Civil Procedure OutlineTable of ContentsI. INTRODUCTION TO THE ADVERSARY SYSTEM.....................................................................................2

II. PLEADING............................................................................................................................................3

a. 6 Types of Pleadings........................................................................................................................3

b. Pleading Requirements....................................................................................................................3

o Validity of the Claim (Access Now, Rule 8, Rule 12).....................................................................3

o Allocation (of the burden) (Gomez).................................................................................................4

o Specificity of Complaint (Twombly).............................................................................................4

o Consistency of complaint (FRCP 8(d)(3); McCormick)..................................................................5

o Answers (Fuentes; Rules 8, 12, 13, 41)........................................................................................5

o Amendments (FRCP 15; Zuk).......................................................................................................5

o Sanctions (FRCP 11; Zuk)..............................................................................................................5

III. REMEDIES............................................................................................................................................6

a. Rule 65: Injunctions and Restraining Orders....................................................................................6

b. Injunctions (Weinberger).................................................................................................................7

c. Costs and Fees (Evans; see also Marek)...........................................................................................7

d. Right to Counsel (Lassiter)...............................................................................................................7

IV. JURISDICTION - PERSONAL..................................................................................................................7

To assert jurisdiction generally:.......................................................................................................7

a. Consent/Presence (Pennoyer; Burnham)........................................................................................8

b. Minimum Contacts (Int'l Shoe)........................................................................................................8

c. Minimum Contacts + (WW VW; Burger King; Asahi)........................................................................8

V. JURISDICTION – SUBJECT MATTER (Mas v. Perry)................................................................................9

c. Congressional statutes conferring subj. matter jurisdiction to federal courts...............................9

Citizenship.............................................................................................................................................10

Federal Question Jurisdiction................................................................................................................10

VI. PRETRIAL PROCEDURE.......................................................................................................................10

Rule 26...................................................................................................................................................10

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Other Rules:...........................................................................................................................................11

a. Discovery (Rules 26-37; Upjohn; Hickman; Ager; Vincent)............................................................11

Attorney/Client Privilege (Upjohn):...................................................................................................12

Work Product (Hickman):..................................................................................................................12

Experts (Ager)....................................................................................................................................12

o How to consider whether expert was actually retained/specially employed (Ager):.................13

b. Summary Judgment (Rule 56; Adickes, Celotex; Arnstein)............................................................13

c. Settlement (Rules 16,68; Koethe; Marek v. Chesny)......................................................................14

VII. TRIAL..................................................................................................................................................15

a. RIGHT TO JURY TRIAL (7th Amend; American Life Ins.; Beacon; Chauffeurs; Atlas).......................15

b. SELECTION OF TRIER OF FACT........................................................................................................16

Discrimination against potential jury members (Currie; Batson; Kiernan; Edmonson)......................16

Peremptory Challenge Standard (Purkett; Hernandez).....................................................................18

Judge Recusal (Liljeberg; Caperton)...................................................................................................18

c. CONTROLLING THE JURY (Rules 49-51; 59; Simblest; Tanner; Spurlin; Sioux City)........................19

MOTIONS DISPOSITIVE OF CASES......................................................................................................20

Standard on Appeal...........................................................................................................................21

d. BENCH TRIALS (Anderson).............................................................................................................22

VIII. RELIEF FROM JUDGMENT AND APPEAL (Rule 60; Ackerman)............................................................22

Finality of judgments (Rules 54, 58; Cox; Digital Equipment; Kerr)....................................................23

IX. COLLATERAL EFFECTS OF A JUDGMENT.............................................................................................24

Res Judicata (Moitie, Davis v. Dart; Parklane)....................................................................................24

I. INTRODUCTION TO THE ADVERSARY SYSTEMa. In The Interest of BGC :

o Advocate for clientb. Seven weirdest things about American Civil Procedure

o Remedies:o Damages (how much money we value certain things)o Injunctions (enjoining behavior)

o Class actions – ability of one person to sue on behalf of all parties in similar situationo Overlapping courts – 50 state court systems and federal with overlapping jurisdictiono Discovery – most intrusive investigation of facts in the world

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o Experts – paid witnesses, not picked by the courtso Juries – use of lay people to decide disputed factso Elected judges in state system

II. PLEADINGa. 6 Types of Pleadings

o Complaint – filed by Po Answer – filed by D in response to Complainto Third Party Complaint – D brings 3rd party into action

o Answer – 3rd party responds to D's complaint with an Answero Counterclaim – D files complaint against P with its own claimso Reply – P's reply to D's counterclaimo Cross claim – D sues D or P sues P

[joinder: under notice pleading, allows party to sue more than 1 D in the same complaint]

b. Pleading Requirementso Three required elements:

o Short and plain statement of grounds of court's jurisdictiono Short and plain statement of the claim showing pleader entitled to reliefo Demand for relief

o Rule 8 : GENERAL RULES OF PLEADINGo Claim for relief- short and plain statement for jurisdiction, " " " " of the claim

showing that pleader is entitled to relief, and demand for relief sought.o Defenses

1A. Responding to a pleading, party must state defenses to each claim1B. " " " " admit or deny allegations2. Denials respond to substance3. General denial- all; specific- any one4. Denying part- admit what claims are true in good faith5. Lacking knowledge or information- like denial6. Failing to deny is admittal

o Affirmative defenses must be stated in response to a pleadingo Rule 55 : DEFAULT, DEFAULT JUDGMENT

o (a) Entering a Default. – When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.

Can be set aside for "good cause shown"o (b) Entering a Default Judgment. – this is actual judgment, is ruling on the

merits with res Judicata effectso (remember Pennoyer)

oValidity of the Claim (Access Now, Rule 8, Rule 12)o Rule 12: DEFENSES AND OBJECTIONS…(etc)

o 12(g) – can't make multiple separate motions under this rule – must make any motions under Rule 12 that are eligible to make at the same time.

o Access Now : Rule 8; 12(b)(6) Rule 12(b)(6): "failure to state a claim upon which relief can be granted"

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"Dismissal of a claim is appropriate when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" (AKA: appropriate when take the facts in light most favorable to non-moving party and there still is no claim)

Be sure to read carefully language of a statute under which you are bringing a cause of action (here, Ps failed to show that the internet was a place of "public accommodation" – they just seemed to assume it was when writing the complaint)

In order to dismiss on a 12(b) motion, you have to assume all facts as alleged in complaint are true

P can immediately appeal grant of a 12(b)(6) motion, and app court must assume all facts in complaint are true

But if motion denied, D must file answer under Rule 12(a)(4)o FRCP: a 12(b) motion “must be made before pleading if a responsive pleading is

allowed” (e.g. before filing an Answer to the Complaint)oAllocation (of the burden) (Gomez)

o Things that determine allocation: Whether burden is a material element of Plaintiff’s COA (Gomez) Language of statute ("unless…" could mean it's an affirmative defense) Access to evidence Public policy Probability (e.g. Ds must plead statute of limitations b/c is so rarely an

issue)o Gomez : Rule 8(a) and (c)

Elements of a cause of action must be proved by P Here, the statute didn't say P had to prove D acted in bad faith – and

Qualified Immunity is a defense (b/c D has more knowledge of its existence)

So, D's burden to plead qualified immunityo RULE 8(c) lists 19 affirmative defenses that must be pleaded by a Do Burden of Pleading : typically dictates burden of proofo Burden of Proof – 2 sub-categories:

Production : judge determines if party has found enough evidence to allow claim to go to jury

Persuasion : if evidence is equally persuasive, party with burden of persuasion usually loses (see, generally, Adickes)

o Specificity of Complaint (Twombly)o Twombly - Rules 8(a); 12(b)(6)

"plain statement" required by Rule 8 requires some specificity 4 diff stds. Asserted in the case:

Pleading must call for "enough fact to raise a reasonable expectation that discovery will reveal evidence…" (Sherman Act)

"reasonably founded hope" plausibility std – "plausible on its face" "fair notice" (Ericsson v. Pardus) – rule 8 language

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Footnote 8: “We do not apply any heightened pleading standard… on certain subjects understood to raise a high risk of abusive litigation, a plaintiff must state factual allegations with greater particularity than rule 8 requires” (under Rule 9).

oConsistency of complaint (FRCP 8(d)(3); McCormick)o McCormick - Rule 8(d)3

P brought suit b/c hubby killed by Kopmann; 2 counts: alleged either negligence by Kopmann or violation of Dram Shop Act by bar owner

8(d)3 – A P may plead inconsistent counts in the alternative when facts uncertain

Liberal rules of joinder – 2 Ds, 2 totally diff theories of recoveryoAnswers (Fuentes; Rules 8, 12, 13, 41)

o Rule 41 : Voluntary Dismissals 41(a)(1): P may file notice of dismissal, without prejudice (no res Judicata

effects), so long as does so before D files answer This is only without prejudice once – don't want P harassing D with

mult suits on same claim 41(a)(1)(ii): P can also dismiss by stipulation of the parties – no limit on

how many times P can do this without prejudiceo Fuentes: Rules 8(b); 12, 13

2 minor kids killed by driver, evidence showed D's intoxication and that children were thrown 80 feet

RULE: If a matter is not at issue, it can't be presented at court (D admitted liability before trial)- trial was only to determine damages

However, in this case they said evidence didn’t prejudice D so the holding stood.

Advantage of admitting guilt: You don’t need prejudicial evidence to show it, might lessen the damages

oAmendments (FRCP 15; Zuk)o Liberal pretrial amendment policyo Rule 15: AMENDED AND SUPPLEMENTAL PLEADINGS

(a)before trial(1) of course(2) otherEx. When justice requires-- and it usually requiresEx. Fuentes (Admitted guilt 1 day before trial)

(b) during/after trial Possible to amend pleadings at trial FRCP designed to move away from pleadings and

towards discovery to resolve disputes(c) relation back

o Sanctions (FRCP 11; Zuk)o Rule 11: Signing pleadings, motions, and other papers; representations to the

court; sanctionsa. Signature verification

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b. Representations to the court (that certain things are true) Not presented for improper purpose Argument for extending (nonfrivolous) Facts based on evidentiary support Denial of fact

c. Sanctions 1. In general 2. Motion for sanctions

Safe Harbor: File motion and other party has 21 days to withdraw it or appropriately correct it

If it's corrected, court never sees it, but you pay attorneys' fees, etc.

3. By court (Zuk) 4. Nature of sanctiond. Doesn't apply to discovery. Not meant to be punitive – deterrent

o Zuk : Rule 11 Family therapy sessions videotaped and transcript was in books- Atty

claimed book infringed video copyright by transcript use. Did not make a reasonable inquiry into the law (statute of limitations,

where was infringement in previous 3 years, no fact inquiry) "Safe Harbor Provision" means most Rule 11 cases don’t get to court Not guilty of § 1927 for multiplying proceedings unreasonably &

vexatiouslyIII. REMEDIES

Plenary (final) remedieso Damages - $$ - lawo Injunctions - equityo Declaratory judgments (created by statute – usu. considered equitable, but to an extent

is also included in damages, etc) Provisional (available before judgment is rendered)

o TROo Preliminary injunction

Costs of litigationo Attys feeso Costs

a. Rule 65: Injunctions and Restraining Orderso Rule 65

o Preliminary Injunctions longer duration than TRO: Pending final disposition of the case Adverse party must have notice

o Temporary Restraining Orders (TRO) Very limited duration – usu. 20 days max Can be granted ex parte w/o notice to other side (exceptional

circumstances) P.120 FRCPo "Security" bond

Must be posted to the court in order to have your injunction

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o Content/scope of injunctionso Rule 64: Seizing a person or property

Replevin, Attachment, Garnishment, Arrest

b. Injunctions (Weinberger)o Romero-Barcelo v. Weinberger : Federal Water Pollution Control Act and navy

bombing- Puerto Rico doesn’t want navy bombing their island.o They want to enjoin navy until they get a permit

o Standards for Injunctions: o Irreparable Injuryo Inadequate legal remedies ($ can't make P whole)o Public consequenceso Balance harm to partieso Discretion in courto Likelihood of success on the merits (Provisional- TRO)

Method of enforcement for injunction- you're in contempt of the court. Injunction must be dated, specify behavior and which parties it applies to, to give people

notice of what it contains and that they'd be in contempt if they don't follow it. (Rule 65) Courts prefer damages over injunctions b/c injunctions are harder to enforce, and court has

to do itc. Costs and Fees (Evans; see also Marek )

o Costs are typically narrowly defined as only including things like filing fees, jury fee, mandatory witness fees (see § 1920 – defines costs)

o Evans v. Jeff D – Class action on behalf of kids in orphanage – Ps' atty was representing them for free (appointed)

o Ds proposed settlement agmt offering all injunctive relief requested, but was contingent on Ps signing waiver of any claim to fees and costs

o 42 USC § 1988 : Civil Rights Attys Fee Awards Act says court has discretion to award the prevailing party a reasonable attys fee in enumerated civil actions

o Ps lawyer asked court to approve settlement except for waiver provision – RULE: court has power to refuse to award fees and if settlement conditioned upon not paying fees

o 3 methods of paying fees: hourly, contingent (more common now), retainero American Rule : each side pays own attys fees regardless of winner, with exceptions

mandated by statute (e.g. civil rights cases), where loser pays winner'sd. Right to Counsel (Lassiter )

o Lassiter : Woman's parental rights were terminated while she was in jail. o RULE: Indigent has right to appointed counsel only when litigant may lose his

physical liberty if he loses the litigation (usually imprisonment)o Eldridge factors: parent's interest is important, State shares interest in correct

decision, and complexity of proceeding and incapacity of uncounseled parent could be great enough to make risk of erroneous deprivation of parent's rights insupportably high.

o In this case, they say it wouldn't have made a difference

IV. JURISDICTION - PERSONAL

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To assert jurisdiction generally: (mainly as applies to state courts, but can work for fed. Courts as well – they apply the rules from the state in which they sit):

o Must be permitted under due process ("fair play and substantial justice") e.g. must be adequate notice: notice reasonably calculated to actually give notice to

the defendanto Subject matter and personal

Personal jurisdiction requires: (presence and service) OR (consent) OR (domicile) If no presence, have to look to other factors (below cases):

a. Consent/Presence (Pennoyer ; Burnham )i. Under Pennoyer:

1. State court can assert personal jurisdiction when:o Physical presence and served OR

i. Can't be constructive when involves a non-citizen (unless had attached property first and put up signs to that effect ?)

o Consento Owning land not enough to assert personal jurisdiction - would

have to actually sue on the land to assert jurisdiction (attach the land in the start of the suit)

ii. Burnham : Presence and service in a jurisdiction are sufficient to create personal jurisdiction

b. Minimum Contacts (Int'l Shoe )i. When are only minimum contacts, the claim must be related to the specific

contact (specific jurisdiction only)ii. Under WA v. Intl Shoe

1. Consistent and systematic activities in the state ("minimum contacts")1. Casual and isolated contacts aren't enough (unless the claim is

directly related to the isolated contact – then is specific jurisdiction)

2. Where D has substantial contacts with the state, then the state has general jurisdiction over the D

2. Certain minimum contacts with the forum state, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice

3. Focuses specifically on relationship between forum state and D's actionsc. Minimum Contacts + (WW VW; Burger King; Asahi)

i. WW VW v. Robinson 1. Minimum contacts

o Foreseeability (which is considered part of minimum contacts)2. Forum state's interest3. P's interest in convenient and effective relief4. Intrastate judicial system's interest in effective resolution5. Shared interest of several states in fundamental social policies

ii. Burger King Long arm statutes : before even look to minimum contacts, must first have

statutory authority for the forum to assert jurisdiction

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"fair warning" requirement satisfied if D has purposefully "directed" his activities at residents of the forum

o Court found continuous but limited activity here supported specific jurisdiction

FIRST look to find minimum contacts1. Look for purposeful direction/availment and foreseeability as

well (lack of presence can't defeat personal jurisdiction if this is the case)

2. Fair warning requirement fulfilled if D purposefully availed himself, even if didn't consent

3. THEN look to fair play and substantial justice To determine this, look to other parties' interests (WW VW and BK std):

1. Burden on the D2. Forum state's interest3. P's interest in convenient and effective relief4. Interstate judicial system's interest in effective resolution5. Shared interest of several states in furthering fundamental social

policiesiii. Asahi

Minimum contacts - must be based off D's actions, not just a consumer's unilateral act of bringing D's product (also because these consumer actions not foreseeable)

1. So contacts must be purposefully directed at the forum state (or purposeful availment)

Reasonableness (Burger King test) but adds international citizen issue to reasonableness test

iv. Yahoo Zippo doctrine – if website is active (sells stuff), can create jurisdiction

wherever a reader reads it – so France got jurisdiction over yahoo for that. French sued Yahoo and sought enforcement of judgment in CA. Yahoo sued

them in CA for declaratory judgment that the judicial enforcement of French court order in US violates 1st amend. CA court decided it did have personal juris. Over frenchies b/c seeking to enforce their suit was an intentional act aimed at forum state

o So courts are more lenient as to personal juris. when declaratory judgment is remedy sought, not damages, e.g.

V. JURISDICTION – SUBJECT MATTER (Mas v. Perry)a. All Federal Courts are of Limited Jurisdiction (whereas state courts usu. have general)

o Art. III § 2- gives subject matter jurisdictiono 9 different subject matter jurisdiction grants to federal courts:

o Federal questiono Ambassadoro Admiralty-navigable waterso US party to lawsuito State v. stateo Citizen of one state suing a different state o Citizens of diff. states suing ea/o (diversity)

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o Citizens of one state v. land grants of other states (?)o Citizens of state (or State) v. France (or Citizens of France)

b. Can't bring a suit in federal court if Congress didn't authorize it via statutec. Congressional statutes conferring subj. matter jurisdiction to federal courts:

o 28 USC § 1251: original jurisdictiono §1330: foreign states as partieso §1331: federal questiono §1332: diversityo §1333: admiraltyo §1345: US plaintiffo §1346: US defendant

d. § 1332: Diversity of citizenship; Amount in controversy; Costso (a) “District courts shall have original jurisdiction of all civil actions where the matter in

controversy exceeds the sum or value of $75,000 exclusive of interests and costs and is between:

o (1): citizens of different stateso (2): citizen of a state v. citizen of foreign stateo (3): citizens of diff. states with foreign partyo (4): foreign state (P) v. state citizens

e. Mas v. Perry o Married couple in LA - hubby is French, wife is MI resident, their landlord is a Peeping

Tomo sue in federal court; question is whether there is complete diversity

o Domicile can only be changed by: Taking up residence in a different domicile; with Intention to remain there (drivers' license, registering to vote, etc can go

to showing this intent)o Until one acquires new domicile, domicile is last one (or where you were born)

Citizenship Citizenship determined at time the complaint is filed, even if P decides to then leave the state

o Why? - b/c otherwise ppl could affect diversity jurisdiction during the suit (either defeat or allow)

o Why not at time of dispute? - b/c Ps could move to create diversity (?) § 1332(c)(1) : Citizenship of Corporations exists in:

o Principle place of business; ANDo Place where incorporated

Must have complete diversity between both those places and the other party to bring diversity suit in fed court involving a corporation

Federal Question Jurisdictiono e.g. Constitutional law issue, arising under a U.S. Statute

State law cause of action can be joined with federal question cause of action if both arise out of the same event

Would be decided by fed court Leads to strategizing in framing a complaint in order to get into the court

the party wants NOTE: Erie Doctrine: Federal procedure is used even when deciding state law in fed. courts

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VI. PRETRIAL PROCEDURERule 26

a. Required disclosures (In some ways contradictory to adversary model)1. Initial2. Experts (to be used at trial, accompanied by written report)3. Pretrial

b. Scope and limits 1 and 2- "any nonprivileged matter that is relevant to any party’s claim or defense”

Good cause (Have to show if it doesn’t seem relevant to subject matter)- subject matter proportionality (used to be relevant to subject matter which would lead you to relevant info)

3. Trial prep materials(A) Documents and tangible things(B): “Mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” (Hickman ) (C) Previous Statement

4. Experts (Ager)5. Privilege (Upjohn )

c. Protective orders (procedure for asserting and defending against privilege)d. Timing and sequencee. Supplementationf. Conference (largely by magistrate judges)g. Signature (echoes Rule 11- invokes sanctions on person who signs under Rule 37)

Pretrial

Other Rules:30. Oral depositions33. Interrogatories34. Documents/tangible things35. Physical/mental exams

1. Can only request these from parties to litigation2. Court requires showing of good cause before will force a party to submit to an exam

36. Request for admission (RFA)1. If party doesn't respond to RFA within 30 days, is deemed an admission

37. Motion to compel/ Sanctions45. Can subpoena non-parties to bring all relevant docs to a deposition for inspection

a. Discovery ( Rules 26-37; Upjohn; Hickman; Ager; Vincent)o Methods--> Pre-2006

o Electronic discoveryo Privileged matters: Attorney Work Producto Lawyer's Roleo Almost every ruling in discovery matters is unappealable – are decided by trial judges

o When not appealable, judges tend not to write opinionso To the extent discovery is taught, focus is almost always on appellate decisions about

privilege- what matters aren't discoverable. o Lawyers will often submit to contempt to protect privilege

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o UpJohn Co. v. US : o IRS wants questionnaire about bribes to foreign govts that general counsel (GC)

of company required all company workers to answer; GC refused to produce them due to A/C privilege

Court held that A/C privilege applies to all employees, not just upper-level management (the "control group")

o Rule 26(b)(3) –Trial preparation materials o Fed. Rules Evidence 501: privileges(what may or may not be disclosed as

evidence)

Attorney/Client Privilege (Upjohn):IF:Communication (even to establish potential relationship)Between attorney and clientin confidencefor the purpose of legal advice [And not waived-- crime/fraud exception- SBH]THEN: No Discovery

a) Exceptions: Atty has option [not duty] of waiving privilege in crime/SBH/perjury situation

o Hickman v. Taylor : o Tugboat sank, 5 of 9 ppl drowned, D's atty interviewed the survivors; Ps atty

requested the interviews in interrogatories, D atty claimed atty work product Court upheld the privilege as work product (showed his mental processes

and impressions) b/c were affidavits and P's atty could have interviewed them himself

Work Product (Hickman):RULE: If: Documents/Tangible Things Prepared in anticipation of litigation/trial by party/representativeThen: Mental processes/impressions and is work product sometimes even mental impressions from notes not related to the specific litigation are even protectable

a) Exceptions to Work Product privilege : Rule 26(b)(3 ): Substantial need and undue hardship (not present in

Hickman) even where work product isn't A/C privilege, usually still not discoverable A/C is higher standard of privilege

o Saigon Air Crash o Things to keep in mind when reading docs (in litigation):

Who doc was prepared for Standard of relevance in choosing what facts to present What's legal use of document? What has been omitted? What should you infer from its omission?

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Experts (Ager)o Ager v. Jane Hospital (fucked up baby)

o Rule: 26(b) – Experts retained or specially employed Only expert names opposing party can get are those of testifying experts

who write expert reports (can be deposed) – Rule 26(b)(4) Non-testifying experts who are retained are only discoverable as to their

names (and maybe opinions) where opposing party shows exceptional circumstances

o How to consider whether expert was actually retained/specially employed (Ager):

Manner in which consultation was initiated Nature, type, extent of information or material provided to or

determined by the expert in connection with his review Duration and intensity of the consultative relationship Terms of the consultation, if any (e.g. payment, confidentiality, etc.)

Syverud says, being "retained" usually requires there to be a contract – not just when a party talks to the person on the phone

o Vincent (Sexual harassment case)o Rule 35 : Need good cause for mental and physical exams – if claim emotional

distress in your complaint, you put your mental status at issue, which = good cause

o P's atty not allowed to be present at medical exam b/c exam could then be less accurate, would be more like deposition, etc.

o Spaulding v. Zimmerman o Shows conflict in ethics and expert's duty to his paying client –

Expert Dr. knew P had an aneurism, prob caused by the incident at issue, didn't tell P about it, and P agreed to lower settlement amt. – discovered aneurism later

b. Summary Judgment (Rule 56; Adickes, Celotex; Arnstein)o If there’s a factual dispute on a 12(b)(6) motion, it gets treated as a SJ motion. o Adickes v. S.H. Kress & Co .

o 1964- White teacher, black students, Kress store restaurant; Adickes was refused service and arrested when leaving on charge of vagrancy

o Charges conspiracy btw Kress and police in order to get “under color of state law” for §1983 claim.

o Standard for SJ: No genuine issue of material fact AND the moving party is entitled to judgment as a matter of law. (Rule 56(c))

o D moves for SJ, DC granted- facts must be viewed in light most favorable to P, D failed to close possibility of conspiracy, S Ct reverses and remands

o D did not meet initial burden- moving party must show no issue of material fact- very high burden.

o Issue decided: whether moving party carried its initial burden of production by producing affirmative evidence negating an essential element of the non-moving party's claim (i.e., did Kress, who moved for SJ, produce evidence that there was not a conspiracy?)

o Celotex Corp v. Catrett

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o P’s husband died from asbestos, sued 15 corps- they filed SJ saying P failed to show causation from their products

o When burden of persuasion is on non-moving party, the moving party can rest on its pleadings.

o Issue decided: whether moving party had carried its burden of production by showing that the nonmoving party didn't have enough evidence to carry its ultimate burden of persuasion at trial (i.e., did asbestos co., who moved for SJ, show that P didn't have proof her hubby was exposed to and poisoned by their asbestos specifically? i.e. did she show proximate cause?)

o Only overturned Adickes when non-moving party has burden of proof (moving party can rest on pleadings) and for defining what an adequate motion for SJ is under 56(e)

o Practical application of SJ cases:o What issue is the subject of the summary judgment motion?o Is the issue allocated to the moving or the non-moving party?

Moving party : Higher burden. Adickes is still good law- Moving party must show evidence

Then non-moving party must produce evidence that there is a genuine issue of material fact (i.e. witness testimony showing inferences could be made to create an issue of fact – see Arnstein)

Non-moving party : Under standard in Celotex, show non-moving party has nothing with which to meet her burden of persuasion (If party with burden doesn’t prove element, moving party can get SJ without filing additional papers)

Then non-moving party can oppose motion for SJ under 56(e) by documents listed in 56(c) (affidavits, no hearsay, etc.)

o Is there a genuine issue of material fact sufficient to give the issue to the jury? E.g. direct witness testimony to the contrary

o Judge’s standard: Will use Rule 50 standard when looking at evidence - if find that a "reasonable jury would not have sufficient evidentiary basis to find" for the non-moving party, then moving party is entitled to judgment as a matter of law

o Judge prob won't follow the Arnstein rule that SJ should be denied when "there is the slightest doubt as to the facts." Too low a std.– follow Reeves (below)

o Rather, if non-moving party established that there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," (Reeves v. Sanderson) SJ cannot be granted.

o Arnstein v. Porter o Arnstein claims Porter copied his music; Arnstein sold sheet music, and says

that Porter stole other music; needs to show access and similarities. o Issue of material fact whether Porter infringed on copyright because jury could

infer copyright infringement if music is similar and D had accesso Where a jury can draw reasonable inferences when direct evidence is lacking, it

is an issue of material fact. (no direct evidence required- credibility of witnesses is jury issue)

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o File SJ on weakest component of opponent’s case so they have to produce evidence supporting that claim to oppose the SJ motion.

c. Settlement (Rules 16,68; Koethe; Marek v. Chesny)o Rule 16 Pre-Trial Conference- in 1983, Settlement negotiations imposedo Kothe v. Smith

o Medical malpractice case- Judge Sweet says $20,000 is reasonable settlement; I’ll sanction you if you don’t take it now & then take it later. (Public demand was $50,000 and public offer was $5,000). Settled after 1 day of trial.

o Judge Sweet sanctions D for costs of 1 day of trialo Sanctions on failing to settle are not allowed because they are coercion and not

encouragement. o Marek v. Chesny

o Rule 68(d): If the judgment (verdict+ P’s pre-offer costs) that the offeree (plaintiff) finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs (both parties’ costs) incurred after the offer was made.

o Assume Plaintiff wins verdict: Absent rule 68, what is judgment?

Verdict + all of P's costs If rule 68 applies, what is judgment?

Verdict + P's pre-offer costs- D's post-offer costs (which will not include atty's fees because theyre not the prevailing party-D recovers some of costs even though they’ve lost?)

When does rule 68 apply?When offer is greater than or equal to verdict + P's pre-offer costs

When does costs include atty's fees? When the underlying statute says so

o D discovered that costs in Civil Rights Costs act says “attorney’s fees as part of the costs.”

o Ordinarily, each side pays fees, winner pays loser’s costs. o Injunctions- must be comparing inj. To inj. If settlement offer was more

favorable, then P must pay post-offer costs (probably their own)

VII. TRIALa. RIGHT TO JURY TRIAL (7th Amend; American Life Ins.; Beacon; Chauffeurs; Atlas)

o 7th Amendment: “In suits at common law, where the value in controversy shall exceed 20 dollars, the right to a trial by jury shall be preserved.”

“And no fact tried by a jury shall be otherwise re-examined by any court of the U.S. than according to the rules of common law.”

o What are suits at common law?o What exactly is preserved? (Procedure? Who serves? Unanimity?)

Jury not guaranteed in Constitution in state civil cases, but is guaranteed in state criminal cases by 14th amendment due process.

o American Life Ins. Co . v. Stewart (OVERRULED BY BEACON) o Ins. Co. claimed policy was procured by fraud: 2 suits

Ins Co (P) v Stewart (D)

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o Sued in equity seeking cancellation of K before incontestability period began- EQUITY

(Counterclaim) Stewart (P) v Ins Co (D)o Breach of K, damages- LAW

o Stewart sued in fed ct because 7th amendment wouldn’t apply in state ct (and American sued in fed court b/c in dust bowl nobody in state court would find for Ins. Co.)

o Judge is entitled to exercise discretion about which case should go first if there are cases at law and equity with common factual issues. Abuse of discretion standard applies

o If equity case is tried first, factual findings would bind subsequent case at law

o In areas of overlap of law and equity, there is no right to a jury trial (matter of grace)

o Beacon Theaters , Inc. v. Westover o P Fox claimed Beacon's K with movie producers violated Sherman Antitrust Act-

Equity for declaratory judgment and injunction preventing D from filing antitrust suit. Beacon filed counterclaim requesting remedy at law.

o In hybrid actions involving equitable and legal claims, legal claim must be tried first, with right to a jury. (Now both claims can be in one court)

o Chauffeurs v. Terry (Truck drivers v Union)o When Congress creates a new cause of action, is there a right to a jury trial?

Not clear whether COA is at law or equity.o How to determine if jury trial is allowed:

Issues (Nature of COA) Nature of Remedy (More important)

o Backpay sounds like damages because it’s not restitution from employero Atlas Roofing Co . v. OSHA

o Admin trial imposed $600 fine; Roofing Co wants jury trial.o Ct says no right to jury trial when

government sues in its sovereign capacity to enforce PUBLIC RIGHTS created by statute Involving civil penalties.

b. SELECTION OF TRIER OF FACTo Jury selection

Source list for jurors (voter registration, usually) Master List—Summons to jurors Array (in the waiting room) Venire (group in the court room)—Voir Dire

Challenges for cause Peremptory challenges

Panel (actual jury that sits and decides the case)o Goals of jury selection:

o Decision-maker to be “Fair cross section of the community” (6th Amendment)o Eliminate extremes of biaso Party involvement in selection (not imposed from above by gvt)

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o Individual decision-maker protected from illegal discrimination

Discrimination against potential jury members (Currie; Batson; Kiernan; Edmonson) The Jury Selection and Service Act, 28 U.S.C. §1861 & 1862: All litigants in federal

court entitled to trial by jury shall be entitled to a jury panel selected at random from a fair cross-section of the community. No citizen shall be excluded from jury service… on account of race, color, religion, sex, national origin, or economic status.

Challenges for Cause: Bias/prejudice will be presumed where family/business relationship with

party; employee of corporate party; witness with personal knowledge of disputed events

o People v. Currie (2001)o Criminal case- D contends trial court erred in denying motion to quash master

jury list and jury venire- not a cross section of communityo Prima facie violation of 6th amendment:

Group alleged to be excluded is a distinctive group Representation in venires isn’t fair and reasonable in relation to the

number of such persons in the community Underrepresentation is due to systematic exclusion of group in jury

selection processo Kiernan v. Van Schaik (1965)

o Slip & fall at gas station- judge refused certain voir dire questionso Parties have due process right to ask relevant questions in voir direo Ability to challenge for cause is necessary and important righto See FRCP 47: Selecting jurors.

Strouder (1880)a) Purposeful exclusion of members of defendant’s race denies equal protection

(at source list, master list, and array) Swain (1965)

a) Applied exclusion to voir dire stage- Required showing that prosecutor systematically, across all cases, excludes jurors on the basis of race

o Batson v. Kentucky (1985)o Prosecutor excludes blacks from jury panelo Can’t use peremptory challenges to eliminate people that are the same race as

the defendanto Prima facie case of racial discrimination:

1. Defendant must show he’s a member of a cognizable racial group and that prosecutor exercised peremptory challenges to remove from venire members of defendant’s race

2. Defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection process that permits “those to discriminate who are of a mind to discriminate”

3. D must show that these facts and any other relevant circumstances raise an inference that the prosecutor used the challenge to exclude veniremen from the jury on account of their race.

Strategy : Ask more questions, gives more pretext for discrimination.

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Court will consider all relative circumstances to determine whether you can infer discrimination (Prosecutor’s ?s and statements)

Burden shifts to state to come forward with a neutral explanation.o JEB

o People cannot be excluded because of gendero Edmonson

o Party needs to provide neutral reason for peremptory challenge- Powers v. Ohio says don’t need to be same race as D

o Edmonson extended race discrimination through peremptory challenges to prior litigants; it is still “state action” because court upholds discriminatory peremptory challenges

o State v. Davis - cert denied by US Sup Ct., MN SC upheld peremptory challenge to Jehovah’s witness (people can be excluded from jury bc of religion)

o seems to show that S. Ct. may not be concerned that it's unconstitutional to challenge jurors based on religion at least in state cases?

o However, religious groups are protected for sure under Equal Protection Clause, so discriminating against religious groups in jury selection is unconstitutional

o State v. Fuller - ex of a state court holding that religion-based peremptories are unconstitutional

Peremptory Challenge Standard (Purkett; Hernandez) Peremptory Challenges considered part of Due Process and given a lot of deference

– typically aren't questioned However, when party's peremptories are challenged for being discriminatory (under

modified version of Batson test), if preempting party can show a neutral reason for the peremptory challenge, judges are allowed to accept even silly or ridiculous "neutral" reasons (Purkett v. Elem – trial court chose to believe "hair was too long" was an ok reason – S. Ct. upheld this) (Hernandez – ok to challenge juror when concerned didn't have good enough grasp of English)

Judge Recusal (Liljeberg; Caperton)o 28 USC §455

(a) any…judge…shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned(b) he shall also disqualify himself in the following circumstances

(1) personal bias/personal knowledge(2) financial interest

o Judge refusal to recuse (pretrial) can be immediately appealed as a collateral ordero Liljeberg v. Health Services Acquisition

o Judge has financial interest in university; university would benefit from judgment in favor of Liljeberg; Judge received letters to board but didn’t open them until after judgment (but attended a board meeting)

o HAI moved for relief from judgment under Rule 60(b)(6), (which allows courts to relieve a party from final judgment), b/c judge should have recused himself

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o Court found that he should have known of his financial interests, and after opening letters, he should have recused himself before the decision came final

o Two issues to determine whether judgment was properly vacated: Is § 455a violated based on appearance of partiality?

o If impartiality could reasonable be questioned, scienter is not conclusive

Is relief available under 60(b) when violation was not discovered until after the judgment became final?o If motion made within reasonable time, party can be relieved, as

long as relief doesn’t fall under 60(b)1-5—must be b6: “any other reason that justifies relief.”

o To determine whether judgment should be vacated: Risk of injustice to parties in the particular case Risk that denial of relief will produce injustice in other cases Risk of undermining public’s confidence in judicial process

o Caperton o WV S Ct judge received campaign contributions indirectly through advertising

from a party in a suit he was deciding o Is there probability that judge has financial interest in one party winning or

losing?o Duty for judge to sit- need actual bias not appearance of bias- presumption of

honesty and integrity. Popular opinion is important but judge should not make decisions based on public’s opinion.

o §455a- appearance of bias and actual bias standards both present.

c. CONTROLLING THE JURY (Rules 49-51; 59; Simblest; Tanner; Spurlin; Sioux City)o Ways to take case from jury:

Rule 50a- directed verdict (Judgment as a matter of law)- before jury deliberation

o Reasonable jury would not have evidentiary basis to find for non-moving party

Rule 50b- JNOV (renewed motion for judgment as a matter of law)- after verdict

o “No legally sufficient evidentiary basis for a reasonable jury to have found for” the verdict winner.

Under federal rules, you must make a 50a motion to make a 50b motion later (because of 7th amendment)

o Function of jury: Decide which witnesses to believe Draw inferences Apply law to facts

o Function of judge: Which witnesses testify Whether expert witnesses are qualified Whether witnesses are competent

o Special verdicts- jurors must answer questionso Simblest v. Maynard

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o Blackout- accident btw car and fire truck, P says there were no lights or sirens; all other witnesses either saw light, heard sirens, or both.

o 50a motion was denied, jury verdict for P, 50b motion granted (JNOV)o 50a and b- evidence in light most favorable to non-moving party; standard is

not just evidence favorable to P but also uncontroverted evidence against Po Jury decided P was a credible witness; Judge deemed him an incompetent

witness (role of judge: competency of witness); therefore 50b motion appropriate

o Sioux City & Pacific Railroad Co . v. Stout o Attractive nuisance railroad turntable- no factual disputeo Inferences from facts or its application to the law can still be reason to have

jury decide facts- unless evidence produced can justify only one set of conclusions

o Rule 59: New Trialso Against the “great weight” of the evidenceo Typically evidentiary or procedural (failing to permit discovery, bribery, etc)-

PREJUDICIAL errors either affecting results or procedural integrityo Sometimes mistakes are recognized during trial and they are so harmful that a

new trial will be granted immediately- Mistrialo *If claiming procedural error, the party must have objected to that alleged

error when it occurred!*o Tanner v. US

o Convicted mail fraud appealed because of drunk, stoned, drugged jurorso Court refuses to grant new trial because juror testimony is inadmissible to

impeach a verdict (FRE 606b): Testimony is admissible only if there’s an external influence on jury

o Sanctity of jury deliberations would be irreparably harmed if they could be questioned after the verdict

o After Tanner, jurors can’t testify about internal influences at ANY point in the trial, not just during deliberations

o Spurlin v. General Motors Corp . o Brake failure of school bus- bus had single hydraulic braking system, no

emergency brake; jury found for P, D files JNOV or in alternative, new trial- judge granted JNOV.

o Appellate Ct reversed JNOV, said was substantial evidence of such quality and weight that reasonable jurors could have reached different conclusions.

o Jury verdict was not against great weight of evidence (grant of new trial motion was reversed).

o JNOV - judges must defer to jury determinations of credibility, but for new trial grant, when there are evidentiary grounds for a new trial, judge can make his own determinations as to witness credibility.

o Rule 49: Special verdict; General verdict; and questions.o Rule 51: Instructions to the jury; objections; preserving a claim of error.o O’Gee v. Dobbs House, Inc

o P claims injury from 800 lb catering cart not locked properly in placeo Trial judge denied new trial motion- Ct of appeals finds abuse of discretion and

grants new trial or remittitur

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o Remittitur: Conditional denial of D’s new trial motion if P accepts less moneyo Additur: Conditional denial of P’s NT motion if D pays more—Additur is

unconstitutional in federal courtso Used to control excessive jury verdicts

MOTIONS DISPOSITIVE OF CASESTiming Purpose Standard Effect on

jury/Appeal12(b)(6)- failure to state a claim upon which relief can be granted

PLEADINGBeginning- after complaint

Get rid of cases early if there’s no legal basis- only available to Defendants

Law grounds (assuming all facts are true… no cause of action- BUT Twombly may have changed this standard)

No juryImmediately appealable by P

56- Summary Judgment

DISCOVERY Prevent a trial where unnecessary

No genuine issue of material fact AND moving party is entitled to judgment as a matter of law (Not possible if there are issues of credibility or if reasonable minds could differ.

No juryLoser appeals

50a- Directed Verdict

TRIAL before deliberations

Control Jury No legally sufficient evidentiary basis for verdict for non-moving party (Jury is reasonable and would find this way)

No deliberationsAppeal by loser

50b- JNOV TRIAL after verdict

Control jury No legally sufficient evidentiary basis for verdict for non-moving party (Jury is not reasonable)Could a reasonable jury come out for the non-moving party?

Upsetting jury verdictAppeal

59- New Trial TRIAL after verdict

Control jury- no deference to findings of credibilityIntegrity of Process

2.Evidentiary - liability and/or damages are against great weight of the evidence

3.Procedural - Prejudicial error

New juryNo appeal- trial judge can call for do-over until he gets the result he wants

60- Motion for relief from judgment (Liljeberg)

After judgment is entered

Correct mistake in judgments already entered

Evidentiary & ProceduralVERY high standard

Set aside previous judgment and have everything done over again

Standard on Appeal

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Rule 50a (Motion for Judgment as a Matter of Law, aka Directed Verdict): When appealed, appellate court looks to “whether there is any substantial evidence to support a finding contrary to that of the trial judge.”Rule 50b (Renewed Motion for Judgment as a Matter of Law, aka JNOV): Appellate court uses de novo standard to Judge’s decision: Affirm JNOV only if there was no legally sufficient evidentiary basis for a verdict for non-moving party (Or, no reasonably jury could have come out that way).

Rule 59 (Motion for New Trial): Whether the trial judge abused his discretion in applying the “great weight” standard (or, was it clearly not against the great weight of evidence?).

Grant 50bo Grant conditional NT motion

Judgment for verdict loser Appeal and appellate court can review both rulings at the same

time, but will only reach new trial motion if decides JNOV improperly granted

o Deny conditional new trial motion Judgment for verdict loser Appeal and verdict loser will challenge JNOV and verdict winner will

challenge conditional new trial Deny 50b

o Grant conditional new trial motion New trial No appeal (typically would be on the second case) – because no

appealable order was enteredo Deny conditional new trial motion

Judgment entered on the verdict (essentially judge saying trial was fair) Verdict loser can appeal

d. BENCH TRIALS (Anderson)Rule 52: FINDINGS AND CONCLUSIONS BY THE COURT; JUDGMENT ON PARTIAL FINDINGS

o Anderson v. City of Bessemer City o Sexual discrimination for recreation director positiono Finding of discriminatory intent is a finding of fact which can only be

overturned if it is clearly erroneous (definite and firm conviction that a mistake has been made)

o Rule 52(a)(6)- due regard to trial court’s opportunity to judge witness credibility- GREATER deference- very rarely can be clear error

o Reviewing Ct should apply de novo standard ONLY to legal questions

VIII. RELIEF FROM JUDGMENT AND APPEAL (Rule 60; Ackerman)o Rule 60

o Clerical mistakeso 1,2,3 have limits of 1 year

1. Mistake, inadvertence, surprise, excusable neglect [only allowed in exceptional circumstances!]

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2. Newly discovered evidence…3. Fraud, misrepresentation, misconduct by an opposing party4. Judgment void5. Judgment satisfied, released, discharged, based on vacated judgment6. Any other reason that justifies relief [applied very sparingly! – not a

replacement for appeal – Ackerman]o Ackerman v. US

o German couple didn’t want to lose house; lawyer said you will, warden said wait til war ends. Kleibar appeals and case was dismissed; Ackermans did not appeal. Moved to set aside judgment under rule 60(b)(6)- only relief possible is #6 because not time-barred (and filed 5 yrs after judgment).

o Ct says reasons weren’t justifiable and 60(b)(6) must be a distinct category from other 60(b) issues- bad lawyer complaint doesn’t work.

Finality of judgments (Rules 54, 58; Cox; Digital Equipment; Kerr)o Federal Rules:

o 54a- Includes decree and any order from which an appeal lies (even if it’s not a final judgment, for purposes of appeal it’s treated as a final judgment).

o 54b- Judgment on multiple claims or involving multiple parties- Only time Ct can direct entry for some but not all claims is when Ct expressly determines no just reason for delay… OTHERWISE “Any order or other decision, however designated, that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties, does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”

o Rule 58- Judgment is effective only upon entry by clerk of the court. Actions taken on basis of judgment not entered are void.

o When you can appeal:§ 1291, final decisions of district courts

Judgments of D Ct Collateral orders

1292(a), injunctions/receiversCertain orders regardless of finalityInterlocutory orders- treated as final judgments for purposes of appealEx. Judge vacating a settlement

1292(b), certificationTrial judge certifies issue for immediate appeal“Controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Refusal to certify is an abuse of discretion standard

1651, MandamusExceptional circumstances only- costs of suing trial judge is high so often an indicator that might be worth interrupting reviewBy definition, give jurisdiction to Ct of Appeals

1257, final judgments & decrees of highest State Courts Judgment of highest state Ct

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On a case-by-case basis, those orders we want review of without waiting for final judgment (federal questions)

o Appeals as of right are from final judgments- not as of right, Certification- and Mandamus

o Disposition of an appeal:1. Settlement 2. Mandate that comes from court of appeals (not an opinion)

(Mandate is a piece of paper- often accompanies opinion, trial judge has to sign for it, he's supposed to enter judgment .) Appellate opinion is not official until mandate is issued to trial court, and won’t be effective until judgment is entered on mandate in trial court.

o Digital Equipment v. Desktop Direct o Desktop charged Digital with unlawful use of “Desktop Direct” name- under

confidential settlement, Digital agreed to pay Desktop for right to use trade name; Desktop moved to vacate dismissal later, alleging misrepresentation of material fact during settlement negotiations. DC granted vacation of dismissal.

o Issue : Whether order vacating dismissal of a settlement agreement is final as a collateral order, even without a DC’s resolution of the underlying COA.

o S Ct says no: an order denying effect to a settlement agreement does not come within ambit of collateral orders. Merits of case were never reached.

o Standard for collateral orders (which are exceptions to §1291 final orders) that can be immediately appealed:

Completely separate from the merits Would render important questions effectively unreviewable on appeal of

final judgment (ex. Qualified immunity protecting D from having to stand trial in the first place)o Denial of bail meets this standardo Don’t want to allow appeals of orders related to facts that should be

reviewed at trial o Cox Broadcasting Co . v. Cohn

o GA law made it a crime to publish name of rape victimo Under §1257, S Ct may review final judgments and decrees rendered by

highest Ct of a state. AND can treat judgment on a federal issue as a final judgment even if there are other issues that must be litigated in state Ct.

o Kerr v. US District Ct o Male prisoners sued prison system requested motion to compel discovery that

P be allowed to examine files of a sample of prisoners and personnel files of adult authority members, was granted

o Kerr filed mandamus (“escape clause”) to not have to produce documents- Ct wouldn’t grant request of in camera review; cant appeal discovery orders because they aren’t collateral, and no judge would certify it for immediate review- mandamus is only option.

o S Ct would not issue writ of mandamus because D were only seeking in-camera review, not asserting a privilege so high that nobody can see files (avoid insulting trial judge, assume that in camera review would be granted)

o Under Kerr, standards for issuing writs: No other adequate means

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Clear and undisputable right to the writ Exceptional circumstances Judicial usurpation of power Unlawful exercise of jurisdiction.

o Collateral order more restrictive- mandamus filed more often, but still a high bar to meet.

IX. COLLATERAL EFFECTS OF A JUDGMENTRes Judicata (Moitie, Davis v. Dart; Parklane)

Always involves TWO CASES, often called “Moitie 1” and “Moitie 2”

o Most settlements are stipulated dismissals with no fact-finding involved so they don’t have res judicata effects if somebody decides to litigate it later.

o Some settlements are made post-judgment, and parties stipulate a vacatur of the judgment- because judgment was vacated, there are no res judicata effects.

BUT Courts tend to not allow vacation of judgment through settlement.

Res Judicata “Claim preclusion”- Broader than issue preclusion, so better to go for this kind- win on all issues.

i. “A final judgment on a claim is conclusive of further litigation between the same parties on claims that were or should have been raised in the prior litigation.”

ii. When claim preclusion is asserted, you must ask three questions (Moitie, Davis):1. Was there a final judgment in the first litigation?2. Is the second litigation between the same parties?3. Does the second litigation involve a claim that was or should have been

raised in the first litigation?o Rule 13(a): Compulsory counterclaims: “A pleading 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 same transaction or occurrence that is the subject matter of the opposing party’s claim.”

iii. If P wins its claim, any related claims are merged with original, so P cannot litigate on those related claims with the same party.

iv. If P loses its claim, it has the same effect, but they are barred from litigating the same claim later against the same party.

v. Motion to transfer: state ct to other state ct, Removal: state ct to fed ct. In Fed Ct, compulsory counterclaims means you must file in original ct, but you can then move to transfer (or remove) claim.

vi. Federated Dept Stores v. Moitie a) US brought suit against D in fed ct for violation of Sherman Act; 7 parallel civil

actions were filed by private P’s on behalf of classes of retail purchasers. Two of them were Moitie and Brown. Moitie was brought in state ct, Brown in fed ct. All cases were dismissed. P in five suits appealed, not Moitie or Brown.

b) Moitie and Brown filed new claims in state Ct, raising state law claims (removed to fed ct) and Fed Ct dismissed them because of res judicata.

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c) S Ct agrees with D. Ct (Not Ct of Appeals): Even though other 5 cases won on appeal, Moitie and Brown can’t benefit from their appeal and new claims are barred.

d) State and fed law claims must be brought in the same suitvii. Davis v. Dallas Area Rapid Transit (DART)

a) Some claims in second suit arose before they filed lawsuit, but they didn’t litigate them in first suit because they were waiting for the right to sue letter

b) Typically, claims arising after a lawsuit has been filed are not precluded from subsequent litigation, but if they are related to first claim, you have to amend complaint

i. Specifically in Title VII suits- P can bring successive actions that occurred either after they filed prior lawsuit or after Ct entered judgment in prior lawsuit

c) Either put them in complaint and file motion to stay pending right to sue letter OR wait to sue

d) To determine whether prior and current suits involve the same COA, we apply transactional test: Prior judgment’s preclusive effect extends to all rights of the plaintiff w/r/t all or any part of the transaction or series of connected transactions out of which the original action arose.

i. Critical question: Whether both actions are based on the same nucleus of operative facts.

Collateral Estoppel“Issue preclusion”

i. “A judgment is conclusive against a plaintiff or defendant with respect to any issue:1. Actually litigated by that plaintiff or defendant2. That was determined; and3. Whose determination was necessary to the judgment.”

ii. When issue preclusion is asserted, you must therefore ask:1. What issue is preclusion sought upon?2. Was that issue actually litigated by the plaintiff or defendant against

whom preclusion is sought? Was it determined and necessary to the judgment in the first litigation?

3. Is it offensive issue preclusion that is at issue? If so, ask further…a. Did the defendant have incentive to litigate vigorously in

the prior suit?b. Is the judgment inconsistent with prior judgments?c. Are there procedural opportunities in the second suit that

were unavailable in the first suit?iii. Defensive/Offensive issue preclusion

Defensive non-mutual issue preclusion: New defendant asserts it against plaintiff that was party to the original action (New D against old P; One P, Two D)

Favored because it encourages plaintiffs to join all possible defendants in one case

Offensive non-mutual issue preclusion: New plaintiff asserting it against defendant that was party to the original action (e.g. Parklane; New P against Old D; Two P, one D)

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v. OJ Hypo : Civil case almost never has res judicata effects on subsequent criminal cases because standard of proof is much higher in criminal cases

BUT criminal cases can have res judicata effects on subsequent civil casesvi. If litigant admits fact in first case, SOMETIMES they can be estopped from relitigating- if they

reasonably should have foreseen there would be following suits- did they recognize it was a high stakes issue

vii. Mutuality : Due Process says you can’t be bound by a judgment not involving you as a party. BUT you can use non-mutual issue preclusion when a new party asserts a judgment against a party to that judgment because that party was already bound by that judgment)

You can never have an old party assert issue preclusion against a new party who was not bound by the previous judgment (never relax due process)

viii. It’s not which claim is filed first, it’s which claim goes to JUDGMENT first that precludes subsequent adjudication of issue/claim.

ix. Parklane Hosiery v. Shore a) Shore v. Parklane at law, SEC v. Parklane at equity; SEC case reached judgment

first and Parklane lost. b) Shore sought issue preclusion against Parklane as to issues decided in SEC case-

sought partial summary judgment on that issue. c) Shore used offensive issue preclusion against Parklane- Look at questions,

(incentive to litigate, not inconsistent w/prior judgments) and to 3- procedural opportunity, Parklane claimed, was procedural opportunity- jury.

d) S Ct says jury trials are “essentially neutral” because systematically we view them as not affecting the outcome.

e) Beacon Theaters is only good law when suits are between the SAME parties at law and equity

x. Csohan v. United Insurance Co . a) Daughter sued Ins Co in Ohio; Mother sued Ins Co in CA; both claimed $5000 of

life insurance co. United filed interpleader in CA (Rule 22) (give money to CA ct)- only in a ct that has jurisdiction over both Ps.

b) After filing interpleader in CA, Ins Co sought preliminary injunction to restrain daughter from proceeding in Ohio action; prior to ruling on injunction, Ohio ct issued TRO enjoining D from proceeding with CA action.

c) Ins Co appealed TRO; Ct of Appeals allowed interpleader action to proceed, since suits exposed ins co to double liability, and proceedings in Ct with jurisdiction over both P’s cannot be stayed by an order of the Ct that has jurisdiction over only one party.

6

6th Amendment, 16

7

7th Amendment, 15

A

Access Now, 3Ackerman, 22Adickes, 13American Life Ins. Co, 15Anderson, 22Appeal, Standard on, 21Appeals, 23Arnstein, 14

27

Asahi, 9Atlas Roofing Co, 16

B

Batson, 17Beacon Theaters, 16BGC, 2Burden of Proof, 4Burger King, 8

C

Caperton, 19Celotex, 13Certification, 23Chauffeurs, 16Citizenship, 10Claim preclusion, 25Collateral Orders, 24Compulsory counterclaims. See Rule 13(a)Consent. See PennoyerConsistency. See FRCP 8(d)(3)Corporations, Citizenship, 10Cox Broadcasting Co, 24Csohan, 27Currie, 17

D

Davis, 17Davis v DART, 25Default. See Rule 55Digital Equipment, 23Discovery, 11Discrimination, Jury, 16Diversity, 10Domicile, 10

E

Edmonson, 17Evans, 7

F

FRCP 8(d)(3), 5Fuentes, 5Fuller, 18

G

Gomez, 4

H

Hickman, 12

I

Injunctions, 7Instructions to the jury. See Rule 51Interpleader. See Rule 22, CsohanInt'l Shoe, 8Issue preclusion, 26

J

JEB, 17Judge Recusal, 18Jurisdiction- Personal, 7Jurisdiction- Subject Matter, 9Jury selection, 16Jury Selection and Service Act, 16Jury Trial, Right to, 15

K

Kerr, 24Kiernan, 17Kothe, 14

L

Lassiter, 7Liljeberg, 18Long arm statutes, 8

M

Mandamus, 23, 24Marek, 15Mas, 10McCormick, 5Minimum Contacts. See Int'l Shoe, WWVW, BKMoitie, 25

N

New Trials, 19

28

O

O’Gee, 20

P

Parklane, 26Pennoyer, 8Pleading, 3, See Rule 8

R

Relief from Judgment. See Rule 60, AckermanRemedies, 6Remittitur, 20Removal, 25Res Judicata, 24Rule 11, 5Rule 12, 3Rule 13(a), 25Rule 16, 14Rule 22, 27Rule 26, 10Rule 35, 13Rule 41, 5Rule 47, 17Rule 49, 20Rule 50, 14, 19Rule 50b, 21Rule 51, 20Rule 52(a)(6)-, 22Rule 55, 3Rule 56, 13Rule 58, 23Rule 59, 19Rule 60, 18, 22Rule 64, 6Rule 65, 6, 7Rule 68(d), 15Rule 8, 3, 4Rules

Discovery, 11Rules 26-37, 11

S

Saigon, 12Sanctions, 5Settlement, 14Simblest, 19

Sioux City & Pacific Railroad Co, 19Spaulding, 13Spurlin, 20Strouder, 17Summary Judgment- Practical App, 14Swain, 17

T

Table of Motions Dispositive of Cases, 20Tanner, 20TRO, 6Twombly, 4

U

UpJohn, 11

V

Verdict, Special and General. See Rule 49Vincent, 13

W

Weinberger, 7Witness Credibility

Rule 52(a)(6), 22WW VW, 8

Y

Yahoo, 9

Z

Zuk, 6

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