I. Due Process
Fifth Am. > No person shall be deprived of life, liberty, or property without due process
Fourteenth Am. > No state shall deprive a person of life, liberty, or property without due process
* High ct in state system can give more due process than in federal ct but not less
Goldberg v. Kelly (1970)
Facts:
- Kelly on semi-monthly welfare, didn’t want to live in the apt they said he had to, welfare was
stopped, tried to see caseworker, social worker tried to help him
- Kelly’s welfare benefits were terminated w/o hearing
Rule:
NOTICE & HEARING should be provided before termination of public assistance if
termination of benefits prevents that person from pursuing justice.
Policy:
First to argue how MUCH due process; opened the door to people demanding due process during
their process appeal upon deprivation of right
Mathews v. Eldridge (1976)
Facts:
- E received disability aid
- health questionnaire & Dr. reports combined to question his disability
- didn’t exhaust available remedies provided by the agency
Rule:
5th Am. doesn’t require an opportunity for evidentiary hearings prior to termination of
disability benefits
Policy:
Narrowed door opening for people wanting DP during appeal on their deprivation of rights
Applied to situations outside of property rights (e.g. Hamdi & Lassiter)
3-Step Balancing Test
1. Private interest that will be affected
What is it that is being deprived/taken away?
2. Risk of erroneous deprivation of such interest through procedures used & probable value, if any, of add’l or
substitute procedural safeguard
What is the potential risk in not providing add’l procedure to the person’s interest?
Ex: Goldberg had higher risk of erroneous deprivation than Eldridge b/c welfare is basic,
fundamental, substantive right; disability is not; Eldridge should’ve been able to provide for himself
3. Gov’t interest (fiscal & admin burdens) (as well as public interest) that add’l procedure would entail
What is the burden on the gov’t in allowing that add’l procedure?
Ex: Eldridge gave the gov’t interest more weight b/c there is a risk that people who are on disability
may be later proved to not need the benefits
Hamdi v. Rumsfeld (2004)
Facts:
- Caught taking up arms with Taliban in Afghanistan; he would have to prove that was in that
place for something else
- Military was detaining him illegally
- They decided full due process not practical because of the discovery that it would require
- Guilty til proven innocent b/c wartime circumstances
Holding:
In cases like this, we’re going to give him a hearing, but the burden of proof is on him that the
charges were unfounded
Rule:
Citizens held as enemy combatants have right to be heard in order to contest facts for basis
of detention before neutral decision-maker
Dissent:
Scalia said there were remedies provided here by Constitution; not our job (legislature):
1) they can’t detain him unless they suspend writ of habeas corpus or release them
2) take him to criminal ct under treason
Policy:
Right to notice and a hearing must be granted in meaningful time and manner
42 U.S.C. §1983
-
provides way to make tort claim to redress violations of federally protected rights (e.g. 1st Am., 4th Am.,
Equal Protection Clause of Constitution)
-
D must be a state actor or private actor working in concert w/state actor (see Adickes conspiracy)
42 U.S.C. §1988
-
fee-shifting statute > pays costs to P if successful or P pays if brought frivolously
II. Access to Lawyers & the Legal System
Boddie v. Connecticut (1971)
Facts:
- Appellants can’t pay $60 fee for divorce
- According to CT statute, must pay $60 to process service
- Wouldn’t waive the fee
Holding:
- If someone wants to get a divorce, financial constraints cannot prohibit a person from getting
access to courts through DP
- Due process does prohibit the state from depriving court access based on indigence in
application for divorce
Policy:
- Statute is constitutionally invalid when it interferes with a person’s rights (denying them access
to the court in the absence of the fee is equitable to denying them DP)
- Fees necessary to obtain court relief are unconstitutional
Lassiter v. D of Soc. Serv. Durham County (1981)
Facts:
- Ms. Lassiter threatened w/PT; received notice of hearing; no counsel; represented herself
- Didn’t say she was indigent
Court used Eldridge 3-factor test (incorrectly)
Rule:
An indigent litigant has a right to counsel only when he would his physical liberty if he lost
Policy:
The Constitution doesn’t require appointment of counsel in every parental termination
proceeding
Dissent:
Correctly used Eldridge 3-factor test
1. believed family matters are a fundamental liberty interest
2. liberty interests at stake in PT undeniably require procedural protection
3. state’s interest can’t be greater than that of a person threatened by PT
Civil Gideon > the right for an indigent party to have counsel provided
First time the high court ruled on a right to counsel in civil cases
III. Remedies
A. Provisional relief = prejudgment reliefs = securing the judgment (tying up D’s property)
1. Rule 64(b)
a. arrest
- to keep the D from running away
b. attachment
- seizing of person’s property to secure a judgment or to be sold in
satisfaction of a judgment (e.g. lien on property)
c. replevin
- action for repossession of property wrongfully taken by D
- P holds property until ct decides who owns it
d. sequestration
- so it doesn’t go anywhere (e.g. a boat)
- property is removed from possessor
Advantages:
- assures D’s resources will be there to collect if P wins
- tying up assets puts pressure on D to settle
e. garnishment
- take money (e.g. wages, stimulus payment, bank accounts)
- third party involvement
f. others
Fuentes v. Shevin
Facts:
- bought stove, stereo, & service policy under K for installment payments
- dispute w/Firestone over stove servicing > she stopped making payments
- Firestone to ct > didn’t give notice to her until writ of replevin already filed to seize goods
Rule:
When a person is threatened with repossession of property essential to daily life, a state
must provide that person with a the right to be heard before repossessing the goods
Policy:
- Under protection of 14th Am.
- The Q is not whether the D is entitled to a hearing on the underlying merits of P’s claim but
whether due process entitles the D to notice & opportunity to be heard before assets are tied up
- Like Goldberg b/c it wasn’t about what was deprived but simply due process was deprived
2. Rule 65(a) = Preliminary injunction
- court directs a party to halt specific conduct or perform specified acts immediately
- before ct reaches merits of case
- requires notice to party
- lasts for entire duration of case; becomes part of case
- if extended, turns into permanent injunction
3. Ct’s test to determine provisional relief (preliminary injunction)
1) whether $ damages would provide inadequate relief for P if wins; money won’t help
2) irreparable harm will occur if not granted
3) likelihood P will prevail on merits (most important factor)
4) scope & irreparability of harm D will suffer if relief is wrongly granted
5) extent to which granting an injunction would harm public interest
4. Rule 65(b) = TRO
- maintaining the status quo
- ex parte decision; does not require notice
- irreparable harm must be argued; something bad is going to happen if the court doesn’t issue
the restraining order (e.g. bodily harm, child custody, foreclosure)
- immediate protection while wait for hearing on preliminary injunction
- 10 days with extension > can turn into preliminary then permanent
- e.g. butcher across my property line; he might kill it; so TRO
Ashcroft v. ACLU (2004)
Facts:
Petitioners = Gov’t > Atty General John D. Ashcroft
Respondents = Internet content providers & others concerned w/protecting freedom of speech
- ACLU believes COPA statute (Child Online Protection Act) protecting minors from exposure
to sexually explicit materials on the Internet infringes upon freedom of speech rights in 1st Am.
- wanted preliminary injunction against enforcement of statute
Rule:
- The court can grant a preliminary injunction against enforcing a statute if the statute
potentially violates freedom of speech in the 1st Am. when a less restrictive and more
effective method than outlined in the statute is possible
- Gov’t has the burden to show that the alternatives are less able to accomplish the goals of the
statute, otherwise the alternatives are accepted
- When you are arguing a fundamental right, the gov’t has the burden of proof to show statute
provides for the least restrictive method
- If gov’t can provide for a less restrictive way from infringing on my rights, they should
United States v. Hall (1972)
Facts:
- Duvall County supposed to have integrated
- Hall went to purposefully protest the injunction
- convict him for criminal contempt
- he was in concert with the class under the injunction, so he was a party to it (Rule 65(d)(2)(c))
Rule:
The court does have power to punish person of nonparty for criminal contempt in the
violation of an injunction; an injunction can’t include an indefinable class
Policy:
Rules need to have predictability but also flexibility
If you say “all people” how do you give notice to all people?
e.g. UNLV has temporary injunction on campus to not ride bikes, but Utah guy comes ride his;
he can’t be held in contempt; now, pretend he’s visiting a friend who’s a student at UNLV, now
he could
If a person willfully disobeys/ignores the action, that person can be held in contempt
B. Final relief
1. Equitable relief
- only granted when money damages would not be adequate
- equitable relief awarded by judge; money damages usu. awarded by jury
a. Rule 57 = Declaratory judgment
- ct’s clarification of the law as applied to the undisputed facts presented by litigants
- issues an opinion declaring rights of parties involved
b. Rule = Consent decrees
- parties decide on a solution, the ct monitors agreement, and can be dissolved by motion
or sunset
- e.g. prison litigation > not giving dental to prisoners
- some ongoing for as long as 30 years; have to do it piece by piece
- can arise out of violations of Constitutional rights, which supercede even legislation
c. Rule 65 = Permanent injunction
1) whether $ damages would provide inadequate relief
2) whether P has shown risk of irreparable injury
3) scope & irreparability of harm D will suffer if relief is wrongly granted
4) extent to which granting an injunction would harm public interest
- inquiry leading to it doesn’t involve predicting likelihood of P’s success on merits b/c
merits already decide; injunction granted on hearing on the merits
Walgreen Co. v. Sara Creek Property Co.
Facts:
- Walgreens in mall owned by Sara Creek
- lease stipulates no other pharmacy can have lease in mall
- mall’s anchor tenant going out of business & Creek wants to bring in PharMor
- Walgreens sued for breach of K; asked for injunction against Creek to least to PharMor
Rule:
- Ordinarily money; this case money not appropriate b/c it’s impossible to calculate
- The burden is to show that damages are inadequate (for permanent injunction), not that
the denial of the injunction will work irreparable harm (that’s for a preliminary
injunction)
Reasoning:
Substituting injunction for damages is beneficial:
1. shifts burden of determining cost of D’s conduct from court to parties
2. prices & costs are more accurately determined by market than gov’
2. Enforcement of equitable relief = use ct’s contempt power
a. Civil contempt
- to compel to do something
- used to impel the D to comply with the ct order
- imprisonment as a result; comply to stay out of jail (e.g. pay child support)
- fine would be strange since equitable relief made money damages not adequate
- std of proof > preponderance of evidence
b. Criminal contempt
- broke court order and willful about it
- to punish (by fine and/or imprisonment)
- serve your time
- to give court respect (not so much relief for the P)
- std of proof > beyond a reasonable doubt
3. Money damages
1) nominal
- represent a token amount simply to signify the recognition that harm was done but
where injury can’t be proven
Carey v. Piphus (1978)
Facts:
- students suspended for violating school rules
- not given due process prior to suspension
42 U.S.C. § 1983: a person who deprives someone of his rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law
Rule:
- nominal damages are most that can be awarded in the absence of proof of injury
- must prove actual injury from denial of due process in order to obtain remedy
- in order to receive punitive damages, the students needed to show that the officials acted with
malicious intent
- mental & emotional distress are covered under § 1983, but w/o actually proving injury, it can’t
be assumed that the injury is so great
Ruling:
Due process wasn’t given, but damages weren’t proved, so here’s $1
2) compensatory
- seek to return P to position enjoyed before the harm
- e.g. medical bills, pain & suffering, loss of wages, fix property that was damaged
Ex: Carpenter
3) punitive
- further monetary relief seems appropriate to deter future wrongful conduct and to
express public disapproval of injuring behavior
*Guideposts to clarify what constitutes unconstitutional excessiveness in punitive
damage awards:
1- how reprehensible is the D’s conduct?
2- ratio of the award to actual or potential harm inflicted
3- a comparison of the award to civil or criminal penalties that could be imposed for
comparable misconduct
Ex: Carpenter
Enforcement of money damages:
1. Secure a judgment
2. Docket it with the clerk’s office
C. Settlement
- a legally enforceable agreement, usually involving a payment from D to P, in which P agrees
not to pursue the claim further
D. Atty Fees
1. NRS 18.010: Allows court to award atty fees to prevailing parties who have not recovered more
than $20K AND also where losers arguments weren’t reasonably founded
2. “American Rule”
o encourages innovative claims
o losing party does not pay the prevailing party’s atty fees
Exceptions:
- when party acts in “bad faith” (argument was not reasonably founded)—Rule 11(c)(4)
- when statute allows (e.g. §1988, NRS 18.010: winning parties who get 7less than $20K)
3. Fee-shifting statutes fundamentally provide:
o incentive to Ps to file suit
o incentive to lawyers to represent those Ps
o deterrent to Ds at risk of such suits
4. FRCP 68(d): If the judgment that the offeree finally obtains is not more favorable than the
unaccepted offer, the offeree must pay the “costs” incurred after the offer was made
Purpose: to encourage settlement and avoid litigation
Marek v. Chesny (1985)
- Chesny’s son was killed by cops
Facts:
- He was awarded $60K after he declined a $100K offer
- appealed to have cops pay post-offer atty fees
- got $32K for costs accrued prior to settlement
- but not the costs after the rejected settlement offer
Rule:
68(d)
Policy:
to promote settlement
City of Riverside v. Rivera
Facts:
- cops broke up party without warrant
- award of atty fees exceeded damage award (award $33,350; atty fees $245,456.25)
- court ruled atty fees not unreasonable (lodestar = market rate for attys X number of hours)
Rule:
It is not unreasonable to award atty fees that may exceed the amount of damages recovered
by the P in an important civil rights action
E. Contempt
-
you can violate an ordinance but not an order
-
you can violate the statute or ordinance but NOT when the ct orders you not to
Walker v. City of Birmingham (1967)
Facts:
- violated injunction at march
Collateral Bar Rule = when violating a ct’s contempt order, you’re barred from challenging underlying statute
Policy reason > to maintain law & order
-
you can violate the statute or ordinance but NOT when the ct orders you not to!
1. requires obedience to a court order (injunction) even if statute is later found to be unconstitutional
2. you can’t violate it to prove a point; we’re gonna jail ya
Shuttlesworth v. City of Birmingham (1969)
-
fact arising from same march
-
different than Walker b/c Shuttlesworth violated an ordinance, not an injunction
-
followed ct procedure to get a finding that the ordinance was unconstitutional
LITIGATION: IV. Pleadings
Rule 7: Complaints & answers
Rule 11:
(a) signed by atty or party representing self
(b) pleading, to best of knowledge:
(1) is not being presented for any improper purpose
(2) claims, defenses, & legal contentions are warranted by existing law or by nonfrivolous argument for
modifying the law
(3) factual contention have or are likely to after investigation have evidentiary support
and
(4) denial of factual contention have or are likely to after investigation have evidentiary support
(c) sanctions are discretionary > aimed at deterrence & can be nonmonetary (5)
(1) against atty, law firm, or violating party
THE COMPLAINT
Commences lawsuit
Rule 8(a): P files pleading with complaint for relief using
(1) statement of subject-matter jurisdiction
(2) short & plain statement showing entitlement to relief
and
(3) demand for judgment (tell what you want)
* Std of notice pleading v. old code pleading
Dioguardi v. Durning (1944)
Rule:
Facts sufficient to constitute a cause of action are not necessary; rather Rule 8(a)(2) simply
calls for “short and plain statement of the claim showing pleader entitled to relief”
Facts:
- medical tonics were auctioned & not given to him
- his original complaint was difficult to understand b/c complaint was so not clear
Conley v. Gibson (1957)
Facts:
- Railway labor act supposed to protect all employees in Union but
- 45 blacks fired but whites were hired in their place; some blacks were rehired w/o seniority
Rule:
- A complaint should not be dismissed for failure to state a claim unless it appears beyond a
doubt that the P can prove no set of facts in support of his claim entitling him to relief
- Even if you only have one fact at trial to prove your claim, that’s good enough to get it in
Summary of both: If you don’t have the facts to help you support your complaint, you would need
discovery in order to make your argument.
Since Conley, tried to make it easier for people to get into the ct (they have a process for stringing them out
later—summary judgment)
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit (1992)
Facts:
- complaint was dismissed b/c of technical requirement
Rule:
- A pleading does not require specificity; all that a pleading requires is a claim; nothing has
to be proved at the pleading stage
- If there is no rule like 9(b) or 9(g) and no statute requiring detailed pleading, the court cannot
demand it on its own
- cannot impose stricter standard
(Circuit ct was interpreting the rule rather than taking it at face; they were heightening the
pleading requirement because it was civil rights, police, etc.; SuprCt said you can’t do that)
Bell Atlantic Corp. v. Twombly (2007)
* Changed the liberal pleading standard (went against 50 yrs of precedent)
Majority announced a significant new rule of pleading w/unknown effects
Facts:
Issue = whether a Title I complaint can “survive a motion to dismiss when it alleges that major
telecommunications providers engaged in certain parallel conduct unfavorable to competition,
absent some factual context suggesting agreement, as distinct from identical, independent action”
Rule:
- The complaint must provide grounds (enough facts) for a plausible, not simply possible,
picture of liability
- If you’re going to show an inference, you have to have something else to get into ct
Reasoning:
1. anti-trust discovery can be very expensive
2. cost of litigation may cause Ds to settle even weak cases
3. discovery abuses cannot effectively be controlled by judicial case management
4. ct counting on pleading to fulfill a screening function to weed out cases lacking merit before
costly discovery phase
(not a reinterpretation of Rule 8, rather just came out way it did b/c of substantive law issue—
anti-trust case)
Concerns
- Dissent: can’t impose special pleading rule for one kind of case—can only interpret rule for all
cases
- Impermissibly overruled Conley & erodes Leatherman
- pleading is not supposed to screen cases
- discovery abuse occurs even in meritorious suits, so screening will not prevent abuses
- Ds will file more 12(b)(6) motions & more will be granted
- cts may ignore the decision or read it narrowly
- If liberal pleadings are allowed in anti-trust cases, the threat of discovery expense may push Ds
to settle even anemic cases (e.g. are you going to pay $25 mil to the guy as settlement or $100
mil proving case is bogus in discovery)
Exceptions to liberal pleadings > Rule 9 (has to be specific)
Rule 9(b) >
Fraud, mistake (the hospital gave me the wrong baby), or conditions of mind (malice, intent, and
knowledge)
Rule 9(g) >
Special damages (e.g. permanent erection)
Has to be specific otherwise the D can’t write a response
Bower v. Weisman (1986)
Facts:
- D asserts 3 diff. affirmative motions
Rule:
- Certain kinds of pleadings require specificity to survive motion to dismiss
- 9(b) Fraud or mistake
- more information is needed in complaint in order to answer (e.g. How did I defraud you?)
Alternative Pleadings > Rule 8(d)(2)
-
a party may set out 2 or more statements of a claim or defense alternatively or hypothetically
-
ie. We think A probably caused it, but it could have been B
-
only one need be sufficient > 8(d)(3)
-
can’t use inconsistent facts
-
Ex: Carpenter: fact is the jeep turned over (that can’t be changed) but why it turned over could
be the driver, manufacturer, etc.
Rule 8(e) > Construing pleadings > Pleadings must be construed so as to do justice
˅
THE ANSWER
D files answer (response) OR make a motion within 20 days of service of process > Rule 12(a)(1)(A)
If you want to file any motions, you need to do it right away 12(h) and file them TOGETHER 12(g) or
they are waived, including
1. 12(b)(2)-(5)
2. 12(e)
3. 12(f)
Except perhaps:
1. 12(b) lack of subject matter jurisdiction
2. 12(b) failure to state a claim upon which relief can be granted
3. 12(b) failure to join a party under Rule 19
4. 12(c) motion for judgment on pleadings (after pleadings closed but early enough not to delay trial)
RULE 12 then 8
Preliminary motions
-
Look to 12(a) for applicable time period (within 20 days of being served with complaint)
-
File 6(b) motion if need extension
-
File 12(f) motion to strike any “redundant, immaterial, or scandalous material”
Motion for more definite statement > Rule 12(e)
1. pleading was so vague or ambiguous that party cannot reasonably prepare a response
2. must be made before filing responsive pleading
and
3. must point out the defects complained of and the details desired
Motions > Defenses under 12(b) > MOTIONS TO DISMISS:
(can be separate from answer or in answer)
-
1, 6, & 7 = More-favored because they are so important and you may not be able to bring them
in the beginning that the court will let you use them anytime
-
2-5 = Less-favored because:
1) procedural in nature
2) should be aware of immediately
3) have been used to harass
1. lack of subject-matter jurisdiction
2. lack of personal jurisdiction
3. improper venue
4. insufficient process (e.g. mistake in summons)
5. insufficient service of process (e.g. problem in how served/improper service)
6. failure to state a claim upon which relief can be granted (e.g. insufficient / incognizable facts)
7. failure to join a party under Rule 19
How to win a 12(b)(6) motion
1. complaint has insufficient facts (failed to plead enough detail)
2. no cognizable claim for which relief can be granted (everything said is true; no legal liability)
3. although cause of action, facts in complaint show alleged circumstances don’t add up to cause
Answer (Response) > Defense:
1. If not brought any 12(b) motions yet, your answer can have any 12(b) defenses
2. Admissions and Denials:
- 8(b)(1)(A) “short and plain terms its defenses to each claims asserted against it” and
- can make denials (2),
- general and specific denials (3),
- deny part of an allegation (4),
- and/or claim lacking knowledge or information (5).
3. Failure to deny = admission > 8(b)(6) (on all allegations except damages)
4. Affirmative defenses 8(c) say that even if it were true, doesn’t matter because of various
possibilities (1) (p. 82); if you don’t bring it up initially, may constitute waiver to do so (e.g. statute
of limitations, fraud, failure of consideration, res judicata)
5. May also include:
- Rule 13 > counterclaims & cross-claims
- Rule 14 > impleader (third-party practice)
- Rule 21 > reduce number of parties
- Rule 24 > intervention (enlarge)
- Rule 42 > (a) consolidate case (enlarge); (b) separate trial
AMENDMENTS TO PLEADINGS
Amend a pleading if new evidence came up in discovery that provided for a new claim or defense
Ex: Carpenter
If P has to amend, then D would too
15(a) > amendments before trial
(1)(A) P has right to amend once before D answers
(1)(B) D has right to amend once w/in 20 days of serving answer
(2) If no right to amend, seek leave of court (decided as justice so requires)
15(b) > amendments during and after a trial (based on an objection at trial)
- Variance > evidence at trial doesn’t match what was pleaded
- (2) if you don’t object, you may have deemed to have consented & it is treated as if it was raised in
pleading
- Helps judge when evidence goes beyond original facts (things get added when discovery happens)
15(c) > relationship back of amendments (amendments after statute of limitations has run)
-
The doctrine that an act done at a later time is, under certain circumstances, treated as though it
occurred at an earlier time.
-
In federal civil procedure, an amended pleading may relate back, for purposes of the statute of
limitations, to the time when the original pleading was filed
15(c)(1)(B) > changing claim “that arose out of the conduct, transaction, or occurrence set out… in
original pleading”
15(c)(1)(C) > changing a party (more stringent) “against whom a claim is asserted” when
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 identify”
15(d) > supplemental pleadings
-
when the same occurrence happens again
-
Ex: you improperly billed me $200 last month; next month, you billed me again
Singletary v. Pennsylvania Dept. of Correction (2001)
Facts:
- P’s son committed suicide under psychological care at prison
- P amended complaint to add psychologist as D for “unknown corrections officer”
Rule:
Lack of knowledge of a D’s name is not a mistake
Christopher v. Duffy (1990)
Facts:
- family exposed to lead poisoning
- daughter’s condition worsened after John Duffy supposedly deleaded apt. after doctor orders
- daughter treated, released from hospital, & died from pneumonia (claimed she couldn’t fight it
b/c of crappy deleading job)
- motion denied
Rule:
- A motion to amend should be allowed unless some good reason appears for denying it
(e.g. statute of limitations so far in past that it would cause prejudice)
SANCTIONS for improper pleadings (Rule 11)
Self-represented clients can’t be monetarily sanctioned for substantive law issue
No monetary sanctions for represented party
(b) no longer good faith std > you have to have a basic claim or reasonable inquiry
(1) filed for proper purpose [used to paper people to delay (can’t anymore)]
(2) sufficient basis in law [gotta be based in law or good effort to modify]
> don’t want to sanction client for what atty knew about or should have known about
(3) sufficient basis in fact [like Twombly; basis in evidence for factual claims or that you’re likely to
find it out in discovery]
(4) denials warranted on lack of information (see Randall Dee)
(c)(1) can be asserted on attorney, law firm, or party
(c)(2) SAFE HARBOR PROVISION > withdrawn or appropriately corrected within 21 days
1983 Amendments
o mandatory sanctions
o expanded to cover all ct filings
o allowed monetary sanctions to be paid to adversaries
o force lawyers to make factual inquiries of clients (not just good faith)
1993 Amendments
o mandatory became discretionary
o clarified purpose of sanctions to include law firms
o to be for deterent purposes & not just money
o money goes to ct
o safe harbor provision
Chaplin v. Dupont Advance Fiber Systems (2005)
Facts:
- Dupont banned display of any offensive symbols on their property
- Employees were discouraged from wearing Confederate symbols and on cars, etc.
- Confederates then believed they were discriminated based on national origin (count I), religion
(count II), and race (count III)—Title VII claims
- Denied D’s motion for sanction on count I but grants count II and III; sanctioned $10K
Rule:
When a claim is brought by either bad faith or just poor judgment, each is so devoid of
merit as to warrant Rule 11 sanctions
- Purposes are to compensate the victims of the violation,
- to punish present litigation abuse,
- to streamline court dockets,
- to facilitate court management,
- and to deter future litigation abuse
V. Joinder
Joinder of claims (Rule 18) > liberally construed:
-
for judicial economy
-
clean up all issues
-
avoids different judgments at different trials (but can sever trials if gets too complicated)
Counterclaims & cross-claims (Rule 13)
-
cautious D will file compulsory counterclaim if there is any doubt (to avoid later claim preclusion)
-
cross-claims NEVER compulsory
Joinder of parties (Rule 19-21)
Kedra v. City of Philadelphia (1978)
- P are Dolores Kedra, children, & 1 of her daughter’s husband
Facts:
- policemen committed brutal acts against Ps
- Events claim span 14-15 month period
Rule:
Joinder of Ds proper when claims arise out of same transaction, occurrence, or series of
transactions or occurrences, even if it is over a length period of time
Podhorn v. Paragon Group, Inc. (1985)
- Paragon sued Podhorns for not paying rent; Podhorns didn’t file counterclaim in state ct action
Facts:
- Ds move to dismiss Ps’ claim b/c should’ve been filed as compulsory counterclaim in state ct
- motion granted b/c although Ps’ counterclaim may not have been triable before the associate
circuit judge, Ps were not relieved of their obligation to file it
Rule:
Party must bring a counterclaim if it is compulsory
THIRD-PARTY PRACTICE
Impleader
3 conditions must be met to bring in 3d party D:
1. only in order to bring in one who is not already a party
2. D has to have a claim against the new party it is trying to implead
3. needs theory of liability against impleaded party AND for all or party of Ps claim against the D (must
at least arise indirectly if not directly out of same transaction/occurrence)

Very hard to implead a party after statute of limitations has run

Every time parties become adverse, it triggers potential compulsory counterclaim
Gross v. Hanover Ins. Co. (1991)
D = jewel owner; P = jewel owner’s insurance company
Facts:
- insurance company tried to implead owner of store & brother for payment of stolen jewel
Rule:
Because it arose from the same transaction or occurrence it would expedite ct system
United States v. Olavarrieta (1987)
Facts:
- D filed 3d party complaint against UofFL, claiming it had violated Higher Education Act &
breached K by failing to award J.D. degree > motion to dismiss granted b/c UofFL can’t be sued
in its own name
- amended complaint to add 3d party D Board of Regents of FL Dept. of Ed. b/c failed to state
appropriate grounds for maintaining complaint
Rule:
17(a) & 14(a)
A 3d-party complaint must state appropriate legal or factual grounds for indemnification
Temple v. Synthes Corporation, Ltd. (1991)
Facts:
- P underwent back surgery for plate & screw device > screws broke off inside back
- can sue Synthes or doctor & hospital or both
Rule:
It is not necessary for all joint tortfeasors to be named as Ds in a single lawsuit
Daynard v. Ness, Motley, Loadholdt, Richardson & Poole, P.A. (2001)
Facts:
SC Ds say other guy shook hands so P needs to name him; P says either one named is fine b/c
both agreed; SC are co-obligors
Rule:
Co-obligers [to a K] may be necessary parties, but generally are not indispensable
An action to set aside a K requires the joinder of all parties [co-obligees] to the K
Summary of both: Joint tortfeasors are not necessary parties
Intervention
Allows for expert opinion that 3d party might add
24(a) Intervention of right > ct must intervene party when
(1) has a right by federal statute OR
(2) claims interest in subject of transaction & to protect its interest (b/c not adequately represented
currently)
24(b) Permissive intervention > ct may intervene party when
(1)(A) has a right by federal statute OR
(1)(B) has claim or defense that shares w/main action a common question of law or fact
24(b)(2) Gov’t officer or agency intervention
Rule 19
Purpose:
to analyze whether a party should be added to a lawsuit
19(a) > covers all persons to be joined “if feasible” (if it would be uneconomical or unfair to litigate w/o party)
19(b) > describes options ct has (as to outcome of the case) when joinder under 19(a) is “not feasible”
Three situations in which a party should be added “if feasible”:
1) 19(a)(1)(A): A person should be added if in the person’s absence, the court cannot complete relief
among existing parties
2) 19(a)(1)(B)(i): if she has an interest in the subject matter of the action & her ability to protect that
interest will be impaired if she doesn’t participate in the litigation
3) 19(a)(1)(B)(ii): if she has an interest in the subject matter of the suit and adjudicating the case w/o
her might leave one of the existing parties to multiple or inconsistent obligations
Situations in which a party should be added if feasible but cannot:
(Any jurisdictional impediment)
1) subject-matter jurisdiction
2) personal jurisdiction
How the court proceeds when a party should be added if feasible but cannot:
1) go forward anyway w/o absentee
2) dismiss the case b/c it would be improper to proceed w/o the absentee
3) go forward but craft judgment to provide appropriate relief to the parties before the ct despite the
inability to join the absentee
Factors the ct considers in making above decision:
(b)
1) to what extent a judgment rendered in the person’s absence might be prejudicial to the person or
those already parties
2) extent to which protective provisions in the judgment maybe used to avoid or lessen the prejudice to
the absent party
3) whether a judgment rendered w/o the absent person will be adequate [among the parties before ct]
4) whether P will have an adequate remedy—presumable in another ct—if action is dismissed due to
the inability to join the absentee
Same
transaction
or
occurrence
X
Common
question
of law or
fact
X
20(a)(2)
Joinder of
Ds
(permissive)
X
X
13(a)
Compulsory
counterclaim
X
20(a)(1)
Joinder of Ps
(permissive)
13(b)
Permissive
counterclaim
13(g)
Cross-claim
(Permissive)
Never
compulsory
P to P
D to D
D (3P) to 3D
and
3D to (D) 3P
If P claim
to 3D,
then 3D…
X
X
X
X
X
X
X
X
X
X
X
D to P
X
X
18(a)
Joinder of
claims
(Permissive)
14
Impleader
(3d party
practice)
(Permissive)
Anything
goes
X
X
X
(D to P
or
P to D)
X
X
X
(indemnification or
contribution
—e.g.
insurance)
3D may assert against P any claim arising out of transaction or occurrence that is the subject matter of P’s claim
against the 3P
&
P may assert against 3D any claim arising out of transaction or occurrence that is the subject matter of P’s claim
against the 3P
V. Discovery
Purpose:
1. reduces chances of trial by ambush & facilitates determination upon merits of case
2. promotes settlement
3. reduces drain on ct resources
4. narrows scope of issues in dispute
26(a) Parties must produce information at 3 times in litigation
1. 26(a)(1)(A) Initial disclosure
(i) identify people
(ii) documents (including electronically stored info. & tangible things)
w/discoverable info. that you may use to support your claims or defenses
(iii) P must give computation of damages
(iv) D must tell about insurance that she has for all or part of a claim
-
Within 14 days; within 30 days for later served or joined parties
2. 26(a)(2) Expert witnesses
3. 26(a)(3) Trial evidence
Informal discovery
-
interviews with client & other witnesses
-
documents
-
Internet (public information)
-
FOIA (Freedom of Information Act) > go straight to source itself rather than party
-
tangible evidence > be mindful of chain of custody
-
photographs & video
-
recordings
Pros:
-
cheaper
-
can use for settlement purposes
Cons:
-
what is discoverable & how to make it admissible
-
finding out something that hurts case b/c it’s public access
-
becomes part of file like everything else
Formal discovery tools
1. Deposition (Rule 27-32, 45)
-
1 day only up to 7 hours (without leave of ct) 30(d)(1)
-
opposing party = reasonable notice
-
non-party = subpoena (Rule 45 Subpoena)
-
under oath (must answer; counsel must object during deposition for the record or its an
admission in ct later)
-
expensive
Advantages:
o promotes settlement b/c it enables parties to assess merits of the case before trial
o narrows scope of issues
o allows for spontaneity
o allows for follow-up questions
o evidence for trial-use
2. Interrogatories (Rule 33)
-
non-party don’t have to answer them at all
-
limit of 25 at a time
-
provides most detailed non-controversial info.
Advantages:
o can give info about specific questions
o cheap
o admissible at trial
3. Request to produce documents, ESI, tangible things, & entering onto land (Rule 34)
-
on party or nonparty (under subpoena)
-
allows for inspection & copying
4. Physical or mental examination (Rule 35)
-
has to really be part of issue & at controversy
-
available at both sides for review
-
atty can’t be there; independent examiner
5. Request for admission of facts (Rule 36)
-
similar to pleadings
-
party only
-
disposes of undisputed issues & facilitates motion for summary judgment
Electronic discovery
26(a)(1)(A)(ii)
37(e) > can’t sanction for ESI lost as result of routine, good-faith operation
Teague v. Target Corp. (2007)
Facts:
- P terminated; brought suit based on gender & emotional distress
- her computer > job-searching, e-mailing possible claims, crashed, brother tried to fix, garbage
- knew it was pending litigation b/c she had an atty
Rule:
Spoliation of material evidence in light of pending litigation is grounds for sanctions
Quinby v. WESTLB AG (2006)
Facts:
- P fired by $multi-billion Germany company, claimed women left out of communication circle
- wanted files to find out what she already knew but they were not in accessible format
- 30% of costs shifted to P for putting files into accessible format
Rule:
- Responding party must bear the expense of complying with discovery requests but costshifting to requesting party is permitted for electronic document production if protective
order for undue burden & expense is denied
Scope of discovery
26(b)
-
permits discovery of anything nonprivileged and relevant
-
need not be admissible at trial if discovery appears reasonably calculated to lead to discovery of
admissible evidence
-
subject to 26(b)(2)(C)
(i) unreasonably cumulative or duplicative or can be obtained by a more convenient, less
burdensome, or less expensive way
(ii) ample opportunity was provided to obtain the info
(iii) burden or expense outweighs the benefit
Moss v. Blue Cross & Blue Shield of Kansas, Inc. (2007)
Facts:
- P filed motion to compel 37(a) responses to interrogatories & production of documents
- question of mental gymnastics
- found her request for 1800 files not overly broad & burdensome on face (narrowed to only
those filed w/in last 5 yrs)
Rule:
Request for discovery cannot be overly broad & unduly burdensome
Things protected from discovery
1. Atty-client privilege

allows client to tell lawyer anything w/o it coming out in discovery
2. Atty work product

in and of itself not privileged

in anticipation of litigation

impressions/thoughts
3. Work product, unless
- substantial need (e.g. witness is no longer available)
- substantial hardship (e.g. witness can only be reached with difficulty)
4. Self-incrimination > cannot compel person to reveal self-incriminating information
Hickman v. Taylor (1947)
Facts:
- tug boat towing RR car across river sank; 5 died, 4 survived
- P only demanded D’s atty’s documents & did not claim why
Rule:
26(b)(3)(A)(ii) Documents that reveal atty thoughts, impressions, etc. are privileged & not
discoverable unless you can prove substantial need & hardship
Sanctions
37(c)(1) party fails to make one of required disclosures
37(c)(2) fail to admit something that should’ve been admitted under 36
26(c) one from whom discovery is sought asks the ct for a protective order
1. Partial failure to comply

can make a motion to compel the answers under 37(a)(2)

can recover costs, including atty’s fees for bringing motion, if you win on the motion
2. Total failure to comply

37(d) can get sanctions right away & can recover costs

Striking the pleadings

Disallowing evidence
VI. Summary Judgment
-
after discovery
-
before trial
-
motion to dismiss based on insufficient proof
-
just show there’s a dispute of facts to get it denied
56(a) by claiming party w/ or w/o supporting affidavits
(1) after 20 days from action commencement OR
(2) opposing party serves motion for SJ
56(b) by defending party w/ or w/o supporting affidavits at any time
56(c) motion must be served at least 10 days before hearing date
Should be granted if:
-
pleadings, discovery, disclosure materials on file, & any affidavits
-
show that there is no genuine issue as to any material fact
and
-
that the movant is entitled to judgment as a matter of law
Keep 56(f)(2) in back of mind > affidavits
Genuine issue = certain facts are disputed
BURDEN OF PRODUCTION = obligation of one side to bring evidence to support its claim
BURDEN OF PROOF (PERSUASION) = what would be required to win the case
Question of law > moving party bears burden of showing evidence there’s no genuine issue of fact
Question of fact > non-moving party bears burden to show there is question of fact
Issues:
- Non-moving party cannot rest on pleadings alone 56(e)(2)
- Can’t be used to resolve evidence credibility disputes (i.e. witness credibility)
- Looks like code pleading (you shouldn’t have to have case all figured out when you come w/ complaint)
- While issue of fact are for the jury & issues of law are for the judge, it is a legal question whether there’s
sufficient evidence to make a rational factual determination
12(b)(6)
56(c)
Motion to dismiss
Motion for summary judgment
Pre-discovery entry of judgment
During discovery or post-discovery entry of judgment w/o
trial
Based on defective allegation
Based on insufficient facts
For failure to state a claim upon which relief
Failure of P to meet production burden
can be granted
For failure to prove an element of cause of action with
Often, for failure to allege the necessary elements
evidence
of a claim (however, pleader can amend
complaint)
- Does the law award damages on the matter?
- Is there insufficiency of evidence?
- Is the claim legally sufficient?
- Evidence is viewed in light most favorable to the non-
- Whether if P proves allegations in complaint,
he will have established a cause of action
entitling him to some form of relief from the ct
Assumes the facts are true
moving party
- Not meant to try the facts but to determine if
genuinely contested issue of fact
D moves for SJ (have to point out P hasn’t proven case b/c
doesn’t have all elements to prove claim)
Then burden goes to P to prove that they do have the
evidence for it to go to trial > must introduce evidence that
contradicts the moving party’s version of the facts
Adickes v. S.H. Kress & Co. (1970)
Facts:
- P w/students from Freedom School in MS went to library where it was closed on them, then to
Kress where waitress wouldn’t serve P & police arrested her
- SJ motion was denied b/c
1) D failed to carry its burden of showing absence of genuine issue of fact and
2) b/c D didn’t meet initial burden of establishing absence of policeman in store, P didn’t
have to come forward with opposing affidavits
Rule:
Moving party has burden to show he is entitled to judgment & if he doesn’t discharge
burden (there’s an absence of material fact), then he’s not entitled to judgment
Celotex Corp. v. Catrett (1986)
Facts:
- D’s husband allegedly exposed to asbestos
- presented 3 documents to support but P said they were inadmissible hearsay
- Celotex could’ve won SJ motion w/o introducing any evidence disproving respondent’s claim
Rule:
- Moving party does not have to have affidavits or other similar materials that would
negate the opponent’s claim
- Moving party just needs to point out that there is an absence of evidence to support the
nonmoving party's case. [Here, her documents were hearsay.] Nonmoving party then just needs
to show evidence that is not at the time admissible but can later be admissible.
- established non-moving party has to show proof that they will find it later & be able to win
- If there is insufficient proof of an element of the cause of action, there is no “genuine issue
of material fact for the ct to decide”
Anderson v. Liberty Lobby, Inc. (1986)
Facts:
- Liberty Lobby neo-Nazi organization sued for libel saying articles published by P were false &
defamatory; claimed they were published w/actual malice
- SJ would have been appropriate b/c clear & convincing evidence needed to determine actual
malice (b/c libel)
Rule:
- Nonmoving party has to present evidence to show a genuine issue of fact that a jury would
be able to decide in order for SJ to be denied.
- evidence must also comport with the standard of proof that a jury must make a decision on

must rise to the level in most civil cases to a "preponderance of the evidence" > one
side has more evidence in its favor than the other, even by the smallest degree

concrete evidence from which a reasonable juror could return a verdict in his favor

std of clear and convincing evidence in libel suit (like this) > establishes truth of a
disputed fact by a high probability

if the burden of proof is higher than normal to win a case, then burden of production
should also increase
Matsushita Elec. Industrial Co. v. Zenith Radio Corp. (1986)
* Need to mention this case in SJ issue b/c it is a part of the trilogy & some courts do use it despite its
specificity to anti-trust cases
Facts:
- Claim by Zenith Co. against 21 Japanese companies manufacturing or selling consumer
electronics products in America or controlling American firms that sell the products
- alleged Japanese companies had conspired, in violation of the Sherman Antitrust Act to keep
prices artificially high in Japan in order to subsidize artificially low prices in the U.S. in order to
push American companies out of the market
-SJ would have been appropriate b/c did not show plausible motive of conspiracy
Rule:
- SJ is appropriate if record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there’s no genuine issue of fact

allowed courts to disregard supporting evidence where it is unconvincing (or fails to
rule out alternate lawful explanations for the challenged conduct)

ct considers “persuasiveness” of evidence (usu. reserved for juries) to grant SJ

applicable only to anti-trust context?
- P must present evidence that tends to exclude possibility that alleged conspirators acted
independently
- dissent argued that there is a judicial obligation on SJ not to weigh evidence / assess credibility
Summary of Anderson/Matsushita:
If P can show evidence & genuine issue of fact for a jury, SJ will be denied
Scott v. Harris (2007)
Facts:
- cop forced speeder off road; resulted in quadriplegic
- §1983 action for using more force than necessary (4th Am. violation)
- D asked for SJ based on qualified immunity as gov’t official (only if conduct didn’t violate
constitutional right)
- ct says proof positive that force was objectively reasonable
Rule:
- When facts are in dispute, cts must view facts & draw reasonable inferences in light most
favorable to party opposing SJ motion
- problem: jury is supposed to try question of fact, not judge
VII. Other dismissals
VOLUNTARY DISMISSAL
Rule 41(a)
-
P has absolute right to dismiss voluntarily prior to answer or SJ motion
-
w/o prejudice (no res judicata effect)
-
or w/prejudice if case proceeded to far
-
or w/o prejudice w P pays costs
INVOLUNTARY DISMISSAL
Rule 41(b)
-
for failure to prosecute, abide by FRCP, or abide by ct order
-
res judicata effect
-
adjudication on merits
-
12(b)(6) & SJ
-
No res judicata for: 12(b)(7) dismissal for failure to join a Rule 19 party, jurisdiction, & venue
JML (DIRECTED VERDICT) (judgment as matter of law)
Rule 50(a)
-
whether cause of action was made out by P
o D can make motion at close of P’s case OR at close of whole case
o P can only make motion at close of whole case
-
on entire case, one or more claims, or even just some issues
-
same std as SJ: no legally sufficient basis for reasonable jury to find
-
cannot judge credibility of witnesses
-
granted when there is no way that 2 reasonable people could come to differing conclusions
Galloway v. United States (1943)
Facts:
- claiming Veteran Agency benefits based on insanity
- had to prove disability was continuous; he didn’t present evidence for a 5-yr period
Rule:
Motion for JML cannot be survived when the opposing party leaves gaps in evidence or relies
upon inference (when requesting disability for insanity)
POST-VERDICT JML (JNOV) (judgment notwithstanding verdict; renewed judgment as matter of law)
Rule 50(b)
-
even if judge previously denied JML motion on same grounds
-
same test as 50(a): no legally sufficient evidence for jury to have found
-
can only get if previously made JML motion at close of all evidence
-
can only have an appeal if you motioned for JML
NEW TRIAL; ALTERING OR AMENDING JUDGMENT
Rule 59
-
errors in jury instruction
-
atty, judicial, or jury misconduct
-
prejudicial errors in evidentiary rulings > harmless errors (Rule 61)
-
verdict is against the weight of the evidence
-
59(b) new trial motion w/in 10 days
-
59(e); 60(a) > amending judgment for corrective or clerical errors
RELIEF FROM JUDGMENT ORDER
Rule 60(b)
-
very hard to vacate judgment
-
don’t be fooled by laundry list of situations
The Court
Majority =
agree for same reasons
Plurality =
agree but for different reasons
Concurring = agree but for different reasons
Dissenting = disagree
Most important reason judges publish dissents = future policy (another ct will look to the dissent)
ADR: Alternative Dispute Resolution
Advantages
-
cheaper
-
faster
-
more creative solutions b/c problem-solving basis
Disadvantages
-
imbalance of power
-
not good for family law (e.g. domestic violence)
-
mediation can waste time
Negotiation = attempts to settle w/o facilitator (no guidance/support)
Mediation =
neutral actor facilitates agreement; works well w/parties who have ongoing relationship
Arbitration = disputing parties agree upon slection of a netural & skilled decision-maker who is entrusted
w/making final, binding, & non-appealable judgment based on presentations by the parties