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I. Jurisdiction and Limits on Judicial Power
A. Jurisdiction
1. As a result of British common law tradition, we must begin by explaining why a case belongs
before this particular court.
2. General and limited
a. Most state courts are general. They can hear anything not specifically excluded (probate…).
b. Fed. courts are only courts of limited jurisdiction.
B. Federal Jurisdiction
1. Art. III, Sec. 2: Fed. judicial power shall extend to cases involving citizens of different states.1
2. US Code §1331-61 executes this power.
C. The Case for Jurisdiction
8a: “A pleading…shall contain (1) a short and plain statement of the grounds upon which the court’s
jurisdiction depends…”
1. Personal jurisdiction: Does this court have the power to enforce a ruling on the individuals or
property involved?
a. State criteria include presence, domicile, consent to be sued, business, or tortious acts within
the state.
b. Fed. criteria include territory for service, manner of service (R4), and amenability to suit.
2. Venue
3. Subject matter jurisdiction: Does this court have jurisdiction over the subject matter in dispute?
Fed. courts have s.m.j. if:
a. Federal question (§1331)
b. Diversity of citizenship and cases > $75,000 (§1332)
c. Admiralty, bankruptcy, antitrust, patent, postal, customs, tax, civil rights, franchise or election
cases (§1333-44)
d. US is P or D; or the case seeks to impel US officers to perform their duties (§1345-46, 61)
e. Case involves Indian tribes or insurers of diplomats (§1362, 64)
4. Diversity of citizenship
a. Allowing citizens of different states to sue in fed. court prevents bias.
b. Citizenship means (1) residency in fact; and (2) intent to remain indefinitely.
i. Declarations of intent are relevant, as are exercise of pol. rights, payment of taxes, place of
business…
ii. Residency at the time of filing suit is controlling.
5. 12h: Court must dismiss anytime it lacks subject matter jurisdiction.
D. Reasons for a federal trial
1. Easier to get a jury trial
2. Less partial or otherwise known judge
3. Shorter waiting time to trial
Gordon v. Steele: P a college student in Idaho suing doctors in PA. Since P made novel case for diversity of
citizenship, the burden was on her to prove she belonged in fed. court. Judge trying to keep bar for entry into
fed. courts high, so he used objective and subjective indicia. DB critical, because judge makes his test seem
more objective than it is.
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Also when the U.S. is a party; when the case is between two States; between a State and citizens of another State;
between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
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II. Service of Process.
4: “A summons shall be served together with a copy of the complaint.”
A. Cts. do not require the physical presence of D, or even personal service. Notice must satisfy due
process clause of the 14th.
1. The notice must be reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action. (Mullane v. Central Hanover Bank and Trust Co.)
B. Serve upon individuals (4e) five ways:
1. FRCP
a. personal delivery
b. copies at home/abode with resident of suitable age and discretion
c. deliver to agent appointed by D on his behalf (corporation)
OR
2. State rules:
a. in state where the fed. district ct. is located, 4e1
b. in state where D is actually being served (provided it meets the “reasonably calculated” rule)
3. All or nothing. Cannot mix state rules and FRCP.
C. Waiver of service, 4d
1. Request in writing, 1st class mail, pre-paid way to respond.
2. 30 days to respond to waiver (60 outside US), 4d2f.
3. Carrot: 60 days to respond with answer, instead of 20 (90 outside US), 4d3.
4. Stick: Pay the cost of service if no good cause, 4d5.
D. Timing
1. Suit starts when complaint is filed with the court, R3.
2. Serve with copy of complaint within 120 days of filing, 4c, 4m.
E. Person making service must make proof of service (return of service) by filing affidavit with the
court, 4L.
F. All motions, pleadings, discovery requests and other papers must be served on each party to the
action. Aside from the complaint, they can be served by R5 to attorney.
G. Service of process may be made by any person who is >18 and not a party.
Greene v. Lindsay: Posting of notice on tenants’ door did not satisfy the minimum standards of due process.
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Wall CivPro Outline Page 3 of 36
III. Pleading
A. History of Pleading
1. Common Law: good at defining disputes. Limited parties to single legal/factual theorieswrits.
a. Trespass:
violation of person or property
b. Debt:
to recover sums owed
c. Covenant:
to remedy breaches of written, sealed Ks
d. Ejectment:
to recover land unlawfully occupied
e. Trover/conversion and Replevin: to recover for unlawful takings of private property
f. Assumpsit:
to recover for breaches of informal (usually oral) Ks
g. Writ of mandamus
h. Habeas corpus
2. Equity: good at resolving complex suits involving multiple parties. Used judges instead of
juries. No live testimony; only written depositions. Could compel testimony. Eventually gained
a reputation for being slow and over-lawyered.
a. Trusts
i. created fiduciary obligation and constructive trust
b. Fraud (chancery could rescind Ks; common law just enforced written, sealed Ks)
c. Decrees of specific performance
d. Injunctions
e. Accounting
f. Quiet title or remove clouds from a title
B. Code Pleading
1. Code Pleading
a. requires greater factual detail
b. sufficiency: must identify facts that, if true, would satisfy each of the necessary elements of
the claim
People ex rel. Dept. of Trans. v. Superior Ct. (CA): P’s complaint did not set forth facts constituting a cause
of action. They failed to specify proximate cause, reasonably foreseeable risk, etc. This deprives CalTrans
of possible defenses. P’s lawyer didn’t want to limit himself to one theory. Simply has to amend complaint.
C. Notice Pleading: FRCP
1. must invoke law and related facts to show that P is entitled to relief under the law
a. Note: Final legal theories will be laid out in the pre-trial order.
2. purpose: give D notice; court can see that there’s a need to have trial
a. Note: This is made important by 15c2, which says that amendments must relate back to the
“conduct, transaction or occurrence” giving rise to the complaint. Critical events must be
identified in the plea.
b. Broad good because it doesn’t reveal too much; wait until discovery for details.
c. Narrow good because it forces D to respond in greater detail.
3. P can assert several contradictory theories, because only through discovery will he know which
to pursue.
Haddle v. Garrison: D tries to get P’s §19852 claim thrown out because at-will employment was not
“property,” i.e., failure to state a claim! SupCt ruled that 3rd party tortious interference was one claim, and
firing to deter an employee from testifying was another. Note that Haddle needs the latter to stay in fed.
court. Also, 11b3 give him the leeway to find facts in discovery proving the conspiracy.
 12(b)(6) is normally a trivial barrier, but not in Haddle!
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§1985 was enacted in the wake of the Civil War aimed at those who sought to intimidate newly freed former slaves by
preventing them from the using the courts to enforce newly granted constitutional rights. Among other things, it
prevents conspiracy to deter a person from testifying at trial.
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(Pleading continued)
D. Constraints Imposed on Pleading
1. Ethical Limitations
a. Baseless claims weeded out by 11b.
b. Under 11b, when an attorney or un-represented party to the court, he is certifying that to the
best of his knowledge:
i. It is not presented for an improper purpose, such as harassment, delay or needless expense;
ii. Claim is warranted by existing law or a non-frivolous argument for modifying law; and
iii. The allegations are supported by evidence, or are likely to be supported by evidence after
reasonable opportunity for further investigation or discovery.
Business Guides v. Chromatic Communications Enterprises: A law firm, on behalf of BG, filed a pleading
based on poorly researched claims. (They claimed that a competitor was copying their directories; they
regularly falsified entries to detect copyright violation.) They were both later sanctioned when they claimed
their mistakes were the result of “coincidence.” Should have done the research for the hearing.
2. Heightened pleading requirements
a. Fraud and mistake must be stated with particularity, 9b. Specifically, fraud allegations must:
i. detail the allegedly fraudulent statements;
ii. identify the speaker;
iii. state where and when the statements were made; and
iv. explain why the statements are fraudulent
Olsen v. Pratt & Whitney Aircraft: Olsen alleged that PW had lured him out of its early retirement program
and then fired him. 9b put the burden on Olsen to show that PW was guilty of “deliberate and knowing
misrepresentation.” (He failed to do it.)
b. No heightened pleading requirement for civil rights actions against gov’t officials.
3. Qualified Immunity3
a. No suits against gov’t agents if acting under “reasonable misapprehension of the law.”
b. Whether motion to dismiss based upon a claim of qualified immunity is granted or denied, it’s
immediately appealable.
Leatherman v. Tarrant Co. Narcotics…Unit: D filed 12b6, claiming that actions against civil municipalities
carried a heightened pleading requirement. SupCt said no. (1) This isn’t an exception under 9b; and (2)
There no way for Leatherman to know in advance the adequacy of, say, police training procedures. A
heightened pleading requirement here would mean that this form of action effectively ceases to exist.
c. Leatherman passes on whether a gov’t official can invoke qualified immunity to require
heightened pleading.
42 USC §1983 permits suit against those who act “under color of law” (that is, in some official or quasi-official
capacity) to deprive persons of constitutional rights. The SupCt has said that (a) such officials are liable if their actions
or orders violate constitutional rights, but that (b) they enjoy a “qualified immunity” if those actions took place under a
reasonable misapprehension of the law.
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IV. Prayer for Relief
A. Substitutionary Remedies
1. Compensatory Damages
a. “The fundamental principle of damages is to restore the injured party, as nearly as possible, to
the position he would have been in had it not been for the wrong of the other party.”
(Hatahley)
b. Entitled to replacement cost and lost profit.
i. Requires market in which substitute can be priced (how much would a replacement cost?)
c. P must mitigate damageslimited to the time in which a prudent person would replace.
i. Mitigating damages does not require expenditures a person is financially unable to make.
(Valencia v. Shell Oil Co.)
U.S. v. Hatahley: Gov’t destroyed Indians’ horses. Appellate judge overturned award for lack of evidentiary
support. He individualized pain and suffering damages, and wanted more evidence on lost profit and
replacement cost. DB: The requirement that P prove value of loss creates systematic bias toward
undercompensation.
 When you write the complaint, know what you’re asking for. When building a case at trial, include
all relevant facts (replacement cost, lost profit, mitigation, etc.) in testimony and for the record, so that
these facts are available for oral argument and on appeal.
2. Liquidated Damages
a. Contractual provision setting in advance damages for breach.
b. Limits: Actual damages must be difficult to calculate, and liquidated sum cannot grossly
exceed probable damages of breach.
3. Statutory Damages
a. Statutes sometimes set minimum and maximum damages, ex., copyright infringement
(damages hard to determine), or bad check writing (to offset litigation costs).
4. Punitive Damages
a. Must be in accord with due process clause of 14th.
i. Awards must be judicially reviewable. = Procedural Due Process
(a) Juries might use verdicts to express bias, ex., against big business.
(b) PD pose acute danger of arbitrary deprivation of property.
Honda Motor Co. v. Oberg: Oberg riding 3-wheeler which overturned. Awarded 1 mil. in compensatory
damages and 5 mil. PD. SupCt: Oregon’s denial of judicial review of the size of PD awards violates DPC.
ii. Awards cannot be grossly excessive. = Substantive Due Process. D must receive fair
notice of the severity of the penalty that a State may impose. 3-part test:
(a) Degree of reprehensibility of harm;
(b) Disparity between harm suffered and the PD award; and
(c) Difference between remedies in this and comparable cases
BMW v. Gore: Class action suit for acid rain damages to BMWs. $2 mil. PD award. “Grossly excessive.”
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(Prayer for Relief continued)
B. Specific Remedies
1. Equitable Types
a. Injunctions
b. Constructive trust
c. Rescission or cancellation of a K
d. Accounting
e. Quiet title or remove clouds from the title
2. Legal Types
a. Replevin (to recover personal property)
b. Ejectment
c. Writ of mandamus
d. Habeas corpus
e. Trover/conversion
f. assumpsit
g. trespass
h. debt
i. covenant
3. Injunctive relief:
a. Irreparable injury rule: P must be threatened by some injury for which he has no adequate
legal remedy.
b. 3 kinds:
i. TRO (max. 10 days)
ii. Preliminary Injunction
(a) Relief before the trial itself that protects for the duration of the trial
(b) Balancing act between hardships
iii. Permanent Injunction
(a) Idea of balancing here is BAD and not influential.
(b) Is there a wrongful harm, and is there not a legal remedy for it?
Sigma Chemical Co. v. Harris: Harris leaves Sigma for competitor ICN, violating signed agreement. Sigma
won permanent injunction to prevent Harris from disclosing trade secrets, but would have been better off
with a preliminary injunction.
C. Declaratory Relief
1. Sometimes parties seek a declaration of their rights.
2. Predecessor in equity was action to quiet title or remove clouds from title.
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V. Allocating the Elements
A. Burden of Pleading: who has to bring it up.
1. Sometimes shifted to D, as with qualified immunity.
a. Lack of information: P cannot prove that D acted in bad faith. Only D can prove that he acted
in good faith and under a “reasonable misapprehension of the law.”
2. Fairness, policy and statutory language all affect the allocation of burden of pleading.
Gomez v. Toledo: Gomez ratted out fellow agents. Crim. charges filed against him and he was discharged,
but the charges were dismissed and he was reinstated. He brought suit against his boss claiming his
discharge violated DPC because he was not given a hearing. Ct says burden for pleading qualified immunity
in §1983 rests with D.
Potential problems for Gomez if he has to plead it:
1. There might be a heightened pleading requirement. (Remember: Leatherman took a pass on whether
such a requirement applies to suits against individuals.)
2. Typically the burden of proof follows the burden of pleading. Gomez would have a hard time
proving what Toledo was thinking. Depends on Toledo’s subjective belief.
B. Burden of Persuasion: who bears risk of non-persuasion, if jury can’t make up its mind.
C. Burden of Production: who bears burden of producing evidence at trial.
D. Typically all 3 go together.
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VI. Motions4
A. Can only file ONE pre-answer motion
B. Defenses raised by motion in 12(b):
1. lack of jurisdiction over the subject matter
2. lack of jurisdiction over the person
3. improper venue
4. insufficiency of process
5. insufficiency of service of process
6. failure to state a claim upon which relief can be granted
7. failure to join a necessary party under R19
C. Must consolidate defenses in a motion or you waive them, except for the last two defenses, 12g.
The first defense is always preserved, 12h3.
1. In other words, 2-5 must be made in the initial response (motion or answer). 6-7 may be made at
any time before or during the trial. 1 may be made at any time or on the court’s initiative.
D. Defenses in 12b are directed and based solely upon the pleadings.
E. 12(b)(6)
1. If granted, P can amend under R15. If motion to amend is made and granted before an answer is
served, then P can amend even without leave of the court.
2. Arises when the P seeks relief for acts that are simply not proscribed under current law.
F. After D answers, and pleadings are complete, D can file 12c motion for judgment on pleadings.
1. Motion for judgment on the pleadings occurs just on the face of the pleadings. Suppose the D
admits the key elements in his answer. P moves for 12(c). Can include consideration of
affidavits.
G. 12d requires that all defenses raised in a 12b or 12c motion shall be determined before trial, unless the
court orders them deferred.
H. 12e: Motion for a more definite statement
1. Test: whether complaint give D enough info from which to draft his answer
2. Must be made before an answer (logically)
I. 12f: Motion to strike matter which is “redundant, immaterial, impertinent or scandalous.”
1. It’s like a 12(b)(6) directed at a single allegation.
2. May make a 12(f) to strike an affirmative defense. Like a 12(b)(6), P is attacking the legal
sufficiency of D’s affirmative defense.
J. 12(a)(4)(A): If motion denied, D has 10 days to respond with answer.
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Motion is a request to the court for an order. Comprised of: motion itself; notice of when the motion will be heard;
affidavits, if necessary; memo. of law explaining the motion’s legal basis.
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VII. Answer. R7, 12a.
A. Respond within 20 days after service, 12(a)(1)(a). OR 60 days if waived service, 4(d)(3). OR within
10 days of court ruling on 12(b) motion, 12(a)(4)(a).
B. Must be signed by D’s attorney, 11.
C. 8(b) illustrates various denials. Denials must meet the substance of the complaint.
1. General: each and every allegation.
a. May be subject to a R11 inquiry.
2. Specific: specific paragraph
a. If you are denying only part of a complaint, you must deny with specificity.
Zielinski v. Philadelphia Piers, Inc.: Fork lift collision. Zielinski injured. Sued PPI, which had been sold, so
wrong defendant. PPI issued a general denial, so Zielinski not know he’s got the wrong co. 8(b) requires
specificity, and statute has run (meaning Zielinski can’t simply refile against CCI), so PPI is estopped from
denying that they owned the fork lift.
Note: 15(c)(3), which postdates Zielinski, allows P to amend complaint to charge a new party if it still has to
do with the same conduct. 15(c)(2): If the new party was aware of the action; and if the new party was aware
that it would have been charged if not for a mistake in identity.
3. Qualified: particular portion of a particular allegation
4. Denial of knowledge or information: knowledge or info not sufficient
5. Denial based on information and belief: for large corporate D
D. 8d: Anything not denied is considered admitted.
E. Answers must include affirmative defenses, 8c.
1. Affirmative defense: any new matter or issue not embraced by the complaint
2. They are usually facts within the D’s knowledge. (Gomez v. Toledo)
3. If neglect to plead, can amend under R15 within 20 days
4. Accord and satisfaction, arbitration and award, assumption of risk, contributory negligence,
discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by
fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of
limitations, waiver…
Layman v. Southwestern Bell Telephone Co.: SBT hired co. to go on Layman’s land and install phone wires.
She claims trespass. At trial, they claim easement. The question is why SBT has to plead this as an
afirmative defensecould say that Layman has the burden of proving that SBT is trespassing. However,
because easement is within D’s knowledge (see above), Layman wins. SBT can’t use easement at trial
because they didn’t include it in their answer.
F. Can also counterclaim, R13. P has 20 days to respond with reply.
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VIII. Amendments and Supplemental Pleadings, R15
A. Filing without permission. Can amend once as a matter of course, 15a either:
1. Any time before responsive pleading is served (motions are not responsive pleadings!); OR
2. If no responsive pleading is required, within 20 days after pleading is served.
B. Filing with permission. Courts have broad discretion to grant leave to amend after pleading.
1. “Leave shall be freely given when justice so requires,” 15a.
a. “In the absence of any apparent or declared reasonsuch as undue delay, bad faiththe leave
sought should be ‘freely given’ within the discretion of the court.” (Forman v. Davis)
b. Undue delay, bad faith, repeated failure to cure, prejudice.
2. Leave to amend denied when it would cause actual prejudice to the other party.
Beeck v. Aquaslide Corp.: During discovery they found out that it wasn’t their slide. Can they amend their
answer late in the game? Yes, because they didn’t appear to be acting in bad faith. (It had made attempts to
verify manufacture, but there were good fakes on the market.)
 In absence of bad faith, Ds are allowed to change pleas as justice requires.
C. Amending when new evidence arises at trial, 15b.
1. If no objection, it’s taken as if it were raised in the pleadings.
2. If objected to, allow amendment if it will subserve the merits of the action and won’t cause
prejudice to the other party.
D. Discretion checked by requirement that amendments “relate back” to the date of the original
pleading, 15c.
1. If the statute of limitations hasn’t run, then the amendment relates back, 15c1.
2. If it has, then the new claim must arise from the “conduct, transaction, or occurrence” in the
complaint, 15c2.
E. Relation back test (more or less):
1. Will an amendment disserve the purpose of the statute of limitations?
2. How much does the new claim look like the old claim?
3. To what extent is D prepared to respond to the new claim based on issues raised in the old one?
Moore v. Baker: P complained Dr. hadn’t advised her of alternative therapy. Now wants to amend to include
negligence. Judge denies motion; grants summary judgment. The complaint focused on pre-surgery
consultations; the amendment focused on the actual surgery and post-operative care. Dr. was not on notice
that his conduct during and after surgery would be in play.
 Lesson: Moore’s lawyer should have pled more broadly.
Bonerb v. Richard J. Caron Foundation: P required to play b-ball in D’s rehab. program, and slipped and
fell. P first claims that b-ball court was poorly maintained. Then claims he shouldn’t have had to play while
he was being counseled. Leave to amend granted: It dealt with the same event, namely, his on-court spill.
F. Naming new party, 15c3: Grant leave to amend if:
1. The new party knew about the suit within the 120 days provided for service of D.
2. The new party knew or should have known that, but for a mistake concerning identity, it would
have been named in the action. (I.e., it was on notice, which is the whole point!)
G. Supplemental Pleadings, 15d
1. Court may allow a party to set forth events that occur after the pleading “upon reasonable notice
and upon such terms as are just,” 15d.
2. Court can order the other party to respond to supplemental pleadings, 15d.
a. Get 10 days, or amount of time left to respond to complaint, whichever is longer, 15d.
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IX. Sanctions
A. Lawyer must sign the pleading, certifying “inquiry reasonable under the circumstances.”
1. It is not presented for an improper purpose; 11b1
2. Claim is warranted by existing law or a non-frivolous argument for modifying law; 11b2 and
3. The allegations are supported by evidence, or are likely to be supported by evidence after
reasonable opportunity for further investigation or discovery. 11b3
See Business Guides v. Chromatic Communications Enterprises.
4. Denials of factual contentions are warranted, or reasonably made based on lack of info. 11b4
B. Only an attorney or unrepresented party can make a representation to the court and hence only they
can violate.
1. Advisory Comm. Notes say that the revision permits the court to consider whether other
attorneys in the firm, co-counsel, other law firms, or the party itself should be held accountable
for their part in the violation.
2. Sanctions may be imposed on a party only for a violation by his attorney, and only if the party is
“responsible” for his attorney’s violation.
a.  Rewards good liars. If a party lies and the attorney believes him, then no violation, so no
sanction. Only if attorney finds out and continues advocacy based on unreas. false belief.
C. Usually initiated by another party’s motion, but the court may impose on its own initiative.
1. Safe Harbor: If a party moves for sanctions, it explains the 11b violation. It doesn’t file with
the court initially. It serves the other party first, who has 21 days to fix it, 11c1A.
2. Safe harbor does not apply to Rule 11 proceedings initiated by the court.
D. Standard: Sufficient to deter repetition, 11c2.
1. Most common is monetary fine, paid to court.
2. Also orders to get more training, or pay attorney’s fees (last resort).
E. Appellate Review
1. Three layers, acc. to Cooter & Gell v. Hartmarx Corp (pg. 792)
a. determinations of historical fact
i. What investigation did the lawyer do before filing the complaint?
ii. clearly erroneous standard (Anderson)
b. determinations of legal sufficiency
i. Was the complaint warranted by existing law or a good faith extension thereof?
ii. abuse of discretion standard
c. the fashioning of the sanction
i. abuse of discretion standard
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X. Discovery
A. Automatic pre-discovery disclosures
1. Four categories:
a. occurrence witnesses
b. documents and tangible things relevant
c. computation of damages not privileged or protected
d. insurance agreement
2. Only applies to facts alleged with “particularity.”
3. Timing
a. Within 90 days of appearance and 120 days of service, judge shall issue order for “scheduling
conference.”5
b. Parties must meet at least 14 days before scheduling conference, 26f.
i. Discovery may not take place until after this meeting.
c. 26a1 requires initial disclosures within 10 days after this pre-scheduling conference meeting.
d. 26a1 qualifies with “order or local rule.” Allows judges to accelerate discovery process.
B. All relevant, non-privileged material is discoverable, 26b1.
1. Info doesn’t necessarily have to be admissible, so long as it’s “reasonably calculated to lead to
the discovery of admissible evidence,” 26b1.
Blank v. Sullivan: Females alleged hiring sexual discrim. Wanted evidence on partner process. Discovery
granted, because whether it’s admissible, it’s at least calculated to lead to admissible evidence.
 Relevance is broadly defined, and at the court’s discretion. Is it probative?
Steffan v. Cheney: Steffan resigned from USNA after it recommended discharge for admission of
homosexuality. Challenged regulation. Steffan not discharged for commission of homo. acts. He refused to
answer deposition questions about possible homo. conduct on grounds of relevance and privilege (selfincrimination). Judicial review of an administrative action is confined to the action’s grounds. Hence, not
relevant.
C. Admissions, 36
1. Parties can agree on things in advance, 36.
2. Have 30 days, and then it’s admitted.
3. 3 ways to answer:
a. admit truth of matter
b. deny the matter in whole or in part
c. set forth the reasons why you cannot truthfully admit or deny
4. Admissions are not binding on other or future actions.
5. Why use a request for admission rather than an interrogatory?
a. Request for admission requires an answer, and once answered, the matter is conclusively
est’d. (You can still amend, however, just like R15.)
b. With 33b intg, there’s a max of 25, the D only has to answer to the extent readily known or
available, and what’s answered is still hearsay.
 Admission is better when you know the answer; intg. when you don’t.
D. Interrogatories, 33
1. Only to parties!
2. Service under 5. Mail to attorney, and serve upon every party. Then file with the court.
3. Must supplement intgs under 26e2.
a. Prior responses need only be supplemented if the info. “has not otherwise been made known
to the other parties during the discovery process or in writing.”
4. Pros: Cast a broad net. Early in discovery to flush out info.
5
Service occurs when D has been served or waived service. Appearance occurs when D files some motion or paper,
including an answer or 12(b) motion.
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5. Cons
a. Can’t ask follow-up questions.
b. Limit of 25 (ct. can grant permission to serve more)
c. Questions must be phrased precisely, because lawyers have time to answer them in writing.
E. Objections to Interrogatories
1. Party must state reasons for objection and answer to the extent not objectionable, 33b1.
a. Doesn’t answer rest until objection ruled on by the court.
2. Attorneys and witnesses must sign, 33b2. Return within 30 days of service, 33b3.
3. All grounds for objection must be stated with specificity, 33b4
4. Party submitting interrogatories may move for order compelling discovery, 37a.
F. Depositions, 30
1. You notify via 5b. Mail to attorney. May want to subpoena under 30g because then you don’t
have to pay other’s expenses if there’s a no-show. Usually no subpoena, though, because party
can be sanctioned under 37. Also, what you assert may become fact if no show, 37b.
2. Pros
a. Good preview of future testimony.
b. Depo. is sworn testimony and can be used to disqualify or impeach a witness at trial, 32.
c. Can follow-up with interrogatories and document requests after depo.
d. Can depose witnesses, experts, and parties to the suit.
i. When deposing non-parties must subpoena under R45. Subpoena duces tecum if you want
them to bring documents, records, etc. with them.
3. Cons
a. Limit of 10 (ct can grant permission for more)
b. No person may be deposed 2nd time without permission of ct. or other party
c. Costly
d. Requires in-depth knowledge to be effective  usually done toward end of discovery.
4. Deposition on written questions (31) rarely used.
5. Subpoena, 30g, 45a2.
a. Subpoena attendance through 45a2. Served within 100 mi. of issuing court. Dist. ct. where
the hearing or trial is to be held can ask another court to subpoena her. Then, under 32a, the
depo. could be used at trial under the rules of evidence.
G. Objections to Depositions
1. Objection during deposition shall be stated concisely and non-argumentatively, 30d1.
2. A party may instruct deponent not to answer only to preserve privilege, to enforce a limitation on
ev. directed by the ct., or to present a motion to cease the deposition, 30d1.
a. At any time during a depo., if it appears in bad faith or unreasonably annoying or oppressive,
ct. may terminate or limit under 26c and impose costs under 37a4.
b. If deponent refuses to answer or asserts privilege, opposing party may move for discovery
under 37a2B.
H. Expert Witnesses
1. Must identify all witnesses who may testify as experts at least 90 days prior to trial, 26a2A.
2. Must include a writtten, signed report of expert; exhibits that will be used at trial; the
qualifications of the expert; how much the expert is being paid to testify; other cases in which
the expert has testified. 26(a)(2)(B).
I. Document Production, R34
1. Only applies to parties. Send a Rule 34 request.
a. Documents must be “as they are kept in the usual course of business or…organize and label
them to correspond with the categories in the request.”
2. Also covers places and other tangible things. (Inspection of a factory, vehicle, home, etc.)
3. For a non-party, issue subpoena duces tecum under 45(a)(1)(C).
4. A party can always get a copy of a statement that she gave to the other side.
J. Physical/Mental Exams
1. Only applies to parties. May not conduct exams on non-parties, witnesses.
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a. also those under custody or legal ownership (like children)
2. Requires a special application to the court and a showing of “good cause.”
K. Pre-Trial Disclosure
1. At least 30 days before trial, a list of all witnesses who will be called and the documents,
exhibits, etc. that will be used must be served on other party, 26a3(A)(B)(C).
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XI. Protected Discovery
A. Protective Orders, 26c
1. In weighing whether to grant a protective order, the court considers:
a. the party’s need for the information;
b. the burden and expense of producing it;
c. the potential for revealing facts/details that should stay private;
d. the abuse of discovery, and other factors.
2. The protective order can do the following:
a. prevent disclosure
b. limit or change the method of discovery
c. seal info. that is discovered
d. protect trade secrets
3. Parties must keep log of documents withheld under 26b5.
B. Disclosure Exceptions
1. Excessive requests: The court can limit discovery that is deemed overly burdensome or not
worth the effort to disclose considering its relevance to the trial, 26(b)(2).
2. Privileged information: attorney-client, doctor-patient, psychotherapist-patient
a. Upjohn: Corporation’s attorney-client privilege extends beyond top management.
b. Privileges are NOT meant to block the underlying facts.
3. Attorney-Work Product
a. Documents and other things prepared by a party or a party’s representative in anticipation of
or preparation for litigation are privileged…
i. Only protects documents!
b. Unless other side can show substantial need for the materials and undue hardship in
attaining them by other means.
i. However, the court shall still “protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories” of the attorney or representative.
ii. Redacted using one of the methods in 26(c). Normally parties themselves edit it.
Improper editing can result in sanctions under R37.
c. Representative = lawyer, insurer, agent, consultant, etc.
i. May apply to investigator, too.
d. Covers attorney’s analysis, but NOT the underlying facts.
e. Memos, materials, etc. that are prepared to AVOID litigation (to resolve the problem without
litigation) are discoverable.
f. Circumstances when witness statements will be discoverable:
i. “fresh and contemporaneous” account, while he is available to the party seeking discovery
only a substantial time thereafter
ii. witness may reluctant or hostile
iii. witness may have a lapse of memory
iv. witness probably deviating from his prior statement
Hickman v. Taylor: Hickman submits interrogatory to Taylor asking for statements made to Fortenbaugh,
Taylor’s lawyer, by survivors of the tugboat wreck. Is it AWP? Yes. Note, however, that if the witnesses
had died or forgotten things, then it might still be discoverable. Hickman predates and  26(b)(3).
Θ1: Suppose Taylor is deposed, and asked about information relating to Fortenbaugh’s interviews. NOT
protected. Attorney-client privilege only covers things the client tells the attorney, not the other way around.
Θ2: D prepares memo for trial (in the presence of his lawyer). Memo is protected, but D can be deposed and
questioned about the facts in the document.
 The rule protects the documents, but not the facts!
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4. Non-Testifying Experts, 26b4
a. NOT discoverable if retained in anticipation of litigation, unless…
b. Only discoverable upon showing of “exceptional circumstances”
i. See below 2 cases. In one they make such a showing, and in the other they don’t.
c. Unretained experts who were informally consulted (but not paid)nearly impossible
Thompson v. The Haskell Co.: P alleging sexual harassment to EEOC. P wants a protective order under 26b4
for psych. exam documents. Ct says that even if 26b4 applies, D has made a showing of exceptional
circumstances: No comparable report exists, and it is impossible to obtain similar info. by other means.
Exam took place right after the incident in question, but long before P filed suit.
Chiquita International Ltd. v. M/V Bolero Reefer: Chiquita sues shipper, BR, for cargo loss and damage. BR
wants order compeller CI surveyor’s file and deposition. Ct says that BR was not precluded from sending its
own surveyor to the scene. BUT: CI must produce the part of the surveyor’s file which is not his
observations and opinions, i.e., any discoverable evidence provided him by others.
5. Deposing Non-Testifying Experts
a. Much the same rules as before. Their facts and opinions, whether by deposition or
interrogatory, are obtainable only upon showing of exceptional circumstances.
b. Their advice for litigation strategy is not deposable. (Like work product, mental processes to
prepare for trial not discoverable. Differs, though, because their opinions are deposable.)
C. Discovery Abuse
1. Signature Requirement: no unsigned discovery request is honored, 26g.
a. Signature requirement assures that the discovery request is:
i. not made to harass, 26g2B
ii. in compliance with the rules of discovery, 26g2A
iii. not unreasonable, 26g2C
b. Also indicates that information supplied is correct after reasonable inquiry at the time, 26g2.
2. Stonewalling
a. Court can compel with an order under R37 (see below).
3. Evasive or incomplete answers are treated as failures to disclose, 26a.
Chudasama v. Mazda: Ps in car crash. Claimed product liability and fraud. Judge fails to rule on repeated
requests under 26 and 37 for protection and compulsion. Mazda incurs heavy sanctions for failure to
disclose. Mazda able to appeal immediately because the dist. ct. certified the order for interlocutory review
under §1292(b). (Very raresee section on final judgment rule.) App. ct. vacated sanctions because of
judge’s ineptness.
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D. Discovery Orders and Sanctions
1. A party may move for an order compelling discovery, 37.
a. If order is granted, court can also order:
i. Treat the disputed fact as established, 37b2A
ii. Prevent use of evidence that was abused in discovery, 37b2B
iii. Strike part of pleadings, dismiss an action or enter a default judgment, 37b2C
iv. Attorney’s fees, 37b2
v. Judge can tell jury about party’s failure to disclose.
vi. Contempt proceedings
b. If denied, the court may enter a protective order under 26c and impose fees on movant.
2. Sanctions may result from:
a. Failure to comply with an order, 37b
b. Failure to disclose or false or misleading disclosure, 37c
c. Failure to attend a deposition or serve answers to interrogatories, 37d
3. Sanctions usually apply only if party has violated court order for discovery, except burdensome
discovery abuse, 26g.
4. 37d and 37g allow some sanctions for misbehavior
5. 26g allows attorneys’ fees for unjustified requests and refusals even when not in violation of a
court order.
6. R16 gives the parties the option of convening a discovery conference with the judge if problems
arise not specifically contemplated by the FRCP.
7. Mandatory sanctions:
a. For failure to make automatic disclosure or perform duty to supplement
b. Unless these failures are harmless, they will not be permitted to use evidence concerning any
witness or information not disclosed.
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XII. Pretrial
A. Preliminary relief
1. Preliminary Injunctions
a. “One moving for a PI assumes the burden of demonstrating either
i. a combination of probable success and the possibility of irreparable injury; OR
ii. serious questions are raised and the balance of hardships tips sharply in his favor.” (Inglis)
 This helps parties that can show irreparable harm but can’t show that they’ll probably
win on the merits.
b. Court must balance the rights of both parties: What if the PI is granted, but the D wins? What
if the PI is denied, but P wins? A judge must attempt to avoid the lesser of these two evils.
i. Moving party usually supposed to post bond, but this doesn’t work well. By definition,
these are cases where $ is inadequate damages.
c. PIs are appealable; they are treated as a ‘final judgment.’ 28 USC §1292(a)(1) allows
interlocutory appeals from orders granting or refusing injunctions. = ability to appeal
immediately.
d. In addition to PIs, there are attachment and garnishment.6
William Inglis & Sons Baking Co. v. ITT Continental Baking Co.: Inglis wants PI against bread companies;
claims below-cost pricing. Dist. ct. uses 4-part test, and denies PI because it doesn’t think he’ll win the case.
App. ct. overrules, because dist. ct. ignored 2nd test above (fair chance of success and irreparable harm).
DB: Both tests laid down by App. Ct. focus on harm done to P. What about harm done to D?
Θ: Assume bakery is going to go out of business.  This shouldn’t affect our thinking. If bakery is not
entitled to relief, and is not likely to get relief, then it should go out of business.
2. Due Process
a. “No PI shall be issued without notice to the adverse party,” 65a1.
b. Except in unusual circumstances, prejudgment seizure of a debtor’s property without notice
and an opportunity for a hearing is unconstitutional (Fuentes).
c. Security deposit is incentive not to abuse this tool, 65c.
i. Fails to adequately compensate a party for damages resulting from erroneously awarded
temp. relief.
ii. Not a substitute for due process hearing.7
d. 14th prevents only a state from denying due process. Self-help repossession, when it can be
accomplished without a breach of the peace, is o.k.
Fuentes v. Shevin: Fuentes bought stove and stereo from Firestone on installment. Stopped payment in
dispute over service of stove. Firestone filed repo. action in small-claims court. Before Fuentes received a
summons, Firestone got a writ of replevin8 ordering the sheriff to seize the items. SupCt ruled that bond
requirement was no substitute for hearing.
6
Attachment involves seizure of property. Garnishment involves asking a 3 rd party not to pay the D money.
What’s the concern? If the seizure is wrongful, the P can always get damages. DB: Should be careful. It’s different
when the guy taking your stuff has a gun and a badge, esp. if he breaks down your door to do it.
8
Replevin is available only because Firestone has a security interest in the items. This is cheaper than suing. Firestone
would have to prevail at a hearing and then get a writ of attachment for the sheriff to seize it. Also, there may be other
creditors, and certain jurisdictions protect items unless you have a security interest in them.
7
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3. TRO
a. Can be granted without notice if it can be shown that serious loss would be suffered before the
adverse could respond, 65b1.
b. TRO lasts 10 days and then must be re-heard.
c. Party seeking TRO should show that it tried to serve other party (or that doing so would have
caused irreparable harm), 65b2.
i. Ex parte TRO is granted when such a showing is made.
d. Security: The party seeking temporary relief needs to put up money to cover damages to other
party in the event that the TRO is later found to have been damaging to them w/o merit, 65c.
e. TROs must clearly state what behavior and parties are controlled by the TRO, 65d.
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XIII. Judicial Management of Litigation
A. Pretrial Conference
1. At his discretion, the judge may order a pretrial conference to facilitate the case, 16a.
2. “If appropriate, the court may require that a party or its representative be present or reasonably
available by telephone in order to consider possible settlement of a dispute.” 16c
a. Added b/c of doubts about cases like Lockhart.
b. The concern is shotgun settlements compelled by judges who will eventually hear the case as
a bench trial (conflict of interest).9
3. Rule 37 Sanctions: If a party or his attorney fails to obey a pretrial order, or fails to appear at a
scheduling or pretrial conference.
a. whatever is “just,” 16f
Lockhart v. Patel: Judge imposes sanctions for insurer’s failure to send an appropriate authority to a
settlement conference. Later rescinds after much ass-kissing.
Sanders v. Union Pacific Railroad Co.: Sanders busy with other case and missed deadlines. Law clerk ran
pretrial conference. Sanders requested more time. Judge dismissed with prejudice, presumably because
Union Pacific has already tipped their hand. 9th Cir. overturns dist. judge’s ruling b/c lawyer didn’t have a
chance to present his side of things.
B. Pretrial order
1. Judge issues a “scheduling order” within 120 days after filing of the complaint, 16b.
a. Summarizes admissions of facts, lists witnesses, narrows the issues to be litigated. It is
binding during the rest of the litigation.
b. Modified only to prevent manifest injustice, 16e
i. This contrasts the flexibility with which one can amend pleadings, 15 (leave freely given
where justice so requires).
2. Lockhart and Sanders deal with procedural matters: attending a settlement conference and
participating in scheduling and other pre-trial matters.
3. McKey deals with a substantive point: what sort of claims we may raise at trial.
a. In code pleading, legal theories have got to be covered in the pleadings. Under notice
pleading, the legal theories are really established in the pre-trial order.
McKey v. Fairbairn: McKey wants to amend the pre-trial order, adding a claim about violation of DC
housing regulations to the common law negligence claim. Ct. says no. Opposing party hasn’t had time to
prepare an adequate defense. (In this case, D knew of regulations, so amending the order might not have
been unfair, but perhaps the ct. just wants a set rule.)
9
Another concern is the reviewability of these actions. For instance, in Lockhart, the default judgment meant that the
trial would only be on damages. Patel can’t appeal until then, because the default judgment is not a ‘final judgment.’
Plus the appellate court will only consider whether the trial court “abused its discretion,” which is tough to prove.
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XIV. Summary Judgment
A. Timing
1. P can file for SJ 20 days after commencement of the action, or after D files SJ motion, 56a.
2. D can file for SJ at any time, with or without supporting affidavits, 56b.
3. The motion must be served at least 10 days before the hearing, 56c.
4. SJ only occurs before trialafter the pleadings or during discovery.
B. Process
1. Court goes behind the pleadingseven if it appears from the pleadings that the parties are in
dispute on some material fact, SJ may be granted if the movant can show that the disputed
factual issues are illusory.
2. Hence, the party opposing the SJ cannot rest upon its pleadings, 56e.
3. Materials: The parties can support and/or oppose SJ motion by submitting affidavits,
depositions, answers to interrogatories and admissions.
a. Affidavits
i. must be made based on personal knowledge, 56e
ii. based on facts admissible at trial, 56e
iii. sworn or certified copies of all papers referred to in affidavit must be attached, 56e
iv. good faith: A party that is found to have made affidavits in bad faith can be ordered to
pay costs, and can be found guilty of contempt if an attorney, 56g
b. Fruits of Discovery
i. depositions, interrogatory answers, admissions, 56e
4. Partial SJ may be granted with respect to certain claims in a lawsuit even when it is not granted
with respect to all claims, 54b.
5. SJ is rare in federal cases. Used to refine pleadings; eliminate among multiple claims those for
which P can’t meet her burden.
6. SJ can be made multiple times. [Though it seems it wouldn’t be, if Baird says it’s rare.]
C. Standard: “There is no genuine issue as to any material fact and…the moving party is entitled to
judgment as a matter of law.” 56c
1. All matters in the SJ motion are construed most favorably to the party opposing the motion.
2. Test: Could a reasonable juror find for the nonmoving party?
3. “The standard for granting SJ mirrors the standard for a directed verdict under FRCP 50a….”
(Rehnquist in Celotex)
4. Test 2: A judge may be restrained with an SJ when there’s a right to a jury trial, because there
might be credibility issues that a jury can and should determine.
a. Is this a case for a jury trial?
b. Is demeanor evidence significant?
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(Summary Judgment continued)
D. Burden of production
1. The SJ cannot properly preview a trial unless the burden on SJ remains the same as if it were to
go to trial.  The party that will have to prove the issue at trial has the burden of showing the
factual dispute at SJ. (Celotex)
a. If D files SJ motion, he must merely show that the existing record contains no evidence that
the other side will be able to prove an essential element of the claim. (Celotex)
b. If P files SJ motion, P must prove that all elements of the claim can be supported, such that
there is no “genuine issue as to any material fact.”
Celotex v. Catrett: P (Catrett) has got to prove that he was exposed to D’s asbestos (Celotex). This is the
burden of proof he bears at trial, and so he has the burden of proving a disputed material fact here for the SJ
motion. Catrett failed to produce any evidence that showed a Celotex product was the proximate cause of his
injuries, though, so dist. ct. granted SJ. Ct. App. reversed. SupCt reinstates dist. ct. granting of SJ.
Visser v. Packer Engineering Associates: An excellent example of the principle in Celotex. Visser alleges
that he was fired, in violation of the Age Discrim. in Employment Act (ADEA), to prevent him from vesting
his pension. Packer files SJ. Visser essentially made Packer’s case for him, by proving that Packer fired
Visser b/c he was a vindictive individual. May be dirty, but it’s not age discrim. Posner: Witnesses’ pop
psych. of Packer doesn’t get us anywhere.
Note: Contrast Visser and Haddle. Similar facts, but totally different legal issues. Haddle has difficulty
crafting a legal claim. Visser has a statutory legal claim, but he can’t prove it.
E. Difference between 12(b)(6) and 56
1. 12(b)(6) assumes the facts are true, and tests to see whether the claim is legally sufficient.
2. SJ tests the validity of the factual allegations (with all truly disputed facts left to trial) to see if
the claim can be proved.
a. It does not try the facts! It only looks to see whether material facts are in dispute.
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XV. Judicial Recusal
A. §455(a): “Any judge…shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.”
1. “The standard…for a §455(a) recusal is whether the judge’s impartiality could be questioned by
a reasonable, well-informed observer….” (Wood in Hatcher)
2. §455(a) allows waiver of conflicts.
B. §455(b): “He shall also disqualify himself in the following circumstances:”
1. personal bias or prejudice, or personal knowledge of disputed evidentiary facts
2. was once a lawyer in the proceeding; worked with someone who has; is a material witness
3. expressed an opinion about the merits of the particular case
4. spouse or child has a financial interest in the matter
5. spouse or child is party to the proceeding; lawyer; material witness…
C. §455(b) does not allow waiver of conflicts.
In re Jeffrey C. Hatcher, Sr.: Hatcher was named in indictments against the Gangster Disciples, one of
Chicago’s biggest street gangs. He moved to have Dist. Judge Kocoras recuse himself. Kocoras’ son, while
a 3L, had participated in a related case against one of the other gang members. 7th Cir. said that Kocoras’
watching his son at trial did not satisfy §455(b)(1) standard; further, not the same “proceeding,” so
§455(b)(5)(ii) not apply. However, should recuse himself under §455(a), because the proceedings are so
similar.
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XVI. Jury Trial
A. Right to a Jury Trial: 7th Amendment: “In Suits at common law…the right of trial by jury shall be
preserved.”
1. Historical principle (Chauffeurs v. Terry): In 1791, equity claims arose only when the legal
remedy was inadequate. Hence there is a right to a jury trial when:
a. The claim is one which would have been tried in a British common law court in 1791; OR
b. When the claim has an adequate legal remedy.
2. Testing new claims against the historical standard: Examine both the nature of the claim and the
remedies sought.
3. The more important test is the inquiry into the remedy.
4. Terry fits a pattern: For most newly created claims that seek monetary damages as a remedy, the
Court has found a right to jury trial under the 7th.
5. Exceptions when monetary damages  legal relief
a. accounting
b. monetary damages incidental to injunctive relief
c. restitution
d. breach of trust
Chauffeurs et al. v. Terry: Terry et al. sued the union for breach of its duty of fair representation (failing to
prosecute their grievances against trucking co.). This is a new cause of action where the 7th Amendment is
concerned, because collective bargaining was illegal in the 18th c. Nature of the claim is up for grabs;
however, the backpay being sought is not restitutionary. Hence, = legal relief  Terry gets jury trial.
6. Mixed legal/equitable claims: (Beacon Theatres v. Westover)
a. Where there are both legal and equitable claims in the same case, the trial judge must
ordinarily try the legal claims first.
b. The factual/legal determinations are controlling on the subsequent equitable action.
Res judicata.
c. Only if the party asserting the equitable claims would be irreparably harmed by having these
claims delayed until after hearing of the legal claims, can the court hear the equitable claims
first.
Amoco Oil Co. v Torcomian: Amoco owned service station. Torcomians claimed they had been promised a
franchise by Amoco and had taken over the previous owners. Amoco denied having made such a promise.
Amoco wanted ejectment and injunctions. Torcomians wanted damages and injunctions on a compulsory
counterclaim.10 Ct. held that dist. ct. erred in denying Torcomians a jury trial. Per Beacon, the ejectment and
damages claims should have been tried to a jury. The jury’s factual determinations then would be controlling
on the subsequent bench trial on injunctive relief.
7. Administrative agencies
a. 7th Amendment doesn’t prohibit Congress from taking certain issues out of court and placing
them in an administrative proceeding, thus denying the right to a jury trial where one would
otherwise exist. (Atlas Roofing v. OSHA)
8. Declaratory relief
a. By itself, neither legal nor equitable. It is the underlying issues which control whether there is
a right to jury trial in a declaratory judgment suit.
10
The counterclaim is compulsory because it arises out of the same transactions and occurences that are the subject
matter of Amoco’s claim, 13a.
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(Jury trial continued)
B. Process: 38(a): “The right of trial by jury as declared by the Seventh Amendment…or as given by a
statute of the U.S. shall be preserved to the parties inviolate.”
1. Either party can demand a jury trial no later than 10 days after service of last pleading, 38c.
a. If demand made without specifying on which issues, it’s assumed to be a request for jury trial
on all issues, 38c.
b. If one party demands jury trial on some of the issues, the other party can demand on the
remaining issues, 38c.
2. Demand must be in writing and conform with 5d. (38b)
3. Failure to demand trial by jury within 10 days of service of last pleading waives the right, 38d.
4. Demands for jury trial cannot be withdrawn without consent of all parties, 38d.
C. Examples
1. Jury trial
a. age discrimination (by analogy to fair labor standards act)
b. fair labor standards (by statute)
c. Title VIII
2. No jury trial
a. admiralty and maritime claims (specifically excluded by 38e)
b. bankruptcy (challenges have gone both ways)
c. patent (traditionally used juries, but changed in 1996 for functional reasons; easier and more
accurate for judges to determine)
3. Unclear
a. Title VII employment discrimination
i. cases seeking reinstatement are tried by judges, because they seek equitable relief
ii. cases seeking compensatory damages get jury trials by Congressional amendment
iii. cases seeking back pay may not get jury trial11
D. Juries
1. Jury size
a. common law: 12 jurors
b. SupCt constitutionalized 6-person civil juries in 1973 (Colgrove v. Battin)
i. widespread use in fed. courts and some states
2. Verdict
a. common law: unanimous
b. fed: still unanimous, unless the parties agree to accept a nonunanimous verdict, 48
c. Some states permit 2-3 opposing votes on a 12-person jury.
3. Reexamination clause
a. 7th Amendment: “No fact tried by a jury, shall be otherwise reexamined in any Court of the
United States, than according to the rules of common law.”
b. Courts’ power to disturb civil jury verdicts has increased.
11
The original statute lumps it in with equitable relief. (Note: Restitution is normally counted as equitable relief.)
Congress distinguished back pay from compensatory damages in its amendment.
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E. Choosing Juries
1. Most jurisdictions statutorily require that jury selection pools represent broad cross-sections of
the community. 28 USC §1861 et seq.: “…fair cross section of the community”
a. Processes are laid out in USC §1863-64 and §1866.
b. No discrimination against potential jurors based on race, color, religion, sex, national origin,
or economic status. 28 USC §1862.
2. Voir dire: Questions or questionnaires put to the jury pool by the judge (with lawyers’ input) or
lawyers. Sets the stage for challenges for cause and peremptory challenges.
a. Challenging a verdict based on inaccurate answers on voir dire: To get a new trial, party must
show that “a juror failed to answer honestly a material question on voir dire” and that “a
correct response would have provided a valid basis for a challenge for cause.”
(McDonough Power Equipment v. Greenwood)
3. Challenging for cause
a. Lawyers can request. Judge has discretion to exercise. §1870 and 47(c).
b. Court looks for straightforward bias (i.e., knowing a party to the suit). Used sparingly.
4. Peremptory Challenges
a. 28 USC §1870 gives each side 3 peremptory challenges (more if alternates are selected), but
can get more, 47(b).
b. In a fed. 6-person jury, all of the initial 6 can be replaced via peremptory.
XVII. Controls on Jury Verdicts
A. Directed Verdict/Judgment as a Matter of Law (JML), 50
B. Judgment Notwithstanding the Verdict (JNOV)
C. New Trial, 59
______________________________________________________
XVIII. Directed Verdict/JML
A. Effect: Takes the case away from the jury, and determines the outcome as a matter of law, 50a.
B. Timing
1. D can move for a directed verdict at the close of P’s case.
2. Either party can move for a directed verdict after both sides have rested, 50a.
3. Motion for JML should specify the grounds for the moving party’s claim.
4. If you don’t move for a directed verdict at the close of all the evidence, you cannot get a
JNOV, 50b. ALWAYS make it!
a. The first time through it serves as a warning to the P so he can fill in the gaps or rectify glaring
mistakes.
C. Standard
1. Fed: No legally sufficient evidentiary basis for a reasonable jury to find for the party on that
issue. [Same as SJ: Could a reasonable juror find for the nonmoving party?]
2. Whether, without weighing the credibility of the witnesses or otherwise considering the weight
of the evidence, there can be but one conclusion as to the verdict that reasonable men could
reach.
3. The evidence must be viewed in the light most favorable to the nonmoving party, AND
4. The nonmoving party must be given the benefit of all reasonable inferences which may be drawn
in his favor from the evidence.
5. Naked statistical evidence alone will not support a judgment at law.12
12
We disallow naked statistical evidence (and inference therefrom) because we are made uncomfortable by a legal
system which admits and broadcasts its doubt.
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(Directed Verdict/JML continued)
D. Standards in Practice
1. Lack of preponderance of the evidence: If the party that has the burden of production fails to
produce a preponderance of the evidence to support its case, the court should direct verdict/grant
JML motion to the other party.
Reid v. San Pedro, Los Angeles & Salt Lake Railroad: Reid’s heifer strayed onto the tracks, either through an
open gate or a hole in the fence, and was killed. If it went through the fence, the RR’s liable; if through the
gate, not liable. Since the cow was found close to the gate, and more than a mile from the fence-hole, a
preponderance of the evidence supports RR’s case. Nothing for the jury to decide! Nevertheless, the trial ct.
submitted it to the jury; they returned a verdict for Reid; App. Ct. sets aside and orders a DV for RR.
2. Failure to meet burden of proof/production: If facts support two possible outcomes, then the
party with the burden of proof can have a JML granted against it.
Pennsylvania Railroad v. Chamberlain: Chamberlain fell onto tracks and was killed. Alleged RR caused
collision between strings of cars (alternative is that he simply fell). All the employees save one said no
collision. Bainbridge said he heard a loud crash; turned shortly after and saw the 2 strings moving together.
Trial ct. granted DV for RR; App. Ct. reversed; SupCt sides with dist.ct.
SupCt: There is no conflict over facts. Bainbridge didn’t see a crash. The question is what inference to
draw. “Where proven facts give equal support to each of two inconsistent inferences…judgment, as a
matter of law, must go against the party upon whom rests the [burden of proof].”
E. 12(b)(6), 12(c), SJ, DV, JNOV…
1. 12(b)(6) is just the P’s pleadings: Are these allegations worth proving?
2. 12(c) is both of the pleadings
3. SJ includes the fruits of discovery: affidavits, answers to interrogatories, admissions,
depositions, etc.:
Can these allegations be proved?
4. SJ is a preview of DV
5. JNOV is a delayed DV
6. Note: Ct. is more likely to grant JML than SJ.13 Pre-trial, court hasn’t heard testimony, and the
support offered for the SJ motion (affidavits and other “paper” evidence) won’t necessarily
convince the judge that there is no dispute over facts.
XIX. JNOV
A. Timing: In order to be renewed as a JNOV motion, it must be filed within 10 days of the jury’s
verdict, 50b.
B. Standard: Same as DV/JML/SJ: The judge must find that the jury’s verdict was unreasonable as a
matter of law.
C. Judges Prefer JNOV
1. If the court directs a verdict, and then is reversed on appeal, the entire case will have to be retried b/c the jury has already dissolved without having reached a verdict. In waiting for the
JNOV, the reversal on appeal means that the original verdict stands.
2. Courts don’t want to deal with JML until they have to.
13
It is likelier still to grant a JNOV than a JML. (See below.)
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XX. New Trial
A. Timing
1. A party can file a motion for a new trial within 10 days of the court’s entering the jury’s verdict,
59b. Or within 10 days of judge’s verdict if it’s a bench trial.
2. The court can order a new trial within 10 days of the jury’s verdict on its own initiative, 59d.
a. Court must state grounds for ordering a new trial.
B. Grounds for New Trial
1. Error
a. improperly admitted evidence
b. mistaken jury instructions
i. To seek new trial on grounds of erroneous jury instructions, the party must have objected
to the instructions at the time they were made.
2. Verdict against the Weight of the Evidence
a. Trial court looks to things like the credibility of witnesses (unlike JML/JNOV motions, where
court assumes witnesses are credible).
3. Juror Misconduct
4. Prejudicial Conduct by Party, Witness or Counsel
5. Newly Discovered Evidence
6. Excessive or inadequate verdict14
C. Standards
1. New jury trial: “For any of the reasons for which new trials have heretofore been granted in
actions at law,” 59a1.
2. New non-jury trial: For any of the reasons an equity court would have granted a rehearing, 59a2.
3. Harmless error: “A new trial may not be granted “unless refusal to do so appears to the court
inconsistent with substantial justice.”
D. Appellate Review
1. Error
a. Review is de novo. App.ct. not hesitant to overturn, b/c it’s just as good, if not better, at
deciding questions of law.
2. Verdict against the Weight of Evidence
a. Review is abuse of discretion. App. cts. are reluctant to disturb new trial motions here, b/c
trial judge has had the opportunity to assess witnesses’ credibility, etc. However: Lind.
Lind v. Schenley Industries: Lind says he was promised a huge promotion and pay increase. D claims that
Kaufman never said this stuff; and that Kaufman didn’t have the power to do it and bind SI. Lind wins.
Judge grants Schenley JML and, in the alternative, new trial. Says verdict was against the weight of the
evidence. Lind appeals. 3rd Cir. reversed and reinstated jury verdict. Jury determined what testimony it
believed. Trial judge abused his discretion by substituting his own judgment.
Sophisticated: Legal question as to whether under NY law, Kaufman  have the power to bind Schenley.
AppCt: Question of whether Kaufman had the power to bind Schenley is best left for a jury. Sounds like a
legal question, but it’s more about the impression left by Kaufman in Lind’s mind. As it turned out,
Kaufman didn’t have the power; however, if company has done things to make it appear that Kaufman had
the power to bind it, then company is liable (“cloaking” doctrine). So question is whether reasonable person
in Lind’s position would infer from company’s conduct that Kaufman had these powers?  jury question!
E. Jury as Black Box
1. Tanner v. US: “By the beginning of this century…common-law rule flatly prohibited the
admission of juror testimony to impeach a jury verdict.” Codified in Fed. R. Ev. 606(b).
2. Robles v. Exxon Corp.: Receiving testimony from jurors after they have returned for their
verdict, for the purpose of ascertaining that the jury misunderstood its instructions, is absolutely
prohibited by FRE 606(b).
14
See below for additur and remittitur.
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Peterson v. Wilson: §1983: generic civil rights case. Peterson’s job at a state institution is property, and
property may not be taken away from him without due process. Judge finds out post-trial that jury had no
idea what it was supposed to do, and orders a new trial. The case is re-tried and ended in a jury verdict for
Wilson. And yet we throw out the good verdict for the crappy one. 1st jury is not outrageous, i.e., it’s not
possible that no reasonable jury could decide this way.
 Want a system with clear, definite signals. Don’t want a system which advertises its uncertainty.
We know that there are uncertainties in juries’ deliberations, but nothing is gained in the long run
through inquiring into them.
XXI. JNOV and New Trial Rulings
A. Conditional ruling
1. If the JML motion is granted, the court shall also rule conditionally on the new trial motion, 50c.
2. If the JML is reversed on appeal, and the trial judge conditionally granted the new trial motion,
then the new trial occurs automatically, unless the appeals court specifies otherwise.
3. If the JML is reversed on appeal, and the trial judge did not grant the new trial motion, then the
original jury verdict is reinstated.
B. 4 possibilities:
1. Deny both.
a. App. ct. may order either JML or new trial. Result: Judgment entered for P.
i. Immediately appealable
b. CA can:
i. agree with both decisions. Result: affirm judgment for P.
ii. agree with JNOV, disagree with NT. Result: order NT
(a) Not likely if the attack on the verdict is factual: The JML is never granted where
there is any substantial evidence in favor of the verdict winner. New trial motion
will also lose, b/c trial judge is a better arbiter.
(b) If error of law is basis, App. cts. have substantial latitude in granting JML or new
trial.
iii. disagree with JNOV decision. Result:
(a) CA can grant JNOV and enter judgment for D.
(b) Grant JNOV and let P motion for a new trial which the trial court would decide.
(c) CA can hear motion from P for a new trial and make decision themselves.
2. Deny JNOV, grant new trial.
a. Since no final judgment, no appeal. (Sec. 1291—no appeal until final judgment).
i. At end of new trial, P wins. Then D can appeal
ii. At end of new trial, P loses. Then P can appeal original grant of new trial.
3. Grant JNOV, conditional denial of new trial.
a. App. ct. may reinstate the verdict or order a new trial
b. App. ct. may reverse JML and NOT order a new trial. Great for verdict-winner.
c. App. ct. may affirm JML.
4. Grant JNOV, conditional grant of new trial.
a. App. ct. may reverse, and the judge’s new trial order almost always controls.
b. App. ct may affirm JML, and so no need for new trial.
C. Summary
1. Appellate courts do not hesitate to reverse JML decisions. These simply present legal questions.
2. They are reluctant to disturb grants of new trials. Here the issues are much broader, factual.
Trial judge had the opportunity to judge credibility of witnesses.
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XXI. Conditional New Trials
A. Judge may find the jury’s verdict excessive or inadequate, but wish to avoid, if possible, ordering a
new trial.
1. If P thinks the judgment is inadequate, he may move for a new trial under Rule 59, which allows
a new trial “on all or part of the issues.” Here the issue would be the damages.
B. He may therefore conditionally order a new trial. The new trial will occur unless
1. The plaintiff agrees to a reduction of the damages to a specified amount (remittitur); OR
2. The defendant consents to an increase in the damages (additur).
C. Remittitur is fine. SupCt says additur violates 7th Amendment.
1. Some states still use additur.
2. [Part of the difference stems from Honda v. Oberg, BMW v. Gore, maybe? Desire to protect Ds
counterbalances 7th Amt. question…]
D. The usual test for determining the amount of remittitur is reduction of the verdict to the highest
amount that the jury could have properly awarded.
E. If P accepts the remittitur, he may not thereafter appeal the order.
XXII. Bench Trial
A. R52: “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless
clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the
credibility of the witnesses.”
B. In a bench trial, the judge finds the facts and determines the law.
C. On appeal, the App. ct. defers to the trial judge on questions of fact. Hence, Rule 52. There’s little
deference to the trial court on conclusions of law.
1. Test for “clearly erroneous”: “The reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
D. When we would have a trial without a jury?
1. No right to jury trial exists.
2. All parties have waived the right to a jury trial.
XXIII. Jury Instructions, Rule 51
A. Giving: “At the close of the evidence or at such earlier time during the trial as the court reasonably
directs, any party may file written requests that the court instruct the jury on the law as set forth in
the requests.”
B. Objection to: “No party may assign as error the giving or the failure to give an instruction unless that
party objects…before the jury retires to consider its verdict….”
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XXIV. Appeal
A. Timing
1. 30 days; 60 days to file against US
2. Time limits are jurisdictional. App. ct. won’t hear untimely case unless good cause or unless
dist. ct. granted extension b/c party didn’t know judgment was final.
B. Who Can Appeal?
1. Adversity
a. With multiple claims, if the rejected claim would have entitled the appealing party to more
or different reliefto a different judgmentthen appeal lies.
i. “Adverse” judgment: judgment granting relief different from what one requested
b. Exceptions to the “adverse” principle
i. When a rejected theory will have collateral consequences.
ii. When relief is granted in the alternative, the decision is adverse insofar as it denies the
relief sought.
c. Party may cross-appeal that part of a case in which he suffered an adverse judgment.
d. Mootness: Can’t appeal when changing circumstances have made relief no longer possible.
i. Exception: When the question is likely to recur and appellate review is needed.
e. Parties who settle may not appeal.
2. Waiver
a. A party must present to the trial court the contentions on which it wants rulings.
b. Failure to do so results in waiver of the contentions.
c. Parties are required to preserve pre-trial objections at trial.
d. New arguments on appeal
i. An appellant cannot on appeal use an argument not made below.
ii. An appellee may use a new argument in support of the judgment.
(a) Attack reasoning of lower court
(b) Call attention to a matter that lower court overlooked or ignored
iii. Same on cross-appeal: Can only raise arguments made at trial.
iv. If a change in law is sufficiently fundamental, it may be allowed.
v. “Plain error” rule: Where trial judge’s decision is contrary to elementary substantive
legal rules, failure to object not bar attack on appeal. (Rare.)
e. Erie: A court may decide on a basis not raised by the parties. (But a party still can’t argue an
issue he didn’t raise.)
f. Subject matter jurisdiction may be raised by anyone for the 1st time on appeal.
3. Harmless error: Ct. ignores errors that do not affect the substantial rights of the parties; that
aren’t detrimental to the case. Rule 61.
C. Standard of Review
1. Fact: “clearly erroneous.” Rule 52(a).
2. Law: de novo
Anderson v. Bessemer City: Dist. ct. found Ms. Anderson had been discriminated against contrary to Title
VII15 by city in hiring for Recreation Dir. position. 4th Cir. concluded clear error and reversed. SupCt sides
with dist. ct.; reverses 4th.
 A “finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been committed.” (White
citing US v. US Gypsum Co.) There were two plausible competing interpretations of the facts, and the 4th
shouldn’t have simply opted for the other one.
 SupCt has expressed impatience with appellate courts that “cheat” on the abuse of discretion standard by
applying it too stringently. (GE v. Joiner. Trial court refused to allow experts to testify. 11th reversed, and
SupCt reversed 11th.)
15
Civil Rights Act of 1964.
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D. Why have appeals?
1. Appellate jurists better at law; we let them review legal questions, but not factual ones
2. Consistency; ex., SupCt reconciles divided Circuit Cts., etc.
3. The more who look at it, the better the odds we’ve gotten it right (app. judges sit in panels)
E. Appealing a Victory?
1. Θ: Judge excludes some of our testimony. We win anyway. D appeals. What do we say?
a. Again, we support the verdict.
b. But we also argue trial judge erred in excluding some of our testimony.
2. AdCommNotes (116)**“The verdict-winner, as appellee, besides seeking to uphold the
judgment, may urge upon the appellate court that in case the trial court is found to have erred in
entering judgment on the verdict, there are grounds for granting him a new trial instead of
directing the entry of judgment for his opponent.”
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XXIV. Finality on Appeal
A. 28 USC § 1291
1. Appeals lie only from final decisions of the district courts.
a. Final decision “ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment.” (Catlin v. US)
b. Final judgment rule. Treated jurisdictionally  each court required to raise the matter on
its own initiative. See Wetzel.
Liberty Mutual Insurance Co. v. Wetzel : P (Wetzel) claimed that LMI’s employee insurance benefits and
maternity leave regulations violated Title VII of Civil Rights Act. W moved for partial summary judgment
on issue of liability56(c). Ct. amended its order under 54(b) to include words “final judgment.” However,
none of W’s prayers for relief were granted. LMI appealed to 3rd Cir., which held that it had authority under
§1291 and affirmed. Goes to SupCt:
1. Even if Dist. Ct.’s order is treated as a declaratory judgment, relief still unresolved. Not final judgment.
2. 54(b) not apply. It applies only to multiple claims actions, where one or more but not all of the claims
have been decided. W here has only one claim of action: violation of Title VII.
3. §1292(a)(1) not apply. Grant of partial summary judgment is interlocutory, and since issues of relief
remain unresolved, was not final. Also, ct  grant an injunction, so no appeal there under §1291(a)(1).
4. §1292 not apply. Assuming DistCt’s language was certification for interlocutory review, LMI did not
apply for such review within the required 10 day period.
2. Finality principle is nearly universal.
a. New York has formally rejected the final judgment rule.
B. Discretion Standards
1. 54(b) requires that, before a judge enter final judgment on one of multiple claims, he make “an
express determination that there is no just reason for delay.”
2. Interlocutory review under §1292(b)
a. A trial judge may certify that an order involves “a controlling question of law as to which
there is substantial ground for difference of opinion” and that “an immediate appeal from the
order may materially advance the ultimate termination of the litigation.”
b.  Interlocutory appeal is allowed if requested within 10 days.
C. Moment of Judgment
1. Must file notice of appeal within dist.ct. within 30 days (60 v. US).
2. Fed.R.App. 4(a): When a party appeals an order that would be final except for a pending posttrial motion (JNOV, new trial), appeal is held in abeyance until their disposition.
3. Judgment is final when:
a. R58: set forth on a separate document
b. R79(a): clerk enters on the docket
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XXV. Exceptions to the Final Judgment Rule
A. Practical Finality: Cohen collateral order doctrine
1. Collateral order doctrine: small class of orders too important to be denied review.
2. Three conditions:
a. conclusively determines the disputed question
b. resolves an important issue completely separate from the merits of the action
c. is effectively unreviewable on appeal from a final judgment
i. the right asserted is one that is essentially destroyed if its vindication is postponed until
trial is completed
Lauro Lines v. Chasser: Ps sued airline in NY for hijacking. LL moved to dismiss: forum-selection clause
on ticket required suit be filed in Naples, Italy. Trial ct. denied motion. Without moving for certification for
immediate appeal pursuant to §1292(b), LL appealed. 2nd Cir. dismissed appeal as interlocutory. SupCt
affirms.
1. Dist.Ct. order denying motion to dismiss was not a decision on the merits that ends the litigation.
 Not a final judgment.
2. Fails collateral order doctrine: It’s reviewable on appeal.
Baird: Analogize forum-selection appeal to absolute appeal: must have the right resolved definitively at the
outset of the case, or the right becomes irrelevant/nonexistent. Analogy is too compelling. Any meritorious
pre-trial claim which would lead to a dismissal would mean a right not to stand trial.
B. Injunctions
1. §1292(a) allows appeals from interlocutory orders of district courts “granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions”
2. Does apply to PI.
3.  apply to TRO, because of short duration: 10 days under R65.
C. Interlocutory Appeals
1. §1292(b) permits dist.ct. to certify interlocutory appeals from nonfinal judgments.
a. must be requested by party within 10 days of certification.
2. Order must involve “a controlling question of law as to which there is substantial ground for
difference of opinion” and “an immediate appeal from the order may materially advance the
ultimate termination of the litigation.”
3. Appellate court must agree; it has discretion.
4. Have seen §1292(b) interlocutory review in Inglis and Chudasama.
D. Writ of Mandamus
1. Orders public official to perform an act required by law. Includes judges of lower courts.
2. “Only exceptional circumstances…will justify…this extraordinary remedy.”
(Kerr v. US)
a. VERY rare, but most used when trial judge has denied a jury trial
3. Have seen in Hatcher, Lindland, People ex rel. v. Dept. Trans.
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XXVI. Alternatives to Litigation
A. Mediation
1. Mediators have no power. Shadow of civil action may be enough.
2. Goals: communication and dampening of unjustified optimism
3. Options:
a. Summary jury trial. Provides perspective to the parties on their case.
b. Sharing published reports of similar jury verdicts and settlements
c. Telling stories to a neutral thrid party; figuring out settlement ranges.
4. Labor mediation has long and distinguished history; family law urging mediation over litigation.
B. Arbitration
1. Unlike mediation, it has teeth. Arbitration award can be enforced in court.
2. Parties can design their own procedure.
a. Arbitration may depart dramatically from legal process
b. Ex., baseball arbitrator, who must pick one of the parties’ offers (no splitting the difference).
Why would you force the arbitrator to choose one or the other? Forces parties to be more
reasonable in their bids. Tending toward the extreme means you lose.
3. Parties may control the applicable substantive law.
4. May be faster, cheaper, more private.
5. May insist that arbitrator disclose neither the existence of a dispute or his decision.
6. Get a more experienced decision maker.
a. Eliminate the vagaries of a jury.
7. Enforcement
a. Fed. Arbitration Act, 9 USC §2 et seq., allows for enforcement of arbitration agreements in
fed. courts.
b. SupCt has required state cts. to enforce arbitration agreements even when they contravene
state law if the underlying transaction involves interstate commerce.
Lindland v. U.S. Wrestling Assn.: In arbitration, Lindland is claiming that US Wrestling didn’t use the right
procedures to determine his grievance. (He’s not asking the arbitrator to determine whether the initial match
was refereed properly.) Arbitrator agreed with him, and ordered a new match. The question for a court is
not whether the arbitrator acted sensibly. The only question is whether the arbitrator exceeded the power
given her. Court is utterly indifferent to whether Lindland deserved the rematch. Question is simply whether
the arbitrator had the power to grant the rematch. He did. Lindland goes to the Olympics.
DB: Notice that the only ‘alternative’ thing about dispute resolution is that the court is insulated from the
mechanism by which the judgment is made. However, the decision is as enforceable and final as a trial
court decision. Easterbrook is threatening to put the President of the ISOC in prison!
8. Standard of Review in Fed. Court
a. “The court does not review the merits of the arbitrators’ award; it examines only whether the
parties in fact agreed to submit their controversy to arbitration, whether the procedures
employed deprived the objecting party of a fair opportunity to be heard, and whether the
arbitrators exceeded their powers.” (Ferguson) Narrow scope of review.
b. Cts. have been reluctant to enquire into the fairness of the proceduresnormally limit
themselves to whether arbitrators exceeded the powers granted by the agreementbut
it has happened.
i. Hooters of America, Inc. v. Phillips: 4th Cir. refused to compel arbitration for employee
who had sued in fed. ct. b/c co.’s procedures were so “egregiously unfair as to constitute
a complete default of its contractual obligation to draft arbitration rules…in good faith.”
(a)  Bar is high for cancellation on fairness grounds.
ii. Arbitrators can sometimes award what courts can’t based on their agreements. Advanced
Micro Devices, Inc. v. Intel Corp.
iii. Choice of law clause governs substantive law, but not necessarily remedial choices.
Mastrobuano v. Shearson Lehman Hutton.
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Ferguson v. Writers Guild of America, West: Ferguson wants screen credit for Bev. Hills Cop II.  know
who the judges are;  the other side’s case; no opportunity to rebut their case, summon witnesses, or present
testimony; court renders judgment without explanation. However, Ferguson has not demonstrated a
“material and prejudicial departure from the procedures specified in the credits manual.” WGA wins.
9. Objection
a. B/c arbitration grows from contract, party can object on essentially contractual grounds.
Engalla v. Permanente Medical Group, Inc.: P was employed by Kaiser, whose insurance agreement
provided for binding arbitration with 3-member panel (1 from P and D each; 1 neutral chosen by both). P got
sick and died. Claimed fraudulent misrepresented expedition of arbitration system. Ct. agreed. Took 2 ½
yrs. on average to get a hearing. Provision for selection of neutral arbitrator allowed Kaiser to stall. Most
cos. contract with neutral 3rd party like Amer. Arb. Assn. Agreement rescinded for fraud.
36