (As with P’s claim preclusion!)
- Permissive Counterclaims (Check for SMJ!)
- Rule 13(b): “may state as a counterclaim ... any claim that is not compulsory”
- Must qualify for orig SMJ on its own!
• if not, no big deal, they can be filed later if not raised in current case
Crossclaim by one D against another D (always permissive)
- Rule 13(g): “may state as a crossclaim” against a co-defendant “if the claim arises out of the T/O” as the plaintiff’s claim
- Likewise, co-P’s can crossclaim about a D’s counterclaim
- Some (but not all) crossclaims deal with indemnification or contribution:
- Indemnification: someone else is fully liable
- Contribution: someone else is partly liable
- (SEE also Rule 14 impleader of a non-party)
Party Joinder
Improper joinder:
- not a grounds to dismiss the case or claim, Rule 21
- Pretrial: Court may add, drop, or sever parties under Rule 21
- At trial: court has authority under Rule 42(b) to order separate trials on different issues or claims
- Sometimes, the
Permissive joinder of parties: (Always confirm SMJ!)
- FRCP 20(a)
- P’s;
- 20(a) (2) P’s filing suit against multiple D’s, may be joined in one action as defendants
- 20(a) (1) Multiple P’s filing suit together against one D, may join inane action as P’s
- IF:
- “same transaction, occurrence, or series of transactions or occurrences”
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- and
- Involves “any question of law or fact common to all” of them
- i.e., the claims for the joined parties are “logically related” to one another!!
- Impleader of a third party to become a third party D (reach out and sue someone)
- Rule 14(a) (1) “A defending party may, as third-party plaintiff,” implead “a nonparty who is or may be liable to [the defending party] for all or
part of the claim against [the defending party]”
- NOTE: impleader is only available for claims of indemnification or contribution
• Defendants may implead a non-party when defending the P's claims, or when defending a cross-claim by a co-D
- P's may implead a non-party when defending a counterclaim, Rule 14(b)
- Note: Joining a P that doesn’t meet amount IS allowed, joining a D that doesn’t meet amount is NOT allowed, as long as we are in a
diversity case (for establishing independent SMJ)
- Impleaded third-party defendants may then further implead a non-party in defending the third-party plaintiff’s claim, Rule 14(a)(5)
*NOTE: Confusing terminology:
- The third-party defendant is the previous non-party who is now impleaded
- Usually, an original defendant becomes a third-party plaintiff: by impleading when defending the original plaintiff’s Complaint
- An original plaintiff also can become a third-party plaintiff: by impleading when defending a counterclaim raised in the original defendant’s
Answer
- regardless of which party joinder rule is used, remember Rule 18(a):
- if A has one claim against B, then A is permitted to join any and all other claims A has against B into the case, regardless of whether those
other claims are related or unrelated to anything else already in the case
- But also remember that Rule 18(a) is the FRCP
- i.e., a federal court must have both PJ and SMJ over all claims and all parties in the case
Supplemental Jurisdiction Reminder!
- § 1367(b): when original jurisdiction is based solely on § 1332
- Federal courts do not have supplemental jurisdiction over:
- Claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 …
- If exercising supplemental jurisdiction over such claims would be inconsistent with the jx requirements of § 1332!!!
Required Joinder of parties:
Complicated, almost all party joinder under the FRCP is permissive, except in rare situations addressed by Rule 19
Necessary and indispensable parties
- Rule 19(a)(1)
- Is the absent party a required party?
- If yes, can the required party be joined?
- If yes, join them and proceed.
- If no, should the case proceed without them?
- If yes, proceed without them.
- If no, ENTIRE case is dismissed (f/k/a indispensable party)
- An absent party is required if:
- (a)(1)(A): the plaintiff cannot obtain “complete relief” without the absent party
- (a)(1)(B)(ii): the defendant faces “substantial risk” of multiple or inconsistent findings of liability if the absent party is not bound by the
judgment in this case
- (a)(1)(B)(i): the absent party has an interest that “as a practical matter” they cannot adequately protect if they are not included in this case
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- Not able to be joined if
- No SMJ/PJ/ability to serve process/ immunity from suit
If a required party cannot be joined, the ct must decide “in equity and good conscience” whether to proceed without them or dismiss the entire case
Look at
- how significant is the likely prejudice to the existing parties or tho the absent party, and can the court take measures to reduce that prejudice?
19(b) (1) - (2)
- Would adequate relieve be available from a judgment without the absent party, or from another forum if this case is dismissed? 19b/ (3) - (4)
- If another forum is available, case should probably be dismissed and refiled there.
Interpleaders:
Interpleader is pre-emptive litigation against the people who may sue YOU. You bring them in to sue them first, self defense. Too late to use
interpleader if you get sued first. Then you use rule 19 to force them to come in.
In interpleader the person with the limited pot of money is the plaintiff: OFTEN USED BY INSURANCE
Rule 19 the person with the limited pot of money is the defendant, forcing the other parties in.
Intervention/Interveners
- Sometimes a non-party, who is not brought into the case by either the P or D that wants to add themselves.
- The court will ask: is the intervenor seeking to participate to so they can address something in the case that could have indirect effects on them,
but the existing parties probably won’t litigate fully enough to safeguard the intervenor’s interest?
- If direct, probably a rule 19 party anyways
- If indirect, rule 24
- IMPORTANT
- The intervenor becomes a PARTY to the case, and they PARTICIPATE in the case just like an original party would. Such as engaging in
discover and presenting or cross-examining evidence at trial.
- Rule 24:
- Intervention of right, 24(a) (2)
- Court “must permit” intervenor to join the case when “disposing of the action may as a practical matter impair or impede” the intervenor’s
“ability to protect its interest, unless existing parties adequately represent that interest"
- Permissive intervent, 24(b) (1) (B)
- Court “may permit” intervenor to join the case to litigate “a common question of law or fact” in the existing case
VERY IMPORTANT:
- P against I
- Rule 14(a) (3) (will probably be an issue with SMJ, either not diverse or amount in controversy)
- This is a JX problem, NOT a JOINDER problem
- This will be on the MC exam!!! And probably the bar exam.
The RULES allow everyone to sue everyone
The ISSUES will be SMJ
Regardless of which party joinder rule, remember rule 18(a) !!!
- if A has one claim against B, then A is permitted to join ANY and All other claims A has against B in the case
- REGARDLESS of whether those other claims are related or unrelated to anything else in the case!
- Then assess SMJ
Other Joinder doctrines
- Supplemental Jurisdiction Reminder (VIP!!!)
- § 1367(b): when original jurisdiction is based solely on § 1332
- Federal courts do not have supplemental jurisdiction over:
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- Claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 …
- Claims by persons proposed to be joined as plaintiffs under Rule 19 …
- [claims by persons] seeking to intervene as plaintiffs under Rule 24 ...
- If exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of § 1332!!!
- Interpleader: Rule 22 or § 1335
- Allows the “stakeholder” of property to sue all parties who potentially could sue the stakeholder about the property (which otherwise might
result in multiple or conflicting judgments), so that the court can resolve the various claims and interests among them in a judgment binding on
all of them
- Class Actions: Rule 23
- Allows a single court in a single case, litigated by the “representative” plaintiffs on behalf of the entire “class” (usually, a large number of
plaintiffs), to resolve everyone’s claims against the defendant in a judgment binding on everyone (except those prospective class members who
opted out
Discovery
Discovery & Disclosure
After pleading begins the pre-trial process.
- Two goals:
- discovery of relevant facts
- narrowing of issues in dispute
- NO SURPRISES, want to facilitate a speedy, just, and inexpensive process.
Scope of Discovery
Discovery is not adversarial, both sides show their strongest evidence to decide if they should settle or proceed!
*Narrowing the dispute*
- Required Initial Disclosure:
- FRCP 26(a)(1) (A)
- Disclose all info for witnesses, documents, insurance companies, and damage estimations:
- (i) “each individual likely to have discoverable information” that Party “may use to support its claims or defenses”
- Not something that would cause you to lose the case if you don’ t plan on using it!
- (ii) “all” documents, ESI, and physical evidence in Party’s “possession, custody, or control” that Party “may use to support its claims or
defenses”
- (iii) Party’s “computation of damages”
- (iv) insurance policies which might cover some or all of Party’s liability
- All parties must make these initial disclosures even if they (or their lawyers) have “not fully investigated the case” yet, (a)(1)(E)
- And they have a duty to supplement under (e) when they have done so
- The scope is very wide, extending to
- any matter that is “relevant”;
- that is “non-privileged.” Rule 26(b)(1);
- And is PROPORTIONAL to the needs of the case!
- Additional provisions restrict discovery of work product, treat discovery of expert information and electronically stored information, and
permit control of discovery on a case-by-case basis.
- Happens VERY early in the case;
- Initial disclosures must be made at or within 14 days of the discovery planning conference (which is at least 7 days before the scheduling
conference)
- There are six major types of discovery devices:
(1) Oral depositions; (except parties)
(2) Written depositions; (rare)
(3) Interrogatories; (only parties)
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(4) Requests for production of documents and such;
(5) Physical and mental examination; (rare except PI) and
(6) Requests for admission.
*Note: Lots of strategy goes into using discovery devices efficiently and effectively!
Limits on Discovery
- Rule 26 (b) (1) establishes three limits: Relevance, privilege, and proportionality
- Rule 26 (b) (2) adds limits, incl electronic info.
- Rule 26 (b) (3) and (4) Work product
- Hickman v. Taylor, Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements,
private memoranda, and personal recollections.
- Oxbow v. Union Pac RR. Illegal surcharges, RR Co wanted all records, Oxbow said too expensive.
• ROL: Courts may compel production of relevant and necessary discovery proportional to the needs of the case.
- US Ex. Rel Guardiola v. Renown Health. They wanted 8 years of emails, some had been deleted and the cost to restore is 248k.
- Undue cost is with context! Pg 133. This company had 2.6 billion in revenue.
• ROL: A court will compel production of electronically stored information unless the party opposing production demonstrates that the
information is not reasonably accessible because of undue burden or undue cost and the party seeking production cannot demonstrate good
cause.
- Serious questions persist on whether the benefits of discovery outweigh its costs, and on how to control those costs.
- If a party has something they think is non-discoverable and requested by the other side:
- Either object to the request, and seeker can file a Rule 37(a) motion to compel
-
• Granted = yes discovery
• Denied = no discovery
- or file Rule 26(c) motion for protective order
• Granted = no discovery
• Denied = yes discovery
Some risk either way, Rule 37(a)(5) and Rule 26(c)(3) - LOSING SIDE PAYS ATTY FEES!
- Usually, the court’s ruling is not appealable!
- Motions for protective order
- Rule 26(c) = circumstances for protective order.
- can file to protect against “undue burden or expense”,
- or to protect from “annoyance, embarrassment, or oppression”
- Requires a showing of “good cause” by the movant, and good faith conferral, same as 37(a)
- Blanket/umbrella protective orders block outsiders from knowing.
- In Re Nat’l Prescription Opiate Litigation. DEA didn’t want private crime data against mfg released, they lost.
• ROL: Courts must find good cause to enter a protective order while considering both the competing interests and the order’s scope.
Motion to protect is the mirror image of motion to compel. Pg 166.
- Whether the motion is granted or denied, the judge MUST award expenses and atty fees to the prevailing party on the motion. 26(c) (3).
(Unless genuinely debatable)
- The goal is for the parties to resolve disputes themselves in discovery
proportionality
-
Importance of issues at stake
Amount in controversy
Relative access to information among the parties
Resources of the parties
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- The importance of the discovery sought to resolving the dispute
and whether its burden or expense outweighs its likely
*Note:
- Generally, each party pays its own discovery expenses
- BUT the court has power to shift costs if deemed appropriate
- Rule 26(c)(1)(B): “allocation of expenses”
The Special problem of ESI: Rule 26(b) (2) (B)
- “not readily accessible because of undue burden or cost”
- Important: no special rule when ESI is readily accessible
- Burden on party who asserts that identified ESI is inaccessible
- Court “may nonetheless order discovery” of that ESI “if the requesting party shows good cause”
- Subject to the limitations in (b)(2)(C)
- Also may order cost-shifting under (c) (1) (B)
Attorney-Client Privilege:
- confidential communications about legal advice
- Not, e.g., business or public relations advice
- Absolute privilege – but traditionally very strict rules on waiver
- In federal court litigation, those waiver principles have been mitigated somewhat by FRE 502 and FRCP 26(b)(5)(B)
- But a careful privilege review and providing a privilege log under (b)(5)(A) remain necessary as reasonable steps to prevent inadvertent disc
Work Product Privilege:
- Material prepared in anticipation of litigation (or for trial)
- Not, e.g., ordinary record-keeping
- Rule 26(b)(3)(B) [absolute] privilege for core work product
- Attorney’s “mental impressions, conclusions, opinions, or legal theories”
- Rule 26(b)(3)(A) qualified privilege for ordinary work product
- Court may order discovery of the material only when the seeking party shows both a “substantial need” for preparing its own case and that it
cannot obtain “their substantial equivalent” another way “without undue hardship”
- i.e., witness dies and can’t get another depo.
Expert testimony:
- Testifying vs. Non-testifying
- No discovery from non-testifying experts, Rule 26(b)(4)(D)
- May take deposition of testifying expert after their report, (b)(4)(A)
- Rule 26(b)(3) work product privilege covers:
- draft reports by testifying expert, (b)(4)(B)
- Communications between attorney and testifying expert, (b)(4)(C)
- But not “facts or data” or “assumptions” provided by attorney that expert considered in preparing their report, (b)(4)(C)(ii-iii)
NOTE: Like pleadings, discovery papers must be signed …
- … to certify that they comply with the FRCP and its policies
- if a violation occurs, the judge “must impose an appropriate sanction” which “may include” expense and attorney’s fees
- Compare: less detailed than Rule 11, and no “safe harbor” provision
Motion to compel: Rule 37
- First the parties must have “good faith conferred or attempted to confer” about obtaining the discovery without involving the judge, (a)(1)
- Motion must explain the failure, (a)(3)-(4)
- If the motion is granted, the judge “must” award expenses and attorney’s feeds to the movant, (a)(5)(A)
- but if the motion is denied, the judge “must” award expenses and attorney’s fees to the non-movant, (a)
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To keep parties from making frivolous motions to compel!!
- what if discovery is still not provided after the motion is granted?
- The judge will impose some combination of the major sanctions authorized in (b)(2)(A)
- depriving the party of the benefit of its disobedience
- Or even dismissal or a default judgment
- in addition, the judge “must” award expenses and attorney’s fees “caused by the failure” to the movant, (b)(2) (C)
Misconduct & Sanctions
Rules to encourage fair play and cooperation:
- No safe harbor bc discovery disclosures are mandatory!
Motion to compel: rule 37
- what if discovery is still not provided after the motion is granted?
- The judge will impose some combo of the major sanctions authorized in (b) (2) (A)
- Depriving the party of the benefit of its disobedience
- Or even dismissal or a default judgement!!
- In addition, the judge MUST award expenses and atty fees caused by failure to the movant, (b) (2) (C)
- Failure to preserve ESI, Rule 37(e)
- When a party “failed to take responsible steps to preserve” ESI that “should have been preserved in anticipation of conduct of litigation”
- AND that the EIS either “cannot be restored “ or cannot be “replaced through add discovery”
- (e) (2): impose a severe sanction if the loss was intentional
- (e) (1): otherwise, determine whether another party is prejudiced by the loss, and if so, “order measures no greater tea necessary to cure the
prejudice”.
- Failure to comply with rule 26(a) initial disclosures or Rule 26(e) supplementing obligation (the only mandatory disclosures)
- Rule 37(c) (1): the party cannot use the withheld information itself AND the judge MAY award expenses and atty fees, inform the jury, and
impose a (b) (2) (A) major sanction.
- Failure to make Rule 36 admission later proven to be true:
- Rule 37(c) (2): award expenses and atty fees incurred in making proof.
- Failure to participate in good faith in Rule 26(f) discovery planning.
- Rule 37(f): award expenses and atty fees to opponent
- AND the judge probably accepts the opponents submitted plan
LITIGATION PROCESS
Case Management
-
The point of discovery is to prepare for adjudication, but most cases settle. Pg 174
Once all info is available, they can make rational decisions and settle based on predicted outcome
ADR = alternative dispute resolution - focus on settlement, mediation and arbitration
ADR and Case Mgt have a focus on more efficient resolution of disputes
Rule 16 used to permit but not require pre trial conferences.
- Case Management
- Pretrial Practice
- Rule 16 scheduling order
- Under (b)(2), “the judge must issue” it “as soon as practicable”
- Unless good cause, “within the earlier of 90 days after any defendant has been served ... or 60 days after any defendant has appeared”
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- The scheduling order is usually preceded by a scheduling conference with the judge and the attorneys for the parties
- Reminder: the parties must hold their Rule 26(f) discovery planning conference, and make their Rule 26(a) initial disclosures, prior to the Rule 16
scheduling conference
- Now one of the longest and most significant fed rules.
FRCP 16
The goal of these rules is to get the parties to work it out, judge just confirms.
- REMINDER: the parties must hold their rule 26/f discovery planning conference, and make their rule 26(a) initial disclosures, prior to the rule 16
scheduling conference.
(a) Pretrial conference purpose in general
- parties should try to agree first. Judge has to approve
(b) Scheduling order and contents: the “judge must issue it has soon as practicable”
- sets important deadlines
- gives a planned trial date
- including amending pleadings, which constrains Rule 15(a)
- Filing various pretrial motions: Rule 16(b) also constrains rule 56(b)
- Unless good cause, “within the earlier of 90 days after any defendant has been served ... or 60 days after any defendant has appeared”
(c) Pretrial conference attendance and content (encouraging settlement)
- Judge may hold one or more pretrial conferences, discretional
- Can amend order and dates if needed
(d) Pretrial Order: Controls the course unless modified!
- sets dates for discovery, etc.
- Mandatory pretrial disclosures under Rule 26(a) (3) should occur before the final pretrial conference
- Requires a party not only telling opponent it m ay present at trial, but also separately identifying what it expects to use, vs what it MAY us
(e) Final Pretrial conference and orders
- New set of mandatory pretrial disclosures
- Should be held as close to the start of trial as reasonable
- Requires a party not only telling opponent it m ay present at trial, but also separately identifying what it expects to use, vs what it
MAY use.
- Compare and contrast with rule 26/ a (1) initial disclosures.The Rule 16(e) final pretrial conference is held “as close to the start of
trial as is reasonable” so that it will not need to be changed
- Modified “only to prevent manifest injustice”
- The Rule 16(e) final pretrial conference is held “as close to the start of trial as is reasonable” so that it will not need to be changed
(f) Sanctions for failure to comply
- can range from minor (denied extension) to severe (dismissal
- McKeague v. One world technologies, 2017. Pg 185. P cut hand on saw and sued. P failed to follow discovery plan, had several extensions, case
got dismissed Rule 16 (f)
- ROL: Trial courts balance the interests of adjudicating a case on the merits against maintaining an orderly and fair process and have
considerable discretion in sanctioning failure to comply with scheduling orders, including dismissing the case.
Final Disclosures and the final pretrial order
- 16(e) courts “may” (and most often do) hold a final pretrial conference.
- Usually held after the close of discovery, focuses on the conduct of the trial.
- “Summary” of discovery, may include:
- Stipulations of law and fact on which all parties agree
- Statement of disputed issues of law and fact that will form the basis of the trial
- List of witnesses that each party may call
- Deposition experts
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- Documents to be used by each party
- Any objections
- Any add’l info required by judge.
Not easily modified, 16(e) “only to prevent manifest injustice”
- R.M.R. v. Muscogee Co. Sch. Dist. Kid molested, sued school, last minute witness denied and they lost case. Court said they could have had other
options, but can’t just let someone testify that is not on pretrial order.
- ROL: Generally, exclusion of testimony from a witness not listed on a pretrial order is appropriate if: (1) admission would be extremely
prejudicial to the opposing party and (2) less prejudicial alternatives exist.
Cant typically appeal a decision to modify a pretrial order, its at judge discretion.
Other Steps That Avoid Trial
There are four other steps that may avoid trial:
(1) voluntary dismissal;
(2) involuntary dismissal;
(3) default; and
(4) settlement.
Settlement & ADR
ADR:
- extrajudicial or court-annexed
- Binding or non-binding.
Two classic kinds are arbitration and mediation
- Arbitration
- Typically set up by agreement of the parties, usually binding.
- Mediation
- Often court annexed, usually non-binding bc mediators don’t give recommendations they help the parties work through disagreements.
Looking at: what settlement amount reflects an accurate assessment of the mathematical value of the case, taking into account the probabilities and
expenses of continuing forward?
- Once the parties are in the ballpark of an agreement on that assessment, the case is very likely to be settled rather than go to trial (or even
summary judgment motions)
- In a settlement, both sides can disclaim any wrongdoing on their part – which isn’t possible when the case is resolved by the court
- Except in class actions, the judge does not have to approve the terms and conditions of the parties ’settlement agreement
These can be in court or out of court, binding or non-binding. Will result in settlement or adjudication.
Using ADR techniques in Litigation
- the idea that parties should be able to resolve a dispute by their agreement is not controversial.
- US v. Tenacious Holdings, 2014. Pg 214. Mislabeled gloves, submitted a last min mediation request to avoid discovery.
- ROL: A court has broad authority to make a mediation referral at any time during the pendency of an action, limited by the bounds of the
court’s inherent powers.
Settlement: Controversial - is it better than adjudication?
- Settlement
- Both sides show all evidence and can’t hold anything back in discovery
- What are the best case, most likely, and worst case scenarios respectively for P and D?
- Look at what will probably happen
- e.g., summary judgement, full win at trail, most likely partial loss at trial.
- Each case will have a different answer.
- Look at the ODDS that each possibility occurs
- Marek v. Chesny, 1985. Pg 206. Cops killed her son, she declined $100k settlement then spent another $140k on atty to win $60k. Wanted atty
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fees paid, ct said no, but split.
- ROL: Under Rule 68, a defendant is not responsible for attorneys fees incurred by the plaintiff subsequent to an offer of settlement, when the
plaintiff receives a judgment less than the offer, even if the fees might normally be awarded pursuant to 42 U.S.C. § 1988.
- If the case ends with a judgment, who pays for the “costs” incurred over the course of the case?
- P wins = D pays P’s costs
- Exception: if D made a Rule 68 “offer of judgment” and P wins a less favorable judgment, then P must pay D’s post-offer costs
- D wins = P pays D’s costs
- Note: Rule 54(d)(1) gives the judge some discretion: “should be allowed to the prevailing pa
Why does rule 68 apply only to D’s? To keep P’s from running up costs.
- If the case ends with a judgment, who pays for the attorney’s fees incurred over the course of the case?
- P and D each pay their own (i.e., the “American rule”)
- Some statutes (e.g., § 1988 in federal civil rights actions) authorize an award of attorney’s fees to a prevailing plaintiff
- But D can potentially limit its fees exposure with Rule 68, if P ultimately wins less than the offer, Marek v. Chesney (1985)
Other Dispositions:
- Dismissal without prejudice
- Can be refiled as a new case (in the same court or in a different court)
- Unless the claims are now time-barred by statute of limitations
- e.g., Rule 12(b)(1) or (b)(2) motion for lack of subject matter jurisdiction or lack of personal jurisdiction
- Dismissal with prejudice
- Cannot be refiled as a new case [i.e., claim preclusion applies]
- Voluntary dismissal by plaintiff based on settlement, Rule 41(a)(1)
- e.g., Rule 12(b)(6) motion for failure to state a claim for which relief can be granted due to invalid legal theory (rather than insufficient factual
allegations)
- also, e.g., dismissal because defendant has immunity from suit, or dismissal imposed as sanction under Rule 37(b) or (e)
- Default judgment
- Rule 55(a): clerk enters the default when claiming party shows that defending party “has failed to plead or otherwise defend”
- Rule 55(c): a default can be set aside for good cause
- Rule 55(b): court enters the default judgment after taking any additional steps needed based on the type(s) of relief sought by claiming party
- Applies to all claims, not just plaintiffs
- Rule 55(c): a default judgment can be set aside only under Rule 60(b)
- A default can occur if a party completely fails to participate in discovery, or a default judgment may be imposed as a sanction under Rule 37
- The equivalent solution when a plaintiff “fails to prosecute” its claims is the defendant’s motion for involuntary dismissal with prejudice under
Rule 41(b)
Summary Judgement
A good pretrial process does two things:
- Develops the relevant facts and issues
- Then narrows the case down to the salient points for adjudication
- Which may dispose of the entire case. Pg 236
Rule 56- motion for summary judgement on some or all of the claims or defenses in a case before the trial.
- Unlike 12(b) (6) and rule 12(c) motions, usually based on facts adduced during the pretrial process.
- Appropriate when there is NO disputed issues of material facts to be tried, the moving party is entitled to judgment as a matter of law.
- Powerful, frequently used.
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- Celotex Corp v. Catrett, Massive effect on litigation, part of the 1986 trilogy. Catrett
- ROL: A party making a motion for summary judgment does not need to provide affirmative evidence in the form of affidavits to support its
motion.
- Rule 56(a):
- “the movant shows that there is no genuine dispute as to any material fact”, and
- “the movant is entitled to judgment as a matter of law”
a party can move for summary judgment on any claim by or against that party, or on any defense by or to that party, in whole or in part!!
- In deciding the motion, the “facts must be viewed in the light most favorable to the non-moving party” and the court must “draw reasonable
inferences” in favor of that party, as well
- i.e., adopting the non-movant’s version of the facts
- Importantly, this means the court cannot weigh the evidence or determine the credibility of witnesses when ruling on a motion for summary
judgement!
- Rule 56(c)(1):
- How can the movant win?
- Citations to the record showing a material fact cannot be genuinely disputed
- Showing that non-movant’s record citations do not establish the presence of a genuine dispute about a material fact
- How can the non-movant win?
- Citations to the record showing a material fact is genuinely disputed
- Showing that movant’s record citations do not establish the absence of a genuine dispute about a material fact
- Examples of summary judgement:
- P & D agree about the facts of a car crash, but disagree over whether D was negligent
- No dispute of material fact, only application of law = summary judgment is appropriate
- P & D disagree over whether the light was green or red
- Dispute of facts, weighing the evidence and credibility is necessary = no summary judgement
Celotex - if P presents evidence proving their case and D does not, summary judgment is appropriate
- A party making a motion for summary judgment does not need to provide affirmative evidence in the form of affidavits to support its motion.
Pleadings etc demonstrated no dispute of material facts, or proof of P’s claims.
- They didn’t have to prove the DIDN’T give the guy asbestos poisoning, just that the lady didn’t prove anything.
- A D just has to show a P is missing an element of their claim! That’s enough, with no affirmative evidence.
REMINDER: Motions for summary judgment might be filed sooner than the completion of all discovery
- Sometimes based mostly on the pleadings, see Rule 12(d)
- Or based on information revealed in admissions, interrogatory responses, deposition answers, or documents produced
- In such situations, including when discovery is still underway, both parties must be permitted to fairly contest the motion
- e.g., submitting affidavits into the record, Rule 56(c)(4)
- And ensuring the non-movant will be able to obtain and “present facts essential to justify its opposition” to the motion, Rule 56 (d)
Voluntary and involuntary dismissal
-
55(a)
55(b) Default Judgement
55(c) and 60(b) ?
41(a) Voluntary dismissal
41(b) Involuntary dismissal
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- Judgment Not Withstanding the Verdict?
- Asserts the jury isn’t rational…
Judgement as a Matter of Law: Rule 50 (duplicated…??)
- Directed Verdict: judge decides that reasonable people could not disagree on the result.
- TAKES the case AWAY from the jury, use sparingly!
- Some courts say the case should go to the jury if there is even “a scintilla” of evidence for the other side
- TIMING:
- JMOL has to be requested before the case is submitted to the jury.
- Can only move for this once the other side has been heard at trial
- It doesn’t matter if you’ve been heard
* The D can move for JMOL after the P presents their case, and again after all evidence is presented.
* The judge must conclude the P has NOT produced adequate evidence on each element to possibly win
* The P can can only request JMOL after all evidence is presented
• Due process entitles every litigant an opportunity to be heard, JMOL would deprive them of the opportunity to present evidence for their
case.
• Other side must fail to meet burden of PRODUCTION, not proof!
• Doesn’t have to include evidence on damages, only factual info
• Plaintiffs rarely get these
- NOTE:
•
•
•
•
You can move for JMOL on individual claims, even if you can’t move on others.
Functional equivalent of SJ, but it just comes up at trial
Looks at evidence that came up at trial
The judge may NOT make witness credibility decisions, that is for the jury to decide!
- JMOL appeal can only be about the same issues raised in the initial judgement????
*
Jury Trials
Right to a jury trial
Trial by Jury - 7th Amendment ONLY applies in Federal Court!!
- Most states have similar laws
- WAIVED IF NOT TIMELY DEMANDED Rule 38(d)
- Formal Characteristics of a Jury
- A federal civil jury normally has 6 to 12 members acting unanimously.
- Rule 2 of the FRCP abolished the distinction bt courts of law and equity
- but that distinction persists in the interpretation and application of the Seventh Amendment right to jury trial in civil cases
- Comparison of the cause of action involved to historical causes of action (look at 1791)
- Whether the remedy sought is (closer to) legal or equitable in nature:
- Paradigm claim at law: money damages
- Paradigm claim in equity: injunction
- If a claim has both, jury decides legal damages FIRST, then judge applies law (Beacon Theaters)
- Dont just say claim for money = jury
- Has to be a claim for money DAMAGES = jury
WE WILL BE TESTED ON THIS!
Does the 7th amendment require a jury?
- breach of contract claim seeking money damages
- Yes, only a legal claim under common law. (Not equity)
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- Breach of contract claim seeking specific performance
- No, only an equitable claim
- Breach of contract claim seeking both forms of relief
- Yes in part, we have jury decide damages first, see Beacon Thea
Selection of a Jury
- By an elaborate process including the judge’s voir dire examination and the parties ’challenges, an impartial and qualified trial jury is selected.
- Master List
- Randomly selected names receive a jury summons
- Venire (jury pool)
- Disqualifications and exemptions
- Excuses
- Voir dire
- Challenges for cause
- Only if a significant risk a juror cannot be impartial
- Peremptory challenges
- Allow each side to dismiss a small number of jurors without reason
- But CANNOT be race/sex based.
- Batson v. Kentucky 1986. Not until then that the SC said it was unconstitutional to strike based on race. The criminal case where the
prosecutor was trying to get an all white jury
Trial by Jury
The Judge determines and administers the jury instructions
- Rule 51: input from both parties in advance, with opportunity to object.
- Most civil cases are decided by a general verdict for the prevailing party, and a relief amount
- Also in civil, the jury determines the amount of relief or damages.
- Special verdicts: Require a jury to make a written finding of fact on each issue necessary to the claims or verdicts (rare)
- Reserved for complex cases, so jury determines facts and judge applies law
JMOL v. Summary Judgment
- a motion for summary judgment before trial asks the court to rule that trial will not be held, because the moving party is entitled to prevail based
on the indisputable facts in the record
- Having a trial lis not necessary
- A motion for judgment as a matter of law (JMOL) during trial asks the court to take the decision away from the jury, which has already heard
evidence, because the moving party is entitled to prevail based on the evidence presented at trial
- Judges usually are disinclined to grant such a motion, preferring to give the jury the opportunity to reach the correct verdict itself (which they
usually do)
- The movant thinks there is NO possible way for the other party to win the case.
Judgment as a Matter of Law (JMOL) - Rule 50(a)
• At trial, but there are situations in which the judge may decide not to use a jury
• Standard for JMOL - Rule 50(a)(1)
• We will grant a motion for JMOL (and not use a jury) if a judge decides that reasonable people could not disagree on the result
• Timing of JMOL - Rule 50(a)(2)
• Can only move for this once the other side has been heard at trial
• “At any time before the case is submitted to the jury”
• It doesn’t matter if you’ve been heard. EX:
- D’s motion after P rests the plaintiff’s case
- D’s motion after P has fully presented P’s evidence on duty in a negligence case, prior to evidence on causation or damages
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- P’s motion after D rests the defendant’s case
- D’s motion after D rests the defendant’s case
- Rule 50(a), historically “directed verdict”
- if the non-moving “party has been fully heard on an issue during a jury trial”,
- and;
- “the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the [non-moving] party on that issue”
- Then“ the court may” grant the movant’s motion “on a claim or defense” for which the non-movant needed to prevail on that issue
NOTE: you need to make a rule 50(a) if you want tot make a rule 50(b) . And you need to make make a rule 50(b) if you ever want to appeal on the
sufficiency of the evidence
Both sides should make a 50(a) motion if they ever want to appeal on sufficient of evidence!
NOTE: Like summary judgement: the court “must draw all reasonable inferences in favor of the non-moving party, and may NOT make any
credibility determinations OR weigh the evidence”
- this means if a jury trial is in progress, the court “must disregard all evidence favorable to the MOVING party that the jury is not required to
believe”
• You can move for JMOL on individual claims, even if you can’t move on others
• Functional equivalent of SJ, but it just comes up at trial
• Looks at evidence that came up at trial
• Like SJ, is always discretionary
Bench Trial: Fact finding by Judge, instead of jury
- Availability
- A bench trial: the jury trial right does not apply in the case at all, or the parties have waived it for all applicable issues in the case
- The jury trial right applies only to parts of the case (e.g., money damages), and
- The judge decides the other issues (e.g., injunctive relief, Markman issue)
- Procedures
- Rule 52(a)(1) requires the judge to separately explain the findings of fact and the legal conclusions
- A bench trial has equivalent motions to a jury trial: Rule 56 before trial, Rule 52(c) during trial, Rule 52(b) after trial, and Rule 59(a)(1)(B) for
a new trial
Same options exist for a bench trial on Sum J and JMOL
Post-Trial Motions
Timing:
- once the verdict is rendered, judgment is entered promptly:
- Within 28 days:
- Rule 50(b) RJMOL
- Rule 59(a) Motion for a new trial
- Within a reasonable time, but no more than 1 year
- Rule 60(b) motion for relief from judgment on grounds 1, 2, or 3
- Within a reasonable time
- Rule 60(b) motion for relief from judgment on grounds 4, 5, or 6
- NOTE: Really hard to get a court to reopen a case on Rule 60!
But what if the judge doesn’t agree with the jury’s verdict?
Renewed Judgment as a Matter of Law (JMOL) - Rule 50(b) (formerly judgment not withstanding the verdict)
• The same as JMOL, but later (after trial is over and judgment entered)
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• Court previously denied JMOL motion and let the case go to the jury, but the jury decided in favor of the other side.
• Losing side submits an RJMOL motion and the verdict is flipped
• Why would we do this?
• When the jury reaches a conclusion it could not have reasonably reached
• Courts are often nervous to grant JMOL because it looks heavy handed
• Timing
• You must move for RJMOL within 28 days after entry of judgment
• To move for RJMOL, you must have moved for JMOL at a proper time of trial
• If you haven’t, you’ve waived your right to JMOL
• a motion under Rule 50(b) is decided by the identical legal standard as a motion under Rule 50(a)
Motion for New Trial - Rule 59(a)(1)
• Move within 28 days after entry of judgment
• RJMOL is more extreme: takes judgment away from one side and enters it for another. New trial is less radical: takes it away from one side but
doesn’t enter it for another
• Why do we grant this?
• Unlimited basis
• Trial judge is convinced there was a mistake that affected the outcome
• Rather than have it reversed on appeal, let’s fix it with a new trial
• Do not confuse with Rule 60(b)
• Judge can set aside a judgment
• Discretionary and extremely rare, we like to give finality to judgments
• Only not discretionary when an issue is void
• Like if you figure out there was no subject matter jurisdiction
Parties general file rule 50(b) and rule 59(a) motions together
- If the Rule 59(a) motion is granted, the new trial proceeds and that order is not appealable
- If the Rule 50(b) motion is granted, Rule 50(c) requires the judge to also rule conditionally on the Rule 59(a) motion
- And the party who prevailed with the jury will appeal the judge’s ruling
- If both motions are denied, the losing party can appeal
- Regardless, the Court of Appeals can ratify the jury’s verdict for the prevailing party, reject the jury’s verdict and order judgment for the losing
party, or remand for a new trial
Motion for a New Trial
- Rule 59(a)(1)(A) does not enumerate the grounds for granting a motion for a new trial, but they are established in case law:
- Error by the trial judge in evidentiary ruling or jury instructions
- Impermissible argument to the jury (or other misconduct) by counsel
- Misconduct by judge or by juror(s)
- Newly discovered evidence
- Jury’s verdict is “against the weight of the evidence”
- Slightly less demanding standard than Rule 50(b), but motion rarely succeeds
- Jury’s damages award is excessively large (or small)
- Due to Seventh Amendment Re-Examination Clause, the judge cannot directly reduce the award, but can encourage the prevailing party to
accept remittitur
VIP!!!
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- Filing the Correct Motions at the Correct Time Matters!!
- The District Court cannot hear a Rule 50(b) motion if the party did not previously make a Rule 50(a) motion on that issue
- The Court of Appeals cannot hear a challenge to the “sufficiency of the evidence” if the party did not make a Rule 50(b) motion
- A Rule 56 motion, Ortiz v. Jordan, or a Rule 50(a) motion, Unitherm, is not enough to preserve this argument for appeal; the party must file
a post-verdict Rule 50(b) motion to be able to argue for reversal on this basis
- Likewise, the Court of Appeals cannot hear an “against the weight of the evidence” argument for a new trial if the party did not make a Rule
59(a) motion asking the District Court to consider that argument
Motion for Relief from Judgment
- Rarely granted: final judgments must remain final
- Rule 60(b) grounds that expire after a year
- (1) “excusable neglect” as well as mistake, inadvertence, or surprise
- (2) “newly discovered evidence” that could not have been found for trial despite the party’s due diligence, and that probably would change the
result
(3) fraud, misrepresentation, or misconduct by opposing party
- Rule 60(b) grounds that do not expire
- (4) the judgment actually has been void all along (e.g., no jurisdiction)
- (5) an ongoing injunction is no longer equitable
- (6) other extraordinary circumstances that justify piercing finality
Appeals
Appellate review: Authorized by statute
- Often decided based on the briefs, without oral argument
- Rates of reversal on appeal are consistently quite low
- A notice of appeal must be timely filed, otherwise the right to appeal is forfeited regardless of its potential merits
- E.g., 30 days under Fed. R. App. P. 4(a)(1) (A)100
- Must be a final judgment = nothing left to be decided at trial level § 1291
- Very rare, but all states allow some form of interlocutory appeal/review
- Must appeal in time, within 30 days of final judgment
- A party can normally only appeal a FINAL JUDGMENT
- Otherwise the appellate court lacks jx over the case.
- Even partial judgment as to certain parties or claims, e.g., Rule 56(a), usually does not count as an appealable final judgment under Rule 54(b)
- Under the “collateral order” doctrine, a final ruling on a discrete issue can be the subject of an immediate interlocutory appeal if the issue is
separate from the underlying merits of the case and vindicating the error on post-trial appeal would be inadequate or ineffective (e.g., immunity
from suit)
- NOTE:
- Certain limited exceptions, which specifically allow interlocutory appeal on a particular issue, are authorized by statute
- In very limited situations, an appeals court might consider a writ of mandamus for other crucial issues (e.g., improper denial of right to jury
trial
- On appeal, the appellant may assert any grounds for error that were PROPERLY PRESERVED in the trial court proceedings
- The appellee may simply defend the result below, or may cross -appeal.
-
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Intermediate appellate courts usually have judges that sit on panels
- En Banc - all judge members of an appellate court sit for a decision
- rare, happens when a decision will bind the entire court, or to avoid inconsistency
Supreme courts usually have 5, 7, or 9 members that sit alone
- review is discretionary
- Except death penalty cases
- And reviews from three judge district courts? 28 USC §§1253, 2284(a)
- SCOTUS reviews decisions from highest state courts
- State courts are bound by SCOTUS, but SC also bound by state cts on substantive state issues
Functions of appellate courts
- correct trial court errors
- Confirm uniformity in lower court decisions, esp on unclear or unsettled law
- Review of how law was applied, no new facts
- There is no constitutional right to appeal!
- Reviewability, pg 309
- Which trial court rulings the court of appeals will consider.
- What is not appealable, like a pretrial discovery order, may be reviewable later
- Some actions are unreviewable,
- i.e. they had an adverse interlocutory ruling but then won final judgment.
- Or harmless errors
- on appeal, the appellant may assert any grounds for error that were properly preserved in the trial court proceedings
- The appellee may simply defend the result below, or may cross-appeal
- This requirement prevents “sandbagging” the trial judge or the opposing party – i.e., you must give the trial judge the opportunity to fully hear the
issue (from both parties) and get the ruling right in the first place at the time
- e.g., timely objection on the record, filing Rule 50(a) motion
- relief on appeal will be denied for “harmless error"
- Decision de novo: “from the new” (the court botched the law)
- Deciding the issues without any reference to any legal conclusion or assumption made by the previous court to hear the case.
- Without deference?
- For questions of LAW
- i.e., §1331 federal question, Erie Doctrine, right to jury trial
- Most “mixed questions of law and fact”
- Denial of Rule 50(b) motion
- Findings of FACT
- Clearly erroneous review for judges findings
- e.g., where party is domiciled, bad faith rule or rule 37 violation
- 7th amendment re-examination clause for jurys findings
- E.g., jury’s verdict for Reeves rejected credibility of employer’s explanation.
- exercise of judicial judgment
- Abuse of discretion review
- e.g., granting or denying change of venue, discovery schedules and rulings, joining or severing claims or parties for trial
- Denial of Rule 59(a) or Rule 60(b) motion
- Admissibility of evidence at trial under Fed. R of Evid.
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- Review with deference = De Novo
- Some degree of disinclination to disturb the ruling below: two kinds are usually done this way
- Findings of fact by a judge or especially a jury
- Trial judges rulings on many matters of pretrial and trial management such as discovery
- Juries are important, only reversed if “clearly erroneous” FRCP 52(a) (6)
- Trial judges and juries are in a better position to make those decisions, such as credibility.
- Trial judges and juries should be treated with respect
- Not overwhelming appellate cts with review of close rulings on factual issues unique to a case
- Any other judge actions can only be reversed for abuse of discretion
- Must be way outside of the range of appropriate discretion to be reversed!
- Unless affects the outcome of the case?
- Preclusive Effect of Judgments
- Only arises when a subsequent case is filed – i.e., what effect does the judgment in Case One have on the ability to litigate Case Two?
- In criminal litigation, the Double Jeopardy Clause protects against a second prosecution of the defendant for the “same offense” resolved by the
judgment in the first prosecution
- In civil litigation, claim preclusion provides a similar (not identical) shield against duplicative lawsuits
- By contrast, issue preclusion is much more broadly applied in civil litigation than in criminal cases, and it may arise by or against plaintiffs or
defendants from Case One
Preclusive Effect of Judgments
- Why is preclusion an important principle in the legal system?
- “claim preclusion” f/k/a “res judicata”
- “issue preclusion” f/k/a “collateral estoppel”
- reminder: how is preclusion asserted in case two ?
- Raise it as an affirmative defense under rule 8(c) (1)
- Rule 8 applies to pleadings. Typically preclusion doesn’t come up in concurrent cases.
- You DONT file a rule 12(b) (6) failure to state a claim on which relief can be granted, but its a ground for an AFFIRMATIVE defense b(c)
of claim preclusion.
- Then you file a motion for judgment on pleadings or motion for summary judgment and get it thrown out.
Preclusion
Claim Preclusion- Res Judicata
1.
2.
Has to be a valid final judgment in case 1!
Case 1’s judgment extinguished the claim
- Sometimes described (imprecisely) as being a judgment “on the merits” (dont use this!!)
3.
Case 2 involves same case 1 claimant suing the same case 1 defendant for the same cause of action as case 1
- If we swap who is on which side of the v., claim preclusion doesn’t apply
- (Applies to counter claims, cross claims, not just plaintiff’s )
- Has to be the CLAIM that is extinguished, not the plaintiff.
- when these elements are present, claim preclusion requires that Case Two must be dismissed with prejudice
- Terminology of extinguishment
- If the defending party won case 1 - the judgment is a “bar” to refiling the claim.
- If claiming party won case 1 - the merger of the claim into the judgment means that the the claim no longer exists (to be refilled)
- Like attempt merges into the successful offense
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- If you sue for negligence and win, the claim no longer exists, only the judgment exists.
- Terminology is different, consequence is the same!
Res judicata = a thing adjudicated
- res judicata is the principle that a cause of action may not be relitigated once it has been judged on the merits.
- "Finality" is the term which refers to when a court renders a final judgment on the merits.
- We now allow much more joinder than CL did previously, so no reason lawsuits can’t be litigated together
- Also, courts of equity and law were split, now they are together
- Mutuality rule?
- NOTE: Claim preclusion used to be called collateral estoppel.
- 15(a) : the courts give broad freedom in developing and changing position via modifying per
- Claim preclusion used to prevent “claim-splitting” by P’s, to keep their options open in case they lose their first case
Preclusion as a later-case determination:
Preclusion as an affirmative defense:
- 8(c) (1) - stating any avoidance or affirmative defense, including estoppel and res judicata
- Dont raise, you may lose it.
Motions for relief from judgments as a sometime alternative to contesting preclusion:
- Rule 60(b) ?
Claim Preclusion
Preclusion
- Did Case One’s judgment extinguish the claim?
- Yes: Rule 12(b)(6), Rule 56, Rule 50, dismissal with prejudice
- No: Rule 12(b)(1)-(3), dismissal without prejudice
- Terminology of extinguishment
- If defending party won Case One, the judgment is a “bar” to refiling the claim
- If claiming party won Case One, the “merger” of the claim into the judgment means that the claim no longer exists (to be able to be refiled)
Claim splitting: brining two actions against the same with different parts of what should be regarded as a single claim that the P should have brought
in one suit.
- we try to prevent this!
- There are certain instances that do not bar or merge
- Voluntary dismissals w/o prejudice, dismissals for prematurity of P action, etc?
Rush v. City of Maple Heights, car crash, P sued for PI in one suit, property damage in another. Used to be allowed, now
- you must bring all causes of action in one suit, if from the same tortious act.
Tricky example:
Case One: P loses personal injury claim in car crash with D
Case Two: D sues P for property damage to D’s car in crash
- Not claim preclusion – why? (NOT SAME P against SAME D)
- But Case Two is dismissed – why?
- Rule 13(a) compulsory counterclaim bc same T/O, have to sue then or its waived!
Issue Preclusion - Collateral Estoppel
Issue Preclusion Requires:
(1) Valid final judgment in Case One
(2) Issue was “actually litigated and determined” in Case One
(3) Issue was “essential to the judgment” in Case One
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- when these elements are present, the two parties to Case One will not be allowed to relitigate that issue in Case Two between them
- And non-parties to Case One also may be able to prevent the parties from Case One from relitigating the issue in Case Two
the exceptions to the general rule of issue preclusion are designed to address situations when it would be unfair to hold a party to a determination on
the issue in Case One
- Why require that the issue be “actually litigated and determined”?
- e.g., Rule 36 admission for purposes of this case o
What is “essential to the judgment”?
- To have issue preclusion in Case Two, we must be able to tell exactly why the winner won Case One, and our ability to do that varies
- Issue preclusion is not limited to trial verdicts or judgments on the claims
- Who is bound by issue preclusion from Case One?
- Only the parties to Case One
- And privies to the Case One parties (e.g., subsequent purchaser of land)
- Not outsiders to the litigation (e.g., Martin v. Wilks)
- Who can assert issue preclusion against a bound party
- Mutual defensive: L sues W in Case Two, W precludes L from relitigating
- i.e., L already lost on issue = W doesn’t have to win it again
- Mutual offensive: W sues L in Case Two, W precludes L from relitigating
- e.g., W proved L’s domicile for SMJ in Case One, W uses general PJ in Case Two
- Non-mutual defensive: L sues N in Case Two, N precludes L from relitigating
- e.g., W’s fraud defense to L’s breach of contract claim = N doesn’t have to reprove it
- Non-mutual offensive: N sues L in Case Two, N precludes L from relitigating
- e.g., Parklane Hosiery private plaintiffs using SEC judgment against company
- Don't need to be a party or in privity with the first law suit, can be used by a third party!
- important: courts have discretion to disallow such assertions of preclusion
- Courts don’t like to allow this as often! Why didn’t they just join the first case?
*** So for us to have issue preclusion in case two - we must be able to tell EXACTLY why the winner won case one, and our ability to do
that varies!! *** VERY IMPORTANT
Choice of Law
- Under the Full Faith & Credit Clause and § 1738, the preclusive effect of a state court judgment is determined by the law of the state that issued
the judgment
- i.e., Forum Two applies the preclusion doctrines of Forum One
- In diversity cases, the preclusive effect of a federal court judgment is determined by the law of the state where the court is located
- In federal question cases, the determination is made by federal common law
Preclusion
- choice of law, pg 640-641
- Under full faith & credit clause and § 1738 of the code, the preclusive effect of a state court judgment is determined by the law of the state that
issued the judgment.
- Determine the preclusion by the state that issued the judgment!
- Forum two applies the preclusions doctrines of forum one.
- in diversity cases, the preclusive effect of a federal court judgment is determined by the law of the state where the court is located
- Use the law of the state! (Preclusion is substantive)
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- In Fed question - the determination is made by federal common law
- There is no general federal common law (he said to remember this phrase! )
- There is federal common law in SOME areas, such as preclusion
- ie. If you’re in FL fed court read about the 11th circuit fed common law on preclusion
CLASS ACTIONS
Basic Principles
Representative sues on behalf of the class members
Advantages of class action:
- resolve large numbers of related flames efficiently
- Can correct widespread small-dollar harms, e.g., consumer protection, corporate fraud.
Disadvantage of class actions:
-
loss of class members autonomy to control their own lawsuits
Incentives for defendants, too risky not to settle
Incentives of counsel - and relief awarded to class members
Burden on court system, and is it an appropriate role for judges?
Rule 23 - the longest rule! Things to know
- 1. The prerequisites - Rule 23(a), you need all of these
Class Certification: Rule 23(a)
- Class representative sues on behalf of all class members
- Formally, the court appoints class counsel under Rule 23(g)
- (1) numerosity
- Too numerous for practical joinder
- (2) commonality
- There’s some question in common to all of the class members
- When you’re looking at commonality, you’re actually looking at answers
- We want to be able to litigate an issue that will decide things for every class member at once
- Got harder after Walmart: court says there’s no commonality amongst Walmart employees because they were discriminated against in
different acts of discrimination
- Must suffer the same injury, not just a violation of the same law.
- Classwide uniform question of law or fact would resolve claims of all class members
- (3) typicality
- Rep’s claim must be typical of those of the class
- Rep should feel the same kind of pain as the class members
- (4) adequacy
- Rep will adequately represent the interests of the class
- all four requirements must be met!!
*Class counsel is appointed under Rule 23(g)
- 2. Types of class actions - Rule 23(b), you only need to meet one of these
- Rule 23(b)(1): Individual litigation risks (A) inconsistent and incompatible judgments against the defendant or (B) prejudicing the interests
of the potential plaintiffs who aren’t parties to it
- compare: interpleader and intervention
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- Rule 23(b)(2): Injunctive relief or declaratory relief against the defendant is appropriate to benefit the class as a whole
- i.e., any class member would be able to enforce the injunction if defendant violated it in the future
- Rule 23(b)(3): a “damages” class action
- Must show…
- That common questions predominate over individual questions (predominance)
- The class action is the superior way to resolve the despite (superiority)
- Can be declined by difficulties in manageability (critical Q in b3 cases)
- Example
- Bus accident
- NOTE! Rule 23(c)(2)(B)(v) requires that class members in a 23(b)(3) action must be given notice and the opportunity to opt out
- Haley v. Medtronic, Class action for pacemakers, court said too hard to apply state law and evaluate individual damages.
- Met requirements of 23(a) 1-4, but rejected for damages under rule 23(b) (3), and medical monitoring claim under 23(b) (2)
- Walmart v. Dukes, back pay under 23(b) (2). No, only (b) (3) would apply, and no commonality under 23(a) (2)
- Class certification under Federal Rule of Civil Procedure 23(a) is improper if there is no common injury that may be resolved across the entire
class
- Same injury, not same violation. They would have the the same REMEDY
Class action fairness act allowed more CA to be filed in federal courts
- still, must be filed in a forum with PJ over the D.
- Erie Doctrine applies: Rule 23 and state substantive law
- As in Shady Grove’s class action
Mandatory class actions: b1A, b1B, b2
Optional class action: b3 (opt out)
(B2 and b3 most common)
- 3. Case is not a class action until the court certifies it as such
- P will file a complaint that says “class action,” but that doesn’t mean anything
- Rep makes a motion to certify the class → when the court grants this, it becomes a class action
- Judge decides who the class counsel will be
- This is NOT a final judgement, cannot be immediately appealed
- Rule 28(f) allows a discretionary appeal though!
- 4. Notice of Pendency - Rule 23(c)
- In the Rule 24(b)(3) class, the court must give individual notice to all members reasonably identifiable
- This is required only in the (b)(3) class
- Notice must tell the members that they can opt out of the class
- If they don’t opt out, they’re bound by whatever happens in the case
- The representative pays to give this notice
- 5. Who is bound by a class judgment?
- All members except those who opt out of a (b)(3) class
- There is no right to opt out of a (b)(1) or a (b)(2)
- These are mandatory class actions
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- 6. Settlement or dismissal
- of a certified class must be approved by a court - Rule 23(e)
- Rule 23(e)(2) requires the court’s approval: the settlement of a class action must be “fair, reasonable, and adequate”
- Reminder: voluntary dismissal pursuant to settlement, Rule 41(a)(1)(A)(ii)
- Why would settlement class actions be beneficial to both the defendant and the plaintiff class?
- What dangers does a settlement class action pose that a litigation class action does not?
- Again, is this an appropriate role for judges? the court system?
- 7. Subject matter jurisdiction
- Options
- Federal question jurisdiction
- Diversity
- Citizenship
- You look only at the rep, not all of the class members
- Amount in controversy
- Look at whether the rep’s claim exceeds $75k
- If so, we’re okay, even if other class members have less
Settlement Class Actions
- Filing a class action with the intent that it never goes to trial.
- This is becoming more of a thing, to make companies pay for their wrongs.
- The settlement is already drawn up with they file
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