Escolar Documentos
Profissional Documentos
Cultura Documentos
Professor Richard
Summer 2006
B. Personal Jurisdiction
e. Courts must also have personal jurisdiction over the defendant –
determines which state a case can be brought in – same for both
federal and state courts within the same state.
f. Citizens of a state/individuals/corporations that engage in certain types
of activity within the state are always subject to personal jurisdiction
within that state – even when not personally served there.
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C. Venue: 28 USC 1391
g. Involves finding the proper locality of the court that is to hear the case
in cases where more than one court has both SMJ and PJ.
h. All cases begin in District Court – use venue rules to determine which
court to use if more than one are appropriate.
i. Under most state venue statutes – case can be brought in the district
where:
i. one party or the other resides or does business or
ii. in the district where the claim arose.
B. The Complaint
a. State courts and federal courts have different rules as to what goes in
the well-pleaded complaint
b. Bell v. Novick Transfer – A federal court is not required to apply state
well-pleaded complaint rule even when the case originated in state
court under state substantive law.
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C. The Response – 2 Basic Types
a. Pre-Answer Motions – that ask the court to take some action the
defendant’s favor – do not address the substance of the plaintiffs’
complaint and so do not require any factual development
i. Rule 12(b)(1)-(5) – some reason why the action cannot proceed
in the particular court where plaintiff filed
1. lack of SMJ, personal or venue, defective summons or
improper service
ii. Rule 12(b)(6) – belief that plaintiff has no right to relief under
the substantive law
iii. Rule 12(c) -- defendant may not understand the complaint
because the complaint is too vague – defendant moves for a
“more definite statement”
b. Answers – responds to specific allegations – 2 types
i. Rule 8(b) – denial of allegations -- defendant believes that an
allegation is untrue or does not know whether the allegation is
true
ii. Rule 8(c) -- affirmative defenses – such as plaintiff waived his
right to make a claim or statute of limitations expired, etc.
iii. Miscellaneous information re: answers:
1. Defendant will use more than one of pre-answer
motions – if they are denied – he must file an answer
c. Counterclaim – Rule 13 – defendant has a complaint against the
plaintiff – 2 Types
i. Compulsory Counterclaim – arises out of the same transaction
that gave rise to the plaintiff’s complaint
ii. Permissive counterclaim – does not arise out of the same
transaction as the plaintiff’s complaint
d. Cross Claims – Rule 13(g) – if the plaintiff sues more than one
defendant – the defendants can file cross claims against each other as
long as the cross claims arise out of the same transactions that gave
rise to plaintiff’s complaint
e. Third Party Claims – Rule 14 – a defendant can file a third party
claim if he believes that there is a party liable to him or any damages
claimed by the plaintiff.
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III. Parties to the Lawsuit
A. Permissive Joinder - Rule 20
a. Parties who may be joined to a lawsuit, as co-plaintiffs or co-
defendants, by the original plaintiff
B. Compulsory Joinder – Rule 12
a. A court can order, on a motion by the defendant, that a third party be
brought into the suit as a co-plaintiff or codefendant because the
outcome of the lawsuit might affect the third party’s interests.
b. Courts order joinder when the substantive law applied will involve the
rights or liabilities of a third party, or when more than one party is
claiming the same property, or when the relief granted to one party
will affect the interests of a third party.
c. CJ creates tension between the right of parties to a lawsuit to control
their own claims and strategies and the principle that the courts should
decide the claims of all parties who will be affected by the outcome of
the lawsuit.
C. Intervention – Rule 24
a. A party can petition the court to allow him to intervene as a
codefendant or co-plaintiff if he can show that the suit would inflict
hardship on him if conducted without him.
D. Class Actions – Rule 23
a. An alternative to the joinder of multiple plaintiffs – used when the
number of potential plaintiffs is so great that it would make more sense
to allow a few parties to represent the entire class in the lawsuit.
IV. Discovery
A. Definition: allows parties to obtain information from each other and from
individuals and entities that are not parties to the suit
a. Butler v. Rigby – a legal privilege can be used to protect information
from discovery under Rule 26
B. 5 Methods
a. Required Disclosures – Rule 26(a)(1) – the parties to the lawsuit are
required to provide each other with certain basic information
b. Inspection of Documents
i. Rule 34 – a party can request that the opposing party provide
him with documents
ii. Rule 45 – a party can obtain documents from other witnesses
by subpoena
iii. Documents definition – printed and written papers and records
as well as sound recordings, videotapes, photographs, and
email.
c. Oral Depositions – Rule 30 and 45 – a party can question any witness
with information about the suit under oath in the absence of a judge.
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d. Written Interrogatories – Rule 33 – a party can send another party
written questions to be answered in writing – cannot be used to gain
information from nonparties
e. Physical and Mental Examinations – Rule 35 – a party may move from
a court order allowing him to obtain a physical or mental examination
of another party – must show that the condition to be examined is a
matter in dispute
VI. Trial
A. Steps in the Process
1. Court notifies parties of trial date
2. Jury selected
a. Judge and attorneys question prospective jurors
b. Both parties may challenge jurors for cause or make peremptory
challenges – challenges for which no cause is stated.
3. Attorneys each make opening statements
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4. Plaintiff presents his case
a. Introduces evidence and calls his witnesses – each witness is examined
and cross-examined
b. After cross-examination, the plaintiff can redirect testimony and the
defendant is given the opportunity to re-cross
5. Defendant has the opportunity to move for Judgment as a matter of law
(Directed Verdict) under Rule 50(a)
a. It is the defendant’s way of saying that even if everything the plaintiff
has said is true, under the substantive law applied – plaintiff has no
relief
6. Defendant Presents his case
7. Plaintiff can now move for directed verdict
8. Rebuttal -- Plaintiff rebuts the defendants case and Defendant is given an
opportunity to rebut the rebuttal
a. General rule – a party can only rebut new issues that were raised in the
previous stage of the trial.
9. Now – either party can move for Directed Verdict under Rule 50(a) – not
usually granted
10. Both parties make Closing Arguments, Judge gives jury instructions or charge
a. This explains the jury what law applies to the evidence - and the
parties can object to any portion of the charge they think is erroneous
(Rule 51)
11. Jury Returns Verdict
12. Losing party can move for new trial or for a judgment as a matter of law
(Judgment Not-withstanding the Verdict) up to 10 days after the jury verdict
given (Rule 50(b) and 59)
13. Losing Party can Appeal the court’s final judgment if raised a point during the
trial that he believes was disposed of erroneously
14. Party can move to set aside the judgment (rare – in cases like evidence of
criminal conduct by the judge) – Rule 60(b)
C. No Jury Trial
a. Motion for Judgment as a Matter of Law – court can dispose of case
on motion when the party that carries the burden of proof cannot
produce enough evidence to meet that burden – will be granted if court
believes that a reasonable jury could come to only one verdict.
b. Jury must weigh material issues of fact and decide the credibility of
witnesses – courts do not take witness credibility into account in
deciding on Motions for JNOV
i. Norton v. Snapper Power Equipment – A JNOV cannot be
granted after a motion for a directed verdict has been denied
based on the same facts.
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VII. Former Adjudication
• Similar to double jeopardy in a criminal case – if a party to a case is not happy
with the outcome – he should not be able to bring the same case again.
A. Which issues can be litigated in 2nd Action
1. Claim Preclusion (Res Judicata) – if a plaintiff loses a case, he
cannot bring another action based on the same claim. If the
defendant loses he cannot bring a second action in order the set
aside the first judgment.
2. Issue Preclusion (collateral estoppel) – if the party to case raises an
argument based on the set of facts in that case and is unsuccessful,
he cannot use that same argument based on those same facts in a
second action with the same opposing party. Conversely, if a party
prevails on an issue, he may assert that issue as binding in a
subsequent matter.
Example: if A sues B on a promissory note and B alleges
fraud as a defense, if B loses he will not be able to assert
fraud based on the same events in any subsequent
promissory note suit that A brings.
B. Rush v. City of Maple Heights – whether or not injuries to both person
and property resulting from the same wrongful act are to be treated as
injuries to separate rights or as separate items of damage, a plaintiff may
maintain only one action to enforce his rights existing at the time such
action is commenced.
I. Introduction
A. General Information
1. SMJ deals with types of cases a court can hear – personal jurisdiction
limits courts in relation to a particular defendant.
2. Courts must have both personal and SMJ over a claim to proceed with the
case.
3. Art. III, Sect. 1 – gives Congress power to create federal courts
4. Art. III, Sect 2 – establishes the scope of the federal judicial power
5. Concurrent Jurisdiction – cases arising under federal law can be brought in
both state or federal courts
6. Federal courts have exclusive jurisdiction over certain types of actions
such as bankruptcy and antitrust cases
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B. Reasons for Preference between courts
a. Federal courts have shorter waiting times for trial
b. Jury in one area may be more desirable than another
c. Local state judge may be more or less sympathetic to a local case than
a federal judge
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3. Created to combat the fear that state courts would be biased against
litigants from out of state.
B. Citizenship
1. Redner v. Sanders –Residency is not synonymous with citizenship
a) Citizenship depends on present domicile (residency) and
intent to remain indefinitely
b) Time for measuring citizenship for diversity purposes is as
of the date on which the complaint is filed in federal court
(commencement).
2. Individual has only one domicile – evidence by drivers license,
voter registration, bank accounts, etc.
E. 28 USC 1332 (a) Amended – provides that an alien admitted to the US for
permanent residence is deemed a resident of the state in which the alien is
domiciled.
1. Eliminated diversity between a state citizen and a permanent
resident alien living in the same state
2. Saadeh v. Farouki -- interpreted not to extend diversity over an
action between an alien and another alien who has achieved
permanent resident immigration status in the US
F. Amount in Controversy
1. 28 USC 1332 also requires an amount greater than $75,000 to be in
controversy for federal jurisdiction to be present.
2. Courts view allegations in the pleading as controlling and do not
guess about the likelihood of the plaintiff collecting what is asked
for
3. Different claims may be aggregated to meet the amount:
a) Single plaintiff with two or more unrelated claims against a
single defendant may aggregate the claims to meet he the
statutory amount
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b) Two plaintiffs with claims against a single defendant cannot
aggregate if their claims are separate and distinct.
c) Where there are multiple plaintiffs or multiple defendants
with a common interest and a single title or right, the value
of the total interest is the amount in controversy
4. Counterclaims – when a plaintiff’s claim exceeds $75,000, a
compulsory counterclaim may be heard regardless of the amount,
but a permissive counterclaim requires an independent basis for
jurisdiction
G. Not subject to Diversity Jurisdiction – domestic cases, successions, probate
matters – can only be brought in state court
V. Removal
A. 28 USC 1441 – generally allows a defendant to remove a case if the
plaintiff could have originally filed the case in federal court.
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4. Need to file notice of removal in federal and state court and
removal must happen within 30 days of notice
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(2) State law requiring plaintiff to post bond when
filing a shareholders’ derivative suit applied
although no similar federal statute exists.
(3) State law determines the enforceability of
arbitration agreements
(4) State law denying out of state corporations not
qualified to do business in the state the right to sue,
applies to federal courts within the state
2. FRCP & REA – gives the supreme court the power to adopt
procedural rules as long as they do not abridge, enlarge or modify
substantive right and preserve the right to jury trial
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2. Rule – The claim preclusive effect of a judgment on the merits in a
federal diversity action is governed by the law of the state in which
the federal court sits.
I. Constitutional Framework
A. Jurisdiction – signifies the power of a court to render a judgment that other
courts and governmental agencies will recognize and enforce.
B. Personal Jurisdiction – power of one court to render a binding judgment on
someone who may have never been in the state
C. Basis in the Constitution
1. Art. III, Sect. 2 – sets forth the jurisdictional boundaries of federal
courts
2. Art. IV, Sect. 1 – the Full Faith and Credit Clause which requires
one state to recognize and enforce judgments of another state
3. Sect. 1 of the 14th Amendment Due Process Clause – provides that
no state shall deprive one of life, liberty or property without due
process of law.
4. Supremacy Clause of Art. IV – provides that the constitution and
federal laws are the supreme law of the land even if contrary to
state law.
5. Erie Doctrine – holds that in the absence of controlling federal law,
the federal courts must look to the law of the state.
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C. Pennoyer v. Neff – service of process by publication in a newspaper is
valid for in rem jurisdiction, but will not suffice for in personam
jurisdiction.
1. Held that service by publication on one not present within the state
and who owned no property in the state at the time the action was
commenced, was not valid
2. Involved concepts of consent and presence – if a defendant
consented to the state’s assertion of power or if the defendant was
present in the state, jurisdiction existed.
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b) Court held that neither the ownership of shares of stock of a
corporation located in the forum state nor holding positions
as directors and officers of the corporation, is sufficient
minimum contacts to support jurisdiction over individual
defendants.
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b) Held that where a car was sold and distributed in one state,
and the buyers were involved in an accident while driving it
through another state, the seller and distributor defendants
did not purposefully avail themselves of the state where the
accident occurred.
c) It does not matter that it was foreseeable that the car would
be driven in other states.
d) Court ruled that it was not foreseeable that the defendants
would be haled into court in a state where they did not
conduct business or intend to have the products reach that
market.
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c) The court held that whether a franchisee entered into a
contract with the franchiser which expressly provided which
state’s law would govern, it was up to the non resident
franchisee to show that he would be unfairly prejudiced or
harmed by having to defend in that state. Since he
purposefully availed himself with a company from another
state, SMC existed, even though he does not do any
business within the state.
d) Without any showing of unfairness or harm, the franchisee
is subject to the jurisdiction of the forum state.
C. General Jurisdiction
1. Arises when the activities in the forum state are so substantial and
continuous that they need not have a connection to the cause of
action alleged.
2. Coastal Video v. The Staywell Corp
a) Facts – Coastal, a Virginia corporation distributing
copyrighted employment manuals sued The Staywell
Corporation in Virginia federal court for copyright
infringement.
b) Rule – A court may exercise general jurisdiction over a non-
resident corporation if the corporation conducts a substantial
and continuous corporate operation within the state.
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V. Notice
A. Note: In addition to jurisdiction, due process requires that a defendant be
given notice that proceedings have been instituted against him. This
requires that reasonable efforts be made to provide notice to persons
affected.
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a) If there are a number of federal district courts within a state,
venue statutes will provide which district is proper.
b) Venue may be determined by the place of defendant’s
residence or where the activity that is the subject of cause of
action took place.
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b) Piper Aircraft v. Reyno
(1) In applying the doctrine of forum non conveniens,
the fact that the substantive law is less favorable to
a plaintiff in an alternative forum than the one in
which the action was originally brought should not
be given conclusive or substantial weight.
Chapter 6 – Pleadings
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B. Rule 11 Information:
1. Requires all pleadings signed by at least one atty working on it
2. Only filed papers are covered
3. Does not apply to Discovery
4. Need name, address and telephone number (if not there – pleading
may be stricken from the record)
5. Applies to any paper presented to the court
6. Certified – as to truth and reasonableness
C. Walker – issued sanctions b/c not complete diversity
D. Christian -- issued sanctions b/c should have been easily able to discover
error
E. Safe- Harbor – 21 Days Notice
1. Rule 11(c)(1)(a) – file motion then serve it 21 days later
2. Judge on it own may issue sanctions – safe harbor does not apply
3. Court may impose sanction on:
a) Attorneys, or
b) Parties – if they violated the rule or was responsible.
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3. Rule 12(b) Defenses: (Most common)
a) Lack of SMJ
b) Lack of PJ
c) Improper venue
d) Insufficiency of process
e) Insufficiency of service
f) Failure to state claim for relief
g) Failure to join party
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a) Courts have interpreted this to mean:
(1) That the would-be amender should have a good
reason for net getting the pleading right the first
time
(2) That allowing the change should not hurt the other
side too much
b) Beech v. Aquaslide – a court does not abuse its discretion
by allowing an amendment to an answer which initially
admitted responsibility but now seeks to deny it.
2. Party may amend once without court permission
3. Must amend before responsive pleading is filed
4. Can obtain court permission after the deadline – court will usually
grant leave to amend but if the other party can show negligence or
carelessness – the court may not allow
E. Relation back
1. Rule 15(c) -- permits an amended pleading to relate back to the date
of the original pleading whenever the claim or defense asserted in
the amended pleading arose out the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original
pleading.
2. Issue with this Rule: Whether the original complaint, gave notice
to the defendant of the claim that is now being asserted
a) Moore v. Baker – in order to relate back to the time of the
original complaint, a proposed amendment must have its
basis in the same facts that are alleged in the original
complaint.
b) Bonerb v. Richard – A claim will relate back if the
operational facts set out in the original complaint are
sufficient to put the defendant in notice that the amended
claim could be brought.
Chapter 13 – Joinder
I. Joinder of Claims
A. Rule 13 & 18 allow P and D who are already in a suit to file additional
claims arising against the other – certain counter claims are compulsory
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B. Rule 18(a) – provides that “a party asserting a claim to relief as an original
claim, counterclaim, cross-claim, or third party claim, may join … as many
claims as the party has against the opposing party (plaintiffs or defendants)
1. Does not require the same transaction test
2. Court must have SMJ over all claims (significantly restricts)
C. Counterclaims
1. Rule 13 – allows a defendant to bring any claims that she may have
against the opposing party
a) Permissive counterclaim – Rule 13(b) – defendant can bring
any claim he ahs against the plaintiff, regardless of whether
it is related in any way tot the plaintiffs claim
b) Compulsory counterclaim – if the defendant has a claim that
arises out of the same transaction or occurrence as the
plaintiff’s claim, defendant must raise the claim in his
responsive pleading
(1) Test: Logical relationship test – are the two claims
logically related in any way
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IV. Adding Parties to Counterclaims & Cross-claims
A. Rule 13(h) – allows a party to add additional parties to the cross claim or
counterclaim.
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2. May the parties be joined?
a) If court determines party should be joined – next step
whether party can add -- personal and SMJ must be present
3. Consequences of Non-Joinder
a) Court will determine whether to dismiss by looking at the
factors listed below of Rule 19(b)
F. If court orders joinder and plaintiff refuses – case is usually dismissed
G. If one can’t join b/c of jurisdiction – then consider:
1. The extent to which a judgment rendered in the person’s absence
would prejudice the absent person or the parties (degree of
prejudice)
2. Whether any prejudice could be reduced by protective provisions in
the judgment, shaping of relief or other measures
3. Whether a judgment rendered in the person’s absence will be
adequate (judgment adequate)
4. Whether the plaintiff will have an adequate remedy if the case is
dismissed.
VII. Intervention
A. Rule 24 – allows strangers to the suit to join as parties in order to protect
their rights or interests
B. Permissive Intervention – Rule 24(b)
1. Party may seek to intervene when either:
a) A federal statute grants a conditional right or
b) When the applicant’s claim or defense shares a common
question of law or fact with the existing suit.
C. Intervention by Right – Rule 24(a) – right to intervene without court
permission
1. A party has a right to intervene when either of the following are
met:
a) A federal statute grants an unconditional right to intervene
b) Applicant:
(1) Claims an interest relating to property or
transaction
(2) Is so situated that the disposition of the action may
as a practical matter impair or impede the
applicant’s ability to protect that interest, unless
(3) The applicant’s interest is adequately protected by
existing parties.
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2. Stakeholder – person who is in possession of the stake
3. Claimants – parties who seek to obtain the property or performance
of the obligation
C. 2 Types of Interpleader
1. Rule Interpleader – Rule 22
a) Allows stakeholder to commence an interpleader action in
federal court
b) Jurisdiction and venue same as any other federal case -
must have SMJ, PJ and venue
2. Statutory Interpleader – 28 USC 1335—more useful
a) SMJ – requires only minimal diversity among the claimants
(1) Citizenship of stakeholder usually not considered-
at least one claimant diverse from any other
claimant
(2) Amount in Controversy – stake must be worth
$500 or more
b) PJ – (28 USC 2361) – allows court to serve process
anywhere in the United States
c) Venue (28 USC 1397) – venue proper in any judicial district
where one or more of the claimants reside
X. Consolidations of Actions
A. Rule 42(a) – allows a court to consolidate existing actions that are currently
pending before it if those actions involve a “common question of law or
fact”
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3. Standards for determining whether action is appropriate as class
action: Rule 23 (a)
a) Numerosity – so numerous that joinder of all members is
impracticable
b) Commonality – there must be questions of law or fact
common to the class
c) Typicality – claims or defenses of the representative parties
are typical of the claims or defenses of the class
(1) Turns on several factors – size of claim, legal
source of claim, whether representatives or
members are subject to any defenses
d) Adequacy – requires that the representative parties will
fairly and adequately protect the interests of the class
4. Categories of CA
a) Rule 23(b)(1) – numerous necessary parties – many absent
parties, each of whom, generally speaking, meets the test for
a “necessary party” under 19(a)
b) Rule 23 (b)(2) – Injunctive or Declaratory Relief – where
the party opposing the class has acted or refuse dot act on
ground generally applicable to the class, thereby making
appropriate final injunction or corresponding relief with
response to the class as a whole
c) Rule 23(b)(3) – The “Damages” Action – catchall category
designed to deal with situation where class actions might
still be appropriate but where the claims are not as
intertwined
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Chapter 7 – Discovery
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2. Pretrial Disclosures – Rule 26(a)(2-3)
a) Expert testimony - identity and report
(1) Signed
(2) Qualitifcations
(3) Opinions and grounds for opinions
(4) All information considered
(5) Amount of compensation
(6) Experience over last 4 year
(7) Disclose 90 days prior to trial
b) Lay Witnesses – name and contact information for all may
call at trial (disclose 30 days prior to trial)
c) Tangible Evidence – documents, etc that may be used at
trial – disclose at least 30 prior to trial
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6. Corporations
a) Rule 30(b)(6) – allows party to notice depo of corporation
and describe in detail information sought
b) Corporation must designate one or more persons within the
organization or who agrees to testify on behalf of org.
c) If party knows particular person he wants to depose at the
corporation – just notice the depo of that person and not the
depo of the corporation
7. Depo Procedure
a) Depo can take place anywhere or by telephone
b) Question and Cross examining section
c) Objections – can be made as to form or content – must be
made precisely and non-argumentatively
8. Protective Orders
a) Rule 30(d)(4) – allows party to seek protective order when
the deposition is conducted in bad faith or in a way that
unreasonably annoys, embarrasses or oppresses the
deponent
(1) Order must be obtained from judge in the district
where the depo is taken
(2) Not often used
9. Time Limit – Rule 30(d)(2) – one day of 7 hours unless court order
10. Deposition before commencement of action – “Depo for the
Perpetuation of Testimony” – taken to preserve the testimony of an
important witness who is in poor health or about to leave the
country
B. Interrogatories
1. Written questions that the recipient answers under oath
2. Only against parties – no court approval
3. If non party – nothing prevents sending them – they just don’t have
to answer them
4. No more than 25 questions unless the court approves more – each
subpart constitutes a question
5. Must be answer w/in 30 days
C. Inspection of Documents
1. Rule 34 – allows party to inspect documents and tangible things in
the possession of other parties
2. Two ways to Inspect documents of non parties:
a) Noticing the depo of a person with subpoena duces tecum
requiring person to bring documents
b) If no testimony is necessary – just send subpoena requiring
non party to produce and permit inspection of tangible items
or to permit inspection on the premises
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D. Request for Admissions
1. Rule 36 – allows a party to ask another party to admit certain
matters
2. If other party does not object or deny the matter, it is deemed
admitted
E. Physical/Mental Examinations
1. Rule 365 – makes it possible to force a party to submit to a physical
or mental exam
2. Must have a court order (unlike the rest of discovery)
F. Protective Orders
1. Rule 26(c) – allows a court to enter a protective order limiting
discovery when needed to protect a person or party from
“annoyance, embarrassment, oppression, or undue burden or
expense”
2. Trade Secrets – secret information
a) Court may conduct an in camera inspection – provided to
court and not to the other parties
b) Court then distills and provides the parties just what they
need
G. Work Product
1. Rule 26(b)(3) – covers documents and tangible things prepared in
anticipation of litigation
2. Can only be obtained upon a showing of Need and cannot be gotten
from any other source
H. Expert Information
1. Rule 26(b)(4) – governs discovery of information and opinions held
by experts
2. Clear distinction between those who may testify at trial and those
who are retained but will not testify
a) Mandatory disclosures – provide information from one who
may testify
b) If not testifying – usually not discoverable, but upon a
showing of need – may discover
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4. Compelled Discovery
a) Rule 37(a) – if party doesn’t comply then party can seek to
compel the discovery and get order from the court
b) Order may impose sanctions
I. Settlement
A. Settlement – most cases settle – judicial approval unnecessary
B. Informal Dismissal – Plaintiff voluntarily dismisses
C. Formal Dismissal – by consent decree entered into by both parties and
signed by court – has effect of final judgment
II. Default
A. Rule 55 – person who fails to respond to a claim can be declared in default
and may have judgment rendered against it
B. 2 Stages:
1. Entry of Default – Rule 55(a)
a) When party fails to plead or otherwise defend the case
2. Default Judgment – after default is entered, claimant may mover for
enter of the default judgment
D. All other cases, the court (judge) enters the default judgment (after motion
and hearing, etc)
E. Rule 54(b) – judgment by default cannot award damages in excess of that
set out in the complaint, nor can it grant relief that is different from that
requested in the complaint
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F. Challenges to DJ: Rule 55(c) and 60(b)
1. Entry – have the entry set aside by showing good cause why it did
not plead or otherwise defend
2. Default Judgment – have judgment set aside if the party can show
procedural irregularities
a) If procedural is so significant that it results in denial of due
process – automatic grounds for reversal.
III. Involuntary Dismissal
A. Rule 41(b) – allows the court to order dismissal for two reasons:
1. Failure to prosecute – if the plaintiff fails to move the case along to
completion, the court can dismiss it
a) Rare
2. Failure to comply with rules or court order
a) Due to defect – lack of jurisdiction, etc.\
b) Sanction – sanction dismissals are rare
B. Effect – Rule 41(b) – Dismissal will be an adjudication on the merits which
prevents plaintiff from suing the defendant again.
1. Basic Rule – Involuntary Dismissal operates as an adjudication on
the merits unless of the following are true:
a) Court dismisses for lack of SMJ, PJ, or
b) Dismissal for failure to join a necessary party OR
c) Court specifies in the dismissal order that adjudication is not
on the merits
IV. Voluntary Dismissal – voluntary on Plaintiff’s part
A. 3 Ways Case can Be Dismissed:
1. By Notice – if defendant not answered, or a motion for summary
judgment
a) May be done w/o court approval
b) Dismissal effected by Notice of Dismissal filed with court
2. By Stipulation – plaintiff can file a written stipulation of dismissal
that has been signed by all parties who have appeared in the case
a) Can occur at any point during the case
3. By Court Order – plaintiff files a motion asking the court to dismiss
B. Whether the case can be refiled depends on the type of dismissal:
1. If by Court order or stipulation – it is w/o prejudice and Plaintiff
can refile – unless the stipulation states otherwise
2. Dismissal by notice is usually w/o prejudice – but notice of
dismissal is an adjudication on the merits if it is filed by a plaintiff
who has previously dismissed another action based on the same
claim
V. Random Alternative Dispute Resolution (he mentioned it in class – can’t figure
out its relevance here --- Sorry!!)
VI. Summary Judgment
A. Rule 56 – allows filing Motion for Summary Judgment (MSJ) – gives the
court a limited ability to look beyond the language of the pleadings to the
actual facts that each side has marshaled to support its case
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B. Procedure
1. Party may seek SJ on all claims in the case or a Partial Summary
Judgment on one or more specific claims (Rule 56(a))
2. Both claimant and defendant can move for SJ on a particular claim
– common for both to do so
a) File a motion for SJ
b) Accompany motion by:
(1) Affidavit
(2) Answer to interrogatories
(3) Transcripts of Depositions
C. Standard
1. Rule 56(c) – provides that the court shall grant SJ if there is:
a) No genuine issues of material fact and
b) The movant is entitled to judgment as a matter of law (the
law that governs the issue is in favor of the mover to
prevail)
D. Timing is Critical
1. Rule 56(c) – MSJ must be served at least 10 days prior to the
hearing on the motion
E. Opposition to MSJ – opposing party may submit its own evidence
supporting its side of the argument – including affidavits and memos
F. Effect
1. If SJ granted – has effect as final judgment if granted as to the
entire case
2. Losing party is entitled to appeal – usually heard on de novo (as if
never tried to begin with)
3. If moving party loses – no right to appeal
I. Authority
A. 7th Amendment of US Constitution – right of trial by jury shall be
preserved”
1. Does not create the right – but reserves it – not applicable in all
cases
2. Applies only to civil cases in federal court
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C. Demand:
1. Jury Trial is a personal right of the parties and can be waived by the
parties
2. Rule 38(b) – party must serve on the other parties a written demand
for jury within 10 days following service of the last pleading
dealing with the issue for which a jury is demanded.
3. Any party can file a demand
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2. Challenges for Cause:
a) Number unlimited
b) Grounds for justification:
(1) Personal relationship with anyone involved (judge,
attorneys, witnesses, etc.)
(2) Juror is employed by one of the parties, etc
(3) A strong predisposition for or against one side
based on reasons other than law
3. Peremptory Challenges
a) Limit 3 for each party – exclude juror without reasons
b) US Supreme court can limited the use if it detects patterns
based on race, gender, national origin, etc.
V. Jury Instructions
A. Judge instructions the jury as to the law to use in the case
B. Instruction drafted by the parties
C. Objections – atty can object and state reasons to any instruction
D. Federal court and federal rules give the judge lot of discretion
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B. Two categories where courts will grant a new trial
1. jury clearly reached the wrong conclusion
2. serious procedural error
C. Can regard the entire case or small limited area
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