PLEADINGS

Pleadings that State Claims Rule 9: Pleading Special Matters (Leatherman v. Tarrant County)

Capacity and existence Fraud and mistake Conditions of the mind Conditions precedent Official act; judgment Time and place Special Damages Admiralty & maritime

Rule 10: Format Rules Caption Names of parties

Rule 8(e): More General Rules Construing Pleadings

“Pleadings must be construed as to do justice.”

Rule 11: Signing Pleadings “Every pleading , written motion, and other paper must be signed by at least one

attorney of record in the attorney’s name – or by a party personally if the party is unrepresented.”

Pleadings that Respond to ClaimsResponding to the complaint

Option 1 : File a motion before filing an answer- To quickly terminate a case (or portions of a case) that cannot succeed, or- Because Complaint is so vague that no answer is possible- Kinds of Pre-Answer Motions:

-Motion to Dismiss-Motion for More Definite Statement-Motion to Strike

Option 2 : File an answer

Option 1: Defenses and Objections: Rule 12Motion to Dismiss

Rule 12(a)(4): Defendants’ time for serving the “answer” is delayed if a “motion” under Rule 12(b) is made.

Rule 12(b): Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. BUT... defenses in Rules 12(b)(1)-12(b)(7) may instead be first asserted by motion.

Rule 12(b)(6): “failure to state a claim upon which relief can be granted”- Can’t tell if there is a valid claim here or not.

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Remedy: Dismiss without prejudice- allow plaintiff to try to plead again- Can tell- the claim is doomed

Remedy: Dismiss with prejudice- no reason to allow plaintiff to try again

Motion for More Definite Statement: Rule 12(e) When pleading is “so vague or ambiguous” that opponent cannot reasonably prepare a

response. (Motion must point out specific defects/missing details) Time: Motion must be made before counter-pleading Remedy : If granted, Order requires the pleader to cure the deficiencies by an

amendment within 14 days (or other time set by the Court), or face dismissal.

Motion to Strike: Rule 12(f) Used to strike in two situations:

- (1) Pleaded Junk - any redundant, immaterial, impertinent, or scandalous matter, upon showing of prejudice, or...

- (2) Insufficient Defenses - (i.e., a motion to dismiss for the plaintiff!!) Time: Motion must be made before counter-pleading (or 21 days if no counter-pleading

is permitted Remedy : If granted for insufficient defenses, then same as Rule 12(b)(6)[Try to plead

again, unless doomed.] If granted for redundant, etc. pleading, then generally no new pleading is required.

Option 2: File an AnswerWhen to file?

Within the original *21*/60/90 day response period (instead of a pre-answer motion) or within 14 days after a pre-answer motion is denied by the Court (or any “revised” pleading is served.)

Content of the “Answer” Paragraphed responses to each paragraphed allegation

- In RESPONDING to a pleading, a party must:-... state in short and plain terms its defenses to each claim asserted against it...-... admit or deny the averments asserted against it by and opposing party...-... or, lacking knowledge or information sufficient to form a belief to the truth of an allegation must so state, and the statement has the effect of a denial.

- Rule 8(b)(6): Effect of Failing to Deny- If a responsive pleading is required, all allegations are considered admitted unless they are denied in that response.

- Rule 8(b)(3): General and Specific Denials- General- when you deny every paragraph- Specific- when you deny some paragraphs but admit others

- Rule 12(b)(4): Partial Denials- If part of a paragraph is true, you must admit that p art and then deny what is untrue.

- Purpose of the “Answer”:- Isolating which factual and legal issues are actually in dispute in the case (and, therefore, may be explored in “discovery”)

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Affirmative Defenses: Rule 8(c)- In responding to a pleading, a party must affirmatively state any avoidance or

affirmative defense...- Some Affirmative Defenses:

- Accord & Satisfaction -Contributory Negligence- Arbitration & Award -Bankruptcy Discharge- Duress -Failure of Consideration- Estoppel -Fraud or Illegality- Assumption of Risk -Laches- License -Payment- Release -Res Judicata- Statute of Frauds -Statue of Limitations- Waiver -Injury by Fellow Servant

Offensive Claims (Counterclaims and Crossclaims)

Methods to Early Victory Rule 41: Dismissal of Actions

- Rule 41(a): Voluntary Dismissal (Plaintiff)- Anytime, if dismissed before the defendants file their Answer or SJ motion- Anytime else, if all appearing parties agree- Anytime else, if Court issues an order allowing it- EFFECT- Voluntary dismissals are “without prejudice”, unless otherwise specified. Except voluntarily dismissing the same claim twice becomes a dismissal “with prejudice”.

- Rule 41(b): Involuntary Dismissal (Defendant)-Defendant may move the Court for a dismissal of plaintiff’s case for failure to prosecute or for failure to comply with the Rules or a Court order.-EFFECT- Generally, involuntary dismissals are deemed to be rulings on the merits (e.g., dism issals “with prejudice”)

Rule 55: Default- Step #1- Rule 55(a): Entry of a Default

- The Clerk’s notation that a party has failed to plead or otherwise defend- Effect: That party is deemed to have admitted all the well-pleaded allegations in the prior pleading.

- Step #2- Rule 55(b): Entry of Default Judgment- Either the Clerk (simple cases) or the Court enters a final judgment against the defaulting party.- Effect: The judgment is enforceable, and entitled to Full Faith & Credit

- Rule 55(c): Setting Defaults aside- “Defaults”: May be set-aside for “good cause”. Generally something more than attorney neglect/oversight- “Default Judgments”: May be set-aside only for six narrow reasons listed in Rule 60(b)

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- Rule 55(d): USA Defaults- No default against the USA or federal officers/agencies unless the claimant first establishes a right to the relief by evidence that satisfies the court

Amendments: Repairing the PleadingsWhy?

You discover you missed something factually or legally. Defendant makes a Rule 12(b) motion, and you are persuaded Defendant makes a Rule 12(b) motion, and you are not persuaded- but the court is!

Rule 15: Amendments and Supplemental Pleadings Rule 15(a): Amending Before Trial

- Unilaterally - One time, if done within 21-days of serving it or within 21 days after the adversary files either its pleading or its Rule 12 motion.

- With Permission - Otherwise, with written consent of the adversary or leave of Court (“court should freely give leave when justice so requires”).

- Responding to Amended Pleadings - Unless court sets different schedules, responses are due (a) within the original time period or (b) within 14-days of service of the amended pleading (whichever is later)

- Malpractice Danger - Never, ever count on an amendment – although often “freely granted”, it may not be granted in YOUR case.

Rule 15(b): Amending During/After Trial (Variance)- With Consent - Issues not raised in the pleadings may still be tried before the jury (or

the Court, in a Bench trial) with the express or implied consent of the parties.- “Conforming” amendments may be permitted, but even without them, trial results is not affected

- Without Consent - If objection is made to evidence on the ground that it is not within the issues raised by the pleadings, Courts may allow pleading to be amended “freely” when it serves the merits presentation and no prejudice is proven

- Continuances may be granted for adversary- Applies to both party’s pleadings (Plaintiff’s complaint and Defendant’s answer)

Rule 15(c): Relation Back (Marsh v. Coleman Company)- 15(c)(1)(A): As Permitted- The law the provides the applicable SOL allows relation

back- 15(c)(1)(B): Similar Claims- The new claim or defense arose out of the conduct,

transaction, or occurrence set out (or attempted to be set out) in the original pleadings.

- 15(c)(1)(C): New Parties- Permitted if (B) above is met and, within the SOL period, the party (i) received notice so as not to be prejudiced and (ii) knew or should have known that, but for the mistaken identity of the original pleading, the lawsuit is against him. (i.e. misspelled name on the pleading)

Rule 15(d): Supplemental Pleadings- Purpose ; To set forth events that have occurred since the original pleadings were

filed. (Pre-filing events are addressed by amendment, not supplement)

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- When : Upon motion, with reasonable notice, and on “just” terms, Courts may permit pleadings to be supplemented to set forth recent transactions, occurrences, or events – that happened AFTER the date of the original pleading.

- Limits : Applies even if original pleading is defective. Responsive pleading only if ordered by Court

Veracity in Pleadings 28 U.S.C § 1927 – “Any attorney ... who ... multiplies the proceedings in any case

unreasonably and vexatiously may be required ... to satisfy personally the excess costs ... and fees ... incurred because of such conduct.”

All courts possess the inherent power – separate and apart from any rule of statute – to police and to punish those who appear before them.

“Rule 11 imposes an obligation on counsel and client analogous to the railroad crossing sign, ‘Stop, Look, and Listen’. It may be rephrased ‘Stop, Think, Investigate, and Research’ before filing paper either to initiate the suit or to conduct the litigation.”

Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions: Rule 11Rule 11(a): Signature

Every paper must be signed by an attorney of record or by the party personally if unrepresented.

Unsigned papers shall be stricken, unless promptly corrected.Rule 11(b): Representations to Court

Not presented for an improper purpose Claims and defenses warranted by existing law or non-frivolous argument for new law Allegations have (or are likely to have) evidentiary support. Denials are warranted by evidence or inference.

Rule 11(c): Sanctions (Rector v. Approved Federal Savings Bank) Against whom : Attorneys, law firms, or parties who violated their representations to the

Court.- Law firm responsible for violations committed by partners, associates, employees.- No monetary sanctions against a represented party for Rule 11(b)(2) violation

Made by Opponent - By motion. Must:- Be made separately from other filings, and- Describe specific violating conduct, and- Provide a 21-day “safe harbor” period.

Made by Court - On Court’s own initiative, by entering an Order directing party to “show cause” why she is not in violation of Rule 11(b)

Limits on Sanctions - Only what is sufficient to deter repetition of such conduct by offender or others:- Non-monetary directives- Payment of penalty into Court, or- Payment of opposing party’s attorney’s fees and costs (+ costs of making Rule 11

motion) Contents of Court’s Order : An Order granting a Rule 11 motion will (1) Describe the

violative conduct, and (2) Explain the basis for the sanctions imposed.

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Rule 11(d): Not to Discovery Because violations of the Federal Discovery Rules are already addressed in the

Discovery Rules themselves, Rule 11 will not add to those provisions

REAL PARTY IN INTEREST: Rule 17 Must be brought on behalf of and in name of persons w/ interests actually affected by outcome. Exceptions : executors, administrators, guardians, bailees, trustees, etc. Policy- allows interest to

be asserted even though RPI is unavailable. NO idle lawsuits; want people w/ stake in dispute, they will do a better job of litigation;

prevents D from litigating twice. There can be more than one RPI, but they have to be independently wronged.

What if the RPI is absent from the lawsuit? FRCP 17 (a)(3) Court doesn’t want case dismissed and then relitigated when RPI comes forward. No dismissals until, after objection, reasonable time has passed and RPI has not ratified, joined,

or substituted in. So the fight will continue.RULE 21: if we have misjoined somebody: not grounds for dismissal: if you can fix it

By motion or on its own (sua sponte), court may add or drop a party at any time; Court may also sever any claim against a party.

Subrogation: inherit a claim and become an RPI, ex. an insurance companySubstitution of Parties: Can substitute parties in four cases RULE 25:

1. Death: w/in 90 days of statement noting death2. Incompetency: continued by rep.3. Transfer of interest (after transferring all right, transferor is no longer a RPI)4. Public officers; Death or separation from office, automatic.

Litigation “capacity”: party’s legal ability to sue or be sued:1. Individuals: determined by law of domicile;2. Corporations: determined by law of place of incorporation3. Minors and incompetent persons- may only sue or be sued through a representative (by

appointment, guardian, conservator, “next-friend”, guardian ad litem).4. All others: generally determined by law of the forum.

JOINDER: Avoids duplicative litigation, needless $$, reduces ct backlog, provides judicial efficiency.

USC 1367 Supplemental Jurisdiction: overview: Effect/Policy: const- fed ct decides entire case or controversy, promotes judicial efficiency. It is a power, but courts don’t have to use it. 1367(a) Requirements: must already have proper SMJ over original claim, the additional state

law claims must be “so related” to pending Fed. claim that “they form part of same case or controversy”, & trial judge must discretionarily permit it when no fed statute forbids it.

o Same case or controversy measured by similarity in witnesses and trial evidence

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1367(b) Limitations: does not affect joining of claims by existing partieso Affects only diversity cases: supplemental jurisdiction will not apply if:

Would be inconsistent with 1332 (aka defeat Strawbridge), AND If non-diverse claims are asserted by P against parties newly joined by Rules 14

(Impleader), 19 (Joinder), 20 (Permissive Joinder), 24 (Intervention); OR If non-diverse claims are asserted by new Ps added under Rule 19 (Joinder) or

24(Intervention) assert non-diverse claims 1367(c) Trial Judge’s Discretion: even if supplemental jurisdiction would otherwise be

proper, the trial judge can reject joinder ifo claims raise a novel or complex state law issue,o joined state claim predominates over fed claim, o all claims of original jurisdiction are dismissed, or o other compelling reasons

1367(d) Statute of Limitations: o If state law claim is dismissed, the applicable state law SOL is tolled:

For entire time case is pending in fed. ct. and then for another 30 days Or for so long as state law permits, if longer than the federal tolling.

1367(a)-Supplemental Jurisdiction is GIVEN... 1367(b)-...unless it is TAKEN AWAY ... 1367(c)-...and is ALWAYS discretionary... 1367(d)-...and, if dismissed, is preserved to be litigated in State court

Always ask these questions for Joinder? Step 1 : Do we really want the Joinder? Step 2 : Is the Joinder proper under the procedure rules? Step 3 : Is personal jurisdiction a venue proper for the Joinder Step 4 : Is subject matter jurisdiction proper for the Joinder?

Joinder by Plaintiffs (Claimants):CLAIMS: FRCP 18: A party asserting claim (whether an original, counterclaim, crossclaim, or 3rd party claim) may join, as independent or alternative claims, as many claims as it has against an opposing party. Contingent claim: can be joined, But if contingent, relief may only be granted if contingency first occurs.VERY BROAD, claim does not have to relate to same transaction, facts, event, etc. Strategy:Why would you want to do this?: Plaintiff is the “master of her complaint”

Least-cost resolution for the parties, efficient for court system Avoids inconsistent results and have best story for jury Obtain the best preclusion effect, FF&C

*Four Step Process for Joinder of Claims*1. Do we really want the joinder? Strategic step. 2. Is the joinder proper under the procedure rules? (Rule 18)3. Is personal jurisdiction & venue proper for the joinder?

a. yes, if there was jurisdiction and proper venue under the original claim.4. Is SMJ proper for the joinder?

a. Diversity/amt in cont. (can aggregate claims unless among mult. parties), or

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b. federal question, orc. Supplemental Jurisdiction 28 USC 1367: So does Supplement Jurisdiction (“federal

helper statute”) apply in Rule 18 Claim Joinder cases:i. In Fed. Question lawsuits, to non-qualifying claims asserted by and against the

same existing plaintiffs and defendants? YES, IF the State claims are “so related” to the federal claims...§ 1367(b) doesn’t “take away” any jurisdiction!

-If not “so related”, joinder fails for lack of SMJii. In diversity lawsuits, to non-qualifying claims asserted by and against existing

plaintiffs and defendants? YES, but supplemental jurisdiction is likely never going to be necessary... AGGREGATION, so long as 1 plaintiff’s claims against same 1 defendant

: If claims derived from a “common nucleus of operative fact,” and you would ordinarily expect these actions to be tried together, then judicial power to join exists, but discretion is still in place to deny. > Then go to 1367 analysis federal helper statute.

PARTY JOINDER: 2 types:1. Permissive FRCP 20: Plaintiff’s choice You may add.

a) Who can be joined as Fellow Plaintiffs? Anyone asserting any right to relief jointly, severally, or in the alternative provided that right is:

Transactionally related: w/ respect to or arising out of same transaction or occurrence, or series of transactions or occurrence, so long as,

Common question: Any question of law or fact is “common to all”, will arise in the action

b) Who can be joined as New Defendants? Anyone who has asserted against them jointly, severally, or in the alternative, any right to relief, provided that ...

Transactionally related: the right to relief is w/ respect to or arising out of the same action or occurrence, so long as,

Common question: Any question of law or fact is “common to all” will arise in the action

Extent of relief: party need not be interested in entire reward, can be different and/or separate awards/judgments

Protective measures : Rule 20(b): court may join parties to case but still separate the trial to protect from embarrassment, delay, expense, other prejudice.

Rule 42(b): Separate Trials Rule 42(a): Consolidation 1367(b) applied to Permissive Joinder: Supplemental Jurisdiction 28 USC 1367: So

does Supplemental Jurisdiction (“federal helper statute”) apply in Rule 20 Permissive Joinder cases:

oFQJ original claim = YES, IF the State claims are “so related” to the federal claims...§ 1367(b) doesn’t “take away” any jurisdiction!

oDiversity original claim = Non-diverse claims asserted by Plaintiffs newly joined under Rule 20:

If “so-related”, then OK under § 1367(a), As long as complete diversity isn’t contaminated-Per Exxon case

Non-diverse claims asserted against Defendants joined by Rule 20: If “so-related”, then OK under § 1367(a), BUT § 1367(b) prevents

Joinder if inconsistent with 28 U.S.C § 1332

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Exxon Mobil Corp. v. Allapattah Services: class action suit of Exxon dealers alleging intentional and scheme by Exxon to overcharge them, does an additional P whose claim does not meet the amount in controversy spoil supplemental jurisdiction? With 1367:

Contamination theory (lack of complete citizenship-diversity “contaminates” every claim) applies to citizenship-diversity ONLY, not to amount in controversy

Losing amt in cont does not take away from importance of the claim or its adjudication. Same effect for new claims, between the same parties arising out of same “case or controversy”

have supplemental jurisdiction under the new § 1367 statute. But, now supplemental jurisdiction does exist over additional claims involving new parties if

1367(b) doesn’t prohibit it! Remember 1367 still must OTHERWISE be satisfied under its statutory terms, so if something

is affirmatively excluded by 1367, then Exxon is not read to re-insert it. A-I-C: After Exxon, as long as original claim meets Amount In Controversy, the joined claims

need not.

2. COMPULSORY/required joinder: FRCP 19: Defendant can force it so long as joinder is feasible.

Exists if either:1. No completed relief among current parties, or2. Person claims interest in case, and in her absence:

- Her ability to protect her interest is impaired, or- Current parties would face substantial risk of double, multiple, or inconsistent

obligations.- Someone would be prejudiced w/o the presence of the party.

2. Is it feasible to join? Must: Be able to be served, have personal jurisdiction over and Must NOT defeat SMJ, then…

3. If it’s not feasible to join the required party, what can you do? Rule 19(b) Unfeasible joinder:

o If joinder unfeasible, court decides if in “equity and good conscience,” case should proceed nevertheless? Court must consider the following factors:

To what extent judgment in party’s absence might prejudice him or existing parties (threat must be real, not theoretical)

Extent to which protective measures in judgment, shaping of relief, or otherwise might avoid or lessen the prejudice to him or existing parties.

Whether a judgment in non-party’s absence will be adequate relief to existing parties. (could judgment be nullified by later litigation?)

If P will have an adequate remedy if action is dismissed for nonjoinder.o If required but unfeasible = case dismissed, or

4. If the party is Not required?- D can’t force it! = joinder denied, case proceeds w/o partyRequired? If so>

Rule 19(a)Unfeasible? Rule 19(b)

Use analysis when required party absent (cannot be served):

1. Can be served, does not destroy SMJ?: a) No complete relief or

If unfeasible in equity and good conscience- should case proceed anyway? Consider:

b) Person’s interest: Prejudice to current or absent party?

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Impaired or… Can court lessen prejudice? Current parties face unfair exposure Adequate judgment in req. party’s

absence? Adequate forum/remedy if dismissed?

If required but unfeasible=indispensable party and suit must be dismissed.

Schwartz v. Swan: Schwartz wanted to join Ds from 2 separate accidents; Ps may join unrelated Ds when a single injury arises out of a series of events or transactions. Litigation strategy! Joining Ds = less expensive litigation, prevents D from putting blame on absentee D.Haas v. Jefferson National Bank: Bank unsure who shares go to, don’t want to issue them twice and double pay, want to force jointure of both parties to decide owner of stocks and pay once. Indispensable party: persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or that their absence would make the final decree wholly inconsistent w/ equity and good conscience. Temple v. Synthes Corp . : Device in man’s spine broke, wants to sue manufacturer separately from Dr. and hospital. Manufacturer moves to dismiss for failure to join necessary parties under Rule 19. Joint tortfeasors are not necessary parties to be joined under FRCP 19. They are permissive parties. **Often, the law of the forum affects indispensability.Alignment/insertion of the new party: Where do they go? As P or D?Rule 19(a)(2) party aligned by court reflective of proper litigation reality, could affect diversityOther R 19 logistics:

Venue objections : 19(a)(3): if required/necessary party objects to venue, and the joinder would make venue improper, joinder will be denied

Nonjoinder reasons: 19(c): If pleader knows required party exists and doesn’t join them, have to id the party to court and explain why they are not joined.

Failure of R 19 Joinder- 12(b)(7) Dismissal: nonjoinder of required party is 12(b) pre-answer defense, but Indispensability/unfeasibility can be asserted at ANYTIME.

1. do we really want joinder?2. is the joinder proper under procedure rules? 3. Are personal jurisdiction and venue proper for the joinder?- Check R19 for new parties.4. is SMJ proper for the joinder?

1367 analysis, allowed under 1367(a) because of same case or controversy. 1367 (b), w/ respect to FQJ- YES, 1367(b), for diversity, “takes away” jurisdiction if joinder is inconsistent with § 1332 when

(A) plaintiff is asserting claim against the Rule 19 party or (B) the Rule 19 party would enter the case as a co-plaintiff or (C) “contamination”(?)

Claims by existing Ds seem to have supplemental jurisdiction, but not express.Rule 42: Consolidation; Separate Trials- way to fix bad joinder

a) Consolidation: if actions with common question of law or fact are pending, court can:i. Join for hearing or trial any or all matters at issue;

ii. Consolidate the actions; oriii. Issue any other orders to avoid unnecessary cost or delay

b) Separate Trials: Not Severance, but separate triasl, for convenience, to avoid prejudice, or to expedite or economize court - but it must preserve any federal right to a jury trial.

CLAIM JOINDER BY DEFENDANTS: By D against existing parties, FRCP 13: Counterclaims & Crossclaims: 2 types of Counterclaims:

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1. Compulsory counterclaims 13(a): Must be brought as counterclaims, or the right to relief on those claims is lost forever. Policy: “To prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of a common matters.” Southern Const. Co. v. Packard “Bring it now or don’t bring it at all.”Counterclaim is COMPULSORY if:

a. It existed at the time original pleading was served, and ...b. It arises out of the same “transaction or occurrence” as the opponent’s claimc. UNLESS (exceptions):

i. CC necessitates joinder of 3rd parties that court cannot acquire jurisdiction for its proper adjudication.

ii. CC is subject of another pending action at time the action in which the CC should be asserted was filed.

iii. Opponent’s claim is in rem and another CC is assertedd. Well established that cts have supp. juris. over compulsory CCs.

2. Permissive counterclaim 13(b): May – at the claimant’s option – be brought as counterclaims, or may be brought later in a different lawsuitCounterclaim is PERMISSIVE if:

a. It is not compulsory. (E.g., the counterclaim does not arise our of same “transaction or occurrence”, or is subject to exceptions.)

b. CCs not arising out of the same transaction or occurrence as opponent’s claimc. R13 applies “transaction or occurrence” test but 1367 applies “case or controversy” test

= claim can fail the compulsory CC test (thus becoming permissive) and still meet the 1367 test!

Effect of a counterclaim: Under Rule 13(c): o Not only may diminish the opponent’s claim ... no affirmative relief.o May also claim relief exceeding in amt or different in kind than what opponent seeks.o SOL: stops on any CCs once P files claim against D, but if P files after SOL on CC has

run, possible that compulsory CCs may proceed, but not permissive. Resuscitation and omitted counterclaims:

o 13(e): If claim matures or is acquired after service of pleading, a supplemental pleading may be filed.

o 13(f): If a counterclaim is otherwise omitted, the court may grant the pleader permission to add it by amendment.

Counterclaim logisticso 13(h): additional parties may be joined to counterclaim, under R19 and 20o 13(i): court may order separate trial/judgment even if main part of case pending

When is all of this proper? *Use same formula as joinder by claimants:1. Do we really want the joinder?2. Is the joinder proper under the procedure rules? (almost anything can be added!)3. Is personal jurisdiction & venue proper? (already established for original claim)4. Is subject matter jurisdiction proper for the joinder?

a. Is there independent SMJ?i. Is there diversity?

ii. Is there FQJ?iii. If neither, is there supplemental?

Does Supplemental jurisdiction 1367 apply in Rule 13 Counterclaim cases?

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In Fed Questions lawsuits and Diversity lawsuits? Yes ... IF: the State claims are “so related” to the federal claims (compulsory for sure, permissive unlikely but possible)... § 1367(b) doesn’t “take away” any jurisdiction doesn’t include rule 13.

o 1367(a) supp J includes joinder of new claims: must be “so related” as to be same “case or controversy” = GRANTS (always to CCs), even if don’t meet amt in cont.

o Supp. Jur. does NOT extend to permissive counterclaims.o 1367(b): exceptions don’t include Rule 13

Dindo v. Whitney: P driving D’s car, D puts hand through steering wheel, P didn’t know he could sue for contributory negligence. Counter Claims not asserted in prior action may be waived by settlement of the action. Purpose of CC is to prevent multiplicity of actions and to resolve related disputes in a single case. (If cases aren’t joined and % of negligence isn’t decided, insurance co will have to pay double, since awards won’t be reduced by contributory negligence) Judge allowed for 2nd lawsuit to continue b/c Dindo didn’t realize that he could have sued, it was an honest mistake. Carteret Savings & Loan Assn. v. Jackson: get rich scheme w/ yacht and recourse note. When D is defaulted for failure to file a pleading, the default applies to whatever the party should have pleaded. P still wants $ not covered by boat sell, so they sue in MA. D then choose to file a CC saying fraud, and other shit happened. Court said you have to bring a CC in a reasonable time. Purpose in FRCP 13 besides concern for courts- interest in P having a complete and final resolution of the essential matters of litigation*Curveball: Holmes Group v. Vornado Air Circulation

Can P piggyback on D’s CC to rescue original claim re-framed as a compulsory CC?o FAILS under the “well-pleaded complaint rule.”!!!!o Because: CC appears in D’s answer, it cannot be a source of FQJ.

CROSSCLAIMS FRCP 13(g): asserted against co-parties, no new party added. Must either:o Arise out of same transaction or occurrence that is subject matter of original action (or

existing CC, if one is filed), oro Relate to any property that is the subject matter of the original action.

NO compulsory crossclaims: strategy–Ds usually don’t shoot at each other in P’s case. Crossclaims only proper between Ps after D asserts Counter Claim against them. 13(h) Additional parties can be added to CCs under Rules 19 & 20 If SOL on crossclaim has lapsed before P files action = barred!

Logistics: Is Crossclaim proper? Same steps as counterclaims:Does Supplemental Jurisdiction apply in Rule 13 Crossclaim cases?:YES

1367 (a) supplemental jurisdiction includes claims involving joinder of new claims:o Must be so related to same case or controversy

1367(b) exceptions don’t include Rule 13

IMPLEADER: THIRD PARTY DEFENDANT (TPD) best way to remember is Markivika.FRCP 14: D brings in 3rd party & overrides P’s party structure, Device:

Defending party may add a new party to P’s lawsuit through 3rd party impleader so long as new party:

o “Is or may be” liable (includes contingent claims) to the defending party… claims that will be permitted only if a contingency first occurs. D1 found guilty, so they want to shift all or part of that guilt to third party.

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o “For all or part” (only contribution or indemnity claims) of P’s claims against D. Contribution : allows one co-negligent party to seek reimbursement from other

co-negligent parties. Indemnity : allows a party who is not actually responsible (but still legally liable)

to seek reimbursement from party who is responsible.o Inappropriate if TPD’s liability to TPP(third party plaintiff, or original defendant) is

direct instead of derived from D’s claim Timing: Any time after commencement of the action-

o Without leave (permission) of court : w/in 14 days after service of the original answero W/ leave of court : anytime after, by motion upon notice to all parties of action.

Procedure: Defending party serves new party with summons and complainto TPD responds with Rule 12 defenses, counterclaims, crossclaims, serves them to TPP

Including defenses to original P’s claims Motivation for TPD to help TPP defeat P, can assert R12 defenses that the TPP

missed. Who may implead?:

o Original D- R14(a)(1): new party “is or may be liable” to her for “all or part” of the original plaintiff’s claim.

o TPD: R14(a)(5) if new party is/may be liable to him for all/part of D’s claim.o Original P: R14(b) if a CC is asserted against original P, she can implead.

POLICY: efficiency, judicial economy, fairness to litigants, avoids circuitous actions, eliminates time lag btwn P’s judgment against D and D’s judgment against TPD.

Adjustments: R 14(a)(4) Any party may move to strike/sever/separate 3rd party claim. How to determine when an impleader is appropriate under 1367?

1. Do we really want the impleader? Might not if parties will argue w/ each other, basically arguing case for P.

1. Is the impleader proper under the procedure rules? R142. Is personal jurisdiction (must be obtained) and venue proper?

i. Fed cts can assert pers juris over TPDs served w/in 100 miles of court3. Is subject matter jurisdiction proper in the joinder?

Is there an independent basis? **If have to look to 1367,- Imp. to understand

1367(a) goes to new parties that relate to same case or controversy. 1367(b) DEPENDS! If FQJ is original basis then YES, no 1367(b)

carve out. If Diversity AND joined by D, then YES because no 1367(b) carve out,

BUT if joined by P, then ONLY if complete diversity is preserved because of 1367(b) carve out, otherwise it’s cheating!!

2 Other Types of Impleader: once party implead into suit, other parties may assert claims related to same transaction or occurrence to new party. Problems come w/ jurisdiction.

Upsloping claims : Rule 14(a)(3) original P asserts claims against TPD that arise out of the same transaction or occurrence as the original. Supp. Jurisdiction? If FQJ – YES, if diversity

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P D

TPD

jurisdiction and joined by D = yes (no carve out), but if joined by P = only if complete diversity is preserved.

Downsloping claims : R 14(a)(2)(D) TPD shoots against P claims that arise out of same transaction or occurrence as original claim between P and TPP, TPD can sue P & rely on 1367(a) in div case but must be related to “case or controversy.”

Markvicka v. Brodhead-Garrett Co.: student injured by jointer machine in shop class, sues manufacturer (D & TPP), who wants to implead school. FRCP 14(a) permits joinder of party who may be liable to the defending party for all or part of the plaintiff’s claim. Owen Equipment & Erection Co. v. Kroger: man electrocuted by power line, company amended to be added to Ds defeated div. jur. after mistake about citizenship. In an action based on div., P may not assert a claim against a TPD when there is no independent basis for federal jurisdiction over that claim. Supp. Jur. when P and TPD are co-citizens violates complete diversity.

So does Supplement Jurisdiction §1367 (“federal helper statute”) apply in Rule 14 Sloping cases:

- In Fed Question lawsuits? Yes, IF claims are “so related”- In Diversity lawsuits? Yes, IF claims are so related to the federal claims, then ... if

claims are made BY and impleaded party, there is no §1367(b) “take away”. If claims are made by plaintiff AGAINST an impleaded party, then only if not inconsistent with § 1332.

Summary: Joinder by Defendants: Against P – assert Counterclaims (compulsory or permissive, R. 13(a)-(f)) Against co-D’s – assert Crossclaims (same transaction or occurrence, R. 13(g)) Against TPD’s – assert Impleader (is or may be liable for all or part, R.14(a)) New D’s / P’s – compel joining of necessary and indispensable new P’s or D’s (R.19)

INTERVENTION FRCP 24: someone not a party to action wants to join to protect his interests. Absentee overrides P’s party structure.

2 Types of Intervention: (both may be granted by statute)1. Of Right : 24(a) avoids harm to absentee, joinder must be allowed where:

Unconditional right by federal statute, or Intervenor claims (1)interest relating to the subject of the action…

& disposing of action may (2)impair ability to protect her interest & interest is (3)not adequately represented by existing parties

2. Permissive : 24(b) joinder may be allowed where: Conditional federal statutory right to intervene, or Intervenor’s claim or defenses have a common question of law or fact, But…Court can deny if:

Joinder would cause an undue delay in adjudication Or prejudice to the existing parties’ rights.

Party must still be an RPI! Rule 24 intervention is not compulsory/forcedProcedural Hiccups of rule 24: timeliness and constitutional notice.

Timeliness- required, but No specific period set, act promptly. Discretion: 1) length of delay, 2) prejudice to parties, 3) prejudice to intervenor, and

4) other fairness factors. Rule 24(c) Notice and pleading required: Logistics:

1. Intervenor serves motion on all existing parties.

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2. Intervenor chooses her side, states intervention grounds, and submits a pleading setting forth the intervening claim or defense.

3. Constitutional challenges- must notify affected government. FRCP 5.1 1367 Analysis: automatic personal jurisdiction and venue because intervenor is consenting by

trying to intervene. SMJ?o If FQJ, can get ino If Div, exceptions include non-diverse claims (1) by Ps against parties joined under

Rule 24 and (2) by parties joined as Ps under Rule 24 (same as R 19) Supplemental Jurisdiction: usually supports of right, but generally rejects permissive Amicus Curiae “friends of the court” are not interveners. Seek permission to argue.

INTERPLEADER: FRCP 22, 28 USC 1335(jurisdiction), 1397(venue), & 2361(process & procedure): determines right to property held by usually disinterested 3rd party, stakeholder, avoids multiple liability. D forces other parties into litigation, but must originally show court fear of multiple liability or litigation regarding a single fund or property interest under its control. 3 steps in Interpleader:

1. D identifies the “shooters” and forces them into litigation, must be adverse claimants and their claims against stake must be mutually exclusive.

2. D takes the loot and gives it to the judge, not required under R22, only 28 USC 1335.3. Litigation against D continues. D doesn’t have to worry about a competing claim later.

Interpleader Pure/true interpleader : stakeholder has no claim (ex. bank in Haas). Nature of an interpleader : stakeholder has a claim over the stake.

New York Life Ins. Co. v. Dunlevy, US 1916Ins. policy: dad, daughter, and store w/ judgment against daughter all claim rights to ins. policy. Ins. doesn’t want to pay double. Ins. Co. was forced to pay twice because after being tried in Penn., the daughter brought action in Cali. claiming that Penn. Ct did not have jurisdiction over her. As a result, Congress passed Federal Interpleader Act (USC 1335, 1397, and 2361) which gives SMJ over interpleader claims to fed ct, who has personal jurisdiction over everyone.

Rule Interpleader FRCP 22 Statutory interpleader 28 USC 1335,1397,2361Applies where:

Persons have claims against P which-o Expose P to double or multiple

liability Court deposit: court may order the

thing deposited into court.

Applies where: Persons have claims against P which-

o Involve a thing of $500 value or $500 or more obligation;

Court deposit: P must deposit the thing to court.

Jurisdictional basis: Regular diversity of citizenship

o Every P is diverse from every D Strawbridge

FQJ

Jurisdictional basis: 28 USC 1335 Special/minimum diversity:

o Any claimant is diverse from any other claimant = diversity

o Need not be complete, and not on either side of the V

Venue: Regular rule (all D’s reside or

substantial part of omissions/property)

Venue: 28 USC 1397 Special rule: any district where one or

more claimants resideService of process:

Regular service procedures Rule 4

Service of Process: 28 USC 2361 National Service of Process Pennoyer: jurisdiction over thing.

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Pan American Fire & Casualty Co. v. Revere: tractor trailer hit school bus and caused accident behind it. Tractor insurer wants to invoke interpleader. Both FRCP 22 and statutory interpleader are permitted when there is any possibility of multiple liability, even for unliquidated tort claims. State Farm Fire & Casualty Co. v. Tashire: Greyhound bus and pickup truck collide. State Farm insured truck driver and filed for interpleader. While ins. doesn’t have to wait until claims against insured are liquidated before invoking interpleader, they can’t use this to shape the entire course of litigation.Under Rule 22, a defendant can invoke interpleader, USC 1335 is silent on this.Does 1367 supplemental jurisdiction apply in R 22 or statutory interpleader cases:

1367 (a) must be related to same case or controversy 1367 (b) works under (b) because neither Rule 22 nor section 1335 are exceptions.

DISCOVERY-do the discovery review problem on pg. 412!The pre-trial process of compelling an opponent or 3rd party to provide information in civil cases***USE this + expert and pretrial as Discovery MATRIX- like joinder!!!!!!!!!!Four types of discovery: initial disclosures, discretionary discovery, expert disclosures, and pretrial disclosures (all mandatory except discretionary)1. Initial disclosures-26(a)(1)Automatic discovery w/o waiting for request, parties must provide:

1. Identity of possible supporting witnesses; contact info, summary of what they’ll say, but only have to id of people you “may use” in case, unless used solely for impeachment

2. Copies or identities of supporting docs; copy of/description by location/category, in possession/custody/control of disclosing party, unless used only for impeachment.

3. Computation of claimed damages; how P computed damages, what categories, including documentation on which damages and injury are based,

4. Any insurance policies, produce for inspection and copying These are obligatory UNLESS, you are exempted from initial disclosures under Rule 26(a)(1)

(B)- (CHECK!!), or parties or court agree otherwise. Timing: 26(a)(1)(C-D) generally at or w/in 14 days of R 26(f) conference, but it party

served/joined later, w/in 30 days of service or joining, but no later than 21 days before scheduling conference w/ court), parties must- confer to discuss

1. Nature/basis of claims and defenses2. Possibility of prompt settlement3. Making initial disclosures4. Preserving discoverable information5. Developing a discovery plan

Must make even though- (a) your own investigation incomplete, (b) challenge sufficiency of opponent’s disclosure, or (c) opponent has not yet made disclosures. 26(a)(1)(E)

SC RULES OF CIV PRO DO NOT HAVE AN AUTOMATIC, MANDATORY DISCLOSURE REQUIREMENT

Law Enforcement Alliance of America, Inc. v. USA Direct, Inc.: USAD provided direct mail services for LEAA, agreement expired but continued pay-as-you-go, LEAA took $$ from escrow account and asked for more in suit, USAD countered for what it was owed under several invoices, LEAA produced 4 invoices late in trial (after it failed to do so in mandatory disclosures) = the “may use” test includes things for motions as well as trial. LEAA used invoices in motion for partial SJ claiming they were unsigned, sanctioned.

2. Discretionary discovery

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a. INTERROGATORIES : R 33 Written questions that must be answered under oath- unless they are objected to. To whom: party (cannot be directed to non-party witness). Limits: unless parties agree or court otherwise orders, only 25 questions (including subparts). Timing: asking party- anytime after 26(f) conference. Answering party: w/in 30 days of service, unless parties agree otherwise. Textual answers/direction to documents/records. May ask for opinion or contention. Answers used w/in limits of FR of Evidence. If you fail to comply with this any objection is deemed waived. Objections:

i. Attorney must sign them (ethics)ii. Objections must be stated with specificity.

iii. Any objection not timely asserted is waived unless excused by court.iv. Asking party may request the court to rule on propriety of objections or failure

to respond = motion to compel (Rule 37) SC Rules of Civ Pro Differ: “Standard interrogatories” may be served by anyone. Court may, by order, permit more. When case involves $25,000 or more, up to 50 questions (including subparts) may be served.Outley v. City of New York: constitutional claims from alleged police brutality, P’s 2 key witnesses precluded because of failure to supplement w/ contact info, appellate court reversed because it was done in good faith and was an accident. 4 factor test for preclusion of a witness:

1) Explanation for failure to name the witness2) Importance of the testimony3) The need for time to prepare to meet the testimony4) Possibility of a continuance

b. PRODUCTION REQUESTS : Rule 34: demand to 1)inspect 2)copy 3) test or 4) sample documents, things, or electronically stored information (ESI); Or to enter onto land to inspect, measure, survey, photograph, test or sample; To Whom: party or non-party; limits: no numerical limits in fed. ct.; Procedures:

i. For requests: Ask with specificity, List either specific item or category of items, Set a reasonable time, place, and manner for inspection

ii. For Responses: in writing, agree to produce or object, produce as originally kept, or group itemssd to respond to the requests (more work).

R 34 Issue = E-discovery: requests can include ESI, may have to be translated into a reasonably usable form by answering party, if not form in which it is usually maintained, but only need to produce in one form.Timing: requesting party: production requests cannot be served until after 26(f) conference; answering party: w/in 30 days of service & production to occur as specified in request or as otherwise agreed.

A. Farber & Partners, Inc. v. Garber: P requested production of docs from D, but D gave broad, boilerplate objections to almost every request. P requested 200 docs and D only produced 650 pgs., D must conduct a reasonable inquiry; when is a doc or thing w/in your possession, custody, or control?

o You have actual possession, custody, or control, oro You have the legal right to obtain it on demand.o Encompasses things in possession of employees, agents, and representatives because

you have the right to demand that they produce those obligations.Duty of reasonable inquiry:

o Duty to search and checko Institutional parties must insist employees/ agents conduct reasonable search.

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Duty to preserve:o Duty to preserve potentially relevant evidence, if litigation is filed or imminent.o Imminent determined by whether or not court thinks a reasonable person would have

thought litigation was imminent.o Destroying/discarding relevant evidence during this period is “spoliation”, punishable.

Linnen v. A.H. Robins Co., Inc.: wrongful death fen/phen case, P’s motion to compel production of back-up tapes and sanctions for spoliation of evidence, unfair to let Wyeth reap benefits of technology while simultaneously using it as a litigation shield, Sanctions for destruction of evidence may be: dismissal of case, exclusion of evidence, or jury instruction on the spoliation inference=permits jury to infer that party who destroyed potentially relevant evidence did so because it realized the evidence was unfavorable, Significance: understand the devastating real-life consequences of e-discovery mistakesRule 37(e) Failure to provide ESI: Absent exceptional circumstances, no sanctions for failing to provide E.S.I. lost as a result of routine, goodfaith operation of electronic info system.

c. REQUESTS FOR ADMISSIONS : Rule 36 written demand to admit a matter as true; who: only a party; When: not until R26 conf; What can be requested to be admitted: 1) statement of fact, or 2) opinion of fact, or 3) statement or opinion of the application of law to fact (ex. admit running a stoplight like you did is illegal), and/or 4) genuineness of a document. *Fact does not exist until proven. Procedure: in writing, each matter requested separately, served under rule 5 (after orig. complaint) special service:

Served on the party or, if represented, her attorney And also served on every other party, And such service can be personally delivered, left at office, dwelling or usual

place of abode, w/ clerk of ct, mailed to last known address, or if consented in writing- by other means (ex. electronically)

Special Filing rule: must be filed in court: w/in a reasonable time after service, and must be filed with a “certificate of service”; but Following need NOT be filed unless ct orders or until “used in the proceeding”:

initial disclosures depos interrogatories requests for document production requests for admission

Responding: each matter deemed admitted unless written answer or appropriate objection signed by party or atty-served w/in 30 days. Reasons for objections must be stated, responses must admit, deny, don’t know: detail why deny or don’t know. Partial responses may be used, lack of info denials permitted – but only after reasonable inquiry/inability. Requesting party can ask ct to determine sufficiency of answer, R36(e)(2) wrongfully refusing to admit: may result in order to pay expenses incurred by other party in proving matter – unless good reason to refuse admission existed.Effect of admission:

Conclusive: admissions under R36 conclusively established for the case. Only here: admissions may only be used in pending case Withdrawing and amending: court may permit admission to be withdrawn or

amended, if there is not prejudice to the propounding party.Asea, Inc. v. Southern Pacific Transp. Co: transformer damaged during shipping process, D continually answered admissions with neither admit nor deny but it had made reasonable inquiry, info incomplete, and investigation continues, after some depos of D’s employees, P aware that D had some

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of this info. *You can’t say “did reasonable inquiry and don’t know” unless you have actually done a diligent job in examination in not only your info, but the info available to you. If there was a way for you to know/learn, then you have to do it. Need to answer the question. Allowing a party to avoid admitting or denying a proper request for admission just by tracking R 36(a) would encourage abuse of discovery process. “Don’t know responses”=must make a reasonable inquiry and info readily available must be insufficient to allow you to form an answer.

d. PHYSICAL AND MENTAL EXAMINATIONS : Rule 35: Who: party or person in custody or under control of a party, When: no automatic permission! ct order necessary in absence of voluntary; Conditions: only upon both: 1) good cause and 2) physical or mental condition of examinee is “in controversy.” If examinee asks for copy of examiner’s report, examining party can then request any “like report” previously or thereafter made, of the same condition; motion and notice must specify time, place, manner, conditions, scope of exam, and performer; waiver 35(b)(4).

Chaney v. VentureTransport, Inc.: P injured in car accident, alleges injuries, D moves to compel exam by specific Dr., moving party usually does not have absolute choice of Dr., however D deserves as much deference in choice as P. “Good cause” is generally shown when the litigation involves claims for personal injuries allegedly caused by D’s negligence.Nyfield v. Virgin Islands Telephone Co: P seeks damages for mental anguish, loss of enjoyment of life, humiliation, embarrassment, and loss of reputation, Put mental condition in controversy, D can choose Dr, despite bias, D must notify P of specifics, remember: Overbroad language can expose client to psychological examination if seeking emotional/anguished damagesPena v. Troup: girl w/ neurological injuries from birth, moved during MRI so bad picture, P argues too dangerous to sedate her for repeated procedure. *When safety is at issue in exams: cts follow burden-shifting approach—P must prove prima facie danger, then D must prove necessity and safety, either through experts or standard medical texts. Would be unfair to allow P to rely on the very condition of which he complains to defeat D’s ability to prove that he did not cause that condition.

e. DEPOSITIONS : Rules: 27 (early/late deps.), 28 (dep. officers), 30 (oral deps.), 30(b)(6)- org. deps., 31 (written questions), 32 (use of deps.): preserving the testimony of a witness through a transcribed Q&A session conducted under oath

i. R 30 Depos by oral examination: parties and non-party witnesses, in-person or electronically, limits (absent leave of court):

Only 10 depositions may occur in a case, No deposition may last longer than 7 hours, No person may be deposed a second time. No deposition of a person confined in prison

Scheduling Procedure : “notice of deposition,” Served on all parties (FRCP 5)1. Subpoena served on non-party witnesses 2. With reasonable advance notice, stating time and place of the deposition,3. Listing any materials to be produced, and 4. Specifying the method of recording for the testimony

Procedure for conducting deposition:1. Conducted before apptd/designated officer who administers oath to witness2. Witnesses are examined and cross-examined, as permitted by R of Evid.

Objections During Depositions:1. Form : stated concisely in non-argumentative, non-suggestive manner.2. Preservation : some must be asserted immediately or are waived, deposing

party want to correct immediately, ex. Q structure

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3. Substantive objections : other objections- those going to substance- can be asserted later at trial (ex. competency, relevancy, and materiality). No need to preserve on record; can’t be cured by rephrasing Q.

4. Instructions not to answer : attorney may instruct client not to answer a Q, but only if necessary to (a) preserve a privilege (ex. attorney-client), (b) enforce a court-ordered limitation, or (c) preserve a motion to court.

5. Frustrating the depo : conduct that impedes, delays, or frustrates the fair examination of a witness punishable through sanctions.

Motions during depositions: If examination being conducted in bad faith, or to unreasonably annoy, embarrass, or oppress the deponent or a party, the court may: (a) end the depo, or (b) limit scope and manner of the procedure.Completing depos: Stenographer transcribes depo, certifies oath, seals the original, and delivers it to scheduling attorney. Any exhibits are attached.

If the deponent or party requests, may review or make changes (narrowly permitted), and then sign a copy of the transcript.

Any party may get a copy of transcript upon payment.Organizational Depositions-Rule 30(b)(6):

When deposed, an org. must designate a rep. to speak for it, and may set forth the matters on which the representative may speak.

Rep must get smart to testify on matters known or reasonably available to org. May depose person twice, under 30(a) and 30(b)(6) if they are chosen as rep.

Uses for Depos : testimony can be (1) read to the jury in place of live trial testimony, or (2) used to confront a witness giving inconsistent trial testimony.Threshold requirements: Depo testimony cannot be used if (1) rules of evidence do not permit it, or (2) the party against whom it is used was neither present (or represented) nor on notice of the depositionWhen Used: live testimony gen. required, but/exception depo testimony may be used:

To contradict or impeach other testimony, or If given by a party, for any purpose chosen by an adverse party, or For any purpose, if the witness is dead, more than 100 miles away, physically

unable to attend trial, unresponsive to a subpoena, or For any purpose, when exceptional circumstances so requires.

What portions are used: if party offers only part of depo into evid, adverse party can introduce any other part that should fairly be considered w/ it to keep it in context. Parties notify each other before trial of chosen depo parts to be read.*Can’t use a deposition in place of live testimony if witness is available to come into court room. But there is an exception for doctors so they can see patients.Perpetuating Depositions: FRCP 27 If necessary to preserve witness testimony, get court order to take depo before a lawsuit is filed or during a later appeal. Substance of intended testimony conveyed to all adverse (or future adverse) parties before the depo.Before whom do you take depositions; FRCP 28

w/in US : before a person (a) authorized by fed law to administer oath, (b) authorized by state law to administer oath; or (c) appointed by court.

Outside US : abide by treaties, or letters of request, or on notice before an authorized person, or by a court-commissioned person.

Depositions by written questions: FRCP 31 Alternative depo procedure : deposing party serves Qs, then adverse party

frames cross-Qs. Counsel for parties then prepare re-direct or re-cross Qs.

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Court reporter asks Qs to deponent & takes testimony. Usually used for non-parties, since parties have to submit to oral depos.

3. Expert disclosures : Rule 26(a)(2): expert’s non-percipient opinions must be: (1) reliable and (2) relevant, founded on appropriate (3) qualifications, and (4) assist trier of fact to understand evidence or determine a fact at issue; Types of experts:

f. Retained or specially employed to provide expert testimony and who may testify at trial: this type of expert can be deposed under 26(b)(4), must automatically disclose 26(a)(2) following info 90 days before trial:

i. Identity, qualifications, and publication (last 10 yrs.)ii. Written report, w/ all opinions to be expressed & their bases and reasons,

iii. Data and info considered by the expert,iv. Any exhibits used as summary or support,v. Compensation and 4-yr.testimony history

g. Retained or specially employed in anticipation of litigation or preparation for trial but not expected to testify at trial: no automatic disclosures, ordinarily cannot depose, exception: 26(b)(4)(B)(i-ii) provided in R35(b) or showing exceptional circumstances making it impracticable to obtain facts or opinions on the same subject by other means.

h. Informally consulted: not paid or specially retained, no automatic disclosures or discovery rule, maybe identity under Ager, but rarely anything else.

i. Expert whose info is not acquired in preparation for trial: ex. eyewitness, automatic disclosures n/a except for 26(a)(1)(A)(i), freely discoverable

Disclosures made 90 days before trial, or 30 days if used only to rebut or contradict.Ager v. Jane C. Stormont Hospital & Training School for Nurses: during labor mother dies and baby left a quadriplegic, father sues 22 years later, P’s attorney refused to identify experts “retained or specially employed” but not testifying at trial and put in contempt of court. Ager Test: *Status of each expert determined ad hoc considering these factors:

1) Manner in which the consultation was intiated;2) Nature, type and extent of info or material provided to, or determined by, the expert in

connection w/ his review;3) Duration and intensity of the consultative relationship; and4) Terms of the consultation, if any.

4. Pretrial disclosures: 26(a)(3) Timing- at least 30 days before trial (opponent then has 14 days to object, or have objections deemed waived):

Witnesses : name, address, and telephone #, id those party intends to call and those who might be called if need arises.

Transcript designations : of any witness expected to be presented by depo Exhibits/docs : party expects to/might offer; opponent must object now.

Timing: no discovery, absent court order or agreement of parties, until 26(f) conference. Pretrial Conferences and Orders: FRCP 16: w/ judge, parties produce scheduling order w/ time limits for joinder of claims or parties, amendment of pleadings, filing motions, and completing discovery. Ct may hold a final pretrial conference to formulate a plan for trial, 16(d). Used to prepare for/streamline trial and to encourage settlement. 16(b) requires trial ct, after getting 26(f) report, to issue scheduling order w/in 120 days of complaint filing. Pretrial conf order supersedes pleadings. Amended if: justification shown, to correct prejudice to opposing party.

Walker v. Anderson Elec. Connectors: P sued employer for sexual harassment, at pretrial conference she abandoned injunctive and declaratory relief, just sought damages. P won case, but found she didn’t suffer monetary damages and was not allowed to amend the pretrial order. Rule 16(e) requires that a pretrial order only be modified to “prevent manifest injustice.”

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Sanctions: Discovery abusea. R 11(d ): does NOT Apply to disclosures & discovery requests. b. Rule 26(g) : signing and certification (discovery equivalent of R11), every discovery

request, response, & objection must be signed, certifying that it is:i. Consistent with rules

ii. Not interposed for an improper purposeiii. Not unreasonably or unduly burdensome or expensive

26(g)(3) Sanctions are mandatory, if a certification (signing) violates this rule, the court must impose sanctions upon the signor, the party, or both.

c. Rule 37 : motion to compel discovery: proper when: iv. Partial or incomplete responses to discovery or automatic disclosures, butv. Permitted only after a pre-filing good faith attempt to obtain info is tried.

Court may: 1) grant motion, and compel disclosure or discovery, costs of motion shift unless a) no good faith conferral, (b) substantially justified or (c) other circumstances; or 2) deny motion, and enter protective order, costs of defending motion shift unless (a) substantially justified or (b) other circumstances. 37(b) if ct order later disobeyed, may:

vi. Direct that certain matters are established/admitted for the case,vii. Preclude certain evidence or ability to support/oppose claim or defense,

viii. Strike pleadings, stay proceedings, dismiss in whole/part or enter default judg.ix. Order payment of expenses

37(c) failing to disclose/supplement discovery responses generally precludes party from using undisclosed witness or info. 37(d) If complete failure to attend depo or answer discovery, court may enter 37(b) sanctions w/o 1st entering a compel order. 37(f):e-discovery rule, if ESI lost due to routine, good faith operation of elec info sys, no sanctions- absent exceptional circumstances

d. Common law: civil (discharged after compliance) & criminal (no discharge) contempt: e. Other Penalties: malicious prosecution/abuse of process, perjury, obstruction of

justice, spoliation, and ethics violation.Washington State Physicians Ins. Exchange & Ass’n v. Fisons Corp.: Dr prescribed theophylline to girl which caused brain damage. Parents sued Dr. and Fison drug co. Dr. settled and agreed to remain as a party. A year later, parents get anon. letter saying that Fison knew of adverse reaction and claim this letter should have been produced in discovery, moved for sanctions. “smoking gun” docs case, court has to impose sanction under 26(g). Purpose of sanctions is to deter, punish, compensate, and educate.Holmgren v. State Farm Mutual Automobile Insurance Co: drunk driver hits 3 cars and leaves scene of accident (see pg. 17). P won a motion for atty’s fees under 37(c) for D’s denials during discovery of requests for admission. 37(c) allows recovery of extra attorneys fees incurred when the other party doesn't give required info; when good faith requires, a party shall specify so much of it as is true and qualify or deny the remainder.THE DISCOVERY PLAN:

R 26(d) Timing & sequence: R 26(f) conference 1 st !: generally, no discovery before. Sequence: absent a court order, discovery methods can be used in any sequence and regardless of discovery underway by any other party.FRCP 29: Discovery Stipulations: valuable for altering discovery procedures: unless would interfere w/ deadlines for end of discovery, hearing on motion, or trial, parties can agree in writing to alter discovery procedures, Anyway see fit=BROAD power.A.) SCOPE of Discovery: Rule 26: discovery of non-privileged matter relevant to claim or defense of any party. Can expand to non-privileged info relevant to subject matter of action, must not be admissible if reasonably calculated to lead to admissible evidence.

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Anderson v. Hale: white supremacist church leader accused of encouraging murder, want to check character, fitness Bar exam results, D argues relevancy, request relevant because any discovery that may lead to useful evidence is allowed.Anderson v. Hale: court vacated previous order due to accidental use of old rule, but P already obtained some Bar results, request was “relevant to the claim or defense of any party” (which gives the court authority to confine discovery) because it could help P prove conspiracy.

B.) PRIVILEGES: 26(b)(1) & (b)(5): privileged info usually is not produced, what is privileged usually determined by state law, ex: attorney/client (covers advice given- NOT facts!), physician/patient, clergy/penitent, and husband/wife; waiver: lost if not timely asserted; when claiming privilege a party must: 1) expressly make the claim and 2) describe the nature of the privileged info. If privileged info inadvertently produced – must be returned/destroyed, but receiving party can challenge in court.C.) WORK PRODUCT PROTECTION: What is “work product”?: memoranda, statements, mental impressions of attorneys not encompassed by “atty client” privilege, but still entitled to protection if prepared in anticipation of litigation, unless production is essential to adversary’s preparation, protection not absolute (protection does not extend to facts, just thoughts, ideas, and theories). R26(b)(3):

General rule : work product info generally protected from discovery. Defined : docs/tangibles prepared by party or its reps in anticipation of litigation. Exception : work product discoverable if (1) party seeking it has a substantial need for

it to prepare her case, and (2) is unable without undue hardship to obtain substantially equivalent information by any other means.

Exception to the exception : 26(b)(3)(B): mental impressions, conclusions, opinions, and legal theories of atty or other rep of party concerning litigation not discoverable.

Hickman v. Taylor: tug boat accident, lawyer interviews survivors in anticipation of litigation, P asked for summary/info of and D refused, Material obtained by counsel in preparation for litigation is work product of the lawyer, and even though it is not protected by atty-client privilege, it is not discoverable on mere demand w/o a showing of necessity or justification by the requesting party. Policy of work-product rule is to allow attys to investigate cases, whether favorable or unfavorable to a client, w/o fear that their preparation will be disserved by being forced to give that info to the opposing party.Holmgren v. State Farm Mutual Insurance Co.: D drunk, had multiple accidents and left the scene; after settlement P expressly reserved right to sue State Farm for bad faith in process of adjusting and settling claim, P later sued and wanted memoranda drafted by a State Farm agent concerning her claim. Work opinion may be discovered and admitted when mental impressions are at issue in a case and the need for the material is compelling. Privileges can be waived when a party puts them at issue. *Exception to the exception to the exception: mental impressions, conclusions, opinions, and legal theories of atty or rep are discoverable if (1) placed at issue in case & (2) need for them is compelling.

D.) PROTECTIVE ORDERS: R 26(c): for good cause court can issue a protective order to protect a party or non-party from annoyance, embarrassment, oppression, undue burden or expense; Good faith conferral; moving party must 1st confer w/ adversary to try to reach an agreement; remedy: ct can stop, condition, limit, seal, or perform discovery in private. More protections: court can limit frequency and extent of discovery if: it is unreasonably cumulative or duplicative, available elsewhere more conveniently or cheaper, there has been enough time for discovery already, or burden/expense outweighs possible benefit.E.) E-DISCOVERY LIMITS: Rule 26(b)(2)(B): General Rule: party may refuse to provide discovery of ESI from sources she ids as not reasonably accessible due to undue burden or cost. Court Challenge: If challenged, that party must prove info is reasonably accessible. If party carries this proof, ct may still order discovery upon conditions it sets.

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Rule 26 (b)(2)(C) slides: Behavior of person … etc.F.) SUPPLEMENTATION: Rule 26(e): necessary when truth of fact/circumstance changes; general rule: party must supplement its discovery to include later found info if: 1) party learns discovery is incomplete or incorrect materially and 2) additional correct material is not known to the other party. Affects all discovery devices.

Discovery from non-parties: Subpoena Rule 45: compels non-parties to give discovery (trial, depo, produce docs), Place of service: where case is pending or w/in 100 miles of place of depo (but must be w/in 100 miles of witness’s home or place of business); discovery party has duty to minimize burden and expense of non-party, if non-party does not respond they risk contempt.SOUTH CAROLINA DISCOVERY:

NO automatic disclosures! Standard interrogatories may be served on anyone, ct can permit more, when case involves

$25,000+, then can have 50 questions including subparts. New e-discovery fed rules not yet incorporated into SC rules, but original language is arguable

broad enough to include them. Physical/mental exams: none unless controversy exceeds $100,000, examinee’s physician can

be present, convenience of examinee & their physician considered in choosing location/time Requests for admissions: served on P after start and on D w/ or after service (D has 45 days to

answer), limited to 20 requests including subparts, except for doc genuineness requests. Depositions:

1. No small case depos: No depos w/0 agreement/court order if amt in cont < $10,000.2. Place of depo: where witness resides, is employed, or transacts business, or wherever

else ct directs. Parties may also be compelled to depo in cnty where lawsuit is pending.3. 10 Days Notice: at least 10 days written notice before a depo is conducted.4. 1-Year Retention Rule: 1 year after final termination of action in which depo is taken,

the transcript may be destroyed.5. Videotape Depositions: Are governed by special rule.6. Treating Health Care Providers: may be deposed and depo used if not available7. SC Rules of Depo Behavior: special 30(j) adopted by state sup ct:

A. Limits on Off-the-Record Conferences B. Limits on “Suggestive” Objections or Interjections C. Limits on Instructions-Not-To-Answer D. The Deposition “Document Rule” E. Panoply of Available Sanctions

ADJUDICATION W/ & W/O A TRIAL & A JURYSelecting the factfinder: 1) judge 2) jury or 3) panel of specially chosen persons, lawyers, expertsJURY TRIAL: Rule 38: Who: any party can demand jury. How: serving demand on all other parties w/in 10 days after service of last pleading (& filing w/ ct), What: can demand for some or all issues, Waiver: right to jury WAIVED if not timely & properly demanded, Re-Thinking: once demanded, can only be withdrawn w/ consent of all parties, Proper demands: if properly, timely demanded jury trial is convened unless there is consent to a judge-trial or court determines there is no “right” to a jury trial on demanded issues. When is and isn’t there a right to a jury trial?:

-6th amend is applicable to the states, however there is no holding making the 7th amendment applicable to the states. Thus, in a civil case in state court there is no federal constitutional right to a jury, though a state constitutional or statutory provision may ensure the right.

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The Right to a Jury : 38(a): right to trial by jury declared by the 7th amendment, or provided by fed statute- shall be preserved to the parties inviolate.

o 7th amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars , the right of trial by jury shall be preserved,

o When is a suit, a suit at common law?:o Common law pleading: 1) law: traditional legal relief w/ jury, 2) equity: petitioning for

royal intervention for “fairness,” decided by a judge.Chauffers Local, 391 v. Terry: action brought alleging that McLean breached collective-bargaining agreement and that Union violated its duty of fair representation, sought a permanent injunction requiring union and McLean to stop violations and give them seniority status back. Proceeds against Union, employees requested a jury trial. Union moved to strike jury request alleging that there was no right to a jury trial in a duty of fair representation suit. Remedy sought is legal in nature, therefore, respondents are entitled to a jury trial. Monetary relief may be deemed equitable when it is restitutionary or intertwined w/ injunctive relief.

**Justice Marshall’s test : examine both the nature of issues involved and relief requested:1. Did the action exist in 18th century England? If not, was there an analogous cause of

action in 18th century England? Does claim drive towards monetary relief (probably did exist at common law) or

towards forcing someone to do or not do something (not at common law)?2. Is remedy one at common law or in equity? (more important) what relief is sought?

Justice Brennan’s test (concurrence): inspect whether relief is “legal” in nature (as opposed to “equitable” in nature), and if so, the parties have a right to a jury trial. When there is a tie, it should be in favor of a jury trial.

Justice Stevens concurrence : Marshall makes case unnecessarily difficult, looks like attorney malpractice and that analogy is enough to warrant a jury here.

Justices Kennedy, O’Connor, and Scalia dissenting : Marshall’s analogy is incorrect, this seems equitable and jury should be denied, Brennan’s test can’t be adopted w/o rewriting constitution.

Modified in 3 ways: Dairy Queen v. Wood : Courts should look past the formalism of labels used in pleadings to

evaluate whether the claim is, in substance, “legal” or “equitable.” Even if a legal issue is raised in a predominantly equitable case, legal issue must go to jury.

Herbert Markman & Positek v. Westview Instruments : who would do a better job?When history and earlier case precedent do not provide clear answers, courts may weigh “functional considerations.”

a. Jury is more likely to be confused sometimes.b. The fact/law distinction may lead to conclusion that one judicial actor is better

positioned than another to decide the issue in question. Beacon Theatres v. Westover: When both legal and equitable issues are present in a case?

a. Jury right may be limited to part of a case, if so, the legal/jury will generally be tried 1st.b. The judge will decide the equitable issues.c. For preclusion theory reasons, you MUST start with the legal inquiry.

*Note: NO constitutional right to a jury trial in an action brought against US (unless a statute expressly provides it) because at common law there was no right to sue the sovereign. But in an action bought by the US against a private party, there is a right to a jury trial.SELECTING A JURY:

Federal juries : generally drawn from the same geographic region as federal court State juries : also, geographically drawn, but typically from smaller, more local areas.

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Changing jury sources : in rare instances, “pool” of prospective jurors may be expanded—or relocated—to avoid bias, familiarity, or other concerns.

How are potential jurors located? Reasonable cross-section : in Taylor v. Louisiana, U.S. Sup. Ct. ruled that juries must be

assembled from a reasonable cross-section of the population of the community. Sources : voter registration, licensed driver, and taxpayer lists. Most use composite of all three. Venire : once assembled, the group of prospective jurors is called the “venire” or “panel” “voir dire” of venire : venire members questioned by ct/lawyers/both—through “voir dire”—to

expose lack of qualification or bias & ability to be fair/follow what Judge tells them the law is. Challenges to the venire : members of the venire can be stricken in 2 ways:

1. Challenges for cause - any juror who cannot be impartial or fair may be stricken, Unlimited #, but must persuade judge that perspective juror needs to be excused.

2. Peremptory challenges - each party may unilaterally strike certain # of venire members of her choosing—historically, without any reason at all.

o 28 USC 1870: in fed civil cases each party peremptorily strikes 3 venire members (In SC you have 4 strikes)

o The mechanics : parties take turns, P usually starts.J.E.B. v. Alabama: complaint by state on behalf of mother for child support, D accused P of using peremptory challenges based on gender and thus violating the Equal Protection Clause of 14th amendment, D argued that Sup Ct reasoning in Batson v. Kentucky (forbid peremptory strikes based on race) should also forbid strikes based on gender, but he could discriminate because he was an individual, but that the state could not. Court ruled that Equal Protection Clause prohibits discrimination in jury selection on the basis of gender.

Peremptories are not constitutionally protected right, only a state created tool. Mechanics for Batson/J.E.B. objections :

1. Party alleging discrimination must make a prima facie showing of discrimination2. Striking-party must then offer legitimate basis for strike (which is not pretextual)3. Court assesses explanation, and rules on the objection.

**We don’t know if this applies just to state parties or to individual parties as well. O’Connor Concurring: holding is correct, but costly: peremptories help eliminate extremes of partiality, by their nature they are exercised w/o reason, and often based on lawyers’ intuition, an unexplainable reason. Now lawyers may not be able to strike jurors if they can’t explain their reasoning. Should be limited to peremptory strikes by the government. Kennedy Concurring: this holding is the start, jury deliberations should also be free from bias. Rehnquist dissenting: diff btwn race and gender discrimination should prevent Batson from extending to peremptory challenges based on gender. Strikes based on gender are not derogatory, whereas race strikes are. Scalia dissenting (joined by Thomas and Rehnquist): ruling puts all juror strikes based on any group characteristic at risk, necessity of a reason for a juror strike undermines the purpose of peremptory challenge, and can’t be replaced by voir dire. Gender matters, if it didn’t why demand that both be included?Snyder v.Louisiana, US Sup. Ct., 3-19-2008

Prosecutor’s peremptory striking of Afr-Am juror on basis of (1) nervousness and (2) rush-for-school concerns found pretextual, unverified by trial court, therefore improper under Batson.

Puts burden on dist ct to explain why they believe or disbelieve atty’s justification of challenge.Jury Size

Federal juries (rule 48) : no less than 6, and no more than 12. Unless otherwise agreed, verdicts must come from a jury of no less than 6

Criminal cases - may be larger S.C.R.C.P 48 - 12 person, unless otherwise agreed upon

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Jury deliberations: Instructions (rule 51) : parties may submit proposed instructions for ct to consider; opposing parties may object. Ct instructs jury on the law to be applied.

Ct comments: judge can comment to jury about evidence/witness in proper, limited conditions Types of verdicts (rule 49) :

o General verdict : simple, single-thought decisionso General verdict w/ interrogatories : simple decisions require jury to articulate specific

factual findings in addition to overall impressiono Special verdicts : no ultimate decision, fact-finding on specific posed questions.

Juror unanimity : Criminal cases: verdict must be unanimous, unless D agrees otherwise, Civil cases: (rule 48): verdict must be unanimous, unless parties agree otherwise

Juror Nullification : when jury impliedly or expressly disregards judge’s instructions on law, & gives a verdict inconsistent with the evidence or law (ex. mercy-killing cases)

o Criminal cases : nullification permitted only in favor of D. IF jury convicts D w/o necessary evidence, court must enter a judgment acquitting D.

o Civil case : verdict clearly against weight of evidence is disallowed and usually retriedControlling Improper Jury Conduct: Generally Fed.R.Evid.606(b): juror’s testimony about improprieties during deliberations is generally inadmissible to upset a verdict.

Why insulate juries from review?: verdict stability, protect jurors from harassment post-verdict, avoid prolonged litigation, insulate judgment from post verdict “second doubts”, sanctity of jury room

Exceptions (Fed. R. Evid. 606(b)) : testimony of extraneous prejudicial info or outside influences improperly brought to bear may be admissible to upset the verdict.

SC JURY: Right to trial by jury guaranteed in every case in which jury right was secured at adoption of state const in 1868. Peremptory challenges: in common pleas actions, parties each get 4 strikes

PRETRIAL DISPOSITION: Is a trial always necessary? Can cases be resolved w/o a trial? Rule 12(c): after pleadings are closed—but early enough not to delay trial—a party may move

for judgment on the pleadings. These are not dismissals, but judgments. The two tests for rule 12(c) judgments: (distinction btwn motion to dismiss and SJ!!)

o If only pleadings considered, use 12(b)(6) motion to dismiss test= a pre-answer motion.o If matters outside pleadings are considered, Rule 56 summary judgment test used, a

post-answer motion. Use what is learned in discovery.SUMMARY JUDGMENT

After discovery… could a reasonable factfinder, in weighing the evidence in this case, return a verdict in favor of the non-moving party?

Motions for SJ focus on facts in the record, not just allegations in the pleadings. But wait! Doesn’t a party have a right to a jury trial by the 7th amendment?

o There is no dispute! Law doesn’t require useless or unnecessary trials. Rule 56(c): summary judgment is proper when the materials submitted by parties “show that

there is (1) no genuine issue as to any (2) material fact and that the moving party is (3) entitled to judgment as a matter of law.

o Genuine issue : actual, true dispute- evidence is such that reasonable minds could differ, and that the non-moving party could win the case.

o Material fact : fact is “material” if it might affect the outcome of the case. Depends on the substantive law at issue in the litigation.

o Entitled to JMOL : if non-moving party failed to make a proper showing on an essential element of her case.

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Who can file a SJ motion: either party can move:o D can show that claimant’s evidence cannot support the claimo Claimant can show that D has no evidence supporting a defense.

What can be included? - pleadings, discovery, disclosure, materials and affidavits Bad faith affidavit rule : if you do this: 1) affidavit will be stricken, 2) expenses shift to bad

faith party, and 3) allows the court to hold the offending party in contempt. Court will not make credibility judgments or guess who is most likely to persuade jury.

Reasonable doubts and inferences drawn in favor of the non-moving party. 56(d): partial SJ is proper when certain material facts can be resolved summarily. The court

specifies which facts are “established” and which facts remain for trial. When can it be filed? : federal rule- almost anytime, but served no later than 30 days after the

close of discovery . 16(b) scheduling order will likely set a due date for all dispositive motions What if other party files before you finish your discovery?:

o 56(f): can file affidavit stating (1) what more discovery she seeks, (2) how that discovery could prevent SJ and (3) diligence in conducting discovery.

Anderson v. Liberty Lobby, Inc.: White: founder of Liberty Lobby, Willis Carto, brought suit against Anderson for 3 articles it published depicting him as a neo-nazi, anti-semitic, racist, and fascist. Anderson filed SJ motion. Determination of whether factual dispute exists that requires submission to jury must be guided by substantive evidentiary standards that apply to the case. (here, the New York Times “clear and convincing” evidentiary standard to determine whether a genuine issue of actual malice exists.) Court must consider the evidentiary Burden Of Proof that P must meet at trial and ask not whether the evidence favors one side or the other, but whether a fair-minded jury could return a verdict for P under applicable BOP on evidence presented. Jury roles the ct should not invade: deciding if a witness is credible, weighing evidence, and drawing inferences from evidence.

Burden of proof Quantum of proofBurden of persuasion- who has the duty to convince the factfinder (and who bears the risk of failing to do so)

Preponderance of the evidence- you win, if the balance scale of evidence tips even slightly in your favor. (civil standard)

Burden of production/of going forward- who has the duty to introduce enough evidence to move to the next stage of the litigation.

Clear and convincing evidence- you win, if the evidence clearly and convincingly support your claim (usually a civil standard)Beyond a reasonable doubt-win if the evidence in your favor is so overwhelming that is no credible doubt but that your fact version is correct. (criminal standard)

If non-moving party has burden of persuasion at trial and fails to refute moving party’s evidence = burden could not be met at trial and SJ is granted.

But courts are especially cautious when moving party has burden of persuasion.Brennan Dissent: court failed to define what it means for trial judge to “consider” heightened evidentiary standards, contradictorily tells a judge not to weigh evidence but encourage him to do so at same time. Whether evidence is “clear and convincing”/meets specific evidentiary standard or is proved by preponderance is for factfinder to decide. How will this “prism” standard work in practice?

*When would evidence be enough for preponderance, but not for clear-and-convincing?o Involves a weighing of the evidence—something that ought to be for the jury.o Brennan’s view: if all elements of the claim are supported, it goes to jury.

Rehnquist Dissent: Sup Ct. is a teaching court and w/o more guidance on this courts will decide SJ motions more erratically than ever.

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Matsushita Elec. Indus. Co. v. Zenith Radio: anti-trust case alleging that Japanese manufacturers conspired to keep low prices for Jap tvs sold in U.S. If the factual context renders the claim implausible—if the claim doesn’t make economic sense—claimants must come forward w/ more persuasive evidence to support their claim than would otherwise be necessary.Celotex Corp. v. Catrett: plurality, Rehnquist: widow sued Celotex after discovering they may have caused husband’s asbestos death. Celotex moved for SJ alleging Catrett hadn’t produced evidence showing their product as proximate cause of death. Purpose of SJ is to isolate and dispose of factually unsupported claims/defenses, not a procedural shortcut. No obligation by moving party to negate non-moving party’s claim through evidence, just show they cannot prove an essential element of case: 1) w/ or w/o affidavits and 2) once this is done, burden shifts to non-moving party to go beyond pleadings, and through aff or otherwise demonstrate existence of genuine issue of material fact.No requirement that moving party support motion with affidavits, etc. negating opponent’s claim when the opponent bears the burden of proof at trial.White Concurring: Moving party must support his SJ motion in some way, can’t make a motion w/o any support whatsoever. Otherwise, everyone would file for SJ by summarily saying the other side can’t prove their case, don’t want burden so easily on non-moving party. Brennan Dissenting (joined by Chief Justice and Blackmun): Burden of production depends on who has burden of persuasion.

If moving party has burden of persuasion, he must support motion for SJ w/ enough credible evidence that, if not opposed at trial, would entitle him to win.

If the burden of persuasion at trial is on the nonmoving party, the moving party can get summary judgment in two ways:

1. Submit affirmative evidence negating essential element of nonmoving party’s claim, or2. Demonstrate to court that nonmoving party’s evidence is insufficient to establish an

essential element of the nonmoving party’s claim. Procedure for Summary Judgment:

No obligation by moving party to negate, through evidence, the opposing party’s claim. Instead, moving party must demonstrate absence of genuine issue of material fact. So..

1. W/ or w/o affidavits, moving party points out absence of genuine issue of material fact.2. Once moving party does this, non-moving party must go beyond pleadings, and through

affidavits or otherwise show specific facts demonstrating a genuine issue for trial. Materials supporting or opposing a SJ need not be presented in a form admissible at trial.

1. Rule 56(e): affidavits must be made upon personal knowledge, by a competent affiant, and set forth facts that would be admissible in evidence.

Purpose for Summary Judgment (Rehnquist) “to isolate and dispose of factually unsupported claims and defenses” “not a dis-favored procedural shortcut”, but instead an “integral part of the Federal Rules “must be construed with due regard not only for the rights of persons asserting claims and

defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrated in the manner provided by the Rule, prior to trial, that the claims and defenses have to factual basis”

*After Celotex: burden shift of SJ moves during the process. Moving party must do something, demonstrate the absence of a genuine issue (don’t need to use affidavits, ect., white- more than just say so, brennan says- disprove other side’s case or point to a hole in their ability to prove their case)- THEN burden shift to non-moving party- to show that they have a genuine issue and standard is Anderson (cannot just rely on pleadings). If not, burden never shifts and SJ motion was improper. If impossible for opponent to win=SJ possible.Scott v. Harris: Scalia: speeding car and police chase, policeman files SJ motion claiming qualified immunity, where non-moving party’s story is blatantly contradicted by record, and no reasonable jury

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could believe it, ct need not adopt that version in its motion ruling. Ct does not usurp jury’s function when all facts and inferences are viewed in non-moving party’s favor “to the extent supportable by the record”, and no genuine factual dispute remains. Stevens Dissenting: should go to jury, video is not as conclusive as majority says. If judges disagreed, it is likely that a reasonable jury could as well.Hurst v. East Coast Hockey League, Inc: P hit by puck during warm-ups while standing in a concourse, court granted SJ for D based on the doctrine of primary implied assumption of risk, doesn’t matter what facts develop, because there is no legal remedy.Rothman v. Myrtle Beach Police Department: kid drowned on spring break, parents accuse police of responding improperly and being ill-trained, see the Celotex shift: 1) moving party says why there is no genuine issue of material fact, 2) non-moving party says why there is a genuine issue of material fact, 3) shifts back to moving party to explain why those factual disputes either are not there or can’t matter.Holder v. American Retirement Corp: old lady mistreated at nursing home, direct evidence is not necessary to defeat SJ, circumstantial evidence is enough if it is adequate and on point. Because you have to view facts in light most favorable to non-moving party.SOUTH CAROLINA SJ: few differences from fed court: local rules abound on SJ!

Fed claimants wait 20 days after commencement to file; State Claimants wait 30 days. Fed claimants serve opposing aff 1-day before hearing; state serve 2-days before hearing.

WHAT LAW APPLIES IN FEDERAL COURT? Generally, law of state w/ the most significant contacts w/ litigation will apply. Rules of Decision Act of 1789, 28 U.S.C. 1652: “the law of the several states, except where the

constitution or treaties of the US or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the US, in cases where they apply.”

Supremacy Clause: US Const, Art. VI: trump card, federal “preemption.” If case involves a federal question, then federal law applies the “rule of decision” – in other

words, fed substantive law will govern the caseo The problem is, what is “substantive” and what is “procedural”?

BUT, what if there is no preempting federal law and ct is supposed to act as state cts do? =Erie Railroad Co. v. Tompkins: Brandeis, man hit by open door of passing train sued in fed ct for negligence, he would lose under Penn. law because courts would have treated him as a trespasser and RR would not be liable unless actions were proven to be wanton or willful. But under federal law, P only had to prove an ordinary negligence standard. Overruled Swift v. Tyson, Erie Doctrine holds that fed ct must apply all of a state’s substantive law over a state law claim in a diversity case.

Fed cts didn’t have power to make up general fed common law for state law diversity claimsConcurrence Reed: procedural/substantive line is hazy, but no one doubts fed power over procedure. Guaranty Trust Co. v. York: Outcome determinative test, if applying federal rule/law would change the outcome that would have occurred if the case had been tried in a state forum, ct should apply state law. (prevents forum shopping) Even though a fed ct is not bound to give identical relief that a state ct would give, it cannot award relief that would have been barred in a state ct. Rejected substantive and procedural labels as wrongfully implying a great divide cutting across the law. The “accident” of a lawsuit occurring in federal court should not lead to a substantially different result.

Outcome of litigation in federal court should be substantially the same, so far as legal rules determine the outcome of a litigation as it would be if tried in a state court.

Byrd v. Blue Ridge Rural Electric Cooperative, Inc. 13 yrs after York: subcontractor injured on the job sued for negligence, under state law judge decided whether Byrd was a statutory employee (limited his recovery), under fed law jury decided. Balancing test: requires fed cts to analyze state & fed interests in having their respective rules applied. Outcome determinative shouldn’t be sole inquiry…fed ct must

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also ask whether there are substantial countervailing fed considerations at work that warrant application of fed law? State rules shouldn’t disrupt/alter the “essential character or function of fed ct.Hanna v. Plumer: Warren: Hanna, Ohio citizen, was in a car accident in SC w/ Osgood (deceased represented by Plumer), Mass. citizen. Hanna served process to Plumer’s wife, correct under FRCP, but not under Mass. law. Choices between state and federal law should be made by reference to policies underlying the Erie rule. Every procedural variation could be outcome determinative. The outcome-determination test should be read considering the twin goals of the Erie rule:

1. Discouraging forum shopping and 2. Avoiding the inequitable administration of the laws.

Competing rules, though outcome-determinative, have little or no relevance to choice of forum. Importance of state law is relevant, but only in the context of asking:

1. Would applying the rule make such a difference to character/result of litigation that failure to enforce it would unfairly discriminate against citizens of forum state, or

2. Would applying the rule have such an effect on fortunes of one/both litigants that failure to enforce it would be likely to cause a P to choose federal court?

**If the situation is “covered by” a FRCP, and if that rule is valid, that federal rule must apply, because the Rules Enabling Act compels it.

Covered by : controls the question, doesn’t just touch on general subject matter. Walker v. Armco Steel Co: R3 governs commencement, but was not intended to toll a state SOL unless state tolling rules are otherwise met. = no FRCP on point, free to apply state law.

Valid : must be constitutional and w/in limits of delegated authority (cannot abridge, enlarge, or modify) Sibbach v. Wilson & Co.: if rule regulates procedure, it definitionally is not one that alters or amends a substantive right.

Gasperini v. Center for Humanities, Inc: photographer that lent pictures and D lost them, P sued in fed ct under div jurisdiction on state claims. Under 7th amendment, a fact tried by a jury can’t be re-examined, but under NY law, appeals cts can review jury verdicts. Court agrees w/ 2nd Cir that NY's check on excessive damages warrants application in fed ct, Erie's doctrine precludes a recovery in fed ct significantly larger/different than what would have been tolerated in state court, because this would undermine one of the twin aims of Erie: to avoid the inequitable administration of justice. Scalia’s dissent: majority doesn’t honor stare decisis, decision contradicts earlier precedent where the sup ct said state proc rules should not interfere w/disrupt the federal system. 1. issue not substantive under Erie and 2. this case is controlled by FCRP 59, and Hanna should apply.All of this = our application of law MATRIX:First note the conflict between federal and state law (if none, apply both).

1. Is there a federal rule on point? (Hanna): “It is settled that if the Rules in point is consonant with the Rules Enabling Act … and the Constitution, the Federal Rule applies regardless of contrary state law.”

a. If YES = Is issue covered by (must control the question, not just touch on the general subject matter) a valid (must be constitutional and w/in limits of delegated authority) Federal rule? If YES = under Rules Enabling Act and the supremacy clause, the FRCP supplants conflicting state law. = DONE, apply FRCP.

b. If NO = 2. Below2. Assess whether applying the state law (instead of the federal law) would significantly affect the

expected outcome of the case. (outcome-determinative test of York).a. If NO = apply essentially both state and federal law.b. If YES = 3. Below

3. Is there an overriding federal interest justifying the use of Federal Law? (Byrd)a. If YES = Assess the “twin aims” of Erie, would the variance of law:

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i. Unfairly discriminate against citizens of the forum State [inequitable justice], orii. Be likely to cause a plaintiff to choose federal court [forum shop].

b. If NO = use state lawIn absence of controlling State law on point, task of fed ct under Erie is to “predict” how the highest court of the State would decide the legal question, if question were before that court.DeWeerth v. Baldinger: Monet painting from German castle, NY limitations law required due diligence in locating stolen painting, years later, in a separate suit, NY Ct App held that relevant NY SOL that applied to DeWeerth’s case did not require a due diligence showing, DeWeerth asked that her case be reopened under rule 60. If fed ct acts in good faith and uses due diligence, they satisfy Erie Doctrine, which does not allow P to reopen a fed ct case just to gain benefit of newly-announced State ct. decision. DeWeerth assumed the risk that applicable law would change by filing in state ct. Under Erie, consistency of the application of law is not achieved at the expense of the finality of judgments. SPECIAL TYPES OF TRIALS: how courts handle structurally complex litigation:Multidistrict litigation (MDL): multiple lawsuits in diff fed cts w/ common issues of fact and repeated pre-trial concerns, Statutory 14 U.S.C. 1407, cannot opt out of MDL

Goal = nationwide consolidation and coordination of pretrial proceedings To get MDL treatment, you need 3 things:

I. 1 or more common fact questionsII. Coordination would be convenient for witnesses/parties

III. Just and efficient litigation is an expected outcome of MDL treatment Process: select transferor dist, transfer for pretrial proceedings, remand orig ct for trial We get four advantages:

1. Efficient discovery proceedings2. Centralized pretrial handling3. Consistency in rulings4. Potential for resolution/settlements on group basis

Shareholders derivative action: claims by shareholders, acting as reps, suing their own corp. for leadership mistakes, Ex. Disney CEO, FRCP 23.1: vehicle to protect shareholders against misconduct

Shareholder derivative lawsuits must be:oBrought by continuously-owning shareholders.oWho are adequate representatives of all others;oPlead with particularity;oFiled only after a demand for corrective action is made of the corporation and

turned down (unless “futile”). Vulnerable to motion to dismiss because of enhanced pleading obligation.

2. Class actions : claims by litigants suing as reps, ex. Blockbuster late fees, FRCP 23 Can’t use joinder because there are too many people. What does a class action do?

1. Begins w/ a claim that affects a number of “similarly situated” people.2. Chooses 1+ representatives who agree to litigate on behalf of all others.3. The litigation proceeds to a conclusion.4. Result of litigation – good or bad – binds all “similarly situated” people.

Who pays for the costs of litigation?1. Hourly fee cases: rare2. Contingent fee: usually only if atty negotiates fee into settlement, but that is a

conflict of interest3. What usually happens=claimants pool their claims & share litigation costs

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Disadvantages/abuses of class actions: legalized blackmail, incentivized to settle, attorney-centered representation , too-high low or “quiet but-binding” settlement.

Four prerequisites:1. Numerosity : no fixed #, but enough that joinder is impractical.2. Commonality : questions of fact or law common to all class members3. Typicality : class rep has claims that are typical of all other class members.4. Protection : class rep will fairly/adequately protect interests of those absent

Four types of class actions:1. (b)(1)(A): prevent risk of creating incompatible conduct standards for adversary

Notice: may be ordered but not obligatory (same for 2. & 3.)2. (b)(1)(B): avoid impairing or impeding absent parties’ interests, usually a

limited fund defendant, where first judgments would get all of the money.3. (b)(2): allow equitable relief when the adversary has acted or refused to act on

grounds generally applicable to class. Not asking for $$, injunction appropriate4. (b)(3): when (a) common question of law or fact predominate over individual

questions, and (b) a class action is superior to other available methods of adjudication. Most often used class action type.

Notice: mandatory notice of suit, do they want to opt out? How filed? Complaint, limited discovery, motion for “class certification” (usually

outcome determinative- suit proceeds or is dismissed if denied)o Notice should say: nature of action, definition of certified class, class claims, issues,

defenses, may appear through counsel, opt-out only if result binding. How class actions are ended:

o Winning or losing: goes to judgment, result binds absent class members.o Voluntary termination: settling, dismissing, or compromise – bindingo 23(e): voluntary terminations are approved by ct as fair, reasonable, & adequate.

Notice to entire class again, giving option to opt out Consider objections to proposed resolution, can voice opinions. Court may allow opt-outs from settlement stage.

How does this affect SMJ: o FQJ: citizenship and claim size is irrelevant Diversity: citizenship is that of the class representative (Ben-Hur), claim size: If

§ 1367, examine if class rep meets jurisdictional limit (Exxon Mobil Corp. v. Allapattah). Special for cases under: Class Action Fairness Act of 2005

o Amt in cont over $5M, & minimal diversity, fed jurisdiction exists.o Claims can be aggregated.o Minimal = 1 rep and 1 defendant.

Personal jurisdiction:o (b)(3): don’t need personal jurisdiction over all absent memberso Not sure for others, supreme court has not told us Remember Ps have consented to jurisdiction by not opting out

Hansberry v. Lee: black family bought home in a neighborhood w/ a restrictive covenant against allowing black families to purchase homes there. Class action judgment does not bind parties that were not parties to a previous case and whose interests were not represented.In re Abbott Laboratories: Abbott accused of fixing prices on baby formula. Fed cts have suppl J, through jurisdiction over class rep’s claim, over members of a class who do not meet amt-in-cont reqSouth Carolina Class Actions: very few reported

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In cases where relief sought is primarily $$, each class member’s claim must exceed $100. “Commonality” probably requires predominant commonality.

POST TRIAL PROCEDURESAlter trial’s outcome in some way, efficiency, controls errors from jury sympathy or error.

1. Same trial judge: want trial judge to get the first shot at what is eventually the appeal. 2. An appeals court

Taking cases AWAY from the Jury: Motion to dismiss : at pleadings stage, if P can prove what she alleges, can she win? Motion for SJ : after discovery, could a reasonable jury find in favor of the non-moving party? Motion for Judgment as a matter of law ( JMOL ) : at and after trial, was there enough

evidence for a reasonable jury to find in favor of the non-moving party?o FRCP 50: If a reasonable jury would not have a legally sufficient evidentiary basis to

find for a particular party on a particular issue, the court may – Resolve an issue against the party: failure of proof on that issue Grant JMOL: failure of proof in an issue essential to claim or defense

o Not a 7th amendment violation=nothing for jury to decide (same as SJ)o Technical prerequisites for Rule 50 motion:

Jury trial : applies to jury trial motions only Fully heard : non-moving party must have been fully heard on the issue Specificity : moving party must specify (a) relief sought and (b) law and facts

that she believes entitles her to win the motion. Time : motion is timely filed, before submission to jury

o If judge denies, renew motion at end of case, w/in 28 days of judgment Lavender v. Kurn: mailhook and crazy hobo case, “only when there is a complete absence of probative facts to support the conclusion reached is there a reversible error. But where, as here, there is an evidentiary basis for jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent w/ its conclusion,” test: if there are ANY facts that support the jury verdict, then it’s okay.Reid v. San Pedro: cow case, cow went into railroad right-of-way, was killed by a train, Rule: where the undisputed evidence of P, from which the existence of an essential fact is sought to be inferred, points with equal force to two things, one of which renders D liable and the other not, the P must fail.”*Supreme court has provided no reason for the difference in these two cases.

Where the evidence between P and D is equal, P has a burden of proof that he has enough evidence w/o speculation to rule in his favor.

Where there is no affirmative evidence one way or the other, can’t send it to a jury because they are just guessing/flipping a coin.

Additional Rule 50 thoughts:1. What evidence is considered in ruling ?: everything admitted into evidence at time of motion. 2. What is necessary to appeal the ruling ?: appealing party must first file an original motion and

then, after denial, a subsequent renewed motion for JMOL w/ trial judge New Trial :

o Not a substitute judgment, but another trial, w/ new jury,can be altern. to JMOLo JMOL motion may be filed w/ a “conditional” motion for a new trial.o Rule 59: New trial rule:

Partial new trials : new trials may be total (all issues), or partial. Timing : no later than 28 days after entry of the judgment.

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o Grounds for new trials : any reason a new trial has previously been granted in an action at law in federal court. Generally in 5 instances:

1. Verdict against weight of evidence2. Excessive or inadequate verdict3. Newly discovered evidence4. Improper conduct by counsel or court5. Improper conduct affecting jurors

Dadurian v. Underwriters at Lloyd’s of London: jewelry and ins case, *Importance of neutral! Even though evidence went both ways, proper for jury to get issue here because of affirmative evidence (more than saying I don’t know), disputed evidence is properly w/in the providence of a jury.

Motion for Amended Findings : after a non-jury (bench) trail is over, facts as found by judge can be amended. Rule 52 Function: in a non-jury bench trial, the judge may amend or supplement her findings and judgment for newly discovered evidence or to otherwise avoid injustice. Timing: no later than 10 days after entry of judgment.

Motion for Relief from judgment : after litigation is otherwise over, for certain narrow reasons. Can a judgment be upset long after the 10 day period? Pennoyer: this is what happened in Pennoyer, judgment entered in absence years before.

o RULE 60: Function: grants relief from a judgment entered earlier that is then in effect. Narrow use: not an appeal substitute; court balances finality against claimed injustice.

o 7 Grounds for relief from Judgment: 60(a) Clerical errors- mistake, does not reflect court’s intent 60(b) all others: mistake, inadvertence, surprise, excusable neglect (1 yr.) Newly discovered evidence (1 yr.) Fraud or other misconduct (1 yr.) Void judgment Satisfied, released, discharged, or inequitable judgment Other exceptional reasons

Post Trial Audience: 2. An Appeals court Purpose: correct error, provide forum for thoughtful development of law, add legitimacy to

justice system, inspires public confidence and compliance. Structure

o No absolute constitutional right to appeal: established by fed/state legislature.o Appellate courts don’t take evidence, hear witnesses, or resolve factual disputes.

Types: o Final order appeals § 1291: after litigation- can appeal judgment & interim orders.o Interlocutory appeals § 1292: certain special circumstances only: ruling on injunctive

relief Mechanics

o Time: w/in 30 days after the entry of judgmento Only preserved errors appealable; gives trial judge chance to correct errors first.o Notice of appeal: filed in the trial court – simple, one-page form. o Supersedeas: needs this to stop execution during an appeal, financially guarantees debt.o Appellate options:

Affirm: confirms trial court decision, but can use different analysis Reverse: appeals ct chooses different outcome than trial ct. Vacate & remand: strikes trial ct outcome and sends back for more work Dismiss: appeals ct decides it lacks jurisdiction to hear the appeal.

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o Appellate jurisdiction is divesting: generally 2 courts can’t have jurisdiction over same case at same time. When appeals ct takes jurisdiction, trial ct’s jurisdiction is divested

Scope and standard of reviewo Scope of review: when app. ct checks for error it examines: evidentiary ruling, fact

finding, selection of a legal standard, or jury instructions.o Standard of review: what deference will app. ct give to events in the trial court:

Plenary (de novo) review: no deference to trial ct, pure legal questions Abuse of discretion: whether trial court exceeded its range of discretion Clearly erroneous: accepts all trial ct findings unless clearly mistaken, for fact Q

ENFORCEMENTPlaintiff Loses: Plaintiff’s claims are defeated. Any attempts to litigate again will be dismissed and possibly could be sanctionedDefendant Loses: Is Remedy money or equitable?

o If equitable, courts/police can enforce (e.g. trespass action)o If money,

Voluntarily: Frequently, they just voluntarily honor the terms of the judement Involuntarily: The judgment can be “executed” upon by the judgment holder

o Rule 69: Execution How? The judgment holder obtains a “writ of execution”- unless court. provides

otherwise Procedure- procedures of the local state are borrowed (unless congress provides

otherwise) Discovery-In-Aid-of-Execution: To locate “execute-able” assets of the

defendant, discovery may be used.o SC’s Execution Prodcedures

Time: Judgments can be enforced for up to 10 years after entry Use of Force: Under certain circumstances, the defendant can be jailed; in other

circumstances, the sheriff can break into a house Execute-able Property: Must first execute on personal property (including the

garnishing of wages), then realty. Exempt Property:

$50,000 home & $1,200 vehicle $2,500 furnishings, clothing, personal item, & $500 family jewelry $750 in trade instruments Prescribed health aids Certain retirement & insurance benefits

PRECLUSIONPRECLUSION = doctrine of former adjudication, TYPES:

1. Claim preclusion:(res judicata)- precludes a litigant from re-litigating the same claim; whole dispute cannot be relitigated, incentive to P to join all related claims

2. Issue preclusion:(collateral estoppel)-precludes litigant from re-litigating same particular factual or legal issues litigated/necessarily determined in previous suit w/ different COA

CLAIM PRECLUSION/res judicata: claim precluded, can NOT be relitigated in a 2nd lawsuit if:1. It is the same claim as one already litigated;

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See Carter v. Hinkle: 2. There is identity or privity of parties; and

Policy: ordinarily judgments should only bind parties who have had the opportunity for their “day in court” (notice + opportunity to be heard)

Identity limitations: #1 there must be identity of the parties: Actual identity: means litigants are same in 1st & 2nd lawsuits, or Implied identity: litigants in 2nd lawsuit “stand-in-shoes” of those in 1st

#2 *AND* must be same configuration: a later claim is only precluded if parties (or privities) are configured same way – same claimant v. same Ds (modified by R 13 compulsory CCs!!–effectively but not actual preclusion)

3. The first case ended w/ a valid judgment that is final and on the merits. Valid : no preclusion if 1st court lacked legal authority to enter a judgment Final : no preclusion if 1st court ruling not yet final – still subject to review Merits : no preclusion if the 1st judgment was based on a technicality

Default judgment gets preclusion because it is technically on the merits. The Reach of Preclusion: if preclusion applies, it bars not only same arguments and defenses

actually litigated in 1st case, but also all arguments and defenses that could have been litigated. Exceptions to Claim preclusion:

1. Consent : the parties agree, or opponent does not object2. Not ripe : P can’t bring all claims at once if they aren’t mature, but if P could’ve

discovered through reasonable investigation- lose chance to litigate that3. Not accessible : P can’t bring all claims at once because of legal impediment4. Justice : when policy or justice demands it

Carter v. Hinkle: Hinkle was cab driver and Carter was driving Smith’s car. Carter’s negligence caused the accident. Hinkle sued for damage to cab and loss of use of it, awarded $. Later, Hinkle wanted to sue again for personal injuries. Carter argued res judicata. Court adopted the minority/primary rights rule that each injury is a separate COA for damages even if only one wrong occurred. Tort claims-some different definitions:

Primary rights : focus on which rights were invaded, each right is independent/has its own COA Legal theory : focus on types of legal theories asserted, must make all claims under that legal

theory, depends on how you plead Single wrongful act : focus on damage-causing event, single event giving rise to different

injuries, focus on events, only as many COAs as there were events Sameness of evidence : focus on degree of evidentiary overlap between the two lawsuits Transactional package : focus on trial package, closeness of time, space, origin – did claims

arise out of same or series of connected transactions?What did SC choose? Various tests: Is similar subject matter and evidence in both cases, is the primary right of P the same and only one primary wrong by D, do claims arise out of same transaction or occurrence? = essentially the transactional package approach.Contract Claims: typically:

Accrued loss approach : if diff K instruments=diff claims, if same=all damages in same COAEXERCISES PAGE 596ISSUE PRECLUSION/collateral estoppel: precludes relitigation of an issue that actually was litigated and necessarily determined in a previous lawsuit involving a different COA.

If an issue has been tried before, is the outcome on that issue binding in later cases? A factual or legal issue is precluded and cannot be litigated in a 2nd lawsuit if-

1. It was the same issue as litigated earlier,

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“day in court” analysis, if you got your day in court = estopped from relitigation. If however, your 2nd lawsuit involves a different claim, but part of new claim was litigated earlier, should earlier outcome bind you?

Cromwell v. County of Sac : case about bonds, issue preclusion is only proper if the issues were identical. Here they weren’t because ct determined how different people got the bonds.

2. The resolution of that issue in earlier case was essential to the earlier judgment, See Rios v. Davis: See alternative determinations #7 on pg. 684: both found but only one is

essential, we don’t know which one, so neither can get preclusive effect. 3. That earlier resolution was embodied in a valid judgment that was final and on the

merits. = same as claim preclusion. Want real judgment before giving preclusion.4. The preclusion is asserted against a proper party , and

Policy: judgments should only bind parties who had their day in court See Hardy v. Johns-Manville Sales Corp.

5. The preclusion is asserted by a proper party . (difficult part – mutuality) Defensive issue preclusion: P sues and loses on an issue, and another D, in a

later case, asserts issue preclusion to bind same P w/ that loss. Courts start exceptions in vicarious liability cases, then Sup ct in

Blonder-tongue Labs rules that mutuality is not required. Offensive issue preclusion: P sues and wins on an issue, and another P, in a later

case, asserts issue preclusion to bind the same D w/ that loss. See Parklane Hosiery co. v. Shore:

Original Mutuality rule: to assert issue preclusion, asserting party must have been a party or in privity w/ a party in earlier case

Rios v. Davis: Rios, Davis and Popular Dry Goods (PDG) all in a car accident. In suit 1: PGD sued Davis for damage, D alleged contributory negligence and joined Rios as TPD. Ct found PGD, Rios & Davis all negligent, no one recovered from anyone. Then Rios sued Davis for injury from accident, Davis plead issue preclusion. Not issue precluded, since determination of Rios negligence wasn’t essential to 1st judgment, no confidence that jury gave it much deference, so Rios didn’t get his day in court. Factfinder must have been focused on that issue as deciding point in case to be precluded.Hardy v. John-Manville Sales Corp.: asbestos case, suit 1.) diff Ps v. 6 Ds. Suit 2.) Ps v. 6 original Ds + 13 new Ds. Party must get their own chance to defend themselves. Privity is not established because parties happen to be interested in same Q or proving same state of facts. Relationships close enough to justify preclusion:

1. Nonparty who has succeeded to a party’s interest in property2. Nonparty who controlled the original suit3. Nonparty whose interests were represented adequately by a party in original suit4. Nonparty who was “virtually represented”

Parkland Hosiery co. v. Shore: Shore was Parklane stockholder. Sued Parklane alleging false proxy statement. Before decided, SEC sued Parklane on same issue and won. Then Shore tried to assert offensive issue preclusion. End of offensive mutuality; now courts must consider these factors (essentially exceptions to issue preclusion):

1. Could subsequent Ps have been joined in the earlier case?2. Does D have different incentives in litigating now than previously? 3. Are there already inconsistent judgments?4. Does D now have procedural opportunities in the new case that it lacked in earlier case?

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