7(a) Pleadings Allowed - Only these pleadings are allowed:
(1) A complaint
(2) An answer to a complain
(3) An answer to a counterclaim designated a counterclaim
(4) An answer to a cross claim
(5) A third party complaint
(6) An answer to a third party complaint; AND
(7) If court orders one, a reply to an answer
*ALL MUST MEET RULE 8!
8(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 (may include relief in the alternative or different types of relief)
Note: Must have factual assertions for ALL claims; Not just conclusory statements
Under Rule 8(a), in a short and plain statement, a party asserting a claim must include: (1) the grounds for the court’s jurisdiction; (2) a statement of a claim showing that the pleader is entitled to relief; and (3) a demand for relief.
Under Rule 8(a)(1), a party filing a claim must state in short and plain terms the basis for the court’s subject matter jurisdiction for each count, UNLESS the court already has jurisdiction (e.g. reply brief).
 Diversity: When jurisdiction is based on diversity of citizenship, the plaintiff must allege; (1) the citizenship of each party; and (2) that the amount in controversy - exclusive of interest and costs - exceeds $75,000. o COMPLETE Diversity  ALL Πs different from ALL Δs o Corporate Citizenship  place of incorporation AND principal place of business o Parties may aggregate multiple claims against one Δ to meet the amount in controversy requirement; however, they can NOT aggregate claims against multiple Δs to do the same
 Federal Question: When jurisdiction is based on the presence of a federal question, the claimant must identify the Constitutional provisions, laws, or treaties that create such jurisdiction. o “Arising under the Constitution or Laws of the U.S.”
 Supplemental: When original jurisdiction exists as to one or more claims in the complaint, the pleader may litigate other, non-federal claims in the same case pursuant to Rule 18(a) so long as the non-federal claims are so related to the federal claims that they form part of the same case or controversy. o Joinder exception to § 1367: An exception to this rule is if the original jurisdiction is founded solely on diversity of citizenship. If that’s the case, the district courts do NOT have supplemental jurisdiction over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24, or over claims by persons proposed to be joined as
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plaintiffs under Rule 19, or seeking to intervene as plaintiffs under Rule 24, when exercising supplemental jurisdiction over such claims would defeat diversity.
Under Rule 8(a)(2), a party filing a claim must also provide their opponent with fair notice of their claim and the grounds upon which that claim rests, so to enable the Δ to make an adequate response.
The elements of the claim should be readily ascertainable; therefore, the claim must do more than state conclusions and recitals of the elements of a cause of action. The pleader must allege sufficient facts - assumed to be true - to raise their claims beyond the level of sheer possibility; instead, they must nudge their claims across the line from conceivable to plausible. The factual assertions must permit the reasonable inference that the cause of action is plausible on its face and more than a mere possibility. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.
 Old Rule: The complaint should NOT be dismissed, UNLESS it appears beyond a reasonable doubt, that the plaintiff can plead NO set of facts which would entitle him to relief
 New Rule  Twiqbal: The plaintiff must state sufficient facts so that the complaint is
PLAUSIBLE on it’s face
 Two Part Test: o Element-by-element analysis o 1 st  Disregard ALL legal conclusions
 Merely stating the elements of the claim is NOT enough o 2 nd  Analyze non-legal conclusory allegations
 IF accepted as true, do they plausibly suggest entitlement to relief?
 E.g., does the complaint nudge the claim from conceivable to plausible
 This heightened pleading standard is still a gray area, therefore plaintiffs should argue… o Rule 84 says that the forms for pleadings should still suffice o SCOTUS said that they were NOT changing Rule 8; and in fact, they do NOT have the power to do so. o Issue: may create problems for plaintiffs who have plead state of mind because it is usually conclusory, and they need to reach discovery to prove their cases.
 Exception: An exception to the plausibility standard is if a party is alleging fraud or mistake. o Under Rule 9(b) a party alleging fraud or mistake must state with “particularity” the circumstances constituting fraud or mistake, e.g. the time, place, and nature of the fraud or misrepresentation. The party must also highlight the alleged fraudulent statement. o However, other conditions of a person’s mind may be plead generally, e.g. intent and malice
Under Rule 8(a)(3), a party filing a complaint must also make a demand for judgment that identifies the type of remedies desired and the parties against whom relief is sought. A party is not required to plead a specific sum in the demand unless the case is based upon diversity of citizenship, in which case the sum must exceed $75,000.
 May plead different types of relief OR relief in the alternative
 However, a party MUST plead the specific type of relief sought in order to pass 12(b)(6) muster
8(d) 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.
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(2) Alternative Statements of a Claim or Defense - A party may set out two 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. o Significance: you can plead all legal theories (COA)
(3) Inconsistent Claims or Defenses - A party may state as many separate claims or defenses as it has, regardless of consistency o Significance: doesn’t matter if your theories are inconsistent (ex: an IT and N pleaded together)
8(e) Construing Pleadings - Pleadings must be construed so as to do justice. Liberal standard.
Under Rule 8(d), parties must plead claims and defenses in a simple, direct, and concise manner consistent with the notice pleading standard. They may do so alternatively, hypothetically, or even inconsistently.
Rule 11: Signing Pleadings, Motions; Representations to the Ct; Sanctions
**ONLY APPLIES TO WRITTEN FEDERAL COURT FILINGS, NOT ORAL PROCEEDINGS**
11(a) Signature: Every pleading, written motion, & other paper shall be signed by at least 1 atty of record in the atty’s individual name, or if the party is not represented by an atty, shall be signed by the party. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the atty or party. No sanctions under
11(c).
11(b) Representations to Ct: By presenting a writing to the court, the atty certifies that to the best of his knowledge, information, and belief, formed after an inquiry reasonable under the circumstances that:
(1) The document is not presented for improper purpose, such as harassment or undue delay or expense. Regulates bad faith filings.
(2) The Claims and defenses are warranted by existing law or by a non-frivolous argument for modifying, reversing, or extending existing law or for establishing new law.
(3) The factual allegations have evidentiary support or are likely to after opportunity for discovery.
(4) The denials of factual allegations are warranted on the evidence or are reasonably
based on belief or a lack of information.
11(c)(1) Sanctions: If, after notice and a reasonable opportunity to respond, the court determines that 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated 11(b) or is responsible for the violation. Law firms are held jointly responsible for a violation committed by an associate, partner, or employee.
(2) Motion for Sanctions: The motion must be made separately from other motions and must describe the specific conduct that allegedly violates 11(b). An attorney or party seeking a sanction under Rule 11 must first comply with the “safe harbor” requirement, which provides the opposing party 21 days after service of the motion to
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correct or withdraw the challenged document before the motion can be filed. After which, the party subject to Rule 11 has due process rights before sanctions are imposed.
 1 st  Serve opposing party with motion
 2 nd  Allow 21 days to rectify
 3 rd  File motion with the court
(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
 11(b) - no safe harbor given for show cause order.
 No money sanctions available here, unless show cause order issued before voluntary dismissal or settlement of claims
(4) Nature of a Sanction: A sanction imposed under Rule 11 must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated (NOT punitive). A party (not attorney) can NOT be monetarily sanctioned for violations of 11(b)(2) - changes in law.
 May be payable to the court (majority) or other party
 (c)(6): court must explain basis for sanctions
11(d): Inapplicability to Discovery: Rule 11 does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26-37. o BUT… Rule 26(g) requires signature and that reasonable inquiry be made in discovery proceedings; if violated, money sanctions available by party motion, or the court on its own
Final Points
56(g): Affidavit Submitted in Bad Faith. The court itself may award attorney’s fees if the motion is filed in bad faith OR to delay
Digression  Three Grounds for Filing Rule 11 Motions
 Improper purpose or harassment
 Inadequate basis in law
 NO evidence to support factual allegations / denials
Notes:
 Complaints, unlike other motions, MUST be “legally frivolous” to be sanctionable. If the central purpose of the complaint is to “vindicate rights,” typically, NO sanctions are available.
 Rule 11 applies to defenses as well as claims.
∆’s options when served with a complaint are:
1) Do nothing. (Bad idea—if ∆ does nothing, will get default judgment against him per Rule 55.)
2) File Pre-Answer Motion / Motion Testing the Complaint under Rule 12(b).
 A pre-answer motion seeks to have the complaint dismissed. Seeks to dismiss b/c you didn’t do
something procedurally right.
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 A ∆ has until the Answer would be due to make a pre-answer motion (either 20, 60, or 90 days depending upon mode and circumstances of service of process). If you don’t get one of these
things filed, you’re in default.
 The pre-answer motion suspends the time for ∆ to answer the complaint. Your obligation to respond to the complaint is suspended until the pre-answer motion is dealt with. If granted,
usually leads to a dismissal so you won’t have to answer at all.
 If the pre-answer motion is denied, the ∆’s obligation to answer the complaint is restarted.
Under Rule 12(a)(4)(A) the ∆ has 10 days from notice of denial of the motion to serve a responsive pleading. If the defendant doesn’t serve an answer within 10 days of the denial of pre-
answer motion he is in default!
3) File Answer & Pre-Answer Motion simultaneously.
4) File Answer – respond to assertions/allegations in complaint under Rule 8. Time period for filing
(Rule 4):
• 20 days - standard
• 60 days - if you waive service of process (typically do)
• 90 days - if federal government is being sued
Introduction
 Two primary ways for party’s to test the complaint are ….
 12(b)(6) - Failure to State a Claim; AND
 12(c) - Judgment on the Pleadings
 BOTH test whether complaint is sufficient, and do NOT require the defendant to answer the complaint
 Judge looks ONLY at the pleadings (NOT evidence) along with facts and inferences “in the light most favorable to the plaintiff”
 Should only be granted if the allegations show some insuperable bar to relief, i.e. NOT plausible on its face
 Test: whether a party should be allowed to present evidence to support its claims AT
ALL
 Party may challenge certain claims / defenses or ALL claims defenses; however, ONLY must kill one element of claim for motion to be granted
 Where the insufficiency is factual, the court typically will give plaintiff leave to amend, before dismissing, to cure the deficiency
 Note: Rule 12(d) — Presenting Matters Outside Pleadings — if on 12(b)(6) or 12(c) motion matter outside the pleadings are presented to court and not excluded by court; then court must treat motion as MSJ under Rule 56
Rule 12(b) Defenses—what your pre-answer motions can be based on:
(1) – court lacks SMJ - favored
(2) – court lacks PJ - favored
(3) – venue is improper - favored
(4) – insufficient process - disfavored
(5) – insufficient service of process - disfavored
(6) – motion to dismiss for failure to state a claim upon which relief can be granted - favored
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 Known as a demurrer at common law.
 In determining the merits of a 12(b)(6) motion, a court must assume that all of the factual
allegations of the complaint are true
 Even if everything in the complaint is taken as true, for some legal reason plaintiff is still not entitled to any relief against the defendant.
 Process o Usually filed before answer but may be filed any time including at trial o BUT… if another pre-answer motion IS filed

MUST include to raise pre-answer
•
Can NOT be raised in a 2nd pre-answer motion!
•
Pre-answer motions can NOT be raised a second time! o After answer given, may be raised in any pleading under Rule 7 (including with answer), with a 12(c) motion, or at trial

KNOW
: If ∆ challenges complaint on 12(b)(6) motion alleging П has not adequately plead
FACTS then court likely will NOT dismiss case to allow time for discovery to see if elements may be met o Distinguish challenging law on 12(b)(6) which court more inclined to grant o Ex: claim not legally cognizable; elements missing

EXAM: Check complaint for ALL elements of claims to see if adequately plead
(7) – failure to join indispensable party under Rule 19 - favored
How to Present Defenses: RULE 12(b) – Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. BUT a party may assert defenses (1) - (7) by motion. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.
Disfavored Defenses
Under Rule 12(g), if a party chooses to make a motion under Rule 12, the party must include all Rule
12 defenses and objections “then available” in a single motion. Rule 12(g) must be read in conjunction with Rule 12(h). Under Rule 12(h), defenses and objections to personal jurisdiction, improper venue, insufficient process, and insufficient service, [12(b)(2) - (5)] are waived UNLESS asserted by motion or responsive pleading or an amendment allowed by Rule 15(a)(1).
 Under Rule 15(a)(1), a party may amend its pleading once as a matter of course within (A) 21 days after serving it, OR (B) if the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.
 Significance: to avoid waiver, ALL Rule 12 motions MUST be brought in the FIRST response to the court, UNLESS… o The defense was NOT available at the time the complaint was served; OR o Favored defenses…
Favored Defenses
Defenses and objections to a failure to state a claim upon which relief can be granted, failure to join an indispensible party required by Rule 19(b), and failure to state a legal defense are preserved throughout the lawsuit. Also, objections to SMJ cannot be waived and can be asserted at any time. If the court finds at any time that it lacks SMJ, it MUST dismiss the lawsuit.
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 Note: 12(b)(6) & (7) can NOT be raised on a SECOND pre-answer motion; remember, preanswer motions MUST be raised at the SAME TIME!!!
 However, regardless of any prior pre-answer motion, 12(b)(6) and (7) may be raised: o In any pleading allowed under Rule 7; o With a 12(c) motion for judgment on the pleadings; OR o At trial
12(c) Motion for Judgment on the Pleadings: After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings. Anything after that would have to be filed by a motion for Summary Judgment.
 Essentially, asking the court to rule based on the complaint and answer, IF discovery would not help resolve the case
 Ex: SOL has run; Δ has failed to allege a defense
 Typically, filed after the answer, but may be filed before
12(e) Motion for a More Definite Statement: ask for more facts to adequately respond to an ambiguous or vague complaint. Rarely used; just file 12(b)(6) motion instead.
12(f) Motion to Strike: On its own initiate or upon motion, the court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, w/in 20 days after being served w/ the pleading.

May be made before or after answer
 2 roles of 12(f) o 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 - most common use.
o Forces removal of irrelevant and prejudicial allegations in a pleading - less common use.
8(b) Defenses; Admissions and Denials
(1) In General - In responding to a pleading, a party must:
(A) State in short and plain terms its defenses to each claim asserted against it; and
(B) Admit or deny the allegations asserted against it by an opposing party.
(2) Denials - Responding to the Substance - A denial must fairly respond to the substance of the allegation
(3) 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.
(4) 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.
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(5) 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.
(6) 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.
To respond to a pleading under Rule 8(b), parties must state their defenses in short and plain terms and admit or deny the allegations asserted against them, or they may assert lack of knowledge or information sufficient to form a belief about the truth of an allegation, which is deemed a denial.
Denials must fairly respond to the substance of the allegation and 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. A party that intends to deny only part of an allegation must admit the true part and deny the rest. If a party fails to properly deny an allegation when a responsive pleading is required, the allegation is deemed admitted, UNLESS it relates to the amount of damages.
8(c) Affirmative Defenses
(1) In General - In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense
(2) Mistaken Designation - If a party mistakenly designates a defense as a counterclaim, or a counterclaim 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.
(3) Inconsistent Claims or Defenses - A party may state as many claims or defenses it has,
REGARDLESS of consistence
Under Rule 8(c), in responding to a pleading, a party must affirmatively state any avoidance or affirmative defense. If a party fails to state an affirmative defense, it is WAIVED. An affirmative defense is an assertion by the defendant of new facts or arguments that, if true, would defeat the plaintiff’s claim, even if all of the plaintiff’s allegations were presumed correct. The defendant bears the burden of proving an affirmative defense and a responsive pleading is not required by the plaintiff.
 Examples: SoL, contributory N, estoppel, waiver, fraud, etc. (non-exhaustive list)
 Significance: if waived, ANY evidence of an affirmative defense is NOT admissible
 Note: Replying to Answer o NOT required; presumed that Π denies ALL allegations in Δ’s answer o BUT… if answer contains a counterclaim designated a counter claim, MUST reply
The goal of Amendments is to allow pleadings to be amended after discovery, but early enough not to prejudice a party. Pleadings can be amended at any time without asking permission before the other party asserts an answer. Obligation for ∆’s response to 1 st complaint is eliminated, new time period starts at time amended complaint is filed.
Before Trial
15(a)(1): Amending as a Matter of Course: A party may amend its pleading once as a matter of course:
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(A) 21 days after serving it; or
(B) If the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
*Anything not falling under above 2 situations goes to 15a2:
15(a)(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 give leave when justice so requires.
 Q: When does “justice so require”?
 A: When there is NO evidence of: o Bad faith o Undue delay - timeliness is factor o Repeated failure to cure deficiency o Undue prejudice to other party if allowed
 B.O.P. to show prejudice on party opposing amendment
 Ex: SOL would have run; ∆ shows would not even be party o Would be futile
 Presumption in favor of amendment!
Under Rule 15(a), a party may amend its pleading ONCE. When a party may do so depends on whether a responsive pleading is required. If NO responsive pleading is required, a party may do so
21 days after filing its pleading. If a responsive pleading is NOT required, the party may amend its pleading 21 days after receiving service of the responsive pleading, OR a Rule 12 motion, whichever is earlier. Otherwise, a party must seek leave of court or written permission of the opposing party to amend pleadings.
In considering whether to grant leave, the court will determine whether: (1) amendment would prejudice the adverse party (e.g. $ or injustice); (2) the motion was timely filed; and (3) the amendment is futile, expired, or unnecessary.
15(c)(1): An amendment to a pleading relates back to the date of the original pleading when:
(A) The law that provides the applicable statute of limitations allows relation back; [if SOL actually
addresses relation back issue - almost never the case]
(B) 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 o NOTICE: if it relates out of the original facts in the 1 st pleading, you’re on notice about individual claims that might arise out of these facts o The broader the original pleading, the more likely this test will be met
(C) 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:
(i) Received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) Knew or should have known that the action would have been brought against it, but for a mistake concerning the party’s proper identity.
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Assuming that an amended pleading will be permitted under the standards of either Rule 15(a) or (b),
Rule 15(c) governs the circumstances in which the amendment will be treated as though it was filed on the date of the original pleading.
Rule 15(c) permits an amended pleading to “relate back” to the date of the original pleading in any of three circumstances: (1) when the statute of limitations governing the cause of action permits relation back; (2) when the claim or defense in the amended pleading arose from the same transaction or occurrence set out - or attempted to be set out - in the original pleading; or (3) when the amendment changes the party or the naming of the party against whom a claim is asserted, if the claim or defense in the amending pleading arose from the same transaction or occurrence set out in the original pleading and if, within 120-day period after filing of the original pleading that Rule 4(m) provides for service of process, the party named in the amended pleading has both: (1) received sufficient notice of the action so as not to be prejudiced in defending on the merits, and (2) knew or should have known that but for a mistake of identity the party would have been named in the original pleading.
Under 15(c)(2), the underlying idea is notice. However, circuits differ over the proper test to determine whether the claim asserted in the amended pleading arose out of the same transaction or occurrence. Some courts use the Logical Relationship Test, which is broad and includes any claim logically related to the original pleading. Other courts use the Same Evidence Test, which is more narrow, and includes any claim where the evidence necessary to prove the new claim or defense must be the same evidence necessary to prove the new claim or defense.
 Look to the language and allegations of the complaint
 The earlier the stage in the lawsuit, the more likely the court will allow
 REMEMBER: must first pass 15(a), Justice So Requires test!!!
18(a) Joinder of Claims: A party properly asserting a claim, counterclaim, crossclaim, or third-party claim, may join, as independent or alternative claims, as many claims as it has against an opposing party.
 Permits joinder of claims - doesn’t compel it. Main issue is usually jurisdiction problem.
 Res Judicata is often an issue - if you don’t join it, you might waive it. o If the Π fails to join a claim, and a later court finds it is related to the one adjudicated, it may be barred. o The Π will often want to join all claims, or at least all related claims he has against the Δ

Effect
: allows joinder of unrelated claims once a related “claim” has been filed!
 Overview of Claims o Counterclaim = ∆ → П (13(a) & (b)) o Crossclaim = ∆ → ∆ (13(g)) o 3rd Party Claim = ∆ → 3rd Party (14(a) & (b))

Policy o Efficiency o Consistency
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(a) Except as provided in (b) and (c) any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims so related to
claims in the action within such original jxn that they form part of the same case or controversy.
Such supplemental jxn shall include claims that involve the joinder of additional parties.
 “Same Case or Controversy”  analogous to “same transaction or occurrence,” e.g. “common nucleus of operative fact”
(b) In any civil action of which the district courts shall have original jxn founded SOLELY on § 1332, the district courts shall NOT have supplemental jxn under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20 or 24, or over claims by persons proposed to be joined as π’s under Rule 19, or seeking to intervene as π’s under Rule 24, when exercising supplemental jxn over such claims would be inconsistent with the jurisdictional requirements of §
1332.
Diversity of Citizenship Reminder
ME v. MS & MS = diverse ME v. MS, MS, & ME = not diverse TN & TN v. MS & MS = diverse
*Don’t forget amount in controversy must exceed $75,000, not including attorney fees.
Joinder & Jurisdiction Analysis:
I.
1 st  is there a rule providing joinder?
A.
Rule 13(a) - Compulsory Counterclaim
B.
Rule 13(b) - Permissive Counterclaim
C.
Rule 14(a) - When Defending Party May Bring in a 3 rd Party
D.
Rule 14(b) - When a Plaintiff May Bring in a 3 rd Party
E.
Rule 18 - Joinder of Claims
F.
Rule 19 - Required Joinder of Parties
G.
Rule 20 - Permissive Joinder of Parties
H.
Rule 24 - Intervention
I.
If YES, next step
II.
2 nd  look to original claim  is there j(x) over the claim?
A.
FQ ? i.
IF bringing federal law claim  DONE (does NOT matter which party brings) ii.
If NOT federal claim  next step
B.
Complete Diversity of Citizenship AND > $75,000? i.
Ex: Π from NY, Δ from LA AND amount in controversy > 75K  DONE ii.
If NOT met  next step
C.
Is there supplemental j(x) under 1367? i.
1 st  (a): Is original claim founded on FQ?
1.
If YES, AND joined claim arises out of same C/C, AND NOT (b)  DONE
2.
If requirements NOT met  next step ii.
2 nd  (b): Is original claim founded solely on diversity j(x)?
1.
If YES, AND joined claim arises out of same C/C  DONE, UNLESS… a.
Claim by Π? IF YES  next step i.
A/g P joined under Rule 14, 19, 20, or 24? IF YES  next step
1.
Kill diversity of citizenship? IF YES  NO supplemental j(x) (needed indep j(x) basis)
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Counterclaim is like an original CoA - NOT THE SAME AS AFFIRMATIVE DEFENSE!
Counterclaims – Rule 13
13(a)(1): Compulsory Counterclaims: A “pleading” must state as a counterclaim any claim that – at the time of its service – the pleader has against an “opposing party” if the claim:
(A) Arises out of the transaction or occurrence that is the subject matter of the opposing
party’s claim; and
(B) Does not require adding another party over whom the court cannot acquire jurisdiction.
 If both (A) and (B) are met, the counterclaim is compulsory and if the party doesn’t assert it in the pleading, it is waived. Unless the party can amend the pleading under Rule 15(a).
 Compulsory counterclaims have automatic supplemental jurisdiction; NO independent basis is necessary! o Note: Δs often want counterclaims to be labeled compulsory in order to meet jurisdictional requirements.
 Counterclaims are applicable to any defending party - not just original ∆
13(b): Permissive Counterclaims: A pleading may (can bring in a separate action) state as a counterclaim against an “opposing party” any claim that is not compulsory.
 IF does NOT “arise out of same transaction or occurrence”  permissive
 Two Tests: o Is there any logical relation between the claim and counterclaim? Majority of courts use
this!
 Logically related = Reasonably related
 Broad test; if met, NOT permissive o Will substantially the same evidence support or refute π’s claim as well as ∆’s counterclaim?
 Look for independent jxn b/c by definition permissive counterclaims will NOT be supplemental (not same case)
13(g) : Cross Claims: A pleading may state as a crossclaim any claim by one party against a co-party if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the co-party is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
 Should always satisfy 1367, except if brought by plaintiffs - look to 1367(b)
 Relation to Rule 18: once a proper crossclaim is filed between ∆s then ALL ∆s can file ALL claims they have against other ∆s regardless of whether they relate to original claim o Ex: Obama sued for sexual harassment; Washington Post sued in same action for libel; once Obama files cross claim a/g Post for libel, can assert claim for back subscriptions o Note: trial judge still has power to severe or separate claims for trial under Rule 42
13(h): Joining Additional Parties to Counterclaims/Crossclaims: Rules 19 and 20 govern the addition of a person as a party to a counterclaim or a crossclaim.
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20(a)(1): Permissive Joinder of Plaintiffs: Persons may join in one action as π’s if:
(A) They assert any right to relief jointly, severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) Any (not all) questions of law or fact common to all π’s will arise in the action.
20(a)(2): Permissive Joinder of Defendants: Persons may be joined in one action as ∆’s if:
(A) Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) Any (not all) questions of law or fact common to all ∆’s will arise in the action.
*Note: The requirements of SMJ must be satisfied for each party joined under Rule 20. If SMJ is based on diversity, under § 1367(a) persons made parties under Rule 20 must also be diverse.
21: Misjoinder of Parties: Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the ct may at any time, on just terms, add or drop a party. The ct may also sever any claim against a party.
 Note: local court rules often provide additional guidelines for misjoinder, e.g. rules regarding the identification of additional claims.
42(a): Consolidation: If actions before the court involve a common question of law or fact, the court may:
(1) Join for hearing or trial any or all matters at issue in the actions;
(2) Consolidate the actions; or
(3) Issue any other orders to avoid unnecessary cost or delay.
42(b) Separation: For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, cross-claims, counterclaims, or thirdparty claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.
Must distinguish Rule 13, which allows joinder of additional parties for counterclaims and crossclaims, and is governed by Rules 19 and 20. Here, the defendant is asserting that a 3 rd party defendant “is or may be liable” to it for all or part of the plaintiff’s claim against it (derivative liability). This is NOT the situation where a party says “it was him, not me.” Impleader allows the third party plaintiff to bring in a new party, and functions as a new lawsuit. Once a claim is asserted against the original plaintiff, it also may implead a third party defendant, if the rules would allow a defendant to do so.
14(a)(1): Timing of Summons & Complaint: A defending party may, as third-party π, 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 π must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer.
 Rule 14/Impleader: derivative liability idea: “If I’m liable to π, you’re liable to me,” NOT “I’m passing on liability to 3 P Δ” o Look toward either indemnity (K cases) or contribution (tort cases) under the relative substantive law of the original plaintiff’s claim
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o The rule does NOT create derivative liability on its own; if NO substantive legal basis,
Impleader will fail
 Once a properly impleaded claim is added, Rule 18 allows separate / unrelated claims to be added, e.g. the “flood gates” open
 Must have separate SMJ! o However, will NOT defeat diversity of original claim, b/c that would allow defendants to implead parties only to defeat diversity. o Supplemental jurisdiction will usually be allowed b/c § 1367(b) refers to plaintiff’s claims - not third-party plaintiffs. o Ex: Jim (Maine) v. Mike (MS); Mike impleads John (Maine); ok since there is diversity b/w Mike and John. If no diversity look to supplemental jurisdiction (very likely)
14(a)(2): 3 rd Party ∆’s Claims & Defenses: The person served with the summons and third-party complaint – the “third-party defendant:”
(A) Must assert any defense against the third-party π’s claim under Rule 12;
(B) Must assert any counterclaim against the third-party π under Rule 13(a), and may assert any counterclaim against the third-party π under Rule 13(b) or any crossclaim against another third-party ∆ under Rule 13(g); o Essentially, 3PΔ is subject to the same rules as the original Δ
(C) May assert against the π any defense that the third-party π has to the π’s claim; and
(D) May also assert against the π any claim arising out of the transaction or occurrence that is the subject matter of the π’s claim against the third-party π.
14(a)(3): π’s Claims Against a 3 rd Party ∆: The π may assert against the third-party ∆ any claim arising out of the transaction or occurrence that is the subject matter of π’s claim against the thirdparty π. The third-party ∆ 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).
 Note: Must have SMJ and under § 1367, if original claims are based on diversity, suits by π’s against persons made parties under Rule 14 cannot be founded on § 1367 unless diverse.
14(a)(4): 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. (Court might not allow it)
14(a)(5): 3 rd Party ∆’s Claim Against a Nonparty: A third-party ∆ may implead a nonparty under this rule who is or may be liable to the third-party ∆ for all or part of any claim against it.
 Infinite Regress  must focus on derivative liability again
14(b): When a π May Bring in 3 rd Party: When a claim is asserted against a π, the π may bring in a third party if this rule would allow a ∆ to do so.
 E.g., the 3 rd party “is or would be liable to the original Π for all or part of the original Δ’s claim”
Final Points on Impleader
1.
Substantive law must permit impleader (i.e. indemnity or contribution)
2.
Parties already in lawsuit may object to impleader: o Substantive law doesn’t permit o Impleader will cause undue delay or expense….difficult
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3.
Jurisdictional Analysis - Kroger o Is there an independent jurisdictional basis for 3rd party claim itself??
 §1331 Federal Question? Yes → impleader OK
 §1332 Diversity? Yes → impleader OK o Complete diversity and > 75K o Even if claim brought by П so long as complete diversity still o *If NO independent jurisdictional basis for 3rd party claim exists, look to original claim.... o Is there supplemental jurisdiction over 3rd party claim under §1367??
 Original claim founded on §1331 federal question → impleader OK if 3rd party claim arises out of same case or controversy
 Original claim founded on §1332 diversity → impleader OK if 3rd party claim brought by ∆ and arises out of same case or controversy i.
NO supplemental jurisdiction for claims brought by П if §1332 cannot be met independently for claim
Rule 19 involes parties who must be joined, or the case can not move forward (distinguish Rule 24, where non-parties want in. Rule 19 further involves parties already in the lawsuit, arguing justice will not be served unless they are allowed to join non-parties. The Rule is often invoked by defendants as a dismissal tactic, e.g. the 12(b)(7) motion; and, by defendants where Rule 14 would not work, e.g. no derivative liability.
Framework
1) Is person “necessary party” under 19(a)??
 NO → case goes on without
 YES → check PJ and SMJ
2) Will joinder ruin court’s SMJ or can PJ not be satisfied??
 NO → If both met then party joined
 YES → move on to 19(b)
3) Is person “indispensable party” under 4 factors??
 NO → case goes on without
 YES → case dismissed for non-joinder
19(a)(1): Persons Required to Be Joined if Feasible [NECESSARY]: A person who is subject to service of process and whose joinder will not deprive the court of SMJ must be joined as a party if:
(A) In that person’s absence, the court cannot accord complete relief among existing parties; or
(B) That person claims an interest relating to the subject matter of the action and is so situated that disposing of the action in the person’s absence may:
(i) As a practical matter impair or impede the person’s ability to protect the interest; or
(ii) Leave an existing party subject to a substantial risk of incurring multiple or inconsistent obligations because of the interest.
 Looks at the existing parties already in the lawsuit and whether their interest will be impeded/impaired if another party is not brought in.
 Typically, involves some connection with existing parties as to property ownership, contract rights, or obligations
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o N: joint TFs are NOT per se necessary parties!
 Important point: necessary party can NOT kill SMJ! Relates to § 1367, e.g. if original claim founded solely on diversity, then NO supplemental j(x) over claim: o By Πs against parties joinded under 19(a); OR o By persons proposed to be joined under 19(a); o UNLESS complete diversity remains among ALL Πs and Δs
 If original claim founded on FQ j(x), supplemental j(x) o.k., so long as “same case or controversy” requirement met
19(a)(2): Joinder by Court Order: If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a π may be made either a ∆ or, in a proper case, an involuntary π.
19(b) [INDISPENSIBLE]: Where Joinder is Not Feasible: If a person who is required to be joined “if feasible” under Rule 19(a) cannot be joined, the ct 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 (e.g. SoL);
(2) The extent to which any prejudice could be lessened or avoided by:
(A) Protective provisions in the judgment;
(B) Shaping the relief; or
(C) Other measures; are there things we can do in this lawsuit to mitigate/lessen the prejudice?
(3) Whether a judgment rendered in the person’s absence would be adequate; and
(4) Whether the π would have an adequate remedy if the action were dismissed for nonjoinder.
If we dismiss, can π go to another forum and get relief? If no, then π has no chance to recover and ct may let this go forward despite the absent party. If yes, the case is dismissed for nonjoinder.
Rule 24 allows persons who have NOT been joined by existing parties to assert justice will not be served unless they are permitted to intervene. Whereas Rule 19 inquiry’s are made from the viewpoint of existing parties, Rule 24 is viewed through the lenses of non-parties. Here, Rule 24 grant persons with strong interests in the litigation the power to join, even though existing parties may not want them to.
24(a): Intervention of Right: On timely motion, the ct 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; is so situated that disposing of that action may as a practical matter impair or impede the movant’s ability to protect its interest; unless existing parities adequately represent that interest. Timely
is decided by 24(b)(3), e.g. undue delay or prejudice original parties’ rights
 Test: would person’s absence “substantially affect” their interest in a practical sense?
 Test: does person seeking intervention have different incentive than an existing party?
24(b)(1): Permissive Intervention: On timely motion, the ct may permit anyone to intervene who:
(A) Is given a conditional right to intervene by a federal statute; or
(B) Has a claim or defense that shares with the main action a common question of law or fact.
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Under the Federal Rules, very broad and flexible discovery is permitted. Therefore, federal court have fewer trials and less surprise at trial. However, such a regime consumes more time and money. Still, most discovery is done without the courts involvement, and most cases end with discovery. Typically, discovery rulings are NOT immediately appealable; the trial court is given very broad discretion.
26(f): Discovery Conference
 Parties should have conference “as soon as practicable” or at least 21 days prior to scheduling conference with judge
 Parties should arrange for initial disclosures; discuss claims and defenses as well as any settlements possibilities, and discovery plan o Initial disclosures due within 14 days after 26(f) conference o Also must discuss discovery of electronic info
 Want to place litigation hold on relevant electronic info
 Parties may agree to shape own discovery rules → Federal Rules are merely default rules! o Any agreements would be enforceable under K law
Under Rule 26(b)(1), discovery is generally confined to information that is: “relevant to a claim or defense AND not priviledged. The parties compliance with discovery is enforced by the Rule 37 motion to compel (see infra). Additionally, Rule 26(g) has a similar affect of Rule 11, in that it requires the parties to sign any discovery related documents.
Stages of Discovery
 1. “Mandatory disclosure” – matters that parties may use to support their own claim or defense.
See Rule 26(a) o Sometimes referred to as initial disclosures o The parties must voluntarily provide the information that supports their claims or defenses
 2. Each party requests further information from other as to other matters “relevant to claims and defenses” through various methods. See (Rule 26(b)) — o More detail about disclosures that have already occurred o Disclosure of information that one party doesn’t want to use but the other does o By leave of court for good cause shown, parties may be allowed to discover information
“relevant to subject matter involved in the action”. See Rule 26(b)(1)
 This is a broader standard than “relevant to claims and defenses”
 3. Informal discovery is ongoing
Rule 26(b)(1): Discovery Scope and Limits
 Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s
claim or defense o Analyze claims and defenses very carefully
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 For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. o Broader standard
 Relevant information need not be admissible at trial if the discovery appears to be reasonably
calculated to lead to the discovery of admissible evidence.
Duty to Preserve Evidence
 Spoliation of Evidence: Once litigation is legally foreseeable, parties have a duty to preserve evidence o Spoliation is not found in the rules but it is derived from the court’s inherent power
 Remedies o If a party destroyed evidence intentionally, the other party is entitled to adverse inference instruction to the jury o If the evidence was destroyed as a result of negligence, the other party must prove relevance in order to receive an adverse interest instruction.
 Relevance includes proving that the evidence destroyed would have been favorable to the party moving for the adverse inference instruction
Rule 26(a)(1): Initial Disclosures
 A party MUST, without awaiting a discovery request, provide the other party with the following information if it may be used to support the disclosing party’s claims or defenses: o Names and locations of witnesses o Copies of documents OR a description by category and location of documents unless the use would be solely for impeachment o Computation of damages o Insurance Policy
 Rule 26(a)(1)(a)(iv): The existence of insurance policies is discoverable even though it is not relevant
 Rule 26(a)(1)(B) exempts a small category of cases
 Initial disclosures have to occur before other methods of discovery can be used
 If a party fails to disclose information that is required by Rule 26(a) or (e), then Rule 37(c) applies
Rule 26(e)(1): Supplementing Disclosure Responses if Incomplete or Incorrect
 26(e)(1): A party has a duty to supplement or correct any disclosure or response (to interrogatories,
RFPOD, etc.) in a timely manner if the party learns that in some material respect the disclosure or
response is incomplete or incorrect
Rule 37(c)(1): Failure to Disclose, Supplement, or Admit
 If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court may:
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o order payment of the reasonable expenses, including attorney’s fees, caused by the failure; o inform the jury of the party’s failure; and o impose other appropriate sanctions
Rule 33: Interrogatories o Definition: Questions presented by one party to the another, seeking information relevant to the dispute o ***Interrogatories may only be sent to PARTIES o Number: Can submit no more than 25 interrogatories without leave of the court. 33(a)(1) o Scope: An interrogatory may relate to any matter that may be inquired into under rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact. 33(a)(2) o Answers and Objections o The responding party has 30 days to either answer or serve objections in writing - if the party fails to, he cannot bring them later. 33(b)(2) o Each interrogatory must be answered separately and fully in writing under oath. Both attorney and party must sign these responses. 33(b)(3) o The grounds for objecting to an interrogatory must be stated w/ specificity. 33(b)(4) o Option to Produce Business Records: If answer to an interrogatory may be determined by looking at business records the burden of deriving or ascertaining the answer will be substantially the same for either party, the disclosing party may respond by specifying (listing), in sufficient detail, the records that must be reviewed and giving the requesting party the opportunity to review the records.
33(d) o Failure to Answer: If a party fails to provide an answer to an interrogatory submitted under Rule 33, a party may file a Motion to Compel under Rule 37(a). 37(a)(3)(B)(iii)
Rule 36: Requests for Admissions
 Scope: A party may serve on any other party written request to admit (for this lawsuit only) the truth of any matters within scope of 26(b)(1) relating to: o Facts, the application of law to fact, or opinions about either; and o The genuineness of any described documents. 36(a)(1)(A)-(B)
 A matter is deemed admitted if you don’t respond within 30 days of being served with the request.
36(a)(3)
 Answer: If a matter is not admitted, the answering party must specifically deny it or state in detail why it cannot admit or deny it. (SPECIFICITY!) The answering party may assert lack of knowledge only if the party has made a reasonable inquiry. 36(a)(4)
 Objections: Must state what the grounds are for objecting to a request. 36(a)(5)
 The requesting party may move to determine the sufficiency of an answer or objection.
 An admission is deemed conclusively established (unless the court permits withdrawal or amendment)-an admission under this rule can’t be used in any other proceeding. 36(b) o i.e. You can’t use a party’s admission in one case in another case o Parties only have to admit matters they know to be true
 Failure to Admit: Rule 37has specific provision relating to Rule 36 - if party fails to admit what’s requested under Rule 36 and later a requesting party proves a doc to be genuine or the matter true, requesting party can move for other side to pay all reasonable expenses, including atty fees, incurred in making that proof. 4 exceptions:
(A) The request was held objectionable under 36(a)
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(B) The admission sought was of no substantial importance;
(C) The party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
(D) There was other good reason for the failure to admit. 37(c)(2)
Rule 34: Requests for Production of Documents
 Definition: A document is any designated documents or electronically stored information including . .
. 34(a)(1)(A) o This is a very broad definition that includes many things o Parties often include their own definition of the word “Document” when they send and RFPOD
 Requirements for RFPOD: Under 34(b)(1), the request: (1) must describe w/ reasonable particularity each item to be inspected; (2) must specify a reasonable time for the inspection; and (3)
may specify the form in which electronically stored info must be given to you.
 Response/Objection The party to whom the request is directed has 30 days to submit a written response for each item or category. The response must either state that the inspection will be permitted, or state an objection to request, including specific reasons. 34(b)(2)(A)-(B)
 Procedure of Document Production: The party must produce the documents according to category
OR as they are kept in the ordinary course of business. 34(b)(2)(E)(i)
 RFPOD to Non-Parties: A party may send a RFPOD to a non-party via Rule 45. 34(c) o i.e. A party may subpoena the docs of a non-party
 Overly Broad Request: A party may move for a protective order for several reasons including undue burden and expense under Rule 26(c)(1)
Rule 35: Physical Examinations
(a) Order for an Examination.
(1) In General. The court … may order a party whose mental or physical condition … is in controversy to submit to a physical or mental examination.
(2) Motion and Notice; Contents of Order. The order: (A) may be made only on motion for good
cause….
Examiners Report
 Request by the Party or Person Examined : The party who moved for the examination must, on request, deliver to the requester a copy of the examiner’s report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined. 35(b)(1)
 Contents : The examiner’s report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests. 35(b)(2)
 Request by the Moving Party : After delivering the reports, the party who moved for the examination may request – and is entitled to receive – from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the part shows that it could not obtain them. 35(b)(3)
Rule 30: Depositions
 Without Leave: A party may depose any person (includes non-parties) without leave of the court, except as provided in Rule 30(a)(2). Attendance may be compelled via subpoena under Rule 45.
30(a)(1)
 Notice: A party who wants to depose someone must give reasonable written notice to all other parties. 30(b)(1)
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 Examination & Cross-Examination; Objections: Testimony must be recorded by an officer and is taken despite objections. Objections are noted and reviewed later. Objections must be stated concisely in a non-argumentative and non-suggestive manner. 30(c) o Instruction to a deponent not to answer is limited only to preserving a privilege. 30(c)(2)
 Deposition of Corporations: A party may depose a corporation, and the corporation must designate an individual(s) to answer in certain capacities; can be one person or multiple people per topic, but must give people who know information and can speak on the corporation’s behalf. 30(b)(6)
 Duration: a deposition is limited to 1 day of 7 hours; exceptions granted consistent w/ 26(b)(2) if needed or if the other side impedes or delays the examination. 30(d)(1)
 Number: Parties are limited to 10 depositions
 Depositions - Sanctions: Ct can grant sanctions on any person who delays, impedes, or frustrates the fair examination of a deponent. (Expenses and attorney’s fees). 30(d)(2)
Overview
 There is relevant information that is outside the reach of discovery o Privileged Information. See 26(b)(1). o Trial Preparation Material. See 26(b)(3). o Non-Testifying Expert Information. See 26(b)(4). o Overly Burdensome Discovery. See 26(b)(2). o Overriding Privacy Concerns. See 26(c)(1)
Attorney-Client Privilege
 Scope: Communications among privileged persons in confidence for the purpose of obtaining legal advice o Communications are privileged; facts are not.
 Not privileged: “Where were you that night?”
 Privileged: “What did you tell your lawyer about where you were that night?”
 Corporations: In the corporate setting, communications between the lawyer and the corporation’s employees are generally privileged. Upjohn.
 Privilege Log: Documents removed on the basis of privilege must be listed on a “privilege log.” See
26(b)(5)(A) o Without revealing the privilege information, a privilege log describes the nature of the documents being withheld so that the other party can assess the claim o This rule also applies to Trial Preparation Materials discussed below
 Waiver: The problem of waiver
Rule 26(b)(3): Trial Preparation Materials (Work Product Doctrine)
 Scope: Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. 26(b)(3) o The Work Product Doctrine applies to non-lawyers: party’s representatives including consultants, sureties, indemnitors, insurers, and agent
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o Litigation is anticipated when you have a client that is willing to say that they anticipate litigation
 Exception: Trial preparation materials are discoverable if a party shows it has substantial need for the material to prepare its case and cannot, without undue hardship, obtain the substantial equivalent by other means.” 26(b)(3)(A)(ii)
 Protections Against Disclosure: Even if the court orders discovery of those materials in 26(b)(3)(A), it must protect against disclosure of the attorney or representative’s thought process in preparing a case, such as mental impressions, conclusions, opinions, or legal theories concerning the litigation.
26(b)(3)(B) o Opinion work product remains immune from discovery o i.e. If the court orders disclosure of ordinary work product materials, the lawyer has to produce the facts but he doesn’t have to give them his mental impressions or ideas
 Previous Statements: A party or witness may obtain a copy of their own written or recorded verbatim statement. 26(b)(3)(C).
Expert Testimony
 Definition: An expert witness is a person whose testimony, because of his specialized knowledge, skill, experience, training, or education, will assist the trier of fact in understanding the facts and reaching conclusions on the contested issues.
Rule 26(a): Testifying Experts (Mandatory Disclosures)
 Disclosure: In addition to mandatory disclosures required by 26(a)(1), a party must disclose the ID of any expert witness it may use at trial. 26(a)(2)(A)
 Expert Report: Testifying experts must submit a biography and a written report detailing all the opinions the expert will express and the basis for them. 26(a)(2)(B)
 Deposition of Testifying Experts: Once the expert report has been submitted, the other side has an absolute right to depose testifying experts. 26(b)(4)(A)
Rule 26(b)(4)(B): Non-Testifying Experts
 Materials of Non-Testifying Experts: Ordinarily, a party may NOT depose (or interrogatories) a
non-testifying expert to discover facts or opinions held by that expert UNLESS the party can show exceptional circumstances. 26(b)(4)(B) o i.e. Materials of a non-testifying expert are only discoverable if there are exceptional circumstances
 A non-testifying expert can only be deposed if there are exceptional circumstances
Rule 26(b)(2)(c): Limitations on Discovery (Overly Burdensome Discovery)
 The court must impose limits on the frequency/extent of discovery that would otherwise be allowed if: o Discovery sought is unreasonably cumulative/duplicative or can be obtained from another source that is more convenient, less burdensome, or less expensive o Party seeking discovery has had ample opportunity to obtain the info
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o The burden or expense of the discovery outweighs its likely benefit considering considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”
Rule 26(c)(1): Protective Orders (Privacy)
 For good cause, the court may issue a protective order that limits discovery for several reasons including protecting people’s privacy (embarrassment)
 Rule 26(c)(1): Protective Orders
In General… “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: o forbidding the disclosure or discovery; o specifying terms, including time and place, for the disclosure or discovery; o prescribing a discovery method other than the one selected by the party seeking discovery; o forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters….”
 The party seeking the order has the burden to show good cause
 26(c) balances need against collateral harm
 Judges have broad discretion in determining whether and how to protect parties from unwarranted discovery.
 In contrast, the court must limit discovery in the situations where 26(b)(2)(C) applies o See above for full text of 26(b)(2)(C)
Tools for Managing Abuses
 Limits on discovery o Rule 26(b)(1)
 Can only discover information relevant to claims and defenses o Rule 26(c)
 Protective Orders o Rule 26(g)
 When parties sign discovery responses or requests, they are swearing that the discovery is for proper purposes
 Sanctions for bad behavior. o See Rules 26(g), 37(b)(2)(A), and 37(d)(1)-(3)
 Judicial supervision o See Rule 16.
Rule 37(a): Motion to Compel Discovery or Disclosure
(a) Motion for an Order Compelling Disclosure or Discovery.
(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
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(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer or response must be treated as a failure to disclose, answer, or respond.
Rule 37(b): Sanctions for Failing to Comply With a Court Order
(b) Failure to Comply with a Court Order.
(2) Sanctions in the District Where the Action is Pending.
(A) If a party … fails to obey an order to provide or permit discovery … the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of this action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against a disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination
Rule 37: A Three Step Process
 If a party issues a discovery request and receives an inadequate (or no) response. What can a requesting party do? o Step 1: Try to work it out! See 37(a)(1). o Step 2: Obtain an order compelling disclosure. See 37(a)(3)(a)
 For the purposes of the 37(a), an incomplete or evasive disclosure is treated as a failure to disclose. 37(a)(4)
 If the motion to compel is granted, the court MUST impose monetary sanctions on the losing party or attorney unless “nondisclosure, response, or objection was substantially justified.” 37(a)(5)(A)(ii).
 This is normally the case as sanctions are rarely imposed o Step 3: Obtain sanctions for failing to comply with order. See 37(b)(2)(A).
 The sanctions listed in 37(b)(2)(A) can only be imposed after the court has issued an order
 Sanctions in Rule 37(d) may be imposed in the situations described below
Rule 37(d): Sanctions for a Party’s Failure to Attend Deposition or Answer Interrogatories
 37(d)(1)(A)(i)-(ii): Sanctions may also be imposed under Rule 37(d) in when a party fails to attend a deposition or fails to serve answers to interrogatories
 37(d)(2): A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).
 37(d)(3): Sanctions may include any of the order listed in Rule 37(b)(2)(A)(i)-(vi) and the court may require the party failing to act to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified
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Rule 26(g): Signing of Disclosures and Discovery Request/Responses
 26(g)(1): Signing of Disclosures & Discovery Requests – Every disclosure under Rule 26(a)(1) or
(a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name. By signing, an attorney certifies that to the best of the person’s knowledge, information, and belief formed after reasonable inquiry:
(A) With respect to a disclosure, it is complete and correct as of the time it is made; and
(B) With respect to a discovery request, response or objection, it is:
(i) Consistent with these rules and warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law, or for est. new law;
(ii) Not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
Modern Discovery Rules
 Parties’ discovery plan must consider “any issues about disclosure of electronically stored information, including the form or forms in which it should be produced.” 26(f)(3)(C).
 Specific limitations on discovery of electronically stored information. 26(b)(2)(B) o This provision hasn’t changed many things because it contains the same limitations as paper discovery
 “Clawback” provision allows parties to get privileged material back. 26(b)(5)(B). o Only applies if the disclosure was inadvertent and not voluntary
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55(a): Entering a Default: When a party against whom a judgment for relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.
Entering a Default Judgment
55(b)(1): By the Clerk: At default, if there is a computable sum for damages, the clerk of the court may enter judgment for the amount computed plus costs against a defendant who has been defaulted for not appearing and who is neither a minor or an incompetent person.
55(b)(2): By the Court: In all other cases, the party must apply to the court for a default judgment. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 3 days
before the hearing. The court may conduct hearings or make referrals – preserving any federal statutory right to a jury trial – when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.”
55(c): Setting Aside Default: The court may set aside an entry of default, but the defaulting party must show good cause; the ct may set aside a default in accordance with 60(b).
60(b): Grounds for Relief from Final/Default Judgment: Reasons to relieve a default judgment:
1) mistake, inadvertence, surprise, or excusable neglect; (most ppl use this)
2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
3) fraud, misrepresentation, or misconduct by an opposing party;
4) the judgment is void;
5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
6) any other reason that justifies relief.
60(c)(1): Timing of 60(b) Motion: Creates SOL for 60(b) motions - must be made within reasonable time and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.
41(b): Involuntary Dismissal – If the π fails to prosecute or to comply with these rules or a court order, a ∆ may move to dismiss the action or any claim against it (by 12(b) motions). Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule – except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19
– operates as an adjudication “on the merits” (with prejudice).
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41(a)(1)(A): Voluntary Dismissal (by the π): The π may dismiss a claim w/o ct order by filing: (i) a notice of dismissal before the opposing party serves either an answer or motion for SJ; or (ii) a stipulation of dismissal signed by all parties who have appeared in the action.
41(a)(1)(B) - Voluntary Dismissal Effect - Unless the notice states otherwise, a voluntary dismissal is without prejudice. But if the π previously dismissed any federal or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
 NOTE: Discourages judge shopping - So once you file claim, decide to dismiss then refile, next time you try to dismiss it again it will be dismissed WITH prejudice.]
 Without Prejudice - leaves the party free to litigate the matter in a subsequent action, as though the dismissed action has not been started. This prevents the defendant from using res judicata in any later action by the same plaintiff on the subject matter.
41(a)(2): Voluntary Dismissal (by Ct Order): Except as provided in Rule 41(a)(1), an action may be dismissed at the π’s request only by ct order. If a ∆ pleads a counterclaim before being served with the
π’s motion to dismiss, the claim cannot be dismissed unless the counterclaim can stand on its own
(i.e., be its own suit). Unless the order states otherwise, dismissal is w/o prejudice.
SJ lets the ct decide, based on undisputed facts, who is entitled to judgment as a matter of law. The bar to defeat motion for SJ is not unsurpassable, the party just has to show that there’s a factual dispute that must be resolved at trial.
 The difference in a motion for SJ and 12(b) motions is that, when granting dismissal under Rule
12(b), the court examines only the allegations contained in the non-moving party’s pleadings to determine if the averments are legally sufficient. In contrast, a motion for SJ permits the court to consult not only the pleadings, but also any other documents and evidence. Therefore, summary judgment reaches both the legal and factual merits of the case. Such a rule is justified, as summary judgment takes place after discovery, therefore the court has a factual record to go by. o Ex: martian ray gun
 Celotex: At trial, the plaintiff has the burden of proof on a critical trial. At summary judgment, the burden of proof on that issue does NOT shift to the defendant, rather, it stays with the plaintiff. o Practical effect:  MSJ by Δ; Πs will seek more discovery, because now know they need specific facts for each claim in order to pass MSJ!
 Analysis Framework: o Material facts undisputed (e.g. no genuine dispute)?
 Bias: more than some metaphysical doubt
 N: MUST distinguish between facts and inferences
 Specific facts / testimony required; general facts frowned upon
 Court will draw all justifiable inferences in favor of the non-movant o Do undisputed facts state a claim (judgment as a matter of law)? o Essentially, the court must decide:
 Should the case go to trial?
 Is a full evidentiary presentation of the facts necessary?
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no
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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
Before Submitted to the Jury:
50(a)(1): Judgment as a Matter of Law (Directed Verdict) - If a party has been fully heard on an issue and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
( A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law (JMOL) against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
 The court views evidence in a light most favorable to the non-moving party - if evidence is sufficient then the case goes to trial.
 GR: jury inferences MUST be rational
50(a)(2): When to Make Motion: A motion for JMOL must specify the judgment sought and the facts that entitle the movant to the judgment, and can be made at any time before the case is submitted to the jury.
 Do NOT forget to make before case goes to jury!
After Jury Verdict:
50(b): Renewed Motion for JMOL – If the court does not grant a motion for JMOL made under Rule
50(a), the court is considered to have submitted the action to the jury. No later than 28 days after
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the entry of the judgment the movant may file a renewed motion for JMOL and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion for JMOL the court may:
(1) allow the jury verdict to stand
(2) order a new trial, or
(3) direct the entry of judgment as a matter of law.
NOTE: The party can NOT make renewed JMOL motion unless you’ve already made a JMOL motion! If judge denies JMOL motion, and if the jury doesn’t get it right, the judge can grant renewed JMOL or deny it.
New Trial - If there is a legally sufficient evidentiary basis to find for the party, but the court determines that a new trial is necessary to prevent a miscarriage of justice, the court can grant a motion for a new trial pursuant to Rule 59(a)(1); the motion must be filed no later than 28 days after the entry of judgment.
 Necessary to avoid a miscarriage of justice?
 Was evidence to incredible to believe?
The Judge may set aside a verdict and grant new trial for 2 reasons:
1.
Errors or flaws in the PROCESS of appeal; or
2.
A flaw in the verdict or result: a.
The verdict was against the overwhelming weight of the controlling evidence and a new trial is necessary to prevent a miscarriage of justice; or b.
The amount of the verdict is so unreasonable that it shocks the conscience.
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A final judgment by a court precludes subsequent litigation between the parties regarding the same cause of action. Res Judicata requires that the claim sought to be precluded is the “same claim” as previously litigated and there was a final judgment on the merits for that claim.
Elements
1.
Final judgment
2.
On the merits
3.
Same claims
4.
Same parties
“Same Claim” Requirement
The test to determine if a party’s claim is the “same claim” as previously litigated for res judicata purposes is essentially the same as the same “transaction or occurrence” test of the joinder rules.
 A party who has asserted a right to relief arising out of a particular transaction or occurrence
must join all claims they have arising out of all or any part of the transaction, or the omitted
claims will be barred by res judicata.
 Note: Claim preclusion does not extend to claims brought by different parties that arise out of the same transactions or occurrences. The parties must be the same. o Exception: A person in privity (represents same legal rights) with another who is not a party to an action is precluded by res judicata from bringing future claims.
What is a transaction?
What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.
Final Judgment “on the Merits” Requirement
The court must have made a final judgment “on the merits” of the action for the claim to be barred by res judicata. If the case was dismissed for lack of jurisdiction, improper venue, or failure to join a party under Rule 19, then the parties did not have a full opportunity to be heard, and claim preclusion does not apply. See Rule 41(b) - Involuntary Dismissal
Note: Failure to state a claim 12(b)(6) is a judgment “on the merits” for purposes of claim preclusion and can NOT be re-litigated.
How to Raise Res Judicata - Rule 8(c)(1): Res Judicata must be raised as an affirmative defense to the pleadings or it is considered waived. Raise it and move for Summary Judgment b/c you have to go outside of the pleadings to show that the issue has been previously litigated.
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Issue Preclusion General Rule:
R 2d of JMT § 27: When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.
Factors:
1.
Same Issue
 Exactly the same issue (threshold requirement)
 N: because civil & criminal cases have different BoP, NO issue preclusion
 Issue consists of…
 Legal & factual proposition;
 Same term;
 Procedural setting in which proposition is decided
2.
Actually litigated
 If the issue could have been raised, but was not, collateral estoppel does not bar subsequent litigation of that issue.
 Also, if the issue was raised, but defended on different grounds, collateral estoppel does not bar subsequent litigation of that issue.
3.
Actually determined
 Collateral estoppel does not bar litigation of subsequent issues decided by default judgment.
 If a case has 2 issues and both are presented at trial, but only one need be decided for resolution, the other issue is not barred by collateral estoppel b/c it has NOT been actually determined.
4.
Issue was essential to the judgment
 If there are multiple issues in a prior action, collateral estoppel does not bar re-litigation of an issue that was not necessary to the judgment in that action.
5.
Between the parties
 The party seeking collateral estoppel does not necessarily have to have been a party in the previous action, but the party against whom collateral estoppel is sought must have been a party in the previous action.
After a Party is Collaterally Estopped - Subsequent Litigation with Others (Non Mutual IP)
R 2d JMT § 29: A party precluded from re-litigating an issue with an opposing party is also precluded from doing so with another person unless:
 He lacked a full and fair opportunity to litigate the issue in the 1st action; or
 Other circumstances justify affording him an opportunity to re-litigate the issue.
Circumstances Considered
1.
Treating the issue as conclusively determined would be incompatible with the administration of remedies in the actions involved;
2.
The forum in the 2nd action gives the party against whom preclusion is asserted procedural advantages that were not available in the first action that could likely result in the issue being determined differently;
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3.
The party seeking favorable preclusion, or to avoid unfavorable preclusion, could have joined in the first action. If the party doesn’t join, but rather “waits and sees” how the issue is decided, the court may prevent this advantage.
4.
Prior inconsistent judgments on the issue may suggest that it’s unfair to give conclusive effect to any one of them.
5.
The prior determination may have been effected by relationships among the parties to the first action that are not present in the subsequent action, or apparently was based on a compromised verdict or finding;
6.
Treating the issue as conclusively determined may complicate the determination of issues in the subsequent action or prejudice the interests of another party thereto;
7.
The issue is one of law and treating it as conclusively determined would inappropriately foreclose the opportunity for obtaining reconsideration on a different legal rule.
8.
Other compelling circumstances make it appropriated that the party be permitted to relitigate the issue.
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