Civ Pro, Wardle, W2012
A Synthesization of Civil Procedure
Civil Procedure, Winter 2012, BYU Law, Prof. Wardle
Contents
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Rule 34: Producing Documents, ESI, and Tangible Things, or Entering onto Land, etc. ....... 35
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I.
Introduction—Civil Procedure in General
Cases have substantive and procedural elements.
We use an adversary system—why? o There is a better decision when interested parties shape a contest. o Parties should bear the burden of time and energy. o It is easier to reach a yes-no decision. o The urge to fight is fulfilled—party satisfaction.
Party’s decision to sue: o There should be a possibility that law can furnish relief for grievance. o Litigant should weigh probability of winning suit. o Litigant should weigh where victory is profitable. In the U.S., each party usually must pay their own way.
Which court to sue in? o Original jurisdiction v. appellate jurisdiction o Subject Matter Jurisdiction o Jurisdiction of Party or Property o General Jurisdiction v. Inferior Jurisdiction (traffic, drug, small claim) o What district? o Diversity jurisdiction? o Venue? o Amount in controversy?
Commencing the Action o Service of process including summons, caution of default judgment o Personal service, substituted service, publication—reasonably calculated to bring action to defendant’s notice
Pleadings—complaint
Response: o Motion to dismiss for lack of jurisdiction, bad service of process, or venue o Motion to dismiss for failure to state a claim or cause of action o Answer, including affirmative defenses o Reply, sometimes o Counterclaim or impleading another defendant
Pretrial Discovery o Depositions o Written interrogatories o Production of documents o Requests for admissions (agreement on an issue) o Mandatory self-disclosure (some new rules)
Summary Judgment
Setting Case for Trial
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o Note of issue (gets case on trial calendar)
Jury and Selection o Can be challenged for cause or on peremptory challenge
Trial o Opening statement, direct examination, cross-examination, re-direct or recross. o Parties rest, make motions for directed verdict
Submit Case to Jury o Jury is instructed or charged
General verdict
General verdict with interrogatories
Special verdict (interrogatories only)
Post-Trial o Judgment notwithstanding the verdict, judgment n.o.v., renewed motion for judgment as a matter of law, new trial
Enforcement of Judgment o Execution or writ of execution o Injunction, contempt of court, etc.
Appeal o Record, transcripts, briefs, oral arguments o Interlocutory orders o Affirm, reverse, modify
The End o Res judicta
Motions o Motion practice a practice of skill o Declarative, Specific, and Compensatory Relief
A.
Rule 1
FRCP covers all proceedings in U.S. district courts. They should be construed so as to make actions and proceedings just, speedy, and inexpensive. See Rule 81 for exceptions. Generally, there may be modified procedures in bankruptcy, citizenship, or special writ proceedings where statute demands.
B.
Rule 2
The civil action is the only form of action under these rules.
C.
Rule 3
A civil action commences with the filing of complaint with the court.
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D.
Rule 4(a)
Summons must contain: name of court and parties, be directed to defendant, state name and address of plaintiff’s attorney or plaintiff, time when defendant must appear, warn of default judgment, clerk’s signature, court’s seal. Amendments permissible.
E.
Rule 4(b)
Clerk must sign and seal and issue to plaintiff is summons is properly completed.
II.
Alternative Dispute Resolution
ADR picked up in the 1970s and has even become sanctioned by many courts and legislatures. Sometimes, ADR is mandatory. This possibly interferes with Due Process. What if it is a delay tactic? What if it is used to have sides tip their hand? Is it a waste of time?
What should you make of the fact that one doesn’t need to have a legal education or law license to be a mediator? See Long v. Ethic and Discipline Committee.
A.
Rule 16
1.
Rule 16(a)(5)
A purpose of a pre-trial conference is to facilitate settlement.
2.
Rule 16(c)(1)
At a pretrial conference, the parties must authorize at least one person there to make stipulations and admissions.
3.
Rule 16(c)(2)(I)
At pretrial conference, settlement should be considered and the use of special procedures considered when authorized by statute or local rule.
4.
Rule 16(c)(2)(P)
At pretrial conference, they should look to facilitate in other ways the just, speedy, and inexpensive disposition of the action.
B.
Court-Annexed Arbitration—EDNY
Most cases worth less than $150k are sent to arbitration. The clerk schedules arbitration between 30 and 120 days after filing. Parties may motion to be exempted from this rule. Usually, a single arbitrator presides—three if on request. It practically takes place in courthouse. However, judges never know what happens, and what is said at arbitration not admissible. Afterward, there may still be a trial.
C.
ADR Methods
Negotiation
Mediation
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Neutral Fact finding and Ombudspersons
Early Neutral Evaluation
Mini-Trials
Summary Jury Trial
Arbitration
Private Judging
D.
ADR in the Courts and the ADR Act
Courts generally favor ADR, and ADR has survived many challenges. The federal
ADR Act gives room to encourage ADR, but not in the FRCP. If there is to be mandatory ADR, it must come through the local court rules. In the absence of a local rule requiring ADR, the only way the court can force it is through its inherent powers. In weighing use of inherent powers:
Inherent powers must be used in a way reasonably suited to the enhancement of the court’s processes, including the orderly and expeditious disposition of pending cases.
Inherent powers cannot be exercised in a manner that contradicts an applicable statute or rule.
Use of inherent power must comport with procedural fairness.
Inherent powers must be exercised with restraint and discretion.
E.
Rule 68
Courts can consider settlement offers in hearings to determine who pays the costs.
However, Delta Air Lines v. August, holds that offer must be reasonable if it is to count against the person who refuses the offer.
III.
Jurisdiction over Parties or Their Property
JOPP is disputed in statute courts less often than in federal courts, though SMJ is more often disputed in federal courts. Appearing to make a motion previously dangerous, but now there are special appearances.
A.
Applicable Rules
4(d)(5): Waiving service of summons does not waive any objection to personal jurisdiction or venue.
4(n): Courts may assert jurisdiction over property or assets in jurisdiction.
12(b): Party may assert in motion a lack of SMJ, JOP, improper venue, insufficient process or service of process, and failure to state a claim under which relief can be granted, etc.
12(g): The 12(b) motions can be combined in one motion. Parties prohibited from making any of these motions if they failed to include in the earlier
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motion, in effect, waiving the defense as in 12(h). However, failure to state a claim upon which relief can be granted, motion to join a person required by
Rule 19(b), or state a legal defense may be raised later, as can SMJ.
B.
Principles for Asserting JOPP
Statutory or common law authorization for asserting JOPP
Adherence to Constitutional standards (aka Due Process)
Proper application of JOPP through proper service
C.
Baselines for Jurisdiction
Person’s presence
Consent
Citizenship
Ownership of Property
Conducting Business
Minimum Contacts
D.
Direct Attack v. Collateral Attack
A direct happens in the proceedings. A collateral attack comes in a second proceeding somewhere else—usually when you’re suing on a judgment.
E.
Traditional Thoughts on Jurisdiction
1.
Pennoyer v. Neff (1877)
Plaintiff sues defendant in Oregon. There was a lack of proper service. The defendant’s property was later seized to satisfy judgment against person. The court held that Oregon had no personal jurisdiction and reversed.
In personam: Court exercises power against person.
In rem: Court exercises power on property.
Quasi-in-rem: Court renders judgment on person, but only to extent person has property in jurisdiction. a) Other Cases
Grace v. MacArthur: Service while on flight over state allowable.
Blackmer: Expatriate service fine.
Millikien v. Meyer: Domiciled = citizenship, but what is domicile?
Cross complaints made by a defendant being sued by a nonresident plaintiff are valid.
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F.
Personal Jurisdiction Expands
1.
Hess v. Pawloski, (1927)
Pennsylvania resident drives negligently on Massachusetts roads.
Massachusetts had enacted a law stating that non-residents driving on roads officially appointed someone to receive service for them. The court upheld, largely because cars are dangerous, and we have availment.
G.
The New Theory (Regarding Specific Jurisdiction)
Specific meaning that there is a tie between the jurisdiction and the controversy. A general jurisdiction is where only the rights of someone belonging to the jurisdiction are in question—the controversy isn’t particularly tied to the jurisdiction.
1.
Minimum Contacts, Fair Play, Substantial Justice. a) International Shoe Co. v. Washington, (1945)
The shoe company had a few salesman with limited authority and function in the state. They got served. The court ruled: Defendant must have certain minimum contacts to the extent that assertion of jurisdiction will not offend traditional notions of fair play and substantial justice were sufficient to assert jurisdiction. b) Keeton v. Hustler Magazine (1978)
Lady sued in state where publisher had sold magazines, but in which she did not live. Plaintiff need not have minimal contacts with jurisdiction. c) Gray v. American Radiator, (Ill. 1961)
Committing a tort in the state suffices. Tort includes the action of making the defect and then the defect causing the injury elsewhere. d) Other Cases:
McGee v. Int’l Life Ins. Co.: Company assumed responsibility for a policy. They took money from California resident.
Court ruled that those things alone were sufficient to subject company to California courts.
Hanson v. Denckla: Lady established trust with a Delaware company. She moved to Florida and occasionally mailed them directives. Florida was prevented from asserting jurisdiction, particularly because the company did not
avail itself of Florida law.
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Allstate v. Hague: Brand new Minnesota resident could sue under Minnesota his insurance company of Wisconsin, his former domicile. Very like McGee, above. e) Volkswagen v. Woodson, (1980)
Lady bought car in NY and had accident in Oklahoma while en route to California. The court would not infer minimum contacts, and the car company could not reasonably anticipate being haled into court in Oklahoma.
2.
Effects Test and Purposeful Availment a) Harris Rutsky v. Bell & Clements (9 th Cir. 2003)
The court makes an effects test to find purposeful availment. The test is probably based on Calder. The idea was established in much earlier cases.
Committed an intentional act
Expressly aimed act at forum state
Causes harm, brunt of which is suffered and which defendant knows is likely to be suffered in forum state b) Burger King v. Rudzewicz, (1985)
The franchisee was in Michigan, but the franchisor was in Florida and had specified venue in the contract. Once availment is established, fair play and substantial justice must be considered:
Forum state’s interest in adjudicating dispute
Plaintiff’s interest in obtaining convenient and effective relief
Most efficient resolution of controversies
Shared interest in further fundamental substantive policies. c) Asahi Metal Indus. v. Superior Court, (1987)
The valves from an Asian company got sold to another Asian company, and some of the valves were defective and made it to
California where one caused an accident. The court didn’t see minimal contact, availment, or fairness/justice. The court considered
stream of commerce with regard to purposeful direction. Other cases have ruled that bare knowledge that a product could
wander that way is not sufficient. This opinion rests on a split majority.
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Burden on defendant
Once minimum contacts established: interest of plaintiff
(which will override burden on defendant)
State’s interests
Foreseeability of being haled into court
Interest of other jurisdictions d) J. McIntyre Machinery v. Nicastro, (2011)
Guy injured his hand on a piece of UK machinery in New Jersey.
Court looked for availment and targeting of forum. Did not find it because of distributor, etc. Purposeful targeting trumps foreseeability.
H.
General Jurisdiction and State Long-Arm Laws
The goal of the plaintiff is find a way to get the company into an American court even if the controversy did not happen anywhere near the jurisdiction. To achieve this, they will have to stretch quite a bit.
1.
Helicopteros Nacionales v. Hall, (1984)
A company that bought helicopters from a Texas company and had its pilots trained in Texas, was sued. They had done some banking in Texas and the
CEO had visited Texas once. There was a crash and wrongful death.
Plaintiffs wanted to sue in Texas. A continuous and systematic presence
is required. The cause of action must rise out of or be related to contacts in the state. a) Goodyear v. Brown, (2011)
Bus accident in France killed boys. Tires were made by Goodyear subsidiary. They argued stream of commerce. Court required
continuous and systematic along with affiliation between forum
and underlying controversy. In class, courts are reluctant to pierce the corporate veil unless something really bad is going on.
2.
The Internet
Zippo creates a sliding scale of commercial activity to weigh what sorts of contracts the website is making and how often it makes contacts. a) Pebble Beach v. Caddy, (9 th Cir. 2006)
Pebble Beach sues for infringement on some website in UK. The court looked for purposeful availment.
Committed intentional act
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I.
Aimed at forum state
Caused harm, brunt of which suffered in state and foreseeable that would be suffered in state. b) Other Considerations
Placing a call is different than accepting a call
Telephone, e-mail, fax, not much contract
Mere publication on internet not very good
Accessing a website not always sufficient
Jurisdiction Based Upon Power Over Property
Cybersquatting merits in-rem jurisdiction.
1.
Shaffer v. Heitner, (1977)
Greyhound is incorporated in Delaware, but operated out of Arizona. Guy sues directors of company based on the stock shares allegedly being unable to actually leave Delaware. The court decides to apply Int’l Shoe to this
and other quasi-in-rem actions. There needs to be a tie between the state, defendant through ownership of property in state, and controversy.
Delaware later made law subjecting heads of Delaware corporations to
Delaware jurisdiction. Basically we’re going to narrow what quasi-rem can do for the state. Divorce jxn isn’t Int’l Shoe, in rem isn’t Int’l Shoe.
J.
Jurisdiction Based on Physical Presence
1.
Burnham v. Superior Court, (1990)
Guy was in California for a couple of days and got slapped with divorce action. Transient is jurisdiction sufficient. If you are in the state, you can be tagged. The dissent seemed to think that maybe Int’l Shoe might be relevant.
K.
Jurisdiction through Consent
A defendant consents by expressly agreeing, performing certain acts that constitute a waiver (like submitting to court power to decide whether there is jurisdiction), or by failing to assert a defense of lack of jurisdiction.
1.
M/S Bremen v. Zapata Off-Shore Co., (1972)
Court upheld clause requiring UK court jurisdiction. The same with Carnival
Cruise Lines v. Shute, where there was a forum selection clause on a cruise ticket. Court supports such clauses, thinks it is fair if the one company is making contracts with hundreds of different people, probably from all 50 states.
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L.
Jurisdictional Reach of Federal Courts
1.
Rule 4(k)
Jurisdiction is established by serving summons to defendant
Who is subject to the state court jurisdiction in the state where the district court is located
When authorized by federal statute
But, for claims under federal law, summons establishes jurisdiction if defendant is not subject to jurisdiction in any state’s courts of general jurisdiction and exercising jurisdiction is consistent with the Constitution and federal laws.
Court can piggy-back on multiple causes rising from same facts if it has jurisdiction over one cause—pendant personal jurisdiction.
M.
Collateral Attack on Personal Jurisdiction
Allowable only if court has not already ruled on whether jurisdiction exists.
IV.
Notice
A.
Requirement of Reasonable Notice
1.
Mullane v. Central Hanover Bank & Trust, (1950)
Bank was a trustee, wanted to settle accounts in a court action. It gave notice by publication even though it had addresses of most people involved. Notice must be reasonably calculated to apprise interested parties, and reasonably convey the required information, and afford reasonable time to make appearance. Notice should be reasonably certain to inform those affect. It cannot be less likely to reach them than some
other method that is reasonably available. Part of the problem was that they were also listing it as Trust X instead of directing it to Joe Schmoe.
Most likely to succeed not necessarily required. If name/identity and address are available, constructive notice is not sufficient.
B.
Mechanic of Giving Notice
1.
Certified mail sufficient, but not when you know it failed. Send it again or send it non-certified.
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2.
Impossible to Serve
That becomes the defendant’s problem, but if you know they’re locked up, you cannot just mail it to their house.
C.
Value of Giving Notice
Dignity Value—it is humiliating to not be able to defend
Participation Value—helps to be counted
Deterrence Values: Influences behavior in positive way
Effectuation Value: People assured of getting what they deserve
D.
Waiver of Service
They mail it, and you can sign a waiver of service. Otherwise, you might be paying for personal service .The incentive is extra time to respond to complaint.
E.
State Rules on Federal Summons
Service may be done according to the state’s rules. This also ties to the district court piggy-backing on state long-arm statutes.
F.
Rule Applied Strictly
In Maryland State Firemen’s Assoc. v. Chaves, the defendant knew of suit and lawyer was preparing it, but never signed waiver, never was served personally. Suit failed.
G.
Rule 4(e)(2)
Deliver summons personally, to individual at dwelling who is responsible, or deliver to an appointed agent.
1.
Person in Abode
Person can have more than one abode. If he’s there, surely that is sufficient.
National Development v. Triad Holding. This holds true with wife even if guy no longer in state permanently. Karlsson v. Rabinowitz. But, where wife estranged, not legit. Williams v. Capital Transit.
2.
Delivery to Agent
Agent must be appointed. Their mere claim of agent status not sufficient. a) National Equipment Rental v. Szukhent, (1964)
People rent, there is a clause. They tried to get it thrown out on that the appointed agent did not undertake to actually delivery summons, even though she did. Contracts may appoint an agent to receive service of process in the company’s state— whether undertaking to deliver is required debatable. Modernly, probably required.
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3.
Serving a Corporation, Rule 4(h)
The rule is broadly construed—delivery should be reasonably calculated to effectuate delivery upon a representative integrated in organization
who would know who to pass it onto, Ins. Co. of N. Am. V. S/S Hellenic
Challenger. Reliance may be based on corporate employees to identify proper person , Fashion Page Ltd. V. Zurich Ins. Co.
4.
Serving an Individual in a Foreign Country, Rule 4(f)
Foreign countries do not want to be offended. The Hague Convention provides contracting countries a central authority. Court may allow alternatives. Waiver procedure solves most problems. Otherwise, follow country’s rules.
H.
Return of Service
Courts usually rely on bonds of those serving.
I.
Service and Statutes of Limitations
With federal stuff, the suit commences with the filing of the complaint. In some states, it does not commence until service has been achieved. Furthermore, complaints can expire. You must get an extension if there is delay. Otherwise, double jeopardy will bar you from filing the complaint again.
J.
Immunity from Process and Etiquette of Service
Courts can grant immunity to people coming into the state for a specific case.
1.
State ex rel. Sivnksty v. Duffield, (W. Va. 1952)
Guy hit children with car while on vacation. He got convicted, sent to jail.
He got served for the civil suit and argues immunity because he was not in jail voluntarily. One who voluntarily comes to court immune, but guy came into county voluntarily in first place, after conviction is also
different.
K.
Etiquette of Service
1.
Wyman v. Newhouse, (2d Cir. 1937)
Guy suckered into coming to Florida through trickery. He was served, and the establishment tried to snow him. A fraud in affecting jurisdiction is
equivalent to a lack of jurisdiction. Collateral action worked here.
V.
Opportunity to be Heard
Defendants should have opportunity of proper hearing and definitely should have long enough to retain counsel and prepare a defense. Due Process applies to intangible property.
Do pre-trial orders violate Due Process?
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A.
Fuentes v. Shevin, 1972 and Resulting Cases
Lady got her stuff replevined before she could even have a hearing over whether she actually did owe the store money. State’s law allowed writ of replevin where plaintiff filed complaint and posted a bond. The defendant could post double bond to get the stuff back. Right of notice good only when hearing happens while deprivation can still be prevented. A possessory interest is sufficient.
Exceptions: Seizure to protect government interest, special need for prompt
action, state strictly controls. Also, you can waive right to notice as long as it isn’t sketchy. Furthermore, there is a difference between state and private enforcement of these sorts of contracts.
But in Mitchell v. W.T. Grant Co., Louisiana required complaint, bond, assertion of waste risk. Defendant can post bond and have immediate hearing. The court held this to be fine.
Then, in North Georgia Finishing v. Di-Chem, the court ruled that lack of immediate hearing was different from Mitchell and more like Fuentes.
Then, in Connecticut v. Doehr, a guy got his house attached when someone sued him for assault. The court made a test:
Nature of private interest that will be affected
Risk of erroneous deprivation and probable value of other safeguards
Interest or burden of party seeking prejudgment remedy
But, there doesn’t need to be a hearing on Social Security cancellation.
VI.
Subject Matter Jurisdiction
The question is whether the court has authority over the controversy. The Constitution gives federal courts authority over cases in law and equity arising under the Constitution and with diversity jurisdiction. § 1332 requires complete diversity where no party shares diversity
with any party on the other side of the aisle. With regard to diversity, aliens and corporations with their principal place of business are citizens of the state. Infants and incompetents are citizens of their own state regardless of who represents. Amount in controversy must be $75k, $5 mil if a class action. Costs and interest are excluded from determining this.
A.
SMJ in State Courts
State courts are courts with broad powers and original jurisdiction. You will not often see SMJ disputes in state courts.
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Lacks v. Lacks: The NY state court had SMJ over divorce, but screwed up over whether Mr. Lacks was eligible to pursue divorce in NY because of residency issues.
Had it been SMJ, Mrs. Lacks would have been able to invalidate the ruling.
However, John R. Sand & Gravel v. United States and Hughes v. Fetter hold that statute of limitations can affect whether court had authority. Also, a state’s local statute of limitations is relevant, even if the dispute is not local.
B.
SMJ—Federal—Diversity of Citizenship—1332
The theory of diversity jurisdiction is to protect foreign defendants from possibly hostile state courts. This idea is getting old. People use it more to their advantage than as a protection.
Complete diversity required.
1.
Determining Citizenship
Mas v. Perry, the couple and the voyeur: Domicile is the true, fixed, and permanent home, and place to which person intends to return. To change domicile, one must take residence elsewhere and intend to remain. The
court will look for objective signs.
Corporations are citizens both where they are incorporated and at the principal place of business. The nerve center test suffices for determining the principal place of business.
The deeming provision allows aliens to sue as if citizens.
Assigning assets elsewhere clever, but ineffective.
Destroying diversity jurisdiction not so simple.
C.
SMJ—Federal—Amount in Controversy—1332
AFA Tours v. Whitchurch, the travel agency sued the former employee for stealing trade secrets. The sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear as a legal certainty for the court to dismiss it.
The same plaintiff may aggregate claims.
$75k
Class action minimum is $5 million.
You can argue that the amount in controversy is what the plaintiff seeks or possibly what the defendant stands to lose.
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Federal courts do not like to hear pure probate or domestic matters.
D.
SMJ—Federal—Federal Questions—1331
The federal courts have jurisdiction over questions of federal law to promote
uniformity¸ protect from state court hostility, and to ensure judicial expertise.
Under 1331, district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S.
Louisville & Nashville v. Mottley, the plaintiffs had a deal with the railroad for a free pass, but Congress passed a law against this. They sued for breach, the railroad asserted the law as their defense. Arising under means that the face of claim/pleading rises under Federal law if it is to be federal SMJ.
Artful pleading not allowed.
T.B. Harms Co. v. Eliscu, the copyright holders had a dispute. Copyright assigns ownership — you cannot sue in court over a land title from a former federal
grant. A suit rises under the law that creates the cause of action. You have got to be aiming for a remedy granted under the act.
Smith v. Kansas Title & Trust, Smith sues bank for investing in unconstitutional bonds. This became a federal issue because of the bond question. Where the right to relief depends on the construction or application of the Constitution.
BUT
Moore v. Chesapeake & Ohio Railway, the state had a law regarding whether you could collect in a lawsuit based on your compliance with a federal law. This was not a federal matter.
Merrel Dow Pharm v. Thompson, plaintiff was not allowed civil suit for violating federal drug law. Suit arises under the law that creates the cause of action.
Congress did not legislate for private claims in the relevant statute.
Grable v. Darue, the former owner sues the IRS over seizing his lands with defective notice. The court heard it because it affected other seizures and interpretation of a federal statute. Federal courts hear claims recognized under
state law that turn on substantial federal questions of law. There was a
disputed federal issue and interfering did not disturb the federal/state
balance. There was, in essence, in Merrel-Dow a missing welcoming mat.
The Grable decision was based on substantive, dispositive interpretation and
would have affected other cases and federal interests.
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E.
SMJ—Federal—Supplemental Claims and Parties
Pendent jurisdiction: Plaintiff appends a claim lacking an independent basis for federal jurisdiction in complaint.
Ancillary jurisdiction: A claim lacking independent jurisdiction is raised in a counterclaim, cross-claim, or third-party complaint.
Supplemental Claim: The term for the above two as codified by Congress.
Gibbs is the case law test, but that is pretty much coded in 1367.
Gibbs: Pendent jurisdiction exists whenever there are claims under federal laws and state claims in the complaint deriving from a common nucleus of operative fact. If the federal claim dies, then there is no jurisdiction over state claims—at least before trial. Exxon Mobil v. Allapattah, the word is same controversy.
A new defendant impleaded from in state will destroy diversity jurisdiction.
Executive Software v. C.D. Cal, Regarding Sec. 1367, (a) grants the power, with limits of (b), and gives excuses in (c). (c)(4) is an exceptional circumstance, and compelling reasons should accommodate values of economy, convenience, fairness, and comity.
F.
SMJ—Federal—Removal
Claims filed in state court that qualify for federal court because of diversity or federal claims can be removed. Plaintiff cannot remove to federal court just because of
a counterclaim.
Borough of West Mifflin v. Lancaster: The dudes suffered racism from the cops and the federal court rejected hearing their shebang. Federal court cannot remand state issues when they are not separate and independent from a federal claim.
All claims rising on the same nucleus of facts belong to the federal court. The modern act for 1441 requires federal court to sever unrelated issues.
This is a combo of 1367 and 1441.
G.
Challenging SMJ—Direct Attack
SMJ can be challenged at any time.
Court can find alternate ways to get rid of case, even absent SMJ.
Federal court can give orders even absent SMJ.
H.
Challenging SMJ—Collateral Attack
A collateral attack on SMJ is rare.
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You can challenge SMJ if 1) Subject matter was plainly beyond court’s jurisdiction, 2) if allowing judgment to stand would infringe on authority, or
3) judgment was rendered by incompetent court.
VII.
Venue, Transfer, and Forum Non Conveniens
The question is one of convenience and judicial economy. Like JOP, it is possible to waive venue, though you cannot waive SMJ. Rules dictating venue can be quite varied—business location, where it happened, where the property is, residence, etc., the factors applying to any party.
Equal protection not violated by arbitrary venue rules. Forum selection clauses usually valid unless they are quite unreasonable or fraudulent.
A.
Local and Transitory Actions
A local action is when the property falls within the court’s venue/jurisdiction.
A transitory action is something that could have happened anywhere.
Special venue is when a court decides to treat a local action as a transitory action.
Federal law bans special venue.
However, Reasor-Hill v. Harrison, shows Arkansas allowing it.
B.
Venue in the Federal Courts
The question of federal venue is dictated by Sec. 1391.
Bates v. C&S Adjusters: In New York, the guy got a debt collection letter ultimately mailed to Pennsylvania. Venue belonged in New York. Location where a substantial portion of events occurred.
Also, where defendant resides.
C.
Transfer of Venue in Federal Courts
Thanks to the new statute, you can transfer to any district where action might have
been brought or to any district parties agree to for the interest of justice.
Van Dusen v. Barrack, the law of the transferor court holds in diversity. You
can debate that question regarding federal question.
1406 allows transfer of wrongly filed case to correct district in interest of justice, or it can dismiss.
1407 allows consolidation of mass litigation for pre-trial stuff only.
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D.
Forum Non Conveniens
The big analysis tool comes from Gilbert
Relative ease of access to sources of proof.
Availability of compulsory process for attendance of unwilling.
Cost of obtaining attendance of unwilling witnesses.
Possibility of view of premises, if view appropriate to action.
All other practical problems that make trial of a case easy, expedition, and inexpensive.
Also perhaps, enforceability of judgment.
The big amazing case: Piper Aircraft Co. v. Reyno, where the Scottish plaintiffs tried to get into American court.
Possibility of substantive law difference should generally not be given much weigh unless the difference is extreme. Standard of review is abuse of discretion. Can throw case out without establishing SMJ. Court can force to waive immunity in other jurisdiction before dismissing.
VIII.
Complaint
A.
Detail Required Traditionally and Under “Codes”
The complaint must detail issuable facts—what, when, where, who, what, inter se
(relationship of parties). You can err on side of pleading evidence or pleading conclusions of law. The adversary and court should be able to see real nature of
claim or defense.
B.
Details Required Under Federal Rules
Federal Rules are not intended to be overly strict. Rule 8(a) requires a short and
plain statement of the claim showing plaintiff is entitled to relief. (This is the only pleading requirement. Courts may not apply more stringent standards.) The countermove would be Rule 12(b), failure to state a claim upon which relief can
be granted, and the exception is Rule 9(b) requiring more definite information regarding fraud.
The old standard was Conley, in which the court held that the complaint fails only when it appears beyond doubt that the plaintiff can’t prove it.
However, the Court heightened the standard in Twombly. The lawsuit was antitrust against the Bell Atlantic. The plaintiff stated a bunch of facts, available on public record and tried to show how they were some sort of conspiracy. The court required that the facts state a claim to relief that is plausible on its face.
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A prisoner, acting pro se, might get more mercy.
Garcia v. Hilton Hotels, the suit in Puerto Rico with the absurdly long complaint.
The hotel could assert partial immunity only. Complaint is to be construed in
light most favorable to plaintiff. Some of the paragraphs were stricken from the complaint because there could be no relief under them.
C.
Burden of Pleading and Burden of Production
If you are the one pleading something, the burden of producing evidence falls on you. The defendant has the burden of producing evidence to the defenses. Only when a defense goes to the very heart of the action should a plaintiff be
required to face the issue and allege that defense does no exist. For example, that a debt has not been paid, which is a typical defense.
D.
Pleading Special Matters
Some matters require heightened pleading. Fraud, for instance, or injuries that are not necessarily the natural result of whatever accident may have caused them. Rule
9(b) applies to fraud, but Congress was dissatisfied with the soft application and passed the PSLRA requiring facts giving rise to a strong inference that the defendant acted with scienter in fraud.
In Tellabs v. Makor the Court defined strong inference. A court is to consider the complaint in its entirety and inquire whether there is a strong inference of scienter. If the inference is as strong as any other possible inference, the court may not
dismiss. Scalia wanted a stronger than any other inference to be the standard.
Rule 8(d), alternative and inconsistent pleadings acceptable
Rule 10(b) encourages a separation of causes of actions in the complaint itself.
Rule 9(g), special damages must be specifically stated, ahead of time. In
Ziervogel v. Royal Packing, the lady tried to get damages for high blood pressure, but this was a special damage because it was not the inevitable result of the accident.
Special damages must be pled with particularity; general damages need not
be so specific. Medical bills are general; aggravated conditions are special.
E.
Prayer for Relief
Under Rule 8(a)(3) the complaint must include a prayer for relief, but under
54(c), the court may not grant damages above prayer for relief in default
judgment.
Bail v. Cunningham Bros, the court allowed amended pleadings to match what the jury ultimately does—for instance, if it goes above and beyond the prayer of relief. The
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court reasoned that defending $100k isn’t all that different from defending
$250k.
IX.
Answer, Reply, Etc.
Rule 6: Computation of time
Rule 12(a): Generally 21 days to make an answer
Court can extend deadline
Rule 12: Defenses, answer, etc.
A.
Motion to Dismiss for Failure to State a Claim
In general, a complaint cannot be dismissed merely because it includes invalid claims along with a valid one. The court should not pounce to dismiss and thus prevent the cause from being brought ever again.
A Rule 12(b)(6) constitutes adjudication on the merits.
If you introduce outside evidence, you’re dealing with summary judgment.
B.
Motion to Strike Pleading
Rule 12(f)—strike crap that is scandalous, impertinent, or irrelevant. This motion is rarely granted.
C.
Answering the Complaint—Denials
There are general denials and specific denials and evasive denials. In Zielinski v.
Philadelphia Piers, the company was estopped from an evasive denial that left the plaintiff hanging after the statute of limitations had run.
You can make specific denials and then also a general denial. Rule 8(b)(3).
If you deny for lack of information, but do have information, that is an admission.
Rule 12(e), motion for a more definite statement.
D.
Answering the Complaint—Affirmative Defenses
Either you dispute that the plaintiff cannot prove a thing or you accept the allegation but suggest another reason why there is no right of recovery.
Affirmative defenses are waived if they are not raised ahead of time. In
Ingraham v. United States, the U.S. neglected to use a statute limiting recovery in their favor. This was an affirmative defense.
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E.
The Reply
Plaintiff must reply to answers that include counterclaims. Failure to deny is an admission. If responsive pleading is not required, the allegation is considered denied.
(So, an answer without a counterclaim.)
F.
Amendments
Parties get a freebie amendment. Further amendments come at permission of other party. The response to an amendment is 14 days. During trial, the amendments can come if the evidence is shaping up differently. American jurisprudence favors amendments so as to prevent people from employing sneaky technicalities.
Beeck v. Aquaslide, the company realized the slide in question did not belong to it, having previously relied on the insurance company’s investigation. They moved to amend. People should be given leave to amend, particularly where bad faith is
absent.
It helps if the amendment relates back as required in Rule 15(c). In Worthington v.
Wilson, the guy sued the cops, but didn’t actually add their names until later. It did not relate back. A new defendant cannot normally be substituted or added by
amendment after the statute of limitations has run. The issue was laziness, rather than a mistake of identity where the true person being sued could know very well they were in trouble. Once complaint has been filed, there is 120 days to
properly serve the defendants.
G.
Supplemental Pleadings
These are pleadings over stuff that happens after the complaint has been filed. Rule
15(d). The test on 15(c) generally paves the way on a 15(d).
H.
Rule 11—Frivolous Pleadings
Parties can get sanctioned for stupid pleadings. The party need not understand
every whit, but there ought to be good faith. Furthermore, the lawyer does have
a right to rely on client, but should investigate if something stinks. See Surowitz
v. Hilton (ignorant lady relies on son-in-law to carry out suit), and Hadges v. Yonkers
Racing (activist lawyer and idiot client). Sanctions comes at motion or on court’s
volition (should be a contempt situation). As a part of the rules, the sanction
must be filed as a separate motion, and the other party is given a safe harbor period.
Courts may use their inherent powers to impose sanctions rather than just relying on Rule 11
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X.
Joinder of Claims and Parties
Originally, courts wanted things separate and simple. But now, they prefer to get everything out of the way so they can have judicial economy.
A.
Historical Limitations
Harris v. Avery: The action can be united where it rises from the same transaction or when the same plea and same judgment will be there or if the counts are the same nature and the same judgment is to be given.
B.
Permissive Joinder of Claims under Rule 18
The only real restriction is SMJ. The risk of res judicata is a good motivator to join things. Rules 15, 18, and 20 package it all up.
Rule 18: A party asserting any claim may assert as many claims as it has against an opposing party. A party may even join contingent claims.
C.
Mandatory Counterclaims, Rule 13(a)-(f)
Counterclaims arising from the same transaction are compulsory. A transaction may comprehend a series of many occurrences depending not so much on the
immediateness of their connection as upon their logical relationship. Failure to file bars you from ever bringing that claim.
Other tests:
Same issues of fact and law
Would res judicata bar subsequent suit?
Will same evidence support or refute?
Is there any logical relation?
D.
Cross-Claims, Rule 13(g) and (h)
A person may file against a co-party if the claims comes from the same transaction or from the same property that is the subject matter of the dispute. Additional
Parties are subject to Rule 19 and 20.
A plaintiff can’t do this to a co-plaintiff.
The case regarding the Memphis city hall: Rules 13 and 14 should be construed broadly. If the case is complicated, the judge can separate according Rule
42(b).
E.
Parties Who May Sue and Be Sued, Rule 17
Ellis Canning v. Int’l Harvester, the insurance claim receiver sued, but it was questioned because he had received payment already. You have to sue in own name. Courts
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should not dismiss for lack of party interest until relevant party has had
opportunity to join.
Requirements:
Capacity — ability to enforce rights or to be sued by others
Real Party in Interest
Standing: injury, cause, redressability
F.
Permissive Joinder—Traditional
Ryder v. Jefferson Hotel, the couple got kicked out. There needs to be an injured,
united interest.
G.
Permissive Joinder of Parties—Rule 20 (also see 21 and 42(a).)
Basically, if it is the same transaction, you can join parties. Rule 21 provides that you cannot dismiss action for misjoinder. The court simply can sever parties. Trials can be consolidated or separated, 42(a).
Tanbro Fabrics Corp v. Beaunit Mills, the cloth passed hands. It was the same transaction or series of transactions or occurrences. The rule isn’t that strict.
H.
Mandatory Joinder of Parties—Traditional Concept
A necessary party is must be joined if you want relief from them. However, you can go forward without them. An indispensable party must be joined or else the proceeding cannot go forward because they would be prejudiced.
I.
Required Joinder Under rule 19
A person who is subject to service of process and whose joinder will not deprive the court of SMJ must be joined as party if
Court cannot accord complete relief among existing parties without person
The proceeding would impair or impede persons ability to protect a claim or leave an existing party open to risk of double, multiple obligations.
However, the court cannot join them if they object to venue.
When person who should be joined cannot be joined, the court will have to decide whether to go forward with the proceeding. Factors:
Extent to which a judgment might prejudice that person or existing parties
Extent to which any prejudice could be lessened or avoided by provisions in judgment, shaping relief, or other measures
Whether judgment in person’s absence would be adequate
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Whether plaintiff would have adequate remedy if action were dismissed for nonjoinder.
When filing, the party must state name of people who should be joined, but are not, and the reason for not joining.
J.
Impleader, Rule 14
A defendant may implead, acting as a third-party plaintiff, a party who may be liable for all or part of the claim against it. There is a time limit where it can be done freely, otherwise, court’s permission required. In considering whether to allow late impleader:
Whether delay was deliberate or derelict
Whether impleading would delay or complicate the trial
Whether impleading would prejudice third-party defendant
Whether there is a claim upon which relief may be granted
K.
Interpleader, Rule 22 and/or Secs. 1335, 1397, 2361
Common law requirements:
Same thing, debt, or duty claimed
All adverse titles or claims from same source
Person seeking relief may not have interest
Clean hands
The Interpleader Act was then passed in response to the Dunlevy mess where the life insurance company got bilked from being exposed to double liability.
Statutory Interpleader: (stakeholder deposits money, can deny debt, court can restrain actions in other courts.)
Nationwide service
Minimal diversity
$500 controversy
Rule Interpleader: Allows people who may be exposed to double or triple liability to come in. Stakeholder can also make a counterclaim when they’re being sued. Rule 22 is still subject to service ,amount in controversy, complete diversity requirements.
Person faced with lots of suits cannot necessarily interplead. The claims don’t have to be the exact same. The same pot, double or multiple liability good enough. Claims don’t have to be liquid.
Interpleader cannot be used to go beyond the specific claim.
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L.
Intervention
By right: Court must permit anyone who is allowed by statute or claims interest relating to the property or transaction and whose rights/claims would be affected unless existing parties adequately represent that interest.
Permissive: Court can allow where there is conditional statutory right, has a claim or defense that share with the main action a common question of law or fact.
Government can intervene if party’s claim or defense is based on statute or executive order under jurisdiction or any regulation, etc. made under order or statute.
Court must consider whether intervention will delay or interfere with original party’s rights.
XI.
Class Actions
The Bill of Peace is the common law precedent for class action. Class Action was introduced in 1938 and has been expanding since.
Advantages: Consolidate claims otherwise not large enough to pursue, Judicial efficiency,
Potential of conflicting judgments, Levels the playing field
Disadvantages: Inflate product prices, Very complicated, Could prevent plaintiffs from having their special day in court.
Alternatives: Joinder or separate suits.
A.
Rule 23
1.
Prerequisites
Numerosity
Commonality
Typicality
Adequacy of representation
2.
Types of Class Action
Prejudice Class Actions—individual suits would cause prejudice.
Absentees may not opt out.
Injunction and declaratory relief: Racial stuff, etc. (MOST
POPULAR)
Damage Class Action: Must have a question that predominates over individual questions, and class action must be superior to any other method.
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3.
Person Jurisdiction
The state courts can assert broad jurisdiction. However, there will be problems with what laws are to be applied.
XII.
Discovery
Discovery is a new development in law. It helps preserve information not available at trial time. It ascertains and isolates the issues in controversy. It helps avoid trial by ambush.
Discovery has become broader and generally more automatic and required. Rules 26-37 encompass discovery.
A.
Rule 26: Duty to Disclose; General Provisions Regarding Discovery
1.
26(a): Required Disclosures
Party must provide to other parties information about witnesses and documents that it may use to support its claims or defenses, unless the use would be solely for impeachment. (Cummings v. GM, the car company did not disclose test results that could have been vaguely relevant. This was okay because it had no plan on using the information.)
2.
26(b): Discovery Scope and Limits
Unless limited by court order, parties may discover non-privileged (Upjohn v.
United States, the communications were made in contemplation of legal services, content related to legal services, information givers were employees, communication made in confidence, etc.) (claim of privilege must be made and items to be withheld described so that you can assess validity of privilege) matter that is relevant to a claim or defense. Court for good cause may allowed discovery of matter relevant to the subject of the action.
ESI that is not reasonably accessible can be exempt (backup tapes,
damaged). Court on motion or on own can limit discovery if discovery is duplicative or could be obtained elsewhere or burden outweighs benefit.
Parties cannot ordinarily obtain documents and tangible things prepared in
anticipation of litigation (Kelly v. Nationwide Mutual Insurance, you can discover normal business records, but not the stuff that was prepared in anticipation of trial.) unless they are otherwise discoverable or party shows substantial need and undue hardship. Court must protect mental
impressions and conclusions, etc. of lawyer. This is called the work-
product doctrine. Courts want to protect stuff that can be got in other ways. (Hickman v. Taylor, the plaintiff tried to discover the interviews the defendant lawyer had taken. Plaintiff could have interviewed people, etc.
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3.
26(b)(4): Experts
Expert witness: They may be deposed. Communications with attorney are protected unless it deals with pay, data provided, or assumptions provided.
Experts who help only to prepare for trial generally not subject to discovery.
Party requesting discovery pays the expert witness for time. (Krisa v. Equitable
Life Assurance, person wanted discovery on expert witness. Court limited to stuff that wasn’t work-product.)
4.
26(c): Protective Orders
A party from whom discovery is sought may move for a protective order.
The court for good cause may issue an order to protect a party or person from annoyance, embarrassment, oppression, burden, expense, etc. The court can forbid, specify terms, prescribe a method, forbid certain matters, designate who may be present, require confidentiality, etc. (Marrese v.
American Academy of Orthopaedic Surgeons, the Academy wanted protection for its internal deliberations, which was part of what made it special. Judge issued a protective order, but could have exercised other options.) (Seattle Times v.
Rhinehart, the court made discovered information confidential. The court had broad latitude.)
5.
26(d): Timing and Sequence of Discovery
Parties must wait until they have conferred as required by 26(f) before seeking discovery from any source. Unless otherwise ordered, methods may be used in any sequence and discovery by one party does not require any other party to delay its discovery.
6.
26(e) Supplementing Disclosures and Responses
Person who has made disclosure or responded to an interrogatory must supplement or correct in a timely manner if later learned it is incomplete or incorrect or do as ordered by court. Experts are included.
7.
26(f): Conference of the Parties; Planning Discovery
This rule harmonized with Rule 16. Parties must confer as soon as practicable—at least 21 days before a scheduling conference is to be held or a scheduling order is due under 16(b).(Earlier of 120 days after any defendant has been served, or 90 days after any defendant has appeared.)
B.
Rule 27: Depositions to Perpetuate Testimony
In Re Petition of Sheila Roberts Ford, the court refused to allow a deposition prior to filing action because there was no legitimate reason to believe why testimony would not be available later if deposition did not occur immediately. However, without discovery, the woman could not know enough to file the complaint.
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C.
Rule 28: Persons Before Whom Depositions May be Taken
An officer is someone appointed by court or designated by the parties. Relatives, employees, person’s attorney, relative of attorney, employee of attorney, or any party financially interested may not be an officer.
D.
Rule 29: Stipulations About Discovery Procedure
Parties generally may make stipulations. However, a stipulation extending time must have court approval if it would interfere with time set for completing discovery, hearing a motion, or trial.
E.
Rule 30: Depositions by Oral Examination
Depositions are generally limited to 1 day of 7 hours and there is a presumptive
limit of 10 depositions for each party. Parties may take depositions without leave of court unless parties have not stipulated to deposition and deposition would push over limit of 10, deponent has already been deposed in case, or party seeks to take deposition before 26(d) schedule (unless party is expected to leave U.S. and be unavailable or deponent is in prison.) Parties must give notice to other parties.
Parties may make objections at time of examination. Objections must be noted on record, but examination proceeds. Lawyer may instruct a deponent not to answer only when necessary to preserve a privilege, enforce a court-ordered
limitation, or to present a Rule 30(d)(3) motion. Under that, a party can demand that deposition be put on hold while the court makes an order. Sanctions can be given when there are jerks. Witness reviews transcript. Party that fails to attend a deposition or serve a subpoena on non-party who is no-show will pay expenses.
(Polycast Tech. Corp v. Uniroyal, the court refused to bar the taking of a deposition.)
F.
Rule 31: Depositions by Written Questions
Parties may come up with questions beforehand and then have the officer read questions to witness. If deposing a corporation, the corporation should provide all people necessary to answer the questions.
G.
Rule 32 Using Depositions in Court Proceedings
You may use a deposition against a party if party was present, represented, or reasonably noticed of deposition, it used under Evidence, and use is allowed in Rule
32. Rule 32 provides for impeachment, unavailable witness (witness is dead, coincidentally 100 miles away, age/imprisonment, subpoena failed, exceptional circumstances), irregularities in taking, adverse party is allowed to demand context of anything from deposition be allowed, deposition from other action on related subject, etc. Objections to deposition content not waived unless error could
have been corrected at time deposition was given. (Battle v. Memorial Hospital, the witness was not allowed to testify because plaintiff developed strategies on belief that he would not be available. Court ruled that deposition may be used—100 miles/opportunity to depose.)
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H.
Rule 33: Interrogatories to Parties
Parties are generally limited to 25 interrogatories. Contention interrogatories allowed, but can be delayed. Material allowed under 26. Party must respond within
30 days. Each interrogatory must be answered to extent not objected to. Person who answers must sign. If answer can be determined by examining business records, the party may respond by handing over business records. (In Re Auction Houses
Antitrust Litigation, the auction house had not exhausted options to get information for deposition.) (In Re Convergent Technologies, Contention interrogatories are valid unless made for improper purpose or unreasonably/unduly burdensome given needs of case, prior discovery, amount in controversy, importance of issues at stake.)
I.
J.
Rule 34: Producing Documents, ESI, and Tangible Things, or Entering onto Land, etc.
Parties can make requests. They must be detailed. ESI must be presented in manner in which it is usually kept or in form that is reasonably useful.
Rule 35: Physical and Mental Examinations
There must be a court order, which requires good cause to compel examination. The court should weigh the pain/intrusiveness against the usefulness of information.
Parties can stipulate on this matter. (Schilagenhauf v. Holder, the court ordered 9 examinations, but the U.S. reduced to those in question, also allowing that any party to action might need to be examined.
K.
Rule 36 Requests for Admission
Person can be asked to admit to something for pending action only. Failure to respond is an admission.
L.
Rule 37 Failure to Make Disclosures or to Cooperate in Discovery;
Sanctions
Basically, failure to cooperate on disclosure and respond to motions to compel can result in serious sanctions—payment of expenses, invalidation of action, etc. Failure
to admit something that you probably should have will result in you paying what it took to establish. Failure to attend deposition results in expenses.
XIII.
Summary Judgment and Dismissal
A.
Rule 56
A person may move for summary judgment or partial summary judgment. The court shall grant judgment if there is no genuine dispute as to any material fact and movement is entitled to judgment as a matter of law. A party may support assertion by citing to material (or lack thereof) in record. The court may consider all materials
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on the record. Court may wait until party can get facts it needs. The court can move to do summary judgment on its own, with proper notice.
Lundeen v. Cordner: Trial not allowable merely to cross-examine a witness. You must show other facts in dispute.
Adicks v. Kress, The court refused summary judgment because restaurant had not met burden of showing there was no material fact at issue.
A party cannot merely defend against summary judgment by re-pleading the pleadings.
B.
Burden of Establishing Non-Existence of Genuine Issue
Initial burden of production (which can shift to non-moving party if moving party satisfies)
Burden of Persuasion
If the moving party is the plaintiff, the party must support motion with credible evidence that would entitle it to a directed verdict.
If the moving party is the defendant, the burden of evidence can be o Affirmative evidence negating the claim o A demonstration that non-moving party’s evidence is insufficient.
The inference favorable to non-moving party is on issues where there is genuine dispute. There must be more than just possible doubt. Where a rational person could not find for nonmoving party, there is no issue. (Car chase person sues cops)
There must be more than just enough for a jury to say yes/no, there must be a debate over whether evidence is sufficient.
C.
Dismissal of Actions, Rule 41
Plaintiff may voluntarily dismiss a case before filing of an answer or motion for summary judgment or may dismiss when it is stipulated. The dismissal is without prejudice. However, the second time operates as an adjudication on the merits. The court may order it dismissed, unless a counterclaim has been filed and cannot survive in absence of suit.
Involuntary dismissal may occur if plaintiff fails to prosecute or misbehaves and defendant makes the motion. Generally, this is an adjudication of merits. The standard of review is abuse of discretion.
D.
Default Judgment, Rule 55
When the person against whom the case is brought fails to answer, with advance notice, the court may enter default judgment. Rule 60 can set aside a default judgment for excusable neglect, newly discovered evidence, fraud, etc.
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XIV.
Trial
A.
Trial by Jury
Problems with juries:
Are they representative if professionals kicked off?
Some cases are complicated.
Jury instructions can be ridiculous.
Memories are bad.
The burden on individual jurors is heavy.
7 th Amendment: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
Rule 42(b): The court may order separate trials for separate issues, claims, crossclaims, counterclaims, etc. When ordering a separate trial, the court must preserve any federal right to a jury trial.
Rule 57: Declaratory judgments possible and not precluded by other adequate remedies.
§§ 2201 and 2202: Declaratory judgments created. By implication, declaratory judgments are matters of law, not equity.
Juxtaposition of the Parties Test: Flip the parties either way. If the plaintiff/defendant has a right to a jury, it must be tried by a jury, regardless of who won the race to the courthouse.
1.
Beacon Theatres
Fox beat Beacon to the courthouse and sued for declaratory relief. The court chose to infer an injunctive claim—a claim that falls under equity. The ultimate result was that the court wanted to deny a trial to Beacon who wanted to sue over monopoly. This would have happened through collateral estoppel—the equitable judgment being handed down first. Declaratory relief falls under statute and thus is a matter of law. Courts can/should separate trials, maintain the right to jury. Thus, Beacon is entitled to a jury trial and entitled to have his claim go first so as not to limit him. The equitable claim should go second—such claims are designed to cover holes in the law and are supposed to be secondary anyhow.
Dairy Queen v. Wood, U.S. 1962
Matters of law should be treated as matters of law even if a clever lawyer words it to sound as if it is equitable.
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2.
Determining Between Law and Equity
Ross v. Bernhard, U.S. 1970: The stockholders had authority to sue because of an equitable principle, but were making a relief claim that was legal in nature.
The heart of the matter is what relief is being sought. Particularly where there is only one action now, and thus process to get there is irrelevant.
Official Test:
What is the pre-merger custom? (Particularly around 1791, also Tull)
What is the remedy sought? MOST IMPORTANT (Tull)
What are the practical abilities and limitations of juries regarding this?
(One side argues that it is consistent with Constitution because complexity was a problem then, that things are complex, that it is a violation of due process to face a jury of idiots. Others cite Rule 42 saying that complicated things can be chopped up.) (Overall, not important.)
Curtis v. Loether, U.S. 1974: The 7 th creates causes under statutes if it creates legal rights and remedies enforceable in an action for damages.
Basic Test:
Congress provides for enforcement of statutory rights
There is a statutory right in question
You sue in ordinary civil action
In a district court
There is no functional justification for denying you
And if your claim involves rights and remedies of the sort typically enforced in an action at law.
3.
Special Tribunals
Atlas held that the government does not have to give you a jury if you are in an administrative forum unless there is some way you can grab onto some law that will take you into a normal court. Nordberg holds that Atlas applies only to issues of “public rights” which have been created via statute and where the government is involved in its sovereign capacity. Katchen holds that bankruptcy court is inherently equitable.
4.
Applying the Tull 2-Part Test
Chauffeurs: The union, as an agent, made some bad deals or threw its people under the bus. The matter could have been equitable or legal depending on how you viewed it—is it like a 1791 trust action, or is it like a 1791 breach action? They seek damages, not injunctions = legal. The damages are not
Restitutionary = legal.
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5.
Right to Jury in State Courts
Some states do jury in equity and some follow the federal pattern. Money is a good way to indicate a jury. The 7 th is ultimately only applicable to the
Federal courts.
6.
Province of Judge and Jury
Markman v. Westview Instruments: The judge has responsibility to determine meaning of words in a patent using the written descriptions, the process, dictionaries, and even experts. Judges are better suited for technical terms and at being consistent.
7.
Tactical Considerations in Choosing between Judge and Jury
Judge can move faster, but that’s good only if plaintiff or defendant wants to move quickly. Plaintiffs win more often in front of judges. However, juries give a bigger award.
8.
Demand and Waiver of Trial by Jury
Rule 38: Right to jury should be preserved. Any party can make written demand no later than 14 days after last pleading directed to the issue is served. Party may specify issues, otherwise, it is considered to have demanded for all eligible issues. Other party can demand all issues within 14 days. A party waives unless demand is properly served and filed. Proper demand may be withdrawn.
Rule 39: The trial where there is a demand must have a jury unless there are stipulations, the court says they don’t qualify. Court can order jury trial on motion if jury trial could have been demanded. Court can employ an advisory jury.
Some courts rule that changing the complaint renews the deadline and make demanding jury possible. However, other courts rule that an equitable claims forever waives.
39(b) motions rarely granted. In considering:
Whether issues are best for jury
Whether court’s and adverse party’s schedule can bear it
Prejudice to other party
Length of delay
Reason for tardy request for jury
9.
Selection and Composition
Rule 48: No fewer than 6 and no more than 12 jurors. Jurors may also be polled to check for consent in verdict before they are dismissed.
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The venire is assembled. They then do voir dire. Courts cannot control list just because people probably will be excused. (Thiel v. Southern Pacific)
Challenging Juror: Peremptory (3 per side federal courts, 2-6 in state. Also for cause—partiality shown. In Flowers, the old lady showed that she would vote one way.
However, in Edmonson v. Leesville Concrete, the U.S. holds that racism in peremptory challenges is not allowable, but must be established through a pattern of strikes. However, in J.E.B., it is held that you can remove people based on race/gender if it is a peer issue and not because of those characteristics.
Conducting voir dire: 47(a) leaves to court’s dis cretion.
Someone pushes the case onto the trial calendar.
Burden of production applies to anyone with a claim or affirmative defense.
There has to be enough for a reasonable jury to be able to move that way.
Burden of Persuasion.
Standards of Persuasion: Preponderance, clear and convincing, beyond reasonable dout.
Burden Shift
Tactical Timing of Opening Statement
Admissible Evidence can be brought in if nobody objects.
Witness order important, but not always easy to arrange.
Judge can question witness sometimes.
Juror can question witness sometimes.
XV.
JNOV
Rule 50: If party has been fully heard on issue and judges finds that reasonable jury would not have legally sufficient evidentiary support to find for party on issue, judge may resolve issue against party and grant motion for judgment as a matter of law. This motion may be made any time before jury submission, but after evidence fully heard. If the court does not grant and it goes to the jury, it has gone to jury subject to court’s later deciding the matter.
Within 28 days of entry of judgment, the party may renew the motion and may include an
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alternative or joint request for new trial. Court can allow judgment on verdict, order new trial, direct entry of judgment as a matter of law.
Rule 50(c): If court grants JNOV, it must also conditionally rule on any motion for new trial should judgment be vacated or reversed. The court must state grounds. Then, if judgment is reversed and new trial conditionally granted, there is a new trial. If new trial denied conditionally, appellee may assert err in denial. If judgment reversed, court must do what appellate court orders.
50(c) operates on the premise that the appellate course will reverse the JNOV. If a new trial is conditionally granted, the losing party will have opportunity to attack the JNOV and also attack the new trial. If the new trial is conditionally denied, the winning party will defend the
JNOV and assert why there should be a new trial in the alternative.
50(e): Should court deny JNOV and the loser appeal, the appellee can assert grounds entitling it to a new trial should appellate court grant JNOV. Appellate court can grant new trial or order lower to court to determine whether there should be new trial.
If a party does not submit requests properly for new trial, they may be screwed later.
A.
Standard for JNOV (Judgment as a Matter of Law)
Denman v. Spain: Jury cannot give verdicts based on mere possibilities. (Car accident)
Rogers v. Missouri Pacific RR, The judicial appraisal is limited to asking whether within reason, the conclusion may be drawn that plaintiff’s theory is correct.
Reeves v. Sanderson Plumbing: In considering JNOV, court should consider all evidence in record, all reasonable inference in favor of non-mover. The judge disregards all evidence the jury is not required to believe because of conclusions they might make regarding credibility, weighing evidence, and drawing inferences.
XVI.
Jury Instructions
Instructions can be given before or after final arguments, though parties must know before arguments.
Rule 51: Party may propose jury instructions at close of evidence. After close, party may propose instructions on issues not anticipated. Court must inform parties of instructions ahead of time. A party may object and must back up that objection. Objection timely if comes when court gives opportunity or as soon possible after learning. A party may assign as error an instruction error or failure to give instruction or even object to plain error.
Kennedy v. S. Cal. Edison: Although party’s instruction improper, the case law behind it was valid and should not have been ignored by the court.
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Judge cannot distort or add to evidence, though he can comment and dissect.
SEC v. Koenig: Jury was given lots of leeway. Though not traditional, it was not particularly improper.
XVII.
Verdicts
Rule 49: Jurors can do general or special verdicts. If the answers to a special verdict are consistent all around, it must be approved. When the answers are consistent with each other but one or more is inconsistent with general verdict, court can approve, direct further considerations, or order new trial. If answers inconsistent with each other and not consistent with general verdict, judgment must not be entered. In Nollenberger, there seemed to be a small error in the jury math, so the judge fixed it, saying that the interrogatories, consistent with each other, take precedence over the general verdict.
Rule 52: The judge must show his math. This helps the appellate court understand, make definite what is determined by res judicata, and make the judge careful.
A.
Incoherent Verdict
Judge can mold verdict if the jury’s purpose was clear.
Duk v. MGM holds that a judge can send the jury back to work it out if the jury is still there. Otherwise, the judge might try to find surplusage and cut out the crap to avoid a new trial. The court can’t order new trial if there is a valid verdict. The court if compelled to find ways to harmonize the verdict.
B.
Jury Misconduct
Mansfield’s Rule is that a juror cannot later come back and impeach their verdict, whereas the Iowa rule allows the accepting of affidavits for bad conduct. There can be extrinsic and intrinsic jury misconduct. Extrinsic can be admissible. Quotient verdicts are banned.
XVIII.
New Trial
Rule 59: Court may on motion grant a new trial if there’s a reason that has happened before.
Judge can reopen trial and take additional testimony and make new judgment. Motions for new trial no later than 28 days. Opposing party has 14 days to oppose affidavits. Court may move on its own within 28 days and can grant new trial for reasons not argued as long as there is notice.
An error that would have no significant effect is not a reason for a new trial.
Litigant might stand or fall on new trial after deciding appeal is too great. The grant of a new trial cannot be appealed. The very question of what constitutes reversible error on appeal is
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often affected by how the judge ruled on a new trial motion. Trial judge can grant new trial without relying on precise grounds.
However, Minnesota outlines reasons:
Irregularity in court proceedings
Misconduct of jury or prevailing party
Accident or surprise not preventable
Newly discovered material evidence in spite of due diligence
Excessive or insufficient damages appearing to have been given under influence of passion or prejudice
Errors of law objected to at time
Verdict not justified by evidence.
Standard is abuse of discretion.
A.
Defying the Verdict
Where there is substantial evidence in support of plaintiff’s case, the judge may not direct a verdict against him, even if he does not like weight of evidence. However, if it is clear the verdict is against weight or is based on bad evidence, the judge can do something. The judge does not judge credibility, but judges semblance of credibility.
B.
Conditional or Partial New Trials
Remittitur: New trial unless plaintiff accepts less.
Additur (Unconstitutional, but allowable in some states): New trial unless defendant agrees to higher damages. (Fisch)
Powers is Wisconsin annunciating that remittitur should be at what reasonable jury could find.
Doutre v. Niec: Only damages can be tried separately. You cannot try liability without trying damages.
C.
Timeliness
There must be a post-verdict motion.
Rule 6(b) does not allow time extension for new trial or JNOV or changing judgment.
XIX.
Setting Aside Judgment
Rule 60: Allows for relief when there is a correction needed because of clerical mistake. Also relief possible for mistake/excusable neglect, newly discovered evidence despite due
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diligence, fraud, void judgment, judgment based on void judgment, any other reason. Must be made within a reasonable time or year for mistake, fraud, new evidence. Part (d) also allows independent actions, and fraud on the court.
A.
Mistake and Excusable Neglect
Danger of prejudice to opposing party
Length of delay and impact on judicial proceedings
Reasons for delay
Whether moving party acted in good faith
B.
Newly Discovered Evidence; Fraud
Would change result
Discovered since trial
Could not have been discovered prior through due diligence
Material
Not merely cumulative or impeaching
However, deliberate fraud demands judgment be set aside. Perjury can qualify for setting aside even if not weighed.
C.
Independent Action to Set Aside
Reserved for those cases in which the injustice is bad enough to demand a departure from res judicata.
XX.
Methods of Securing Judgment
Attachment: Officer takes property to prevent person from disposing. In NY, this is appropriate if defendant in non-domicillary, when defendant is within state but diligent efforts to serve have failed, defendant’s conduct indicates intent to defraud.
A.
Preliminary Injunctions and Restraining Orders
Rule 65 authorizes preliminary injunctions with proper notice and hearing:
Plaintiff establishes probable success
Likely to suffer irreparable harm in absence of injunction
Balance of equity tips in favor
Injunction in the public interest.
Restraining orders are temporary and can be issued for immediate and irreparable injury, etc. and attorney details notice efforts or reasons why it should not be given.
Rule 66 provides for receivers to deal with property in dispute.
Civil arrest is possible
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Notice of Pendency can be given to potential buyers of property is dispute.
XXI.
Appellate Review
§1 291: The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States.
§1292 : Courts of appeals shall have jurisdiction of appeals from interlocutory orders granting, continuing, modifying, refusing, or dissolving injunctions; interlocutory orders appointing or continuing receivers. When the judge, in making a civil action order not otherwise appealable under this section, decides that the order involves a controlling
question of law as to which there is substantial ground for difference of opinion, such that an immediate appeal would materially advance the ultimate termination of the
litigation he shall say so in the order. The court of appeals may thereupon in its discretion permit an appeal to be taken from such an order if application is made within ten days after entry of the order.
Liberty Mutual: Under 54b, if the court has not ruled on all claims, the case is not closed and cannot be appealed.
Jetco Electronic v. Gardiner: Be practical on dealing with finality.
Atlantic City: Appellate court sees no benefit in holding appeal now because discovery as called for would be large and burdensome. Furthermore, defendant does not lose the desired defense because it can be appealed in adverse judgment.
Yamaha v. Calhoun: The judgment on appeal is limited to the question certified by the district court.
A.
Time to Appeal
Rule 58: Judgment is entered.
Rule 3, App: How Take Appeal: file with district court clerk
Rule 4, App: File within 30 days of judgment entry, 60 if against US. If you file after announcement but before entry, same as if filed after entry. District court may extend time if requested within the 30 days and party shows excusable neglect or good cause.
Rule 5, App: When permission required, party files a petition within time specified.
Pincay v. Andrews: Factors to extend: 1) danger of prejudice to non-moving party, length of delay and impact on proceedings, reasons for delay, good faith.
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XXII.
Ascertaining Applicable Law
Swift v. Tyson declared that federal courts need only follow the statutory laws of states when sitting in diversity. Otherwise, the federal courts could follow their own common law.
Erie: Guy got hit on railroad. Court said there is no federal common law. They fear forum shopping and inequitable outcomes.
York: Emphasizes outcome test.
Byrd: North Caroline guy must be certified or not certified as Worker Comp. Federal jury privilege overrides even though it might substantively be different, but it is not even that. A procedural issue can be bound up in substantive policy.
Is the issue addressed by a federal rule? (Assuming that a federal rule goes over state)
If yes: Is it within the scope of the Rule Enabling Act?
If yes: Is the rule constitutional?
If yes: apply federal rule
If no: don't apply
If no: don't apply
If no: Assume that state law applies, but apply federal law if the outcome is not determinative (aka procedural) according to Hanna-York Corollary (forum shopping, avoidance of inequitable administration of
laws—the 2 aims of Erie).
If in favor of state law: Byrd Test (override counter federal or essential character federal system
If yes: Apply Federal law
If no: apply State Law
If no (aka procedural): Do not apply state law
Potential Constitutional Issues: 4 Const Issues:
1.
Separation of powers for states
2.
Equal Protection
3.
Privileges and Immunities Clause--citizens and non-citizens of states.
4.
Separation of powers between courts and legislatures.
Walker v. Armco Steel Corp—Rule 3 does not interfere with tolling of a state statute of limitations. Thus, you move to Hanna-York, and substantive definitely wins.
Stewart v. Rioch—Does 1404 cover the forum selection clause dispute? Affirmative argument wins. (Could not be reconciled.) It does not seem like there is a way for state to win on
Hanna-York or Byrd.
Gasperini—There is not a conflict on the remittitur instructions if you stretch hard. (Federal remittitur is possible, federal appellate judges can judge abuse of discretion. Furthermore, if statutes of limitations are substantive, so are inevitably larger rewards.
Shady Grove—We do not wade into Erie unless the rule is inapplicable or invalid. Rule 23 covers class action. We assume that federal rules apply unless invalid by REA or
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Constitution. Erie is not relevant to the inequitable results that may follow because we have not yet reached there.
Federal courts apply the conflicts of law rules of the state in which it sits.
The transferor’s rules apply.
XXIII.
Preclusion
A party gets one chance to litigate claims and factual issues. They are entitled to at least one full and fair chance to litigate. Preclusion may be waived.
A.
Res Judicata/Claim & Defense Preclusion
Valid
Final judgment
On merits
Precludes further litigation by the parties or those in privity with them
Of the same claim and all other claims, defenses, and issues that could have been asserted as part of the same cause of action.
Rush v. Maple Heights—Motorcycle accident. Lady who sued over motorcycle precluded from raising the injury claims later.
Matthews v. NY Racing Association—Guy sued over same claim trying to hit different parties piecemeal. Court could not keep allowing it.
Jones v. Morris Plan Bank—Bank sued on a contract that was affected by an automatic acceleration clause (as opposed to optional). They were precluded from suing again on that contract.
Mitchell v. Federal Intermediate Credit Bank—Farmer barred from making a claim that should have been a counterclaim that he had used as a defense.
B.
Collateral Estoppel—Issue Preclusion
Valid
Final judgment
On merits
Precludes litigation by parties or those in privity
Same issue: (U.S. v. Moser—the IRS ruled on whether the guy was taxable.
Each individual year is a new claim, but a ruling about status stays the same unless other circumstances change—like the law itself.
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Actually litigated (Cromwell v. County—figure out which one was litigated. If impossible, presume you don’t know. If multiple, only on ground it was decided. If multiple and all, they’re all)
Determined by court
And essential to the judgment/necessarily decided: The judgment, not everything the jury said or decided about facts. (obitur dicta) (Rios v. Davis— jury said guy was negligent even though that was a separate case from his own claim.)
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