Civil Procedure Outline – Midterm 1999
Professor Friedman
Provisional Remedies: Rule 65
A.
Preliminary Injunctions and Temporary Restraining
Orders:
 Relief pending final adjudication of the dispute.
 By definition, they must be granted or denied
before the case has been heard on the merits, so
they will often be based on incomplete
information, and the court will often be asked to
act without the benefit of the adversarial
exchange that would accompany a trial.
 Court’s interlocutory assessment of the parties’
underlying rights is fallible in the sense that it
may be different from the decision that ultimately
will be reached
 Dilemma is that if the court does not grant prompt
relief, the plaintiff may suffer a loss of his
lawful rights that no later remedy can restore.
But if the court does grant immediate relief, the
defendant may sustain precisely the same loss of
rights.
 Preliminary Injunctions- (appeallable)Can not be
issued without notice to the adverse party, issued
for pendancy of the litigation or a lesser period
of time. Court may order the trial of the action
on the merits to be advanced and consolidated with
the hearing of the application for a preliminary
injunction. How bad are the results if denied or
granted improperly? Must show that the plaintiff
will suffer irreparable damage if relief is not
granted; the plaintiff will probably prevail on
merits; the defendant will not be harmed more than
the plaintiff is helped by the injunction; and
granting the injunction is in the public interest.
 Temporary Restraining Orders- (TRO) (not
appeallable) allow a party to stop another party
from doing something. Can be for up to ten days.
TRO can be done Ex Parte without the other side
there, but it extremely rare. TRO happens without
written or oral notice to the other side only if
(1) it clearly appears from the specific facts
shown by affidavit that immediate or irreparable
loss will result to the applicant before the
adverse party or party in opposition can be geared
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and (2) the applicant’s attorney certifies to the
court in writing the efforts, if any, which have
been made to give the notice and the reasons why
notice should not be required. When granted
without notice, the motion shall be set down for
hearing at the earliest possible time.
a. Attachments: seizure of property
b. Garnishments
 Applicant must put down a security for potential
losses suffered or incurred by any party who is
found to have been wrongfully restrained.
 Permanent Injunction- what you want to be issued
at the end of the trial in the place of the
preliminary injunction
1. William Inglis and Sons Co. v. ITT Continental
Baking Co.
Facts- plaintiff alleges that defendant is guilty of
below cost pricing of their bread and seeks a
preliminary injunction until the outcome of the trial.
Plaintiff has to persuade the court that damages after
the fact are not enough. Court denies the injunction
b/c they believe plaintiff would win on merits.
Appellate Court if the District Court abused its
discretion
Holding- It is not necessary that the moving party be
reasonably certain to succeed on the merits. If the
harm that may occur to the plaintiff is sufficiently
serious, it is only necessary that there be a fair
chance of success on merits (this is the alternative
test that the DC failed to apply)
B.
Provisional Remedies and Due Process
 The desire for an effective remedy collides with
the guarantee of due process at times.
 All procedures subject to examination under the
Due Process Clause
1. Fuentes v. Shevin
Facts- plaintiff purchased good from defendant on a
payment plan and signed a contract that enabled
defendant to retain title to goods. Plaintiff was
entitled to possessions unless she defaulted on
payments. With only $200 left on bill, dispute
developed and defendant regained possession of the
good by a writ of replevin. Plaintiff challenges the
constitutionality of prejudgment replevin procedures
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b/c there is no opportunity for a hearing BEFORE
property is seized.
Holding – FLA and PA prejudgment replevin procedures
are a deprivation of property without due process of
law insofar as they deny the right to a prior
opportunity to be heard before chattels are taken from
their possession
I.
A.
Pleading:
Rules 7-16
Stating a Claim: General Principles
1. Two approaches to the elements of a claim
 Pleading is about allegations (statements that the
party says are true, but at the pleading stage
their truth or falsity are open questions.
 It invokes some body of law and it relates a set
of facts that fall under the umbrella of the body
of law.
 A claim will succeed if it invokes a valid body of
law and it recites facts that, under the body of
law invoked, entitle the plaintiff to recovery.
 Claims fail b/c the lawyers drafting them neglect,
or can not ethically, fulfill one of these
requirements.
 Pleading is used to give notice of the nature of
the claim and state relevant facts.
a. People Ex Rel. Department of Transportation
v. Superior Court
Facts- an attorney used a form complaint approved
by the Judicial Council and asserted a cause of
action for premises liability without alleging
sufficient facts to support each element of the
claim. The Defendant sought a demurrer in the
trial court stating that the complaint failed to
plead sufficient facts to support a cause of
action. Trial judge denied the motion, stating
that Judicial Council form complaints cannot be
demurred. Defendant requested a writ of mandamus
to review the trial judge’s decision.
Holding- Ultimate facts which support each
element of a claim must be pleaded in all
complaints, even form complaints approved by the
Jud. Council. Inadequate pleading prevented the
defendant from determining the theory upon which
the plaintiff was seeking relief and prevented
the defendant from asserting all possible
defenses.
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a. Duncan v. AT&T
Facts- In her suit against AT&T, Duncan made
claims for race and disability-based
discrimination, breach of duty of fair
representation, and intentional infliction of
emotional distress. However, Duncan’s complaint
omitted to assert Duncan's membership in a
protected minority group or that Duncan was
qualified for a position for which AT&T was
seeking applicants. It also failed to assert that
despite Duncan's qualifications, Duncan was not
offered the position, or that AT&T kept that
position open and continued to see applicants
with Duncan’s qualifications. AT&T sought
dismissal on a Rule 12(b)6 motion.
Holding- Although only a short and plain
statement of the claim is necessary, a claim
which is illegibly stated or baldly conclusory
fails. AT&T is entitled to notice of the federal
claim and the grounds on which it rests.
2. The Question of Detail:
* The complaint must be drafted to meet the
minimum requirements of Rule 8(a) so as to
withstand a motion for dismissal under Rule
12(b)6.
* Rule 8 tells pleaders that they need not be
too detailed but they must state a claim. At
some high level of generality, the two points
merge.
* A plaintiff will not be thrown out of court
for failing to plead facts in support of
every arcane element of his claim, but when a
complaint omits facts that, if they existed,
would clearly dominate the case, it seems
fair to assume that those facts do not exist.
* the pleadings must be in accordance with the
evidence presented at trial. If during
discovery, you find that your evidence does
not match what you pleaded, you can amend the
complaint.
* Default judgment- if you do not list damages
in a complaint but you can prove them in
court, you still cannot recover these
damages. You can only recover exactly what
you asked for.
a. Rannels v. S.E. Nichols Inc.
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B.
Facts- After Rannels filed a complaint for
malicious prosecution alleging that Nichols sold
her defective merchandise and initiated an
unsuccessful criminal proceeding against her for
her failure to pay knowing that she legitimately
disputed the charge, the district court dismissed
the complaint for failure to set forth proper
facts.
Holding- The complaint specifically averred that
Rannels had committed no crime and that Nichols
knew it. The F.R.C.P. Make it clear that the
facts surrounding the event in question need not
be alleged in detail. A short and plain
statement of the claim showing that the pleader
is entitled to relief is sufficient, avoiding the
necessity of deciding whether particular
allegations are ones of fact, law or evidence. A
short statement in a complaint giving defendant
fair notice of the nature of the claim is
sufficient under Rule 8.
b. Consistency in Pleading
* Rule 8(e)2 permits apparent duplicity in
modern pleading: “a party may set forth two
or more statements of a claim or defense
alternately or hypothetically [and a] party
may also state as many separate claims or
defenses as he has regardless of consistency”
* Allowed b/c pleadings come very early in the
case, often before parties will know all that
they will by the time the case comes to trial.
* Allegations in pleading are tempered by burden
of proof.
* However inconsistent and contradictory the
pleadings, the lawyer will have to settle on
a single version of the story before the case
comes to trial. Reflects a system that
requires lawyers to make allegations before
they are certain of the facts and the law.
Ethical Limitations and Disfavored Claims
1. Ethical Principles as a Limitation
 requirements for the factual and legal
investigation that lie behind pleading
 Apart from procedural statutes and rules, courts
have inherent powers to discipline misbehaving
lawyers – Rule 11
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Rule 11 restricts a lawyer’s ability to file a
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pleading on only a hope that favorable facts will
emerge.
a. signature is a certification that you not only
believe in claim but have made inquiry.
b. Not presented for an improper purpose, to
harass, etc.
c. Warranted by law or non-frivolous argument for
modifying law
d. Allegations have evidentiary support, or are
likely to after discovery
e. Denials of factual contentions are warranted
on evidence or, if designated, lack of
information or belief
f. Rule 11(c)(1)(A)- safe harbor provision must
allow 21 days after serving notification to
the other party before filing a motion for
sanctions. Problem: answer often due before
safe harbor ends, unsure whether complaint
will be withdrawn. Ask for extension. Puts
burden on defendant to move quickly, in 21
days the action may not be alive.
g. Rule 11 only applies to sanctions made on
motion
Rule 11(c)(2)a now prohibits the imposition of
monetary sanctions on a represented party, for a
violation of Rule 11(b)2. Rule 11(c) now
authorizes sanctions to be imposed on law firms as
well as the particular attorney who signs the
offending pleading.
Four relevant aspects of Rule 11: (1) substantive
standards (what behavior violates the rule?) (2)
enforcement procedure (what procedural mechanisms
attend the invocation of the rule?) (3)
appropriate sanctions (What punishment is
appropriate for the violation of the rule?) (4)
appellate review (when appellate courts review the
application of the Rule, how and what standards
will guide them?).
a. Business Guides v. Chromatic Comm.
Enterprises
Facts- Business guides caused its counsel to file
an unwarranted copyright infringement action and
to seek a baseless temporary restraining order
against Chromatic Communications Enterprises for
alleged conversion and use of listing materials
created by Business Guides.
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2.
Holding- It is a violation of Rule 11 to file a
suit without a reasonable belief in its validity
or without making a reasonable inquiry into the
facts. The plain meaning of Rule 11 is that
whoever sighs a pleading or affidavit without
reasonable inquiry will be sanctioned. Because
Business Guides failed to conduct a reasonable
inquiry into the facts before signing the TRO
affidavit and the declaration, the judicial
system was abused, and a meritless suit was
filed. Sanctions are proper.
b. Gerbode v. Religious Technology Center
Facts- Continuing a long and acrimonious dispute
between religious organizations, The Religious
Technology Center filed an action in federal
court against the Church of the New civilization
and various principals thereof. The court
dismissed the complaint as frivolous. The
various defendants moved for sanctions under Rule
11.
Holding- Monetary sanctions and attorney’s fees
are available and should be awarded if doing so
would deter future misconduct. The award is
warranted here and the lodestar approach for
calculating fees was used.
Disfavored Claims – heightened specificity in
pleadings: Rule 9(b) to provide fair notice to
defendant of plaintiff’s claim to enable
preparation of a defense, and to protect the
defendant from harm to his reputation or
goodwill. Belief is not enough to satisfy Rule
9(b). Allegation must be accompanied by
statements of facts.
a. Fraud – Rule 9(b) requires the plaintiff to
state with particularity any circumstances
constituting fraud. States of mind may be
pleaded generally, but the circumstances must
be pleaded in detail. The who, the what, the
when, the how, and the where. Rule 9(b)
requires the court to dismiss the complaint,
which discloses none of the circumstances
that might separate fraud from the benefit of
hindsight.
i.
DiLeo v. Ernst and Young
Facts- DiLeo brought a class action suit
against defendant for securities fraud under
rule 10(b)5, but failed to include any
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specific circumstances under which
constituted fraud in his pleadings.
Holding- A plaintiff must plead the
circumstances constituting fraud with
specificity. The plaintiff must bring forth
facts which are attributable to fraud.
Without these facts, the pleading is
deficient and the action must be dismissed.
The who, what, when, and where of the
allegations must be included in the
complaint.
b. Civil Rights –
claims based upon plaintiff’s civil rights (race,
religion, ethnicity, gender, age, and disability).
Rights have flowed from detailed statutes and
judicial decisions construing the constitution
itself.
One of the most important permits a suit against
those who act “under the color of law” (that is,
in some official or quasi-official capacity) to
deprive persons of constitutional rights.
The Supreme Court has said that (a) such officials
are liable if their actions or orders violate
constitutional rights, but; (b) that they enjoy a
qualified immunity if those actions took place
under a reasonable misapprehension of the law.
This immunity is more than an affirmative defense,
it is the right not to stand trial and, in
particular, the right not to be subjected to
discovery proceedings, but this immunity collides
with pleading rules.
Schultea gets around the pleading rules by making
a reply necessary after the qualified immunity
defense is given.
i.
Schultea v. Wood
Facts- Schultea, a chief of police,
investigated allegations that a city council
member was involved in criminal activity,
and, after the council demoted him, he sued.
Holding- A pleading need not fully anticipate
the official immunity defense, but once the
defense is raised, a detailed reply may be
required. The qualified immunity defense
creates a new role for the Rule 7(a) reply.
The district court has narrow discretion not
to require a reply when greater detail might
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C.
assist the court in determining the adequacy
of the claim.
Allocating the Elements
 knowing what issues matter in the suit does not
answer all of the questions in a system driven by
party initiative, for one must ask which party has
the burden of pleading, or producing evidence, or
proving a particular element of a claim.
 To have the burden of pleading (or proving) an
Element of a claim means that one loses if one
fails to carry that burden.
 Sometimes, where a claim is based on a statute,
The text of the legislation will give a clue,
using the same “if-then” linguistic signals (or
similar “always-but” language)
 It is sometimes suggested that the burden of
Demonstrating some part of the claim should lie on
the party likely to have easiest access to
knowledge about the matter in question.
 Sometimes it is suggested that the party asserting
the improbable has the burden of showing that it
is true.
 Courts sometimes refer rather loosely on policy:
Which side do we think should prevail in a close
case?
 To have a burden of pleading means that one must
Allege the element of the claim or defense – that
one cannot expect the other party to do so. To
have the burden of production means that at trial
one must produce evidence – witnesses, documents,
and the like – that tend to demonstrate the
proposition at stake. To have the burden of
persuasion in a civil case means, generally, that
one must persuade the trier of fact that one’s
version of the facts is more likely than not to be
true. Usually, though not invariably, the three
burdens go together.
1. Gomez v. Toledo
Facts- Gomez brought his action against Toledo,
Superintendent of the Police in Puerto Rico, for
discharging him after he reported the falsification
of evidence by colleagues, but Gomez’ complaint did
not allege that Toledo had acted in bad faith.
Holding- In an action to redress the deprivation of
rights secured by the U.S. Constitution and laws
under 42 U.S.C. §1983, the complaint need not allege
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D.
the defendant’s bad faith in order to state a claim
for relief. Though the defendant has a qualified
immunity as a public official if he acted in good
faith, no allegation of bad faith is required in a
complaint that alleges a deprivation in violation of
the law. The immunity of the defendant is a defense
which he must plead, not the plaintiff.
Responding to a Complaint
1. Pre-Answer Motion – permits the defendant to
raise certain types of objections to the action
at a very early stage of the litigation. If the
defendant makes no such motion or it is denied,
defendant must file an answer.
* Rule 7 states that a motion is a request to the
court for an order. Motions consist, ordinarily, of
four different kinds of documents: (1) the motion
itself: a request for the specific relief sought (2)
notice of the motion to the opposing party telling
when the motion will be heard (3) an affidavit
setting forth any factual information necessary for
granting the motion (4) memorandum of law explaining,
with reference to supporting authorities, the legal
basis for the motion
 responses include:
(a) reasons why the court should not proceed with
the action (failure to state a claim on which
relief can be granted – Rule 12(b)6,
objections to jurisdiction, venue, or service
of process)
(b) questions as to whether the complaint, even
if true, provides a basis for legal relief or
whether plaintiff has joined an essential
party
(c) denials
(d) affirmative defenses
(e) requests for clarification and more
information (need for a more definite
statement of the plaintiff’s complaint – Rule
12(e)).
 All these responses but (e) may be included in the
defendant’s answer.
 Rule 12(b) permits certain defenses to be raised
by pre-answer motion.
2. Answer- if the defendant cannot demur the
complaint (or make an equivalent 12(b)(6) motion)
or dispose of it in any f the grounds listed in
12(b), she must respond to its factual
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allegations. The most common responses are
denial and affirmative defense.
a. DenialsRule 8(b) requires the defendant to deny only
those allegations that he actually disputes
Rule 8(d) provides that any allegation that is not
denied is deemed admitted.
General Denial – an allegation that denies each
and every allegation of the complaint. A more
limited form of denial denies each and every
allegation of a specific paragraph or group of
paragraphs. Few cases arise where the defendant
can deny each and every allegation.
DKI – deny knowledge or belief
i.
Zielinski v. Philadelphia Piers
Facts- A complaint was served on PPI stating
that they owned a forklift that was operated
in a negligent manner. PPI denied the entire
complaint b/c of not owning the forklift.
Zielinski took the vague denial as denying
negligence NOT ownership. Zielinski did not
find out it was suing the wrong party until
the pre-trial conference. Philadelphia
Piers. Inc. was estopped to deny ownership of
a forklift and the agency of the operator
even though they were not the true owners of
the forklift.
Holding- PPI should have made a specific
denial of parts of the complaint they knew to
be false and admitted the parts which were
true. This would have warned Zielinksi that
he was suing the wrong party. In the federal
courts, a defendant who knowingly makes
inaccurate statements may be estopped from
denying those inaccurate statements at trial.
b. Affirmative Defenses: rule 8(c)
in pleading to a preceding pleading, a party shall
set forth affirmatively 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, and any
other matter constituting an avoidance or
affirmative defense.
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Requires pleading of all matters which if not
pleaded would be likely to take the adverse party
by surprise or would raise issues of fact not
appearing on the face of a prior pleading
 By pleading a matter as an affirmative defense,
the defendant has assumed the burden of proof on
that issue even though defendant would not have
had such a burden had he pleaded denial.
i.
Layman v. Southwestern Bell
Facts- In Layman’s suit against Southwestern
Bell for trespass, Layman contended that Bell
had entered her land and installed
underground telephone wires and cables
without her consent and, in doing so, had
depreciated the value of her land.
Holding- It is the obligation of a defendant
in an action for trespass to affirmatively
plead and prove matters in justification.
This is a situation where the plaintiff must
allege a certain matter and a defendant must
allege the opposite in the form of an
affirmative defense, rather than just denying
plaintiff’s allegations.
3. Reply – Rule 7(a) requires a reply if the answer
contains a counterclaim that is labeled as a
counterclaim. If the answer contains an
affirmative defense, a reply is not technically
warranted, but some courts may require it.
4. Amendments – because the preliminary definition
may change as the suit develops, and particularly
as discovery reveals facts unknown at the time of
the original pleadings, parties may seek to
change their stories through amendments. Tension
between the goal of easy amendment, allowing
pleadings to reflect the parties’ changed views
of the case as it develops; and the notion of
“prejudice” reflecting the idea that at some
point a party ought to be able to pin down the
other side. Allowance or denial of leave to
amend lies within the sound discretion of the
court and is reviewable only for an abuse of
discretion.
* Rule 15 – a party may amend their pleading
once as a matter of course at any time before a
responsive pleading is served or, if the pleading
is one to which no responsive pleading is
permitted and the action has not been placed upon
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the trial calendar, the party may so amend it at
any time within 20 days after it is served.
Otherwise, a party may amend with leave of the
court or by written consent of the adverse party;
and leave shall be freely given as justice so
requires. (the would-be-amender should have a
good reason for not getting it right the first
time, and allowing the change now should not hurt
the other side too much)
a. The Basic Problem: Prejudice
In ruling on a motion for leave to amend, the
trial court must inquire into the issue of
prejudice (can’t hurt the other side too much:
will the other side be worse off b/c of the
amendment?) to the opposing party, in light of the
particular facts of the case, but burden is placed
upon the party opposing the amendment to show
prejudice.
i.
Beeck v. Aquaslide
Facts- Beeck was injured on a pool slide
alleged to have been manufactured by
Aquaslide, and after Aquaslide admitted
manufacture, the president of the company
went to look at the slide for his deposition.
Realizing that the slide was not in fact made
by Aquaslide as his insurance investigators
claimed, the district court granted leave to
amend to deny manufacture over Beeck’s
objection.
Holding- The opponent of a motion for leave
to amend must show he will be prejudiced by
the grant of leave under Rule 15(a).
b. Statutes of Limitations and Relation Back
statute is the time allowed to bring an action,
varies according to different actions
tolling the statute of limitations – adding time
on to the end for various reasons
point of the statute is to prevent stale evidence,
repose
equitable estoppel – if you contribute to the
failure of the plaintiff to meet the statute of
limitations, you should be estopped from claiming
the benefit of any time passed
statute of limitations for fraud begins to run
when you discover the fraud
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relating back – Rule 15(c) treat the action as if
it had been filed earlier, only if it is related
to the original claim
Relation back doctrine is based upon a principle
that one who has been given notice of litigation
concerning a given transaction or occurrence has
been provided with all the protection that
statutes of limitations are designed to afford.
Thus, if the litigant has been advised at the
outset of the general facts from which the
belatedly asserted claim arises, the amendment
will relate back even though the statute of
limitations may have run in the interim.
In determining whether a claim relates back,
courts look to the operational facts set forth in
the original complaint to determine whether
defendant was put on notice.
Relation back cases when a plaintiff wishes to
change a party- Rule 15(c)3
i.
Moore v. Baker
Facts- Moore initially alleged that Dr. Baker
violated the informed consent law, but then
sought to include a claim for medical
malpractice.
Holding- A claim that does not arise out of
the same conduct, transaction, or occurrence
as the original claim may not relate back to
the original pleading. In this case, the new
claim arises out of alleged actions which are
distinct in time and involve separate and
distinct conduct. The failure-to-warn claim
focused on actions prior to surgery, while
the negligence claim focuses on actions
during and post-surgery. Motion denied.
ii. Bonerb v. Richard J. Caron
Facts- After Bonerb filed suit for injuries
received on a basketball court while he was
being treated at the Richard J. Caron
Foundation, he sought to amend his complaint
to add a cause of action for counseling
malpractice
Holding- Allegations in a amended complaint
may relate back to the date of the original
complaint when the new claim derives from the
same nucleus of operative facts as the
original complaint.
The determining factor
is whether the facts stated in the original
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complaint put the defendant on notice of the
claim which the plaintiff later seeks to add.
Motion granted b/c Bonerb merely changed the
legal theory upon which his claim was based.
II.
A.
B.
Discovery
Modern Discovery – contemporary discovery permits
parties to compel the disclosure of witnesses,
evidence, documents, and other matters before trial.
The Possibilities and Limits of Discovery: Relevance
And Privilege – Rule 26(b)1 gives the parties the
right to discover “any matter, not privileged, which
is relevant to the subject matter involved in the
pending action.” The concept of relevance both
grants power and limits it; privilege operates solely
as a limitation.
1. Privilege- Rule 26(b)1 provides protection for
information from certain sources: attorney-client,
doctor-patient, etc. Privilege covers no matter how
valuable the information. Rule 26(b)5 states that
you have an obligation to note anything you are
withholding due to privilege.
2. Relevance- to be discoverable, information must
be relevant. For a piece of evidence to be
relevant to a legal proposition means, according
to the governing substantive law, that the
information tends to prove or disprove something
that the law says matters.
* under Rule 26, a party is entitled to
discovery, not only of material which is relevant
and admissible at trial, but also of information
which appears reasonably calculated to lead to
the discovery of admissible evidence.
a. Blank v. Sullivan and Cromwell
Facts- In a sex discrimination action, Blank
sought to determine form Sullivan & Cromwell, a
law firm, the identities of all female associates
offered or refused partnership with the firm and
the identities of male associates offered
partnership and their lengths of employment,
times of offer, and areas of specialization.
Holding- In an action alleging sex discrimination
in hiring practices, information as to
advancement policies within the defendant’s
organization is sufficiently “relevant” for
purposes of discovery under Rule 26.
3. Goldinger v. Boron Oil Company
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C.
Facts- Goldinger brought this action for wrongful
termination of his employment contract with Boron and
sought the production of any new agreements with
Boron along with the reasons for any changes in those
new agreements, and Boron asserted that any changes
were made as a result of legal advice and were thus
protected by the attorney-client privilege.
Holding- Any reasons for changing the contract used
by Boron with its dealers would be primarily legal in
nature. The reasons for changes in a contract form
made as a result of confidential communication
between a party and his attorney are protected from
discovery by the attorney-client privilege.
Surveying Discovery: Procedures and Methods- Federal
Rules 26-37. Rule 26 is the master rule b/c it
provides a catalog of disclosure and discovery
methods and defines the ground rules (mandatory
disclosure and further discovery).
1. Required Disclosures Rule 26(a)1 – parties must
meet early in the case, and within ten days of
that meeting offer without being asked:
a. names of witnesses
b. descriptions of documents relevant to disputed
facts alleged with particularity in pleadings
c. calculations of damages
d. copies of insurance agreements
If the other side does not produce, you still
have to disclose your required information.
Timeline undercuts its significance in that you
have 85 days to produce. Once these initial
disclosures have occurred, parties may then
request additional information.
Service—(120days)-scheduling-required-conference-discovery
conference material
/
materials
/
up to ten
other forms
days
of discovery
allowed
 the result of these interlocking provisions is to
require the parties to exchange the required
disclosures at least four days before the
scheduling conference and, at the latest, four
months after the complaint is served. More
commonly, where defendant has appeared, the
disclosure will occur no longer than 85 days after
that appearance.
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
Rule 26(d) says that parties may not use other
forms of discovery (depositions, interrogatories,
etc.) until after the meeting required by rule
26(f).
2. Asking Questions: Interrogatories and
Depositions- one may either send ones opponent a
list of questions to answer or take a witnesses
deposition.
a. Interrogatories Rule 33, are typically much cheaper for the
interrogator b/c one can inexpensively frame a set
of applicable questions, send it to an adverse
party, and sit back and wait for the answers; the
recipient must either answer the questions or
object to them.
 Leverage- takes little time to prepare questions,
but an enormous amount of time to answer. Good
way of getting figures without deposing many
people.
 Need court permission to ask more than 25
questions, including all discrete subparts.
 May only be used with a party. Non party
witnesses need not answer.
 Interrogatories and document requests can be posed
together.
b. Depositions Rules 28,30,32,32 – like questioning a witness at
trial without the judge
 Lawyers ask questions the witnesses must answer
under oath. The advantage is that the lawyer can
ask a series of questions that force a witness to
take a positions as to the matters at issue.
 Disadvantage is the cost to all concerned. Both
sides have to have their lawyers there and the
deposing side must arrange for some sort of
recording device
 Without seeking permission, the total number of
depositions taken by one side may not exceed ten,
and no person may be deposed a second time without
the permission of the court or the other side.
 May be used as a method of preserving testimony
 Do not want to depose own witness b/c you are
creating an extra record available to opponent
which may conflict with the later testimony.
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
Common practice to use deposition of expert
witness so you can avoid paying them to wait
around at trial.
 Role of opposing counsel:
a. clear up the mess if the witness has said
something misleading.
b. Make sure that the witness does not answer
questions which should not be answered.
c. Preserve the record by making objections which
will be noted (Rule 30(c)).
d. Object to badly phrased questions which can be
spotted and fixed NOW. Rule 32(d)3 – must
object to errors and irregularities in
deposition at the time they are made IF they
could have been cured at the time, otherwise
you waive the right to object later.
e. Most important objection is leading question –
allowed with hostile witness, but not with own
witness
f. Make objections to form now or lose, relevance
objections can wait since you might not know
at this point what is relevant and what is
not.
g. Rule 30(d)1 – Instruction not to answer, when
necessary to preserve a privilege, or enforce
a limitation directed by court, or to present
a motion to cease deposition b/c it is being
taken in bad faith or to harass the deponent.
c. deposition on written questions- Rule 31 –
lawyer writes down the questions and sends them to
the court reporter presiding. Reporter asks them
and records the answers.
**Not much more useful than an interrogatory b/c
it is hard to write follow up questions without
knowing how the witness will answer.
**Disagreements about whether a question is
justified covered in Rules 30(d), 33(b), together
with 37(a)2 and 4 b/c the procedure differs
depending on what device is being used.
3. Examining Things and People: Production and
Inspection of Documents and Things; Physical and
Mental Examinations- rules 34, and 35
 Rule 34 permits inspection of land and objects
 for a party, send a rule 34 request specifying the
documents sought. Requests from parties may not
be made before the disclosure required by rule
26(a).
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



for a non-party, one makes a similar request but
embodies it in a subpoena issued under Rule
45(a)1(c).
expect a continued struggle to get the documents
who will bear the costs of production?
MENTAL AND PHYSICAL EXAMINATIONS- Rule 35 – not
automatic: need a court order due to the personal
nature. Requires a “good cause” and mental or
physical condition must be in controversy.
Rule 35 has been amended to allow examination of
some non-parties...does include minor whose
parents are suing for their injury.
Rule 35(b)1- party being examined can get a copy
of the doctor’s report or must give a copy of
their own doctor’s report.
Employees not subject to physical examination
unless they are parties.
4.
Asking Your Opponent to Admit Things
a. Requests for Admission- Rule 36 can be
considered as much of a pleading rule as a
discovery device in that it does not uncover
evidence so much as it makes evidence
irrelevant by taking an issue out of
controversy.
 Rule 36 has teeth b/c of Rule 37(c). The adoption
of notice pleading makes this device useful.
 May only be sent to an adverse party, not to a
non-party.
 Unlike interrogatory, request to admit is a true
yes or no. If the answer is yes, the matter will
not be litigated b/c it is an established fact.
In an interrogatory, the answer is a piece of
evidence that may be contradicted by other pieces
of evidence.
 Underused b/c judges reluctant to sanction parties
failing to admit without good reason.
5. Ensuring Compliance- Rule 26(g) and Rule 37.
 a court may impose punishments ranging from awards
of expenses to dismissal of an entire case or the
entry of default judgement.
 Rule 37 sets forth a series of devices designed
either to elicit information or to respond to the
parties’ refusal to supply it. Under (d) and(g) –
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D.
some sanctions available on the occurrence of
misbehavior.
 Rule 37(b) sanctions can not be sought until a
party refuses to comply with a court order. (not
when a party fails to comply with discovery, but
when a party fails to comply with a court order).
 Rule 26(g) requires signatures on disclosures,
requests, and objections and punishes for
unjustified requests and refusals. Attorney’s
fees are appropriate.
Discovery and Privacy – The system seeks to shield
parties from excessive discovery. The general
proposition behind the discovery rule is that people
can be required to reveal relevant information, even
when the information is embarrassing or confidential,
in the ordinary sense of the word. The rules so
recognize, though, that sometimes a zealous or illmeaning adversary will use discovery not just to
uncover information, but also to harass.
 Beyond the general provisions in Rule 26(g)
forbidding abusive discovery, the rules have
devices to control such behavior:
a. Rule 26(c)permits a party to seek a protective
order and gives the judge broad power to
prevent abusive discovery
b. Rule 35 places special limits on the use of
discovery to compel physical or mental
examinations.
1. The General Problem of Privacy- Rule 26(c) gives
the judge the power to enter “any order which
justice requires to protect a party or person
from annoyance, embarrassment, oppression, or
undue burden or expense.” The terms are broad
and undefined. One cannot set forth clear rules
for granting or denying protective orders.
a. Seattle Times Co. v. Rhinehart
Facts- Seattle times co. sought to publish
information obtained through the discovery
process about Rhinehart, an alleged spiritual
cult leader, and his cult members.
Holding- A protective order entered upon a
showing of good cause which does not restrict the
dissemination of information if gained from other
sources does not violate the First Amendment.
Discovery is only for the purpose of preparing
for trial and is not subject to the First
Amendment.
20
2.
A Special Instance: Physical and Mental
Examinations – rule 35 applies to all parties,
plaintiffs and defendants and is free of
constitutional difficulty.
 rule requires that the condition is in controversy
and that there is good cause for requesting an
examination. The relevancy standard has already
been imposed by Rule 26, so this rule means that
there must be an even greater showing of need.
 Rule 35 requires a discriminating application by
the trial judge who must decide whether the party
requesting has demonstrated the existence of the
good cause and in controversy elements.
a. Schlagenhauf v. Holder
Facts- Passengers injured in a bus collision sued
Greyhound, Schlagenhauf, the bus driver, and the
owners of the trailer with which the bus
collided. The trailer owners claimed the
accident was due to Schlagenhauf’s negligence and
moved for a physical and mental examination of
him.
Holding- Under the federal Rule 35 (1) the rule
which provides for physical and mental
examinations of parties is applicable to
defendants as well as plaintiffs; (2) though the
person to be examined under the rule must be a
party to the action, he need not be an opposing
party vis-à-vis the movant; and (3) a person who
moves for a mental or physical examination of a
party who ahs not asserted her mental or physical
condition either in support of or in defense of a
claim must affirmatively show that the condition
sought to be examined is really in controversy
and that good cause exists for the particular
examination requested.
E. Discovery in an Adversary System- some lawyers have
difficulty reconciling the required disclosure of
potentially harmful information to one’s adversary
with competitive stance that adversarial litigation
otherwise fosters.
1. Privilege and Trial Preparation Material – the
original rules had no provision covering trial
preparation materials.
a. Hickman v. Taylor
Facts- Five crew members drowned when a tug sank. In
anticipation of litigation, the attorney for Taylor
interviewed the survivors. Hickman, as
21
representative of one of the deceased, brought this
action and tried by means of discovery to obtain
copies of the statements Taylor’s attorney obtained
from the survivors.
Holding- Material obtained by counsel in preparation
for litigation is the work product of the lawyer, and
while such material is not protected by the attorneyclient privilege, it is not discoverable on mere
demand without a showing of necessity or
justification.
 a common work product problem is the so-called
“contention interrogatory” in which one party
seeks to discover the facts that underlie broad
allegations. The purpose of such interrogatories
is to expand on the generalities of the pleading
and to prepare for the lines of proof one will
need to meet at trail.
 Rule 33(b) states that an interrogatory otherwise
proper is not necessarily objectionable merely b/c
an answer to the interrogatory involves an opinion
or contention that related to fact or the
application of law to fact. But the court may
order that such an interrogatory need not be
answered until after the designated discovery has
been completed
2. Expert Information- Expert typically testify to
inferences one can draw about causes of an event by
applying their special knowledge to the evidence
available. Before a court will let an expert
testify, the party presenting such testimony must
establish that he or she is an expert and that the
expertise is relevant to the contested issues.
* Rule 26 speaks to the problems of expert
testimony. Rule 26(a)2 requires, part of the
initial disclosure, information about experts who
may testify and about the basis for their
testimony. Rule 26(b)4 provides for additional
discovery form experts, requiring that testifying
experts a pretrial deposition, but erecting special
barriers around the opinions of non-testifying
experts.
a. Thompson v. The Haskell Company
Facts- Thompson sued the Haskell Company, alleging
sexual harassment and that her employment with the
company was terminated when she refused to acquiesce
to Zona’s advances. Thompson’s former counsel
employed Dr. Lucas, a psychologist, to perform a
22
diagnostic review and personality profile ten days
after the termination. Thompson sought an order to
protect the records sought by Dr. Lucas.
Holding- Under exceptional Circumstances, a party may
obtain discovery of information by an opposing
party’s expert who has been retained or employed by a
party in anticipation of litigation and who is not to
be called as a witness. Here, the report was made
ten days after the termination and is the only
evidence available which is probative of Thompson’s
emotional state at that time.
b. Chiquita International Ltd. V. M/V Bolero Reefer
Facts- International Reefer, a carrier, sought to
compel discovery of a marine surveyor who had
evaluated its loading cranes and side ports.
Holding- A non-testifying expert may not be subject
to discovery unless exceptional circumstances apply.
A fact witness whose information was obtained in the
normal course of business; however, a non-testifying
expert is a person hired to make an evaluation in
connection with expected litigation. B/c
International Reefer could have employed its own
expert to examine its carrier, and Chiquita did not
prevent another expert from being retained, no
exceptional circumstances apply here.
F. Ensuring Compliance and Controlling Abuse of
Discovery- the Federal rules envisioned discovery
operating largely without judicial intervention, and
the Rules therefore speak of lawyers exchanging
various discovery requests without intervention by
the court. Judges become involved only when the
system breaks down.
1. An Anatomy of Discovery Abuses- the discovery rules
seek to address the complaints in Rule 26(g) and
Rule 37. The first seeks to control abuse by
establishing rules for lawyer behavior, the second
by giving judges tools to punish abuses.
2. Sanction as a Remedy- average level of experience
decreasing, and the larger the size of the
profession mean that two lawyers facing each other
in litigation are less likely to ever encounter one
another again. Such one –shot encounters increase
the lawyers’ propensity to engage in unattractive
forms of behavior, especially in high-stakes law
suits.
a. Phillips v. Manufacturers Hanover Trust Company
23
Facts- Opposing counsel objected at least 49 times in
an hour and a half deposition by Phillips’ attorney.
Holding- An attorney who impedes, delays, or
frustrates a deposition may be subject to sanctions.
Under the Federal Rules 30(d)1, sanctions may be
awarded for conduct which the court finds has
frustrated the fair examination of the deponent.
III. Resolution without Trial
A.
Avoiding Adjudication- parties should use litigation
as a last resort. Settlements can be bad b/c some
feel unsatisfied and there are no precedents made.
1. Negotiation and Settlement
a. Contracting for Judgment- to what extent are
judicial pronouncements themselves manipulable by
agreement among the parties? Should the parties,
by agreement, be able to bring about the
retraction of a judgment?
i. Neary v. University of California
Facts- Neary and the U of CA having reached a
post-judgment settlement, unsuccessfully applied
to the court of appeals for a stipulated reversal
of the jury verdict in Neary’s favor following a
full trial on the merits
Holding- Litigants should be entitled to
stipulated reversal to effectuate settlement. It
is well established that settlements are to be
encouraged. While the pretrial settlements are
preferable, post-trial settlements are of value
also. Post-judgment settlements are efficient b/c
they preclude the need for future expenditures of
time and money by the parties and the judiciary.
Also, post-judgement settlements negate the
possibility of reversal and retrial. Here, the
parties, clearly wanted a stipulated reversal and
no reason exists why they should not be given one.
ii. US Bancorp Mortgage Co. v. Bonner Mall
Facts- Bancorp sought to vacate an adverse judgment
Pending an appeal after the parties settled.
Holding- federal appellate courts should not vacate
civil judgements of lower courts in cases that are
settled after an appeal is filed. Both parties, in
this case, did not agree to vacate the judgement.
2. Guided Negotiation- generally one can trace the
failure of negotiations to two different causes:
* the parties may have different estimates of
the results of litigation
* the parties have similar guesses about
24
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

the results of litigation, but one or the
other is bluffing
Arguments for allowing vacatur1. conflict is unique and of vague value to the
parties only so don’t need a precedent
2. litigation system is for resolving disputes,
not a search for legal truth
3. only a dispute when parties say there is;
court does not seek out law
Arguments against allowing vacatur1. it will deter pre-trial settlement (only makes
sense for repeat players b/c it makes sense
for them to wait and see)
2. if no vacatur, the parties are more likely to
settle is they know they won’t be able to
vacate a judgment
3. repeat player will re-litigate with a new
plaintiff
MEDIATION AND ARBITRATION:
1. Mediationa. mediator helps parties reach and
agreement, structures discussion to lead
to an agreement, but does not rule
b. no coercive power and the parties must
agree; only offers suggestions
2. Arbitrationa. parties decide they want a third party to
settle their dispute
b. permits parties to design their own
procedure (parties may decide to follow
precedent or not to follow precedent)
c. parties may control the applicable
substantive law
d. may be faster, cheaper, and more private
than ordinary litigation
e. parties may be able to get a specialist to
arbitrate
a. sometimes the arbitrator lacks legal
training; lawyers need to equalize
parties’ different power and capacities
3. Types of arbitrationa. pre-dispute agreement: agree beforehand
in contract to settle disputes in
arbitration
b. post-dispute agreement: cheaper, faster,
and parties can change the rules
25
c.
court-annexed: court says that certain
types of cases should go to arbitration
first, before getting to a trial. The
decision is final unless you ask for a
trial.
4. Limits of Arbitrationa. for some disputes an arbitration contract
would be unenforceable (EX: divorce)
b. issues of public law are beyond the scope
of arbitration
c. can’t appeal arbitration decisions
d. arbitration can’t give an authoritative
declaration of law, a jury trial, or the
advantages of discovery
5. Friedman feels that arbitration is good for
small claims that would never get to trial.
Feels that we have enough precedent, so that
argument against arbitration is weak.
Alternative dispute resolution is common, but
we focus on litigation b/c it is the ultimate
public forum
3. Contracting for Adjudication
a. Possibilities of Arbitration
i. Ferguson v. Writers Guild of America
Facts- After a Writers Guild arbitration
proceeding supported a Guild determination that
Ferguson should get only a partial writing credit
on a film, Ferguson sued to set aside the
arbitration proceeding.
Holding- Judicial Review of arbitration
proceedings is limited to whether the parties
agreed to arbitration, whether the arbitration
procedures provide a fair opportunity to be heard,
and whether the arbitrators exceeded their powers.
B. Curtailed Adjudication: Summary Judgmentadjudicative alternative to trial for cases so onesided that trial would be pointless. Rule 56 governs
the making and granting of motions for summary
judgment. The key provision, in rule 56(c), provides
that such motions are to be granted when the record
shows that there is no genuine issue as to any
material fact, and that the moving party is entitled
to judgment as a matter of law. Courts decide
summary judgment motions on the basis of various
documents (affidavits, deposition, transcripts,
copies of relevant documents); no witnesses testify
in court, and no jury is present. Because some of
26
the modes by which we assess witness credibility are
absent, the law responds by trying to rule out any
assessments of credibility.
* one of the most common documents in a motion is
the affidavit (written document in which the affiant
swears under penalty of perjury that the statements
made are true.)
1. Celotex Corp. v. Catrett
Facts- In Catrett’s action against Celotex for the
death of her husband as a result of his exposure to
asbestos manufactured by Celotex, Celotex moved for
summary judgement, contending that Catrett had failed
to identify, in answering interrogatories specifically
requesting such information, any witnesses who could
testify about the decedent’s exposure to Celotex
asbestos.
Holding- the plain language of the federal rules
mandates the entry of summary judgement, after adequate
time for discovery, against a party who fails to make a
showing sufficient to establish the existence of an
element essential to that party’s case.
1. Vissier v. Packer Engineering
Facts- After Packer purportedly fired Vissier for
disloyalty, Vissier filed an age discrimination suit,
alleging he was fired b/c he was 64 years old and his
pension was within months of vesting.
Holding- Under Rule 56, a district court will enter
summary judgment if, on the evidence presented during
the summary judgement proceeding, no rational jury
could find for the party opposing the summary
judgement.
C. Judicial Management of Litigation- Recently the
courts have sought to speed the choice of parties of
settlement or arbitration and suggest which the
parties should use. Common characteristics of thee
efforts by the courts are deadlines for phases of
litigation, active judicial encouragement of
settlement, and judicial exploration of means other
than adjudication by which litigation can be ended.
1. Managed Litigation- Rule 16 (Pretrial conferences,
scheduling and management) establishes as one of
its objectives “establishing early and continuing
control so that the case will not be protracted b/c
of lack of management.” The civil Reform Act of
1990 empowers a district court to go further than
Rule 16: under the Act, each judicial district
must establish a “civil justice expense and delay
27
reduction plan” The combined effect of the Act and
the rule has broadened the management discretion of
the district judges and diluted the uniformity of
practice under the federal rules.
 the underlying assumption is that the setting of
firm dates will prevent counsel and judges from
procrastinating.
 Summary jury trial- is a settlement device. In
these trials a small jury (of usually eight or
fewer) is chosen, and the parties present their
cases to it in a very abbreviated form (usually
with the lawyers narrating what the evidence will
show). The “jury” is charged, deliberates and
returns a verdict – which, however, is not
binding.
2. Managing a Settlement- The Civil Justice Reform Act
and Rule 16 are schizophrenic: they aim both at
encouraging settlement and shaping a case for
trial.
a. Lockhart v. Patel
Facts- In Lockhart’s action against Patel for medical
malpractice, Patel’s insurer was directed by the
court to attend a settlement conference, and when the
company did not send a representative to the
conference who had authority to settle the case, the
court ordered a hearing to show cause why the company
should not be punished for criminal contempt.
Holding- the authority of a federal court to order
the attendance of attorneys, parties, and insurers at
settlement conferences and to impose sanctions for
disregard of the court’s orders is so well
established as to be beyond doubt.
3. Managing Litigation Bound for Trial: The Pretrial
Order- a function served by conferences is the
preparation of parties for the actual trial by
encouraging both a winnowing of legal theories and
factual disputes and a precise identification of
questions to be contested at trial.
* The most commonly litigated issue involves a
situation in which the pretrial order specifies
that certain issues will be tried, certain
witnesses will testify, or certain evidentiary
items will be introduced, and then one party seeks
to raise matters of present evidence not within the
scope of the order.
a. McKey v. Fairbairn
28
Facts- McKey’s decedent slipped on water which leaked
through the roof of a house rented from Fairbairn as
agent, and the trial court denied McKey’s motion to
amend her complaint to include certain housing
regulations after her counsel had orally agreed with
the judge that negligence was their theory of
recovery.
Holding- a Trial judge has broad discretion to
exclude evidence supporting a theory of recovery not
raised in the complaint.
IV. Trial
A.
The Limits of Rational Inference- if the facts are
basically undisputed; the question then becomes what
inferences one can draw from those facts and , more
particularly, whether one can infer causation from
those facts.
1. Reid v. San Pedro
Facts- Reid gave evidence showing that his cow was
killed by San Pedro’s train wither b/c San Pedro
neglected to repair a fence or b/c Reid neglected to
close the gate allowing the cow to get on to the
tracks.
Holding- A plaintiff has the burden of presenting
evidence that is more probable than not that the
defendant is liable in order to overcome a motion for a
directed verdict for the defendant.
2. Tittle v. Aldacosta
Facts- Aldacosta was injured when she disembarked from
a boat owned and captained by Tittle.
Holding- Finding of fact made by the trial judge will
not be set aside unless clearly erroneous.
B. Procedural Control of Rational Proof1. Juries, Democracy, and Rationality* the jury embodies several contradictory goals: a
fact-finding body, the voice of the community, and
temporary lay and democratic institution.
2. Adversary Responsibility for Proof- trial procedure
is designed less to assure truth than fairness.
3. Burdens- we assign to one of the parties the burden
of proving some aspect of a case. Then, if the
trier of fact finds that the party has not offered
the required proof, that party looses.
a. burden of persuasion- defines the extent to which
the trier of fact must be convinced of some
proposition in order to render a verdict for the
party who bears it. In civil cases, the burden of
persuasion is lower than “beyond a reasonable
29
doubt.” It is variously defined as “the
preponderance of the evidence,” “more probable
than not,” or “more likely than not.” The
preponderance standard means that a trier of fact
can find for the party with the burden of
persuasion if the trier finds the material fact
merely “probable.”
b. burden of production- by contrast, who bears the
burden of production in a civil case often matters
a great deal. Requires a party to “produce,” to
find, and present evidence in the first place. If
the plaintiff fails in any of the steps of
production, he loses – even though as a matter of
historical fact, the defendant did run the red
light. Plaintiff loses b/c he has failed to
satisfy the burden of production- of coming
forward with the evidence from which a trier of
fact could conclude some proposition of material
fact.
4. Controlling Juries Before the Verdict- to define
the boundaries of jury rationality courts employ
several procedural devices. Two of these, the law
of evidence and the power of instructing the jury
on the law and of commenting on the evidence, are
designed to control the flow of information that
reaches the jury. Three other devices – the
directed verdict, the judgment notwithstanding the
verdict, and the grant of new trials – are designed
to control what the jury does with the information
and, specifically, to prevent it from drawing the
“wrong” conclusions. Each of these latter three
devices is triggered by the party’s argument that
the jury should not be permitted to decided in
favor of the other side given the evidence it has
heard, and that the jury was subject to improper
influences.
a. Directed Verdict (judgment as a matter of law)Rule 50 permits a party, at the close of the
other party’s case to move for a “judgment as a
matter of law.” In so moving the defendant would
be asking the judge to take the case away from
the jury – to prevent it from considering the
evidence and reaching a verdict. The ground for
this motion is that the evidence presented would
support only one result. In the words of Rule
50(a) “there is no legally sufficient evidentiary
30
basis for a reasonable jury to find for the party
on that issue.
* the black letter law says that the judge
should direct a verdict only if there is no
rational basis for a jury to find in favor of the
party against whom the verdict is directed.
i. Pennsylvania RR v. Chamberlain
Facts- When deceased was killed while routing RR
cars, Chamberlain sued Penn. RR for negligently
bringing about a collision. Three eyewitnesses
testified that there was no collision and one
witness gave testimony which would have given
equal inferential support for both collision and
non-collision.
Holding- Where evidence is so insubstantial that
if a verdict is rendered for one of the parties,
the other would be entitled to a new trial, it is
up to the judge to direct a verdict according to
the court’s view of al of the evidence.
b. Excluding Improper Influences- the judges must do
everything they can to assure that the jurors
won’t reach verdicts that can’t be sustained by
the evidence.
c. Instructions and Comment- the judge also tries to
teach the jury by framing the questions for
decision and. Perhaps, commenting on the
evidence. Besides telling the jury what the law
is, the judge can, if she is very careful, tell
the jury what she thinks of the evidence.
5. Controlling Juries After the Verdict
a. Judgment Notwithstanding the Verdict- judges faced
with a pre-verdict Rule 50 motion, and believing
that the party with the burden of production has
failed to meet it, will sometimes nevertheless
deny the motion. If a judge grants the motion,
and an appellate court reverses, a whole new trial
will be necessary. If the judge denies the
motion, the jury will likely return the verdict
for the proper party without any judicial
intervention. If not, the judge can always rescue
the case by granting a judgement notwithstanding
the verdict – essentially a late ruling on the
earlier motion for judgement as a matter of law.
b. New Trial – rule 59 governs the granting of new
trials, which the judge may order on her own
initiative or on a party’s motion. Rule 59 does
not specify the grounds for which a new trail may
31
be ordered, but common law indicates focusing on
the procedure leading up to the verdict and the
correctness of the verdict itself.
i.
Flawed Procedures- new trials may be granted
when the judge concludes that the process leading
up to the verdict has been flawed. Ordering the
new trial gives the judge a chance to correct
herself. Rule 59 even gives the judge power to
order a new trial if neither party so moves.
ii. Flawed Verdicts- the judge may conclude that
even though the trial was perfect, the verdict is
unjustifiable. Such a verdict tells the judge
that the jury either misunderstood or ignored the
instructions. Probably the most common ground for
the grant of a new trial is that the verdict is
against the weight of the evidence.
* in granting a j.n.o.v. a court is saying not
only that the winner of the verdict had little
evidentiary support, but more importantly, the
other side had overwhelming support. A j.n.o.v.
results not in a new trail, but in an immediate
entry of a judgment for the lose of the verdict.
By contrast, a grant of a new trial does not make
a winner out of a loser; it merely begins the
contest again.
iii. Lind v. Schenley Industries
Facts- Lind began duties as an employee for
Schenley’s predecessor, Park, pursuant to a
written contract and certain oral representations
made by Park’s VP, and upon Lind’s action to
recover 1% of sales commissions due as promised,
the trial court granted Schenley’s motion for a
directed verdict which nullified the jury award of
damages to Lind and permitted a new trial.
Holding- Where nothing indicates that the jury was
not properly presented wit correct evidence, the
judge may not nullify the jury verdict by granting
a new trial so long as the evidence admits of the
conclusion made by the jury.
c. Conditional New Trials
i. New Trial Limited to Damages- to be prepared
to order a new trial limited to the issue of
damages, the judge must be convinced that whatever
influences led the jury astray on damages did not
infect the judgment on liability as well.
ii. Remittitur and Additur- In a remittitur, a
judge can order anew trial unless the plaintiff
32
agrees to accept reduced damages. The damageincreasing analogue is additur. The court will
determine damages by the highest amount a jury
could award, the reasonable amount, and the lowest
reasonable amount.
V.
A.
Respect for Judgments
Claim Preclusion- forbids a party from re-litigating
a claim that should have been raised in former
litigation. Referred to as res judicata. Has
several goals: efficiency, finality, and the
avoidance of inconsistent judgments.
1. Precluding the Same Claim- the standard doctrinal
formulation says that the claim preclusion bars the
same claim from re-litigation.
a. Efficiency
i. Frier v. City of Vandalia
Facts- After Frier lost his state court suit
against Vandalia for replevin of his car, he then
sued Vandalia in federal court under 42 USC §1983
for depriving him of his car without due process
under color of law.
Holding- Claim preclusion bars a second suit where
the first suit arose out of the same transaction.
 Restatement sets forth a broad statement of
claims: when a valid and final judgment rendered
in an action extinguishes a plaintiff’s claim
pursuant to the rules of merger or bar..., the
claim extinguished includes all rights of the
plaintiff to remedies against the defendant with
respect to all or any part of the transaction, or
series of connected transactions, out of which the
claim arose. A transaction gives weight to
whether the facts are related in time, space,
origin, or motivation, whether they form a
convenient trial unit, and whether their treatment
as a unit conforms’ to parties expectations.
 Claim preclusion is designed to impel parties to
consolidate related matter into one suit. This
prevents the oppression of defendants in multiple
cases, which may be easy to file and costly to
defend.
 Arithmetical splitting occurs when a plaintiff
tries to recover for separate damages from the
same incident in separate actions.
33

Splitting relief occurs when a plaintiff asserts
one remedy in one action and seeks an alternative
or supplemental remedy in a second action.
b. Consistency – the logical implications of the
Former judgment- claim preclusion arises also to
prevent at least the most egregious forms of
inconsistency in successive judgements. Common
law had no compulsory counterclaim rule, but the
Federal Rules 13(a) was the explicit rule felt
needed.
i. Martino v. McDonald’s System
Facts- Martino alleged that a franchise and lease
agreement between Martino and McDonald’s violated
provisions of the Sherman Antitrust Act.
Holding- Res judicata bars a counterclaim when
its prosecution would nullify rights established
by prior action. It is an accepted general rule
that when facts form the basis of both a defense
and a counterclaim, the defendants failure to
allege these facts does not preclude him form
relying on those facts in an action subsequently
brought by him against the plaintiff. However,
an exception to this general rule provides that
res judicata bars a counterclaim when its
prosecution would nullify rights established by a
prior action.
2. Between the “same” parties – most commonly claim
preclusion will operate only between those who were
the parties both to the first and to the second
lawsuit; by contrast, different parties possess
different claims for preclusion purposes, even when
those claims arise out of the same transaction.
* sometimes it is possible for someone not formally
named as a party to be so closely connected with a
suit that it is appropriate to treat her as if she
were named. When the court does so, they often
describe the party bound as “in privity” with the
party to the first suit.
a. Searle Brothers v. Searle
FACTS: Edlean Searle sued Woodey Searle for divorce.
During that proceeding, the court determined that a
piece of property known as the “Slaugh House” which
was recorded in Woodey’s name, was part of the
marital property and subsequently awarded the entire
property to the wife. Woodey argued that he had a
half interest in the property and that the other
half was owned by a partnership with his sons as
34
partners. Searle Brothers, the partnership, then
sued Edlean Searle, claiming an undivided one-half
interest in Slaugh House. The trial court held that
res judicata and collateral estoppel barred the
action by Searle Brothers.
HOLDING: Searle Brothers interests was neither
mutual nor successive, Searle Brothers claims no
part of the interest owned by Woodey, but asserts
its own, independent, and separate partnership
interest in 50% of the property involved.
Collateral estoppel may not be applied against
Searle Brothers b/c it was not a partner to the
first suit, and there is insufficient evidence in
the record to show that the interest of the
partnership in the Slaugh House was ever litigated.
3. After Final Judgment- it is sometimes said that the
doctrine of claim preclusion requires a prior final
judgment. Certain kinds of administrative
determinations may be entitled to a claim preclusion
effect.
* the usual rule is that the judgment is final even
though an appeal is pending . some courts solve the
problem by postponing the judgment until after the
appeal is resolved.
4. After Judgment “on the merits”- all agree that a
judgment after a full trial is undoubtedly entitled
to preclusive effect. Rule 41(b) provides that
unless the court in its order for dismissal
specifies, a dismissal under this subdivision and
any dismissal not provided for in this rule, other
than a dismissal for lack of jurisdiction, for
improper venue, or for failure to join a party under
Rule 19, operates as an adjudication on the merits.
* According to the Federated Department Stores v.
Moitie, the dismissal for failure to state a claim
under Fed. Rules. Civ. Pro. Is a judgment on the
merits.
B. Issue Preclusion- issue preclusion bars from relitigation only those issues actually litigated and
determined.
* the black letter of issue preclusion is simple in
that it states that when an issue of fact or law is
actually litigated and determined by a valid and
final judgment and the determination is essential to
the judgment, the determination is conclusive in a
subsequent action between the parties, whether on the
same issue or a different claim.
35
1. The Same Issue- a threshold question in all issue
preclusion cases will be the identity of the issue
to be precluded.
2. An Issue “Actually Litigated and Determined”
a. Illinois Central Gulf RR v. Parks
FACTS: Parks and his wife were injured when their
car collided with an Illinois Central train. Parks’
wife recovered on her claim for damages for personal
injuries, but judgement was rendered for Illinois
Central on Parks’ own claim for damages for loss of
consortium and loss of services. Parks then sued
Illinois Central to recover for his own injuries.
On Illinois Central’s motion for summary judgement,
the trial court held that Parks’ claim was not
barred by res judicata, and that the prior actin did
not collaterally estop Parks on the issue of
contributory negligence.
HOLDING: the doctrine of estoppel by verdict allows
a judgement in a prior action to operate as a
complete bar to those facts or issues actually
litigated and determined in the prior action.
3. Between Which Parties? – at common law the identity
of parties (called mutuality) was a requirement for
both claim preclusion and issue preclusion. It
continues to be a requirement for claim preclusion;
in recent decades, however, many courts have
abandoned this requirement for issue preclusion.
a. The “Victim” of Preclusion – biologically
separate individuals possess separate claims,
and no rule compels such individuals even when
married to each other, to prosecute their claims
together. The “victim” of issue preclusion is
the party that had full and fair opportunity to
litigate the matter in the first suit.
 whether attributed to simple fairness or to due
process, all agree that the party who has never
had an opportunity to litigate an issue cannot be
precluded from doing so.
 The requirements of due process of law forbid the
assertion of a plea of issue preclusion against a
party unless he was bound by the earlier
litigation in which the matter was decided. He is
bound by that litigation only if he has been a
party thereto or in privity with a party thereto.
b. The Precluder
i. Parklane Hosiery v. Shore
36



FACTS: Shore sought recission of a merger on the
ground that Parklane, a party to the merger, had
issued a false and misleading proxy statement, and
in a separate action files by the SEC, the
district court found the proxy statement to be
false, so Shore moved for partial summary judgment
in this action on that issue, alleging that
Parklane was collaterally estopped from relitigating the issue.
HOLDING: A trial judge has broad discretion to
permit the offensive use of collateral estoppel to
establish an element of a plaintiff’s case where
it is not unfair to the defendant. The general
rule should be that in cases where a plaintiff
could easily have joined in the earlier action or
where either for reasons of procedure, or
reluctance to litigate aggressively for small
claims, the application of estoppel would be
unfair to defendant, the trial judge should not
allow the use of offensive collateral estoppel.
offensive use of collateral estoppel occurs when
the plaintiff seeks to foreclose the defendant
from litigating an issue the defendant has
previously litigated unsuccessfully in an action
with another party.
Defensive use occurs when a defendant seeks to
prevent a plaintiff from asserting a claim the
plaintiff has previously litigated and lost
against another defendant.
According to United State v. Mendoza, the US
cannot be subjected to non-mutual issue
preclusion. The Mendoza court worried that
applying Parklane to the US would force the
government to appeal virtually ever case it lost,
for fear of its effect in subsequent cases. Also,
ma of the suits to which the US is a party involve
constitutional questions. If one applied Parklane
to the US, a single district court decision
against the US on a constitutional issue would
become, by virtue of issue preclusion, a kind of
super-precedent, which would bind all other
courts, including the Supreme Court.
ii. State Farm fire and Casualty co. v. Century
Home Components
FACTS: Over 50 separate actions for damages were
filed against Century Home to recover losses from
a fire. Three of the actions proceeded separately
37
through trial to final judgment. One judgment was
awarded in favor of Century home and judgment was
twice awarded to separate claimants. State Farm
who was not a party to any of the previous actions
sought to utilize the prior claimants judgments
to establish conclusively Century Home negligence
and its responsibility for any losses caused by
the fire.
HOLDING: where prior judicial determinations on a
Particular matter are inconsistent, the doctrine
Of collateral estoppel will not bar re-litigation.
c. Issue Preclusion: exceptions to the general
rule- re-litigation of the issue in a subsequent
action between parties is not precluded in the
following circumstances:
(1) party could not have obtained a review of
the judgment in the initial action
(2) the issue is one of law and the two actions
involve claims that are substantially
unrelated, or new determination is
warranted in order to take account of an
intervening change in the applicable legal
context
(3) differences in the quality or extensiveness
of the procedures followed in the two
courts
(4) party against whom the preclusion is sought
had a significantly higher burden of
persuasion with respect to the issue in the
initial action than in the subsequent
action; the burden has shifted to his
adversary or the adversary has a
significantly heavier burden than he had in
the first action
(5) potential adverse impact of the
determination on the public interest, not
sufficiently foreseeable at the time of the
initial action that the issue would arise
in the context of a subsequent action
(6) TWO SPECIAL SITUTAIONS involve governmental
interests that outweigh the ordinary claims
of issue or claim preclusion: (1) intent
of the legislature not to have ordinary
rules of preclusion prevent the airing of
certain favored claims without full and
fair hearing and (2) the federal courts
have also wrestled with what preclusive
38
effect to give state court proceedings in
civil rights cases
d. The Law of the Case and Judicial Estoppel- the
two doctrines are logically and technically
distinct from claim and issue preclusion, yet
sometimes play roles resembling them.
(1) the law of the case- functions within a
single case to prevent re-litigation of
decided points of law. Serves to stabilize
such a legal ruling once it has been made.
The doctrine essentially says that the
parties get a single appellate shot at
their legal contentions and that, once they
have achieved such an appellate ruling, it
continues to govern in subsequent trial and
appellate proceedings
(2) the doctrine of judicial estoppel – or
preclusion form inconsistent positions, is
typically invoked when a party has taken a
sworn position in a prior proceeding,
benefited from that position by receiving a
judgment or other official award, and now
seeks to take a differing position in the
present proceeding in order to win a
judgment that would rest on a basis
inconsistent with his prior position.
Atleast three elements must always be
satisfied: First, the party sought to be
estopped must assert a position
inconsistent with that taken in prior
litigation and the position must be one of
fact rather than one of law or legal
theory. Second, the prior inconsistent
position must have been accepted by the
court and third, the party sought to be
estopped must intentionally have mislead
the court to gain unfair advantage.
VII. Joinder- Modern civil procedure in the US has two
distinguishing features. One, discovery, increases the
depth of any given lawsuit. The other, broad joinder of
claims and parties, increases the potential breadth of a
suit. The advantage of a larger litigative “package” is
that it allows a single suit to adjudicate multiple claims
against multiple parties and permits litigation to reflect
some of life’s complexity.
A. Joinder of Claims
1. Joinder of claims by plaintiff
39
a.
historical background- the consequences of a
mistake in joinder at common law were severe.
Misjoinder could lead to a successful demurrer or
even the upsetting of a verdict. Equity was more
relaxed. There were limits, however, and a bill
in equity could be found objectionable for
multifariousness, meaning that it combined too
many claims.
b. federal rules- the rules eliminated all barriers
to joinder of claims by a plaintiff. Rule 18- a
single plaintiff can join any and all claims he
has against a single defendant. (Rule 42(b)
permits a judge to sever claims for trial
convenience.) Although rule 18(a) permits
joinder, it does not compel it. So far as the
rules are concerned, there is no compulsory
joinder of claims.
c. joinder and jurisdiction- the most difficult
joinder issues often involve jurisdictional
considerations. Federal courts are tribunals of
limited jurisdiction: they do not have
jurisdiction unless a provision of the
Constitution and a statute grants it to them.
(diversity jurisdiction, federal question, or
supplemental jurisdiction conferred by §1367).
* §1367- grant of supplemental jurisdiction
depends on three variables: (1) the basis of
original jurisdiction over the case; (2) the
identity of the party-  or  - seeking to invoke
supplemental jurisdiction; and (3) the rule
authorizing the joinder of the party or claim
over whom supplemental jurisdiction is sought.
2. Counterclaims Claims by the defendant: - Rule 13
permits defendants to assert counterclaims and
divides claims into two categories: compulsory and
permissive.
 permissive- a pleading may state as a counterclaim
any claim against an opposing party not arising
out of the transaction or occurrence that is the
subject matter of the opposing party’s claim.
 Compulsory- a pleading shall state as a
counterclaim any claim which at the time of the
pleading the pleader has against any opposing
party, if it arises out of the same transaction or
occurrence that is the subject matter of the
opposing party’s claim and does not require for
40
its adjudication the presence of third parties of
whom the court cannot acquire jurisdiction.
a. Plant v. Blazer Financial Services
Facts- p executed a note to be pad to d in
monthly installments. No payments were made. P
brought suit in federal court alleging violations
of the Truth in Lending Act by d for failure to
disclose a limitation on after-acquired security
interests. D sought to interpose a counterclaim
for the amount of the note which p challenged as
not compulsory and an improper permissive
counterclaim, as no diversity or federal question
existed.
Holding- Rule 13(a) of the federal rules of civ.
Pro provides that a counterclaim is compulsory if
it arises out of the transaction or occurrence
which is the subject matter of the plaintiff’s
claim. Four inquires are designed to provide an
answer: (1) are the issues of fact and law the
same? (2) would res judicata bar a subsequent
suit on the counterclaim? (3) is the same
evidence involved? (4) is the counterclaim
logically related to the main claim? All need not
be satisfied. Under the last, or logical
relation test, it is clear that the same
operative facts give rise to both claims here. A
claim for the amount of the debt owed pursuant to
a transaction which is the subject of a Truth-InLending suit brought in federal court is a
compulsory counterclaim of such suit. Other
district courts are in accord. Had Congress
intended to insulate truth in lending recoveries
from counterclaims of creditors, it could have
done so.
b. Permissive Joinder- Rule 20 governs... plaintiff
has a choice of who to join as a co-defendant and
who to join as a co-plaintiff. Rule 20 states
that all persons may join in one action as
plaintiffs if they assert the right to relief
jointly, severally, or in the alternative in
respect of or arising out of the same
transaction, occurrence, or series of common to
all these persons will arise in the action.
B. Joinder of Parties
1. by defendants: third party claims- although modern
procedure accords plaintiffs great autonomy, it
does not give plaintiff the last word about parties
41
to the suit. Defendants can join additional
parties.
a. Watergate Landmark Condo Unit Owners Ass’n v.
Wiss, Janey, Elstner Associates
Facts- The Watergate Condo manager (d) , who was
sued by the Association b/c repairs, designed by
Wiss (d), to the condo complex were
unsatisfactory, cross complained against Wiss (d)
and filed a third party complaint against Brisk
(d), who had faithfully done the repairs designed
by Wiss (d).
Holding- A third party claim cannot be
maintained unless the liability asserted against
the third party is derivative of the main claim.
A third party claim may be ,maintained only if
the third party would be either secondarily or
derivatively liable to the defendant is the
defendant were found liable.
 Because rule 14 permits impleader only where the
substantive law permits the defendant to pass on
liability to another party, most of the difficult
problems in impleader cases are substantive.
 Recently view has prevailed that plaintiff should
be able to select from available defendants those
he wants to sue rather than being forced
 In order to implead a third-party defendant, the
impleading party need not show liability
conclusively; it is enough to show that the third
party defendant may be liable for all or part of
the damages sought from the defendant.
2. More Complex Litigation Rule 13(h) permits additional parties to a
counterclaim is the Rule 20 joinder tests have
been satisfied
 Once a party can make a third party claim against
another under rule 14(a), he can make any other
claim he ahs against that party. Rule 18 permits
joinder of all claims whether related or not.
 Original cross-claim has to meet requirements of
Rule 13(g); it is does, then Rule 18 would permit
the cross-claimant to add as many additional
claims, whether or not related, as it wishes
3. Compulsory joinder- necessary and indispensable
parties notion has its roots in the eighteenth
century equity practice. Chancery developed the
notions that (1) litigation often affected people
42
who were not formal parties and (2) that if the
effects were serious enough and the affected
persons could be joined, they should be. These
principles, however, collide head-on with
assumptions about party autonomy.
 simply b/c a party could properly be joined under
the permissive joinder rules does not mean that it
must be joined under the compulsory rules. The
necessary parties rules therefore typically only
operate when there is some connection of property
ownership, contract rights, or obligations between
those who are initially made parties and those who
have not been joined.
 Rule 19 seeks to describe the circumstances under
which courts should overcome the ordinary
presumptions of party autonomy.
 Provident Tradesmens Bank and Trust Co. v.
Patterson set out some general rules for applying
Rule 19. The rule suggests four “interests” that
must be examined in each case to determine whether
the court should proceed without a party who
absence from the litigation is compelled:
(1) the plaintiff has an interest in having a
forum
(2) the defendant may properly wish to avoid
multiple litigation or inconsistent relief,
or sole responsibility he shares with another
(3) there is the interest of the outsider whom it
would have been desirable to join
(4) there remains the interest of the courts and
the public in complete, consistent, and
efficient settlement of controversies.
a. Temple v. Synthes Corp.
Facts- Temple’s federal suit against Synthes, the
manufacturer of a plate implanted in Temple’s
back, was dismissed when temple failed to join
the doctor and the hospital responsible for
installing the plate
Holding- Joint tort-feasors are not necessary
parties under rule 19. Merely a permissive
party.
b. Helzberg Diamond Shops v. Valley West Des Moines
Shopping Center
Facts- Helzberg’s brought this suit to enjoin
Valley West, Helzberg’s commercial landlord, from
breaching their lease agreement by leasing more
than two full-line jewelry stores in the mall
43
where Helzberg’s leasehold was located, and
Valley West unsuccessfully moved to dismiss on
the ground that Helzberg’s failed to join the
full line jewelry store, Lord’s.
Holding- a tenant under a lease which violates a
clause in another tenant’s lease from a common
landlord is not an indispensable party under Rule
19 to a suit by such other tenant against that
landlord.
C. Intervention- to permit an un-joined party to elbow
her way into a suit where no one else wants her
there. Like the doctrines of compulsory joinder, the
principles of intervention flow from recognition that
lawsuits may have effects on persons not joined. If
they are entitled to intervene, they would thereby
become parties to the suit, with the right to present
evidence and arguments. From the standpoint of the
existing parties it complicates and perhaps weakens
their litigation strategy. Conceptually,
intervention means further erosion of party autonomy.
 Rule 24 governs intervention: any one shall be
permitted to join in an action when a statute
confers the right, or when an applicant claims an
interest relating to the property or transaction
which is the subject of an action. Intervention
is permissive when: there is a statute conferring
the right, or when there is a question of law or
fact in common. A person desiring to intervene
shall serve a motion to intervene. The motion
shall state grounds and shall be accompanied by a
pleading.
 Intervention under Rule 24 and the compulsory
joinder of parties under Rule 19 deal with related
problems. The texts under the two rules closely
resemble each other; more fundamentally, the two
rules address similar issues. Rule 19 from the
viewpoint of those already in the lawsuit and Rule
24 from those outside of the lawsuit.
1. Martin v. WilksFacts- as a part of a discrimination action, a
consent decree was rendered between the city of
Birmingham and a class if black firefighters. As a
part of the decree, the City instituted an
affirmative action program. Subsequent to this, a
group of white firefighters filed a reverse
discrimination action. The district court
dismissed holding that b/c the white firefighters
44
D.
E.
had had notice of the prior action but had elected
not to intervene, the matter was res judicata as to
them. The Eleventh Circuit reversed, and the Sp.
Ct. granted review.
Holding- a party may not be bound by a judgment
rendered in an action in which he was not a party,
even if he had had knowledge of the prior action.
The argument asserted by those defending the
consent decree is that by knowing about the
underlying action and failing to intervene, the
plaintiffs herein waived that objection to being
bound. This is incorrect. A party seeking a
judgment binding on another cannot obligate that
person to intervene; he must be joined.
Interpleader: a device that enables a party against
whom conflicting claims with respect to the same debt
or property are asserted to litigate by joining all
adverse claimants in the same action and require them
to litigate among themselves to determine which, if
any, has a valid claim to the debt or property
asserted.
1. to protect a stakeholder from possible legally
inconsistent liability and to avoid multiplicity
of actions and the risk of inconsistent results
2. statutory interpleader: permitted by U.S.C.
§1335, which contains special provisions as to
jurisdiction, venue, and service of process if:
a. two or more claimants of diverse citizenship
are making adverse claims and
b. the debt or property has a value of at least
$500.
3. Rule 22 interpleader: permits interpleader in
any action that meets the normal jurisdictional
requirements in federal court (sufficient amount
in controversy, proper diversity, or federal
question)
Class Actions: one or more members of a class of
persons similarly situated may sue or be sued on
behalf of all members of that class.
1. permitted only when considerations of necessity or
convenience justify an action on behalf of the
group rather than multiple actions by or against
the class members individually
2. members of class can sue or be sued w/ binding
effect on the class as a whole
3. under rule 23, have to establish:
45
a.
b.
c.
d.
class is so numerous that joinder of all
members is impracticable
action involves questions of law or fact
common to the class
claims of persons maintaining the action on
behalf of the class must be typical of those
of the class generally
persons representing the class fairly and
adequately protect interests of all members
46