Civil Procedure II
I. Pleading
1. Of Formulas and Facts
A. Generally, a court wants to know 3 things:
i) what kind of case this is
ii) does it belong in this court
iii) does this claim belong in any court
B. Rule 7. Pleadings Allowed; Form of Motions and Other Papers
(a) Pleadings. Only these pleadings are allowed:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
a complaint;
an answer to a complaint;
an answer to a counterclaim designated as a counterclaim;
an answer to a crossclaim;
a third-party complaint;
an answer to a third-party complaint; and
if the court orders one, a reply to an answer.
(b) Motions and Other Papers.
(1) In General. A request for a court order must be made by motion.
The motion must:
II. be in writing unless made during a hearing or trial;
III. state with particularity the grounds for seeking the order; and
IV. state the relief sought.
(1) . . .
 Notes:
 R 15 for amendments only relates to pleadings and not motions
B. Rule 7
i) Pleadings allowed:
(a) Complaint
(b) Answer
(c) Reply
ii) 7(b)
(a) motions are different than pleadings
C. History
i) Early common Law
(a) writ-pleading
(b) concentration on doctrine
(c) Problems:
(1) Parties often didn't know actual dispute before entering court
because facts had been forced into the writs = lack of notice
(2) Plaintiff was forced into picking legal doctrine that would control the
case at the outset
ii) Field Codes
(a)
(b)
(c)
(d)
reform efforts begun by David Dudley Field in the 19th century
concentration not on formula, but facts
State statutes called "Field Codes"
Advantages of Specificity:
(1) To the Judge
 knows if there's legal sufficiency
 can weed out the un-meritorious claims
 creates factual plausibility
(2) To the opposing party
 Notice of the basis of the lawsuit
(e) Problems
(1) Plaintiffs creating "facts" to fit certain remedies
iii) Federal Rules of Civil Procedure
(a) 1938
(b) 4 Distinct features
(1) they merged law and equity
(2) established broad and flexible joinder of claims and parties
(3) created powerful procedures for pretrial discovery
(4) sought a way of defining pleading that de-emphasized its role in
litigation and avoided both the required formulas of the writs and the
"facts" of the codes
iv) Purpose of Specificity
(a) serve notice
(b) soundness of legal theory
(c) plausibility
D. Rule 8
i) General Rules of Pleading
(a) Claim For Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's
JURISDICTION unless the court already has jurisdiction and the
claim needs no new jurisdictional support
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief
2. Challenging the Complaint
A. Rule 12(b)(1)
i) Lack of subject matter jurisdiction
B. Rule 12(b)(2)
i) Lack of personal jurisdiction
C. Rule 12(b)(6)
i) Can challenge the plaintiff's complaint for being deficient under R
8(a)(2) in 2 Ways:
3. The facts pled do not state a valid legal claim
(1) i.e. the plaintiff's legal theory of recovery is not sound
(2) Conley v. Gibson
 the "no set of facts" language from Gibson still applies to challenges to
the validity of the legal claim
4. The complaint is deficient because it fails to plead the facts in question with the
required amount of specificity
(1) Twombly, Iqbal
(2) needs to now be "plausible"
B. Note:
i) R 12(h)(1)(B)(ii) can save a defense in Rule 12 that was not included in
the original answer through R 15(a)(1) which allows an amended
pleading as a matter of course, granted this isn't a situation in which a
responsive pleading is required under R 7 and it is within 21 days
5. Common Law Dilatory or Peremptory pleas
A. Dilatory Pleas = not on the merits
i) Jurisdiction
(a)
(b)
(c)
(d)
(e)
"Not here"
defendant asserts that the case does not belong in federal court
Result = court dismisses the case
12(b)(1) and (2)
NOT ON THE MERITS
ii) Suspension
(a) "Not now"
(b) defendant is unable to defend case at the present time - i.e. is on active
duty in the military
(c) Result = court stays case until defendant can defend
(d) typically handled as a defense or by more comprehensive statutory
scheme
(e) NOT ON THE MERITS
iii) Abatement
(a)
(b)
(c)
(d)
(e)
"Not until this is fixed"
Defendant asserts that case is brought in wrong venue
Result = court transfers or dismisses case
12(b)(3)
NOT ON THE MERITS
B. Peremptory Pleas = forces the pleader to take a position about the
factual allegations of the complaint
i) Demurrer
(a)
(b)
(c)
(d)
"So what?"
defendant asserts that complaint does not state a claim
Result = court dismisses the case
12(b)(6) or demurrer
ii) Traverse
(a)
(b)
(c)
(d)
"Didn't happen" or "I didn't do it"
defendant asserts that claims are false
Result = court grants judgment on merits for defendant
Denial - contained in answer
iii) Confession and avoidance
(a) "Yes . . . but"
(b) Defendant asserts that claim doesn't matter - i.e. statute of limitations
has run
(c) Result = court grants judgment on merits for defendant
(d) Affirmative defense (contained in answer)
6. Haddle v. Garrison (1996)
A. Facts:
i) Haddle was an "at-will" employee for Healthmaster Home Health Care,
Inc.
ii) Haddle claimed that he was improperly discharged by Healthmaster in
an attempt to deter his participation as a witness in a Federal criminal
trial
iii) In 1995, a federal grand jury indictment charged Healthmaster and
B.
C.
D.
E.
Garrison and Kelly (officers at Healthmaster) with Medicare Fraud
iv) Haddle cooperated with the investigation, showed up to testify under
subpoena, but was not called to testify
v) Haddle asserts that they and another employee at Healthmaster
conspired to have him fired
Procedure:
i) Haddle sought damages under 42 USC 1985(2) and state law
ii) Defendants moved to dismiss under R 12(b)(6)
Issue: Should the motion to dismiss be granted?
Holding: Yes.
Analysis:
i) R 12(b)(6) challenges the legal sufficiency of the claim
(a) a court must assume that all of the factual allegations of the plaintiff are
true
ii) Haddle asserted that he could maintain an action under 42 USC 1985
even though he as an "at-will" employee, however this goes against
precedent in this Circuit
iii) In Morast v. Lance, this Circuit held that an at-will employee had no
constitutionally protected interest in continued employment, and
therefore that case was dismissed as this one should be
(a) Because Haddle had no injury based on this precedent, he can have no
recovery and therefore his complaint fails to state a claim on which relief
can be granted
F. Judgment: 1985(2) claim is dismissed, and the state claim is dismissed
without prejudice
G. Appellate Court affirmed on appeal, and the Supreme Court granted
certiorari . . .
7. Haddle v. Garrison, 525 U.S. 121 (1998)
A. Issue: Can Haddle state a claim for damages by alleging that a
conspiracy proscribed by S. 1985(2) induced his employer to terminate
his at-will employment?
B. Holding: Yes. "such interference with at-will employment may give rise
to a claim for damages under the Civil Rights Act of 1871, 42 USC
1985(2)"
C. Analysis:
i) The circuits are split on this issue
ii) The 11th Circuit was wrong to conclude that a petitioner must suffer
an injury to a "constitutionally protected property interest"
(a) Nothing in the language of the Act suggests such a requirement
iii) the wrong proscribed by the Act is not deprivation of property, but
intimidation or retaliation against witnesses in federal proceedings
D. Judgment: Reversed and Remanded
8. winning a 12(b)(6) motion to dismiss increases the settlement
value for the plaintiff
9. Court of Appeals (Sec. 1291) Final Decision of District Courts
A. Court of Appeals has jurisdiction for final decisions
10.
Interpreting Rule 8
A. Conley v. Gibson (1957)
i) "a complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
ii) The role of the complaint is to give the defendant notice of the action
against him
iii) The purpose of Rule 8 is to facilitate a proper decision on the merits
(a) it is not a game of skill in which one misstep by counsel may be decisive
to the outcome
B. Bell Atlantic Corp. v. Twombly (2007)
i) Facts:
(a) Plaintiffs brought antitrust action against local telephone and internet
providers
(b) complaint alleged parallel conduct between the companies
ii) Issue = what is the proper standard for pleading an antitrust
conspiracy through allegations of parallel conduct?
iii) Holding: "Plaintiff's obligation to provide 'grounds' of his 'entitlement
to relief' requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do."
iv) Analysis:
(a) THE FACTUAL ALLEGATIONS MUST BE ENOUGH TO RAISE A RIGHT
TO RELIEF ABOVE THE SPECULATIVE LEVEL
(b) discovery and litigation take up time and money, and therefore the facts
must be something beyond a mere possibility
(c) Rejects Conley's "no set of facts" language
(d) does not require heightened fact pleading, but ENOUGH FACTS TO
STATE A CLAIM TO RELIEF THAT IS PLAUSIBLE ON ITS FACE
v) Notes
(a) defendant was challenging the specificity of the complaint with a R
12(b)(6) motion to dismiss
C. Ashcroft v. Iqbal (2009)
i) Facts:
(a) Iqbal brought suit against numerous government officials claiming they
violated his civil rights
(1) Bivens Action = A lawsuit brought to redress a federal official's
violation of a constitutional right.
 allows federal officials to be sued in a manner similar to that set forth in
42 USC 1983 for state officials who violate a person's constitutional
rights under color of state law
(2) Allegation was that the government instituted a policy which unfairly
discriminated against Muslim men because of their race, religion, or
ethnicity.
 Names Aschcroft as the "principal architect"
 Mueller was "instrumental in its adoption, promulgation, and
implementation"
(b) Defendants moved for 12(b)(6) motion to dismiss
(1) District court denied motion
(2) Defendants brought interlocutory appeal
 Court of Appeals affirmed the District Court
 (However, during this time Bell Atlantic is decided)
ii) Qualified Immunity is an appealable situation without final judgment
(a) if it turns on an issue of law
iii) Sufficiency of a complaint is not "fact-based"
(a) therefore the denying of the motion to dismiss by the District Court is a
final decision, reviewable by the Court of Appeals and Supreme Court
iv) *the analysis for specificity will be a "context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense."
v) Iqbal would have had to have shown that the implementation of the
policy was for the purpose of discrimination
(a) not simply that the discrimination was collateral to the legitimate policy
(b) *So, these are the facts that he must allege
vi) Court rejects argument that a superior's knowledge of wrongdoing is
enough to say that the superior violated the Constitution
(a) The government had conceded this point however in their brief (the
dissent picks it up)
vii) 2 PRINCIPLES OF TWOMBLY (as laid out by Iqbal)
(a) the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions
(1) not required to take as true a legal conclusion couched as a factual
allegation
(2) *Rule 8 does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions
(b) Only a complaint that states a plausible claim for relief survives a motion
to dismiss
viii)
Like Twombly, the allegations could just as easily be seen as
completely legitimate behavior
ix) DISSENT
(a) "The complaint alleges that FBI officials discriminated against Iqbal
solely on account of his race, religion, and national origin, and it alleges
the knowledge and deliberate indifference that, by Ashcroft and
Mueller's own admission, are sufficient to make them liable for the illegal
action"
V. CIVIL PROCEDURE QUIZ 2
1. Special Cases, Special Pleading Rules
A. Rule 9. Pleading Special Matters
i) (b) Fraud or Mistake; Conditions of Mind.
(a) In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person's mind may be alleged
generally.
B. 9(b) is a compromise
i) heightened pleading for the instance of fraud
ii) no heightened pleading requirement for the mental state
C. 9(b) and specificity
i) specific in pointing to the instance of fraud
ii) the mental state language of "alleged generally" refers back to Rule 8
as interpreted through Iqbal
(a) So, while one is able to allege the mental condition of the person's mind
generally, one must still provide factual allegations that make it plausible
that the other party in fact had that mental condition
(b) the Rule appears to distinguish between information which the plaintiff
should readily have access to prior to the filing of the complaint and
information which is under the control of the defendant
D. Result:
i) Often the party who fails to state the allegations with specificity will
be allowed leave to amend under Rule 15
E. Fraud:
i) statement of fact that is false
ii) awareness of the statement's falsity
iii) intending reliance on the part of the listener
iv) reliance
v) damages
F. Why require heightened pleading standard for fraud?
i) The potential damages are greater as punitive damages are allowed.
ii) The evidence used to prove fraud will be circumstantial.
(a) There's a heightened risk that justice will not be served in fraud claims
because the jury could find the defendant guilty, even if it's not the truth
G. Stradford v. Zurich Ins. Co. (2002)
i) Facts
(a) Stradford, a dentist, purchased an insurance policy from an affiliate of
Zurich to insure his office that would cover him from Aug. 18, 1999 until
Aug. 19, 2000
(b) Stradford failed to pay the premiums and was dropped from the policy
from Oct. 10, 1999 to Dec. 6, 1999
(c) the policy was reinstated on Dec. 14, 1999
(d) Stradford filed a claim for $151,154.74 for water damage which he
discovered on Jan. 17, 2000.
(e) Northern paid the claim
(f) Stradford filed a revised claim for $1,385,456.70
(g) Northern's investigation showed that the damage had occurred during
the time in which Stradford's policy had lapsed.
ii) Procedure
(a) Stradford brings suit to recover the money on the claim (minus the sum
already paid)
(b) Zurich counterclaims for fraud under Rule 9(b)
(1) seeking recovery of money already paid and punitive damages, plus
investigation costs
(c) Stradford moves to dismiss under Rule 12(b)(6) for failing to state the
claim with sufficient specificity
iii) Issue: Are the allegations in the counter claim sufficiently particular
to dismiss under Rule 9(b)?
iv) Holding: No. They do not satisfy the particularity requirement.
v) Analysis:
(a) 9(b) requires specificity and under the holding in Ross v. Bolton this
means that the counter-claim must state the, "time, place, and nature of
the [alleged] misrepresentations" so as to put the party accused of fraud
on notice of the particular allegation
(b) the counterclaim failed to identify the specific statement it claims to be
false
vi) Judgment: Grant Defendants leave to amend.
(a) And, because they already did this, summary judgment for the
defendants because Stradford breached the contract by failing to
cooperate in the investigation
H. ITT Sheraton Corp. v. Lanco Inns, Inc. (1998)
i) Specific Facts regarding fraud:
(a)
(b)
(c)
(d)
identity of the fraudulent party
identity of those to whom the fraudulent assertion was made
dates and locations of meetings between the parties
exchange of any documents between the parties
2. Allocating the elements of a Claim
A. Which elements of the claim must be part of the complaint, and which are
"defenses" which the defendant must plead in the answer?
i) Important because whichever party has the burden of pleading an
issue generally also has the burden of producing the evidence.
B. Jones v. Block, 127 S.Ct. 910 (2007)
i) Facts:
(a) Jones was a prisoner in a Michigan prison. He had apparently suffered
injuries in jail and the prison guards refused to assign him to work that
he could accomplish taking into account his injuries.
(b) the Prison Litigation Reform Act (PLRA) 42 USC 1997 et seq. required
that inmates complaining about prison conditions exhaust prison
grievance remedies before initiating a lawsuit.
ii) Procedure:
(a) Jones brought suit under 42 U.S.C. 1983
(b) Supreme Court consolidated his claim with others to deal specifically
with the pleading issue
iii) Issue: Is the exhaustion requirement under the PLRA a pleading
requirement for the plaintiff, or an affirmative defense that the
defendant must plead and prove?
iv) Holding: Failure to exhaust is an affirmative defense under the
PLRA and inmates are not required to plead, nor prove that they
exhausted all of their administrative remedies.
v) Analysis:
(a) The claims were brought under 42 USC 1983, not the PLRA
(1) 1983 does not require exhaustion at all
(b) In other contexts, exhaustion is usually an affirmative defense
(c) The PLRA does not specify who is supposed to plead the issue
(1) this is further evidence that the usual practice should be followed
(d) Requirements for heightened pleading rules should be amended in the
Rules, not through judicial interpretation
C. Analysis for a court when faced with this problem
i) Look to the words of the statute
(a) does it specify?
ii) Look to Rule 8(c) which provides a non-exhaustive list of affirmative
defenses
iii) Examine the Legislative history of the statute
iv) Look to the "usual practice"
3. Ethical Limitations in Pleading - and in Litigation Generally
A. What responsibilities does the lawyer bear to her client and to the legal
system?
B. Rule 11. Signing Pleadings, Motions, and Other Papers;
Representations to the Court; Sanctions
(a) Signature. Every pleading, written motion, and other paper MUST
BE SIGNED BY AT LEAST ONE ATTORNEY OF RECORD IN THE
ATTORNEY'S NAME - or by a party personally if the party is
unrepresented. The paper must state the signer's address, e-mail
address, and telephone number. Unless a rule or statute
specifically states otherwise, a pleading need not be accompanied
by an affidavit. THE COURT MUST STRIKE AN UNSIGNED
PAPER UNLESS THE OMISSION IS PROMPTLY CORRECTED after
being called to the attorney's or party's attention.
(b) Representations to the Court. By presenting to the Court a
pleading, written motion, or other paper - whether by signing,
filing, submitting, OR LATER ADVOCATING IT - AN ATTORNEY OR
UNREPRESENTED PARTY CERTIFIES THAT TO THE BEST OF
THE PERSON'S KNOWLEDGE, INFORMATION, AND BELIEF,
FORMED AFTER AN INQUIRY REASONABLE UNDER THE
CIRUMCANCES:
(1) IT IS NOT BEING PRESENTED FOR ANY IMPROPER PURPOSE such
as to harass, cause unnecessary delay, or needlessly increase the
cost of litigation;
(2) the claims, defenses, and other legal contentions ARE WARRANTED
BY EXISTING LAW or by a non frivolous argument for extending,
modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have EVIDENTIARY SUPPORT or, if
specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of
information.
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond,
the court determines that Rule 11(b) has been violated, the court may
impose an appropriate sanction on any attorney, law firm, or party
that violated the rule or is responsible for the violation. Absent
exceptional circumstance, a law firm must be held jointly responsible
for a violation committed by its partner, associate, or employee.
(2) Motion for Sanctions. A motion for sanctions must be made
SEPARATELY from any other motion and MUST DESCRIBE THE
SPECIFIC CONDUCT that allegedly violates Rule 11(b). The motion
must be served under Rule 5, but it must not be filed or be presented
to the court if the challenged paper, claim, defense, contention, or
denial is withdrawn or appropriately CORRECTED WITHIN 21 DAYS
after service or within another time the court sets. If warranted, the
court may award to the prevailing party the reasonable expenses,
including attorney's fees, incurred for the motion.
(3) On the Court's Initiative. On its own, the court may order an
attorney, law firm, or party to show cause why conduct specifically
described in the order has not violated Rule 11(b).
(4) Nature of Sanctions. A sanction imposed under this rule must be
LIMITED TO WHAT SUFFICES TO DETER repetition of the conduct or
comparable conduct by others similarly situated. The sanction may
include non monetary directives; an order to pay a PENALTY TO THE
COURT; or if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of part or all of
the reasonable attorney's fees and other expenses directly resulting
from the violation.
(5) Limitations on Monetary Sanctions. The court must not impose a
monetary sanction:
VI. against a represented party for violating Rule 11(b)(2); or
VII. on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary
dismissal or settlement of the claims made by or against the party that is, or whose
attorneys are, to be sanctioned
(1) Requirements for an Order. An order imposing a sanction must
describe the sanctioned conduct and explain the basis for the
sanction.
(b) Inapplicability to Discovery. This rule does not apply to
disclosures and discovery requests, responses, objections, and
motions under Rules 26 through 37.
B. Background of Rule 11
i) Tensions:
(a) the lawyer as advocate
(b) the lawyer as officer of the court
C. How to seek sanctions
i) draw up form
ii) send to opposing party
iii) wait 21 days, then file with the court
D. Culpability under Rule 11
i) measured at the time the paper was filed
(a) so, if lawyer later finds out it's false, they are not liable
ii) However, Rule 11(b) states that "later advocating" the paper is
sanctionable
E. Bridges v. Diesel Service, Inc. (1994)
i) Procedure:
(a) Bridges brings suit against DSI under the Americans with Disabilities
Act (ADA)
(1) alleges that he was fired because of a disability
(b) Court dismissed complaint without prejudice for failure to exhaust
administrative remedies.
(1) *He did not file a charge with the Equal Employment Opportunity
Commission until after the commencement of the action, which is
required under the ADA
(c) DSI moved for sanctions under Rule 11
ii) Issue: Does the plaintiff's attorney's failure to file a charge with the
EEOC warrant sanctions?
iii) Holding: No. Rule 11 is not a general fee-shifting device, it is meant
to deter.
iv) Analysis:
(a) the attorney did fail to do even basic research or she would have known
that she had to file the complaint with the EEOC
(b) However, monetary sanctions are not required in this case to deter.
(c) Sanctions should be reserved for particularly egregious acts
v) Judgment: motion for sanctions denied.
F. Walker v. Norwest Corp. (1996)
i) Procedure:
(a) Plaintiff's attorney (Massey) filed a complaint in district court for the
District of South Dakota
(1) complaint stated that jurisdiction was based on diversity of
citizenship, because some of the parties were diverse
(b) Defendants told Massey how deficient his complaint was, and that they
would move for sanctions if not fixed
(1) He didn't respond substantively
(c) Defendants moved to dismiss and for an award of sanctions
(d) District Court granted the 12(b)(1) motion to dismiss and sanctioned
Massey $4,800
(e) Massey appealed
ii) Issue: Was the sanction appropriate?
iii) Holding: Yes. The District Court did not abuse its discretion in
determining that sanctions were appropriate.
iv) Analysis:
(a) Massey had the burden to plead citizenship, and failed to do so.
v) Judgment: Affirmed
G. Christian v. Mattell, Inc. (2003)
i) Facts: Christian (through her attorney, Hicks) created a Barbie doll
that she claimed was stolen by Mattell. However, the doll that
allegedly stole Christian's idea was made 5 years prior to Christian's
doll as evidenced by the copyright on the doll's head.
ii) Procedure:
(a) Christian brought suit for damages in the amount of $2.4 billion
(b) Mattell tried to persuade Hicks that he had no claim, but he did not drop
the suit
(c) Mattell served Hicks with the Rule 11 motion
(1) Hicks didn't withdraw the complaint in 21 days
(d) Mattell filed the motion with the Court
(e) District Court granted the motion for summary judgment and Rule 11
sanctions for $501,565 to be paid to Mattell in attorney's fees
(f) Hicks appealed
(1) argued that the District Court took other misbehavior into
consideration
(g) The Appellate court vacated and remanded because it appeared that
they took Hicks' actions into considerations
(1) Rule 11 is limited to papers, not conduct
2. Responding to the Complaint
A. Pre-Answer Motions
i) Rule 12(b) motions
ii) (b)(1)-(6) are the favored motions
iii) Rule 12(e) Motion for a more definite Statement
(a) rarely used, and even more rarely is it successful
(b) If a claim is really so vague, it will be subject to a 12(b)(6) motion to
dismiss
iv) Rule 12(f) Motion to Strike
(a) 2 Roles:
(1) allows a party to challenge a part of a pleading that fails under the
substantive law, even though the rest of the pleading states a claim
or defense
 acts like a 12(b)(6) motion directed at a single allegation
(2) forces removal of irrelevant and prejudicial allegations in a pleading
v) Rule 12(c) Motion for Judgment on the pleadings
(a) the plaintiff's 12(b)(6)
B. The Answer
i) Rule 8
(a) (b) Defenses; Admissions and Denials.
(1) In General. In responding to a pleading, a party must:
3. state in short and plain terms its defenses to each claim asserted against it; and
VIII. admit or deny the allegations asserted against it by an opposing party
(1) Denials - Responding to the Substance. A denial must fairly
respond to the substance of the allegation.
(2) General and Specific Denials. A party that intends in good faith to
deny all the allegations of a pleading - including the jurisdictional
grounds - may do so by a general denial. A party that does not
intend to deny all the allegations must either specifically deny
designated allegations or generally deny all except those specifically
admitted.
(3) Denying Part of an Allegation. A party that intends in good faith to
deny only part of an allegation must admit the part that is true and
deny the rest.
(4) Lacking Knowledge or Information. A party that lacks knowledge or
information sufficient to form a belief about the truth of an allegation
must so state and the statement has the effect of a denial.
(5) Effect of Failing to Deny. An allegation - other than one relating to
the amount of damages - is admitted if a responsive pleading is
required and the allegation is not denied. If a responsive pleading is
not required, an allegation is considered denied or avoided.
(b) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must affirmatively
state any avoidance or affirmative defense, including:
 accord and satisfaction;
 arbitration and award;
 assumption of risk;
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contributory negligence;
discharge in bankruptcy;
duress;
estoppel;
failure of consideration;
fraud;
illegality;
injury by fellow servant;
laches;
license;
payment;
release;
res judicata;
statute of frauds;
statute of limitations; and
waiver.
(2) Mistaken Designation. If a party mistakenly designates a defense as
a counterclaim, or a counter claim as a defense, the court must, if
justice requires, treat the pleading as though it were correctly
designated, and may impose terms for doing so
(c) Pleading to Be Concise and Direct; Alternative Statements;
Inconsistency.
(1) In General. Each allegation must be simple, concise, and direct.
No technical form is required.
(2) Alternative Statements of a Claim or Defense. A party may set out 2
or more statements of a claim or defense alternatively or
hypothetically, either in a single count or defense or in separate
ones. If a party makes alternative statements, the pleading is
sufficient if any one of them is sufficient.
(3) Inconsistent Claims or Defenses. A party may state as many
separate claims or defenses as it has, regardless of consistency.
(d) Construing Pleadings. Pleadings must be construed so as to do
justice.
ii) 2 essential variations:
(a) Denials
(1) defendant denies the truth of one or more of the allegations of
the complaint, or states that he doesn't have the information
(which works as a denial)
(2) most common
(3) Zielinski v. Philadelphia Piers, Inc. (1956)
 Facts:
 there was an accident between Zielinski and Sandy Johnson
 Procedure:
 Zielinski filed a complaint for personal injuries from the accident
 Paragraph 5: "a motor-driven vehicle known as a fork lift or chisel,
owned, operated and controlled by the defendant, its agents, servants
and employees, was so negligently and carelessly managed . . . that
the same . . . did come into contract with the plaintiff causing him to
sustain the injuries more fully hereinafter set forth."
 In its answer, PPI denied the averments in paragraph 5
 During interrogatories, Johnson asserted that he was an employee
of PPI
 he didn't know that he had been transferred to the payroll of Carload
Co., who had purchased PPI's business of moving freight along the
pier
 PPI then finally admitted that they owned the forklift and were
leasing it to Carload
 Issue: Should the claim be dismissed because of PPI's inaccurate denial
of paragraph 5?
 Holding: No. The jury should be instructed that Zielinski was working
at the time as an agent of PPI, even though he was actually an employee
of Carload
 Analysis:
 Rule 8(b) requires that a denial shall specify that a denial is only
denying one part of a given paragraph
 Zielinski would have assumed that PPI was denying the fact that the
fork lift was driven negligently, not that Johnson was not an agent of
theirs
 It is equitable for PPI not to be able to claim that Johnson was not
their agent because their inaccurate denial (which they should have
known was inaccurate) will deprive Zielinski of his cause of action,
thereby greatly prejudicing him
 if the case were dismissed, the statute of limitations would have run.
(b) defendant states affirmative defenses
(1) i.e. the statute of limitations has run, or others under Rule 8(c)
 Rule 8(c) is not exhaustive however
B. Default
i) Rule 55
ii) about 60% of all civil claims are for breach of contract, and the law
does not give the defendant many defenses, so they thereby default
2. Reply/Amendment of Pleadings
A. Reply
i) Rule 7(a)(3)
(a) requires a reply if the answer contains "a counterclaim designated as a
counterclaim."
(1) Professor Wright suggests that when a reply to a counterclaim is
required, such reply should only be to the counterclaim
(2) However, lawyers frequently will reply to all new matter to avoid a
possible inadvertent admission
3. CIVIL PROCEDURE QUIZ 3
A. Rule 15. Amended and Supplemental Pleadings
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading
once as a matter of course within:
4. 21 days after serving it, or
 [This will only relate to an answer -
5. if the pleading is one to which a responsive pleading is required, after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b),(e), or (f),
whichever is earlier.
 [Pleadings
''to which a responsive pleading is required'' usually mean
only complaints and third-party complaints, as those are the only
''pleadings'' listed in Rule 7 that require a response
(2) Other Amendments. In all other cases, a party may amend its
pleading only with the opposing party's written consent or the court's
leave. The court should freely grant leave when justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any required
response to an amended pleading must be made within the time
remaining to respond to the original pleading or within 14 days after
service of the amended pleading, whichever is later.
(b) . . .
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
IX. the law that provides the applicable statute of limitations allows relation back;
X. the amendment asserts a claim or defense that arose out of the conduct, transaction,
or occurrence set out - or attempted to be set out - in the original pleading; or
XI. the amendment changes the party or the naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m)
for serving the summons and complaint, the party to be brought in by amendment:
1. received such notice of the action that it will not be prejudiced in defending on the merits;
and
2. knew or should have known that the action would have been brought against it, but for a
mistake concerning the proper party's identity
 ...
ii) PURPOSE
(a) EASY AMENDMENT, which allows the pleading to reflect the parties
changed view of the case as it develops, and
(b) PREJUDICE, reflecting the idea that at some point the other side has to
make decisions about how to present its case.
iii) Beeck v. Aquaslide N' Dive Corp. (1977)
(a) Facts:
(1) Beeck was severely injured while using a waterslide
(2) Aquaslide notified its insurer who made an on site review
 the insurer believed it to be an Aquaslide slide
(3) 6 and a half months after the SOL had run, Aquaslide's president
visited the site prior to his deposition, and determined that it was not
an Aquaslide slide
(b) Procedure:
(1) Beeck sued Aquaslide, a TX corporation, alleging it manufactured the
slide involved in the accident
 sought to recover substantial damages on theories of negligence, strict
liability, and breach of implied warranty
(2) Aquaslide admitted manufacture of the slide, but later moved to
amend its answer to deny manufacture
(3) District Court granted leave to amend
(4) Aquaslide moved for a new trial on the issue of "whether the
defendant designed, manufactured or sold the slide in question."
 jury returned a verdict for Aquaslide, and the trial judge entered
summary judgment of dismissal of the case
(5) Beeck appealed
(c) Issues:
(1) Was it an abuse of the trial court's discretion to grant leave to amend
to the manufacturer in order to deny the admissions after the running
of the statute of limitations?
 Holding: No. "the trial court did not abuse its discretion in allowing the
defendant to amend its answer."
 Analysis:
 the granting of right to leave to amend is well within the discretion of
the trial court and will not be overturned unless there has been an
abuse of discretion
 There was no bad faith on the part of Aquaslide, as they relied on the
conclusions of 3 different insurance companies
 the plaintiffs are not prejudiced, in that they can still bring suit
against other parties
 it would have been prejudicial to the defendant not to allow
amendment
(2) Was it an abuse of the trial court's discretion to further grant the
manufacturer's motion for a separate trial on the issue of
manufacture?
 Holding: No. "the Rule 42(b) separation was not an abuse of
discretion."
 Analysis:
 Aquaslide based their motion to separate the trial on:
B. that it would save considerable trial time, and
C. that it would protect Aquaslide from substantial justice
 plaintiffs chose to stand on their contention that Aquaslide
manufactured the slide
 If this issue were resolved in Aquaslide's favor, it would mean that
they were exonerated from liability
(b) Allow Freely very important here
ii) RULE 15 TEST FOR ALLOWING LEAVE "WHEN JUSTICE SO
REQUIRES"
(a) THE AMENDER SHOULD HAVE A GOOD REASON FOR THE ORIGINAL
COMPLAINT'S FAILURE TO INCLUDE THE ISSUE
(b) ALLOWING THE CHANGE SHOULDN'T CAUSE PREJUDICE TO THE
OTHER SIDE
(1) How does the initial pleading affect the other party's claim?
 similar to "but-for" causation
 can also argue how they will be hurt by allowing the amendment (Meier
says this is not as good an argument)
 however, the other side will argue all of the negative impacts that the
decision will cause
 the totality of the prejudice will most likely be the most persuasive
iii) Rule 15(c) and Relating Back
(a) After the statute of limitations has run
(b) TEST FOR DETERMINING WHETHER SOMETHING RELATES BACK
(1) IS THE AMENDMENT ALLOWED UNDER R 15(a)?
(2) DOES IT RELATE BACK UNDER R 15(c)?
 15(c)(1)(A)
 when the statute allows it to relate back
 Rare
 15(c)(1)(B)
 arises out of the same transaction in the original pleading
 very similar to Supplemental Jurisdiction test under 28 USC 1367
 *purpose is to provide defendant of notice of possible suit
 15(c)(1)(C)
 party received notice
 party knew or should have known that they would be the defendant
but for a mistake in identity of the plaintiff
 note: if the state law that applies to the case has a more forgiving
principle of relation back than the one in the rule, it should be available
to save the claim
(c) Moore v. Baker (1993)
(1) Facts:
 Moore consulted Dr. Baker about a blockage of her carotid artery, and
he recommended surgery, warned her about the risks, and she signed a
consent form.
 the operation went badly, and Moore was severely and permanently
disabled
 Moore sued Baker alleging that he had violated GA's informed consent
law
 Baker filed a motion for summary judgment on the issue of informed
consent
 20 days later, Moore moved to amend her complaint to assert allegations
of negligence by Baker in the performance of the surgery and his
post-operation care
 the District Court denied her motion to amend on the ground that the
claim was barred by the statute of limitations
(2) Issue: Should the amendment be allowed in that it should relate back
to the original complaint?
(3) Holding: "the amended complaint does not relate back to the original
complaint . . . the district court did not abuse its discretion in denying
Moore's motion to amend her complaint." "Moore's new claim does
not arise out of the same conduct, transaction, or occurrence as the
claims in the original complaint."
(4) Analysis:
 The issue comes down to whether or not the original complaint gave the
defendant notice that the new claim would be asserted
 Moore cites Azerbal v. Medical Center of Delaware, Inc.:
 original complaint alleged negligence in the performance of an
amniocentesis on the plaintiff, resulting in injury to a fetus
 after the SOL had run, the plaintiff sought to amend the complaint to
add a claim that the doctor failed to obtain her informed consent
prior to performing a sterilization procedure on her because the
doctor did not tell her that the fetus had probably been injured by the
amniocentesis
 This case is distinguishable from Azerbal
 There is nothing in Moore's original complaint that makes any reference
to any acts of alleged negligence by Baker
 In fact, Moore's complaint is very specific as to the lack of informed
consent and also recounts the surgery, but does not hint at any
negligence during that operation
 the original complaint focuses on Baker's actions prior to the surgery =
the new complaint focuses on different times and involves separate and
distinct conduct
 Moore would have to prove completely different facts for the amended
complaint
(5) Amendment not allowed
(d) Bonerb v. Richard J. Caron Foundation
(1) Facts:
 Plaintiff sought damages for personal injuries when he slipped and fell
while playing basketball on defendant's court as part of the clinic's
mandatory exercise program
 the claim was that the court was negligently maintained
 Defendant is a non-profit rehabilitation facility
 Plaintiff moved to amend the complaint to add a new cause of action for
"counseling malpractice"
(2) Issue: Should the amendment be allowed?
(3) Holding: Yes. "The allegations in the original and amended
complaints derive from the same nucleus of operative facts involving
injury suffered by the plaintiff . . ."
(4) Analysis:
 "An amendment which changes the legal theory of the case is
appropriate if the factual situation upon which the action depends
remains the same and has been brought to the defendant's attention by
the original pleading"
 the original complaint alleged that the injury was caused by defendant's
failure to properly supervise and/or instruct plaintiff
 the defendant will not be prejudiced because the period for discovery
has not passed and depositions of defendant's personnel have not been
taken, nor have expert witness information been exchanged
 there is also no showing of undue delay or bad faith
(5) Amendment Allowed
D. Rule 20 and Joinder of Parties
i) PURPOSE =
(a) IT IS MORE EFFICIENT TO LITIGATE ALL MATTERS IN ONE
PROCEEDING, RATHER THAN IN MULTIPLE SEPARATE SUITS
(b) AVOIDS THE POSSIBILITY OF INCONSISTENT JUDGMENTS ON THE
SAME ISSUE
ii) (a)(1) Plaintiffs: Person may join in one action as plaintiffs if:
(a) (a)(1)(A) = arising out of the same transaction, occurrence, or series of
transactions or occurrences, OR
(b) (a)(1)(B) = any question of law or fact common to all plaintiffs will arise in
the action.
(1) Mosley v. General Motors Corp.
iii) (a)(2) Defendants: Person may be joined in one action as defendants
if:
(a) (a)(2)(A) = arising out of the same transaction, occurrence, or series of
transactions or occurrences, OR
(b) (a)(2)(B) = any question of law or fact common to all plaintiffs will arise in
the action.
XII. Joinder of Claims
1. Rule 18
A. Very Generous Rule
i) Plaintiff can join any and all claims he has against a single defendant
ii) Does not compel joinder, merely allows it
(a) res judicata, however often requires plaintiffs to bring all claims
B. *Applies to counterclaims, crossclaims, or third-party claims
2. R 42(b)
A. Permits the trial judge to sever claims for trial convenience.
3. Rule 13 and Counterclaims
A. TEST FOR WHETHER A COUNTERCLAIM IS COMPULSORY - DOES IT
ARISE OUT OF THE SAME TRANSACTION OR OCCURRENCE?
i) ARE THE ISSUES OF FACT AND LAW RAISED BY THE CLAIM AND
COUNTERCLAIM LARGELY THE SAME?
ii) WILL SUBSTANTIALLY THE SAME EVIDENCE SUPPORT OR REFUTE
PLAINTIFF'S CLAIM AS WELL AS DEFENDANT'S COUNTERCLAIM?
B. PURPOSE = TO PROVIDE COMPLETE RELIEF TO THE DEFENDANT
WHO HAS BEEN BROUGHT INVOLUNTARILY INTO THE FEDERAL
COURT.
C. R 13(a) Compulsory Counterclaim
i) (a)(1) must state as a counterclaim:
XIII. arises out of same transaction or occurrence
XIV. does not require adding another party over whom the court cannot acquire
jurisdiction
A. R 13(b) Permissive Counterclaims
i) A pleading may state as a counterclaim against an opposing party
any claim that is not compulsory.
B. R 13(g) Crossclaim
i) arises out of the same transaction or occurrence
C. R 13(h) Joining Additional Parties
i) Rules 19 and 20 govern the addition of a person as a party to a
counterclaim or crossclaim.
D. Plant v. Blazer Financial Services (1979)
i) Facts:
(a) Truth in Lending Action
(b) Plaintiff Plant owed money to Blazer and had not paid
ii) Procedure:
(a) Plaintiff brought action under s. 1640 of the Truth-in-Lending Act
(1) for failure to make disclosures required by the Act
(b) Defendant counterclaimed for the unpaid money
(c) Trial Court:
(1) ruled in favor of plaintiff on the Truth in Lending claim [Defendant
appealed this issue]
(2) uses the statutory penalty to partially off-set the debt owed
(3) found counterclaim to be compulsory [Plaintiff appealed this issue]
iii) Issue: Whether the underlying debt on a Truth in Lending case is a
compulsory counterclaim
iv) Holding: It is. The obvious interrelationship of the claims and rights
of the parties, coupled with the common factual basis of the claims,
demonstrates a logical relationship between the claim and
counterclaim and is therefore compulsory
v) Analysis:
(a) If the claim is treated as permissive, defendant's action on the
underlying debt would have to be brought in state court
(b) 4 Tests for determining whether or not a claim is compulsory
(1) Issues of fact and law are largely the same
(2) Would res judicata bar a subsequent suit?
(3) would substantially the same evidence be used?
(4) Is there a logical relation between the claim and the counterclaim?
 *Yes to any of these, and the claim is compulsory
(c) One of the purposes of the compulsory counterclaim rule is to provide
complete relief to the defendant who has been brought involuntarily into
the federal court
(d) Congress did not intend to make the federal courts a sanctuary for
plaintiffs from debt counterclaims
XV. Joinder of Parties
1. By Plaintiffs
A. Mosley v. General Motors Corp. (1974)
i) Procedure:
(a) Mosley and 9 others joined in bringing an action based on discrimination
against GM and the local Union
(1) they joined individually and as class representatives
(b) all 10 had filed a charge with the EEOC and the EEOC made a reasonable
cause finding that GM and the Union had engaged in unlawful
employment practices in violation of Title VII of the Civil Rights Act of
1964
(c) all plaintiffs requested injunctive relief, back pay, attorney's fees and
costs
(d) Counts 11 and 12 of the complaint were class actions against GM
(e) The District Court severed the first 10 counts into 10 causes of action
(f) Interlocutory appeal was granted
ii) Issue: Should the parties be allowed to join under Rule 20?
iii) Holding: Yes. The parties meet both prerequisites for permissive
joinder. The difficulties in ultimately adjudicating damages to the
various plaintiffs are not so overwhelming as to require severance.
iv) Analysis:
(a) Rule 20 is designed to promote trial convenience and expedite the final
determination of disputes, thereby preventing multiple lawsuits
(b) Prerequisites for the joinder of parties:
(1) must relate to or arise out of the same transaction or occurrence
 R 13(a) offers guidance to the application of the test
 "transaction" is flexible and means a logical relationship
(2) some question of law and fact common to all the parties must arise in
the action
 R 23(a) offers guidance
 common questions have been found in a wide range of contexts
(c) The plaintiffs have asserted a right arising out of the same general policy
of discrimination on the part of GM and the Union similar to that of
Mississippi's policy of disenfranchising African-American citizens
(d) The fact that the class members may have suffered different effects is
immaterial, because in class actions, the defendant's conduct is what
constitutes the class
v) Judgment: Judgment disallowing joinder of the actions is reversed
and remanded with directions to let the plaintiffs proceed
(a) If appropriate, however, separate trials may be granted as to any
particular issue after the determination of common questions
B. Larson v. American Family Mutual Ins. Co. (2007)
i) Facts:
(a) Plaintiffs had a house fire and their insurance company refused to pay
the claim
(b) Plaintiff's attorney had apparently not pursued this claim because he
had been hired to represent the insurance company in other matters
(c) Plaintiffs discharged their attorney, Ross-Shannon, and retained new
counsel
ii) Procedure:
(a) Plaintiffs sued insurance company in CO state court
(1) breach of contract and bad faith
(b) Insurance company removed to federal court
(c) several months later, plaintiffs sought to amend the complaint to include
Ross-Shannon as a defendant, which would eliminate diversity
jurisdiction
(d) Defendants objected
iii) Issue: Should the joinder of Ross-Shannon be allowed?
iv) Holding: Yes.
v) Analysis:
(a) Defendant's arguments:
(1) The motion to amend was not filed timely and the conspiracy claim is
unsupportable and therefore arguably futile
 plaintiff didn't find out about the information which is the basis for the
conspiracy charge until after discovery
 plaintiffs would be prejudiced if not allowed to amend because they
would have to bring a similar suit in state court
 plaintiffs did not act in bad faith - they brought Ross-Shannon in when
they had the information to do so, not just as a ploy to defeat diversity
jurisdiction
(2) If the conspiracy charge is not allowed, the joinder of new parties
should not be allowed under Rule 20 because they would then not
arise out of the same occurrence
 the duties of the defendants may be different, but the breaches of their
duties arise out of the same transaction, or series of transactions
 it would be inefficient to hold 2 trials in which essentially the same
documents and witnesses would be presented
vi) Judgment: Remanded to State Court
2. By Defendants: Third-Party Claims
A. Rule 14. Third-Party Practice
(a) When a Defending Party May Bring in a Third Party.
(1) Timing of Summons and Complaint. A defending party may, as
third-party plaintiff, serve a summons and complaint on a nonparty
who is or may be liable to it for all or part of the claim against it. But
the third-party plaintiff must, by motion, obtain the court's leave if it
files the third-party complaint more than 14 days after serving its
original answer.
(2) Third-Party Defendant's Claims and Defenses. The person served
with the summons and third-party complaint - the "third party
defendant":
3. must assert any defense against the third-party plaintiff's claim under Rule 12;
XVI. must assert any counterclaim against the third-party plaintiff under Rule 13(a), and
may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any
crossclaim against another third-party defendant under Rule 13(g);
XVII. may assert against the plaintiff any defense that the third-party plaintiff has to the
plaintiff's claim; and
XVIII. may also assert against the plaintiff any claim arising out of the transaction or
occurrence that is the subject matter of the plaintiff's claim against the third-party
plaintiff.
(1) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may
assert against the third-party defendant any claim arising out of the
transaction or occurrence that is the subject matter of the plaintiff's
claim against the third-party plaintiff. The third-party defendant
must then assert any defense under Rule 12 and any counterclaim
under Rule 13(a), and may assert any counterclaim under Rule 13(b)
or any crossclaim under Rule 13(g).
(2) Motion to Strike, Sever, or Try Separately. Any party may move to
strike the third-party claim, to sever it, or to try it separately.
(3) Third Party Defendant's Claim Against a Nonparty. A third-party
defendant may proceed under this rule against a nonparty who is or
may be liable to the third-party defendant for all or part of any claim
against it.
(b) . . .
(c) When a Plaintiff May Bring in a Third Party. When a claim is
asserted against a plaintiff, the plaintiff may bring in a third party if
this rule would allow a defendant to do so.
ii) . . .
B. Price v. CTB, Inc. (2001)
i) Facts:
(a) Price, a chicken farmer, hired Latco to build a new chicken house
ii) Procedure:
(a) Price sued Latco (40 identical lawsuits were filed against Latco)
(1) breach of construction contract
(2) fraudulent misrepresentation
(3) negligence and wantonness of construction
(b) Case is removed
(c) Latco moved to file third-party complaint against ITW 6 months after the
case had been removed
(d) Third Party complaint against Latco:
(1) Latco alleges that the nails (and the nail guns) were defectively
manufactured
(2) breach of warranty
(3) violation of Alabama's Extended Manufacturer's Liability Doctrine
(4) indemnity
(e) ITW moved to dismiss
iii) Issue: Is there a legal basis for impleading ITW?
iv) Holding: Yes, Alabama law provides Latco a cause of action under
common law indemnity against ITW
v) Analysis:
(a) Rule 14 allows a defendant to assert a claim against anyone not a party
to the original action if that third party's liability is in some way
dependant on the outcome of the original action
(b) Limitation:
(1) A Third-Party claim will not be permitted when it is based upon a
separate and independent claim
(c) Implied Contractual Indemnity Requirements:
(1) the seller is without fault
(2) the manufacturer is responsible, and
(3) the seller has been required to pay a monetary judgment
(d) The rule permits Latco to implead any party who "may be liable"
(e) A properly impleaded claim may serve as an anchor for separate and
independent claims
C. Kroger v. Omaha Public Power District (1975)
i) Facts:
(a) Kroger, an employee of Paxton & Vierling Steel Co. in Carter Lake, IA,
was electrocuted while at work
(b) he was helping move a large steel tank by means of a crane with a
60-foot boom
(c) his job was to walk alongside the tank and steady it as the crew moved it
with a crane.
(d) electricity form high-tension lines arced over to the boom, through the
tank, and through Kroger, killing him
(e) Omaha Power (OPPD)
(1) a public corporation of the state of Nebraska who had owned the
transmission lines
(2) they had sold the lines to Paxton and Vierling and now sold
electricity to them and made repairs upon request
(f) Owen Equipment & Erection Co. (Owen)
(1) owned the crane and leased it to P & V
(g) Paxton and Vierling Steel Co. (P & V)
(1) owner of the lines, and lessee of the crane
(2) Kroger's estate could not bring suit against them because of
worker's compensation laws
ii) Procedure:
(a) Administratrix, Geraldine Kroger brought wrongful death suit based on
diversity jurisdiction against OPPD in Nebraska federal District Court
(state claims)
(b) OPPD impleads Owen under R 14(a)(1)
(c) Kroger files claim against Owen under R 14(a)(3)
(d) OPPD moves for summary judgment
(e) Summary judgment is granted:
(1) P & V clearly owned the power lines
(2) OPPD had no duty to maintain the lines
(3) OPPD was not told to discontinue power running through the lines
nor that a crane was running on that day
(f) Trial proceeds with Owen Equipment as the only defendant
(g) 3d Day of trial it is discovered that Owen's principal place of business
was in Carter Lake IA and not Nebraska as their answer to Kroger's
complaint would have led the the plaintiff to believe
(h) Owen moves to dismiss under R 12(b)(6)
(1) [Owen would want to stay in and hide behind the ball until the SOL
had run]
(i) District Court refused to grant Owen's motion to dismiss and Kroger
won a jury verdict
(j) Court of Appeals Affirmed
(k) Supreme Court Reverses . . .
D. Owen Equipment & Erection Co. v. Kroger (1978)
i) Issue: Should the judgment stand when diversity was not complete?
ii) Holding: No. Neither the convenience of litigants nor considerations
of judicial economy can suffice to justify extension of the doctrine of
ancillary jurisdiction to a plaintiff's cause of action against a citizen of
the same State in a diversity case.
iii) Analysis:
(a) Federal courts are of limited jurisdiction and precedent requires
complete diversity
(b) Kroger's claim against Owen was completely separate from the original
claim against OPPD = new and independent cause of action
(c) Kroger voluntarily chose to bring suit in federal court, and must accept
the limitations of the forum
E.
F.
G.
H.
I.
iv) Judgment: Reversed
This decision led to 28 USC 1367(b):
i) when the original suit is based on diversity
ii) only when the initial plaintiff seeks to assert a claim
Rule 14 Attractiveness for Defendants:
Gives them a way of bringing into the suit anyone who might also be
liable and therefore required to foot some of the damage award
Gives them a way of delaying the case and making litigation more
expensive for the plaintiff by adding another party
Qualification
i) Under R 14, a third-party complaint is appropriate only in cases where
the proposed third party defendant would be secondarily liable to the
original defendant in the event the latter is held to be liable to the
plaintiff
(a) "If I'm guilty, then so is this guy" not - "I'm not guilty because this other
guy did it"
2. Compulsory Joinder
A. "necessary and indispensable parties" concept arose in 18th Century
equity practice
B. Based on the idea that:
i) litigation often affected people who weren't formal parties; and
ii) if the effects were serious enough and the affected persons could be
joined, they should be
C. Classic Case involving compulsory joinder:
i) Defendant brings R 19 failure to join a required party motion
(a) usually because that other party would destroy diversity jurisdiction, or
(b) the Court would not have personal jurisdiction over the party
(c) this creates delay and confusion for the plaintiff
D. Rule 19. Required Joinder of Parties
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process and
whose joinder will not deprive the court of subject-matter jurisdiction
must be joined as a party if:
XIX. in that person's absence, the court cannot accord complete relief among existing
parties; or
XX.that person claims an interest relating to the subject of the action and is so situated
that disposing of the action in the person's absence may:
1. as a practical matter impair or impede the person's ability to protect the interest; or
2. leave an existing party subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations because of the interest
(1) Joinder by Court Order. If a person has not been joined as required,
the court must order that the persons be made a party. A person
who refuses to join as a plaintiff may be made either a defendant or,
in a proper case, an involuntary plaintiff.
(2) Venue. If a joined party objects to venue and the joinder would
make venue improper, the court must dismiss that party.
(b) When Joinder is Not Feasible. If a person who is required to be
joined if feasible cannot be joined, the court must determine
whether, in equity and good conscience, the action should
proceed among the existing parties or should be dismissed. The
factors for the court to consider include:
(1) the extent to which a judgment rendered in the person's absence
might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
XXI. protective provisions in the judgment;
XXII. shaping the relief; or
XXIII. other measures;
(1) whether a judgment rendered in the person's absence would be
adequate; and
(2) whether the plaintiff would have an adequate remedy if the action
were dismissed for nonjoinder.
B. Determining Factor (generally)
i) R 19(b)(4) = whether the plaintiff would have an adequate remedy if
the action were dismissed for nonjoinder
C. Temple v. Synthes Corp. (1990)
i) Facts:
(a) Temple, MS resident, underwent back surgery in Oct. 1986, in which a
"plate and screw" device was implanted in his lower spine
(b) Device was manufactured by Synthes, a PA corporation
(c) Following surgery, the device's screw broke off inside Temple's back
ii) Procedure:
(a) Temple files suit in US District Court for the Eastern District of LA
(1) based on diversity jurisdiction
(2) alleged design and manufacture of the device
(b) Temple also filed Administrative proceeding against Dr. LaRocca and
the hospital for malpractice and negligence
(c) Temple, after the proceedings, filed suit against the doctor and hospital
in LA state court
(d) Synthes filed motion to dismiss Temple's federal suit for failure to join
necessary parties pursuant to R 19
(e) District Court orders Temple to join the doctor and hospital
(1) Reason was based on judicial economy
(f) Temple joins the parties, and the case is dismissed with prejudice
(g) 5th Circuit Court of Appeals Affirms
(1) "obviously prejudicial to the defendants to have separate litigations
being carried on"
iii) Issue: Was it proper to label the doctor and hospital as indispensable
parties, and to dismiss with prejudice for failure to join them?
iv) Holding: No. There is no need to examine the factors of R 19(b)
because the threshold question of R 19(a) have not been satisfied.
They were merely permissive parties as joint tortfeasors.
v) Analysis:
(a) It has long been the rule that it is not necessary for all joint tortfeasors to
be named as defendants in a single suit.
vi) Judgment: Reversed and Remanded
D. Typical situations where the rule applies: only when "there is some
connection of property ownership, contract rights, or obligations
between those who are initially made parties and those who have not
been joined."
i) Cases involving joint obligees or joint obligors, where they're not all
there
ii) Cases involving ownership of, or interests in, real or personal
property
iii) Cases involving representative parties in which either the
representative or some of the parties being represented are not
included
iv) claims to a limited fund or pool of assets
2. Intervention
A. R 24. Intervention
(a) Intervention of Right. On timely motion, the court must permit
anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action
may as a practical matter impair or impede the movant's ability to
protect its interest, unless existing parties adequately represent that
interest
(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit anyone to
intervene who:
XXIV. is given a conditional right to intervene by a federal statute; or
XXV. has a claim or defense that shares with the main action a common question of law
or fact.
(a) . . .
(b) (3) Delay or Prejudice. In exercising its discretion, the court must
consider whether the intervention will unduly delay or prejudice the
adjudication of the original parties' rights
ii) (c) Notice and Pleading Required. A motion to intervene must be
served on the parties as provided in Rule 5. The motion must state
the grounds for intervention and be accompanied by a pleading that
sets out the claim or defense for which intervention is sought.
B. To permit an unjoined person to elbow their way into a suit where no one
wants them
C. Natural Resources Defense Council v. U.S. Nuclear Regulatory
Commission (1978)
i) Players:
(a) American Mining Congress
(b) Kerr-McGee
ii) Underlying Action:
(a) Plaintiffs = Natural Resources Defense Council, Inc. (and others)
(1) seeking declaratory and injunctive relief against . . .
(b) Defendants =
(1) U.S. Nuclear Regulatory Commission (NRC)
 authorized by the Atomic Energy Act to issue licenses
 allowed to enter into agreements with states allowing them to issue
licenses
(2) New Mexico Environmental Improvement Agency (NMEIA)
(c) Joiner = United Nuclear Corporation
(1) motion to join was not opposed
(d) NRDC sought to prohibit these agencies from issuing licenses for the
operation of uranium mills in NM without first preparing environmental
impact statements
(1) they argue that:
 NRC's involvement makes the issuing of licenses by NM sufficiently
federal to require the impact statements as they would have to under the
National Environmental Protection Act (NEPA)
 if no statement is required, then the NM program is in conflict with the
Atomic Energy Act
(e) United Nuclear and Kerr-McGee are potential recipients of the licenses
iii) Procedure:
(a) after United Nuclear joins:
(1) Kerr-McGee, Anaconda Co., Gulf Oil, Phillips, and the American
Mining Congress file motions to intervene
 they were denied as a right = they could be adequately represented by
United Nuclear
 permissive intervention also denied
(2) Kerr-McGee and American Mining Congress appeal
iv) Issue: Was the denial of intervention correct within the confines of R
24(a)?
v) Holding: No.
vi) Analysis:
(a) Standards of R 24(a)(2):
(1) Does the applicant claim an interest relating to the property or
transaction which is the subject of the action?
 Yes. "The interest asserted on behalf of Kerr-McGee and the American
Mining Congress is one which is a genuine threat to Kerr-McGee and the
members of the American Mining Congress to a substantial degree."
 a direct interest is not required
 the outcome could be that an environmental impact statement is
required, or the issuance of an injunction terminating or suspending the
agreement between NRC and NMEIA
 *this would have a profound effect on Kerr-McGee, as they are one of the
largest holders of uranium properties in NM
 *Kerr-McGee has a NMEIA license which is pending approval
(2) Are the claimants so situated that the disposition of the action may
as a practical matter impair or impede their ability to protect that
interest?
 Yes. The appellants have satisfied the impairment criterion
 the language is of a "practical matter" and therefore the precedential
nature of the decisions is as important to any res judicata effect
(3) Is the interest not being adequately represented by existing parties?
 It is not.
 United Nuclear may be ready to compromise the case by obtaining a
mere declaration that while the impact statements should be issued,
they should only be required for licenses issued after the decision
 *The possibility of divergence need not be great
 *There is some value in having the parties before the court so that they
are bound by the decision
vii) Judgment: Reversed and Remanded with instructions to allow
intervention by Kerr-McGee and American Mining Congress
D. Requirements under R 24(a)(2):
2. "timely motion"
3. Interest in the litigation
4. interest is impaired or impeded by current structure of litigation
(a) similar requirement under R 19
5. interest not adequately represented by the parties in the suit
XXVI.
CIVIL PROCEDURE QUIZ 5
1. Discovery
A. Types
i) Disclosures
(a) Initial Disclosures under R 26(a)
(b) Relevance under R 26(b)(1)
(1) Is it probative?
 Is it possible that the information sought will make an issue of fact
more/less likely?
(2) Is it material?
 Is that issue or fact part of the party's claim or defense, or more broadly
part of the subject matter of the lawsuit?
(c) Davis v. Precoat Metals (2002)
(1) Facts:
 Plaintiffs Davis, et al sued their employer Precoat Metals alleging race
and national origin discrimination and retaliation in violation of Title VII
 allegations included being exposed to a hostile working
environment, racially insulting and derogatory comments,
discrimination in placement, assignments, promotions and
discipline
 Plaintiffs moved to compel discovery of discrimination complaints made
against the defendant by non-clerical/non-administrative employees
who worked at the same plant as the plaintiffs
(2) Issue: Must the defendant allow discovery of this information?
(3) Holding: Yes. Other employees' complaints of discrimination may
be relevant to establish pretext.
(4) Analysis:
 The plaintiffs sought information that was tailored to their claim:
 at the same plant
 same types of employees
 same behavior by defendant
(d) Steffan v. Cheney (1990)
(1) Facts:
 Steffan retired from the Naval Academy in 1987 after an administrative
board recommended that he be discharged because of his statements
proclaiming himself a homosexual
 Steffan filed suit claiming that he was constructively discharged and
challenging the constitutionality of the regulations that provided for the
discharge of admitted homosexuals
 Defendants, while deposing Steffan, asked whether he had engaged in
homosexual conduct during or after his tenure as a midshipman.
 Steffan refused to answer claiming a 5th Amendment privilege
 District Court issued a warning, then dismissed after Steffan refused to
answer again
 Steffan appealed
(2) Issue: Must Steffan be required to answer?
(3) Holding: No. The information is not relevant.
(4) Analysis:
 The recommendation for dismissal was based on Steffan's admitting
that he was a homosexual, not because he engaged in homosexual
activity during or after his resignation.
 If he was in fact wrongfully discharged, he has never been discharged in
the eyes of the law, and therefore the district court could not stop his
readmission based on activity he engaged in after resigning that now
would be a reason for dismissing him
ii) Written Interrogatories R 33
(a) Typically much cheaper for the interrogator because one can
inexpensively frame a set of appropriate questions
(b) Drawback = cannot follow up
(c) Main role = to identify persons and documents in the possession of the
other side - persons, things, documents and digital information not
listed in the disclosures
iii) Production of Records R 34 & 45(a)(1)(A)(iii)
(a) R 34
(1) any tangible thing
(2) can get documents that relate to issues of damages like medical
records
(3) use for parties = send a R 34 Request
(b) 45(a)(1)(A)(iii)
(1) can subpoena documents from non parties through this rule
iv) Depositions R 30 & 45
(a) like asking questions at trial, in that an attorney asks questions under
oath with a court reporter present
(b) good for forcing a witness to take a position on an issue and can lead to
new avenues of discovery
(c) disadvantage is expense
(d) total number of depositions is limited to 10
(e) deposition cannot last more than one day of seven hours
(f) no person may be deposed twice without permission of the court
v) Physical or mental Examinations R 35
vi) Requests for Admissions R 36
(a) usable only against parties
(b) in writing
(c) relatively cheap
(d) of limited usefulness
(e) Primary role = to make evidence irrelevant by taking an issue out of
controversy
(f) most effective when used to eliminate essentially undisputed issues
vii) Butler v. Rigsby
(a) Facts:
(1) automobile accident in which Butler and others, alleging injuries
from a collision involving a gravel truck, sued Rigsby, the driver, and
his employer
(2) American Medical Group (AMG) and Midtown Health Care (MHC) are
not parties to the suit, but treated all of the plaintiffs
(b) Procedure:
(1) Rigsby and Co. filed notices of depositions on AMG and MHC,
requesting certain documents and information including:
2. A listing of the Total Number of patients referred to AMG and/or MHC by Castro, Tolchinsky,
and/or the PILC (plaintiffs attorneys)
3. A computer printout of AMG's and MHC's current patients
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(1) AMG and MHC moved for a protective order on the grounds that the
information was not relevant, some of it is privileged, and the request
was overburdensome
(2) The Magistrate ruled that most of it was discoverable
(3) AMG and MHC objected to the ruling
Issue #1: Is the listing of the total number of patients referred to the
medical providers relevant?
Holding: Yes.
Analysis:
(1) Evidence of a special relationship between an expert witness and
legal counsel is relevant to demonstrate the possible bias of the
expert witness and discovery that is reasonably calculated to lead to
such evidence should be permitted under R 26(b)(1)
(2) the expense of burden of producing this evidence did not outweigh
its likely benefits
Judgment: Defendants shall pay one-half the costs associated with
composing the list
Issue #2: Is a computer printout of the current patients discoverable?
Holding: No. The list is privileged and not relevant.
Analysis:
(1) LA courts have broadly interpreted the scope of the health care
provider-patient privilege
B. The Duty to Preserve Evidence: Spoliation
i) THE DESTRUCTION OR MATERIAL ALTERATION OF EVIDENCE OR
THE FAILURE TO PRESERVE PROPERTY FOR ANOTHER'S USE AS
EVIDENCE IN PENDING OR REASONABLY FORESEEABLE
LITIGATION
(a) The right to sanction for spoliation arises from the court's inherent
power to control the judicial process
(b) The policy underlying the inherent power of the courts is the need to
preserve the integrity of the judicial process in order to retain confidence
that the process works to uncover the truth
ii) Silvestri v. General Motors Corp. (2001)
(a) Facts:
(1) Silvestri filed a products liability action against GM alleging that the
airbag in a 1995 Chevrolet Monte Carlo he was driving did not deploy
as warranted when he crashed into a pole, thereby enhancing his
injuries
(2) While in the hospital, his attorney retained 2 accident
reconstructionists who examined the vehicle and concluded that the
airbag was defective and instructed the attorney to let GM see the
vehicle
(3) Nobody took any steps to preserve the vehicle or to notify GM
(4) GM was not notified of the accident until 3 years later at the
beginning of the lawsuit
(5) trial court dismissed the claim because he failed to give GM notice of
his claim and an opportunity to inspect the vehicle
(b) Issue #1: Did Silvestri have a duty to preserve the vehicle even though
he was not the owner?
(c) Holding: Yes. He failed to preserve material evidence in anticipation of
litigation or to notify GM of the availability of the evidence, thus
breaching his duty not to spoliate evidence.
(d) Analysis:
(1) duty to preserve arises not only during, but before trial as well when
a party should reasonably know that the evidence may be relevant to
anticipated litigation.
(2) even if he is unable to preserve, he must give the opposing party
notice of the evidence's existence
(3) He had access to the vehicle
(4) His experts were given access to the vehicle
(5) The vehicle was preserved in its post-accident condition for perhaps
2-3 months
(e) Issue #2: Was dismissal an unduly harsh sanction for the spoliation that
occurred?
(f) Holding: No.
(g) Analysis:
(1) the spoliation "highly prejudiced" GM
(2) GM could not develop a "crush" model to prove that the airbag
properly failed to deploy
 this would be critical to their case
(3) because of the spoliation, GM could not resolve the critical question
of how Silvestri injured his head
4. Limitations on Discovery
A. Privilege
i) typically protect information from certain sources
ii) has nothing to do with relevance
iii) normally blocks information from a particular source, not the
underlying facts
iv) Types:
(a) attorney-client
(b) doctor-patient
(c) spousal
v) They can be waived
(a) failing to assert it, or
(b) taking some action inconsistent with claiming it
(1) disclosing the privileged material to a third party
B. Trial Preparation Material
i) Hickman v. Taylor
(a) Facts:
(1) the tug, "J.M. Taylor" sank and 5 of the 9 crew members drowned
(2) The tug owners hired Fortenbaugh's firm to represent them
(3) Fortenbaugh interviewed the surviving members of the crew with an
eye toward litigation
(4) Hickman's estate brought suit under the Jones Act naming as
defendant the two tug owners and the railroad
(5) Petitioner filed 39 interrogatories directed to the tug owners
(6) Petitioner sought information about the interviews Fortenbaugh had
conducted including all statements taken in writing, and if oral a
recollection of the interview
(7) Fortenbaugh refused to summarize or set forth the contents of the
interviews claiming privilege in preparation of trial
(8) the District Court ordered Fortenbaugh to answer, he refused, and
the court ordered him jailed, but stayed the sentence for appeal
(b) Issue: What is the extent to which a party may inquire into oral and
written statements of witnesses, or other information, secured by an
adverse party's counsel to the course of preparation for possible
litigation after a claim has arisen?
(c) Holding: As to oral statements mad by witnesses to Fortenbaugh,
whether presently in the form of his mental impressions or memoranda,
there is no showing of necessity that can be made under the
circumstances of this case so as to justify production
(d) Analysis:
(1) to order the production of private recollections is against public
policy which underlies the orderly prosecution and defense of legal
claims
(2) it is essential for an attorney to work with a certain degree of privacy
(3) this could cause a chilling effect in what gets written down
ii) Today, work-product privilege is codified under R 26(b)(3)
(a) 3 Categories of work product:
C. documents prepared in anticipation of litigation that contain information that
can be reasonably obtained through other means = discovery is barred
D. if the requesting party demonstrates a substantial need for materials developed
in anticipation, and that similar information cannot be obtained through other
means without substantial hardship = court may order production of the
materials
E. opposing counsel's thought process in preparing a case, such as legal theories
or litigation strategy = cannot be discovered under the rule
F. Expert Information
i) A party presenting an expert must first establish that he or she is an
expert and that the expertise is relevant to contested issues
ii) Both Rules of Evidence and case law require that a judge certify an
expert as "reliable," in the sense that he or she is drawing on a
testable body of knowledge and is qualified to testify about the
particular dispute.
iii) Federal Rule of Evidence 702
(a) An expert witness is a person whose testimony, because of her
specialized knowledge, skill, experience, training, or education, will
assist the trier of fact in understanding the facts and reaching
conclusions on the contested issues.
iv) Thompson v. The Haskell Co.
(a) Facts:
(1) Plaintiff = Thompson
(2) Defendant = The Haskell Co.
(3) Thompson moved for a protective order under R 26(c)(1)
 Seeking that a personality profile and diagnostic review taken of
Thompson by a psychologist (at the behest of her former counsel) be
protected
(4) Thompson was suing for sexual harassment, the result of which was
that she became depressed
(5) Thompson had been fired on June 5, 1992
(6) The examination by the psychologist occurred on June 15, 1992
(7) Complaint filed Sept. 23, 1993
(b) Issue: Is the psychologist's report discoverable?
(c) Holding: Yes. The circumstances meet the standard in R 26(b)(4)(B)(ii)
(d) Analysis:
(1) Her mental state only ten days after she was fired is highly probative
as to whether she was mentally harmed in the manner which she
alleges
(2) No other report was prepared so closely in time to the incident =
Haskell Co. could not acquire the information in any other way.
v) Chiquita International Ltd. v. M/V Bolero Reefer
(a) Facts:
(1) Plaintiff/Shipper = Chiquita
(2) Defendant/Carrier = International Reefer Services, S.A.
(3) Bolero was supposed to transport 154,660 boxes of bananas from
Ecuador to Germany
(4) IR seeks to compel discovery of Joseph Winer
 Winer is a marine surveyor who had examined the vessel and loading
gear after it landed in Germany
 IR wants the report he prepared
(5) Chiquita objected to the discovery because Winer is a non-testifying
witness under R 26(b)(4)(B)
(6) IR claims that Winer is a fact-witness and not an expert, and even if
he is an expert, he's the only surveyor who observed the vessel, and
therefore these are extreme circumstances justifying discovery
(b) Issue: Is the report by Winer discoverable?
(c) Holding: No.
(d) Analysis:
(1) Winer qualifies as a non-testifying expert
 he used his technical background in observing the condition of the gear
and offering his opinion to Chiquita
 It doesn't matter whether he discovered "facts" or made opinions - the
rule is designated against protecting the findings of experts not against
the finding of opinions (as opposed to facts)
(2) This is not an extreme circumstance justifying discovery
 the vessel and equipment were available to IR as well
 also, IR's employees had exclusive control of the vessel and equipment
for the entire voyage
(3) However, the facts discovered are relevant, and therefore Chiquita is
required to turn over those parts of the file that do not reflect Winer's
observations and opinions
G. Discovery and Privacy
i) Stalnaker v. Kmart Corp. (1996)
(a) Facts/Procedure:
(1) Plaintiff sued Kmart, alleging that one of her co-workers sexually
harassed her
(2) Plaintiff noticed depositions on 4 non-parties claiming that
investigation has revealed that they may have information about the
sexual harassment
(3) Defendant Moved for a protective order
 claiming that information concerning their past sexual behavior is
irrelevant and would invade their privacy rights
(b) Issue: Are these people amenable to deposition, and if so, are their past
sexual behaviors private as to warrant a protective order?
(c) Holding: The court will not preclude inquiry about any voluntary
romantic or sexual activities with Graves to the extent they show any
conduct on his part to encourage, solicit, or influence any employee of
defendant to engage in or continue in such activities. However,
because the information is potentially embarrassing, the parties shall
use such discovery only for purposes of this litigation and shall not
disclose it to anyone outside the litigation.
(d) Analysis:
(1) Whether or not to enter a protective order is within the sound
discretion of the courts
(2) The party seeking a protective order has the burden to show good
cause for it
(3) Any sexual harassment by Graves is relevant whether of plaintiff or
of others
(e) Judgment: Plaintiff may not pursue discovery from the potential
deponents about any voluntary romantic or sexual activities, except to
the limit in this opinion, and no party shall otherwise disclose that
information
XXVII.
Summary Judgment
1. Rule 56. Summary Judgment
(a) By a Claiming Party. A party claiming relief may move, with or
without supporting affidavits, for summary judgment on all or part
of the claim. The motion may be filed at any time after:
(1) 21 days have passed from commencement of the action; or
(2) the opposing party serves a motion for summary judgment.
(b) By a Defending Party. A party against whom relief is sought may
move at any time, with or without supporting affidavits, for
summary judgment on all or part of the claim.
(c) Serving the Motion; Proceedings. The motion must be served at
least 14 days before the day set for the hearing. An opposing
party may serve opposing affidavits before the hearing day. The
judgment sought should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.
(d) Case Not Fully Adjudicated on the Motion.
(1) Establishing Facts. If summary judgment is not rendered on
the whole action, the court should, to the extent practicable,
determine what material facts are not genuinely at issue. The
court should so determine by examining the pleadings and
evidence before it and by interrogating the attorneys. It
should then issue an order specifying what facts - including
items of damages or other relief - are not genuinely at issue.
The facts so specified must be treated as established in the
action.
ii) (2)Establishing Liability. An interlocutory summary judgment may
be rendered on liability alone, even if there is a genuine issue on the
amount of damages.
B. (e) Affidavits; Further Testimony.
(1) In General. A supporting or opposing affidavit must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant is competent to testify on
the matters stated. If a paper or part of a paper is referred to in
an affidavit, a sworn or certified copy must be attached to or
served with the affidavit. The court may permit an affidavit to
be supplemented or opposed by depositions, answers to
interrogatories, or additional affidavits.
(2) Opposing Parties Obligations to Respond. When a motion for
summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in
its own pleading; rather, its response must - by affidavits or as
otherwise provided in this rule - set out specific facts showing
a genuine issue for trial. If the opposing party does not so
respond, summary judgment should, if appropriate, be entered
against that party.
C. (f) When Affidavits Are Unavailable. If a party opposing the motion
shows by affidavit that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained,
depositions to be taken, or other discovery to be undertaken;
or
(3) issue any other just order.
D. (g) Affidavit Submitted in Bad Faith. If satisfied that an affidavit under
this rule is submitted in bad faith or solely for delay, the court must order
the submitting party to pay the other party the reasonable expenses,
including attorney's fees, it incurred as a result. An offending party or
attorney may also be held in contempt.
2. Houchens v. American Home Assurance Co. (1991)
A. Facts:
i) Alice Houchens brought suit against her insurance company for
breach of contract involving 2 insurance policies in the US D.C. ED of
VA
ii) Her husband had disappeared in 1980 when on a trip to Thailand
iii) both of the life insurance policies required that the death be caused
by accident
iv) Ms. Houchens sought a court order and won a declaration that her
husband was dead
(a) Va. statute provided that if a person was missing for 7 years, they were
presumed dead
v) District Court granted summary judgment for American under R 56
(a) followed Celotex Corp. v. Catrett:
(1) "In our view the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial."
B. Issue: Did Ms. Houchens make a sufficient showing that Mr. Houchens
died accidentally?
C. Holding: No. "We cannot conclude that there is a greater probability
that the death was caused by accident than by other means."
D. Analysis:
i) At trial, Houchens would have to show that her husband died
accidentally
(a) although he was declared dead, this was not what needed to be shown
ii) however, here there is only evidence of disappearance, and there is
no clue to how he actually died
E. Judgment: Affirmed
3. Celotex Corp. v. Cartrett (1986)
A. Facts/Procedure:
i) Cartrett brought suit against 15 corporations, claiming that the
asbestos they manufactured caused her husband's death
ii) Celotex moved for summary judgment
(a) argued that Cartrett had failed to show that any Celotex product was the
proximate cause of the husband's death
(b) she failed to present any witness who could testify to his exposure
iii) Cartrett responded by producing documents that she believed
created a material issue of fact
(a) transcript of deposition by the decedent
(b) letter from an official of one of the decedent's former employers who was
to be called at trial
(c) letter from an insurance company to Cartrett's attorney
(d) all of these tended to show that decedent had been exposed to asbestos
in Chicago
iv) District Court granted summary judgment
v) Court of Appeals Reversed
B. Issue: Should the complaint have been dismissed?
C. Holding: Yes.
D. Analysis:
i) RULE = "the plain language of R 56(c) mandates the entry of summary
judgment, after adequate time for discovery . . . against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will
bear the burden of proof at trial."
ii) principal purpose of the summary judgment rule is to isolate and
dispose of factually unsupported claims or defenses
iii) Adickes: the burden is on the moving party to show initially the
absence of a genuine issue concerning any material fact
(a) *This language should not be construed to mean that the burden is on
the party moving for summary judgment to produce evidence showing
the absence of a genuine issue of material fact, even with respect to an
issue on which the nonmoving party bears the burden of proof.
(b) *whoever has the burden of proof should show
iv) **"the burden on the moving party may be discharged by 'showing' that is, pointing out to the District Court - that there is an absence of
evidence to support the nonmoving party's case . . ."
4. Summary Judgment Motions
A. Burden of Production (Celotex)
B. Reasonable Minds Cannot Differ
i) judge can decide to not submit the issue to the jury, because a jury
that came to an alternate conclusion would not be reasonable
(a) doesn't need 100% certainty, just a lot of pointing one way
ii) can be for plaintiff or defendant - doesn't matter who bears the burden
of production
iii) both parties can bring the motion
iv) more controversial standard:
(a) the standard is borrowed from Rule 50 (Judgment as a matter of law):
(1) permits the same type of arguments one would make for a judgment
as a matter of law motion, just at the trial stage
C. Bias v. Advantage International, Inc. (1990)
i) Facts:
(a) Estate of basketball star Len Bias sued Fentress and the agency
claiming that they had requested that the agency buy a $1 million life
insurance policy on their son's life
(1) breach of contract theory
(b) the agency did not purchase life insurance, and neither did the Bias'
claiming they did so only because the agency had promise them that
they would purchase the insurance
(c) District Court granted defendant's motion for summary judgment
XXVIII. no genuine issue as to the fact that Bias was a drug user; and
XXIX. no dispute about the fact that as a drug user, Bias could not have obtained a jumbo
life insurance policy
i) Issue: Was it correct to dismiss based on the idea that there was no
genuine issue as to the fact that Bias was a drug user?
ii) Holding: Yes. "there was no genuine issue of fact concerning Bias's
status as a cocaine user."
iii) Analysis:
(a) The facts were shown by witnesses who stated that they specifically saw
Bias use cocaine on several occasions.
(1) the Estate did not even attempt to impeach their credibility
(b) the Estate offered the testimony of the parents who would say that they
knew their son not to be a drug user
(1) this is insufficient to rebut the first-hand accounts of the friends
(c) also, the existence of drug tests in which Bias did not test positive only
shows that he abstained for the period of time prior to those tests
iv) Issue: Was it correct to dismiss based on the idea that there was no
material issue of fact on the ability of Bias to obtain an insurance
policy?
v) Holding: Yes. "The Estate's evidence that some insurance
companies existed in 1986 which did not inquire about prior drug use
at certain particular stages in the application process does not
undermine that defendants' claim that at some point in th process
every insurance company did inquire about drug use, particularly
where a jumbo policy was involved."
vi) Analysis:
(a) the defendants showed that every insurance company inquires as to the
drug use of their insured
(b) the plaintiffs just failed to name a single particular company or proved
other evidence that a single company existed which would have issued a
jumbo policy in 1986 without inquiring about the applicant's drug use
B. Non-Moving Parties Potential Responses to the motion:
XXX. argue that the party moving for summary judgment has not adequately
demonstrated a deficiency in the evidence available to the party resisting
summary judgment, or
XXXI. he can present evidence to counter the movant's evidence, in the hope of
demonstrating the existence of an issue of fact
A. Anderson v. Liberty Lobby
i) non-moving party gets the advantage that the court must draw all
justifiable inferences in its favor
B. Matsushita Electric
i) the non moving party has to do more than create "metaphysical
doubt"
XXXII.
Former Adjudication
1. Claim Preclusion (Res Judicata)
A. forbids a party from litigating a claim that was, or could and should have
been raised, in former litigation
B. Precluding the "Same" Claim
i) goals:
2. fostering efficiency, and
XXXIII. the prevention of inconsistency
i) Elements:
2. Same parties in suit 1 and suit 2
3. Valid Final Judgment on the merits in Suit 1
XXXIV. Party seeks relief in Suit 2 on the same "claim" for which relief was asserted in Suit
1
i) Efficiency
(a) Rush v. City of Maple Heights (1958)
(1) Facts:
 plaintiff owned a motorcycle, and while her husband was driving it, he
hit a pot hole, injuring plaintiff and damaging the cycle
 Plaintiff first sued the city for damage to the motorcycle claiming
negligence for not filling in the hole, and won a damage award of $100
 Plaintiff then brought suit for personal injuries suffered
 trial court held that the issues of negligence and proximate cause
were already determined and were binding on this case
 plaintiff was awarded $12,000 and the court of appeals affirmed
 City appealed arguing error in letting the plaintiff split her cause of
action
(2) Issue: Should a plaintiff be able to bring 2 separate suits that arise
out of the same occurrence, one for property damage and one for
personal damage?
(3) Holding: No. "where a person suffers both personal injuries and
property damage as a result of the same wrongful act, only a single
cause of action arises, the different injuries occasioned thereby
being separate items of damage from such conduct."
(4) Analysis:
 trial court and court of appeals based their decision on the reasoning in
Vasu v. Kohlers, Inc.
 that court had held that because the causes of actions were based
on different infringements of rights, the causes could be brought
separately
 that part of the Vasu decision should be overruled
 the majority rule is that only one cause of action is available
 "There appears to be no valid reason in these days of code pleading to
adhere to the old English rule as to distinctions between injuries to the
person and damages to the person's property resulting from a single
tort."
(b) Frier v. City of Vandalia (1985)
(1) Facts:
 City of Vandalia police continued to ticket and tow several of Frier's cars
which he repeatedly parked in a narrow street so that others would have
to drive on their lawns
 Frier filed suits seeking replevin of which 2 were consolidated for
litigation
 court concluded that the police properly took the cars
 Frier then filed suit in federal court maintaining that the city had not
offered him a hearing, and that it was the city's policy not to do so
 Claim was that this violated his Due Process rights
 District Court dismissed the complaint for failure to state a claim on
which relief may be granted
 he should have treated the decision as one of summary judgment,
and this court takes it as if he had
(2) Issue: Should the second claim have been precluded by the earlier
decision?
(3) Holding: Yes. The city "is entitled to prevail on the ground of claim
preclusion, although the district court did not decide the case on that
ground."
(4) Analysis:
 Frier was free to join his due process and replevin claims in the first suit
 "One suit precludes a second 'where the parties and the cause of action
are identical.' 'Causes of action are identical where the evidence
necessary to sustain a second verdict would sustain the first, i.e., where
the causes of action are based upon a common core of operative facts.'"
 Frier had a full and fair opportunity to litigate both matters at the original
trial
 The operative facts in both claims are the same - they involve his cars
being taken and the actions of the city
 "Here the replevin theory contained the elements that make up a due
process theory, and we are therefore confident that the courts of Illinois
would treat both theories as one 'cause of action.'"
(c) Notes
(1) before a claim can be precluded by a lawsuit, it must be a claim at the
time of that suit
(2) a similar principle prevents claim preclusion from applying if the
court rendering the first judgment lacks jurisdiction to hear the case
(3) nor does the transactional definition extend to claims arising from
the same episode but brought by different parties
2. Issue Preclusion (Collateral Estoppel)
A. Elements:
3. Valid final judgment on the merits in suit 1
4. Same issue was litigated and determined in suit 1
5. Issue was essential to Judgment in suit 1
XXXV. Party against whom preclusion is asserted had full and final opportunity to
litigate in suit 1
XXXVI.
party asserting preclusion: mutually required?
1. Supreme Court in Rush starts with the claim preclusion issue = if
the claim is precluded, no need to reach the issue preclusion
question