civil procedure - shipley

1) Choice of Law
a) Question arises only in diversity cases
b) Rules of Decision Act (RDA)
i) the laws of the several states, except where the constitution or fed laws otherwise req or provide, shall be
regarded as rules of decisions in civil actions in the Cts of the US, in cases where they apply.
c) Rules Enabling Act (REA)
i) Governs fed rules of civ pro
ii) The SC has the pwr to prescribe the…practice and procedure of the Fed DC. Such rules shall not abridge,
enlarge, or modify any substantive right and shall preserve the right of trial by jury.
d) Swift v. Tyson (overturned by Erie)
i) US SC holds that state judge-made laws are not “laws” defined by RDA
(1) Laws only those as created by legislature
ii) General law conflicts – Fed Ct can ignore judge-made law or use as persuasive
(1) Ex: Torts, Contracts
iii) State law will be followed on minor, local issues (ex: land titles)
iv) Introduced the concept of Fed CL
(1) Motivated by need to have economic uniformity between states
v) Cons of Swift Rule:
(1) Forum shopping
(2) Citizens denied equal protection of law
(3) Lines between state CL and fed CL not clear
e) Erie
i) Facts:  was walking along RR track, and got arm cut off by RR open door. St CL had a more strict standard
for neg than Fed law.  brings suit in Fed Ct b/c due to Swift, the St CL won’t be applied. Ct said Swift is
overruled, and Ct must apply St law.
ii) Substantive Issues
(1) Except if governed by Constitution or Congress made laws, apply state law for substantive issues –
legislature or judge-made law from state SC
(2) Fed Ct can request certification from State SC to get answer if SC decision is not in line with majority
trend in the state; only if state has such a statute
iii) Procedural Issues
(1) Apply federal law as has nothing to do with liability, only how case gets heard
iv) Constitutional Question?
(1) Brandeis says basing on Const. so that won’t have to reverse 100 yrs of cases
(2) Can’t be based on EPC, as Erie is fed ruling, and EPC applies to states
(3) Reed concurs, but says not Const. question, should make new law.
v) Federal Common Law
(1) Concept not valid except in areas reserved exclusively for Fed Ct
(a) Congress has no power to create Fed CL under Const.
(2) No Fed General CL
vi) Aims
(1) Get rid of forum shopping
(2) Avoid unequal administration of justice
f) Klaxon
i) Rules of Conflict
(1) A Fed Ct in diversity must apply conflict principles of forum state
2) Limits of State Power in Federal Courts
a) Erie said in substantive areas, follow all St law. But what about procedural law?
b) “The line b/twn procedural and substantive law is hazy, but no one doubts Fed pwr over procedure.” (Reed from
c) Guaranty Trust v. York
i) Outcome Determinative Test (O-D)
(1)  sued in Fed Ct, b/c in St Ct, the SOL had run out;  argued St law about SOL should apply. Ct says
any choice that is O-D must follow St law -  chose fed ct because no action in state ct.
(2) O-D Test: Might application of Fed law instead of St law significantly affect the result of litigation?
(a) ANY state law that is O-D must be followed – substantive or procedural
(b) Fed Cts need not follow state law that merely concerns how means and manner of recovery is
(3) O-D Cons – can be stretched too far (Holy Trinity)
(a) Ragan - ’s SOL had run out under St law, and tried to sue  in Fed Ct; US SC held O-D, so lower ct
had to follow state rule
(i) Concurring opinion in Hanna found this decision wrong.
(b) Cohen -  had to post bond under St law, and tried to sue  in Fed Ct; US SC held posting bond OD.
(i) May not be best case for O-D test as not unequal admin of law, but leads to forum shopping
(c) Woods -  could not bring case under St law as did not pay taxes; US SC held this to be O-D
(d) Bernhardt – St law permitted revocation of arbitration clause any time before award was made;
Shakiest of all O-D cases as unclear if outcome would be different; case was also removed to Fed Ct
d) Byrd v. Blue Ridge
i)  sues  for tort in Fed Ct;  claims under state law judge has the option to determine if he is immune from
employee claims;  wants Fed law to be applied which would leave question to jury; Ct says judge or jury
choice might, but not necessarily O-D; Still, Ct says 7th Amendment and strong fed policy interests can
override state law
ii) RULE: If the state interests are weak and the federal interests are strong, and the outcome-determinative
factors are indifferent, the federal rule applies.
iii) TEST:
(1) Is the St law bound up w/ the def’n of substantive (not procedural) rights and obligations of the parties? If
yes, apply St law. If no, it is arguably procedural, go to #2
(2) If no, then would its application determine the outcome of the case? If yes, #3. If no, apply Fed law.
(3) If yes, then are there affirmative countervailing considerations of Fed judicial administration present? If
yes, apply Fed law. If no, apply state law.
e) Hanna v. Plumer
i)  files damages for personal injuries in car wreck against the executor of the estate.  serves  according to
Fed Rules Civ Pro to ’s wife at ’s house. But a St. rule says service has to be personal, to an agent, or to
the probate registrar. Ct said twin aims aren’t implemented, and Fed law should apply.
ii) TEST:
(1) If there is a specific Fed rule or statute that is on point and in direct conflict with the state rule, then the
Fed rule must apply as long as:
(a) Fed Rule is in line with REA (almost always – yes)
(i) Is Fed rule invalid under REA?
1. Does it really regulate procedure? Is it arguably procedural?
a. If not, do not apply.
2. Does it abridge, enlarge, or modify any substantive right?
a. NOTE: It might be a substantive right (non-procedural) if it comes from a statute rather
than state procedural code.
b. If yes, do not apply.
(ii) Is the rule unconstitutional?
1. If yes, do not apply. (Very difficult to prove)
(b) Fed Statute or Constitutional provision exists – not Fed Rule
(i) Question: Whether Congress has the authority to enact the federal statute
(ii) Answer: If statute falls in the “uncertain area between substance and procedure, and is rationally
capable of classification as either” – meaning it is arguably procedural – then Fed Statute controls
(2) If there is NO specific Fed rule or statute on point, but only a Fed practice on point, then apply the twinaims test:
(a) Does using the Fed practice lead to
(i) Forum shopping, or
(ii) Unequal administration of laws?
1. If yes to either – do not apply Fed practice.
iii) The outcome-determination test was never intended to serve as a talisman. Choice between Fed and St law
must be made with consideration of Erie twin aims.
iv) Apply both Byrd and Hanna tests on EXAM to hypothesize if rule not on point
v) Application of Hanna
(1) Burlington Northern
(a) State law automatically adds 10% to money judgment on a lost appeal; Fed law under Rule 38 leaves
this to discretion of judge; state law not applied
(2) Ricoh
(a) State law did not allow upholding forum selection clauses; Fed procedure § 1404 was on point and
allowed such transfer
(i) Fed Ct could reference state law, but does not have to abide by it.
(3) Gasperini
(a) State law allows appellate review of damages and order new trial if not reasonable; Fed Ct does not
allow facts determined by jury to be reexamined by App Ct under 7th Amendment
(i) Fed Rule 59: Trial Ct can order new trial if verdict shocks conscience
(b) State interest in reviewing damages “substantive” under Erie
(c) Compromise w/ Fed Dist Ct reviewing award
f) Semtek v. Lockheed Martin
i)  brought case in CA St Ct.  removed cased to Fed Ct. ’s case was dismissed from Fed Ct in CA w/
prejudice as out of SOL for CA;  attempted to bring case in MD within SOL, but denied due to res judicata;
SC says case must be allowed
(1)  says CA st law says case dismissed due to SOL is not basis for res judicata in other states
(2)  says Fed Rule 41(b) says dismissal on merits, unless noted otherwise and so res judicata
(a) CA Fed suit was dismissed with prejudice
(3) SC says
(a) Dismissal not really on merits, but on SOL
(b) Cannot give ruling any higher effect than given by st or would violate REA and abridge ’s rights
(c) Giving different effect than state would lead to forum shopping
3) Pleading
a) Function of Pleading
i) Requirements of complaint:
(1) Invoke a body of substantive law
(2) Sketch a factual scenario that falls in that body of substantive law.
ii) Rule 7(a) – Pleadings allowed
(1) Lists the types of pleadings: complaint, answer, reply to c-claim, etc.
iii) Rule 10 – Form of pleadings
(1) Lists the structure of a pleading: name of parties, averments, etc.
iv) Rule 8 – General rules of pleading
(1) 8 a – Claims for relief
(a) Any pleading should contain:
(i) A short and plain statement, showing
1. Grounds for jurisdiction
2. Basis for relief
(ii) Demand for judgment sought
1. Alternative or various types of relief may be pleaded
(2) 8 e – Concise and direct
(a) Each averment shall be simple, concise, and direct.
(b) Statements of a claim may be made alternatively or hypothetically, in separate counts or the same
(3) 8 f – Construction of pleadings
(a) All pleadings shall be so construed as to do substantial justice.
(4) Complaint does not have to plead all the facts or include evidence.
b) Ethical Limitations
i) Rule 11 – Signings and Representations
(1) 11 a – Pleading or motion must be signed by attorney or unrepresented party
(a) If not signed, allowed to promptly correct
(2) 11 b – Attorney or unrepresented party certifies that pleading or motion is to the best of person’s
knowledge, information, and belief, formed after a reasonable inquiry into the circumstances
(a) 11 b 1 – not for improper purposes
(b) 11 b 2 – claims and defenses are warranted by existing law or a non-frivolous contention is made to
change or create new law
(c) 11 b 3 – supported by evidence or will be supported after investigation
(d) 11 b 4 – denials are warranted by evidence or say that based on lack of information or belief
(3) 11 c – If (b) is violated and after reasonable opportunity to respond, court may impose sanctions on
attorney, firm, or party
(a) 11 c 1 – How initiated
(i) 11 c 1 A – a motion may be made pursuant to Rule 5, describing conduct violating (b), and
allowing 21 days to cure; if not cured, file with court; court may award party prevailing on motion,
reasonable expenses and attorney fees; law firm responsible for its attorney’s violations
(ii) 11 c 1 B – on its own initiative, court may enter order describing violation and allow party to show
it has not violated
(b) 11 c 2 – Sanctions
(i) limited to what is sufficient to deter repetition of such conduct
(ii) can include non-monetary directives, penalty, or reasonable expenses and attorney fees paid to
other party
(iii) 11 c 2 A – monetary sanctions may not be awarded against rep. party
(iv) 11 c 2 B – monetary sanctions not when on court’s initiative (generally)
(c) 11 c 3 – Order
(i) Court must describe conduct and basis for violation
(4) 11 d – Does not apply to discovery process
ii) Rule 11 Revisions
(1) Expands responsibility of attorneys to the court, not just each other.
(2) Greater flexibility in correcting mistakes, but also strict sanctions for violations.
(3) Reasonable belief does not preclude conducting a reasonable inquiry.
(4) Party must cease contention if found false after reasonable inquiry.
iii) Reasonable Investigation
(1) Rule 8 requires a short and plain statement of facts. Rule 11 says to reasonably investigate these facts.
(2) Investigation not needed to be of absolute certainty
iv) Walker v. Norwest Corp.
(1)  appealed sanctions against its attorney for failing to plead complete diversity in suit; App Ct. affirmed as
facts showed  failed to invoke complete diversity and was warned of sanctions by  who informed  of
lack of diversity
(2) Review of award of sanctions: was there an abuse of discretion?
v) Christian v. Mattell
(1)  appealed sanctions against its attorney for bringing a frivolous action; While DC based sanctions on
meritless claim and misrepresentations in briefing, it also based on other conduct not covered by Rule 11;
remanded to delineate factual and legal basis for sanctions
vi) Primus Auto v. Batarse
(1) DC must make an explicit finding of counsel’s conduct constituting bad faith to impose sanctions under
court’s “inherent authority”
c) Special Claims
i) Rule 9 – Pleading special matters
(1) 9 a – One need not allege the capacity to sue or be sued. If a party wishes to challenge capacity, it has
the burden.
(2) 9 b – For complaints of fraud or mistake, there must be specificity supporting fraudulent intent
ii) Purpose of 9(b) is to prevent frivolous claims
(1) This could, however, prevent certain claims from getting to court in the first place
iii) Specific does not mean long
iv) Some state statutes require claims not be specific
(1) Ex: CA – no specificity of damages
v) Leatherman v. Tarrant County
(1) Rule 8(a) is at odds with Rule 9(b) – short and plain vs. specific
(2) Court found that 9(b) only applies to fraud or mistake, not claims under § 1983; Reversed lower court’s
holding requiring  to plead specific details
vi) Stradford v. Zurich Insurance
(1)  dentist sued  insurer for breach of K;  counter-claimed for fraud;  moved to dismiss counter-claim
for lack of specificity under 9(b); Court noted that claim was not specific, but allowed ’s amended
complaint under 15(a) (when justice requires); Ct. granted  summary judgment as well
d) Burden
i) Types
(1) Burden of Pleading
(a) One must allege that element of the claim or defense
(2) Burden of Production
(a) At trial, one must produce evidence – witnesses, documents, etc. that demonstrate the proposition at
(3) Burden of Persuasion
(a) One must persuade the trier of fact that one’s version of the facts is more likely than not to be true.
(4) Generally, all three burdens lie on the same party and go together.
ii) Gomez v. Toledo
(1)  brought action against  for wrongful termination under § 1983. Lower courts affirmed ’s 12b6 based
on immunity if acted in good faith and  had not pleaded any bad faith. SC reversed noting that  must
only allege he was deprived of federal right and was deprived by person acting under color of law;
Immunity is a defense and  has burden of proving he acted in good faith; reversed summary judgment
iii) Policy
(1) Burden generally lies on party with better access and knowledge of facts
4) Responding to Complaint
a) Pre-answer Motions
i) How to dismiss complaints
(1) Factual merits
(a) Standard: complaint should not be dismissed unless it appears that  can set forth no facts that
would entitle him to relief
(2) Legal merits
ii) Importance to 
(1) Temporarily delay or permanently end suit
(2) Cheap
iii) Rule 12 – Defenses and objections
(1) 12 b
(a) Every defense must be asserted in a responsive pleading, except the following may be made by
(i) 12 b 1 – Lack of subject matter jurisdiction (fatal defect – immediately fatal to ’s case if granted)
(ii) 12 b 2 – Lack of personal jurisdiction (fatal defect)
(iii) 12 b 3 – Improper venue (fatal defect)
(iv) 12 b 4 – Insufficiency of process (curable defect – curable by , so case can continue if cured)
(v) 12 b 5 – Insufficiency of service of process (curable defect)
(vi) 12 b 6 – Failure to state a claim upon which relief can be granted
1. Motion is construed in favor of non-moving party
2. Also known as demurrer
3.  may still get opportunity to amend complaint before being dismissed entirely
(vii) 12 b 7 – Failure to join a party under Rule 19 (curable defect)
(2) 12 e – Motion for more definite statement
(a) If other party does not correct vague statement, court may strike pleading
(b) Must be made before making an interposing pleading (answer); make in pre-answer only
(3) 12 f – Motion to strike
(a) any insufficient defense or redundant, immaterial, impertinent, or scandalous matter
(4) 12 g – Consolidation of defenses
(a) Join any defenses or objections available to party when making motion under this rule or consider
waived (see exceptions below)
(5) 12 h – Waiver or Preservation
(a) Following are waived subject to (g) or if not made in due course
(i) 12 b 2, 3, 4, 5; 12 e (waived unless never saw complaint)
(b) Following are preserved
(i) 12 b 1, 6, 7; 12 f
iv) Haddle v. Garrison
(1)  filed complaint under Civil Rights Act. Lower courts upheld grant of R12b6 motion, saying  was not
injured in property as he was an at-will employee. SC overturned saying should not dismiss unless  can
prove no set of facts in support of his claim which would entitle him to relief.
(2) Pleadings must be liberally construed to sustain ’s complaint
b) Answer – Denials
i) Rule 8 – General rules of pleading
(1) 8 b – Defenses; Form of Denials
(a) state in short and plain terms, party’s defenses to each claim and admit or deny the averments of
adverse party
(b) if party is unsure, state as such, and this will serve as a denial
(c) denials must fairly meet the substance of the averments denied
(d) In good faith, may deny part of an averment: specify so much of it as true and deny the remainder
(e) may deny specific averment or paragraphs or may generally deny all averments including grounds for
(2) 8 d – Effect of Failure to Deny
(a) Averments in a pleading not denied, are deemed as admitted.
ii) Policy
(1) The purpose of pleading (complaint and answer) is to limit the issues and narrow the proof. It would
defeat the purpose of pleading to admit undisputed evidence.
(2) To preseve judicial economy and to prevent jury confusion by not presenting evidence that is irrelevant to
the issues.
(3) Ct wants to encourage parties to concede liability.  wouldn’t concede if the evidence was going to be
presented anyway.
iii) Zielinski v. Philadelphia Piers, Inc.
(1)  sued  b/c he thought  was the employer of the driver of a forklift. In reality, the driver was an
employee of Ø who had bought out ’s business. In the answer,  generally denied a section, and was
not specific for  to realize his mistake. Then  couldn’t sue Ø b/c SOL had run out.
(a) Rule 8(b): When a pleader wants to deny only a part of an averment, he shall specify so much of it as
is true and shall deny only the remainder.
(b) The  can’t mislead  by denying a section or being sneaky. Pay close attn to what  is pleading and
only deny things that are truly false.
c) Answer – Affirmative Defenses
i) A ’s answer to a complaint which is more than a denial of the ’s charge, and which presents evidence or
arg in favor of 
ii) When in doubt, raise answer as affirmative defense instead of denial to avoid argument of waiver by  later
(observe Rule 11 though)
(1) Some court, however, then put the burden on  for the issue.
iii) Rule 8 – General rules of pleading
(1) 8 c – Affirmative defenses
(a) Responding to a pleading, a party shall state any matter constituting an avoidance or affirmative
defense (see Rules for examples)
(b) If party mistakenly designates defense as a counterclaim or vice versa, the court if justice requires,
will treat the pleading as a proper designation.
iv) Surprise Principle (NY Civ Pro)
(1) 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.
v) Gomez v. Toledo
(1)  brings suit against  under §1983.  arg that BOP was on  to show  acted in bad faith, and it should
have been presented in his pleadings.  arg that acting in GF is an affirmative defense, and  had to
present it.
(2) The Ct has never req’d the  to anticipate the ’s possible affirmative defenses and plead against them in
’s complaint. According to Rule 8(c), the burden of proof for affirmative defenses lies w/ .
vi) Layman v. Southwestern Bell
(1)  brought case for trespass.  pleaded general denial. At trial,  attempted to introduce evidence of
easement negating trespass. Evidence not allowed as easement would be an affirmative defense under
Rule 8(c).
(2) Test: whether  intends to rest his defense upon some fact not included in the allegations necessary to
support the ’s case.
d) Reply to Counterclaim
i) Rule 7(a) requires a reply if the answer contains “a counterclaim denominated as such.”
ii) Rule 7(a) permits the court to order a reply on its own motion or on the motion of a party.
e) Amendments
i) Rule 15 allows amendments of pleadings as parties may uncover new facts during discovery. It balances two
(1) Allowing easy amendments
(2) Notion of prejudice – at some a party must decide how to present its case and it can’t if the other party’s
story keeps shifting
ii) Rule 15 – Amended and Supplemental Pleadings
(1) 15 a – Amendments
(a) A party may amend pleading once before responsive pleading is served
(b) Must amend at any time within 20 days after pleading is served
(i) After that, may amend by leave of court or consent of other party
(c) Other party must respond to amended pleading within time left for response of original pleading or 10
days, whichever is longer.
(2) 15 d – Supplemental Pleadings
(a) When there is reasonable notice and just terms, the Ct can allow the party to serve a supp. pleading
about events that have happened after the last pleading.
iii) Beeck v. Aquaslide
(1)  admits building slide based on assurances by three insurance companies. Later,  moves to amend as
it discovers on its own that it did not build slide. Court allows even though SOL has expired.  wins.
(a) Amendment should not be allowed if undue delay, bad faith, or dilatory motive (not the case here)
(b) Party opposing motion has burden to show prejudice (not done here)
(c) Court did not find prejudice to  even if SOL had expired as  still had to prove at trial it did not
manufacture slide
(i)  could still extend SOL if it can prove fraud on part of other parties
f) Statute of Limitations & Relation Back
i) Rule 15 – Amended and Supplemental Pleadings
(1) 15 c – Relation Back of Amendments
(a) An amendment relates back to the original pleading when:
(i) it is permitted by the law that provides the SOL applicable to the action, or
(ii) the claim or defense in the amendment arose out of the same conduct and facts in the original
pleading, or
(iii) the amendment changes the party against whom a claim is asserted if:
1. the claim in the amendment arose out of the same conduct and facts, and the party to be
brought in the amendment
a. has received notice, and
b. knew/should have known that but for a mistake about the ID of the proper party, the
action would have been brought against the party.
i. The real party must have been served w/in 120 days after filing the original
complaint, but this could be extended by leave of court by showing good cause
(b) If there is conflict between fed and state SOL law, the more forgiving should be applied
ii) If the amendment does not arise out of the same conduct, then  does not have notice, and the amendment
does not relate back.
iii) Moore v. Baker
(1)  sued for violation of informed consent, but later wished to amend to add negligence action. Ct. denied
as original pleading did not give notice of a negligence action – which had different facts and proof. Also
SOL had passed.
iv) Bonerb v. Richard J. Caron
(1)  sustained injuries on ’s playground and sued for personal injuries.  later wished to amend to add
counseling malpractice. Court allows as came from same nucleus of operative facts, sufficient notice of
possibility of professional negligence, no bad faith by , discovery not yet begun.
5) Discovery
a) Purpose
i) Produces facts and evidence that determines strengths of each side and possibly leads to voluntary removal
of suit or settlement
ii) Tactic to wear each other down
iii) Allows party to bring suit even if most of evidence is in control of other party
b) Limits of Discovery
i) Relevance
(1) Rule 26 b – Discovery Scope and Limits
(a) 26 b 1 – In General
(i) Parties may obtain discovery regarding any matter, not privileged, that is relevant to claim or
defense of any party.
(ii) For good cause, court may order discovery of any matter relevant to the subject matter.
(iii) Relevant info need not be admissible at trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.
(b) 26 b 2 – Limitations
(i) The court may alter the limits of discovery if court determines:
1. Discovery sought is unreasonably cumulative/duplicative or obtainable from other source less
burdensome and inexpensive
2. Party seeking discovery has had ample opportunity get info
3. Expense of discovery outweighs benefits
(ii) Court may act on own initiative or by motion of party to set limits.
(2) Davis v. Precoat Metals
(a) In racial discrimination suit, court allowed  employees to discover specific complaints of other
employees of same race against employer at specific location. Court found this narrow request to be
relevant and within limits under Rule 26(b)(1).
(3) Steffan v. Cheney
(a) Cadet ousted from military appealed dismissal of trial when he refused to answer questions about gay
sexual acts. App. Ct. sustained appeal saying that cadet was ousted for gay status and so questions
should be limited to status. Sexual activities are not relevant.
(b) Relevance of question – Is the question being asked pretextual? If so, it is not relevant under Rule
(c) Lawrence v. Texas
(i) SC ruled that homosexual acts are not criminal. Hence, a person cannot refuse to answer under
the 5th Amend. Anymore. Impact on military cases such as Steffan is unclear.
ii) Privilege
(1) Privileged info is not discoverable
(2) 26 b 5 – Objections to requests for privileged information must be made with specificity to enable other
party to assess applicability of the privilege
(3) Attorney – Client Privilege
(a) Protects communications concerning matters lawyer is handling for the client.
(b) Protects their communications, not underlying facts.
(c) Privilege is absolute, necessity of other party cannot remove privilege.
(d) Extends beyond death.
(e) Hypo - A client is in a meeting w/ atty A about breach of K. The client says: “I should stop cheating on
my wife.” Later, the client is getting a divorce, and the wife’s atty wants to depose atty A about the
statement. This statement is not privileged b/c it didn’t pertain to getting legal advice.
(f) Exceptions:
(i) Waiver – Party may waive this privilege purposely to get in good grace of ct. May also waive
1. Atty. may be sued by client if he waives accidentally.
(ii) Criminal Advice – Getting advice from atty. to commit crime is not protected.
(iii) Malpractice – If suing atty. for malpractice, communications are not protected.
(g) Corporations
(i) Upjohn v. US
1. SC disapproved of TC’s control-group test which stated that privilege only extended to
employees controlling mgmt. of corp. SC said lower-level employees may be the ones who
actually need and implement legal advice. Look at case by case.
(ii) Only senior mgmt. can waive this privilege. Not individual employees.
(4) Psychotherapy Privilege
(a) Some states offer protection for patient’s psychotherapy records.
(b) Waived, pursuant to Rule 35, if mental health of party is in controversy.
c) Procedures and Methods
i) Required Disclosures
(1) Purpose is to streamline discovery.
(2) Rule 26 f – Parties meet to discuss merits of case, perhaps settle, make or arrange disclosure, and come
up with discovery plan. Then, within 14 days, parties must make written report of this meeting to the
judge. This meeting should happen at least 21 days before the scheduling conference with the judge.
(3) Rule 26 a 1 – Initial Disclosures
(a) A - Contact info and basis of knowledge of each person likely to have info to support your claims and
defenses, unless solely for impeachment
(b) B – Documents and other tangible you may use for claim or defense
(c) C – Computation of damages
(d) D – Insurance agreement if the insurer may be liable
(e) E – Lists certain cases where disclosure is exempted
(i) Very small or very large cases may be exempt.
(ii) Well developed record or absence of counsel may also make exempt.
(f) Disclosure must be made based on reasonable information available to party
(i) Must disclose if objected, but judge has not yet allowed exemption.
(ii) Must disclose even if other party has not made full disclosure.
(iii) If joined, must make disclosure within 30 days.
(4) Rule 26 a 2 – Disclosure of Expert Testimony
(a) A – Disclose identity of expert who will be testifying at trial
(b) B – Provide written report of expert – complete statement of all opinions and basis and reasons for
the same
(5) Rule 26 a 3 – Pretrial Disclosures
(a) A – Identity of witnesses (include alternates)
(b) B – Identity of witnesses by deposition
(c) C – Document and exhibits to be presented at trial
(6) Rule 26 a 4 – Form
(a) Disclosure must be in writing, signed, and served.
(7) Rule 26 e – Supplementation
(a) Must supplement if knows that disclosure is incorrect or incomplete and has info that is relevant or
face possible sanctions under Rule 37.
ii) Interrogatories and Depositions
(1) Interrogatories (Rule 33)
(a) Low cost – low effect
(b) No follow up questions, so can’t dig into evasive answers.
(c) Limit is 25 questions (incl. sub-parts) without leave of Ct.
(d) Nonparty witnesses do not have to answer interrogatories.
(e) If objecting, be specific, and answer parts not objected to
(f) Answers must be given in 30 days, signed by the person.
(2) Depositions
(a) High cost – high effect
(b) Similar to trial w/ officer of ct. present
(c) Not limited to opposing party – use subpoena to get 3rd party
(d) Attorney can advise its witness being deposed of what to expect, ask for clarification, etc., but can’t
provide or guide with answers.
(e) Rule 28 – Persons Before Whom Depositions May Be Taken
(i) 28 a – Authorized officer or person appointed by Court must be present
(ii) 28 b – Rules for foreign depositions
(iii) 28 c – Not before relative, employee, atty, financially interested party, etc
(f) Rule 30 – Depositions upon Oral Examination
(i) 30 a – Any person may be deposed; subpoena may be used by Rule 45 for non-party
1. Leave of court needed when
a. Person is in prison
b. Would result in more than 10 depositions
c. Person already deposed in the case
d. Deposition sought before allowed date b/c person will be unavailable
(ii) 30 b – Reasonable notice must be given to every other party when any person deposed
1. Notice should include
a. Name, address, time and place of exam, recording method.
(iii) 30 c – Exam and Cross-Exam
1. Officer takes the witness’ oath and the testimony is recorded
2. Objections on relevance of questions are noted by the officer, but testimony must continue.
(iv) 30 d – Schedule and Duration
1. Objections must be stated concisely
2. Witness may be instructed not to answer to preserve privilege, enforce a limitation directed
by court, or present a motion under Rule 30(d)(4)
3. Deposition is limited to seven hours, unless approved by court to allow a fair exam or
because exam was impeded or delayed.
4. Court may impose sanctions (including atty fees) for unreasonable delay
5. If overall exam is in bad faith or deponent is being harassed, party may make motion and
court may order to cease exam or limit scope of exam.
(v) 30 g – Failure to Attend
1. If party fails to attend, other party that did attend can get expenses
2. If party fails to issue subpoena, other party attending can get expenses
(g) Rule 31 – Deposition Upon Written Questions
(i) Questions and redirect questions served on the party
(h) Rule 32 – Use of Deposition in Court Proceedings
(i) 32 d – Effect of errors in the deposition.
(ii) Objections that are waived unless prompt written objection is made: errors in the form of the Q or
answers, the notice of deposition, those about disqualifications of the officer, errors in the manner
of taking the deposition, in the oath, or in the conduct of the parties, errors in the recording of the
(iii) Objections to the competency of the witness or the materiality of testimony are not waived by
failure to make them during the deposition.
iii) Physical and Mental Examinations; Documents
(1) Rule 34 – Production of Documents and Things
(a) 34 a – Scope
(i) Request documents (writings, emails, graphs, photos, etc.) in possession or control of party
(ii) Request other tangibles that are relevant according to 26(b)(1)
(iii) Request entry upon land
(b) 34 c – Persons not Parties
(i) Subpoena, under Rule 45, to compel discovery for 3rd parties
(c) Producing party generally bears the cost of production as the items are within its domain or course of
(2) Rule 35 – Physical and Mental Examinations
(a) 35 a – Order for Examination
(i) Court may order mental/physical exam when in controversy
(ii) Order only made on good cause and person being examined must be given all details and notice
of exam
(b) 35 b – Report of Examiner
(i) Party being examined is entitled to copy
(ii) Party causing exam is entitled to report of any exam, previous or later, related to same
(iii) Party examined waives any privilege it may have in that action or other related to same
controversy regarding testimony of examination, previous or later.
(iv) When parties agree for examination, party causing exam is still entitled to depose examiner or
obtain report of examiner.
iv) Requests for Admission
(1) Rule 36 – Requests for Admission
(a) 36 a – Request
(i) For purposes of the pending action only
(ii) Request admission of truth of any matters within 26(b)(1) that relate to statements or opinions of
fact or of the application of law to fact.
(iii) Matter is admitted unless within 30 days request party is served with a signed answer.
(iv) Party requesting admission may move to determine sufficiency of answer.
1. If court determines, it may order matter is admitted or ask to modify.
(b) 36 b – Effect of Admission
(i) Any matter is conclusively established, unless
(ii) Court permits withdrawal or amendment of the admission.
1. Not allowed if it will prejudice other party
v) Ensuring Compliance
(1) Rule 26(g) – Signing of Disclosures, Discovery Requests, etc.
(a) 26 g 1 – Every disclosure made must be signed. Signature indicates disclosure is complete after
reasonable inquiry and best belief
(b) 26 g 2 – Every discovery request must be signed. Signature indicates after reasonable inquiry and
best belief or knowledge:
(i) Request is warranted by law or good faith arg to change law
(ii) Not for improper purposes; not to harass
(iii) Not unreasonable or unduly burdensome
(c) A request, response, or objection not signed is stricken unless promptly signed after being notified of
(d) Court may impose sanction, incl atty fees, for violation with justification on atty, party, or both.
(2) Rule 37 – Sanctions
(a) 37 a 2 – A party may compel disclosure or discovery by motion to the court, but must include
certification that it conferred in good faith or attempted to confer with the other party.
(b) 37 a 3 – Evasive or incomplete answers are included above
(c) 37 a 4 A – If Court grants motion, it shall require party to pay other party reasonable expenses
including atty fees, unless it determines circumstances justified nondisclosure or noncompliance.
(d) 37 a 4 B – If Court does not grant motion, it may grant protective order under 26(c), and order moving
party to pay reasonable expenses incl atty fees to party resisting motion, unless it determines
circumstances justified.
(e) 37 b 1 – Failing to comply with order after being directed by court may be considered contempt of
court by deponent.
(f) 37 b 2 – Court may take various just actions against party that fails to comply with order of discovery,
(i) Order certain facts to be established
(ii) Disallow presenting certain evidence, objections, or defenses
(iii) Strike pleadings or dismiss action or parts of action
(iv) Treat as contempt of court
(v) Impose sanctions of reasonable expenses, including atty fees
(g) 37 c 1 – Without substantial justification, failure to properly disclose may result in the court
disallowing the evidence/matters not disclosed and/or other appropriate sanctions, unless such failure
is harmless
(h) 37 c 2 – Failing to admit truth under a request for admission, later proved true, may allow court to
impose monetary sanctions on motion of the requesting party
(i) 37 d – Failing to attend a deposition, serving answers to interrogatories, or responding to requests for
inspection may result in sanctions as are just
(i) Could include attorney’s fees and reasonable expenses
(ii) For failures of interrogatories and requests for inspection, certification of good faith conferring
d) Privacy
i) Rule 26(c) – Protective Orders
(1) Upon motion, with certification of good faith and effort to confer, and for good cause, the court may make
any order to protect a person from annoyance, embarrassment, burden, etc.
(a) Including an order for disclosure or discovery not to be had or modified
ii) Stalnaker v. Kmart Corp.
(1)  employee in sexual harassment suit attempted discovery of 4 non-party witnesses’ sexual relations with
 supervisor.  objected saying witnesses acted voluntarily,  did not allege they created a hostile
environment, embarrassment to them outweighs probative value.  says witnesses may lead to sexual
harassment info, and court allows modified discovery under Rule 26(c) – no dissemination of sensitive
iii) Shlagenhauf v. Holder
(1)  bus driver appeals trial court order to submit to 4 mental and physical exams. SC remands as under
Rule 35, bus driver did not bring his mental/physical health in controversy by claiming a defense. Burden
rested on the other party to show good cause for requiring such exams, but no specific mental health
allegations were made. The only allegation was for vision problems.
e) Adversary System
i) Rule 26(b)(3) – Trial Preparation: Materials
(1) A party may obtain documents and tangible things prepared in anticipation of litigation by the other party
or its atty by showing a) substantial need and b) unable to obtain the same without undue hardship
(2) A party or person may obtain a copy of its statement without showing as above
ii) Work-Product Doctrine under 26 b 3
(1) Special, increased protection for atty’s mental impressions and opinions of case
(2) Purpose: Shelters mental processes of atty and allows him to work freely without fear of exploitation.
(3) Scope: Documents and things created in anticipation of legislation. Does not have to be for specific claim.
(4) Hickman v. Taylor
(a) Tug-boat sank and some sailors died. Boat’s lawyer hired atty and he interviewed some survivors in
anticipation of case. When the boat was sued,  wished to discover atty’s interviews. Boat’s atty
argued that it was privileged.
(i) Ct held that atty-client privilege did not apply as atty interviewed 3rd parties. Atty, however, was
protected by WPD and  showed no substantial cause to discover.  only wanted info to be
thorough and could have interviewed survivors himself.
iii) Rule 26(b)(4) – Trial Preparation: Experts
(1) A testifying expert may be deposed after his report is produced.
(2) A non-testifying expert’s documents and materials may be obtained by interrogatory or deposition to
discover facts/opinions if retained in anticipation of litigation or prep for trial OR a showing of exceptional
(3) Advisory Committee Note states that an expert hired, but not retained is not subject to disclosure.
(4) Expert must be paid for expenses in complying with this request.
(5) Thompson v. The Haskell Co.
(a)  brought sexual harassment case and alleged mental depression from ’s actions.  was examined
by doctor in preparation of trial.  moved to protect this information under Rule 26(b)(4), but court
ordered disclosure as it was relevant to the case and the  showed exceptional circumstances as no
one else had examined  when she was depressed.
(6) Chiquita v. Reefer
(a)  banana company sued carrier  for loss of cargo and damage.  hired an expert to examine the
vessel and cargo.  moved to compel discovery of his report, but  resisted saying he is a nontestifying expert. Ct agreed under Rule 26(b)(4) as  had ample opportunity to make its own
investigation. Ct barred discovery of expert’s thought and opinions, but allowed discovery of certain
facts held in the same file that were not privileged.
(b) The law is confused on whether the opposing party can subpoena an expert to testify at trial. It meets
the aim of transparency and including all probative information. On the other hand, it is unfair to the
other party and may deter experts from serving as consultants.
f) Discovery Abuses
i) Stonewalling – refusal to cooperate with justifiable discovery requests
ii) Over-Discovery – Too much discovery
iii) Mismatched Discovery – Unequal resources lead to unequal discovery
(1) Richer party has an unfair advantage. Ways to counter:
(a) Use free sources such as the Internet
(b) Use cheap methods such as interrogatories
(c) Ride on free discovery of co-parties
iv) Thompson v. HUD
(1)  moved to compel discovery from  dating back 70 years. Ct cited Rule 26(b)(2) and undue burden on 
as well as ct to sift through materials. It ordered a compromise with allowing discovery a few years at a
v) Poole v. Textron
(1)  requests attorney’s fees and reasonable expenses related to ’s discovery abuses. Court finds that 
was careless and did not make reasonable efforts to comply, but did not act in bad faith. Under Rules
26(g) and 37(a), it awarded attorney’s fees and reasonable expenses, but no other sanctions.
(2) Court has authority to fashion the sanctions – limit or expand.
6) Settlement
a) Controls risks to some extent – greater risk of losing at trial.
7) Summary Judgment
a) Rule 56 – Summary Judgment
i) 56 a –  may move 20 days after beginning of suit
ii) 56 b –  may move at any time
iii) 56 c – Motion and Proceedings
(1) Judgment shall be rendered if a) there is no genuine issue as to any material fact and b) the moving party
is entitled to judgment as a matter of law.
iv) 56 d – Partial SJ
(1) If a motion is only granted to part of the issues, the Ct makes an order specifying the facts that are w/o
controversy, and directing just further proceedings. At trial, those facts shall be deemed established.
v) 56 e – Form of Affidavits
(1) Evidence required for SJ motion must be based on personal knowledge and supported by admissible
evidence. Cannot depend on allegations only.
(a) Rationale: Judge is in place of jury deciding factual merits of case
(2) Party must be specific with facts
vi) 56 g – Affidavits Made in Bad Faith
(1) Court may order party making bad faith affidavits to pay other party atty fees and possibly hold in
vii) Adickes v. S.H. Kress & Co
(1)  brings racial discrimination lawsuit against restaurant owner.  granted SJ saying  produced no
evidence showing communication btwn cop and store employee.  supported with affidavits and
interrogatories. SC overturned saying  foreclosed the possibility cop had reached understanding with
employee. It remanded w/ burden on  to show  could not prevail at trial.
(2) Adickes requires party to negate other party’s claim. Rule 56 has no such explicit requirement.
viii) Celotex Corp v. Catrett
(1)  sues for death of her husband from asbestosis from ’s product.  says no showing its products were
involved.  produces letters from husband’s employer and ins company. SC affirms SJ as  failed to
make a showing sufficient to establish the existence of an element essential to its case.
(2) Burden is not to produce evidence showing absence of genuine issue of material fact, but to show that
there is such an absence in other party’s case.
(3) No undue burden on  here as ample time for discovery and letters not admissible as evidence.
(4)  can respond to  under Celotex in two ways:
(a) Argue that  has not adequately demonstrated deficiency in its evidence
(b) Present evidence to counter ’s evidence to show genuine issue of fact
ix) Bias v. Advantage International, Inc.
(1) ’s estate sues  manager for failing to obtain insurance on basketball player son prior to his death. DC
gave SJ to  as it showed by evidence that son was a drug user and no ins co would have given him
coverage. ’s challenged insurability question.  presented proof of son’s coach, random drug testings,
but ct held that ’s testimony of son’s team-mates was stronger. Ct found no genuine issue of fact that
son could have been insured.
(2)  did not counter ’s evidence and so failed under the Celotex rule.
8) Judge or Jury
a) Juries are peculiar and protected in the US
b) Appellate and Trial Courts give juries wide deference
c) Right to Jury – Seventh Amendment
i) In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury
shall be preserved.
d) Not all cases are triable by jury – only legal cases.
i) Legal – a claim recognized by a court of law
ii) Equitable – a claim or remedy that would have been in chancery
(1) Ex: injunctions, spec performance, rescission, accountings, class actions, patent
(2) Not money damages generally
iii) Bankruptcy and administrative hearings offer no right to jury trial
e) State courts are not bound by 7th Amendment
i) Right to jury trial only applied to courts of the US
ii) States do not have the same funding to absorb costs of jury trial
iii) Exception: A case sitting in diversity will still be processed according to the Federal Court system – right to
jury trial preserved.
f) Rule 52 – Findings by the Court
i) In an action without the jury, the court shall state the facts specially, and separately state its conclusions.
ii) Such findings may be amended within 10 days on motion of a party
iii) Judge JML – If during a trial w/out jury a party has been fully heard on an issue and the court finds against the
party on an issue, court may enter JML in whole or on partial issues.
g) Rule 38 – Jury Trial of Right
i) 38 a – Right preserved to jury trial under 7th Amendment.
ii) 38 b – Any party may demand a jury trial by written motion on other party at the commencement of action of
within 10 days of last pleading on the issue, and by filing as required under Rule 5(d).
iii) 38 c – Indicate specific issues to be tried by jury, if not all.
iv) 38 d – Right is waived if not following instructions in this rule.
h) Rule 39 – Trial by Jury or by the Court
i) 39 a – If trial by jury is demanded under Rule 38, the action shall be a jury action unless by written agreement
of both parties or if court determines right to jury trial does not exist.
ii) 39 b – Court in its discretion may order a jury trial for any or all issues.
iii) 39 c – If action is not triable by jury, court may impose advisory jury or parties may consent to jury trial if judge
offers option.
i) Chauffeurs v. Terry
i)  demanded jury trial for violation of fair representation against its union.  opposed saying equitable action.
Ct said a combination of equitable and legal action, but it depends on nature of damages. Here, damages are
monetary, so in nature of legal action – jury trial allowed.
ii) Look at second part of 7th Amendment inquiry – nature of damages – to determine right.
j) Jury’s Integrity
i) Jury size
(1) Battin constitutionalized 6-person juries
(2) Smaller juries present a less average cross-section of society
(3) Smaller juries are more likely to present an aberrant verdict
ii) Unanimity
(1) In the Federal System, unanimous verdicts are still required unless parties consent to majority verdicts.
Rule 48
(2) Rules of unanimity will result in more hung juries.
(3) Requiring unanimity may encourage juries to deliberate better.
iii) Reexamination Clause
(1) No fact tried by a jury, shall be otherwise reexamined in any Court of the US, than according to the rules
of the common law. (7th Amendment)
k) Jury Selection
i) 28 USC 1861
(1) Juries must be selected at random and represent a fair cross-section of the community
ii) 28 USC 1862
(1) Discrimination based on race, color, religion, sex, national origin, or economic status is not allowed.
iii) 28 USC 1863(b)(2)
(1) When voter registration lists do not suffice to meet §§ 1861-62, use some other source of names.
iv) 28 USC 1865
(1) Judge has the sole right to determine if juror is qualified or not.
(2) Generally, following are not qualified:
(a) Under 18 yrs
(b) Not a citizen
(c) Unable to read, write, or understand English
(d) Incapable by mental or physical infirmity
(e) Has charges pending against or has been convicted of a crime over 1 year and does not have civil
rights restored.
v) 28 USC 1867
(1) Before voir dire or within 7 days of discovering or should have discovered by the exercise of diligence,
party may move to dismiss indictment on ground of failure to comply with selecting jury.
(2) Court will grant if it finds that substantial failure in selection has occurred.
l) Challenging Individual Jurors
i) Jury selection process = voir dire
(1) Individuals from pool are brought to courtroom, given statement on case and issues, questioned, and
then retained or disqualified.
(a) For cause challenge – an articulated reason involving juror’s bias
(i) Bias may include current or prior relation to any party
(ii) Some view that human psychology cannot overcome bias; Other view is that if brought to
attention, people will set aside biases and assume responsibility
(b) Peremptory challenge – no reason need be given; limit is 3, generally
(i) Can’t systematically remove certain class of jurors – race, gender, etc.
(ii) If done so, other party may make prima facie case of violation of § 1862, and striking party must
give legitimate reason
(2) State courts generally allow more leeway in voir dire
(3) Questioning
(a) Some judges allow attorneys to conduct questioning and follow-up questions
(b) Some judges collect questions and conduct process themselves
(4) Other Purposes of Voir Dire
(a) Lawyers can subtly begin presenting their case
(b) Determine list for peremptory strikes
(5) Contempt
(a) A juror caught lying or concealing may be held in contempt
(b) Greenwood test is to first prove that juror concealed truth and then prove that the truth would have led
to juror being struck.
ii) Thompson v. Altheimer & Gray
(1) ’s lawyer challenged for cause when juror (business owner) expressed some bias in a claim against a
small business. TC judge denied striking. SC said TC erred as he did not follow up with questions to
determine if juror will follow his instructions. SC reversed.
(2) Concurring opinion stated that reversal should not be allowed if  had peremptory challenges left.
(3) TC judge has discretion – some jurors, especially business owners, may express bias to get out of jury
m) Excluding Improper Influences
Screen the jury through voir dire to weed out bad jurors
Good faith efforts of jurors to introduce information not filtered through admissible evidence may result in a
iii) Instruction to jury
iv) Sequestering the jury
Jury Instructions
a) How to draft:
i) Model instructions available
ii) Begin working on instruction at start of trial
iii) Present judge with proposed instructions rather than waiting to object to judge’s own proposed instructions
b) Rule 51 – Instructions to Jury
i) 51 a – Party may request instructions
ii) 51 b – Court may propose instructions to parties, hear objections, and give jury instructions any time before
they are discharged
iii) 51 d – Party may assign an instruction as error if objected to properly before
Judgment as a Matter of Law (Directed Verdict)
a) A judge should only direct a verdict if there is no rational basis for a jury to find in favor of the party against whom
the verdict is directed.
b) Rule 50(a)
i) After a party has been fully heard by the jury, and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party, court may grant JML
ii) Motions may be made at any time before submission of the case to the jury
(1) Motion will specify judgment sought and the law and facts on which the moving party is entitled to
judgment as a matter of law.
c) Role of Judge
i) Judge can make some assessment, but not in depth assessment as that is jury’s function.
ii) In state courts, a scintilla of evidence could prevent the  from getting JML
(1) Federal Courts have a higher standard.
iii) Often allow the case to go to jury despite clear indication of which side will prevail so that jury’s function is
preserved. Always has option of JNOV to overturn verdict.
d) Pennsylvania Railroad v. Chamberlain
i) SC upheld TC’s JML grant to  when  did not present clear evidence supporting claim.  alleged deceased
was killed by train, but only witness did not even see crash happen. Court held that where an inference is
made, the party had the burden to prove the inference with specific evidence.
e) Boeing Co v. Shipman
i) Reasonable Man Test: If the facts and inferences point so strongly and overwhelmingly in favor of one party
that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is
Judgment Notwithstanding the Verdict
a) A belated JML; motion made after verdict is entered
b) Many courts may believe JML should be granted, but wait for the jury to do its job, and then grant JNOV if it feels
jury failed.
c) JNOV is also judicially efficient as if reversed on appeal, the court already has a jury verdict and need not
d) Rule 50(b)
i) After having moved for JML, and being denied, a party may move for JNOV within 10 days of the judgment
being entered or request a new trial.
e) Why must JML be used first?
i) Puts the court on notice of possible evidentiary issues
ii) Circumvents the 7th Amendment policy of not disturbing the jury verdict.
New Trial
a) Rule 59 – New Trials
i) 59 a – New trial may be granted to any/all parties for any/all issues
ii) 59 b – Motion must be filed no later than 10 days after entry of judgment
iii) 59 d – Court may grant new trial on motion for any reason, within 10 days of judgment, and must state why
b) Do not have to move for JML to get New Trial motion
c) Granting new trial alone CANNOT be appealed
d) When is new trial granted?
i) Flawed Procedure
(1) Allowing impermissible argument to jury
(2) Error in admitting evidence
(3) Erroneous jury instructions
(4) Juror misbehaved during trial
ii) Flawed Verdict
(1) Verdict is against weight of evidence
e) Conditional motion of new trials are judicially efficient. Grant JNOV, and new trial in alternative.
f) Lind v. Schenley Industries
i)  sues  for sales commission dispute. At trial, jury finds for , and judge grants JNOV w/ new trial in
alternative. Judge gives reasons as 1) verdict against weight of evidence 2) against law 3) impermissible
evidence. At appeal, ct looks at #1 and says standard is abuse of discretion – judge has wide latitude. Ct says
(1) Judge must not put himself in the situation and make decision
(2) Judge must consider character of evidence
(3) Judge must determine if legal principles to be applied by jury were simple or complex
ii) Majority found case was simple and evidence clear, so jury’s role should not have been usurped. It reversed
grant of JNOV and New Trial.
iii) Dissent says
(1) Not usurping jury’s role, only delaying it.
(2) Ct has never before reversed grant of new trial
(3) Overwhelming evidence that ’s testimony was unbelievable.
g) Conditional New Trial
i) Limit new trial to damages
(1) Judge must be certain that whatever led jury astray on damages did not lead them astray on liability too
ii) Additur
(1) Judge orders a new trial unless  agrees to higher damages (may not be appealed)
iii) Remittitur
(1) Judge orders a new trial unless  agrees to lower damages (may not be appealed)
13) Jury as a Black Box
a) Reasoning and analysis of jurors is not available for discovery
b) Juror may speak freely with lawyers and other parties after trial, but this may not be used to impeach their
function or ask for a new trial.
c) Rule 606(b) – Juror may not testify to any matter during deliberation except to testify to the question whether
there was outside influence or extraneous prejudicial information.
i) Affidavit from juror is not available for testimony purposes.
d) Peterson v. Wilson
i) Fired university employee sues when he refuses to comply with unauthorized procedures and wins. Judge
later interviews jurors and found out they did not understand or follow his instructions. Judge orders new trial
as verdict against weight of evidence.  loses in 2nd suit and appeals. Ct says that judge behaved
impermissibly under Rule 606(b) in 1st suit and reverses.
e) How to make jury verdicts more opaque
i) Rule 49 – Special Verdicts and Interrogatories
(1) 49 a – Special Verdicts is a situation where jury answers a series of questions to arrive at the final verdict
(2) 49 b – General Verdict with Interrogatories is a situation where the jury gives a general verdict, but also
answers questions to explain its reasoning.
ii) Juries claim to be confused by such rules and as a result they are disfavored by judges
(1) They could give more grounds for appeal when arriving at inconsistent results within the verdict.
iii) Rules are requested by parties and judge may decide whether to grant or not.
14) Compulsory Joinder
a) POLICY: Litigation often affected people who weren’t formal parties and if the effects were serious enough and
the effected persons could be joined, they should be.
i) Two concerns need to be balanced
(1) Autonomy and interest of party to be joined
(2) Concern for judicial efficiency and consistency
b) Rule 19 – Joinder of Persons Needed for Just Adjudication
i) 19 a – Persons to be Joined if Feasible
(1) Person should be joined if his absence could not accord complete relief to existing parties
(a) Person must be subject to service of process, and
(b) Joinder should not deprive the court of SMJ
(2) OR Person has an interest relating to the subject of the action and his absence would
(a) Impair or impede his ability to protect that interest, or
(b) His absence would leave existing parties subject to substantial risk of multiple or inconsistent
(3) Person not wanting to join can be joined by court as  or involuntary 
(4) If joinder of party would render venue improper, the party shall be dismissed.
ii) 19 b – Determination by Court Whenever Joinder Not Feasible
(1) If person cannot be made party under 19(a), court will determine to allow action to proceed or not.
(2) Factors court should consider are
(a) To what extent a judgment rendered in absence of that party might be prejudicial to existing parties
(b) Can relief be shaped to lessen or avoid such prejudice
(c) Whether judgment in absence will be adequate
(d) Whether  will have adequate remedy if action dismissed for nonjoinder
(3) This subsection is invoked when joinder is not feasible under 19(a) because of diversity or lack of
jurisdiction – the judge must determine if the party is indispensable and dismiss the action.
iii) Congress has not extended supplemental jurisdiction under rule 19
iv) Court may make such motion on its own
v) ’s tool: use this motion to avoid or share blame
c) Temple v. Synthes Corp
i)  is injured by plate in back after surgery when screws come loose.  sues  hospital/doctor in a separate
action from suing  manufacturer. Both TC and App Ct dismiss suit as  failed to join all three parties under
Rule 19. SC reverses citing that hospital/doctor were not necessary parties under the rule that where joint and
several liability (joint tortfeasors) only permissive joinder is required.
ii) Could  have joined all three?
(1) Yes – it would have eased his burden under one suit as the ’s would all point fingers at each other
iii) Would indemnification be appropriate?
(1) No – as the situation here is – “it’s not me, it’s him.”
(2) Perhaps if manufacturer had trained doctor or hospital.
d) Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center
i)  has a lease with  mall that limits number of jewelry stores. Mall breaches when it signs on another jeweler
– Lords.  (Missouri) sues  mall (Iowa) in Missouri.  does not have PJ over Lords.  mall claims failure to
join indispensable party under Rule 19, but ct affirms for . Ct found that Lords was necessary party as its
rights and obligations would be affected, but it was not an indispensable party. Why?
(1) Lords still had all the same rights and obligations under its lease against  mall.
(2) Lords was given chance to intervene, but chose not to do so
(3)  Mall’s obligations may be affected, but it is by its own fault.
(4) The ruling is more about enforcing ’s lease and its impact on Lord’s lease is indirect.
(5) Inconsistency unlikely if Lords later sues  mall.
ii) RULE: A person does not become indispensable to an action to determine rights under a contract simply
because that person’s rights or obligations under an entirely separate contract will be affected by the result of
the action.
e) Clinton v. Babbitt
i) Navajo Indians sue the Dept. of Interior for allowing them to remain on land owned by the Hopi. The Dept.
wants to bring in the Hopi as a necessary party. Ct finds them necessary, but it is not feasible under 19(a) as
the Hopi have sovereign immunity. Under 19(b), ct ends up dismissing the action even though the Navajo
cannot bring action anywhere else. This may seem like a tough result, but it may be in light of the fact that the
ct implied in a footnote that Navajo had no substance to their claim.
15) Intervention
a) Purpose: to permit an unjoined party to elbow his way into a suit where no one wants him.
b) Ct and existing parties may be unenthusiastic of intervention
i) Parties: complicates and weakens their litigating strategy
ii) May make settlement more difficult
iii) May make suit difficult to administer
c) Rule 24 – Intervention
i) 24 a – Intervention of right allowed when
(1) US statute gives unconditional right, or
(2) Interest relating to property or transaction which is subject of action and
(a) Not allowing party will impede or impair his interest, and
(b) He is not adequately represented by another existing party
ii) 24 b – Permissive Intervention allowed when
(1) US statute gives conditional right, or
(2) Applicant’s claim or defense and main action have common question of law or fact.
(3) Ct must exercise discretion to avoid unduly delay or prejudice to existing parties
iii) 24 c – Procedure
(1) By motion under Rule 5
iv) If joinder would destroy SMJ in a diversity action, it is not allowed.
d) Natural Resources Defense Council v. United States Nuclear Regulatory Commission
i) Original litigation is between NRDC and US NRC. NRDC only wants NRC to grant licenses after preparing
environmental impact statement. Under Rule 24, UNC is joined as a permissive party. Then, applicants Kerr
and UMC wish to join as well. This is the issue of an interlocutory appeal. Ct says that Kerr is one of largest
uranium property holders and UMC represents several other companies. UNC would not adequately
represent these parties by itself and further, UMC already had a license, so was less likely to represent the
ii) Other reasons:
(1) Parties will be bound by the result
(2) Not too complex if only allowing two more parties
iii) TEST: Allow intervention if party’s rights are similar to, but not identical to existing parties.
e) Public Litigation v. Private Litigation
i) Cts are generally reluctant to allow joinder in private tort claims
ii) Exception: Hypo -  sues auto manufacturer for injuries. They settle and want a protective order placed to
avoid discovery. 16 people claiming similar injuries against the manufacturer seek to intervene to challenge
the protective order. Ct allows such intervention as analogy could be made that such records are matter of
public concern.
f) Interplay of Rule 19 and Rule 24 – the merging line
i) Martin v. Wilks
(1) Suit 1 – NAACP sues City of Birmingam. This results in a consent decree favorable to Black employees.
Ct had consent fairness hearing, where BFA objected, but ct found it untimely. BFA then files a complaint
against the city, but this is dismissed. Then, a group of white firefighters (Wilks) bring action for reverse
discrimination against the city. Martin representing black firefighters is allowed to intervene to defend the
consent decree. DC dismisses action on this defense, but SC reversed in end saying Wilks was not
precluded from bringing its independent claim.
(2) Wilks Rule: Those on the outside of a suit who might be impacted do not have the duty to intervene.
(3) How to avoid a Wilks situation?
(a) Existing parties should join any representative parties that might be impacted under Rule 19.
(b) Congress passed 42 USC 2000e – prohibiting suits in cases where parties had notice, had
opportunity to make objections, or was adequately represented.
16) Interpleader
a) Interpleader is a procedure by which a stakeholder can require the competing claimants to litigate their rights to
the fund or property in question.
b) Rule 22(1) – Persons having claims against the  may be joined as s and required to interplead when their
claims are such that the  is or may be exposed to double or multiple liability.
i) Invoked when  is from one state and ALL potential s are from some other state.
c) § 1335 – Interpleader Act
i) DC’s have jurisdiction on an interpleader action with subject value over $500
(1) There are 2 or more adverse claimants of diverse citizenship
d) § 1397 – The action may be brought in any judicial district where one or more claimant resides.
e) § 2361 –
i) Allows nationwide service of process
ii) Ct shall hear and determine case, and may discharge the  from further liability, make the injunction
permanent, and make all appropriate orders to enforce its judgment.
iii) Claimants may not bring action then in state or federal courts.
f) See chart on page 786 for distinctions between Rule 22 and the Interpleader Act
g) Cohen v. The Republic of Phillippines
i) To settle who owns paintings, Cohen brought an interpleader action against Braemer (claims he is authorized
seller), Republic of Philippines (claims bought by its govt. or illegally by Marcos and so it should have title),
and Imelda (claims bought by personal wealth). Ct allows Imelda to intervene under Rule 24 as her interest is
at stake and the others are adverse claimants. Interpleader action is also proper as nationwide service of
process is allowed.
17) Claim Preclusion
a) Res Judicata
b) Goals
i) Efficiency
ii) Finality of Judgment
iii) Avoidance of Inconsistency
c) MAIN ISSUE: Where does one claim end and another begin?
i) Not clear across jurisdictions
ii) Depends on how the scope of a cause of action is identified – narrow or broad.
d) Effect on Rule 18
i) A party…”may”…join a claim becomes “shall” if it will have res judicata effect.
ii) Under Rule 42 – the judge may split up the claims if too much to handle
e) Rules of Claim Preclusion
i) Must have final decision in first lawsuit
ii) Underlying claim or basis of action must be the same
iii) Must be the same parties
f) Grounds for finding claim preclusion
i) Split Theory
(1) Ex: One case brought as breach of contract and second case brought as promissory estoppel
ii) Arithmetical Splitting
(1)  tries to recover separate damages from the same incident in separate actions.
(2) Ex:  cannot recover property damage in one action and personal injury in another
iii) Splitting of Relief
(1)  asserts one remedy in one action and alternative or supplemental remedy in another.
(2) Ex:  seeks replevin in one action and money damages in another.
g) Frier v. City of Vandalia
i)  sued city in state court when it towed his cars. State ct found seizure proper.  later sued city in Fed Ct
citing lack of Due Process. Fed Ct ruled that while Due Process existed,  was still barred from action due to
claim preclusion.
ii) Two views:
(1) Majority adopts the broad view:
(a) Adopted by RST as well
(b) Majority says same transaction and basis of facts – so precluded.
(c) Majority looks at the grounds for the action.
(2) Concurring adopts the narrow view:
(a) Different facts and evidence needed for this different cause of action – so not precluded
(b) More focus on the theory of action in 2nd suit
(c) Says majority got it wrong in interpreting IL law – IL does not have broad view.
(i) Under § 1738, Fed Ct must interpret law as IL would give it effect
h) Martino v. McDonald’s System
i)  sues  for violating non-compete franchise agreement.  is awarded consent decree.  later brings action
against  citing an anti-trust theory when the decree forced it to shut down the franchise. Ct says consent
decree can also have claim preclusion effect and the 2 nd suit is precluded.  contended it was independent
action, but ct said that it was not as it could have resulted in an inconsistent decision on the validity of the
franchise agreement.
i) Impact of Res Judicata on Non-Parties
i) Substantive Legal Relationships
(1) If the substantive law of the relationship treats A as a substitute for B, B will be bound by the results of a
lawsuit in which A participated.
(2) Examples
(a) Successors to land who are in privity to the previous owner are bound by any judgment dealing with
the land
(b) Situations with co-ownership, joint obligation, or vicarious liability
(3) Someone not formally named a party, but so closely connected to a suit that it appropriate to treat as if
named in the suit and are bound by privity.
(a) Searle Brothers v. Searle
(i) 1st suit was a divorce proceeding between H and W and at issue was a house. H argued he had
½ interest in the house and his sons had other ½ through partnership. TC awarded house to wife
as equitable. 2nd suit was brought by sons and TC said res judicata. Sons appealed. App ct find
for sons:
1. Majority View
a. Sons did not have legal right to intervene in divorce proceedings
b. Son’s interests were not adequately represented by father at trial; the partnership
argument was only incidental
2. Dissenting View
a. Sons were witnesses in original trial
b. Father was adequate representative of partnership
(b) Albright v. RJ Reynolds Tobacco
(i) Decedent died while fighting case against tobacco company for causing him cancer. Ct later
precluded suit brought by estate for wrongful death. The estate was in privity with the decedent.
(4) Richards v. Jefferson County
(a) This case illustrates that there are constitutional limitations on how far res judicata can be applied to
non-parties. SC reversed AL SC decision when 1st suit litigated in state ct on an occupation tax and
2nd suit brought in fed ct based on constitution was denied for res judicata.
ii) Express Agreement
(1) Ex: A & B are in accident with C. B agrees not to bring action if C promises not to dispute extent of A’s
injuries. B is precluded.
iii) Virtual Representation
(1) Many parties can be represented by one or few if they have identical interests.
j) After Final Judgment
i) Cts may postpone a decision on claim preclusion until any appeals on the final judgment have been cleared
ii) Sometimes cts have not fully litigated a trial, but still give claim preclusive effect to a default judgment due to a
party’s misbehavior
iii) A claim is not precluded if the suit was only dismissed on a Rule 12 motion – no pleading in 1st suit
iv) Dismissals
(1) Generally a dismissal on the merits has claim preclusive effect.
v) Gargallo v. Merrill Lynch
(1) Fed ct held that ’s case was not precluded as the final judgment from the 1st suit was not proper when
the state did not have SMJ.
vi) Rule 36(b) – An admission made pursuant to this rule cannot have preclusive effect outside of the pending
18) Issue Preclusion
a) Black Letter Law
i) When an issue of fact or law is
ii) Actually litigated and determined by
iii) A valid and final judgment and
iv) The determination is essential to the judgment
b) Only bars issues that were litigated and decided in the prior action; it does not affect claims or defenses that could
have been raised but were not
c) Illinois Central Gulf Railroad v. Parks
i) B & J crash with IC Railroad. B sues and wins for injuries. J sues for loss of consortium and loses. J later
brings action for injuries (allowed as IL has narrow view of claim preclusion). IL wants to assert that since J
lost first time the issue of his contributory negligence is settled and precluded from relitigation here. Ct says
no as the 1st suit left open the possibility that J lost because 1) he did not sustain damages or 2) he was
contributorily negligent. There is a reluctance to infer what the jury might have found.
d) Alternative Grounds
i) RST1 says – when alternative grounds for decision existed, both should be precluded in subsequent litigation.
ii) RST2 says – neither determination should be binding in subsequent litigation.
iii) Why?
(1) Determination in alternative may not have been rigorously argued or considered.
(2) Losing party may be discouraged from bringing action if at least one of the issues is precluded.
iv) Comment says
(1) If issues have been appealed and the finding is affirmed, this should be given preclusive effect in
subsequent litigation.
e) Parklane Hosiery Co v. Shore
i) Ct said that if one  brings action against  and a finding is made, another  suing the same  can invoke
issue preclusion if the issue was actually litigated and determined and essential to the 1st suit.
19) Joinder of Parties
a) Rule 20(a) gives  a right to join other ’s and/or ’s if
i) assert any right to relief jointly, severally, or
ii) Arising out of the same transaction, occurrence, or series of transactions or occurrences
iii) 20 b – Pursuant to Rule 42(b), a judge may order separate trials to prevent a party from being embarrassed,
delayed, or prevent prejudice
iv) Mosley v. General Motors Corp.
(1)  and 9 others, joined together to bring suit against GM () for discrimination against blacks and women.
(2) The difficulties in ultimately adjudicating damages to various ’s in a class are not so overwhelming as to
require severance of the ’s causes of actions.
b) Rule 14 gives a  a limited right to implead new parties against whom she has claims related to the main action.
i) The  may bring in a party who may be liable to her for all or part of the recovery the  obtains.
ii)  may not implead to say – “its not me, its him.”
iii) 14 a – When  may bring in 3rd party
(1) Must bring action w/in 10 days of serving original answer or by leave of court
(2) 3rd-party  shall make any defenses & counter-claims to 3rd-party  or other 3rd-party ’s
(3) 3rd-party  may assert against  any defense it has against 3rd-party 
(4) 3rd-party  may assert any claim against  arising out of same transaction or subject matter of ’s claim
(5)  may assert any claim against 3rd-party  arising out of same transaction or subject matter of ’s claim
iv) 14 b -  may bring in 3rd party when faced w/ counter-claim
v) Policy
(1)  favors Rule 14 as
(a) a way to shift liability
(b) delays the suit, giving more time to prepare
(c) makes trial more costly for 
vi) Jurisdiction Issues
(1) Pleading 3rd-party does not affect court’s jurisdiction over claim as § 1367 usually provides supplemental
(2) 3rd-party also disregarded in determining whether venue is proper
vii) Price v. CTB, Inc.
(1)  hires  to build chicken house. Chicken house is faulty.  sues  for bad coop.  joins 3rd-party  for
providing faulty nails (indemnified). ITW, 3rd-party , argues that they are improperly impleaded under
Rule 14. Court holds that ITW was properly impleaded under Rule 14.
20) Joinder of Claims
a) Rule 13 authorizes a defending party in a suit to assert claims back against a party who has claimed against him
i) 13 a – counterclaim is compulsory if arising out of the same transaction or occurrence
ii) 13 b – counterclaim is permissive if not arising out of the same transaction or occurrence
iii) 13 g – cross-claim against co-party if arising out of same transaction or occurrence
(1) May implead under Rule 14 to make such a claim
b) Rule 18 authorizes parties, once they assert a claim properly, to assert any additional claims against opposing
i) Judge may sever claims under Rule 42(b)
21) Supplemental Jurisdiction
a) Stretches federal jurisdiction to cover parts of cases, that if brought independently, would not have fit within the
court’s subject matter jurisdiction
b) 28 USC § 1367 – In cases where fed ct has original jurisdiction the ct shall have supp jurisdiction over all other
claims that are so related to claims in the action that they form part of the same case or controversy (including
joinder or intervention of additional parties).
c) § 1367(b) – when original jurisdiction is based strictly on diversity the fed ct shall not have supp jurisdiction over
claims made under rules 14 (third party claims), 19 (Compulsory Joinder), 20 (Permissive Joinder), and 24
(intervention) if they destroy independent grounds of diversity.
d) § 1367(c) – the district ct can decline to exercise supp jurisdiction if
i) the claim raises a novel or complex issue of state law
ii) the state claim predominates over the fed claim
iii) the district ct has dismissed all fed claims
iv) any other compelling reason the ct finds
e) § 1367(d) – period of limitation – 30 days
f) Jin v. Ministry of State Security –  had a RICO action (fed statute), so Ct. had SMJ over ’s defamation claim
despite defamation being a state law.
i) Two part test for Supp jurisdiction
(1) Does the ’s claim share a common nucleus of operative facts with the other claims?
(2) Do the interests of judicial economy, convenience, and fairness support the exercise of supp jurisdiction?
g) Owen Equipment v. Kroger
i)  = wife; 1 = Paxton, employer; 2 = Owen, leased crane to 1; 3 = Omaha Power, sold power lines to 1
ii)  sued 3 in fed ct invoking diversity. 3 invoked 2 as it had no liability & 2 maintained it was from NE – so
diversity maintained. 3 leaves trial and 2 then says it is from IA thereby destroying jurisdiction.
iii) DC and App Ct refused 2 to leave as it found willful misconduct in claiming citizenship. SC overruled as it
would destroy complete diversity and that was not allowed by Congress (pre-§ 1367).
iv) Policy: Prevents  from suing only one  to establish diversity, knowing  will have to implead another  that
destroys diversity.
v) Arguments against
(1) Dissent says complete diversity not explicit in Article III
(2) Jurisdictional estoppel could have left 2 in suit