Civil Procedure – Outline
ORCP: focus on rule 4 – OR's attempt to establish a long-arm statute.
INTRODUCTION
Ways to look at rules (no one is allowed to violate these rules):
1. from pov of both parties in lawsuit
2. from pov of the lawyers for the parties
3. from pov of the court system itself (court must be able to operate rules efficiently)
4. from pov of society in general (is justice being done)
a) rules must by constitutionally valid (US Constitution always trumps Rules;
Oregon Constitution always trumps State Rules)
b) nearly all due process rules ensure that the involuntary party in court, the
defendant, has due process (rules always about fairness)
Trial components and rules:
Erie v. Tompkins
Pleadings [R8, 9, 15]
joinder [13, 14, 18, 20, 21]
After determining joinder, subject matter jurisdiction must be determined
(see FRCP chapter 28 § 1367 on supplemental jurisdiction)
discovery [26-37]
pre-trial adjudication [12, 16, 56]
trial [50-59]
appeal
res judicata – claims preclusion
collateral estoppel – issue preclusion
I. Jurisdiction
A. power to enforce within a geographical boundary against a person and his property.
i. People give power to Constitution, Constitution grants power to legislature,
legislature then gives power to courts.
B. Personal (in personam) jurisdiction
C. Subject matter jurisdiction
 never confuse 1 and 2
D. Venue
II. Personal jurisdiction
Rule 12(b)(2) motion: D can challenge personal jurisdiction and subject matter jurisdiction by
putting in a special appearance; if not a special appearance, D passively waives objections
because grants court permission to decide on other issues (thereby accepting court's power).
A. How can the forum state gain jurisdiction over the NRD (non-resident, non-consenting
defendant)?
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1. Pennoyer v. Neff sets up doctrine of territorial power based on analogous int'l
law provisions of the time.
a. Pennoyer v. Neff (1877): although Neff sought a collateral attack on a
judgment in OR that stripped him of his land by claiming, in federal dist
court, that an affidavit taking that land was invalid, US Supreme Court
upheld the decision in Neff's favor on different grounds. They stated that,
under the 14th Amend (due process clause for states), OR had not served
Neff with proper notice and therefore had not established personal
jurisdiction over him. US Supreme Court said that to do this, he had to be
served with process inside of OR's territorial borders [i.e., where the state
had power]. This is known as tag jurisdiction.
B. After Pennoyer, states increasingly attempted to create legal fictions that would allow
them to establish personal jurisdiction over NRDs.
1. Minimum contacts so as "not to offend traditional notions of fair play and
substantial justice."
a. Established by International Shoe v. Washington (1945)
i. its business in Wash was "continuous and systematic"
ii. it realized a large volume of interstate business
iii. during business in state, it received benefits and protections of
state law
iv. issue being sued on arose out of these very activities
b. two prongs for personal jurisdiction now exist
i. tag and minimum contacts
C. Modifications/Extensions to minimum contacts
1. McGee v. International Life Insurance Co. established that so long as a
company actively maintained even one contract/customer in the forum state, the
forum state had personal jurisdiction: "it is sufficient for purposes of due process
that the suit was based on a contract which had substantial connection with that
State."
a. great case to cite for Ps
b. Later known as "purposeful availment"
2. Hanson v. Dencla US Supreme Court held that Florida courts could not
constitutionally exercise personal jurisdiction over a Delaware trustee that had no
contacts with the forum state other than that a settlor of a Delaware trust had
moved to Florida.
a. great cite for Ds
b. Del trustee had not "purposefully availed" itself of the rights and
privileges of Florida protections and law
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3. World Wide Volkswagon v. Woodson reinforces Hanson because court held
that unless it was foreseeable by D that its product would enter the forum state
(e.g., OK from NY) it cannot be under personal jurisdiction no matter how
important the case was to the forum state's interests.
a. i.e., territorial power guaranteed by the interstate federalism inherent in
the 14th Amend seems more imp than substantial justice
b. What matters is the foreseeability of being hailed into court, not
that product may enter the state.
4. Asahi Metal Indust v. Superior Court CA Brennan's majority opinion states that
although Asahi met minimum contacts to be hailed into court in CA, it would not
be fair as the burden on Asahi would be too great.
a. O'Conner asserts two-prong test for minimum contacts: put goods into
stream of commerce PLUS indicate purpose to serve the market in the
forum state (e.g., marketing in state, designing product for state, etc).
i. if we meet O'Conner's test, we have personal jurisdiction for sure
5. Gray v. American Radiator & Std. Sanitary Corp shows how to interpret a
long-arm statute: does it grant personal jurisdiction in instant case? and is statute
consistent with 14th Amend?
a. Court held that as D had sold a valve in another state for ultimate
consumption in forum state, it had been placed in the stream of commerce.
Therefore, D benefited from sale in and laws of forum state permitting it
to conduct business.
6. Keeton v. Hustler Magazine Held D was present in forum state by virtue of 1015,000 magazines sold each month.
a. although P not a citizen of forum state, claim arose from libel in
magazines.
b. P can choose any forum and is not bound by minimum contacts with
forum state.
i. limited by Due Process
a. what is the burden on D of filing in forum state?
b. if case dismissed, with P have a forum?
7. Rescue Technology v. Claw an OR case showing several lessons
a. examine long-arm statute first
b. ideas/inventions are deemed to reside in the person of the inventor. if
state does not have personal jurisdiction over inventor, it cannot have
jurisdiction over idea.
c. ORCP 4L permits OR to take jurisdiction over any person meeting 14th
Amend (i.e., minimum contacts meeting fair play and subst justice)
8. Helicopteros de Colombia v. Hall Determined that a state can assert general
jurisdiction over a person/corp in an action not arising within forum state if that
person is generally present.
a. generally present: continuous and systematic contacts
i. despite millions of dollars of business done with Texas, court
ruled that this test was not met
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9. Burger King v. Rudzewich Applied minimum contacts and foreseeability test
to a contract. Held: Contract establishes minimum contacts because D
purposefully availed of forum state in order to sign contract.
a. contract contained choice of law clause; K clause can = pj
i. clause is basis for forum selection when combined with
something else (e.g., purposeful availment)
10. Shaffer v. Heitner Held that doctrines in Intl Shoe and progeny that have
modified exertion of territorial power in personal jurisdiction should apply to
exertion of power in in rem and quasi in rem (i.e., property) cases.
a. RULE: All assertions of state jurisdiction must meet standards of Shoe
and progeny
b. Changes Harris v. Balk where forum state gained control of a debt by
gaining control over situs of that debt (a person)
i. Delaware can't gain control over stocks which have situs in
Delaware by simple territorial power of Pennoyer unless they are
directly related to case.
11. Burnham v. Superior Court of CA Held that service of summons on a man
visting CA for 3 days was valid under Pennoyer. Why? 4-4-1 decision.
a. Scalia and friends argue that it is old and traditional and therefore does
not need to be changed.
b. Brennan and friends argue that, although in this case it was fair, it was
fair because Burnham did have minimum contacts with CA. Cases need
to be examined based on Intl Shoe and other modern modifications of
territorial power doctrine to bring doctrine in line with "contemporary
notions of due process."
NB: Asahi and Burnham are both 4-4-1 decisions. Use both to review notion of personal
jurisdiction and arguments for and against various assertions.
After Burnham, would a person flying over OR in a jet and served with service be under
jurisdiction of OR if he had never been in OR before?
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III. Notice and the Opportunity to be Heard
Read FRCP 4 and 5
A. Constitutional Limitations of Notice
1. 14th Amend: no state shall "deprive any person of life, liberty, or property without due
process of law."
a. fundamental req of Due Process: "the opportunity to be heard"
2. Service of Process (i.e., summons and copy of complaint)
-satisfies due process
-gives court jurisdiction over D
-provides D w/opportunity to be heard
Fuentes provides that "deprivation of property w/o due process of law –
that is right to prior opportunity to be heard before chattels are seized (or
any property rights abridged, Doehr) – is unconstitutional"
i. in other words, there must be a "prior hearing" (a trial is
unnecessary to meet the req)
ii. exception: if seizure done without aid of state power (e.g.,
sheriff) then notice is not req'd
a. notice by publication: usually persons missing or unknown
b. notice by certified mail when addresses are known
3. Form of Notice
Mullane – Created guideline of "notice reasonably calculated, under all the
circumstances, to apprize interested parties of the pendency of the action and
afford them an opportunity to present their objections."
4. Service of Summons:
FRCP 4: process for service
FRCP 5: service of pleadings and papers
FRCP 45: service of subpoena
a. Summons
Rule 4(a), 4(c).
R12(b)4: motion to dismiss because of insufficiency of process
R12(b)5: motion to dismiss because of insufficiency of service of process
b. Waiver of Service, Notice by Mail
Rule 4(d)
c. Service upon Specific Individuals and Entities
Rules 4(e)-4(i), 4(k) and 4(l)
1. Rule 4(e)(2): exceptions to personal service
2. serving corporations
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5. Service of Summons and the Statute of Limitations
a. For SOL purposes, action is commenced (1) when the complaint is filed
or (2) when the D is served with summons.
b. Summons defective in form may be quashed
c. Sewer Service
6. Mechanics of Giving Notice
a. Service on an Agent
National Equipment Rental, Ltd v. Szukhent, 375 US 311 (1964):
Held that a contractual clause is sufficient to appoint an agent [within
meaning of R4(e)(2)]for service within a state in which one party to the
contract does not reside so long as agent gives "prompt notice" of service
to Ds.
[cf. choice of law clause in Burger King]
b. Opportunity to be Heard
READ FRCP 64 and 65
i. injunctions – three types
a. temporary restraining orders (TRO)
1. preserves status quo until hearing can be had on
preliminary injunctions
2. TRO ex parte FRCP 65(b)
3. no notice req before issuance
b. preliminary injunctions
1. prelim injunc preserves status quo until there can be a
trial on the merits
2. notice req before issuance
c. permanent injunctions
d. notice for all of these hearing required to be given to D
ii. Special Remedies
IV. Jurisdiction over SUBJECT MATTER
12(b)(1) motion
A. subject matter jurisdiction comes from Constitution Art III, §2
1. Federal questions, 28 USC §1331
i. state courts can also hear federal question cases
a. to protect integrity of decision, holding may be reviewed by
federal court
2. Diversity jurisdiction
B. Motions challenging subject matter jurisdiction
1. FRCP 4, 7, 8(a)1, 12(b)1, 12(h)3, and 60(b)4; Official form 2; 28 USC §1653
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C. Subject Matter Jurisdiction of Federal Courts – Supplemental Parties and Claims
1. 28 USC §1367
a. Gibbs gives federal court supplemental jurisdiction over all claims
arising out of a common nucleus of operative fact so long as at least one of
the claims is a federal question
b. supplemental jurisdiction in diversity is also permitted if Gibbs is met,
though there are many exceptions:
i. 3rd-party Ds (Rule 14)
ii. compulsory joinder (Rule 19)
iii. permissive joinder (Rule 20)
iv. intervention (Rule 24)
2. court always retains the discretion to reject joinder of claims based only on
supplemental jurisdiction; 1367 (c) if . . .
a. claim raises novel or complex issue of state law
b. claim predominates over claim giving original jurisdiction
c. claims over which court had orig jurisdiction have all been dismissed
d. any other exceptionally compelling reason
D. Diversity of Citizenship Jurisdiction
policy: protect out of state litigants from local prejudices in state courts
1. 28 USC §1332
2. How do we define citizenship?
a. domicile: "true, fixed, and permanent home and principal
establishment, and to which he has the intention of returning whenever he
is absent therefrom" (Mas v Perry)
i. change of domicile affected by
1. taking up residence in a different domicile with
2. the intention to remain there
b. corporate domicile
i. for a corporation, it is deemed to be domiciled in the state where
1. it is incorporated and
2. the state that is its principal place of business
a. either its headquarters or
b. main location of production/service
b. must be complete diversity
i. that is, no P can be a citizen of the same state as any D
3. Amount in controversy.
a. $75,000 (met to a legal certainty)
b. Refusing a case for failing to meet dollar amount requires a legal
certainty that the amount will not be met.
4. See Tornquist text p. 155 for chart.
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E. Removal and Remand
1. FRCP 81(c) and 28 USC §§1441-1452
i. review Roe v. Little Company of Mary Hospital
2. Removal: procedure whereby a D can transfer a case from state court to federal
court.
a. general rule: any case that could have been filed in federal court can be
removed to federal court
3. Remand: P tries to get case returned to state court after removal.
a. Reasons to remand:
i. if no subject matter jurisdiction, remand in mandatory
ii. lack of diversity jurisdiction
4. Courts strictly construe statutes in favor of remand and against removal.
V. Venue, Transfer and Forum Non Conveniens
A. Venue – determined by rules of procedure; assumes proper jurisdiction
1. convenient to both parties
a. appropriate venue determined by location of parties at time of filing of
the complaint
2. bears a reasonable relationship to the case
3. a fair trial can be had in said venue
4. convenience and permissibility governed by 28 USC §1406
a. motion to transfer venue can be made under 28 USC §1404(a)
i. ease of securing witnesses
ii. ease of access to sources of proof
iii. forum selection clause
iv. inconvenience to opposing counsel
v. inconvenience to D
vi. inconvenience to D's witnesses
b. "a transfer [of venue] pursuant to §1404(a) does not carry with it a
change in the applicable law"
c. venue can be transferred to a district where the motion might have been
brought
5. Improper venue may be waived
a. FRCP 12(b)3, 12(h)1
b. objection to improper venue must be promptly asserted or else it is
waived, FRCP 12(h)1
i. burden to challenge venue is on D
ii. A court will not question venue on its own (i.e., no sua sponte)
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6. Types of actions
a. Local actions
i. if action is regarding real property, then typically the correct
venue is the county in which the property is located
b. Transitory Actions
i. an action that could have taken place anywhere (e.g., traffic
accident)
1. hold in county where D resides
2. place where cause of action arose
3. where P resides
7. Venue in the Federal Courts
a. 28 USC §1391 – diversity jurisdiction venues
i. in the judicial dist where any D resides, if all D's reside in the
same state
ii. judicial dist in which a substantial part of the events or
omissions giving rise to claim accrued as a substantial part of the
property that is the subject of the action is situated
iii. judicial dist in which any D is subject to personal jurisdiction at
the time of the action is there is no dist in which the action may
otherwise be brought
b. Exceptions
i. actions removed to federal court need not satisfy venue reqs
because D has waived objection; D may still move to transfer
venue under §1404
ii. venue reqs don't apply to supplementary jurisdiction so long as
anchor claim has valid venue.
c. Forum non conveniens [review Piper v. Reyno for exam]
i. This motion to dismiss made in one of two circumstances
1. foreign country has jurisdiction over the dispute
2. foreign country is a more appropriate forum than a US
court for resolving the dispute
ii. burden is on the D; courts "will give great deference to P's
selection of forum"
1. must show there exists an alternative foreign jurisdiction
to decide the dispute
2. the public and private interest factors weigh in favor of
dismissal
a. will P still have a forum
b. will D be unduly prejudiced
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VI. Pleading – (Practice hypo on p.181 – may be on final exam)
A. Rules relevant
1. FRCP 7, 8, 9, 11, 15 and Form 9
2. See pp. 182-183
B. State/Code Pleading (Field Code initially 1848 NY)
1. P must state each and every cause of action under the applicable state law; must
include factual details giving rise to cause of action
2. Cannot plead evidence – if so, stricken
3. Cannot plead conclusion of law – if so, stricken
C. Notice Pleading (FRCP)
1. P must simply state a claim (a rule of law) upon which relief can be granted
2. no req to state cause of action; pleading deemphasized
3. Discovery process and motions for summary judgment take on much greater
importance
D. Purpose of Pleading
1. Eliminate claims and defenses that have no legal significance
2. Notice of claims and defenses given (this is only goal in FRCP)
a. permits each party to ready for trial
b. Permits court to make proper pre-trial and trial rulings
3. Creates a record for future use
4. permits court to determine whether it has subject matter jurisdiction
E. Pleading Steps
1. Complaint
a. FRCP 3 – complaint filed with court initiates litigation
b. FRCP 8(a) – complaint must contain three elements
i. proof of pj and sm jurisdiction (28 USC §§1331 and 1332)
ii. statement of claim
iii. relief sought
1. money damages, injunction, punitive, special
performance, declaratory judgment
c. FRCP 10(b) – each claim in a separate count
d. FRCP 9 – pleading special matters
i. fraud and special damages
2. Motions
a. defenses made by FRCP 12(b)
b. alleging defectiveness or invalidity of complaint by FRCP 12(b)
c. FRCP 12(g)
i. all 12(b) motions must be included in any pre-answer motion
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3. Answer
a. Denials
i. FRCP 8(b) requires all denials to be made with specificity
b. Affirmative defenses
i. FRCP 8(c) requires that the new facts of the affirmative defense
be pled as a condition of their admissibility
c. May include counterclaims, cross-claims, and 3rd party complaints
i. studied later; see FRCP 13 and 14
ii. reply to these claims perm'd in certain circumstances FRCP 7(a)
4. Sanctions for Improper Pleading – FRCP 11
a. Complaint must be signed
b. allegations must be reasonable and relate to facts determined by a
reasonable investigation under the circumstances
c. Safe Harbor Provision: Rule 11(a)(1)(A) does not allow rule 11
motions until 21 days after complaint filed
i. permits further investigation and time to amend or withdraw
complaint
5. Amendments to Pleadings
VII. Determination of Applicable Law
A. State Law in Federal Courts
1. Prior to 1938, federal courts used Rules of Decision Act (28 USC §1652)
a. done by authority of Swift v. Tyson (1842)
2. used it to apply federal CL rather than any state CL
a. belief that universal laws existed and federal judges could find them
b. state statutory law, however, was applied
3. The Erie Doctrine: Erie RR v. Tompkins (1938)
a. Rules of Decision Act (§ 1652): new research showed that legislative
intent for this act had been that federal courts apply state law in all cases
except where some federal law controlled
i. furthermore, the policy of establishing a universal law failed
ii. and Swift was unconstitutional as it permitted judges,
rather than legislatures, to make law
b. HELD: must apply state decisional (common) law as well as statutes in
diversity cases
c. Twin aims of Erie:
i. discourage or eliminate forum shopping
ii. eliminate inequitable application of laws
iii. e.g., Black & White v. Brown & Yellow Taxi Cab (mentioned
in Erie opinion) – the non-citizen chooses the law, the citizen has
no rights and permits forum shopping
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B. Procedure vs. Substance (problems caused by Erie)
1. Procedural rules and substantive law are too intertwined to be effectively
separated
2. Guaranty Trust Co. v. York gives us the Outcome determinitive test
a. "A federal court sitting in diversity should have substantially the same
outcome as a state court."
b. can apply to everything; FRCP at risk
3. Byrd v. Blue Ridge Rural Electric Coop, Inc.
a. "affirmative countervailing considerations" (i.e., countervailing federal
policies)
i. i.e., State laws cannot alter the essential character or function of
a federal court because that function is not a local matter and state
statutes that would interfere with the appropriate performance of
that function are not binding on the federal court.
b. Test to determine applicability of a state procedural rule
i. is rule bound up with state-created rights and obligations or is it
just a form or mode of procedure?
Bound up = apply it
form or mode = don't apply it
ii. does it meet the outcome determinative test?
Yes = apply it
iii. does it impinge upon the separate nature of the federal courts
(i.e., "affirmative countervailing considerations" such as the 7th
Amend right to jury trial in this case)?
No = apply it
4. Hanna v. Plummer:
a. Rules Enabling Act (§ 2072)
§2072 = says that US Supreme Court is permitted to adopt the
congressionally created FRCP and rules of evidence. Necessary
and Proper in Constitution cause permits congress to do whatever
it needs to in order to fulfill their other goals. Therefore, a
federal judge MUST follow (there is no discretion) a federal
rule UNLESS it abridges, enlarges, or modifies any substantive
right (cf. §2072??) – a nearly impossible thing to prove.
This addresses the validity of the rules.
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Moral of Hanna: it made FRCP safe. On exam, make argument
from Art III, §1 which permits congress to establish federal courts,
to Necessary and Proper Clause of Art. I, §8 to permit congress to
make enactments and they, following consultation with an
advisory committee that had been appointed by US Supreme
Court, established the FRCP and by §2072, the rules enabling act,
enacted them (a "congressional mandate") and then we come to the
decision in Hanna.
b. Permitting federal procedure to trump state procedure in this case would
not violate the policy of Erie to prohibit forum shopping and inequitable
application of the laws
i. therefore, federal rules applies re: substitute service of process
c. this tempers the Guaranty decision and the outcome determinative test.
5. Walker v. Armco Steel Corp.
a. State statute regarding service of summons and tolling of statute of
limitations is intimately bound up with state substantive rights and
therefore cannot be overridden (cf. §2072(b))
b. no direct conflict as in Hanna, therefore, apply state law
6. Stewart Org, Inc. v. Ricoh Corp.
a. Does a congressionally enacted statute (e.g., title 28) take precedence
over a state law governing an issue to be decided by a federal court sitting
in diversity?
b. Two-pronged test:
i. pertinent? Is the language of statute is broad enough to apply to
the issue before the court (i.e., statutory interpretation)?
ii. valid? Is the statute a valid exercise of Congress' constitutional
authority?
C. The Problem with Determining State Law
1. Mason v. Amer Emery Wheel Works
If a state Supreme Court decision is old, then a federal district court sitting
in diversity can overrule that decision so long as a different rule has
become widely accepted throughout similar jurisdictions. And/or federal
judge can look at recent state decisions on related issues that may show a
previous rule has been eviscerated to the point of meaninglessness.
i. has Swift returned??
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VIII. Joinder of Claims and Parties
A. Applicable Rules
1. FRCP: 13, 14, 17, 18, 19, 20, 21, 22, 24, and 42
2. 28 U.S.C. §1367
3. FRCP may not expand subject matter jurisdiction of federal courts (FRCP 82)
B. Joinder of Claims (FRCP 18 and 42)
1. Under CL, you cannot join more than one claim
2. FRCP 18(a) join as many claims as you want at pleading stage
a. Issue: does federal court have supplemental jurisdiction over all claims?
i. FRCP 82: no rule of civil procedure may extend or limit the
jurisdiction of the federal court
ii. §1367: so long as "form part of the same case or controversy"
-see Gibbs: "common nucleus of operative fact"
b. Issue: what if you decide not to join all claims?
i. collateral estoppel (issue preclusion)
ii. res judicata (claim preclusion)
-all claims relating to the cause of action must be brought
together or any remaining claims will be extinguished
3. FRCP 42 provides for severing of claims at trial stage
C. Counterclaims (FRCP 13)
1. Under CL, counterclaims were limited by
a. Recoupment: counterclaim cannot recover more than P claim
b. Set off: any claim for liquidated damages whether or not it arose out of
the same transaction
2. Policy behind Rule 13: resolve in a single action all disputes that arise out of a
common matter (i.e., judicial efficiency)
3. FRCP 13(a) – compulsory counterclaims
a. P's claim is based on federal jurisdiction
b. Must "arise out of the transaction or occurrence this is the subject
matter of the opposing party's claim"
i. supplemental jurisdiction still governed by §1367
c. if not asserted in a timely manner, it may be barred by res judicata,
waiver or estoppel once decision reached
4. FRCP 13(b) – permissive counterclaims
a. counterclaim does not arise out of the same transaction
b. supplemental jurisdiction does not apply; claim must have inherent
federal jurisdiction
c. if not asserted, may be later asserted in a separate action
5. A counterclaim may be filed after the statute of limitations runs, so long as the
P's original claim was filed before statute of limitations ran.
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D. Cross-Claims (FRCP 13(g))
1. Prerequisites
a. asserted against a co-party
b. seeks affirmative relief
c. asserted by a party against whom a claim has already been asserted
d. arises out of the same transaction or occurrence as the original claim
2. Federal courts have supplemental jurisdiction over cross-claims by §1367
3. Cross-claims are, by definition, permissive claims.
E. Real Party in Interest (FRCP 17a)
1. Provides that every action shall be prosecuted in name of "real party in
interest."
a. i.e., the party that possesses the right sought to be enforced
2. Assignment
3. Subrogation – Insurance co. gains rights to sue after payout or partial payout
a. takes up a lot of space in book; probably on final as part of a "simple"
tort claim case
4. Capacity to Sue (FRCP 17(b) and 17(c))
a. FRCP 9(a) when there is a question of capacity, the burden in on P to
prove that he may sue
F. Claims Involving Multiple Parties (FRCP 19 and 20)
1. Permissive Joinder of Parties
2. Joinder of Persons needed for a just adjudication
a. Parties fall into three categories
i. Proper (permissive): party who may be joined at P's option
(FRCP 20)
ii. Necessary (compulsory): party who ought to be joined, if
possible (FRCP 19)
iii. Indispensable (compulsory): party so closely connected to the
case that he must be joined or the action will be dismissed
(FRCP 19)
b. Policy: liberal joinder rules exist to prevent multiple lawsuits over the
same issues of fact (i.e., judicial efficiency)
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3. FRCP 20
a. Limitations that may prevent joinder of parties
i. subject matter jurisdiction limitations
ii. lack of personal jurisdiction
iii. venue limitations
iv. matters that complicate issues for trier of fact or prejudice one
of the parties (then separate trials under FRCP 20(b) and 42)
a. parties may waive personal jurisdiction and venue so that
they may be joined; subject matter jurisdiction can never be
waived (as per FRCP 82).
4. FRCP 19
a. This rule has a three-step process:
i. cases where joinder of the absent party is necessary
a. necessary if "in his absence complete relief cannot be
accorded among those already parties" (19(a))
b. e.g. case on page 268
ii. determination of whether joinder is feasible
a. not feasible if:
1. party not subject to service of process (i.e., court
may not be able to get personal jurisdiction;
remember "bulge" provision under FRCP 4)
2. joinder may deprive court of subject matter
jurisdiction
3. venue objection by joined party would render the
venue of the action improper
iii. if joinder is not feasible, should action be dismissed because
party is indispensable?
a. e.g. case on p. 270 (case similar to hypo at start of text)
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G. Special Joinder Devices (FRCP 14 (a) and (b))
1. Third-party practice/Impleader (FRCP 14)
a. 3rd-party P may cause a summons and complaint to be served upon a
person not a party to the action who is or may be liable to the 3rd-party P
for all or part of the P's claim against the 3rd-party P (aka: original D)
[this rule favors Ds; helps spread liability]
i. must also comply with jurisdictional issue (sub mat and per jur)
ii. supplemental jurisdiction (§1367)
iii. venue not affected by residence of TPD
iv. leave of court not needed if TPD joined w/in 10 days of serving
answer to P's complaint
b. then 3rd-party D can become 4th-party P and bring in a 4th-party D, and
on and on
c. original P
i. may assert claims against 3rd-party D that arise out of the same
transaction or occurance but cannot get supplemental jurisdiction,
but rather must satisfy original diversity reqs (if federal question,
there is supp jurisdiction)
ii. if a counterclaim is brought against P by anyone, P may implead
a 3rd-party who is liable to him (Rule 14(b))
d. if main claim dismissed, court has discretion as to whether or not to
hear the 3rd-party claims relating to it
e. FRCP 18: 3rd-party P may then add any other claims not-related, so
long as there is at least one claim relating to original matter [however,
under FRCP 42, court may sever the unrelated matter]
2. Interpleader (§ 1335(a))
a. many people want to get the big bag of money from stakeholder
b. interpleader is an action in itself (usually by insurance companies)
i. e.g., A sues insurance company. Insurance company knows
there are a lot of claimants to money. Therefore, they need to get
this in interpleader. They can do this by filing a counterclaim for
interpleader (§1335 –statutory interpleader or FRCP 22)
c. statutory interpleader (§§ 1335, 1397, 2361)
i. subject only to $500 limit (§1335) – subject matter jurisdiction
ii. need only a single D to be diverse from other Ds (§1335) –
subject matter jurisdiction
iii. venue in any place where a claimant lives (§1397)
iv. P must deposit the $$ into account with the court (§1335)
1. P may still claim it owes the $$ to no one
v. nationwide service for the action (§2361) – personal jurisdiction
17
vi. injunctive power (§2361)
1. prevent other suits from proceeding to litigate over the
$$ or property in question
a. State Farm (279): injunction cannot be overly
broad
d. FRCP 22
i. subject to all jurisdictional restrictions (inc. $75k)
ii. must have complete diversity
iii. ordinary rules for service of process apply
iv. a D may use interpleader by way of cross-claim or counterclaim
4. Intervention
a. FRCP 24 – intervention is when a 3rd-person seeks to join a lawsuit
already in progress
i. intervene as a P
ii. intervene as a D
iii. intervene claiming something adverse to both P and D
iv. (to intervene: must file motion that includes a complaint,
explaining which of these three apply)
b. FRCP 24 designed to tie in with FRCP 19 and 23.
i. designed to balance interests of the outside party with those of
the parties already in the lawsuit
ii. timeliness to intervention
a. determined by discretion of the court (i.e., must be
argued); no strict statutory standard
1. look at prejudice to parties that granting the
motion would create
A. e.g., must begin discovery again; this
increases costs and time delay
2. look at prejudice is do not allow the motion
iii. subject matter jurisdiction
a. intervenor seeks to join as a plaintiff
1. if intervenor destroys diversity, then by §1367(b)
he may not intervene; otherwise permitted
b. if federal question, §1367 analysis does not apply
c. two types of intervention
i. intervention of right (24(a))
ii. permissive intervention (24(b))
18
d. Three-pronged test for intervention as right [cf. 19(a)(2)(i)]:
i. does intervener have interest in decision?
ii. will parties' interests be impaired or impeded if judgment
reached without their participation? (most diff to show; cite
Atlantis for this idea)
iii. Is intervener's interest adequately represented by persons
already parties to the lawsuit?
a. Yes to all; no intervention
b. Yes to first two, no to third: intervention likely
iv. (statute may also permit intervention)
IX. CLASS ACTIONS – the mother of all joinder
Used where joining all parties to an action is impracticable.
Policy: efficiency and consistency of litigation; permits people with tiny claims can join
to get redress but lawyers are the ones who get rich and can drive corporations out of
business [ergo Rule 23 is constantly being manipulated for political purposes]
A. One or more members of a class of similarly situated persons may sue or be sued
1. litigation done on behalf of other class member without bringing them into
court (i.e., class members not consulted)
2. all class members will be bound by outcome
B. FRCP 23: promulgated to deal with three types of cases
1. where indiv claims may establish inconsistent standards of conduct for D
2. where injuctive or declaratory relief is sought, and the relief in question is
common to all members of the class
3. where issues of fact or law are common to the class so that joint litigation
achieves economies of time, effort, and expense.
19
C. Pre-Trial motions under Rule 23
1. Representative of class and class itself must be certified under Rule 23(c)(1); he
must prove 7 things to the court:
a. there must be a discrete class
i. important because we must be able to determine who profits
from judgment and who is bound by it under res judicata
b. representative must be a member of that class
c. Rule 23(a)(1) – class must be so numerous as to make joinder of all
members impracticable
d. Rule 23(a)(2) – action raises a question of law or fact common to class
e. Rule 23(a)(3) – typicality: claim or defense of the representative must
be typical of those of the class
f. Rule 23(c)(4) – representative must fairly and adequately protect
interests of the class:
i. rep must have a stake in the litigation
ii. is class lawyer adequate (experience; resources)?
iii. is class beset by internal antagonism?
g. Does action fall within one of the three rule categories?
i. 23(b)(1) – prejudice to members of class or the party opposing
the class would otherwise result
ii. 23(b)(2) – injunctive or declaratory relief
iii. 23(b)(3) – monetary damages (Tornquist emphasizes)
a. 23(c)(2) – notice for 23(b)(3) action must have 3 things:
1. class member may chose to be excluded and
bring a later action on their own
2. judgment will include all members of class who
have not opted out
3. any non-excluded member may enter an
appearance in class action through counsel
2. Once certified, rep must give proper notice under 23(c)
3. Other considerations under 23(d)
a. timetable and regulation of discovery
i. protects members of class from inordinate attorneys' fees
b. issues
c. establish a committee of counsel
d. counterclaims not usually allowed
4. 23(e) – settlement
a. court must approve settlement (an exception to normal rule) and give
notice to members of the class
i. in order to protect members of class from attorney collusion in
accepting unfair settlements
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D. Due Process Considerations
1. in what way will absent members of a class be bound by the decision?
E. Preclusive Effect of a Class-Actions Judgment: Res Judicata
F. Death Knell Doctrine – Appeals
1. Once court determines whether or not a class is to be certified, it can
be appealed under §1291 only if it is a "final decision."
2. interlocutory orders normally are not appealable
a. unlike other interlocutories, Rule 23(f) permits appeal on class
certification decisions within 10 days of the order
3. if court orders (i.e., not a judgment) that class not certified, then original claim
may still procede.
G. Notice
1. "Best Notice Practicable" under Rule 23(c)(2)
a. "best notice" is not discretionary, but mandatory in order to fulfill due
process requirements
b. class member may chose to be exclude from the class action
i. if no affirmative exclusion, then decision is binding
c. "best notice" does not adhere to rigid rules (use Mullane standard)
i. cost of notice does not seem to be a factor
ii. how easily can members of class be IDed?
iii. publication or notice through media coverage may be sufficient
when class members difficult to identify.
H. Class Action and Jurisdiction
1. Diversity: only needed between named representative and defendant
a. domiciliaries of unnamed members of the class no matter
b. can also be manipulated to state out of federal court
2. Free v. Abbott Laboratories
a. previously, all members of the class must individually meet amount in
controversy (Zahn)
b. HELD: §1367 permits supplementary jurisdiction for all members of
class so long as representative of class meets the amount
3. Johnson v. Plantation General Hospital
a. claim aggregation not permitted to meet original amount in controversy
21
I. Injunctive Relief (FRCP 23(b)(2))
1. Liberty Mutual Insurance v. Wetzel
a. interlocutory orders related to injunctions only are subject to appeal
under §1292
J. Settlement of Class Actions
1. 23(e) provides for settlement: courts must approve to ensure fairness.
K. Common Interest Requirement
1. Court can create a subclass in a class action, where subclass is antagonistic to a
portion of the main class' interests
a. such a designation can be made at any time during the litigation (e.g.,
one year after commencement!)
b. subclass may even be realigned as a D from the original P class if the
interests are too antagonistic
X. Discovery
The most important thing to know for discovery is the scope. This is important because we need
to know what we are permitted to request and what we do not have to produce.
A. Purpose of Discovery
1. Policy: Preservation of information.
a. old or sick can have their accounts preserved in case of death or
inability to be present at trial (Rules 27 and 32a)
2. Isolate issues that are in controversy between the parties (not effective under
the liberal discovery rules of FRCP).
3. Determine what proof (facts) is available regarding issues.
4. Because both sides know nearly all the facts and law, nearly every case settles
because both sides know the probable outcome
5. Also used in motions for summary judgment
B. Timing of Discovery Devices
1. See table on p. 314
2. first must have the initial scheduling conference before discovery continues
22
C. Tools of Discovery (generally)
1. Parties must provide, without request (Rule 26):
a. names and, if known, addresses and phone # of parties with info
b. copy or description of all documents, things, and data compilations in
the possession, custody, or control of the party
c. calculations of "any category of damages"
d. info re: any insurance agreement that may be used to satisfy part or all
of a judgment
e. 26(a)(2)(A): disclose names of expert witnesses who may present
evidence
f. 26(a)(3)(A): disclose names of witnesses and each document to be used
at trial
2. Discovery Plan: four steps (p. 316)
a. Written interrogatories
b. Document production
c. Depositions
d. Requests for admissions
3. Failure to comply: Sanctions
a. Rule 37, especially subsection (b)(2)
i. no sanction may be upheld if it is based upon an error of law
4. Discoverable information must be relevant, but need not be admissible at trial
a. inadmissible info is relevant if:
i. likely to lead to admissible evidence
ii. may help find a witness
D. Depositions (Rules 26(d), 30, and 31)
1. Enables attorney to question a sworn witness about subject matter of case
2. Notice of deposition must be received by every party to action
a. notice will include who, where, when deposed
3. If you can't get documents through normal route of discovery, then serve a
subpoena duces tecum on the non-party in control of the document and order
them to bring it to a deposition
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E. Interrogatories (Rule 33)
1. Def: written questions to be answered by the party under oath
a. less expensive than oral, recorded/transcribed deposition
b. typically answered by attorneys; answers often evasive; however,
answers are considered given under oath
c. Max of 25 questions, inc. subparts; 30 days to answer
2. Any party may serve interrogatories on any other party
a. party cannot claim ignorance if the information can be obtained from
sources under its control (esp. important when party is a corporation)
b. Rule 26(e) – duty to supplement: if responding party later learns his
answers were incomplete, he must correct or supplement the previous
answer
3. May not be served on non-parties
4. Uses
a. obtain data and simple facts (e.g., names and phone numbers)
b. may clarify issues and provide evidence
5. Objections to Interrogatories and Depositions; objections "shall be stated with
specificity" and in a timely manner. Normally, a motion for protective order
(Rule 26(c)) [always after an informal meeting between lawyers].
a. questions are burdensome ($$) and oppressive (e.g., p. 321)
i. must show good cause for needing redress (Marrese)
ii. three options for redress
a. narrow scope of inquiry
b. ask for expenses
c. (Rule 33(d)): simply make documents available to other
party
b. information is outside the scope of discovery (limits of discovery)
i. not relevant
ii. privileged: only the person who could assert privilege at trial
can assert it during discovery
1. discussions between attorney and client about legal
matters, such as a particular action
2. Upjohn: corporate privilege applies to all employees (not
just control group) of corporation who speak with attorney
a. decision applies only to federal courts (does not
apply to cases heard in diversity applying state
law under Erie doctrine)
b. only control group can waive privilege
i. therefore, info given by an employee
believing it to be privileged can later be
disclosed
24
c. policy: broaden privilege so that lawyer can get
good info so that he may give good advice
3. 5th Amend privilege against self-incrimination
a. applicable in civil proceedings at discovery stage
b. applicable to states via 14th Amed
c. clients or witness can avail of this Amendment
d. not applicable to corporations, though officers
within corp can take the 5th
e. not applicable to physical evidence (can't use 5th
to prevent blood samples, etc)
f. if no danger of criminal conviction, then person
cannot take 5th (e.g., already acquitted for crime
and then sued later for civil liability)
g. Grant of immunity to witness is a way to get
around the 5th
i. Two types:
1. use immunity: state cannot use
info contained in the testimony to
prosecute the person testifying
2. transactional immunity: state
cannot prosecute for anything related
to that transaction (much better
immunity)
h. Witness can take 5th at deposition (another cloak
for information)
i. Cannot be a punishment for invoking a privilege
(or argue to jury that therefore this person is
obviously guilty)
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iii. attorney work product
1. def: information and statements taken "in anticipation of
litigation", not just things post-filing.
2. Hickman v. Taylor (codified in Rule 26(b)(3))
a. if other side can get the info w/out undue
hardship, then other side can go out and get it
themselves (e.g., witness not dead, etc)
b. Oral statements: turning these over could be a
problem because lawyer could be called to witness
stand to impeach the testimony of an informant.
This is terrible and should not be allowed.
c. Policy: we must protect the adversarial nature of
our system and maintain attorneys as zealous
advocates for clients.
[NB: Work product is much broader than privilege
(privilege only applies to discussions with clients),
though it can be waived by turning over documents
formed as work product to witnesses or as a result
of document production.]
d. sacrosanct work product which can never be
compelled to turn over: mental impressions,
conclusions, opinions, or legal theories of the
attorney
c. seeks repetitious info or is too broad
d. questions constitute harassment (protective orders under Rule 26(c))
e. questions call for a legal conclusion or opinion on matter of law
6. If questions not answered, opposing party can seek a Rule 37(a) motion to
compel
F. Production of Docs, Entries on Land, Testing, Sampling
1. Rule 34: allows party to serve a request for production identifying and/or
describing items desired with reasonable clarity
a. writings, photos, graphs, recordings, computer data, etc
b. before turning over info: check docs for privileged into, work product,
anything you don't want to waive
c. Rule 45 allows similar evidence to be subpoenaed from a non-party in
conjunction with a deposition
2. Party receiving request has 30 days to respond
a. if party objects to request, opposing party may seek an order to compel
discovery pursuant to Rule 37(a)
3. Rule 26(e) – duty to supplement – also applies here
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4. Sampling: if the document production would be burdensome and expensive,
then court can sample the records (e.g.) of a single employee for a single year and
then, if useful info comes up, the court can widen the scope
5. Objections similar to those for interrogatories ("narrow the scope" is a key
phrase here)
a. too broad or vague; can't even understand the request
b. burdensome
6. Protective order to prevent compulsion to disclose info (Rule 26(c))
a. key words in rule: "good cause"
i. this is the Marrese standard:
1. how necessary are the documents to party in proving his
case?
2. adverse party must have good cause (unrelated to the
case?) not to disclose. (e.g., if we disclose, no one will be
candid in what they say in our tenure votes, etc)
3. can alternative information be given (e.g., redaction:
cross out names such that it will prevent identification?)
4. can new depositions be taken to substitute for existing
info?
b. any ruling on 26(c) can only be overturned on "abuse of discretion"
standard by the trial judge
G. Compulsory Mental and Physical Examinations (Rule 35)
1. These exams are normally performed by agreement between the parties
2. If no agreement, then turn to Rule 35 test to compel examination
a. moving party must show good cause for exam
i. weighing the pain, danger, or intrusiveness of test against
ii. the need or usefulness for the information to be gained
H. Requests for Admissions (Rule 36)
1. request to admit to
a. statements or opinions of fact
b. the application of law to a fact
c. genuineness of any documents described in request
2. party upon whom this was served has one week to respond.
3. if party does not respond w/in 30 days, matter is admitted
4. to deny the request, the party must provide specific reasons
5. Policy: requests for admissions provide an inexpensive way to narrow issues
with binding effect
27
I. Investigations (this is before discovery, i.e., before the action is joined)
1. Statements from non-parties.
a. anyone giving a statement is entitled to a copy of that statement if he
requests it (applies to parties and discovery (??) as well)
VIDEO TAPE on discovery
Liability does not end with civil prosecution for negligence. Any attempt to cover up a
defect can later lead to criminal prosecution for some sort of recklessness.
Documents that are "destroyed" or "lost" are often worse than those that are discovered
because the jury will draw an inference from that omission that these documents MUST have
been incriminating.
Destroying a document is not illegal until an action has begun or you know that an action
is about to begin.
If you know a client is going to lie, then you need to recuse yourself from the litigation to
be ethical.
Adversarial system results in each side trying to develop the most favorable evidence for
his side. The jury then decides which is the truth. (however, lawyers are often obfuscating the
truth or attempting to deceive the jury).
If a document comes to the surface that will totally prove the other side's case, you have
to turn over the document. Moreover, you cannot settle the case without disclosing the
document. Therefore, the settlement will increase in cost, but the D will probably request that a
confidentiality agreement is signed.
Judges will never force a settlement.
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Def. motion: application to court for an order
XI. Pre-Trial Motions (key case: Celotex Corp v. Catrett)
A. Default Judgment – Rule 55(a), (b), (c), and 60(b)
1. Rule 55
a. default rule ensures that parties will reply to complaint
b. initially, we get a default order, rather than a judgment (important for
appealability)
i. if order of default, court can set it aside by 55(c)
ii. if judgment of default, court can rely on Rule 60(b) via 55(c)
a. must look for good cause to set aside judgment; four
factors:
i. excusable neglect: must have affidavits to
support this assertion
ii. must show a meritorious defense (i.e., if we set
aside judgment, there is are triable questions)
iii. other side not prejudiced by failure to file a
timely answer
a. costs to restart action
b evidence goes stale?
iv. must have taken quick action to correct the
default
c. party may move to set aside (Rule 55(c)) default (very common)
2. Ideal: we want a hearing on the merits; default rule is exception to this policy
B. Judgment on the Pleadings – Rule 12(c) and (b)
1. After pleadings are complete, party may move for judgment on the pleadings
a. strictly limited to pleadings (complaint and answer) themselves
b. motion for summary judgment is pleadings PLUS
2. rarely granted
3. can never be granted if there is an issue of fact for trial
i. that is, court can only decide issues of law
4. to decide, judge assumes all inferences in favor of non-moving party
29
C. Summary Judgment – Rule 56 (motion normally made after or at end of discovery)
1. No Genuine Issue of Material Fact; Rule 56(c)
a. if party can show, through a motion, that there is no genuine issue of
material fact and . . .
b. party is entitled to judgment as a matter of law then . . .
c. summary judgment granted
2. Standards of Proof
a. party moving for summary judgment has the burden of production1 of
evidence to show no genuine factual dispute
b. court will view info in light most favorable to non-moving party
c. if court determines there is no genuine issue, then burden shifts to nonmoving party to establish that there is a factual dispute; Rule 56(e)
i. Celotex made this burden easier
1. court should grant summary judgment pursuant to 56(c)
if the adverse party . . .
a. fails to show sufficient evidence to establish the
existence of an element essential to that party's
case and
b. on which that party will bear the burden of
proof at trial
2. the moving party must simply point out to the court the
inability of adverse party to meet its trial burden; there is
no need to use affidavits
3. burden then shifts to adverse party to prove that it can
meet its burden
d. both parties can bring additional documentary evidence to
support/oppose the motion
i. pleadings (non-moving party cannot stand on pleadings)
ii. all discovery information
1. depositions
2. interrogatories,
3. admissions on file
4. documents discovered
iii. affidavits (written statement that is sworn to)
1. based on 1st-hand knowledge
2. must be admissible in evidence at trial
3. must show witness is competent
3. Benefits
a. D's don't have to risk juries emotional decisions
b. lots of money saved
4. Partial summary judgment
a. judge may dismiss specific counts
b. dismiss individual parties (e.g., one of the Ds)
c. judgment on liability but not on damages
1
Opposite of trial where P has burden of production, proof, and persuasion.
30
5. Appealability
a. summary judgment is automatically appealable
b. summary judgment denied: this is an order and not appealable
D. Settlement – Formal Offer of Judgment; Rule 68
1. Form of the offer
a. monies sought can be offered in a lump sum (i.e., to incorporate
damages, fees, and costs)
2. If P does not take offer, then he must get judgment larger than the offer after
trial or else P must pay D's attorney's fees from the time they make the offer
a. great tool for D to threaten P, though offer must be done in good faith
XII. Trial Motions (application to court for an order)– done orally
A. Judgment as a Matter of Law (JMOL) in jury trials; Rule 50(a)
1. known as motion for a directed verdict in state court
2. When can it be made
a. after party has been fully heard on an issue
i. e.g., after P rests, D can move w/out presenting case
ii. after D rests, D or P can move
3. if you don't make motion for JMOL before jury goes out, you cannot later
move for a renewed motion for JMOL (called JNOV in state court) on different
grounds
i. if you don't raise it, you lose it
4. Court's possible responses:
a. grant the motion: it is a judgment
b. deny motion: case goes on
c. grant a motion by non-moving party to reopen the evidence before
deciding on JMOL
i. if move to reopen evidence:
1. must tell judge nature of the evidence
2. evidence is decisive/important
3. will not cause undue delay
4. other party not prejudiced
5. evidence admissible
31
5. Test
a. take all info in favor of non-moving party
b. make all inferences in favor of non-moving party
c. "there is no legally sufficient evidentiary basis for a reasonable jury to
find for the non-moving party"
d. THEREFORE, this is an evidentiary concept (motion for new trial, on
the other hand, is based on error)
6. Erie problem
a. no consensus on whether it is substantive (state law) or procedural
(federal) issue
7. JMOL is reviewed on a De Novo standard
a. much easier to get overturned on appeal because it is about evidence,
not about abuse of discretion (appeal courts give much deference to trial
judge on that sort of appeal)
b. Seventh Amendment (1791)
i. any action theretofore tried before jury will continue to be tried
in like manner
ii. JMOL is nevertheless constitutional because ?????
XIII. Post-Trial Motions
LT on Motion for New Trial - best way to show how much responsibility is placed upon the
lawyer.
A. Motion for a new trial (Rule 59) and motion for renewed JMOL (Rule 50(b))
1) When you move for renewed JMOL (formerly JNOV) by Rule 50(b), you move in tandem
for new trial (Rule 59). Motion for new trial is much more likely to be granted.
a) motion must be filed within 10 days
b) ground for renewed JMOL is that no reasonable juror would have rendered this judgment
based upon the evidence taken in the most favorable light to the non-moving party.
Lessons of Weisgram
1. appeallate court and US Supreme Court can grant renewed JMOL
2. trial judge's decision on Daubert2 rule may be found to be in error
this does not necessarily mean reverse and remand, but the
appellate court has a right to assume that P produced his or her best
2
Weisgram v. Marley
Daubert Rule: federal court judge will decide on credibility/reliability of expert witness before he even gets to the
stand. what must the judge look at?
1. is testimony relevant?
2. is testimony scientifically reliable?
-results repeatable
-published in peer reviewed journal
32
experts, and so appellate court can disregard the expert testimony
and take evidence in light most favorable to non-moving party and
then grant the renewed JMOL for D
c) Motion for new trial can be granted sua sponte (Rule 59(d))
d) Order for new trial cannot be appealed. However, if a renewed JMOL is also granted,
then an order for a new trial is ineffective unless JMOL overturned on appeal.
e) New trial is granted on ERROR, but not error based upon the lawyer’s error. Error
committed by any trial participant during the trial may have had an effect on the jury’s
verdict.
i) Judge
(1) may admit inadmissible evidence or refuse to allow admissible evidence (i.e.,
erroneous evidentiary rulings)
(2) incorrect jury instructions are grounds for new trial
ii) Attorney
(1) failure to object - general rule is that you must object and if you don’t you waive
the right on behalf of your client. Reasoning: if you don’t object you don’t give
the court the opportunity to clear the error. General Rule is that this is “harmless
error.”
(2) improper comment in front of the jury
(3) fail to object to jury instructions
iii) “Plain Error” is error that the judge should have picked up by him/herself. If the
court fails to raise it, the appellate court may still choose to raise it.
iv) Jury/Juror - General rule is that lawyers cannot question jurors after the verdict.
(1) verdict against the weight of the evidence
(2) general jury verdict inconsistent with answers to interrogatories (Rule 49(b))
(3) damages awarded were inadequate or excessive
(4) misunderstanding of fact - is not ground for new trial
(5) jury misconduct - motion “the  received an unfair trial” - not ground for new
trial
(a) lawyer has responsibility for seeing sleepy/drunk jurors and bringing it to
courts attention, you cannot see it and not raise it
(b) if you allow jury verdicts to be attacked on the grounds…, you are interfering
with the sanctity of the jury
(c) every jury trial should be final - “intrinsic” activity of the jury should not be
the subject of post trial attack
(6) “extrinsic” information (brought into jury room)
v) Newly discovered evidence (Rule 60(b)(2))
(1) discovered after trial and could not have been discovered before or during
(2) is material and would likely have produced a different verdict
f) Perjury by witness - lawyer could have found out about this during the trial, unless you
can show that the lawyer could not have discovered the perjury.
You need to know: Motion for New trial - grounds are key - judge allowed or did not allow
evidence, instructions of law were erroneous, inappropriate comments of counsel.
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Vacating a judgment even when time limit has expired on the appeal
Rule 60: have up to one year to seek relief from judgment
(a) clerical errors
(b) mistakes, inadvertence, excusable neglect (normally used to set aside
default judgment), newly discovered evidence, fraud, misrepresentation,
misconduct
newly discovered evidence:
-discovered after trial
-moving party must have been diligent in finding evidence
-cannot be merely impreaching
-must be material
perjury (under Rule 60)
-if testimony came from the victorious party himself and the perjury was
willful and on a material issue and shown by clear and convincing
evidence and could not have been discovered in time to bring out in cross
examination, then Rule 60 motion granted
void judgment (brought in a reasonable time)
-lack of subject matter jurisdiction
-failure to give due process (no opp to be heard; not allowing a
party to cross examine)
when judgment on which the decision was made has been overturned (reasonable
time)
motion for Mistrial: error that is so serious and is brought to trial judge's attention that judge
must restart the trial
B. Effects of motion for a new trial
1. suspends the finality of judgment
a. thereby extending deadline to file appeal
2. Types of new trials
a. complete new trial on all issues
b. partial new trial if issue can be separated
c. remittitur
i. occur when verdict is either excessive
1. judge grants new trial unless P agrees to a
reduction in damages
d. relief in a non-jury trial can lead to:
i. open the judgment
ii. take additional testimony
iii. amend findings of fact and conclusions of law
iv. make new findings of fact and conclusions of law and direct the
entry of a new judgment
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C. Motion to Amend the Substance of the Judgment (Rule 59(e))
1. Reasons:
a. accommodate an intervening change in controlling law
b. account for new evidence not available at trial (Rules 59(e) and 60(b))
c. correct a clear error of law or prevent manifest injustice
2. Motion to add or amend findings of fact (Rule 52(b))
XIV. Trial
A. Right to Trial by jury (7th Amend & Rule 38(a)): actions at law and in equity
1. 7th Amend adopted in 1791
a. therefore, whatever was considered a "suit at common law" was entitled
to a jury trial
b. equitable relief was not entitled to a jury
2. what about mixed cases? i.e., when money damages and injunctions are sought
in the same action?
a. historically: legal claims ALWAYS have right to trial
i. therefore, when legal and equitable claims in a single action, the
court ordered separate trials
b. FRCP 18: permitted joinder of all legal and equitable claims for
convenience
c. Beacon Theatres: "only under the most imperative of circumstances
(i.e., almost NEVER) can the right to trial by jury of legal claims be lost
by prior determination of equitable claims"
d. Dairy Queen: unless a cause of action at law is "so complicated that
only an equitable court can solve it," jury should hear action.
i. since FRCP 53(b) permits the appointing of masters to assist the
jury in such cases, it seems almost impossible that the right to jury
should be abridged
B. The Trial Starts
1. First, select the jury (voir dire)
a. peremptory challenge (Rule 47(b) and § 1870)
i. cannot excuse classes of people based race or gender
ii. JEB is US Supreme Court case that established gender
iii. Batson established the race req
1. Batson hearings held when accusation of racial
discrimination
b. challenge for cause
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XV. Res judicata and collateral estoppel
CL doctrines (not a constitutional doctrine)
A. Res judicata / Claim preclusion
Claims: negligence, breach of warranty, etc
1. Rule 18 – may join as many claims against opposing party as there is
i. only applies to actions between same parties
2. merger/bar
i. if P prevails, all future claims are merged into the judgment (i.e., all
claims extinguished and replaced by the judgment)
ii. if D prevails, the P is barred from bring the same claim
iii. also apply merger/bar to actions of non-parties who are in privity (i.e.,
very closely related – e.g., employer in a vicarious liability action) to one
of the parties
3 when does it apply?
i. same parties
ii. must be a valid final judgment
iii. must be on the merits (that is, a full-length trial)
a. 12(b)6 motion: action dismissed w/o prejudice, therefore claim
can be brought again
b. 12(b)6 motion: action dismissed w/prejudice – now claim is
barred by res judicata
iv. claims advanced in the suits must be the same
4. §1738
i. federal court must honor preclusive effect of state court judgments
ii. state courts must do the same for federal judgments
5. compulsory counterclaims [13(a)] not brought will be barred by res judicata
B. Collateral Estoppel / Issue preclusion
Issue of fact
1. this is a good case for special verdict
2. Same issue
a. e.g., P v. D; D found negligent; D cannot then bring a case against P
claiming P was negligent because the ISSUE of negligence has already
been decided
b. "issue must have necessarily been decided" (i.e., the judgment MUST
be necessary to jury's verdict)
c. must have been decided on merits (i.e., at trial)
3. mutuality
a. no insistence on mutuality
b. therefore, a non-party to prior proceedings (e.g., a new P – i.e., "a
stranger to the lawsuit") can bring a suit on an issue already decided
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4. Parallel Proceedings?
a. i.e., are both proceedings of the same magnitude (i.e., are they both jury
trials?)
b. bench trial vs. jury trial (probably won't make a difference; a distinction
without a difference)
5. After a default judgment?
a. since first case not decided on the merits (i.e., in a trial), issue
preclusion does not apply
i. collateral estoppel can never apply to an issue that has not been
litigated
6. Settlement?
a.
7. How to recognize?
a. if there are two or more lawsuits, these are issues.
b. if more than two parties, then likely not res judicata
i. that is, every party must have had a day in court before he can be
bound by collateral estoppel
1. if a D was found negligent, then any future claims of
negligence brought against D on the same transaction will
mean that D Is collaterally estopped from denying
negligence
C. Defenses
1. motion to dismiss (on res judicata and collateral estoppel) is an affirmative
defense (i.e., it must be raised or waived)
a. therefore, if forget to raise, case can go forward
D.
OTHER:
Civil Law
Roman
Justinian code
code-based/statutory-based
-Procedure under civil law is different
judge is the investigator; lawyers do not develop evidence
judge is much more active
judging is profession within itself; they are not former lawyers
American System
we have jury in civil cases (English rarely have this)
costs: American – each party pays his own lawyer
England – loser pays everything (in effect, FRCP Rule 11 acts in a similar
way)
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EXAM INFO:
work out the problem on p. 15 of text (and p. 181)
always indicate the rule, including subpart; use language in the rule; and then any interpretation
of that language
Organization: P would argue . . .. ; D would argue . . . back an forth
label all assumptions: "I assume that . . .. "
Case names: know for personal jurisdiction and Erie issues
Review cases: Piper, Red cross, Weisgram, hickman, erie, hanna v plummer
REVIEW: read Red Cross with Weisgram decision in mind
rule 37: motion to compel can be granted at trial and then if the party wins the motion to
compel, they will be granted attorney's fees for the cost of filing the motion.
only obtain attorney's fees for claims under statutes or contracts
Work in somewhere: Consent is also a way to gain personal jurisdiction over a NRD.
Express consent: yes, you have jurisdiction.
Implied consent: must object to personal jurisdiction in initial motion; issue cannot be
raised at a later time (Hess v. Pawloski)
Consent can also be gained via a contractual clause: the forum selection clause.
Counter-claims create special problems of consent.
If D files an objection to the jurisdiction of the court, he consents to the court's jurisdiction!
Rules for pleadings: Know hypo on p. 181
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