Civil Procedure Outline:
54, 65, 68, 1631, and 42-1988-b are not in the outline
the most complicated legal system in the world. We try to balance speed vs. autonomy and truth
vs. dispute resolution
cases tend to be out quicker… they must be tried in 180
days unless a lawyer requests and is granted an extension)…
this makes sure that peoples’ right to a speedy trial
states have adopted the FED. Rules into their own procedure
and the FED rules reach to the FED court in every state.
who has it= the state or the FED
A ∏ does not have to bring all possible defendants in
“only certain things” The FED can only hear certain types of cases.
Congress has not expanded this to the full extent
that the Constitution will allow as is their right to
do. Diversity of Citizenship “and the amount in dispute
must exceed 75,000 (1332) and disputes arising under the
federal question invoke FED jurisdiction (1331) and 1367
matters (supplemental jurisdiction
disputes will not end up in court.
In fact only 2.2% of FED cases will ever actually
go to trial.
(or im pro persona) “on his own behalf” (not with a lawyer).
for malpractice= the old way did not allow for this and
the client was just stuck with the mistakes of the lawyer.
jurisdictions have different levels of judicial power=
the lowest being the trial court, a little higher being
an intermediate appeals court, and
the highest being a Supreme Court (generally except
in New York)
There are 3 things that must be present before a particular court can hear a case legitimately=
first it must have subject matter jurisdiction (the
power to hear that type of case),
it must have personal jurisdiction (to make a judgment
valid against someone) (note
that it would be a against Due Process and thus unconstitutional
to subject someone to proceedings if there was no personal
jurisdiction over that person), and
rule 37 is limited by rule 82 stating that FRCP are not
to be used to increase jurisdiction… this
can come into conflict when the courts make someone subject
to jurisdiction as a sanction when they did not follow
all of the rules
Challenging Personal Jurisdiction=
The easiest thing for an out of state ∆ to do
is nothing. Then
when judgment is sought in her state to settle the claim…declare
a collateral attack…if she loses the collateral attack
argument… she is screwed because her case will not be
heard on the merits… but the second court will have to
inspect the jurisdictional contacts and make a determination
It is recommended that if you have a case on the merits
but disagree with the jurisdiction… you can go through
the case (while appealing the jurisdiction)… lose on the
merits and then later challenge the jurisdiction to try
and get out from under the judgment.
She could raise the lack of personal jurisdiction defense
right away…there are two ways of going about this… you
can do a pre-answer motion or a complaint… the pre-answer
motion is easier because you don’t to answer everything
like in the complaint.
if you do not object to personal jurisdiction in your
pre-answer motion or answer you waive your right to do
so… if you don’t object to it on your first piece of paper…
your right to object to it is waived.
The same is true for all other defenses besides
subject matter jurisdiction.
You can enter a special appearance to challenge personal
jurisdiction… this will allow you to challenge personal
jurisdiction without consenting to the jurisdiction…This
type of defense is not available in Federal Courts
1332 Diversity of Citizenship:
(and amt in controversy must exceed 75,000 + Diversity)=
the place where you are living at the time you file suit
counts for this. This
is considered your domicile… Without Diversity and the
amount… there is Subject Matter Jurisdiction and the court
would have to dismiss
Information on the amount in controversy:
The amount on the complaint to a legal certainty
is the standard
When the thing being sued
for is an injunction…the
value of the injunction to the ∏ is used, the cost for the ∆ to comply with
the injunction is used, or the costs to invoking the injunction
Aggregation of the amounts= if the claims are separate and district then
no aggregation is allowed… if the claims are not distinct
and separable they might be allowed to aggregate to make
the amount requirement…if the claims are separate and
distinct and one of the claims makes the amount level
while the other does not… the one that makes it goes to
FED court and the one that did not does not go to FED
In class actions (1367)… only the representative party needs to meet the
amount in controversy.
Also 1367 allows for the use of supplemental jurisdiction
if it is the same case or controversy.
There is a graph as to claims and counter claims regarding whether compulsory
ones are different than permissive ones for the purposes
of 1332 jurisdiction
Information on diversity of citizenship:
The key to this qualification
is intent “animo
menendi” = the intent to remain.
This intent needs to be backed by some evidence
proving that this is the place were you intend to remain
for an indefinite period of time. Signs that you are going to leave may play against
you when the court tries to determine your intent for
diversity purposes. Signs or indicators of intent would
be a driver’s license of that state, an apartment,…It
should be noted that intent to stay does not mean that
it is not possible that you live, it only means that you
intend to be there for an indefinite time.
For 1332 to apply… it
can’t be alien
vs. alien… this would be against article 3… although
it is not really unconstitutional, it is still not allowed
2 foreigners against a state citizen= yes
1 state citizen and 1 foreigner vs. a foreigner= no (1332-a-2 and 1332-a-3)
Once you have two diverse
states against each other, you can have as
many foreigners on both sides of the fence that you
want… (California + foreigner) vs.
US citizens living outside the US (residing) don’t fit into the 1332
Rule 21 allows
for parties to be dismissed if they are going to destroy
diversity… this allows parties to keep the case in FED
The citizenship of a partnership
is the citizenship of all of the purposes for the sake
The principle place of
business… is determined by two tests for the sake of 1332:
test…where the bulk
of the activities take place… this is where most contact
with the public will take place…this test is the one that
is most commonly used
Rules= 14, 19, 20, 24 all affect diversity
Foreign corporations in the US also fall under 1332… they will
also have a citizenship
An interesting fact is
that when an insurance
company gets into the game… it maintains its own citizenship
while taking on the citizenship of the person insured
when it is being sued… when the insurance company is the
the only citizenship that applies is its own and not the
There are certain things that the FED will not touch…child support, alimony,
divorce, and child custody… these are state matters and
so there is not anything on diversity for these topics
When a minor or incapacitated person is represented… their citizenship
applies and not that of the representative
From DC to Guam… you are treated as if
you are from a state for diversity purposes
Citizenship counts at the commencement of the action
Jurisdiction is limited by the Constitution
Subject matter Jurisdiction=
Dismissal of a case based on the lack of this is to
dismiss a case not based on its merits.
Another example of dismissing a case not on the
merits is the statute of limitation dismissal.
This can’t be waived as the power of the FED to hear
the cases depends on it “Article 3”… anything out it can’t
If a FED court dismissed for lack of Subject Matter
Jurisdiction, there is no ban on bringing the matter up
again in a state court
this is not the same thing as personal jurisdiction…
a court simply can’t hear a case without it
FED courts are of limited SMJ by article 3… Article
3 spells out what FED courts can hear in addition to statutes
that complement the constitution
Some exclusive FED matter are admiralty, bankruptcy,
Concurrent jurisdictional matters are those that can
be heard by both state and FED courts
Raising objection to subject matter jurisdiction= you
can go 2 ways… 12-b-1 or a 12-b-6 motions.
1331 The Federal Question:
1331 general fed question statute= arising under the laws
and treaties of the US… what does this mean… in a well
pleaded complaint there has to be a federal question…
otherwise the case will be dismissed in accord with lack
of subject matter jurisdiction. At the pleadings you must state a case that arises
out of the laws and treaties of the US.
If the federal question is not raised on the complaint…then
the case will be dismissed for lack of subject matter
jurisdiction. This does not mean anticipated defenses.
It is entirely possible that a case may fail the Mottley
test and still get into federal court because the federal
matter is the central issue… The Mottley test is the well
pleaded complaint rule.
These kinds of cases…the facts are so important
that the FED will be willing to hear the case.
Note that the quick dirty rule to follow is the
well pleaded case rule.
Make the right type of complaint.
1331 has been interpreted more narrowly than article 3
A well pleaded complaint is the bare bones allegation
required to survive dismissal.
An artfully pleaded complaint…you have a federal question
but you hide it… it is the opposite of a well pleaded
The declaratory judgment is a way to raise the FED question
without a well pleaded complaint… this is where one party
asks the court to declare its rights in a given situation…
it should be noted that this thing does not expand the
jurisdiction of the FED court. A declaratory judgment comes from the Declaratory
There are times when you can lose your ability to be in
FED court… this usually happens when you change your case
or continue under a different type of complaint.
Another time is when you deiced to settle a matter…
you can lose your status in FED court… a remedy for this
is to enforce a consent decree…. What this will do is
keep the matter open and able to be in FED court until
the settlement actually occurs
you can consent to it, it can be served on you in the
state “tag jurisdiction/transient presence”, and it can
be subjected to you when you are a citizen of the state
It can served on you if you have property in that state
There are two types of contacts that will give you personal
jurisdiction over someone… Specific contacts and General
contacts. When there
are enough specific contacts there will be Specific Jurisdiction
and when there are enough general contacts there will
Via specific jurisdiction= if a claim arises or relates to the contacts
Via General Jurisdiction= the claim need not arise or relate out of
the contacts if the connection to the state is so persuasive
that it has to be allowed.
It should be noted that you are going to need a
lot more contacts when the dispute does not arise/relate
to the connection with that jurisdiction.
These are the continuous and systematic contacts.
You can waive personal jurisdiction voluntarily or involuntarily
Normally a FED court will adopt the state where they
reside’s long arm rule unless a rule 14 or 19 situation
arises… another exception involves the 100 mile bulge
rule… Another type of exception is when there is a statute
stating that the FED court is to dominate… like in a situation
calling for a nation-wide service of process “1335” or
the enforcement of a civil contempt order arising from
litigation involving a federal question (rule 4.1)… the
last exception is to aliens that don’t have sufficient
contacts to any state to create personal jurisdiction
International Service (Hague Service Convention)= you
can serve process on a ∆ in any manner specified
by receiving nation for its own civil litigation, in a
manner specified by the plaintiff so long as that manner
does not violate the receiving nation’s laws, or by the
∆’s voluntarily accepting service.
If the ∆ claims that he did not get service it
will not affect the validity of the service… Rule 4-l
handles this… it requires that there be a response to
The age suitability is 18 but if the person is old enough
to understand what is going on then it would probably
be ok but that is not the rule
State long arm statutes can go as far as the constitution
will allow them or they can just be to certain specific
things (but those things must be constitutional)… States
may decide to stay well within the bounds of the Constitution
to avoid having to answer those really tricky Constitutional
questions… When FED court is using the long arm provision
of a state as it must under rule 4 then if the state can’t
reach then neither can the FED court
When you file a claim in one jurisdiction you open yourself
up for being subjected to that jurisdiction if there is
IF a FED court dismissed for lack of personal jurisdiction…
the matter can’t be brought in a state court (the same
state). This is not the same if the case dismissed for
lack of Subject Matter Jurisdiction in a FED court
the defense, lose, can you collaterally attack?
not raise the defense, can you collaterally attack?
Subject Matter Jurisdiction
Default, can you collaterally attack?
Subject Matter Jurisdiction
clear holding on this”
Minimum Contacts (reasonably expecting to haled into court) =
Minimal contact arguments are used when someone is not
located in the jurisdiction.
According to the findings in international shoe=
there must be minimum contacts sufficient enough to subject
someone to jurisdiction… without minimum contacts subjecting
someone to jurisdiction would offend due process as it
would not coincide with notions of fairplay and substantial
justice. International shoe found that continuous and
systematic ties to the area was enough of a minimal contact
to allow for jurisdiction.
Continuous and systematic… purposeful and not accidental. Claim arises out of these contacts= a clear meeting of the minimum contacts
requirement…If the claim does not arise out of the contacts
with the jurisdiction and the contact is single and isolated=
this is clearly not enough to satisfy the requirement
and it would violate due process.
the laws of that state can be enough to satisfy minimal
contacts. A unilateral
act of one party in going to another state will not mean
jurisdiction to that other party unless he purposefully
availed himself of the laws of that state.
This is an evolving part of the law and what is sufficient
minimal contacts keeps being redetermined.
For “In REM”
cases over property in a state, it is ok for the state
to seize the property to prevent the ∆ from hiding
it without having minimal contacts but if you are going
to assert jurisdiction over him then there needs to be
minimal contacts over him
Simply putting something in the stream of commerce is
not enough to bring out minimal contacts… there needs
to be something more like advertising which would show
that someone purposefully injected something into the
stream of commerce… another thing that could make the
minimal contacts thing happen is if you catered your product
for a certain area.
Selling a product in an area will likely increase the
minimal contacts and might increase the state’s interest
in the case.
Deriving benefits from the state will increase your
chance as being seen to have minimal contacts.
A modest purchase will not subject you to a jurisdiction
but the purchase of a home would and so would having a
lease in some cases
According to rule 4-K-1= FED courts should follow the
state’s long-arm statute… this rule states that FED courts
borrow the laws of the states that they reside in
web pages= if you can transact business on that page then you
can be haled into court wherever that page reaches… if
you don’t want to be haled into court in a certain area
then you should make it so that the page can’t do business
in that certain area… because if it is a page that just
advertises…being subject to every jurisdiction that it
reaches would be unacceptable.
for the fairness of minimal contacts (fair play and substantial
justice), These are balancing factors to consider=
Burden of the ∆
∏’s interests= what is the reason for the ∏ wanting to
litigate this case there
State’s Interests= does the state care about it… states are concerned
about the affairs of their citizens
Judicial Efficiency Interests
Advancement of Fundamental
Social Policy Interests= this
interest certainly increases when there is no other forum
for relief for all practical purposes.
Note that the more attenuated
the interests are…the less they are going to count for
making minimal contacts reasonable
Another factor to look at
when evaluating these factors is how reasonable is it
for a ∆ to expect to be haled into court in that
one example of this is looking to a contract… things like
prior negotiations, where the parties are, who the parties
are, contemplated future consequences, terms of the contract,
and the parties’ actual course of dealings… Courts give
great deference to who brought suit first in trying to
determine where a case is going to be heard… note
that this won’t stop the other side from starting a suit
somewhere else and the court may decide to hear the case where the
other party filed but
it is in your favor to start the first where you would
like to have it because of the deference that the courts
give to it
note that if a case is found to be reasonable under these circumstances
then it will require less minimal contacts to be heard
in that jurisdiction
The trend for the FED court
is not to find
jurisdiction and the trend for the state court is
to find jurisdiction
Note that minimal contacts
and the 5 factors are used together in a balance to determine
whether someone should be subjected to a jurisdiction.
This is one claim clearly meets the contact requirement
and another claim against the same ∆ can be brought. Both of these can be heard in a FED court via
Pendant Jurisdiction if they arise out of the same nucleus
of common fact (to the point of claim preclusion)… This
applies to jurisdictional reach as well… It should be noted that being from the same nucleus of common fact it is
totally justified to be in the FED court but if the matters
are totally unrelated… then it just won’t stand as much
of a chance… but there have not really been any cases
like this. As for
the claim preclusion qualification… when there are two
matters like this… one that belongs in FED and one that
belongs in state… there won’t be a problem with claim
this on someone with contacts in a state when those contacts
are not the cause of the dispute is unconstitutional
this is a well
established facet of law.
This is where someone is subject to jurisdiction
because they are in the state but justice Brennan
does not agree with it because without minimal contacts
with the state or having a controversy arise from state
contacts… it is unconstitutional to subject someone to
jurisdiction in that state. Along this line of thinking, being tricked
into a state or kidnapped and brought into the state is
not constitutional… Along these lines, a person who turns
themselves in gets immunity from being subjected automatically
to jurisdiction 3, however a person who does not turn
themselves in and has to be extradited does not enjoy
immunity from being subject to jurisdiction.
marrying a foreigner does not make you lose your US citizenship
Permanent resident aliens take on the citizenship of
the state where they reside (a student probably won’t
qualify for this) for Diversity Purposes.
Spouses may be domiciled in different states and children
have the domicile of their custodial parent
Complete diversity= not having parties from the same state on both sides of the fence. Complete diversity is not required by the Constitution…
The Federal Interpleader allows for FED jurisdiction with
minimal diversity… meaning that there needs to be someone
from a different state on the other side of the fence
even if not all of the parties can do this… just one person
from a different state
Bringing in different
laws into a Jurisdiction… Rule
44.1, you have to give notice and bring the law to the
Impleader= Derivative Liability is the proper basis for this… “If
I am liable to them then you are liable to me.
Venue= USC 28 1391 takes care of this for you…
You need to
have personal jurisdiction over someone and proper venue
over someone in order to bring someone to a particular
court… This has
an affect on suing an alien because they are subject to
venue anywhere in the US…
but they can only go to court where there is personal
jurisdiction over them… so this limits the places where
an alien could be sued.
makes a difference when it comes to states that have more
than one FED district but it really does not make a difference
where there is only one because of the personal jurisdiction
local= can only
be heard in one place… this usually happens when trying
a case about land matters… the venue is where the land
is… 1392= if you
have land that is in multiple jurisdictions… then venue
is proper in any of those districts
transitory/transient= can be heard anywhere
You can’t transfer to another system,
you have to dismiss before it can be heard in another
The fact that another venue is less
favorable to a ∏ is not
enough to deny dismissal but if ∏ would have
no remedy otherwise… the court might consider that enough…
is a judge/court made rule… there is no statutory backing
on the public/private factors listed in the Piper case
Non-Conveniens is dead in state courts… you have to remove
to FED courts and then move for Forum Non Conveniens
Service of Process=
This kicks off a case but it must be properly done.
Serving in the state is no longer relevant due to “Long
Arm Statutes”. A citizen is said to benefit from their
citizen status in that state and thus has responsibilities
Just because a registered agent of a corporation is
served, does not mean that the corporation is subject
to personal jurisdiction (especially when the corporation
has no contacts)
Giving notice must be of such as reasonably to convey
the required information and it must afford a reasonable
time for those interested to make their appearances.
It must be reasonable in way that it is reasonably
calculated (under all of the circumstances to apprise
those interested of the pendency of the action and afford
them an opportunity to present their case. If the circumstances of the case are such that
notice is not likely, then to be constitutional the method
chosen can’t be substantially less likely to inform than
other available methods
A mere gesture will not meet the requirements of notice
You must use due diligence in trying to notify the ∆…
they need time in order to respond to the ∏
Personal Service is the best way to serve process
Other acceptable ways of serving process is mailing,
publication (but not when the address of the person is
known), seizing property, posting, and serving in homes/offices…
Generally speaking… if you can do better than publication…
you should use that method
If parties are classified according to 23-b-3 then 23-c-2’s
method should be used
Waiver of Service is another way to send service of
process… this can the most affordable way to start a law
suit provided that the other side plays ball… If they
do then both sides can benefit from additional time and
cheaper cost to start… it should be noted that waving
service is not waiving a case on the merits… The US is not a proper party for a waiver
Note that the FED must honor the service rules (including
timing) of the state in which it resides… Rule 4 says
First the complaint must be made
Then the complaint must be delivered. Delivery
happens most often by request of waiver of service. In it the ∆ waives the need to be served.
IF he does not the ∏ needs to have him served but this is costly. The ∆ may have to pay for the service if
he did not waive service of process.
A well pleaded complaint
is the bare bones allegation required to survive dismissal
Rules 8 and 9 deal with the varying requirements of
The complaint is a short plain statement tat entitles
There does not need to be
a lot of detail because broad discovery through interrogatories
will bring these out.
State courts may be more
stringent than the FED courts at the complaint.
Form 9 is a good example of what the FED requires. It is on pg. 172 in the supplement.
After the complaint the ∆
can respond by a pre-answer motion or an answer. The pre-answer
motion=the motion, the notice, and the legal argument
for it are all parts of the pre-answer motion.
arising out of the same t/o and the right to raise it
is waived if it is not raised.
not arising out of the same t/o
A dilatory plea= is not going
to the merits of the case
Demurrer= “Even if everything
is true it does not entitle the ∏ to anything
Traverse= Denying what the
Confession and Avoidance=
∆ admits to the ∏ the truth but because of
new info he does not have to pay.
Silence is the same as an
A motion deals with bits
and parts of the pleading
With answers, you can be
silent, deny, or state that there is insufficient evidence
(which has the same effect as a denial but there must
have been a reasonable investigation.
When answering or making
a counterclaim serve the other side and file it with the
court. Also make sure to include all grievances
Amending the pleading= The
FRCP are liberal and allow for other parties to be added
A ∏ need not name all of the
∆s that he/she might have a claim against when there
is more than 1 ∆
If an FRCP does not deal
with it, then the common law applies
When pleading Civil Rights Matters… Prima Facie=
stating the exact nature of the case like “I was discriminated
against” will suffice for
Rule 8-a requirements… as giving non-conclusory notice
to ∆, so that the ∆ can prepare a response
while setting forth evidence of unlawful intent… Note that the same standard will be heightened
if this was simply an action with a ∏ suing an individual government official
Common Law Pleading:
Quantum Meruit= what you deserve or are entitled to
Our system joins law and
Causes of action replace
forms of action
Even though the writs
are gone… their substantive law still applies a little
in the field code
You must plead ultimate
facts… this means that you must have a balance of facts
and conclusions… you must not be too conclusory (too bare
bones…you can’t just say that the ∆ acted illegally… you must
say why or in what way was ∆ acting illegally… you
don’t need to put in all of the details… just the ones
that dominate) and you can’t have too many facts
(not enough law... it is possible
to have too much detail... too much detail will bog the
Complaint= no such relief
or not enough facts will get it thrown out of court… the
FED system is really worried about not enough facts to
state a claim/right to relief.
You must connect the ∆’s
actions with the type of relief that you are pursuing…
you need enough details to link the ∆’s behavior
with the claim of relief
If there is no law giving
relief… then your complain will not be heard
If you botch a complaint….
You are allowed to amend it
FRCP is really forgiving
when it comes to pleading… if you don’t have the law stated
that entitles you to relief… but you have the facts… the
courts will not generally dismiss your claim.
You can’t lie in a complaint/pleading
procedure… “factual and legal basis after reasonable investigation
or else FRCP 11 sanctions could apply
FRCP 84 tells you what
forms are adequate for pleading, as well as, for other
Specific Damages= When you are asking for specific
damages… the heightened
pleading requirement is in effect… Dollar amounts
of specific damages need to be stated in the pleading...
Special damages are those that may not be naturally occurring
from an event cause by the ∆… In contract general
damages are those that naturally occur from the conduct
of the ∆… Pain and Suffering= general damages… Hospital
bills= special damages…
distinction between the burden
of pleading and burden of proof…
burden of proof is the burden of production and the burden of persuasion
burden of pleading one example is who has to plea good faith
or bad faith
Joinder of Parties:
Same t/o or series of t/o, same question of law or fact=
parties can be joined as ∆s.
Rule 20= same t/o or series of t/o, common question
of law or fact= parties can be joined even with alternative
types of liability (joint and several).
Rule 15= you can amend as a right before a response
has been filed. After
that you must get legal consent
Rule 19= a party that has to be joined but for some
reason can’t be joined…
Temple v. Synthes Corp. = The Supreme Court said that not all tort feasors need to be named in a
are alternatives to naming all of them.
The ∆’s can implead to have other parties
joined. There is
no double recovery allowed or at least it is the intention
of the court not to allow it.
IF the ∏ is not made whole by a judgment, the judge in the subsequent action
may allow an award.
Rush v. City of Maple Heights= this was a case of issue preclusion. The city was negligent in its maintenance of
Intervention as a right= When no one is adequately representing the rights of a stranger to a case.
Of notable mention, the further you get from the situation,
the less likely you can have intervention.
Class Actions: One or two ∏s representing a group of people.
Autonomy is taken away.
Discovery is designed
to prepare the attorneys for trial.
It lets the attorney get a feel for the other side,
if there is good evidence for both sides then it could
go to trial.
At common law there was no discovery, the FRCP rules
were designed for formal discovery.
Informal vs. Formal discovery=
in 1938 formal discovery
procedures were made part of the FRCP. Types of items that fall under this category
are production and inspection of documents and things,
written interrogatories, physical and mental exams (these
will only take place if the court orders them to), and
What is discoverable=
any matter not privileged
and is to the subject matter, relevant to the dispute
and relevant to the claim or defense of any party.
we want privileges
to be protected so that people can be candid with their
a case before it starts”=
The ∏ can pull the plug and start again only once according to the FRCP
Motion for Summary Judgment
“56”= there must
be no genuine issue of material fact and that the other
party is entitled to judgment as a matter of law.
If the party, who has the burden of proof, meets
the burden, then summary judgment can be avoided. The evidence is not weighed as it pertains to
avoiding summary judgment, it only has to some credible
If the ∆ does not respond= there can be a default judgment and involuntary dismissal
Pre-trial Conferences: there can be many but the final one is the one that we are talking about
Starting a trial:
Jury Trial= If
a jury is required, then the selection of the jury starts
the trial. The voir dire is the process of selecting the
jury. In FED court
the judge selects the jury and in state court the attorneys
select the jury. The attorneys receive challenges for cause of
the jury selection and they get pre-emptory challenges
which allows them to dismiss a juror for any reason other
than racial or sex discrimination.
∏’s opening statement describes what issues are going to
do their opening statement right after the ∏’s opening
statement or they can wait until the ∏ rests his
Judgment as a matter of Law “50”= was known as directed verdict= and this happens
when the other side does not prove its case and the other
side is entitled to a judgment as a matter of law.
As a side note, the 7th preserves the
right to jury trial.
Attorneys make their closing arguments= but they can’t ask the jury to put themselves
in the shoes of the ∆ or ∏
The verdict is verified= the losing side still has the ability to renew
their Judgment as a Matter of Law “directed verdict” (only
if they made one previous during the case)
After the Verdict=
The losing party can still
raise (by motion)
the Judgment as a Matter of Law if they
brought it up before in the trial
The losing party can ask
for a Judgment not withstanding the verdict
The losing party can ask
for a New Trial
The losing party can ask
(by motion) for a Renewed judgment as
a matter of law= this
is when no evidence is offered later but if not enough
is offered then the court will allow it.
This is a fine line, because the court is not supposed
to weigh evidence. So
what it does is ask “would a reasonable jury be able to
find another way”
Appealing= this requires that the matter was brought
up sometime during the trial and it was objected to. The Supreme Court says that there is Constitutional
right to an appeal. Each
court system will have a system for making appeals. It should be noted that appealing to the Supreme
Court “FED” is not guaranteed as they are under no obligation
to hear your case. When
a decision is interlocutory= it means that it is not
final and thus not appealable. 1291=
Only a final decision is appealable except in New York. The justification for making people wait for
appealing is that the issue may be decided on other grounds
and an appeal may not even make a difference.
Another reason is that it helps speed the trial
by not allowing it to get bogged down in every issue.
The bad side of this is that a trial can be decided
even before it goes to trial because those earlier rulings
can shape the trial for later.
∏ in error= the old
The ∆ in error= the
Claim Preclusion “res judicata”= you only bring a
claim to court once. “Each
note is a separate claim”.
Each person has their own claim “loss of consortium
is an exception to this in few jurisdictions.
Issue Preclusion “collateral estopple”= you can only
bring an issue before the court once.
To have issue preclusion, you must have the same
parties suing about the same issues.
“You tricked me into this= is one issue.
When a claim is assigned to an insurance company,
the insurance company has a claim and so does the holder
of the policy. The
court would not preclude such an issue or claim.
As far as Claim/Issue preclusion go= if a case is
lost because of information not found but later discovered,
you can ask the court to set aside the judgment.
The court will not like doing this though.
Each person has their own claim= loss of consortium may be an exception in a
minority of states
Claims between FED and
Between the FED and State
courts= FED says
that the first one filed will be precedent for the later
Between the state courts= the first filed has nothing to do with it… it is the first adjudicated
that be precedent to the later one… “Full Faith and Credit”
The US Supreme Ct. says
there is no Constitutional right to an appeal
The State System of sending
appeals= trial court-court
of appeals-Supreme Court
The Federal System for
district…statute allowing an appeal…-court of appeals
Interlocutory= not final
and thus not appealable
1291= “Final Decision of District Courts”= only
a final decision is appealable, except in New York
The policy behind making
people wait before they can appeal= the case may be decided on another issue altogether and so it would not
make a difference. Also,
this wait makes the trial go faster.
It should be noted that these earlier rulings can
actually shape the outcome of the dispute as most cases
don’t go to trial.
The Federal Court of Appeals treats the District Court Decisions below them with a De Novo
methodology giving them no deference in the decision as
it comes to interpretation of the law (not in the fact
finding)... it could very well be that the District Court
may be more knowledgeable about the law in that area because
they did some research
Civil Rights Cases= are more often appealed than other types of cases
Consent to Forum=
Forum selection clauses
will only be accepted if they are found to be fundamentally
fair… meaning no indication of fraud or over-reaching…
it must not be a contract of adhesion “a take it or leave
sort” where one party holds all of the cards of negotiations…
When a forum selection clause has other legitimate reasons
for being in there then it will likely be found to be
There is a good graph
When a case is not properly
removed it gets remanded and improper removal could result
You only get one year
to remove a case for diversity from the time of filing
Only the ∆ can remove
to FED court (not
even through a counter-claim can a ∏ remove to FED court…removal is only for the ∆)
On the day of removal
is when the amount in controversy counts for getting into
FED court… note that you can later amend the amount and
it won’t hurt FED jurisdiction
1441-c= the power to hear
1331 and non-removable claims that are separate and independent
but still part of the same case or controversy but when
the state claim dominates the courts must remand back
to the state… A FED court can hear part of a claim and
then remand the unhearable part to the state court
1445= makes some actions
When a state refuses to
validate a FED case… it can be removed to the FED system.
When you file a state class action based on FED securities
law… FED law applies and it is removable
Removal is restricted
by Congress… I don’t know to what degree.
Conflict of Law=
States are generally free
to apply whatever law that they wish to
When there is a conflict
and there is a legitimate FRCP or FED statute (usually
has to be a procedural rule) that handles the matter (either
being constitutional) then the state law will yield to
the FED law… note that the ERIE
twin aims will be considered in this application
A conflict is shown when
you take the twin aims of the Erie
case and mix it with a determination of whether a rule
is consistent with the Rules Enabling Act (note that this
is only as factor to consider when trying to figure out
if there is a conflict or not
When there is no conflict
then the FED rule/statute won’t win out.
FED courts seem to feel
that state courts are too nice to Class Actions and so
have been dismissing them once removed… It should be noted
that you can bring a class action into FED court but the
rules regarding class actions in the FED courts are not
The Judiciary Act of 1789…the
law of the several states should apply when appropriate
Case had twin aims… to prevent forum shopping and equitable
application of laws
when cases based on state
law end up in FED court the FED court needs to apply state
law. The Erie
doctrine allows for some forum shopping but it does not
draw the line. This case marked the end of FED general law but
it did not end FED common Law (there are areas that the
FED can reserve for itself but not every facet of state
The 10th “Federalism”… those rights not reserved for the FED… go
to the states… it should not matter whether the law comes
from legislature, statute, or the highest state court.
There are matters that Congress can state as FED matters
and so FED law will apply even though there is to be no
general FED common Law.
If there is no FED substantive law then you can’t file
in FED court without diversity
than one states’ law applies…
then the state with the highest interest in the case will
probably end up having its law apply… this could be the
state that would be most offended if their law was not
It should be noted that a state will not usually apply
a law that will not help their own citizen They will also
not generally use the law from another state
Diversity jurisdiction should alleviate certain forms
of prejudice but it can’t eliminate all of them and so
there are going to be differences in the ways that state
courts and FED courts do things… this is why forum shopping
The Outcome Determinative Test= if the result would be different use the state law… (this does not
always apply now but it is part of a bigger test)
Eri says that some forum shopping is OK but it does not tell us to what degree that it
should be accepted
The Rules Enabling Act= this act allows the FED to Draw up procedural rules for the FED court)
There are 3 big factors in determining what law to use
in the event of a conflict:
of how bound up the state way is with substantive law
over procedural (note that the more procedural it is the
more likely it will swing in favor of using the FED law
and the rule used must conform to the Rules enabling Act)
of the FED interest, and
it is to change the outcome (the outcome determinative
When there is no conflict in laws… the state law will
In FED courts… the judge can evaluate the jury’s decision
to ensure that the jury found in a way conclusive to the
In a diversity case… without another reason… use the
In reality… attorney’s regularly forum shop, so the
Forum Shopping test does not really apply
Even when the FED applies state law… it will use its
own procedure and so this can make a difference in how
the case is going to come out… that is why we still have
forum shopping… another reason is that damages tend to
higher is highly populated areas but their dockets are
going to be more crowded… booming areas tend to have more
disputes… this will contribute to them being more crowded
The scope of Congressional Power… if there is no FED
substantive law= you can’t file it in FED court without
diversity… (there is no FED question).
It would not be Unconstitutional for Congress to decide
that all cases heard in FED Court should apply FED Law…
note that Erie says that in cases involving state law
that are filed in FED court should have state law applied
to them. Erie is the applicable law today as far as this is concerned. Erie only marks the end of General
Fed Common Law but it did not end FED Common Law (there
actually is a difference)
Congress and State legislatures are more
busy today than they used to be… this means that more
laws are being passed
In a diversity case… without another reason…
use state law
The FED system moves faster than the state
system and the FED system is more formal that the state
system… They are also going to carry lighter dockets
Klaxon: The federal court should use the conflict of laws rules of
the state in which the federal court is sitting. The federal court is to use the state rules for
deciding which state law should apply.
Decisions between the FED and state courts:
Preclusion via Full Faith
to State= FFC
to FED= FFC
State= FFC when there is no FED interest and State law
When cases are decided:
On the merits= can’t refile
With prejudice= can’t
There are times when courts will make changes in the
law that it just decided because precedent changes fairly
recently and thus ended up in two different outcomes for
the same underlying events. This happens when there is more than
one party involved in the case and one set of parties
ends up going to the FED and the other party does not…
because they were in different courts the time frame for
deciding the case even under the same law took a different
amount of time and then in the interim the precedent changed…
the court will then adjust the outcome of the previously
decided cases to make justice consistent
Certification… this is when the FED
checks with the state courts when it is not sure about
the law in the state… it does not always happen and there
are some good notes for this
in the book… The majority
of states will allow this to happen… the policy behind
this is that the FED court can’t told what to do by the
State Supreme Courts
When a FED court does an
abstention… it either dismisses or it stays the proceedings
to get the law clarified
Certification and abstention
are ways to avoid a conflict in laws
Decisions between the
FED District Court and FED Court of Appeals:
When the court of appeals
de novo… in a question of law… they give no deference
as to the law… even though the district court might be
more knowledgeable about that area of law
Damages and Calculations:
A court can measure interest
on judgments by=
running it from the actual taking (most jurisdictions
do this one)
running from the date of filing
running from the time of the judgment
In FED the interest rate is set to the T-Bill
Sustitutional= this is where you are not getting back the actual thing that you lost but
it is where you are being compensated for he things that
you lost… money is the biggest example of this
It needs to be determined from the time of the final
parties agree to them in advance
makes it easier to determine damages (especially when
they would be hard to measure)
can come from statutes as well as from party contracts
You must first seek legal remedies before you seek equitable
remedies (unless you can show that legal remedies are
inadequate)… this is the old maxim and it is still followed
when you seek a legal remedy… you get a jury and when
you seek equity you get a judge (generally)
Equity= the requirement
the legal remedy is inadequate or there would be irreparable
the benefit to the recipient must not out weigh the
harm to the person it is used against
the harm in giving it as opposed to not giving it
must have clean hands
laches= sitting on your rights won’t help
Declaratory Relief= courts
declare rights and duties of parties… the Declaratory
Judgment Act empowers the courts to do this
Considerations when it comes to damages=
we need to restore the ∏ to the condition he/she
would have been in before the injury
marketability of what was lost
Find the correlation between the loss/taking and lost
profits and not only the value of the thing lost.
Duty to mitigate… this is the time it would have taken
the reasonable person to recover.
After this point, lost profits can no longer be
rewarded because all people are expected to mitigate their
damages… but if things can’t be replaced due to economic
condition… this will also be considered
Pain and suffering must be evaluated on a case by case
time and legal fees are generally not compensable
are based on a reckless
act by the ∆ and the idea is to punish the ∆
must be reviewed for excessiveness
An appellate court will
do a denovo review for punitive damages:
the Supreme Court reviews a punitive damages case…70%
of the time… they are going to reverse/remand
is also a notion of not interfering with the decision
of the states but it is not as strong as the 70% swat
When they are found to
be grossly excessive… they may be found to be unconstitutional…
because there needs to be notice of punishment and such
punishment needs to be proportional… The 3 things to consider
when making this determination:
of the act
of damages to value
to civil penalties in other cases
Attorney Fees= when someone
Fee Shifting from 11, 26, and 37
complete fee shifting in civil rights cases
Equal Access to Justice Act= rarely happens but when
the FED brings a bogus suit… they pay but not at 200 dollars
an hour… it is much less
contracts can get the other side to pay (like a lease)
common law provisions can get the other side to pay
Attorney Fees= the client
hourly fees (most common)… if it would be advantageous
for your client you must offer the hourly rate and when
they ask you must disclose it
In premium billing either one of the above will go up
when the case gets complicated
prepaid insurance pays attorneys
contingent fees… sliding scale states allow a lower
% when the amount of the judgment goes up
sliding scale states
Property Seizure and
Mathews Test= this is
a 3 factor test used to determine the degree of formality
needed in a case before you seize or have property seized.
Search Warrants are the
exception to the general feeling about property seizure
is that property can be seized and there is no requirement
for the “powers that be” to tell you how to get it back.
You have to find out for yourself.
With a valid/ important
state interest… notice is not required.
If a waiver of your right
to due process (notice) is bargained for… it might be
allowed… but it will depend on what the court thinks about
Simply going in to warn
a person about an immanent seizure can be considered informal
notice under 6-a.
needs to be
a need for prompt action
a clear need
the state controlling the process
an important public interest is at stake
and a reason not to notify a person
An Attachment Quasi-in rem= you need to have minimum contacts… and a
governmental interest to attach a property.
says that if you have minimal contacts… there is no need
for attachment to obtain jurisdiction and so it forbids
it… Alternatively… Shaffer says that if there is no minimal
contacts… attachment can’t be made to obtain jurisdiction
some good notes to this in the rules outline
about the safe harbor rule in this rule.
We also talked about waiving service will give
you longer time to amend a pleading… 60 or 90 days the
same time you get when you waive your right to service
The safe harbor
rule can allow for bullying tactics
are paid to the courts and not to the parties… this is
could be sent to a CLE as a punishment
When a court
imposes a FRCP 11 sanction, it must stay under the FRCP
11 provisions for doing so
a court can impose its own sanctions and does not need
to use FRCP 11 to do so
If you deny
something that you later find out is true… you will not
need to amend but you can’t pursue action according to
Notes on Ethics:
A lawyer can’t call another
party that is already represented unless he talks to the
Rules 26-37 have their
Pleadings and Motions:
The term pleading covers
things like complaints, answers, and counter-claims
Pleadings are handled
by a few rules… 8 and 9 deal
with different types of pleading while rule 15 deals with
Modern pleadings are also
important in the things that they don’t do… 1 they do
not sharply define the dispute and 2 they do not convey
substantial factual information in the case
Modern Pleadings have
2 functions… 1 is that they can eliminate some legal theories
and streamline proceedings and allow for parties to figure
out the value of their cases and 2 they can define the
ground covered in the discovery phase…
Government officials are
held to the objective standard… so when you are pleading
against them you need to keep that in mind
Burden of Pleading= when
there is a presumption otherwise… you have the burden
of proof. When pleading
affirmative defenses… the burden is on the ∆ “Hannah
∏ vs. ∆ = ∏ does not have to anticipate
a ∆’s defenses but the ∏ has to anticipate when it
is a situation where it is on the face of the complaint…
like you are pleading after SOL “complaint raises SOL
defense” and so you will have the burden to plead why
you tolled the SOL
Rule 10 and 11 will tell you what you need to have
in a pleading…
you will need to number the paragraphs… you will need
to put the name of the complaint on it… the name of the
pleading is what type of pleading it is (like a complaint,
answer, counterclaim…)… when you
want a jury trial you have to ask for one in the pleadings…
the local rules in Louisiana do it in the caption… attorney
information goes in the caption too (name, address, signature,
phone, and bar admission number)
go to all other parties in the suit… they must be signed…
and then it is to be filed within reasonable period of
You have 20 days after
you have been served to file an answer or motion unless
a statute says otherwise… if you waived service of process
you will get 60 or 90 days from the time the waiver was
sent (depending on whether you are in the country or not)
You have the
same amount of time to serve a pre-answer motion as you
do a regular motion
Motion= when a ∏ or ∆ moves the court
You can join a motion
and a pre-answer motion
Pleadings and Motions:
When a ∏ complains the ∆ can affirm or deny… after the pleadings are closed…
you are left you can use 12-f to strike an affirmative
defense to get out from the affirm or deny position from
the pleadings stopping
If someone does a conjunctive
denial… (they are denying A or B)… no one knows what it
is that they are denying
Denials should fairly
meet the averments… otherwise they will be deemed as an
admission… you can only affirm or deny
Saying that you lack sufficient
information is the same thing as a denial 8-b-2
It should be noted that
saying nothing is an admission but since the pleadings
could be read in front of the jury so it won’t be as damaging
Affirmative defenses need
to be specifically pleaded and put in the answer or else
you can’t do it
Regular denials don’t
need to be specifically pleaded
The line between denials
and affirmative defenses is not always clear.
There even a couple of
notorious examples of when a ∆ must plead the affirmative
defense… in response to a certain type of allegation…
when a ∏ claims defamation… the ∆
must allege that the statement was true… when a ∏ alleges non-payment of a
bill… the ∆ must allege payment of the bill
Amendments of pleadings Rule 15:
Allows as a right to amend once before 20 days or before responsive
pleading has been served (what ever is shorter)…
the same applies to a counter claim when the reply comes
back before the 20 days
If for some reason someone misses their attempt to amend… the party may
request a leave to amend… leave to amend shall be given
when justice so requires… when there is no evidence of
bad faith, prejudice, undue influence, or futility
Futility talks about granting a leave that will not do any good because
the SOL has run… but this can be overcome by relation
back… the court will look to the operational facts of
the case to determine if the case relates back… it must
be of the same C, T, O and give the party adequate notice
that they should have been litigated against… additionally
it must meet the time requirement.
The policy behind allowing this rule to run over SOL is that the part that
had notice of it had all of the protections of the SOL…
It should be noted that as long as the operative facts
are the same in the amended claim… suing under a different
theory of law will be allowed
The courts will take each case on its own.. to determine if the original
complaint did indeed have the essential elements to notify
The courts are really concerned with notice. So if a party receives notice with the wrong
name on it (but its close) they will definitely allow
leave for amendment. Where it gets tricky is when the other party
does not even get notice… the courts will only allow notice
if that other part should have known reasonably that they
were the proper party to get sued. Another element is whether o not the party serving
the pleading actually made a mistake or not
15-a is about getting to the
merits of the case when the party trying to use it has
not offended any of the balancing factors.
It should be noted that granting or denying leave
to amend is @ the discretion of the court. The court will expect there to be a good reason
why the party did not get the pleading done right the
first time and will not want the granting of it to hurt
the other party too much.
Relation Back= allows for a pleading to
beat SOL by relating back to the time when the pleading
was filed… go to the rules outline for this for the requirements
for claim to relate back… and one includes timing of 120
days from the time of filing the original pleading… the
other element is that the other party have notice to prepare
itself for litigation so that if litigation is allowed.
Rule 12 Defense and Objection
A motion is where a ∏
or ∆ moves the court to do something
A pre-answer motion= you will have the same length of time to do these
as a regular motion
You can join a pre-answer motion wit a regular motion
We have all of rule 12 in supplemental graphs
Motions for more definite statements (12-e)
almost never happen... they are not favored by the courts
Motions to strike= deal
with striking out certain parts of a pleading… most of
these motions fail… the most common type are those that
try to strike down forms of relief that are not warranted
12-h-2 defenses are never
waived… they can be raised in you answer
The literal terms of rule
12 suggest that you only get 1 motion to include things
You can amend once within
2o days max or before the responsive pleading comes back
which ever is shorter (FRCP15-a)…
after you do this once… you need to get leave of the court
(FRCP15-a)…this also applies to replies to counterclaims.
A failure to state a claim in which relief can be granted…
is on the merits and precludes bringing the matter again….
The other is the subject matter jurisdiction… and this
is not on the merits and is not precluded from being brought
again in court.
If you did not object to personal or subject matter jurisdiction…on
appeal you could only raise subject matter jurisdiction…
personal jurisdiction is waived.
Pg. 226 the Caterpillar Case was mentioned in class.
If you raise and lose personal jurisdiction…you can’t
raise in a collateral… the second court must give full
faith and credit to that court that already decided (you
got you bite at it… it is the same story with subject
matter jurisdiction… you got your bite at it. This is the same thing if you appeared and failed
to raise either and then try to bring the matter in a
collateral matter ( it is not the same thing as an appeal)
There are two ways to go here,
one is to dismiss the case, another is to stay the proceedings
in FED court and send things to the state court to have
the state laws figure out the state stuff (Pullman Abstention)
This doctrine is judge made
and so it is really complicated
FED courts will not interfere
with state court criminal proceedings because the ∆
can still appeal to the US Supreme Court… also state courts
still have to apply the Constitution to the ∆ (Younger
for consolidation for cases that hit across multiple jurisdictions. The idea is to have a consolidated pre-trial.
pre-trial proceedings are finished the cases need to go
to their original jurisdictions.
1332 and Compulsory vs. Permissive Counter-Claims
for a more definite statement:
(When responsive pleadings are permitted)
12-f= Motion to Strike
(For pleadings (that
do not permit and that do permit) a responsive
“Responding to a Complaint Graph”
Procedure for Removal
USC 28 1446:
“Jurisdiction to Service Graph”
“Issue Preclusion Chart:”
be precluded because
he did not join with Mrs. “R”
Requirement of Mutuality= Preclusion is waived when Mr. “R” was not bound when
Mrs. “R” lost, then the city should not be held to losing
again if Mrs. “R” won.
Dismissal of Action Rule FRCP
Cross Claims, Interpleading, and 3rd Party
(14, 19, 20, 21, 22, 23, and 24)
Rule 12-g and 12-h = Consolidation of Defenses
When a party makes a motion under rule
12, they may make with it other motions provided by this
rule that are available to them… If the party makes such motion but does not include
a defense or objection available to the party (that is
permitted by this rule to be raised as a motion)... the
party can’t make a motion based on those defenses or objections
again… The one exception from
this is an h-2 defense…
Defenses for lack of jurisdiction over the person,
improper venue, insufficiency or process, or insufficiency
of service of process are waived:
when not included in a motion
described in 12-g (above)
when not included in a motion
(under this rule), a responsive pleading, or an amendment
A defense of failure to state a claim upon which
relief can be granted, a defense of failure to join a
party indispensable under rule 19, and an objection of failure to state a legal defense to a claim
may be in any pleading
permitted or order
under FRCP 7-a. These could also happen by motion for judgment
on the pleadings or @ trial on the merits
When ever it appears (by suggestion of the parties
or otherwise) that the court does not have SMJ, the action
will be dismissed by the court… it should be noted that
the court may finds on its own that it lacks SMJ to hear
a case (Sua-sponte = on its own resolve)
12-b and 12-d = Defenses and Timing:
12-c = Motion for Judgment on the Pleadings:
Rule 12 Answering/Replying
“12-a-1 thru 3”
Rule 5 and Serving/Filing and other
12-c and 12-d = Motion for Judgment on the Pleadings:
I. CH 7 DISCOVERY
A. Rule 26 (b): Discovery Scope and Limits. Unless otherwise
limited by order of the court in accordance with these rules,
the scope of discovery is as follows:
(1) In General: Parties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject
matter involved in the pending action whether it relates
to the subject matter of the party seeking discovery or
to the claim or defense of any other party. The information
sought need not be admissible at the trial if the information
sought appears reasonably calculated to lead to the discovery
of admissible evidence.
-Purpose of discovery is to eliminate surprise.
-Negative aspect is the abuse of discovery to drive other
parties out of case because of expense.
B. Types of discovery:
1. Interrogatories to parties
2. Oral depositions: done in the attorney’s office
3. Written depositions
4. Motion for production
5. Mental or physical exam
C. Hearsay is not admissible at trial, but can be used in
discovery if reasonably calculated to lead to admissible
D. Blank v. Sullivan & Cromwell: example of admissible
evidence reasonably calculated to lead to the discovery
of admissible evidence.
1. The type of privilege excluded from Rule 26(b)(1) is
Dr./patient and Atty./Client.
a. The person who claims privilege is that person who can
assert it in trial.
F. Rule 26(a): Required Disclosures; Methods to Discover
Additional Matter. (Dist. Cts. Can opt out of rule)
-exception: parties can stipulate this b/t themselves, but
court can overrule.
(1) Initial Disclosures: Except to the extent otherwise
stipulated or directed by order or local rule, a party shall,
without awaiting a discovery request, provide to other parties:
(A) Name of persons relative to the case: “relative” changed
from “helpful or detrimental”
(B) Allows for the demand for of any documents that are
related, but not necessarily poignant to my specific case.
G. Devices of Discovery:
1. 3 ways of obtaining info.
a. Asking questions
1.) Rule 33. Interrogatories to parties. (Only good for
2.) Rule 30. Depositions upon Oral Exam
a.) You must subpoena a witness. If you don’t produce the
witness you pay attorney fees. You have to give notice to
the attorney. It’s there job to produce client.
b.) Advantages to Rule 30 Depositions:
i) You get info. that you don’t have about opponent.
ii) Gives you an advantage in what your opposing council
knows and doesn’t know.
iii)You commit a party to statements made under oath.
iv) You can assess the demeanor of an adverse party or witness.
v) Gives you an opportunity to confront opposing party with
vi) You are preserving his testimony in case he is unable
to appear at trial.
i) You may stimulate the other side to better prepare his
ii) You educate the opponent.
iii)You preserve bad testimony.
3.) Rule 30 (d)(1): Look at 2001 revision.
4.) Rule 30(e): Opposition and client have the right to
read and approve the deposition.
5.) Rule 28: Before whom a deposition may be taken.
6.) Rule 29: If a proper authority is present to swear witnesses
in then the parties can agree to stipulate to it.
7.) Rule 31: Depositions upon written questions (rarely
b.) Rule 34: Production of Documents and Things. (files
with motion for depo.)
(a) Scope: Any party may serve on any other party a request
(1) to produce and permit the party making the request to
inspect and copy any designated documents within the scope
of Rule 26(b) and which are in the possession of the party
upon whom the request is served; or (2) to permit entry
upon designated and in the possession of the party for the
purpose of inspection within the scope of Rule 26(b).
-To obtain documents in the custody of a non-party, you
have to subpoena for deposition and for him to bring documents
with him. Rule 45
1.) 30 days is basic time, but can be extended by agreement.
2.) You can request earning records before and after and
medical records for the purposes of the deposition.
3.) Rule 26(d): Forbids discovery b/f the 1st pre-trial
c.) Rule 35: Physical and Mental Exam
(a) Order for Examination. When the mental or physical condition
of a party, or of a person in the custody or under the legal
control of a party, is in controversy, the court in which
the action is pending may order the party to submit to a
physical or mental examination by a suitably licensed or
certified examiner or to produce for examination the person
in the party’s custody or legal control. The order may be
made only on motion for good cause shown and upon notice
to the person to be examined and to all parties and shall
specify time, place, manner, etc.
-All sides are entitled to copies of the report.
2. Rule 36. Requests for admissions (“admit or deny the
a.) If admitted, that’s the end of it.
b.) If ignored, after 30 days it’s deemed admitted.
3. Rule 37(a). If you forget to add something in your voluntary
disclosures, then you cannot use it in trial.
H. Limitations to curb abuses on discovery.
1. Discovery necessarily gets personal and confidential.
Some atty’s try to embarrass w/ depositions, etc.
2. Rule grants judges great discretion over discovery and
its requisite abuses.
3. Rule 26(c) gives judge authority to grant “any” order
necessary to protect party.
Stalnaker v. Kmart Corp.(Rule 26(c) case): In a sexual harassment
action v. Kmart the p requested for admission of voluntary
sexual relations of other co-workers… p wanted to establish
a pattern. ? wants to protect the non-party persons involved.
There is no privilege here. Under the broad heading of subject
matter it is relevant. It could lead to further evidence.
Schlagenhauf v. Holder (Regarding Rule 35): Several passengers
injured in auto accident. Schlagenhauf is driver. ? wanted
? to undergo several physical exams. Court held that ? is
within scope of Rule 35 when referring to “party”. “Party”
does not have to be adverse, just any party to the litigation.
Have to determine if good cause exists. ? did not use his
health as defense, thus, excluding it as an issue. The issue
was not in “controversy”.
I. Work-Product of an attorney.
1. Rule 26(b)(3): “…in anticipation of litigation or for
trial by or for another party or by or for that other party’s
rep. only upon showing that the party seeking discovery
has substantial need of the materials in the preparation
of the party’s case and that the party is unable without
undue hardship to obtain the substantial equivalent of the
materials by other means. In ordering discovery of such
materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney
or other rep. of a party concerning the litigation.
2. 2 Categories:
a. Documentation: Mental impressions, theories and opinions
are almost always excluded from discovery. Absolute immunity
b. Documents not reflecting subjective thoughts:
1.) Maybe discoverable:
a.) Substantial need by party seeking it, and
b.) Reasonable equivalent not available without undue hardship.
Cases: Hickman v. Taylor (Rule 26(b)(3)): A written statement
is not a deposition. Writing what a witness tells you signed
by witness. Not done under oath. Can use for impeachment
purposes. p demanded private files of ? atty. Tr. Ct. said
it had to be disclosed. App. Ct. Says it was privileged.
S. Ct. affirms.
1. 2-fold rule of work product:
a. Qualified immunity:
b. Absolute immunity:
2. Factors of “undue hardship”
a. Relationship to party
b. Friendliness to party
c. Cost and expense to party
d. Material resources
e. Crucial witness whose whereabouts are unknown
J. Expert Witnesses:
1. They have tremendous bearing on outcome of case.
2. Rule 26(a)(2): Disclosure of Expert Testimony.
(A) Identify persons to be used at trial.
(B) accompanied by a written report prepared and signed
by the witness.
(C) 90 days b/f trial.
a.) Must be able to cross experts
b.) Need to control fraud.
3. Rule 26(b)(4): Trial Preparation: Experts.
(A) A party may depose any person who has been id’d as an
expert whose opinions may be presented at trial.
(B) A party may discover facts known or opinions held by
an expert who has been retained or specially employed by
another party in anticipation of litigation or preparation
for trial and who is not expected to be called as a witness
at trial or upon a showing of exceptional circumstances
under which it is impracticable for the party seeking discovery
to obtain facts or opinions on the same subject by other
(C) If (b)(4)(B) is utilized, then opposition has to help
pay fees for expert.
a. Qualify him as an expert (ed., training, experience,
b. Tender to the judge as an expert for judges permission.
5. Employee expert (expert about operations of ? company)
a. Considered general witness under 26(b)(1)
b. Can be qualified as expert witness, thus, may be able
to give opinion.
6. Actor Experts (eyewitness to event, but also expert.
a. Opinions would be more difficult to get.
7. Informal Consultants
a. If not retained and not expected to testify, then info
K. Oral Depositions on behalf of corp.
1. Rule 30(b)(6): A party may in the party’s notice and
in a subpoena name as the dependent a public or private
corp. or a partnership or assoc. or gov’t. agency and describe
with reasonable particularity the matters on which exam.
Is requested. In that event, the org. so named shall designate
one or more officers, directors or managing agents who consent
to testify on its behalf, and may set forth, for each person
designated, the matters on which the person will testify.
A subpoena shall advise a non-party org. of its duty to
make such a designation. The persons so designated shall
testify as to matters known or reasonably available to the
L. Rule 26(g): Signing of Disclosures, Discovery Requests,
Responses, and Objections.
(1) Everything must be signed.
(2) Signature means that everything (A) follows law, (B)
not harassing, and (C) not unreasonable or expensive.
(3) Violations will result in sanctions, which may include
M. Rule 37: Failure to cooperate in Discovery.
(a)(1) File in court where action is pending
(a)(2)(A): Failure to comply with rule 26(a)
(a)(2)(B): Motions to compel discovery.
1. Before you bring it to the court:
a. Meet with the opposing parties atty.
b. Continue with deposition and advise that it will be taken
up with the court, or if you need the answer then, you can
halt the deposition to get a ruling.
c. Present to a magistrate: He orders for your motion.
(a)(4)(A): Expenses and sanctions.
1.) Costs in making the motion and attorney’s fees are recouped.
Unless court feels that expenses are unjustified.
d. Return to deposition (still refuses)
(b)(1) Failure to comply:
1.) If deponent is a witness:
a.) deponent held in contempt. Fine, possible jail time
2.) If deponent is a party:
1.) Court can determine if facts are est.
2.) Party can’t enter evidence on the matter.
3.) Dismissing suit
4.) Default judgment
5.) Held in Contempt
(d) Failure to attend deposition or serve answers, or respond
to request for inspection.
1.) Held subject to (b)(2)(A-C). Not (D) b/c it’s not a
court order, so can’t be in contempt.
2.) Rule 26(c): Protective order. Explanation of why a deposition
can’t be attended. (only if informal request doesn’t work).
(g) Failure to participate in the framing of a discovery
plan. (Not working on schedule)
(c)(1) Failure to Disclose: Amended in 2001
1.) Can’t use in trial, motions, etc. and Malpractice.
2.) You have an obligation to supplement. (Rule 26(e))
II. CH 8 RESOLUTION WITHOUT TRIAL
A. Rule 55: Default judgments: Fed. Ct. does not favor
these. Often appealed.
B. Rule 41(a): Voluntary Dismissal
(1) By p:
(i) filing a notice before service by the adverse party
of an answer or of a motion for summary J. (ii) by filing
a stipulation of dismissal signed by all parties who have
appeared in the action.
-Often done when settlement is reached.
-Dismissed w/o prejudice, except that a notice of dismissal
operates as an adjudication upon the merits when filed by
a p who has once dismissed in any court of the US or of
any state an action based on or including the same claim.
(2) By Order of the Court: Except in (1), an action shall
not be dismissed at the plaintiff’s instance save upon order
of the court and upon such terms and conditions as the court
-W/o prejudice unless stated otherwise.
C. Rule 41(b): Involuntary Dismissal: For failure of the
p to prosecute or to comply with these rules or any order
of court, a ? may move for dismissal of an action or of
any claim against the ?. Unless the court in its order for
dismissal otherwise specifies, a dismissal under this subdivision
and any dismissal not provided for in this rule, other than
a dismissal for lack of J, for improper venue, or for failure
to joint a party under Rule 19, operates as an adjudication
upon the merits.
1. Dismissal w/ prej. Or Dismissal w/o prej. (p can re-file
unless SoL have run)
2. Failure to prosecute: No set time limit to prosecute
claim. ? must file a motion. If the court calls its docket.
Reviews cases on docket, and those with no recent action
go on call docket to appear in court on motion day and atty.
has to explain inaction and judge has authority to dismiss.
D. Settlement (Procedure):
1. Verbal agreement of settlement
2. A release is prepared by ? to clear them of any claims
3. Motion to dismiss with prejudice is filed with court.
E. Referring settlements to a magistrate.
1. Better than sending to a judge because they don’t want
to look at #’s because of prejudice.
2. Some judges meet privately wit both counsel. Promotes
settlement by letting the judge know where each party stands
without divulging strategical info. to opposing counsel.
F. Settlement Confidentiality
1. Free to contract to keep info. from going public.
Case: Kalinauskas v. Wong: The p filed for discovery in
a sexual discrimination suit. They filed for a deposition
with an employee that had one a previous sex. Disc. Suit,
but the settlement agreement included a confidentiality
agreement. The agreement only mentioned the terms of the
settlement, not her side of the story. The court held that
p could depose the witness on facts, but not the terms of
the agreement. The ? could have stipulated to the terms
of the desired deposition to avoid the actual deposition.
G. Rule 56. Summary Judgment: p can’t prove cause if action.
1. 56(c): The adverse party prior to the day of hearing
may serve opposing affidavits. The judgment sought shall
be rendered forthwith if the pleadings, depositions, answers
to interrogatories and admissions on file, together with
affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.
2. 56(e): Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters
stated therein… When a motion for summary judgment is made
and supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of the
adverse party’s pleading, but the adverse party’s response,
by affidavits or as otherwise provided in this rule must
set forth specific facts showing that there is a genuine
issue for trial.
3. Lawyers use this to minimize claims prior to jury trials.
You can dismiss the entire suit or individual parts.
4. This can still be done before trial based on discovered
H. Rule 12(b)(6): To dismiss for failure of the pleading
to state a claim upon which relief can be granted.
1. Only applicable if the complaint doesn’t claim a legal
cause of action.
2. Court is required to give the p the benefit of the doubt.
(Connelly v. Smith)
Case: Celotex Corp. v. Catrett: p claims death of husband
by asbestosis. ? moved for SJ because of no fact showing
that it was exposure to ?’s product. Motion was filed after
ample time for discovery. S.Ct. ruled that moving party
does NOT have obligation to produce evidence that tends
to negate the other party’s claim. Discovery and pleadings
speak for themselves as to issues of relevant material facts.
3. Rule 8: Notice Pleading: Suits can be filed without all
of the facts being known.(Contradiction to 56?)
4. 56(f): Allows more time for discovery if justice demands
-Courts are reluctant to allow Rule 56 without ample discovery.
I. Pre-Trial Order
1. Rule 16: Pre-Trial Conferences.
(a) Court calls a conference to set the schedule for the
(e) Pretrial order: After any conference held, an order
shall be entered reciting the action taken. This order shall
control the subsequent course of the action unless modified
by a subsequent order. The order following a final pretrial
conference shall be modified only to prevent manifest injustice.
Case: McKey v. Fairburn: p filed suit for neg. b/c of leaky
roof. It became apparent that the p could not win on neg,
but that there was a violation of the Fair Housing Act.
Ct. denied amendment to pre-trial order. Ct. said that “manifest
injustice” is an extreme term and trial judge has wide discretion
in determining what is or is not manifest injustice. One
could assume this was not injustice because counsel for
p assumed to know law and should have included it in the
original complaint. Ex. Client chooses lawyer at his peril.
Lesson: ALWAYS include e every conceivable cause of action
in pre-trial order.