Civil Procedure 1 Briefs and NotesSamaha Fall Quarter

I. Introduction to Civil ProcedureA. Procedure and Power

1. Brief- Capron v Van Noorden Supreme Court 1804Key Terms: -Writ of Error: A writ issued by an appellate court directing a lower court to deliver the record in the case for review.Subject Matter Jurisdiction: jurisdiction over the nature of a case and the type of relief sought; the extent to which the court can rule on the conduct of persons or the status of things. There are 2 types of controversies over which a federal court has subject matter jurisdiction: (1) suits between citizens of different states (diversity jurisdiction) and (2) suits involving a federal question. The diversity must be complete (no Δ can be a citizen of the same state as any π)

PP: Went to Circuit Court of NC where error occurred. Appealed on alleged court error to Supreme CourtFacts:- Proceeding stated Van Nordeen resident of Pitt County but did not allege plaintiff Capron to be an alien nor citizen of any state nor the place of residence-Capron sued out the writ of error b/c circuit court is one of limited jurisdiction and Capron and Noorden not under jurisdiction and circuit court had no jurisdiction to enter any judgment—should have been dismissed.Issue: Can a person sue for a reversal in judgment based on an error of the court?Rule(s):-A man can reverse a judgment for an error of the Court even if the error was to his advantage.-Modern law- A federal court lacks subject matter jurisdiction unless the case falls within both Article III of the US Const. and a federal statute granting jurisdiction.Holding:-It was duty of the court to verify that they had jurisdiction. It is therefore an error of the Court and the plaintiff can take advantage of it. -The judgment was reversed.Notes:-Modern law gives fed courts jurisdiction when it falls under Article III and a federal statute. Article III contains language about citizenship and parties in a suit that are relevant to Capron v Van Noorden: Must have diversity btwn-- citizens of different states; citizens of same state w/disputes over land in different states; citizen of state or a state itself and a foreign entity; 2 or more states; dispute btwn a state and citizen of another state.-

B. Systems of Procedure and Models of Judicial Behavior

*Law has 2 categories: Substantive law defines legal rights and duties in everyday conduct. Procedural law sets out the rules for enforcing substantive rights in the courts.

*American legal system is in the family of “common law” or the “adversary system” w/ court cases arising out of disputes btwn adverse parties.

1. Band’s Refuse Removal Inc. v. Borough of Fair LawnSuperior Court of New Jersey, Appellate Division, 1960

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Key Terms: ab initio: “from the beginning”ultra vires: unauthorized; beyond the scope of power allowed by a corporate charter or the law.amicus curiae: “friend of the court”; a person not party to the lawsuit who petitions the court or is asked by the court to file a brief in the action b/c that person has a strong interest in the subject matter (ie. the army, companies and other universities filing brief during U. Michigan affirmative action Supreme Court case)Proced. Posture: Band’s(π) sued Borough(Δ) over ordinance that was claimed to be arbitrary, discriminatory, unconstitutional and ultra vires and sued for a permit. Δ answered that the contract valid b/c of competitive bidding. Capasso, also defendant, counterclaimed asking that Δ not allowed to issue permit to π. Trial court declared contract with Borough void from the beginning and set aside contract and declared illegal and void all payments made under the contract. Court also declared a borough ordinance regarding the sanitary code illegal and void. Decision for the Borough of Fair Lawn for $303,052 (FL later became sort of plaintiff—see below)Facts: Feb 1957 Borough of Fair Lawn (Δ) advertised for bids for town garbage collection and awarded contact to the Capasso’s (C), the lowest bidder. Contract signed and garbage collected satisfactorily through trial and appeal. In August, Δ adopted ordinance 688 requiring permit to collect garbage and permit only for those with a contract with Δ, meaning only C could collect garbage. π has contract with the Electric plant, applied for permit and was denied pursuant the ordinance. Π sued the town Reasoning:3 Main Issues Used for Reversal: Bias, Lack of Notice, Over Involvement of judge-Judge allowed Δ to change pleadings mid proceedings (pre-trial) and switch their plead to say the contract was invalid alleging fraud and seeking recovery from Capassos for payments made them. Judge didn’t allow C. to prepare for sudden change.–Switch in pleading was deemed ok on appeal ( but Court ruled judge erred in not allowing C’s lawyer to do proper discovery and investigation regarding the new pleading. The denial was a denial of due process.Rule(s): -The power to take an active part in the trial of a case must be exercised by the judge with the greatest restraint as to not cross fine line btwn advocacy and impartiality. -Judge must not only be impartial but give the appearance of impartiality. Holding: Judgment Reversed and a new trial called (basically start from beginning)Class Notes:- Trial judge’s conduct of a trial contrary to traditional rules and concepts which have been made to protect private rights = denial of due process-Function of trial judge is to serve litigants by determining their disputes and the issues implicated in accordance w/ applicable rules and law. Judge can’t initiate or inspire litigation or expand case without notice.-Plaintiff wanted to narrow issues and drop claim 3 of corruption. Judge said if they do, he’d dismiss claim over contract: Judge broadens scopes and plain and defendant didn’t define scope of dispute or agree-Demands dispute broader than what plaintiff wanted-cross-claim—one Δ against another Δ; counterclaim- a comeback claim to a claim against you-Initial Dispute- D.R. options?

-Options that BR had besides filing suit: resolve dispute by not having it-give up contract b/c took into account cost of following through w/ suit; just ignore ordinance and keep hauling the trash-city would have to weigh cost of enforcement and suit-maybe city doesn’t file suit in response to ignoring ordinance; ask municipality to change ordinance—use politics over litigation (they did as for a permit before filing suit)~perhaps negotiate while filing suit

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-What does BR want?-For ordinance to be removed from books-keep the status quo

-New party, new claims-Why does Capasso intervene? : may think city’s defense is weak; want to defend own interests (they do file a cross claim against city and a counter claim against BR)

-Cross claim-want an injunction to be placed against BR ever getting a contract (prevents city from flipping the script; court can enforce order against BR—enforces the ordinance)

-City flips the script anyway and changes the claim:-criminal investigation going on and indictments of city officials for fraud involving Capasso—perhaps Capasso contract was crooked all along and BR was right-court finds contract void ab initio (see above brief)

-City prevails in trial court- but BR really doesn’t get anything, basically looses and ordinance is upheld-On remand-new trial (appeal court’s decision): Fair Lawn v. Capassos (FL new plaintiff)

Reserve Mining Co v Lord8th Circuit Fed Court of Appeals 1976Facts: District Judge Lord showed improper conduct and bias in case where Reserve Mining Co was charged with polluting Lake Superior. Supreme Court found that Lord had “shed the robe of judge” for that of an advocateKey terms:Adjudication: the legal process of resolving a dispute; process of judicially deciding a case-The moral force of a judgment or a decision will be at a maximum when:

1. Judge doesn’t act on his own initiative but on the application of one or both disputants.2. Judge has no direct or indirect interest in the outcome of case3. Judge limits his decision to the controversy before him and doesn’t attempt regulation of

the parties’ relations beyond the controversy4. Case presented involves an existing controversy and not some future disagreement5. Judge decides case only on evidence and arguments presented to him by the parties6. Each disputant is given ample time to present his case

*It is seldom that all of these can be realized in practice or it is wise for them to be, this is just when adjudication as a principle order reaches its maximum force.

B. Systems of Procedure-Institution: an organization or a practice-Institutional Choice:-judiciary is one institutional choice for resolving conflicts; there are many institutions to choose

from and each choice has particular benefits and drawbacks-Institutional Design:-within judiciary, numerous ways to design the institution- can design however you want-says what they can do, limits what they can do and regulates them

Examples:-Minimum Context for Judiciary: Resolves some disputes with tax paid govt officials. Sometimes makes decisions absent of one of the parties of the dispute-not lawful for somewhat to just disregard judgment—disputes are resolved.

Components of Adjudication : Systems of ProcedureObjectives Design-Procedural Model & RelatedAgents’ Behavior

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(judges)Settlement- Goals: Finality; includes acceptance and legitimacy in community; clarity going forward—whatever is settled establishes something useful that is broader than dispute at hand

AdversarialUses facts presented by advocates to make decisions

Umpire

Justice (like fairness)-Subsets: fair process (people feel like they have had day in court); substantive justice (decisions made in a normative way)-outcomes are consistent with and based on substantive law-like cases decided same way (sort of thin/ weak)

Investigatory/ Inquisitory Crusader

Law (substantive and procedural): system has to use law to operate and might produce/ amend law as well (ex. Capron v Van Noorden-no specific statute speaking to case)

Managerial Fixer

Truth: ascertain historical facts as accurately as possible (sort of related to issues of substantive law); Done quickly, cheaply and efficiently: (see Rule 1 in green supplement)-in civil matters they shall be administered to secure just, speedy, inexpensive and efficient settlement of every matter

2. Kothe v. SmithUS Court of Appeals 2nd Circuit, 1985

Key terms: Dilatory: intending to cause delay Proced Posture: Defendant appeals from judgment on US District Court (southern NY) which awarded $1,000 to plaintiff-appellee’s medical witness, $1000 to plaintiff-appellee’s attorney and $480 to Clerk of the Court.Holding: Judgment vacatedFacts: Kothe brought sit for medical malpractice vs 4 defendants. Kothe dropped suit against three save Smith. Judge Sweet held pretrial conference where he directed counsel for parties to conduct settlement negotiations. Sweet recommended $20,000-$30,000 as a figure and warned that if similar amt was settled for after trial began, he’d impose sanctions against dilatory party. Kothe’s attorney told the judge that they would settle for $20,000 before the trial & requested that the judge not tell the other party. Lowest settlement that was communicated to Smith was $50,000. After1 day of trial, settlement for 20,000 was reached. Judge charged Smith a penalty as warned but not Kothe.Rule: Although the law favors voluntary settlement of civil suits, it does not sanction efforts by judges to bring about settlements through coercion-Rule16.Class Notes: -FRCP 16-Why would judge try to force settlement anyway?

-court resources and time-send message to insurer-may just think $2mil is too much, his amt is more just-maybe he guestimated that that amt fitted true misdeed-think abt what parties would accept and should accept (did have pretrial discussions w/ plaintiff= ex parte (w/o the other party)

-Theories:-District court correct to pressure parties to settle since they settled so fast

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-What abt penalizing Smith but not Kothe?: Not right due to ex parte discussion; bias-Good bias: I have evidence that you are evil-Bad bias: I have no evidence but you are evil

-Wrong to coerce settlement in the first place, even if he penalized both parties; up to parties to ultimately settle because of informational asymmetry: parties have more info than judge & parties ignorant of each other’s info pre-trial. Judges seem knowledgeable but really ignorant of facts, also may be prejudiced from other cases

-Rule 16 (see rule sheet) Structure:-deals with conferences and settlement as well as sanctions-Settlement: facilitating yes, forcing no

-has a lot of room for judge’s discretion-Rules are not necessarily self executed—sometimes vague and loose

C. Rewards and Costs of Litigation1. Potential Relief (Injunctions and Temporary Restraining Orders—Rule 65)

General Notes on Injunctions:- preliminary injunctions) are provisional remedies granted to restrain activity on a temporary basis until the court can make a final decision after trial. It is usually necessary to prove the high likelihood of success upon the merits of one's case and a likelihood of irreparable harm in the absence of a preliminary injunction before such an injunction may be granted; otherwise the party may have to wait for trial to obtain a permanent injunction.-

a. Prejudgment seizures and due process i. First Steps (Fuentes)

Fuentes v. ShevinSupreme Court of US 1972

Key Terms: Replevin: An action for the repossession of personal property wrongfully taken or detained by the defendant, whereby the plaintiff gives security for and holds the property until the court decides who owns it.Proced. Posture: 3 fed. District Courts upheld the constitutionality of FL and PA laws authorizing seizure of property under writ of replevin simply upon the ex parte application of any other person who claims a right to them and posts a sec. bond.Facts: Fuentes purchased items from Firestone Tire Co. on installment plan and dispute arose. Don’t know if Fuentes defaulted. Firestone filed a writ of replevin ordering repossession of goods at once prior to any summons (w/o due notice) to answer the complaint. Fuentes filed action in fed district court. Class action(?) with other cases in other PA w/ similar stories considered by Supreme Court w/Fuentes.Issue: Do statutory procedures violate the 14th Amendment’s guarantee that no State shall deprive any person of property w/o due process of law?Rule(s): -“Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” (When there is a significant property interest is involved, must have hearing that involves a real test. See Goldberg v Kelly [stipulates substantial oral argument with arbiters, witnesses, etc]). Reasoning: -Constitutional right to be heard is basic aspect of the duty of govt to follow a fair process-Purpose of req is to ensure fair play to the individual and to protect his use and possession of property from arbitrary encroachment

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-procedures surrounding writ replevin in FL and PA is arbitrary—no notice, no proof needed to file writ of right to property or guidelines of who can file (Washington case with ex-husband possessing children’s items-in PA don’t have to file suit)-Right to notice and hearing must be granted at time when the deprivation of property can be prevented—court doesn’t embrace proposition that a wrong may be done if it can be undone-use of bonds to order writ of replevin isn’t a strong deterrent to arbitrary deprivation of property-state statutes abdicate effective state control over state power-no state official reviews basis for claim or merits of claim or evaluates need for immediate seizure-state acts in the dark-Court more comfy when there is judicial over sight-Exceptions made for govt interest-case when pre-seizure hearing not neededHolding: Judgment vacated and remanded. Class Notes:-Firestone filed a TRO- motion to recover property (writ of replevin—Rule 65)-Critique of ruling:

-decision costs high when most cases plaintiff has strong legitimate case for seizure-could put property in danger of being damaged/sold/etc before seizure of judgment settled-decision cost may work into high cost of doing business—credit restricted (however may also reduce predatory lending)

-Support:-Error costs really high w/o hearing, risk of serious hardship through deprivation may be high esp when case works out in defendant’s favor (false seizure)-magnitude of harm to defendant may be high; actual harm not always relative to market value of property- if defendant really has no case, may not even show up to the hearing—so no decision costs b/c it is opportunity for hearing not mandatory hearing-discourages predatory lending-about abstract idea of fair play, Constitution not just about fair play

-Is there are ways to look at Fuentes outside of a cost-benefit utilitarian argument? Due process part of Constitution—basic right outside; must use conventional legal logic—rigid rules; necessary despite any analysis of costs

ii. Retreat? (Mitchell)

Mitchell v. W.T. Grant CoUS Supreme Court 1895Case Synopsis:-Court basically overrules Fuentes. Felt LA statute had enough provisions for due process, appropriate state control and oversight and protected interests of all parties involved. Opinion stated that Fuentes was too broad and interfered too much w/ state’s role and that property could be seized before a hearing. Dissent failed to see any distinction btwn Fuentes and Mitchell cases, thinking Fuentes shouldn’t have been overruled and that Fuentes should have also required invalidation of LA statute.Class Notes:-Distinction from Fuentes—Why does court rule differently?: These particular procedures are different and the opinion doesn’t overrule Fuentes. LA statute has more court control, simple procedures that are facts based and specific leaving less rule of error. Judge evaluates documents. Distinction thin, but it is there. Fuentes preserved but distinguished.

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-There are competing interests at play. Case is transitional in thinking of court.

iii. Reformulation (Doehr) (CB 49n.7-66n.4)

7. Matthews v EldridgeUS Supreme Court 1976

Case Syniopsis:-cut back on stance that a trial-type evidentiary hearing was always required before terminating welfare benefits-issue over pre-termination hearings for social security benefits. Court ruled shouldn’t be required.-erroneous termination less likely to result in serious financial loss when compared to welfare -results of hearing less valuable---decision costs are high and outweigh error costs-would flood system with excess hearings-Criticisms of approach: court undermined human dignity by not allowing people to be heard and fails to credit “process values”

Connecticut v. DoehrSupreme Court of US 1991Rule(s)-Tests: Test has 3 considerations:

1. Private (defendant) interest in property that would be invaded if allowed--significant2. Risk of erroneous deprivations (error cost/ risk)--substantial3. Plaintiff interest and interest of Govt in foregoing procedure -Such a test leaves a lot of issues and questions unresolved.

Holding: Court rules that due process violatedClass Notes:-Giovanni uses prejudgment seizure to secure (put lien on) property that could be used to pay judgment in battery case: security-Doehr still gets to use/possess the house, although freedom to sell/ finance is hurt-Court. modified 3-prong test from Matthews v. Eldridge to consider whether pre-judgment seizure is justified:

-consideration of private interest affected (person that will suffer the deprivation of the property)

-examination of risk of erroneous deprivation through the procedures under attack (efficacy of alternatives)

-principal attention to the interest of the party seeking prejudgment remedy (system, gov’t)

-Court in Doehr said that CT statute was “invalid as applied”. What does this mean? -Case has specific circumstances that make the application of statute constitutionally problematic here. Some ideas:

Court only goes off one side of story over alleged fist fight—a tort. Court had to determine if there is a reasonable expectation of validity of claim and suit. Hard to determine merits of a tort suit compared to that concerning a creditor/ debtor commercial case. Torts more complex.

Hard to estimate damages sans an adversarial process No prior interest in the home on the part of Giovanni.

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Different from mechanic’s lien—ie. a contractor puts claim on property that he actually worked on to recoup $$; case is intuitive

-Opinion raises issue of no prejudgment hearing and no bond: Court feels no hearing violates due process in this case—unanimous Court split on issue of necessity of bond. Why?

Hearing is really the core of due process There are some harms that bonds cannot undo that a hearing

would prevent—error costs too high w/o hearing Reliance on bond doesn’t account for harms that come from

erroneous attachment to excuse the State by giving a speedy post-attachment hearing

Just requiring bond is too vague—what are requirements, terms and conditions

But, a bond can act as a deterrent to frivolous claims Procedural due process has value in and of itself

-Why use the courts at all?-There is the repo man and forms of negotiation and self help as well as politics.

-Neutral arbiter not always to your best advantage-Courts really slow; costly (time, $, effort)-Might not work out to your advantage

-Perhaps injunction are to their advantage:-sort of has some finality to it-won’t end up in court b/c of self help gone bad-other party may feel compelled to obey law and stand by decision-balances out power perhaps?-Government has coercive force (sheriff); govt backs you up if you win: buffer-writs of replevin/ prejudgment seizure—get stuff faster

b. Post Judgment Remediesi. Damages

Carey v. PiphusSupreme Court of US 1978Key terms: ad litim: “for the suit”; for the purposes of the suitFacts: Student presumably caught smoking weed at school. Given usual 20 day suspension for drug use. Parent sued school saying suspension violated 14th Amendment as they were denied due process. Piphus sought declaratory and injunctive relief with actual and punitive damages =$3,000. Similar facts with student Brisco over earring. Earrings disallowed as part of anti-gang policy. Proced. Posture: District Court found for plaintiffs but did not give damages due to lack of proof and dismissed complaints. Court of Appeals of 7th Circuit reversed and remanded and found that student entitled to recover substantial nonpunitive damages even if suspensions were just and even if they don’t prove that any other actual injury was caused by the denial of proced due processRule/Test: Unless plaintiffs prove that they were actually injured by deprivation of procedural due process, they are at least entitled at most to nominal damages.Holding: Reversed-In absence of proof of actual injury, students only entitled to recover nominal damages.Reasoning: -Cardinal principle of damages in Anglo-American law is that of compensation

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-Purpose of §1983 damages award is to compensate persons for injuries caused by deprivation of constitutional rights-Purpose of § would be defeated if injuries caused by deprivation of constitutional rights went uncompensated b/c the common law didn’t recognize an analogous cause of action-Due process rules only meant to protect person from the mistaken or unjustified deprivation of life, liberty or property-Procedural due process rules shaped by risk of error inherent in truth finding process-Right to due process is absoluteClass Notes:-What are merits of anti-gang policy over symbols?-Must study interests of both parties: school to enforce the policy and students to have procedure

-School, need to maintain order-Student needs the credential-the paper to get a job; wants some procedure

-To get a preliminary injunction, there has to be evidence of merits of the case and threat of irreparable harm if no relief given

-given nominal damages. Lack of process didn’t cause injury of missing school, would have been suspended even with process. Damages just given b/c injury = lack of process, not missing school.

Notes and Questions1. TRO vs Preliminary Injunctions: Piphus used a temporary restraining order

(TRO) as an injunction to return to school. Restraining orders act as an injunction directing a party to do or cease doing something. Sometimes used as a remedy in due process cases.

a. TRO can be granted w/o notice to adverse party but can only be in effect for 10 days. Rule 65 allows special extensions. Must also start up preliminary injunction process during TRO.

b. A preliminary injunction can be issued only after notice to adverse party and opportunity to be heard and can last indefinitely.

c. Tests for preliminary injunctions: Usually only used as a method of relief where plaintiff has shown (a) a strong likelihood of success on merits of case (b) irreparable harm should preliminary relief be denied (c) that the balance of hardships strongly favors plaintiff (d) that issuing the injunction would advance the public interest

Class Notes 10/7/05Damages-compensatory- compensate for injury caused by defendant-presumed- so hard to prove causation or amt of damages but sure it happened, so allow recovery of substantial monetary damages despite lack of hard proof of damage. Rare-punitive- Court says like punishment and deterrent. Multiple ways to calculate. Beyond compensation.-nominal- $1 in damages

Issues w/ Damages-How do we measure damages? Sometimes hard to gauge.-Collection—how and do we get the $$: people hide $$, defendant might not have $$

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Ex. Carey v Piphus (pot, school and due process) -Two theories of relief:

1) deprivation of due process=loss of schooling (injury) so relief should address this w/ $2) deprivation itself was the injury, so relief should address this—nominal

-Why just give $1 in damages? -Acts as a declaratory judgment? Doesn’t quite fit definition of declaratory judgment, since it would be backward looking—Declaratory judgment sort of says: your rights were violated; a final judgment but like hedging of bets—requires no calculation of damages or injunctions but adds to the parties feeling of certainty; normally done before harm has been actualized-Court recognizes that the peer deprivation of due process occurred but plaintiffs provided no proof of negative affects of deprivation. Court would grant compensatory damages but no evidence to back up $$-nominal damages serves to open the door for suits on other issues for perhaps punitive damages or attorney fees—indication that the claim was substantial enough but that a gap existed

ii. Equitable Remedies-type of post judgment remedy Terms:ancillary: Supplementary; subordinateInjunction: court order that orders a person to do or not do something—different from just ordering damages; court enforceable by use of contemptaction in equity. 1. ACTION.Equitable remedies-directly orders defendant to take or cease certain specified action

Smith v Western Electric Co. (injunction to protect worker health and safety)Missouri Court of Appeals 1982Proced Posture: Trial court dismissed plaintiff’s suit for an injunction.Facts: Smith worked for company for several years in open space filled with tobacco smoke. Smith developed serious condition. Def. refused to make necessary accommodations to improve air quality and protect worker health after several complaints and numerous pleas. Smith sued saying defendant breached duty to provide sage work place for employees.Holding: For the plaintiff—reversed—trial to be held to hear his claims for an injunction.Rules: -Injunctive relief is unavailable unless irreparable harm is otherwise likely to result, and plaintiff has no adequate remedy at law.Class Notes:

1) Relief Requested: Smith wants court to issue injunction to make employer properly address issue of tobacco smoke (protect him from smoke) w/o any penalties for seeking remedy

2) Basis in substantive law: OSHA regulations, Missouri law –employer has duty to provide a reasonably safe place of employment and must act to promote safety

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3) Supporting fact allegations (not as standard facts, but course takes them as true because case had been dismissed by lower court—nothing had been demonstrated):

a. Smith injured by tobacco smokeb. Tobacco smoked throughout office—can’t escape from itc. Complained several times and employer told will ignore complaints—

complained since 1975; moved around but to no avail; offered option with pay cut; given a respirator but didn’t help

d. Condition will become debilitating if not addressede. Adopted a smoking policy from National Institute of Occupational

Safety but did not implement it4) Result and Reasoning: Court reverses dismissal and remands for new trial. Says

injunction available but depends on trial. 5) Other possible remedies besides injunction: Ideas?

a. Compensatory damages: for medical bills and pain and suffering; retrospective

b. Damages for future injuries if def doesn’t act?? Problematic and uncertain—why not just give the injunction

**Why would plaintiff press for injunction over damages? Wants to prevent future injuries—but a large damage award could compel business to make changes, but uncertain. Retrospective damage would act as ex-ante deterrent. ***People can bargain around injunctions and legal rules, and sometimes come out w/ most efficient remedy, esp when injunction if really harsh

Notes and Questions:Test for Permanent Injunctions:-To grant a permanent injunction, court has to determine:

1. if plaintiff has succeeded on the merits2. if he has an adequate remedy under the law—if alternative remedies are inadequate3. if he risks permanent, irreparable and immediate harm (but, every harm is irreparable in that you can’t turn back time and every injury is reparable in that $$ can make people feel better)4. if the balance of hardships weighs against issuance of an injunction5. if an injunction would serve the public interest6. if the court can, as a practical matter, administer the injunction (must know character of the injunction—ie. many options in Smith case—ie no smoking in bldg, no smoking around Smith, no smoking areas—narrower form of relief may be easier to administer and have greatest positive pub interest impact)

-Irreparable Injury Rule: The principle that equitable relief (such as an injunction) is available only when no adequate legal remedy (such as monetary damages) exists. • Although this rule is one that courts continue to cite, the courts do not usu. follow it literally in practice

-Helling v. McKinney-Inmate sued warden for cruel and unusal punishment for putting him in a cell with

a smoker.

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-Another option other than an injunction is a declaratory judgment: USCA §2201(a) allows federal courts where there is “an actual controversy” to “declare the rights and other legal relations of any interested party seeing such declaration, whether or not further relief is or could be sought.”

Enforcing Equitable Decrees: Contempt-Injunctions are court orders for defendant to take some action. For a defendant not to comply, he’d be charged with contempt:

*Criminal Contempt: Violation of court order can be prosecuted. In criminal contempt, the penalty imposed is not designed to compensate plaintiff or prompt future compliance. It is a criminal case and defendant can have right to jury trial. Penalty can be jail time and/or fines*Compensatory Civil Contempt: Court orders defendant to pay amount to plaintiff that is compensatory for the harm caused by violating the decree.*Coercive Civil Contempt: Court imposes a penalty on defendant in order to prompt future compliance with a decree. Usually, the penalty is contingent in that it applies only if the order is not obeyed. (example: Court institutes $500,000 per day penalty each day until certain documents are turned over; court throws reporter in jail in order to make fess up)

-Collateral bar rule: precludes the defendant from challenging the validity of the injunction in the “collateral” contempt proceeding

-Can be controversial—case of Martin Luther King Jr. in Walker v City of Birmingham. MLK ignored a temp. restraining order to not march that was decided ex parte (w/o a hearing). Court ruled that law allowing injunction was probably unconstitutional but cited idea that no man can be his own judge and held them in contempt. CJ Warren dissented strongly—should be able to challenge constitutionality of a statute, to do so shows no disrespect for the law. Statute was later proved unconstitutional. MLK ignored another injunction in Oppenheimer, MLK, Walker v City of Birmingham—didn’t want to see another challenge to segregation whither while waiting for appeals process; product was Letter From A Birmingham Jail

Class Notes 10/11/05-Equitable Remedies

-Based on hundreds of years of English court/legal history: Crown (Royal Courts-King and Queen’s Bench—at law; common law) and Chancellor system (no jury trials, was discovery, remedies differ from royal courts, based on equity)

2. Cost of Litigation (especially attorney fees) (p98-108)Vengas v MitchellUS Supreme Court 1990

Facts:Vengas entered into contract with Mitchell over attorney fees granting him 40% of award minus any court awarded attorney fees (that’s be paid by defendant to Vengas to enable to pay Mitchell w/o penalty). Vengas won $2mill and $117,000 in attorney fees. Vengas then refused to pay Mitchell the money agreed to in the contract--$400,000 or so (other half to go to co-council). Vengas sued saying that statute concerning attorney fees was so that plaintiffs wouldn’t have to pay excessive fees and meant they should be limited to court awarded amt.

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Proced. Posture: District court refused to reduce or disallow fee finding it reasonable. Appeals court affirmed.Holding: Affirmed for ΔReasoning: Vengas simply misread the law. 42 USC §1988 says those discretionary awards are available to π for attorney’s fees but doesn’t speak to nor limit right of π to freely contract w/ counsel in order to determine additional fees—private matter.

Notes and Questions1. Litigation is $$$.

a. Some expenses are recoverable according to Fed. R. Civ. P. 54(d)(1), but that is limited to out of pocket fees like filing costs fees, which are usually smaller than attorney fees but are still often considerable. (Ie. Making someone pay court costs as part of judgment) Relative wealth of the parties isn’t ground for denying cost award

b. “American Rule”—each party bears burden of their own attorney fees. American court do not require losers to pay attorney fees of winners, but other countries do req. loser to pay at least some of them. One plus for making loser pay attorney fee is that it may deter groundless claims b/c cost of litigation w/o improving the chance of winning.

c. What are potential drawbacks?? More costly for people w/ legit claims and the poor. What abt little guy suing corporation? How sure of success would you have to be to take the risk? Would reduce incentive for people to conserve costs and for lawyers to charge reasonable rates.

d. Some benefits to the American Rule is that it encourages settlement to help mitigate expenses

2. There are some exceptions to the American Rule enabling some recoverya. when the lawyer’s or litigant’s activities create a common fund for the benefit of othersb. by contract agree that in event of a dispute, the prevailing party is entitled to recover attorney feesc. “private attorney general” concept: I some states, attorney y fee can be awarded to party whose action has ‘resulted in the enforcement of an important right affecting the public interest’—ie result of litigation is a significant benefit for general publicd. Venga case involves fee shifting that was worked into legislation around 1976. Allows recovery by Δ when π’s suit is frivolous, unreasonable or w/o foundation. Exception also made for π in civil rights cases.

3. Vengas case uses fee shifting based on a reasonable fee. Lodestar method of calculation is hours worked x lawyer’s hourly rate. In Vengas the court doubled the rate, however later cases set precedent that this wasn’t ok to do—looked to as double payment and also doesn’t allow fee enhancement for contingency. So, under current law, Mitchell’s court award would be half.

5. Some courts have reject lodestar in favor of using calculation of % of recovery. Thought lodestar method was cumbersome and a “surrealistic process” that consumed too much judicial resources (research into attorney’s rates etc), discouraged attorneys from settling of being efficient and awarded mediocre attorneys. Awards are usually 25-35% of recovery but less where recovery is very large.

D. Private Ordering Through Alternatives to Litigation13

Alternative Dispute Resolution (ADR) has 3 main forms that are all private ordered and conducted extrajudicially:o Negotiation and Settlement Promotion

o Oldest form of ADR—everyone naturally negotiateso Lawyers get involved—occurs pre and post litigationo Court sometimes helps promote (Rule 16) and hosts settlement conferences

which may or may not involve the judgeo 3rd Party Intervention

o Could just be a Neutral evaluation of each party’s caseso Could be More formal “trail runs” w/ nonbinding opinions (mock trial etc)o A popular form is Mediation

used in divorce and family law Signed agreements are legally binding—have higher rates of compliance

than court orders Now often ordered or encouraged by court Widely Mediator can be facilitator or more active Becoming popular in community mediation type settings, for labor law

and personal injury and commercial suits Differs from adjudication in that mediator helps reduce antagonism and

develop environment of trust Option for creative resolution beyond legal scope of dispute Voluntary

o Arbitrationo More close to adjudication than mediation b/c 3rd party has authority to decide

the dispute not merely to facilitate compromise. This power is given when parties agree to use arbitration

o Key is agreement and binding decisiono Parties bear their own costs (as in other forms of ADR)o Issues: Takes for granted that the playing field is level (include notes on pros

and cons of proliferation of arbitration)II. Defining the Dispute (harvest notes from book margins)

A. The Evolution of Pleading 1. Early Common Law v Equity

ADR—property rules v liability rules:-property rules can be linked to injunctive relief; you have a right to decide issues abt your property-liability rules—your right to decide less important; injury had less opp to bargain before hand-important to know difference btwn arbitration and mediation (flush out notes)Evolution of Pleadingo Elements of old pleading are present in our present pleading wayso Goes back to English system of king’s court—Equity Courts and Law courts (common

law)-Courts of Law (Common)—had formal writ system that developed into a pleading system-Pleadings are documents used to defined the scope of the dispute-Common law pleading—Had one issue based on one form of action btwn just two parties—very simple and rigid-Equity pleading had less formality and was more narrative. Chancellor’s decided what is best option of getting you justice

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o Demurrer: Different Types:-Special Demurrer: Attack on the form of the pleading -General Demurrer: Attack on basis of law—you have no standing in the law—there is no law to support you

2. “Code Pleading”—Gillispie v Goodyear

-US Reform Efforts- Code Pleadingo In mid 1800’s, US states formed rules to govern pleadingo Federal Rules of Civil Procedure #2 (look up): “There shall be one form of action to be

known as civil action.”

-Gillespie v Goodyear Svc Stores (Supreme Court of NC, 1963) (Rule 8(a))-Complaint is a pleading—pleading is a document with form and function

-Δ files a special demurrer (on the form) of the complaint—Complaint lacks “facts sufficient to constitute a cause of action”; trial court sustains and NC Supreme CT affirms (Did she totally lack facts? Did state cause of action for assault, but didn’t really state facts that determine the cause of action)-Why does the π appeal rather than amend the complaint? Perhaps the loose pleading allows them more flexibility, where a more detailed pleading would constrain them during the trial if more stuff can out during discovery that perhaps wouldn’t fit battery but maybe assault?-Assault 1) acts intending to cause (a) harmful or offensive contact and or (b) apprehension of such imminent contact and 2) plaintiff is thereby put in danger of such imminent contact

B. Modern Federal Practice and Rule 8: π ’s Claim(s) o Liberal Ethos : Ideology installed by Charles Clark and cohorts who drafted the Federal

Rules of Civil Procedure in which the preferred disposition of cases is on the merits, by jury trial, after full disclosure through discovery. Key to shift in focus was a reliance on general pleading

o Some Key Points to Liberal Ethos view in Fed. Rules of Civ Pro:o Move away from terms like “facts” and “cause of action” to simply requiring

that the π give a short and plain statement of the claim showing that the pleader is entitled to relief—Rule8(a)(2)

o Pleading motions retained in Rule 12 with the motion to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6) allows motion to dismiss for “failure to state a claim upon which relief can granted”

o Rule 12(b)(6) came to forefront in Conley v Gibson in which ruling said to usher in “notice pleading”:

Conley v GibsonUS Supreme Court 1957Facts: Black union members accused union of racial discrimination. Complaint didn’t contain specific or direct factual allegations but alledged that union did not offer same protection to blacks as it did to whites when 45 black held railroad jobs were terminated.Proced Posture: Δ moved to dismiss based on Rule 12(b)(6). Court upheld complaintHolding: Affirmed

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Reasoning: Upheld sufficiency of complaint based on broad reading of Rule 12(b)(6)—a complaint shouldn’t be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set for facts in support of his claim that would entitle him to relief.

o Some have taken issue w/ notice pleading such as Judge Posner who noted that Conley v Gibson is oft quoted w/ approval “but never been taken literally”. Even the drafter of the supposed notice pleading concept did not believe in the abandonment of the req of allegations of specific fact in pleadings.

1. Specificity and Motion Practicea. United States v Board of Harbor Commissioners

United States District Court, District of Delaware 1977Facts: Δ moved for dismissal based on Rule 12(e) F.R.Civ.P. for a more definite statement of the complaint—original one too vague and prevents them from framing a responsive pleading as required by Rule 7Rule(s):Rule 12(e)F.R.Civ.P.: “If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading , the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after the notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.”Rule 7, F.R.Civ.P.: Says that there has to be an answer to a complaint and so on.Rule 8, F.R.Civ.P.: (ADD RULES TO RULE SHEET)Issue(s): notice and clarity of the π’s complaintHolding: Motion deniedReasoning: As long as Rule 8 is satisfied d the parties are fairly notified of the nature of the claim, the complaint stands. Δ’s misuse of Rule 12 merely a means of ferreting out the government’s case.Class Notes:Specificity—There is a clause requiring this, but it is soft (Get notes from someone—sherod?)Common law—issue pleading

--fact pleadingFed Civ Pro—notice pleadingo Notes:

o 4. Court says that a motion for a more definite statement shouldn’t be used to prepare a motion to dismiss. If so, it should be used with caution. Like caution should be used when using Rule(e) to aid a Rule12(b)(6) motion

2. Consistency and Honesty in Pleadinga. Inconsistent AllegationsMcCormick v Kopmann (alternative claims: multiple possible Δ’s)Appellate Court of Illinois, 1959Facts: π’s husband killed in an accident when truck driven by Δ collided w/ his car. Π sued Δ and the Huls, owners of a bar where π’s hubby drank before accident.

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Proced Posture:Δ moved for dismissal over contradictions btwn Count I and Count IV in complaint. Trail Court denied motion. Jury ruled for π against Δ under Count I and awarded $15,500Rule(s): “Claims may be made in an alternative regardless of consistency”. “Where the pleading is in the alternative in different counts, each count stands alone and the inconsistent statements contained in a count cannot be used to contradict statements in another count. Holding: Affirmed.Reasoning: Key witness is deceased so only feasible way to proceed is by pleading alternative sets of facts.Notes: Why does the π sue both the Δ and the bar owners in the same trial instead of having 2 lawsuits? Possible reasons:

o The truck driver could win his suit by blaming the bar owners and the bar owners could also avoid liability by blaming the truck driver.o In having one trial, there is the likelihood that each defendant will help the plaintiff make out a case against the other.

Class Notes: (get from someone, Sherod, Maya?)-Rule 8—allows inconsistent pleading (in contrast to Rule 11); allows one to hedge bets. But is it a good idea? -Rule 8 justified under a information inconsistency problem (like above case, Wife doesn’t really know what went down cuz she wasn’t there)-But, is it still a bad idea for trial? Sort of, discovery comes before the trial, so π should have to choose btwn two competing theories using tools of discovery-Allowing two theories all the way through could confuse jury—could be no one’s fault but jury thinks it has to blame someone-However, trial testimony might be only way to shed light on certain issues—like, if people refused to speak to lawyer prior to the trial-Credibility trade offs -Rule 8 doesn’t really encourage or allow inconsistent pleadings in

b. Certification by Signing—Rule 11

Zuk v. Eastern Pennsylvania Psychiatric Institute of the Medical College of PAUS Court of Appeals, 3rd Circuit 1996Facts: District Court assigns penalties under Fed. Rules of Civ Pro Rule 11.Holding: Remanded (affirmed in some parts (ie right to impose sanction) and vacated in others (i.e. severity of sanction vs non-punative purpose of Rule 11))

Rule(s):o Fed. Civ. Pro. Rule 11 Sections b and c (Representations and Sanctions):

o Purpose of rule is to deter not to compensate another party. In determining amt of sanction, should be calibrated to the least severe level needed to fulfill the deterrent purpose of the Rule.

o Rule imposes a duty on the counsel to make an inquiry into both the facts and the law which is ‘reasonable under the circumstances’—more stringent that the original good-faith formula—Can’t make claims w/o any factual basis or justification

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o Discovery can’t be used as a fishing expedition permitting the speculative pleading of a case first and then pursuing discovery to support it—must know and have facts first to support claim

o Rule 11 does not encourage using monetary sanctionso In fashioning sanctions, courts should consider mitigating factors like

the party’s ability to pay, the willfulness of the violation, the Δ’s need for compensation, the attorney’s behavioral history and the degree if frivolousness

o 28 U.S.C.A. § 1927 (Counsel’ s Liability for Excessive Costs):o Primary purpose of assigning sanctions under Title 28 §1927 is “the

deterrence of intentional and unnecessary delay in the proceedings.”o Before court can order payment of attorney fees, there must at least

be statements on the record which the court can construe as an implicit finding of bad faith.

o When the lawyer properly relies on the client, the client can be sanctioned even if the lawyer committed no violation of the rule (ie. if client lied)

o Attorneys can be conned by devious clients into filing unsubstantiated and even false claims

Notes (from book): (harvest highlighted sections esp. on sanctions)Class Notes:Rule 11a) Note Verification

-Some state courts make plaintiff sign/verify pleading to make them swear to the truth of it-Federal system doesn’t make the plaintiff sign. Under Rule 11, attorney has to sign and verify the pleading—it depends on his honor and consequences of false claims are his

b) Structure of Rule 11-Signature required on any submitted documents by the attorney representing plaintiff-Rule 11(b) states grounds for sanctions-Rule 11(c) gives options for sanctions and types-Rule 11(d) says that it doesn’t apply to discovery

Zuk v EPPIFacts: -Copy right dispute btwn Zuk (π) and EPPI (Δ)-Issue are video tapes of sessions made of/ for Zuk that EPPI rented out-Zuk’s argument is that once he had written book, he got retroactive copyright on the tapes; Zuk thinks that they are valuable—rare for the field. But, not really clear if he has copyright to the tapes—lawyer had incorrect view of copyright law-Stages of Litigation1) Complaint Filed by π2) Defendant then rules for dismissal under Rule 12(b): failure to submit a positive claim—Δ wins on the law and no additional info needed 3) Zuk then files memorandum in opposition (response to demurrer)4) **EPPI sends notice to π that they will move for sanction under Rule 11(c)(1a); but they didn’t file it for real

-Safe Harbor Provision—Rule 11(c)(1A): Says you must serve motion first and then wait 21 days before filing

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-Δ says that they win on the law and that the claim is soo bad, that π should be sanctioned if they do not correct or withdraw within 21 days.

1) District Court grants motion to dismiss (but Rule 11 motion for sanctions hasn’t been filed yet); feels claim is so horrible, there should be sanctions

2) Δ files another motion for attorney fees; The Copyright statute has a provision allowing for attorney’s fees to be shifted

3) Δ files the Rule 11(c)(1A) motion for sanctions and π files a memorandum in response; Motion for sanctions comes after the dismissal (case was dismissed before the 21 days were up—court that fed up)

4) Π responded with declaration reiterating the facts (they didn’t correct or retract)

5) District Court called for an Order to Show Cause for π to argue why they shouldn’t be sanctioned:

What is difference btwn Order to Show Cause and the Δ’s motion for sanctions? Both are under Rule 11

Order is initiative by court under Rule 11(c)(1B)

Was this proper that both the order and the motion are in play at the same time?

Π argues that if case has been dismissed, he can’t withdraw it. Plus he didn’t get the 21 days to consider the first motion that he was served b/c court acted so quickly in dismissing—he didn’t get his safe harbor.

But, the court Order to Show Cause doesn’t have a safe harbor

Court imposes the order b/c Rule 11 meant as a deterrent for unnecessarily wasting court resources and doing bad stuff, like filing claims w/o verification or idea of what is going on. Using court order bypasses the safe harbor so as they save more court resources by getting rid of more frivolous arguments.

What could π argue? The π could argue as a defense that the court’s order to show cause wasn’t on their own initiative as under Rule 11 (c)(1B) but as response to the Δ’s motion for sanctions. Plus, the Δ’s motion was also improper b/c of lack of safe harbor—court trying to cure the problem w/ the motion

For the above reasons, some courts don’t allow Δ’s to file a Rule 11 motion for sanctions after a case has been dismissed while others up the ante for the sanction requiring proof of bad faith.

What was the court’s response to these procedural issues?

Π’s attorney said he wasn’t going to take advantage of sage harbor—court said “no harm, no foul”

10) District Court says sanction is $15,000. How could it be supported? Attorney fee shifting principle under copyright law—no bad faith component; it is a two way shifting provision—basically the loser pays;

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principle could increase litigation esp with overconfident π’s; increases the variance; helps to fully compensate the winner

§1927 U.S.C.A.—allows the sanctioning of an attorney when they intentionally multiply or delay the proceedings—but this doesn’t apply to this case—no evidence of such conduct

Rule 11 (b)(2 )—this clause was violated so section (c) allows them to impose the sanctions; Basically, lawyer didn’t know jack and didn’t argue from substantive law—wasn’t “an inquiry reasonable under the circumstances” or under the facts

11) What would be an appropriate sanctions?: Purpose of sanctions under Rule 11 is just to deter not to compensate or punish.

What would be a non-monetary sanction? Perhaps go for more education (CLE).

Rule 11(c) restricts monetary sanctions –KNOW THIS PART!!!

4. Legal Sufficiency and Rule 12(b)(6): Motion to dismiss for failure to state a claim upon which relief can be granted.

Class Notes: Rule 12(b)(6) has double usage—includes both special and general demurrer (includes attacks substance of claim and structure of claim)

Mitchell v Archibald & Kendall Inc. (trucker shot while waiting to unload—Rule 12(b)(6))US Court of Appeals, Seventh Circuit 1978 –harvest notes from bookFacts: π delivers products to Δ. tells to wait on street (known by Δ that it was a crime hot spot). Π approached by men for robbery and shot in face. Π sues Δ citing statutes over protection of visitors and invitees to places of business and duty to inform of danger. Issue over what “premises” means.Proced Posture: Dismissed on Rule12(b)(6)Rule(s): Rule 12(b)(6) and Rule 8Holding: Dismissal affirmedClass Notes: On motion to dismiss, you must assume that what π’s say in complaint is correct Π’s argument that Δ had duty to protect invitees on premises and points of ingress and

egress and adjacent areas—based on IL statute Court concerned over definition of premises, although no one disagrees abt actual locale of

truck at time of crime Court also concerned w/ legal theories in the claim to support idea that facts relate to

substantive law to support recovery—not obvious that you need to under Rule 8 Rule 12 (b)(6) motion to dismiss comes prior to Δ’s answer to the claim:

Motion can have 2 forms—issue with the form of complaint or substantive law support. This case an issue of substantive law support

Court agrees with Δ’s motion. But π has a right to amend. Π appealed claiming district court improperly resolved a question of fact—issue of being on

premises. On a 12(b)(6) motion, district court is not to investigate matter of fact, but just take at face value and look to form of complaint and substantive law support. District court said the crime didn’t happen on the premises—π argues that that is a matter of fact for a jury to decide

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Appeals Court answered that the π’s were putting forth a new theory of law not included in their original complaint—waiver—novel legal theories belong in district court. Appeals court deals w/ decisions already made in lower courts. Court does save district court work by addressing issue of what “premises” means in substantive law as it relates to liability and conduct of Δ. Can’t find substantive law to support claims—dismissal affirmed.

What if π’s pleading was simpler and didn’t distinguish btwn premises and adjacent areas as in the original pleading; would he get around Rule 12(b)(6) dismissal?

o Could be sanctioned under Rule 11 (b)(1) –needlessly prolonging and multiplying proceedings.

o Perhaps a Rule 8 sanction—notice failure (insufficient complaint)o Rule 11(b)(2) sanction—frivolous argument for modification of existing law or

new law Perhaps the π’s problem was one of overpleading—being too detailed (whole issue of

premises and adjacent areas)

5. Heightened Specificity Requirements and Rule 9

Ross v AH Robins Co (birth control device maker accused of fraud-Rule 9: Dalcon Shield)--Reread US Court of Appeals, 2nd District 1979Facts: π Ross and Kalman, stockholders in AH Robins, sued Δ for their fraud and mishandling of risk information regarding Dalcon Shield leading to their depleted stocks.Proced Posture: Lower court dismissedHolding: RemandedReasoning:Class Notes: Court has issue with π’s complaint—doesn’t address (prove) issue of Δ knowledge and

reckless disregard of the truth as required by substantive law. Issue of information asymmetry. But, sentence 2 of Rule 9(b) states that “Malice, intent, knowledge, and other condition of

mind of a person may be averred generally.” Court says that securities litigations need/ have extra provisions to protect Δ’s from groundless suits.

Court focuses on 1st sentence of Rule 9(b): “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.”

Π’s point to an unpublished study that begs into question the safety of Dalcon Sheild—hold as proof that Δ’s probably knew—their pre-discovery proof.

Congress Agreed—1995 Congress approved a statute concerning special pleading requirements for securities cases

Federal Rules of Civ Pro where written by the courts—so there is some flexibility, but not usually changed—Supreme Court pushing back against lower courts who try to add onto pleading requirements

Maybe courts are wrong abt perceived proliferation of groundless securities disputes.

C. Defendant’s Response

Pleadings: papers that define scope of the case—answers and complaintsThere are several options a Defendant has in responding to a complaint: pre-answer motion, default (do nothing), and an answer.1. Pre-Answer Motions Under Rule 12

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-Rule 12(f): motion to strike “redundant, immaterial, impertinent, or scandalous matter” or “any insufficient defense”-Rule 12(b): The seven defenses in Rule 12(b) except the failure to state a claim upon which relief can be granted (Rule 12(b)(6)) are objections of a procedural nature:

-Rule 12(b)(1): the court isn’t empowered to exercise jurisdiction over the subject matter of the suit-Rule 12(b)(2): the court lacks personal jurisdiction over the defendant-Rule 12(b)(3): the particular court isn’t the proper venue for the suit-Rule 12(b)(4)&(5): the circumstances or method for serving the process were incorrect-Rule 12(b)(7): the suit shouldn’t go forward w/o a necessary party

-Pre-Answer Motions and Time Affects: filing of a pre-answer motion under Rule 12 affects the time periods for filing responsive pleadings: If the Δ files a pre-answer motion w/in the 20-day period after the service of the summons & complaint, the deadline for filing an answer is extended. Rule 12(1)(a):

If court denies the motion or postpones its disposition, the Δ has until 10 days after the notice of the court’s action to file an answer.

If the court grants the motion, π is normally granted leave to amend (which start the process again) or the suit will be dismissed

If a motion for a definite statement is granted, the Δ has until 10 days after service of an amended complaint w/ a more definite statement

-Rule 12(g) and (h) set out consolidation and waiver provisions abt Rule 12 motions: purpose is to prevent pleader from using multiple pre-answer motions---See All of Rule 12 in Rules Sheet. Rule 12(h) states that 4 disfavored defenses will be waived if omitted from a pre-answer motion or from the answer (if there was no pre-answer motion) under the circumstances in section (g): lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process

Rule 12(g): A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

Class Notes:Three Options of Defendant’s Response:1) A Pre-Answer Motion under Rule 122) Failure to Answer3) Answer

Distinctions to Keep In Mind:Rule 12—keep in mind distinction btwn a motion and a pleadingIn default situation—keep in mind distinction btwn a default and a default judgment

Functions of Pre-Answer Motions under Rule 12:Rule 12 Options:Why would you file a pre-answer motion?-Motion for a more definite statement or clarification—almost a dead letter-Dismissal under subject matter and/or personal jurisdiction or other matters—Rule 12(b)

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-Motions are less work than the answer, the answer must contain every defense-Expedites process-Gives you some strategic flexibility—not locking yourself down or having to amend your answer later—staving off day when you need to define scope of the disputeWhy would a Δ not want to file a pre-answer motion but just include defenses in the answer?-π would have leave to re-plead or amend their complaint while filing the answer might lock them in more—keep scope of dispute more fixedWhen would π prefer that Δ file a motion to dismiss rather than an answer?-π doesn’t want to be locked down in the scope of the dispute-π wants to see Δ’s cards—what do they think is wrong w/ dispute. Knows complaint is risky and would rather find out strength of argument sooner than later.

Waiver Problems:-Rule 12(h)(3): You can file a motion on subject matter jurisdiction at any time. Capron v Van Noorden-Insufficiency of service of processes—some mistake in paperwork or basic process-It is problematic to file multiple pre-answer motions sometimes (see Rule 12(h) highlighted discussion above and Rule 12(g))

2. Failure to Answer--Default

Shepard Claims Service, Inc. v William Darrah & AssociatesUnited States Court of Appeals, 6th Circuit, 1986Facts: π suing Δ for nonpayment for services rendered—filed complaint in district court in August of 1984 but served complaint in February of 1985. Δ’s legal secretary misunderstood the complaint they were served and misinformed lawyer abt the time in which they had to reply. The answer wasn’t received in the 20 day window, and π asked the clerk of court to enter Δ’s default.Proc. Posture:Issue(s): If the district court found the United Coin opinion ambiguous about a precise definition of culpable conduct.Rule(s): Rule 55(c); Rule 4(e)Three Factors That Determine Outcome of a Rule 55(c) Motion:

1. Whether the plaintiff will be prejudiced;2. Whether the defendant had a meritorious defense; and3. Whether the culpable conduct of the defendant led to the default.

It is an abuse of discretion for a court to deny a Rule 55(c) motion in the absence of a willful failure of the moving party to appear and pleadHolding: Reversed and Remanded—default should have been vacatedReasoning: Why should the default have been excused?: Rule 55(c) contains standard for good cause. Δ met that standard. Also issue of willfulness—no evidence of maliciousness or intent or prejudice on part of the Δ. Also appears that they had a meritorious defense (see Test) above.Class Notes:-Why was there a delay between the filing of the complaint and the service of complaint to Δ? -hard to find the Δ—perhaps he avoided being served-Why did they ask for an extension from the π’s counsel? Δ’s lawyer was on vacation. Had an informal extension btwn each other. -District Court certifies the case for an interlocutory appeal pursuant to 28 U.S.C. §1292(b).—basically run up to default judgment-What makes a default significant in comparison to a default judgment? Rule 55(a) and (b)

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-default: serves as a warning—(dude, you’re late. Better act soon). Can no longer fight complaint on the merits but on the remedies unless you get it vacated. Means, you most likely lost.-default judgment: there is a hearing prior to judgment being entered. Game over—you lost.

-What does the 3 part test (in Rules section) mean?-Plaintiff prejudiced: the harm is that the π looses the benefit of the default; π’s case is harmed directly due to the Δ’s default-Meritorious defense: the defense is good on the merits; haven’t violated Rule 11 by putting in the defense—would have consequences of getting cases to trial on the merits—system is geared toward trying cases on merits rather than procedural rules-Culpable Conduct: willfulness and blameworthy conduct—bad faith and egregious conduct; seems unfair to client for attorney’s boo-boo, so courts are generally lenient on defaults b/c there are other ways to punish shady lawyers w/o punishing the client

3. Answera. Admitting or Denying the Averments: Rule 8 and Rule 11

~averment: a positive affirmation of fact; an allegation or assertion in a pleadingObligations: A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies (Rule 8(b) first sentence)TYPES OF DENIALS:-Rule 8(b) requires that a Δ in the answer “admit or deny the averments upon which the adverse party relies”; this is usually done by going sentence by sentence and indicating “denied” or “admitted” allegation by allegation-General Denial: In some states, it is permissible in common law to make a general denial—“I don’t admit nothing, prove it on me”; Rule 8(b) speaks to limited cases where a general denial can be made; very rarely done and unwise-I don’t know: If the Δ is w/o knowledge or info sufficient to form a belief as to the truth of an averment, the party shall so state and this had the effect of a denial—Rule 8(b) second sentence—Basically, I can’t speak to that cuz I do not know about it = a denial (“What you talkin’ about Willis?”)

-Failure to Deny: Silence = Admission; Rule 8(d): Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

David v Crompton & Knowles Corp.US District Court, Eastern District of PA 1973Facts: Case involved product liability action (negligence) involving serious injury. Δ accused of designing and selling the injurious product, a shredding machine, to the π’s employer Crown. Δ seeks to amend answer to part of complaint alleging it designed and sold machine. Δ’s amendment based on new info that machine was built by the Hunter Co. that they bought and that Δ isn’t liable for products negligently sold and built prior to the takeover per the contract they signed at sale. In original answer, they said they lacked knowledge needed to admit or deny and demanded proof.Proc. Posture: Δ seeks to amend answer to averment based on “new” knowledge. π seeks to have Δ’s initial averment counted as an admission. Issue(s): Request to amend answer is important if the Δ’s original answer is deemed an admission. It if is an admission, must decide if an amendment that would affect the π’s right to recovery should be allowed. If it is not counted as an admission but as a denial, the amendment only clarifies the original answer.Rule(s):

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-An averment is counted as admitted when the issue is obviously one as to which the Δ has knowledge or info.-A party can’t deny sufficient info or knowledge w/ impunity, but is subject to requirements of honesty in pleading.--If the matter alleged in an averment was a matter of record peculiarly within the control and knowledge of the defendant, an answer that defendant was w/o knowledge or info sufficient to form a belief did not constitute a denial under Rule 8(b)—counts as an admission. (Basically, can’t claim ignorance if info is in your control and thus answer counts as an admission)Holding: The Δ’s averment of lack of knowledge or info sufficient to admit or deny allegation in complaint was improper and should be deemed an admission. They misused “I don’t know” rule.Reasoning: Necessary info was in a contract for sale of the Hunter Co. that was in their possession so it is reasonable to expect that they should have had the info needed to either admit or deny.Notes:-Consequence of Admission: When defendant admits an allegation of the complaint, that allegation is considered true for purposes of litigation regardless if it is accurate in fact.

-Why is this so? Goal of adversarial system isn’t to find objective truth but to deliver justice speedily; makes party be cautious in pleadings and locks them in; lowers decision costs-See Rule 60 for issues surrounding amending pleadings

-Why did Δ seek to amend answer when an “I don’t know” functions as a denial? Rule 11(b) says that in your answer you have to answer to your best knowledge after a reasonable inquiry (you can’t just see no evil speak no evil) Rule 11(b) puts some backstops on the “I don’t know” defense.-What should a defendant do if they are really uncertain as to the truth of an allegation? See Rule 11(b)(4) for legit grounds for denial. Party shouldn’t deny what it knows to be true, but is not required to admit to something they believe isn’t true just b/c of lack of contradictory info.-Δ’s can deny and admit in part to complaints allegation by allegation—this is important and better than a blanket admission or denial that later proves to be a mistake. (Rule 8(b) allows this)-The π’s complaint identified the wrong machine. Should defects in the complaint excuse defects in the answer? Was this prejudicial to Δ? No. Δ in case just accepted it and then put right machine in their answer—didn’t fight the π on the mistake. -negative pregnant: A denial that is “pregnant” with admission—ie, answer says “we deny x, y and z,” but y and z are true. Way to avoid is to answer each allegation separately.-Is it an affirmative defense to say they aren’t liable for another company’s machine? No, they aren’t admitting anything and then giving a defense of action. They claim they aren’t responsible at all—a causation element. But, hard to say.

b. Affirmative Defenses (flush out notes)

-Rule 8(c) talks about types of affirmative defenses and regulations:

(c) Affirmative Defenses.

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, 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, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

-defendant has the burden of raising affirmative defense

c. Counterclaims--Reread25

-Rule 13—gives division btwn compulsory and permissive counterclaims:-Compulsory Counterclaims: limits what the court can do

Wigglesworth v. Teamsters Local Union No. 592US District Court, Eastern District of VAFacts: π claims the Union didn’t let him exercise free speech rights or union member rights to speak. Δ comes back w/ counterclaims of slander (spoken) when π gave press conference saying union was run by Mafia and the elections were fixed and abuse of process (π using law to bully). Proc. Posture:Issue(s): Are the Δ’s counterclaims based on the same subject matter of the π?Rule(s): Compulsory counterclaim: Rule 13(a): “A pleader shall state as a counterclaim any claim which at the time of serving the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim”Holding: No—leaves those claims out; those claims from different body of evidence and are separateReasoning: Defamation counterclaim from press conference—distinct from the union meeting where shit went down. (Abuse of process claim: does have a logical link and overlap to the evidence at hand and the occurrence (issue of law and fact) under discussion. The court was wrong in their analysis and decision to not link abuse of process counterclaim.)Class Notes:-If the counterclaims were seen as valid, it limits the court’s subject matter jurisdiction. -Compulsory claims---are they so related that they make the claim and counterclaims be tried together?-Rule 13—has a test for compulsory counterclaims-Rule 13 also includes permissive counterclaims-Why require same transaction or occurrence (discreet event) or the same evidence to prove? Efficiency, why have 2 trials on the same info. -Wigglesworth uses 3 tests to determine if the Δ claim arises out of the same subject matter as the π:

i. Same evidence standard1. if the same evidence is used in both claims, the counter claim is compulsory2. if different evidence is used, the counter claim is permissive

ii. same issue?iii. logical relation b/t the claims?

-Court says you need logical relation btwn evidence in case and counterclaims. Can abuse of process logically connect to the occurrence under discussion? It is hard to link defamation to the evidence, but is easy to see overlap.

D. Voluntary Dismissal1. Consequences (with or without prejudice)

1) dismissal with prejudiceb. the P can’t come back to the same court with the same lawsuit

2) dismissal without prejudicec. the P CAN come back to the same court with the same lawsuit

ii. Motives1) P may want to dismiss and file in another court or file again

a. Another forum may be more favorable or current judge seems prejudiced

2) may want to avoid rule 11 sanctionsa. dismissal does not prevent the court from filing sanctions

3) Under rule 41(a)(1): dismissal should be limited to early stages of litigation before an entry of summary judgment or an answer has been filed

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a. May not be allowed if merits of case area already knownb. Once filed, may not amend or withdraw

i. Exception, rule 60b-mistakes and justifications for release from judgment

ii. Court can order P to pay D’s atty. fees (goes against American rule, but is a deterrence)

c. Court can used discretion under other circumstances (i.e. after summary judgment or after an answer has been filed)

d. What about statute of limitations dismissal notice given before answer has been filed? Would that be an affirmative defense and thus not proper under Rule 12(b)(6)? If there is no fact dispute, then it would be ok.

E. Amendments to Pleadings- Rule 15 iii. Permission to Amend

1) Allowed b/c attorneys are often under time pressures2) amendment as of right- a pleading may be amended once as a matter of

course without leave of court (#4)3) Under Rule 154) party may amend any time before a responsive pleading is served or within

20 days after it is served5) otherwise, can only amend with permission from court or written consent

from adverse party6) shall be freely given if justice so requires

David v.Crompton (part deux)—glean notes from book

Facts: Δ wants to amend answer to change their answer to allegation in ¶5. π says they shouldn’t be able to b/c of delay in trial and the upcoming statue of limitations deadline (prejudice to the π and unnecessary delay by Δ)Issue: Should Δ be allowed to amend answer to allegation in ¶5?Rule(s): Rule 15(a): A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.Holding: Motion to amend deniedReasoning:-Crompton was at fault for the delay –sat on their intention to motion for an amendment—that it would have used this defense (wrong party being sued) and the info needed was easily accessible to them for years—they should have known and come to the court earlier than a year after filing of complaint.Class Notes:-Rule 15 says amendment is not allowed if a reply is permitted-Fed. rules are liberal towards amendments (if refuse amendment, you’re omitting some facts)-Court can deny amendment if adversary will be prejudiced (hurt)-Crompton relies on part of Rule15(a) that provides leave to amend an answer should be freely given when justice requires

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-Rule 15(a) doesn’t require any evidence of finding of bad faith or willfulness before denying the amendment—pushes the idea that one should search out defenses early in case

III. DiscoveryClass Notes:Convergent Technologies Litigation (look up)-Judge says court doesn’t have resource to deal with it, but relies on parties to act in good faith; magistrate judge doesn’t sanction but says other party doesn’t have o answer

More

Scope Of MoreDiscovery

{FRCP} Less

Judicial Oversight (modest)A. Modern Policy and Rule 26 (ask for notes from Maya) 1. Options for Info Collection2. The Structure of Rule 263. “Spirit” of the Modern Rules

B. The Discovery Devices (Rules 34, 37)-Handout –7 Steps to the Recovery of Info in Federal Civil Actions (scan)1) ID Needed Information-Discovery can help and hurt both parties-How do we know what information to pursue? --base around complaints and the pleadings to find information to shore up the claim and what information would hurt your case. Use Client’s best interest and desires as basis—agent of client2) Is that info available through self help?3) Is it within the scope of disclosure/discovery? (FRCP26a,b)4) Is it subject to exemption from the ordinary scope?5) Select a Discovery Device(s)

a) Info controlled by non-parties: -self help -subpoena (FRCP45): for getting documents and dispositions. A broad rule, but has its constraints. Can’t get medical documents.b)Information controlled by parties: (Test Tip: Don’t focus on knowing the rules, but on knowing where to look. Know the gist and basic concepts of the rules. Don’t expect that you’ll have time to look a lot of stuff up and do research on the spot.)

-Ordinary a discovery conference is required btwn both parties; Rule 26 and 16 work together. During this time there is a moratorium on discovery—get your game plan together; may include start and stop times for discovery process.-Rule 26a—automatic disclosures:

-helps to get the process of the ground. Helps you know what to expect or ask for. (Rule26a(1)(b) especially) -often parties want to show all their cards in order to show strength of the case and to force a settlement; there are already some incentives toward disclosure in place -parties less likely to give up what will hurt you

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-Rule 36-request for admission—“will you accept this as true so that we won’t fight about it”; not used for controversial stuff-Rule 33—interrogatories—used for controversial bits

-Why was a requirement needed to force parties to reveal strength of their arguments? Why did they do so prior to the rule?

C. Scope of Discovery—Rule 26b1. Basic Concepts of Scope

a. FRCP25(b) (as amended)

Davis v RossFacts: Libel suit against Ross over letter written naming plaintiff among those who were “let go” that she doesn’t recommend for hiring and wants to have potential employers call her for her bad reference.Proced Posture: Case dismissed. Court of appeals reverses and remands.Issue:Rule(s):Holding: Reasoning:Class Notes:-Core of claim of defamation is that there was an untruth that was written or said. Must find something in the statement that was false and damaging to the reputation.

-How would the π’s lawyer state the case to make the claim that statement was defamatory? -Perhaps argue that letter suggests that a reasonable employer would think Davis was a bad employee.

-What information was requested in Discovery by the π?1) income/$ statements2) attorney billing records (evidence of bias on part of law firm who is a witness)3) names of other employee’s who have complained about Δ

-What is the Δ’s response to these requests?1) Income information is irrelevant unless it is determined that client is liable for punitive damages.2) Billing records not relevant. Evidence of fees and payment alone is not sufficient to prove bias. The specific amount is too detailed. Fact of payment is ok, but not the #. 3) Names of other employees not needed or relevant to their case or side. (Could backfire if the Δ is found to be crazy, then case for defamation is hurt but Ross looks bad—crazy)

-Ross seeks discovery of mental health records of π; issue that information is privileged. Court waives the privilege because the π brought up the issue and it is pertinent to case—perhaps Ross is comparing mental state pre-employment and post-employment

b. Limits on Discovery based on Burden and Rule 26 & 34 -More than one option for courts when dealing with costs: have producing party pay; limit or deny discovery outright; have cost sharing or cost shifting

Kozlowski v. SearsDistrict Court of Mass, 1976Facts: Child burnt by flammable PJs. Π sues for negligence, breach of warranty and strict liability. Π demands information under Rule 34—wants a record of all complaints and communications abt child

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nightwear dangers. Sears says that it is too hard and costly due to their bad filing system and doesn’t comply. Π files a motion for entry of judgment of default. Proced Posture:

-π files Rule 34 Request to Produce; req of record of complaint and Δ has 30 days to respond.-Δ files motion to quash, a protective order under Rule 26(c)-π files a Motion to Compel -Court holds hearing and issues Memorandum and Order to compel discovery—produce in 30 days files w/in an 8 year window.-Δ don’t comply; π files a motion for entry of default judgment for refusing order-District Court enters judgment of default conditioned on the Δ’s compliance by another deadline-Δ waits to the day before the deadline and enters motion to dismiss default saying discovery too burdensome due to crappy file system. Says the π can come search files if they like.

Issue(s): Burden of discover in paper filesRule(s): Rule 26(b)Holding: Sears must comply with information req. Found in default due to lack of compliance.Reasoning:-Court says that Sears can’t sidestep their duty in discovery by keeping files in a way that serves to subvert the discovery process. They chose the crappy system and have to deal with extra costs. Not fair to shift cost burden on requesting party, so Sears should bear the cost.Class Notes:-sometimes strict liability takes into account if the product was just unreasonably dangerous (i.e. SNL Dan Akroyd’s bag of glass toy and switch blade action figure)—state of the product while negligence focuses on behaviors.-Definition of relevance: “Evidence having any tendency to make the existence of any fact that is of consequence more likely than not true or not true.” Sears would have a weak argument against this liberal definition. -Rule 34 Request to Produce: The π asked for a record of complaints. If there was no complied-Would it be authorized under the rules to go with the Δ’s compromise of having π come to premises to do the search himself?

-Rule 34(a) does provide for the requester doing the search. -Rule 34(b) though does require them to make a reasonable inquiry into the request before they respond to say which documents are available and when. Also says they can produce the documents as they ordinarily keep them or they can organize them.*

* Does this give the Δ the option to choose?—probably not, no incentive to further along the discovery process. Invites people to be obtuse, keep crappy files, mix critical documents with insignificant ones to obstruct fishing relevant info (see notes in the green book after rule 34)

McPeek v. AshcroftDistrict Court of DC, 2001Facts: π employed by DOJ and files complaint of same sex sexual harassment by boss. Was settled and transferred on condition of confidentiality. However, it was leaked in the workplace and he felt there was retaliation and humiliation as well as an increase in retaliation. Π requests back-up files and current electronic files and emails that could prove case. DOJ has back-up tapes, but has gone through many servers and back-ups. Δ says too costly to find files, convert to readable format, and sift through them. Tapes are spotty and very numerous. Proced Posture:Issue(s): Should court order a costly discovery process into electronic files that could just be a fishing expedition?Rule(s):

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Holding: Court comes up with a compromise test run with a 1 year window with emails of just his new boss with option for future requests. A sort of sampler of discovery.Reasoning: Judge uses marginal utility test: cost benefit analysis. But, this rationale not in Rule 34. Judge’s rationale is covered under Rule 26(c) (court can make any order which justice requires to protect party from embarrassment, oppression or undue burden or expense).Class Notes:-Cost shifting: many courts are reluctant to have parties share costs of discovery. Feels that the producer pays model is best. Perhaps in analysis of what to do, court should take into account likelihood that π will prevail upon merits w/ or w/out discovery?-District Court uses cost benefit analysis in him compromise decision; wants to consider the likelihood of finding relevant info but doesn’t want to do so at any cost. Utilitarian view.-But, perhaps court should go further in cost benefit analysis in considering the likelihood of the success of the π’s case before allowing any costly discovery methods. Spirit makes some sense but doesn’t go all the way.-Discovery happens very early in the case for the court to decide if one should allows such discovery claims based on the merits of the case—the error rate on an estimate of likelihood of success would be very high.

Zubulake v UBS Warburg LLC (look up in book—note case-went against the grain of having producing party bear the expense in having the requesting party bear it—cost shifting. Responding party pays is the rule

2. Some Exemptions from Discovery (Review Rule 30)

a. Attorney Work Product (Hickman)-One of the most important privilege exemptions from discovery is attorney-client privilege.

Hickman v. Taylor (discovery and attorney work product sans Rule 26(b)(3)—no quotation of rules; dismissed privilege claim and went for work product issues and did not rely on text)Supreme Court of US, 1947Key Terms: en banc: full court; with all judges sittingFacts: In case the π’s attorney requests the work product of the Δ attorney including all oral statements taken. In the case, a tug, “JM Taylor,” was sunk while towing a train car that was carrying a lot of property. Property was loss and 5 crew members died. There was a government commission investigating the case. 4 survivors were interviewed by govt and by Taylor’s attorney. Taylor, the tug company owner, set up a compensation system but wanted to avoid litigation by the families of the deceased. Hickman, a relative of one of the deceased, did not settle like the others, but sues. Hickman requests all of the written statements and memorandum from Taylor’s attorney led investigation.Proced Posture: District court held hearing and found that the information wasn’t privileged ordered Δ’s attorney to turn over all work product and answer interrogatory #28 which could have included testifying about his depositions. Δ refused and District Court held in civil contempt (jail time to compel compliance). Δ refused and appealed.Issue(s): Should requester be able to see the opposing attorney’s work product? Does discovery go that far or would it violate attorney/client privilege and subvert adversary system?Rule(s):Holding: Reversed—District Court was in error.Reasoning:

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-π’s request was so broad that it violated privacy of attorney and included not only facts that could apply, but the attorney’s thoughts, possible arguments and entire game plan as well as the attorney’s mental impressions that in itself are inadmissible in that they are prejudiced, shaky and not always reliable as they naturally include his analysis and judgment of what he heard—information is skewed since gathered in anticipation of litigation.-to allow such broad discovery would hurt the profession—reduce the system to lower than a battle of wits and undo the adversarial nature of the system-π could acquire the information more easily by using the public record and interviewing witnesses on their own as their identities were made available to the π attorney.-π did not make any showing as to necessity of discovery or that denying this particular avenue of discovery would cause an undo hardship to his case (i.e., that it would subvert justice)Class Notes:-Exemptions1. Work Product-Why have protections on attorney work product?

-If lawyers were forced to share work product, the professions reaction would be a negative one; they would write down less and not write their honest opinion which could hurt their clients; other information would be revealed (see above—a skewed version of the facts): undermines the search for truth

- Relevance of Taylor work product (some ideas):-statements are of the only surviving crew members-argument that it is not work product, but attorney client privilege—client privilege is narrow: communication btwn client and attorney w/ legal advice; the people interviewed are just employees and not clients—not a bar to discovery-Supreme Court looks to incentives created by allowing broad discovery of work product. Would be negative, especially where the requester has obvious viable alternatives. Π couldn’t make (and didn’t make) a good case for the need of those particular documents over using other means of discovery

-What if the case occurred today and the π asked the Δ’s insurer to look at their documents from the interview and wanted a deposition from the adjuster who did the interviews? Would it be admissible under the current Rule26(b)(3) or under the Hickman analysis?

-Would the insurance company be part of the defense team? Insurer is not an attorney and is possibly even a party to the case. Hickman only speaks to attorney work product, so Hickman wouldn’t dictate result. The current Rule26(b)(3) does allow for it, but only if the requester demonstrates need, which the π in Hickman does not: Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

-What about mental impression of the insurance adjuster? Under Hickman, it is covered under privilege so wouldn’t be allowed. Rule 26(b)(3) even says you shall protect mental impressions

b. Attorney Client Privilege“Upjohn Co.” v United StatesUS Supreme Court 1981

Facts: π, conducted an internal investigation into concerns over “questionable payments” to the benefit of foreign gov’t officials to secure business. Part of the investigation included questionnaires, depositions and interviews with management and lower level employees. Π submitted report to Securities and Exchange Commission and to the IRS who launched there own investigations. The US,

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Δ, requested all files relative to the investigation including the questionnaires, memos and notes of the interviews conducted by Upjohn. PP:Issue(s): attorney client privilege, who counts as the client within the Upjohn organization; US says only CEO, VPs and Board members count as clients and not the middle managers. Rule(s):Holding: Idea of client extends beyond the “control group” (ie upper management). Substance of internal investigation that was requested by the feds is covered by attorney client privilege and the rest by work product and the US did not show sufficient need or burden (can just interview people on their own dime).Reasoning:Class Notes: -information in investigation routed through a lot of attorneys, perhaps to shore up attorney client-Where is the line of who is the client? Upjohn case extends it beyond the control group (unlike Hickman that doesn’t include lower employees) but does nto define how far beyond the control groups attorney client privilege extends. Sometimes frontline employees, perhaps not former employees. Work Product, Privilege and Discovery-Discovery Rules—Rule 26-Work product is an exemption from discovery and is qualified in part (Hickman); mental impressions are the most protected and the others are qualified—can get if you show sufficient need.-Attorney-Client Privilege is absolute—no showing of need will subvert it

-Handout—on Work Product and Attny-Client Privilege: Misappropriation of Trade Secrets (scan)-1. Perfecto Attorney Questions:

a) Could possibly be protected under attorney work product privilege. However, since the question is asked of the individual client, so would not be covered under work product. Not covered under work product—meets the exemptions: question not burdensome; question is relevant to the claim of the plaintiff. -Is covered under Attorney-Client Privilege. Defense attorney could object under Rule 30(c) to the question, but the testimony would continue subject to the objection—the objection is noted. Rule 30(d)(1) allows for attorney to instruct client not to answer to protect privilege ------But Rule 30(d)(1) doesn’t cover work product. What would happen if the hypothetical concerned work product? Would argue that it is of equal status as privilege. If it is mental impressions, it is almost as potent as privilege b/c it is not qualified.--Rule 26 differentiates work product from privilege-What is f attorney is still belligerent on work product issue? Look at Hickman v Taylor: court does not rely on the text of the rule, but goes beyond that. Can argue that the courts have said work product is sooo important, that you don’t need a particular rule to protect privilege. Hickman is like an informal rule.--π attorney would have to go get a court order to overrule your instruction for client not to answer the question.

Merits of claim of attorney-client privilege:-8 Point Test for Attorney Client Privilege (pg 399 Note 1.) 1. Where legal advice of any kind is sought 2. from a professional legal adviser in his capacity as such, 3. the communications relating to that purpose, 4. made in confidence (not intent but the social fact of confidence) 5. by the client,

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6. are at his instance permanently protected 7. from disclosure by himself of by the legal adviser, 8. except the protection be waived.-The hypothetical conversation meets the above test. Eventhough the conversation took place in a public place, privilege still covers it since they weren’t broadcasting it. Test part 5 relates to Upjohn case.

b) Wouldn’t be covered under attorney client privilege because it only covers the actual communications and not the facts.c) Not under attorney client privilege and also not work product. Question seems permissible.

IV. Summary Judgment (Rule 56)

A. Basic Concepts and Rule 561. Timing

a. Often middle of or after discovery, motion for SJi. rules allow for SJ at much earlier stage; Δ can move for SJ right after π says need

time for discovery.b. SJ – judgment on the merits – definitive.c. Also have partial summary judgment d. Claimant may, after 20 days from commencement of action or after other side moves for

SJ, move for SJ.e. Defendant may at any time move for SJ.f. Motion must be served at least 10 days before hearing

2. Standard for granting:“Judgment sought shall be rendered forthwith if the pleadings, [discovery devices], together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

a. Separate ideas – could be no genuine issue as to any material fact and could not be entitled to judgment as matter of law, which means no merits

b. But usually we focus on whether there is genuine issue of material fact

c. Partial SJ – Ct shall, “if practicable, ascertain what material facts exist w/o substantial controversy and what material facts are actually and in good faith controverted.”

d. Those facts w/o sub. controversy will be “deemed established” at the trial.e. Affidavits – can be submitted by either party; must be served to adverse party w/ notice of

motion for SJ. Adverse party is then required to “set forth specific facts showing that there is a genuine issue for trial,” via submitting affidavits, etc.

f. If adverse party has no affidavits available that would show triable issue of facts, ct may deny other party’s motion for SJ or may order continuance so that adverse party has time to obtain affidavits or employ discovery or “make such other order as is just.”

3. Purposes of Summary Judgment: - Prevent other party from reaching the jury on the claim. - Have Ct deem certain facts established (uncontested) before the trial. - Force other party to show merits of their case – once served w/ notice of SJ, they have to

state facts not in pleading, which they believe to be triable, which are being contested.34

- (from Celotex) Isolate and dispose of factually unsupported claims, defenses

4. Burden shifting: Production v. persuasiona. Burden of proof: 2 distinct ideas

-burden of persuasion: which party must convince judge/jury of the accuracy of her factual assertions (e.g. if π successfully invokes res ipsa doctrine, π bears burden of persuasion to show not negligent)o designed to guide the juryo in equipoise – trier of fact has 50% arguments on either side – who will prevail? Helps

to identify who carries burden of persuasion.MDS: “innocent until proven guilty” – burden usually on πBurden on Δ if showing affirmative defense

o burden generally remains on the party it’s first placed on throughout the litigation.

- burden of production of evidence: which party has duty to produce evidence, the burden of going forward with the evidence, etc. (SJ device concerns this only)

o concerns whether a party has suff. evidence to go to trial in the first place.o designed to control the jury (prevent other party’s access to jury)o party that bears this burden (could be party making motion for SJ or party served

with a motion for SJ) must present sufficient evidence to justify a verdict in their favor; otherwise, judge will grant directed verdict or allow SJ.

o Burden may shift from party to party – if the burden-bearing party goes beyond meeting their burden, to show that a “reasonable finder of fact” must find for them (i.e. have seemingly uncontestable facts), then burden shifts to other party.

If just meet the burden, then case can reach jury

B. The Moving Party’s Task (Celotex)

Celotex Corp v CatrettClass Notes:-We assume that the nonmoving party bears the burden of persuasion on this matter of fact.-What does the moving party have to do, beyond filing the motion arguing that there is no evidence, when the nonmoving party bears the burden of persuasion? (This is the crux of Celotex)

-the moving party must persuade the judge that more likely than not they will prevail on the element -moving party must inform court of the basis of their motion and identify the portions of the depositions, interrogatories, pleadings and etc. that point to an absence of evidence of the facts (causation)

-How does the Δ convince the court that the plaintiff has no case beyond just stating that they have no evidence to support their claim of causation? Says that the π has no satisfied the burden of production b/c of lack of evidence. What else could you do?

-Go interrogatory by interrogatory and cite lack of evidence and Δ’s efforts to find factual basis of claims—try to find evidence as the moving party and say you found zip. But, the burden of production is on the part of the π, so why should Δ have to make such efforts? What about Rule 26a that forces disclosure of beneficial info that you may use at trial? So, if the time of discovery and disclosure has passed and the π hasn’t disclosed anything, the Δ doesn’t have to dig but can point to π’s failure to disclose any beneficial evidence/ info. -However, in this case the π had evidence and witness that was not disclosed at the time and on remand was able to prove basis for their case

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-Is the concurrence or dissent in this case relevant to the understanding of what the law is?-Brennan’s Dissent: Gives a schematic (decision tree) for saying how such issues should be worked out. He thinks the outcome of the case is clear, but doesn’t understand what should really happen on remand. Tries to fill in details of events and wants to give guidelines about summary judgment. -White’s Concurrence: Why is it in the casebook since he signed onto the majority? Places a larger burden on the moving party to negate the complaint of the π. Also thinks that simply moving for summary judgment w/o supporting it or simply by stating “a conclusory assertion” that there is no evidence. But, White’s opinion hold weight because it is narrower—the rule is that the narrower ground for the judgment prevails when there is a fractured court -What happens when the author of the concurrence is dead since we are keen to predicting how the court will vote? Hard to say. -One great use for dissent is to comb them to find arguments similar to what your opponent is arguing because those opinions have been rejected by the court and by association, so should the opponent’s argument.

C. The Non Moving Party’s Burden1) The Standard for Granting Summary Judgment

-Rule 56 summary: If the sources considered (part c: affidavits etc even if the materials are not admissible at trial) show no genuine issue of material fact, then summary judgment is ok.

Arnstein v Porter (dude charges that Cole Porter is a song thief)US Court of Appeals, 1946Facts: π accuses Porter of copying his songs and melodies (copyright infringement). Π claims Porter saw and copied his songs: Porters stooges ransacked his apartment, followed him and had a lackey live with him to spy. Porter denied copying the songs or ever seeing them. π had no evidence to support claim of access or copying beyond the similarity in the songs (circumstantial evidence of access). Π speculates that Porter had connection to the stooges. PP: Porter moved for summary judgment and was granted. Π appealsHolding: Court of Appeals reversed—denial of jury trial was wrongReasoning:- Court says that trial testimony could have been key to the π’s case and that the trial court erred in making a finding of fact as to the π’s credibility—credibility as all issues of fact are the jury’s job to decide on the merits, not the judge.Class Notes:-Concerned with the issue of access: Porter claims he did not have access to the songs and the π has no evidence supporting the claim that he did. Π has the burden of persuasion.-π lacked a genuine issue of material fact (burden of production means that a reasonable person following the rules could conclude for your side)-π thinks a jury trial with the pressure of the judge would compel witnesses (Porter) to tell the truth or at least give evidence of their lying from which the jury could infer that the π should prevail—Court of Appeals gives some credence to this theory: π should have “entire nexus of sensations” that is only found in a jury trial for justice to be done.-Arnstein was a gifted composer and his works were well known in the industry

Dyer v MacDougall (libel and slander that no one heard)Facts: π complains that Δ 1) wrote letter accusing him of blackmail to π’s sister in law 2)

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PP: Trial court grants summary judgmentIssues: Were these statements ever made?Class Notes:-Defendant’s Case: All witnesses deny that the conversations took place and the sister law says the letter didn’t exist.-Plaintiff: wants jury trial to pressure witnesses into telling the “truth”. Court doesn’t buy this—says this is not enough. Appeals court agrees.-How do we reconcile this with Arnstein? In the Arnstein case the π at least had the songs to compare which gave the court some inclination that there could be some basis to the π’s claim although that evidence is not sufficient to prove his case. Dyer only had possible witness testimony to go on and they all denied it took place---merits of case were hella shaky on the face of it.-Unlike Arnstein, Dyer refused to take depositions from his witnesses after the affidavits which the court felt would have been an arena to prove if having them testify during a trial would be worthwhile at all.-Dyer is not a direct witness to the basis of his complaints—it is speculative heresay—not even heresay because the supposed witnesses deny every telling him that. Arnstein at least was an actual witness to parts of his claim—has first hand knowledge of his things being rifled through and abt his roommate (although it is harder to prove connection to Porter.-Also note, the standards on which the cases are argued are a little different. The standard of summary judgment was being shifted a bit during the Dyer case. But, there is a significant difference in the facts (see above) that does speak to a tangible difference to reconcile cases.

Matsushita Electric Industrial Co. v Zenith Radio Corp (pg 458 §9)Facts: Zenith Corp accused Matsushita and other Japanese companies of colluding in a conspiracy to drive up the price of Zenith’s goods in Japan while lowering the price of Matsushita good in the US to drive down Zenith’s pricesReasoning: (as articulated in Kodak case) Demands that the nonmoving party’s inference be reasonable (pg 460)Class Notes:

V. Pretrail Conferences (Rule 16) and Settlement Promotion

A. Basics of Rule 16-What is the point of pretrial conferences? 1. Case Management: To manage and order the actual flow of the trial, to ensure an efficient trial. Judges are keeping tabs of a large calendar of cases, so it helps the judges keep things coordinated and be better acquainted with the cases.2. Trial Preparation: Final pretrial conference also helps to set out particulars of evidence to be produced as to ensure there are no Matlock style surprises. Final pretrial conference helps to order trial preparation and orders concerning it are harder to negotiate or change than other orders since these are held very close to the trial.3. Settlement Promotion: We have seen this in Kothe v Smith. Help to facilitate settlement (see the Joe Oats case)4. Sanctions: Rule 16 has its own sanctions section in part f that allows court to punish those who disobey orders.

B. Enforcement and Inherent Authority

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G. Heileman Brewing Co. v. Joseph Oat Corp.US Court of Appeals, 7th Circuit 1989Facts: Magistrate judge orders the Δ to send a corporate representative to the pretrial conference with “authority to settle”. Joe Oats sent their lawyers, one of which had authority to speak for the company but was told to not settle for $$. Magistrate judge thinks this is not good enough and holds them in contempt of the order and ordered sanctions against them. Δ argues that Rule 16(a) specifies that the judge can demand the presence of those specified in the rule—attorneys of represented parties and unrepresented parties.Issue(s): May a federal district judge order litigants, even those represented by counsel, to appear before it in person at a pretrial conference for the purpose of discussing settlement? Also can the judge sanction a litigant for refusing to comply with the order? Was the use of the authority, if they had it, abused in this case—was it coercive or burdensome?Holding: Against the Δ—the district court was in the right.Reasoning:-Rule 16 does not limit the power of the court, but enhances it. Rule 16 permits in its purpose district judges using their power in this way. They also have the power to sanction.-Judge wanted someone w/ actual authority to settle but did not coerce settlement (which the Court hates).-Court points to Rule 1 as a rule of construction for how to interpret rules in purposes of ambiguity—Rule 1 says the purpose is to ensure an efficient and speedy trial. Court says rules should be ruled liberally. (But, did the court misapply this? Is there actual text in Rule 16(a) to further their point?-There is talk of discretion, but discretion applies to attorneys of the parties and unrepresented parties)-The Court goes a step further saying that the language of the rules doesn’t limit the court. The court has inherent authority. They are not contradicting an explicit rule (rule doesn’t say they may only call the specified people).-Court dismisses the Δ’s claim that the order was ambiguous.Dissent(s):-Posner—likes the burden defense but wants to rule on a narrower ground, not willing to say that the court doesn’t have inherent authority like the other dissenters. Necessity breaks iron—courts need flexibility.-Easterbrook- prefers the coercion argument as well.Class Notes:-But, as the dissent points out, Joe Oats did send an agent of the company. As one dissent argues, corporations hire lawyers to be their representatives due to time constraints. Fitzpatrick was a part time lawyer who had authority to speak for the corporation and it was the company’s prerogative to refuse to settle. (Oats later settled, but that is immaterial.)-Look to Kothe v Smith—dealt with coercive settlement facilitation by the court. How is this case different?-Did the district have the authority to require represented parties to come to pretrial conferences according to Rule 16? Did the court just drop the ball in this case?-Sometimes the purpose of the rules fall outside the plain text of the rule. Otherwise, the plain text would simply be the purpose (i.e. ensure settlement and order). But, the Court’s interpretation still befuddles us. If we go by purpose regardless of the text, aren’t we just operating in the realm of discretion which negates the purpose of having rules. Rule 16(a) doesn’t have words that speak to more discretion like “including”. (My comments: Perhaps another question is what is the functional purpose of the rules? Do they have the weight of statute and should they also act as statutes do in helping people to know what to expect and how to act accordingly, not just to ding them afterwards?)-In 1993, rules amended—end of Rule 16(c) says that parties can technically be present by phone in order to consider settlement.

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-Besides their presence, what else might the court demand within their authority? You can’t coerce settlement, but can you force them to consider settlement?-Companies only act through agents—corporation not an individual. Argument is over what sort of agent does the court have power to demand to be present?-Some reactions: Bad—rule of law; litigants being able to plan and anticipate (transitional cost??). The opinion seems to make the application of the rules arbitrary. -my comment: Perhaps such rulings could compel rule reform (similar to the legislature’s reaction to statutes being struck down)—Samaha’s answer—You could say don’t be creative where the rules are ambiguous in such cases and highlight dilemma in the opinion with an eye to rule amendment. But, this depends on if we think that the rule reform process is the appropriate and best way in all cases. The formal rule making process is slow and sometimes the rule makers are preoccupied with other issues and won’t take notice. Also, sometimes case by case basis is appropriate—judge knows circumstances. ----Rule 16(c)—amendment to incorporate the idea of inherent authority came after the case. -How is the doctrine of inherent authority limited? Purpose of the rules (1 and 16) help to set some boundaries. Judges making rules in their holdings about their own administrative process is more appropriate compared to other issues like creating some new areas of tort reform. Inherent authority deals with internal operation of courts.VI. Appeals-General rule is that there is a “right to appeal” that is available at some time. But when aught it be delayed or done early? Should we have appellate review?A. ValueGeneral Notes:-Virtues of appellate review (oversight): legitimates court system and decisions of lower courts; makes litigants feel more confident and that decisions were fair; deliberation enhances accuracy of rulings; uniformity; arguments are developed to help promote accuracy and guide people-Condorset Jury Theory: The more people involved in the decision who are more than 50% right, you keep pushing toward being 100% right. But, the converse is true as well. The question is, are court of appeals judges likely to get it right over 50% of the time?-Drawbacks (some arguments against): Adds decision costs (staffing, salaries, court time). Multiplication of procedure. Not clear if it will lower error costs.

B. TimingGeneral Notes:-Is it better to have appeals early (before entire case is resolved) or late?

-Pestering lower courts through constant review of every little decision makes them skittish.-Discrete intervention before final judgment gives some certainty (not afraid the issue you won or lost on will be flipped) to the issue and lowers decision courts (example: Double Jeopardy—right not to be tried 2x can be protected)-General Rule: Wait until final judgment before involvement

-But—There are exceptions to the general rule: Include definitions and explanations of exceptions-Rights to Appeal §1291 + C.O. doctrine—Firestone(1981)

§1292(a) §1292(b) certification

-Rule 54(b)-Mandamus

Hypothetical Problem (handout)---Study the additional readings—attached to syllabus-Issue is how do we get review of the summary judgment order before the final judgment is rendered? -How do we get started?

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-§1292(b) certification: Court says in their opinion that §1292 won’t help us—Judge sees no question of law. But, the judge probably uses the wrong standard in refusing motion for partial summary judgment. Perhaps we should appeal on this issue. But, it not clear what we would get out of that—may be seen as delay issue, takes a long time.-Mandamus—too extraordinary for us to use this-Perhaps, we should dump Claim 2 rather than waiting on its resolution. If not, we are subject to Rule 11 Sanctions—we know the claim is bogus and so are in trouble if we push ahead a worthless claim. We should amend pleading to dump Claim 2—final judgment entered and then we appeal.-What about §1291? Says you can appeal over the final decision. In our case, there isn’t a final decision on the entire case, but is a final decision on Claim 1. Perhaps not best way to go, as π could prevail on the merits of Claim 2. Depends on narrow understanding of the rule. The text says “final decision” not final judgment. So, we can still be within §1291 rights. -What about Collateral Order Doctrine (Firestone?):

-Is the grant of summary judgment separate from the merits of Claim 1? Summary judgment is based on the merits, so we can’t use the Collateral Order Doctrine to get an immediate review.

-Structure of Answer-Must understand that there are 2 orders subject to appeal: 1-Summary Judgment Grant on claim 1;

2-Refusual of district court to enter final judgment on claim 2-Appeal on Claim 1 are blocked by the rules—no immediate appeal available in the rules-Appeal on claim 2 might not be helpful to client even if there is a method for appeal-Final revelation—drop claim 2—to continue to press would be a Rule 11 violation; can then move for appeal

-Questions:--How do you withdraw a claim? One Route is Rule 15 to amend the pleading (complaint)—may need

a court order or ask other party to stipulate that it is ok b/c it is late in the game, but the Court probably would be happy to grantAlso Rule 41—voluntary dismissal. Same process as amendment, but sort of more serious. Either method works.

-Collateral Order Doctrine: Is about a right to appeal. The court can’t deny you. But, it doesn’t always give the answer for every case—not always a magic bullet—depends on the structure of the case. §1291

VII. The TrialJudge Control v Jury Power-The theme for us is who is going to run the show: judge, jury or attorney?-Mechanism of Control over Juries by Judges and Attorneys:

-Rule 12 and 56—Judgment before trial—case out of the jury’s hands-Jury trial rights don’t extend to every issue of a case- (7th Amendment only applies to Federal Courts—not state courts.)-Even issues submitted to jury may be guided:

through jury pool selection process, jury instructions on what the law is and what their duties are throughout the trial restrictions on the type of evidence available

-Judgment as a matter of law—similar to Rule 12 and 56—may occur even after a jury verdict has been entered-Motions for a new trial-Rights to Appeal

Policy on Juries

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-What about the propriety of using juries? Is it a good idea or not?Pros: legitimizes process; education; may be a law reforming/ clarification method---juries as a check on the system, similar to jury nullification; moral filtering; reduces error ratesCons: juries may be unable to understand complex cases and issues of law; could be prejudiced or biased in a bad way—sometimes more so than professionals; may make decisions based on sympathy rather than applying the law to facts of case; costs and delay increases

A. Trial PhasesB. Jury Trial Rights—When are 7th Amendment Jury Trial Right Triggered?

1. Historical Approach(es)-Historical Approach Test: Textualist view of 7th Amendment and sort of Originalist. Based on what was tried in common law courts or equity courts at time of the amendment—1791. Idea that the word “preserved” means preserving the 1791 state of things. -Courts of Law—jury trial right -Court of Equity—no jury trial. How do we tell the difference?Hypothetical product injury/liability case—could be compared to trespass on the case which would have been a common law action in 1791.--What if the hypothetical claim was based on a state statue enacted in 2004? Still a jury trial right even with law enacted after 1791. Issue is more one of what were the restrictions on the cause of action allowable at the time. Draw analogies btwn possible actions then and actions now.--Fact questions and application of law to factsjury--Questions of lawcourts to decide (Rule 56 and __)

Review of Courts of Equity vs Common Law Courts:

The Court of Chancery was one of the courts of equity in England and Wales. Unlike the common law courts, which were rigidly based on precedent, the Lord Chancellor had jurisdiction to determine cases, on behalf of the King, according to equity or fairness rather than according to the strict letter of the law. Gradually the rules of equity also became codified, but they preserve important innovations, such as mandatory orders and injunctions, trusts, etc.

The High Court of Chancery was merged with the common law courts in 1873, and common law judges given the power to administer equity. In other common law jurisdictions most states either (1) abolished chancery courts and merged the powers of the courts of equity with the common law courts, thus making it possible for one to seek equitable relief at the same time as legal relief or (2) made the equitable jurisdiction the responsibility of a separate chancery division of the court of general jurisdiction. However, four American states (Arkansas, Delaware, Mississippi, and Tennessee), chose to retain completely separate Courts of Chancery. Judges who sit on such courts are called Chancellors.

One important distinction between these courts (at least in the United States, where juries still commonly hear civil cases) is that generally a jury trial is not possible in equitable actions as only a judge can dispense equity; a jury, while it can answer questions of fact, has no power to answer questions that involve interpretation of the law. Another important distinction is that the law of equity is a set of principles that are based upon the discretion of the judge interpreting them.

In modern practice, perhaps the most important distinction between law and equity is the remedies each offers. The most common remedy a court of law can award is money damages. Equity, however, enters injunctions or decrees directing someone either to act or to forebear from acting. Often this form of relief is in practical terms more valuable to a litigant. A plaintiff whose neighbor will not return his only milk cow, which wandered onto the neighbor's property, for example, may want that particular cow back and not just its monetary value. Law courts also enter orders, called "writs" (such as a writ of habeas corpus) but they are less flexible and less easily obtained than an injunction.

Another distinction is the unavailability of a jury in equity. Equitable remedies can only be dispensed by a judge as it is a matter of law and not subject to the intervention of the jury as trier of fact. The distinction between "legal" and "equitable" relief is an important aspect of common law systems, including the American legal system. The right of jury trial in civil cases is guaranteed by the Seventh Amendment of the Constitution, but only in cases that traditionally would have been handled by the law courts at Common Law. The question of whether a case should be determined by a jury depends largely on the type of relief the plaintiff requests (See Teamsters v Terry—Marshall argues that monetary relief sought is one found in courts of law and not court of equity(it is not restitution, result of disgorgement or intertwined with quest for injunctive relief). If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy is considered

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legal, and the American Constitution guarantees a right to a trial by jury. On the other hand, if the plaintiff requests an injunction, declaratory judgment, specific performance or modification of contract, or other non-monetary relief, the claim would usually be one in equity.

A final important distinction between law and equity is the source of the rules governing the decisions. In law, decisions are made by reference to legal doctrines or statutes. In contrast, equity, with its emphasis on fairness and flexibility, has only general guides, known as the maxims of equity. Indeed, one of the historic criticisms of equity as it developed was that it had no fixed rules of its own and each Lord Chancellor (who traditionally administered the courts of equity on behalf of the King) gave judgment according to his own conscience.

Justifications and Concerns—Jury Rights 7A-Supreme Court has shifted and altered its method of judgment on 7th Amendment cases—must view entire body of opinions to track the shift

Jury

-We examine merits and determination in Amendment 7 cases: see diagram on paper notes -Juries are on the fact side of the issue. They determine some but not all matters of fact and also consider application of law to facts. -We are trying to determine what matters of fact and law juries should consider.

2. Pragmatics/ Policy? (Ross/ 1970)Ross v BernhardKey Terms: derivative suits:Facts:PP:Issue: Does the 7th Amendment call for jury trial rights in a stockholder’s derivative suit versus a corporation? Rule(s):Holding:Reasoning:Dissent: Argues that the majority did not correctly apply the historical test. There were no such claims in 1791 and when they were developed in 19th century, the course of action was developed in equity courts. Majority by “magic” tries to mesh the Fed Rules of Civ Pro with 7th Amendment to create right to jury trial.Class Notes:-Breach of Contract claims and negligence (like) claims are subject to jury trial according to historical test-Court argues that under historical test, derivative suits are not subject to jury trials because the corporation itself is not suing but shareholders are. Shareholders are not managers. -Can we really come to the majority’s opinion using historical test?-Footnote 10: Look at practical abilities of the jury in complex cases—what are there limitations and strengths of using a jury in this type of case? -One Criticism of White’s opinion was that he had a strong bias for jury trials in general

3. Retrenchment? (Curtis/ 1974) Curtis v Loether (Housing discrimination—Title VIII v 7th Amendment)

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law fact

Facts:PP:Issue:Rule(s):Holding: There is a jury trial right on the factual questions here. Reasoning:Class Notes:

-Does Curtis really differ from Ross, or can the cases be reconciled?-What is the Curtis method of analysis? History? Something else?

-Court allows analogy and even though it is a statutory claim, it has issues of legal rights involved and should be tried by a jury.1) Like Ross, they examine issues of the claim and draw analogies to causes of action present in

1791. 2) They look at the type of relief sought to determine whether the case is one of equity or common

law—easier historical test to undertake. (Marshall and Brennan apply this in the Teamsters v Terry case as well). The simplification works, but is crude and not perfect—not always 100%. However, the mental exercise is the same and often yields good stuff

**Possible 3rd Prong: Curtis doesn’t use the Ross practical ability test elucidated in footnote 10: look at the practical abilities of the jury in comparison to use of the judges—potential drawbacks of the jury and strengths. Page 566 last paragraph: Court gives deference to legislature to use special administrative methods to settle some disputes, like the NLRB. Sort of in line with Ross Footnote 10—sometimes juries not the best way to go in all cases. However, in ordinary Article III cases, right to jury trial can’t be subverted by such methods. Ross footnote 10 is alive, but not used as a rule. A complex case exception to jury trial right is not allowable for Article III cases as a general matter.

Tull v United States(Supreme Court 1831)Facts: (π is the US Gov’t, Tull is the one appealing so is listed 1st by the SupCt.) π charged Δ violated the Clean Water Act buy illegal dumping.PP: district court denied jury trial and had a bench trial where Δ found guilty of violating Clean Water Act and gave a civil penalty of $75,000. The injunctive part of the remedy was small (clean up land you still own). Tull argues he was entitled to a jury trial on some of the issues in the case—if he violated the Clean Water Act.Issue: How important is the analysis of the relief sought in determining right to jury trial.Rule(s):Holding: Tull doesn’t have right to jury trial on the amt of the civil penalties but did have a right to a jury trial on the matter of guilt as to violating the Clean Water Act. Reasoning:-In applying the Historical Test, finds that characterizing the relief sought is more important than trying to find an analogous cause of action. Since the nature of the relief called for the Act was available in a court of law in 1791, Tull is entitled to a jury trial on demand-Class Notes:-What can we learn?-If the damages were compensatory, Tull would have had a right to a jury trial. Is it enough to say that civil penalties don’t require a jury trial? Ok when determining the min and max penalty, but what about picking a number? Random picking is wrong due to purpose of statute and congress. Due process laws of the 5th Amendment could forbid it. Is the question of penalties pure law or fact? It

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appears to be a question of fact. The Clean Water Act doesn’t dictate the amt of penalty. Tull demands jury trial for both the guilt issue and amt. Why does the court, then, say that the penalty amt is a matter of law for the judge and not the jury? The court says (pg 560 bottom): 7th Amendment silent on this matter. Question is must the jury shoulder the responsibility of preserving substance of common law right to jury? Answer: No. Saying that a judge can set penalty amt doesn’t infringe on right to jury trial. Basically a matter of what is expedient, lessens discretion and is more feasible for a judge to determine (last bit is Samaha explanation).-The upshot is that getting jury right depends heavily on the form of relief sought.

Teamsters Local No. 391 v TerrySupreme Court 1990Key terms: disgorgement: the act of giving up something (such as $ illegally obtained) on demand or by legal compulsion Facts: Employees suing the Union for breach of its duty of fair representation in not filing their second grievance over seniority rights which caused them to loose $$. Originally sued employer as well, but they were bankrupt by time of Supreme Court trial. The relief they seek from the union is compensatory damages—backpay.PP: Employees (Terry) moved for a jury trial and Union filed a motion to strike. District court denied union motion. Circuit court affirmed right to jury trial saying 7th Amendment entitled to a jury on claim of $$ relief. Union appealed (so listed first, but actually Δ)Issue: Does an employee who seeks relief in the form of backpay for a union’s alleged breach of its duty of fair representation have a right to trial by jury?Rule(s):Holding: holding of lower court affirmed—π has right to jury trial under 7th AmendmentReasoning: (harvest from book)Class Notes:-Teamsters v Terry suggests getting rid of prong 1 and relying on the form of relief sought as the substance of the historical test.-What is the substance of the employee’s issue with the union? Basically that the Union ignored their second grievance claim—the Union said they handled the issue once already and won’t do it again. So, they are pissed with the company for denying benefits and promotion and the union for wussing out.-Teamsters v Terry is a case of a fractured court:

--Marshall’s opinion relied on both prongs from Tull and Curtis—analogize entire form of action (1) and look at form of relief sought (2); Marshall goes through long analogy part but decides in the end that when an employee seeks this sort of monetary relief from a union, there is a jury trial right on those issues of fact. Prong 2 more important.--Brennan calls for just going by prong (2)—form of relief sough as the remedy has always been held as most important by the courts. Brennan is too through with analogizing the entire cause of action—really sick of it.--Steven concurs. We shouldn’t skip prong one, but the Marshall opinion does get bogged down by it. Just see if there is a fair analogy rather than a perfect one and then look at the ability of the jury. Likes all three prongs. Like Ross but a departure from the intervening cases.--Dissent says that prong 2 is BS and only prong 1 matters.-Who is right?? What is the law after Teamsters v Terry? The rule is that the narrowest holding wins. Brennan is the broadest (although my favorite) and not the rule. Stevens is sort of the rule, prong 3 does stick around.

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More General Notes on Jury Rights:-Today many judges use both prong 1 and 2. -In Teamsters, no one advocates getting rid of historical test—debate over how to apply it.

C. Judicial Control of the Verdict

1. Judgment as a Matter of Law (Formerly Directed Verdict and Judgment NOV)Book Notes:-Point of Rule 50 is to “enable the court to determine whether there is any question of fact to be submitted to the jury and whether any finding other than the one requested would be erroneous as a matter of law.”-Motion for judgment as a matter of law may be made by either party at the close of her opponent’s evidence-Old names—Directed Verdict (before the verdict) and Judgment Not withstanding the Verdict (after the verdict) are still used in the court and give clue to timing-For the motion to be granted the court must fund that there is insufficient evidence to go to the jury or that the evidence is so compelling that only one result could follow.-Similar to summary judgment but occurs later in trial and judges are more willing to rule for judgment as a matter of law rather than summary judgment.-Analysis concerning the meeting and shifting of the burden of production is the same as summary judgment—party w/ burden of production has to present enough evidence for the jury to find for them. –A Motion for Judgment as a Matter of Law (JMOL) can be good for either side: The evidence presented bythe one w/the burden of production to defend against his opponent’s motion for judgment as a matter of law can sometimes be persuasive enough to convince the jury and he may get judgment as a matter of law in his favor.-Two Issues to Consider when Analyzing Scope of Judgment as a Matter of Law:

1) If the motion is consistent with constitutional dictates concerning the role of the jury2) The method for determining if there exists sufficient evidence for a reasonable jury to find for a particular party

Class Notes:-JMOL is judgment on the merits of the case. Like Summary Judgment. -What makes JMOL different from a 12(b)(6) Motion to Dismiss? Often comes much earlier before the answer. Rule 12(b)(6) is a motion to dismiss on failure to state a claim. 12(b)(6) the moving party admits to all the facts that are alleged but say that they still win on a matter of law. In JMOL and Summary judgment, non moving party must come up w/ evidence that is admissible (or close to it) to justify a full blown trial---not just resting on the allegations in their pleadings like in Rule 12(b)(6). -What is the earliest time in the trial when you can make a JMOL motion? After the party has been fully heard on an issue (Rule 50(a)(1)).-Can a movant renew motion after judgment (ie judge says no dice, it is going to jury)? See Rule 50(b). The motion has to be filed at the close of all the evidence to renew the motion. After the verdict, the judge can still grant JMOL.-Why would a judge grant a directed verdict or JMOL? Lowering decision costs—although, overall it does this by only a small amt. Why not just use summary judgment and even save more costs? A trade off—may run higher error costs in giving a summary judgment before evidence has been presented. JMOL has lower error costs although higher decision costs.-What about 7th Amendment concerns? Granting JMOL after the verdict (JNOV) undermines and reexamines facts that the jury has already decided. 7th Amendment says that “no fact tried by a jury shall be otherwise re-examined in any court of law.” It appears to be a violation of this clause. But, Rule 50 demands that the motion be made before the verdict (after close of evidence) sort of skirts this problem—like saying the judge isn’t re-examining the facts, but just delayed their decision on the

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motion filed earlier. If the matter is appealed, the higher court can just reinstate the original verdict rather than ordering a new trial.-What is the standard for granting JMOL? It is very similar to summary judgment standard. See Galloway.

Galloway v United StatesSupreme Court of US, 1943Facts: Case involves granting of benefits for permanent and total disability to a man who is insane. Π claims that his military service drove him insane—a permanent and total disability in effort to get military benefits/ insurance. Claims he was crazy as of May 31, 1919 (day his policy lapsed due to nonpayment—ie He was too crazy to remember to pay). PP: District court granted motion for directed verdict (judgment as matter of law) saying the evidence presented was legally insufficient to sustain a verdict for Galloway. Circuit court of Appeals affirmed. Π appealed saying his evidence was substantial enough to support a verdict and the court was wrong in granting the motion = a denial of his right to a trial by jury under the 7th Amendment.Issues: (1) Did the π have evidence substantial enough to support a verdict? (2) Does the use of directed verdict amount to the denial of the right to trail by jury under the 7th Amendment?Rule(s):Holding: Judgment affirmed—no violation of 7th Amendment rights and lower courts correctReasoning:-Evidence as to insanity was insufficient, highly speculative, spotty and riddled with time and evidence gaps that required too much inference—relied on inference more than evidence. Witnesses were also unreliable in their testimony (O’Neil and the chaplain). No evidence as to state of sanity for last 8 year gap btwn 1923 and ‘30—court felt this gap in evidence was intentional. Can’t substitute speculation for fact.-Purpose of the 7th amendment was “to preserve the basic institution of jury trial in only its most fundamental elements, not the great mass of procedural forms and details, varying even then so widely among common-law jurisdictions.”-FRCP explicitly allow for directed verdicts (judgment as a matter of law) as does over a century of precedent. -7th Amendment not framed or adopted to deny either party the right to challenge the legal sufficiency of the opposing case. Doesn’t require jury to have to make inferences from the intentional withholding of crucial evidence. Class Notes:-A controversial case-Does it matter that the chaplain’s testimony was a deposition? No, can be used in trial and it was able to be entered into evidence at the trial.-π’s evidence run down:

-In 1918 WWI when in France with army, crazily shouts the Germans are coming and is gagged. Does something similar later on. Discharged honorably.-1919-24—Friend O’Neil testifies he was a wreck. But, has spent 2 yrs in hospital ill.-1930-4—Medical and mental diagnosis; after the critical date; medical expert opinion-chaplain—observed crazy dude in early 1920 that had same name of π, but not sure if it was the π and record shows π was on active duty at the time; shortly after the critical date;-discharged from Navy in 1920 for bad conduct; 1922 deserts from army: can’t keep it together

-The Galloway “scintilla” rule has been disavowed—now the rule is that you can’t have 0 evidence and go to jury. Demands a reasonableness test be used—not would they find on the evidence, but could they possibly reasonably make a finding on the evidence presented. -Galloway court says π was just on the line of what would be enough, but on the wrong side of the line

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-Δ’s possible attack: π was competent until 1919—short window to go crazy. Information asymmetry. Gap btwn conduct btwn 1920-30 and his alleged mental state—omission of evidence in this period only know he tied the knot. -The most controversial part of the case is that the court gets pretty close to inferring against the nonmoving party (π) regarding the 1920-30 info gap. Rule and custom says evidence must be read in a light most favorable to the nonmoving party. -7th Amendment controversy (dissent uses): Amendment meant to preserve the right to a trial. Galloway court allows for procedural innovation—need not admit the opposing party’s factual allegations are correct. Claims the 7th amendment doesn’t cover procedure (see above). Dissent say that the Galloway Court decision is not in conformity with history.-Dealing w/ JMOL as a matter of insufficient evidence to get to a jury

Guenther v. Armstrong Rubber Co pg 635US Court of Appeals, 3rd Circuit 1969Facts: π is worker at Sears Auto. Armstrong manufacturer of tires. Personal injury claim (tire exploded injuring π). Π argues the tire was defective (manufacturer was negligent). Π’s manager took what he thought was the defective tire. Π had it examined by a key witnesses and Δ had a competing one. Dispute, admitted by the π, as to the identity of the tire in trial as the one that had exploded.Rule(s):Holding: JMOL inappropriate. Remanded for new trialReasoning:Class Notes:-π has to prove a causal chain for negligence. Issue is if the tire that they examined was the actual tire that exploded and if it was manufactured by Armstrong. Δ argues that the tire that blew up---the one in court—wasn’t theirs. -If a judge makes JMOL and is flipped on appeal, you have to have a new trial.-Was the Court of Appeals’ decision a good one? Π argues it was it a matter of competing credibility—an issue for juries and not judges—uniquely in their province. Π also makes a 2nd argument on statistics as well: 75-80% of the tires in their store made by Armstrong, so the tire that exploded was most likely theirs—but court of appeals says that an argument on statistics alone is not sufficient to grant a jury trial.-Why isn’t the π’s admission about the identity of the tire not a fatal admission? Why should we have a different rule in this case? He admits that the tire in court was not the tire that blew up—testimony inconsistent with the claim. Perhaps issue of attorney incompetence. Maybe court gives benefit of doubt and just leaves it to jury to sift out.-Should the statistical argument of the π be handled differently from the matter of dispute over the identity of the tire?

~Both require similar deductions by the jury, but in essence are distinct. Witness testimony issue of credibility determination while issue on statistics is just a presumption of error rates. Live testimony is better suited for a real consideration of credibility while relying on statistics is just a matter of picking heads or tails.~Perhaps the statistical evidence is strong in helping to determine identity of tire? 75% rate is pretty strong. ~But, perhaps allowing it would open door to using such evidence in other cases over fact based evidence (i.e. poor people steal more, Δ is poor so likely that he stole)? Results could be seen as illegitimate. Bad policy. Juries are about case specific credibility issues.

2. Motion for a New Trial—Rule 59

General Notes:47

-A new trial is a do over. It is softer than a JMOL motion; just we aren’t sufficiently confident that the jury was correct.-Can be done in whole or in part.-Grounds for new trial. Rule if vague---says do what you did before.-Similar to JMOL on the aspect of insufficient evidence. But, there are many other reasons for a new trial motion. I.e.: Now we know the π lied, etc.-When the motion for a new trial rests on strength for new evidence, the standard is if the verdict was contrary to the weight of the evidence. Formal distinction from JMOL: JMOL says not to weigh competing stories. In Motion for a New Trial, judge looks if the jury went against the clear weight of the evidence. The remedy also differs from JMOL, it is just a do over not a killing of the case. Motion for New Trial allows for more judicial discretion. Ahern v Scholz (BOSTON dispute) (glean notes from book)US Court of Appeals, 1st Circuit 1996Facts: Dispute over breech of contract concerning deals over royalties btwn musician and agent. Court denied Δ motion for a new trial and other various motions.PP:Issues: Did court err in denying motion for a new trial under Rule 59(a)?Rule(s):-Judge can’t displace a jury verdict just because he disagrees or would have found otherwise in a bench trial. The mere fact that a contrary verdict may have been equally or even more easily supportable furnishes no cognizable ground for granting a new trial.-Verdict can be set aside when it is agains the clear weight of evidence or based upon evidence that is false or will result in a clear miscarriage of justice.Holding: District court did not abuse its discretion. The Jury verdict was not against the clear weight of the evidence. AffirmedReasoning:Class Notes:-Standard the district judge was to use was if the jury went against the clear weight of the evidence.-Compounding Ahern’s efforts for a new trial, there is also the issue of the district court’s abuse of discretion.-It is hard for Scholz to prevail—has to have relatively permissive standards for both the district judge’s discretion and the juries ruling. Very difficult to get the matter flipped on appeal.

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