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Notice Pleading
1)

Notice Pleading vs. Fact Pleading

Notice Pleading

To assert a substantive claim in an ordinary case, a complaint need only provide a

short and plain statement of the claim showing that the pleader is entitled to relief.

Provide sufficient notice to permit to prepare a defense.

Used in federal district courts and in most state trial courts Fact Pleading aka Code pleading Asserts/alleges facts in support of every element of each cause of action indentified in the complaint. (Factual allegations). Plead the operative facts. o Operative facts: are the facts that demonstrate that the plaintiff can meet each element of a cause of action. FRCP Rules Contours Why would anyone want to plead more than a bare bones account? CA and NY (state courts) are fact pleading states.

2)

Complaint: s statement of claim

A.
Rule 8(a) What is required for a complaint? Claim for Relief: A pleading that states a claim for relief must contain: (1) A short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) A short and plain statement of the claim showing that the pleader is entitled to relief; and (3) A demand for the relief sought, which may include relief in the alternative or different types of relief. Contours Rule 8(a)(2): A short and plain statement of the claim showing that the pleader is entitled to relief.

Has to put the on notice so that the can respond.

For federal courts it is OK that complaint does plead facts but for state courts (fact

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pleading states) you must state facts that support your claims. Cases Dioguardi v. Durning (2nd Cir.1944) Facts: Dioguardi ( ) imported bottles and tonics from Italy and claimed that Durning ( ), Collector of Customs at the Port of New York, improperly sold them at auction. Rule: does not have to describe in detail all causes of action in the complaint for the complaint to be sufficient. The Federal Rules of Civil Procedure have adopted the notice pleading standard. In order to withstand summary judgment, the complaint need only put the court and defendant on notice of the cause of action. The complaint need only present a short and plain statement of the claim demonstrating that the pleader is entitled to relief. Conley v. Gibson (S. Ct. 1957) Facts: Group of black railroad employees brought suit, alleging that their union had violated the FRLA by failing to represent them fairly in collective bargaining with the employer. Rule: A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the can prove no set of facts in support of his claim which would entitle him to relief. Swierkiewicz v. Sorema (2002) Facts: Man brought suit for Employment discrimination age and national origin. Two forms of employment discrimination illegal until Title VII. Rule: a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Two kinds of insufficient complaints: 1) The complaint does not supply sufficient information to allow the defendant to respond; it leaves the defendant uncertain as to what the claim is. Rule 12(e) Motion For A More Definite Statement

Under Dioguardi, Conley, and Swierkiewicz

A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. 2) The complaint does supply sufficient information, but it reveals that there is no recognized claim/cause of action that the allegations would support.

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B. Heightened Pleading: Sufficiency of Claims

Mistake and Fraud

Rule 9 Pleading Special Matters (b) Fraud or Mistake; Condition of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. Fraud Elements: 1. False or misleading statement, 2. Made with an intent to deceive (scienter)

Contours

Under FRCP Rule 9(b)

Plaintiff: 1. Must plead the content of the statement, its falsity, and its materiality. 2. BUT, need not plead intent to defraud with particularity, because state of mind may be alleged generally.

Cases

Tellabs, Inc. v. Makor Issues & Rights, Ltd. (S. Ct. 2007) Facts: s alleged that Tellabs had misrepresented the strength of its products and earnings in order to conceal the declining value of the company's stock. Under the PSLRA, bringing securities fraud complaints must allege specific facts that give rise to a "strong inference" that the defendant intended to deceive investors (scienter). Under PSLRA, P must state with particularity: 1. Facts constituting violation, and 2. Facts evidencing scienter (defendants intention to deceive, manipulate or defraud). (State with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.) Thus, higher burden than under Rule 9(b). Issue: What is a strong inference? RULE: To qualify as strong the inference of scienter must be more than merely plausible or reasonable it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. (646, 651) In sum, the reviewing court must ask: When the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?

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The Answer
Denial or Admission s answer must respond to the s allegations. The response to an allegation can be a denial, an admission, or silence.

FRCP Rule 8 General Rules of Pleading

Denial Puts allegation in issue and creates an issue of fact as to the allegation. It imposes on , burden of proving the allegation denied. Permits to introduce evidence that would tend to disprove the allegation.

When does denial fail to provide fair notice? RULE 8(b) (2) Denials Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading including the jurisdictional grounds may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation other than one relating to the amount of damages is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

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Admission Failure to deny Contours

Establishes the allegation as true for purposes of the case. Has same Effect as an admission, Affirmative Defenses: Some defenses must be affirmatively pleaded. Defenses go beyond affirmative denials of allegations and constitute introduction of new matter. Counterclaim: may choose not only to answer but to advance an affirmative claim of her own. Typically filed at the same time as the answer, but it is, in effect, a complaint by the . Denials? What effect? Effect of denial: Must be particularized, or it may be made ineffective. Effect of general denial: If not full, not permitted. Effect of admission: Issue is proven.

Cases Zielinski

Facts: P and Ds employee crashed their forklifts. P sued D, believing that employee worked for D, and in paragraph five of the complaint, alleged that the forklift was owned, operated, and controlled by D. Under Federal Rule 8(b), an answer must admit or deny the averments upon which the adverse party relies. When a pleader intends in good faith to deny only apart or a qualification of an averment, he must specify so much of it as is true and material and deny only the remainder. D knew that the forklift collided with P's forklift. Therefore, D should have admitted that the collision occurred and only denied that Johnson worked for D. This would have warned P that he had sued the wrong defendant, and P could have brought his action against the proper defendant within the statute of limitations period. Holding: The answer contains an ineffective denial. Under the circumstances of this case, principles of equity require that defendant be estopped from denying agency (see page 689).

Rules

FRCP Rule 8(b) Defenses; Admissions and Denials (DAD) (1) In General. In responding to a pleading, a party must:

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(A) State in short and plain terms its defenses to each claim asserted against it; and (B) Admit or deny the allegations asserted against it by an opposing party. FRCP Rule 8(c)

CONTOURS

A. Amending the Pleadings 1. When can a party amend a pleading? Only at three points: Before, During, or After Trial. 2. When can a party amend a pleading to change the name of the defendant? Almost Never (well, not quite, but . . .) Relation back of Amendments: Does Rule 15[C] apply? 1. Only if defendants were aware of the complaint within 120 days after filing. & 2. Only if there was a mistake concerning the proper party's identity. Note: In California, we allow Doe defendants, with amendment permitted anytime within the three years permitted for service of process.

RULE 15

Rule 15. Amended and Supplemental Pleadings (a) Amendments Before Trial. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. 3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

(b) Amendments During and After Trial.

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(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence. (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move at any time, even after judgment to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue. (c) Relation Back of Amendments. (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity. Cases Worthington v. Wilson (Family Matters) Facts: P sued the city and "three unknown named police officers." P filed an amended complaint naming Wilson and the other officer (Ds) by name. Ds moved to dismiss on the ground that SOL had run. Issue: Does an amended complaint that changes the name of the defendant relate back to the filing of the original complaint if the amendment does not correct a mistake in the original complaint? Holding: No. Federal Rule 15(c) permits relation back if the amended complaint arises out of the same conduct contained in the original complaint and the new

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party. Ds note that there was no "mistake" concerning their identity when the original complaint was filed. P simply did not know Ds' names. In 7th Cir. the "mistake" language in Rule 15(c) has been interpreted to not apply to a substitution of actual names where the true names were not known when the complaint was filed. P cannot satisfy the requirements of Rule 15(c) + cannot use state claims.

JOINDER Theme: The general philosophy of modern procedural rules in both the federal and state systems is to allow liberal joinder of claims and parties.

A. JOINDER OF CLAIMS
FRCP Rule 18(a) In General. A party asserting a claim, counterclaim, cross claim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party. Notes: No requirement that they be related. No requirement that claims arise out of the same or related transaction or occurrence. But, of course, always required that there be federal SMJ. Counterclaim: is any claim asserted by any party against an opposing party who has already asserted a claim. A counterclaim is usually a claim asserted by a against a , but need not be. (Compulsory or Permissive) 1) A counterclaim is compulsory under Rule 13(a) if it arises out of the transaction or occurrence that is the subject matter of the opposing partys COUNTERCLAIMS claim. (Must be asserted in the current suit or waived) Exceptions: Need not be filed if already pending as claim in another proceeding If opposing party has not obtained in personam jurisdiction over the party who has a potential counterclaim. 2) A counterclaim is permissive under Rule 13(b) if it does not arise out of the same transaction or occurrence as the plaintiffs claim. Claim must be a claim asserted by the against a . Compulsory Counterclaim. (1) In General.

FRCP Rule 13(a)

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A pleading must state as a counterclaim any claim that at the time of its service the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. (2) Exceptions. The pleader need not state the claim if: (A) when the action was commenced, the claim was the subject of another pending action; or (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule. FRCP Rule 13(b) Permissive Counterclaims. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. Crossclaim: may be asserted only between co-parties, typically between codefendants. A cross-claim is always permissive. CROSSCLAIMS Rule 13(g) and Rule 18(a): Once a Rule 13(g) cross-claim is properly made, the cross claiming party can add unrelated claims against the cross-claim defendant under Rule 18(a). (g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant. 18(a): Multiple claims in any P v. D (or D v P etc.) (related or unrelated) 13(a): D v P (related) 13(b): D v. P (unrelated) 13(g): D1 v. D2 (related) Jones v. Ford Motor Credit Company Facts: Class action law suit brought by African Americans who were being charged higher interest rates on car loans from Ford. While awaiting class certification, D brought a counterclaim against 3 African Americans for unpaid car loans, as well as a conditional counterclaim (in the event of class

FRCP Rule 13(g)

1)

Claims which may be joined. Cases: Counterclaims: Federal Rule 13(a) and (b)

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certification) against any class members who also defaulted. Issue: Were these compulsory (related) or permissive (unrelated) counterclaims? Even if permissive, there is still the question of whether the counterclaim satisfies the requirements of relatedness under 1367. TEST: Court said compulsory claims are those which have a logical relationship. While there is no logical relationship here, there may still be enough relatedness for SMJ under 1367. Court then remanded to lower court for this determination. Fairview Park Excavating v. Al Monzo Construction Subcontractor (P) brought a claim against township and Monzo (contractor) in federal court under diversity jurisdiction for failing to pay for contracted work. Monzo then brought a crossclaim against the township. However, primary claims again diverse parties were dismissed, leaving only two parties in crossclaim that were not diverse. The issue is whether the crossclaim, lacking diversity jurisdiction, should be dismissed. Holding: Once the court had ancillary jurisdiction, it didnt lose it by a dismissal for non-jurisdictional reasons of the initial complaint that made Township a defendant. Contours Severance: Rule 42(b) a district court may sever a case into two or more parts for separate disposition for convenience, to avoid prejudice, or to expedite and economize. May mean: Separate trials only as to certain issues or claims Consolidation Rule 42(a) a district court may consolidate separate filed cases. May mean: Can be consolidated for certain purposes (pre-trial motions, not for damages)

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B. JOINDER OF PARTIES THEME: If rules of joinder permit claim or party to be joined, will the new claim or
party be authorized by 1367?
FRCP Rule 20 (a) Persons Who May Join or Be Joined. (1) Plaintiffs. Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. (2) Defendants. Persons as well as a vessel, cargo, or other property subject to admiralty process in rem may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. Federal rule 20(a) authorizes permissive joinder of multiple parties, so long as 2 requirements are met: Rules 1) All joined must assert, and all joined must have asserted against them, claims arising out of the same transaction, occurrence, or series of transactions or occurrences, and 2) There must be a question of law or fact common to all of the joined parties. Does not require joinder, rather, it permits joinder when 2 criteria are met.

PERMISSIVE JOINDER OF PARTIES

Supplemental Jurisdiction & Joinder Contours Federal Question Under 1367, joinder of parties for whose claims theres no independent basis for jurisdiction is permitted in FQ cases so long as the claims are part of the same case or controversy under Article III. Diversity

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There is supplemental jurisdiction over Rule 20 claims brought by . There is no supplemental jurisdiction for claims against non-diverse joined under Rule 20.

Reverse Exxon P (NY) -> (1332) D1($75,000) D2( $50,000) Rule 20 says its ok to join them. But jurisdiction is not ok. Its ok for D1, because he meets the requirements of 1332, but not for D2, because he doesnt. 1367(b) for cases just based on diversity, theres no jurisdiction for claims brought in if its inconsistent with 1332.

FRCP Rule 19:

(a) Persons Required to Be Joined if Feasible. (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. (b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include: (1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person's absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. At Common Law:

COMPULSOR Y JOINDER OF PARTIES

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Necessary parties: Parties required to be joined if feasible or desirable parties. [Rule 19(a)] Indispensible parties: Parties who are so vital that if their joinder is impossible, the whole action must be dropped, are called indispensable parties. [Rule 19(b)] Analysis for RULE: How do we determine whether [party] was an indispensable party? ANALYSIS 1. Is it a Person Required to Be Joined if Feasible? A) Or, B1) B2) does its absence endanger the courts ability to afford complete relief? does its absence impair its ability to protect its interests, or subject it to the potential of multiple or inconsistent obligations?

If YES, and if [party] cannot be joined, THEN: 2. In equity and good conscience, should the action proceed? Will the judgment prejudice [party]? Can the court protect it from prejudice? Will a judgment for Helzberg be adequate without Kirk as a party? Would Helzberg have another remedy if the case was dismissed?

Temple v. Synthes Corp. P: Temple (Mississippi) + D: Synthes Corp. (Pennsylvania) - 1332 Diversity jurisdiction Temple sued Synthes, the device manufacturer, for a screw that broke off inside his back following an operation. Synthes argues for dismissal on the grounds that P failed to join the doctor and hospital (argued they were necessary parties). Decision: joinder of all tortfeasors in a single suit not required under Rule 19. P controls his/her lawsuit and is not required to sue joint tortfeasors. Reasoning: Notes to Rule 19(a) explicitly state that a tortfeasor with the usual joint and several liability is merely a permissive party to an action against another with like liability. Helzbergs Diamond Shops v. Valley West Des Moines Shopping Center Helzberg jewelry store (P, Missouri) sued Valley West (D, Iowa) in federal court (diversity 1332) for breaching a contract to not lease mall space to other

CASES

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Rule: A person doesnt become indispensible to an action to determine rights under a contract simply b/c that persons rights or obligations under an entirely different contract will be affected by the result of the action (p.749) Rule 19 & Supplemental Jurisdiction CONTOURS SJ is not available in a diversity case under 1332 when a person is sought to be joined under Rule 19. However, SJ is available, irrespective of the absent partys citizenship, is SMJ is based on FQ jurisdiction 1331.

Rule 14. Third-Party Practice (a) When a Defending Party May Bring in a Third Party. (1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer. (2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint the thirdparty defendant: (A) must assert any defense against the third party plaintiff's claim under Rule 12; (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g); (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the thirdparty plaintiff. Third-party complaint: complaint by the against the impleaded TPD. becomes the TP Rule 14(a) & Rule 18(a) Once a Rule 14(a) third-party impleader claim is properly made, the TPP can add unrelated claims against the TPD under Rule 18(a). In a diversity case, there is no SJ under 1367 over a claim by the against the impleaded TPD.

IMPLEADER

CONTOURS

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INTERVENTION (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. (b) Permissive Intervention. (1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. This rule is used when two parties have a lawsuit and a third party claims an interest in the transaction subject to the suit and wants to intervene. Contours TEST: The moving party must demonstrate 1) an interest, 2) which will be impaired or impeded if it cannot participate and, 3) that there is no existing party that adequately represents that interest. The test for Rule 24 is whether there is a sufficient similarity of interest, such that it is well represented. If the interest is not well represented, a party will be allowed to join.

Rule 19 & Rule 24 Under Rule 19, a party seeks to join a non-party with an important interest in the case. Under Rule 24, a non-party with an important interest in the case seeks to join. Bustop v. Superior Court Cases CLASS ACTIONS Rule 23 Class Actions (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims

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General Prerequisites

or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Numerosity: Rule 23(a)(1) requires that the class be so numerous that joinder of all members as individual named parties be impracticable. Commonality: Rule 23(a)(2) requires that there be questions of law or fact common to the class. Typicality: Rule 23(a)(3) requires that the claim or defenses of the named (representatives) party or parties be typical of those of the class as a whole. - the named party or parties should have claims sufficiently similar to those of the class as a whole such that in representing their own interests they also represent the interest of the class members. Fair and adequate representation: Rule 23(a)(4) requires that the named party or parties provide fair and adequate protection of the interest of the class as a whole. Construed to foreclose the class action where there is a conflict of interest between the named plaintiff and the members of the putative class. Construed to mean that actual representation provided by the class attorney be adequate. (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if: (1) prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

Types of Class Actions

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Non-opt out class actions: Rule 23(b)(1) (b)(2) are mandatory class actions, in that members of a properly certified class are not permitted to opt out of the action and under the rule are not entitled to notice of the filing of the action. Class Actions under Rule 23(b)(1) The general practice in the Courts of Appeals is to certify a (b)(1)(A) class action only when injunctive or declaratory relief is sought The most important kind of (b)(1)(B) class action is the so-called limited fund suit, in which class members claim an interest in a limited fund. When should we permit a class action 23 (b)(1)? Absent a class, is there a risk of inconsistent judgments? Absent a class, is there a risk that early judgments would impair the rights of later claimants? Class Actions under Rule 23(b)(2) Class actions under (b)(2) are sometimes called injunction class actions but include both injunction and declaratory relief. o Primarily civil rights class actions When should we permit a class action 23(b)(2)? Is there a need for injunctive relief that would apply to the entire class? Class Actions under Rule 23(b)(3) Questions of law or fact common to the class must predominate over questions affecting only individual class members, and the class action device must be superior to other available methods of adjudication. o Notice is mandatory and class members must be afforded the right to opt out of the class. When should we permit a class action under 23(b)(3)? Do the advantages of a class outweigh the disadvantages? Would a class action unduly interfere with the rights of individual class members? Is the matter already the subject of ongoing litigation? Should the litigation be concentrated in one forum? Is a class of this size, under these circumstances, manageable for the court and counsel? Rule 23(c)(1) (c) Certification Order; Notice to Class Members; Judgment; Issues

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Classes; Subclasses. (1) Certification Order. (A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action. (B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g). (C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment. Class Cert Order may be altered or amended before final judgment.

Settlement

CASES

(e) Settlement, Voluntary Dismissal, or Compromise The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise: Hansberry v. Lee 311 US 32 (1940) Rule: Class actions may proceed and bind, through res judicata, persons not parties to the action. BUT, their interests must be protected or due process has been violated. 1) Unrepresented, unknown class members may be bound by a judgment, but only if their interests are fully and fairly represented by an adequate class representative. And, 2) Collateral attack on adequacy of class representative is permitted. Notice? Recall Mullane -- due process does not require actual notice; it requires the best notice practicable under the circumstances.

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DISCOVERY I Case management/Devices Theme: The legal process for compelling the disclosure of information relevant to disputed factual issues in litigation.
Initial Disclosures: Rule 26(a)(1)(A)(i)-(iv) Except as exempted by or as otherwise stipulated by the court, a party must, without awaiting a discovery request, provide to the other parties FOUR classes of information: i. Names, addresses, and telephone numbers of individuals likely to have discoverable information along with the subjects of that information that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment. ii. Copies, or descriptions by category and location, of documents, data compilations, and other tangible things that the disclosing party may use to support its claims or defenses iii. A computation of any category of damages claimed iv. Any insurance agreement out of which a judgment may be paid. MECHANISMS OF Initial disclosures must be made within 14 days after the parties meeting to DISCOVERY prepare a discovery plan. [Rule 26(a)(1)(C)] Pre-Trial Disclosures: Rule 26(a)(3) (A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial Discovery Plan: Rule 26(f) Parties are required under Rule 26(f) to meet after the complain is served in order to develop a proposed discovery plan.
(f) Conference of the Parties; Planning for Discovery (1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). (2) Conference Content; Parties' Responsibilities.

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In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.

Rule 30. Depositions (oral examination): A formal questioning of a witness under oath. (a) When a Deposition May Be Taken. (1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45. Under Rule 30, a party may depose any person, whether or not a party, who possesses relevant information within the meaning of Rule 26. Lawyers notice the deposition of a witness. If it's a party, we only need to notice. If not, we need a summons (subpoena) that states when and where we plan to depose the witness. Lawyers of witness who is being deposed may object to a question or even instruct a witness not to answer o Preservation of a privilege o Protective order o Abusive behavior by deposing party Rule 33. Interrogatories to parties: is a written question sent to a party that must be answered under oath and in writing. (a) In General. (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2). Interrogatories can only be sent to parties. Leave of court is required to submit more than 25 interrogatories. [Rule 33(a)] Objections to interrogatories must be stated with specificity. [Rule 33(a)] Any grounds for objection not so stated are waived. To the extent that an interrogatory is not objectionable, it must be answered. [Rule 33(b)(1), (4)] Party may answer interrogatories under 33(d): Option to Produce Business Records. Party may, in lieu of answering, provide documents that have the information within it when the information has not yet been compiled. Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes (a) In General. A party may serve on any other party a request within the scope of : (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or

Discovery Devices

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control: (A) any designated documents or electronically stored information--including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations--stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or A party may request another party to produce documents or tangible things for inspection, copying or testing; or to permit entry onto land or other physical property for inspection, measuring or photographing. [Rule 34(a)] Leave of court is not required for such a request, and there is no presumptive upper limit on the number of documents or physical things that may be requested. [Rule 34(b)] A non-party may be compelled by subpoena to produce documents and things, or to permit entry. [Rule 34(c); 45] Rule 35. Physical and Mental Examinations Rule 36: Requests for admission A party may request that an opponent admit, for purposes of this case alone, that certain facts are true or that certain documents are genuine. If a party does not answer or object to a request for admission within 30 days, the matter is deemed admitted. [Rule 36(a)(3)] Zubulake v. UBS Warburg CASES In a sexual harassment case, P wished to compel disclosure of all electronic communications at UBS with regard to her employment. Issue here was who (requestor or responder) should pay for retrieval of electronic records. Rowe 7-factor balancing test Marginal Utility Test (most important): 1. Extent to which the request is specifically tailored to discover relevant info 2. The availability of such info from other sources 2. Total cost of production, compared to the amt in controversy 3. Total cost of production, compared to the resources available to each party 4. Relative ability of each party to control costs and its incentive to do so 5. The importance of the issues at stake in the litigation; and 6. The relative benefits to the parties of obtaining the info

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DISCOVERY II PRIVILEGES AND IMMUNITIES RULE: Where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relating to that purpose, made in confidence by the client are at this instance permanently protected from disclosure by himself or by the legal advisor, except the protection be waived. Attorney must maintain as confidential and privileged: 1. Communications from a client (or would be client) 2. Made to a lawyer (or her agent) acting in her capacity as a lawyer 3. In private 4. For the purpose of seeking legal advice or services, 5. And must also maintain as confidential any resulting advice given to the client by the attorney. ATTORNEY CLIENT PRIVILEGE An attorney-client relationship is created when the client reasonably believes that the attorney is providing, or is willing to consider providing, legal services. Only covers communications, NOT FACTS: A fact is not covered by the privilege merely because it is disclosed to counsel. Absolute quality of the privilege: Attorney-client privilege cannot be overcome by a showing that the information embodied in the protected communication is unavailable from any other source. Claiming and Waiving the privilege: The privilege can be waived by the client, either by voluntarily disclosing the communication or by failing to claim the privilege. Exceptions: If client/patient says they have intent to commit a crime (Tarasoff v. UC Regents) or if client reveals intent to commit perjury. If you know client has committed perjury, you must advise client to tell the truth and amend testimony; or else you must notify the court. Upjohn Co. v. United States
Upjohn Co. (D), a multinational corporation, discovered that one of its foreign subsidiaries had apparently bribed foreign government officials. As part of an internal investigation, D's attorneys sent questionnaires to its foreign managers and conducted interviews with these people and certain other employees. The IRS issued a summons for production of the questionnaires and interview notes. D refused to produce the documents, claiming attorney-client privilege and work-product doctrine protection. The lower courts ordered production and D appeals. Held: Attorney client privilege protects all of their communications, not just upper level management, the control group, but with all employees.

CASES

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FRCP RULE 23(b)(3)

(3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. Rule 26(b)(5) (5) Claiming Privilege or Protecting Trial- Preparation Materials. (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Hickman v. Taylor Counsel for Tugboat that was involved in a fatal accident interviewed survivors. Takes written statements and makes notes. The opposing counsel issued an interrogatory demanding the work-product of those interviews, which were refused based on work-product privilege. Held: P made no attempt to establish any reason for forcing production of the written statements. Because the burden rests on the party demanding production, the privilege was not overcome. Factors in Hickman: Necessity: Demanding party must be able to show necessity or claim that denial would unduly prejudice the preparation of petitioner's case or cause him harm or injustice. In Hickman, the witnesses were equally available and deposed by opposing counsel, so necessity would be difficult to claim.

WORK PRODUCT DOCTRINE

CASE

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But see Upjohn: Work-product disclosure cannot be compelled solely on a showing of substantial need and inability to obtain the equivalent without undue hardship. Must be a "strong showing".

1. Absolute Immunity: documents that reveal the thought processes of a lawyer should not be disclosable through discovery. Mental impressions, strategy, tactics, and mental opinions. 2. Qualified Immunity: Documents that are prepared by a lawyer for the purpose of litigation should only be revealed if there are no other means for obtaining the same information. Overpowered if discovering party cannot get access to the information its unavailable. Ex. Witness is dead or outside of jurisdiction. Witness statements: If statement is recorded in preparation for trial, then privilege intact. Exception in 26(b)(3)(C): Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter.

CONTOURS

DISCOVERY III: DISCOVERY FROM EXPERTS

* The initial disclosure * The types of discovery devices, and how they work * Attorney-Client Privilege * Work Product/Trial Prep Materials * Experts: Disclosure * Protective Orders * Motions to Compel * Sanctions

SUMMARY JUDGMENT I

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RULE 56

Rule 56 Summary Judgment (a) By a Claiming Party. A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim. (b) By a Defending Party. A party against whom relief is sought may move, with or without supporting affidavits, for summary judgment 56(c) Time for a Motion, Response, and Reply; Proceedings. (2) The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. 56(e) Affidavits; Further Testimony. (2) Opposing Party's Obligation to Respond. When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must by affidavits or as otherwise provided in this rule set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. 1. If the information presented by the moving party, taken as true, fails to establish that no factual dispute exists, summary judgment will be denied.

2. But, if the moving party does produce information that appears to establish that Summary Judgment no factual dispute exists, then the responding party must come forward with material to show that there is a genuine issue of material fact, or summary Process/STEPS judgment will be granted. 3. If the responding party does produce information contradicting that of the moving party, or otherwise showing that a factual dispute does exist, summary judgment must be denied. Can make motion for SJudg up to 30 days after close of discovery

When is Summary Judgment appropriate? 1. Defendant produces evidence that negates a necessary element of plaintiffs prima facie case. This is what the Court seemed to require in Adickes. 2. Defendant asserts that following discovery, plaintiff can point to no evidence in support of a necessary element of plaintiffs prima facie case. This is

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Adickes Cases RULE: Burden is on the moving party to show there is no genuine issue of material fact. Celotex Asbestos death case. Court found that D did not have to present additional evidence in motion for SJ needed only to show that P had not met the burden of production to begin with. I.e., D can simply poke holes in Ps case, as long as enough time has been provided to allow P to reveal the fabric of the case in terms of key operative facts (discovery). Court permits the D to shift the burden of production to the P. Difference between Adickes & Celotex: In Addicks the Court requires the defendant/moving party [Kress department store] to produce evidence disproving a fact [an agreement to harass plaintiff] which the plaintiff/responding party must prove to prevail. But in Celotex the Court permits the defendant to shift the burden of production to the plaintiff. If the defendant shows that the discovery process has disclosed no evidentiary support for a fact which plaintiff must prove, now the burden shifts to the plaintiff to produce admissible evidence supporting that factual assertion, in order to avoid summary judgment.

Burden of Proof

Moving Party with burden of proof: If the moving party has the burden of proof, he must produce evidence of such strength that no reasonable jury could find for the opposing party. Moving party without burden of proof: If the moving party does not have the burden of proof, then --Initial responsibility of informing court of basis for motion Moving part initial responsibility of informing the court basis for its motion, party must identify those portions of the record which it believes demonstrate the absence of genuine issue of material fact. Moving party can offer affirmative evidence that negates an essential element of the opposing partys case. If thrust of motion is that the opposing party has no evidence, the showing should reliably indicate that. Moving party should be able to point to

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discovery calculated to elicit from the opposing party any evidence he had to support his case and then demonstrate that this evidence is inadequate.

Contours

Standard for granting SJ and burdens of production/persuasion The principles governing the movant's burden of production under Federal Rule 56(c) clearly indicate that the burden of persuasion at trial necessarily affects the burden of production under Rule 56(c) or (e). The burden of persuasion at trial also determines the burden of persuasion on summary judgment. Burden of production: typically fall son the , requires the plaintiff to produce evidence at trial that meets a minimum standard of sufficiency. Burden of persuasion: by which the would ultimately have to convince the jury, which in a civil case is typically by a preponderance or more likely than not. Summary judgment serves as a device that can be used prior to trial, to determine whether a party who bears the burden of production will be able to meet it. Standard: the moving party is entitled to Summary Judgment if he/she can show that there is no genuine issue of material fact. Judge can then decide case as a matter of law. Extremely heavy burden of persuasion on moving party judge draws all inference in favor of non-moving party. Designed to prevent premature entry of Summary Judgment. - Judge needs to determine whether there is an issue of material fact. - Decide whether there is a triable issue of fact. TEST: Summary judgment motion = directed verdict motion (pre-trial vs. post-trial) - Looking at all evidence in light most favorable to non-moving party (admissible evidence) would judge grant directed verdict motion or take it away from jury (no reasonable way that the jury can find for non-moving party) so shall grant summary judgment. - Context where likely to SJ be granted o Look at all material presented at motion and realize that case has no legal basis. For example, not a recognized wrong. o All of the materials are the same way, all consistent, nothing triable and no reasonable jury could disagree with what all the documents say. o Summary Judgment material looks very powerful for but then materials also show iron-clad defense like Statute of limitations or

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res judicata. (no genuine issue of material fact) Discretionary outlet for judge to deny motion: - Moving party puts out powerful deposition but something fishy. - Issues of credibility - Rarely grant SJ with party who has ultimate burden of persuasion at trial - Gap in material presented on motion Court can look at evidence Evidence standard: The moving party must show: 1) No dispute on a material issue of fact 2) She is entitled to judgment as a matter of law If the evidence shows that there is no dispute of fact (before trial), then enter summary judgment (Rule as a matter of law) Affidavits: Sworn written statements that are treated by the court as evidence Also depositions, interrogatories - Cannot use pleadings as evidence - Court can never resolve dispute of fact in summary judgment In applying Summary Judgment Take all the evidence and read them all Is there a dispute on a material issue of fact? If answer is yes, then deny sum. Jud.

CONSTITUIONAL RIGHT TO CIVIL JURY

Law v. Equity 1. An action at law is traditionally an action for recovery of money damages money is the currency of justice and is sufficient. If you make the demand in proper time, you have a right to a trial by jury. 2. An action in equity asks, not for money, but for the Court to order the party to do something, e.g., an injunction, or even restitution/specific performance - usually applied where money damages are inadequate. Traditionally, in equity, there were no juries. Since only judge hears case, it can often go on, piecemeal, for a long time. This allowed emergence much of complex civil procedures we now use today. 3. Mixed action at law + action in equity What do you do in a mixed law equity case? - Ex. Damages + injunction, interposes legal claim and interposes equitable counterclaim, says that breached contract and wants specific performance or alternative of damages

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Historically: Clean-up doctrine: Equity Court would say OK to have equity jurisdiction and granted equitable remedy and now simply to end litigation will clean it up by awarding money as incident to injunction. If center of gravity is equitable no jury BUT if center of gravity of case is legal then jury. But what happens when, under the FCRP, law and equity are merged? Answer is in Beacon Theatres v. Westover. Beacon Theatres (Mixed law/ Equity Case) Facts: Case involves two competing movie theaters. When Beacon accuses Fox of violating antitrust laws, Fox sues Beacon for harassment, asking for injunction and declaratory judgment that Fox is not violating antitrust laws. Beacon files compulsory counterclaim for damages under antitrust laws. (This can be thought of as a race to the courthouse.) Holding: Now that the federal rules have merged law and equity, the legal and equitable actions may be tried together, with a jury hearing the legal matters. Reasoning: 1) Purely legal issue computing damages jury 2) Purely equitable issues discretion in deciding on equitable remedy like injunction judge 3) Issues Common to both legal side and to the equitable side of case if case was purely legal then jury and if equitable to judge Presumption in favor of jury trial -> just because case where mix, that should not cause anyone to loose jury trial just because its mixed, the issue should go to a jury. [KEY aspect of case] Determine jury trial right in terms of issues not simply at wholesale level (center of gravity) Analysis in exam: Announce Beacon theatre proposition and break it down into its constituents issue and one by one decide whether each issue is legal, equitable, or common and assign it to jury trial/not to jury trial depending on characterization. Dairy Queen - Equitable issues. says misusing a franchise trademark (stop and give accounting for damages and utilization of DQ paraphernalia) - Injunction, declarations, and accountings - SCOTUS: Historical artifact, have FRCP and can join claims now and can try it at one time.

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Right to jury is constitutional embrace opportunities to expand it Rule: Accountings that were historical equitable moved to the law

Ross v. Bernard - Shareholders derivative suits - Merged system and case says that doesnt matter that dispute comes into court in an equity procedural vehicle (class action) you use equity principles, judge decides whether or not procedural vehicle properly invoked) once decide equitable vehicle is appropriate, look at nature of action and do Beacon analysis equity vehicle doesnt destroy jury triability of underlying issues Question: Is the 7th Amendment historically pinned in 1791? Actions at common law - basic understanding was that it provided a constitutional right to jury for all action that existed at common law in 1791. What about actions created by Congress after 1791? Jury nullification Whether 7th amendment has growth capacity or limited to 1791? o If certain conditions are met, statutory rights carry the constitutional jury trial right even though post 1791 o 1) Right created by Congress must be vindicated by a court (article III court) o 2) Remedy provided by substantive right must be one traditionally granted by juries in courts of law (damage remedies) o 3) The right created by the statute must be analogous to a right that existed in 1791 (right involved in Curtis innkeepers liability/dignitary tort) [Not really great restriction] Beacon Theatres and Curtis - 7th amendment jury trial guarantee for civil cases was expanded by SCOTUS - 7th amendment jury trial cases - 7th amendment has never been incorporated through 14th amendment and applied to states so state courts are free to apply/reject Beacon Theatres/Curtis Note: Exam take note where court is at Federal (do Beacon) and in State (Do both analysis) - Depends on whether the courts follow the federal precedent of Beacon, if do, analysis, BUT if dont follow, then do clean up or center of gravity analysis. - Federal civil jury must be unanimous. - State juries not necessarily unanimous CA 10-2 How do we decide whether there is a 7th Amendment right to a jury trial, in an action that didnt exist in 1791? THE EVOLVING TEST FOR RIGHT TO JURY: Chauffeurs v. Terry

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Employee (P) seeks backpay for a unions (Ds) breach of duty of fair representation issue is whether P is entitled under 7th Amendment to jury trial. RULE: Court applies a two-part test 1. History Test: We compare the action to 18th century actions in England 2. Relief Test: We examine the remedy to determine whether it is legal or equitable in nature; Holding (J. Marshall): breach of fair representation is more like a trustees breach of fiduciary duty; however, it is still an action at law because P doesnt seek restitutionary damages, it only seeks money damages.

Administrative Agencies & 7th Amendment: Congress is free to take certain areas and give them to administrative agencies and no constitutional req. to jury trial in admin agency. Atlas Roofing:
Says that if Congress is enforcing, through its sovereign powers, what is called a public right, such as OSHA, they can: 1. Create a cause of action for violation of a statute; 2. Set a fine for violations; 3. And put the enforcement right in the hands of an administrative agency, using administrative hearings 4. All without violating the Seventh Amendment.

But how do you define a public right? a. Narrower (Atlas Roofing): Public Rights are cases in which the government is involved as a party in its sovereign capacity enforcing a federal statute. particularized area of law? b. Broader: Statutory rights that are integral parts of a public regulatory scheme and whose adjudication Congress has assigned to an administrative agency or specialized court of equity (see p.1120)

Contours

7th Amendment does not apply in suits against the federal government. Seventh amendment does not require jury trial in suits against foreign sovereigns under the federal FSIA.

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JURY SELECTION & INSTRUCTION

Basic Legal Requirements Jury Selection 28 U.S.C. 1861-1878: Statutory requirement that juries represent a cross section of the general population is not a constitutional requirement, but the Supreme Court has held that the values protected by the fair cross section requirement include the prevention of bias in fact finding Litigant may move to stay proceedings on ground of substantial failure to comply BEFORE voir dire OR within 7 days after party discovered issue

Federal Court ONLY Prohibition on intentional discrimination against individual jurors Criminal cases/ Federal Court (Civil Case) jury panel must be drawn from a fair cross section of the community. Qualifications: Must be 18 and a citizen of the U.S. In many states, felony conviction also disqualifies you for jury duty. Selection Process Voir Dire Process A group of jurors randomly drawn from those that show up at the court house are placed under oath and questioned by the judge who will preside at trial (federal court) or by the lawyers for the parties (state court). - In CA the lawyers are allowed to interview the jurors Challenges for Cause and Peremptory Challenges: Challenge for cause: when a juror exhibits bias, he will be excused for cause Peremptory challenge: juror excused with no need to give reason - In Federal Court civil cases, 3 peremptory challenges allowed for both sides - CA permits 6 peremptory challenges Edmonson v. Leesville Concrete, Inc. Edmonson (P) sued Leesville Concrete (D) for negligence when a Leesville

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employee allowed truck to hit him. Leesville used two of its three peremptory challenges to remove black persons from the prospective jury. Edmonson was also black. Holding: Court said the equal protection rights of jurors had been violated when they were peremptorily challenged on the basis of race. Race-based peremptory challenges by attorneys in civil cases violate the Equal Protection Clause of the 14th Amendment. CONTRACTUAL WAIVERS Policy issue: contractual waiver of right to jury trial. 1. E.g., contractual arbitration agreements required for disputes related to credit cards. 2. Also in employment contracts, even those based on statutory rights such as the Civil Rights Act. 3. Are usually enforced unless they are considered unconscionable.

Rule 51: Instructions to the Jury; Objections; Preserving a Claim of Error (a) Requests. (1) Before or at the Close of the Evidence. At the close of the evidence or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give. (2) After the Close of the Evidence. After the close of the evidence, a party may: (A) file requests for instructions on issues that could not reasonably have been anticipated by an earlier time that the court set for requests; and (B) with the court's permission, file untimely requests for instructions on any issue. (b) Instructions. The court: (1) must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments; (2) must give the parties an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered; and (3) may instruct the jury at any time before the jury is discharged. (c) Objections. (1) How to Make. A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection. (2) When to Make. An objection is timely if: (A) a party objects at the opportunity provided under Rule 51(b)(2); or (B) a party was not informed of an instruction or action on a request before that opportunity to object, and the party objects promptly after learning that the instruction or request will be, or has been, given or refused.

Jury Instructions/ Objections

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(d) Assigning Error; Plain Error. (1) Assigning Error. A party may assign as error: (A) an error in an instruction actually given, if that party properly objected; or (B) a failure to give an instruction, if that party properly requested it and unless the court rejected the request in a definitive ruling on the record also properly objected. (2) Plain Error. A court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights. NOTES: Judge is required to instruct, correctly. But, if the judge errs, and there is no objection, the losing party is out of luck. Unless, it is a plain error that affects substantial rights in which case a court may, (not must) correct the error. But, if the error is harmless it is not cause for reversal. When is instructional error reviewable? 1) Erroneous instruction was given; 2) Proper Objection was made on the record; 3) Error was not harmless. General verdicts: Ask jury who won and what the damages might be Special verdicts: Jury answers specific questions on essential elements of the case.

JUDGMENT AS A MATTER OF LAW (JAML) Directed Verdict

Taking the Case from the Jury Basic Principles A judge can take the case away from the jury and enter judgment that he/she thinks is correct by: - Directed Verdict (At trial) - Judgment n.o.v. (After trial) - Judgment as a matter of law (director verdict + judgment n.o.v.) [Rule 50] - Judge may also take case away from a jury and order a new trial and give it to a different jury. Motion for Judgment as a Matter of Law In a jury trial, either party may move for judgment as a matter of law when the adversary has been fully heard with respect to the issue in question. [Fed.R.Civ.P. 50(a)] Directed Verdict + Judgment n.o.v. = JAML JAML before submission aka Directed Verdict

JAML

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JAML after verdict aka JNOV (Judgment Notwithstanding the Verdict) Tests the sufficiency of the non-moving partys evidence to meet its burden of production.

When does it happen? Pre and post- motion verdict. Amended Rule 50 allows motion for JMAL at any time before the case is submitted to the jury. A motion made after verdict is a "renewed motion". How does JAML work? Court reviews the evidence in the light most favorable to the party against whom the motion is made and he must be given the benefit of all reasonable inferences, which may be drawn in his favor from that evidence. The judge may not make credibility determinations or weigh the evidence. Asks whether a reasonable jury could find in favor of the non-moving party. Standard of Review for JAML? In deciding whether a reasonable jury could find in favor of the non-moving party, the court should: 1. Review all of the evidence in the record 2. Draw all reasonable inferences in favor of the non moving party 3. Not make credibility determinations or weigh the evidence AND 4. Ask whether a reasonable jury could find in favor of the non-moving party. Easier explanation: The court asks whether there is any substantial evidence in support of each element which the non-moving party must prove. If there is, the case must go to the jury, and the jurys verdict must be accepted, because a reasonable jury could rely on the evidence to find for the non-moving party. Thus, the moving party must show that on at least one necessary element, there is no substantial evidence in support of the non-moving partys position. In California? - CA provides for both a motion for nonsuit and motion for a directed verdict Motion for nonsuit: granted only to the . May be granted either at the close of the s opening statement or at the close of the s evidence. Motion for a directed verdict: granted at the close of the opposing partys evidence, and may be granted to either party. - A motion for directed verdict is not a necessary precondition for a motion for judgment n.o.v

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Rule 50. Judgment as a Matter of Law in a Jury Trial; . . . (a) Judgment as a Matter of Law. Rule 50 (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. (b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law.

JUDGMENT AS A MATTER OF LAW (JAML) JNOV & NEW TRIAL

2 Post Trial Motions: 1) Enter judgment against the verdict-winner, i.e. judgment as a matter of law (federal court) or judgment notwithstanding the verdict (state court) Post- Trial Motions/ Standard for 2) Order a New Trial

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Renewed JAML - A reasonable jury would not have a legally sufficient evidentiary basis to find for the verdict winner New Trial - District court has discretion to grant a new trial when the verdict is against the great weight of the evidence. (for liability) - Review is for abuse of discretion. Sua Sponte JMAL: Judge cannot enter JMAL sua sponte (without a motion). However, a judge can, sua sponte, enter a new trial under FRCP 59. Timing for New Trial Motion For losing party: Party has 28 days from date judgment is entered to move for JMAL/JNOV, and conditional new trial. FRCP Rule 50(b)

CONTOURS

If JMAL/JNOV is granted: Party who won verdict and has now lost JMAL/JNOV has 28 days from new entry of judgment to move for a new trial. FRCP rule 50[c](d). Remittitur: - If the award is excessive as a matter of law, the judge may reduce it to the highest amount a reasonable jury could have lawfully awarded, given the evidence. Additur: In California state courts, judge may order additur/conditional new trial. Defendant agrees to the added amount, or judge orders a new trial. Standard is whether the award is inadequate as a matter of law, in that no reasonable jury, having found liability, and given the evidence viewed in the light most favorable to the defendant, could have awarded this amount. - Has not been adopted in the federal courts Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling (b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59.

Rule

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PRECLUSION I
Res Judicata Res Judicata (Claim Preclusion): Finality attached to a final judgment granting or denying s claim or claims. RES JUDICATA (CLAIM PRECLUSION) - If plaintiff wins, her claims (and sufficiently related claims) are merged into the judgment, and plaintiff may not bring these claims again in future litigation against the same defendant. - If plaintiff loses, her claims (and sufficiently related claims) are barred by the judgment, and plaintiff may not bring these claims again in future litigation against the same defendant. FOUR ELEMENTS for barring claims based on res judicata: 1) Parties in both the prior suit and current suit must be identical 2) A court of competent jurisdiction must have rendered the prior judgment 3) Prior judgment must be final and on the merits 4) The plaintiff must raise the same cause of action in both suits. NOTES: - Typically, claims that were not litigated but should have been. Forecloses relitigation of claims that were or could have been raised in a prior action. - If P wins her case, her claims and those she chose not to bring, but which were sufficiently related, are merged into the judgment. So, P may not bring these claims again in future litigation against the same D. - If P loses, her claims and sufficiently related claims are barred by the judgment. - No splitting of claims. "Use em or lose em." E.g.: You can't bring a federal claim in federal ct and a state claim in state ct. You'd have to bring them both in fed ct. BUT IN CA, - CA defines a claim as a "primary right" interpretation of Res Judicata: Some legal theories do not have the same preclusive effect on other legal theories. So, you could, for instance, split contract and tort claims because they are different "primary rights". Federated Department Stores, Inc. v. Moitie FACTS: Plaintiffs filed suit in federal court, and their case was dismissed because they did not allege injury to their business. They did not appeal to the 9th Cir, but filed in state court. They tried to assert state law claim because they were not required to allege injury to business as with federal anti-trust law. After removal, Dist Ct dismissed on res judicata, but 9th Circuit reversed because they had decided another case showing that the first decision indicating viability and found

Preclusion Between

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there was a public policy rationale for not allowing a Res Judicata defense. HELD: SCOTUS overturned, establishing that an unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case is not exempt from res judicata. Davis v. Dallas Area Rapid Transit Ps tried to bring successive lawsuits. However, there was overlap and some of the conduct being complained of in the second case happened before the filing of the first case. As such, court dismissed based on Res Judicata. P argued that they were waiting for a letter allowing the case to proceed, but court said they could have filed and petitioned for a stay. Did the claims from both cases involve the same cause of action? Test: Were they part of the same transaction? [Transactional Test] - Consider whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit. - Critical issue under the transactional test is whether the two actions are based on the same nucleus of operative facts. Res Judicata and Compulsory Counterclaims - Same result and claims are barred - In systems that have adopted compulsory counterclaim rules (including FRCP and California CCP), the effect of the rule is equivalent to res judicata, for the defendant. Intervenors - If a party intervenes in a suit, that party must pursue its claims in that suit or be barred by claim preclusion later. Non Parties - Does Res Judicata require not only joinder of all cause of action but all joinder of all possible parties? NO. * A court may raise the question of claim preclusion Sua Sponte.

Claim Preclusion

CONTOURS

PRECLUSION II

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COLLATERAL ESTOPPEL (ISSUE PRECLUSION)

Collateral Estoppel (Issue Preclusion): Refers to the finality attached to a final decision on an issue of fact or law. Rule for Collateral Estoppel: A judgment in a prior proceeding bars a party and its privies (those who have a legal relationship with that party, i.e. principal/agent, employer/employee, partners in business) from relitigating an issue if, but only if: (1) the issues in both proceedings are identical; (2) the issue in the prior proceeding was actually litigated and actually decided; (3) there was a full and fair opportunity to litigate in the prior proceeding; and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. CASES: Levy v. Kosher Overseers Association of America - Facts: Levy had brought a complaint before the trademark board (TTAB)
claiming that KOA was using a trademark that is causing confusion and unacceptably similar. TTAB found that trademarks were too similar and rejected KOA's application. Levy files a claim in federal court for infringement and seeking an injunction. Levy uses collateral estoppel offensively, stating that the question has already been litigated. Court rejects argument that issues were identical, noting that the standard for injunction under the Lanham act required analysis of the use in full commercial context, and TTAB based their determination on visual inspection.

ELEMENTS (1) + (2) Identical Issue Actually Litigated and Determined:

"Identical Issue" requirement: Even though both TTAB standard and Lanham standard were "likelihood of confusion", the district court was charged with whether there was "infringement", which required a different method of reaching a determination. Even small differences, or methodological differences, can prevent preclusion. "Actually litigated" requirement: Parties are genuinely adverse on an issue, and the evidence has been actually presented to the court. - Modern rule is that the issue is actually litigated if the parties are antagonistic to each other on the issue. - Concession of an issue: does not count as CE. If a party concedes an issue it does not matter that some evidence was presented and the court made a factual finding, issue has not been litigated. Jacobs v. CBS Broadcasting FACTS/HOLDING: Findings in an arbitration proceedings within a union as part of a collective bargaining agreement were held not to have collateral estoppel effect on later litigation because proceedings were found to be too informal and lack certain core procedural components. No oath, no cross-examination, no record, no discovery.

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ELEMENT (3) Full and fair opportunity to litigate

Rule: The full and fair opportunity to litigate requirement may be satisfied by a non-judicial proceeding, but that proceeding must be sufficiently formal and must offer sufficient procedural safeguards that the proceeding approximates a judicial proceeding. Administrative Agencies Rule: Administrative proceedings that approximate court litigation in affording the parties a full and fair opportunity to litigate are generally treated as equivalent to court litigation for purposes of collateral estoppel. Collateral Estoppel/ Burden of Proof - No preclusive effect if Burden of Proof is higher in the second action. - Under modern approach, a judgment of criminal conviction precludes the defendant from denying the allegations in a subsequent civil complaint as to issues that were actually litigated and adjudicated in the prior proceeding. - When there is a guilty plea: Can act as collateral estoppel, but there is reluctance to apply it when the criminal proceeding is of a minor crime. Question of whether a "little" finding of criminal liability supporting a major civil holding is a violation of Due Process. - Nolo Contendre: But, not nolo contendre (no contest) plea. Issues not considered litigated if nolo is pled. - No CE where the burden of proof is less in civil action: Acquittal in criminal action may still be followed by liability in civil trial because of difference in burden of proof.

Contours

PRECLUSION III
A judgment may have collateral estoppel (issue preclusion) effect not only between the parties to the original proceeding, but also between such a party and one who was not a party to the first action. COLLATERAL ESTOPPEL (ISSUE PRECLUSION) AGAINST OTHER PARTIES The Mutuality Rule Parklane Hosiery Co. Shore Class brings suit against D on violation of SEC regulations seeking damages, rescission of a merger, and recovery of costs. Class sought partial summary judgment on offensive CE based on the issues resolved in the SEC case, a bench trial, where proxy statements were found to be false. Court established that trial courts have broad discretion to determine when offensive CE should be applied, allowing it where application would be unfair to defendant or where P could have

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Rule in Parklane: Non-mutual, offensive CE is allowed unless plaintiff could easily have joined additional party in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant. Unfair If: 1) 1st case gave less motive to litigate (small); 2) Difference in forum made 1st case harder; 3) P had the option of joinder, and rejected it. 4) D had WON some prior judgments (inconsistency problem).