CIVIL PROCEDURE OUTLINE
Winter 1999—Beckerman
By Amy Harwell
I.
BUFFALO CREEK DISASTER
II.
A SURVEY OF THE CIVIL ACTION (pg1-20)
You can get 3 things from a civil case:
1) money
2) injunctive relief
3) declaratory relief
Lawyers get paid: 1) contingency fee, or 2) pd by the hour and a retainer
Federal Rules adopted in 1938
Adversarial system (as opposed to the judge finding the facts)
1) party presentation
2) party prosecution
--judge is a passive referee or umpire
Advantages
Disadvantages
both sides get an advocate
If the judge is lazy, stupid
participatory quality, more willing
Lawyers not evenly matched
to comply
If parties get involved for some
Is the truth more likely to come out?
other reason besides the
normal ones
American Rule—each side pays its own legal fees
English Rule—loser pays the legal fees
3 exceptions to the American Rule
1) contractural
2) common fund—free rider problem
3) statutory fee shifting—prevailing  shall get a reasonable attorney’s
fee (ex. Discrimination)
Rule 1—Scope of Rules
The rules are to secure the “just, speedy, and inexpensive determination of every
action”
Critiques of the federal rules
--it takes too long
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--red tape, bureaucratic
--too expensive
Purposes of Civil Procedure
1) to redress wrongs
2) to compensate
3) injunctive relief
4) to order relationships
The problems of moving a lawsuit through has been tremendously increased. Why?
1) Federal Speedy Trial Act—criminal cases have to be brought to trial within
180 days, so the civil docket suffers
2) Increased use of Federal Sentencing Guidelines—mandatory minimums
reduce a judge’s discretion and put it in the hands of the prosecutors. More
likely to plea bargain before. But now, judge can’t take the plea bargain into
account, so they don’t plea bargain and more cases go to trial.
Rule 3—Commencement of Action
A civil action is commenced by filing a complaint with the court.
Ways to answer a complaint
1) deny
2) demurrer (say “so what, even if I did all the things you allege, it
does not give rise to a claim”) abolished by Rule 7c
3) admit
Rule 7a—Only pleadings allowed (pg20)
1) complaint
2) answer
3) counter claim
4) cross claim
5) third party claim
III.
NOTICE AND OPPORTUNITY TO BE HEARD (pg182-244)
(he jumped around a lot, so when I really study this, I need to read through the
section, read my notes, then read another outline or something—lots of stuff got
skipped)
A. THE REQUIREMENT OF REASONABLE NOTICE
Did the  have adequate notice?
If not, the case may be dismissed
If not, it violates Due Process
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Mullane v. Central Hanover Bank & Trust (pg182)—the court required mailed notice to
those trustees whose addresses were known; publishing in a newspaper for the
unknown is fine. Is notice by publication a violation of due process when the out-ofstate parties so served are known and have known addresses? Held: Yes.
 “An elementary and fundamental requirement of due process in any proceeding which is to
be accorded finality is notice reasonably calculated under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present
their objections. The notice must be of such nature as reasonable to convey the required
information and it must afford a reasonable time for those interested to make their
appearance.”

Why do we require notice? (pg12)
1) not fair
2) don’t want to have to try it again—without notice, judgment is not valid
3) one way to get jurisdiction over a person
Ex parte—without notice to the other side
McDonald v. Mabee (pg188, note2)—He left the state, so newspaper publication
doesn’t get to him. Not good enough.
Wuchter v. Puzzutti (pg189, note3)—long arm statute invalidated because it did not
expressly require the Sec. of State to give notice. But  knew, and SC still invalidated.
Why? They want consistency and official standards set in place.
Greene v. Lindsey (pg190)—posting on the door is not good enough notice.
B. THE MECHANICS OF GIVING NOTICE
Rule 4—Summons
4(a)—Summons has to look formal and official, can’t look like a letter
4(c)(1)—you serve a summons and a complaint
4(c)(2)—must not be a party and at least 18 (don’t want sewer service)
4(d)—Waiver of service—it becomes effective when they return the
waiver of service forms
Ways to encourage:
1) shift cost to  (stick)
2) you get 60 days, instead of just 30 to answer (carrot)
Can you refuse to waive without having to pay for service?
Tickle v. Barton (pg22) (pg18)-- was tricked into the jurisdiction. Ct. said the service is
invalid; you can’t trick. Is service of process valid when the defendant was induced to
enter the county in which he was served by an unauthorized invitation to a banquet by
the ’s attorney? Held: No.
3
Maryland State Firemen’s Assoc. v. Chaves (pg196)—Chaves knew, court still held
service was invalid. Want a bright line rule.
Nat’l Equipment Rental v. Szukhent (pg203)—Clause said, “lessee hearby designates
Florence Weinberg for NY service”. Even though s did not know her, the court held
the clause was valid. Black’s dissent says that every big company will put these in and
the little guy will never know if they are being sued. Is a person an agent by
appointment who was designated in the litigants’ private contract as agent to receive
service of process, even though he is not personally known to the litigants and is not
expressly required by the K’s terms to transmit notice to the parties? Held: Yes.
C. IMMUNITY FROM PROCESS AND ETIQUETTE OF SERVICE
State ex rel. Sivnksty v. Duffield (pg213)—didn’t want to talk about it. Is a non-resident
immune from process who voluntarily enters a county with the intent of remaining for
a few days, but is then put in jail and is served with process in a civil action while he is
incarcerated? Held: No.
Wyman v. Newhouse (pg216) (pg24)-- told  to come from Utah to Florida, I want to
see you one last time. Fraud affecting a jurisdiction is equivalent to a lack of
jurisdiction. Will a sister state’s courts enforce a judgment procured in another state by
fraudulent service of process? Held: No.
 Which is a better case for quashing service, Tickle or Wyman? Wyman
because she had never even been to Florida.
Can you waive notice entirely? See pg25. Not per se unconstitutional, but
highly suspect.
D. OPPORTUNITY TO BE HEARD
Prejudgment Remedies—(pg25)
Due process question because you lose your property without a hearing.
Kinds of prejudgment remedies
1) garnishment—bank account, wages—any property in the hands of a
third person
2) replevin—repossesses and turn over to applicant
3) attachment—seizure—officer of the court takes possession
4) sequestration—synonymous with attachment
5) temporary restraining order—
6) preliminary injunction—no limit to duration—can obtain without
notice to adverse party—just means before trial
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rule 65(a)(1) and rule 65(a)(2)
7) receivorship—deprives owner of use—companies
8) civil arrest—he’s never seen it used
Why do we need prejudgment remedies?
a) Protect property from being removed
b) Protect property from being destroyed
c) Preserve the status quo
d) (intimidation)
lis pendens or (notice of pendency)—put something in the land records and no one will
buy it if someone has a claim
affidavit—sworn statement
It will be in the form of a motion:
1) notice of motion with a particular date and putting it on the court
calendar
2) factual showing to why you need it
affidavits
3) a brief
To get a temporary restraining order and prelim inj:
1) irreparable injury—harm that can’t be compensated later, extingent
circumstances, urgency
a) what’s the big deal
b) have you attempted to give notice
c) if not, why not
d) what’s going to happen if you don’t get it
2) likelihood of success on the merits
3) balance of hardship
Fuentes v. Shevin (pg219)—Sheriff seizes a stove and stereo bought on credit. Are state
statutes that fail to provide for a hearing before a creditor can replevy goods from a
defaulting debtor unconstitutional? Held: Yes.
 “The minimal deterrent effect of a bond requirement is no substitute for an
informed evaluation by a neutral official”. Informed is the key, both sides
and they want a judge.
Mitchell v. W.T. Grant (pg229) (pg31)—the Court upheld a Louisiana sequestration
procedure that provided for dissolution of the writ upon the debtor’s request, unless the
creditor could prove his grounds and post a bond.
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North Georgia Finishing v. Di-Chem (pg231) (pg32)—a Georgia garnishment
procedure was struck down because there was no hearing, no notice, and the debtor
could recover his property only by posting a bond for the debt amount.
Connecticut v. Doehr (pg233)—most recent pronouncement by the SC. Does a state
statute that authorizes prejudgment attachment of real estate without prior notice and
without a showing of extraordinary circumstances, violate the Due Process clause?
Held: Yes.
IV.
ENFORCING JUDGMENTS (pg1079-1106)—All the prejudgment
remedies are converted to post judgment ones
Griggs v. Miller (pg1090) (pg38)—Sheriff sold entire farm to pay for the one judgment
for Crouch. Only two bidders. May a sheriff sell property in excess of the amount
needed to satisfy the judgment? Held: No.
 Ct. said “A failure to divide real estate and sell only enough to satisfy the
execution has been considered an 1) abuse of discretion and a 2) constructive
fraud”. (pg1092)
 More on pg40 and depo stuff on 41
§1291—Final judgment rule. If it’s not final, it can’t be appealed
Reeves v. Crownshield (pg1100)—garnishment of wages. Does a statute
unconstitutionally provide for imprisonment for debt where it permits a court to order
a judgment debtor to make payment out of income and where refusal to pay after such
an order is punishable by contempt? Held: No.
 Ct. says the jail time is okay because it was in disobedience of a ct. order. Is
this distinction persuasive?
Lien—an interest the law will recognize. An encumberance/a security interest. Have
priority over unsecured creditors in bankruptcy.
Choate—identify which property the lien is against. Creditor has taken the proper
steps to get his money. “perfecting your security interest”—UCC 9-302 through 9-306
Matter of Fornabai (pg1103)—Issue is who has priority for payment. Must a writ of
execution be instigated in order to secure the substantive right of a judgment lien?
Held: No.
V.
DEVELOPMENT OF MODERN PROCEDURE (pg446-492)
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VI.
PLEADING (pg493-582)—
A. THE COMPLAINT
1.
Detail Required Under the Codes
Gillispie v. Goodyear Service Stores (pg494)—Is the complaint legally sufficient? Trial
court said it was not sufficient and dismissed the complaint with leave to amend. So 
could file again, but chose to appeal. SC affirmed. Complaint contains legal
conclusions. Where a complaint merely alleges legal conclusions by not the factual data
on which these conclusions are based, should a demurrer be granted? Held: Yes.
 Is it significant that there was no SJ in NC? It would have gone to trial
because no other way to dismiss the complaint, so it may make more
sense to have tight rules for pleading.
McCaughey v. Schuette (pg496)-- won at trial,  won on appeal.
 So you can’t plead legal conclusions (Gillispie)
 And you can’t plead probative facts (McCaughey)
Are these legal conclusions or factual—see (pg45)
Traditional Functions of Pleadings
What function in the lawsuit does a fact specific pleading serve?
1) notice of the claim to the 
2) narrow the issues in the lawsuit
3) identify and dispose of groundless claims
4) set forth each parties’ view of the facts
5) guide the parties and the court in their conduct in the case
But several of these are better served in other parts of the federal system, so the Fed’l
Rules change it.
A short and plain statement only gives us 1)—notice (pg47)
2) narrowing issues? discovery
3) get rid of baseless claims? SJ, pretrial conference
4) commit to positions? Depositions, discovery, interrogatories
5) may still guide the parties because it is the only thing out there
A vague complaint favors the ; a specific one favors the .  can change the case, and
its harder to get rid of the lawsuit
2 mechanisms to dispose of groundless claims:
1) Rule 12(b)(6)—Motion to dismiss for failure to state a claim upon
which relief can be granted.
2) Factually—
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a) Rule 56—Summary Judgment
b) Rule 50—Motion for judgment as a matter of law.
(used to be called: 1) directed verdict and 2) j.n.o.v.)
Rule 15—Amending complaints
2.
Detail Required Under the Federal Rules
Dioguardi v. Durning (pg500)—Complaint was home drawn and did not state who,
what, when, why, or where. Is a complaint containing a short and plain statement of
the claim asserting that the pleader is entitled to relief, but not stating the facts sufficient
to constitute a cause of action, adequate under the federal rules? Held: Yes.
 Pro se—litigants without lawyers.
 Court would dismiss it if it were done by a lawyer, but has a const. right to
appear pro se.
Degree of specificity—Forms 3-18
So now we have notice pleading, not fact pleading. It is exemplified by Dioguardi and
Conley v. Gibson (pg502).
Rule 12(e)—Motion for a More Definite Statement
2 contradictory legal traditions in pleading today:
1) almost everything is okay (pleading is sufficient unless the  can
plead no facts upon which relief will be granted—Dioguardi & Conley
line of cases)
2) pleader must plead the essential elements of the claim (pleaders
should allege, even if sketchy circumstances that might be true and if
true, will give relief.
Why do we allow conclusory pleadings?
Advantages
Avoids the risk of deciding cases on a technicality
Allows those who may not know the details to use discovery to find out
Disadvantages
If claim is no good later, time consuming and expensive
Incentive to settle claims even if they may think they’d win
Encourages the plaintiff to bring unmeritorius lawsuits to induce settlement
(strike suits)
Robinson v. Board of County Commissioners (pg499)—Held that this stated a cause of
action, but it seems just as conclusory as the dismissed ones.
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(Rd over the differences later)
Plead more specifically than what is required—when? When you want to tell a story
(so newspapers will understand and pick it up)
Two reasons not to plead specifically:
1) That your adversary will test the legal sufficiency of your claim (huh)
2) Cts. tend to expect proof of everything in the complaint.
See the problems, (pg504) (pg51)
Lodge 743 v. United Aircraft Co. (pg505)-- says they are violating the strike
agreement.  moves for a more definite statement.  says they can’t without
discovery. Ct. says they have to make a more definite statement after discovery.
  could have answered it—they wanted the more definite statement to
narrow discovery and make it easier.
3.
Pleading the Right to Relief
Rule 8(a)—Claims for relief—need a “short plain statement of the claim showing that
the pleader is entitled to relief”
Garcia v. Hilton Hotels International (pg506) (pg52)— claims he was defamed. He
was fired, accused him of starting prostitution in the hotel.  moved for 12(b)(6)
because he left out an element of defamation. Does failure to specifically allege an
essential element of the cause of action require that the complaint be dismissed? Held:
No. More on this case pg53
Case v. State Farm Mutual (pg26) (pg54)—Dct granted the motion to dismiss. Did the
DCt improperly construe the language of ’s complaint? Held: No.
 Dismissed because the K was terminable at will. No wrongful termination
claim
 In Conley, we learned you don’t grant motion to dismiss for failure to state a
claim upon which relief can be granted unless there is no set of facts upon
which relief can be granted.
 Test of legally sufficient depends only on the complaint
 What do my notes mean when they say Then look at it as a motion for SJ, see
rule 12, pg40?
 See the commentary on pg55
 has two choices if dismissed:
1) amend
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2) appeal—if  loses in the appellate court it is considered adjudication
on the merits (res judicata)
Alexander v. Kramer (pg39) (pg56)—Is  bound by a clearly erroneous charge to the
jury merely because  failed to object to the charge as made? Held: Yes.
 The judge ought to have the opportunity to hear the objections and correct
before it goes to the jury.
 Rule 8(c)—Affirmative Defenses—where does the burden go?
 There is more in my notes on this pg57
 Rule 51—Instructions to Jury: Objection—they did object, but just not at the
right time. Is this a good rule?
Burden of Proof (pg510-511) (pg58-60)
1) Burden of Persuasion-- usually has it, doesn’t shift back and forth.
2) Burden of Production—does shift back and forth.
Ex.—in Alexander,  had burden of pleading,  had burden of persuasion.
What factors does the law take into account in allocating the burden of persuasion?
1) Party who pled affirmative defense had burden of persuasion.
Not helpful—negative and positive assertions can be phrased either
way
2) Burden of persuasion was placed on the party to whose case it was essential
Not helpful—may be essential to both
3) Party who pleads it has to prove it.
Makes you plead sparsely
What factors ought to be used?
1) Person who wants to raise the issue
2) Person who has knowledge of the issue—ex. Mailbox rule
3) Person who is claiming wrongfulness—ex. Fraud, defamation, assault
4) Probability—alleging something unusual—ex. I allege it is a gift and painter
wants to be paid. I should have to prove it. Flip side—families don’t usually
charge.
5) Substantive considerations of policy—ex. Contributory negligence is
increasingly disfavored. So they are putting the burden of per on the .
4.
Pleading Special Matters
Rule 9—Pleading Special Matters
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Denny v. Carey (pg512)—Class action, securities fraud. Must a complaint based on
fraud specifically allege facts constituting fraud on the part of D? Held: No. Judge said
this pleading was fine.
 But in Denny v. Barber (pg514), a case with almost the same facts, the judge said that
the complaint was not fine (compare them)
Averment—assertion of fact
Allegation—assertion of law
States of mind
- negligently
- recklessly, wantonly
- knowingly
- intentionally, willfully
- maliciously
Rule 9(b)—Fraud, Mistake, Condition of the Mind.
In all averments of fraud or mistake, the circumstances constituting fraud or mistake
shall be stated with particularity. Malice, intent, knowledge, and other condition of
mind of a person may be averred generally.
Why do we allow states of mind to be averred generally (in Rule 9b)?
1) impossible to get inside someone’s head
2) difficult to prove the farther you go down the list.
Why should fraud be pleaded with particularity?
1) To protect ’s reputation.
2) Keep ’s from getting into wide discovery
3) So people won’t try to transform what is a K claim into a tort claim (huh)
Does Carey conform to Rule 9(b) or is the judge just letting go? Does 9(b) mean
anything after this? This allows  to go into ’s records to search without specific
instances in mind. Incentive to bring strike suits and to settle even if innocent.
Millar v. Differential Diagnostics (see handout) (notes pg62-65) pro hac vice—this way
they can make you associate local counsel.
With prejudice—no leave to amend
Without prejudice—with leave to amend
Where should we draw the line between dishonest speculation and honest uncertainty?
Put it on the lawyer—you have to sign it saying that the claim is not frivolous.
You’ve made a legal AND a factual investigation.
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Rule 11(b)—Representations to the Court
5.
Alternative and Inconsistent Allegations
6.
Pleading Damages
General damages—damages that result from the actual injury.
Special damages—damages that are actual, but not necessarily a result of the injury.
Rule 8(a)(3)—a demand for judgment for the relief the pleader seeks.
Rule 9(g)—Special Damage—when items of special damage are claimed, they shall be
specifically stated.
Ziervogel v. Royal Packing (pg521)—Tractor-trailer collision v. a car.  didn’t plead
heightening of her blood pressure or her shoulder pain. Not ordinary result of a car
accident, so had to specially plead. Must recovery for special damages be denied if such
damages were not pleaded in the complaint? Held: Yes
 Balancing test—
’s right to recovery v.  getting to have notice so not unfairly surprised at trial.
 Is this the right result?  knew about the shoulder and bp. No unfair surprise here.
 B: this case was wrongly decided. She may have been able to use Rule 15(b).
Rule 15(b)—Amendments to Conform to the Evidence
7.
Prayer for Relief
Rule 54(c)—Demand for Judgment
Ad damnum—for the purposes of damages
Remittitur—“let it be reduced”
Bail v. Cunningham Brothers (pg525)—Jury award was higher than what was plead.
May an ad damnum clause be amended post-trial to correspond to the jury’s verdict?
Held: Yes.
 Is this a good decision? If you believe that the defense would not have prepared any
differently, then it may be. See pg67 for more discussion of this
Why does the court say the ad damnum clause is anachronistic? Pg527, note1/pg68
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B. RESPONDING TO THE COMPLAINT
1.
Time Permitted for a Response
’s attorney often  calls the other side and gets an extension. A matter of
courtesy. If they won’t grant it, can go to court.
Rule 12(a)—When Presented
2.
Motions to Dismiss
Motion to Dismiss—assume everything, and see if there is a basis for the claim
Summary Judgment—is stuff outside the motion
Rule 12(b)—How presented
1) lack of jurisdiction over the subject matter
2) lack of jurisdiction over the person
3) improper venue
4) insufficiency of process
5) insufficiency of service of process
6) failure to state a claim upon which relief can be granted
7) failure to join a party under Rule 19
12(b)(6) motions cannot bring in any extrinsic stuff. “If, on a 12b6 motion, matters
outside the pleadings are presented to and not excluded by the court, the motion shall
be treated as one for summary judgment and disposed of as provided in Rule 56...”
American Nurses’ Association v. Illinois (pg530)—Must a complaint be dismissed if it
does not set forth a complete and convincing picture of the alleged wrongdoing? Held:
No.
Rule12(c)—Motion for Judgment on the Pleadings
Rule 12(f)—Motion to Strike
Used to:
1) attack an affirmative defense
2) scandalous, impertinent, irrelevant—It’s got to be really bad to be
striken
Motions to Dismiss and Motions to Strike are disfavored because they are on
technicalities
3.
Other Motions Attacking Pleadings (pg538)
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4.
Answering the Complaint (pg539)
Rule 8—General Rules of Pleading—you have to either admit, deny, or plead
insufficient information in response to each allegation
a) Denials
Rule 8(b)—Defenses; Form of Denials
Zelinski v. Philadelphia Piers (pg540)—Collision of 2 forklifts. Where  makes a
general denial when a specific denial was called for, and the result is that  learns he
has sued the wrong , may  be granted a declaratory judgment that  is the proper ?
Held: Yes. (go over this case)
Oliver v. Swiss Club Tell (pg544)—Ct. said denial was insufficient. Does the use of a
nonpositive denial, where the facts are presumptively within ’s knowledge, constitute
an admission? Held: Yes. Swiss Club Tell had become incorporated, so they were just
playing games by saying they did not exist.
Negative pregnant—denial that contains an implied admission. (see wingfoot, pg545)
Ex. See pg106
b) Affirmative Defenses
Rule 8(c)—Affirmative Defenses
Extra defenses—pg549
Ingraham v. United States (pg548)—2 medical malpractice claims under Federal Tort
Claims Act. May an affirmative defense be raised for the first time on appeal? Held:
No.
C. THE REPLY (pg551)
Rule 7(a)—Pleadings
D. AMENDMENTS
Rule 15—Amended and Supplemental Pleadings
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Moore v. Moore (pg553)— got custody as requested, plus child support, separate
maintenance, and counsel fees. May  be granted relief where none was claimed in the
pretrial pleadings? Held: Yes.
 What should the test be? Is Mr. Moore prejudiced?
 Seems reasonable that child support flows from getting custody
 Test does not depend on if a party has notice, can amend whether or not fully
litigated during trial
 A problem if you bring up evidence it can be used to litigate other things you
never wanted brought up
 A failure to object may be implied consent to try the issue.
Beeck v. Aquaslide ‘N’ Dive (pg557)— severely injured on a water slide
(quadriplegic).  admitted they manufactured it, and then later found out they did not.
Was it an abuse of discretion for a court to grant ’s motion to amend after the statute of
limitations ran on ’s personal injury claim? Held: No.
 The ’s relied on the ’s initial admission that they manufactured the slide so
they did not take action to find other s or to verify that these defendants did
manufacture it. Is this a just decision?
 On the other hand, the s weren’t responsible. So is it better that Beeck not
get justice or that the wrong s be held liable.
 What about holding the insurance company liable?—they were the ones who
inspected it and said it was Aquaslide.
Worthington v. Wilson (pg560)—Worthington injured while being arrested. John Doe
complaint. Where a complaint is filed against “unknown” defendants and
subsequently amended to name actual defendants, does the amended complaint relate
back if he failure to name the defendants in the original complaint was not due to a
mistake but rather to being unaware of the identities of the defendants? Held: No.
Worthington loses.
 B: this is a case of bad lawyering. 7th circuit is saying that you can’t file John
Doe complaints as a way of circumventing the rules.
 Policy reasons for no John Doe:
1) boilerplate
2) no fishing expeditions
 Missing the statute of limitations is malpractice per se
 When did the client consult the lawyer? A week before—fine; lots of time-malpractice
E.
SUPPLEMENTAL PLEADINGS
Rule 15(d)—Supplemental Pleadings
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Not seem much in practice at all. Very leery of allowing you to file this.
F.
PROVISIONS TO ENSURE TRUTHFUL ALLEGATIONS
Rule 11—Signing of Pleadings, Motions, and Other Papers; Representations to Court;
Sanctions (pg79-80)
Can sanction attorneys, unrepresented clients, and sometimes represented ones.
From 1983-1993—rule 11 was mandatory. A whole bunch of motions resulted and
courts had no discretion to deny them. So much satellite litigation. Had to make factspecific findings that were very time-consuming.
 What are the consequences of an overly enthusiastic application of rule 11?
Chilling effect—won’t come up with novel ideas.
3 changes in 1993
1) permissive format
2) safeharbor provision—21 days to retract or correct the statement, then motion
then never gets filed with the court. Relieves the court from having to deal
with it.
3) Rule 11(c)(1)(B)—on court’s own initiative (sua sponte—sp?)
Rule 23.1—Derivative Actions by Shareholders
Surowitz v. Hilton Hotels Co. (pg568)—Derivative action because she’s suing her own
company. Is dismissal of a class action proper on the grounds that the nominal plaintiff
does not fully understand the charges, although the suit is based on reasonable beliefs
growing out of careful investigation? Held: No.
 Why would we require verification of a pleading?
Limit fraudulent claims
Probe the conscience of the  with an oath
Hold them accountable (sanctions later)
 Main use of verified complaints today is as evidence at trial—hold people to what
they said.
 Moved to dismiss because she did not fulfill the verification requirement. The rules
don’t say that verification has to be by the  herself. Counsel verified, Harlan says
that’s enough.
 What would the ideal  do?
Supervise and monitor the lawyer
Screen the allegations of the complaint
Supervise lawyers on the issue of settlement
 Here, Mr. Brilliant can fulfill these requirements.
Rule 60(b)—Mistakes; Inadvertence; Excusable Negligent; Newly Discovered
Evidence; Fraud, etc.
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Hadges v. Yonkers Racing (pg573)—The court denies the Rule 60(b) motion, but not
frivolous, so denies rule 11 motion
 What do you think about the language about the lawyer in the lower court?
Made it easy to overturn—it looks like a personal attack, even brought in the
partner.
More on Rule 11—pg81-82
Rule 6—Time
SANCTIONING AUTHORITY—see pg83
Rule 23(f)—Decision on a class certification motion—appealable immediately (not in
book, new Dec.)
Rule 12(g)—Consolidation of Defenses in Motion--If I make a motion to dismiss, and
don’t put in other defenses, precluded later. Exceptions: lack of subject matter
jurisdiction and 12b6
Rule 13—Counter Claim and Cross Claim—pg84
Rule 22—Interpleader
DiMichael v. South Buffalo Ry (pg32)—Is  entitled to view any surveillance material
 plans to use at trial? Held: Yes.
 On the one hand,  has a right to check them for authenticity
 On the other hand, don’t want the  to be able to conform his testimony to the tapes
 Ct. says depose first, then turn them over
VII.
DISCOVERY (pg760-850)
A. THE GENERAL SCOPE OF AND DISCRETIONARY LIMITS ON
DISCOVERY
Rule 26(a)—Required Disclosures; Methods to Discover Additional Matter.
Rule 26(b)—Discovery Scope and Limits—it doesn’t have to be admissible, just be
reasonably calculated to lead to admissible evidence
Rule 27(a)(1)—Depositions Before Action or Pending Appeal--Petition
Rule 32(a)—Use of Depositions
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Kelly v. Nationwide Mutual Insurance (pg762)—May interrogatories be directed
toward material pertinent only to the opponent’s trial preparation? Held: No.
 Can’t get stuff that relates only to your opponent’s case. Does this make sense? Not
if you are trying to avoid surprise.
Aims of discovery—
Pin down adversary
Help cases settle
Educate each side
Overcome disparities in wealth and power
Preserve evidence
Restrictive discovery helps the , here it probably helps the 
Should there be preaction discovery? Simpson v. Traum (pg766). Ct. said no. Why
not? Fishing expeditions/open the flood gates. But yes, to preserve info when good
cause is shown.
What about being able to discover if someone can pay a judgment? Asking about net
worth is not allowed. Insurance is discoverable. When you have a judgment, then
maybe.
Lindburger v. General Motors Co. (pg767)—Motion to compel. May evidence that
would not be admissible at trial be subject to pretrial discovery? Held: Yes. Just has to
relevant, not admissible.
Traditional Privileges
1) atty-client
2) spousal
3) physician-patient
4) clergy-penitant
5) psychologist (?)
Courts construe privileges very strictly because they limit access to information
In raising the defense of reliance on counsel, you waive the privilege—can’t be a shield
and a sword.
Rule 26(b)(2)—Discovery Scope and Limits—Limitations
Rule 26(c)—Protective Orders
A way to let relevant medical records be discovered. An agreement between
attorneys.
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Marrese v. American Academy of Orthopedic Surgeons (pg771)—Was the district
court’s discovery order an abuse of discretion under rule 26(c)? Held: Yes.
 Ct. says it knows that sometimes people use discovery to make people settle—
“predatory discovery”
 Dissent says the failure to comply with the discovery order was the abuse. Just
because the order wasn’t perfect, is not a reason to strike it.
 Rule 26(c) says the party seeking the protective order has to make a good faith effort
to resolve discovery disputes before going to court.
 Rule 26(d) says that parties have to meet and confer pursuant to Rule 26(f) before
commencing formal discovery.
Seattle Times Co. v. Rhinehart (pg777)—Did the trial court’s protective order violate
the First Amendment? Held: No.
B. THE MECHANICS OF DISCOVERY DEVICES
No cases in section B
1. Mandatory Disclosure
Rule 26(d)—Timing and Sequence of Discovery
2. Depositions
Rule 30—Depositions Upon Oral Examination
Rule 31—Depositions Upon Written Questions
Rule 37(d)—Failure of a Party to Attend Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection
Rule 45(d)—Duties in Responding to a Subpoena
Rule 45(e)—Contempt
3. Interrogatories to Parties
Rule 33—Interrogatories to Parties
4. Discovery and Production of Property
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Rule 34—Production of Documents and Things and Entry Upon Land for Inspection
and Other Purposes
Rule 45—Subpoena
5. Physical and Mental Examinations
Rule 35—Physical and Mental Examination of Persons
6. Requests to Admit
Rule 36—Requests for Admission
7. Duty to Supplement Responses
Rule 26(e)—Supplementation of Disclosures and Responses
8. Use of Discovery at Trial
Rule 32—Use of Depositions in Court Proceedings
Rule 36(b)—Effect of Admission
Rule 30(e)—Review by Witnesses; Changes; Signing
C. SPECIAL PROBLEMS REGARDING THE SCOPE OF DISCOVERY
Rule 26(b)(3)—Trial Preparations: Materials
Hickman v. Taylor (pg816)—Where information sought by discovery is readily
obtainable elsewhere by the party seeking discovery, will the court protect the work
product of the opposing attorney? Held: Yes.
Upjohn v. United States (pg828)—Are disclosures made by corporate employees to
corporate attorneys within the attorney-client privilege? Held: Yes.
Rule 26(a)(2)—Disclosure of Expert Testimony
Rule 26(b)(4)—Trial Preparation: Experts
Perry v. W.S. Darley & Co. (pg836)—In the absence of exceptional circumstances, may a
party compel disclosure of the identity of experts who did not view the actual
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occurences that are part of the subject matter of the lawsuit and who are not going to
testify at trial? Held: No.
D. SANCTIONS AND JUDICIAL SUPERVISION OF DISCOVERY
Rule 26(g)—Signing of Disclosures, Discovery Requests, Responses, and Objections
Rule 37—Failure to Make or Cooperate in Discovery: Sanctions
Cine Forty-Second Street Theatre Co. v. Allied Artists Pictures Co. (pg840)--
VIII.
PRETRIAL MANAGEMENT (pg851-875)
A. CASE MANAGEMENT
Rule 16—Pretrial Conferences; Scheduling; Management
G. Heileman Brewing Co. v. Joseph Oat (pg859)
B. EXTRAJUDICIAL PERSONNEL: MASTERS AND MAGISTRATES
Rule 53—Masters
Rule 72—Magistrates; Pretrial Matters
Rule 73—Magistrate Judges; Trial by Consent and Appeal Operations
C. THE FINAL PRETRIAL ORDER
Read the Sample Final Pretrial Order
Payne v. S.S. Nabob (pg869)
Smith Contracting v. Trojan Construction (pg872)
IX.
ADJUDICATION WITHOUT TRIAL (pg876-914)
A. SUMMARY JUDGMENT
Rule 56—Summary Judgment
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Lundeen v. Cordner (pg877)
Cross v. United States (pg883)
Celotex Co. v. Catrett (pg888)
Anderson v. Liberty Lobby (pg896)
Partial Summary Judgment
B. DISMISSAL OF ACTIONS
Rule 41—Dismissal of Actions
C. DEFAULT JUDGMENT
Rule 55--Default
Coulas v. Smith (pg909)
X.
TRIAL (pg915-1078)
A. TRIAL BY JURY
Beacon Theatres v. Westover (pg921)
Curtis v. Loether (pg936)
Tull v. United States (pg939)
Chauffers, Teamsters and Helpers Local 391 v. Terry (pg950)
Hiatt v. Yergin (pg959)
Dobson v. Masonite Co. (pg964)
Segal v. American Cas. Co. (pg970)
Thiel v. Southern Pac. Co. (pg977)
Flowers v. Flowers (pg982)
Edmonson v. Leesville Concrete Co. (pg985)
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B. THE SCOPE AND ORDER OF TRIAL
C. TAKING THE CASE FROM THE JURY (judgment as a matter of law,
directed verdicts and j.n.o.v.)
Galloway v. United States (pg998)
Rule 50—Judgment as a Matter of Law in Jury Trials; Alternative Motion for New
Trial; Conditional Rulings
Denman v. Spain (pg1010)
Rogers v. Missouri Pacific R. Co. (pg1014)
Daniel J. Hartwig Associates v. Kanner (pg1017)
D. INSTRUCTIONS AND VERDICTS
Rule 51—Instructions to Jury: Objection
Griffin v. City of Cinnicinati (pg1023)
Rule 49—Special Verdicts and Interrogatories
Nollenburger v. United Air Lines (pg1034)
Rule 52—Findings by the Court; Judgment on Partial Findings
Roberts v. Ross (pg1037)
E. CHALLENGING ERRORS: NEW TRIAL
Rule 59—New Trials; Amendment of Judgments
Minnesota Rule of Civil Procedure 59.01 (pg157 in Supp)
Rule 61—Harmless Error
Magnani v. Trogi (pg1044)
Robb v. John C. Hickey (pg1047)
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Aetna Casualty & Surety v. Yeatts (pg1050)
Fisch v. Manger (pg1055)
Doutre v. Niec (pg1060)
Rule 60—Relief From Judgment or Order
Hulson v. Atchison, Topeka & Santa Fe Railroad (pg1062)
Hukle v. Kimble (pg1075)
XI.
LAW OF PRIOR ADJUDICATIONS (pg1186-1283)
A. TERMINOLOGY
B. CLAIM AND DEFENSE PRECLUSION
1.
Claim Preclusion
Rush v. City of Maple Heights (pg1188)
Mathews v. New York Racing (pg1194)
Jones v. Morris Plan Bank of Portsmouth (pg1198)
2.
Defense Preclusion
Mitchell v. Federal Intermediate Credit Bank (pg1201)
C. ISSUE PRECLUSION
Cromwell v. County of Sac (pg1207)
Russell v. Place (pg1212)
Rios v. Davis (pg1214)
Commissioner of Internal Revenue v. Sunnen (pg1217)
D. THE REQUIRED QUALITY OF JUDGMENT
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Hanover Logansport v. Robert C. Anderson (pg1224)
Holmberg v. State, Division of Risk Management (pg1230)
E.
PERSONS BENEFITTED AND PERSONS BOUND BY PRECLUSION
Ralph Wolff & Sons v. New Zealand Ins. Co. (pg1235)
Bernard v. Bank of America National Trust Savings (pg1239)
Parklane Hosiery Co. v. Shore (pg1245)
Martin v. Wilks (pg1259)
F.
INTERSYSTEM PRECLUSION
XII. A CIVIL ACTION
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