Civil Procedure II – Smith
Spring 2012
TABLE OF CONTENTS
Chapter 1 – Preparing for Trial: Discovery .................................................................................. 3
Section 1.1 – The Scope of Discovery .......................................................................................................... 3
Section 1.2 – The Mechanics of Discovery................................................................................................. 4
Section 1.2.1 – Mandatory Disclosure and Supplementation ....................................................................... 4
Section 1.2.2 – Oral Depositions ............................................................................................................................... 5
Section 1.2.3 – Depositions Upon Written Questions ...................................................................................... 6
Section 1.2.4 – Interrogatories .................................................................................................................................. 6
Section 1.2.5 – Production of Property .................................................................................................................. 7
Section 1.2.6 – Physical and Mental Examinations ........................................................................................... 8
Section 1.2.7 – Requests to Admit............................................................................................................................ 9
Section 1.3 – Special Problems in Discovery............................................................................................ 9
Section 1.3.1 – Work Product .................................................................................................................................... 9
Section 1.3.2 – Privilege ............................................................................................................................................. 10
Section 1.3.3 – Experts................................................................................................................................................ 11
Chapter 2 – Ascertaining the Applicable Law ............................................................................ 12
Section 2.1 – The Erie Doctrine: State Law in Federal Courts ......................................................... 12
Section 2.2 – The Problem With Ascertaining State Law .................................................................. 15
Section 2.2.1 – Determining Which State Law Governs ................................................................................ 15
Section 2.2.2 – Ascertaining State Law ................................................................................................................ 15
Chapter 3 – Adjudication Without a Completed Trial ............................................................ 16
Section 3.1 – Summary Judgment ............................................................................................................. 16
Section 3.2 – Judgment as a Matter of Law (Formerly Directed Verdict) ................................... 19
Section 3.3 – After the Verdict .................................................................................................................... 20
Section 3.3.1 – Renewed Judgment as a Matter of Law (Formerly J.N.O.V) .......................................... 20
Section 3.3.2 – Motion for a New Trial (Verdict is Against the Weight of the Evidence) ................ 21
Section 3.4 – Voluntary Dismissal............................................................................................................. 21
Section 3.5 – Dismissal for Failure to Prosecute ................................................................................. 22
Section 3.6 – Default Judgment .................................................................................................................. 22
Chapter 4 – Trial .................................................................................................................................. 23
Section 4.1 – Introduction to Trial............................................................................................................ 23
Section 4.2 – The Right to a Trial by Jury ............................................................................................... 24
Chapter 5 – The Effect of a Judgment............................................................................................ 26
Section 5.1 – Claim and Defense Preclusion.......................................................................................... 26
Section 5.2 – Issue Preclusion .................................................................................................................... 29
Section 5.2.1 – When the Parties are the Same ................................................................................................ 29
Section 5.2.2 – When the Parties are Different ................................................................................................. 31
Chapter 6 – Post-Trial Correction of Errors ............................................................................... 32
Section 6.1 – Grounds for Seeking Relief from District Courts....................................................... 32
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Section 6.2 – Appellate Review and the Final Decision Rule........................................................... 32
Section 6.3 – Standards of Appellate Review ........................................................................................ 33
Appendix A – Exam Checklist .......................................................................................................... 35
Appendix B – List of Rules and Statutes ...................................................................................... 37
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CHAPTER 1 – PREPARING FOR TRIAL: DISCOVERY
SECTION 1.1 – THE SCOPE OF DISCOVERY
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Discovery is the process of the compelled exchange of information between parties to a law suit.
The scope of discovery describes what issues the parties may inquire about through the discovery
process.
o Under Rule 26(b)(1), discovery is limited to any nonprivileged matter that is relevant to any
part’s claim or defense. This can be expanded, if necessary, to include matters relevant to the
subject matter involved in the action.
o Discovery is not limited to admissible evidence. Information is discoverable if it is
reasonably calculated to lead to the discovery of admissible evidence.
The court can restrict access to relevant information if necessary.
o Reasons to limit discovery include, but are not limited to:
 The information sought is cumulative.
 The information sought is of marginal relevance.
 The information sought is obtainable in another way.
 Discovery would be unduly intrusive on the privacy of a party.
 The information is sought for an improper purpose, such as harassment of an
opposing party.
 The requesting party has had ample opportunity to obtain the information sought.
 The burden of production outweighs the likely value of the information. In
considering this factor, courts should look at:
 The needs of the case,
 The amount in controversy,
 The relative resources of the parties,
 The important of the issue,
 The probability that the proposed discovery will resolve the issue.
o Parties should confer before either moving to compel discovery or moving for a protective
order.
 The party requesting the protective order must show good cause (i.e. that justice
requires protection from discovery). There must be a clearly defined and very
serious injury.
 The judge then balances the interests and burdens of both parties.
o There are other creative ways to avoid a protective order:
 The judge can examine the documents in camera.
 The documents can be redacted, after which the judge can determine if they are
useful.
 The judge can arrange the order of discovery in such a way to make the nonsensitive discovery occur first to see if the relevant issues can be established
without completing the sensitive discovery.
Financial information (i.e. a party’s ability to pay) is generally not discoverable. There are two
exceptions:
o If a party is being sued for punitive damages, financial information might be discoverable.
o Insurance information is discoverable; in fact, it is required under mandatory disclosure.
Rule 37(1)(a) requires the party requesting discovery to certify that he has conferred with the
objecting party in an effort to resolve the discovery dispute without involving the court.
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There are both private and public purposes of discovery:
o Privately, discovery is used:
 To preserve of relevant information that may not be available at trial.
 To ascertain and isolate issues that are actually in controversy between the parties.
 To find out what testimony and other evidence is available on each side of the
disputed factual issues.
o Publically, discovery is used:
 To help promote transparency.
 To promote the work of private attorney generals.
Discovery orders are interlocutory, so they are hard to immediately appeal. Even so, it is not a good
idea to repeatedly appeal discovery orders because it might prejudice the judge against you at an
early stage of litigation.
List of cases:
o Kelly v. Nationwide
o Marrese v. American Academy
o Seattle Times v. Rhinehart
SECTION 1.2 – THE MECHANICS OF DISCOVERY
SECTION 1.2.1 – MANDATORY DISCLOSURE AND SUPPLEMENTATION
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Rule 26(a) requires parties to exchange basic information about the case without a request from
another party.
Initial disclosure must be made within fourteen days of the Rule 26(f) conference. There are no
exceptions.
Rule 26(a)(1) deals with initial disclosure at the outset of the case for parties in most federal cases.
There are some exempted cases listed in Rule 26(a)(1)(B).
The parties are required to initially disclosure four categories of information without a request from
the other side:
o The identity of individuals likely to have discoverable information – along with the subjects
of that information – that the disclosing party may use to support its claims or defenses.
o Copies or descriptions of documents (including electronically stored information) and things
in the possession, custody, or control of the disclosing party that the party may use to
support its claims or defenses.
o A computation of damages claimed, making available for inspection a copying the documents
and other materials on which the computation is based.
o Any insurance agreement under which an insurer may be liable to satisfy all or part of a
judgment in the action.
Rule 26(f) requires the parties to met and confer about initial disclosures and discovery and to file a
written report with the court outlining their discovery plan. Until this meeting takes place, the
parties are barred form taking discovery by other means.
If a party has any doubt as to whether he will use certain information at trial, it is best to disclose. If
he does not disclose but uses that information at trial, Rule 37(c)(1) will likely bar the party who
failed to disclose from using that information at trial.
The Rule does not require a party to disclose adverse evidence. This avoids placing counsel in the
position of having to review all known evidence, locate all documents that might support the other
party’s case, and hand them over without a request.
While Rule 26(a) does not expressly authorize a disclosing party to object to disclosure based on
privilege or the work product doctrine, the disclosing party may do so. However, the disclosing party
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has to disclose a description by category and location of the information. The disclosing party also
has to comply with the rules for claiming privilege or work product.
Under Rule 26(e), given the likelihood that more information will arise during discovery, any
information that is discovered later that would have been subject to initial disclosure must be
disclosed in a timely manner.
o Failure to supplement initial disclosure may result in sanctions or punishments under Rule
37(c)(1) unless the failure to disclose was substantially justified or is harmless.
o In addition to supplementation of initial discovery, the following must be supplemented
upon discovery of new information:
 Interrogatories
 Requests for production
 Requests for admission
o Depositions and physical and mental examinations do not need to be supplemented because
of the extremely high cost in doing so as well as the inconvenience.
List of cases:
o Cummings v. GM
SECTION 1.2.2 – ORAL DEPOSITIONS
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Rule 30 permits parties to depose both other parties and non-parties. A deposition is the
examination of a witness under oath.
Depositions are the most effective means of previewing the detailed testimony of witnesses.
Unlike with interrogatories, you can depose anyone, not just a party to the case.
Orders barring the taking of depositions altogether are unusual and disfavored. However, non-party
witnesses are subject to greater protection than parties from discovery.
The questions in a deposition must fall within the scope of discovery.
The deposing party sends a notice of the deposition to the deponent (the person being deposed) and
to all other parties.
If the deponent is not a party, a subpoena should also be sent to ensure the witness’s attendance.
Parties do not have to be subpoenaed because they are already before the court and subject to the
rules of discovery and to court orders enforcing them.
Depositions serve several purposes:
o They get witness testimony on the record. If the witness contradicts his story at trial, he can
be impeached with his deposition testimony.
o They allow deposing counsel to learn what the witness knows and to ask follow-up
questions to get the details.
o Depositions give opposing counsel the opportunity to look the witness in the eye and to form
a judgment about his credibility and about how he will likely perform as a witness at trial.
Counsel for all parties are entitled to attend the deposition, and usually do.
Unfortunately, depositions are very expensive because they require travel and paying for a team of
attorneys. They also take the most time. Additionally, in order to get the correct information, the
party has to know who to depose.
There is no judge to rule on objections raised during the deposition.
Rule 30(c)(2) provides that, when an attorney has an objection, the objection must be noted on the
record, but the witness must still answer.
o If the disputed deposition testimony is offered at trial, the judge can rule on the objections
when it is offered in evidence.
o A party must object during the deposition to preserve his right to object at trial.
An attorney can instruct his client not to answer only when:
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To preserve a privilege (including work product).
To enforce a limitation ordered by the court, or
To present a motion under Rule 30(d)(3), which authorizes a party to seek a protective
order from the court if the deposition is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or party.
Most objections are meant to protect against the use of evidence at trial, not against providing the
testimony per se.
Rule 32 governs when a deposition may be used in place of the actual witness’s testimony at trial:
o The witness is dead.
o The witness is far away (greater than 100 miles away).
o The witness is ill, infirmed, or imprisoned.
o The witness did not respond to the aubpoena.
List of cases:
o Polycast v. Uniroyal
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SECTION 1.2.3 – DEPOSITIONS UPON WRITTEN QUESTIONS
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Rule 31 permits parties to depose both parties and non-parties upon written questions.
Depositions can also be taken upon written questions, though this method is rarely used.
This type of deposition is much less expensive.
Like interrogatories, depositions upon written questions are good for straightforward information.
They are less limiting than interrogatories and can be used on even non-parties.
However, they are not as flexible as oral depositions.
The deposing side prepares a list of questions. After reviewing the questions, the other parties also
prepare their own questions. The questions are read to the deponent by a court reporter who then
records the answers.
These are used when the deponent is a confidential source. For example, in a case involving the
transmission of AIDS or HIV, the parties may need information from the person who gave HIV to
their client. However, the names of HIV and AIDS patients are confidential.
SECTION 1.2.4 – INTERROGATORIES
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Rule 33 permits parties to send interrogatories of twenty-five questions or fewer to other parties.
Interrogatories are questions sent by one party to the case to be answered by another.
Interrogatories may not be used to obtain information from nonparties.
An advantage to interrogatories is that they inexpensive to send. However, they can be expensive to
answer because it requires the answering party to pay an attorney for his time.
The answers are not spontaneous; they are written, most likely, by the responding party’s attorney
who will, of course, try to respond with as little information as possible.
In order to get the most precise information, the questions should be very specific and precise.
Interrogatories are best used to obtain objective factual information, such as the names of witnesses,
itemizations of damages, dates of relevant events, and the locations of known documents.
An interrogatory is not objectionable merely because it asks for an opinion or contention that relates
to fact or the application of law to fact. However, the court may order that the interrogatory be
answered at a later time.
Interrogatories can be more effective than depositions because the interrogatory requires the party
to furnish such information as is available to the party, not just information that the person
answering them personally knows at the time.
o Thus, the party answering the interrogatories must make a reasonable inquiry to obtain the
information requested.
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o In a deposition, the party can respond with, “I don’t personally know.”
If a party believes that the information sought is not within the scope of discovery or is protected
from disclosure, the party should respond by objecting to the interrogatory.
List of cases:
o In re Auction Houses
SECTION 1.2.5 – PRODUCTION OF PROPERTY
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Recall that under Rule 26(a), a party may, in initial mandatory disclosure, supply opposing parties
with descriptions of documents that it plans to use to support its claim or defense.
If the opposing party wants the physical document, it must make a Rule 34 or Rule 45 request.
In initial discovery, a party is not required to turn over damaging evidence to the other side.
However, a party may be compelled to turn over a document under Rule 34.
S ECTION 1.2.5.1 – R EQUESTS FOR D OCUMENTS
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Rule 34 allows parties to request production of documents from other parties that are relevant to
claims and defenses in the case.
The request must describe the documents sought with reasonable particularity.
It is permissible to describe the requested documents by category, such as “all documents relevant to
the plaintiff’s medical treatment from the date of the accident to the date of this request.”
It can be extremely burdensome to comply with even a narrowly crafted request for production, and
may interfere significantly with corporate operations.
Rule 34(b) authorizes a party to comply with a Rule 34 request by producing the relevant documents
as kept in the usual course of business. Thus, a corporation could simply make its files available to
the requesting party, and let the requesting party do the work.
o The first problem with this course of action is that it provides the other party with wide
access to files, both relevant and irrelevant. There is likely to be information in the files that
the producing party would prefer to keep confidential and that would not be within the
scope of the Rule 34 request.
o The second problem with this course of action is that allowing access to the files waives the
producing party’s objection to production of documents that are protected from discovery.
For example, allowing the other side to review files that contain documents that are
privileged or enjoy work product protection will waive the privilege or protection.
o The responding party will still have to review all of its files, so this course of action doesn’t
necessarily save time.
Rule 34(b) also prevents abuses of discovery, such as hiding documents via incorrect labeling or
sending unrelated files to burden the opposing party.
o The producing party cannot intentionally make it more difficult for the requesting party to
identify the relevant documents or parts of documents that have been requested.
o The documents must either be in the order that they would have been kept during the
ordinary course of business or organized and labeled.
Parties can also request production of property or documents of nonparties with a subpoena,
pursuant to Rule 45. However, the subpoena may be quashed when:
o It asks for the disclosure of privileged information,
o It subjects a person to undue burden or travel of more than 100 miles,
o It fails to allow for reasonable time to comply.
Because production of certain documents or property can be extremely expensive, the court has the
power to shift all or part of the cost to the requesting party.
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The requested document must be in the control of the producing party. This inquiry can be highly
fact specific.
List of cases:
o Zublake v. UBS
S ECTION 1.2.5.2 – D ISCOVERY OF E LECTRONICALLY S TORED I NFORMATION
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It is estimated that over 90% of all business information is created electronically and never printed
out.
This can make discovery very expensive because, in order to produce requested documents, the
producing party has to go through years of electronic data, usually with the help of a paid
professional, and retrieve vast amounts of information.
Rule 33(d) and Rule 34(a)(1)(A) specifically state that electronically stored information is subject to
discovery.
Rule 26(b)(2)(B) provides that parties need not provides electronic information that is not
reasonably accessible because of undue burden or cost.
o The burden falls on the party who objects on this basis to show that the information is not
reasonably accessible.
o If the party satisfies that burden, the court may still order production, but only for god cause
and under appropriate provisions (such as cost sharing).
Rule 37(e) protects parties from being sanctioned due to the loss of such information through “the
routine, good-faith operation of an electronic information system.
o Many companies use document retention systems that routinely destroy or overwrite the
oldest files.
o The rule would not protect a party once litigation commences and it is order or expected to
retain documents relevant to the case.
Rule 26(b)(5)(B) allows a party who makes an inadvertent disclosure (due to the nature of electronic
discovery) of privileged or otherwise protected information to notify the receiving party of the
mistake.
o The receiving party must take reasonable steps to either not look at the information or get
the information back if it has already been disclosed.
o This provision attempts to freeze the status quo until the producing party’s claim of privilege
can be resolved.
SECTION 1.2.6 – PHYSICAL AND M ENTAL EXAMINATIONS
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Rule 35 permits physical and mental examinations of a party or of a person in custody or under the
legal control of a party.
An examination is usually requested by the defendant when the plaintiff alleges an injury. By suing
for an injury, a plaintiff essentially consents to have an exam done to prove the injury in question.
However, a plaintiff can also request an examination of the defendant.
Two requirements must be met:
o The condition that will be examined must be in controversy, and
o The requesting party must show good cause for the specific exam.
Good cause is a requirement because:
o There are very important privacy concerns at stake,
o The party who will be examined essentially has no choice in the matter, and
o There is no opportunity to redact the information or to undo the exam.
A Rule 35 request requires the court to perform a balancing test of the intrusiveness of the exam
versus the usefulness of the information.
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The person who is examined may request a copy of the report. However, if they do so, they waive the
right to doctor-patient privilege and may have to disclose all documents related to the particular
condition in controversy.
SECTION 1.2.7 – REQUESTS TO ADMIT
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While this is not a true discovery device, Rule 36 permits a party to serve another party with written
requests to admit to:
o The truth of certain matters of fact or of application of law to fact, or
o The genuineness of a document, or
o Other evidence that may be used at trial.
The matter that a party wants the other party to admit must be within the scope of discovery and
must relate to statements or opinion of fact or application of law to fact.
This is not a true discovery device, and it is most often used during trial preparation, not discovery.
This is used to shape information already known into statements that expedite the trial by limiting
the issues in dispute and by obviating some of the formalities that control the introduction of
evidence at trial.
Reponses to requests are conclusive evidence, unless withdrawn, and cannot be contradicted at trial.
A court order is not necessary to serve this request.
An example of a request to admit is Form 51 on page 193 of the supplement.
Like with interrogatories, the party must respond under oath, and there is some responsibility to
investigate.
Upon receiving a request to admit, the party must either:
o Admit the information,
o Deny the information, or
o Provide a detailed explanation as to why you cannot admit or deny the information.
A party can object to a request to admit on the grounds that:
o The question was phrased improperly, or
o The question seeks information that is privilege or otherwise protected.
Failure to respond to a request to admit is treated as an admission.
If a party fails to respond, the requesting party can ask the judge for an order deeming the matter to
be admitted.
The court may permit withdrawal or modification of an admission and will consider the degree of
prejudice the requesting party will suffer because of its reliance on the admission.
There are sanctions available for false denials under Rule 37(c). If the denied matter is proven to be
true at trial, the denying party may be forced to pay to the other party the costs incurred in proving
the matter to be true.
SECTION 1.3 – SPECIAL PROBLEMS IN DISCOVERY
SECTION 1.3.1 – WORK P RODUCT
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Work product is a class of documents that are created in the course of representation and for the
purpose of preparing a case.
The U.S. Supreme Court recognized that attorney work product should be protected from disclosure,
at least absent a showing of a particular need for the information and inability to obtain it through
other means, in Hickman v. Taylor. Work product included tangible and intangible things.
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Rule 26(b)(3) codifies the rule in Hickman; however, Hickman allowed for protection from discovery
of intangible things, such as recollections of witness interviews. The Rule only mentions tangible
things or documents.
Most courts have held that intangible work product continues to enjoy protection under standards
established in the Hickman case.
Not all documents in the possession of a lawyer are trial preparation materials. For example, if the
lawyer has a police report, that is prepared in anticipation of trial, technically; however, it is not
covered by the work product doctrine because it was prepared in the ordinary course of business of
the police station. The same rationale applies to hospital or accident reports.
Questions to ask:
o Is the material presumptively protected under the work product doctrine of Rule 26(b)(3)?
In order for this to be the case, the answer to all of the questions below must be “yes”:
 Is the material a document or tangible thing?
 Was it prepared by or for another party?
 Was it prepared in anticipation of litigation?
o Can this presumptive protection be overcome in the current circumstances of the case? In
order for this to be the case, the answer to both of the questions below must be “yes”:
 Does the requesting party have a substantial need for the material in preparing its
case?
 Is the requesting party unable to obtain equivalent information by other means?
o Even if the material is discoverable, either because it is not protected by the work product
doctrine or because the presumptive protection is overcome by substantial need, would the
material reveal the mental impressions, conclusions, opinions, or legal theories of counsel?
 If the answer is yes, it will be protected from discovery in almost all cases.
Even if the requesting party overcomes the work product doctrine, the information sought must still
be within the scope of discovery.
In addition, the work product doctrine may be overcome if the disclosing party has intentionally
destroyed documents. The attorney may have to be deposed so that the requesting party can learn
what the destroyed documents contained.
List of cases:
o Upjohn Co. v. United States
SECTION 1.3.2 – PRIVILEGE
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Privilege refers to information that is protected from disclosure under the rules of evidence.
Privilege is a policy-based rule; maintaining the confidentiality of certain communications is so
important that society is willing to sacrifice the evidentiary value of those communications to
preserve that confidentiality.
This purpose of privilege would be undermined if privileged information could be demanded through
discovery.
If the information is privileged, the party holding the privilege may refuse to testify about that
communication, either in discovery or at trial.
Privilege does not protect factual information simply because it was communicated in a privileged
conversation.
o Non-discoverable: “Did you tell your lawyer that you ran the red light?”
o Discoverable (regardless of whether you told your lawyer): “Did you run the red light?”
o If talking about the facts of a case in a privileged conversation would shield those facts from
discovery, clients in litigation would be very forthcoming with their counsel.
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It is difficult to evaluate claims that an item is privileged. Rule 26(b)(5) requires parties who object
to production of information based on privilege to provide certain details to do so. The party claiming
privilege must:
o Expressly make the claim, and
o Describe the nature of the documents, communications, or tangible things not produced or
disclose – and do so in a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.
In doubtful cases of claimed privilege, the court can review the documents in camera to determine
whether privilege applies.
Common privileges:
o Attorney-client
o Privilege against self-incrimination
o Priest-penitent
o Doctor-patient
List of cases:
o Upjohn Co. v. United States
SECTION 1.3.3 – EXPERTS
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Under Rule 26(a)(2), experts are subject to discovery.
Usually, if a party employs an expert, that expert will testify. However, an expert is subject to
discovery even if he will not testify.
If a party seeks discovery from an expert who will not testify at trial, the requesting party must show
that there are special circumstances under which it is impracticable to obtain the facts or opinions of
the expert by other means.
Rule 35 provides the guidelines for discovery of experts used in the mental or physical examinations.
Experts are not covered under the work product doctrine, despite the fact that, often, the information
experts give attorneys is prepared in anticipation of litigation.
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CHAPTER 2 – ASCERTAINING THE APPLICABLE LAW
SECTION 2.1 – THE ERIE DOCTRINE: STATE LAW IN FEDERAL COURTS
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Prior to the Erie Doctrine, federal courts followed the precedent in Swift v. Tyson, which stated that,
absent a state statute, federal judges could ignore state common law precedent and apply “federal
common law.”
However, problems of forum shopping and the lack of uniformity became apparent by the time Erie
came up.
The Erie Doctrine states that a federal court hearing a state law claim – whether in a diversity case or
a federal question case with supplemental state law claims – must apply the substantive law of the
relevant state to the state law claim, not make “federal common law.”
It soon became obvious that the line between substantive and procedural law is not clear.
o There is a spectrum. On one side are the obviously substantive laws: duty of care, elements
of negligence, etc. On the other side are the obviously procedural laws: brief colors, margin
sizes, etc.
o However, “the hazy middle” includes things that are arguably procedural but have a
profound impact on the outcome of the case, such as statutes of limitations.
The cases following Erie have left us with a rather complicated test (illustrated on Page 14).
Some clarifications to the test on the following pages are needed:
o Substantive means that the law affects the rights of the individual, although this definition is
not very helpful. Other definitions of substantive law include that it:
 Embodies important policy choices.
 Governs conduct in day-to-day life.
 Defines a right or duty.
 Applies only to specific cases.
o Procedural means that the law deals with the judicial process for enforcing rights and duties
recognized by substantive law and for justly administering remedy and redress for disregard
or infraction of them. Other definitions of procedural law include that it:
 Deals with convenience and efficiency.
 Provides a means for enforcing a right.
 Generally only applies inside the courtroom.
 Applies to all cases.
o Direct collision means that the two laws (federal and state) cannot be applied at the same
time. The Walker case is an example of a federal law and a state law that can coexist.
o Rules Enabling Act test requires that the federal law be procedural (or in the “hazy middle”)
and that it not abridge substantive rights. Although it is still a bit unclear what this means,
for the purposes of a law school exam, it would be rather shocking if a Federal Rule of Civil
or Appellate Procedure were declared to violate the Rules Enabling Act.
o Constitutional test requires that the federal law be arguably procedural. This means that if
there is any way Congress could classify the law as procedural, it passes the test, even if it
could also be considered substantive.
o Prospectively outcome determinative means that, given what the litigant knew before or at
the outset of litigation, the outcome of the case will be different depending on whether the
court applies state or federal law. Is this something that a litigant would forum shop over?
o If it is determined that the federal codified law cannot apply, can the judge make a judgemade law? To determine this, use the left side of the flow chart.
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List of cases:
o Swift v. Tyson
o Erie Railroad Co. v. Tompkins
o Guaranty Trust Co. v. York
o Ragan v. Merchants Transfer
o Byrd v. Blue Ridge
o Hanna v. Plumer
o Walker v. Armco Steel
o Stewart v. Ricoh
o Burlington Northern v. Woods
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The Erie Doctrine
Is there a codified federal rule?
No. The law is judge-made.
Yes.
Is there a “direct collision”?
No, as in Walker.
Is the law substantive?
The law is a
Federal Rule.
No, or it is in the
“hazy middle.”
The law is a
congressional
statute.
Rules Enabling Act test:
procedural, does not abridge
substantive rights. Burlington.
Yes.
Is the law outcome determinative
prospectively? (Consider the twin
aims of Erie.)
No.
Yes. Both cannot
be applied.
Fails test.
Yes.
Passes test.
Constitutional Test: arguably
procedural. Hanna.
Is there some strong policy
reason for the federal rule? Byrd.
Fails test.
Yes.
Do not apply
state law.
Passes test.
No.
Apply state
law.
Do not apply
federal law.
14
Apply federal law.
Civil Procedure II – Smith
Spring 2012
SECTION 2.2 – THE PROBLEM WITH ASCERTAINING STATE LAW
SECTION 2.2.1 – DETERMINING WHICH STATE LAW GOVERNS
-
Federal courts must apply the conflicts-of-law rules of the states in which they sit. Klaxon v. Stentor
Electric.
The law of the state in which the suit was originally filed stays with the suit during transfers of venue
and forum. Van Dusen v. Barrack.
SECTION 2.2.2 – ASCERTAINING STATE LAW
-
-
-
-
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Early post-Erie cases suggested that the federal court had to follow any state precedent on point,
whether the state supreme court would be likely to decide differently today or not. This approach
was very rigid.
Today, under the “supreme court predictive approach,” the federal judge is to apply the state law as
she concludes that it would be applied today by the supreme court of the relevant state.
The federal just would not lightly make the prediction that a state supreme court case would be
overruled, however, since this would lead to the application of a rule in federal court that is not yet –
and perhaps never will be – the law of the state.
State law decisions made by federal courts are not binding on state courts.
State law often changes, and it would be inefficient to allow litigants to seek relief from judgments on
the ground that the federal court “got it wrong” or that the law changed.
There is nothing in Erie that suggests that consistency must be achieved at the expense of finality, or
that federal cases finally disposed of must be revisited any time an unrelated state case clarifies the
applicable rules of law.
Forum shopping still exists, and will always exist, because litigants can select federal court in a state
that has more favorable choice-of-law rules
When trying to determine what the state supreme court would decide, federal judges should look at:
o Statutes on point
o State supreme court decisions
o Trends in other states
o Law review articles.
Federal courts do not have to follow intermediate state court decisions.
Federal courts have the power to certify a question of state law to the state supreme court.
List of Cases
o Klaxon v. Stentor Electric
o Van Dusen v. Barrack
o Mason v. American Emery
15
CHAPTER 3 – ADJUDICATION WITHOUT A COMPLETED TRIAL
-
-
Last semester, we studied a motion to dismiss under Rule 12(b)(6). A motion under Rule 12(b)(6) is
a motion for failure to state a claim upon which relief can be granted.
Essentially, if there is no right to relief, the suit will be dismissed. This can occur either because the
law does not recognize that what the defendant did is punishable or because there are specific limits
on what a person may recover for.
o Example: A person can sue for alienation of affection in some states, but not in others. In the
states in which alienation of affection is non-recoverable, the case will be dismissed for
failure to state a claim under Rule 12(b)(6).
o Example: Many states limit recovery in negligence cases to direct personal injury or property
damage and would not recognize a right to recover for secondary economic damages. If a
woman causes an accident that block traffic, the stores on that street would not be successful
in suing for lost profits as a result of the bad traffic because that is not a recognized
recoverable injury in a negligence case. The case would, therefore, be dismissed under Rule
12(b)(6).
The purpose of a motion to dismiss for failure to state a claim is to test the legal validity of the
plaintiff’s allegations, not their factual truth.
In ruling on the motion, the court must assume that the facts alleged in the complaint are true.
The question for the judge is, if the facts are all true, do they set forth a claim for which the court
could grant the plaintiff some kind of remedy.
List of Cases:
o American Nurses Association v. IL
SECTION 3.1 – SUMMARY JUDGMENT
-
-
In most cases, the plaintiff’s complaint does state a claim for which relief can be granted.
It is one thing to allege the required elements and quite another to prove that they are true.
Rule 56 permits a moving party to challenge the opposing party’s ability to prove all of the elements
of his complaint before trial. This is called a motion for summary judgment.
The standard for summary judgment is that there is no genuine dispute as to any material fact and
that, viewing the evidence in the light most favorable to the non-moving party, there is no way that
the non-moving party could prevail at trial. For a summary of the standard, please see page 18.
o First, the moving party must move for summary judgment, stating that there is no genuine
dispute as to any material fact and that he is entitled to judgment as a matter of law.
 Thus, the burden of production rests on the moving party.
 If you look at the evidence of the moving party, is it clear that only the movant can
win if this was the only evidence in the case? If yes, then the burden of production
switches to the non-moving party.
o Next, the non-moving party must respond by demonstrating that there is a genuine dispute
as to a material fact and support the response with admissible evidence.
o After receiving all of the evidence, the judge must view the evidence in the light most
favorable to the non-moving party. If, even viewing all of the evidence in such a favorable
light, the judge cannot see how a reasonable jury would find in favor of the non-moving
party, summary judgment should be granted. This is called the “reasonable jury” standard.
A genuine issue as to a material fact means that there is a conflict, not a gap, in the evidence.
16
Civil Procedure II – Smith
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Spring 2012
If the non-moving party does not present any evidence in opposition to show that there is a genuine
dispute as to a material fact, the judge should only grant summary judgment if the moving party’s
supporting materials suffice to establish his claim or defense.
Material facts can be either subjective or objective. For example, in a car accident, a material fact is
whether the light that the defendant went through was green or red. In other cases, a party’s intent
or feelings may be the subject of dispute.
o Summary judgment is inappropriate where inferences that parties seek to have drawn deal
with questions of motive, intent, or subjective feelings and reactions, such as why a party
traveled to Europe.
o It is important to consider whether the testifying witness has motive to lie.
The party must include admissible evidence to support the motion:
o Affidavits are helpful, but not necessary.
o The party cannot rely on the pleadings, generally, because those are not admissible as
evidence.
o Depositions
o Answers to interrogatories
o Answers to requests to admit
It is also important to consider the standard of proof in the case when ruling on summary judgment
(i.e. preponderance of the evidence, beyond a reasonable doubt, etc.)
See next page for an explanation of the burdens of proof and production.
A plaintiff can move for summary judgment any time after twenty days into the commencement of
the action, or after the service of a motion for summary judgment by an adverse party.
A defendant can move for summary judgment at any time.
List of cases:
o Lundeen v. Cordner
o Cross v. United States
o Celotex v. Calrelt
o Adickes v. Kress
Spring 2012
Professor P. Smith
o Anderson v. Liberty Lobby
o Matsushita v. Zenith
When can you dismiss a case?
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17
Rule 56 Motion: Summary Judgment
Who is the moving party?
The party without the burden of
proof at trial on the issue.
The party with the burden of
proof at trial on the issue.
Moving party can satisfy the
initial burden of production
by either…
Initial burden of production: Did the moving
party produce evidence to show that there is no
genuine dispute as to any material fact?
Yes.
No.
The burden of production
shifts to the non-moving party
to produce evidence to show
that there is a genuine dispute
as to a material fact.
The non-moving
party satisfies the
burden of
production.
Motion is
denied.
The non-moving
party does not
satisfy the burden
of production.
…Producing evidence
that there is no genuine
issue as to a material
fact.
…Showing that the nonmoving party cannot
prove an essential element
of the claim.
Motion is
denied. Cross.
The moving
party does not
satisfy the
burden of
production.
The moving
party satisfies
the burden of
production.
Motion is
denied. Adickes.
The moving party
satisfies the
burden of
production.
Celotex.
The burden of production
shifts to the non-moving party
to produce evidence to show
that there is a genuine dispute
as to a material fact.
The moving
party does not
satisfy the
burden of
production.
Motion is
denied.
Motion is granted.
Lundeen.
The non-moving party satisfies the
burden of production.
Motion is denied.
18
The non-moving party does not satisfy
the burden of production.
Motion is granted.
Civil Procedure II – Smith
Spring 2012
SECTION 3.2 – JUDGMENT AS A MATTER OF LAW (FORMERLY DIRECTED VERDICT)
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-
-
-
-
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After a party has presented evidence, but before the verdict, any party may move for a motion for
judgment as a matter of law under Rule 50(a) any time after the non-moving party has been heard on
the issue.
This is sometimes called a directed verdict.
The standard for a Rule 50(a) motion is the same as the standard for a Rule 56 motion: that there is
no legally sufficient evidentiary basis for a reasonable jury to find in favor of the non-moving party
on the issue.
The purpose of a Rule 50(a) motion is to ask the trial judge to take the case away from the jury on the
ground that the evidence is insufficient to support a verdict for the non-moving party.
This does not violate the Seventh Amendment because that amendment is generally interpreted to
guarantee a jury decision only where there is a legitimate dispute in the evidence – where a
meaningful dispute exists about whether the facts the plaintiff must establish are true.
o If there is such a conflict in the evidence so that reasonable jurors could find for either party,
the jury should resolve that conflict by “finding the facts.”
o If the plaintiff has no evidence, or clearly insufficient evidence, to establish a required
element of that claim, courts have held that the jury has no legitimate role to play, because
its constitution role as the find of facts is not required.
There are two burdens that the moving party must carry in order to obtain a valid verdict in her
favor.
o The burden of production is the burden to convince the judge that his evidence is strong
enough on each element of his claim to support a rational verdict in his favor. The judge
decides if the plaintiff has met this burden.
 The judge does not decide whether she would be convinced of the truth of the
disputed element. She is not the fact finder.
 Instead, she asks whether a reasonable jury could be rationally convinced of the
evidence.
o The burden of persuasion is the burden to convince the jury by a preponderance of the
evidence (or the applicable standard of proof) that the plaintiff has satisfied all of the
required elements. The jury decides whether the plaintiff has met this burden.
While ruling on a Rule 50(a) motion can be subjective, there are some guidelines to keep the judges
from encroaching on the jury’s role:
o The judge should not direct a verdict because she thinks that the defendant’s proof is
stronger than the plaintiff’s.
o The judge does not decide whether the witnesses are telling the truth. Except where the
testimony is literally incredible, she must assume that the jury will construe the evidence in
favor of the nonmoving party. The standard for a Rule 50(a) motion is whether the evidence
is such that, without weighing the credibility of the witnesses or otherwise considering that
weight of the evidence, there can be but one conclusion as to the verdict that reasonable
persons could have reached.
o If certain testimony would support two inferences, one that supports recovery and one that
doesn’t, it is the jury’s job to decide what inference to make.
If the moving party presents evidence that is not impeached or contradicted by the non-moving
party, the judge should consider that evidence when ruling on the motion if the jury would have no
reason to disbelieve it. However, a minority of jurisdictions use the “plaintiff’s evidence rule” and
only look at the plaintiff’s evidence.
19
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If a Rule 50(a) motion is granted, the case is dismissed. The losing party will most likely appeal. If the
appeal is won, a new trial is ordered.
If a Rule 50(a) motion is denied, the case goes to the jury. The losing party may appeal the denial. The
appeals court, if it finds the denial was in error, can direct entry of judgment for the defendant.
List of cases:
o Galloway v. United States
o Neely v. Martin Constructions
o Denman v. Spain
o Kircher
o Hartwag v. Kanner
SECTION 3.3 – AFTER THE VERDICT
SECTION 3.3.1 – RENEWED JUDGMENT AS A MATTER OF L AW (FORMERLY J.N.O.V)
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-
-
Instead of ruling on a Rule 50(a) motion, the judge can reserve the motion and decide after the jury
renders a verdict.
More often than not, if the judge believes that there isn’t enough evidence to support one party’s
position, the jury agrees. It is better to let the jury decide than to take it away from them.
Even if the jury does rule incorrectly, in the view of the judge, the losing party can renew his motion
for judgment as a matter of law under Rule 50(b).
The standard for granting a Rule 50(b) motion is the same standard for granting both a Rule 50(a)
motion and a Rule 56 motion: there is no genuine dispute as to a material fact, and the evidence is too
weak to support a rational verdict for the non-moving party.
Rule 50(b) provides that, if a motion for a judgment as a matter of law is denied, the motion may be
renewed no later than ten days after entry of judgment. This establishes two prerequisites:
o The Rule 50(b) motion must be made within ten days after judgment is entered on the jury’s
verdict.
o The party moving for a renewed motion for judgment as a matter of law must have moved
for judgment as a matter of law under Rule 50(a) before the case went to the jury.
 Requiring that a party who seeks judgment as a matter of law after the verdict must
have done so before the verdict can serve to remind the non-moving party that
there is something missing from his case. He can ask to reopen his case to prove the
remaining element of the claim.
 Requiring that a party move both before and after the verdict also eliminates any
constitutional concerns. Reconsidering a jury’s verdict violates the Seventh
Amendment right to a jury trial unless the judge reserved the right to do so on a
motion made before the case went to the jury.
If a Rule 50(b) motion is granted, the jury’s verdict is overturned. The losing party will most likely
appeal. If the appeal is won, no new trial is granted. The jury’s verdict is reinstated. This is more
efficient than with a Rule 50(a) motion.
If a party does not move for a Rule 50(a) motion before the verdict, the only remaining remedy is a
motion for a new trial.
List of cases:
o Baltimore and Carolina Line v. Redman
20
Civil Procedure II – Smith
Spring 2012
SECTION 3.3.2 – MOTION FOR A NEW TRIAL (VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE)
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-
The judge has the authority, in the federal system and many state systems as well, to order the case
retried if she is convinced that the verdict is seriously suspect.
The judge should have the ability to protect against improper jury behavior based on sympathy for a
plaintiff or other improper grounds.
Rule 59 permits a party to move for a new trial on the grounds that the verdict is against the weight
of the evidence within tens days after the entry of judgment. Additional reasons to grant a new trial
include,
o Highly relevant, new information is available that could not have been found before. The
new evidence must be admissible at trial (i.e. not hearsay).
o Evidence was improperly admitted.
o The jury instructions were improper.
o The verdict was based on false evidence.
o The verdict would result in a miscarriage of justice.
In ruling on this motion, the judge must consider the credibility of the evidence. She must ask
whether the jury was clearly, seriously wrong in choosing to believe the evidence.
The judge does not have to view the evidence in the light most favorable to the winning party.
Granting the motion does not completely reverse the original jury’s verdict, but rather it sends the
case to a new jury.
The standard for a motion for a new trial is lower than the standard for motions under Rule 56 or
Rule 50(a) or (b).
List of cases:
o Aetna v. Yeatts
SECTION 3.4 – VOLUNTARY DISMISSAL
-
-
-
Under Rule 41(a), a plaintiff can dismiss an action without prejudice before trial or before the
commencement.
This allows the moving party to extricate himself from the lawsuit without affecting his legal rights
before significant judicial and litigant resources are expended.
This places the parties in the positions they occupied before the lawsuit began.
A dismissal under Rule 41(a) is not an adjudication on the merits in most cases.
o However, there is an exception in Rule 41(a)(1)(B), if the plaintiff dismisses more than once.
o If the plaintiff relies the same claim against the same defendant, the court can order that the
plaintiff pay for the duplicative costs (i.e. attorney’s fees).
A plaintiff may want to move for dismissal under Rule 41(a) for a variety of reasons:
o The statute of limitations in the jurisdiction bars recovery.
o There is a lack of jurisdiction, subject matter or personal.
o The plaintiff may have personal reasons for not wanting to litigate at the time but may want
to reserve the right to litigate later.
o The plaintiff may decide that the case is not worth litigating.
o The plaintiff may want to refile in a different forum or venue.
o The case may have been settled out of court.
The plaintiff does not need permission from the court if he dismisses before the defendant answers
or before a motion for summary judgment is filed. After that, order from the court is needed.
The plaintiff cannot dismiss voluntarily at all if the defendant has asserted a counterclaim that cannot
proceed independently.
21
SECTION 3.5 – DISMISSAL FOR FAILURE TO PROSECUTE
-
-
Under Rule 41(b), a defendant may move for dismissal based on the plaintiff’s failure to prosecute.
This acts as an adjudication on the merits.
The purpose of this is to prevent delays in litigation and the harassment of the defendant.
In deciding whether this is proper, the court may consider:
o The plaintiff’s failure to comply with deadlines.
o The effect of the failure to prosecute on the court’s time and resources.
o The prejudice caused to the defendant by the failure to prosecute.
o The probable merits of the suit.
o The consequences of dismissal.
The court can make this decision sua sponte and does not have to give the plaintiff notice.
Because failure to prosecute can often be the fault of careless counsel, courts prefer to sanction than
to dismiss.
A failure to prosecute does not automatically mean that the defendant wins on affirmative defenses
or counterclaims. The defendant still has to satisfy the burdens of production and proof.
SECTION 3.6 – DEFAULT JUDGMENT
-
Rule 55 allows the plaintiff to move for a default judgment if the defendant fails to plead or otherwise
defend himself.
In general, courts do not give default judgments lightly because it is considered an adjudication on
the merits. Courts prefer to let cases be decided truly on the merits, not just procedurally.
The failure of the defendant to plead or defend must be shown by affidavit.
If the plaintiff can assert his monetary damages, he gets the relief he asks for, but no more.
If the defendant makes any appearance at all (i.e. pleadings, answers, special appearance, etc.), then
Rule 55 does not apply.
In a default judgment, the plaintiff does not have to satisfy any burden of production or proof.
22
Civil Procedure II – Smith
Spring 2012
CHAPTER 4 – TRIAL
SECTION 4.1 – INTRODUCTION TO TRIAL
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In a trial, issues are decided by a judge, a jury, or sometimes by both.
The general rule is that juries decide issues of fact and that judges decide issues of law.
The Seventh Amendment preserves the right to a trial by jury. It does not guarantee it, and is not
operative on the states. Judges generally interpret this to mean that the right to a jury trial is
preserved as it was in the 18th century, which is a rather formalistic view.
Juries have several advantages:
o They are good at making communal judgments and interpreting community norms.
o They give legitimacy to the court system.
o Twelve minds are better than one. If a plaintiff can convince twelve laymen of his case, the
verdict is likely to be more accurate than if he had to just convince one judge.
o Juries tend to focus on fairness and do more substantive justice.
o Juries protect against government tyranny.
Juries also have several drawbacks:
o Juries work in isolation and are not always transparent in their decisions.
o Juries are inefficient in terms of judicial resources, such as time and money.
o Juries lack the uniformity that judge-made decisions are said to have.
o The jury may not be representative of the community as a whole (think of the O.J. Simpson
trial – the court had to find twelve people who were not biased by the media, so the jury
contained the only twelve people in the state that basically lived under a rock).
o The jury is not well equipped to deal with technical and complex issues.
Judges have certain advantages as well:
o They have a certain expertise in legal matters.
o The judgments are usually uniform and consistent.
o Sometimes, it’s best to have an articulated rule that we can use in future cases.
As noted on pages 16 – 17, there are two burdens at trial that the parties must carry:
o The first is the burden of production.
 This burden generally falls on the plaintiff. However, the defendant has the burden
of production when it comes to his affirmative defense.
 As discussed above in the section on dispositive motions, the party who bears the
burden of production must produce at least the minimum amount of evidence to
satisfy the standard of proof such that a reasonable jury could find in his favor.
 The judge decides if the burden of production has been met.
o If the burden of production is met, the parties then have to carry the burden of persuasion.
 Similarly, this burden generally falls on the plaintiff. However, the defendant has the
burden of persuasion when it comes to his affirmative defenses.
 There are three common standards of proof used in trials:
 The first is to prove the case by a preponderance of the evidence.
o This is the standard used most commonly, but not always, in civil
cases.
o This means that the plaintiff (or defendant, with affirmative
defenses) has to prove that he is more likely than not entitled to
relief (i.e. more than 50%).
 The second is to prove a case by clear and convincing evidence.
23
This standard is also used in some civil trials instead of the
preponderance of the evidence standard.
o While the exact percentage is unclear, this standard falls
somewhere between preponderance of the evidence (50%) and
beyond a reasonable doubt (100%).
o This standard is used for cases of libel and slander.
 The third is to prove a case beyond a reasonable doubt.
o This is probably the most well known standard because it is used in
criminal cases.
o This means that no reasonable person would believe the defendant.
o The effective percentage is 100% - the jury has to be 100%
convinced that the only logical decision is to rule in favor of the
government.
 The jury decides if the burden of persuasion has been met. The party who carries
the burden must persuade the jury to rule in his favor.
Both burdens usually fall on the same party in a case. However, sometimes the burden of
production is put on the plaintiff and then the burden of persuasion shifts to the defendant.
 For example, in employment discrimination cases, the plaintiff first has to make a
prima facie case via the burden of production.
 Then, the defendant must show by clear and convincing evidence that the firing was
not discriminatory.
o
o
SECTION 4.2 – THE RIGHT TO A TRIAL BY JURY
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The Seventh Amendment preserves the right to a trial by jury. However, the Seventh Amendment
(and Rule 38) only operates in federal courts.
Either party can invoke the right to a trial by jury. There is no right not to have a jury trial. The court
can also empanel a jury sua sponte.
The threshold question is: Does the Seventh Amendment apply to this particular case or claim?
o In cases of law, there is a right to a trial by jury (i.e. a tort claim).
o In cases of equity, there is no right to a trial by jury (i.e. injunctive relief, restitution,
rescission, or reformation of contract).
o For mixed cases of law and equity, the legal issues must be trial first by a jury, even if the
legal claim is in the alternative. Then a judge can determine equitable issues second.
It is important to characterize the claim as legal or equitable. To do this, use the Curtis Test:
o Is the remedy sought legal or equitable?
 The remedy is usually legal when there are punitive or compensatory damages or
punishment for culpable behavior.
 The remedy is equitable if the damages sought involve restitution, injunction,
rescission, reformation, etc. (i.e. the complaining party doesn’t actually receive any
money).
o Is the claim analogous to a legal or equitable claim that existed in 18 th century English before
the two were merged?
 One should focus on the nature of a particular issue and not on the character of the
overall action.
List of cases:
o Beacon Theaters
o Dairy Queen
24
Civil Procedure II – Smith
o
o
o
o
Spring 2012
Katchen
Curtis v. Loether
Tull v. United States
Chauffers v. Terry
25
CHAPTER 5 – THE EFFECT OF A JUDGMENT
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While the terminology has changed over the years, the doctrine of former adjudication contains four
basic principles:
o You only get one chance to litigate your claim.
o You only get one chance to litigate a factual or legal issue.
o You get one full and fair chance to litigate before being precluded.
o Preclusion may be waived unless it is claimed at an early state of litigation.
Res judicata stands for the idea that one judgment will have a binding effect on another. Sometimes it
is used to refer to claim preclusion; other times it is used to refer to preclusion in general.
o Claim preclusion: a valid final adjudication of a claim precludes a second action on that claim
or any part of it.
o Issue preclusion (collateral estoppel): an issue of fact or law, actually litigated and resolved
by a valid and final judgment, binds the parties in a subsequent action, whether on the same
or different claim.
Stare decisis stands for the idea that a court will not lightly depart from precedent even though the
parties who are before it were not represented in the previous action.
SECTION 5.1 – CLAIM AND DEFENSE PRECLUSION
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Claim preclusion has four elements. All of them must be satisfied in order for preclusion to apply:
o The parties in the two actions must be the same,
o The claim in the second action must be the same as that litigated in the first,
o The judgment rendered in the first action must be final, and
o The judgment must have been rendered on the merits of the case.
Joinder plays a significant role in claim preclusion.
o In federal courts, and the majority of state courts, there are compulsory counterclaim rules
that require a defendant to assert any counterclaims arising out of the same transaction or
occurrence. If he does not do so, he forfeits his right to assert the claim later.
o At common law, there is no compulsory counterclaim rule.
o The minority rule (also called the Mitchell Rule) states that a claim is precluded only if it
could have been used as an affirmative defense in the first action and if it is arises out of the
same transaction or occurrence as the claim in the first action.
o Claims that could not have been joined in the first action will not be barred.
The first element of claim preclusion is that the parties be the same.
o The general rule is that if you are not a party to the first suit, you cannot assert claim
preclusion, nor can claim preclusion be asserted against you.
o An exception to this rule exists for class actions.
o If suing one defendant gave rise to claim preclusion on the plaintiff’s claim against all
possible defendants, he would be forced to sue them together in a single action. The plaintiff
may not wish to do that or even be able to do that because of limits on joinder, personal
jurisdiction, or subject matter jurisdiction in the court he prefers.
o Even if a person was a party to a prior action, preclusion may not apply if he was not a direct
adversary of another party in the case (i.e. co-defendants are not adversaries, and the ability
to bring a cross-claim does not bar a co-defendant from suing his co-defendant later in a
separate action).
o A nonparty may be bound by a judgment if one of the litigants in the prior action expressly
represented the interests of the nonparty (i.e. a trustee/beneficiary relationship).
26
Civil Procedure II – Smith
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Spring 2012
The second element of claim preclusion is that the claim be the same in both actions. However, there
is some confusion over what is considered a “claim.”
o The federal courts use the “same transaction and occurrence” test.
o In state courts, there are four possible tests to decide if two claims are the same:
 The second action arises out of the same right to recovery as the first action, with
the focus on the plaintiff.
 Under this theory, a person would be able to sue for damages to property in
one action and then for personal injuries in a second suit on the grounds
that the two claims involve the invasion of different rights.
 However, the plaintiff in that case could not sue for her broken arm in one
suit and then her broken leg in another suit because the two suits involve
the invasion of the same right: the right to be not be physically harmed due
to the defendant’s negligence.
 The second action arises out of the same wrong or harm as the first action, with the
focus on the defendant’s actions.
 Under this theory, the second action described above would be barred
because the actions arise out of the same wrong (the defendant’s
negligence).
 However, a person could sue for breach of contract to build a house one
action and then again for negligence that led to damages to the property in
another action because the two actions deal with two different acts by the
defendant.
 The second action would require the same evidence to be presented as was
presented in the first action.
 The second accident claim (with the first being for damage to property and
the second being for personal injuries) would be barred under this test
because the actions would use the same evidence to prove the defendant’s
negligence.
 The second building claim (with the first being for breach of contract and
the second being for damage to property) would likely not be barred
because the evidence in the two cases would be different.
o You would need to prove the elements of a contract in the first.
o In the second, you would need to prove negligence.
o There is a very low chance that the evidence used in these two
cases would be the same unless you were proving that the builder
broke a clause in the contract that concerned negligence.
 The second action arises out of the same transaction and occurrence as the first
action.
 The accident claim above would be barred because the two claims arose out
of the same transaction and occurrence: the accident.
 The contract/damage claim above would be barred because the two claims
arose out of the same transaction and occurrence: the contract to build the
house.
o A party will be precluded from suing even if he “dresses up” the claim from the first action as
another claim.
The third element of claim preclusion is that the judgment be final.
o Even if the first suit is in the process of appeal, claim preclusion applies on the second suit.
27
For this reason, it is best to wait to file the second suit until after the appeals have been
completed. If a plaintiff files a second suit, claim preclusion will bar it.
o If the first suit is later overturned on appeal, the second suit cannot be appealed on those
grounds.
The fourth element of claim preclusion is that the judgment be on the merits.
o The point of this requirement is to prevent courts from giving claim preclusive effect to
certain procedural dismissals for the first action.
o Decisions that are made on the merits include:
 Dismissals under Rule 12(b)(6) because the plaintiff could have amended the
pleadings or asked for a voluntary dismissal under Rule 41(a) without prejudice.
 Default judgments because the defendant had the opportunity to litigate but chose
not to. However, the defendant can contend that he did not receive proper notice.
 Dismissals under Rule 41(b) for failure to prosecute because the plaintiff had a
chance to litigate but chose not to.
 Dismissals on summary judgment and (renewed) judgment as a matter of law.
o Decisions that are not made on the merits include:
 Dismissals for lack of jurisdiction.
 Dismissals for improper venue.
 General procedural defects.
Claim preclusion may seem very similar to stare decisis (defined on page 26). However, the two have
some significant differences:
o Claim preclusion only applies to the same parties, while stare decisis applies to everyone in a
jurisdiction.
o Claim preclusion applies across jurisdictions, while stare decisis applies only within a single
system.
o Claim preclusion is binding and cannot be overcome, even if the applicable law changes,
while stare decisis can be overcome (though it is difficult to do so).
 Note: there are some ways to overcome claim preclusion. For example, if the
judgment was procured using fraud, or if there was a jurisdictional defect, claim
preclusion will not apply. However, that has to be decided by a court.
 In addition, if the conduct that is the subject of the first action continues after the
judgment in the first action, claim preclusion doesn’t apply. However, issue
preclusion might (See Section 5.2)
A court in one system will give the same preclusive effect to a judgment that it would be given in the
court that rendered it. Thus, a state court, confronted with a decision of a federal court, will ask,
“Could the plaintiff have gone back and tried again in federal court?”
Defense preclusion occurs in a second action by the original plaintiff in which the defendant seeks to
raise defenses that were equally available in the first action but were not advanced.
List of cases:
o Rush v. City of Maple Heights
o Matthews v. NY Racing Association
o Federated Department Stores v. Moitie
o Jones v. Morris Plan Bank
o Mitchell v. Credit Bank
o
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28
Civil Procedure II – Smith
Spring 2012
SECTION 5.2 – ISSUE PRECLUSION
SECTION 5.2.1 – WHEN THE PARTIES ARE THE SAME
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Issue preclusion (also called collateral estoppel) means that once parties have litigated an issue and
decided it, there is no point in litigating that issue again.
o It isn’t fair to the party who litigated and won on the issue to force her to relitigate it just
because it comes up again in a later action.
o The courts have better things to do than to revisit issues that they have already settled.
Offensive issue preclusion is when the plaintiff asserts issue preclusion against the defendant.
Defensive issue preclusion is when the defendant asserts issue preclusion against the plaintiff.
There are four requirements in order for issue preclusion to apply:
o The issue must be the same.
o The issue must have actually been litigated
o The issue must have been actually decided.
o The issue must have been necessary to the judgment.
Issue preclusion is different from claim preclusion:
o While claim preclusion applies even to issues that were never litigated, issue preclusion only
applies to issues that were actually litigated and decided.
o In addition, issue preclusion does not require that the judgment be on the merits.
The first requirement is that the issue be the same.
o In analyzing whether the issue is the same or different, you must ask two seemingly obvious
questions:
 What issues were decided in the first case, and what were the outcomes?
 What issues are being decided in the second case?
 Are these issues the same?
o Be sure to actually write out what the issues are in each case in full. For example, whether
business was transacted in Virginia is one issue; whether business was transacted in
Maryland is a completely different issue.
The second requirement is that the issue be actually litigated.
o Issue preclusion will only apply if the issue was actually litigated at trial.
o Sometimes, a mere inclusion of the issue in the pleadings will satisfy this requirement.
However, an inclusion of the issue in the pleadings may not satisfy the other three
requirements.
o Because of this requirement, a default judgment does not give rise to issue preclusion
(though it does give rise to claim preclusion).
The third requirement is that the issue be actually decided.
o Issue preclusion can only apply if the issue was decided by the fact finder in the first case.
o This problem commonly arises in cases in which the first suit was decided using a general
verdict.
 With a general verdict, it may be unclear as to what was decided if the jury was
given two ways to come to the same conclusion.
 For example, if the jury was told that it could find that the defendant is not liable if
(a) the defendant was not negligent or (b) the plaintiff was contributorily negligent,
a verdict for the defendant doesn’t tell us what was decided.
 The jury could have found that the defendant was not negligent,
 The jury could have found that the plaintiff was contributorily negligent, or
 The jury could have found that both the defendant and the plaintiff were
negligent.
29
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o With a special verdict, it is relatively easy to see what was decided.
The fourth requirement is that the issue be necessary to the judgment.
o When attempting to determine whether or not an issue was necessary to the judgment, you
should reverse the finding of the issue.
o If the case has a different outcome given the reversed finding of the issue, then the finding
was necessary to the judgment.
o If the outcome of the case would have been the same, regardless of what the finding of the
issue was, then the issue was not necessary to the judgment.
o If a finding would not affect the outcome, a party would be less likely to vigorously litigate
the issue. Likewise, the judge may not have given the issue the same serious consideration
he would have if it had affected the result.
o If a finding is not necessary to the judgment, it may not be able to be corrected on appeal.
For example, if a defendant was found to be negligent in the first suit but not liable due to the
plaintiff’s contributory negligence, he could not appeal the decision that he was negligent
because he won in the first suit.
o If a party cannot appeal a decision, it is not fair to give it preclusive effect.
There is some question as to what preclusive effect an issue has when the applicable law changes.
o In general, the rule is that the judgment is final, regardless of whether the applicable law has
changed.
o The court, however, must balance the need for finality against the needs for uniformity and
equality.
 For example, there is an overwhelming need for all taxpayers to be treated equally,
so issue preclusion will not apply if the applicable tax law changes.
 However, in a veteran’s claim for his pension, the court determined that the need for
finality outweighed the need for uniformity. Therefore, after the interpretation of
the applicable law had changed, issue preclusion still applied.
There is some question as to what preclusive effect an issue has when the underlying facts change.
o Courts often have to use a common-sense analysis to determine how likely it is that the
underlying facts have changed.
 For example, if the second suit occurs a week after the first suit, it is unlikely that
the facts have changed. However, if the second suit occurs several years after the
first suit, the facts may have changed.
 Additionally, some facts just cannot change.
 If the issue being litigated is whether you own a house, the facts may change
because you can sell a house.
 If the issue being litigated is whether you were negligent in an accident, the
facts cannot change because the accident has already occurred.
o The party contesting issue preclusion has the burden of proving that the facts have changed.
List of cases:
o Cromwell v. County of Sac.
o Russell v. Place
o Rios v. Davis
o United States v. Moser
o CIR v. Sunnen
30
Civil Procedure II – Smith
Spring 2012
SECTION 5.2.2 – WHEN THE PARTIES ARE DIFFERENT
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The traditional rule, the mutuality doctrine, was that only parties to the first suit could assert issue
preclusion. However, this doctrine led to a lack of uniformity in some cases.
As a result, most jurisdictions, including federal courts, apply the doctrine of non-mutual issue
preclusion. This means that a third party to the first lawsuit can assert issue preclusion against a
party to the first lawsuit in the second lawsuit. There are two basic requirements that all jurisdictions
that allow non-mutual issue preclusion follow:
o The party being estopped must have litigated and lost on the issue.
o Only parties from the first lawsuit can be estopped.
Please note that not all jurisdictions allow non-mutual issue preclusion. Usually, jurisdictions that do
not allow non-mutual issue preclusion have exceptions for indemnity or vicarious liability.
When performing this analysis, it is important to ask the following questions:
o First, does the jurisdiction allow non-mutual issue preclusion at all?
o If so, under what circumstances?
o Under the facts of this particular case, would the preclusion be allowed?
There are several different scenarios that can arise under non-mutual issue preclusion:
o The third party is the plaintiff in the second suit, while the estopped party is the new
defendant (offensive non-mutual issue preclusion). The test to see if this type of non-mutual
issue preclusion should be allowed is the same, regardless of whether the estopped party
was the defendant or plaintiff in the first suit. There are two questions to ask:
 Did the third party have the opportunity to intervene in the first suit?
 Would it be fair to allow issue preclusion in this case? The court should consider:
 Whether the estopped party had sufficient incentive to litigate the issue in
the first suit. (Did the third party take a “wait and see” approach? This is
frowned upon.)
 Whether there are prior inconsistent judgments on the issue.
 Whether the estopped party was denied any procedural opportunities in
the first suit (such as the right to a trial by jury because the claim was in
equity)?
o The third party is the defendant in the second suit, while the estopped party is the new
plaintiff (defensive non-mutual issue preclusion). The test varies depending on the situation:
 The estopped party (new defendant) was the plaintiff in the first suit.
 Federal courts have held that defensive non-mutual issue preclusion can be
asserted against repeat plaintiffs because the plaintiff had sufficient
incentive to litigate.
 The estopped party (new defendant) was the defendant in the first suit.
 Not all jurisdictions would allow preclusion in this case. Analyze the
fairness element above.
Even if non-mutual issue preclusion is allowed, the remaining elements of issue preclusion must be
satisfied, as noted on pages 29 – 30.
The court of the second action must follow the preclusion rules of the court of the second action.
Therefore, the question is: “Could the party assert issue preclusion in the jurisdiction of the first
action?”
List of cases:
o Berhard
o Parklane Hosiery
31
CHAPTER 6 – POST-TRIAL CORRECTION OF ERRORS
SECTION 6.1 – GROUNDS FOR SEEKING RELIEF FROM DISTRICT COURTS
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A party can use both Rule 59 and Rule 60 to seek relief from a judgment.
However, Rule 6(b) explicitly states that the court cannot grant time extensions for filing motions
under Rule 59 or Rule 60.
Under Rule 59, a party may ask for a new trial or for the court to amend or alter the judgment.
o The standard for this rule is outlined above on page 21.
o The motion must be filed within 28 days of the judgment.
o According to Federal Rule of Appellate Procedure 4, a timely filing of a Rule 59(e) motion
will toll the deadline for a notice of appeal.
Under Rule 60, a party may ask for relief from a judgment or order.
o At any time, the court may grant relief from clerical mistakes in judgments, orders, or other
parts of the record arising from oversight or omission.
o Within a reasonable amount of time, but no more than a year after the entry of judgment, the
court may grant relief from judgment for the following reasons:
 Mistake, inadvertence, surprise, or excusable neglect;
 Newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
 Fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
o Within a reasonable amount of time, the court may grant relief from judgment for the
following reasons:
 The judgment is void;
 The judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or
 Any other reason that justifies relief.
o This motion does not affect the judgment’s finality or suspend its operation.
o The relief granted under this motion is usually a new trial. Strategically, it is best to file this
motion and appeal the judgment.
SECTION 6.2 – APPELLATE REVIEW AND THE FINAL DECISION RULE
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The Final Decision Rule (28 U.S.C. § 1291) says that the Courts of Appeals shall have jurisdiction of
appeals from all final decisions.
o This means that a party may only appeal a final judgment.
o A judgment is final when there is nothing left to do but execute the judgment. Relief must
already have been awarded of refused.
o The policy behind this rule is to keep all issues in one appeal (efficiency). It also doesn’t
make sense to let parties appeal every order because they might not affect the outcome (the
appealing party might win in the end, despite the decision).
There are some exceptions, or ways to avoid, the Final Decision Rule.
o Rule 54(b) permits appeals of interlocutory decisions in cases with multiple claims or
multiple parties. In order for a party to be able to appeal using this rule, the following
requirements must be satisfied:
 There must be multiple claims or parties.
32
Civil Procedure II – Smith
Spring 2012
The court must have entered final judgment on one or more, but not all, of the
claims or parties.
 The court must make an express determination that it would make the most sense
to appeal the decision immediately. To do this, the court should balance the
prejudice to the losing party against the need to conserve judicial resources.
o 28 U.S.C. § 1292(a)(1) states the interlocutory decisions are immediately appealable if the
order was to grant, continue, modify, refuse, dissolve, or refuse to dissolve or modify an
injunction.
o 28 U.S.C. § 1292(b) states that interlocutory decisions are immediately appealable when: the
court determines an order that involves a controlling question of law as to which there is
substantial ground for difference of opinion, and an immediate appeal from the order may
materially advance the ultimate termination of the litigation.
 In this case, the court must make a certification to this effect.
 A party then has the right to appeal within 10 days of receiving the certification.
 The Court of Appeals has discretion and does not have to hear the appeal.
o The Collateral Order Doctrine states that some interlocutory decisions must be appealed
because waiting until the end of the trial would make an appeal useless.
 This doctrine is construed very narrowly.
 A personal jurisdiction determination is not a collateral order.
 In order for an order to be appealable under this doctrine, the following three
requirements must be fulfilled:
 The issue must be conclusively resolved,
 The issue must be totally collateral from the merits, and
 The issue would not be effectively reviewable after final judgment is
entered.
New York has adopted a different rule than the federal courts. In New York, a party can appeal almost
any interlocutory decision. There are benefits and costs to this approach regarding efficiency and
fairness.

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SECTION 6.3 – STANDARDS OF APPELLATE REVIEW
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There are three standards of review: the de novo standard, the abuse of discretion standard, and the
clearly erroneous standard.
The de novo standard applies only to questions of law.
o This standard gives the trial court no deference.
o The Court of Appeals reviews the legal decision of the trial court anew and makes the same
inquiry as the trial court.
o The rationale is that the trial court is in no better position than the appellate court to
determine the applicable law.
The abuse of discretion standard applies to discretionary matters of the trial court.
o This standard applies to evidentiary decisions and preliminary injunctions.
o Substantial deference is given to the trial court.
o The appellate court can only check to see if the trial court abused its discretion.
o Merely finding that the court could have come to a different conclusion is not enough to meet
this standard.
The clearly erroneous standard applies only to questions of fact.
o This standard also gives the trial court substantial deference, more so than the abuse of
discretion standard.
33
o
o
o
o
o
This is the hardest standard to overcome.
A mere disagreement in a close case will not overcome this standard.
The standard is that no reasonable jury (or judge, in cases in which the judge is the fact
finder) could have reached this factual conclusion as a matter of law.
Rule 52(a) requires that this standard be used when reviewing findings of fact.
The rationale is that the fact finder on the trial level is in a better position than the appellate
court to evaluate the facts. The jury sat through a trial, saw the witnesses on the stand, and
made the ultimate determination. In contrast, the appellate court is only viewing the record
provided on paper.
34
Civil Procedure II – Smith
Spring 2012
APPENDIX A – EXAM CHECKLIST
Instructions:
Read exam three times. On the first read, do not make any notes. On the second read, make notes on the exam.
On the third read, highlight the sections of the checklist that are at issue. Be sure to read through the checklist
after finishing the first read to be sure that anything that is not highlighted truly does not apply.
After marking up the exam and highlighting the checklist, type up a skeleton outline. It should consist of
headings/subheadings for each issue and a list of applicable tests and cases below each heading. Use your
outline to go in depth.
1.
2.
3.
4.
Discovery Question
a. Is the material discoverable?
i. Should this have been disclosed under mandatory disclosure/supplementation?
1. Rule 26(a)
2. Rule 26(e)
ii. Does it fall under the general scope of discovery?
1. Rule 26(b)
iii. Is there an exception?
1. Is this material privileged?
2. Is this material protected under the work product doctrine?
3. Is the party trying to subject a hired expert to discovery?
iv. Can the court issue a protective order or limit discovery?
b. When is each device appropriate?
i. Oral deposition?
ii. Deposition upon written questions?
iii. Interrogatories?
iv. Production of Property?
v. Physical and Mental Examination?
vi. Request to Admit?
Erie Doctrine Question
a. Should state law or federal law govern?
i. See flow chart.
ii. 28 U.S.C. 1652
iii. 28 U.S.C. 2072
b. If state law, whose state law?
c. What is the state law?
When can a case be dismissed?
a. Failure to state a claim?
b. Summary judgment?
c. Judgment as a matter of law?
d. Renewed judgment as a matter of law?
e. Motion for a new trial?
f. Voluntary dismissal?
g. Dismissal for failure to prosecute?
h. Default judgment?
Trial Question
a. Should this be tried by a judge or by a jury?
35
5.
6.
7.
b. Is this a claim in law or equity, or both?
c. Use the Curtis Test.
Claim/Defense Preclusion Question
a. What type of preclusion is this?
b. If it is obvious that claim preclusion does not apply, why?
c. Go through the requirements:
i. Are the parties the same?
ii. Is the claim the same?
1. Federal courts use the “transaction or occurrence” test.
2. State courts might use any of the four testes.
iii. Is the judgment final?
iv. Was the judgment made on the merits?
Issue Preclusion Question
a. What type of issue preclusion is this?
b. Are the parties the same? If so, go through the four requirements:
i. Same issue,
ii. Actually litigated,
iii. Actually decided,
iv. Necessary to the judgment.
c. Are the parties different? If so, in addition to the above requirements, analyze:
i. Does the jurisdiction allow non-mutual issue preclusion at all?
ii. If so, under what circumstances?
iii. Under the facts of this particular case, would the preclusion be allowed?
d. Did the law change?
e. Did the facts change?
Post Trial Errors Question
a. Which rule should the party use to seek relief?
b. What are the grounds for seeking relief?
c. What standard of review should be used? Is this a question of fact or law?
i. De novo?
ii. Abuse of discretion?
iii. Clearly erroneous?
36
Civil Procedure II – Smith
Spring 2012
APPENDIX B – LIST OF RULES AND STATUTES
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