Intro
Pleading
Discovery
Trial
From Rule 50(b) "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."
When justice does not require
amendment:
Filing and serving
Rules Decision Act (RDA): Says that federal
court will adopt state substantive rules
when needed to resolve state issues in a
federal case.
Rules Enabling Act (REA): Congress let the
judicial branch make their own procedural
rules. "Rules shall neither abridge, enlarge,
or modify the substantive rights of any
litigant."
Rule 7 types of pleadings. Complaints,
answers, crossclaims, etc.
Substance of the pleadings
Pleading Checklist
Rule 8(a)(1) claim for relief
Substance requirements:
Rule 5(d) serving and filing pleadings and
other papers.
Short and plain statement for relief
8(a)(2)
Rule 10 form of pleadings. Names of
parties, numbered paragraphs
Date, signature, and attorney contact
information 11(a)
Rule 11(a) required signature on pleadings,
motions, other papers
Rule 8(c) affirmative defenses
Captions 10(a)
Separate paragraphs/sections 10(b)
Rule 8(d) simple, concise and direct. Can be
alternative or inconsistent
Jury demand, if desired 38
Serve and file 5(d)
Summons 4
Conely v. Gibson: notice pleading
Rule 6(a)(1) computing time:
Exclude the day of the event that triggers
the period
Count every day, including intermediate
Saturdays, Sundays, and legal holidays; and
include the last day of the period, but if the
last day is a Saturday, Sunday, or legal
holiday, the period continues to run until the
end of the next day that is not a Saturday,
Sunday, or legal holiday
Rule 11 you can be sanctioned for frivolous
pleadings or representations to the court if
you act in bad faith, if you don't understand
the law or fail to conduct a reasonably
inquiry before filing a claim.
Can be done on a motion or by the court. If
by a motion, the party must serve 21 days
before filing so there is a 21-day safe
harbor to correct the issue.
Rule 8(e) pleadings must be construed to
do justice
Rule 4 must serve defendant within 90 of
filing complaint
Dioguardi v. Durning: the high watermark of
notice pleading
Rule 9 heightened pleading standard for
fraud or mistake requiring the plaintiff to
plead particular circumstances relating to
those allegations.
Rule 8(b) defenses, admissions, denials
Demand for relief 8(a)(3)
Form requirements:
(1) bad faith
Virgin Records America, Inc. v. Lacey: D
failed to plead or respond, so P asks for
default and then default judgement.
Bell Atlantic Corp v. Twombly: plausible
pleading
Ashcroft v. Iqbal: plausible pleading
(confirmed as a general standard)
3-part test:
(1) Every 12(b)(6) analysis must begin by
taking note of the elements a plaintiff must
plead to state a claim.
(2) The court must accept as true only
factual allegations respecting elements and
not legal conclusions. (well pleaded
allegations)
(3) On the basis of those non-conclusory
factual allegations, the court must decide
whether the complaint states a plausible
claim.
Hays v. Sony Corp. of America: attorney
was sanctioned because he did not make a
reasonable inquiry to see if Sony had sold
the manual or made any money on it and he
did not know copyright law.
Hunter v. Earthgrains Co. Bakery: attorney
was improperly sanctioned for arguing a
change in the law in a circuit split. An
argument to change or expand the law is
not frivolous.
Rule 55 default judgement:
(a) When a party has failed to plead or otherwise
defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.
(b)(1) If the P’s claim is for a sum certain or a sum that
can be made certain by computation, the clerk – on the
P’s request, with an affidavit showing the amount due –
must enter judgment for that amount and costs against
a defendant who has been defaulted for not appearing
and who is neither a minor nor an incompetent person.
(b)(2) In all other cases, the party must apply to the
court for a default judgment. … If the party against
whom a default judgment is sought has appeared
personally or by a representative, that party or its
representative must be served with written notice of the
application at least 7 days before the hearing.
Rule 54(c) a default judgement must not
differ in kind from, or exceed in amount,
what is demanded in the pleadings
Rule 60 relief from judgement: You can ask
for relief for for default judgement if there is
some type of clerical mistake.
Rule 12(f) motion to strike
Rule 12(g) and (h) “Wavier trap”: If a 12(b)
(2)-(5) motion is not raised the first time a
Rule 12 motion is raised, these defenses are
waived.
Rule 12(c) affirmative defenses: must be
used in pleading or will be waived.
Amending pleadings
Matos v. Nextran: Court will assume wellpled allegations are true for purposes of this
motion.
Reis Robotics v. Concept Industries:
example of motion to strike in pleadings
15(a) amendment before trial: You can
amend your pleading once as a matter of
right within 21 days of serving it. After the
first freebee, but still within 21 days after
serving, you must get the other party's
consent to make another amendment or
request leave from the court to make an
amendment. The court gives freely when
justice so requires (see Beeck).
15(b) amendments during or after trial
Hunter v. Serv-Tech, Inc.: example of
waiver trap
Ingraham v. United States: The U.S. waived
an affirmative defense when they failed to
assert a statutory medical malpractice
damages cap.
15(c)(1)(A)-(C) amendment after SOL
expires: Changing a party against whom a
claim is asserted is more difficult than just
adding an additional claim.
Relation back:
(A) if the applicable statute allows
(B) for adding a claim: if the newly added
claim arises out of the same transaction or
occurrence
Rule 55 default and default judgement
Factors for whether this was an affirmative
defense :
If the defendant has done nothing, no
additional notice is required between the
entry of default and the default judgment. If
the party has appeared at all, under 55(b)
(2), they get notice 7 days before any
hearing that the court will do to enter
judgment.
Discovery scope & process
(2) undue delay
Rule 12(a) the defendant must serve an
answer to the complaint within 20 days
Rule 12(b) motions (filed pre-answer or with
answer)
Jurisdictional allegations 8(a)(1)
Sibbach v. Wilson: FRCP Only governs legal
procedure and not legal substance.
Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit: circuit court tried to impose a
heightened pleading standard for a claim against
government officials, but the supreme court reversed
because that goes outside of rule 9
• whether the matter at issue fairly may be
said to constitute a necessary or extrinsic
element in the plaintiff’s cause of action;
(C) for changing a party: if (B) is satisfied,
new party receives notice within 4(m) time
period (90 days), new party knew or should
have known that the action would be
brought against it except for a "mistake" of
party identity.
• which party, if either, has better access to
relevant evidence; and
• policy considerations: should the matter
be indulged or disfavored.”
15(c)(1)(C)(ii) "mistake": means that the
party's name was misspelled or the plaintiff
sued the wrong defendant because she was
confused about the relationship between
the possible defendants (Krupski). The SC
has not answered whether ignorance
qualifies as a mistake under this rule. The
lower courts are split on this, but the
majority say that ignorance does not qualify
as a mistake under this rule. PLEADING
(3) dilatory motive
Beeck v. Aquaslide 'N' Dive Corp: Aqua
slide was allowed to amend their pleading
because they discovered the slide in
question was not their product.
Joinder
Proportionality considerations:
• Importance of the issues at stake
• Amount in controversy
Hardin v. Manitowoc-Forsythe Corp.: an
issue may be tried by express or implied
consent. In this case P talk about another
party who was used as a phantom party in
damage calculations.
Bonerb v. Richard J. Caron Foundation:
amendment to add a claim was allowed
because counseling malpractice claim came
out of the same transaction/occurrence as
basketball injury as a result of mandatory
treatment.
Krupski v. Costa Crociere: amendment to change a party was
allowed because coast line should have had adquate notice
and knew or should have known that they were being sued
because of common ownership of the first defendant Krupski
filed. Also shows that her mistake was a mistake of
relationship between the two possible defendants.
Rule 13(a) and (b) Counterclaims may be
compulsory (same transaction/occurrence)
or permissive
Rule 14 third party claims: allow a defendant
to implead a non party to pass on liability.
Rule 21 Misjoinder and nonjoinder of
parties: not grounds for dismissal. The court
can on a motion or on its own sever claims
as appropriate.
Rule 42 Consolidation; separate trials
Hohlbein v. Heritage Mutual Insurance Co.:
Where multiple Ps joined their claims
against 1 D for a pattern of dishonest hiring
practices and this improved the efficiency
of the proceedings.
• Parties’ relative access to relevant
information;
If you want to make a 13(g) cross claim
after you've pleaded, you will need to
amend your pleading under 15.
King v. Blanton: shoes that you cannot sue
someone for the same occurrence they
have already sued you for because it would
have been a compulsory or counterclaim.
Erkins v. Case Power & Equipment Co.:
Shows that you can implead a third party
even if its on a different legal theory.
Trial/Post trial
Pretrial
Rule 16 pretrial conference: a scheduling
conference will occur sometime after the
26(f) conference. Should be within 90 days
of service. A party should have at least one
attorney at the conference, and the court
may require the party or its representative
to be there also.
Gaylard v. Homemakers of Montgomery,
Inc.: violating rules of professional conduct
does not necessarily make evidence
inadmissible (ie, recording a phone
conversation without permission).
• Parties’ resources;
• Importance of the discovery in resolving
the issues; and
• The burden or expense outweighs its likely
benefit.
Rule 13(g) cross claim against a co party:
use when there is a claim arising from the
same transaction or occurrence or the
claim relates to property that is already the
subject of the action. May also use cross
claim to make a claim of shifting liability to
to a co defendant.
Discovery tools
Rule 26(b)(1) scope: something is
discoverable if it is relevant, not privileged
or protected, and proportional.
Rule 18(a) joinder of claims: after the first
claim and once an adverse relationship has
been establish between two parties, those
parties may assert as many claims as they
have against one another.
Rule 20(a)-(b) permissive joinder of parties:
multiple P's or D's may join when a claim
arises out of the same transaction or
occurrence and there is a common
question of law or fact.
Required disclosures happen at three cases in
discovery: at the beginning, before trial, and for
expert testimony
Rule 26(b)(3)(A) work product: Generally,
you cannot discover tangible things
prepared in anticipation of litigations by
another party or its representative.
Rule 26(b)(3)(A)(i)-(ii) work product
exception: work product can be
discoverable if they are otherwise
discoverable under 26(b)(1) and the
discovery party shows substantial need and
that it cannot obtain without undue
hardship. DISCOVERY
Rule 26(f) conference: A party may not
request discovery until this conference is
held 26(d)(1)
Oxbow Carbon v. Union Pacific Railroad:
analyzed all factors of proportionality to
determine if a request for a large amount of
electronically stored data was appropriate.
Flores v. Southern Peru Copper
Corporation: generally, pendency of a
motion to dismiss does not excuse the
performance of discovery obligations. In
Flores the court says it will consider the
pending motion and the strength of the
motion in deciding delay.
Hickman v. Taylor: allows the other party to
discover witness interviews because the
witnesses were not longer available to
interview.
Sacramona v. Bridgestone/Firestone, Inc.:
you can only get a court order for a physical
exam if a physical condition is in
controversy in the litigation. It was
inappropriate to request an HIV test to
determine life expectancy of a Plaintiff
related to damages.
Chudasama v. Mazda Motor Corporation:
Rule 26 requires federal district courts to
actively manage the cases before them,
including ruling on parties’ pretrial motions
and objections to discovery requests.
Zubulake v. UBS Warburg LLC: When and how can cost for
ESI discovery shift?
1. The extent to which the request is specifically tailored to
discover relevant information;
Rule 26(b)(4):
2. The availability of such information from other sources;
(A) experts who may testify can be deposed
by the other party
3. The total cost of production, compared to the amount in
controversy;
(B) experts who are employed only for trial
prep (not testifying) may not be deposed by
the other party or served interrogatories
except for (i) medical examiners and (ii)
when no other source of the info is available
4. The total cost of production, compared to the resources
available to each party;
5. The relative ability of each party to control costs and its
inventive to do so;
6. The importance of the issues at stake in the litigation; and
Rule 26(a)(2)(C)-(D) Expert testimony
reports: non testifying witness to not need
to provide anything. Testifying witnesses
must provide a report if they are paid or if
they are unpaid they must only provide fact
findings or subject matter.
Rule 37(e) governs sanctions for the
discovery process
Davey v. Lockheed Martin Corp.: Rule 16
permits amendment of a final pretrial order,
but only to prevent manifest injustice. In this
case, the defendant moved to amend to
include legal theory from a new case 2
months after it was decided and a week
before the Davey trial. The circuit court
allowed it.
Rule 38 preserves the right to a jury trial
from the 7th amendment: The seventh
amendment gives right to a jury trial at
"common law." When the 7th amendment
was written, the court system was split
between courts of equity and courts of law.
Rule 38 codifies this portion of the 7th
amendment to determine the modern day
equivalents of equity and law.
Jury trial for legal remedies as a matter of
fact finding ($)
When determining whether a party is
entitled to a jury trial:
Step 0: If we are in federal court, proceed. If
state court, stop here. 7th amendment
doesn't apply to the states.
Step 1: what remedy are they seeking? If it's
a statutory claim, look at what remedy
makes sense. If there any legal remedies
sought, they are entitled to jury trial.
Rule 72 magistrate judges can decide non
dispositive matters and make
recommendations for dispositive matters.
Dispositions without trial
Voluntary dismissal 41(a) generally
without prejudice
In re Bath and Kitchen Fixtures Antitrust
Litigation: In this case, the court allowed P
to voluntarily dismiss after D made a 12(b)
(6) motion because it was not an answer or
a motion for summary judgement.
must be before opposing party
answers or motions for summary
judgment or
must be agreed and signed by all
parties or
Involuntary dismissal 41(b) generally
with prejudice
Occurs if P fails to prosecute or
comply with court order or rules
Summary judgement 56
Is successful if there is no genuine
dispute of material fact and the
movant is entitled to judgement as a
matter of law.
Plaintiffs are typically the party that wants a
jury trial, because they think a jury will be
sympathetic to them against a large,
corporate defendant.
Judge trial on equitable remedies as a
matter of law (specific performance)
"preserve" = do it the same way they did in
English common law in 1791
must be by court order
7. The relative benefits to the parties of obtaining the
information.
J.F. Edwards Construction Co. v. Anderson
Safeway Guard Rail Corp.: Although a judge
may use discretion to expedite trial
activities in the pre trial phase and local
courts may have local rules, a judge abuses
discretion when they compel stipulations.
Step 2: when there is a mixed law and
equity for the same issue, jury first for law,
then judge (using the juries findings) for
equity (Dairy Queen). If there are separate
issues of law and equity, the judge and jury
can work on separate issues at the same
time.
Step 3: if a jury trial is taking place, the jury
can also take over the fact finding inquiries
of the action.
50(a) JMOL: After a party is fully heard and
before the case is submitted to the jury, the
court may on its own or by motion grant
JMOL to the other party if the court
determines that a reasonable jury would not
have legally sufficient evidence to find for
the party that has been fully heard.
•
•
rule 38 only applies to federal courts
because states can make their own rule
about jury trials
Dairy Queen, Inc. v. Wood: When there is a mixed
issue of law and equity,
•
•
The court may not determine credibility
or view one piece of evidence out of
context of the party's whole case.
The court must view evidence in the
light most favorable to the non moving
party.
The 50(a) motion must be made before
the case is submitted to the jury and
preserves the ability to make a 50(b)
motion later.
The court prefers to have the case
heard by the jury.
1. Resolve the traditional legal claims first, in order to
preserve the Seventh Amendment right to jury trial;
2. The judge will then apply the jury’s finding as to that
common issue when resolving the equitable claim.
Curtis v. Loether: When the issue is based on a
statutory claim use a 2-part constitutional analysis:
50(b) renewed JMOL: After the jury returns
a verdict, a party may renew their 50(a)
motion. A renewed motion for judgment as a
matter of law must be filed no later than 28
days after the judgment. The court will rule
on the motion in one of three ways:
1: Is the claim more like a claim that was tried in equity
under traditional practice or more like a legal claim?
(1) allow judgment on the verdict, if the jury
returned a verdict;
2: Does the plaintiff seek a remedy that was
traditionally available at law or in equity?
(2) order a new trial; or
(3) direct the entry of judgment as a matter
of law.
When determining if a jury trial is appropriate, the
court favors granting a jury trial.
Rule 49(a) Special Verdict
Must be brought within 30 days after the
close of discovery.
56 summary judgement: Must show no
genuine dispute of material fact and movant
must be entitled to judgement as a matter
of law. Burden of proof depends on what
the BOP of the claim would be at trial. Party
must offer admissible evidence to
support/disprove facts. two categories:
(1) In General. The court may require a jury
to return only a special verdict in the form of
a special written finding on each issue of
fact. The court may do so by:
Anderson v. Liberty Lobby: shows that to determine
genuine dispute evidence must be viewed most
favorable to the non-moving party by asking whether a
reasonable jury could find for the non-moving party.
(A) submitting written questions susceptible
of a categorical or other brief answer;
(B) submitting written forms of the special
findings that might properly be made under
the pleadings and evidence; or
Slaven v. City of Salem: shows material facts are facts
that affect the outcome/relate to the elements. The fact
that the guard didn't see if Slaven's brother was wearing
a belt was not a material fact because it didn't affect the
outcome/relate to the elements.
(C) using any other method that the court
considers appropriate
Pennsylvania v. Chamberlain: What is the
standard for a JMOL motion? Could a
reasonable jury could find in favor of the
plaintiff under these circumstances? P sues
D for negligence. Factual dispute: did P fall
from train or was there a collision? P
provided one witness and D provided
several eyewitnesses. D moved for directed
verdict. SC said this was proper.
Lane v. Hardees: The court determined that
P had legally sufficient evidence for a
reasonable jury to conclude that a Hardee’s
employee was responsible for the water.
Scintilla standard: used by some states
meaning instead of using a "reasonable
jury" inquiry, you deny the motion if the
other side has even a "scintilla" of evidence.
Rule 49(b) General Verdict with Answers to
Written Questions.
The court may submit to the jury forms for a
general verdict, together with written
questions on one or more issues of fact that
the jury must decide.
If answers Inconsistent with the Verdict:
the court may:
(A) approve, for entry under Rule 58, an
appropriate judgment according to the
answers, notwithstanding the general
verdict;
(B) direct the jury to further consider its
answers and verdict; or
Rule 59 New trial
3 Categories of Cases Warranting a
Grounds for New Trial. The court may, on
motion, grant a new trial on all or some of
the issues—and to any party—as follows:
New Trial
(A) after a jury trial, for any reason for which
a new trial has heretofore been granted in
an action at law in federal court; or
(B) after a nonjury trial, for any reason for
which a rehearing has heretofore been
granted in a suit in equity in federal court
Rule 60 Relief from a judgement order
Celotex Corp. v. Catrett: shows that the BOP shifts to
the non-moving party after the moving party meets their
burden.
Turyna v. Martam Construction Co.: If it
was a general verdict, the court must
reverse and remand for new trial on Count
2. (The defendant’s motion probably should
have been a Rule 59(a) motion for new trial.)
(b) On motion and just terms, the court may
relieve from a final judgment: (1) mistake,
inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have
been discovered in time to move for a new
trial under Rule 59(b); (3) fraud (whether
previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5)
the judgment has been satisfied, released,
or discharged; it is based on an earlier
judgment that has been reversed or
vacated; or applying it prospectively is no
longer equitable; or (6) any other reason
that justifies relief.
Instructions. The court:
(1) must inform the parties of its proposed
instructions and proposed action on the
requests before instructing the jury and
before final jury arguments;
(2) must give the parties an opportunity to
object on the record and out of the jury's
hearing before the instructions and
arguments are delivered; and
(3) may instruct the jury at any time before
the jury is discharged.
• an error in an instruction actually given, if
that party properly objected; or
• a failure to give an instruction, if that
party properly requested it and—unless the
court rejected the request in a definitive
ruling on the record—also properly
objected.
• A court may consider a plain error in the
instructions that has not been preserved as
required by Rule 51(d)(1) if the error affects
substantial rights.
Hardin v. Ski Ventures, Inc.: courts are not
required to provide specific instructions on
a party’s contentions, as long as the general
legal theory is accurate and relates to the
facts. The more specific the instruction, the
more likely that the judge will be
commenting on evidence.
Wilson v. Vermont Castings, Inc.: P sues D
on product liability theory for stove. Juror
read her stove manual and shared that
information with other jurors. P moves for
new trial. Is this a procedural error? No,
even if it’s extraneous information, it’s not
prejudicial to an objective juror or bearing
on causation here.
Final judgement rule: In order to appeal, you must
have final judgement. Purposes: reduces
congestion, avoids delay and disruption of trial
court, avoids duplication, avoids expense and
delay of extra appeals
Exceptions:
• Statutes or rules [54(b)] allowing appeal as of
right, without regard to finality;
• Statutes or rules providing for discretionary
interlocutory appellate review; [28 U.S.C. §1292]
Collateral order doctrine: Judicially
recognized exception to the final judgment
rule in cases where immediate harm might
occur if review is postponed. Four elements:
separability, finality, urgency, and
importance.
• Common-law based exceptions [Collateral
order doctrine]; and
•The authority of the appellate courts to issue
extraordinary writs
For a trial court error to be reviewable,
it must satisfy the “Three P’s”
Presented to the appeals court.
(1) At the close of the evidence or at any
earlier reasonable time that the court
orders, a party may file and furnish to every
other party written requests for the jury
instructions it wants the court to give.
A party who objects to an instruction or the
failure to give an instruction must do so on
the record, stating distinctly the matter
objected to and the grounds for the
objection.
Rule 61 harmless errors don't matter
Preserved in the trial court; and
If answers Inconsistent with Each Other
and the Verdict: When the answers are
inconsistent with each other and one or
more is also inconsistent with the general
verdict, judgment must not be entered;
instead, the court must direct the jury to
further consider its answers and verdict, or
must order a new trial.
Rule 51(c) Objections to jury instructions
3. New evidence was discovered after
the verdict.
The error must be prejudicial;
(C) order a new trial.
Rule 51 Jury instructions
(2) After the close of the evidence, a party
may: (A) file requests for instructions on
issues that could not reasonably have been
anticipated by an earlier time that the court
set for requests; and (B) with the court's
permission, file untimely requests for
instructions on any issue.
2. The trial was tainted by some kind of
procedural error that makes the verdict
unreliable or unfair.
(a) The court may correct a clerical mistake
or a mistake arising from oversight or
omission whenever one is found in a
judgment, order, or other part of the record.
The court may do so on motion or on its
own, with or without notice. But after an
appeal has been docketed a mistake can
only be corrected by the appellate court's
leave.
1) Disproof of the Elements
2) Absence of the Elements
1. Verdict against the manifest weight of
the evidence.
Trivedi v. Cooper: example of P moving for
a new trial. if a jury verdict goes against the
weight of the evidence, a district court
judge may enter JMOL, order a new trial, or
reduce the jury verdict by remittitur.
MacArthur v. University of Texas Health
Center at Tyler: P sues D for six claims but
only argues 3 and only gets a jury verdict on
1. She tries to appeal a claims that she did
not preserve.
Rule 54(b) The court may direct
entry of a final judgment as to
one or more, but fewer than all,
claims or parties only if the court
expressly determines that there
is no just reason for delay.
In re Recticel Foam Corp.: example of
collateral order doctrine