Civil Procedure

Law School Legends

Professor Richard D. Freer

I. Personal Jurisdiction
! A. In Personam Jurisdiction
! ! 1. Constitutional Standard – Due Process Analysis
! ! ! a. Pennoyer v. Neff – The state has power, and therefore jurisdiction, over
! ! ! people and things within its boundaries – Four traditional bases of in
! ! ! personam jurisdiction
! ! ! ! i. Defendant was served with process in the forum – general
! ! ! ! jurisdiction (presence as the basis of jurisdiction)
! ! ! ! ii. Defendant’s agent was served while in the forum
! ! ! ! iii. Defendant is domiciled in the forum
! ! ! ! iv. Defendant consents to personal jurisdiction
! ! ! b. Hess v. Pawloski – Supreme Court expanded personal jurisdiction by
! ! ! expanding traditional bases
! ! ! c. International Shoe Co. v. Washington – The court has jurisdiction if the
! ! ! defendant has such minimum contacts with the forum so that exercise of
! ! ! jurisdiction does not offend traditional notions of fair play and substantial
! ! ! justice.
! ! ! d. Hanson v. Denckla – Purposeful availment. To be a contact, it must result
! ! ! from the defendant’s purposeful availment of the forum.
! ! ! e. World-Wide Volkswagen v. Woodson – It must be foreseeable that the
! ! ! defendant could get sued in the forum.
! ! ! f. Burger King Corp. v. Rudzewicz – International Shoe consists of two parts.
! ! ! (1) contact, and (2) fairness. To show jurisdiction is unfair, D must show that
! ! ! defending the case is so gravely difficult and inconvenient that you are at a
! ! ! severe disadvantage in the litigation. However, the relative wealth of the
! ! ! parties is irrelevant.
! ! ! g. Asahi Metal Industry v. Superior Court – Stream of commerce case.
! ! 2. Statutory Inquiry
! ! ! a. Every state claims general jurisdiction over a defendant who is served with
! ! ! process in the forum.
! ! ! b. Every state has a statute that gives general jurisdiction over a defendant
! ! ! who is domiciled in the forum.
! ! ! c. Every state has a non-resident motorist act.
! ! ! d. Long-Arm Statute – Every state has one, to allow jurisdiction over
! ! ! non-residents. Two types:
! ! ! ! i. California statute – Statute reaches to the full extent of due process
! ! ! ! ii. Laundry list statute – A non-resident defendant can be sued in the
! ! ! ! state on a claim that arises from the defendant doing something
! ! ! ! specific in the forum.
! B. In Rem and Quasi-in-Rem Jurisdiction
! ! 1. Definitions. Here, the jurisdiction is over the defendant’s real or personal property.
! ! ! a. In Rem Jurisdiction – The case is about ownership of the property itself.
! ! ! b. Quasi-In-Rem Jurisdiction – Lawsuit has nothing to do with ownership of
! ! ! the property, but property is used for a jurisdictional basis.
! ! 2. Attachment.
! ! ! a. We can attach the property if it is something a non-resident defendant owns
! ! ! or claims to own.
! ! ! b. Constitutional Requirement – Property must be attached at the outset of the
! ! ! case. And under Shaffer v. Heitner, D must meet the International Shoe test.
! C. Full Faith and Credit
! ! ! a. In Personam Jurisdiction – If there is a valid judgment, it is valid where it
! ! ! was rendered, and it is entitled to full faith and credit in other states.
! ! ! b. In Rem and Quasi-in-Rem – Valid to the extent of jurisdiction, so the
! ! ! judgment is only good up to the value of that property.
II. Notice and the Opportunity to Be Heard
! A. Service of Process
! ! 1. Process – Process consists of a summons and a copy of the complaint.
! ! 2. Rule 4(c)(2) – Service can be effected by any non-party who is at least eighteen
! ! years old.
! ! 3. Process must be served within 120 days after filing the complaint. If you do not,
! ! the court will dismiss the case without prejudice, unless you can show good cause for
! ! that delay. Rule 4(m).
! ! 4. Service of process on an individual. There are 3 alternative methods for service of
! ! process:
! ! ! a. Personal Service – Deliver the papers directly to the defendant – can be
! ! ! done anywhere in the forum state.
! ! ! b. Substituted Service – This is OK only at the defendant’s dwelling or usual
! ! ! abode, AND you must serve someone of suitable age and discretion who
! ! ! resides there.
! ! ! c. Agent Service – Serve the defendant’s agent.
! ! ! d. Rule 4(e)(1) – The court may also use any method for service of process
! ! ! that is allowed by state law of the state where the federal court sits OR in
! ! ! which service was effected.
! ! 5. Service of process on a corporation. You must serve an officer or managing or
! ! general agent of that corporation. Also, Rule 4(e)(1) applies.
! ! 6. Waiver of service – Method for waiving formal service of process. Send process
! ! and waiver form to defendant with a self-addressed stamped envelope. If she returns
! ! it, then she waives service of process. If she does not waive formal
! ! service, then the plaintiff will have to have service affected formally. Then, though,
! ! the defendant will have to pay for the service.
! ! 7. Rule 4(k)(1) – Can serve process throughout the state in which the federal court
! ! sits. We can serve process out of the state only if a state court could have served the
! ! process there, as well.
! ! ! a. Exceptions:
! ! ! ! i. Rule 4(k)(1)(B) – We can serve process from a federal court out of
! ! ! ! state as long as it is within 100 miles of a federal courthouse.
! ! ! ! However, this does not apply to service of process on an original
! ! ! ! defendant. It only applies to parties who are joined later under Rules
! ! ! ! 14 or 19.
! ! ! ! ii. Rule 4(k)(1)(C) – Federal statutes may allow for more service of
! ! ! ! process outside of the state.
! B. Constitutional Standard for Notice
! ! 1. Mullane v. Central Hanover Bank – Notice must be reasonably calculated under
! ! the circumstances to apprise the defendant of the suit.
! ! ! a. Jones v. Flowers – usually it is not required that D actually receive the
! ! ! service; but if P is aware that D has not, due process may require that P make
! ! ! further effort to ensure notice.
! ! 2. Notice by publication – Usually in the newspaper. This type of notice might be
! ! okay. Last resort.
! C. Opportunity to Be Heard
! ! 1. Major factors to protect the defendant:
! ! ! a. Defendant gets a hearing on the merits at some point.
! ! ! b. Plaintiff must give an affidavit of its claim.
! ! ! c. May require that the plaintiff’s affidavit state the facts in specificity.
! ! ! d. Get a writ of possession from a judge, not a sheriff.
! ! ! e. Plaintiff may be required to post a bond.
! ! ! f. Defendant gets the property back pending litigation by posting a bond.
III. Subject Matter Jurisdiction – What court do we go to: state court or federal court?
! A. Diversity of Citizenship
! ! 1. § 1332(a)(1) – Requirements for a diversity of citizenship case. Two requirements:
! ! ! a. Case must be between citizens of different states.
! ! ! ! i. Complete diversity rule for invoking diversity jurisdiction – there is
! ! ! ! no diversity if any plaintiff is a citizen of the same state as any
! ! ! ! defendant. (Strawbridge v. Curtiss)
! ! ! ! ii. Test for diversity when the case is filed. A subsequent change in
! ! ! ! citizenship is irrelevant.
! ! ! ! iii. An American is a citizen of the state in which she is domiciled.
! ! ! ! Domicile is established by two concurrent factors:
! ! ! ! ! (1) you must be present in the state, and
! ! ! ! ! (2) you must form the intent to make it your permanent home.
! ! ! ! iv. The citizenship of a corporation. For a corporation, citizenship is
! ! ! ! defined by §1332(c)(1). Corporation is a citizen of all states where
! ! ! ! incorporated, and the one state where it has its principal place of
! ! ! ! business.
! ! ! ! v. Citizenship of an unincorporated business, such as partnerships or
! ! ! ! limited liability companies (LLCs). Look to the citizenship of all
! ! ! ! members.
! ! ! ! vi. What happens when representatives sue on behalf of others?
! ! ! ! ! (1) §1332(c)(2) – Suits on behalf of decedents, minors, and
! ! ! ! ! incompetents – In those cases, you look to the citizenship of
! ! ! ! ! the person being represented, not the citizenship of the
! ! ! ! ! representative.
! ! ! ! ! (2) Class action suit – Look at the citizenship of the
! ! ! ! ! representative only, not the citizenship of those being
! ! ! ! ! represented.
! ! ! b. Amount in controversy must exceed $75,000.
! ! ! ! i. § 1332(a)(1) – The amount must exceed $75,000, not counting
! ! ! ! interest on the claim or costs.
! ! ! ! ii. The plaintiff’s claim governs unless it is clear to a legal certainty
! ! ! ! that she cannot recover that much.
! ! ! ! iii. Plaintiff’s ultimate recovery is irrelevant to subject matter
! ! ! ! jurisdiction.
! ! ! ! iv. Aggregation is where we add together two or more claims to get
! ! ! ! over $75,000. We aggregate claims if there is one plaintiff versus one
! ! ! ! defendant. You cannot aggregate if there are multiple parties on either
! ! ! ! side. However, if there have joint claims, you go with the total value.
! B. Federal Question
! ! 1. §1331 – A claim that “arises under” federal law. Citizenship is irrelevant and
! ! amount in controversy does not matter.
! ! ! a. Look only at the plaintiff’s complaint. Do not look at anything the
! ! ! defendant does, either in answer or counterclaim.
! ! ! b. Well-pleaded complaint rule – Look only at the plaintiff’s claim. To test,
! ! ! ask: is P enforcing a federal right? If so, it is probably a federal question
! ! ! case.
! C. Supplemental Jurisdiction
! ! 1. United Mine Workers of America v. Gibbs – Federal court has supplemental
! ! jurisdiction over claims that share a common nucleus of operative fact with a
! ! jurisdiction-invoking claim. Common nucleus test is always met by a claim that
! ! arises from the same transaction or occurrence as the claim that has invoked an
! ! independent basis of federal subject matter jurisdiction.
! ! 2. § 1367 now codifies the doctrine of supplemental jurisdiction. A case is properly
! ! in federal court, but there is a claim in the case that does not meet diversity or federal
! ! question. Supplemental jurisdiction can make it possible for the court to hear this
! ! claim. Apply §1367 in two steps.
! ! ! a. Does §1367(a) grant supplemental jurisdiction to this claim?
! ! ! ! i. Yes, if it meets Gibbs. Grants supplemental jurisdiction to all claims
! ! ! ! that share a common nucleus of operative fact with the claim that got
! ! ! ! the case into federal court.
! ! ! b. §1367(b) – Cuts back on that grant of supplemental jurisdiction, but only in
! ! ! certain situations.
! ! ! ! i. § 1367(b) applies only in diversity cases to the following claims:
! ! ! ! ! a. Claims by plaintiffs against parties joined under Rule 14,
! ! ! ! ! 19, 20, or 24
! ! ! ! ! b. Claims by Rule 19 plaintiffs.
! ! ! ! ! c. Claims asserted by people seeking to intervene as a plaintiff
! ! ! ! ! under Rule 24.
! D. Removal
! ! 1. Governed by §§ 1441, 1446, 1447.
! ! ! a. Removal is a one-way street. It only goes from state court to federal court.
! ! ! b. All defendants must agree to removal.
! ! ! ! i. Minor exception under §1441(c) – A single defendant can remove if
! ! ! ! there is a separate and independent federal claim against her.
! ! ! c. Only defendants may remove. Plaintiffs cannot remove.
! ! ! d. § 1441(a) – You remove to the federal district embracing the state court
! ! ! where the case was filed.
! ! ! e. We remove within 30 days of the case becoming removable.
! ! ! f. Can remove if the case has federal subject matter jurisdiction.
! ! ! ! i. Two Exceptions: THESE 2 EXCEPTIONS APPLY ONLY IN
! ! ! ! DIVERISTY CASES, NOT FEDERAL QUESTION
! ! ! ! ! (1) No removal if any defendant is a citizen of forum.
! ! ! ! ! (2) Cannot remove a diversity case more than one year after
! ! ! ! ! the case was filed in state court.
IV. Venue
! A. Basic Provisions
! ! 1. In removal cases, venue is in the district embracing the state court.
! ! 2. Local actions must be brought in the district where the land lies.
! ! 3. Rules for the transitory case (anything that is not a local action).
! ! ! a. Plaintiff has two choices of where to lay venue:
! ! ! ! i. Any district where all defendants reside, or
! ! ! ! ii. Any district where a substantial part of the claim arose.
! B. Transfer of Venue
! ! 1. You can transfer from a state court in one state to a different state court in the same
! ! state. However, you cannot go from a state court in one state to a state court in
! ! another state because you can only transfer within the same system. You can go from
! ! one federal court to another federal court in a different state through transfer because
! ! it is in the same system.
! ! 2. Terminology
! ! ! a. Transferor court – The court from which we are transferring.
! ! ! b. Transferee court – The court to which we are transferring.
! ! 3. Two Transfer Statutes in the Federal System
! ! ! a. §1404(a) – The transferor court is a proper venue, and we may transfer
! ! ! based upon three things:
! ! ! ! i. Convenience of the parties.
! ! ! ! ii. Convenience of the witnesses.
! ! ! ! iii. Interest of justice.
! ! ! b. §1406(a) – Venue in the transferor court is improper. The court may
! ! ! transfer in the interest of justice or it may dismiss.
! C. Forum Non Conveniens
! ! 1. This is where the court dismisses the case because there is a more appropriate
! ! venue.
! ! 2. Transfer is not available because the more appropriate court is in a different
! ! judicial system.
V. Challenging Forum Selection
! A. Special Appearance Doctrine – If D wants to challenge personal jurisdiction, she can make
! a “special appearance,” by which D challenges only personal jurisdiction and nothing else.
! By doing so, D does not subject herself to jurisdiction.
! B. Federal Rules – Rule 12 and Waiver
! ! 1. Rule 12 – When you get sued and receive notice, you have a choice of response.
! ! You can answer (a pleading) or you can make a motion. Rule 12(b) lists seven
! ! particular defenses that the defendant may raise in her answer or by a motion to
! ! dismiss.
! ! ! a. Rule 12(b)(1) – Lack of subject matter jurisdiction
! ! ! b. Rule 12(b)(2) – Lack of personal jurisdiction
! ! ! c. Rule 12(b)(3) – Improper venue
! ! ! d. Rule 12(b)(4) – Insufficient process
! ! ! e. Rule 12(b)(5) – Insufficient service of process
! ! ! f. Rule 12(b)(6) – Failure to state a claim
! ! ! g. Rule 12(b)(7) – Failure to join an indispensable party.
! ! 2. Defenses 12(b)(2) through (b)(5) must be asserted in the first Rule 12 response or
! ! they are waived.
VI. The Erie Doctrine
! A. Black letter law – The Federal Court must apply state substantive law.
! ! 1. Hanna v. Plumer – If there is a federal rule of civil procedure on point that clashes
! ! with state law, the federal rule governs.
! B. Factors for applying Erie Doctrine
! ! 1. Outcome determination – (Guaranty Trust v. York)
! ! 2. Balancing of interests – (Byrd v. Blue Ridge Rural Electric Cooperative)
! ! 3. Twin aims of Erie (Hanna v. Plumer)
! ! ! a. Avoidance of forum shopping.
! ! ! b. Avoidance of the inequitable administration of the law.
VII. Pleadings – Documents that set forth claims and defenses (i.e., complaint, answer)
! A. Rule 11
! ! 1. Requires the attorney to sign all documents except for discovery documents.
! ! Certifies to the best of your knowledge and belief, after an inquiry reasonable under
! ! the circumstances, that:
! ! ! a. The document is not for an improper purpose.
! ! ! b. The legal contentions are warranted by law, or there is at least a
! ! ! non-frivolous argument that the law should change.
! ! ! c. The factual contentions have evidentiary support or are likely to after
! ! ! further investigation.
! ! ! d. The denial of factual contentions has evidentiary support or are likely to
! ! ! after further investigation.
! ! 2. Three procedural matters for Federal Rule 11:
! ! ! a. The certification is affective every time that document is presented to the
! ! ! court (“continuing certification”).
! ! ! b. Sanctions are discretionary and are to be aimed at deterrence. Can be
! ! ! non-monetary.
! ! ! c. A motion for violation is served but is not filed.
! B. Complaint – When the complaint is filed, the lawsuit is commenced.
! ! 1. Rule 8(a) – Tells what must be in the complaint.
! ! ! a. Grounds for subject matter jurisdiction.
! ! ! b. A short and plain statement of the claim showing that you are entitled to
! ! ! relief.
! ! ! c. A demand for judgment.
! ! 2. General Rule – Complaint must put the other side on notice.
! ! ! a. Exceptions:
! ! ! ! i. Rule 9(b) – Circumstances constituting fraud or mistake must be
! ! ! ! pleaded with particularity.
! ! ! ! ii. Rule 9(g) – Items of special damages must be pleaded with
! ! ! ! specificity.
! C. Defendant’s Response
! ! 1. Rule 12 – Within 20 days of service of process, defendant will either answer or
! ! bring a motion.
! ! 2. Answer
! ! ! a. Rule 8(b) – Respond to the allegations of the complaint
! ! ! ! i. Admit
! ! ! ! ii. Deny
! ! ! ! iii. Lack sufficient information to admit or deny
! ! ! b. Failure to deny is treated as an admission on all allegations except
! ! ! damages.
! ! ! c. Raise affirmative defenses (e.g., statute of limitations, statute of frauds, res
! ! ! judicata).
! D. Amending Pleadings
! ! 1. Rule 15 –
! ! ! a. 15(a) – Gives us three basic rules of amendment.
! ! ! ! i. Plaintiff has the right to amend once before defendant serves her
! ! ! ! answer.
! ! ! ! ii. Defendant has the right to amend once within 20 days of serving
! ! ! ! her answer.
! ! ! ! iii. If there is no right to amend, you seek leave of court. The
! ! ! ! amendment shall be freely given when justice so requires.
! ! ! b. 15(b) – Variance: Where the evidence at trial does not match what was
! ! ! pleaded. It goes beyond the scope of what was pleaded. Whenever there is a
! ! ! variance at trial, either:
! ! ! ! i. The other side will not object to the variance, in which case we treat
! ! ! ! the pleading as though it is amended to show the new information; or
! ! ! ! ii. The other side will object to the variance, in which case, the
! ! ! ! evidence is inadmissible, but even at trial, the party that is coming up
! ! ! ! with this evidence can seek leave to amend.
! ! ! c. 15(c) – Amendments after the statute of limitations has run
! ! ! ! i. 15(c)(1)(B) – Amendment is to add a new claim – Amended
! ! ! ! pleadings will relate back if they concern the same conduct,
! ! ! ! transaction, or occurrence as the original pleadings.
! ! ! ! ii. 15(c)(1)(C) – Trying to amend to add a new defendant – Allowed if
! ! ! ! you sued the wrong person the first time around, but, somehow, the
! ! ! ! right person knew about it and can be charged with knowledge of it
! ! ! ! and that but for a mistake he would have been charged in the original
! ! ! ! complaint.
! ! ! ! iii. 15(c)(1) – Relation-back if a statute allows it.
VIII. Joinder
! A. Claim Joinder by the Plaintiff – Rule 18(a) – Plaintiff can assert any and all claims against
! the defendant.
! B. Claim Joinder by the Defendant.
! ! 1. Counterclaim – A claim against an opposing party.
! ! ! a. Rule 13(a)(1) – Compulsory counterclaim: arises from the same transaction
! ! ! or occurrence as the plaintiff’s claim.
! ! 2. Crossclaim – Rule 13(g). A claim against a co-party that must arise from the same
! ! transaction or occurrence as the underlying dispute.
! C. Proper parties
! ! 1. Rule 20(a) – Question of who may be joined by co-plaintiffs or co-defendants in a
! ! single case.
! D. Necessary and Indispensable Parties
! ! 1. Rule 19 – Who must be joined in a pending case. Three tests:
! ! ! a. Rule 19(a)(1)(A) – Without the absentee, can the court accord complete
! ! ! relief among those who are already joined? If the answer is no, then absentee
! ! ! is necessary.
! ! ! b. Rule 19(a)(1)(B)(i) – The absentee’s interest might be harmed if she is not
! ! ! joined.
! ! ! c. Rule 19(a)(1)(B)(ii) – Does the absentee’s interest potentially subject the
! ! ! defendant to multiple or inconsistent obligations?
! ! 2. Rule 19: Is joinder of the absentee feasible?
! ! ! a. Not feasible
! ! ! ! i. Personal Jurisdiction – Not feasible if there is no personal
! ! ! ! jurisdiction.
! ! ! ! ii. Subject Matter Jurisdiction – Not feasible if it would destroy
! ! ! ! diversity jurisdiction.
! ! ! b. Feasible – Join absentee to the case.
! ! 3. Decide whether to proceed without the absentee or dismiss the case.
! ! ! a. Rule 19(b)
! E. Impleader (“Third-party Practice”)
! ! 1. Allows defendant to join somebody new (the TPD) because the TPD is or may be
! ! liable to the defendant for all or part of the plaintiff’s claim.
! F. Intervention
! ! 1. An absentee seeks to bring herself into a case. It is up to the absentee to decide
! ! which side to come on.
! ! 2. Two types of intervention. Must be timely.
! ! ! a. Rule 24(a)(2) – Intervention of Right – Satisfied if you can show that the
! ! ! absentee’s interest will be harmed if she is not joined and her interest is not
! ! ! adequately represented now.
! ! ! b. Rule 24(b)(2) – Permissive Intervention– Absentee’s claim or defense has
! ! ! at least one question in common with the pending case.
! G. Interpleader
! ! 1. Involves a dispute over property. Somebody holding property (the stakeholder) can
! ! force all potential claimants into a single case.
! ! 2. Two types of interpleader:
! ! ! a. Rule Interpleader (Rule 22) – A diversity of citizenship case.
! ! ! b. Statutory Interpleader – You need one claimant diverse from one other
! ! ! claimant. You do not need complete diversity.
! H. Class Action
! ! 1. Initial requirements
! ! ! a. Rule 23(a)(1) – Too numerous for practicable joinder
! ! ! b. Rule 23(a)(2) – Commonality
! ! ! c. Rule 23(a)(3) – Representative’s claims must be those typical of the class.
! ! ! d. Rule 23(a)(4) – Representative will fairly and adequately represent the
! ! ! class.
! ! 2. Must fit the case within one of three kinds of class actions
! ! ! a. Rule 23(b)(1) – Prejudice Class Action – Where class treatment is
! ! ! necessary to avoid harm to the class members or to the party opposing the
! ! ! class.
! ! ! b. Rule 23(b)(2) – Party opposing the class acted on grounds that are
! ! ! generally applicable to the class, and that makes an injunction or declaratory
! ! ! judgment appropriate.
! ! ! c. Rule 23(b)(3) – Damages class
! ! ! ! i. Must show that common questions predominate.
! ! ! ! ii. The class action is the superior method for resolving this dispute.
! ! 3. Notice to the class
! ! ! a. Rule 23(b)(3) – Class representative pays to give individual notice to all
! ! ! members reasonably identifiable. Must tell class-members various thing,
! ! ! including:
! ! ! ! i. They may opt-out.
! ! ! ! ii. They will be bound if the do not opt-out.
! ! ! ! iii. They may enter a separate appearance through counsel if they
! ! ! ! want.
! ! 4. If the court certifies the class, it must define the class and class issues and must
! ! appoint class counsel under Rule 23(g).
! ! 5. Every class member is bound by judgment except those who opt out of a 23(b)(3).
! ! 6. Settlement or dismissal must be approved by the court.
! ! 7. Can seek immediate appeal from the grant or denial of class certification under
! ! Rule 23(f).
! ! 8. Subject Matter Jurisdiction –
! ! ! a. For citizenship, look at the representative of the class.
! ! ! b. Amount in controversy – Exxon Mobil v. Allapattah -- OK as long as
! ! ! representative’s claim exceeds $75,000, even if other class members’ claims
! ! ! do not. Class members’ claims can invoke supplemental jurisdiction.
IX. Discovery
! A. Required Disclosures
! ! 1. Rule 26(a) – Parties must produce information at three different times in the course
! ! of litigation.
! ! ! a. 26(a)(1) – Initial Disclosure
! ! ! ! i. Must identify people and documents with discoverable information
! ! ! ! that you may use to support your claims or defenses.
! ! ! ! ii. Plaintiff must give a computation of damages.
! ! ! ! iii. Defending party must tell about insurance that she has for all or
! ! ! ! part of a claim.
! ! ! b. 26(a)(2) – Experts
! ! ! c. 26(a)(3) – Trial Evidence
! B. Discovery Tools
! ! 1. Deposition
! ! 2. Interrogatories
! ! 3. Request to Produce
! ! 4. Physical or Mental Examination
! ! 5. Request for Admission
! C. Scope of Discovery
! ! 1. Standard – Rule 26(b)(1) – Can discover anything relevant to a claim or defense of
! ! any party.
! ! 2. Things Protected from Discovery:
! ! ! a. Privileged Material
! ! ! b. Work Product, unless
! ! ! ! i. Substantial Need
! ! ! ! ii. Substantial Hardship
! ! ! Even then, “opinion” work product is absolutely protected.
! D. Discovery Sanctions
! ! 1. Rules
! ! ! a. Rule 37(c)(1) – Addresses what happens when a party fails to make one
! ! ! of the required disclosures.
! ! ! b. Rule 37(c)(2) – Fail to admit something that should have been admitted
! ! ! under Rule 36.
! ! ! c. Rule 26(c) – The one from whom discovery is sought asks the court for a
! ! ! protective order.
! ! 2. Sanctions
! ! ! a. Partial Failure to Comply – Can make a motion to compel the answers
! ! ! under Rule 37(a)(2). Can recover costs, including attorney’s fees for bringing
! ! ! motion, if you win on the motion.
! ! ! b. Total Failure to Comply – Rule 37(d) – Can get sanctions right away and
! ! ! can recover costs.
! ! ! ! i. Striking the pleadings
! ! ! ! ii. Disallowing evidence
X. Pre-Trial Adjudication
! A. Voluntary Dismissal – Rule 41(a) – Where the plaintiff wants to dismiss the case.
! ! 1. Stipulation of the parties
! ! 2. Court order
! ! 3. Plaintiff may dismiss without prejudice once by serving a notice of dismissal
! ! before the defendant serves her answer or motion for summary judgment.
! B. Involuntary Dismissal
! ! 1. Failure to Prosecute
! ! 2. Failure to Abide by the Federal Rules
! ! 3. Failure to Abide by a Court Order
! C. Default
! ! 1. Rule 55(a) – Plaintiff must request the entry to default from the clerk of the court
! ! when the defendant has not responded within 20 days after service of process.
! D. Rule 12(b)(6) Motion
! ! 1. Motion to dismiss for failure to state a claim.
! ! 2. The court does not look at evidence. Instead, it looks only at the face of the
! ! complaint.
! E. Motion for Summary Judgment
! ! 1. Court can look at evidence.
! ! 2. Standard for granting a Motion for Summary Judgment
! ! ! a. Moving party must show that there is no genuine issue as to any material
! ! ! fact, and
! ! ! b. That she is entitled to judgment as a matter of law.
XI. Trial and Related Motions
! A. Right to a Jury Trial
! ! 1. Seventh Amendment – Preserves the right to a jury trial in actions at law, but not at
! ! suits at equity.
! ! 2. Three Important Issues
! ! ! a. We determine the right to a jury trial issue by issue.
! ! ! b. If an issue of fact underlies both the remedy at law and the remedy at
! ! ! equity, you must have a jury.
! ! ! c. Generally, we will try the jury issues first.
! B. Selection of a Jury
! ! 1. Rule 48 – Governs how many jurors there are in a civil case in federal court
! ! ! a. Each side has unlimited strikes of potential jurors for cause.
! ! ! b. Each side has three peremptory strikes. However, you must have a
! ! ! race-neutral and gender-neutral reason for using peremptory strikes.
! C. Motions Related to the Trial
! ! 1. Motion for Judgment as a Matter of Law – Rule 50(a) – The judge steps in and
! ! takes the decision away from the jury.
! ! ! a. You can move for this only after the other side has had its chance to present
! ! ! its case.
! ! 2. Renewed Motion for Judgment as a Matter of Law – Rule 50(b) – The judge has let
! ! the case go to the jury, and the jury has returned a verdict for one party. The court
! ! enters a judgment. The losing party brings this motion and if the motion is granted,
! ! we take the judgment away from the person who won the verdict and we enter
! ! judgment for the person who lost the verdict.
! ! ! a. A Motion for Judgment as a Matter of Law at an appropriate time at trial is
! ! ! a prerequisite to a Renewed Motion for Judgment as a Matter of Law.
! ! 3. Motion for New Trial – Rule 59(a) – Judgment has been entered but there have
! ! been errors at trial that require the case to be retried.
XII. Appeal
! A. Final Judgment Rule – Court wraps up the whole case.
! ! 1. You cannot go to the Court of Appeals until the trial court enters a final judgment.
! B. Interlocutory Review
! ! 1. §1292(a) – Certain interlocutory orders that are reviewable as a right
! ! 2. §1292(b) – Allows appeal of an interlocutory order if the trial judge certifies that it
! ! involves a controlling issue of law and that there is a substantial ground for difference
! ! of opinion. The Court of Appeals must also agree to hear the interlocutory appeal.
! ! 3. Federal Rule 23(f) – Court of Appeals has discretion to review an order either
! ! granting or denying class action status.
! ! 4. Federal Rule 54(b) – Involves cases with multiple claims or multiple parties. The
! ! trial court can expressly direct final judgment as to one or more of these and can
! ! make an express finding that there is no just reason for delaying appeal.
! ! 5. Collateral Order Rule – Gives the Court of Appeals discretion to take an
! ! interlocutory issue, but three things must be true:
! ! ! a. It must raise an important issue that is separable from the merits.
! ! ! b. The court order completely resolved that issue.
! ! ! c. The issue is affectively unreviewable if we wait until final judgment.
! ! 6. Extraordinary Writ – An original proceeding brought in the appellate court asking
! ! for an order compelling the trial judge to do something or to vacate an order.
! C. Standard of Review
! ! 1. Question of Law – Court of Appeals gives no deference to the trial court
! ! 2. Finding of Fact by a Judge – Court of Appeals can reverse only if it finds that the
! ! trial judge was clearly erroneous.
! ! 3. Finding of Fact by the Jury – Entitled to enormous deference by the Court of
! ! Appeals. It is okay if the jury might reasonably have found this.
! ! 4. Discretionary Issues – Reviewed by the Court of Appeals under the abuse of
! ! discretion standard. The Court of Appeals will allow whatever the trial court judge
! ! did unless the trial court judge abused her discretion.
XIII. Preclusion Doctrines
! A. Res Judicata (Claim Preclusion) – You get one case in which to vindicate your claim.
! ! 1. You must show that Case 1 and Case 2 were brought by the same claimant against
! ! the same defendant.
! ! 2. Case 1 must have ended in a valid final judgment on the merits.
! ! 3. Case 1 and Case 2 must involve the same claim.
! B. Collateral Estoppel (Issue Preclusion)
! ! 1. Show that Case 1 ended in a valid final judgment on the merits.
! ! 2. Show that the same issue was actually litigated and determined in Case 1.
! ! 3. Show that the issue on which we want collateral estoppel was essential to the
! ! judgment in Case 1.
! ! 4. Against whom is collateral estoppel being used. You can only use collateral
! ! estoppel against someone who was a party to Case 1.
! ! 5. By whom is collateral being asserted. Mutuality is not required by due process.