a. PleadingA. Lawyer’s Responsibility

1. Responsibility to client, court, and themselves- that every paper filed in federal court adheres to Rule 11

2. Rule 11-covers every pleading, written motion, and other paper that’s filed with the Federal court. Rule 11-Lawyer’s Responsibility Trigger: Party making a Motion to Impose sanctions during Pleading phase-Looking for improper conduct-This analysis comes in

3. Purpose of Rule 11-To ensure that pleadings are not frivolous or merely harassment

i. Fines and other sanctions for abusive/improper conduct4. Rule 11(a) Signature requirement

a. Must be made by the lawyerb. If there is no lawyer, the pleader must signc. The signer must include his address and phone number,

and e-mail addressd. If the signature is missing, the court may strike the

pleadings, unless it is signed promptly after such omission is brought to the pleader’s attention.

ii. Rule 11(b) Representations to courta. Attorney certifies that filings are valid for the court to the

best of their knowledge. Whatever filed with court NOT BEING DONE with IMPROPER PURPOSE, HARASSMENT, OR DELAY

b. Legal Contentions1. Claims, defenses, are warranted by existing law

or good faith argument for extending, modifying or reversing existing law. Reflects duty to competently perform legal research that supports that parties’ position

Ex: Spring 2014 Cousin Hypo-Claims NOT WARRANTED BY EXISTING LAW TRA=merely proposed law pending before NY, the law was neither passed nor signed by gov.Ex: Multiple Choice-If the agency actually files and serves the draft complaint against the Agency for alleging a fact lacking evidentiary support.

c. Factual contentions 1. Factual allegations based on factual support after

reasonable inquiry. Factual contentions have evidentiary support or will likely have evidentiary support after a reasonable time to investigate. Rule 11 objective standard-what a reasonable attorney would do.Ex: Spring 2014 Cousins Hypo-Factual allegations not based on factual support after

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reasonable inquiry-Lacks factual support-sloppiness in suing wrong party-not based on reasonable investigation

d. Purpose of Rule 11 b-Representations to court-STIR-Before Filing first, “Stop, think, investigate, research”

1. Made with proper purpose, not to harass or delay

iii. Rule 11(c) Sanctionsa. Court has direction to impose sanctions (monetary or

other)1. Exception- no monetary sanctions for violation

of legal contentionsb. Designed to deter improper conductc. Ex- Bridges was simple error and NOT IMPROPER

CONDUCT→ sanctions would not be appropriated. Rule 11 C(2) Safe harbor period- 1. Party seeking rule 11

sanctions serves other party with Rule 11 Motion2. Offending party (Party receiving Motion) has 21 days to either correct or withdraw improper filings3. If no correction or withdrawal occurs, then party seeking motion, can file motion with the court Ex: Spring 2014 Cousins Hypo-P complied with Rule 11’s safe harbor provision before making motion to impose sanctions

iv. Rule 11(d)-Rule 11 Does not apply to discovery. Improper Conduct in Discovery-Rule 37

5. Bridges v. Dieseli. Rule 11 sanctions should be reserved for exceptional

circumstances where claim asserted is unmeritedii. Didn’t sanction Ps attorney for violating Rule 11

a. Once aware of proper procedure, immediately admitted mistake filed charge in correct forum

*Note on Exam-Look for Rule 11a Signature, then move to Rule 11b Rep. to court, then move to rule 11c-Impose sanctions-deter improper conduct/safe harbor period

B. Stating a Claim1. Generally, pleadings allowed- Rule 7a

i. Complaint a. Formal presentation of the claim- Court gets copy,

actually filed with the court, initiating a legal proceedingb. Series of allegations in 2 categories

1. Sufficient factual allegations-D attacks a complaint-insufficient factually

2. Needs a cognizable and legal entitlement to remedy-D attacks a complaint-No cognizable Legal Remedy

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c. Purpose- to give other side notice about the dispute- legally and factually

d. ALL PLEADINGS-Have to state date, time of incident, description of the act that brought about the suit, where, when, who, and how. Narrative as to what happened and a legal theory

e. When drafting a complaint-P should separate out allegations into separate paragraphs. It creates more clarity, and it prevents a D from making a general denial to a paragraph.Ex: Instead of Paragraph 1, PPI owned, operated and controlled forkliftDo Paragraph 1-PPI owned Forklift

Paragraph 2-PPI operated forklift etc.f. Pleading v. Motion

Pleading-Series of Factual and legal allegations being made by pleader. Allegations are assertions and do not constitute proof; they are an explanation of the fact and law that supports the claim.Motion-A formal request that the court take some action.

ii. Answer- responds to complaint including counterclaimsiii. Answer to Counterclaims iv. Reply to answer

a. Never mandatory unless court orders it, rarely used2. Rule 8a- General guidelines about what needs to be in complaint

i. Jdx allegationsa. Why court has subject matter jdx over the case

ii. Short and plain statement of claima. Shows the pleader entitled to relief, sufficient factual and

legal allegations-Notice PleadingEx: On such and such date and such and such place, x was injured and is entitled to relief

b. Plausibility standardc. Types of pleading systems: Notice Pleading v. Code

Pleading1. Notice Pleading

i. Many states have adopted, Fed ct use notice pleading

ii. Requires far LESS factual specificityiii. General Factual Allegations-almost as if it

were a conclusioniv. Form 11 and Rule 84-Examples of Notice

pleadings for plain and short statement of complaint. Generalized allegation suffice.

v. Eerie Doctrine-Fed Ct dealing with a state law claim will apply state substantive law

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to state law issues but will also apply Federal law to Procedural issues

d. Ex: Bell v. Nocivk-Notice Pleading-Ct Held-Complaint should not be dismissed for lack of specificity so long as it satisfies Rule 8. Must only consist of short and plain statement of claim showing that pleader is entitled to relief. Ct used Notice instead of Code for procedure, case was removed to Fed Ct.

1. Code Pleadingi. Required by some states CAii. Requires GREATER-factual specificity iii. Requires ULTIMATE FACTS-factual

allegations that specify proof of that element

Ex: If D in Bell v Novick-did not remove to fed ct and stayed in state ct-Motion to dismiss granted-P’s complaint need more factual specificity

iii. Demand for relief soughta. Must state what type of relief the P is seeking, in many

cases its money damages, but can also be injunctive reliefb. Remedy sought known as Prayer for Relief

3. Rule 8(d)(2)&(3) i. Allows for Alternative or Even Inconsistent Basis in Pleading So

Long as Done in Good Faithii. Can’t make up scenarios or factual allegations UNLESS good

reason to believe they could be correct iii. When P files complaint against D, P doesn’t have as much

knowledge about case as will later on in the suit b/c of Statute of Limitations puts pressure on P to file the lawsuit

4. Motion to dismiss i. Rule 12(b)(6)- Terms for motion to dismiss

1. Rule Statement-Rule 8: Do the allegations in the complaint entitle the P to a legal remedy?2. 12 b(6) Motions Occur before the answer and they test the factual and legal sufficiency of the claim(s) stated in the complaint.

a. In determining the sufficiency of the complaint, the fed ct will apply the federal law: notice pleading standard.

b. Courts only Looks at 4 corners of complaint itself, and assumes that the complaint’s factual allegations are true.

1. If granted- P can either amend or appeal decision2. If denied- D can either continue with answer or

allowing default judgment then appeal decisionUse of Motion to Dismiss-Getting case kicked out at pleading-more cost efficient, discovery $

ii. Failure to state a claim

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a. Demurrer(12 b 6 in state court-same procedural mechanism)

1. Attacks sufficiency of the claim, legal and factual2. If sufficient- trial court denies motion3. If insufficient- trial court sustains and dismisses

caseb. Dismissal

1. Without prejudice (leave to amend)- P can re-file or amend

2. With prejudice- P cannot refile nor amend-P can appeal-If Legally insufficient-Dismissal will result with prejudice

iii. Factual sufficiencya. Plausibility standard-Twiqbal Two Step

1. Allegations in complaint have to make it plausible that Ds committed violation

2. Applicability of Twombly/Iqbal cases-2 part rule to determine plausibility

i. The first step it to disregard conclusory allegations-Legal Conclusion-Recitation of an element required of the law, formulaic recitation of labels and conclusions of law Need Additional Info

Ex: Conclusory Allegation-That the D entered into an anti-competitive agreement.Ex2: That Ashcroft created discrimination policy, and that M was instrumental in adopting and executing that policyii. The Second Step is to acess whether

remaining allegations (D’s liability) is plausible-a) Requires court to rely on experience and common sense see if reasonable inference of liability b)Mere possibility of liability NOT ENOUGH

3. Recitation of facts from complaint is not sufficient4. Bald Factual assertions not enough5. Higher standard- may have the effect of limiting

access to civil justice6. Twiqbal two step applies to most cases-Except for

simple cases-negligence, breach of KEx: Factually Insufficient-Bell Atlantic v. Twombly-D made motion to dismiss 12(b)(6) for failure to state a claim Ct Held-Ps claim factually insufficient, Requires complaint with enough factual matter to suggest valid claim arises

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Ex2: Factually Insufficient-Ashcroft v. Iqbal-Ct Held-Ps claims factually insufficient-they were conclusory, had no specific details on the allegations being made

iv. Evaluating the Sufficiency of Legal Theory Rule: In order for a complaint to be legally sufficient, the P must illustrate that he has a cognizable legal remedy. If P complaint is legally insufficient, 12b 6 granted-dismissal with prejudice, P cannot amend nor refile complaint.

a. Ex-Haddle v. Garrison-Yes Cognizable Legal Remedy 1. Rule-Appeals from 12(b)(6) motions are not

reviewable where binding precedent renders the complaint without legal recourse-Earlier case ruled that at-will employees are not entitled to same full rights

2. Ct Reversed D’s 12b-6, Held- P does have a cognizable legal remedy, because at will employee is property interest

3. Cousins Hypo-No Cognizable Legal Remedy-TRA=merely proposed law not cognizeable in U.S.

5. Consistency in pleadingRule 8d-Consistency in Pleading1)Need cognizable Legal Remedy and each allegation must be simple, concise and direct. No technical Form is required2) Alternative Statements of a Claim or Defense-A party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If party makes alternative statements, the pleading is sufficient if any one of them is sufficient.3) Rule 8d permits inconsistent pleading so long as they are made in good faith-because lawyer does not know all the facts in the beginning. Combine all your available legal theories for purposes of efficiency.Ex Inconsistency in Pleading: Haddle testified and attended grand jury and at the same time haddle did not testify but he attended grand jury. Ex 2 Inconsistency in Pleading-Count 1-Breach of K, Count 2-Assuming K not valid and enforceable, D was unjustly enriched by P’s act. 2 claims inconsistent, mutually exclusive-either there was a k or no k.

C. Responding to ComplaintHow d responds to a complaint: 1)ignore it or 2)Pre-Answer Motion Rule 12 or 3) Answer Complaint.Pre-Answer Motion1. If D has a reasonable basis to get complaint dismissed, D ought to file a pre-

answer motion.2. Motion made before D answers complaint.3. Efficient saves money and time

1. Timing/Filing/Serving Responses

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i. 12(a)(1)- Timing a. D served with summons and complaintb. D Has 21 days to respond, will be pre-answer motion,

answer to complaint, or default Pre-Answer Motion v. AnswerPre Answer Motion-asks court to take action v. Answer- pleading provide formal response. File it with court.

ii. 5(a)- When Service is requireda. Order stating service is requiredb. Pleading filed after original complaintc. Discovery papersd. Written motion, written noticee. Seizing of propertyf. When party fails to appear no service required

iii. 5(b)- How to Servea. To attorney if being representedb. Handing in personc. Leaving it at a suitable place for person to get it d. Mailing to last known addresse. Sending electronically

iv. 5(d)- Filinga. Any paper after complaint that is required to be served

must be filed within reasonable amount of timeb. Filed with clerk or judge

2. Pre-answer motioni. Categorized as:

a. Dilatory- defense based on technicalities b. Preemptory- merits/substance of case

ii. Can concede or deny any claims, must include all counterclaims iii. Rule 12 motions delay need for D to answer, delays suitiv. 12(b) Motions

a. Motions against P, attacking validity of claim/pleadingb. Reasons why court should not proceedc. (1) lack of jurisdiction over the subject matter can never

be waived, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted (called demurrer in state ct), and (7) failure to join a party under Rule 19

v. 12(e) motion for more definite statementa. Must be filed in PRE-ANSWER MOTION rarely usedb. State claim is so vague or indefinite that D cannot

ascertain nature of claim asserted and D cannot prepare response

1. If claim is so vague, 12(b)(6) motion usually filed

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c. Can be used where multiple Ds are being sued, for clarification to each party

d. Ex-P sues Able and Baker. In Complaint P says, Defendant did something. Which Defendant? Able or Baker?

vi. 12(f) motion to strikea. D claims part of Ps complaint must be stricken, wiped outb. Can be based on legal issue asking for wrong damagesc. Ex: Ordinary Negligence P seeks 100 G Compensatory,

100 G for Punitive, D-Motion to strike-No Punitive Damages available in ordinary negligence

d. When pleading is redundant, immaterial, over-exaggerative factual details

e. allegation does not relate to complaint, allowing allegation to remain will prejudice D, b.c. unduly unfair

vii. 12(g) consolidation of defenses in motiona. In filing pre-answer motion party INCLUDES ALL OF

HIS AVAILABLE rule 12 defenses in that ONE MOTION

b. Waives defenses of 12(b) motionsviii. 12(h) waiver or preservation of certain defenses

a. 12 b(2)-12b(5) all Waived if motion not in 12(g) or 12(b) motion-

b. 12 b(2) Lack of personal jurisdiction, 12 b (3) Improper venue, 12 b (4) Insufficiency of process, 12 b (5) Insufficiency of service-ALL WAIVED if not in pre-answer motion

c. 12 b(1), 12 b(6), 12 b (7)-NEVER WAIVEDd. Motions that can be made at trial or in pleadings

1. 12 b(6)-Failure to state a valid claim-NEVER WAIVED

2. 12 B (7)-Failure to join a 3rd party under Rule 19-NEVER WAIVED

e. 12 b(1)-Motion to dismiss for lack of subject matter jdx can be made at any time during litigation-NEVER WAIVED

f. 12 b(2)-Lack of P.J.-If D files a notice of removal, he can separately on another occasion file a 12 b(2) motion for lack of p.j., his 12 b(2) lack of P.J. motion NEVER gets WAIVED in his notice of removal.

ix. 12(c) motion for judgment on pleadingsa. P files complaint, D admits material allegations on

complaint P can now make motionb. After pleadings have CLOSED, after everything required

has been filed and servedc. Can operate as motion to dismiss for failure to state claim if

D failed to file 12(b)(6) originally

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1. Same rule as 12(b)(6)- factual/legal sufficiency 2. Can be filed by P or D3. Situations where 12 C Arise-1)D could have filed

12 b but did not do so or 2)D admits to complaint but gives legally unsupportable reason for doing so, i.e. breach of K-medical bills. P can file a 12 c motion, D admitted to every material allegation made in complaint-looking only at pleadings-I should be entitled to jmt

d. Rare since 12(b)(6) can never be waived 1. If denied, cannot filed 12(c) on same grounds

x. Mechanics of Motion 7(b)3. Answer-Pleading that responds to the complaint

i. If D cant dismiss complaint on any grounds, must respond to all factual allegations- denying or raising additional defenses

ii. Can either admit allegations or deny themiii. Complaint lists allegations in number paragraphsiv. Denials

a. 8(b)- A D has responds to allegations made in complaint. A D can: 1)admit 2) deny or 3) lack knowledge or information

b. A D has to admit that which is true-A d has to do a reasonable factual investigation under the circumstances.

c. D must deny only allegations he actually disputesOnce D denies allegation, then that allegation is in dispute.

1. Rule 8b(6)-Any allegation that is not denied is admitted

2. Usually has time limit of 21 days, unless reasonable investigation (Rule 11) takes longer

3. Rule 8 b(2)-denial has to fairly respond to substance of allegation.

4. Ex: Zielinksi-PPI violated Rule 8b(2) because it did not fairly respond to allegations in regards to ownership.

5. Like the complaint that has numbered paragraphs for the allegations, so too should the answer have numbered paragraphs that correspond to the complaint.

Ex: In responding to paragraph 1 of P’s complaint, D admits…

6. Rule 8b(4)-Deny part of an allegation. If a D denies only part of an allegation in the complaint, then he must admit to the rest.

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7. Ex: Zielenski-D should have denied controlling and operating forklift, and admitted ownership-So P could find out who was the correct D

d. General Denial1. A D Denies generally every allegation made in

complaint2. Or denies every allegation of specific paragraph

or sections 3. Rarely done in Fed Ct.4. Ex: Zielinksi-PPI General Denial not effective,

violated rule 8, Needed to respond more specifically with respect to allegation instead of acting in bad faith-P thought he sued correct D

e. Specific Denial1. A Denial that is directed to one or more

paragraphs in P’s complaint. f. Ex- Zielinski v. PPI-D

1. Ct Held-General Denial not effective D should have admitted ownership but should have specifically denied operating and controlling forklift in answer

g. Rule 8b(5)-Lacking knowledge or information1. If D does not know, state lack knowledge-this has

effect of denial2. Can allege D lacks reasonable knowledge to be

able to answer properly and therefore deniesv. Affirmative defenses

a. 8(c)(1)- series of affirmative defenses that MUST BE PLED IN ANSWER during PLEADING or they are waived. Cannot be used during trial.

b. Test: Whether D intends to rest his defense upon some fact, not alleged in the pleading. If so, affirmative Defense should have been plead during Pleading phase. If you are unsure just plead affirmative defense in answer.

c. Includes: 1) accord and satisfaction 2) arbitration and award 3)Assumption of Risk 4) Contributory negligence 5) Duress 6) Estoppel 7) Failure of Ksn 8) Fraud 9) Illegality 10) Injury by fellow servant 11) Laches 12) License 13) Payment 14) Release 15) Claim Preclusion 16) statute of Frauds 17) Statute of Limitations 18) Waiver

d. List is not exhaustive, there are other defenses 1. Confessions and avoidance- admitting allegation

but having legal defense to absolve it Excuse2. D has burden of proving and producing evidence 3. Purpose of affirmative defense- to eliminate

unfair surprises to either party

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4. Ex: Affirmative Defense-Yes even what P alleges is true, I the D, have a defense that absolves us of liability

e. Ex-Affirmative Defenses- Layman v. Southwestern Bell-D claimed to have easement at trial, Ct held D should have pled easement as affirmative defense in answer, D cannot use Affirmative Defense in Trial.

f. When may Rule 12 defenses be properly asserted in answer4. 55- Default Judgment

i. Doing nothing, least effective methodii. P can take default judgment without D having day in court

5. Replyi. 7(a)(7)- rarely granted-If the court orders one a reply to an answerii. Generally not required, and pleadings generally end with answer.iii. Reply-P’s response to D’s answer to the complaint.iv. 7(a)(3)- Exception If answer contains counterclaim-D has a

claim against P, P must answer to counterclaima. Compulsory counterclaims-counter claims that arise out

of the same transaction or occurrence b. D must assert compulsory counterclaims in answer event

if lack independent basis for smjdx. If D does not assert compulsory counterclaim in answer, claims are WAIVED, Meaning counterclaim can NEVER be used.

1. P must respond to compulsory counterclaim, P’s answer to compulsory counterclaim is its own type of pleading and is NOT A REPLY

c. Permissive counterclaims-counterclaims that do not arise out of same transaction or occurrence

v. Sequence-1) P serves complaint 2) D sends answer with compulsory counterclaim 3) P serves answer to compulsory counterlcaim

6. Rule 15(a) Amendments i. Changes made to the pleadings ii. Timing

a. Rule 15(a) 1-Amendments as matter of course/right1. Can be made WITHOUT permission of court

within 21 days of filing answer or pre-answer motion (whichever came later)

2. If 21 days pass after being served, must make motion to amend with the court

b. Rule 15 Amendment with leave of court1. Court should freely give leave when justice

requires, discretion in granting motioniii. Basic problem- prejudice

a. Reflects idea that at some point the other side has to make decisions about how to present its case

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b. Forman Factors-Situations where Amendments should not be granted

1. How Blameworthy is the party making the motion to amend?

i. Undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies –If yes to one of these Party is BlameworthyEx: Not Blameworthy-Beeck v. Aquaslide-Aquaslide not blameworthy for bringing its motion to amend, it did not act in bad faith, it was adequately diligent. No undue delay, once president realized not company’s slide, quickly made motion to amend answer. Conclusion (Remember to always conclude)-Aquaslide is not blameworthy. Ex 2: Yes Blameworthy-If Aquaslide acted in bad faith and knew it slides were being counterfeited and sold in variety of places, Aquaslide bad faith-could have brought employee check slide.

2. Would the party opposing the amendment suffer Prejudice if allowed?

i. Unfair litigation disadvantage, key evidence lost or destroyed, key witness unavailable, you have to reopen discovery, reopen depositions and bring on experts. Look at where case is at in discovery If Yes Prejudiced. Ex: Beeck v. Aquaslide-Would P Beeck be unduly prejudiced? No Beck would not be unduly prejudiced, just because Aquaslide amended answer, does not mean Aquaslide automatically wins. Now P can possibly refile against proper D. Conclusion: Beeck would not suffer prejudice if motion to amend is allowed.

Rule 42-Sever trial into separate stages way of getting around Claim Preclusion

iv. 15(c)- Statutes of limitation and Relation backa. Trigger: P sues D within SOL. b. After complaint, SOL expires and P realizes that he wants

to add another claim. P’s problem is that P has to amend the complaint to add the new claim.

c. D is going to argue that SOL has expired, futility of ammendement-blameworthiness. P is going to argue relation back doctrine

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d. Gives Ps leeway, but flexibility is not limitless1. Relation Back Doctrine: New claim is not futile,

because the Amendment arose out of SAME conduct, transaction, occurrence set out in original Complaint.

2. Ex: Yes Relation Back-Bonerb v. Caron Found-Yes STO-basketball and mandatory exercise are same transaction or occurrence, because only reason P playing b-ball-required to do so by mandatory exercise program.

e. Ex: No Relation Back Doctrine- Moore v. Baker-Ct-Held negligence surgery is NOT part of SAME transaction/occurrence of original informed consent issue. Court found issues distinct and separate transaction. Consent and Surgery separate events, specificity of surgery makes informed consent separate.

1. Then apply the Forman Factors i. (1) Blameworthiness (2) prejudice

2. 1. How Blameworthy is the party making the motion to amend?

i. Undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies –If yes to one of these Party is Blameworthy

ii. Ex: Not Blameworthy-Bonerb-No, P did not wait too long, discovery had not ended yet, P is not blameworthy

2. Would the party opposing the amendment suffer Prejudice if allowed?

i. Unfair litigation disadvantage-key evidence lost or destroyed, key witness unavailable. D has to reopen discovery, do new depositions, bring experts. Look at where case is at in discovery. If Yes Prejudiced. Ex: No prejudice to non-moving party-Bonerb-Discovery was just beginning, key witness had not yet been deposed. No unfair litigation advantage.

iii. Rationale behind Relation Back-Based on principle that D who has been given notice of about what lawsuit is about.

iv. D should be prepared to deal with any claim transaction or occurrence that arises out of original complaint.

f. Analysis Summary Relation Back Doctrineg. Step 1-Relation Back-STO?

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h. Step 2-Foman Factors-1)Blameworthiness? 2) Prejudice?

i. Relation Back Rule 15c-Changing party or party’s name1. Misidentification- when P mistakenly sues the

wrong party and now wants to switch out D. Misidentification DOES NOT APPLY if p mistakenly forgets to ADD ANOTHER D in addition to the D he has already served.

a. Step 1-Relation back- STO?Ex: Zelinski-suffered injuries in same transaction or occurence

ii. Step 2 Then within a period of 120 days after P filed the complaint, the new D must have:

iii. Received Notice of the action so that it will not be prejudiced in defending on the merits AND

iv. Notice requirement-New D does not have to actually read the original complaint. D just needs actual notice of suit, informal notice will suffice.

v. Ex-Zilenski-Carload contractors find about complaint because insurance company called them, notice satisfied within 120 day

vi. 2) The New D within the 120 day after the filing of the complaint, must know or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity

vii. Ex-Zilenski-CCI gets notice from insurance company who also represents PPI that a lawsuit is going on between PPI and Zilenski. CCI knew or should have known.

viii. Step 3-Foman Factors- (1) Blameworthiness (2) Prejudice

a. How Blameworthy is the party making the motion to amend?

ix. Undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies. If yes to one of these Party is BlameworthyEx: Zilenski-No Bad Faith or dilatory motive on behalf of Zilenski. Zilenski not blameworthy.

2. Would the party opposing the amendment suffer Prejudice if allowed?

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Unfair litigation disadvantage-key evidence lost or destroyed, key witness unavailable. D has to reopen discovery, do new depositions, bring experts. Look at where case is at in discovery. If Yes Prejudiced. Ex: No Unfair Prejudice/Litigation Disadvantage to CCI-very same insurance company representing PPI and CCI-so same lawyer would represent them in suit.Summary Relation Back Misidentification1) STO?2) New D within 120 days?3) Actual Notice(New D)?4) Known or Should Have Known(New D)?5) Blameworthiness(Moving Party)?6) Prejudice(Opposing Party)?

3. Misnomer- also called scrivener’s error-Where P has misnamed/misspells the name of D, scrivener’s error

a. Step 1-Relation back- Same Transaction or occurrence

ii. Step 2 Then, the new D must have:iii. Received Notice of the action so that it will

not be prejudiced in defending on the merits AND

iv. 2) The New D must know or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity

v. 1. If that is all satisfied, look to Forman Factors (1) blameworthiness (2) Prejudice

vi. How Blameworthy is the party making the motion to amend?

vii. vi. Undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies 2. Would the party opposing the amendment suffer Prejudice if allowed? Unfair litigation disadvantage-key evidence lost or destroyed, key witness unavailable. D has to reopen discovery, do new depositions, bring experts. Look at where case is at in discovery. If Yes Prejudiced. Situation will always be satisfiedEx: P sues Acne Corp instead of Acme Corp.

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viii. Motion to Amend/Relation Back For Misnomer DOES NOT have to be within 120 days.

ix. Motion to amend/relation back for misidentification DOES have to be within 120 days.

b. JoinderA. Intro

1. Advantages: allows courts to adjudicate multiple claims2. Disadvantages: litigation can become intricate and procedural disputes

B. Joinder of Claims-Gives Permission, but it does not confer power-Need subject matter JDX for other claims to come in

1. Ps Claims- Rule 18 ai. One P can join any and all claims against one D

a. Not required to join all claims, but in Ps interest to join all related claims to avoid preclusion

b. Rule 42(b)- court may split claims into separate trialsii. Limitation: Power JDX P cannot join all claims if he does not

have- subject matter jdx + personal jdx over for all claims Diii. Jdx based on diversity- amount in controversy

a. One P can aggregate all claims against one Div. Jdx based on Federal Question- Nonfederal claim has to arise out

of same case or controversy as federal claim- common nucleus of operative fact

v. Compulsory- Rule 13(a)a. D’s Claim arises out of SAME transaction/occurrence as

Ps claim1. Efficient, economical and fair if all claims dealing

w/the same transaction or occurrence are litigated in one lawsuit

2. D will argue for as broad a transaction as possible because then it is more likely that it will get in

3. The P will do the opposite-narrowlyb. Logical relation test (Majority)-Rule: A Logical

relationship exists when D’s claim, the counterclaim, arises from the same aggregate of operative facts as the P’s claim, the claim in question.

c. Different Tests-Minority-Not Same Transaction or occurrence

d. Sometimes Policy Considerations-can change same transaction or occurrence-and decide whether a counter claim is compulsory or permissive

e. Ex-Private Attorney General Act-Claim should be separate-do not want to chill future plaintiffs filing separate PAGA suits

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f. Don’t need independent basis for jdx because it will always fall in supplemental- central nucleus of operative facts

g. Must be filed in pending case or cant bring in later suit, if you DO NOT PLEAD compulsory counterclaim it is WAIVED

vi. Permissive- 13(b)a. ANY counterclaim that is not compulsoryb. Does not have to be filed in pending casec. For purposes of POWER, permissive counterclaim

MUST have an INDEPENDENT basis for SMJDX-either fed question or diversity.

d.vii. Whether Supplemental jdx is necessary

a. Compulsory- Yesb. Permissive- No (need independent basis for smjdx)

2. Cross Claims- 13(g)i. Co-party may bring claim against another co-party

a. P v. D1 and D2 D1 brings against D2-SAME side of the V

ii. Cross claim must:a. Arise out of SAME transaction/occurrence as original

action or Counterclaim thereinb. Or relate to any property that is the subject matter of

original actioniii. Cross claims are NEVER compulsory, are permissive not

mandatory, DO NOT GET WAIVED.iv. Cross claims v. Counterclaims-Cross claims are asserted against

a co-party that is a party to the action who is on the SAME side of the V.-D1 vD2

v. Counterclaims are asserted against a party who has asserted a claim against you. P sues D, D responds with a counterclaim against P

C. Joinder of Parties by Ds1. Permissive 20(a)

i. May, not must, joinii. Joinder of Ps

a. Assert joint or several right to reliefb. Or Ps claim arise out of same transaction/occurrence or

same series AND if any question of law or fact common to all Ps will arise in action

iii. Joinder of Dsa. Claim asserted against Ds alleges join or several liabilityb. Or claim against Ds arise out of same

transaction/occurrence or same series AND if any question of law or fact common to all Ds wills arise in action

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iv. Jdxa. Subject matter

1. Diversity i. Complete diversityii. Amount in Controversy

a. Each claim must satisfyb. Ps must have common undivided

interest exceeding requirementiii. Supplemental- Ortega v. Star Kist decision

2. Federal Questionb. Personal over each D

2. Impleader Rule 14 (3rd party practice)i. Basic Rule

a. D may implead ANY nonparty who may be liable to D for any or all of Ps claim(S) against D

1. Bring the sideline player to the gameb. Not permitted when based on separate/independent claimc. Secondary/Derivative liability-D says, if “ I am liable to P

then you third party D, is liable to me.”1. Indemnity, contribution 2. May only be impleaded when original D is trying

to pass all or part of the liability onto that 3rd partyd. 3rd party claim ALWAYS falls within supplemental jdxe. 3rd party claims are PERMISSIVE, not compulsory

ii. When D May Bring a 3rd Partya. Any time after commencement of action, D may serve

summons and complaint on a nonparty who is or may be liable to if for all or part of the claim against original D

b. Rule 14 permits procedural move but needs to be a substantive basis for original D to lay claim on 3rd party

c. D MUST have a legally cognizable claim against 3rd party D

d. NOT DERIVATIVE LIABILITY/LEGALLY COGNIZABLE CLAIM-“Him not me” inadequate basis for impleader

iii. Ex: Rule 14 IMPLEADER-Price v. CTB Ct. held-D can implead a 3rd party D even where it is necessary that the original D be found liable to make the claim, So long as impleader is derivative of original claim

a. Timing for Impleaderb. If D serves the 3rd party no later than 10 days after serving

its original answerc. After 10 days, D must get leave of the court by filing a

motion with notice to all parties, if you file impleader later, more likely court will find prejudice.

iv. Factors to consider are whether:

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a. Delayed filing the motion intentionallyb. Impleading would complicate the trialc. Impleading would prejudice the 3rd party Dd. 3rd party claim states a claim upon which relief can be

granted v. 3rd party is then known as a Third Party Defendant and the D is

known as a Third Party Plaintiffvi. 3rd Party D can:

a. Answer, Counterclaim against P, or Cross-claim against Db. Rule 14 b-When a P may bring in a 3rd party-when a

claim is asserted against a P(i.e. cross claim), the P may bring in a 3rd party if this rule would allow a D to do so. This allows a P to use rule 14 to pass off liability to another P.

3. Compulsory Rule 19 i. Persons needed for just adjudicationii. Trigger: D made a motion to dismiss under Rule 12(b)(7) for

failure to join a Rule 19 partya. Someone else NEEDS to be in the litigation and that party

is a necessary party and indispensableiii. 3-step analysis

a. Is absent party necessary? 19(a)(1)1. MUST be joined if:

i. Complete relief cannot be granted without party

ii. Party’s interest harmed if they are not joined

iii. Or absentee has an interest that subject a party to multiple or inconsistent obligations

iv. Joint Tortfeasors are NOT NECESSARY PARTIES

Ex: Absent Party NOT NECESSARY-Temple-Joint Tortfeasors are not necessary parties, Temple not being denied relief can gain relief by suing Dr. and hospital in separate lawsuits Ex2: Absent Party NOT NECESSARY- Helzberg Diamond Shop-No Helzberg can get complete relief

b. If necessary, is joinder feasible? 1. No personal jdx=infeasible 2. No Subject Matter Jdx =infeasible3. Jdx based on diversity and joinder of absentee

would destroy diversity=infeasiblec. If not feasible, is absent party indispensable? 19(b)

1. A party who in equity or in conscience the case should not proceed without

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2. Court has 2 choicesi. Proceed without absenteeii. Dismiss entire case

3. Factorsi. Would actual prejudice result (to absentee

or parties) if case went on without absentee?

ii. No Prejudice-Hospital and Doctor (Absent Parties) not prejudiced because they are not liable

iii. Can court shape relief to avoid prejudice?iv. Will judgment rendered in person’s absence

will be adequate?v. (b)(4)- Can action be brought in another

forum where everybody can be joined?vi. Ex: Alternative Forum-Helzberg-can be

joined in an alternative forum in Iowa.iv. Examples of Necessary and Indispensable Rule 19 Partiesv. Ex1:K cases-Multiple oligees performing K jointly, a breach of K

by one obligee makes all obliges necessary and indispensable, because each obligee is dependent on the other

vi. Ex2: Parties-Joint-Owner, Lesse, mortgagee-Cases involving multiple owners/interests in real or personal property in which a person claiming interest is not included as a party, because each owner/interest is dependent on the other

vii. Ex3: Trust Fund-Trustee and beneficiaries are necessary and indispensable parties

Ex4: Insurance proceeds in a pool-All claimants are necessary and indispensable parties

c. Class ActionsA. Intro

1. Type of Joinder Device-Governed under Rule 232. A rep who represents numerous similarly situated people reduces

transaction costs and minimizes the number of lawsuits3. Shifts the emphasis from the individual client to the lawyer4. Tends to shift the litigation from being a trial based form of litigation to a

settlement form based of litigation5. In a typical class action: P files a complaint, battle over class certification,

discovery if class is certified, perhaps a summary judgment motion, and then settlement discussions

B. Statutory Requirements 1. Implicit Requirements

i. Identifiability?a. Rule: Description of class must be sufficiently

unambiguous so that the class members may be

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ascertained with reasonable effort or so that it may be reasonably determined who is in class and who is out.

b. a. Issue: Is class definition reasonably definite?c. Ex: Yes identifiability-Spring 2012 Exam-Definition(on

Exam Identify proposed class)-All purchasers of defective macrowaves-one-third of the macrowaves sold were defective and heated food more slowly than conventional microwave ovens. D sells its products through its mail order-catalogue and shipped macrowaves only to Westmoreland. All or most customers/potential class members may be identified through D’s sales records.

d. Ex: No Identifiability-Spring 2012 Exam-class-definition-(on exam identify proposed class) “all purchasers of defective macrowaves.”Class defintion may be too general, since it does not specify the defects and there were two distinct types of defects that caused Macrowaves to heat slowly.

ii. Membership?a. Named class rep must be member of classEx: Spring 2012 Exam. Pal as proposed class rep. of the class action lawsuit is binging his own claim against D, as P bought a defective macrowave and suffered damages due to the products’ defectiveness.

2. Explicit Requirements 23(a)i. Numerosity?

a. Class so numerous joinder of all members is impracticalb. Raw number- over 40 presumptively satisfies

1. Black Jack Rule-21 or less, presumptively unsatisfied

c. Geographical diversity- more dispersed, spread out weighs in favor of numerosity, joinder impractical

d. Ability of individual class member to bring own suit- depends on size of recovery-Smaller the claim, more likely ct will find numerosity-guy won’t bring individual suit

e. weight size of damages and cost of bringing separate suit –Higher damages-Less likely numerosity-guy would want to bring lawsuit on his own behalf

f. Ex: Numerosity Met-Wallmart-1 million membersii. Commonality

a. Class should be a class consist of people who share characteristics that matter in terms of substantive law

b. Common substantive questions bind class togetherc. Absent class members all share at least one common

question of law or factd. No Commonality-Wallmart-Ct held No commonality,

because there was no common question of law AND fact

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Regarding the discrimination suffered by employees, Wallmart had to show every class member in every store suffered discrimination, not just some class members in some stores.

e. Yes Commonality-Spring 2012 Exam-All members have in common the question as to whether the same product-the macrowave is defective because it heats food more slowly normal microwaves and all members are entitled to reimbursement.

iii. Typicality Rule 23 a (2)a. Representative must stand, significantly, in same shoes as

average class member has greater control over suitb. Class rep should have same incentives and motivations as

average class memberc. NO TYPICALITY-if class rep’s claim involve damages

higher or lower than that of absent class members, class rep is not typical

d. Ex: Yes Typicality-Class rep was charged same fee as absent class members

e. Ex: Yes Typicality-Wallmart claims were typicaliv. Adequacy

a. Class rep- will adequately and fairly protect class’ interest, needs to have a stake in litigation with no apparent or potential conflicts with class

b. Class rep’s relationship with class counsel needs to be straightforward

c. Ex1: No ADEQUACY-Class rep. should NOT be employee of class counsel

d. Ex2: No ADEQUACY-Class rep. should NOT be relative of class counsel

e. Ex 2: Yes Adequacy of Class Rep-Spring 2012 Exam-Pal has a significant stake in the lawsuit and seems capable of fairly and adequately representing all members. Nothing indicates that he has anything but a straightforward relationship with class counsel.

f. Class counsel 23(g)(1)- represents interest of class members so that any final decision of case binds all absent members, should have no conflicts that would hinder case

1. Factors Court considersi. Amount of work attorney put in the caseii. Experience in handling class actions or

other complex litigation and experience in substantive claims that are being made

iii. Counsel’s knowledge of the applicable lawiv. Resources attorney has to represent class

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v. Counsel needs to have significant financial and administrative resources in litigating lawsuit

2. If rep inadequate, absent members of the class have been denied fair representation and can collaterally attack prior judgment on grounds of Due Process

3. Classification 23(b)i. Prejudice 23(b)(1)

a. Risk of inconsistent results if separate actions brought or impairment of interests. Want a uniform decision that binds the class together

b. Ex: Do not want scenario where in individual litigation, whoever sues first and gets paid off takes all the funds away from individuals who sue later.

c. Everyone that has potential claim to a limited action can be part of a class and if that lawsuit proves worthy, then the court can allocate how much money should be paid to each claimant so that every claimant with a legitimate claim will at least get something

d. No Notice Requirementii. Injunction/Equitable 23(b)(2)

a. Injunctive or declaratory relief is appropriateb. When class action seeks a court order as its objective to

bind D to change its ways/behaviorc. D has acted in a way generally applicable to class as a

whole, but objective of suit is to get injunctive reliefd. Court order requirement D to do or not do somethinge. Typically involves civil rights claimsf. No Notice Requirementg. Ex: People who are similarly situated (voting,

incarceration, employment) have been discriminated against by D, court issues order requires D to conform his behavior

h. If monetary Damages are sought, the class action suit will only be an injunction 23 b2 class action if, monetary damages are incidental.

i. No Injunction/Equitable Class Action-Wallmart-Ct held-Monetary Damages in form of backpay was not incidental, rather it was significant-to determine each monetary damage of each class members-individualized determinations need to be made. Therefore, Wallmart was a Damages 23 b(3) class action suit.

iii. Damages 23(b)(3)a. Class seeks compensatory damages, must predominate and

be superior

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b. Most controversial type of class actionc. Predominance of Common Questions? (super-

commonality)1. Need for common issue of law and fact to

predominate over all other issues2. Those common issues are essential issues that

need to be resolvedEx: Yes Predominance-banking overcharge all class members had common issuesEx2: Yes Predominance-Spring 2012 Exam yes all class members have purchased defective microwaves from D. In addition, all defective microwaves heat food slowly.

d. Superior Method of Adjuidcation? (superior to individual lawsuits)

1. Superior form of litigation2. Class action lawsuit is superior to other

alternatives such as individual lawsuits3. Factors- 23(b)(3)(A)-(D)

i. Individual Control-is this the type of lawsuit in which class members would have an incentive to file individually? If true, class action is not superior.

ii. Look at amount of recovery if high-More individual control, less superiority, If Less Individual Control, More superiority.

iii. Ex: Small claims-individual control not as important-Yes Superiority

iv. Ex: Mass Torts-Individual control important increases each individual’s chances to earn money-No Superiority

v. Current Litigation-Is there any other current litigation involving those claims?Ex: No Current Litigation-Spring Exam 2012-At time of certification motion, there was no other litigation in progress.

vi. Concentrating litigation in this forum-Is this the proper court to adjudicate class action? Is this particular forum sensible? Do class members live by ct where it is filed?Not Sensible-If members Geographically SpreadEx: Sensible Forum-Spring Exam 2012-Westmoreland forums seems sensible b/c all class members would be Westmoreland

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residents b/c D only shipped macrowaves to Westmoreland mailing addresses.

vii. Catch all- any other difficulties in managing the case as class actionEx: No Other Difficulties-Spring Exam 2012-no problems managing class, class members not unwieldy.

Notice Requirement-1. Notice is required in Damages Class action lawsuits2. Notice in Damages-Needs a notice that says individuals can opt out3. If absentee class member fails to opt out, the class action lawsuit is binding on him. 4. Class Counsel has to pay for noticee. 2 Types of damages

1. Small claims- where each member of the class only has amount in controversy considered to be small

i. Not worth the time and money for people to pursue individual litigation, therefore, class action particularly attractive

ii. Vindicating rights of many people each of whom has a small claim.

iii. Courts find small claims to be more certifiable than mass tort situations-because mass torts claims are higher so individuals more likely/greater incentive to sue individually

2. Massive tort situations- often involve disasters or wide spread harms

i. Each individual may have a viable claim because the amount of damages is high

ii. The Higher Claim, the Greater incentive for individual to pursue individual lawsuit

iii. Significant amount of moneyiv. Once certified as class action, becomes a

significant case and elevates profile of the lawsuit, gives P increased bargaining power, and public exposure, which pressures D to work in favor of the class

v. Benefit to D: take care of bulk of complaint or all of the claims in one lawsuit, efficient

a. But D routinely resists motions to certify class actions

Summary-elements—all/satisfiedImplicit requirements

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a. Identifiability? b. Membership?

Explicit Requirements-NCTAa. Numerosity?b. Commonality?c. Typicality?d. Adequacy: Class rep/class counsel? Types of Class Action1. Prejudice Class Action?2. Injunction Class Action?3. Damages Class action?a. small claim vs mass tortb. Predominancec. Damages: Predominance?

Superiority? (4 Factors)d. Individual?e. Current litigation?f. Forum?g. Likely Difficulties?

C. Jdx1. Based on Diversity

i. Traditional diversitya. Named class rep(s) must be completely diverse from Dsb. Amount in controversy

1. Check AIC of named reps claim against D- exceeds $75,000

2. Exxon Mobil v. Allapattah Rationale for sup jdx3. When absent class members claim is BELOW

AIC requirement, turn to supp jdx claim will come in if it arises from common nucleus from class against D

4. For Analysis first start with Traditional Diversity, then move to CAFA

ii. Diversity jdx under Class Action Fairness Act (CAFA)a. Expands Diversity JDX in special situation of class action

lawsuits a. One or the other independent basesb. Certain jdx considered to be magnets for class action suitsc. Requirements for cases under CAFA-All 3 must be

satisfied1. Minimal diversity- if any class member, named

or unnamed, must be diverse from any one D, Diversity Established

2. Aggregate fee must exceed $5 million-Add up the claims of every member of class, absent,

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present and class rep’s claims, If amount exceeds 5 million-AIC satisfied.

3. Must be at least 100 members in the classb. If all three satisfied, Diversity Met under cafa

2. Removal under Cafa-Section1453BA. Any D can remove the case from state ct to fed ct. Does not matter if D is a citizen of Forum state. B.1 year rule-doesn’t apply. Removal can be made beyond 1 year.

3. Declining Cases under Cafa-Under certain situations Fed. Court must decline diversity JDX, even under CAFA local considerations can defeat jdx.a. If more than 2/3 of proposed class are citizens of state in which action was originally filed b. at least one D is a citizen of the forum state c. and if the principal injuries alleged in suit were suffered in that state.All three Must be met for Diversity JDX to be declined

3. Based on Federal Questioni. No AIC requirementii. No diversity requirement

D. Procedures1. Class certification

i. Motion to certifyii. Court hold hearingiii. Appealability 23(f)

a. Provides for appeals on the decision of the district court whether to certify or not to certify as a class action lawsuit

b. Ordinary appeals can be taken when case reaches final judgment but this is an exception, can appeal certification upon decision itself w/o waiting for final judgment

iv. Certification of subclasses 23(c)(5)v. Michigan high school

a. Ps brought suit against high school athletics for excluding girls from opportunities to participate in athletic programs

b. Class rep- communities for equity, not an individual1. Association with purpose to promote equal

opportunities for high school femalesc. Met all class action requirements

1. Typicality was troubling- Ps complaint seemingly involves entire scope of administration of female sports programs in Michigan high schools

d. Injunctive relief was appropriate remedy class action established

2. Notice to Class 23(c)(2)

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i. If class certified, imposes on class attorney to give notice of the class action to all prospective members of the class

ii. Not explicitly required for absent class members in Prejudice or Injunction Class actions

a. Up to court to decide whether to require noticeiii. Explicitly required for Damages Class actions 23(c)(2)(B)

a. Class reps must give notice to all members who may reasonably be reached

b. Notice paid for by class reps/counselc. Notice should summarize nature of claimd. Definition of class certifiede. Inform members they can opt out of class

1. Legal effects of staying in or opting out3. Binding

i. Adjudication binding on all class membersii. Res Judicata-If you’re a member of the class and that class action

lawsuit gets resolved, then you are bound to whatever result happens in that class action lawsuit.

iii. Binding on absent class members, except those who opt out of damages class action

a. Rule 23(b)(5) Opt Out: Notice must indicate that any member can opt out of the class and request exclusion

iv. Binding nature of class actions may raise constitutional issues1. Representative adequacy, collateral attack

issue-Only way a class member can make a collateral attack on action #1 in action #2 is by saying action #1 is not binding on action #2, b.c. class rep or class counsel is inadequate.Hansberry v. Lee

2. Class action suit for unfair housing restriction against Blacks in neighborhood

3. Court based decision on earlier precedent party can not be bound by an earlier judgment for which they were not a party

4. Ct Held-Action #1 not binding on Action #2 because of inadequacy of representation. Must be adequate representation of members in an action in order for judgment to be binding on all

5. Adequacy does not end after Class action cert., it is during entire litigation process. If it is found class counsel on representing is INADEQUATE it is a violation of Due Process

6. Idea of adequacy is a constitutional requirement.

7. Jurisdiction issueb. Phillips Petroleum v. Shutts

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1. Suit regarding payment for oil land, 28,000 person class action residing in all 50 states

2. Court-Held-Only Constitutional requirement for damages B3 Class Actions is that members be notified and provided with opportunity to opt out, when you are an absent class member it’s a small burden, things are being done for you, P.J. does not apply.

3. State law can only be applied multiple state class action if state has contact or aggregation of contracts that create state interests in litigation so that choice of law is neither arbitrary or unfair.

4. Settlement 23(e)i. Court order required for settlement or dismissal needs

approvalii. Notice requirement

a. Judge must direct notice in reasonable manner to all members who would be bound by it

b. Not individual notice can be in newspapers, online, etc.c. Type of notice at court’s discretiond. Court must approve settlement

iii. (5)- Fairness Hearing-Objections may not be withdrawn without court approval

iv. 23(b)(3)- class may offer second chance for individuals to opt out for damages class action. If they do not like the settlement, they can opt out.

v. Special situation- “Settlement class”a. Special class action- parties agree in advance of litigation

how everything will work out Requires greater scrutiny, make sure no conflict of interest between two groups and between groups and class rep.

b. Inventory Ps: Ps whose cases that have already BEEN filed

c. Exposure Group: people exposed but have not YET filed a lawsuit

1. Manifest injury: People who have not yet filed lawsuit but had not only been exposed but also started to develop symptoms

2. Exposure only: People who have been exposed but have not yet developed illness

d. Amchem v. Windsor Ct held class action settlement should not be approved, because of Adequacy problems. Certified class should have been divided into 2 separate classes, not one because class rep did not adequately represent manifest injury group people who were affected by asbestos and exposure group people who might be

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affected by asbestos manufactured by Ds. Manifest Injury Group wants maximize payment, Exposure only group-wants fair payout for future medical concerns that are not aligned. Two groups are not homogenous group. Adequacy Fails.

5. Attorney feesi. 23(h)- Pool of money aka the common Fund-attorneys fees taken

directly from common fundii. court approves attorneys fees and court may award reasonable

attorney fees and class counsel has to make motion for attorney fees which will be served on all parties and given in a reasonable time

iii. Named rep may have typical lawyers agreement, but doesn’t bind absentee members

iv. Court may hold Attorney’s Fees Hearingv. 23(b)(3) Damages Action- 2 methods for attorney fees:

a. Contingency fee: certain percentage taken off recovery. 30%, 40%. Sometimes percentage can be calculated on: complexity, risk of case, issues of first impression, determining the length of proceeding, etc.

b. Lode Star Method: looks at number of hours attorney worked on the class and multiplies it by the attorney’s hourly fee. Hourly rates can go up based on complexity of case.

c. 2 figures should come out to about the same even though different methods whatever is remaining of that common fund, gets disturbed to class members

d. However, under either method, the recovery rate can be really high and there could really high and there could be little left over for P to recover which is why courts must approve class action settlements to make sure there is enough money left over for the rest of the class.

d. DiscoveryA. Intro

1. When Pleadings close, discovery begins2. Exchange of information between parties3. Helps gather information that is some kind of proof supporting Ps claim4. Allows parties to realistically access the strength and the weaknesses of

each other’s cases5. Longest must most important stage6. Ends lawsuits for 2 reasons

i. Produces information about merits of suit, permitting parties to make informed judgments about strength of their case settlement or summary judgment

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ii. Costs time and money- one party might wear down other, without merits of the case

B. 3 stages for discovery1. A requirement of mandatory disclosures

i. Once these initial disclosures have occurred, the parties may then request additional information using interrogatories, depositions, request for inspection of documents, and physical objects, requests for physical and mental examinations, and for admissions

ii. Solely for impeachment: do not have to disclose this evidence in the initial disclosures

a. To impeach a witness it is evidence used to tarnish someone’s credibility

b. If it becomes core of your case, then it has to be disclosed2. A provision for further discovery without any special showing

i. But limited by relevance to claims and defenses)3. A provision for broader discovery (into the subject matter involved in the

action) if a party demonstrates good cause to the court. C. Sequence of events

1. Filing of complaint2. Service of complaint3. Ds appearance (typically answer or pre-answer motion)4. 26(f) Conference

i. Parties required to meet to discuss case, possible resolutionii. Develop proposed discovery plan- how they will proceed with

formal discoveryiii. Written report of meeting goes to the courtiv. At least 21 days before 16(b) scheduling conference

5. 26(a) Disclosuresi. Initial exchange of information within 14 days after conferenceii. Parties served/joined after conference must make initial disclosures

within 30 days of being served/joined6. 16(b) Scheduling Conference

i. Court has reviewed 26(f) report, will enter scheduling orderii. Limits time for joinder, amendments, filing of motions, completion

of discovery by scheduling a time at which formal discovery will end and tentative trial date

iii. Conference within 90 days of Ds appearanceiv. Conference within 120 days after servicev. Once ct issues 16 b scheduling conference, parties move into

party-initiated discoveryvi. **Not used in CA state court

D. 26(a)- Required Disclosures1. (1) Initial Disclosure

i. Requires parties exchange categories of information that the disclosing party may use to support claims/defenses

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ii. People: Name, address, telephone numbers of anyone likely to have discoverable info that the disclosing party may use to support its claims/defenses, witnesses

iii. Relevant Documents: Data and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims/defenses. Documents-broadly defined, can include electronically stored info: photos, recordings, etc. Exception-Impeachment cannot use evidence for impeachment-attacks credibility of witness. Ex: Witnesses’ crimes

iv. Materials: From which computation of damages arose unless privileged or protected, includes medical expenses, wages.

v. Insurance Agreements: Which may indemnify or pay part of the judgment (also bank accounts)

vi. Rationale Initial Required Disclosures: Parties are showing their cards, both sides can access all this stuff. Parties are showing information that it may use to support the claim.

2. (3)- Pretrial Disclosuresi. Party must disclose lists of witnesses and documents or exhibits

intended to use at trialE. 26(b)(1)- Discovery Scope and Limits

1. General Provisionsi. Party may obtain discovery regarding any matter that is not

privileged and is relevant to the claim or defense of any party2. Relevance

i. Discoverable information must be relevant either to claim/defensea. If judicial permission granted, to subject matter of suit

ii. Relevance Defineda. Materiality- discovery must bear in disputed issues of law

and fact is it substantively relevant. Something legally relevant that is being contested.

b. Ex: Yes Material-Davis v. Precoat Metals -Court held that files of complaints from other employees were material to hostile work environment claim, show D’s defense about P getting fired based on merits was pretextual and hostile work environment existed in other scenarios

c. Ex: No Material-Davis-Complaints made by other employees made at other manufacturing plants-Different Management-Not Relevant

d. Ex: No material-Sidari-P alleged complaint based on basis of being Italian and catholic but he wanted complaints based on All forms of national origin, and religious discrimination-No connection-Too broad and not relevant.

e. Probative value- very low threshold. Test: Does the matter that is sought to be discovered make the material

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allegation more or less likely? Does it wiggle the mind in one direction or another?

f. Ex: Yes Probative Value-Davis- Probative value- existence of those complaints would wiggle mind slightly towards conclusion in favor of P

g. If Materiality established, probative value usually established.

iii. Ex: Not Relevant-Steffan v. Cheney-Ct. Held questions regarding whether P had engaged in homosexual conduct during his service was not material to why P had been discharged. The information being sought was irrelevant to the claim

3. Privilege i. Rule 26b(1)-All relevant matter may be discoverable unless

privileged. If it is privileged, it is NOT DISCOVERABLEii. Protects sources from providing informationiii. Against self-incrimination (5th Amendment), attorney-client,

doctor-patient, psychotherapist-patientiv. Ex: Did you intentionally collide with albert? Response:

Objection-Privilege against self incrimination-this is assault with a deadly weapon

v. Attorney Clienta. Protection of confidential communications between

lawyers and their clients concerning the matter the lawyer is handling for the client-Protects oral communications or written communications or email that are confidentially made

b. Rationale-to encourage full and frank disclosure. Privilege does NOT prevent discovery of underlying facts

c. Opposing counsel can ask “what happened” but NOT “what did you tell the attorney”

d. Goes both ways between attorney and cliente. Elementsf. 1) Communicationg. 2) Confidentially madeh. 3) From or to attorney or from or to clienti. 4) Legitimate Purpose-communication must have a

legitimate purpose; the communication must relate to the professional relationship between attorney and client

j. 5) No Waiver-there cannot be a waiverk. Does Not include: Seek attorney’s services to commit a

fraud or crimel. Yes A-C Privilege-the statements Cartero, the letter carrier

overheard between Ruiz and attorney Loya during Ruiz’s confidential communication with Attorney Loya.

m. No A-C Privilege: If conversation is at a bar.

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vi. Waiveability a. If the person puts into issue anything relating to privilege,

he is implicitly waiving the right and is now discoverableb. If a person discloses a 3rd party statement he made to his

lawyerc. By failing to assert itd. Ex: Albert files a claim for IIED. He waives his therapist-

patient privilege for injuries he has suffered from accident-because he put his mental state into issue when he filed an IIED Claim for emotional distress. Further back in time we go to mental state unrelated to accident, less likely therapist privilege waived.

vii. Upjohn rule for corporationsa. Extends attorney-client privilege to ALL employees of the

company, NOT just the controlling group4. 26(b)(3)- Work Product Doctrine (Trial Prep Materials)

i. Qualified immunity, not privilegeii. Documents/tangible things- prepared with expectation of litigationiii. By a party or party’s representative

a. Attorneys, consultants, insurers, other agents of partyb. Not Work Product-Names of witnesses

iv. Ordinary Work Producta. Includes Everything else aside from opinionb. Has qualified immunity-MAY be discoverable when

party whose seeking that document has SUBSTANTIAL NEED for it

c. Substantial Need-CANNOT obtain without undue hardship, substantial equivalent to a hardship

d. Ex: Yes Substantial Need-Witness is unavailable because he died.

e. Ex: No Substantial Need-if you could obtain information at public hearing

f. Ex: Yes Opinion Work Product-Drafts expert made BEFORE final report

v. Opinion a. Almost NEVER discoverable, absolute immunityb. Mental impressions, legal conclusions, opinions, and legal

theories by a party or party’s representative c. Rationale: Leecher’s rule-we do not want people leaching

off opposing counsel’s brains, finding out their thoughtsd. Ex: Opinion Work Product-Oral accounts by witnesses,

summarized by attorneye. Ex: Attorney’s Loya’s notes she took when she interviewed

potential client Ruiz during his confidential consultation about his righs.

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vi. Hickman v. Taylor-Oral accounts by witnesses, summarized by attorney- opinion work product. Court held that P must show that it had no other method of obtaining the privileged information, and that denial of the information would hinder its case. P could have interviewed survivors on their own.

F. Discovery Devices Overview 1. Asking questions

i. Interrogatoriesii. Depositions

2. Examining things and peoplei. Production and inspection of documents and thingsii. Physical and mental examinations

3. Requests for admissionAsking QuestionsG. 33- Interrogatories

1. List of written questions sent to the opposing side limit of 252. Much cheaper for interrogator because you can inexpensively make up

questions, send to adverse party, and sit and wait for answers3. Recipient must either answer or object

i. Objections must be stated as response with substantial basis for the objection, i.e. relevance, privilege

ii. Advantages of Roggs-obtains basic facts and details such as:1) Name of witness/contact info. 2) Dates 3) Places/better than deposition 4) Roggs generally proceed deposition

4. 2 drawbacksi. Need court/opponent’s permission before asking more than 25ii. May only be sent to a party- nonparty witnesses may be deposed

but cant answer interrogatories. Non-party cannot answer or be served with roggs

5. Interrogatories-must be answered separately and fully under oath penalty of perjury

H. Depositions1. Taken in order to get personal stories BEFORE trial

i. Informal, but taken under oathii. Can ask questions freely

2. 28- People Depos must be taken in front ofi. In US

a. Authorized officer or person appointed by court to administer oaths and take sworn testimony

ii. In Foreign Countrya. Can be taken under a treaty or convention, by letter of

request, on notice by authorized officer, or by person commission by court to administer oaths

b. Disqualification- may not be taken before a person who is any party’s relative, employee, or attorney

3. 30- Oral

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i. Oral Testimony taken under penalty of perjuryii. Counsel whose taking questions of person being deposediii. Advantages-Counsel Can ask spontaneous follow up questions

depending on answersiv. Can observe person’s appearance, demeanor, reactionsv. Problems-Can be expensive

a. Council must be prepared by reviewing materials, rehearse with client

b. Can take all dayc. Court reporter needs to be paid/transcripts need to be

producedvi. (a)(2)(A)- Limitations

a. Without seeking permission, TOTAL number of depos taken by one side cannot exceed 10

b. Non-parties can be deposed-have to get notice through subpoena rule 45

c. No deposition may exceed day of 7 hoursd. No person may be deposed a second time without

permission of court or other sidee. Can only object to question when based on privilege can

be instructed/advised not to answervii. (b)(6)- Notice or Subpoena Directed to an Organization

a. When the deponent is a member of a corporation, the person designated to testify cannot refuse to answer a question, even if it is outside the scope of the Rule 30(b)(6) notice. The notice of deposition for organization has to indicate the topics for the deposition, so the organization can produce someone with knowledge on these topics.

viii. (c)- Objections to Proceduresa. All objections to procedural issues will be noted by the

officer upon the record, but the depo will proceed with testimony being taken subject to the objections

b. Rule 30 C(2)-Objection can be made to question as to privilege or violates bad faith, or embarrassment. Lawyer will instruct deponent not to answer.Application: Privilege objection-Parties will do a meet and confer under 37 a1. I stick to my objection based on privilege. Other party will make a motion to compel under rule 37 making party court order to make deponent answer. If ct thinks privilege exists, motion to compel denied. If ct thinks privilege does not exist, motion to compel granted, deponent has to answer.

c. All other situations-deponent still has to answer question. Answer can be challenged later on if answer is going to be used at trial.

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d. Motion under Deposition Rule-lawyer can get a deposition to be continued if other lawyer was evasive, time wasting, did not allow deposition to be conducted properly

4. 31- Writteni. Infrequently usedii. Written questions delivered to somebody (deposition officer) who

takes deposition of the requested personiii. Each question is read and response recorded, transcribediv. Static list of questions, no deviation, asked in order written

5. 32- Using depos in Court Proceedingsi. At trial all or part of depo may be used against party if:

a. Party was present/represented at taking of depo and had reasonable notice of it

b. It is used to extent it would be admissible under evidence rules if deponent were present and testifying

I. 36- Requests for Admission1. 4 characteristics similar to interrogatories

i. Only useable against partiesii. In writingiii. Cheapiv. Of limited usefulness in most litigation

2. Asks OTHER party to admit or deny specific contention (other party has 30 days to respond)

i. If a party fails to respond to a request for admission, then that request for admission is admitted. “Omission = admission.” Silence means admission

ii. Anything admitted only applies to PENDING LAWSUIT. Admissions do not APPLY to OTHER LAWSUITS.

iii. A party does not have to admit to something just because a witness says it is true

3. No Limits on # of requests for admission4. Functions best when used to eliminate undisputed issues5. Narrow down issues in dispute/Almost operates as a pleading device6. Denial-If responding party denies a request for admission and that request

is proven at trial-under rule 37© 2-for failure to admit-the cost associated with that particular RFA is born by the party who denies that request for admission

7. Exceptions-Responding Party denies the request for admissioni. Request for admission is objectionable-violating privilege, self-

incriminatingii. Admission sought is insignificant iii. Failure to admit on a reasonable ground then sanction doesn’t

apply.J. Examining Things and People

1. 34- Production and inspection of documents and things

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i. Rule 34 only applies to parties in lawsuitii. Permits inspection of land, objects, and documents

a. Relevance is the first step in any discovery process b. No limit of documents requested as long as relevant

iii. Non-parties- must use SUBPOENA option under 45(a)(1)(A)(iii)iv. A document includes any medium for recording data or info, such

as email, computer backups, photos and videosv. A person who is going to a depo may be asked to bring documents

a. Often depo and documents requests are hand in hand can help prepare for questioning

b. Producing party bears the cost of producing the documents

c. Requesting party bears the cost of copies and the producing parties pays for the time to put the documents together

vi. (b)(2)(E)(i)- requires that the producing party produce the documents in the usual course of business or shall organize and label them to correspond to the categories in the request

2. 35- Physical and mental examinationsi. Any party can be examined but non-parties cannot be examinedii. Requires a special application to the court that the examination is

directly related to a specific injury or condition that is in controversy.

iii. A P puts his condition as a claim/injury resulted from D’s acts. Or a D puts his condition as a claim/injury resulted from P’s acts.

iv. When you put your mental/physical condition into controversy you waive your rights in regards to privacy for the diagnosis/treatment of the condition

v. Examination will be ordered upon a showing of good cause-depends on what P’s specific claim for injury is.

vi. Yes Good Cause-P continues to suffer harm as a result of D’s act. i.e. limp/pain

vii. No Good Cause-P is not claiming that he is currently suffering from any harm or he has recovered from the injuries.

viii. Examiner’s report – the party submitted to exam has the right to request and receive the report

a. Must be conducted by suitably licensed examiner-Physical Emotional Distress (Certified Psychologist) Injury to teeth (Certified Dentist)

b. Party requesting examination, chooses examiner ix. If party doesn’t want to voluntarily submit to examination, rule

provides way in which other party can get a court order requiring itx. Usually situation where P claims ongoing disability caused by D

K. 26(e)- Duty to Supplement1. Party who has PREVIOUSLY made a disclosure must

SUPPLEMENT/correct any disclosure or response

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i. In a timely manner if party learns that something is incomplete or incorrect and if additional/correct information is not known

ii. When ORDERED by the court2. Failing to do so can result in sanctions 3. Rule 26 a (2)- Expert Testimony

i. Trigger: Construction of a bridge, medical, expert testimony necessary

ii. Party must disclose identity of any expert, along with written report and list of information

iii. Any prior drafts of expert are protected under work product doctrine.

iv. Fact Experts-People who were involved in the events leading to the claim. Here engineers, contractors of the bridge whose expertise was relied on in constructing/maintaining the bridge. What these people did or did not do to construction of bridge. Testimony relates to actual bridge itself. May Testify, but not hired to testify

v. Retained Experts: Expert specifically EMPLOYED to provide expert testimony. Hired Gun.

vi. Fact Experts v. Retained Expertsvii. Retained Expert-hired NOT INVOLVED in injury. 2. Have to

exchange reports at least 90 DAYS BEFORE trial. Once expert reports have been given, now retained experts can have depositions taken.

viii. Fact Expert-1. personally involved in claim and events leading to claim.

ix. 2. Provided a Written report and written disclosure-shorter, concise, far less information

L. 26(c)- Protective Orders1. Trigger: Attny wants the court to protect information from other side2. A party from whom discovery is sought may move for protective order

in court where action is pending3. Court may for good cause issue an order to protect a party from

annoyance, embarrassment, oppression, or undue burden or expense4. Proactive way to respond to a discovery request5. Ex: Hypo 1 Supplier seeks information from Producer. Producer argues A-

C. Step 1-Both parties have a meet and confer. After meet and confer. Step2-Producers makes a 26 c protective order motion with court-protects producers documents from disclosure.

M. Ensuring Compliance 1. 26(g)- General provision of discovery

i. Discovery requirement analogous to Rule 11a. But doesn’t relate to discovery by its terms discovery has

separate rules regarding sanctions ii. Requires attorney to sign every discovery request, response, or

objection Signature certifies good faith and reasonableness

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iii. Certification implies that parties who make requests/respond without good faith or do so unreasonably, can be sanctioned

2. 37(a)- Motion to Compel3. Includes: Meet and Confer, the motion to compel, and sanctions.

i. Step 1-Meet and Confer-Under rule 37 a(1) a party who believes an opponent has failed to comply with a proper discovery request must first confer informally with the opponent to see If the dispute can be resolved without going to court.

ii. Step 2 Motion to compel Rule 37-Must include certification that movant has in good faith conferred or attempted to confer with person or party failing to make disclosure or discovery in effort to obtain it without court action

iii. Must be made in court where action is pendingiv. Specific motions

a. To compel disclosureb. To compel discovery responsec. Related to a deposition

v. Can be used for evasive or incomplete disclosures/answersvi. (5)(A)- If motion is granted

a. Court must require the party to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees

b. Exceptions if1. Movant filed motion before attempting to obtain

the disclosure without court action2. Opposing party’s nondisclosure was justified3. Other circumstances make an award unjust

vii. (5)(B)- If motion is denieda. Court may issue protective order and require movant to pay

party or deponent who opposed the motion its reasonable expenses incurred in opposing it, including attorney’s feesEx: Hypo-Path#1Producer objects to production of documents request, alleges it violates A-C privilege. Step 1-Both parties meet and confer. Step 2-And if producer still refuses, supplier makes a rule 37 motion to compel court order asking producer to turn over the documents. Ct will decide whether A-C applies

4. 37(b)(2)- Sanctions for Failure to Comply with Court orderi. Can range from death penalty of P’s case to default judgments

against D to things in the middle where a party will not be allowed to use the disputed information as attorneys fees.

ii. For not obeying discovery order can include:a. Matters in the order can be taken as prevailing b. Prohibiting opposing party from defending claimc. Striking pleadingsd. Dismissing action or proceeding

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e. Rendering default judgment f. Treating as contempt of court

5. 37(c)- Failure to Disclosure, supplement earlier response, or admiti. (1) Failure to disclose or supplement

a. If a party FAILS to provide info or disclose a witness as required by rule 26(a) or 26(e), the Party is NOT allowed to use that information or witness to supply evidence on motion, at hearing or trial, unless failure was substantially justified or harmless

b. Court may also:1. Order payment of reasonable expenses2. May inform jury of party’s failure3. May impose other appropriate sanctions

ii. (2) Failure to admita. If something later proven to be genuine or true, party who

failed to admit may be asked to pay other party reasonable expenses incurred in making the proof

b. Court may also:1. Request was held objectionable under 36(a)2. Admission sought was of no substantial

importance3. Party failing to admit had reasonable ground to

believe it might prevail4. There was other good reason for failure to admit

Appealibility of Discovery Orders-Discovery orders are usually not appealable. Only time they become Appealable is if a court terminates a case on a discovery issue.

e. Resolution without TrialA. 55- Default and Default judgments

1. In generali. Default judgments are ALWAYS entered against D ii. It can be entered as a sanction against the D iii. Cuts off Ds right to appear

2. Rule 55 (a)- Entry of defaulti. When a D FAILS TO respond to a complaint, then a clerk must

enter party’s default(1)- P Can go to court clerk and present court clerk a formal request to enter default. P has to submit an affidavit which indicates 1) that D has been served with summons of complaint. 2) that time allowed for response to complaint has expired (21 days) 3) D cannot be a minor nor an incompetent person. Effect of Entry of Default-cuts off D’s right to appear.

ii. D appears in action, engages in litigation misbehavior and ct. issues sanction against D by awarding P a default jmt.

3. Rule 55 (b)- Entry of default judgment i. Same Clerk enters Default Judgement if

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a. The sum of the damages must be certain. Narrow Category will only be applied in certain situations such as breach of K. Breach of K-rule 55a + rule 55b.

ii. Rule 55 B (2)- Entry of judgment by Courta. Trigger: Torts, Non-K all other casesb. If damages are uncertain, the court can hold a prove-up

hearing for a P to PROVE damagesc. D has to be given 7 days notice prior to the hearing to

prepared. Mini-trial which the sole issue at the hearing is the amount

of damages P is entitled for Default4. (c)- Setting aside default entry

i. Court may set aside entry of default against D for good causeii. May set aside default judgment under 60(b)

5. 60(b)- Grounds for Relief from Final Judgment Aka Good Causei. Mistake, inadvertence, surprise, excusable negligenceii. Newly discovered evidence, Fraud, Judgment is void, judgment

has been satisfied based on reversal of earlier judgmentiii. Any other reason that justifies iv. Not Good Cause-I thought it would go awayv. Longer after default JMT has been less likely ct will set aside

default. Quickly after default JMT more likely ct will set aside default.

B. 41(b)- Involuntary Dismissal1. Trigger: P has repeatedly delayed in responses, P has failed to prosecute2. Forces P to pursue lawsuit to some resolution 3. Can result from Ps discovery that their cases are weaker than they thought

i. Or realization that litigation would be too expensive, can result from undue delay-the foot dragging P

4. No bright line test looks at totality of circumstances i. WITH prejudiceCANNOT RE-FILEii. WITHOUT prejudiceCAN RE-FILE

5. Consequences for P Involuntary Dismissed-Final JMT against P-Adjudication on Merits

6. Exception: Certain situations involuntary dismissed no adjudication on merits

7. Bases for involuntary dismissal includei. Failure to prosecuteii. Failure to obey court orderiii. Failure to comply with rules (ex- discovery rules)iv. Lack of jdx, improper venue, failure to join- Rule 19 party

C. Default v. Involuntary1. DJ is taken because of D’s failure to respond timely to P’s complaint, the

line between what is a timely response is a bright line rule2. IDs- both the judge and adversary can raise the issue

i. DJs- only the adversary can take the initiative to get the DJ

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ii. The court is not going to order a DJ3. DJs cannot be re-filed, IDs can be re-filed without prejudice4. Some states like CA have deadlines for granting or denying an ID

D. 41(a) Voluntary Dismissal1. Initiated by P wants to end the case, A P can voluntary dismiss his

complaint as a matter of right before D answers complaint. A P can end case by:

i. Establishing jdx or venue in a more convenient forumii. Suing in a forum with more favorable lawiii. Suing in a state court where the D cannot remove

2. (1)- by P or stipulationi. Dismissal by P at any time before D answersii. Dismissal stipulation signed by all parties who have appeared

3. (2)- by order of the courti. Broad Discretion. Sooner P makes motion to dismiss, more likely

ct will grant involuntary dismissal. Can be dismissed at Ps request on terms court considers proper

ii. Authorizes dismissal even if D has already answered, with permission of the court

iii. Ct can dismiss but P has to pay D’s fees and costs. Ct can order dismissal conditioned on P paying D’s fees and costs.

4. Adjudication on Meritsi. Unless otherwise stated, A Voluntary Dismissal is dismissed

WITHOUT PREJUDICE-Can later BE RE-FILED5. Exception: Two Dismissal Rule

i. If this is the second time P has voluntarily dismissed the action against the D, the 2ND DISMISSAL operates as dismissal W/PREJUDICE-P CAN RE-FILE Same Claim

E. Rule 56- Summary Judgment1. In general

i. Generally made when discovery has FINISHEDii. Reaches both legal and factual merits of caseIII.PRE-TRIAL MOTION-MSJ is a motion made BEFORE

TRIAL-CANNOT DO an MSJ DURING TRIALIV. Asks whether there is a need to go to trialv. Purpose MSJ-Look beyond the pleadings and determine whether

the case should proceed to trial2. Requirements 56(c)- Two Elements

i. 1) Records show No Genuine Issue of Material Fact AND 2) Moving party (party making MSJ) is entitled to JMT as a matter of Law

ii. What can parties use to show no GIMFa. No GIMF- nothing worth proving at trial to determine the

fairest judgment b. Parties CANNOT rely solely on pleadings

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c. Parties need to support or oppose motion for summary judgment with:

1. Pleadings2. Products of discovery (ex- depos, roggs, docs,

photos)3. And/or affidavits if any- 56(e)

d. Court does not WEIGH EVIDENCE nor does court ordinarily

e. Court can make reasonable inferences in favor of non-moving party (Party opposing MSJ)

3. Burden of Production-P’s have burden of producing proof regarding claim. Most Important Burden in MSJ Use. Affidavit-signatures based on personal knowledge will help for MSJ-Affidavits must set out facts based on affiant’s personal knowledge-show personal knowledge helps support claim. Affiant must swear under the penalty of perjury that the statements made are true. Ex Good Affidavit: I know D did such and such on such date, time, location

4. Distinguish 12(b)(6), 12(c), and 56i. 12(b)(6) motion to dismiss for Failure to State a Claim only

LOOKS at the legal and factual sufficiency of the PLEADINGSii. Summ Judge looks to see if there is PROOF for the Pleadings-

MSJ goes BEYOND PLEADINGS5. Summary judgment strategies-Proactive and Reactive

i. Proactive a. Affirmative- different evidence showing facts are wrongb. Moving party(MSJ filer) produces evidence that negates

element that non-moving party has burden of producing (no GIMF)

c. In order to survive summary judgment motion once moving party has made prima facie showing to support claims, nonmoving party must come forward with specific facts showing there IS a GIMF:

d. Must be more than a metaphysical doubt there is GIMF, lingering doubt not enough

e. Need specific facts that conflict with facts givenf. All reasonable inferences must be made in favor of non-

moving partyg. OJ- was on TV for an interview at time of murder

6. Ex: Bias v. Advantage International Ct held-Ds arguments for summary judgment granted

a. D presents affidavits from teammates that Bias was well-known cocaine user

b. D presented information that Every insurance company would have inquire about drugs

ii. No GIMF-Ps FAILED to show adequate evidence contradicting strong evidence from D about Bias’s drug use-P’s affidavits of

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parents and coach do not rebut- generalized observations and drug test do not rebut-both could exist could be negative drug results and still user

iii. Examples Yes GIMF-How P could have rebutted 2 contentions-1) impeach teammates to undermine their credibility 2) Use drug tests to rebut specific dates he was alleged to be using 3) Depose an expert witness and drug administer who can show cocaine not in Bias system on day he was alleged to be suing 4)Introduce affidavits of teammates that Glen Bias did not use cocaine on day of alleged use

iv. Reactive a. Moving Party-Showing absence of proof-there is nothing

in the discovery recordb. That non-moving party failed their burden of proofc. Brennan’s Reactive Rule-Moving party must point to

specific parts of the discovery record illustrating that there is an absence of proof supporting P’s claim.

d. Ex: Reactive Approach-Celotex- Ct held-absence of proof of asbestos exposure. P brought evidence/documents should GIMF, but D Evidence she brought was inadmissible hearsay.

7. 3 Burdens-1) Burden of Pleading 2) Burden of Production 3) Burden of Proof

8. Burden of Pleading-Party who has to state a claim or state affirmative defense. Affirmative Defenses-D has burden of production of producing proof of Affirmative Defenses

9. Burden of Production-P’s have burden of producing proof regarding claim.

10. Burden of Proof-what level of certainty should the jury apply in a particular case.

11. Criminal-Beyond a reasonable Doubt-High Standard v. Civil-preponderance of the evidence-more likely than not-Lower Standard

12. Other issuesi. 56(a)- Partial summary judgment

a. Party can motion for specific claims or defenses-Wipes out a claim or issue, but no AUTOMATIC WIN

b. Can also motion for party of each claim or defensec. Court should state on the record the reasons for granting or

denying the motion ii. 56(b)- Time for motion

a. Unless a different time is set by local rule or court orders otherwise, party may file motion of sum judge at any time until 30 days after the close of all discovery

iii. 56(d)- Premature-Opposing party may argue motion for sum judge premature

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a. When MSJ made prematurely-When facts are unavailable to non-movant

b. If non-movant shows by affidavit or declaration that for specified reasons it cannot present facts essential to justify its opposition, the court may:

1. Defer considering the motion or deny it2. Allow time to obtain affidavits or declarations or

to take discovery3. Issue any other appropriate order

f. Trier and TrialA. Intro

1. Common misconceptionsi. There are hardly any actual trialsii. No surprises, relatively little drama dramatic revelations can be

basis for new trial2. Not the end decision appeals, post-verdict motions

B. Burdens1. Pleading

i. What party has the responsibility to allege claims or affirmative defenses-party has burden of pleading elements of their claim

2. Productioni. Who goes first to bring evidence on a claim or defenseii. Ps have the burden of production which adds to their claims

a. Ps go first and provide proof for each of their claimsiii. For defenses/affirmative defenses, D has the burden of

production3. Persuasion

i. Who has the burden to persuade the trier of fact as to a particular legal proposition

ii. In civil, this is the preponderance of the evidence, more likely than not, 51% standard lower standard. In Criminal beyond reasonable doubt higher standard.

C. Limits of rational inference1. Reid v. San Pedro, LA, Salt Lake RR- The Cow case-Ct granted D

MJMOL-When there is undisputed evidence from which the essential fact can be inferred, and its pointing to 2 different conclusions, one holding D liable, another holding NOT LIABLE, then the claim MUST FAIL

i. P Has Burden of Production, For P to recover, it was essential to show by a preponderance of evidence that the cow entered through the broken fence

ii. P will not SATISFY BUREN OF PRODUCTION if evidence is in equipoise and it is equally likely to hold the D liable or not liable.

D. Motion for Judgment as Matter of Law (JMOL)1. Previously known as Directed Verdict (DV)

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2. 50(a)- JMOL-Trial Motion MADE at Trial BEFORE case goes to jury i. Moving party MUST SHOW that a reasonable jury would not

have a legal sufficient evidentiary basis to FIND for the non-moving party

ii. Court will GRANT JMOL-if reasonable jurty MUST FIND in favor of moving party

iii. Court will DENY JMOL-if reasonable jury COULD FIND in favor of non-moving party.

iv. Higher Standard-Court may NOT WEIGH evidence, jury’s jobv. Court ordinarily may not determine CREDIBILITY, jury’s job,

unless evidence is incredible-Rationale: Jury is supposed to determine what facts likely are

3. Exception-Ct Weigh Evidence Incredible-Grant JMOL Pennsylvania RR v. Chamberlain-Ct Held-D is entitled to a JMOL when proven facts give equal support to each of 2 inconsistent inferences, when P has burden of proof. P had burden of proof weak evidence to support conclusion. Ct will weigh/credibility testimony of witness if testimony found simply INCREDIBLE

i. Evaluate evidence in light most favorable to non-moving partyii. May only look at information produced at trial

4. Requirementsi. Must be made at trial BEFORE case is submitted to JURYii. Must state specific judgment soughtiii. Very fact Specific-must EVALUATE proof presented at trial-

Must state applicable rule of law and its relationship to the facts5. Timing

i. MJMOL-Must be made at trial after non-moving party been fully heard-rests his case in chief, BEFORE SUBMITTED TO JURY

ii. D can move for JMOL after Ps caseiii. Both P and D can move for JMOL after ALL evidence heard

6. Results of Granting MJMOL-Case is over7. Standard of Review

i. Grant if reasonable jury must find in favor of moving partyii. Deny if reasonable jury could find in favor of non-moving party

E. Renewed motion for Judgemet as a Matter Of Law (RJMOL)1. Previously known as judgment notwithstanding the verdict (JNOV)2. 50(b)-RJMOL

i. Post-Verdict Motion-occurs AFTER jury has entered its verdictii. Same requirements/substantive aspects as JMOL-Could a

reasonable jury have found in favor of winner? If a reasonable jury could NOT have found in favor of the verdict, then the renewed motion for JMOL, MUST be granted

iii. If a reasonable jury could have found in favor of the verdict, then the renewed motion for JMOL, MUST be denied

iv. Renewed-If you make a RJMOL, must have already made a JMOL

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v. Court can simply defer from making a ruling on a JMOL or can deny motion for JMOL even though it is inclined to grant JMOL

a. But if jury comes back with verdict that goes against party who made JMOL, losing party will renew its JMOL and give court opportunity to grant the renewed motion

vi. RJMOL favors loser-makes a loser into a winnervii. Asks court to reevaluate facts which the jury has already evaluatedviii. The court is actually making a delayed ruling for JMOLix. Courts are reluctant to grant JMOLs upfront and take cases away

to the jury-only do this when the evidence is one sided. Cts more likely to grant RJMOL over JMOL.

3. Standard of review exactly the same as JMOLi. Grant if reasonable jury must find in favor of moving

party(party making RJMOL)ii. Deny if reasonable jury could find in favor of non-moving

party(party opposing RJMOL)4. Prerequisite and Timing issues

i. After verdict, JMOL is a pre-requisite for RJMOL-Meaning if a party DOES NOT make a JMOL, he is precluded from making a RJMOL

ii. Step 1-During Trial, Party makes a JMOL BEFORE Jury reaches verdict

iii. Step 2-AFTER Jury reaches verdict, losing Party makes a RJMOL

iv. Deadline For RJMOL-28 days after trial endsF. Motion for new trial

1. 59- New Triali. Procedural remedy, motion made AFTER verdict-Start all overii. Does not specify grounds for which new trial may be orderediii. Court may do so for any reason for which a new trial has been

granted in action at law in federal courtiv. If court grants RJMOL final judgment entered, ends case, in

favor of moving partya. RJMOL results in judgment for the, new trial starts the

process all over againb. Does not Favor Loser-Just starts new trial over again

v. (b)- Timing Issuesvi. (c)- allows losing party to make all post trial motions at once

a. Both RJMOL and Motion for a New Trialb. If ct grants RJMOL, ct will grant Motion for a New

Trial-promotes judicial economy. In one review app ct can review both RJMOL and MNOT.

vii. (d)- Judge may order on own initiative or on a party’s motiona. Parties can bring motion, but court may order new trial on

its own initiativeb. Deadline-28 days after trial ends

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2. Basis for New trial motion-Flawed Procedures and Flawed Verdicti. Flawed procedures

a. Trigger: Lawyer made impermissible argument, judge erred in admitting certain evidence, gave improper jury instructions, jury misconduct, etc

b. Judge concludes that process LEADING UP to verdict is flawed, could be considered prejudicial

c. Gives judge chance to correct/fix flawed processd. Garbage in- something happened, some serious mistake or

error DURING trial that was so SIGNIFICANT it resulted in an IMPROPER verdict

ii. Flawed verdicta. Judge may conclude result/verdict is unjustifiedb. Jury MISUNDERSTOOD or IGNORED instructionsc. Rule-Garbage out- when verdict goes against great

weight of evidence and new trial NECESSARY to prevent injustice

d. When case is simple and easily comprehended by average person, more deference should be given to the verdict

e. Less deference should be given if jury may have confused the facts of the case

f. But court cannot act merely as 13th juror1. Must weigh evidence and may make credibility

determinations 3. Ex: Yes MNOT-Yes Against Great Weight- Lind v. Schenley Industries-

Dissent-Verdict clearly went against Great weight of evidence. Promise made was abnormally large P would make more money than anyone else in company including President. P didn’t complain until several years later

i. Reversal-Reversal of a trial court’s motion for new trial is reversible if trial court failed to apply proper legal standards in granting the motion

a. Differences between JMOL and new trial1. JMOL- winner had no evidentiary support for

one element of claim/defensei. Immediate entry of judgment for loser of

original verdictii. HIGHER Standard-Must show a

reasonable jury would not have legally sufficient evidentiary basis to find for non-moving party

iii. Ct CANNOT weigh evidence or make credibility determinations

2. New Trial- does not make winner out of loser, completely starts over

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i. Lower standard-A jury verdict is contrary to the great weight of the evidence and a new trial is necessary to prevent injustice

ii. Ct. CAN weigh evidence and make credibility determinations

4. Damagesi. New Trial limited to damages

a. Trigger: Judge awarded excessive amount or inadequate amount of damages.

b. Judge must be convinced that whatever influences led the jury stray on damages did not infect the judgment on liability as well

ii. Remittitura. Judge orders a new trial unless P agrees to accept

REDUCED damagesb. P must get a choice between a new trial or accepting

LESS compensatory damagesc. Allowed in both Fed Ct. and State Ct.d. Asks whether damages are too excessive?

1. Rule: If it shocks the consciouse. Test for court to determine what a reasonable amount is:

1. Ct determines-Highest reasonable amount-P has a choice of either accepting highest reasonable amount or going through new trial

iii. Additura. Trigger P wins but P believes the damage award appears to

be INADEQUATE1. Far less common that remitter2. NOT ALLOWED in federal court3. Some states like CA permit additur

b. D has a choice-A court can order a conditional new trial unless the D agrees to pay a larger award of damages

RJMOL New Trial Final Judgment

Deny Deny Yes – can appealGrant Deny Yes. The verdict is against the great weight to the

evidence is a lower standard than saying no reasonable juror could find in favor of the nonmoving party. The flawed procedure was not a flaw or not prejudicial to the losing party.

Deny Grant No-cannot be appealed immediately because no final judgment.

Grant Grant- conditional ruling

Yes because this makes the losing party into a winner-final judgment because losing party wins. They would pick the RJMOL first.

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g. Respect for Judgments A. Claim Preclusions (Res Judicata)-Trigger: Two lawsuits, What effect does prior

lawsuit have on second lawsuit.B. Claim Preclusion is an affirmative DefenseC. If only one claim is asserted by P, ANY other cause of action that he could have

asserted in that lawsuit is deemed to be gone. D. Claim Preclusion Use-Used in an MSJ, looking for extrinsic documents outside

of complaint, i.e. the record. CANNOT DO CLAIM PRECLUSION IN 12 B(6)-that motion only looks at 4 corners of complaint

E. Court in lawsuit #2 will use whatever type of law court in lawsuit #1=Rendering court used. If ct #1 used fed, ct #2 will use fed. If ct #1 used state, ct #2 will use state.

1. Elements of Claim Preclusion: 1) Same claim 2) Final JMT 3) On the Merits 4) Between Same parties or their privies-Need all 4 to claim claim preclusion

2. 1) Same Claim-Majority Rule-Broad used by Fed Cts-Same Transaction or series of connected transactions out of which claim arose. Are Facts related in same time, space, origin motivation? Convenient Litigation Unit?

3. Ex: Majority Rule- Frier v. City of Vandalia-Ct Held Yes Same claim- lawsuit #1 deals with claim as action #2 because both relate to the same car that was towed and how to get same car back.

4. Ex: No Same Claim-Husband and wife get injured in an accident, and each bring a claim, each claim is separate and not the same.

5. Minority Rule-Same Evidence Test-More Narrow-What Facts are needed to prove claim in action #1 and action #2. If substantially the same evidence is required to prove the claim in action #1 and the claim in action#2, then the claims in both lawsuits are the same. If the evidence required to prove the claim in action #1 and the claim in action #2 are different from each other, then no same claim.

6. Primary Rights JDX-California and Indiana is a Primary Rights JDX-Lawsuit #1 and lawsuit #2 must arise out of STO and must both involve the same Primary Right.

7. Ex: No Same Claim-Different Primary Right-P sues D for negligence in car accident in #1, seeking property damages. Then in #2, P sues D for the same car accident but this time seeking damages for PI. #1 deals with property damage and #2 deals with personal injury those are different primary rights. Ex2: No Same Claim-Different Primary Right-Park-Ct held loss of consortium(with wife) Suit #2 different than negligence (physical well being) in suit#1 different primary right

8. Rule 13 A-Counter Claims and Claim Preclusion-If D ANSWERS complaint without a counter-claim, all his counter-claims are waived for future and lawsuit #2. If D DOES NOT ANSWER complaint, compulsory counterclaims are not barred from lawsuit #2

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9. 2)Final JMT-JMT entered into by Trial ct. 10. Majority Rule-When a case is on appeal it is still going to be considered

final JMT. Minority Rule-When appeal is pending, there is no Final JMT. Practically Speaking-When an appeal is pending, ct in suit #2 will stay the action until appeal is finally resolved. No Valid Final JMT-if court in action#1 lacked subject matter jdx over lawsuit #1

11. 3)On The Merits-JMT entered into after full trial. Yes JMT On the Merits-involuntary Dismissal, JMOL, MSJ, dismissal under 12 b 6 with prejudice, Sanctions For Failure to prosecute-want to give it teeth-prevent person from filing second lawsuit

12. No JMT On the Merits-12 b 6 without prejudice. 12b2-lack of PJ, 12 b3-Improper Venue, Failure to join a party under Rule 19

13. 4) Between Same Parties or their privies-14. Same Privies-substantive legal relationship-parties are in privity with

each other. One party stands in the place of another15. #1 Agreement by Parties to be bound by a prior action16. #2 Successive owners of property easment-No Successive Ownership

Joint Property-Searle v. Searle-Ct Held No Privity-Searle brothers joint property owner with father. Brothers own ½, father owns 1/2 Each have a distinct property interest separate from their father.

17. #2 Procedural Representation-Trustee and Beneficiary, Guardian Ad Litem and children, Executor of an estate and rep. of heirs, class rep and absentee class members.

18. #4 3rd Party Litigation Control-3rd party controlling strategic choices and calling tactics made by named party because 3rd party has a stake in the lawsuit. Ex: No Litigation Control-Searle Brother-Simply Testifying in previous action is NOT LITIGATION CONTROL

19. #5 A Party who loses an individual suit, then suing them this time as a class rep

20. #6 Special Statutory Schemes-bankruptcy and probate proceedings21. Virtual Representation-parties in lawsuit#1 and Lawsuit #2 are have a

close enough Relationship is NOT AN EXAMPLE OF PRIVITY.22. Rationale for Getting Rid of Virtual Representation 1)Difficult to

apply close enough relationship 2)Dangerous precedent/due process problems 3) Consequences significant-parties won’t have their day in court

23. Rationale for Claim Preclusion: Promotes Finality, D gets piece of mind not being sued constantly. Efficiency-Its more efficient to try all causes of action in one lawsuit, rather than splitting them up. Consistency-Courts do not want to have inconsistent judgments it would create confusion on state of law

24. Issue Preclusion (Collateral Estoppel)-Elements-1)Same Issue 2) Actually Litigated and Determined 3)Essential to the Judgment 4) Valid Final JMT 5)Between same parties/privies?

25. 1) Same Issue of law or fact-Means the identical issue, the exact same issue in the prior lawsuit and the current lawsuit.

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26. Ex: Yes Same Issue-Parklane Hosiery v. Shore-Issue Suit #1-False Proxy Statement, Issue Suit #2-False Proxy Statement-Same Issue

27. Procedural Identity-Often times P will want to bring civil suit when acts complained of are acts subject to criminal prosecution. You can have a legal issue that has been raised suit #1 and Suit #2-ramifications could vary procedurally civil or criminal. Ex1:If lawsuit #1 is criminal-D wins stealing-Higher Burden-BRD, and lawsuit #2 is civil-stealing -Lower Burden-More Likely than not (51%)-No Issue Preclusion for D Standard Lower-Different Issues.

28. Ex2: Lawsuit#1-Civil Case-Stealing P (Gov.) wins and Lawsuit #2 is criminal case-P cannot use Issue Preclusion, because Standard in Criminal Case #2 Higher than Civil #1, No Issue Preclusion For P-Higher Standard

29. Ex3: Lawsuit #1-Criminal Case-Stealing Gov. wins and Lawsuit #2 is Civil Case, Gov(P) CAN USE ISSUE PRECLUSION, because Issue in action #1 Criminal Beyond a Reasonable Doubt will include ALL LESSER STANDARDS OF PROOF such as preponderance of the evidence.

30. 2) Issue actually litigated and determined-Need Reasonable Certainty. 31. Ex: Yes Actually litigated and Determined-Parklane Hosiery-Sec had

burden of proving proxy statement was false, burden met32. In scenarios that involve General Verdict-Where a jury ONLY

determines who won or who loss and the winning party can win on either issue, that issue has not been actually litigated and determined. Ex: Park v. Illinois Central RR-Ct held-Railroad could have win either b.c. jury did not believe P had lost any consortium or Railroad could have won b.c. jury thought P was contributorily negligent. Issue of contributory Negligent Not Actually Litigated and Determined.

33. Ex: Yes General Verdict Actually Litigated and Determined-If P can only win by proving that D was negligent and P no contributory negligence.

34. Special Verdict=actually litigated and determined-Special Verdict-when a jury is asked specific questions about case. Ex: Was D negligent? Was P contributorily negligent?

35. 3) Issue essential to the judgment. 36. Ex: Yes Issue essential to the Judgment-Parklane Hosiery-False Proxy

Statement only issue litigated and essential to JMT37. Alternative Grounds?-Two or more grounds that support JMT, i.e. Was

D negligent? No, Was P CN? Yes38. Old Rule-Alternative Grounds supporting JMT-both issues Precluded.

New Rule-Alternative Grounds supporting JMT-NEITHER issues Precluded.

39. Rationale-1) We don’t know how carefully jury decided each question 2) Incentive to appeal will go down-Appeal error correction procedure-two or more grounds-each question not determined carefully

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40. 4) Valid Final JMT? JDX will not have preclusive effect on suit #2 if suit #1 was dismissed for lack SMJ.

41. Ex: Yes Final JMT-Ex-Parklane-Ct had JDX over Sec suit with Parklane Hosiery and case terminated on final JMT

42. 5) Between same parties or their privies? 43. Mutuality JDX-JDX that require SAME parties or their privies for Issue

Preclusion44. Offensive Non-Mutual Issue Preclusion-Defined-When P uses Issue

Preclusion and is not same party in suit #2 as suit #1. You cannot use Offensive Non-Mutual Issue Preclusion AGAINST fed gov.

45. Factors to determine if ONOIP is fair: 1)easy joinder? 2) incentive to litigate? 3) procedural differences? 4)Prior Inconsistent JMTs? 5) Any other reasons

46. 1)Easy Joinder-Rule-Could have P in suit #2 easily join with P in suit#1? Knowledge of Suit#1 not dispositive. Not Easy to join-Yes ONMIP, Yes Easy to Join-NO ONMIP

47. Yes Easy Joinder-Rule 20-If claim in suit #1 and claim in suit #2 arise out of Sto and if any question of low or fact common to all ds will arise in action of law-P could have easily joined suit #1

48. No Easy Joinder-If P in lawsuit #1 was a gov. agency, i.e. SEC49. 2) Incentive to Litigate Prior Lawsuit-Rule-Was action #1 a big case or

a small case? Was it foreseeable to D that there could be other lawsuits involving same issues in suit#1 that would be litigated in suit #2? If foreseeable other lawsuits in the future, D has higher incentive to litigate lawsuit vigorously-Yes ONMIP, if D has lower incentive to litigate-No ONMIP

50. Ex: Yes Incentive to litigate Prior Lawsuit-Parklane Hosiery-Sec made serious charges, Parklane needed to defend vigorously. D did not only forsee Shore’s lasuit, D knew class action lawsuit had been brough by shore, because Shore’s lawsuit brought before Sec Suit.

51. 3) Procedural Differences?-Were there any Procedural differences between action #1 and action #2? If Procedures in action #1 and action #2 are the same, supports ONMIP. If D afforded fewer procedural opportunities to defend itself in suit #1 compared to suit #2, that goes against NMIP.

52. Ex: Yes Procedural Differences-Hypo-Action #1 Municipal Ct abbreviated system of Discovery-Not all discovery tools would be available in action #1 then in action #2-Yes Procedural Differences-No Offensive Non Mutual Issue Preclusion

53. Ex: No Procedural Differences-Parklane Hosiery-Procedure same in suit #1 and suit #2 both cases filed in Fed Ct. Yes ONMIP

54. 4) Prior Inconsistent JMTs?- Whether there have been prior inconsistent JMTs? How correct were previous JMTs? This is the strongest factor against non mutual offensive issue preclusion.If Yes, prior inconsistent JMTs, No ONMIP. Rationale:If cts split we don’t know which prior JMT is the most correct. If no, prior inconsistent JMTs, Yes ONMIP

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55. Ex: No Prior Inconsistent JMTs-Parklane Hosiery-Only 1 prior JMT Sec Action-Looks like NMOIP

56. 5) Any Other Reasons?57. Rationale for Offensive Non-Mutual Issue Preclusion-Promotes

Finality and consistency.58. Criticism of Offensive Non-Mutual Issue Preclusion-Inefficient-Gives

P an Unfair advantage-Potential Ps will wait and see how current Ps do in suit #1 and will later run ONMIP against D in Suit#2.

59. Defensive Issue Preclusion-D uses issue preclusion as a shield against P. D cannot use Defensive Issue Preclusion against a 3RD PARTY Not INVOLVED in lawsuit #1-Rationale-everyone entitled to his day in court.

60. Claim Preclusion v. Issue Preclusion-Claim Preclusion bars same claim. Issue Preclusion bars issues already determined.

61. Ex: Lawsuit #1-P sues D for trespass, D affirmative Defense easement to come on to P’s land for trees. D wins. Lawsuit #2-D comes onto P’s land again and cuts down trees. P sues D for trespass. D claims easement-files issue preclusion against P. Here no claim preclusion, because there were two separate actions when D came onto P’s land to cut down trees. Not same action or occurrence. However, D wins on Issue Preclusion because the issue of trespass has already been previously litigated.

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