Civ Pro II (Rensberger Fall ‘22)
Maxim Rodriguez
Civil Procedure II (Fall ‘22, Rensberger)
The Class Action
1) Class Action
a) A class action is where a representative sues on behalf of a group. Class actions allow for judicial efficiency,
deterrence and justice for those who don’t know they have been harmed. A defendant class is possible, but it is rare.
Additionally, a class action is not a case until the court certifies it as such. The court will then appoint class counsel
under Rule 23(g). Rule 23(e) requires that a settlement or dismissal of a certified class must be approved by a court.
i) Subject Matter Jurisdiction of Class Actions
(1) Federal Question Jurisdiction: a class may assert a claim arising under federal law.
ii) Personal Jurisdiction of Class Actions
(1) Diversity: for citizenship of a class, you look only to the rep., not the class members, however the
rep. must be diverse from all Δ’s. additionally, the rep.’s claim must exceed $75k.
2) Rule 23(a)—The Prerequisites for a class action are:
a) That it’s too numerous for practicable joinder (Numerosity);
b) Some question of law or fact in common to all the class members (Commonality);
c) The rep.’s claims or defenses are typical of the claims or defenses of the class (Typicality); AND
d) The rep. will fairly and adequately protect the interests of the class (Adequate Rep.)
3) Rule 23(b)—The three types of Class Actions, only one MUST be met for certification
a) Rule 23(b)(1): When prosecuting separate actions by or against individual class members would create a risk of;
inconsistent or varying class members establishing incompatible standards of conduct for party opposing the class,
OR if separately adjudicating individual class members creates risk that interest of other members not included are
impaired or impeded.
i) There is no right to opt out of a 23(b)(1), therefore a mandatory class action.
b) Rule 23(b)(2): The class is seeking final injunctive relief or corresponding declaratory relief, as the non-class party
has acted or refused to act on grounds that apply generally to the class.
i) There is no right to opt out of a 23(b)(2), therefore a mandatory class action.
c) Rule 23(b)(3): The class must show that the common questions predominate over individual questions, and the class
action is the superior way to resolve the dispute. The court must also give individual notice to all members
reasonably identifiable.
i) Rule 23(c): When notice is given, the members must know that they can opt out of the class, and that they
will be bound if they do not opt out of the class. The class representative pays to give this notice.
Provisional Remedies & Other Remedies Topics
1) The Remedy: A π can request two kinds of remedies; (1) money damages [compensatory or punitive or both], (2) specific
remedy (injunctions or replevin).
2) Provisional Remedies: Provisional remedies provide for the pretrial seizure of property for the purpose of securing
satisfaction of a judgement that may be entered in the case. Rule 64 authorizes the use of provisional remedies but discloses
that the remedies precise name and procedure will be governed by state law. Some mentioned are:
a) Garnishment: A court order directing that money or property in the hands of a 3 rd party be seized.
b) Attachment & Sale: a process by which another’s property is seized in accordance with a writ or judicial order for
the purpose of securing a judgement not yet entered, as the property can later be sold.
c) Replevin: A process by which the π takes possession of and holds disputed property during the lawsuit.
i) NOTE: Procedure varies from state to state, but the party seeking the remedy generally must make out a
prima facie case on the claim AND show that the property will likely not be available after the trial if relief
is not granted.
3) Injunctions: Injunctions are an equitable form of relief granted either before or after a case. Interlocutory injunctions are
injunctions granted before the case is in trial. Injunctions are a courts order to a party to either: (1) cease a particular action
(prohibitory), or (2) order to affirmatively do something (mandatory).
a) Interlocutory Injunctions: Interlocutory injunctions are granted to maintain the status quo until a trial on the merits
may be completed. There are two types of Interlocutory injunctions which differ in duration and evidentiary
requirements.
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i) Temporary Restraining Order: A TRO is usually sought at the beginning of the case to prevent irreparable
injury complained of in the complaint that will/can result before a TRO is issued. A court may also grant a
TRO WITHOUT NOTICE TO ADVERSE PARTY.
(1) Requirements for Ex Parte TRO’s: Generally, oral or written notice of the hearing for the
issuance of the TRO must be given before a TRO is issued. Rule 65(b)&(c) allows for Ex Parte
issuance of a TRO if 3 requirements are met.
(a) Facts showing immediate and irreparable injury: Moving party must give specific facts
in an affidavit or in verified complaint to establish that immediate and irreparable injury
will result before adverse party can be heard in opposition.
(b) Efforts to give notice: Moving party must certify in writing all efforts made to give notice
of the hearing to the adverse party and/or the reasons why notice should not be required
(c) Security: Moving party must provide some security, which is an amount determined by
the court, to pay for any costs and damages incurred by the adverse party if they were
wrongfully enjoined or restrained (bond). U.S. and its officers and agencies are not
required to give security (bond).
(2) Notice of Hearing v. Actual Notice: Although a TRO may be issued without notice of the
hearing, Rule 65(d) establishes that due process requires that a person must receive actual notice
(through service of process or otherwise) of the TRO (or any injunction) before he may be held in
contempt for violating it.
(3) Time Limit: The TRO will expire within 14 days unless the restrained party consents to an
extension or good cause is shown for an extension for a period of time. If the TRO is extended
beyond 28 days from its issuance, it is considered a preliminary injunction for purposes of appeal.
ii) Preliminary Injunction (Longer Term): Like a TRO, a preliminary injunction is intended to maintain the
status quo prior to trial to prevent irreparable injury that can arise before trial on the merits of the complaint
can be concluded. TROs are different than a preliminary injunction because they are sought by a party prior
to a trial on the merits of the complaint. Rule 65(a) makes clear that a preliminary injunction MAY NOT be
issued without formal notice to the adverse party.
(1) Requirements of a Preliminary Injunction:
(a) Irreparable harm will be suffered before the conclusion of the trial if the injunction is not
granted;
(b) Harm to the π if the injunction is not granted outweighs the harm to the Δ if the
injunction is granted;
(c) π shows that he is likely to be successful on the merits; AND
(d) the public interest favors granting the injunction
Pleadings & Judgements Based on Pleadings
Pleadings are the documents which frame the issues of a suit. This is different than a motion (a request for a ruling). A pleading serves
three functions: (1) to give notice regarding claims and defenses to the other party, (2) to narrow the scope of issues, and (3) to provide
a quick method for resolving meritless claims and defenses. The first component of pleadings is the complaint, and the second is the
Δ’s pleading, known as the answer. Pleadings must have legal sufficiency and factual sufficiency. Legal Sufficiency asks whether the
complaint gives an adequate legal basis for the complaint that can give rise to relief. Factual Sufficiency questions how much detail
the complaint has to be proper.
Pleadings include the complaint, answer, and reply. Because there are general pleading rules, we will address these first when
addressing pleadings. Everything below will apply to the complaint, answer, and reply.
1) Pleadings in General:
a) Avoiding Frivolous Claims—Rule 11:
i) Rule 11 applies to all documents, except in discovery. It requires the attorney or unrepresented party to
certify that (1) the attorney made a reasonable inquiry, (2) the document is not for an improper purpose, (3)
the legal contentions are warranted, (4) factual contentions will have, or are likely to have evidentiary
support, and (5) denials of factual contentions are warranted by evidence or reasonable belief or lack of
information.
(1) Procedural Points:
(a) Certification is effective every time a lawyer advocates a position from that case;
(b) Sanctions for violating Rule 11 are DISCRETIONARY;
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(c) A motion for sanctions must be served to the other party before filing. The served party
then has 21 days to fix their mistake or claims. This is the Safe Harbor Rule. If party does
not fix the problem, the party may file for sanctions.
b) Twiqbal Plausible Pleading Standard: Rule 8(a)(2):
i) The π must plead facts that support a plausible claim. This requires that the pleading contain enough
factual matter to have a plausible ground for the existence of liability. “Possible” is no longer good enough.
What to do if the pleading is plausible (but
you can’t say it didn’t happen) but there are
The claim must be plausible.
not enough facts to say it did:
ii) TEST: Twiqbal sets out 3 rules to evaluate whether a pleading satisfies pleading requirements:

Past practices
(1) The court must ignore conclusions of law and focus only on the alleged facts; AND

Communications
(2) The court must determine whether those facts support a plausible claim, not a possible claim.

Have a better pre-complaint
investigation
(3) To determine plausibility, the judge must use their own common sense and experience; this is

Infer claim from Δ’s motive
subjective.
for injuring π

Use testers
iii) Some have argued that the requirements of Twiqbal is a reversion back to code pleadings which required the
pleadings to not be generalized enough to be considered conclusory but not specific enough to be considered
pleading evidence. To be just right, the party must only plead the ultimate facts constituting the claim.
c) Form of Pleadings: Rule 10
i) Pleadings must include:
(1) A caption with the courts name, a title, file number, and a 7(a) designation
(2) The title for complaint must name all parties
(3) After naming 1st party on each side, parties can be referred to generally
(4) Stated claims or defenses in numbered paragraphs, separated by a single transaction
d) Heightened Pleading Standard:
i) In certain claims, Rule 9(b) and Rule 9(g) require more details in pleadings if the claim is about, (1) fraud,
(2) mistake, or (3) special damages. When a party thinks the other party has failed to meet a heightened
pleading standard, they may file a 12(b)(6) motion to dismiss.
(1) Fraud: the complaint must particularly state the circumstances constituting fraud. Policy reasons
requires a high standard so it must include facts such as dates, who, what, and when.
(2) Mistake: Must also be stated with particularity.
(3) Special Damages: The complaint must plead with specificity for special damages—damages that
do not flow naturally from the event.
e) Pleading Defects:
i) A complaint contains a pleading defect if it meets one (or more) of the following:
(1) Omits an Element: arguably fails to allege an element of the claim
(2) Rule 12(e) Vulnerability: subject to motion for more definite statement because it gives Δ enough
info necessary to answer
(3) Unavoided defense: arguably raises affirmative defense fails to avoid it
(4) Superfluity: contains damaging superfluous matter that should be omitted for tactical reasons
(5) Violates rules of professional responsibility
f) Types of Pleadings Allowed in Federal Court: Rule 7
i) Federal courts allow 6 types of pleadings:
(1) Complaint and Δ’s answer to complaint
(2) Answer to a counterclaim designated as a counterclaim
(3) Answer to a crossclaim (Δ1 v Δ2)
(4) 3rd party complaint (i.e., for indemnification)
(5) Answer to a 3rd party complaint
(6) If court orders one, a reply to an answer
g) Pleading Inconsistent Facts & Alternative Theories: Rule 8(d)
i) Rule 8(d)(2): a party can set out 2 or more statements of a claim OR defense alternatively or hypothetically.
ii) Rule 8(d)(3): a party may state as many separate claims or defenses as it has, regardless of consistency.
(1) i.e., Count 1 admits to battery but Count 2 alleges it was self-defense, or Count 1 says there is no
K but Count 2 says other party breached K.
iii) NOTE: while something might not violate Rule 8, make sure that it doesn’t violate Rule 11; there MUST
be sufficient factual basis.
h) Dismissals:
i) Once a complaint has been filed the parties can (1) voluntarily dismiss their claim or (2) the count can
involuntarily dismiss the claim.
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(1) Voluntary Dismissals: a π can decide to voluntarily dismiss because they either sued in the wrong
place or at the wrong time or the parties settled. Under Rule 41(a), voluntary dismissals may be
either by the π or by court order.
(a) By the π: a π may voluntarily dismiss without a court order by filing (1) a notice of
dismissal before the Δ serves an answer or a motion for summary judgement OR (2) a
stipulation dismissal signed by all parties who have appeared.
(i) When a π Voluntarily Dismisses, the first voluntary dismissal is without
prejudice (free), and the second voluntary dismissal is adjudicated on the merits
(can’t file the lawsuit again). This is to prevent the π from continuously filing
and dismissing.
(b) By Court Order: the court order can dismiss on terms the court considers proper. Unless
the order states otherwise, it is a dismissal without prejudice (π can bring case again).
(2) Involuntary Dismissals: if a π fails to prosecute or comply with rules or a court order, the Δ can
move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, any
dismissal under this rule serves as an adjudication on the merits (π cannot file again)
(a) Exception: if the dismissal is for lack of Jurisdiction, improper venue or failure to join an
absentee  without prejudice
(b) i.e., π has had pending lawsuit on the docket for years and hasn’t requested discovery or
done anything with the case
2) Amended and Supplemental Pleadings:
a) Federal rules are fairly liberal about amending pleadings. However, courts are less likely to allow amendments if it
is likely to cause (1) delay, or (2) prejudice to either party. Thus, courts try to adjudicate cases on the merits and not
on technicalities. Generally, a party may amend at any time to conform the pleadings to the evidence.
i) Amended Pleadings: Rule 15 (a), (b), & (c)
(1) Rule 15 (a)
(a) π may amend once within 21 days after Δ serves 1st Rule 12 response; either motion or
answer
(b) Δ also has the right to amend (but only once) within 21 days of serving its answer
(c) If the 21-day period has lapsed for both parties, both the π and Δ can make a motion for
leave to amend. Courts are fairly liberal about this; they will let parties amend unless (1)
the party has delayed too long OR (2) it’s going to prejudice a party
(2) Rule 15(b) Concerns Variance
(a) Variance can only come up at trial. Variance is where the evidence at trial does not match
what was pleaded.
(i) i.e., π pleaded breach of K in her complaint. At trial arguing tort claim
(b) Whenever there is variance, either party may object to variance, or the party will not
object. Unless the opposing party objects to the variance, then the evidence may come in
and we can amend the pleadings to conform to the evidence. If the party does object, the
evidence is no longer admissible
(3) Rule 15(c) Relation Back
(a) When a party attempts to amend a complaint after the statute of limitations has run, the
pleading may be amended if it relates back to original claim. This is a way around SOL.
(b) This can happen in 1 of 2 scenarios: (1) the party is trying to amend a pleading, or (2) the
party is trying to amend to change the Δ
(c) Claims: Relation back occurs when the new claim arises from the same TO as the
original. If there is relation back, the new claim is treated as if it was filed with the
original
(d) Defendants: There’s only relation back if π sued wrong Δ first, but right Δ knew about it.
ii) Supplemental Pleadings: Rule 15(d)
(1) Supplemental pleadings are where parties wish to add something to the case that did not occur
until after the case was filed. There is never a right to a supplemental pleading so, parties must ask
the court for permission to file one. However, courts are fairly liberal about allowing them.
*****Because pleadings apply to complaint and pre-answer motion requirements for each follow*****
3) The Complaint:
a) The complaint is the filing that starts a case. Rule 8(a) governs what a complaint should contain. A complaint must
contain 3 things; if any are not included, it is likely it will be dismissed without prejudice.
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i) The π must plead grounds of SMJ
ii) A short & plain statement of the claim showing the π is entitled to relief. (Twiqbal issue)
iii) A demand for relief. This can include monetary damages, alternative relief, etc.
4) The Δ’s Response:
a) Rule 12 gives a Δ a choice to respond by a motion or answer. All pleading rules apply to the D’s response.
Generally, Δ must respond within 21 days of service or he defaults. If Δ waived any formal service of process, he
had 60 days to respond. Under Rule 12(b), every defense to a claim for relief in any pleading must be asserted in the
responsive pleading id one is required; this can be raised in a pre-answer motion or answer.
i) The Pre-Answer Motion: a pre-answer motion is NOT a pleading, a motion is a request for a court order.
Pre-answer motions are made before answering. Under Rule 12, a Δ has options under pre-answer motions:
(1) Rule 12(e): Motion for a more definite statement RARE. The Δ cannot answer because of
unintelligible complaint. Must be made before filing a responsive pleading.
(2) Rule 12(f): Motion to strike ANY party may ask the court to get something out of the pleading.
Must be made before filing an answer. A party may make a motion to strike if the pleading has an
(a) insufficient defense, (b) redundant, (c) is irrelevant, OR (d) scandalous matter
(3) Rule 12(c): Motion for judgement on the pleadings brought after pleadings are closed
(4) Rule 12(b): Rule 12(b) gives 7 defenses; all of which the Δ could make a motion to dismissed
based on all of them. Affirmative defenses must follow the general pleading requirements
contained in Rule 8 of the F.R.C.P. A party must “state in short and plain terms its defenses to
each claim asserted against it. These may be asserted in the Δ’s answer OR pre-answer motion:
(a) SMJ not met
Can be raised at any time
(b) PJ not met
(c) Improper venue
MUST be put in 1st response
(d) Improper process
(motion or answer) or else waived
(e) Improper service of process
(f) Failure to state a claim (Think Twiqbal)
Can only be brought
up through trial
(g) Failure to join an indispensable party under Rule 19
ii) The Answer: an answer is a pleading. A Δ must answer within 14 days after his motion is denied. Under
Rule 8(b) a Δ must respond to every allegation in the complaint on a paragraph-by-paragraph basis. Under
this rule, a Δ had 3 options: (1) admit, (2) deny, or (3) that he does not know. A failure to deny constitutes
as an admission on any allegation except damages.
(1) In an answer, a Δ must raise any and all affirmative defenses he wishes to bring under Rule8(c).
Affirmative defenses are injecting new facts; if Δ is right, he wins. If a Δ fails to plead affirmative
defenses in his answer, he waives his right to them.
(2) Additionally, a Δ may assert claims against other parties and force joinder in his answer through
crossclaims and counterclaims
5) Sanctions:
a) If a party fails to meet pleading standards, a court may impose appropriate sanctions. Sanctions are intended to
prevent repetition of conduct. The court can impose sanctions on an attorney, law form, or any party that violates
pleading rules.
i) Violating Rule-11—Certification Sanctions: a court may impose sanctions on any attorney who violates
Rule 11, the certification process. There are 2 ways to violate Rule (11): (1) the attorney certified a
document with bad information, or (2) presented bad information at trial. The motion for sanctions MUST
be served under Rule 5.
(1) Under the Safe Harbor Provision, opposing parties cannot move for sanctions immediately—a
motion for sanctions must be served to the certifying party before filing. The served party then has
21 days to fix their mistake or claim. If the party does not fix the problem, then the opposing party
can file for sanctions. In other words, the party has a 21-day window of safety.
(a) “Suaponte”: if the court initiates the sanction, there is no safe harbor
(2) Monetary sanctions MAY be imposed and are presumed to be paid to the court
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What Law Applies in Federal Court
When a case is in federal court under the basis of diversity jurisdiction, the issue of determining whether a judge should apply federal
or state law arises. The general rule from Erie is that a federal court must apply state substantive law in diversity cases. This is
compelled by (1) the Rules of Decision Act, and (2) the 10th amendment of the U.S. Constitution.
*Relation back and Erie are likely to be in Same Essay*
o
o
Law is substantive when it affects parties outside the world of litigation.
Law is procedural when it occurs only during litigation; aka housekeeping issues within the court.
*ORDER IS HBD: Hannah, Byrd, Dicta*
1) Hanna Holding ( FRCP or STATUTE ON POINT ):
a. The holding in Hanna established that the first thing to be considered is whether there is a FRCP or Federal Statute
on point that directly conflicts with state law. State law that is inconsistent with federal law is preempted under the
Supremacy Clause. Therefore, if there is a FRCP or Federal Statute on point that conflicts with state law, then
federal law will be applied so long as it is valid. A FRCP or Federal Statute is valid if: (1) it regulates procedure and
does not modify a substantive right and it is arguably procedural, AND (2) it is within congress’s power. If a rational
person can look at the rule or statute and say it is procedural, it is within congress’s power as authorized by the
Rules Enabling Act.
i. If there is no FRCP or Federal statute on point (with the issue/subject), we turn to York outcome
determinative test to determine if the court should use federal or state law.
2) Byrd Balancing Test ( NO FRCP or STATUTE ON POINT ):
a. Under Byrd, the court must honour state created rights and obligations and apply state law. However, if the state law
is of form and mode, meaning it is procedural, the federal court may apply federal law. However, if the state law is
designed to regulate primary activity, then the court is likely to apply state law. Thus, to test under Byrd, the court
will ask 3 questions:
i. Whether the state rule is bound up in state created rights and obligations (does it regulate primary activity)?
(APPLY STATE LAW)
ii. The difference in outcome by applying state or federal law as established in the York outcome
determinative test? AND
1. York Outcome Determinative Test (No FRCP or STATUTE on point):
Balanced: may
a. York has established that the judge must apply state law if it is substantive. State law is
result in either
federal or state law
substantive if it is outcome determinative. If using state law would give a completely
being applied.
different result than applying federal law, it is substantive.
i. Ensures uniformity and prevent forum shopping
ii. However, this is somewhat problematic because at some point almost everything
is outcome determinative, but SCOTUS has never expressly overturned this.
iii. Whether there are counterbalancing federal interest in applying federal law. Federal interest include:
1. The degree of intrusion on the federal system if state law is applied; AND
2. Potential disruption of federal court in applying state law (think floodgate of litigation)
3) Hanna Dicta—Twin Aims ( NO FRCP or STATUTE ON POINT ):
a. If a federal court were to interpret the federal rule narrowly, the court may turn to the twin aims of Erie as
established in the Hanna Dicta and applied in Gasperini. The two twin aims of Erie aim to decrease forum shopping
and avoid inequitable administration of justice. Under the twin aims, the court will consider whether applying
federal law would (1) promote forum shopping and (2) increase the inequitable administration of justice.
b. Thus, if the court were to apply federal law and it would cause parties to flock to federal court and give an unfair
advantage to in-state non-diverse citizens, the court will apply state law.
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Discovery
Federal law is fairly liberal about what is allowed during the discovery phase. The idea is to prevent trial ambush, preserve evidence
for trial and to facilitate settlement and summary judgement. Discovery items include documents, tangible items, and electronically
stored information.
-
Under Rule26(g), there is a certification requirement specifically for discovery documents. When an attorney signs a
discovery document, he is certifying the documents are complete and not for improper purposes. This is different that Rule
11 certification.
1) Required Disclosure: the parties have a duty to produce certain information without the other party’s request. Required
disclosures come up 3 times during a case: (1) required initial disclosure, (2) required disclosures on expert testimony, and
(3) pretrial litigation disclosure.
a. Required Initial Disclosures: Rule 26(a)(1)
i. Required initial disclosures must be turned over to the other party within 14 days of a Rule 26(f)
conference. In these documents, the parties must identify people with discoverable information that the
party may use to support its case. Parties must also give copies or descriptions of things the parties may use
to support the case. The key here is that parties only have the duty to disclose this information if the
evidence may be used to support the parties’ case.
1. The π must also calculate damages. The Δ must disclose any insurance he has that may become
important in the case.
b. Required Disclosures on Expert Testimony: Rule 26(a)(2)
i. Expert testimony is required to be disclosed within 90 days before trial. Only under exceptional
circumstances or a medical exam, a party may depose an expert who will not testify at trial.
1. Rule 26(a)(2)(B) requires intermediate disclosures to be a written report prepared and signed by
the expert witness who is (1) retained or specially employed to provide expert testimony in the
case OR (2) whose duties regularly involve giving expert testimony. The disclosures must contain
the following 6 things:
a. A statement of the expert’s opinions and basis for them
b. Facts and data used in forming the expert’s opinion
c. Exhibits used to support the opinion
d. Expert witness’ qualifications
e. List of cases witness was an expert for in the last 4 years
f. A statement of compensation to be paid
c. Pretrial Litigation Disclosure: Rule 26(a)(3)
i. Parties are required to produce EVERYTHING that will be raised at trial within 30 days of trial
2) Discovery Tools: There are 5 discovery tools: (1) Deposition, (2) interrogatories, (3) request to produce, (4) the medical
exam, (5) the request for admission. All of these tools may be used to ger information from parties, however, the big question
is whether we can ger information from nonparties. When using discovery tools, parties are requesting information; this is
not required.
a. Deposition: a deposition is where a deponent, a person whose deposition is being taken, testifies orally under oath.
Depositions are recorded and may be transcribed. Depositions can occur almost anywhere, however, they are
typically done in an attorney’s office or a conference room. Where a deponent testifies, she is answering questions
that are being asked by the parties’ respective attorneys. Under Rule 30, depositions are asked orally. But,
depositions may also be written questions under Rule 31. In this circumstance, the deponent’s answers are oral
testimony under oath recorded by a court reporter.
i. Depositions may be taken from parties OR nonparties. However, nonparties should be subpoenaed or they
do not have an obligation to appear. A subpoena is a court order requiring a party to be present. Parties do
not have to subpoena the opposing party because the party is already under the courts Jurisdiction; thus, the
party should show up or risk sanctions.
ii. Duration is limited to 1 day of 7 hours unless parties agree to more, or court order.
b. Interrogatories: interrogatories are answers written under oath. There is a 30-day period to answer these.
Interrogatories can be sent ONLY to parties. Interrogatories can be used to get background information. Each
interrogatory must, unless objected to, be answered separately and fully in writing under oath.
c. Request to Produce: a request to produce is a written request for access to documents, tangible things, or ESI.
Under Rule 34(c), parties may use this tool to ger information or evidence from parties and nonparties BUT that
party should subpoena the nonparty or the nonparty could deny access, since they are not required without subpoena.
This can also be used to request information from the opposing parties without a subpoena.
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i. Under Rule 34(b)(2)(B), when a party is seeking documents, the other party must make them available to
inspect. A party may object if the discovery is not proper, beyond the scope of discovery, OR seeks
privileged information. The objection MUST specify that the party is not producing the material and state
why they are objecting.
d. Medical Exam: under Rule 35, the party requesting a medical exam MUST request a court order. This discovery
took required the requesting party to show (1) the medical condition in controversy, (2) the request is reasonable,
and (3) good cause.
i. Parties may only get a court order for a medical exam for a party or for someone in the party’s custody or
legal control. Legal control is limited. (Parent-child, NOT employer-employee)
e. Request for Admission: the request for admission asks to admit or deny any discoverable matter. If the party fails
to deny within 30 days, he has admitted. This is only available to parties.
3) Scope of Discovery: Parties may discover nonprivileged information that is relevant to a claim or defense. Relevant means it
is “reasonably calculated to lead to admissible evidence.” The scope of discovery determines how the discovery tools can be
used and what they can get in.
a. What is Discoverable?
i. Under Rule 26(b)(1), parties can discover material that is relevant to a claim or defense and proportional to
the needs of the case. Proportionality compares the parties’ burden to produce the evidence versus the
likely benefit. If the benefit exceeds the burden, then it is proportional. This is up to the court’s discretion.
Relevancy looks at the likelihood of the information to lead to discoverable information. (Includes hearsay
if it will lead a party to relevant information)
b. Privileged Matter
i. Privileged matter is not discoverable, even it if is relevant. Privilege refers to the legal privilege relating to
various relationships and regards confidential communications. When the opposing party requests
privileged information, the party MUST object and state that the information is privileged material.
1. Attorney Client Privilege: Attorney client privilege protects confidential communications between
a lawyer and his client. The opposing party does not have the privilege to discover this
information.
a. When the “client” in question is a corporation rather than a human, it is sometimes
difficult to identify which employees of the corporation can qualify as the “client” for
purposes of attorney-client privilege.
i. Some states use a “Control Group” test: only employees who are high enough
in the corporate hierarchy to seek legal advice and act qualify as “clients.”
ii. Other states use a “Subject Matter” test: lower-level employees can also
generate privileged communications as the “client” if these communications are
necessary for the lawyer to get the information needed to properly advise the
client.
c. Work Product:
i. Work product is privileged. Under Rule 26(b)(3), work product is prepared in anticipation on litigation.
Thus, any material prepared in anticipation of litigation is generally protected. Work product can be
generated by the party itself or any representative of the party. It can be generated by a lawyer, investigator,
secretary, etc. A party must reject an opposing party’s request for work product.
1. Work product is protected to prevent a “free rider” problem.
2. A party may overcome work product if it shoes (1) substantial need and (2) the information is
otherwise not available.
3. Some work product is absolutely protected. Under Rule 26(b)(3), work product absolutely protects
(1) mental impressions, (2) conclusions, (3) opinions, and (4) legal theories.
4. If a party accidentally delivers protected information to opposing side, the party may use the call
back provision to prevent the other side from using it.
d. Electronically Stored Information (ESI)
i. Parties may discover ESI. Parties have a duty to preserve ESI as soon as they become aware of the
litigation. Generally, each side pays to produce their sides discovery but, the cost can be shifted to the other
party seeking discovery by assessing 7 factors:
1. Extend the request is specifically tailored to discover relevant information
2. The availability of such information from other sources
3. Total cost of production compared to amount in controversy
4. Total cost of production v. the resources available to each party
5. The relative ability of each party to control costs and its incentive to do so
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6. The importance of issues at stake
7. The relative benefits of the parties obtaining the information
ii. Sanctions:
1. If a party should have reasonably anticipated litigation and failed to take reasonable steps to
preserve ESI, the courts can: (1) presume the info was unfavorable to the party, (2) instruct jury to
believe the info was unfavorable to the party, or (3) dismiss action/enter default
Expert WitnessesReference Required Disclosures on Expert Testimony
i. Experts are people who, through education or experience, have developed a skill or knowledge in a
particular area. Discovery allows expert witnesses to testify opinions where scientific, technical, or other
specialized knowledge will assist the trier of fact to understand evidence or determine a fact issue.
Generally, experts whose information was not acquired through anticipation of litigation are considered
freely discoverable. There are 4 types of experts: (1) experts expected to be used at trial, (2) experts
retained in anticipation of trial but not used at trial, (3) experts informally contacted but not retained, and
(4) bystander witnesses.
ii. NOTE: Expert witnesses CAN be forced to testify through a subpoena. However, the witness must either
be compensated, OR the court can modify or throw out the subpoena
1. Experts Expected to Be Used at Trial:
a. Individuals who have been deposed before trial to have their opinions presented at trial.
Initial disclosure requires parties to disclose detailed information about experts who will
testify at trial and disclose a report created by the expert.
2. Experts Retained in Anticipation of Trial But Not Used at Trial
a. These are experts retained or specially employed in preparation of trial but not expected
to be used at trial. Unless there is a showing of exceptional circumstance, these experts’
identities are typically not discoverable. Exceptional circumstances include things such
as a very small number of experts in the field and the others being unavailable. Parties
may retain an expert but not use them at trial to evaluate the case in general, educate the
lawyer, etc.
3. Experts Informally Contacted but Not Retained
a. Parties may not discover the names, views, or information of experts in this category.
Courts may have to determine whether an expert is retained on a case-by-case basis by
considering the following.
i. The manner in which the consultation was initiated
ii. The extend of the information or material provided
iii. Duration and intensity of the consultative relationship
iv. Terms of consultation (payment, confidentiality of test data or opinions, etc.)
1. (USE THESE FACTORS TO TEST ALL EXPERTS EXCEPT
BYSTANDER WITNESS)
4. Bystander Witnesses
a. These are experts whose information was not acquired in preparation of trial. Their facts
and opinions are freely discoverable like any other witness. This includes regular
employees not specifically employed on the case AND actors or viewers of occurrences
that gave rise to the suit.
i. i.e., people in the ER, people who saw the accident, employees of a party who
are involved, etc.
ii. employees MUST provide a report if their duties for the company regularly
involve giving expert testimony. If a witness works for the company and their
job isn’t usually to give expert testimony, they are NOT required to provide a
report.
International Discovery
i. Although the US is a CL country most other countries are civil law countries. Basically, the US wanted to
be unique, so we have a unique discovery system. There is no discovery is civil law countries and if there
is, its conducted by courts. Thus, the US has the most discovery devices. This requires the US to have
workarounds to make our discovery system work with other countries systems:
1. The Hague Evidence Convention provides mechanisms for a US court to request judicial
assistance of a country if evidence is located there. The US and over 60 countries are a part of this.
To get evidence through Hague, a court must send a letter requesting to the other country’s
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established authority and the receiving country orders a subpoena to conduct an evidentiary
proceeding. Not efficient, mostly doesn’t work, good luck.
a. Issues with Hague:
i. Sometimes countries will enact “blocking statutes” that will prohibit disclosure
of info in response to discovery request by imposing civil or criminal penalties
(illegal). Parties must show the courts request would violate the blocking statute.
Typically, courts will see if the statute applies, and work around a discovery
request if it does.
4) Enforcing Discovery Rules—Court Involvement
a. Discovery is generally scheduled by the parties. However, when the court needs to ger involved, it may issue orders
to compel parties to make the information discoverable AND may sanction parties. As a general rule, there are 3
ways a court may exercise authority in discovery proceedings: (1) the responding party asks for a protective order,
(2) where the responding party responds incompletely, and (3) where the disclosing party fails completely.
i. Request for a Protective Order:
1. When a party request a protective order, the party is asking the court to protect it because the
discovery order subjects it to undue burden, expense, etc. under Rule 26(c)(1). The court has
discretion here to deny discovery, limit discovery, or deny the motion altogether.
ii. Incomplete Response:
1. When a party fails to respond completely the party seeking discovery will make a motion to
compel under Rule 37(a). This would require the disclosing party to answer the questions if the
court determined the objection to answer is sufficient. If the court finds the objection is not
sufficient, it will make a motion to compel an answer. When the court grants the motion, and the
disclosing party still fails to disclose, the court may impose sanctions under Rule 37(b)(2).
iii. Failure to Respond Completely:
1. When a party completely fails to respond, the seeking party may make a motion for sanctions
under Rule 37(d)(i)(a).
a. Discovery is Enforced by Rule 37 & 36:
i. Failure to disclose or supplement: not allowed to use info unless failure was
justified or is harmless. Court may impose sanctions
b. Failure to Admit:
i. If prover to be true. The party may have to pay other party’s fees unless the
request was objectionable, unimportant, or there was good reason.
5) Conferences and Judicial Management:
a. The Courts Role: In federal court, the court must enter a scheduling order. A scheduling order is a roadmap of how
the litigation will proceed, this tells parties what is going to be done and when it will be done in the time leading up
to the case going to trial. Before entering a scheduling order, a court can request a scheduling conference between
the parties. At some point, the court will enter a scheduling order regardless if there is a conference or not.
b. The Party’s Role: Before a scheduling order is entered, parties are required to have a Rule 26(f) conference. This
requires parties to talk about settlement, discovery etc. During a Rule 26(f) conference, the parties must put together
a proposed discovery plan and submit it to the court. At this time, the parties must also produce required initial
disclosures no more than 14 days before the meeting. The Rule 26(f) conference comes before the courts scheduling
order.
c. Pretrial Conferences: At least 21 days before a Rule 16(b) conference, the parties have to have their Rule 26(f)
conference. After this conference, discovery begins immediately. Within 14 days after the Rule 26(f) conference,
initial disclosures are due. Courts may order conferences and demand the parties attend to monitor the development
of the case. These are called pretrial conferences.
i. Final Pretrial Conferences: After the parties’ finish discovery, courts hold a final pretrial conference
between the parties as one last chance to facilitate settlement. This is used to discuss what issues will be
tried. It results in the pretrial conference order—a roadmap of what will happen at trial. This is to eliminate
surprises. All arguments, evidence, and witnesses will be listed in the pretrial conference order. If a party
fails to put something in the pretrial conference order it cannot be brought to trial unless a judge allows you
to amend.
ii. Pre-Trial Conference: Other forms of discovery may not be used until this meeting.
1. Sanctions by Judge: for lawyers that behave willfully or grossly negligent, the court can file
sanctions against the π
2. Master Sanction Rules for Discovery—Rule 37: loser pays to compel attorney feels unless the
movant filed in good faith and was substantially justified
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Rule 26(g): Sanctions may include an order to pay reasonable expenses including attorney’s fees,
caused by the violation.
Pretrial Conferences and Orders (423)
90 Days
21 Days
D served
or
appears
R. 26(f)
Conf.
R. 26(d):
Discovery
Begins
R. 26(a)
disclosures
R. 16(b)
Sched.
Conf.
14 Days
Adjudication With and Without a Trial or Jury
1) Pretrial Adjudication: Pretrial adjudication occurs before the parties actually go to trial.
a. Motion to Dismiss for Failure to state a claim: Rule 12(b)(6): In a motion to dismiss for failure to state a claim, the
court does NOT look at evidence. Rather, it looks at the complaint on its face. When courts grant a Rule 12(b)(6)
motion, the court is saying that the claim does not belong in the litigation stream at all. When assessing this, the
court uses the Twiqbal pleading standard to determine if the complaint states a claim. Thus, the court (1) ignores
conclusions of law and only looks at allegations of fact, (2) the court asks if the facts alleged support a plausible
claim, and (3) to determine plausibility the judge uses her own experience and common sense.
i. When a court grants a Rule 12(b)(6) motion, it will often give the grant the motion with leave to amend or
without prejudice, meaning the π is free to amend their claim and try again.
b. Motion for Summary Judgement: Rule 56: Parties do not have a right to summary judgement; it is always
discretionary. In a motion for summary judgment (SJ), the court is not letting a case to go to trial because there is no
issue of fact. A party moving for SJ must show 2 things: (1) there is no genuine dispute of a material fact, and (2)
that she is entitled to judgment as a matter of law. The second element is simple to prove; if there is no issue of
material fact, the only question left is a question of law, and the judge can rule without trial.
i. In SJ, the court does look at evidence. The evidence which SJ relies on is proffered by the parties in written
form. This evidence is given under oath and consist of (1) affidavits, (2) declarations, (3) depositions, or (4)
answers to interrogatories. The court may also consider admissions in SJ proceedings. Then, the court will
look at that evidence to determine if there is a genuine issue of material fact. If there is NO issue of
material fact, SJ is appropriate.
ii. This is a clear and convincing standard on summary judgment because a judge has to find a reasonable jury
would find the evidence to be clear and convincing to only rule one way.
1. BIG NOTE: Pleadings are NOT evidence because they are not under oath. Thus, the court may
NOT rely on them when assessing whether to grand SJ.
a. What about when a party admits something in his pleadings OR fails to deny (meaning he
has admitted it?) Because this is an admission, it may be considered as evidence during
the SJ phase.
i. ANOTHER BIG NOTE: A court may grant SJ even if the parties evidence
conflict if a video shows there is no dispute of fact.
2) Adjudication at Trial: Parties go to trial to resolve questions of fact. If there is a jury, the jury will resolve disputes of fact,
the judge resolves disputes of law. The deadline to request a jury trial is 14 days after service of the answer. In cases where a
party has waived their right to a jury, or does not have a right to a jury, the judge will decide issues of fact. This is called a
bench trial.
a. The Right to a Jury Trial: the 7th amendment only applies to civil cases in federal court. In state courts, you follow
the state law. The 7th amendment preserves the right to a jury trial, it does not create or grant it. It also does so only
for cases of law, not equity.
i. The right to a jury today is determined by whether a party would have had a right to a jury in 1791.
Historically, CL England divided their court systems into courts of law and courts of equity. Courts of law
had a jury, however courts of equity did not. To determine whether a party has a right to a jury, the court
will ask 2 things:
1. Is the claim asserted analogous to a claim that existed in 1791?
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a. The answer is usually yes for modern claims.
Whether the remedy sought is one of law or equity.
a. This requires us to know the difference between equitable and legal remedies.
i. Remedies at Law: Parties are seeking compensatory damages. This is money
damages for compensation for the harm the opposing party caused.
ii. Remedies at Equity: Parties are seeking alternative remedies.
1. i.e., injunctions, specific performance, recission, reformation.
iii. Mixed Cases: This is when the parties are seeking both remedies at law and
equity.
1. The court determines the right to a jury factual issue by factual issue
present
2. If a fact issue underlies both claims for legal and equity claims, the
parties get a jury. If the fact issue only underlies some of the claims,
then the π will have a right to a jury for those claims only.
3. Generally, the jury issues (law) are tried first, then the others (equity)
are decided by judge.
The Selection of a Jury: Venire is the group of potential jurors which the actual jury will be selected from. Voir
dire is the process of selecting the jury. Under Rule 48 there is a minimum number of 6 jurors, but no more than 12.
Each juror must participate in the verdict. During this process, the judge has discretion on how to run it. The verdict
must be unanimous and returned by a jury of at least 6 members. It is important to note each party has the
opportunity to challenge potential jurors and ask the court to strike them. If the juror is stroked, he will not sit on the
jury. There are two challenges a lawyer may make during voir dire: (1) challenge for cause, and (2) peremptory
challenges
i. Challenge for Cause: A party has unlimited challenges for cause, however, there are typically done by a
judge. Essentially, lawyers can request a strike for cause, but judges make the final decision. A judge can
strike a juror for cause if the voir dire shows that they cannot be unbiased.
ii. Peremptory Challenge: Peremptory challenges are limited. Parties are initially limited to 3. Peremptory
challenges do not require a party to give a reason or make justifications to strike a juror. However, there are
2 exceptions, a party must have a race and gender-neutral reason for using peremptory challenges because
jury selection is state actioned.
1. Test for determining if a peremptory challenge was improper (Baston Objection)
a. Opponent must establish a prima facie case of discrimination.
b. The burden shifts to proponed of the strike to come forward with a constitutionally
permissible explanation.
c. The court must determine whether impermissible discrimination has been established.
Jury Nullification: This only occurs in a criminal case. This occurs when a jury, based on its own sense of justice,
refuses to follow the law and conflict even though the facts seem to allow no other conclusion but guilt. The idea is
that even if the prosecution offers overwhelming evidence of guilt, the jury can come back with a not guilty verdict
and the judge has no power to override the decision.
Other Controls Over the Jury: The law of evidence is law of censorship; court and parties decide what the jury is not
allowed to hear.
i. Daubert Standard—Expert Witnesses:
1. Before allowing a witness to testify as an expert, the judge decides if the expert is qualified. In
doing so the judge considers, (1) whether the expert is peer reviewed or published, and (2) whether
their theory is generally accepted in the scientific community.
ii. Jury Instructions: parties propose instructions, but the judge selects them. Juries are to decide cases under
the law, not a free-floating “justice.” Nowadays, jury instructions are written down.
iii. Jury Verdict Form: There are 2 types of verdicts a jury can give; General and Special (both may occur @
same time)
1. General Verdict: The jury announced who wins and damages amount, but cannot speak about the
rationale for resolving issues, which helps to prevent appeals and reversals
2. Special Verdict: The court can ask the jury to decide one or more specific fact questions but is not
asked to decide the bottom-line issue of who wins or loses.
iv. Judge’s Comments on the Evidence: In federal court, the judge has power to comment on evidence and
express opinions on factual issues. This gives them a lot of power over the jury because jurors may be
influences by comments, facial expressions, etc. that judges make. This can lead to reversible error.
2.
b.
c.
d.
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v. Juror Misconduct: At common law, a juror could not testify at all. However, under the Iowa Rule, jurors
can testify about their objective, extraneous, or outside influences, but not mental processes during
deliberations (mental processes include drugs).
1. If a juror falsely answers a question in voir dire that would have led to a strike for cause, set aside
verdict.
2. Mental process exception: racial animus
3) Special Motions at and After Trial: Special motions may be made at or after trial. There are 3: (1) motion for judgement as
a matter of law, (2) motion for renewed judgement as a matter of law, and (3) motion for a new trial.
a. Motion for Judgement as a Matter of Law (JMOL): JMOLs fall under Rule 50(a). Formerly referred to as a directed
verdict, JMOLs occur at trial BUT ONLY AFTER a party has been fully heard on an issue. There are situations
when the judge decides the jury does not need to make a judgement and that he will make the judgement. JMOLs
are granted if the judge decides reasonable people could not disagree on the result based on the evidence. JMOLs are
discretionary. Parties can only move for JMOLs after the opposing party has been heard at trial.
i. i.e., π must prove 4 elements but can’t prove the 3rd, so Δ moves for a JMOL. It will be granted if the judge
finds that reasonable people could not conclude the outcome in favor of Δ, since π failed to prove all the
elements (OR VICE VERSA IN RE. TO PARTIES).
b. Renewed JMOLs (RJMOL): RJMOLs are exactly the same as JMOLs except it comes up later. RJOMLs occur
when the judge denies the party’s motion for JMOL, the jury returns a verdict for one side, and the losing party
makes a RJMOL motion. If the court grants the RJMOL, the court will enter judgement in favor of the losing party.
Parties must move for RJMOL within 28 days after the judgement has been entered. To move for RJMOL, the party
must have moved for JMOL after the other side had been heard at trial. If the party did not make a RJMOL motion,
the party has waived its right to it. Courts do this when the court decides the jury reached a conclusion which
reasonable people could not have concluded.
i. i.e., π must prove 4 elements for her claim but fails to bring evidence of the 3 rd element. Δ males a JMOL
motion but judge denies. Jury finds for π. Δ then makes a RJMOL motion and the court will vacate the
jury’s judgement and find in favor of the Δ IF the judge finds that the jury reached a conclusion which
reasonable people could not have concluded because of the missing element.
c. Motion for New Trial: Under Rule 59(a)(1), a party(ANY PARTY) must move for a new trial within 28 days
AFTER entry of judgement. This requires the trial to have already concluded. A motion for a new trial is
essentially a do-over. Courts may grant a new trial if the judge was convinced there was a mistake in the first trial
that affected the outcome. Rather than allow the case to go up to appeal, the court would rather have a new trial.
d. Motion to Set Aside Judgement: Under Rule 60(b) [become familiar will all of 60(b)], a district judge may set aside
judgement that has been entered. The judge may do this for various reasons. A party has reasonable time, but no
more than a year to make this motion. This is fairly rare but is discretionary unless the original judgement is void.
“Mistake, inadvertence, surprise, or inexcusable neglect,” or “any other extraordinary circumstances.”
4) The Preclusion Doctrine: The preclusion doctrine refers to claim preclusion (res judicata) and issue preclusion (collateral
estoppel). Under the preclusion doctrine, there will be two cases. Case 1 will have judgement entered on it already and the
second will be pending, therefore the question is whether judgement from the first case stops (precludes) us from litigating
anything in the second case.
a. What Law Applies: Every jurisdiction has the ability to create is own law on preclusion issues. Thus, there may be
an issue if the cases are in separate judicial systems. Under the full faith and credit clause, the general rule is that the
court in the second case must apply the preclusion law of the first case’s judicial system.
i. Cases Filed in 3 Different States: Under the full faith and credit clause, each state must respect ruling of
judicial proceedings of every other state. So, if a CA court determines claim/issue in Case 2 a VA court
must honor the proceedings and decisions of a CA court in Case 2.
ii. Cases in State and then Federal Court: Same as above. However, in diversity cases, the federal CL of
preclusion is normally the same as the state which the federal court sits.
iii. Cases in Federal and then Federal Court: This is determined by federal CL and the supremacy clause;
same as above.
F1
STATE
STATE
FEDERAL
F2
STATE
FEDERAL
STATE
FEDERAL
FEDERAL
Source
FCC & §1738
§1738
Fed. Common Law;
Supremacy Clause
Fed. Common Law
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b.
Claim Preclusion: Claim preclusion is also referred to as res judicata. Claim preclusion means that if a party has a
claim, the party only gets one case to vindicate it. Parties cannot sue on the same claim twice. When approaching
has claim preclusion issues there are 3 requirements for claim preclusion to apply:
i. The cases must be brought by the same claimant against the same Δ in the same configuration.
ii. The first case ended on a valid final judgment on the merits.
1. Valid means that the court had proper PJ and SMJ over the case.
2. A final judgment means a judgement disposing of a case for Δ or for π.
a. In federal courts, a judgement is final even if an appeal is pending.
3. All judgements are on the merits unless based on jurisdiction, venue, or indispensable parties.
Judgements are not on the merits if court said the case was not ruled on the merits.
iii. The claimant must assert the same claim in the first and second claim.
1. The majority view says a claim is “same transaction or series of transactions.
2. Under the Primary Rights Theory, there is a different claim for each right invaded. There are
These are Minority
different claims for a party’s body than its property. This may allow parties to sue more than once
Views; on exam,
for something out of the same transaction or occurrence.
still analyze all 4
3. Under the Same Evidence Theory, the party cannot bring a 2nd claim if they are using the same
of them
evidence.
4. Under the Same Wrongful Act Approach, if the π tries to bring another suit for a different injury
arising out of the same wrongful act, the second suit will be precluded.
If case fails, claim preclusion does NOT apply, claim may be brought, and case is dismissed.
NOTE: you must bring up all 4 of these theories because jurisdiction based.

c.
Merger and Bar:
o Merger is claim preclusion if the claimant won the first case
o Bar is claim preclusion if the claimant lost the first case
Issue Preclusion: Issue preclusion (IP) is also referred to as collateral estoppel. In IP, there was an issue in Case 1
determined and the same issue comes up in Case 2. If IP applies, the issue will not be re-litigated. However, the
issue will only be taken out; the case may still be litigated. To show IP there are 5 requirements:
i. Case 1 ended on a valid, final judgement on the merits. (Definition later)
ii. The same issue was actually litigated and determined in Case 1.
iii. The issue was essential to the judgment in Case 1.
1. The issue must have been the basis of Case 1’s judgment. If the issue had not been there, the
outcome of the litigation would have been very different.
iv. Against whom is the issue preclusion used:
1. IP can also be used against someone who was a party in Case 1.
2. IP can also be used against someone in privity with the party in Case 1. Privity means represented
by the party.
v. By whom is issue preclusion asserted.
1. Same Party IP allows a party from Case 1 to assert IP unless:
a. There is a potential adverse impact on public interest.
b. The Δ could not foresee multiple suits.
c. The Δ did not have an adequate and fair opportunity to adjudicate.
d. It would be inequitable to treat the Δ different than the rest of the public.
2. Non-Mutual Defensive IP allows non-parties in Case 1 to bring IP if that party is now the Δ in
Case 2 so long as claimant had a full chance to litigate the issue in Case 1.
3. Non-Mutual Offensive IP is when a Case 1 non-party bring up IP to Case 2 as the Case 2 π. This
is not allowed by a majority of courts. However, some courts do allow it as long as it is not unfair,
or there is a “pre-existing substantive legal relationship.” These courts have established the
following fairness factors:
a. The Case 2 Δ had a full and fair chance to litigate in Case 1
b. The Case 2 Δ could foresee multiple suits
c. The Case 2 π could not have easily joined in Case 1
d. There are no inconsistent judgements most important
i. Non-Mutual Defensive IP Example: G gets in an accident with C in E’s car. G
sues for injuries. The court finds for C because G was found to be negligent. G
then sues E for same injuries. Claim preclusion does not apply; not the same
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parties. However, issue preclusion does because; (1) Case 1 ended on a valid,
final judgement on the merits, (2) the same issue was litigated and determined—
G’s negligence and was determined and she lost, (3) the issue was essential—
G’s negligence was reason C won, (4) E is using it against G who was a party in
Case 1, and (5) E is asserting issue preclusion—E ≠ party in Case 1 and is now a
Δ in Case 2. Therefore, IP applies, and issue cannot be litigated.
5) Appeals: There is no federal constitutional right to appeal in civil cases, but there is a statutory right to appeal final
judgements from the federal district court to the federal court of appeals. The only potential for appellate review from the
federal court of appeals is the Supreme Court of the United States (SCOTUS). SCOTUS’s power to review is discretionary; it
can only hear cases it agrees to hear. A party seeking review must request a writ of certiorari to have the court determine if it
will take the case. The purposes of appeal are to assure the law is applied correctly and uniformly, develop CL, share judicial
responsibilities, and ensure that the district court’s ruling is correct and legitimate. As a general rule, there is NO reversal for
“harmless error.” The error must have had a substantial effect on the proceedings
a. The Final Judgement Rule: Under §1291, there is a right to appeal final decisions from US District Courts to the US
Court of Appeals. Final Decision is interpreted to mean final judgements. Therefore, parties can only appeal final
judgements.
i. How to Appeal: A party must first file a notice of appeal in the district court within 30 days of entry of the
final judgement. The district court may extend the time for appeal to 60 days if there is a showing of good
cause or excusable neglect. Courts determine whether the judgement is final by asking “if the district court
have anything left to do on the merits of the case?” If the court does NOT have anything left to do on the
merits of the case, then it is a final judgement, and the party has the opportunity to appeal under §1291
1. Appealable final judgement do NOT include housekeeping matters such as attorney’s fees or
recovery
b. Interlocutory Review: Interlocutory refers to any order that is NOT a final judgement. Parties may appeal for
interlocutory review even though the order it wants reviewed is not a final judgement. There are 4 categories: (1) by
statute, (2) interlocutory review under FRCP, (3) the collateral order rule, and (4) extraordinary writ.
i. By Statute §1291 & §1292
1. § 1292(a) allows interlocutory review of various orders for injunctions because injunctions can
significantly affect the outcome of the case, harm the π, or cause the Δ to have to wait for appeal
2. § 1292(b) allows for interlocutory review. It is appropriate if the district court judge finds (a) the
issue is a controlling question of law, (b) there is substantial ground for a difference of opinions,
and (c) immediate appeal must materially advance the ultimate termination of the litigation. This
required agreement between the district court and the court of appeals. If the district judge finds
these 3 things and a court of appeals agrees, the issue may be reviewed.
ii. Mandamus (Extraordinary Writ):
1. An extraordinary writ is technically not an appeal; it’s a new lawsuit. However, parties are
bringing a new, separate independent action to the court of appeals and are seeking an
extraordinary order. The writ will be directed to the district judge. These are only issued if there is
a district judge acting without jurisdiction OR the district court is failing to do what the law
requires it to do.
a. NOTE: Discovery orders are generally not appealable. However, a mandamus and
contempt citations may be appealable when there is an issue in discovery.
iii. By F.R.C.P.
1. Decertification of a class action is not immediately appealable. FRCP 23(f) gives court of appeals
discretion to hear an appeal on an order granting OR denying certification of a class action.
a. 3 Categories
i. Denial of certification effectively ends case (amount π is seeking is too small).
ii. Grant of certification effectively ends litigation (increases stakes so much Δ
feels need to settle).
iii. Certification issues raises an unsettled legal question that needs clarification.
2. F.R.C.P 54(b) allows a district court to expressly direct final judgement regarding one or more of
the parties or claims in joinder cases. The district court judge is required to make an express
finding that there is no reason for delay. Because all claims against all parties will not be resolved
at this point, the rule is designed to allow courts to enter final judgement on some part of the case
(not all).
iv. Collateral Order Rule
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Civ Pro II (Rensberger Fall ‘22)
Maxim Rodriguez
1.
The collateral order doctrine allows interlocutory review so long as the rulings conclusively decide
an issue separate from the merits of the case and would be effectively unreviewable after final
judgement. This is completely common law, judge made law. This requires the parties to show 3
things:
a. This is an important issue that is separate from the merits of the case
b. The court’s order completely resolves the issue
c. The issue is effectively unreviewable if the parties have to wait until final judgment
2. If these 3 things are true, the court of appeals has discretion to hear that issue
a. These will typically come up when a party has immunity from the suit. This means the
party cannot even be sued. This is common in the 11 th amendment—the state and arms of
the state cannot be sued in federal court for damages.
c. Standard of Review: When parties are at the court of appeals, the court’s standard of review depends on the issues
before it. The court of appeals will affirm discretionary matters unless the district court abused its discretion.
i. Questions of Law: the court of appeals reviews questions of law de novo. This means there is no deference
to what the district court did. The court of appeals is using its own interpretation of the law.
ii. Questions of fact: The court of appeals reviews questions of fact depending on whether the question of fact
was determined by judge or jury. Under Rule 52(a)(6), findings of fact, whether on evidence, must not be
set aside unless clearly erroneous.
1. If the question of fact was determined by the judge, the court of appeals will affirm unless it was
clearly erroneous. Thus, the court does defer to what the district court decided because they are
presumed to be correct.
2. If the question of fact was determined by the jury, the court of appeals MUST affirm unless no
reasonable jury could find as they did (rarely overturned). The court will reverse only if no
reasonable jury would reach the conclusion in review.
iii. Mixed Questions of Law and Fact: The clearly erroneous standard does not apply if resolution of fact
question is based on a misunderstanding of law. However, the clearly erroneous standard applies when a
litigant’s position was “substantially justified.”
6) Alternative Dispute Resolution: Alternative Dispute Resolution (ADR) is any method of resolving disputes without
litigation. ADR typically includes early negotiation, settlement, mediation, and arbitration. Because court dockets are full,
litigation is expensive, and time delays plague litigants, more states have begun to require ADR.
a. Settlement: Settlement results from the process of negotiation. Settlement is agreement that ends a dispute and
results in the voluntary dismissal of any related litigation.
b. Mediation: Mediation is an informal alternative to litigation. Mediators are individuals trained in negotiation, who
bring opposing parties together and attempt to work out a settlement or agreement that both parties accept or reject.
Mediation is not binding.
i. Collaborative Law: Collaborative law is a form of mediation, but lawyers agree to be disqualified from
future representation in litigation if no settlement is reached. There are large incentives on parties and
lawyers to reach an agreement.
c. Arbitration: Prior to the dispute occurring, parties usually enter into a binding arbitration agreement or any other
form of agreement with an arbitration clause, that allows them to lay out major terms for the arbitration process.
Arbitration is conducted and decided by an arbitrator or a panel of arbitrators, not judges. To comprise a panel,
either both sides agree on one arbitrator, or each side selects one arbitrator, and the two arbitrators elect the 3 rd.
During arbitration, the rules of evidence are selected by the parties and there is no discovery unless agreed to by the
parties.
i. Arbitration is privately paid for and is confidential
ii. Under the Federal Arbitration Act (FAA), courts are required to enforce arbitration clauses in contracts.
Before FAA, courts were hesitant in enforcing arbitration clauses. Courts must enforce arbitral awards with
very limited judicial review. State law cannot void arbitration clauses because of the FAA. State laws are
preempted (blocked) if they invalidate arbitration unless they are applicable to “the revocation of any
contract.” FAA states arbitration clauses are “valid, irrevocable, and enforceable, unless law or equity
required revocation of K.” (i.e., fraud, duress, etc. can void the K)
1. When doing this analysis, establish the role of state law (Erie Analysis?)
2. KNOW THE FAA; HE EMPHASIZED IN CLASS
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