Outline of Civil Procedure
Prof. Polikoff – Fall 2009
Table of Contents
I.
Due Process in general ............................................................................................................ 1
b. Requirements to bring a due process claim ......................................................................... 1
Application – ........................................................................................................................ 1
c.
Prior to filing a case – Injunctions and TRO’s ....................................................................... 1
II.
a.
Purpose - Used to prevent irreparable/invaluable actions.................................................... 1
b. Procedure – .......................................................................................................................... 1
III.
Choosing the proper court .................................................................................................... 2
a.
Personal Jurisdiction ............................................................................................................ 2
iii.
Minimum contacts ........................................................................................................ 2
2.
Contacts plus................................................................................................................. 3
iv.
Reasonableness – can sometime outweigh more minimal contacts ............................. 3
v.
Application of state jurisdiction law – .......................................................................... 4
vi.
Defenses........................................................................................................................ 4
b. Subject Matter Jurisdiction .................................................................................................. 4
i.
Diversity (28 USC 1332) – complete diversity and $75k in controversy ....................... 4
ii.
Federal question (28 USC § 1331) ............................................................................... 5
c.
Tribal Court jurisdiction ...................................................................................................... 5
d. Choice of laws (including procedural/substantive).............................................................. 6
e.
Venue – 28 USC 1391 (a for federal question)(b for diversity) .......................................... 6
f.
Forum non conveniens – ...................................................................................................... 7
g.
Removal – 28 USC 1441 ..................................................................................................... 8
IV.
Filing the complaint ............................................................................................................. 8
Well-pleaded/Notice pleading – Rule 8 ............................................................................... 8
a.
b. Service.................................................................................................................................. 9
i.
General standard – ............................................................................................................ 9
ii.
Method of notice ........................................................................................................... 9
iii.
Place of service ........................................................................................................... 10
c.
Joinder rules ....................................................................................................................... 10
i.
Joining parties as plaintiffs ............................................................................................. 10
ii.
Joining parties as defendants ...................................................................................... 10
iii.
Joining claims/supplemental jurisdiction ................................................................... 10
d. Statute of limitations – ....................................................................................................... 11
i
ii.
Relation back – Rule 15.............................................................................................. 11
2. Equitable estoppel rules should be applied to the rules when justice so requires including
allowing for a legal fiction in the case if the same insurance company would pay if the correct
defendant had been named. See Zielinski v. Philadelphia Piers Inc.(common president of the
company that was sued and the one who should have actually been sued but for mistake over a
denial). ...................................................................................................................................... 12
Amending the complaint – Rule 15 ................................................................................... 12
e.
V.
Answering the complaint ...................................................................................................... 12
Requirements on answers – Rule 8 .................................................................................... 12
a.
b. Raising objections, when and how – Rule 12 .................................................................... 12
c.
Moving to dismiss 12(b)(6) ............................................................................................... 12
d. Rule 11 sanctions ............................................................................................................... 12
Filing a counter-claim – Rule 13(a) and (b)....................................................................... 13
e.
i.
compulsory counterclaim ............................................................................................... 13
ii.
Permissive counterclaim ............................................................................................. 14
f.
Filing a cross-claim – Rule 13(g)....................................................................................... 14
g.
Impleading – Rule 14 ......................................................................................................... 14
i.
Third-party plaintiffs ...................................................................................................... 14
ii.
Third-party defendants ............................................................................................... 14
h. Amending the answer ........................................................................................................ 14
VI.
Discovery ........................................................................................................................... 14
Mandatory disclosure – Rule 26(a) .................................................................................... 14
a.
b. Scope in general ................................................................................................................. 14
i.
General scope of discovery - Rule 26(b) ........................................................................ 14
ii.
Depositions – Rule 30................................................................................................. 15
iii.
Interrogatories – Rule 33 ............................................................................................ 15
iv.
Documents – Rule 34 ................................................................................................. 15
v.
Admissions – Rule 36 ................................................................................................. 16
vi.
Mental/Physical examinations – Rule 35 ................................................................... 16
c.
Protected items (privilege/protective orders) ..................................................................... 16
i.
Protective orders - Rule 26(c) ....................................................................................... 16
ii.
Privileges .................................................................................................................... 16
d. Discovery abuse sanctions – Rule 37................................................................................. 17
VII.
ADR ................................................................................................................................... 17
a.
Use in courts generally....................................................................................................... 17
ii
b. Arbitration .......................................................................................................................... 17
c.
Mediation ........................................................................................................................... 18
d. Early neutral evaluation ..................................................................................................... 18
e.
Minitrial/summary jury trial .............................................................................................. 18
VIII.
Summary Judgment – Rule 56(c) ................................................................................... 18
IX.
a.
Jury trial ............................................................................................................................. 19
When a right to one exists .................................................................................................. 19
b. Jury Selection ..................................................................................................................... 19
X.
ii.
Discriminatory strikes................................................................................................. 20
iii.
Overturning a verdict .................................................................................................. 20
Judgment as a matter of law/Renewed judgment (Rule 50) and New trial (Rule 59) .......... 20
XI.
Appeal of Final Judgment; 28 USC §§ 1291-92................................................................ 21
XII.
Execution of judgment ....................................................................................................... 21
a.
Full faith and credit ............................................................................................................ 21
b. Relief from judgment – Rule 60 ........................................................................................ 21
c.
Notice ................................................................................................................................. 22
iii
Outline of Civil Procedure
Prof. Polikoff – Fall 2009
I.
Due Process in general
a. Definition – right to notice and to be heard; founded in the 14th Amendment’s
protection of life, liberty, and property
b. Requirements to bring a due process claim
i. Governmental actor must be involved – in the case of private citizen
actions, this can take the form of court orders authorizing their actions.
See Sniadach v. Family Finance Corporation (wage garnishment for debt
required notice).
ii. Only required to have a property interest – even if loan/lien exists on the
property, due process claims can result from it being taken. See Fuentes v.
Shevin
c. Application –
i. Balancing test used to weight private interest in loss v. governmental
interest in summary adjudication. See Goldberg v. Kelly (holding that
welfare recipients entitled to oral hearing before cutoff given education)
ii. Modern test – 3 part balancing test measuring: private interest at stake,
risk of erroneous deprivation in procedure and probable value of
alternatives, and government interest including burden of additional
procedure. See Matthews v. Eldridge. (government wins because
“unbiased” medical information is main factor in terminating Social
Security disability benefits because poverty not necessarily an issue in
considering private interest in these cases)
iii. Detainees entitled to notice, hearing, counsel, and neutral decision-maker;
hearsay evidence allowed given governmental interest and detainee bears
burden of refutation after government provides evidence of basis of
detention. See Hamdi v. Rumsfeld
II.
Prior to filing a case – Injunctions and TRO’s
a. Purpose - Used to prevent irreparable/invaluable actions
b. Procedure –
i. Must give notice to the other side that you are seeking injunction (where
practical)
ii. Exception to notice is Rule 65b in emergency situations
iii. Notice not required only when: (Fuentes v. Shevin) (repossession of
microwave)
1. seizure must serve an important government/public interest
2. special need for prompt action
3. government official must be initiating and determining that the
expediency is necessary; I.e. Health inspections resulting in
temporary shutdown
Note: contrasted with Mitchell v. T. Grant Company which allowed for
private repossession of refrigerator with judge discretion and bond
post.
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iv. Hearings required within 10 days after TRO without notice or within 2
days of a request by the enjoined party.
v. Rule 65c requires posting of bond to punish frivolousness
vi. Notice must be given of injunction’s issuance for effect
III.
Choosing the proper court
a. Personal Jurisdiction
i. General v. specific
1. General jurisdiction – where a person is domiciled or a corporation
incorporated or where there are substantial and systematic; right to
hear any controversy involving the person/corp
2. Specific jurisdiction – minimum contacts are present and
expectation of suit is reasonable with court allowed only to hear
cases arising out of those contacts (though contacts can be
transferred for example if nails could have been bought in MD but
happened to be bought in VA when sold in both places)
ii. Older forms
1. In personam – serve the person in person in the state gives
automatic jurisdiction (See Burnham)
2. Quasi in rem – property in state could give rise to jurisdiction (See
Penoyer) but no longer the case even through attachment (See
Schaefer v. Heitner) (now need minimum contacts)
iii. Minimum contacts
1. Standard definition
a. Includes business with state, assets, contracts, marketing,
purposeful availment of the market through design or
availment of legal protections of state.
b. Generally continuous and systematic contacts that give rise
to the liabilities sued on. See International Shoe
c. Examples –
i. Location rental and salespeople within a state –
International Shoe
ii. Contracts made by mail with customers in another
state – McGee v. International Life Ins. Co.
(insurance policy made with CA man via mail).
iii. Not enough when based on unilateral action of
customer – Hanson v. Denckla (creator of trust
retired to FL and continued minimal contact);
World Wide Volkswagon (NY buyer drove car to
OK and crashed).
iv. SEC representation office would be enough for
contacts because it exceeds more than the simple
filing requirements of the government and acts as a
business representative. See Wiwa.
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d. Websitesi. Sliding scale of jurisdiction based on level of
interactivity and the business that directly results
from it.
1. On one side, interactive website which the
company uses to do business with
2. On opposite, passive website that merely
conveys information
3. In middle, level of interactivity and
commercial nature are important
ii. Sending login information to customers in PA
amounted to minimum contacts. Zippo Mfg v.
Zippo.com
iii. Contract to upload to Ohio server for business
purposes amounts to contacts. Patterson v.
Compuserv
iv. Promotional materials including data collection
amounts to minimum contacts even when blanket
acceptance. Martiz v. Cybergold.
v. Use of online database does not give rise to
personal jurisdiction in the state where it is located
unless other contacts also present. See Pres-Kap v.
System One
2. Contacts plus
a. O’Connor opinion in Asahi which held that reasonableness
also strong consideration; stream of commerce insufficient
to establish contacts (purposeful availment more impt)
b. Reiterated in Lesnick v. Hollingsworth & Vose where
business partner’s contacts could not be used against other
company (no purposeful availment).
c. Franchise contracts can count as purposeful availment of
parent company’s name, Burger King
iv. Reasonableness – can sometime outweigh more minimal contacts
1. "the defendant's conduct and connection with the forum state are
such that he should reasonably anticipate being haled into court
there” World Wide Volkswagon
2. Weighs burden on plaintiff, interest in plaintiff in choosing forum,
interest of state in adjudication of the dispute, expectation of being
sued in state, and interests of the several states/nations involved.
See Asahi
3. Even if the plaintiff has attenuated contacts with the state, a suit
may be brought there if the defendant has sufficient contacts
because of state interest in protecting citizens. See Keeton v. New
Hampshire (libel case);
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4. Corporations should expect to be sued where a libel injury is likely
to have its end effect. See Calder v. Jones (FL company criticized
CA citizen).
5. International litigants should be especially protected from being
hailed into foreign court but balanced with interest of all litigation
in one place. See Asahi (two Taiwanese companies in tire
business)
6. Choice of law provisions in contract and state of execution can
indicate parties’ expectations of where suit will be brought.
Burger King
v. Application of state jurisdiction law –
a. Application by federal courts – courts will apply the
personal jurisdiction legislation of the state where they sit
b. Long Arm Statutesi. Some go to the limits of the constitution while
others require two step analysis (state limits, then
constitutional limits)
ii. Torts committed within the state – use of public
roads typically is viewed as consent to being hailed
into court in that state.
iii. Contracts written within state – as in Burger King
(adoption of state laws in contract or executing
them there gives rise to personal jurisdiction
especially when high value and long-term).
iv. Torts committed outside causing injury within the
state where minimum contacts also exist.
vi. Defenses
1. Collateral – can refuse to appear in court and later challenge the
execution of the default judgment. Lose ability to litigate on the
merits if default is entered. Note, is not useful where property to
be seized is located in the same state as default judgment.
2. Direct – make a special appearance or raise objection to
jurisdiction in pre-answer motion or in answer (depending on
jurisdiction); can appeal after litigation on the merits.
b. Subject Matter Jurisdiction
i. Diversity (28 USC 1332) – complete diversity and $75k in controversy
1. Citizenship – determined at time of filing (potentially again if
removed)
a. Domicile –
i. Person is domiciled in one location under diversity
law.
ii. Defined as actual presence with intent to remain
indefinitely.
4
iii. Based on property ownership, registrations,
memberships, taxes, employment, past legal
addresses, etc.
iv. Discretion given to trial court in picking which
location is the official domicile. Sheehan v.
Gustafson (contacts in MN and NV).
b. Principle place of business – defined normally as a
company’s headquarters though some states use a multifactor test looking at where most of the business is done.
c. Incorporation – state in which a corporation is incorporated
has general jurisdiction.
d. Amount in controversy –
i. can be pooled only by single plaintiff against single
defendant;
ii. $75,000 in legally possible recovery required
(including punitives);
iii. supplemental jurisdiction allows for other plaintiffs
to bring similar claim against defendant as long as one has
met the minimum amount. See Exxon Mobile v. Allapattah
(oil spill case allowing joinder of plaintiffs)
ii. Federal question (28 USC § 1331)
1. Arise under the Constitution, laws, or treaties of the United States.
a. Claim must be substantially based on the federal statute
b. Statute must create a private right of action or one is
implied (ie. Title IX) (increasingly difficult to prove even
when federal law is broken by the conduct (Cort v. Ash).
Cannon v. University of Chicago Title IX rule, within Cort:
i. Statute must be enacted to benefit a special class of
which plaintiff is a member
ii. Legislative history cannot indicate evidence that a
private right of action was not to be allowed.
iii. No private right of action where it would frustrate
the purpose of the legislation
iv. Whether private action is appropriate within
federalism context.
c. Federal question may not be created through expecting it to
be a defense. Mottley (plaintiff expected federal statute to
be basis of RR company’s defense).
c. Tribal Court jurisdiction
i. Tribal courts generally have jurisdiction where Congress has not taken it
away from them. See Williams v. Lee
ii. Federal legislation has given federal courts the power to hear most major
crimes
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d. Choice of laws (including procedural/substantive)
i. Pre-Erie
1. Federal courts only applied state constitutions, statutes and judicial
interpretations of statutes but not state common law
ii. Erie
1. Now states apply the substantive law of the appropriate state and
federal procedural rules.
2. Designed to prevent unfairness/discrimination of having different
law apply to the same causes of action within the same state based
solely on which court it was brought in by accident of diversity
(federal v. state)
3. Aimed at preventing "forum shopping" and an "inequitable
application of the law"
iii. Substantive v. Procedural Law standard –
1. In applying substantive law, federal courts are supposed to look to
state supreme court for direction or predict how they would rule on
the issue “at the time of filing”
2. Other sources appropriate if issue of first impression
3. Outcome determinativeness test was initially the standard adopted.
See Guaranty Trust; Ragan v. Merchants (statute of limitations are
state substantive law because state created cause of action and its
boundaries; holding still true);
4. Changed slightly in Byrd v. Blue Ridge Rural which held that
federal courts are separate system and their procedural rules based
on own policy and practices should be given deference when state
interest low. (holding that jury trial v. judge not outcome
determinative but speculative at best)
5. Current rule – no more outcome-determinative test. When
Congress and the federal courts promulgate rules of civil
procedure, their rules should be given deference unless there is a
compelling state interest. Basically all Fed. R. Civ. Pro. are
applicable always unless they violate the Rules Enabling Act or
Constitution. See Hanna v. Plumer (holding service procedure in
Fed rules is acceptable even for state claims).
6. Rule only goes beyond allowance if it is abridging, enlarging, or
modifying any substantive right. Key importance of measuring
against concerns of forum shopping and inequitable application of
the law which affects primary conduct outside of the courtroom.
7. Federal rules or statutes including change of venue will take
precedence over competing state ones under federalism. See
Stewart v. Ricoh (enforced federal rule governing choice of forum
clauses).
e. Venue – 28 USC 1391 (a for federal question)(b for diversity)
i. Used to administratively control where suits are brought but is waivable.
6
ii. Each district court treated as a state for determining which would have
personal jurisdiction over a defendant.
iii. Must bring federal case:
1. In district where a defendant resides if all defendants reside in the
same state
2. District in which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated,
3. Or if neither of the above applies, wherever personal jurisdiction
exists
4. Reside is same as domicile for citizens and is anywhere where
personal jurisdiction exists for corporations.
iv. Aliens subject to suit in any district court where personal jurisdiction
exists.
v. If suing the US must sue where:
1. a defendant in the action resides,
2. a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the
action is situated, or
3. the plaintiff resides if no real property is involved in the action
vi. if suing a foreign state, must sue:
1. in any judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated;
2. in any judicial district in which the vessel or cargo of a foreign
state is situated, if the claim is asserted under section 1605(b) of
this title;
3. in any judicial district in which the agency or instrumentality is
licensed to do business or is doing business, if the action is brought
against an agency or instrumentality of a foreign state as defined in
section 1603(b) of this title; or
4. in the United States District Court for the District of Columbia if
the action is brought against a foreign state or political subdivision
thereof.
f. Forum non conveniens –
i. 28 USC 1404(a) - Federal district court allowed to transfer case to any
other federal district court (where case could have been brought) if in the
interest of justice and the convenience of the parties and witnesses
ii. Cannot require a court in another system (ie. State courts) to take a case;
parties must dismiss and refile.
iii. Rules differ by state/federal court.
iv. Test – plaintiff’s choice of forum typically given deference if they are
domestic but court considers:
1. There is an alternative forum that could hear the case
7
2. Hearing the case in the chosen jurisdiction would “establish . . .
oppressiveness and vexation to a defendant out of all proportion to
plaintiff’s convenience”
3. Inappropriate chosen forum because of considerations affecting
courts administrative and legal problems.
4. Private interest factors affecting the convenience of the litigants
balanced against public interest factors. See Piper Aircraft Co. v.
Reyno.
a. Private interests – cost of litigation due to location of
witnesses and evidence
b. Public interests – administrative difficulties from court
congestion, interest in local disputes being resolved locally,
choice of law concerns, and jury duty.
g. Removal – 28 USC 1441
i. Defendant may remove to federal court encompassing the state court if the
case was initially filed in state court but could have been filed in federal
court; even if the eventual court would not be the proper venue.
ii. All defendants must join in petition for removal.
iii. Removal must be filed within 30 days of initial pleading or summons and
before defendants have substantially defended suit.
iv. Exception – defendants may not remove diversity case to federal court if
the case is brought in any defendant’s home state’s courts.
v. Court may split the case or exercise supplemental jurisdiction over state
law issues if brought under federal question.
vi. Removal may be challenged via a remand motion, typically claiming lack
of subject-matter jurisdiction.
IV.
Filing the complaint
a. Well-pleaded/Notice pleading – Rule 8
i. Original rule - Pleadings should only be dismissed where there is proof
beyond doubt that no set of facts would satisfy a cause of action. Plain
statement of claim and relief sought. (Notice pleading) See Conley v.
Gibson (suit by black workers against their union, desire to avoid overly
fact-based pleadings).
ii. When two inferences in pleadings are equally plausible, facts must be
provided to show that desired inference is more probable than not. See
Bell Atlantic v. Twombly (alleged parallel conduct not illegal in itself and
illegal collusion could or could not be the cause; need more facts to
proceed)
iii. Claims do not have to be internally consistent (alternative theories).
iv. Legal conclusions may not be stated in a pleading without allegations of
fact to support them, especially when alleging state of mind to meet
element of cause. See Ashcroft v. Iqbal (accusing AG of detaining Iqbal
based on race/religion; intent not just effect must be shown).
8
v. Technically no higher standard of pleading except in cases of mistake or
fraud. See Leatherman v. Tarrant County Narcotics (§ 1983 suits not held
to higher pleading standard).
vi. Arista Records test for evaluating pleading (Napster-like case involving
students):
1. all facts in complaint taken as true with reasonable inferences.
2. bald assertions or legal conclusions are not credited.
3. court determines whether the complaints factual allegations
possess enough heft to set forth a plausible entitlement to relief.
4. Note: evaluation at least influenced by extent/cost of discovery to
evaluate claims and the interest of copyright owners in this case bc
no alternative method of protection.
b. Service
i. General standard –
1. Rule 4(e) –
a. delivering a copy of the summons and complaint to the
individual personally;
b. leaving a copy of each at the individual’s dwelling or usual
place of abode (multiples may exist as in Khashoggi) with
someone of suitable age and discretion who resides there;
or
c. delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
d. OR follow rules of local state court where constitutional
2. Exception – formal service may be waived by defendant in order to
gain additional time to respond to pleading; used tactically to gain
60 days instead of 20 to respond with answer.
ii. Method of notice
1. Serving someone in person in the state creates personal jurisdiction
there.
2. notice must be reasonably calculated under all the circumstances to
apprise interested parties of the pendency of the action. See Greene
v. Lindsey; Mullane v. Central Hannover Bank (test from Mullane
applied in Greene).
3. State is required to use alternative methods when they are feasible
and customary and more likely to lead to actual notice. See
Greene v. Lindsey (door posting ineffective)
4. State is required to use alternative methods when they know that
their chosen method has failed. See Jones v. Flowers (notice sent
by certified mail returned multiple times)
5. Newspaper – generally least effective method. See Mullane v.
Central Hannover Bank (NY trust fund published appointment of
representatives of investors)
6. Posting on doors – not allowed when known that they frequently
were taken down. See Greene v. Lindsey
9
7. Certified mail – generally ok. See Dusenberry
iii. Place of service
1. Home – one jurisdiction’s interpretation is inidicia of permanence:
remodeling, used as address on bail application, living there at
time. See National Development Corp. v. Khashoggi. (served
housekeeper at remodeled, expensive NY condo when multiple
“homes” existed).
c. Joinder rules
i. Joining parties as plaintiffs
1. Rule 20 permissive joinder - (A) they assert any right to relief
jointly, severally, or in the alternative with respect to or arising out
of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all
plaintiffs will arise in the action.
2. In claims of discrimination, even though alleged acts of
discrimination might have been discrete and separate between
plaintiffs, joinder allowed when all alleged mistreatment under
common system. See Mosley v. General Motors Corp. (alleging
pattern of race and sex discrimination in hiring/promotion).
3. May not bring in plaintiffs who would upset diversity if in federal
court; 28 USC 1367(b)
a. For amount in controversy requirement in diversity suits,
only one plaintiff needs to meet the $75,000 amount in
controversy requirement. See Exxon Mobile v. Allapattah
(oil spill case).
ii. Joining parties as defendants
1. Rule 20 - plaintiff may join defendants provided that the claims
arose out of a common series of acts or transactions and they share
at least one question of fact or law in their claims and does not
negate subject-matter jurisdiction.
iii. Joining claims/supplemental jurisdiction
1. Rule 18(a) – plaintiff may bring as many claims against the
opposing party as he/she wishes once they have at least one proper
one.
2. Once defendant makes at least one proper counterclaim, it may add
any other permissive ones for which supplemental jurisdiction
exists or it independently meets subject-matter jurisdiction.
3. Federal courts able to hear state claims that arise within “one”
constitutional case.
4. Common law precludes bringing state claims against third parties
but overridden by 28 USC 1367 provided that at least one involves
the operative facts of the case.
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5. Supplemental jurisdiction includes claims that involve the joinder
of parties when claims are connected by "common nucleus of
operative facts.” See Gibbs
6. 28 USC 1367(b) - exception for diversity cases; cannot add claims
that would bring in defendants who would destroy diversity. (only
applies when parties are brought in by the plaintiff but not when
brought in through impleader, the plaintiff may not add a claim
against the third-party non-diverse defendant)
7. Cross-claims always fall within supplemental jurisdiction because
they must relate to the original cause of action sued upon.
8. Courts may use discretion in exercising supplemental jurisdiction
over state claims when: 28 USC 1367(c)
a. Claim of first impression
b. State claim predominates over original claim that gave
jurisdiction
c. No other claims still exist over which the court has original
jurisdiction
d. Exceptional circumstances.
9. Court able to split claims within one case if it needs to based on the
statute
10. 28 USC 1367(b)’s limitations only applies to claims brought by
original plaintiffs and not those by third-parties and defendants
against parties impleaded by plaintiff’s
d. Statute of limitations –
i. Based upon state law even if in federal court on state cause of action
ii. Relation back – Rule 15
1. If complaint was filed prior to the expiration of the statute of
limitations but failed to list a claim that has since expired, it may
be allowed if:
a. the law that provides the applicable statute of limitations
allows relation back;
b. the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out — or
attempted to be set out — in the original pleading; or
i. See Moore v. Baker (holding that malpractice from
surgery was not the same transaction as a claim for
lack of informed consent for procedure; timing gap)
ii. See Bonerb v. Richard J. Caron Foundation
(holding that counseling malpractice able to be
added to failure to maintain claim despite different
causes of actions/elements but relating to mandatory
exercise which resulted in injuries).
c. the amendment changes the party or the naming of the
party against whom a claim is asserted, if Rule 15(c)(1)(B)
is satisfied and if, within the period provided by Rule 4(m)
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for serving the summons and complaint, the party to be
brought in by amendment:
i. received such notice of the action that it will not be
prejudiced in defending on the merits; and
ii. knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party's identity.
2. Equitable estoppel rules should be applied to the rules when justice so requires
including allowing for a legal fiction in the case if the same insurance company
would pay if the correct defendant had been named. See Zielinski v. Philadelphia
Piers Inc.(common president of the company that was sued and the one who
should have actually been sued but for mistake over a denial).
e. Amending the complaint – Rule 15
i. May amend once before being served with an answer, OR
ii. With the opposing party’s written consent, OR
iii. With the court’s leave which is granted when justice so requires
iv. See Statute of limitations section regarding adding new causes whose
statutes of limitations have already expired
V.
Answering the complaint
a. Requirements on answers – Rule 8
i. Must either admit or deny each allegation in the pleading unless there is a
lack of information/knowledge
ii. When denying only part of an allegation, the defendant must make it clear
what part he is denying and what he is admitting. See Rule 8b and
Zielinski v. Philadelphia Piers Inc.
b. Raising objections, when and how – Rule 12
i. Must make all motions except for challenges to subject matter and
dismissal for failure to state a claim in pre-answer motion.
ii. May file all defenses in the answer if no other motions were made first
iii. Affirmative defenses must be raised in the pleadings, including damage
award caps or such claims are forfeited. See Ingraham v. United States
(malpractice cap).
c. Moving to dismiss 12(b)(6)
i. Dismiss case through - motion for failure to state a claim, judgment on
the pleadings, summary judgment (see rule standard for this motion).
d. Rule 11 sanctions
i. May claim that the opposing attorney has failed to make an investigation
reasonable under the circumstances as to the contents of the complaint.
See Kraemer v. Grant County (threshold lower when only evidence held
by hostile witnesses/parties)
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ii. Governs the facts that the lawyer must have known at the time of filing,
not just what they put in to their pleading. Frantz v. US Powerlifting
(disregard of previous ruling that conspiracy cannot exist between officer
and corporation).
iii. Lawyer’s signature certifies that document:
1. is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of
litigation;
2. the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law;
standard is that the case has no chance for success Saltany v.
Reagan/Bush. (foreign-policy related suit over bombings).
3. the factual contentions have evidentiary support or, if specifically
so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and. See
Business Guides v. Chromatic Communications Enterprises
(incorrect false seeds in publication never checked by lawyer even
after initial discovery of incorrect ones).
4. the denials of factual contentions are warranted on the evidence or,
if specifically so identified, are reasonably based on belief or a lack
of information.
iv. 21-day safe harbor provision allowing for revocation of challenged
document
v. Client not liable for misstatement of law claims if represented.
vi. Court may exam sua sponte or upon motion of opposing counsel
vii. Oral arguments in support of written submissions are subject to Rule 11
but court not able to consider factors from other cases with same lawyer.
See Christian v. Mattel (lawyer refused to check copyright dates on dolls).
viii. Awards
1. Sanctions for violation no longer include mandatory attorney’s fees
but court may impose either monetary or non-monetary sanctions
2. Request for excessive attorney’s fees may be considered but
should not prevent an effective Rule 11 claim from going forward.
e. Filing a counter-claim – Rule 13(a) and (b)
i. compulsory counterclaim
1. must be made or forfeited and is one in which the claim arises out
of the transaction/occurrence that is being sued upon;
2. Cannot require the adding of a party over which the court does not
have jurisdiction
3. By definition meets subject-matter jurisdiction
4. Res judicata or claim preclusion may be cited if the defendant later
attempts to litigate the claim.
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5. If compulsory counterclaim is not known at the time of service
then it becomes permissive
ii. Permissive counterclaim
1. Any non-compulsory counterclaim
2. May be raised during current litigation or later
3. Must meet subject-matter jurisdiction of the court
f. Filing a cross-claim – Rule 13(g)
i. Defending parties may file cross-claims against other parties on the same
side of the primary complaint.
ii. These claims are by definition compulsory because they arise out of the
same transaction.
g. Impleading – Rule 14
i. Third-party plaintiffs
1. Any defendant in the case may implead another party when they
claim:
a. If they are found responsible to plaintiff, then the
impleaded party will be responsible for the judgment award
b. Based on a theory of contribution or indemnification and
not one of mistaken identity of guilty party
2. Parties may implead as many times as they wish, ie. 4th, 5th, 6thparty plaintiffs and defendants.
3. Impleader must be served within 10 days of answer or with court
permission
ii. Third-party defendants
1. Must make any compulsory counterclaims or defenses in their
answer as a normal defendant and may also crossclaim
2. May also uniquely raise any defense of third-party plaintiff against
primary plaintiff because a judgment against third-party plaintiff
would negatively affect their interests.
h. Amending the answer
i. May amend once within 20 days of serving the answer and the action is
not yet on the trial calendar, OR
ii. May amend with opposing party’s written permission, OR
iii. May amend with the court’s leave which is granted whenever justice so
requires
VI.
Discovery
a. Mandatory disclosure – Rule 26(a)
i. Any evidence that may be used to support party’s own defenses or claims
must be turned over prior to formal discovery.
b. Scope in general
i. General scope of discovery - Rule 26(b)
1. Standard
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a. Originally was "relevant to the subject matter" and
reasonably calculated to lead to the discovery of admissible
information
b. Now court may order discovery in any matter relevant to a
claim or defense - effectively the same as old standard
2. Limitations generally when shown: (Rule 26(b)(2)(c)
a. Before getting court involved in limiting/compelling
discovery, parties must make good faith effort to work out
problem on their own.
b. Discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive
c. The party seeking discovery has had ample opportunity to
obtain the information by discovery in the action, or
d. The burden or expense of the proposed discovery
outweighs its likely benefit considering the needs of the
case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
e. Separate standard for protective orders in order to also limit
discovery. (related to #3)
ii. Depositions – Rule 30
1. Any person may be subject to court ordered deposition, including
potential witnesses
2. Typically constrained by 1 day of 7 hours and once per person
3. 10 depositions allowed without court leave
4. Deponent may object to question but must still give an answer
unless they seek a protective order, cite a privilege, rely on a courtordered limitation, or move to terminate based on bad
faith/unreasonableness of other attorney’s actions (30(d)(4)).
iii. Interrogatories – Rule 33
1. Can serve on any party to the action.
2. The party must object or respond to each question posed.
3. Answers are subject to Rule 11 sanctions because they are signed
documents
4. Served party has 30 days to provide responses
5. Parties typically agree to much higher numbers of interrogatories
between themselves.
6. May produce documents for examination if easier (Rule 33(d), see
Documents below for more).
iv. Documents – Rule 34
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1. Parties either required to turn over the documents themselves
organized in some reasonable manner (typically the one they use
for their business).
2. If burden would be substantial and the requesting party is equally
capable of finding/organizing the data, requested party can simply
tell requesting party where documents exist and give them access
to find/copy, etc information. Rule 33(d) for response to
interrogatories)
v. Admissions – Rule 36
1. Party may ask opposing party to admit to facts in order to
streamline trial based on information from discovery.
2. If party refuses and such refusal is later proved unjustified at trial
then costs may be allocated by the court to the refusing party.
vi. Mental/Physical examinations – Rule 35
1. Must get court order.
2. Standard for granting –
a. Party’s mental or physical condition must be in controversy
b. Rule 26(c) protective order standards used to object c. Protected items (privilege/protective orders)
i. Protective orders - Rule 26(c)
1. Granted by judge to deny discovery depositions or disclosures as
well as to limit scope of discovery (ie. Questions off limit)
2. Must make a good faith effort with other party to avoid protective
order before getting court involved.
3. Standard –
a. Like all motions, must attempt to gain consent from other
party before brining it before the court
b. Designed to protect a party from annoyance,
embarrassment, oppression or undue burden or expense
ii. Privileges
1. General
a. Typically include attorney-client, 5th amendment, work
product, priest-penitent, doctor-patient and in some states
journalist-source
b. Not mandatory (ie. Attorney could choose to testify though
breaking ethical rules which could lead to disbarment)
2. Attorney-client –
a. Does not cover attorney interviews of witnesses. See
Hickman v. Taylor (interview of sinking witnesses)
3. Work-product privilege – Rule 26(b)(3)
a. Privilege applies to
i. Document/thing and,
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ii. Prepared in anticipation of litigation and (need not
anticipate the particular claim eventually filed)
iii. By or for party or representative
b. Unless
i. Substantial need exists and
ii. Cannot get it or substantial equivalent without
undue hardship (witness dead or missing)
c. Intended to prevent attorney from being forced to turn over
their mental processes in strategizing the case and to
prevent attorney’s notes from being used to impeach own
witness
d. Would include deposition of witnesses (provided the other
side is also able to depose the individuals. See Hickman v.
Taylor
d. Discovery abuse sanctions – Rule 37
i. Court may compel disclosure or cooperation in discovery process through
orders.
ii. Refusal to obey court orders for discovery or make mandatory disclosures
can lead to numerous sanctions including: dismissal of complaint,
contempt of court, instruction to jury regarding inference, default
judgment, costs, attorney’s fees for motion, costs for delay, etc.
iii. Court may act sua sponte or on motion by opposing counsel. See
Paramount Communications v. Viacom (criticizing outside attorney’s
behavior at deposition).
iv. Sanctions also appropriate when court rules that a party is abusing the
discovery process for an inappropriate purpose (needle in haystack
approach in some cases)
v. Typically not appealable orders or sanctions because they are not
considered final orders until judgment on the case is issued.
VII.
ADR
a. Use in courts generally
i. Federal statute requires all courts to implement some form of ADR for
parties though does not allow for arbitration to be imposed on parties
without their consent. – 28 USC § 652.
ii. Exceptions – court cannot refer a case to arbitration where dispute is over
violations of constitutional law or where more than $150,000 in damages
is requested (courts cannot mandate arbitration under 28 USC 652). 28
USC 654.
b. Arbitration
i. Positives – fast, less litigation costs, confidential, for corps limits class
actions
ii. Negatives – have to pay for arbitrator, no stare deceisis, added cost for
plaintiffs where fees may be shifted
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iii. Through contract
1. Courts will allow for mandatory arbitration as part of contract
provided that it does not prevent a statute from being enforced and
similar causes being brought in court. See Gilmer v.
Interstate/Johnson (holding that employment discrimination case
could be arbitrated because EEOC could file its own action)
2. Court will not enforce arbitration clauses where there are no
protection for preventing prejudice (ie. Panel selection methods) or
unequal bargaining power. See Gilmer v. Interstate/Johnson
(upholding clause because neither condition met)
3. Court will not enforce when the actions sued upon do not
significantly relate to the actual employment – i.e. sexual
assault/rape especially when away from the workplace. See Jones
v. Haliburton
4. Unconscionabilty and Statutory defenses most common
c. Mediation
i. Individual not empowered to bind the parties but works to facilitate a
negotiation.
ii. Objections – cost, time, unequal bargaining power
d. Early neutral evaluation
i. Panel or particular expert appointed to help identify issues for trial and
suggest strategies for settlement
ii. In some states, panel opinion may be presented at trial or experts may be
called as witnesses by parties
iii. Required ENE has been classified as substantive state law in Florida for
malpractice claims because no prejudice would be created by its use
(panel could not testify and no binding weight to their opinion). Did not
violate 7th amendment because jury always available to parties after ENE.
See Woods v. Holy Cross Hospital.
e. Minitrial/summary jury trial
i. In summary jury trial, panel of people similar to actual jury pool here sped
up version of case to encourage negotiation based on their “verdict”
ii. Minitrial involves litigation before a neutral individual
iii. Some circuits have not allowed for their compulsion under Rule 16 though
some still require it. See Strandell v. Jackson County (lawyer objected to
requirement to disclose witness statements in minitrial when the other side
did not get them during discovery)
iv. Both still take time and expenses, especially if witnesses are presented.
VIII.
Summary Judgment – Rule 56(c)
a. In ruling on the motion, the court may consider the record including complaints,
affidavits, and discovery materials.
b. When appropriate
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i. No general issue of material fact
1. Originally moving party required to show that no way that
plaintiff’s material facts could be proven. Ie. Police officer could
not have been in store to conspire. See Adickes v. S. H. Kress &
Co. (white woman with black kids refused service and arrested)
2. Current standard that moving party has only burden of production
of affirmative evidence (typically through deposition) that no
evidence exists which could support plaintiff’s cause of action.
See Celotex Corp v. Catrett (asbestos exposure to worker alleged
though no proof that company’s products ever used in decedent’s
workplace).
ii. Movant entitled to judgment as a matter of law
1. Judges are not supposed to weigh the evidence or its credibility for
themselves but to decide whether even when facts taken as true by
non-moving party, a reasonable jury could find that they meet the
legal standard. See Anderson v. Liberty Lobby Inc. (no evidence of
the requisite malice presented in libel case).
2. Scintilla of evidence not sufficient to prevent summary judgment.
IX.
Jury trial
a. When a right to one exists
i. Granted under the 6th and 7th Amendments which guarantees a jury in
criminal cases and preserves the common law right to a jury in civil
litigation over $20
ii. Determination of right to jury at CL based on analysis of whether the
matter at the time of the amendment would have been brought in a court of
law (jury) or a court of equity (judge-only). May use analogy for causes
that did not exist at the time.
1. 2 part test from Curtis v. Loether (woman sued under Civil Rights
Act over apartment rental discrimination):
a. Analyze whether claims similar to one that was brought in
court of law or equity;
b. Analyze the type of remedy sought - equitable or one at law
c. Administrative proceedings exempt from this analysis
because of unreasonableness of the imposition of this extra
burden
2. If the test is split then a jury will hear all issues for liability
determination but only the judge can impose an equitable remedy.
3. If civil penalties sought, then must be heard by court of law with a
jury option available upon demand. See Tull v. United States (suit
under Clean Water Act for pollution).
iii. Remedies possible depending on outcome
1. Compensatory and punitive – law courts
2. Restitution, specific performance, injunctions – courts of equity
b. Jury Selection
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i. Use voire dire to select jurors from a venire through the use of strikes for
cause and preemptory strikes.
ii. Discriminatory strikes
1. If one party believes that the other party is discriminating on the
basis of gender or race then:
a. Must make prima facie case of discrimination based on
pattern
b. Other side required to give race/gender-neutral reason for
preemptory strike
c. Judge empowered to decide what the actual reason was for
dismissal.
d. See Edmonson v. Lessville Concrete Co.(race-based
discrimination by private attorney); JEB v. Alabama ex.
Rel. TB (same applies in gender cases, at least with state as
actor).
2. Discriminatory rights is a violation of a juror’s due process right to
serve on a jury
3. Especially sensitive to suspect class discrimination because
attorney’s acting as part of the state process in choosing a state
body (jury), judge is the one who orders a juror’s dismissal, and
the events occur within a courthouse.
iii. Overturning a verdict
1. Typically a jury’s verdict is final in litigation in order to allow for
finality. Nothing which inheres in the verdict is reviewable (i.e.
emotions, mental processes, mistaken belief, etc.)
2. Overt bias on the part of the juror’s however is reviewable because
of the potential to influence other jurors and ability to analyze
objectively. See Powell v. Allstate Insurance Co. (racist remarks
by a number of jurors against plaintiff reviewable).
3. Similar rule applies to judges when sitting as the trier of fact. See
Catchpole v. Rudy Brannon (judge’s condescending tone,
interrogation of only plaintiff, and introduction of his own
evidence violated his role as an impartial decider)
4. When bench trial, objection to discrimination does not need to be
raised at the time of trial because of obvious prejudice that such an
objection could contribute to the case. See Catchpole v. Rudy
Brannon
X.
Judgment as a matter of law/Renewed judgment (Rule 50) and New trial (Rule 59)
a. When moved for
i. Counsel may move for this at any time during the trial phase but normally
at the end of plaintiff’s case or at the end of all testimony.
ii. In order to make a motion to enter judgment contrary to the verdict, the
motion had to first be made prior to the jury’s verdict with renewal within
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10 days (decision may be postponed until after to allow for a verdict in the
record).
iii. A new trial motion must be filed within 10 days of the entering of
judgment and normally is not upheld. Rule 59.
b. Standard
i. Same as summary judgment standard.
ii. If the plaintiff has left open a 50/50 case for inferences necessary for them
to prove their cause of action, judge should not allow the jury to speculate.
(dead cow and hole in the fence case)
XI.
Appeal of Final Judgment; 28 USC §§ 1291-92
a. When judgment is final/appealable
i. Injunctions
ii. Certifications - district court judge finds substantial disagreement on law
and asks appellate court for review which they have discretion to accept.
iii. Final judgment of the case
b. Standard for Appeal
i. Can only appeal application of legal standards
ii. Can only reverse on factual findings if clearly erroneous
iii. Harmless error rule - judge's mistakes not reversible if they did not have
impact on outcome
iv. Hard to overcome abuse of discretion standard in most rules
v. Must typically raise objection soon after transgression or viewed as waiver
of right (except in case of bench trial judge discrimination, see jury sec.)
XII.
Execution of judgment
a. Full faith and credit
i. Issues decided by one court cannot be litigated in another state/federal
court unless challenging the ability of the previous court’s jurisdiction
(personal/subject matter)
ii. Note: may not relitigate personal jurisdiction during execution
proceedings if already litigated in the initial court (can only appeal
upwards)
b. Relief from judgment – Rule 60
i. Basis for relief
1. Clerical mistake – court may correct on its own or on motion as
long as case not docketed with appellate court (in which case
permission is needed).
2. mistake, inadvertence, surprise, or excusable neglect;
3. newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under
Rule 59(b);
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4. fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
5. the judgment is void;
6. 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
7. any other reason that justifies relief.
ii. Timing of motion
1. Must be made within a reasonable time and for mistake, new
evidence or fraud within one year.
2. No time requirement if judgment void for lack of personal or
subject-matter jurisdiction.
c. Notice
i. See notice above, especially Fuentes case for replevin
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