Civil Procedure Outline: McLaughlin
● A class action is a procedure that allows an action to be brought by or against a party who
is a representative of a large number of persons similarly situated to the representative,
but who are not formally named.
o Once the requirements for 23A have been met, the party class access must meet
the requirements of 23(b).
o 23(A) Requirements: 1. Numerous, 2. Commonality, 3. Claims/Defenses of party
are typical of the claims of the class. 4. Representative parties will fairly protect
the interests of the class.
o 26(b)(3) is the most common type of class action: 1. Questions of law/fact must
predominate over individual claims. 2. Class action in superior to other methods.
o Pg.650: Class Action fairness act. Will test on Bar.
● In the Federal Rules of CP, Rule 23 made class actions available in a variety of
circumstances.
o 1996 amendments to Rule 23 corrected many of the problems with the original
rule. Added rules 23.1 & 23.2 to the rule.
o 23.1= Shareholders, 23.2= Unincorporated associations.
o For rule 23 to be in effect it had to meet certain requirements found in p.644-645
in text.
● Walmart Store Inc. v. Dukes:
o Plaintiff’s class action failed to meet the general commonality requirement of FR
23(a)(2).
o What matters in regard to commonality was not the raise of common questions,
but the capacity to generate common answers.
● Comcast corp. v. Behrend:
o Class certification under Rule 23(b) requires that questions of law or fact
predominate over any questions revolving around individual members.
o Held that Notice requirement on bringing a class action under Rule 23(b)(3) is
always required.
● In settlement class actions the parties arrive at a settlement before the action is
commenced.
● Interpleader: A procedure that allows a party in possession of money or other property to
bring all the adverse claimants to the property before the court to resolve their claims in a
single proceeding.
o Purpose to eliminate dangers of double liability.
Erie Doctrine:
● Erie Doctrine: Fundamental legal doctrine which mandates that a federal court called
upon to resolve a dispute not directly implicating a federal question must apply state
substantive law. Federal court applies state substantive law but federal procedural law in
adjudicating the state law claim.
o Involves both separation-of-powers & federalism policies.
o Separation-of-powers: Proper allocation of law-making power between the
federal courts & Congress.
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o Federalism policies: Allocation of authority between federal and State courts.
o Swift v. Tyson: ROL: The Rule of Decision act does not bind federal courts to
state common law. Rule of Decision act provides that state laws should generally
be viewed as rules of decision in applicable judicial cases.
▪ If local law can be used, if general unwritten law does not have to count.
Decision of highest court only matters in a local matter & not in a general
matter. Under general commercial law Swift was considered valid
consideration.
▪ 1652: What counts as state law.
● State Constitution
● State Statutes
● Decisions of the highest court.
● Under principles of general commercial law they considered the
eradication of pre-existing debt to be valid consideration for Swift
v. Tyson.
o Eerie Railroad Co. v. Tompkins: ROL: A federal court sitting in diversity must
apply state substantive law, whether statutory or common law.
▪ General or Local law.
o Swift v. Tyson said that federal courts independently had the say-so in applying
state law, but the Eerie doctrine made it so state substantive law must be applied.
Conflict of Laws: Term given to the field of law that governs the selection of applicable
law to be applied in a particular case.
o Conflict of Law rules define when the state will apply its own laws in deciding a
case and when it will apply the laws of some other state/country that has a
connection to the case.
o Klaxon co. v. Stentor Electric: Federal district court must apply the same conflict
of law rules that would be applied by a state court judge in the state in which the
federal district court sits.
Van Dusen v. Barrack: When transfer of venue under 1404A is made on defendants
motion, transferee district court must apply choice law rules of the transferor state when
determining which state substantive law will apply to the case.
o In Ferens it was ruled that this rule applies even when Plaintiff makes a transfer
motion under 1404A.
o Transfers under 1406A do not have the Ferens & Barack rule apply for improper
venue.
Under Erie federal courts are bound by state court decisions on all matters of state law.
o Erie Guess: Determining which state law content to apply under the Erie guide,
generally whatever the highest state court would hold. (If it has a holding related
to that matter.)
Venue Transfer 275-278.
Guaranty Trust Co. v. York: ROL: A federal court, exercising jurisdiction based strictly
on diversity of citizenship, must abide by any state legal rule that would be outcome
determinative if held in state court.
Hannah v. Plumer: ROL: If a plaintiff serves a defendant properly under the federal rules,
the plaintiff can proceed with a state-law claim that requires a different method of service
for establishing liability. (Federal over State basically)
o In a conflict between a federal rule and a state statute, the federal rule wins;
limiting the Erie doctrine.
o Two tests govern the determination of questions under the Erie Doctrine:
Hanna test & Outcome-Determination test.
▪ As held in Hanna, if the matter is controlled by an applicable Federal
Rule of Civil Procedure or Appellate procedure, the Hanna test applies
and requires that the federal rule apply to the complete exclusion of state
law.
▪ If matter is not controlled by applicable Federal Rule of CP or Appellate
procedure than, the Guaranty Trust ‘outcome-determination’ test applies,
and the state law must be examined under that test to determine if the state
law is substantive or procedural. If it changes the outcome of the case, the
federal rule controls. Normal Erie law.
o The question when determining all Erie questions is whether there is an applicable
Federal Rule of Civil or Appellate Procedure that controls the issue before the
court.
● Walker v. Armco Steel Corp: ROL: Rule 3 of the Federal Rules of CivPro does not toll a
state statute of limitations or preempt state tolling rules.
● Burlington Northern Railroad Company v. Woods: ROL.: A federal rule that can be at
least reasonably classified as procedural will preempt a state rule where the purposes of
the rules are so similar that the federal rule can be said to occupy the state rule’s field of
operation.
● Erie Doctrine: Vertical Choice of law, Vertical uniformity helps prevent forum shopping.
● 4 cases: 5 principles
o 1. Klaxon: Vertical Uniformity
o 2. Van Dusen: 1404
o 3. Ferens: 1404
o 4. Atlantic Marine: Forum selection clauses
o 5. Section 1406 transfers
● Substantive v. Procedural: Hanna impacts/modifies the York outcome determination test.
● Gasperini: In Federal Court- Part 5 of the Erie Checklist we apply a shock the conscience
standard.
● Stewart Organization, Inc. v. Ricoh Corp: ROL: A federal court sitting in diversity
should apply federal law in adjudicating a motion to transfer a case to a venue provided
in a contractual forum-selection clause.
● Chambers v. Nasco Inc.: ROL: The court possesses an inherent power to sanction a
party’s bad-faith conduct.
● Gasperini v. Center for Humanities, Inc.: ROL: A federal trial court sitting in diversity
jurisdiction may apply state-law standards for reviewing a jury verdict, subject to review
for abuse of discretion by a federal appellate court.
● Semtek International Inc. v. Lockheed Martin Corp: ROL: The Claim-preclusive effect of
a dismissal by a federal court exercising diversity jurisdiction is determined by the law of
the state in which the federal diversity court sits.
● Shady Grove Orthopedic Associates v. Allstate Insurance Co: ROL: A state law that
prevents certain types of damages from being pursued via class action may not limit
federal class actions that satisfy the requirements of Federal Rule of Civil Procedure 23.
○ Issue: Whether Shady Grove’s suit may proceed as a class action.
○ Facts of the case: Two laws apply. NY Ins. Ann: 5106(a) and 901(b). Rule 23
states that you need to meet both 23(a)(b) but this rule is trying to add further
conditions.
○ Scalia: Formula for the decisions:
■ The Test: Test is not whether the rule affects a litigant’s substantive rights,
most procedural rules do. What matters is what the rule itself regulates: If
it governs only the manner and the means by which the litigants rights are
enforced, it is VALID. If it alters the rules of decision by which the court
will adjudicate its rights, NOT VALID.
■ First determine if Rule 23 answers the question in dispute. If there is a
federal rule that causes a direct collision, the rule itself needs to be
constitutional and that it does not violate the rules enabling act.
■ Presumption that every federal rule is constitutional does not violate rules
enabling act.
■ Has to confirm that there is a direct relationship.
■ When fairly construed does Rule 23 cause a direct collision with state law,
and can this collision be reconciled?
■ This will cause forum shopping, but this is forum shopping for the correct
reason rather than the wrong reason.
■ Federal Rule governing procedure is valid whether or not it alters the
outcome of the case in a way that induces forum shopping.
○ Rule 23: A class action may be maintained if two conditions are met; the suit
must satisfy the criteria set forth in subdivision (a) (ie, numerosity, commonality,
typality, and adequacy of representation), and it also must fit into one of the three
categories described in subdivision (b).
■ This creates a categorical rule entitling a plaintiff whose suit meets the
specified criteria to pursue his claim as a class action.
■ 901B cannot apply in diversity suits unless Rule 23 is ultra vires.
■ Rule 23 automatically applies in all civil actions & proceedings in the
United States District court.
○ It is not the substantive or procedural nature or purpose of the affected state law
that matters, but the substantive or procedural nature of the federal rule. Validity
of the Federal Rule depends solely upon whether it regulates procedure.
■ If it does, it is authorized by 2702 and is valid in all jurisdictions with
respect to all claims, regardless of its incidental effect upon state created
rights.
- The York test is used when there is no federal rule that causes collision w/ state law or
there is no federal rule at all.
● York Test: 1.Substantive law affects the outcome. 2. Not applying the law would
encourage forum shopping in the federal court for the wrong reasons.
● Hanna Test: Federal Rules of Civil Procedure: 1. Is there a collision with the FRCP? 2.If
it does then it fully applies to the complete exclusion of the state law. We do not care if
this causes forum shopping. Concurrent jurisdiction is forum shopping.
Federal Common Law:
● Federal common law means any federal rule of decision that is not mandated on the face
of some authoritative federal text—whether or not that rule can be described as the
product of ‘interpretation’ in either a conventional or an unconventional sense
● Standards for the creation of federal common law:
○ There must be a significant conflict between some federal policy or interest and
the use of state law.If conflict is present, court should, when determining whether
to create federal common law, consider additional factors such as the strength of
the state interest in having its own rules govern the issue in question and the
feasibility of creating a judicial substitute for state law.
■ Federal interest in uniformity is not enough to displace state law with
federal common law.
● The U.S. Supreme Court has recognized two broad situations in which state courts may
not apple their own procedure and arguably must apply federal procedures instead:
○ First, when congress enacts a federal substantive law and provides for a particular
procedure to litigants as part of a substantive right of action, the states must also
provide the procedure when they enforce the federal right of action.
■ Example: Dice v. Akron:
○ Secondly, when state courts are enforcing a federal right of action, the Court has
held that they may not employ procedures that unnecessarily burden the right.
■ Example: Brown v. Western Railway
● Modern rules of pleading no longer embrace the detailed fact pleading requirements of
the earlier pleading systems.
● Modern discovery now serves as the primary mechanism for the exchange of information
making it possible for the parties to identify and narrow the issues in the case/prepare for
the trial.
○ Main provisions for discovery contained in rules 26-37.
Discovery:
● Basic Discovery Scope & Materials:
● New scope of discovery: Parties should be able to obtain disclosure of all relevant
information in the possession of any person before trial, unless the information was
privileged.
● Federal discovery rules eliminated two prior limitations.
● Under Federal Rule 26(B)(1) discovery is permissible whether it relates to the claim or
defense of the party seeking discovery or the claim or defense of any other party.
○ Rule 26 (B)(1) provides that information within this scope of discovery need not
be admissible in evidence to be discoverable.
● General Scope of Discovery: Relevant to any parties claims or defense and proportional
to the needs of the case.
● Anderson v. Hale: ROL: Evidence of other incidents of the same type as those alleged in
a party’s claim or defense may be relevant and discoverable under Federal Rule of Civil
Procedure 26(b)(1).
○ Under FRCP 26(b)(1) general scope of discovery, parties are entitled to discover
any matter, not privileged, that is relevant to any party's claim or defense.
○ Relevancy for discovery purposes is broader than relevancy for admissibility
purposes.
○ Hale’s motion is denied bc subpoenaed files may contain information relevant to
discovery.
○ All state files were given in case there was information that was helpful for
similar cases in the discovery period.
○ The “claim and defense” standard did not effect dramatic change in discovery
practice, in accordance w/ 2000 Advisory Committee note been sufficient to cover
the discovery needs of the parties in vast majority of cases.
○ Under Rule 26(c)(1), a party or any person from whom discovery is sought may
seek a “protective order” from the court limiting discovery “to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or
expense.”
○ Large difference in 2015 amendment: A party seeking discovery of relevant,
non-privileged information must show that the discovery sought is proportional
to the needs of the case.
● Behler v. Hanlon: ROL: In appropriate cases, a court may use Federal Rule of Civil
Procedure 26(b)(2)’s limiting factors and Rule 26(c)’s protective order authority to
restrict discovery of information that is otherwise relevant and discoverable under FRCP
26 (b)(1).
○ Even if information meets FRCP 26(b)(1) general standards of discoverability,
other rules may limit its discovery.
○ Discovery may be tempered by a protective order issued upon motion or the
court’s initiative after it examines FRCP 26(b)(2)’s factors and finds that the
discovery would be burdensome, duplicative, unnecessarily costly, or
insufficiently probative.
○ When determining propriety of issuing a protective order under Rule 26(c), courts
must balance competing interests of the party seeking discovery v. the party from
whom the discovery is sought.
○ Basically although it falls under general rule, if it is exploitive & abusive it won’t
count.
● Allocating the costs of Discovery: The presumption is that the responding party must
bear the expense of complying with discovery request. A responding party may invoke
the court’s discretion under Rule 26(c)(1) to grant an order protecting the party from
‘undue burden or expense’. Rue 26(c) Protective Order.
○ This provision includes authority to allow discovery only on condition that the
requesting party bear part or all of the costs of responding.
○ Cost-shifting does not become a common practice, assumption remains that the
responding party ordinarily bears the cost of responding.
The Mechanics of Discovery Exchange:
● Discovery operates within the overall framework of the adversary system.
● Parties themselves must initiate the discovery process by requesting information from
another party, no general requirement that parties disclose info to their adversary that has
not been requested.
● Rule 26(a): Mandatory disclosure provision: Provides for the disclosure of certain
basic information w/o the necessity of a discovery request. All other info must be
requested by parties in discovery.
Traditional Methods of Discovery:
● Five Traditional methods
○ 1. Oral depositions/depositions by written questions, Rules 30/31
○ 2. Interrogatories, Rule 33
○ 3. Requests for production of documents/tangible things, Rule 34
○ 4. Physical and Mental Examinations, Rule 35
○ 5. Requests for admission, Rule 36
Discovery from Nonparties:
● Interrogatories under Rule 33, requests for the production of documents and tangible
things under Rule 34, and requests for admission under Rule 36 may only be sent by one
party for response by another party.
● Only discovery device that can be used for nonparties is the oral or written deposition
under rules 31/30.
○ Rule 45 allows someone to subpoena a nonparty for documentation.
● Rule 29 expressly provides that unless the court orders otherwise, the parties in a
particular case may agree to modify the formal procedures governing or limiting
discovery under the rules.
○ Rule 29(a) can modify the deposition to make it less formal, less expensive, and
able to be utilized in court.
● Mandatory Disclosures: Rule 26A (1-3)
○ Sequenced in 3 parts
■ 1. Early in action, parties must exchange basic information about case
under Rule 26(a)(1)
■ Exchange info under Rule 26(a)(2) about expert witnesses that may be
used at trial
■ As trial date approaches parties must provide info under Rule 26(a)(3)
regarding evidence they may offer at trial.
○ Rule 26(a)(1) The initial mandatory disclosures of federal rule 26(a)(1)(A) focus
on four ares.
■ Potential witnesses
■ Documentary Evidence
■ Damages
■ Insurance
○ Under current Rule 26(a)(1)(A), a party is no longer required, as part of the initial
disclosure requirements, to identify persons or documents that are unfavorable to
the party’s position.
■ Matters that will be used to attack credibility of witnesses (impeachment)
are excluded from initial disclosure agreements.
■ ONLY APPLICABLE TO INITIAL DISCOVERY, normal discovery
requests should have normal discovery information.
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○ Insurance is discoverable, but not likely to be admissible at trial.
Disclosure of Expert Testimony
○ Rule 26(a)(2)(A) and (B) requires the parties to disclose the identity of all expert
witnesses who may be used at trial and to provide detailed written reports with
respect to retained or specially employed experts and experts who are employees
of a party.
Depositions:A deposition is a record or testimony of a party or witness, ie. the deponent
that is taken outside of court.
○ Two types, oral depositions and written questions.
○ Depositions may be taken of “any person” whether a party in an action or not.
○ Under Rule 32(a)(2), if the deponent testifies at tral in a manner inconsistent with
the deponent’s deposition testimony, the deposition may be used at trial to
impeach the credibility and trial testimony of the deponent.
○ Disadvantages: Time & Expenses
Deposition Practice & Procedure: RULE 30:
○ Depositions can be to any party (written or oral.) Interrogatories can only be to
party in case.
○ Unless the parties stipulate to the deposition or leave of court is obtained, each
side in the litigation (plaintiff, defendant, third-party defendants) may take a
maximum of 10 depositions per case.
■ Deposition is limited to 1 day of 7 hours.
○ Rule 45(a)(4) requires that notice be served on each party before a subpoena is
served commanding the production of documents and things before trial.
Depositions used as evidence:
- Rule 32(a)(1)(B): A deposition may be used against a party to the extent it would
be admissible under the Federal Rules of Evidence if the deponent was present
and testifying.
Ask McLaughlin about when objections made during a deposition that goes into evidence
are valid or not, pg. 684.
Depositions can be taken for the future in an action called depositions to perpetuate
testimony. Under Rule 27(a)(1)(A): Person desiring to perpetuate testimony must file a
petition showing that the petitioner expects to be party to an action cognizable in US
court but cannot be present when the action is brought.
○ Federal subject-matter jurisdiction.
Rule 45 (c)(1)(a): Provides that a subpoena can only command a nonparty deponent to
appear at a deposition within 100 miles of where that person “resides, is employed, or
regularly transacts business in person.”
○ When the person to be deposed is a party, a subpoena is not necessary and a
proper deposition notice is all that is required to compel the party’s appearance.
Nonparty Deponents: Nonparties are not subject to deposition on notice, and, unless the
appearance of the nonparty can be secured voluntarily, a subpoena must be issued under
Rule 45 to compel the nonparty’s attendance at the deposition.
State Court Actions: To be valid, a state court subpoena must be properly served upon
the nonparty within the territorial boundaries of the state, and the subpoena can only
order the nonparty to appear within that state.
● Uniform Interstate Deposition and Discovery Act: Under the UIDDA, an attorney
where the action is pending prepares a deposition subpoena in accordance with the rules
of the trial state and the deposition state and then forwards the documents to the clerk of
court in the deposition state.
● Written Interrogatories are questions prepared by a party.
● Written requests for admission eliminate undisputed issues from the case. In a request for
admission, one party requests another party to admit certain matters of fact or application
of law to fact.
2/8/2022 Class Notes: Federal Procedural Common Law in State Courts:
● State law claims can either go to State Court or Federal Court:
○ When a state law claim is in state court, we apply state substantive law and
state procedural law.
○ When a state law claim is in Federal Court, we apply State Substantive Law
and Federal Procedural LAw.
○ Federal Law Claim in State Court: Apply Federal Substantive Law, but State
procedural law.
○ Federal Law Claim in Federal Court: Federal Substantive Law & Federal
Procedural Law.
● Exceptions: Dice v. Akron, Felder v. Casey
Discovery Notes:
● First source for all of discovery is the rule itself
● Do not paraphrase the rules and put them in your own words, impossible to paraphrase
because every word is essential.
● Rule 37: Failure to make disclosures or to cooperate in discovery sanctions.
● Magistrate Judges have been hired to help w/ administrative tasks, real judges considered
higher. Magistrate judges are able to proceed cases w/ acknowledgement of all parties.
● Interlocutory: No appeals until the case is completely over. You cannot appeal until the
case is finished in its entirety. So fro example, may have lost the discovery appeal but
wins the case itself.
○ Referral to Magistrate judges, cannot appeal what happened until case is
completed, so there is rarely appellate level reviews of interlocutory reviews of
magistrate judge.
○ Magistrate Judges deal with a lot of cases within this discovery section.
Interrogatories Under Rule 33
● Interrogatories are written questions prepared by one party and served upon another
party.
● Party may serve interrogatories upon any other party to the action irrespective of whether
the other party is adverse.
● Under Rule 33(a)(2), interrogatories may relate to any matter that may be inquired into
under rule (26)b. The party served must answer the questions 'separately and fully in
writing under the oath.’
○ Under Rule33(b)(4), if the answering party objects to a question, the answering
party must state “with specificity” the reason for the objection.
● Interrogatories under Rule 33 are commonly used bc they are simple/inexpensive and can
be easily utilized.
○ Interrogatories can reveal more information than basic discovery.
○ Interrogatories help to identify the witness who should be deposed.
Interrogatory Limitations:
● Interrogatories may only be directed to another party and may not be served upon-non
parties.
● In absence of court order, Rule 33(a)(1) limits number of rogs that a party may serve
another party to 25.
● BC rogs are in written format, time for crafty written responses. Responding parties given
30 dats under Rule33(b)(2).
● Not as effective as oral depositions.
Answering Interrogatories:
● Party must answer Rogs with all info available to the party, including info possessed by
party’s insurer, attorney, employees, or other agents. (Unless info is privileged/protected
by discovery.)
● When answering party is an organization, rogs must be answered by officer/agent who
furnishes all info available to the party.
Two principle types of Interrogatories:
● 1. Those seeking basic information. such as names of witnesses or the existence
● 2. Those seeking what a party contends and the factual/legal basis behind those
contentions.
○ Contentions are permissible under Rule 33(a)(2), which provides that a rog “is not
objectionable merely bc it asks for an opinion or contention that relates to fact to
the application of law to fact.
○ Rogs that extend to issues of pure law, legal issues that are not related to the facts
of the case, are prohibited under rule 33(a)(2).
○ Contention rogs under Rule 33(a)(2) raise an issue w/ respect to ‘work product’
protection.
Objections to Interrogatories:
● Under Rule 33(b)(4), the grounds for objecting to a rog “must be stated with specificity
(and any) ground not stated in a timely objection is waived unless the court, for good
cause, excuses the failure.
● Objections can be made on different grounds
○ Answering party may assert info requested is outside scope of discovery
○ Preparation of answers is too burdensome
○ Questions are vague or overboard
○ Information sought is unnecessary or privileged.
Duty to Amend:
● Under Rule 26(e)(1): A party is under a duty to amend a prior interrogatory response
“(A) in a timely manner if the party learns that in some material respect…the response is
incomplete or incorrect, and if the additional or corrective information has not otherwise
been made known to the pother parties during the discovery process or in writing, or (B)
ordered by the court.
● If party fails to properly amend an interrogatory response as required by Rule 26(e)(1),
the sanctions provision of Rule 27(c)(1) are triggered and may result in exclusion of the
undisclosed evidence.
Use at Trial:
● Rule 33(c) provides that interrogatory answers may be used at trial to the extent allowed
by the Federal Rules of Evidence.
○ Exception to the hearsay rule and may be offered as substantive evidence against
the answering party.
○ Unlike depositions, answers to rogs may not be offered as substantive evidence by
the answering party, as a deposition could be under Rule 32(a)(4), if the
answering party becomes legally unavailable to testify at the trial.
Production of Documents & Tangible things:
● Rule 34(a)(1) permits a party to serve upon any other party a request “to produce and
permit the requesting party….to inspect, copy, test, or sample the following items in the
responding party’s possession, custody or control:
○ (A) Any designated documents or electronically stored information- see rule for
included items, or
○ (B) Any designated tangible things.
● Functions of Rule 34: Document production and inspection can be an important part of
the discovery process.
○ Rule 34 serves as a supplement to initial disclosure requirement, Rule
26(a)(1)(A)(ii).
○ Rule 34 may be combined w/ rule 33 interrogatories. Rogs under Rule 33 can be
used to discover if relevant docs exist, Rule 34 then is used to request production
of the documents.
● Party and nonparty production.
○ A rule 34 request may only be served upon another party to the action and only
applies to docs/tangible things in the “possession, custody or control” of a party
and to designated land or other property “possessed or controlled” by a party.
○ When the desired document or property is in the possession or control of a nonparty, the subpoena provisions of Rule 45 can be effectively used to achieve the
functional equivalent of a Rule 34 request to a party.
○ Rule 45(a)(1)(D) further provides that a subpoena to produce documents,
electronically stored information or tangible things requires the responding person
“ to permit inspection, copying, testing, or sampling of the materials. “
○ A subpoena to produce documents and tangible things is known as a subpoena
duces tecum.
■ Under Rule 45(a)(1)(C), it may be issued separately from a subpoena to
appear at a trial, hearing, or deposition. As a non-party, however, the
subpoena may only compel the person to produce documents or tangible
things at a place within 100 miles of where the person “resides, is
employed, or regularly transacts business in person.”
Production Responses & Sanctions:
● Under Rule 34(b)(2)(A)-(C), the party served the Rule 34 request must serve a written
response within 30 days and either state that the inspection and related activities will be
permitted as requested or state “with specificity” the grounds for objecting to the request,
including the reasons.
● Further, an objection must state whether any responsive materials are being withheld on
the basis of that objection
● Under Rule 34(b)(2)(E)(i), a party must produce documents as they are kept in the usual
course of business or must organize and label them to correspond to the categories in
their request. If the served party responds and indicates that inspection will not be
permitted as requested, the party submitting their requests may move for an order under
rule 37 (a)(3)(B)(iv) compelling inspection in accordance with the request.
● Under rule 37(a)(5), the court may require payment of reasonable expenses incurred in
making the motion, including attorney’s fees.
● Duty to Amend:
○ Responses to Rule 34 requests must be amended w/ the provisions of Rule
26(e)(1). If party learns that earlier response is incomplete/incorrect. failure to
amend triggers sanction provisions of Rule 37(c)(1).
● 2006 amendments to Rule 34 deal with electronic discovery, stands equal with paper
discovery.
Requests for admission: Rule 36
● Rule 36(a) allows a party to “Serve on any other party a written request to admit, for
purposes of the pending action only, the truth of any matters within the scope of capital
Rule 26(b)(1).”
Functions on Requests for Admissions:
● Requests for admission are similar to interrogatories. Like interrogatories, requests for
admission may only be served on another party. Request for admission, serve a different
purpose than interrogatories and other discovery devices. Requests for admission are not
designed to discover information, but to narrow the issues for trial by requesting that
certain matters be formally admitted.
● Requests for admission would request a response as the genuineness of a specific
document or the truth of a specific statement.
○ Designed as cost-saving method to expedite the litigation process for the parties
and the court.
● Admission Responses:
○ In the absence of court order or proper party stipulation under rule 29(b), a party
must respond to requests for admission within 30 days after service of the
requests.
○ If party objects to request, reasons for the objection must be stated. Per rule
36(a)(4). A party may cite lack of info or knowledge as reason for failure to admit
or deny. This is only if the party has made reasonable inquiry and that the info it
knows or can readily obtain is insufficient to enable it to admit or deny.
● Duty to Amend & Sanctions:
○ Responses to requests for admission must be amended in accordance with the
provisions of rule 26(e)(1).
○ Failure to amend triggers the sanction provisions of rule 37(c)(1).
Judicial v. Evidentiary Admissions:
● An admission under Rule 36 is a formal “judicial” admission which, unless amended or
withdrawn by permission of the court, conclusively establishes the matter admitted for
purposes of the pending litigation and the introduction of contra evidence on the matter is
not permitted.
Compulsory Physical & Mental Examinations:
● Rule 35(a) authorizes the court, “on motion for good cause,” to order “a party whose
mental or physical condition - including blood group - is in controversy to submit to a
physical or mental examination by a suitably licensed or certified examiner.”
○ Also gives cours authority to order a party to produce examination of a person
who is in party custody or legal control.
● Because of privacy concerns, Rule 35 is the only discovery device that must be
authorized by a court upon a special showing of “good cause.”
○ No other method of discovery needs this.
● Because of privacy concerns, failure to submit to a physical/mental examination ordered
under rule 35 is exempted under rule 37 from the sanction of contempt of court. Rule 35
is not limited to personal injury tort, it is available in any civil action in which the
physical/ mental condition of any party or any person is in controversy.
● The “in controversy” and “good cause” requirements of Rule 35 require an affirmative
showing by the movant that each condition as to which the examination is sought is
genuinely in controversy and that good cause exists for ordering each particular
examination.
Pretrial Conferences and Orders; Rule 16:
● Rule 16 is designed to improve quality of justice in the federal courts by ensuring judicial
control.
● Rule 16 expressly provides for a series of pretrial conferences during the action to allow
the judge to manage cases effectively and efficiently.
○ These conferences are especially important in monitoring cases through the
discovery stage by establishing time limits for the completion of discovery and
identifying any special problems, especially with respect to the assertion of
privilege and work product claims and the discovery of electronically stored
information.
● The actions taken at the pretrial conferences result in the issuance of pretrial orders.
● Under rule 16(d), a pretrial order “controls the course of the action unless the courts
modifies it.”
● The order following the final pretrial conference may be modified by the court “only to
prevent manifest injustice.”
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In effect, these provisions mean that the final pretrial order supersedes the pleadings in
the action by eliminating and preserving issues for later adjudication at trial.
- Claims, defenses, and issues that are not included in the pretrial order are waived, even if
asserted in prior pleadings, and conversely, matters included in the pretrial order are
preserved for trial, even though never asserted in prior pleadings.
Discovery Certifications and Sanctions: Rules 26(g) and 37.
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Rule 26(g) was designed “to curb discovery abuse” by imposing “an affirmative duty to
engage in pretrial discovery in a responsible manner that is consistent with the spirit and
purposes of Rules 26-37.”
Rule 26(g)(1) requires that all discovery requests, responses, objections, and
mandatory disclosures, other than expert testimony disclosures under rule 26(a)(2),
be signed by the attorney or unrepresented party serving or filing the discovery
paper.
- The certification standard has both a subjective and objective aspect. As Rule 26(g)(1)
provides: “By signing, an attorney or party certifies to the best of the person’s knowledge,
information, and belief (subjective) formed after a reasonable inquiry (objective)” that the
discovery matter is proper.
- Thus, to comply with the rule, the signer must subjectively act in good faith based on
an objectively reasonable inquiry. If the signer’s position is objectively unreasonable,
however, it does not matter if the signer acted in subjective good faith.
- Under Rule 26(g)(1)(A), the signature of the attorney or party on an initial or pretrial
disclosure constitutes a certification that “to the best of the person's knowledge,
information, and belief formed after a reasonable inquiry... (the disclosure) is
complete and correct as of the time it is made.”
- Under Rule 26(g)(1)(B), the signature on a discovery request, response, or objection
constitutes a certification, based on this same standard, that the request, response, or
objection is (i) consistent with the federal rules and warranted by existing law or by a
non-frivolous argument for extending, modifying, or versing existing laws; (ii) not
interposed for any improper purpose; And (iii) neither unreasonable nor unduly
burdensome or expensive considering the needs and circumstances of the case.
Rule 37:
● Umbrella role governing discovery enforcement and sanctions.
● Discovery enforcement under Rule 37 proceeds in two stages.
○ First, a motion is brought under Rule 37(a) for an order compelling disclosure or
discovery that has been refused by another party.
○ If an order is entered and the party still refuses to comply, the next stage is to
seek sanctions under rule 37(b)(2) for violation of the court's orders.
Federal Rules of Civil Procedure: Rule 45: Subpoena:
● Rule 45(a) In General:
○ 1) Forms and Contents
○ (A) Requirements-In General. Every subpoena must:
■ (i) state the court from which it is issued;
■ (ii) state the title of the action and its civil-action number;
■ (iii) command each person to whom it is directed to do the following at a
specified time and place: attend and testify; produce designated
documents, electronically stored information, or tangible things in that
person’s possession, custody or control; or permit the inspection of
premises.
FRCP: 30(g):
● Failure to attend a deposition or serve a subpoena; expenses. A party who, expecting a
deposition to be taken, attends in person or by an attorney may recover reasonable
expenses for attending, including attorney’s fees, if the noticing party failed to:
○ (1) attend and proceed with the deposition; or
○ (2) serve a subpoena on a nonparty deponent, who consequently did not attend.
● Letter Rogatory: Common Law Term: Receive it from the court where your action is
pending. Letter of introduction, that I want to take a deposition of a nonparty person who
does not live in your state. Letter Rogatory will explain the situation, and explain the
issue.
Rule 37(e)
● There must be a duty to preserve.\
● Rule 37(e) does not itself create a duty to preserve electronic stored information .
○ Recognizes that such an obligation may arise from many sources, including a
statute, regulation, court order in the case, or common law doctrine of spoliation
of evidence.
● Spoliation of Evidence: ‘Refers to the destruction or material alteration of evidence or
the failure to preserve property for another’s use as evidence in pending pr reasonably
foreseeable litigation.
○ Potential litigants have a duty to preserve relevant information when litigation is
reasonably foreseeable.
● Lost: Party does not take additional steps to preserve information. Reasonable steps.
● Duty to preserve: Duty to preserve material evidence arises not only during litigation,
extends to period prior to litigation.
Rule 37(E):Litigants have a duty to:
1. Duty to preserve
2. Lost- because there was not reasonable steps to preserve
3. Cannot be restored/Replaced with additional discovery
4. Prejudice to another party.
W.E. Aubuchon Co. v. Benefirst, LLC: ROL: A party may obtain an order for discovery of
electronically stored information that is not reasonably accessible if it demonstrates good cause.
● Rule 26 provides that a party is not required to produce electronically stored information
if it is not reasonably accessible because of undue burden or cost.
○ Court may nonetheless disclose discovery if the party seeking information shows
good cause.
○ Whether this is an undue burden/cost depends on whether info is kept in an
accessible or inaccessible format.
● Good Cause is determined by considering:
○ 1. The specificity of the discovery demand
○ 2. Whether any information is available from more accessible sources
○ 3. The failure to produce relevant information that once existed but is no longer
available through more accessible sources.
○ 4. The likelihood of finding relevant information that cannot be obtained by more
accessible sources.
○ 5. The importances and usefulness of obtaining more information
○ 6. Any important issues raised by the litigation
○ 7. The parties resources
● Where did the court come up with these 7 factors?
○ Because the rule is not clear, we look to the advisory committee notes, the people
who wrote the rule.
● Who has to show the good cause?
○ Requisition party has to show good cause
○ Person being asked for docs has to show that they are not reasonably accessible
Additional Discovery Standards: Privilege, Work Product, and Expert Witnesses:
● Rule 26(b)(1) provides that parties may obtain discovery regarding any non-privileged
matter… Privileged matter is thus exempt from discovery even though it may otherwise
satisfy the relevancy standard of Rule 26(b)(1).
● Privilege is exempt from discovery.
● Law of privilege applies in discovery the same way that it applies at trial.
● In federal court actions, FRE 501 provides that privilege shall be governed by the
principles of the common law as they may be interpreted by the United States in light of
reason/experience
○ Except as otherwise required by the Constitution or provided by federal statute or
rule.
○ When a claim/defense in a federal court action is based on state law, Rule 501
provides that privilege is to be determined by state law.
● The extent to which a particular privilege is recognized varies between federal and state
law and from state to state.
Assertion and Waiver of Privileges:
● A privilege is generally waived if the holder of the privilege voluntarily discloses or
consents to disclosure of the privileged matter.
● Proper objection must be made on the basis of privilege in order to preserve protection.
● Rule 30(c)(2) provides that a deponent may be instructed not to answer a question “when
necessary to preserve a privilege.
● Rule 26(b)(5)(a) when a party withholds otherwise discoverable info due to privilege, the
party must:
○ i) expressly make the claim and
○ ii) describe the nature of the documents, communications, or tangible things not
produced or disclosed.
■ Rule 45(e)(2) similar provision when the person is a nonparty responding
to a subpoena.
● Most cases hold that discovery is permissible of privileged matter to the extent it is
contemplated that the privilege will be waived at trial.
Assertion of Privilege after Disclosure:
● Rules 26(b)(5)(B) & 45(e)(2)(B): Added in 2006 amendments, producing party must
notify receiving party of the claim and the basis and the receiving party may not
thereafter use or disclose the info until the claim has been resolved.
○ Provide procedure for the assertion of privilege/work product claims after
production.
Distinguishing Work Product Protection:
● Rule 26(b)(3): affords special protection to trial preparation materials, commonly known
as “work products”.
● Work product protection is not absolute, material is discoverable in a showing of
substantial need & undue hardship.
● Privileged matter is fully protected from discovery if it satisfies the privilege
requirements.
Privilege Against Self-Incrimination: Privilege applies to both party and nonparties.
● Privilege only applies to persons and not corporations.
● Only protects a person from criminal, not civil liability.
○ Party in a civil action must respond to all proper requests for information.
● The burden of establishing the propriety of the privilege is on the person asserting it.
Attorney-Client Privilege:
● Purpose: Encourage full/frank open communication between attorneys & clients to
enhance public interest.
● Attorney-client privilege recognized in all jurisdictions.
● Four basic elements required to establish:
○ 1) A communication 2) made between privileged persons 3) in confidence (and)
4) for the purpose of obtaining or providing legal assistance for the client.
● Communication can be oral/written.
○ Must be made for the purpose of obtaining legal counsel. Does not have to
involve litigation.
○ Client is holder of the privilege, attorney must assert the privilege on behalf of the
client.
Upjohn Co. v. United States: ROL: In the corporate context, the attorney-client privilege
applies to not only those high-level employees who have the authority to act on the legal advice
of the attorney, but also to any of those employees who provide information to the attorney so
that he may give such legal advice.
● Concurrence wants the court to adopt a clear standard
○ Not clear when attorney-client privilege would apply to lower level employees.
● The protection of the privilege extends only to communications and not to facts.
○ A fact is one thing, and the communication concerning the fact is another.
○ A party cannot conceal a fact simply by revealing it to his lawyer.
○ Control group test
● Upjohn Standard: Control group test only applied the privilege to communications made
to officers/agents of the corporation responsible for directing the corporation’s actions in
response to legal advice.
○ If the employee possesses facts that the attorney needs in order to advise the
corporate client, the communication may be privileged.
● Exceptions to attorney-client privilege:
○ Crime-fraud exception: Attorney-Client privilege does not apply if the client
seeks the attorneys advice with respect to ongoing or future crime.
● A client may seek advice/services of attorney when related to past misconduct.
● Whats protected in the communication, the questionnaire between the client/attorney v.
the actual information.
● Attorney/Client Privilege applies to corporations
“Work Product” and Trial Preparation Materials: Rule 26(b)(3):
The Work Product Doctrine:
● Work product protection is designed to encourage thorough and careful preparation of the
case by the attorney free of intrusion by the adversary.
● Hickman v. Taylor: ROL: Opposing counsel must demonstrate necessity, justification,
or undue prejudice for access to counsel’s written statements, private memoranda, and
personal recollections.
○ Proper legal preparation demands that attorneys have freedom to prepare their
legal theories free from undue interference or intrusion.
○ Work-product protection broadly applies to all trial preparation materials
■ Only applies to materials prepared in anticipation of litigation or trial.
■ Discoverable upon a showing of substantial need and undue hardship by
the party seeking discovery.
■ In fed courts, work-party protection is a matter of federal law.
○ Falls outside the realm of discovery because it is private files/writings of an
attorney.
○ Burden rests on the one who would invade that privacy to establish adequate
reasons to justify production through subpoena or court order.
○ Rule 30(b) gives the trial judge the requisite discretion to make a judgement as to
whether discovery should be allowed as to written statements secured from the
witnesses.
● There are two levels of work product protection depending on the nature of the work
product sought.
○ Fact/Ordinary Work Product: Documents/tangible things prepared in
anticipation of litigation that contain general factual info relevant to the case.
■ In order to pierce the qualified immunity of “ordinary” work product
under Rule 26(b)(3)(A), a party must demonstrate ‘substantial need’ for
the material and “undue hardship” in obtaining the substantial equivalent
by other means.
● Under what circumstances do you think a party would be able to
meet this standard?
○ When witnesses are no longer available/can only be
reached with difficulty.
○ Opinion Work Product: Mental impressions, conclusions, opinions, or legal
theories of a party's attorneys.
■ Ex. Personal notes/recollections.
■ Opinion work product is entitled to an extremely high level of protection
and is not discoverable simply by demonstrating normal showing of
substantial need and undue hardship (enough for ordinary work product.)
■ Intangible work product remains protected.
● Not all product of investigation are work product, basic facts still have to be disclosed
under Discovery.
● Rule 26(b)(3)(A): Extends coverage of work product protection to items prepared by
another party or their representative.
○ Rule 26(b)(3)(B): Mental impressions etc. of other representative.
● Unethical conduct could result in losing the work-party protection.
○ Ex. Illegal recordings.
● Rule 26(b)(3)C): Creates an exception in normal work-product requirements in allowing
the person who actually made the statement to request a copy of their own statement
without the required showing.
Opinion Work Product:
- Bottom of Page 738
● “Opinion” work product is entitled to a supremely high level of protection.
● Opinion work product because they reveal the attorneys professional work products of his
mind.
● Supreme Court has not resolved the issue as to what standard would meet the high level.
● Lower federal courts have held that “opinion” work product is entitled to near absolute
immunity and is discoverable only in rare circumstances.
● Courts have allowed the discovery of “opinion” work product when the protected
opinions and mental impressions are “central” to a party’s substantive claim.
○ Example: Holmgren v. State Farm.
Content Interrogatories and Work Product Protection:
● Two principal types of Rogs:
○ 1. Those seeking basic information
○ 2. Those seeking what a party contends and the factual and legal bases for those
contentions.
■ Contention rogs are permissible under Rule 33(a)(2).
● States that a rog is not objectionable bc it asks for an opinion that
relates to fact of application of law to fact.
Alt Health Strategies, Inc. v. Kennedy: ROL: Notwithstanding FRCP 26(b)(3)’s protection of
an attorney’s mental impressions, conclusions, and opinions from discovery, some of those may
nevertheless be discoverable when they are properly inquired about in a Rule 33(a)(2)
contention interrogatory.
● Rule 33(a)(2) allows parties to use interrogatories to discover an opposing party’s
contentions and legal basis for those contentions. And although contention interrogatories
under Rule 33(a)(2) seem to conflict with work-product protection under Rule 26(b)(3),
the interplay of these rules must be harmonious.
○ This includes recognizing that a Rule 33(a)(2) contention interrogatory may
require disclosure, to an extent, of an attorney’s mental thoughts and opinions,
with the caveat that the documents containing those matters remain protected and
do not need to be disclosed.
○ If a contention interrogatory will expedite resolution of the litigation, lead to
discoverable evidence, or assist in narrowing the legal and factual issues for trial,
then it should be answered even if it calls for an attorney’s legal or factual
conclusions or opinions
● Rule 33(a)(2) only authorizes inquiry at to the opinions and contentions of a party
through interrogatories.
○ Rule does not authorize the production of “work product” documents that contain
these opinions and contentions.
Discovery Concerning Experts:
● Experts are allowed to offer opinion testimony at trial due to their expertness.
● Rules of Evidence govern the qualifications of experts.
● Under Rule 702 a witness may testify as an expert if scientific knowledge will assist the
trier of fact in understanding the fact in issue. (understand evidence.)
Discovery as to Experts who may testify at trial:
● If a person is used as an expert, full discovery is permitted as to expert and pretrial
disclosures of Rule 26(a)(2) must be followed.
● Rule 26(a)(2)(A): Party required to disclose to other parties the identity of any witness it
may use at trial to present expert testimony.
● Rule 26(b)(4)(A): A party may depose any person who has been identified as an expert
whose opinions may be presented at trial.
● Rule 33(a): Expert may be inquired by interrogatories.
● Rule 26(a)(2)(B): Requirement of a special written report only applies to those experts
who meet the criteria of a retained or specially employed expert.
● Rule 26(a)(2)(C): Less extensive summary that experts must provide stating everything
they will be providing at trial.
Discovery as to Experts who are not Expected to Testify at Trial:
● Discovery to experts deposed but are not expected to testify at trial is not allowed except
under, Rule 26(b)(4)(D):
○ Only expressly restricts discovery as to facts known or opinions held by a retained
or specially employed non-testifying expert.
○ (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by
interrogatories or deposition, discover facts known or opinions held by an expert
who has been retained or specially employed by another party in anticipation of
litigation or to prepare for trial and who is not expected to be called as a witness
at trial. But a party may do so only:
○ (i) as provided in Rule 35(b); or
○ (ii) on showing exceptional circumstances under which it is impracticable for the
party to obtain facts or opinions on the same subject by other means.
Bank Brussels Lambert v. Chase Manhattan Bank, N.A.: ROL: A party seeking discovery
from a nontestifying expert can establish exceptional circumstances that would allow discovery
under FRCP Rule 26(b)(4)(D) if it would be impracticable to obtain facts or opinions of the same
subject by other means.
● FRCP 26(b)(4)(D) generally prohibits discovery—by interrogatories or deposition—of
facts known to and opinions held by expert witnesses who are retained in anticipation of
litigation and who will not testify. However, it is not an absolute protection.
● Discovery may be allowed if the party seeking discovery can show exceptional
circumstances that would make it impracticable through other means to get facts or
opinions on the same subject. Exceptional circumstances exist if what the nontestifying
expert observed is no longer observable (i.e., inability to test an allegedly defective roof
after it has been replaced) or replication costs are judicially prohibitive.
● Relevant additional policy considerations include protecting consulting experts from a
party’s adversary, making each side responsible for preparing and paying for its own
case, unfairly compelling consulting experts to testify, and prejudicing a party by
exposing the fact of expert retention.
● The party seeking discovery of a non-testifying expert carries the burden of showing
exceptional circumstances.
Disposition of the Action without Trial:
Default Judgements:
● Failure of the defendant to plead or otherwise defend after being served with process can
result in a default judgement.
● With proper jurisdiction, such judgement can be enforced against the defendant to the
same extent as a judgement rendered after the case is over.
○ Plaintiff served by a counterclaim by the defendant must properly plead or defend
against counterclaim or risk summary judgement.
● Default/Default Judgement can occur at various stages of civil proceeding if the party
fails to take action that is required by the rules of the procedural system in which the
action is pending.
○ Federal courts have held that they may enter default judgements pursuant to their
inherent power to sanction litigation misconduct.
○ Default judgement is a way of disposing an action without trial.
○ Commission of a ‘default’ by a party is a prerequisite to a default judgement.
Meritorious Defense Law:
● Meritorious defense refers to a defense that addresses the substance or essentials of a case
rather than technical objections or delaying tactics.
● A defense with merit.
Rule 55:
● Rule 55 exemplified default practice in the federal courts and other modern procedural
systems.
● Rule 55 establishes a 2-step process for the purpose of securing a default judgement.
○ 1. Rule 55(a) allows the clerk to enter default on the record when a party against
whom a judgement for affirmative relief is sought faults to please or otherwise
defend, provided the failure is shown by affidavit or otherwise.
○ 2. Clerk or the court enters the default judgement. Rule 55(b)(1) provides that
clerk may enter a default judgement when…
■ (1) plaintiff’s claim is for a “sum certain” or for a sum that can be made
certain by computation.
■ For a clerk to enter a default judgement the defendant (2) must have been
defaulted for failure to appear, and
■ (3) defaulting defendant must not be an infant or incompetent person.
■ If 1,2,3 conditions are not satisfied only court can enter a judgement by
default under Rule 55(b)(2).
● Initial appearance in the action, affords a party who subsequently defaults this important
protection in ensuring that the court, and not the clerk, must enter any default judgement.
● Rule 55(b)(2): A defaulting party who appeared in the action is entitled to notice when
the required application to the court is made for entry of default judgement.
○ Must receive written notice of application for default judgement at least seven
days before the hearing of the application.
● Under Rule 55(b)(2) court required to exercise discretion in determining whether to enter
the default judgement. Considers several factors, factors include…
○ Amount of money involved
○ Whether issues of fact or of substantial public importance are at stake
○ Whether default is largely technical
○ Whether plaintiff has been substantially prejudiced by the delay involved.
○ Grounds for default are clearly established or are in doubt
○ Default was caused by good-faith mistake or excusable negligent
○ How harsh a default would have on the defendant
○ Court obligated later to set aside the default on the defendants motion
● Under this section of rule default judgement cannot be entered against a minor or
incompetent person.
● Rule 55(b)(1): When Plaintiff is entitled to request default judgement by the clerk, no
notice to defaulting party is required under the rule.
● Rule 55(c): Even after a default has been entered on the record, the court may set it aside
for good cause shown
○ Final default judgement can be set aside by Rule 60(b).
○ In discretion of the court.
● Rule 55(b)(2)(A)-(D): authorizes, but does not require the court to conduct a hearing or
make a referral when in order to enter effectuate judgement, it needs to conduct an
accounting, determining the amount of damages, establishing truth of evidence, or
establishing any manner.
○ Hearing referred to as a proof or prove-up hearing.
Pretzel & Stouffer v. Imperial Adjusters, Inc.: ROL: It is not an abuse of a district court’s
discretion to deny a motion to set aside an entry of default, then enter a default judgement, if the
moving party lacks good cause and a meritorious defense.
● Abuse of discretion is the standard we apply when reviewing the denial of a motion to
vacate a default order and when reviewing a default judgement.
● In order to vacate an entry of default the moving party must show: Three Part Test
○ (1) good cause for default
○ (2) quick action to correct it and
○ (3) meritorious defense to plaintiff’s complaint.
● Courts ordinarily require a higher showing to obtain relief from a default judgement then
from an entry of default.
○ Higher showing is required because the entry of a default judgement implicates
the policy of finality that supports the doctrine of res judicata.
● The Pretzel case is an example of the court’s entry of a default/default judgement against
a defendant even though the defendant properly appeared in the action initially.
● In Pretzel, the default-triggering conduct was the defendant’s subsequent failure to file a
timely answer to the plaintiff’s amended complaint and the failure of the defendants
attorney to appear at the status hearing scheduled by the court.
● Federal Rule of Civil Procedure (FRCP) 55(c) allows a court to set aside an entry of
default for good cause and vacate a final default judgment under FRCP 60(b)’s grounds
for relief from a final judgment or order.
○ The standard of review for both is the same—abuse of discretion—though it is
more liberally applied to entry-of-default decisions.
○ Abuse of discretion will only be found if no reasonable person could agree with
the court’s decision.
● Entry of default is appropriate under FRCP 55(a) against a party who fails to plead or
otherwise defend.
○ To set aside an entry of default and/or vacate a default judgment, a moving party
must show good cause, quick corrective action, and a meritorious defense to the
plaintiff’s complaint.
■ Difficulties communicating with clients is not a good cause.
Judgement on the Pleadings:
● At common law, a party could challenge the legal sufficiency of the opposing party’s
pleading at any stage of the pleading process by a demurrer.
● When code reforms replaced common law pleadings in the states the demurrer still
performed the function of challenging the legal sufficiency of the opposing party’s
pleadings.
● Modern: Today, motion for judgement on pleadings is used to test the legal sufficiency of
opposing party’s case after pleadings are closed.
○ If motion is granted, case is terminated without the need for a trial.
● A motion for the judgement on the pleadings admits all the well-pleaded allegations in
the opposing party’s pleading, but only for purposes of the motion.
Practice Under Federal Rule 12(c):
● 12(c) allows either party to move for judgement on the pleadings after the pleadings are
closed.
○ A rule 12(c) motion will not be proper until an answer to the cross-claim is serve,
and so forth.
● Defendant: If D moves for judgment on the pleadings, motion serves the same function
as a motion to dismiss for failure to state a claim.
○ Same standard used to determine validity of 12(c) motion.
● Plaintiff: If P moves for judgement on the pleadings, the motion raises the legal
sufficiency of the defendants answer.
Relationship of Judgement on the Pleading to a Motion to Strike:
● Federal Rule 12(f) also allows a motion to strike for the purpose of challenging an
“insufficient defense”.
● Motion to strike is proper when one or more legally insufficient defenses appear in a
pleading, but a motion for judgments on the pleading would be improper.
Demurrer:
● Like common law demurrer, a motion for judgement on the pleadings pursuant to Federal
Rule 12(c) will also “search the record”.
● When a P moves for judgment on the pleadings, the court will rule against the plaintiff if
the complaint fails to state a claim upon which relief may be granted even if the
defendant has admitted the facts of the complaint and has not raised its legal sufficiency.
Summary Judgement:
Summary Judgement is a procedure that allows a party to demonstrate that the factual disputes in
the pleadings are not genuine and that, once the apparent disputes are eliminated, the moving
party is entitled to judgement as a matter of law.
● In Federal Courts, summary judgement is authorized by Rule 56 of FRCP.
● Rule 56(a): Either party may move for summary judgement on claim or defense.
○ “The court shall grant summary judgement if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgement as
a matter of law.”
● A moving party need not prevail on all issues and may receive “partial” summary
judgement.
● On a motion for summary judgement, court does not resolve disputed questions of fact. If
there are disputed q’s of material fact, summary judgement is not appropriate and the
disputed facts must be decided at trial.
● Rule 50(a): A party is entitled to judgment as a matter of law “if the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for the
(nonmoving) party.
● Rule 56(c): An opposing party must demonstrate that a genuine dispute of material facts
exist.
● Rule 56(c)(1): A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by specific citation to materials in record
○ Ex. Depositions, documents, ESI, affidavits or declarations.
● Rule 56(d): Provides that when a party opposing a motion for summary judgement
demonstrates “that it cannot present facts essential to justify its opposition, the court may
(1) defer considering the motion or deny it, (2) allow time to obtain affidavits or
declarations or to take discovery or (3) issue any other appropriate order.
● Rule 56(b): Party may file a motion for summary judgement at any time until 30 dats
after the close of all discovery.
Celotex Corp. v. Catrett: ROL: A party making a motion for summary judgement does not
need to provide affirmative evidence in the form of affidavits to support its motion.
● Rule 56(c) directs the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to establish the existence of an element essential to
that party's case, and bears the burden of proof of demonstrating that element at trial.
● Summary judgment is designed to afford the parties a just, speedy and inexpensive
resolution to their controversies. The party seeking summary judgment carries the initial
responsibility of informing the court of the reason why the motion should be granted by
identifying those parts of the lawsuit lacking a genuine issue of material fact.
○ There is no specific requirement under Rule 56 that the movant provide affidavits
to support its motion.
○ A party making a motion for summary judgment does not need to provide
affirmative evidence (in the form of affidavits) to support its motion.
● Concurrence: In order to receive summary judgement, the movant must support the
motion in some way. Submitted conclusory allegations to the court is insufficient.
● Dissent: If the burden of persuasion is with the nonmoving party, the moving party may
request summary judgment by either submitting affirmative evidence disproving an
essential element of the claim or demonstrating to the court that the evidence on record is
insufficient.
Voluntary and Involuntary Dismissals: Federal Rule 41(a) exemplifies voluntary dismissal
practice in the federal courts and the states that have adopted rules patterned after the FRCP.
● Structure of Federal Rule 41(a):
○ Rule 41(a)(1): Deals with voluntary dismissals by the plaintiff without court
involvement.
○ Rule 41(a)(2): Deals with voluntary dismissals pursuant to a court order.
● Rule 41(c): Provisions of Rule 41 also apply to dismissals of any counterclaim,
crossclaim, or third-party claim.
● Rule 41(a)(b): Provides that unless the norice or stipulation states otherwise, the
dismissal is without prejudice.
○ Two voluntary dismissal penalty provision applies only when the second
voluntary dismissal by P is by a notice of dismissal.
○ Second voluntary dismissal must occur in a federal court of action.
Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Development Corp.: ROL: The
penalty provision for two voluntary dismissals under FRCP 41(a)(1)(B) applies even if at the
time of the first voluntary dismissal, the action was subject to dismissal under applicable law and
even if the second dismissal does not dismiss all the defendants.
● A claimant may voluntarily dismiss a claim without a court order under FRCP 41(a)(1).
● A second dismissal including the same claim will be on the merits (with prejudice) and
preclude further litigation.
Devices to Encourage Settlement: Federal Rule 68 is designed to encourage settlement by
allowing a party defending a claim to offer to have judgement voluntarily entered against the
defending party on specified terms.
- Rule 68(d) shifts the ‘costs’ of the action accruing after an unaccepted offer to the
opposing party if the judgement finally obtained by the opposing party “is not more
favorable than the unaccepted offer.”
- Rule 68 applies only to judgements obtained by plaintiffs in an amount less than the
defendant offered.
- Purpose of Rule 68 is to encourage the settlement of litigation. In all litigation, the
adverse consequences of potential defeat provide both parties with an incentive to settle
in advance of trial.
- Prevailing party is normally entitled to costs under Rule 54(d). Costs normally include
fees for court related matters.
- Federal Rule 68 only applies to an offer of judgement by the defending party and the only
penalty for rejection of an offer is the award of costs.
Alternative Dispute Resolution: (ADR):
Arbitration:
● Formalized alternative to litigation. Parties present their ‘case’ to a neutral third person or
persons who are empowered to render a decision.
○ May result from an ad hoc, contractual decision, or a rule or statute where certain
issues must be arbitrated.
○ Arbitration agreements are fully enforceable in accordance to their terms.
○ Following Arbitrator decision, either party can have the arbitrator’s award
confirmed by the court, making the award docketed as a judgement and having
the same effects as if it was given by the court.
■ Arbitrators award subject to very limited judicial review (mainly
fraudulent cases)
○ Arbitration favored over litigation in transactions involving international
commerce.
● Court Annexed Arbitration: A court assign selected cases to arbitration as a
precondition to or substitute for trial.
○ Established through applicable court rule or statute.
Mediation:
● Role of the mediator is to facilitate the parties in reaching a settlement.
● Mediator has no authority decision making power.
● Mediator works to reconcile the competing interests of the two parties.
○ Goal is to assist the parties in examining the future and their interests and
negotiation an exchange of promises that will be mutually satisfactory and meet
their standards of fairness.
● Court Annexed Mediation:
○ Court makes the referral and leaves it to the parties after that point.
-There are hybrid mediation & arbitration processes available (same party acts as mediator and
arbitrator.)
Summary Jury Trial:
● A summary jury trial is a non-binding proceeding designed to give the attorneys and their
clients an indication of what they may expect at a full-blown trial of the merits.
● Usually occurs after discovery has been completed, and pending motions have been
resolved.
● Simulates an actual, but abbreviated trial.
Early Neutral Evaluation:
● Early neutral evaluation provides the litigants with a neutral evaluation of the case early
in the lawsuit.
● Evaluation is provided by a private lawyer who is experienced in the substantive area of
law involved in the case.
Mini-Trial:
● Mini-trials are initiated by an agreement of the parties.
● Involves three phases:
○ Discovery phase
○ One day hearing
○ Post-hearing phase.
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Seventh Amendment has not been held to apply to the states and thus only governs the
constitutional right to a trial by jury for actions adjudicated in federal court.
The constitutional right to a trial by jury under the seventh amendment does not apply in
state court actions.
If a federal law claim is asserted in a state court action and there is a federal statutory
right to a trial by jury for this federal claim, the statutory right may be enforced in the
state court action.
The Seventh Amendment only applies to actions in federal court,
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The Seventh Amendment does not apply in state court.
Does not apply to federal law claims in state jurisdiction.
Modern Federal Approach:
● Primary relief in the law courts was compensatory money damages, but if you wanted
more than monetary damages/ didn’t want those damages and wanted injunction from abc
(harassment)(injunction)(child support rights), etc.
● Modern Federal Approach for the 7th Amendment: 2 important principles: 1. More
flexible approach, 2. Rejecting Equitable clean-up doctrine as it applies to the 7th
amendment.
○ Ross v. Bernhard: Builds on dairy queen.
○ Law Courts: Legal Claims
○ Equity Courts: Injunction
○ Jury actions can be determined in a court of equity.
○ ON THE EXAM: Yes, juries can do things in the court of equity.
● 2 Approaches:
○ Modern Federal Approach
○ Pure Historical Approach: Pelfrey v. Bank of Gleer
Equitable Clean-Up Doctrine: Common Law: A court of equity could take on law issues if the
primary action is in equity.
● When the main claim is primarily equitable, a court of equity could decide the legal
aspects of your case. Still applies.
● If your claim is primarily equitable (even seeking monetary damages) you are going to
the chancery divisions.
● Not followed in the federal courts.
In their rejection of the equitable clean up-doctrine the federal courts announced three principles:
Dairy Queen + Beacon Theaters:
● 1. Just because there are both legal and equitable claims in the case, that does not impact
the constitutional right to a jury trial on the legal claims.
● 2. Legal Issues are tried 1st. If legal and equitable claims are presented in the same
action, all issues that are purely legal or common issues that are both legal and equitable
must be tried first.
● 3. The judge must stand beside the equitable claim consistent with the jury findings, if the
jury finds the monetary claim the judge must agree.
Common Law in the Seventh Amendment says that the right to trial of jury is preserved due to
the constitutional rights.
● Juries consisted of 12 people, and the jury verdicts had to be unanimous under Common
Law.
● Than to save money, federal courts were reducing jury size.
Jury Selection: The Questions that are Asked:
- Make sure you observe one jury selection in the court house.
Requesting a Jury Trial: Rules 38 & 39:
● In cases in which a right to a trial by jury exists, the right is not automatically granted, but
must be properly demanded in accordance with the procedural rules of the system in
which the action is being adjudicated.
● Right to a jury trial may be properly demanded by any party, whether asserting or
defending the issue.
● Rule 38(b): Provides that on any issue triable of right by a jury, a party may demand a
jury trial by timely service of a proper demand.
○ Right to a jury trial is constitutional.
Burns v. Lawther: ROL: A court-ordered special report requiring a defendant to respond to
allegations in a complaint is not a pleading within the meaning of Federal Rule of Civil
Procedure 7(a) for purposes of demanding a jury trial under Rule 38.
● The Seventh Amendment right to a jury trial in a civil action is waivable if it is not timely
asserted.
● A Bivens claim for damages is a legal dispute that entitles either party to a jury under the
Seventh Amendment. There is no Seventh Amendment right to a jury trial for claims
against the government. Under FRCP 38(b), a jury demand must be made no later than
14 days after service of the last pleading directed to the issue upon which a jury trial is
demanded.
○ Under FRCP 7(a), only these pleadings are allowed: a complaint, an answer to a
complaint, an answer to a counterclaim designated as a counterclaim, an answer
to a crossclaim, a third-party complaint, an answer to a third-party complaint, and
if the court orders, a reply to an answer.
○ The special report in this case is not a pleading within the plain meaning of FRCP
7(a).
○ The doctrine of inclusio unius est exclusio alterius applies here: the listing of
some things implies that all things not listed are purposefully excluded. Therefore,
because a special report is not listed in FRCP 7(a), it is not a pleading. The court
also holds that the plain text of FRCP 7(a) defines what constitutes a pleading for
purposes of asserting a timely jury demand under FRCP 38.
● Burns has no right to a jury trial on his FTCA claim against the United States, but he does
for his Bivens claim against the prison employees and his demand for a jury on that claim
was made before service of the last pleading directed to that issue, which was the prison
employees’ answer.
● 7th Amendment right to a civil jury is not absolute and may be waived if the request for a
jury was not timely.
● Rule 38(C): Allows a party to demand a jury trial on only some of the issues in a case,
but provides that “any other party may-within 14 days after being served with the demand
or within a shorter time ordered by the court-serve a demand for a jury trial on any other
or all factual issues triable by jury.
○ If demand is general, request is treated as a demand for a jury trial on all issues.
● Rule 38(d): Once a demand for a jury trial has been properly made, it cannot be
withdrawn without the consent of all the other parties in the action.
● Rule 39(b): Provides that, notwithstanding waiver, the court may, on motion, order a jury
trial on any issue for which a jury might have been demanded.
Advisory Juries:
● At common law, an equity court had the right to empanel an “advisory jury” to assist the
court in deciding the case.
● The function of an advisory jury is only to serve as an aid to the court.
● Findings of an advisory jury have no binding effects, court is free to accept or reject, in
whole or part the jury’s findings.
Jury Trial by Consent:
● Court has discretion in ordering a jury trial under the consent provision of Rule 39(c)(2).
● If a jury trial is ordered, the jury’s verdict (unlike advisory jury) has the same effect as if
a jury trial had been a matter of right, unless the action is against the US and a federal
statute provides for a nonjury trial.
Selection of Jurors: Rule 47:
● In selecting the jurors for a case, every system has a voir dire examination in which the
venire (prospective jurors) are asked questions to determine their fitness to serve in the
particular case.
● Federal Courts: Judge asks the questions.
● State Courts: The parties/attorneys play an active role in the voir dire examination.
● Purpose of Voir Dire is to reveal to the attorneys conducting the case whether individual
jurors should be challenged.
● Divided into Cause & Peremptory Challenges:
○ Challenges for cause are challenges based on juror’s inability to serve as a fair
and impartial fact finder in the case.
■ Challenges for cause are not limited, as has to do with individual fitness to
serve as a juror in a particular case.
■ There are unlimited strikes for cause.
○ Peremptory Challenges are challenges that a party may exercise without giving
a reason.
■ In Federal Court you get 3 Peremptory challenges.
● In NJ Civil its 6.
■ Number of peremptory challenges permitted per party varies per
jurisdiction.
■ Lawyers eliminate jurors they feel may be inclined to favor the opponents
side of the case (without cause).
Constitutional Limits of Peremptory Challenges:
● In a series of cases, the Supreme Court has imposed constitutional restrictions on exercise
of peremptory challenges.
● Batson v. Kentucky: 14th Amendment prohibited the prosecutor in a criminal case from
exercising peremptory challenges to exclude jurors on the basis of race.
● With J.E.B. v. Alabama & Batson, the court prohibits peremptory challenges on the basis
of gender and basis of race in civil/criminal actions. This apples irrespective if the party
making the challenge is the government or a private litigant.
● Parties may still remove jurors whom they feel might be less acceptable than others on
the panel, gender simply may not serve as proxy for bias.
● Parties may remove from the venire any group or class subject to rational basis (parties
may remove all nurses, which may happen to be majority woman.)
● Gender classifications that rest on impermissible stereotypes violate the Equal Protection
Clause, even when some statistical support can be conjured for the generalization.
● Religion is ok to use for peremptory strike because religions unlike race and gender may
in fact be an accurate predictor of the attitudes of prospective jurors.
Jury Size and Unanimity: Rule 48:
● Rule 48 provides that a jury must initially have at least 6 and no more than 12 members
and each juror must participate in the verdict unless excused under Rule 47(c).
● At common law, a jury was also required to return an unanimous verdict.
○ Rule 48 unless the parties stipulate otherwise, the verdict must be unanimous and
be returned by a jury of 6 members.
○ Criminal context the Court has held that unanimous votes are required for federal
and state court.
● States may establish their own rules for jury size and unanimity free of the requirements
of the Seventh Amendment.
● Many states allow for unanimous verdicts in civil cases.
The Trial Process, Jury Verdicts, and Final Judgement:
● Presentation of Evidence: At trial the parties attempt to meet their respective burdens of
proof by presenting evidence.
● Burden of Proof:
○ Burden of Production:
■ Duty to produce evidence or go forward with evidence. Relevant at the
outset of trial and can shift back and forth between the parties during trial.
■ To satisfy burden of production, plaintiff must introduce some evidence
on each fact that must be established on P’s claim to justify a favorable
decision.
■ If party meets the initial burden of production the party escapes an
unfavorable decision on a motion.
■ May or Must:
● If trier of fact may find enough evidence to find in favor of party
burden will not shift to the opposing party.
● If trier of fact must find enough evidence in favor of party burden
will shift to the opposing party. (must find in the parties favor.)
○ Burden of Persuasion:
■ Becomes relevant only at the end of trial when the parties have satisfied
their respective burdens of production and the trier must decide the case.
■ In Civil Actions, the burden of persuasion is usually described as a
requirement that the party with the burden prove the facts in question by a
preponderance of the evidence or the greater weight of the evidence.
■ If the action is to be decided by a judge rather than a jury, the judge will
simply decide whether the party with the burden of persuasion has met the
burden and will so state in writing.
■ At trial, the burden of proof is enforced against the plaintiff through the
motion for a directed verdict in a jury trial or a motion for an involuntary
dismission in a nonjury trial.
● AKA Morions of judgements as a matter of law.
Jury Instructions: Rule 51:
● Jury Instructions: Means by which the court informs the jury about the substantive law
applicable to the case and tells the jury how to decide the factual issues during its
deliberations.
General and Special Jury Verdicts: Rule 49:
● Under Rule 49(a)’s provision for a special verdict, the court is authorized to dispense
with the general verdict entirely and ask the jury to return “only a special verdict in the
form of a special written finding on each issue of fact.”
● When utilizing a special verdict, the jury answers only specific factual questions.
○ It is the court’s function to then apply the law to the jury’s answers and enter the
judgment accordingly.
○ The Procedure under Rule 49(b) for a general verdict with answers to written
questions is a ‘middle ground’ between a general and special verdict, combing
aspects of both.
■ Jury returns a general verdict, but is also directed to answer specific
factual questions.
Selgas v. American Airlines, Inc: ROL: Under Federal Rule of Civil Procedure 49(a) it is not
reversible error for a trial court to submit a supplemental general verdict form to a jury to
reconcile and clarify an inconsistency in the jury’s initial special verdict form.
● Federal Rule of Civil Procedure 49(a), which allows for special verdict forms, does not
delineate what to do if there is an inconsistency in the jury’s answers to written questions
on the form.
● The Supreme Court requires courts to reconcile inconsistent or ambiguous answers to
special interrogatories if possible.
● Initially, a trial court has complete discretion whether a general or special verdict form
will be used. And when resubmitting questions to a jury to clarify inconsistent or
ambiguous verdict form answers, a court must avoid any action that might tilt a jury to
find a particular outcome. Finally, if a party fails to object to a jury verdict when it is
submitted, that party cannot later complain.
● Because the court is required to harmonize inconsistent jury verdict answers and because
it has complete discretion initially to use general or special verdict forms, the court
cannot find error in submitting a supplemental general verdict form. And even if it was in
error, the defendants fail to cite any FRCP or Seventh Amendment prohibition against it.
● Moreover, not only did the defendants not object to the supplemental general verdict
form when it was submitted—they acquiesced in its submission. The court also finds that
the jury’s responses to the supplemental questions in the general verdict form remedied
any inconsistency in the jury’s verdict. and the defendants waived their objection to any
alleged inconsistencies in the verdict by not raising them before the jury was dismissed.
Therefore, the defendants’ motion for judgment as a matter of law or, in the alternative, a
new trial is denied.
● The Attorneys for the defense should have clarified the questions ont he verdict form
before it was submitted to the jury.
Findings by the Court: Rule 52:
● In an action tried to the court, findings of fact and conclusions of law by the trial judge
are the equivalent of a jury verdict.
Judgements: Rule 54 & 58:
● Whether a case is decided in a trial by jury or by the court, the culmination of litigation at
the trial level is the entry of judgement.
● Jury verdict is not a judgement and a case is not concluded until judgement has been
formally entered.
Rule 50(a)(b): Motion for judgement as a matter of law
Rule 59: Motion for a new trial
First Trial Verdict goes to the trial judge: Because they know the witnesses they know what
happened, if trial judge rules against you-you are appealing the error made by the trial judge in
not granting your motion for judgement as a matter of law. You are appealing the trial judges
motion to bring you a new
Post Trial Motions:
After the trial has been completed and judgement has been entered, the parties are permitted to
make a (1) motion for judgement notwithstanding the verdict, which is now called a motion for
“judgement as a matter of law” in federal court; (2) motion for a new trial; and (3) motion to
alter and amend the judgement.
● Motions are used to 1) correct errors that occurred during the trial, 2) challenge the
sufficiency of the evidence on which the judgement rests and 3) rectify improper conduct
by their parties, their attorneys, or the jury.
● Gives the trial judge final opportunity to correct these deficiencies before the
complaining party is forced to appeal or seek relief.
Motions for Judgement Notwithstanding the Verdict (Judgement as a Matter of Law):
● Under the CL practice, the modern motion for judgement notwithstanding the verdict is
used to challenge the sufficiency of the evidence to support a verdict.
● Motion for directed verdict is called a motion for judgement as a matter od law under
Rule 50(a)(1).
○ Court may grant motion for judgement as a matter of law if a party has been fully
heard on an issue during a jury trial and the courts find that a reasonable juy
would not have a legally sufficient evidentiary basis to find for the party on that
issue and under the controlling law, the party’s claim or defense ‘can be
maintained or defeated only with a favorable finding on that issue.’
○ Rule 50(a) motion focuses on the sufficiency on the legal sufficiency of the
evidence.
● Under Rule 50(a)(2) motion may be made at any time before the case is submitted to the
jury and must specify the judgment sought.
Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial;
Conditional Ruling
● (a) Judgment as a Matter of Law.
● (1) In General. If a 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 party on that issue, the court may:
○ (A) resolve the issue against the party; and
○ (B) grant a motion for judgment as a matter of law against the party on a claim or
defense that, under the controlling law, can be maintained or defeated only with a
favorable finding on that issue.
● (2) Motion. A motion for judgment as a matter of law may be made at any time before the
case is submitted to the jury. The motion must specify the judgment sought and the law
and facts that entitle the movant to the judgment.
● (b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court
does not grant a motion for judgment as a matter of law made under Rule 50(a), the court
is considered to have submitted the action to the jury subject to the court's later deciding
the legal questions raised by the motion. No later than 28 days after the entry of
judgment—or if the motion addresses a jury issue not decided by a verdict, no later than
28 days after the jury was discharged—the movant may file a renewed motion for
judgment as a matter of law and may include an alternative or joint request for a new trial
under Rule 59. In ruling on the renewed motion, the court may:
○ (1) allow judgment on the verdict, if the jury returned a verdict;
○ (2) order a new trial; or
○ (3) direct the entry of judgment as a matter of law.
● A Rule 50(a) motion must be made in order to preserve the right to later file a renewed
motion for judgement as a matter of law under Rule 50(b).
Necessity of Preserving Record in Trial Court:
● Unitherm Food Systems, Inc. v. Swift-Eckrich Inc.:
○ Defendant did not renew its pre verdict 50(a) motion after the verdict as required
under Rule 50(b) and had not filed a post-verdict motion for new trial under Rule
59.
○ Due to this, The Court held that def.’s objection though valid (in appeals court),
could not be granted bc the D did not file appropriate post verdict motions in
district court.
○ Trial judge best person to see if the case needs a new trial granted or a judgment
entered under Rule 50(b) because he is most similar with the case.
Judgement in a Bench Trial:
● Rule 52(c) provides that if a party has been fully heard on an issue during a nonjury trial
and the court finds against the party on that issue, the court may enter judgment against
the party on a claim or defense that, under the controlling law, can be maintained oor
defeated only with a favorable finding on that issue.
Deciding a Motion for Judgement as a Matter of Law:
● In deciding, The court draws all reasonable interferences in favor of the nonmoving party
and disregards all evidence favorable to the moving party that the jury is not required to
believe.
● Jury required to believe conceded/stipulated facts.
● Court than decides whether evidence is sufficient as a matter of law to sustain a
judgement for the nonmoving party.
○ If not, the moving party is entitled to judgement as a matter of law.
Motions for a new Trial:
● Allows the trial judge to correct prejudicial error that has occurred during the trial of the
case.
● In Fed court/states modeled after fed court governed by Rule 59.
Grounds for Granting New Trials:
● Rule 59(a)(1)(A) provides that new trials can be granted by the court in cases tried to a
jury for any reason for which a new trial has heretofore been granted in an action at law
in federal court.
Differences between Rule 50 & Rule 59:
● The standard on a motion for new trial is less stringent than under the matter of law, and
the court may find that although the jury verdict is legally sufficient under Rule 50, the
verdict is seriously flawed and clearly against the weight of the evidence (one of the
reasons for a new trial.)
● The new trial standard is less stringent than the Rule 50 standard because the grant of a
Rule 50 motion results in an immediate judgement for the moving party, whereas the
grant of a new trial only leads to a re-trial of all or part of the case.
Remittitur and Additur:
● Remittitur is the reduction in the amount of damages. It is a useful device because it
saves the parties and the court the unnecessary expense and delay of a new trial.
● Hetzel v. Prince William Country:
○ If Remittitur is offered as an option, 7th Amendment requires that plaintiffs also
be allowed the option of a new trial on the damages issue instead.
● Additur is the increasing in the amount of damages (trial court/defendant.)
○ Recognized in state courts, not available in federal courts.
● Dimich v. Schiedt:
○ Additur violates the 7th amendment bc those damages were never found by a jury,
and remittitur is merely lopping off damages.
○ Seventh amendment doesn't apply to state courts, jury trials in states free to use
additur.
Bench Trials: Rule 59(a)(1)(B) provides that new trials can be granted for any reason in which a
rehearing has heretofore been granted in a suit in equity for federal court.
● Bench trials may grant a new trial on all or some of the issues to any party.
Combining: Under Rule 50(b), when a motion for judgement as a matter of law is renewed after
verdict, the moving party may combine with it a motion for a new trial.
● Rule 59(d) also permits the court on its own initiative to order a new trial for any reason
that would justify granting a new trial on a party’s motion.
● Order must be maken no later than 28 days after entry of judgement.
Motions to Alter or Amend a Judgement: Another post-trial motion, recognized by Federal
Rule 59(e): A motion to alter or amend a judgement must be filed no later than 28 days after the
entry of the judgement.
● Typically used to correct manifest errors of law or fact upon which the judgement is
based.
● Used to provent manifest injustice resulting from things (example) misconduct of counsel
● May be used where has been a change in controlling law.
● Clerical mistakes can be corrected even when more than 28 days has passed. After an
appeal has been docketed, mistakes have to be corrected with appellate court’s leave.
Appellate Review:
1. Legal Error: De Novo
2. Factual: Clearly Erroneous- defential
3. Discretionary: Abuse of discretion-deferential
Right to Appeal: Rules that limit the right to appeal:
● (1) A prevailing party cannot appeal a judgement
● (2) A nonparty cannot appeal a judgement in an action between others and
● (3) a party cannot appeal a judgement against another party.
Walker v. Kazi: ROL: (1) A prevailing party may not appeal a judgment, and a party may not
appeal a judgment against another party. (2) The granting of a motion to amend a complaint and
relate its filing date back to the date of the original complaint is not immediately appealable.
● Another rule in place. Rule requires that a judgement be final before an appeal can be
taken from the judgement
● Why was this judgement not final.
.
Steps, Scope, and Standards of Review, the “Harmless Error” Doctrine, and Timing of the
Appeal:
● Basic Questions with Respect to an Appeal:
○ 1. Was the alleged error properly preserved for appeal in the trial court?
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●
●
○ 2. Assuming the error was properly preserved for appeal, does the challenged
action constitute error under the appropriate standard of review?
○ 3. Assuming error was committed and properly preserved for appeal, was the
error ‘prejudicial’ or ‘reversible’ error.
○ 4. Did the party seeking the appeal meet the time limits set for bringing an appeal.
All issues that can be appealed must be on the record at the trial court.
○ Even when basis for error was not raised/preserved on record in trial court, an
appellate court may reverse cases of plain error.
○ Plain error: Error which, if left uncorrected, would result in a manifest
miscarriage of justice.
Standard of review used by the appellate court depends on the type of matter that is being
reviewed.
○ Trial error may be predicated on the basis of a legal ruling, a discretionary ruling,
or a factual finding.
Harmless Error Doctrine: Even if error has been found, appellant must demonstrate that
error is prejudicial to obtain reversal, ie the error probably affected the outcome of the
case.
○ Appellant courts will not reverse on harmless error.
The Final Judgement Rule:
○ Limits appeals to situations in which the court has rendered a final judgement in
the case.
○ Under the ‘final judgement’ rule, a judgement is final as opposed to interlocutory
when 1) trial courts action fully decides and disposes of the whole matter leaving
nothing further for the consideration and judgement of the trial court and 2) no
subsequent proceedings in the case will render the appellate court’s decision
immaterial.
Statement 1291: The courts of appeals… shall have jurisdiction of appeals from all final
decisions of the districts courts…except where a direct review may be had in the
Supreme Court.
○ Court concluded that a district court may release for appeal final decisions upon
one or more, but less than all, claims in multiple claims actions.
Collateral Order Exception:
● Originated in Cohen v. Beneficial Industrial Loan Corp:
● The CO Doctrine provides that appeals can be taken from certain kinds of decisions made
by trial courts when the decisions are
○ (1) final determinations by the trial court
○ (2) of matters separate from and collateral to the merits of the claims pursued in
the litigation, (a) if the matters are too important to be denied immediate review
by an appellate court, (b) if delay in review may result in matter being unavailable
after termination of the action and (c) if the matter involves a serious unsettled
question of law.
● Most of the time, requirements will be unsatisfied.
Pendant Appellate Jurisdiction:
● Currently unsettled
● Involves the assertion of jurisdiction over a nonappealable order because of its
relationship to another order over which the appellate court has jurisdiction.
Extraordinary Relief from a Judgement: Sometimes sought when the time for ordinary postverdict motions and appeal has expired. Sometimes sought when the effect of the judgement in
questioned in a later action.
● Bases for relief under federal rule 60(b): 60(b) authorizes post judgement motions
addressed to the judgement-rendering court on six grounds
○ 1. Mistake
○ 2. Newly discovered evidence
○ 3. Fraud
○ 4. Judgement is void
○ 5. Judgement has been satisfied, released, or discharged
○ 6. Any other reason that justifies relief.
● Motion must be made at a reasonable time- no more than a year after the entry of the
judgement or order or the date of the proceeding.
● Exam: 55 multiple choice questions. Essay questions coming from discovery, eerie
doctrine, and Ch. 12. (1 multiple choice.)
Finality in Litigation: The principle of finality concerns the effect that a final judgement
rendered in one action is to be accorded in a subsequent action with respect to claims and issues
adjudicated in the first action.
● On the exam what you are looking for is the second action.
● 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.
● Res judicata is also frequently referred to as "claim preclusion."
Res Judicata: Main rules embodying principle of finality
● 1. Rules of claim preclusion:
○ Claim preclusion prevents a party, after final judgement has been entered, from
litigating any part of the same claim in another action.
● 2. Rules of Issue Preclusion
○ Issue preclusion prevents a party from litigating in another action an issue of fact
or law determined in the first action.
Four Pervasive Features of “Res Judicata”:
● Error:
○ Designed to operate even if error has been submitted.
● Extent to which doctrine RJ will prevent litigation or relitigation in a subsequent action
will depend upon the nature of the procedural system.
● RJ only comes into play when someone attempts to use the judgement in one action to
establish a claim or defense in another action.
● In most states, RJ can be waived if not raised in a proper/timely manner.
○ In Procedural systems modeled on Federal Rule 8(c) RJ is an affirmative defense.
○ Different courts have different systems.
Related Doctrines:
● Law of the Case: Prevents relitigation of issues of law decided at successive stages of
the same case.
○ Involves costs
○ When doctrine is applied w/o regard to earlier ruling, benefits of the rule will be
obtained at the expense of justice to the parties.
● Stare Decisis: Requires that once a court has established a principle of law, the court will
follow that principle in all future cases in which the facts are substantially the same.
○ Binds nonparties as well as parties to the action in which principle of law was
announced.
○ Based on policies of security and certainty.
● Judicial Estoppel: Judicial estoppel (also known as estoppel by inconsistent positions) is
an estoppel that precludes a party from taking a position in a case that is contrary to a
position it has taken in earlier legal proceedings.
○ Policy: Protection of the integrity of the judicial process.
Claim Preclusion:
● Concerned with the effort that a final judgment in one action is to be accorded in a
subsequent action on the ‘cause of action’ or ‘claim’ adjudicated in the first action.
● Claim preclusion rules prevent a party from relitigating against the same party any matter
that was a part of the same claim or cause of action adjudicated in the first action.
○ In Second action, party is prevented from litigating anything from first action, or
might have been litigated in first action.
● Test is whether the matter might have been litigated.
● Merger and Bar:
○ A party asserting a claim may not ‘split’ the claim into separate parts and sue on
parts in separate actions.
○ When P sues D and wins, P’s claim is merged in judgment.
○ P loses, P barred from bringing second action on the same claim.
Scope of a claim:
● Traditional Approach: Plaintiff may have multiple claims or causes of action arising from
a single transaction or occurrence.
● Modern Transactional Approach: Treat the scope of a claim as coextensive with the
‘transaction, connected transactions, out which the action leading to the judgment arose.’
○ Important to define a single transaction or connected transaction.
● Multiple Parties:
○ Does not require joining of additional parties only claims.
○ Failure to join an additional party does not violate claim-splitting rule.
Judgment on the Merits:
● For claim preclusion to operate, judgment in initial action must be ‘on the merits.’
● If P loses on procedure, they can bring a second action on dismissed claim.
● Under traditional rule, a judgment was not considered to be rendered ‘on the merits’
when it was rendered on some ‘procedural ground’ unrelated to the merits.
○ Restrictions when P’s claim is dismissed for legal insufficiency
Final and Valid Judgments:
● For CP to operate, a judgment must be final, and valid.
Defendant Perspective:
● D is precluded in a subsequent action on the OG judgment from asserting defenses from
the first matter, but also defenses that may have been used.
Powder Basin Psychiatric Associates, Inc. v. Ullrich: ROL: Res judicata will bar relitigation
of a claim that was ripe for adjudication in a prior case between the same parties and that arose
out of the same transaction or series of transactions as the original claim.
● Res judicata (claim preclusion) bars relitigation of the same claim, between the same
parties, if the first case ended in a final judgment on the merits.
● Collateral estoppel (issue preclusion) bars relitigation of issues that were previously
litigated and essential to a prior final judgment on the merits. Claim preclusion furthers
the goals of consistent and efficient relief by eliminating the potential for inconsistent
judgments on the same claim, protecting the courts and litigants from the burdens of
repetitious litigation and advancing the respect for prior judgments.
Thibeault v. Brackett: ROL: Res judicata does not bar a second claim that does not involve the
same operative facts as the first claim but arose out of the parties’ separation that also gave rise
to the original claim.
● Claim preclusion will apply to bar litigation of a claim in a subsequent action if three
elements are met:
○ (1) the claims are between the same parties or their privies;
○ (2) the first claim ended in a final judgment on the merits; and
○ (3) the claim in the second action was, or might have been, litigated in the first
action.
● A small-claims court judgment may have a claim-preclusive effect in a subsequent action
on the same claim.
● The test for same claim is the transactional test, which asks whether the two claims arise
out of the same aggregate of operative facts—even if different theories of relief are
advanced and even if different relief is sought.
Exceptions to the General Rule of Claim Preclusion:
● A valid/final judgment for D will not bar P on same claim when judgment is for lack of
jurisdiction, or other procedural issue.
● Judgment based on prematurity of action or P’s failure to satisfy a precondition to suir
does not preclude another action on same claim once pre-condition has been satisfied.
Counterclaims, Crossclaims, Third-Party Claims, and Claims by Intervenors and Rule 19
Parties:
● Requirements of CP apply to all claims asserted by any party in the action.
● Counterclaims, Crossclaims, third-party claims, claims by parties who intervene and Rule
19 are fully subject to the same requirements of claim preclusion.
● Key for triggering CP, assertion of initial claim.
○ Counterclaims, cross claims, and third-party P complaints are all permissive in the
initial sense.
○ Once party is joined and asserted, than CP applies.
● This assertion rule is inapplicable to compulsory counter-claims.
○ Compulsory Counter claims require a party to assert any action or occurrence that
is the subject-matter of the opposing party’s claim.
United-Bilt Homes, Inc. v. Sampson: ROL:
● For purposes of the compulsory-counterclaim rule, if the parties have a mortgageemortgagor relationship and the mortgagee has an option to accelerate the entire debt for
nonpayment, a foreclosure action on the mortgage does not arise out of the same
transaction or occurrence as a claim for disbursement of insurance proceeds under a
repair contract and a cause of action to foreclose on the mortgage may not arise before
the option is exercised.
● For purposes of the compulsory-counterclaim rule, if the parties have a mortgageemortgagor relationship and the mortgagee has an option to accelerate the entire debt for
nonpayment, a foreclosure action on the mortgage does not arise out of the same
transaction or occurrence as a claim for disbursement of insurance proceeds under a
repair contract and neither can a cause of action to foreclose on the mortgage arise before
the option is exercised. One document may be the source of independent claims that are
not necessarily compulsory counterclaims.
● You don’t have to assert the claims.
4/11/2022: Collateral Estoppel/Issue Preclusion - p. 882-85 (skip Cycles v. Navistar case);
889-933
Issue Preclusion: Issue preclusion rules concern the effect that a judgment entered in a first
action is to be accorded in a second action with respect to issues of fact or law that were actually
litigated and determined in the first action.
● Policy; Party who had full/fair opportunity in initial action should be precluded from
litigating the same issue again in a subsequent action.
● Only becomes relevant when a subsequent action is brought on a different claim or cause
of action than the one involved in the initial action in which the issue was determined.
○ If second action is brought on the same claim as the first action, second action
will be barred by claim preclusion, and the question of issue preclusion would
never be reached.
Preclusion Operates Against Losing Party
● Issue preclusion only prevents relitigation of issues that are decided against the losing
party in the first action because of the right to appeal.
○ Prevailing parties cannot appeal, only losing parties.
Issue Preclusion on Procedural Determinations:
● A judgment does not have to be on the merits before issue preclusion can operate. A
judgment can have an issue preclusion effect on procedural issues.
○ Issue preclusion can operate, where claim preclusion does not.
Finality:
● As in the case of claim preclusion, a judgment must be final for issue preclusion to occur.
● Less rigid in finality than claim preclusion.
○ Issue Preclusion can be applied to any prior adjudication of an issue in another
action that is determined to be sufficiently firm to be accorded conclusive effect.
● Issue preclusions judgments must be valid, similar to claim preclusions.
Mutual and Non Mutual Estoppel:
● Mutuality of Estoppel, outdated, no longer used.
● Modern Approach: Allows nonparties to the initial action to assert issue preclusion in all
cases, subject to a number of exceptions to IP designed to take into account the problems
that can occur when a stranger to an initial action attempts to use the judgment against the
losing party in the action.
Essential Elements of IP:
● IP, unlike CP, does not focus on what might have been litigated in an initial action, but on
what was actually litigated and determined.
● Issue litigated in first action must be the same as the one involved in the second.
● Issue must be determined in the first action.
● Determination of the issue must support the judgment in the first action.
Holtman v. 4-Gs Plumbing & Heating, Inc.: ROL: The same-parties requirement for res
judicata requires that the parties be identical or that they were in privity with a party in the
previous action, and the identical-issue requirement for collateral estoppel requires that the same
precise question must have been ligated in the previous action.
● Legal privity does not exist for res judicata purposes just because one party hires another
to do work.
● Collateral estoppel requires three elements: (1) identical issues; (2) a final judgment on
the merits in the previous action; and (3) the same parties or their privies. Showing that
the issues in both cases are identical is the most crucial element.
○ Issues are identical for collateral-estoppel purposes if they require resolution of
the same precise question as measured by comparing the pleadings, evidence, and
circumstances of each case.
● While res judicata bars parties from litigating claims in subsequent proceedings based on
the same cause of action, collateral estoppel bars the reopening of an issue that has been
litigated and determined in a prior suit.
● Holding: The issues are not the same, not identical so the district court erred in
concluding that Holtman is collaterally estopped from asserting asbestos claim. And
summary judgment should not have been granted.
Hebden v. Workmen’s Compensation Appeal Board: ROL: If an employee is adjudged to be
disabled because of a disease from which there is no recovery, the employee’s disease status may
not later be challenged without violating the preclusion doctrines of res judicata and collateral
estoppel.
● Collateral estoppel (issue preclusion) is often mischaracterized as broad res judicata.
Collateral estoppel bars relitigation of an issue that was actually litigated and essential to
an earlier judgment.
● In the workers’-compensation context, collateral estoppel also bars an employer from
relitigating the original medical diagnosis supporting an employee’s disability from the
date of an award of benefits. This prevents disability victims from perpetual harassment
and hearings requiring them to repeatedly defend their claims of occupational disease and
benefit-qualifying disabilities.
● If an employee’s disability is based on an unchangeable condition, then any challenge of
that finding is an impermissible attempt to relitigate that which has already been found
and is violative of res judicata and collateral estoppel principles.
● Restatement: An issue is not actually litigated if it is an affirmative defense that the
defendant chose not to raise.
○ Modern Rule: Determination must be essential to the judgment and alternative
determinations.
Malloy v. Trombley: ROL: An alternative finding of a prior court may be issue-precluded in a
later action, in contradiction of the Restatement (Second) of Judgments § 27, with comments, if
the issue was carefully considered and vigorously litigated.
● The previous court of claims decision was predicated on alternative grounds: there was
no proof that the state was negligent, and the claimants were each contributorily
negligent. Strict adherence to the alternate-findings exception to the rule of issue
preclusion would prohibit giving a preclusive effect to either finding. But it would also
ignore consideration of the vitality of the rationale behind issue preclusion, which is to
ensure that any prior determination was the result of a process allowing a full and fair
opportunity to have vigorously litigated the issue, which was essential to the prior
judgment.
● With alternative findings—either of which independently could support the judgment—
the concern is whether an alternative finding has been carefully and rigorously considered
such that it could be considered essential to the previous judgment.
● Alternative Determinations.
Exceptions to Issue Preclusion:
● Many exceptions focus on the opportunity to litigate afforded to the party bound in the
first litigation.
● One important exception exists when the losing party in the initial action cannot obtain
appellate review of the judgement to obtain the correction of errors that may infect the
determinations made against the party.
○ Does not apply if appellate review was available but not taken by the party.
● Issue preclusion applies to issues of law as well as to issues of fact.
○ Sometimes considered unfair to bind parties for all time on determinations against
them on issues of law.
Actions in Different Courts:
● Exception exists when the initial and the subsequent actions take place in different courts.
○ May cause differences in quality of the procedures followed in the two courts that
make issue preclusion inappropriate.
● Burden of Proof:
○ An exception to issue preclusion is what a party has a heavier burden of proof in
the first action than in the second action
Issue Importance:
● Courts drew a distinction between the preclusive effect of a determination on matters of
“ultimate fact” as opposed to “mediate data.”
○ An ultimate fact is the logical conclusion that is drawn from the evidence
produced in the action.
○ Mediate data or evidentiary facts are steps leading to ultimate fact.
Nonmutual Preclusion:
Hunter v. City of Des Moines: ROL: A party who could have but failed to join a prior action
may not invoke offensive, nonmutual collateral estoppel in a subsequent action against a party
who had a full and fair opportunity to litigate the issue in the prior action.
● Collateral estoppel (issue preclusion) has four requirements: (1) identical issues; (2) the
issue was actually litigated in the prior action; (3) the issue was material and relevant in
the prior action; and (4) the issue was essential to the prior judgment.
● In Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), the United States Supreme Court
recognized the use of offensive, nonmutual collateral estoppel, which typically involves a
plaintiff, who was not a party to the prior action—seeking to bind the defendant, who was
a party to the prior action—to the earlier finding on the issue. Nonmutual collateral
estoppel additionally requires that the party against whom it is being invoked had a full
and fair opportunity to litigate the issue in the prior action and there are no other
circumstances that would justify relitigating the issue. The Restatement (Second)
Judgments § 29, with comments, lists as one such circumstance the preclusion-invoking
party’s failure to effectuate party joinder in the prior action. If the party using preclusion
had the opportunity to join the prior action and failed to do so, that party may not now
benefit from the prior court’s finding on the issue.
● Doctrine of issue preclusion may be utilized in either a defensive or offensive matter.
● Nonmutual issue preclusion is now authorized in those jurisdictions that have abolished
or relaxed the doctrine of mutuality.
● This only means that a nonparty (stranger) to the first action can take advantage of issue
preclusion and assert it against a party who is bound by the judgment.
○ Does not mean that a bound party can now assert issue preclusion against a
stranger.
● Modern Approach: Permit nonmutual preclusion in all cases, subject to a number of
exceptions.
Preclusion of Nonparties: Bc nonparties have not been afforded their day in court to litigate a
claim or issue, the rules of claim and issue preclusion do not ordinarily operate against
nonparties to a judgment.
● Several exceptions temper this basic rule.
● 1. If nonparty agrees to be bound by judgment.
● Reasons 2-6 found on p. 915.
● Taylor Court: A nonparty must have some special relationship with a party to be bound
by an earlier judgment and not simply possess a factually similar claim.
Transformational Effects: Judgments can sometimes transform relationships between parties in
ways that nonparties will be unable to contest.
● A person appearing in one capacity in litigation is not normally bound by or entitled to
the benefits of Res Judicata in another capacity.
● Even when a person appears in a purely representative capacity, representatives who are
also beneficiaries are bound by judgments as beneficiaries.
Preclusion of Coparties:
● Traditionally, res judicata have only applied to determinations between persons in an
adversary relationship bc ordinarily only persons aligned on opposite sides of the action
will have a full and fair opportunity to litigate matters.
● Sometimes, coparties are in an adversary relationship on some matters, while remaining
aligned on other matters.
Preclusion of Subject-Matter and Personal Jurisdiction Questions:
● Whether a judgment is valid or not depends on whether the P has complied with the rules
of subject-matter and personal jurisdiction.
● Subject-Matter Jurisdiction-Preclusion when Defendant Appears:
○ Issue preclusion can also operate on issues of subject-matter jurisdiction.
● Courts need to correctly recognize that the ‘on the merits’ requirement does not apply to
issue preclusion.
Complications of the Federal System:
● This rule requires the judgment enforcing state to use the rules of res judicata that would
be used by the judgment-rendering state to determine what matters are precluded by the
judgment.
● We can have an issue arising from the same facts if it is in separate state and federal
courts.
● Supreme Court has made it clear that state court judgments should be given both a claim
and an issue preclusion effect on federal matters that are later raised as part of a civil
rights action in federal court.
Full Faith & Credit:
● Process of full faith and credit enforcement is through the Uniform Enforcement of
Foreign Judgments Act.
● Clerk files the first state’s judgment with the second state, which will enable the second
state to enforce the judgment.
● D must return to the first state to raise all challenges.
Enforcement of Federal Judgments:
● Semtek: The scope of most federal diversity judgments would be determined by state
law.
● Semtek:
○ Federal law would control the effect of a federal judgment in a diversity action,
but that federal law would adopt the state law of the state in which a federal
judgment-rending court is sitting as the proper rule of decision on questions of res
judicata unless “the state law is incompatible with federal interests.”
● Neither full faith and credit clause not its general implementing statute requires state/fed
courts to give any effects to the judgments of foreign nations.
● Well accepted that these judgments will be enforced by courts within the United States.
5/4/2022: Erie Doctrine:
An Erie problem comes up when we’re in federal court and under diversity jurisdiction.
Erie Question: Must the federal judge apply state law, or are they free to ignore state law. There
is an issue that must be decided.
● An issue that a federal district judge must decide in a diversity case, must she apply state
law.
● Black letter rule: Erie Railroad v. Tompkins: That in diversity cases, a federal court must
apply state substantive law.
○ If the issue is an issue of substantive law, she must apply state law on that issueErie v. Tompkins.
○ The Rules of Decisions Acts- Section 1652 of the judicial code: Also compelled
by the 10th amendment of the constitution
○ Tenth Amendment: The powers that are not retained by the federal government,
are retained by the states.
■ Rule of Decision Act: In these cases the federal court must apply state law
on substantive matters.
○ Erie overturned.
● Hanna v. Plumber (1965): Hanna showed us that it is 2 doctrines. The Hanna and the Erie
Doctrine. There is a Hanna prong and an Erie prong.
○ Hanna Prong of Analysis: Is there a federal provision on point that directly
conflicts with state law. If answer is yes, than we apply the federal law as long as
the federal law is valid. The Hanna court decided that this is an issue decided on
the Supremacy Clause of the Constitution. If there is a federal provision that
directly conflicts with state law (if it is valid) it wins. If in constitution is valid.
Federal Statutes is valid. Federal Rule of Civil Procedure.
■ How do we determine if a federal rule of civil procedure is valid. We have
to look at the Rules Enabling Act. Section 2072.
■ Rule 2072 from the Judicial code, says federal rules are valid if they do
not modify substantive rights.
■ Some judges say that the FRCP is valid under the Rules enabling act is if
is just arguably procedural. Supreme court has never held one invalid
under the Rules Enabling Act.
■ Shady Grove: Should be a stricter test for validity under the Rules
Enabling Act. -Look more in depth.
■ Hanna Test:
● Question 1) Is there a federal rule, directive, or provision of any
kind that directly conflicts with state law.
● If yes, than it always trumps state law, because it did not modify
substantive rights.
○ Erie Prong of Analysis: This comes up if there is no federal provision on point,
than we have an Erie question.
■ The federal judge must apply state law on matters of substance,
substantive issues.
● But we do not have to follow state law, if it is not a substantive
issue.
■ Theory of Erie: Apply all three tests, and see which one makes the most
sense.
● Outcome determinative test: 1945 Guaranty Trust v. York:
Federal Judge must apply state law on statute of limitations.
Statute of Limitations is substantive. (What happened in York)
○ Substantive because its outcome-determinative.
○ If we use the state law, this case is dismissed right now. If
we ignore the state law, this case is not dismissed, and it
will proceed in the litigation stream. Because that is a
different result, the court said we should not have different
in federal and state courts in so far as the legal rules will
determine that.
○ Outcome determination test (York): If there would be a
different result in state court v. federal court, than the
federal court must follow state substantive law.
● Balance of interest test: Byrd v. Blue Ridge: The court has to
look at whether this allocation of authority between judge and jury,
is that a matter of substantive law? If so, have to follow state law.
○ If a provision, a rule, a law, is not clearly substantive, the
federal court should apply it. Federal court should follow
state law even though its not clearly substantive, unless the
federal court system has some interest in doing it
differently.
○ In Byrd there was a federal interest in doing it differently.
Court balanced the interests. The state had no interest in the
rule, but the federal court had a stronger interest in doing it
differently.
○ Federal interests v. state interests, whoever had the highest
interest.
● Twin Aims of Erie: Come from Hanna.
○ Number 1: Avoid Forum Shopping.
○ Number 2: Avoid the inequitable administration of law.
● How do you apply the twin aims test?
○ At the outset of the case, when the case is filed, we ask: If
the federal judge ignores this state law, will it cause parties
to flock federal courts. Forum shopping. To forum shop in
favor of the federal court. We do not want to facilitate
forum shopping, unfair to in-state citizens that cannot
invoke diversity jurisdiction.
○ Gasperini: We can go over it.
Discovery:
Rule 11 does not apply to discovery documents. Rule 26(G) has a certification requirement.
Section A: Required Disclosure: Federal Rule 26(A): Tells parties that they must produce
certain information without a request by the other party.
● Rule 26(a)(1-3) When required disclosure comes up.
○ 26(a)(1): Required initial disclosures: Very early in the case
■ Turn this over 14 days before rule 26(f) conference
■ First three months of the case
■ Must identify people with discoverable info that you may use to support
your case.
■ Must give copies/descriptions of things that you may use of things to
support your case.
● Required initial disclosure
■ Only cough up if use it to support your case.
■ If know of something that hurts your case, don’t have to tell them in initial
disclosure.
○ 26(a)(2): Expert testimony
■ After you’re done with discovery.
○ 26(a)(3): Pre-trial required disclosures, late in litigation
Five tools of discovery: Asking another party/non-party for information.
● 1. Deposition: A deposition is where a deponent, person whose deposition we’re taking,
testifies orally under oath.
○
○
○
○
Live
Questions: Deposition under Rule 30- Oral and Live Questions.
Rule 31- Deposition written questions. Questions read by court reporter.
You may take a deposition of a party/nonparty. We can use deposition for a
nonparty. But should subpoena a nonparty otherwise they don’t have to come.
■ Going to serve notice, and serve the nonparty with a subpoena.
○ Do not have to subpoena a party.
● 2. Interrogatories (Rule 22): Written questions answered in writing under oath.
○ Have 30 days to answer these. Great for background information.
○ INTERROGATORIES CAN BE SENT ONLY TO PARTIES NOT NONPARTIES.
● 3. Request to Produce (Rule 34): Written request for access to things.
○ ESI, tangible things, documents.
○ Rule 34(a) applies only to parties.
○ Rule 34(c) may use this to get info from non-parties but should subpoena the
nonparty.
● 4. The Medical Exam (Rule 35): You must GET A COURT ORDER
○ Only one where you need a court order, difficult to get. Must show that the
medical condition is in controversy.
○ Must show good cause 35(a).
○ Only get an order to examine a party, or someone in the party’s custody or legal
control.
■ Concept is very narrow, not include employer-employee.
■ Could show with parent and child.
● 5. Request for admission under Rule 36: Asks to admit or deny any discoverable
matter.
○ If you do not deny under Rule 36, you have admitted. You do not deny within 30
days, you admit.
○ THIS IS ONLY AVAILABLE TO PARTIES.
■ Not non parties.
Scope of Discovery:
● Standard starting point: 1. The standard is Rule 26(b)(1): We can discover material that is
relevant to a claim or defense and proportional to the needs of the case.
○ Would not be proportional if the burden of producing it, outweighs the likely
benefit.
● Discover things that could not be admissible at trial.
○ Example Hearsay
○ Could be discoverable because it would lead you to relevant and discoverable
info.
● 2. Privileged matter is NOT discoverable. Even if its relevant, its not discoverable.
○ Term of art: Legal Privilege that comes up in various relationships
○ Attorney-Client Privilege
○ Confidential Information between lawyer/client is privileged and cannot get to
that.
■ Incumbent on the party for who you seek, to object to it. Have to object
privileged matter.
○ Privilege: Confidential communication between lawyer/client.
● 3. Work Product: Work product is not the same as privilege.
○ Rule 26(b)(3): Trial preparation materials.
○ Something is work product if it is prepared in anticipation of litigation.
○ Starting point: Protected from discovery, no matter how relevant or useful,
protected from discovery.
■ Protect work product to prevent a free rider problem.
○ Can override work product if you show two things:
■ 1. Substantial ned
■ 2. The information is not otherwise easily available.
■ Only get those specific parts of the work product
○ Some kinds of work product you can never get because they are absolutely
protected: Rule 26(b)(3)
■ Mental Impression- absolutely protected
■ Conclusions- absolutely protected
■ Opinions- absolutely protected
■ Legal Theories- absolutely protected
○ Work product can be generated by the party or any representative of the party
■ It does not have to be a lawyer.
■ In federal court, it is not attorney work product- just work product.
● 4. Section D: Enforcement of the Discovery Rules:
○ Court may sanction people for not giving discovery
○ As a general rule there are 3 ways that a court can get involved in a discovery
squabble.
■ 1. Responding party, party to whom the discovery request is sent, asks for
a protective order. Rule 26(c).
● Asks the court to protect you bc the discovery request subjects to
undue burden or undue expense. Rule 26(c)(1).
● Courts have wide discretion, can deny discovery or limit it in
certain terms.
■ 2. Where the responding party, responds incompletely.
● If the party seeking the discovery thinks the objections are bogus.
The party seeking the discovery will make a motion to compel,
and that would make the responding party answer the previously
unanswered questions.
● Hearing and the court will decide if the objections are well taken.
● If court tells you to comply with motion to compel, you MUST.
● Rule 37(b)(2) Sanctions if you do not comply.
● Court order 37(a) to answer questions.
■ 3. The responding party fails completely. (To attend deposition, respond to
interrogatories, respond to requests for production.)
● Total no-show.
● Party seeking discovery does NOT have to make a motion to
compel answers.
● Go to motion for big sections. Rule 37(d)(1)(a).
○ Sanctions 37(d)(3)
○ Includes merit sanctions
Section E: Conferences and Judicial Management:
● In federal court, the judge is very involved in managing the case. Making sure that the
parties move the case along.
● Rule 16(b): Court must enter a scheduling order. Roadmap for how the litigation is going
to proceed until we get to trial.
○ When discovery/motions are to be completed.
○ Before scheduling the roadmap, court can ask for a scheduling conference.
■ Early in the case. Timing of the scheduling order 16(b)(2).
● Rule 26(F): Scheduling/Discovery Conference: Parties required to meet and discuss the
case, possibility of settlement, issues with discovery.
○ Parties must put together a detailed discovery plan to submit to the court.
○ Go ahead and produce required disclosures under Rule 26(a)(1).
■ No more than 14 days before the 26(f) meeting.
○ Rule 26(f) meeting proceeds Rule 16(b)(2) scheduling plan.
● Pre-trial conferences: Court can order whenever they want too.
○ Final pretrial conference is very late after discovery is finished. Very close to
trial. Pretrial conference is discussed what issues will be trial.
○ Results in pretrial conference order is an important document, because it is a
roadmap of what will happen at trial. No surprises at trial.
■ Everything you're going to rely on should be in pretrial conference order.
If its not listed there, you cant put it on at trial.
Preclusion/Res Judicata: Case one is done, the judgment is entered, and case two is pending.
● Does the judgment from case one stop us/preclude us from litigating anything in case
two?
● Case 1/Case 2 is order in which they go to judgment.
● What is the preclusive effect of that judgment from case one?
Section A:
● What law applies?
○ Case 1- state court Kansas
○ Case 2- Federal Court in Florida
● Full Faith and Credit Clause: (related doctrines)
○ The Court in Case 2 applies the preclusion law of the judicial system that
decided case one. So in our example, the state court Kansas. Keep it consistent.
○ For example, if case one was in federal court in Nevada and the judgments
entered, wherever Case 2 is does not matter. Because Case 1 was decided in the
federal court you must apply federal preclusion law in case 2.
○ One exception: Semtek (2001): If case one, was in federal court based on
diversity, than the judge in case two uses federal preclusion law.
■ Because the federal court will adopt the state law where the federal court
sat. Federal preclusion law looks at state law, where the federal court sits.
Section B: Claim Preclusion
● Claim Preclusion = Res Judicata: If you have a claim you only get one case in which to
vindicate it.
● If you have a claim, you can only sue once. Cannot sue on the same claim twice.
● Whether we impose res judicata on case 2 depends on three things.
○ 1. Case one and case two must be brought by the same claimant against the same
defendant.
■ Same parties in same configuration.
○ 2. We have to show that case one ended in a valid final judgment on the merits.
■ On the merits: Rule 41(b): All judgments are on the merits, unless they’re
based on jurisdiction, venue, or indispensable parties.
■ True even if nothing was litigated, a default judgment is on the merits.
■ Not on the merits if the court in case one said it was not on the merits.
■ Not on the merits: If the court enters a judgment but with leave to amend,
or without prejudice.
■ Some states: Not on the merits: Dismissal based on SOL is not on the
merits.
■ Voluntary Dismissal:
● When you dismiss a second action in federal court via notice- with
prejudice.
○ 3. The claimant asserted the same claim in case one and case two.
■ Different approaches as to what is a claim.
■ Claim: Majority view: Federal Law: The claim is a transaction or
occurrence.
■ Majority Test: You can sue only once on everything thats happened to you
arising from a transaction or occurrence.
■ Minority View: Primary Rights Theory: We get a different claim for each
right invaded. Does not look at the transactions.
● Narrower definition of claim, where you may get to sue more than
once.
● Merger is claim preclusion if the claimant won case one.
● Bar is claimant lost case number one.
Section C: Issue Preclusion- Collateral Estoppel
● Narrower than claim preclusion.
● Focus on an issue that was determined in case one. Issue is decided.
○ Same issue comes up in case two. If we apply issue preclusion, we will not
relitigate that issue. Deem it established in case 2.
○ Narrow the scope of case 2, and take out that issue.
● What do we have to show to get that issue precluded from case 2?
Five requirements for Issue Preclusion:
● 1. Have to show that case one ended in a valid final judgment on the merits.
● 2. Must show that the same issue was actually litigated and determined in case one.
○ Had to have litigation and went to trial, and determined in case.
● 3. Have to show that the issue was essential to the judgment in case one.
○ Issue is the basis for the judgment
○ An alternative determination, if there are 2 issues that D is bringing up. Court
finds in favor of D bc issue. In that case neither issue would have been essential to
the judgment if he could have one on either. Can’t apply issue preclusion to
either.
● 4. Against whom is issue preclusion used? Against you
○ Based in due process.
■ ISSUE PRECLUSION CAN ONLY BE USED AGAINST SOMEONE
WHO WAS A PARTY IN CASE ONE.
■ This is for every court.
■ Nuisance: Is that it can be sometimes be used against someone who was in
privity to the party who was in case one.
■ Privity = Represented.
● 5. By whom is issue preclusion asserted? By me
○ NOT a due process issue. Can be differences of opinion.
○ Traditional: Mutuality: Only use preclusion if you were a party to case one. There
is allowed non-mutual issue preclusion.
○ Clear Majority View Today/ Federal Law: That non mutual defensive issue
preclusion ok as long as the person who it is being used against got his day in
court. Abolished Mutuality because they have had their day in court.
■ Non-mutual: Means being used by, not against, but by somebody who was
NOT a party to case one.
● Non-mutual defensive issue preclusion: Person using it is not a
party in case one and defensive means hes the defendant in case
two.
● If defendant, not in case one, defensive issue preclusion
● If Plaintiff, not in case one, offensive issue preclusion
○ Non-mutual offensive issue preclusion: Nonmutual means that the issue is being
asserted by somebody who was not a party to case one.
■ Offensive means that she is the plaintiff in case two, not a party in case
one.
■ Most courts today REJECT non-mutual offensive.
■ Federal Law (Trend): Allows non-mutual offensive as long as its not
unfair.
■ Parklane: Fairness factors in determining when it is not unfair to use nonmutual offensive issue preclusion:
● 1. So Defendant had the full chance to vigorously litigate in case
one.
● 2. Defendant could foresee multiple suits.
● 3. Plaintiff could not have easily joined case one. So if you could
have joined case one than it would not be considered fair. If you
could have, you would have been bound. Side-line Plaintiff.
● 4. That there are no inconsistent judgments.
○ All judgments must have had the same results.
● 5. They are not gaining a procedural advantage in the second suit
that were not available in the first action.
Adjudication:
Pre-trial adjudication: Case may be dismissed because of voluntary dismissal by the Plaintiff
under Rule 41(a). Might be default- Rule 55: The Defendant did not show up.
● Rule 12(b)(6): A motion to dismiss for failure to state a claim.
○ Does this case belong in the litigation stream at all? If a P cannot state a claim,
than the case should not move forward. Court does not look at evidence. In
Summary Judgement, the court does look at evidence.
○ What test does the court apply? Court only looking at the face of the complaint.
■ 1. Court ignores conclusions of law and looks only at allegations of fact. If
there are conclusions of law in the complaint, they are ignored.
■ 2. The facts alleged must support a plausible claim, not just a possible
claim.
■ 3. To determine plausibility, judge uses her own experience and common
sense. Very subjective standard that can vary depending on judge.
○ When we use Rule 12(b)(6) we are saying that these are cases that do not belong
in the litigation stream at all. Bc if P shows what she alleged, she wont win bc its
not a plausible claim.
● Summary Judgment Rule 56: Weed out the cases in which we do not need a trial. In
litigation stream, but do not need to go to trial.
○ 30 days
○ Only go to trial to resolve disputes of fact.
○ If before we go to trial, the parties show that there is no dispute of fact, than we
do not need a trial, the court can simply rule as a matter of law.
○ Rule 56(a): The party moving for summary judgment must show two things.
■ 1. That there is no genuine dispute on a material fact.
■ 2. That she is entitled to judgment as a matter of law.
● If there is no dispute of fact, the only question left is dispute of
law.
○ In Summary Judgement, the court does look at evidence. If pretrial motion, court
looks at evidence it HAS to be Summary judgment.
■ Where does the evidence come from?
■ Evidence is proffered by the parties. Courts give evidence in written form
and the court will look at that evidence whether there is a genuine dispute
on a material fact.
■ Evidence = Materials that are executed under oath.
● 1. Affidavits or Declarations: Written statements under oath
● 2. Deposition Testimony- Under oath
● 3. Answers to interrogatories.
● 4. Court can look at admissions.
○ If the Plaintiff has failed to deny something in the Plaintiffs
complaint than he has admitted it.
● PLEADINGS ARE NOT EVIDENCE. NOT SIGNED BY THE
PARTIES.
○ Verified pleadings exception.
● Pleadings are not evidence, the Plaintiff MUST put something in
the basket of evidence, otherwise he will be screwed.
● P should put in some evidence that the light was red.
■ Based on the proffered evidence, if the court decides that there is an issue
of material fact, than cannot grant summary judgment.
● If not, than may SJ
■ No right to have SJ granted, to the discretion of the court. Courts dont like
to do this.
■ Court cannot judge credibility based on evidence. Credibility is a question
fact and has to go to trial
● Nuance: Scott v. Harris: If theres a video that shows entire event,
court may grant summary judgment based on the video.
Adjudication at trial:
1. The right to a jury trial
● Jury decides questions of facts.
● Judge decides law, and judge will give jury instructions as to what the law is.
● Bench Trial- Where the judge decides the fact
● 7th Amendment- Right to a jury trial, civil cases, only applies in federal civil cases, not
state.
○ 7th amendment preserves the right to a jury trial
○ Only does so in cases at law, not equity.
● 1. Do you have a right to a jury trial- is the claim asserted to a right that existed in 1791.
● 2. Focus on the remedy sought.
○ Legal or equity remedies
○ Remedy at law- monetary damages.
○ Equity- Injunctions
2. The selection of a jury.
● Venire: Group from which final jury is selected
● Through the Voir Dire process.
● Each party has a chance to challenge potential jurors.
○ Challenge for cause- unlimited challenges for cause.
■ This juror cannot serve because bias, or any cause.
○ Peremptory Challenge- Limited to three peremptory challenges on each side.
■ Do not have to have a reason
Judgment on the pleadings is a must.
Directed Verdict: Motion for judgment as a matter of law: At trial, judge may decide by
granting a motion for JMOL.
Rule 50(a)(1): Grant a motion for JMOL, the jury is not needed if the judge decides that
reasonable people could not disagree on the result.
● JMOL- Judge feels like the issue can only come out in one way.
● Rule 50(a)(2): Can only move for this after the other side has been heard at trial.
● Just like summary judgment except during trial.
○ Court doesn't have to be grant JMOL, discretionary.
Renewed Motion for judgment as a matter of law: RMJOL: Same as JMOL except it comes
of later, after court denies JMOL. Losing party makes an rmjol motion, if its granted you take
away victory from the winner and give it to the other side.
● Same standard as JMOL. Jury reached a conclusion that reasonable people could NOT
have reached.
● You must move for RMJOL within 28 days after entry of judgment.
○ To move for RMJOL, you must have moved for JMOL at a proper time in trial.
○ If you didn't move for JMOL, than RJMOL cant be granted.
Motion for New trial: Rule 59(a)(1): Comes up after trial.
● Have to motion for new trial within 28 days after entry of judgment.
● Radically different motion. RMJOL way more extreme.
● New trial takes away victory from one side, and says we’re going to start over.
● Why grant a new trial?
○ The trial judge is convinced there was a mistake in the first case than affected the
outcome.
○ This is not going through appeals, instead brand new district court trial.
Rule 60(b): Is a motion to set aside judgment.
● District judge entered the judgment can set it aside for various grounds in Rule 60(b).
○ 60(c) Within a reasonable time, reasonable can never mean more than a year.
Remitter:
7 factor test for cost-shifting:
● 26(b)(2)(b)
No equitable cleanup doctrine not followed in federal courts.
Fifth Amendment: Self-Incrimination: You can only plead the fifth for civil cases its only for
people. Not corporations. People can only plead it if their is a pending criminal charge.
Clerk can enter judgment as opposed to the court for: Rule 55
- Default Judgments
- Sum Certain: Defaulting party made no appearance whatsoever, and the defaulting party
is not incompetent or an infant
- When a clerk enters defaul judgment, they are not required to give the defauling party
notice.
- When court enters default, 7 days notice.
Ways court can involved in discovery
- Protective order: Discovery undue burden
- Motion to compel- Responding party needs to respond to compel
- Big sanction