civil procedure m-outline

8/7/2019 Civil Procedure M-Outline

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Emmanuel Ulubiyo Civil Procedure

Prof. Sovern Fall 2009

To bring a case you need justiciability, smj, pj, notice, service, proper venue.

I. J

usticiabilityA. Issues of justiciability:I. Mootness: (DeFunis) an issue that is moot is not judiciable. A question that

presents no actual controversy or which has ceased to exist. Forbidden by Article

III.a. exceptions: where the court has to act in the interests of people who are

injured and do not sue1) where the D is capable of repeating illegal acts and evading

justice.II. Standing: (Power) the P must have sufficient personal stake in the outcome to

justify the court in having a claim must have standing to bring a case.)a. Article III and prudential considerations for standing must be satisfied:

Standing Analysis:(1) Are the Art. III requirement satisfied?

(2) Are the Prudential Consideration satisfied?

(3) If the prudential consideration are not

satisfied, are they inapplicable for some

reasons, like a statute authorizing the

standing?

2) Under Article III: requires the party who invokes the court¶sauthority to show that he personally has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the D

(1) AND that the injury fairly can be traced to thechallenged action

(2) AND is likely to be redressed by a favorabledecision.

3) Prudential considerations:1) P must assert his own legal rights;

2) no abstract questions of wide public significance better answered by the leg.;

3) it must fall within a zone of interest protected or required.4) Statutory standing: if the prudential considerations are not

satisfied, are they satisfied by statute.(1) arises most often in cases with the government.(2) Judicial Exception to standing: (Griswold v.

Conn.- contraceptives case) assertion of patientsright of privacy b/c he could be made an accessoryto their µcrime.¶

(3) Advisory opinion: the courts cannot issueadvisory opinions ± all decisions must arise fromdisputes.

5) R ipeness: a case is not yet ready for adjudication (founded onArticle III and the prudential considerations.)



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II. Subject Matter Jurisdiction is the maximum power the state can exercise.

Competence is the power the state has chosen to give to a specific forum. Rarelyreferred to in real life±±Used for distinction for court in states

Subject Matter Jurisdiction is required for a court to hear a case. SMJ is Jurisdiction

over the dispute.a. General Rules of SMJ1) may not be conferred by consent

2) objections to SMJ can be raised at any time3) judgment rendered without it is invalid and can be collaterally

attacked (subject to exceptions.) Outside of the appeals process.4) Must be pleaded and proved

1. Diversity jurisdiction: sec. 1332

a) $75,000+ minimum (not including interest and costs.)

a. P can claim any amt, unless it is clear to a legal certainty that she cannotrecover more than $75,000

b. Ps ultimate recovery is irrelevant to jurisdiction look at § 1332(b)

c. Aggregation ± adding multiple claims to get over $75,000a) You can aggregate if one P vs. one D single P can aggregate two

$40K to meet $75+K b) 2 separate Ps have claims for $40K each cannot aggregate.c) P w/ a $30K claim can aggregate w/ a P w/ an $80K claim. 1 P

must meet $75 b4 adding on 1. P may have as many claims as she wants to satisfy the

controversy amount

b) Complete diversity requires: no same state on opposite sides, foreign countries

don¶t destroy diversityi. citizens of different states; (NY v. NJ for example)

ii. citizens of a state and citizens and subjects of a foreign state; (NY v. France)

iii.

citizens of different states and in which foreign states or citizens or subjectsthereof are additional parties; (NY v. NJ and France)

iv. a foreign state, defined in § 1603(a) of this title, as T and citizens of a state or of different states

a. citizenship of a person: 1) US citizen / permanent resident AND 2)have domicile in the state.

a. domicile: a person can only have one domicile. 2 components: presence at one time in the location and stateof mind. Factors: voting, taxes, DMV registration, driver¶slicense.

i. US domiciled abroad are not citizens of a state or foreign state (immune to fed juris)

ii.

Permanent R esident Aliens deemed citizen of thestate where domiciled. 28 USC \1332(a)b. corporate citizenship:

a. where it is incorporated andb. where it has its principal place of biz. (Unless insurance

corp. they¶re where their insuree¶s are.) can only have ONE

PPB! o how to test (PPB)



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y talk about the corporations nerve center a. where the decisions are made (headquarters)

y talk about the muscle center (place of activity)a. where the corp does more stuff than

anywhere else

y total activities test

a. use the nerve center unless all the activity isin one state

c. Un-incorporation: are citizens of every state of which their members are citizen

d. Partnerships: have citizenship where the individual partners areincorporated.

1. Interpleader: Interpleader is a form of joiner open to one who does not know to which of

several claimants he or she is liable, if liable at all. It permits him or her to bring theclaimants into a single action, and to require them to litigate among themselves to determinewhich, if any, has a valid claim

1. § 1335 Statutory Interpleader

(1) $500 or more, if:

o Two or more adverse claimants, of diverse citizenship (as definedin § 1332) are claiming to be entitled to such $ or property (minimaldiversity) and

o D has deposited such $ or prop into the registry of the ct, there toabide by the judgment of the ct

a. minimal diversity + lower amount in dispute = broader

availability

b. built in SMJ

c. Nationwide service of process (Rule 4(k)(1)(C)) i. Does not apply to rule interpleader

2. R ule 22 Interpleader

. ( 1) Persons having claims against the D may be joined as Ps and required tointerplead when their claims are such that the D is or may be exposed to doubleor multiple liability.

o Regular rules of service of process

o No SMJ provision. Must be fed Q or complete diversityand amount in controversy exceed $75K

2. Federal Question Jurisdiction (sec. 1331)1) Civil actions arising under the Constitution, laws, or treaties of the United States.

(laws include statutes, fed. common law and regulations of agencies.)o ³Well Pleaded Complaint´ Motley: Federal questions must arise from the

original claim and not from an anticipated defense.

1. Mottley R ule:

It is not enough that P alleges anticipated defense tohis C of A.

2. Motley loophole is to mention fed law in complaint for declaratoryjudgment to fed law so«look out for it.

a. Skelly R ule: you cannot evade Motley by seeking declaratory relief. Test: If,but for the avail of the declaratory judgment procedure the fed claim wouldarise only as a defense to a state created action, smj is lacking.

a. Who would sue for affirmative relief?



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b. Would the party suing for affirmative relief ariseunder federal law? ± if yes, then the fed courts canhear the case.

c. Declaratory judgment: statement by a court as towhat law IS or Requires. Can only seek if case isjusticiable.

A. Supplemental Jurisdiction: Section 28 USC 1367(a)a. Is the authority of the Cts to hear additional claims (state claims) arising from the

common nucleus of operative facts as the original claim even thou the Ct will lack subject matter jurisdiction to hear the case independently

1) 1367(a) gives it; 1367(b) takes it away.b. Historically it¶s based on Pendant and Ancillary jurisdiction

2) Pendant: P makes related claims3) Ancillary: related claims made by D or 3rd party

c. (Supplemental Jurisdiction test): R oadmap: B4 Allowing: SJ

1. Is there a Constitutional power under Article III? Courts have power to hear

cases- not claims. So long as you fulfill Gibb¶s test, you¶ve got a case.2

.

Does the federal claim have sufficient substance to confer SMJ

? a. Federal Question or Diversity 3. Do the state and fed claims arise from a common nucleus of operative facts

(Gibb¶s Test) (1367(a)) If yes, go on« Under 1367(a):

i. Can add a non-diverse in a federal questionii. Can add a diverse party whose claim does not satisfy the juris. Amt in a

diversity case iii. Can add a diverse whose claim does not satisfy the jurisdictional amt

in a federal question case.

The Supplemental Jurisdiction Problem: R oadmaps

y original claim satisfies SMJ, but«

y

additional/related claims do not meet FQ or diversity, ASK:QUESTION #1: does §1367(a) grant supplemental jurisdiction over this claim?

Use the Gibbs test

claims must share a common nucleus of operative fact

y this includes additional cl aims by P and any cross/counter cl aims by D or other

parties ( including joinder or intervention of additional parties) 1367(a) confers supplemental jurisdiction over all claims, including those that do not

independently satisfy the amount-in-controversy requirement, if the claims are part of thesame Art. III case.

QUESTION #2: does §1367(b) deny supplemental jurisdiction? If original claim is a FED Q then always have supplement al jurisdiction over St. claim,

If original claim is DIVER SITY then no supplemental jurisdiction for:o

claims by P against 3

rd

party D if D was made party under R ule 14, 19, 20 or 24 o since claim is not asserted by original P, 14, 20, 24 ±± 1367(b) does not apply

In diversity cases there is supplemental juris for claims that arise from same T or O asmain action and are asserted by D (not P)!

o Do NOT need amt in controversy if asserting supplemental jurisdiction if

the original claim invoked diversity. o There is no supplemental jurisdiction if there was no proper original jurisdiction

to begin with.



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QUESTION #3: should the CT hear it? \1367(c) CT has discretion over whether to take the case even if it meets #1 and # 2

o If Fed case is dismissed, the state case should be, too. Usually dismiss if: State law predominate? Would require Fed CT to decide sensitive/novel issues of state law

Would hearing together confuse jury? Fed claim resolved early leaving only state claim?

Never, never, never forget to satisfy the rules for diversity 1st

in the original claim.

III. Personal Jurisdiction ±± places a geographical limit on where a P may bring acase; Limited by Due Process Clause in the 14th Am; D must raise it or waive it at theoutset per FRCP: 12(h)(1).

In Personam jurisdiction: jurisdiction over the person; adjudicate the rights and order the to pay whatever the court sees necessary.

1. Traditional basis for in Personam J: P ennoyer v. N eff ± (presence, appearance,

consent, and domicile, Quasi-in-rem).a) Presence (Pennoyer) ± presence in the state for service of process no matter

how short the duration is sufficient to give the state in personam jurisdictionover the party

i. Exceptions: Can¶t serve non-resident whovoluntarily comes into the state for the sole purpose of attending alitigation in our courts as suitor or witness (can serve upon a personwho is compelled to come into the state). (Cooper v. Wyman)

ii. Transitory presence may not be enough (infra.) Burnham caseTransitory presence may not be enough per BURNHAM (CA took PJ but Supremes split 4-4)

1. Scalia - there is PJ b/c the traditional

bases survive2. Brennan - you must apply minimum

contacts in every case (trad bases are notenough) but dfdt¶s three days inCA=min. contacts

b) Appearance ± Appearance in court is sufficient to give the court inpersonam jurisdiction over the . Don¶t have to show constitutionality ±Per Larry O¶s question.

i. Special Appearance Exception: If wants to appear solely tocontest jurisdiction, may make a special appearance (seechallenging jurisdiction)If you loose, it becomes a generalappearance. Under Fed. Rule 12(b) you can raise other defenses

without waiving the juris defense.c) Consent Express Consent D can specify before hand (National Equipment Rent al case)

Parties can consent (³I don¶t mind coming to CT wherever´)

j Either before suit begins (contract) or afterwards Can appoint an agent -- R ULE (4)(e)(2)



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j If you appoint your own agent and agent does not notify you then itis your own problem and jurisdiction still stands (decisions in caseswill too)

Forum selection clauseso Carnival Cruise Lines case

o CTs have the responsibility to determine whether forum

selection clauses in form passage contracts are fair. o Test for forum selection clauses:

Reasonableness (Policy Considerations)o What if the ship sank and a bunch of people sued

in many states?o Would it be better for the cruise line to handle all

of them in one state? Yes. So it was reasonable. Fundamental Fairness

o How to evaluate the fairness of such clauses? whether Carnival was, in bad faith,

discouraging legitimate claims from itspassengers.

The CT says that because Carnival doesbusiness primarily in Florida and has alot of cruises that depart from Florida,they didn¶t include the clause in badfaith.

Implied Consent deemed to have appointed an agent to accept service w/in state H ess v. P olosk y ± statute of non-resident motorist act agree to PJ w/in State by

driving on the roads of the State

j Hess ± state appoints an agent w/in state and you imply consent to that agent by driving

j If agent was appointed for you and the agent does not notify you thenjurisdiction will not stand b/c in effect you were deprived of due process.

j Policy Consideration: state has strong reason to regulate in-state activity of non-resident (cars are dangerous)

j Why not just mail the service to the driver?

j It would not confer jurisdiction.

j d) Domicile ± The place in which a person is domiciled is sufficient to concur

in personam jurisdiction to the court. Don¶t have to show Constitutionalityi. Corporate presence is based on either the µDoing Business¶ there

OR µSolicitation +¶ (NY either)ii. Corporation do not have domicile can only be sue in the state it

was incorporatediii. Rationale: A state which accords privileges and affords protection to

a person and his propertyiv. Residence and domicile may be the same, but they do not have to be.

The difference is the state of mind. There is jurisdiction over residence as well, as long as the relationship is not so attenuated.a. Doing Business & Solicitation Plus- test is a traditional basis

for finding jurisdiction over a business.



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b. Or Is there a Long Arm Statute that gives the state the right tojurisdiction over the person? In NY 302. P. 1343 of CB.

R oadmap: Personal Jurisdiction All Question to ask whether P.J. is constitutional

Constitution grants power and state legislatures decide how much that State will exercise.

Constitutional grant of jurisdictionHow much of the Constitutional grant the particular State¶s legislature has decided totake

State long-arm statute might exceed the Constitutional grant (do not take for granted)Exceeds the limits of due process

1. Has the state chosen to hear the case? To answer we look at:a. Traditional bases(presence, consent, domicile, appearance, quasi-in rem)b. Long Arm Statute

2. Is the exercise of jurisdiction using the Long Arm Statute constitutional per

the Due Process Clause? Look to:

a. International Shoe Box?General: Maybe if continuous & systematic contact with state?Helicopteros ± go to themin contacts analysis.

General and Specific

Probably. YES if bothcontinuous & systematic &activities in suit give rise tosuit!!! Still go ahead anddo a Min contacts test.

NO means nocontinuous & systematic

contact in state & activitiesdid not give rise to suit.

Specific:Maybe (activities in state give

rise to suit) go to the mincontacts analysis. Hess¶scase

b. Minimum contacts Availing/Purposefully Directedi. What is enough availment?

a. Advertisingb. Design products for sale w/in statec. Creates, controls, employs the distribution system

w/in stated. Contract and other arrangements (Burger K ing) e. Purchasing, even high $ amt, is not ³availing´

jurisdiction can¶t be asserted (H elicopteros case)

³S tream of Commerce´ Arguement -- Asahi: CT split on whether act of selling goods outside of state that will likely be imported into the forumstate for resale suffices.

Brennan: enough to put in stream w/ knowledge that productwill end up in forum state



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Justice O¶Conner: mere awareness not enough. Required ³clear evidence´ that D seeks to serve the market in the particular State.

Lower Cts have reached varying decisions b/c no hardruling from Sup CT

RULE: If meet the O¶Conner test then probably have PJsince the other justices required less.

o Foreseeability: D must know or reasonablyanticipate that activities w/in forum state make itpossible that she will be sued there

Ex: national magazine should expect tobe sued in any state for libel

³Long-Arm Statutes´ -- Minimum Contacts From Outside of State:D does not have to be in the State if commits act outside State that sheknows will cause harmful effects w/in the State.

Burger K ing ± 20-year franchise relationship w/FL corp, butnever actually went to FL

c. Fairness Factors: per Burger King Rule: five factor test for ³fair play´:i. Burden on the D ± burdens on corporate Ds tend to be diluted

as compared to burdens on individual Ds. ³so gravelydifficult/inconvenient that a party is unfairly put at a severedisadvantage in comparison to his opponent´ difficultstandard to meet.

ii. The state¶s interest ± what interests does the forum have inhaving that litigation in that state as far as protecting itscitizens and corporations?

M cGee strong interest in protecting residents of the StateAsahi CA only slight interest in exercising jurisdiction/bigburden for Asahi (D, #1)

iii. The P¶s interest ± everyone would prefer to sue in their ownforum.

iv. Interstate efficiency interest ± is this forum better, moreefficient, more expedient, or cheaper than any other forum? Itis rare that jurisdiction in a case turns on efficiency, because itcan usually be argued both ways.

v. Interstate policy interest ± Shared interests of the states infurthering fundamental substantive social policies

3. Should the D reasonably anticipate being hauled into court?

In R em Jurisdiction: (usually to est ablish title in the property) Decide rights of all persons to property located w/in forum state

o Title registration

o Confiscation of property (car used to traffic drugs, etc.)

o Distribution of assets of an estate No jurisdiction if property brought in by FRAUD or FORCE Notice: M ull ane st and ard

Ex: Suppose someone in CA wants to sue NY and CA does not wantto travel to NY and NY owns land in CA. Can CA simply attachNY¶s land in CA?

y Sometimes if CA claims that he owns the land CA can use inrem jurisdiction.



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Quasi in R em Jurisdiction (usually a personal claim against a debtor) Determine certain disputes between P and D regarding property when the

property is in the forum state.

R equirement for QIR ?

The res must be in the state The res must be seized at the commencement of the case

The owner must have an opportunity to be heardo A judgment against D can only be satisfied out of the property

w/in the State. Attachment: must attach property at commencement of d case

o Attachment Notes

Garnishment: seizure of a debt, including a bank account or wages

Sequestration: seizure by an equity court, likegarnishment or attachment.

At common law, you could attach a debt wherever thedebtor was located

Limited Appearance Notes:o Allows the owner of the property that the court exercises QIR

jurisdiction over to show up and fights on the merits w/osubjecting herself to PJ

o In personam jurisdiction: Federal courts are split on whether or not you can make

a limited appearance in federal court NY rule is in CPLR 320©(1) and 314(3). NY allows limited appearances

If the property itself is the source of the controversy (Rel ated) and theproperty is in the State then it would be strange for the State not to havejurisdiction.

o BECAUSE the D avail himself of the benefit of keeping property

in the State (protection, etc.)o C lose connection between propert y and litig ation provides

necessary minimum contacts. If the property was not the source of the controversy (unrel ated)?

o The presence of property alone would not support the State¶sjurisdiction w/o additional ties between the D, State and thelitigation.

o V er y r are b/c with long -arm st atutes it is uncommon not tohave in personum juris if there is enough contacts to use it.

Ex ample: A goes to CA and makes contract with B. B breachescontract. A lives in NC and finds out that B has a boat there.Just b/c B has property in NC does not mean that A can attach it

and sue B if the C or A has nothing to do with the property.Would have to have minimum contacts between B and NC, etc.

In NY you can still use quasi in rem when there is no other way toget PJ over someone that the State wants to have PJ over.

o If you can exercise in personam then you could exercisequasi in rem ± a State can limit the amount of PJ that it willexercise if it wants to.



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NY has chosen not to exercise long-arm statutes in defamation cases.So there would be quasi in rem jurisdiction in defamation cases butchooses not to use personal (302)

Full Faith and Credit Principle:

Constitution provision: ³full faith and credit shall be given in each State to the publicacts, records, and judicial proceedings of every other State«have faith and credit givento them in every ct w/in the US as they have by law or usage in the cts of the State fromwhich they are or shall be taken.´

Two exceptions

o When first CT lacked subject matter or PJ To prevent States from ruling the World«

Federal Bases for Personal Jurisdiction:Ordinary Diversity and Federal Question Cases:

14th Amendment is inapplicable her, the applicable Amendment is the 5 th Under Rule 4(K)(1)(A) use the rule of the state in which the Fed Ct sits

o Use the exact same rule a state will use for dismissal and same approach as In

personal jurisdictiono Same policy underlying Erie Doctrine applies

Special Cases:

o Special statutes: Under Rule 4(K)(1)(C)nationwide personal jurisdiction over everyone

regardless of contact with any forum state and even w/o minimumcontact

Rule 4(K)(2): 100 Mile Bulge

y Personal jurisdiction within 100 miles of the court

y Usually dispute in state boundary Rule 4(K)(2): Nationwide Contact

o If is sued on Fed Question and is not subjected to any personal jurisdiction in

any state, Fed Ct can still have jurisdiction on , even if there is no contact withthe nation as a whole.

In R em & Quasi in R em in Federal Ct:

1) 28 U.S.C. §1658: confers in rem jurisdiction on Federal Ct

2) Quasi in rem:a. Rule 64 provides that Fed Ct use the attachment rules of the state in which they sit for

the most part b. Rule 4(n)(2) provides that an attachment case in a Federal Ct, can be serve in the

same way as it is done in state court.

IV. R emoval (1441) - permits D to force P to litigate certain actions in federal court,

rather than in the state forum originally selected.

a. Purpose: (in diversity) removal protects a non-rez D against any local biasthat might be encountered in the state court b/c the D being a foreigner.

When Diversity is the basis for removal: Parties must bediverse at the time complaint was filed AND at the time thenotice of removal was filed. (subj to exceptions)

D may only remove on diversity if not a citz of the state inwhich claim was brought.



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Only D can remove.

Multiple Defendants: They must all agree to remove. Andnon of them (if it¶s diversity) can be from the state in whichclaim was brought.

b. Purpose: (in Fed Q) removal equalizes the ability of both parties to have afederal question litigated in its µnatural forum.¶

D may remove on a federal question from his home state.Actions is removable when:

i. Only if it originally could have been brought up in Fed Ctii. Cases may be removed only from state to federal

iii. time remove is very limited (import ant to know 4 exam-

usuall y 30d ays)iv. The right to remove is limited to

v. Because of the Motley (well pleaded complaint rule) thebasis for removal must appear as part of the claim so thatremoval is sought on the basis of a fed q., the allegations of the P¶s complaint must raise a substantial federal question(therefore, no removal on a D¶s counter.)

N ever never never forget that you must meet the requirementsfor Diversity!!!! If you¶re removing on diversity.

1441(c) ±± When removable claim + non-removable claim are joined CT has discretion

to take the whole case or to remand the parts that belong in State ct. Policy considerations for taking BOTH:

Judicial economy (avoids parallel state litigation)

D would have to defend two separate C of A and D might be

deterred from exercising their removal right and the Fed

interest in providing an opportunity to litigate in a fed forum

would be thwarted.

V. VENUE 28 U.S.C. \1391 D must be sued in district where:

D resides or

Where important events relevant to the suit took place.(Keep P from dragging D around to out of the way/irrelevant locations for trial)

solely on diversity: where any D is subject to PJ at time suit commences

not solely on diversity: where any D is found

Only applies to cases commenced in Fed CT

o If you remove from state ct then you go to dist ct that ³embraces´ thestate ct where action is pending

Can be waived if not raised if D does not raise it when answering complaint

FR CP 12(b) CT issues default judgment: Not proper venue? judgment is binding & entitled to

FF&C (D had opportunity to raise)

Can only transferred to a CT where venue would have been proper to begin with

Parties can agree on venue in a contract and usually enforceable (C arnival C ruise Line and farm equip case)

PJ constitutional right; venue not constitutional right



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VI. CHANGE OF VENUE \1404(a) (F erens case): TR ANSFER TransferWhen Venue was PR OPER to begin with:

for the convenience of the parties and witnesses and in the interest of justice

When P moves for transfer under 1404(a) the transferee CT must follow the choice of law rules that prevailed in the transferor CT.

Change of ³CThouse´ not change of rules!

o A transferee CT applies the same law that the transferor CT would haveapplied.

Transferee CT would use law X

Transferor CT uses law Y normally, but will use law X in atransferred case. Why?

y should not deprive party from state law advantages that existabsent diversity jurisdiction

y

should not create or multiply opportunities for forumshoppingo if you would get diff rules elsewhere you might look

around and try to transfer in order to get them.

Forum Non Conveniens: CT dismisses the case because there a more appropriate forum

even if there is SMJ, P J and proper venue To go from one Fed CT to another Fed CT, use FR CP 1404 or from Federal to State,

or State to Federal, or State to another State, or State or Fed to foreign country FNC is not a transfer CT will stay/dismiss case on condition it to be brought in

another forum

Usually because the other CT is in another judicial system cannot transfer to another judicial system (ie, foreign country)

o Piper case (airplane crash case, better to hear the case in Scotland!)Possibility of less favorable chance of recovery in a different forum shouldnot bar dismissal

Factors to take into account in deciding FNC:

1. Is there another forum at all?

2. Plaintiff¶s choice of forum

3. Where the evidence is

4. Where the parties are

5. Where the witnesses are

6. Access to the site

7. Where the witnesses will be within the compulsory process of the court

8. Where the dispute can be resolve in one case

9. Whether the court will apply its own law or an unfamiliar body of law

10. Whether the locality has any interest in the litigation



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ERIE DOCTRINE: must apply state law where the CT sits if it is an issue of Substantive law IF federal law/Statute/FRCP is not on point then Erie appliesR

oadmap for Erie: Synthesizing Erie:I. Fed. R . Civ. P. v. State Law:

1) Is there a FRCP on point?o If yes, make sure the rule does in fact applyo Give the rules their plain meaning.

EX: FRCP 4 allows substituted service of process. State law might not.CT should allpy FRCP 4 b/c it is on point and is valid.

A FRCP is valid if it is arguably procedural. (Hanna 2) Is there a direct conflict w/ State law?

a. (fed = discretion; state = mandatory)b. look at purpose behind the rules

3) Is the FRCP w/in Congress¶ power?

There is both constitutional power and statutory authority for adopting the FRCPo Congress does have the authority to enact the FRCP:

Art. III + Art. I, Section 8

y Provides for creation of Fed cts subservient to Sup Ct

y Has power to create necessary and proper rules to governthose cts (rules giving jurisdiction, etc«procedural)

Procedural R ules: certainly procedural and those in the grey area,but not that are entirely substantive

Room to argue about what is substantive

o To determine whether procedural or substantive use one of

the following tests:

Ely Test: procedural rules are designed to make theprocess of litigation a fair/efficient mechanism for theresolution of disputes. Substantive rights are thosegranted for other reasons.

Hart &Wechsler Test: substantive rules are thosewhich characteristically and reasonably affect people¶sconduct at the stage of primary activity.

R EMEMBER : FRCP have a presumption of beingvalid.

4) If the FRCP w/in Congress¶ power, did Congress delegate to Sup CT under REA?

R ules Enabling Act (1934) \2072 ± gives Supreme Ct power to create FRCPi. Gave power to Sup CT to govern practice and procedure: ³Shall not

abridge, enlarge, modify substantive rights´ii. Burlington point of FRCP is to have uniform system of rules so FRCP

that incidentally affect litigants¶ substantive rights are not against policyif reasonably necessary to maintain the Rules.

II. Federal Practice v. State Law: Federal Practice: Something the Fed Ct do, but

that is not a formalize rule in the FRCP book 1. Is there a federal practice on point?



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2. If yes, does it conflict with state law?

If yes«Then you use the twin aims of Erie to figure out if the rule issubstantive or procedural.

i. Forum shoppingii. Inequitable administration of laws (out-of-state P more laws

available then in-state Ps)

You argue what is useful to your client ± if the twin aims will come out forFed law or state law then you argue that Byrd does or does not still apply.

DO NOT USE Twin Aims IF:

Fed statute FRCP

If Twin-Aaims test comes out for State then:

Is there a strong Federal policy v. weak State policy apply Byrd Balancing Test Byrd went with Fed even though Twin Aims came out for State

o If you want state to apply you argue: Byrd overruled by Hanna

o If you want Fed to apply you argue: Byrd not overruled by Hanna

That Byrd survives in Gasperini in an all-or-nothingsituation, etc.

j Gasperini R ule: When a Fed Practice conflicts w/ a ST statute, usethe outcome effective test

Is there a conflict?

o YES use Fed practiceo NO is conflict procedural/substantive?

III. Federal Statute v. State Law1. Does Federal Statute cover the point in dispute?

Determine if the statute is sufficiently broad to control the issue before the CT

2. Does it represent a valid exercise of Congress¶ authority under the Constitution? If it is arguably procedural (Hanna)«then it is valid b/c Congress has

authority to enact statutes. Valid fed statutes trump state law even if in conflictwith state law. Grey area okay!

Federal statutes are supreme laws of the land and they trump state laws

even if conflict if it is on a procedural matter!

S tewart : \1404, arguably procedural, trumps state law. Procedural + grey area = okay

Congress does have the authority to enact procedural rules to govern fed cts: Art. I, Section 8

o Provides for creation of Fed cts subservient to Sup Ct

o Has power to create necessary and proper rules to govern those cts(rules giving jurisdiction, etc«procedural)

R everse Erie

State Cts have concurrent power to hear most cases that could be heard in Fed CT. State Cts have to use federal law. State Cts have to determine how much they can use their own procedural rules. Dice = Congress has constitutional power to enact legislation regulating the mechanics of trial in a

state CT whenever a federally created claim is involved. ONLY IN SOME CASES!



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How do you determine the law of a particular state?

Klaxon Fed Ct use the choice-of-law rule of the state in which it sits If Fed Ct uses different choice-of-law rules than the state in which they sit it would lead

to forum shopping. If the Fed Ct has persuasive evidence that the highest CT would not follow the lower CT

decision then it can decide it similarly to what the state¶s highest CT You can ask a state CT if that state allows you to. You can look to answers of the highest CT, but follow trail CT if there is nothing else.

PLEADINGS

SUMMONS ± R ule 4

y Due process requires notice to D ³reasonably calculated, under circumstances, to appraiseinterested parties of suit and give them an opportunity to present objections´

C onstitutional requirement/ M ull ane st and ard

y Initial complaint gets special treatment b/c otherwise D might not learn of suit, after D

knows, the rules of notice about pleadings, etc are looser because D is already on thelook-out for them

COMPLAINT (pleading by the P) ± R ule 8(a) Filing to the complaint begins the case P doesn¶t have to explain legal theory, just give D

notice. Rule 8(a) requirements

1. A short statement of the grounds for the CT¶s jurisdiction (SMJ) 2. Short and plain statement showing that the pleader is entitled to relief

a. Rule 2 give P benefit of the doubt even if doesn¶t state C of A3. Demand for judgment for the relief the pleader seeks.

R ULE 8(a)(3) you ask for difference types of relief in the same form4. R ule 11 requires attorney to sign complaint certifying that it isn¶t ³frivolous ́

Rule 8(e)(2) ± you can state as many separate claims or defenses as the partyhas regardless of consistency and whether based on legal, equitable or maritimegrounds.

Inconsistent Pleadings OK! Conflict bet. Rule 8 and Rule 11 = 8 requires plain statement, no great detail, but

11 requires that you have enough evidence not to bring a ³frivolous´ claim.

o NOTICE PLEADING ± state enough so the D knows what he is being sued for ex ceptions to notice pleading

y R ule 9(b) ± a fraud complaint is typically required to state

o Time of the misrepresentations

o Place of the misrepresentation

o Contents of the misrepresentation

o The person who mad the misrepresentationo rule 9(g) ± special damages must be pleaded w/ particularity

(give detail)

W hat if P doesn¶t state a C of A? Garcia P stated a claim upon which relief can be granted, but he did not

state a C of A.



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o R ULE 2, Cts dismiss claims only if a P does not state a claim uponwhich relief can be granted ± you won¶t get dismissed for failing to statea C of A.

o What is the standard for deciding whether P has stated a claim? Give P benefit of every inference at this stage of the trial.

SERVICE of PR OCESS -- (R ule 4e) ± R equired by 14th

Amend. ³due process´

Service can be made by any non-party who¶s at least 18 years of age ± R ule 4(c) o Have to prove service (file affidavit w/CT)

personal service ± o anywhere in the forum state

substituted service (not serving D but a substitute) ± R ule 4(e)(2)

o ok if it is at D¶s usual abode (house)o must serve someone of suitable age and discretion who resides there (kid isn¶t okay, but

spouse would be)

D¶s agent ± R ule 4(e)(2)

o appointed by contract or by law (agent in state driving on highway types)o If agent was appointed for you and the agent does not notify you then jurisdiction will

not stand b/c in effect you were deprived of due process.

o If you independently set up your own agent then you are still responsible even if theagent does not tell you about the summons/notice.

Using state rules 4(e)(1) says

o you can serve by any method allowed under law of the: state where the Fed CT sits; or state where the service is effected

immunity from processo parties, witnesses and attorneys who enter state to appear in another actiono party who was induced by P¶s fraud/deceit to enter a state to be served

publication, etc.o might be okay in some limited circumstances reasonably calculated to give notice?

Then ok. (idea from Pennoyer and pl ayed out in M ullane)

waiver of service of process - R ule 4(d) not service of process by mail it is waiver of service by mail P can ask D to waive formal service of process requirements by:

o Sending D complaint + waiver of service formo Two copies of notice of actiono And request that D waive formal serviceo D is supposed to sign and return the waiver of service form

Incentive for D to waive formal service:

o Duty to avoid ³unnecessary costs of serving summons´o CT must impose $$$cost$$$ of service of process on D IF D refuses to waive

w/o good cause

o Gives 60 days to respond to complaint instead of usual 20 (quite the carrot to

entice)DEFENSE to service of process: FRCP 12(b)(5) attacks adequacy by P to give D notice service of process of a corporation (Rule 4(h))

serve an officer; or managing or general agent

o does not include all employees

o enough job responsibility that we can expect him to transmit importantdocuments



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in addition you can serve in any method allowed for cor por ations under state law

o state where the Fed CT sits; or o state where the service is effected

service of process on a g¶ment employee or g¶ment itself ± Rule 4(e)

o serve district attorney of district where action is brought

Purpose of Pleadings ± R ule 7 ±± J ust , speedy, and inex pensive determination of every action.

Narrow the issues to be tried ± don¶t want issues that are too broad Notice to the parties ± due process right of notice ± Constitutional right to know that you¶ve been

sued Notice to the ct should it get jurists? Is it an issue that the judge decides? Determine if it has

jurisdiction Serves as a record Dispose of cases where there are no real issues to be heard

Pleadings just give you enough notice to know what to ask about during motions/discovery

PLEADINGS TODAY o Burden of pleading: who has the burden to raise an issue during the written pleadings

o Burdens of Proof (substantive for purposes of E rie ± so it is state law)

Substantive would lead to forum shopping if it wasn¶t governed by state

law

Production: who has the burden of actually producing evidence (here is theactual contract«etc.)

Persuasion: who has the burden of persuading the fact finder

Amending Pleadings R ULE 7(a) If opponent has not filed an answer (i.e. motion to dismiss) then you can

amend your pleading.

NOTE : It¶s easy to sue people: you give them notice. Everything else in procedure is designed to

³winnow down the issues´ to just those things that will be tried on the merits. You join up people, you³discover´ which claims have merits, and then you go to trial or settle or get summary judgment.

Motion for a More Definite Statement -- R ule 12(e) if complaint is too vague

o Opponent has 10 days to file a more definite statement

Motion to STRIK E ± R ule 12(f)o Before responding to a pleading, or if no responsive pleading is allowed, w/in 20 days

after service of the pleading any:

Insufficient defense

Redundant, immaterial, impertinent or scandalous matter

Can be made by the CT at any time, too. R ULE 12(b) MOTIONS To DISMISS

Rule 12(g) ± Must raise all motions to dismiss at once. Cannot raise one, get answer,then raise another.

Rule 12(h) ± waiver/preservation of certain defensesR ULE 12(b)(6): Failure to state a claim for which relief can be granted

Assuming the alleged facts are true, do P¶s allegation (assuming they can be proved) statea claim for which a CT might grant relief.

AFTER P FILES THE COMPLAINT« D MUST THEN BRING A MOTION TO DISMISS

(R ule 12(b) or «ANSWER THE COMPLAINT and PUT DEFENSES IN THER E



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D argues: ³wrong´ claimed by P is not a recognized violation of legal right

Gives P benefit of every factual disagreement and inference If after that P does not have a claim which can get relief then ct can dismiss CT only looks at the pleading to determine if there is a right to relief Only way to get dismissed for this is: if P can prove no set of facts in support of his claim

which would entitle him to relief.

o HYPO o Car leaves road and hit husband jogger. Wife jogger, not hit, sues driver for

emotional duress.o State does not allow relief for emotional duress w/o physical contact.o Driver motions 12(b)(6). Should be granted b/c even if wife jogger proves that

driver was negligent, etc. she will not have a right to relief b/c State does notallow relief w/o physical contact, etc.

12(b)(6) v. Summary Judgment

o 12(b)(6) = even if P proves everything there is no relief available

Summary Judgment = no disputed issues of material fact to be tried & moving party is

entitled to judgment on the undisputed facts ± R ule 56(c)

ANSWER -- R ule 8(b)y If you don¶t file a Rule 12 motion w/in 20 days of service of process, then you have to file an

answer. You don¶t have to answer until a Rule 12 motion is ruled on, which is one good reason to

always file a Rule 12 motion even if it¶s mostly bogus. You must respond to ever y alleg ation in the complaint

y Admit

y Denials

j If you fail to deny something you have admitted it

only exception is to damages

y Lack sufficient information to admit or deny (DK I)

Good for D to admit it if it is true. Make sure D really does not know before

using DKI, CT says: if it is something that you should have known then aDKI is held to be an admission!!!

y What if you don¶t deny an allegation? -- R ULE 8(d) ± Admitted when not denied.

y General Denial: D denies each and every allegation in the complaint.

y Qualified General Denial: D denies each and every allegation in complain except Dadmits X.

y Negative Pregnant

avoid a negative pregnant by Denying each and every averment.

Raise affirmative defenses -- R ule 8(c)

y The last part of the answer is any counterclaims you may have

y

Statute of limitationy Statute of fraud

y Res judicata

y Affirmative defense inject a new fact -- Must be pleaded in the answer

y Counterclaims that D may have against P may be pleaded in the answer. If arises out of same T or O then it is a compulsory counterclaim and it must be pleaded or it will bebarred (cannot litigate it later!)



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R ESPONSE to D¶s Answer ± reply by P is required only where D¶s answer contains acounterclaim denominated as such.

R eply must be w/in 20 days after service of the answer.CERTIFICATION ± Rule 11

Whenever submitting paper to the CT the attorney must SIGN it.

AMENDING PLEADINGS BEFOR E TRIAL --15(a)

Pre-trial: R ule 15(a) one ³matter of course´ amendment granted w/no leave needed by CT if: w/in 20 days or before a responsive pleading is filed 20 days passed? responsive pleading has been filed? then CT has discretion Early in litigation presumption in favor of allowing amendments

Close to trial date: CT increases use of discretion to permit or deny Later in litigation less likely to grant leave ³freely´ b/c parties of planned

defenses, gathered w/nesses, paid experts, etc. CT should keep in mind the interest of the P but should also keep in mind

that litigation should end at some point (4th attempt is probably too many,

F riedman) Commencement of trial: entirely new set of considerations ± see Fed R ule 15(b)

Amendment During & After Trial -- R ULE 15(b)Parties can imply consent to amending a pleading regarding an issue that is already before the

CT, but cannot if the issue is not before the CT already. DUE PROCESS (notice) not Constitutional notto give opponent notice of a pleading.Pleadings automatically amended if no one objects.

If evidence doesn¶t match the pleading once you are at trial«

Any party may motion to amend pleading as necessary to match up w/ evidence at any time. If a party objects to the proposed amendment then the CT uses discretion

o will it promote justice?

o Ct may give objecting party a continuance so that they can gather counter evidenceand prepare a defense against new pleading/evidence, etc. (say P can gather counter-evidence against D¶s new evidence)

If a party does not object then CT treats the pleadings as if they were amended complaints b/cof implied/expressed consent.

Implied consent occurs when party fails to object to the evidence and it is clear that theevidence raises the issue (i.e. if the party has had notice and hasn¶t objected, the party hasimpliedly consented.)

Due Process Limitation: meant to provide opportunity to respond to claims. Cannot introduce

w/o notice.R ELATION BACK AMENDMENT to PLEADINGS ± R ULE 15(C)

MUST be out of same Transaction or Occurrence

Do not amend away the basis of SMJ. You still need SMJ over the new amendment

Statute of Limitations policy concerns: Stale evidence concerns (memories fade and

documents get lost/ruined) and Peace of mind o Why allow filings after time has run?



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If D knows of a claim before time runs, the D should collect evidence and won¶thave peace of mind about the claim. Therefore, the statute of limitations policiesdo not apply and so the rule shouldn¶t apply.

R eal Interest in the Party± R ule 17

RULE 17(a): a P cannot sue in his own name w/ joining the party for whose benefit the action is

brought unlesso To ensure D that he will not get sued again after this action by the person who really is

entitled to the relief RULE 17(a): you don¶t dismiss an action started by a party that is not the party in real interest if

they have the ratification of the real party in interest

o Real party must authorize continuation of the action and«o Agree to be bound by the lawsuit¶s result.

Joinder of Claims -- R ULE 18(a): any pleader can bring claims against any opponent so long as thereis PJ, SMJ and venue, regardless of whether the claims are related or not.

Must have proper venue and SMJ!!! Cannot use 18(a) unless you already have a claim against the other party.

o Ex: Must 13(g) another D before you can bring 18(a) ± see below

No common transaction/occurrence requirement any additional claim is okay U nlike 13( g) thathas a same T or O requirement

o Example: Z sues X and Y. X uses Rule 13(g) to cross-claim against Y. X is now apleader against Y. X can then use Rule 18(a) to bring any additional claims against Y.

Rule 20(a) Y

Z R ule 13(g) R ule 18(a)

Rule 18(a) X cross-claim any additional claims

(same T or O) (unrelated)

Necessary and indispensable parties -- R ule 19 P has left out some party and D wants to join (D brings this motion b/c wants to get the case

dismissed)o Rule 19 only raised by D o ³Indispensible´ is determined by CT on case-by-case basis

If you can join them, you must.

o If party is amenable to process and joinder will not destroydiversity/venue, must join as a party.

P is indispensable if ± R ule 19(a): 1. If w/o absentee, the CT cannot accord complete relief among the parties

if no then she is necessary (efficiency)

y What is a real indispensable party? A and B own a piece of property.

They contract to sell the piece of property, and then A and B repudiatethe deal. Buyer sues just the A for specific performance. Can the CTforce B to sell land that he jointl y owns w/A? No! If you jointly ownsomething (unless it¶s divisible), then both parties will have to be joined.

Examples of Indispensable Parties:

y Joint interests in property

y Joint obligors/obligees (when multiple parties agree to assumeliability in the event of some occurrence, like indemnification



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agreements where two parties indemnify you jointly)

y Limited pool/multiple claimants (where interpleader comes intoplay«if there¶s a fixed pot of money involved, you¶ll lose out if thatpot gets ³poured out´ to another litigant and you¶re not involved in thesuit)

2. if her interest may be harmed if she is not joined

3. if her interest may subject D to multiple or inconsistent obligations

R ule 19 (b) ±± If feasible party is require but can¶t be joined, the CT must decide whether thelitigation should proceed or should be dismissed.

o If not feasible (not subject to process, objects to venue, will destroydiversity) the CT must decided whether the action can proceed in theparty¶s absence or be dismissed.

#1 Whether the judgment in the party¶s absence wouldprejudice her or the existing parties.

#2 Whether the prejudice can be reduced in shaping thejudgment

#3 Whether a judgment in the party¶s absence would be

adequate #4 Whether P will be deprived of an adequate remedy if the

action is dismissed.

NOTE: Preference for dismissal if there is a state forum

where all parties may be joined in practice as well as in

theory.

o N o P J ? Use \1404 (change of venue) or maybe \1406 (wrong venue, up to CTdiscretion to decide whether to transfer to the proper venue) or might try toimplead (Rule 14)

Notes on R ule 19

i. Fed law controls the Q of joinder in diversity cases

ii. State law controls the nature of a person¶s interest in a particular controversy or thesubject matter of the dispute in diversity cases.

iii. In diversity cases you look to state substantive law to decide if a person had an interest,and Fed procedural law to decide if that interest makes the person indispensable.

Joinder of Parties -- R ule 20(a)

y Ps may join w/other Ps in claim if: Claims come from same T or O (transaction or occurance), or

y At least one Q of law/fact common to all M ay, but do not have to join can wait and bring action separ atel y l ater if you want to

MUST BE COMPLETE DIVER SITY Each claim against a permissively joined D must satisfy the

jurisdictional amount. Ps with a common interest in a claim

exceeding $75K may join in asserting it even if individual share inthe interest is less than $75K .

y S eparate Trials ± R ule 42(b)

CT may make order separate trials to avoid embarrassing party and prevent undulydelay/prejudice.

y Rational : avoids possibility of inconsistent judgments on the same issue Misjoinder of Parties ± R ule 21



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When RULE 20(a) is not satisfied

R ULE 21(a): proper joinder of parties requires two things:o #1 right to relief sought by all Ps must arise out of the same T or O or series of

transactions or occurrences«and«o #2 a common Q of law or fact as to all P must arise in the action.

Policy of permissive joinder: trial convenience and expedite resolution of lawsuits

Material dissimilarities between substantive allegations of the joined parties does notautomatically bring such claims outside the ³same transaction´ language.

Separate trials ±± R ule 42(a) RULE 42(b): Separate trials for convenience, avoid prejudice

o This case is only two Ps and they are alleging similar actions, not really a strongargument for jury confusion.

Cross-claim/Counter-Claim -- R ule 13

Cross-claim arising out of same T or O against a co-party (same side of the ³V´) ± R ule 13(g)

Counter-claim P v D, if D has a claim arising out of T or O then must bring it or lose it ± R ule 13(a)

P1 D1 R ule 13(a) ± cross-claims may be asserted by

13(a) counter-claim against any opposing party

D2

o compulsory counter claim -- (use it or lose it!) -- 13(a) compulsory counter claim has built in SMJ from the original claim! D can state a Compulsory CC if claim is from same T of O.

D must raise it while they are already adversaries And if the CC does not requiring adding another party whom the ct has no jurisdiction over.

y more efficient for Cts and avoids inconsistency

o permissive counter claim -- 13(b) allows asserting claims against opponent (D) that DO NOT AR ISE OUT OF THE SAME T

or O (can bring them later in a different suit if you want to)

N o built in SMJ must prove it when assert the claim o Omitted Counterclaims -- R ULE 13(f):

o ³When pleader fails to set up a counterclaim thru oversight, inadvertence or excusable neglect,or when justice requires, he may by leave of CT set up the counterclaim by amendment.´

o Amendments under RULE 13(f) do not relate back to the original pleadings. (Stoner case)

If you have to amend and the statute of limitation has run then you are out of luck.

o R ule 13(f) and R ule 15(c) are mutually exclusive!!! o cross-claims ± permissive -- R ule 13(g)

y must arise from the same T+O of the original case

y same side of the ³V´

y not compulsory!

THIR D-PAR TY PR ACTICE ± R ule 14 -- IMPLEADER Ex: D brings in a 3rd part y as a P onl y when 3rd part y contributed to liabilit y.

Any D may implead any other 3rd party defendant (original defendant) so long as they mayowe them part/all of liability.

D can implead more than one additional D2. Can implead as many as he wants if rules aremet if Rule 20(a).

P1 D1



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Use Rule 14(a) b/c D1 says D2 owes part/all of what D1 might owe P1

D2

SMJ (supplemental?, diversity J?)

i. A non-diverse third-party does not ruin diversity!!!

that would allow Ds to bring in non-diverse third-parties just todestroy diversity and beat the system

i. But need own indie SMJ ± can usually get supplemental \1367(A) Or if the $ is met and are diverse parties, can get diversity.

Or you may have a fed claim. P J -- MUST have Proper PJ over the new guy V enue -- don¶t have to prove proper venue Raise w/in 10 days to implead w/o leave of ct

CT may refuse to add or may insist on separating main suit and impleader suit if:i. Undue delay in seeking impleader

ii. Complicates main issues

iii. Potential P prejudice from sympathetic third party D.Third party D may:

Implead further parties not already involved ± using 14(a)

File counterclaims against third party P ± using 13(a) File cross claims against other third party D ± using 13(a) May assert claims against the original P if ³same T or O´ as P¶s original claim (and

vice versa): (R ule 14(a)

2. Original P may assert any claim against the 3rd party D arising out of same T and O.- so long ashas independent jurisdiction ± NO SUPPLEMENTAL juris available.

3. If counterclaimed against, the original P may implead a third party per 14(b)

INTERVENTION ± R ule 24 (outsiders butting into existing suit -- even is no one else wants him there!)

1. Intervention of R ight If timely application for intervention

(1) when a statute gives unconditional right to intervene or (2) shall be permitted to intervene when«

applicant claims interest (property or transaction) of suit +

and no intervention may impair or impede his interest; and interest is not adequately represented by existing parties

2. Permissive Intervention

If timely application for interventioni. statute gives conditional right to intervene

ii. claim or defense and main action have a

of l aw or f act in common;

when party to action relies for cl aim or defense on a statute, regulation or

executive order administered by Fed/state then officer/agency (if timelyapplication) may be permitted to intervene. (discretionary!!!) CT has discretion will intervention undul y del ay or prejudice the

ad judication of rights of the original parties? ( c) Procedure ± by motion (following Rule 5), accompanied by pleading settingforth the claim or defense;

if constitutionality of act of Congress CT will notify Attny Gen of US



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if constitutionality of statute affecting public interest CT will notify AttnyGen of the State

F ed Q no problem Diversity if person intervening is diverse = allowed

o I f person intervening is not diverse =

S upplemental J urisdiction

o Intervening P not diverse? no SJ!!! \ 1367(b) bars SJ over cl aims by persons ³seeking to intervene as P s under Rule 24 when exercising SJ would be

inconsistent w/ 1332 ( divrs) ́ Inconsistent w/ 1332 = cl aim of NY cit v. NY cit , etc. ( would destroy

complete diversity requirement) Exx on SJ cannot support J over case based on minimal diversit y!

o Y ou cannot use SJ if the person is intervening as a P or intervening to defend

against a claim by the P. o W hat about if someone intervening for another purpose? ± ie, defending against

a third party claim. Section 1367(b) doesn¶t speak to that. CT can still usediscretion not to give SJ under 1367(c) if they want to.

o Permissive Intervention probably will not fit under 1367(a). o Some cases say that when someone intervenes to challenge a confidentiality order

± like a newspaper there¶s SJ. Intervention Denied? CT can allow you to file a ³ friend of the CT´ brief .

CLASS ACTIONS ± R ule 23 Basic principle of class action ± should not alter, magnify or reduce substantive entitlements of

any members of class, supposed to get rid of transactional obstacles ($cost$) that would otherwiseprevent suit.

Might not be worth suing based on individual claim. More leverage w/ CA then individual suit.

rule drafted w/ an eye to the const¶l issues

o adequacy of representationo notice element (23b3s)

1. R ULE 23(a) four prerequisites to bringing a class action:

1) numerosity ± must have too many for joinder 2) commonality ± Qs of law or fact common to class (at least two Qs are necessary)3) typicality ± claims/defenses of the representative must be typical of the class

a. if the claim of the rep is mooted during the trial it does not moot the claim of the class

Ex: rep released from prison does not moot the CA of the prisonerschallenging the parole procedure.

b. look at the motive of the class representative (make sure that interest of the

rep is the same as the class.)

difficult to pick a class rep. ± i. you need to pick someone who is typical of the class at the beginningand Q at the end of whether he adequately represented the classinterest!

4) adequacy of representation ± will class reps fairly and adequately protect interestsof class (adequacy of attorney) Is the lawyer up to the job?

a. Vigorous prosecutionsb. Honesty



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c. Conscientious pursuit of the claimd. Can have multiple repse. Can have a D classf. CA member can ask CT to have a different lawyer represent the CAg. Challenging Representation/ Bound by CA: If you¶re not an active

participant in the class litigation, you can collaterally attack that litigation to

see if you¶re really bound by the former class because you were notadequately represented by it.

2. Types of Class Actions: if all 23(a) OK IF ALSO meet one of the 1, 2 or 3:

1. R ule 23(b)(1): prosecution of separate actions would create risk of 23(b)(1)(A), incompatible st and ards of conduct ( voting rights dispute)

y Separate actions by class members would create a risk of

inconsistent results or would impair the interest of other absentmembers of the class

y Mandatory CA -- no right to opt out o CT 1 might rule in case A that X must stop buildingo CT 2 might rule in case B that X cannot stop building

23(b)(1)(B): interpleader ³ super-sized´ ( suing from a fund , all

l ater suits get no $$$)

Mandatory CA -- no right to opt out

EX: Claimants of insurance policy would overdraw policy± provides way to assure similar parties treated alike (so oneparty doesn¶t get all the $ and another party gets nothing.)

2. R ULE 23(b)(2): a class asking for injunctive relief. (Civil rights, etc. ± injunctions usually)

1. D acted or refused to act on grounds applicable to the class andinjunctive/declaratory relief is appropriate for the class as a whole.

2. N otice: C T may require the P to give notice 3. I f a cl ass is asking for injunctive and d amages then might use rule

23(b)(2) and 23(b)(3)

3. R ULE 23(b)(3): Question of law or fact common to: Class interests predominate individual interests CA is superior way to deal w/ suit (related to 23(1)(a) ±

impracticably to join?)CT determines these factors by looking at (looking at efficiency):

A. interest of members of class in individually controlling theprosecution/defense of separate actions;

B. extent and nature of any litigation concerning the controversywhich is already commenced

C. desirability or not of concentrating the litigation of the claims inthe particular forum

D. difficulties likely in manageability of a class action

N otice: P must pay for the notice to the cl ass!!!

Can opt out of (b)(3) CA!

Why opt out of a CA?

You might not think that the representation was good enough.

You could opt out and not sue.



26

Do members of (b)(2) and (b)(3) have the right to opt out? Notspecifically they cannot make as many decisions and so noticeis not as important.

4. Don¶t want to use (b)(3) unless it is your onl y option b/c it is more expensive

Alternative to CA Bring a test case. If P wins, some jurisdictions would preclude the D from re-litigating the issue of liability and so

other Ps could get summary judgment on the issue under the doctrine of res judicata. Problems w/ the test case approach: if D wins, other Ps are not bound

o If stakes are small, often are in consumer cases, other Ps won¶t be able to financelitigation even though they have the benefit of a favorable finding.

Due Process you are not bound by rulings when you are not notified, etc. SMJ Fed Q no problem

Diversity diversity among named Ps and Ds is enough and total damages just has to meet the

$75K S o long as the named parties are diverse then it is okay, you do not have complete

diversity. P can pretty much sue anywhere that you want to ± so you would want to choose

a place that is notorious for giving high awards. THEN CAFA

Class Action + Personal Jurisdiction

You are an unnamed P in a CA ± you do not have to defend yourself ± you don¶t have topay a judgment ± however, outcome may still cut off your ability to sue

o Sup Ct Ruled: It is not necessary to satisfy the minimum contacts standardnormally applied to out-of-state Ds to obtain a judgment binding out-of-stateabsent P class members. (The Rules Get Bent to Accommodate CA Suits)

CA + Venue

Venue is treated the same as in other situations EXCEPT« Residence of only named parties is looked at and do not look at the absent class

members.CA + Erie

Use Rule 23, not the state rule.

CER TIFICATION -- R ULE 23(c)(1) class action certification

23(c)(1)(a) decision must be made as earl y as pr acticable whether to certif y

R equirement for Certification:

1. Must be able to identify members of the CA w/precision2. Class Rep must be member of the class3. Must be question of law or fact common to the class4. Claims/defenses must be typical of the claims/defenses of the class5. The Rep. will fairly/adequately protect the interests of the class

NOTICE -- 23(c)(2)(a)

CT may direct appropriate notice to 23(b)(1) Injunctive Torts -- CT may direct appropriat e notice to 23(b)(2)

JUDGMENT -- 23(c)(3) Who Does Judgment Cover? 23(b)(1) and 23(b)(2) ± those whom CT finds part of class

SUBDIVISION of CLASSES -- 23(c)(4)(b)



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interests of class are consistent?

o CT can break the class into two classes, or«o One class broken into two subclasses (subclasses where different interests ±

joined where the issues are the same)

SETTLEMENT -- R ULE 23(e)

23(e)(1)(a) CT guard against collusion or rep running out of steamo CT must approve settlements, dismissals, etc.

Notice of Proposed Settlement must be given to all members of the class in a manner directed by the CT ± Rule 23(e)

Factors to Consider in Deciding if Settlement if Fair and R easonable

o Amount in proportion to amount that could be recovered if case went forward.

o likelihood of P¶s successo whether people objecto Attorney¶s fees in proportion to class recovery

APPEALS -- R ule 23(f)

CT of appeals may in its discretion permit an appeal from either gr ant or denial of cl ass cert. if application made w/in 10 days after entry of the order

DISPOSITION OF CASESW/O TRIAL Default Judgments

Motions for Judgments on the pleadings under Rule 12(c) Dismissal for failure to prosecute Dismissal for failure to comply w/ discovery order Rule 12(b) motions

SUMMAR Y JUDGMENT ± R ule 56 ±±Determines whether there are facts to try. Is there any

dispute to begin with? R ule 12( c) becomes

SJ avoids the delay and expense of trying non-issues. SJ are entitled to full res judicat a effect.i. D moves for SJ

ii. P must then respond with admissible evidence (pleading is not evidence and not useful here) thattends to support claim so it won¶t get SJ ± Rule 56(e) ±± need discovery, disclosure materials on

file and any affidavits to support your claims iii. CT looks at evidence ± no reason for claim to go to jury if only an irrational jury could find for

non-moving party. Standard -- 3rd sentence in 56(c)

1. no dispute on a material issue of fact? You get SJ.i. If pleadings, depositions, answers to interrogatories, admissions on file, affidavits

all show that there is no genuine issue as to any material fact and the movingparty is entitled to a judgment as a matter of law

ii. Under Rule 56 (e)(2) if a summary judgment is properly made and supported (asConehead has done) an opposing party (PLA) may not rely merely on allegations

or denials in its own pleading; rather its response must by affidavits« set outspecific facts showing a genuine issue for trial and if the opposing (PLA) doesnot respond, summary judgment should, id appropriate, be entered against theparty

Rules of summary judgment2. Rarely granted for P3. CT can never resolve a dispute of fact on summary judgment



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4. He said/she said direct statements go to trial

INFER ENCE (R ule 56) o Inferences must be viewed in the light most favorable to the party

opposing the motion (RULE 56)

o Implausible inference? must back up w/ more persuasive evidence.

Pleadings are not evidence!! (not a defense against motion for summary judgment)

If an opposing party sought motion judgment on the pleading under rule 12 (c), it becomesR ule 56

DISCOVER Y -- R ule 26 (extremely broad standard that can be limited by CT at its discretion) Goals of Party Seeking Discovery

Gather information to help your case Gather information about adversary's case to avoid surprise Narrow the issues Obtain necessary admissions to get summary judgment

Party R esisting Discovery W/hold information that may be damaging to you (and avoid summary judgment.) Give information about the strength of your case (encourage settlement)

Narrow the issues but not your issues.CT's interest

Does not want to decide discovery motions

Wants judicial process to run smoothlySociety¶s Interest

Limit the costs of the litigation Discovery is expensive and intrusive so we don¶t want people to get the privilege if they do not

have a suit filed in CT.G E N E RAL RULE of Discovery ± Rule 26(b)(1): Parties may obtain discovery regarding any matter:

not privileged , that is relevant to the claim/defense/SM of the pending action. NOTE: does not have to be admissible evidence, can be anything that is reasonabl y calcul ated to

lead to the discover y of admissible evidence.

BASIC DISCOVER Y TOOLS: Automatic Disclosure 26(a) hand over at the beginning Protection Orders Rule 26(c) (abuse of discovery) Interrogatories Rule 33 basic factual Qs to put the bones of the case together Request for production of documents Rule 34 documents and ³tangible´ things Oral Depositions Rule 30 put flesh on the bones of the suit, fill in the details (usually at the

end of discovery) Request for Admission Rule 36 (treated as admitted if not denied or specified why cannot

admit/deny) Duty to Amend Rule 26(e) (if your knowledge changes you have a duty to update the other

party

Limits on Discovery (CT has very broad discretion to limit):

CT has discretion to limit what would otherwise be discoverable:o P requests something from Do D does not want to give it to P

o D asks CT for ³protective´ order -- Rule 26(c)

o CT has discretion to grant or not ± Rule 26(b)(1) ± ³protect from annoyance,embarrassment, oppression or undue burden/expense´



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CT will look at circumstances of the case -- taking into acct:

y the needs of the case,

y the amount in controversy,

y the parties¶ resources,

y the importance of the issues at stake in the lit,

y and the importance of the proposed disc in resolving issues.

Attorney-client privilege Attorney Product/Work Product: ³trial preparation materials´ (whether prepared by attorney,

the party or someone for the party) are discoverable ONLY when:

y pty seeking discovery has substantial need of the materials AND that the pty isunable w/o undue hardship to obtain the substantial equivalent of the materials byother means

o Standard Used To Determine:R ule 26(b)(3) y Attorney¶s mental impressions, conclusions, opinions, or legal theories are NEVER

OPEN TO DISCOVER Y. o WHY: attorneys would not keep written records and that does not improve

the quality of litigation.

o ³Automatic´/R equired disclosures ± rule 26(a)(1) Even though nobody asks you for it

Initial required disclosures

o Witnesses (name/address) you expect to call or will call if necessary

o Copies/descriptions of documents or things in disclosing party¶s possession/control thatmay use to support claims/defenses

o Computation of damages/materials on which damages are basedo F orego: parties can agree to forego the auto disclosure ± R ule 26(a)(1)

experts

o reports, name, addresses, qualifications, etc.o report on their opinions and theories -- R ule 26(a)(2)

Deposition ± R ule 30 ± get witness testimony, under oath, untainted by their attorney Available from anyone ± parties and non-parties ± R ule 30(a)

All parties may pose Qs to the deponent. Limited to 10 deposition w/o leave of CT One day of seven hours unless otherwise specified by CT Benefit:

o Best way of obtaining pre-trial evidence from the witness

o Promotes settlement (people are scared to get deposed)o Adversary¶s attorney can only object on the record R ule 30(c)

Unless attempting to violate a privilege (attorney-client)R ule 30(d)(1) o is their witness a good witness?

Limit 10 w/o CT order

Drawback: Very expensive

Lots of ways to record deposition ± phone, okay -- (some more costly than others) 30(b)(7) you can depose parties or non-parties

o a party R ule 30(b) and notice to all parties in the action of time/place/etc.o a non-party must be subpoenaed (notice not enough) or he does not have to show up

R ule 45 o does not have to be specifically ID person in corp or business, leave it up to them, ok

R ule 30(b)(6)



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W hen Taken: usually after interrogatories, b/c want to have as much info to use whenpreparing. Flush out the details, not assemble the bones.

o Counsel for deponent can cross-examine after examiner is done To Perpetuate Testimony: if someone is going to space, about to die, etc. you can get the CT to

allow you to take their deposition before the suit begins. ± R ule 27

Deposition of Witnesses (Written Qs) ± R ule 31 Designed for witnesses far away

All parties pose Q to deponent No more than 10 w/o leave of CT

Who Uses Depositions At Trial ± R ule 32

To contradict/Impeach testimony -- 32(a)(1) Adversary can use party/non-party ± for any purpose -- 32 (a)(2) Adversary may use his own deposition, used by the other party -- 32 (a)(4) If deponent is unavailable at trial -- 32 (a)(3)

Objections To: party can object to use on the ground of form and of relevance -- 32 (d)(3)(a)

Interrogatories ± R ule 33

Can get from any party (a non-party witness is not required to respond) Available w/o leave of CT (limit to 25)

Party must respond with facts she knows herself and facts that are available to her. Drafted/answered by counsel for each side Less expensive method of discovery, but often not very useful for anything but factual info

(dates/names/addresses)

written question answered in writing under oath (25 Qs)o you have 30 days to answer them ± 33(b)(1) Answers and Objections

o must be signed by person making them can only be sent to parties, not to non-parties often evasive, shaded to help the client

Identification: difficult to avoid answering, regarding specific info

Contention: tells the other party to state the basis for a contention Substantive: asks for all information relating to an event or date

Documents: R equest to produce ± rule 34

o Documents ± receipts, bank statements, diaries, etc. o Tangible things -- a car that was in an accident, urine sample alleged to have tested

positive for drugs Usually comes w/ ³definitions´ header detailing exactly what is meant by each term in request Opponent only has to hand over the exact documents requested,

Avoidance: party will construe very narrowly Privileged: Documents between client/attorney and attorney work product (notes from

investigation)

Can¶t mess up documents to confuse adversary (deliver them all in a pile ± have to give as youstore)

Protective Order ± Rule 26(c) from embarrassment, harassing, undue burden/expense you can use to info from parties or non-parties

o but non-parties have to issued a subpoena

Medical exam ± rule 35 you need a CT order



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Schedule should not be modified after the meeting w/o good cause and by leave of the districtjudge.

Schedule covers time limits on:o Joinder of partieso Filing motions

o Discoveryo Modifications to times for disclosures/extent of permissible discoveryo Date/time of pre-trial conference

o Any other matters appropriate in circumstances of the case Pre-trial Conferences (any) -- R ule 16(c)

1. Formulation/simplification of issues (elimination of frivolous issues)1. Necessity/desirability of amendments2. Possibility of admissions of fact/documents, authenticity of documents, etc.3. Avoidance of unnecessary proof 4. Timing of summary adjudication (Rule 56)5. Scheduling of discovery6. ID of witnesses and documents7. Advisability of referring matters to a magistrate judge

8. Settlement9. Form/substance of pre-trial order 10. Disposition of pending motions11. Need for adopting special procedures (CT has discretion if no applicable Rule)12. Order for separate trial (pursuant to Rule 42(b)13. Order directing party to present evidence14. Setting reasonable time for presenting evidence

15. Any other matters that facilitate just , speedy, inex pensive disposition of action At least one attorney for each party at pre-trial conference shall have authority to make

admissions regarding all matters that may reasonably come up (someone on hand who canestablish was is admitted, etc.)

CT may require a party/rep be present/reasonably available via phone, etc. (might require in

person) 26(a)(3): CT requires disclosure of witness identities and documents or other ex hibits at trial

30 days in advance.

R es Judicata ±± Once a final judgment on the merits has been rendered on a particular cause of

action, the claimant is barred by res judicata (also called claim preclusion) from asserting the same causeof action in a later lawsuit.

Bar and Merger:o Bar when D wins the first action, P is barred from litigating Qs that were or, to some

extent, could have been litigated.o Merger When P wins the first action, P¶s claim on which P sued is merged into the

judgment thereafter P can sue on the judgment only.

y For claim preclusion to operate 1. Same claim (cause of action)

2. Same parties or parties in privity with them3. The first case must have terminated in a valid final judgment reached for certain

reasonso In the past, the court said it has to be on merit but it has disperse with this requirement o If its on the merit, then it is entitled to full Res Judicata effect



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o A judgment is entitled to Res Judicata effect if though a judgment is pending (appeal).

Same Cause of Action -- issue of splitting claims

i. Think about the policies underlying res judicata. ii. Would it make sense to try the claims in one case?

iii. Would it save expense and time?

iv. Are there lots of facts in common?

Policies Underlying R es Judicata

The parties have an interest in avoiding burden of re-litigation The ct has an interest in avoiding the waste of judicial resources foster economy in litigation

Avoid inconsistent results, which undermines respect for the judicial system

Rational Behind It o Claim flexible syst w/many opps to amend, bring in parties, etc.: full/fair opportunity to

be heard claim extinguished and replaced by judgment.

Encourages diligence in the first trial.

o M otion for S ummary J udgment given full RJ effect , treated as if there had been a trial.o In a K case, you have to assert all breaches -- serves policies of res judicata o It does not matter that one claim is in law and the other in equity. One can still bar the other.

o It doesn't matter if one claim is based on state law and the second is based on federal law.One can still bar the other.

o When a federal court hears a federal claim and declines to hear the claim arising under statelaw under supplemental jurisdiction is not precluded from bringing the second claim in statecourt.

o If plaintiff brings a state claim in state court and can't bring the corresponding federal claimin state court, the plaintiff is not precluded from bringing the federal claim in federal court

Issue Preclusion; Partial R es Judicata; Collateral Estoppelo Under the circs will a party be precluded from litigating an issue even though the cause of action or

the parties or both are different? Qs/issues actually litigated and actually determined can¶t be re-litigated later in a case brought on a different claim.

o If was not a party in first case then can¶t be precluded b/c of due process o Only bars the issues actuall y r aised in first action. If case #2 is different events the

similar issues that were decided in case #1 will be barred.

TEST

1. Case #1 ended in valid final judgment on the merits

2. issue must be raised, actually litigated and actually decided ASK : what was decided in the first case? If Ann sues Bob on A and B but the CT finds for Ann on A but does not decide B, then A is

barred but B is not barred in case #2. EXAMPLE (Cromwell): 1st case: P¶s bonds deemed void due to fraud. P did

not litigate that he was a bona fide purchaser. 2nd case: diff P, same D. CT: P

not barred from proving he was a bona fide purchaser b/c that was not anissue litigated in the 1st case. Default/consent judgment is usually not okay for C.E.

Hypo:

y P sues D for breach of K and D defends on 2 grounds: lack of consideration and no valid

acceptance. Ct finds there was consideration but enters judgment on the ground that there was no

valid acceptance. P sues in quasi-K . P tries to estop D from arguing that there was no consideration



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(benefit flowing to D).What result? May the loser in a case use the favorable findings therein

to collaterally estop its opponent in a subsequent case between the two. Issue Preclusion requirements:

y The decision must have been essential to the judgment in the first case ( the loser cannot takeadvantage of the favorable finding to estop its opponent -- answer to the above question) y Dicta are not important, so courts don't work hard to get it right. y Suppose a decision is wrong and you think a court make a mistake? What do you do? Can

you appeal on that decision even though you won? No, you can't appeal on that case. y The issue must have been actually litigated. y The issue must have been actually decided.

y How do you find out if the issue was actually litigated? Look at the transcripts What if the plaintiff won by default? As plaintiff litigated the issue?

y No, b/c the issue have not been litigated-- no issue preclusion on defaultjudgment.

Who is Bound by R es Judicata Judgment?

y Person in privity y Person that lose the case

Mutuality:

y The favorable preclusive effects of a judgment are only available to a person who would havebeen bound by any unfavorable preclusive effects. Non-Mutual Collateral Estoppel:Allows C. E. by a party who was not a party to the first case.

Defensive Non-Mutual Collateral Estoppel = Party seeking to estop is a D in case #2, but not party in#1.

Principle: Where a in the second action seeks to assert estoppel against the . Estoppel isbeing used as a "sheild"

M ost Cts allow Promotes efficiency and less litigation; encourages a party to join all 's in one suit (If you

lose against A, and then you sue B, B can preclude you so you might as well join B in the

first action) Not unjust to hold a to facts that were made in the first suit Ex ample: A and B in a car crash; A was driving C's car

o 1st action: A v. B; B wins because A was contributorily negligent

o 2nd action: A v. C;

o C asserts collateral estoppel seeking to estop A from litigating the issue of his negligencebecause it was already proved in A v. B that A was negligent

Offensive Non-Mutual Issue Preclusion/ C.E. = New P in #2 seeks to estop old D from litigating issue.

Principle: Estoppel is being used as a "sword." (Ex: Preclude old D from litigating an issue that D lost in

the last action)

ALTER NATIVE DISPUTE R ESOLUTION

A. A set of techniques allowing us to go outside the CTs to resolve disputesEx. Credit card contract agreements stipulate disputes will go to arbitration (can¶t get classactions in arbitration)

B. Avoid the conventional system1. This can have negative effects (ex. If a case needs discovery to win)2. Costs less than a full-blown trial



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DURING-TRIAL & POST-TRIAL MOTIONS

Judgment as a matter of law -- R ule 50(a)(1) -- JMOL (same as old ³directed verdict´) The major procedural device to test the sufficiency of the evidence If, considering the evidence in light most favorable to the non-moving party, a reasonable jury

could not reach a contrary verdict then the CT may grant JMOL.

50(a)(1): only if reasonable people could not disagree on the result = JMOLo The judge decides whether there is a Q of fact for the jury to decide

Before jury verdict directed verdict After jury verdict J n.o.v (judgment not withstanding the verdict)

50(a)(2): specify the judgment sought and why the moving party is entitled to it o other party can request to re-open the case and cure the defect

o this judgment gives the nonmoving party notice (ie, why moving party is entitled toJMOL)

Moving party motions for JMOL at the close of the non-moving party¶s evidence.

Inferences must be viewed in the light most favorable to the party opposing the motion (likeRULE 56 -- SJ)

If the judge lets the case go to the jury the moving party can move again for a renewed JMOLwithin 10 days after entry of judgment

(diff from summary judgment because SJ is pre-trial motion but they have the same standard)

J.N.O.V. (judgment not withstanding the verdict)

renewed (delayed) motion for directed verdict (see above) should be granted if the opponent¶s evidence is so weak that no reasonable jury could have

reached a verdict for him.

Moving party MUST make motion for directed verdict at the close of non-movingparty¶s evidence in order to get a J.N.O.V. ± Rule 50(b)

J.N.O.V. = Judge telling jury that they acted irrationally Why not just grants the judgment as a matter of law motion then?

o Debatable what is sufficient evidence to go to a jury ± judges will disagree ± subjective standard.

o If doesn¶t go to the jury and it is appealed and reversed then there will have to bean entire new trial

o If the judge waits until after the jury gives a verdict before J.N.O.V. then if hisdecision is reversed on appeal there does not have to be an entire new trial judgejust has to enter the jury¶s decision.

o Need to retry case is avoided by waiting until the jury has a verdict to decidewhether the case is jury-worthy.

Legal fiction: way of getting around 7th Amendment to Constitution ± no fact tried by juryshall be reexamined in CT´

WHY second reason, moving party must explain WHY there should be a directed verdict.Doing so BEFORE goes to the jury allows time for the CT/non-moving party to offer moreevidence to cure the defect.

o If lack of evidence on non-moving party¶s part was mistake then the party cancure defect.

o If lack of evidence was b/c no evidence to give then the party does not deservethe jury hearing.



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MOTION FOR A NEW TRIAL ± R ule 59

WHEN:

i. If the jury acted improperlyii. If the judge made an error in admitting or withholding evidence

1. Harmless Error -- Rule 61: if error makes not difference, CT will not

grant a new trialiii. If the verdict is against the weight of the evidence

o federal standard: is when a jury verdict shocks the conscienceo NY standard : is when the jury verdict materially deviates

guard against runaway juries -- no constitutional right to disregard the law in reaching a verdict may be granted on all or some of the issues must be filed no later than 10 days after the judgment CT can open up judgment and take additional information. (see 59(a)).

Motion for a new trial may be based on affidavits

judge can set aside a verdict and order a new trial (on its own initiative)o Thirteenth Juror? Less stringent standard than directed verdict and JNOV

Defense: goes to another jury so the judge isn¶t making the decision, just giving

another juryo Winning Party Appeal: party cannot usually appeal the judge¶s decision to grant a new

trial b/c there was no final judgment which is necessary to appeal in federal CT.Sometimes allow interlocutory appeal from the grant of a new trial.

R emitteur: If the damages shock the conscious, then the CT may force the party to accept the lower

judgment or be subjected to a new trial.

R elief from Judgment or Order: R ule 60Clerical Mistakes ± 60(A):

o CT at anytime of own initiative or

o on motion of any party ando after such notice as the CT order.

R ule 60(b):

y Cts are more liberal in reopening default judgment than other kind

y Fraud by anyone than the adverse party ±± e.g., fraud by a paty¶s own lawyer,codefendant, or 3rd party witness does not come within (3)

y You can go beyond a year (as per 60 (c)(1)) if you have fraud on the court 60 (d)

R ule 60 (b)(4)

y Can be used if court issued a judgment w/out SMJ

y One year limit does not apply (applies only to b(1)(2)(3)

y You can also bring a collateral attack under 60(d)

y Judges lack discretion when it comes to void judgment ±± they must reopen void

judgmentR ule 60(b)(6): can be used in three situation

1. When a party fails to comply with a settlement agreement

2. For fraud cases that don¶t fit within (3)(fraud by an adverse party) ±± by party¶slawyer, codefendant, or a party¶s witness

3. When the losing party fails to receive notice of the entry judgment in time to filean appeal



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APPEALS

Trad. R ule ±± No appeal until final judgment on the merits §1291 -- a final decision grants SMJ to an appellate CT

Rule 23(f) allows immediate appeal of the District CT¶s ruling

Exceptions:

1.

collateral order doctrine: in COHEN, the DC refused to apply a NJ statute demanding theposting of a bond by the pltf to cover D¶s costs if D won; this decision was found to be appealableb/c it was ³too important to be denied review and too independent of the cause itself to requirethat appellate consideration be deferred until the whole case is adjudicated´ (if the dfdt won thecase its statutory right would already have been violated without chance of appellate review);

a. agreement was not found to be immediately appealable and the appellant was forced totry its (expensive) case before appeal

i. requirements:

1. final decision on an issue (not final judgment)

2. decision was not merged into final judgment (it¶s collateral)3. issue appealed must be more important than the policies underlying the

final judgment rule

4.

needs to be a serious and unsettled question5. issue cannot be reviewable at final judgment

2. §1292(b) ±± Interlocutory decisions

R equirement:

a. DC must certify the questiona. CTs do not like to grant interlocutory appeals b/c they do not want to be

reversed ±± not only that the Ct of Appeals has discretion to hear the case or not(another hurdle to overcome even if the DC certify the question)

b. the question involved must be one of lawc. it must be controlling

a. Must be a controlling Q of law (what will decide the case, not something that willnot really decide it ±± the outcome of the trial court decision must be different

i. If you win on appeal A and still lose case b/c of B then not controlling Q1. B/C of so many requirements few litigants get to use this statute

d. there must be substantial ground for difference of opinion re the issuee. an immediate appeal must ³materially advance the ultimate termination of the litigation´

a. typically allowed only in bigger, more expensive cases b/c they cost more andtake up more time (ordinary personal injury or wrongful death suits usually donot qualify ± CARDWELL)

Mandamus §1651 All Writs Act

Usual application is to enforce the right to a jury trial Requirements

1. only ³to confine an inferior CT to a lawful exercise of its prescribed

jurisdiction or to compel it to exercise its authority when it is its duty to doso´

2. only in ³exceptional circumstances amounting to judicial usurpation of

power´3. burden on person asking for it: ³clear and indisputable´4. petitioner will be damaged or prejudiced in a way not correctable on appeal5. DC¶s CT order is clearly erroneous as a matter of law



6. DC¶s error is an oft-repeated error or it manifests a persistent disregard of

FR CP7. DC¶s order raises new and important problems for issues of law of first

impression

o Directed at the CT ± action is brought against the judge

o Focus is on the misbehavior of the judge

Mechanics of appealing

y You always need appellate SMJ

y A final decision or collateral source exception per §1291

y interlocutory allowance per §1292

y 23(f) class cert appeal or

y 54(b) partial judgment AND Proper notice

y filed w/i 30 days (other litigants have 14 days after original appeal tocross-appeal)

o unless appellant is US or action is Mandamus

y must be specific as to the order or judgment appealed from and the partiesto the appeal

original case/judgment is stayed or enforced pretrial conference (not always) oral argument

decision