Outline Civil+Procedure

8/8/2019 Outline Civil+Procedure

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CIVIL PROCEDURE - OUTLINE PROF. HUGHESTable of Contents

Heading Page #

I. An Overview of Procedure1

II. The Constitution and Choice of Law (Erie)...1B. The Erie Problem...1C. Post-Erie Cases. 3

III. Pleading...5A. The Complaint ..5

IV. Ethical Limitations 5A. Rule 11 Cases 7B. Special Claims: Requiring, Forbidding Specificity in Pleading 7C. Allocating the elements 7

V. Defenses and Objections 8

A. Rule 8: General Rules of Pleading 8B. Rule 12: Motions 8C. Reply 9D. Amendments 9

VI. Discovery 10A. Modern Discovery 10B. The Possibilities and Limits of Discovery 10C. Surveying Discovery: Procedures and Methods 12D. Discovery and Privacy 14E. Discovery in an Adversary System 15F. Controlling Abuse of Discovery 15

VII. Resolution without Trial 16A. Default Judgment 16B. Involuntary Dismissal 16C. Summary judgment 17D. Judicial Management of Litigation 18

VIII. Trial 18A. Limits of Rational Inference 18B. Procedural Control of Rational Proof 18C. Controlling Juries before Verdict 19D. Controlling Juries after Verdict 19

IX. Personal Jurisdiction 19

A. Specific Jurisdiction 19B. Specific Jurisdiction: The Modern Cases 21C. General Jurisdiction 23D. Consent as a Substitute for Power 23E. Constitutional Requirement of Notice 24F. Venue 24


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I.An Overview of ProcedureA.Why do we have procedure?

1. Procedure is partly the rules/etiquette of lawsuits2. It also reflects our desire for peace and regularity

B.Types of jurisdiction1. Subject Matter Jurisdiction

a) Diversity occurs when parties are residents of different states:it must be alleged and proved.

2. Personal Jurisdiction

II. The Constitution and Choice of Law (Erie)1. Article VI: Constitution and federal laws are The Supreme Law ofThe Land; and the Judges in every State shall be bound thereby.2. Rules of Decision Act: In absence of a controlling federal statute, thefederal court system is required to respect statutes, common law of states.

B.The Erie Problem1. First judiciary established fed. diversity jurisdiction (28 U.S.C 1652)2. Swift v. Tyson (N.Y. Fed. Ct. 1841) (Story)

a) Bill of exchange: sought to be collected on.b) ROL: Deduce the doctrine from general principles offederal law- anti-Erie. A charter of judicial independencefrom state common law. Favored business interests.c) Laws are more usually understood to mean the rules andenactments promulgated by the legislative authority thereof.d) Problem with Swift: failed to create the uniformity that Storydesired. Instead, created different standards based on jurisdiction,and forum-shopping.

Overview - Subject Matter Jurisdiction

1. Limited jurisdiction: small claims, taxa. All federal courts have limited jurisdiction

i. Jurisdiction is limited by Art. III, 2 of the Constitutionii. Also limited by Title 28 (the Judiciary Code)

iii. Only arising under the Constitution or diversity claims2. General; circuit, district, common pleas, etc.

Rule 4(k)(1)(A) Personal Jurisdiction

If plaintiff can gain personal jurisdiction over someone in a court of general

jurisdiction in the state in which the district court is located, he can do so in that

district court as well.

The Erie Problem:When federal court is hearing case solely based on diversityjurisdiction, and when there is no controlling federal or state statute, should

court apply a general federal standard or the common law standard of the state?


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3. Holmes Attack on Eriea) There is no Law apart from authority that creates it. Thefederal common law cannot exist without authority behind it.b) Example of forum-shopping: Black & White Taxi Cab Co. v.Brown and Yellow Taxi Cab. Co.: KY case, removed to fed. court.

4. Erie Railroad v. Tompkins (S.Ct. 1938) (Brandeis)a) P severed arm by train on way back from mom-in-laws house.Q: between wanton negligence (state common law standard) orgeneral federal standard.

b)

S.D.N.Y. applied Swift, ruled for federal common law generalnegligence standard instead of the willful and wanton negligencestandard set forth by the Penn. S.Ct.c) S.Ct.: reversed and remanded.d) When finding the law pertaining to the case, courts must lookto the authority for making such law (viz., the state court).

(1)Fed. Cts. must honor state-made rights and obligationse) Brandeis three problems with Swift:

(1)Failure to create desired uniformity of common law(2)Failure in equal protection: forum-shopping favoredout-of-state D.(3)QuotingHolmes, an unconstitutional assumption ofpowers by courts of the United States No power offederal courts to create common law standards. Notranscendental body of law outside state.

f) Reeds concurrence: line between procedural and substantive ishazy, but no one doubts federal power over procedure.

(1)Should only have disapproved of Swift insofar as tomake common law decisions of courts applicable to federal

courts sitting in diversity jurisdiction.

Erie Doctrine: In Federal courts, where jurisdiction is founded solely on matters of

diversity, matters of substance are to be founded on state law, whether statutory or

common. Whether the law of the state shall be declared by its legislature in a statute

or by its highest court in a decision is not a matter of federal concern.

The Swift v. Tyson Standard:

1. Federal courts should deduce doctrine from general principals of federal law.2. The courts should basically create a federal common law.3. Problem: Applying a federal common law creates forum-shopping between

state federal court because of difference in standard a lied.


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C.Post-Erie cases1. Guaranty Trust Co. v. York (U.S. 1945) (Frankfurter)

a) Ps York sued bond trustee alleging misrepresentation andbreach of trust. New York substantive law governed. Defendant(Guaranty/appellant) invoked statute of limitations in New York.

b) S.D.N.Y.: states statute of limitations does not apply.c) Avoidance of question of substantive v. procedural law.

d) Glannon: York and Cities Service Oil stretch the Erie doctrinebeyond its constitutional necessities (there were constitutionalfederal procedural rules for such cases, so why resort to state law?)e) However, there is the need to balance interests between stateand federal interests.

2. Byrd v. Blue Ridge Rural Electric Cooperative (1958) (Brennan)a) Plaintiff sued defendant for injury on the job. Defendantalleges that as an employee, the plaintiff needed to go throughavenues of the S.C. WCA, and thus was immune from tort actions.b) Reversed and remanded: Strong federal policy againstdisrupting the judge/jury relationship in the federal courts andallowing juries to decide questions of fact (7

thamendment).

c) If the likelihood of difference in outcome between state andfederal law is small, then federal standard/law should apply.

d) A matter of form and mode, not of rights and obligations.

3. Hanna v. Plumer (1965) (Warren)a) Reframes the Erie issue as statutory rather than constitutionalb) D. Ct., 1st Circuit court citing Ragan dismissed case because Phad failed to comply with state method of serving process.

c) Supreme Court took case because of the threat to the goal ofuniformity of federal procedure posed by the lower court.

The Outcome-Determinative Test: In all cases where a federal court is exercising

jurisdiction solely because of the diversity of citizenship of the parties, the outcome of

the litigation in the 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:Because the federal judiciary is independent, it must act independently

according to its custom, viz., to assign the jury the power to decide the factual

matter of a case in a civil trial.

Hanna v. Plumer

1. Rule 4(d)(1) allows summons and complaint to be left with a competentadult at residence of the defendant. (Mass. service of executor of estate).2. Hanna I: Federal Rule governs if it is arguably procedural (does notabridge, enlarge, or modify substantive right).

3. Hanna II: Federal Judicial Practice: governs if it wouldnt createsubstantial differences in forum-shopping or inequity.


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d) Congress has power over procedural matters with respectto the federal courts. Because Congress has set the rules of civil

procedure for federal courts and because those rules are

constitutional, Fed.Cts. must follow.

4. Semtek Intl. Inc. v. Lockheed Martin Corp. (2001) (Scalia)a)

P filed for breach, business torts in Cal. state court, removed tofederal courts. Dist.Ct. dismissed for expires statute of limitations.

b) P brought suit in MD state court, then removed to MD D.Ct.c) Adjudication on the merits sometimes means judgments thatdo not pass on the substantive merits of the claim.

d) If the Rule 41 (b) operated as indicated by the respondents,it would violate the Erie holding by creating substantial

differences between state and federal litigation.

Semtek:

1. Rule 41 (b) - Any dismissal constitutes an adjudication of merits.2. However, because federal court was sitting in diversity, and because a CA

court could not compel MD court to observe statute of limitations, Hannadictated that to avoid forum-shopping, the federal court, on a diversity

issue involving state law, cannot force a MD court to observe that statute.

3. This is necessar to revent forum-sho in .Spectrum of Erie analysis

apply state law apply state law apply federal law apply federal law

rights and form and mode form and mode form and mode

obligations where outcome outcome affected outcome not

created by likely to be but strong fed. Likely to be

state law (Erie) affected (York) interest (Byrd) affected (Hanna)

Analysis of Conflicts between State and Federal Procuedre in diversity cases

1. Conflict between U.S. Constitution and State Law (Byrd)a. U.S. Constitution trumps

2. Conflicts between a Federal Statute and State Lawa. If Fed. Statute is procedural, then it trumps

3. Conflict between F.R.C.P. and State Lawa. F.R.C.P. applies if valid (see Semtek, see Hanna II)

4. Conflicts between a Federal Judicial Practice and State Lawa. Choose the state rule if it would be outcome-determinative.


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III. Pleadings

A.The Complaint1. Notice Pleading: A Claim must

a) Invoke a body of substantive lawb) Sketch factual scenario, if proven true, falls in body of law.c) Allege jurisdiction

2. Complaints fail because:a) Inept statement of the factsb) Failure to state facts on which relief can be granted.c) Unsound service of process.

Rule 7 - Pleadings Allowed, Form of Motions(a) Pleadings

- A complaint and an answer

- Reply to a counterclaim

- Answer to a cross-claim

- 3rd

party complaint, answer

- No others, except if court demands reply (courts discretion).

(b) Motions and other Papersa. Application to the Courtb. Made in writing (unless during trial)c. State particularity of ground for motiond. State relief sou ht

Rule 8 -General Rules of Pleading

(a)Claims for Relief(b)a short and plain statement of the grounds on which the courts jurisdiction

depends,

(c)A short and plain statement of the claim showing that the pleader is entitledto relief, and

(d)A demand for ud ment for the relief the leader seeks.

Rule 4 Service of Process

Five Methods of Summons (Summons and Complaint):

1. Give summons to an agent2. Leave with adult3. Serve Person personally4. Serve according to laws of forum state5. Serve according to state where service is happening

Rule 4(a)

1. 1A Notice of Action (2 copies), Request of Waiver Service of Summons2. 1B Waiver of Service of Summons (accompanied by complaint)3. Good cause must be shown for failure to waive (or pay cost of service).4. 60-day period to respond to complaint (larger than 20 day normal

period). Must respond to waiver request in reasonable time.


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IV. Ethical LimitationsRule 8(e) - Pleading to be Concise and Direct; Consistency

1. Each averment shall be simple, concise, and direct2. Party may set forth two or more claims alternately or hypothetically.

- Valid despite inconsistencies (as many as necessary).- All statements sub ect to the obli ations in Rule 11.

Rule 11 - Signings of Pleadings, Motions, Others; Reps. to Court; Sanctions

(a)pleading and written motions must be signed by attorney.(b)Representations to the Court. Atty. states to best of knowledge:

(1)Not for improper purpose(2)Claims, etc. warranted by existing law or by a

non-frivolous argument for extension, etc.

(3)Evidentiary support or likely to have such(4)Denials of factual contentions are based on

evidence or reasonable belief.(c)Sanctions

a. After notice and reasonable opp. To respond, court may imposesanctions if 11(b) has been violated

(1) How Initiated

(a) By separate motions for sanctions

(i) Describe specific alleged conduct(ii)Served according to Rule 5(iii)21 days to withdraw or correct

(iv)Court may award reasonableexpenses and attorneys fees incurred

in presenting/opposing the motion.(v)Firm responsible for employees(b)On courts initiative

(i) Court may enter an orderdescribing conduct that violates 11(b)

(ii)Party then directed to show causewhy 11(b) has not been violated.

(2)Nature of Sanctions; LimitationsSanctions limited to deter similar conduct.

Sanctions may be nonmonetary, payment of

reasonable attys. fees, penalty to court.

(a)No momentary sanctions for 11(b)(

2

)(b)Monetary sanctions not awarded on courtinit. unless opp. to withdraw not taken

(3)Order(a) when imposing sanction, court shallexplain violation and basis for sanction.

(d) Inapplicable to Discovery


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A.Rule 11 Cases1. Walker v. Norwest Corp. (8th Cir. 1996)

a) Failure to allege complete diversity jurisdiction.b) D. Ct. - Rule 12(b)(1) motion dismiss, lack of jurisdiction.c) Rule 11 (b)(2): The atty. for P did not know the law; the claimwas not warranted by existing law.d) Atty. could have used safe harbor provision to withdraw under21-day safe harbor provision.e) Rule 11(c)(2): cannot be sanctions against party

2. Christian v. Mattell, Inc. (9th Cir. 2003)a) Barbie doll case.b) Ps attorney brought frivolous action, given time to withdrawclaim underRule 11 (b)(2) - failure to conduct reasonable inquiry.c) D awarded $501,565 in attys. fees.d) Remanded: Rule 11 sanctions, non-Rule 11 acts (discovery).

B.Special Claims: Requiring, Forbidding Specificity in Pleading

1. Stradford v. Zurich Insurance Co. (S.D. N.Y. 2002)a) Rule 15(a) ability to amend freely when justice requires.b) Rule 9(b) claims for fraud must be stated with particularity.c) P is a dentist in Staten Island, failed to pay insurancepremiums. Filed for damages against insurance company.d) Counterclaim for fraud by D against P. Hightened standards ofpleading for fraud because of the tendency of the charge to damagethe accused, regardless of its validity. P moved to dismisscounterclaim on grounds of lack of particularity.e) However, Ds counterclaim lack specificity of date, time,and place. Ds counterclaim dismissed.f) However, leave to amend, summary judgment for Ds.

2. Leatherman, Swierkiewicz v. Soremaa) Expresio unius exclusio alterius.b) Discrimination case: moral turpitude, reply to the denial inthe answer. Reply had to have particulars.

C.Allocating the Elements1. Triad ofBurdens

a) Burden of pleading (alleging)b) Burden of production (producing evidence)c) Burden of persuasion (persuading trier of fact)

2. Gomez v. Toledo (S.Ct. (1980))

Rule 9 - Pleading Special Matters

b) Fraud, Mistake, Condition of the Mind(1)Claims of fraud or mistake made with particularity(2)Conditions of mind (malice, intent) averred generally

e) Time and Place: treated like any other material matterf) Special Damages: must be specifically stated


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a) P.R. police. Charged with wiretapping, fired without hearing.b) P brought action against D, the Superintendent of the P.D.P.R.c) Respondent then moved to dismiss the complaint for failure tostate a cause of action because of Ds immunity.d) Under 1983, there is no requirement to allege bad faith.B

urden of pleading an affirmative defense of immunity is on D.V.Defenses and Objections

A.Rule 8: General Rules of Pleading

B.Rule 12: Motions1. A request to the court for an order (consists of):

a) Motion itself (request)b) Notice of the motionc) Affidavits or other factual documents necessary.d) Factual memo that includes reason for the motione) Proposed Order for the judge to sign if he so chooses.

Rule 8(b) - Denials

a. only deny part which D contests (must give P notice of defenses)Rule 8(c) - Affirmative defense

a. Admission and avoidance.

b. Any matters constituting an avoidance or affirmative defense.Rule 8(d) - Specific denial

a. aspects not denied are taken as true

Rule 12 Motions

Rule 12(a) Answer

a. (1) Answer given within 20 daysb. (4) Answer given 10 extra days after motionRule 12(b)(2) motion for dismissal for lack of justification

Rule 12(b)(6) - motion to dismiss for failure to state claim on which relief can be granted

a. legal question: cheap, easy way to end a case quickly.

Rule 12(c) - Motion for Judgment on the Pleadings

a. ability to supply paper evidenceb. ability for plaintiff to move for summary judgmentc. no dispute on facts: judge can decide because there is no use for a jury.d. P has not shown that D is liable.

Rule 12(e) motion for more definite statement (not specific, compl. enough for answer)

Rule 12(f) - motion to strike

a. strike punitive damages, aspects of claim that are not applicableRule 12(h)(1) least favored: brought up in answer, not at all (personal jurisdiction,improper venue, insufficient process, insufficient service process) (one place, one time)

Rule 12(h)(2) - defense for failure to state a claim upon which relief can be granted

a. Can be brought through trial.b. Also, failure to join a party under Rule 19

Rule 12(h)(3) - dismissal for lack of subject matter jurisdiction (any time).

Motions can be included in answer, except for motions for clarifications.


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2. Haddle v. Garrisona) 1985 case because of Ps termination from D corp. becauseof cooperation with a federal investigation.b) Rule 12(b)(6) motion for failure to state of claim on whichrelief can be granted (P an at-will employee, no property interest).

c)

S.Ct.: irrelevant whether at-will employee or not because ofstill protected property interest, so motion failed.3. Zielinski v. Philadelphia Piers, Inc. (E.D. Pa. (1956)

a) Rule 8(b):Deny only parts that it actually contends.b) PPI sells to CCI Other forklift had initials P.P.I. on it. PPIanswered in interrogatories that it did not operate the forklift.c) P could not sue CCI because statute of limitations had run out .d) Equitable estoppel: a change of position (since the time of theanswer) such that the party who is changing needs to be stopped.

e) Because D did not deny specifically in right places, courtruled D did own forklift, employed driver, and admitted both.

4.

Layman v. SouthwesternB

ell Telephone Co.a) Defense of easement by previous owner to SWBC.b) At trial, P objected to introduction of easement evidence, as itis an affirmative defense, which was not set out in response by D.c) Rule 8(c) avoidance, affirmative defense.d) Ejusdem generis: when a list is not exhaustive, other mattershave to be something of same type as those already on the list.e) D adding facts not included in those necessary to P complaint.

C.Reply

D.Amendments

Rule 7(a) - Replies

1. A reply is necessary under Rule 7(a) if there is a counterclaim by D.

2. Replies occasionally come up to affirmative defenses, but are not required

under Rule 7(a). They can be mandated by the court.

Rule 15 - Amendments

1. Rule 15(a) May amend: any time before a response of pleading is serveda. Or within 20 days if no response permitted.b. Otherwise:

i. Only by leave of court (leave given when justice so requires)ii. or with written consent of adverse party.

2

.

Rule 15(c) RelationB

ack of Amendmentsa. Relation back permitted by law providing statute of limitations orb. Claim or defense asserted in amended pleading arose out of

conduct, occurrence set forth or attempted in original pleading, or

c. The amendment changes the party or the naming of the partyagainst whom a claim is asserted if the foregoing provision is

satisfied and, within the period provided by Rule 4(m)


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1. Beeck v. Aquaslide n Dive Corp. (8th cir. 1977)a) Waterslide: realization two years after complaint that slide wasnot made by D. Inspection by insurance co., finally, by pres. of co.b) D - leave to amend pleadings, leading to sum. judgment for D.c) Rule 15(a): amendments are to be freely given when justicerequires. Except when bad faith, undue delay, etc.d) Possible rule 11(b) violation: lack of reasonable inquiry.

2. Moore v. Baker (11th Cir. 1993)a) P: medical malpractice for failure to advise of alternativeremedies. After motion for summary judgment by D, P moved toamend complaint to assert allegations of negligence. Wantsrelation back underRule 15(c). However, the amendment was not

foreseeable and rose out of a completely different series of facts(during and after the surgery) than the original complaint.

3. Bonerb v. Richard J. Caron Foundation (W.D. N.Y. 1994)a) D is non-profit rehab facility in Westfield, PA.b)

Original complaint filed by P alleges that P was injured while arehab patient at Ds facility. Negligent maintenance of court by D.

c) Court granted Ps motion for new counsel.d) Later, P moved to amend complaint to add cause of action forcounseling malpractice. Relation back underRule 15(c).e) Because arising out of the same facts and because of thetiming (compared to Moore), relation back allowed.

VI. DiscoveryA.Modern Discovery

1. Def: The court-mandated production of information from other partiesand non-party witnesses (broad range).

2. Rule 26(b)(1)26(a) (auto discl.)30 (deps)33 (inter.)34 (prod.)3. Lets parties to find merits, strengths of the opposing arguments.4. One party can wear the other down because of time and money.5. Primary changes in 2000 to rules of discovery

a) Changes in required disclosuresb) Narrowing of def. of material discoverable w/o judicial orderc) Nnational restrictions on the number of interrogatories anddepositions and length of depositions absent a judicial order.d) Set of changes designed to encourage judicial monitoring andpossible cost-sharing of discovery.

B.The Possibilities and Limits of Discovery

Rule 26(b)(1) The Rules giveth The broad scope of discovery1. Allows parties to seek discovery, w/o court approval, regarding any matter

a. not privilegedb. relevant to the claim or defense of any party.c. Good cause may lead to even broader reach of discovery.


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1. Court may compel discovery of any matterrelevant to the subjectmatter (Rule 37) (does not mean that it is admissible).

2. Davis v. Precoat Metals (N.D. Ill. 2002)a) Ps motion seeks discrimination complaints made against D bynon-clerical/non-administrative employees (same groups).b) Courts can limit unreasonably cumulative or duplicativediscovery, or if it can be obtained more easily. (Rule 26(b)(1) discoverable)

3. Steffan v. Cheney (D.C. Cir. 199n0)a) P refused to answer Qs in depositions regarding homosexualconduct and anything not pertaining to legality of his separation.b) Judicial review of admin. decisions limited to basis of ruling.

C.Surveying Discovery: Procedures and Methods

1. Asking questions: Interrogatories and depositionsa) Rule 33: Interrogatories (propounder/recipient) are cheaper,but may not yield details, must ask permission for more than 25,and non-parties need not answer; still must be under oath.

Rule 26 - Discovery

1. Rule 26(a)(1) Required Disclosuresa. Parties must meet early in suitb. Within 14 days, parties must offer names of witnesses and

descriptions of documents that the disclosing party may use tosupport its claims or defenses, as well as calculations of damages,

copies of insurance agreements.

c. Parties request more info. via depositions, interrogatories, etc.2. Rule 26(f) Pre-trial meeting

a. Need for parties to meet each other, submit lists of disclosure.3. Rule 26(a)(1)(E) Exemptions from Discovery

a. Large cases mean judge monitors more closely, disclosure exempt.b. Small cases may be exempt from disclosure.

4. Rule 26(d) Timing and Sequencea. Discover ma not take lace until meetin re uired b Rule 26 f .

Rules 16, 26 and 30 - Limits on Discovery The Rules Taketh Away Limits

1. Rule 16 Pre-trial hearing sets limits of discovery2. Rule 26 privileged or irrelevant matters not subject to discovery.3. Rule 26(c) limitations on discovery done to irritate, annoy, or in bad faith.4. Rule 30(d) limitations on depositions done to irritate, annoy, in bad faith.5. Rule 26(b) limitations because of irrelevance or encroaching on privilege.6. Rule 26(b)(3) trial prep materials only available when party in substantial

need of materials and is unable without undue hardship to get equivalent.

(Work product limitations: See Hickman v. Taylor)


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b) Rule 30:Depositions with lawyers, in offices, answer allunprivileged questions, need permission for more than 20 non-party deps., written depositions (Rule 31)

2. Rule 36: Requests for Admissiona) Party may request an admission in writing of any matterswithin the scope ofRule 26(b)(1)- disclosures.

D.Discovery and Privacy

1. Stalnaker v. Kmart Corp. (D. Kan. 1996)a) P - sexual harassment, hostile work environ. against Kmart.b) D: sexual histories of deposed employees not relevant to case.c) Protective orders prohibiting certain discovery or limitingscope of discovery to certain matters in Rule 26(c)(1) and (4).d) Burden of proof is with party trying to obtain protective order.

2. Schlagenhauf v. Holder (U.S. 1964)a) Greyhound/driver case.b) Rule 35 Applies to all parties, which should include D.c) Good cause and in controversy aspects not shownd) Movant must show that each element to be examined is incontroversy and there is good cause to make such an examination.

E.Discovery in an Adversary System

Penalties for Non-Compliance in Discovery

Rule 26(g)

1. Suggests attorneys fees will be appropriate sanction in most instances.Rule 37: Failure to cooperate in discovery

1. Courts may compel discovery (after parties motion under Rule 37(a)(2).2. Courts may institute penalties of awards, fees, sanctions, dismissal,

default judgment.

3. Parties must attempt to confer with other party before filing Rule 37.

Rule 26(c) - Protective Orders

1. good cause standard that2. movant has, in good faith, conferred or tried to confer with other party,3. either party or person from whom discovery is sought4. protection from annoyance, embarrassment, oppression, undue burden.5. Protective order with respect to:

a. Disclosure or discovery not be had.b. Depositions can be sealed after filingc. and thereafter opened only by the courts.

Rule 34 - Production of Documents; Entry on Land

1. Party can request production of any document within scope ofRule 26(b).2. Permits inspection of land and objects, documents3. Records, documents are usually the backbone of a case.4. Party (Rule 34) v. Non-Party(Rule45(a)(1)(C) subpoena)5. No limits on volume of documents requested6. Overbroad v. overly narrow requests (parties construe narrowly)

Rule 35 - Physical and Mental Examination of the parties

1. Requires special application to the court and showing of good cause.


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Expert Information

1. Rule 26(a)(2): Requires information about experts who may testify andabout basis for testimony, requirement that adversary receive a written

report prepared and signed by witnesscontaining a complete statement

of all opinions to be expressed and reasons (90 days pre-trial)

2. Rule 26(b)(4): A party may discover facts known or opinions held by anexpert who has been retainedby other party in anticipation of litigation

only as provided in Rule 35(b) or upon a showing of exceptional

circumstances that info cannot be obtained otherwise. (non-testifying)

Privilege

1. Rule 26(b)(1): Protects privileged communications from discovery (atty.,priest, doctor, psychologist, reporter?, teacher?)

a. Upjohn: privilege applies between corporate counsel, employee2. Rule 26(b)(5): Party claiming privilege to describe nature of the

documents, communications or things not produced or disclosed in a

manner that will allow parties to assess, applicability of privilege.


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1. Hickman v. Taylor (U.S. 1947)a) Tugboat sank. Motion to compel discovery of notes interviewsby Ds attorney of men on other boats.b) Work-product not discoverable

2. Thompson v. The Haskell Co. (M.D. Fla. 1994)a)

P alleged that as a result of sexual harassment by employee ofD, P was reduced to depression and employment was terminated

when she did not acquiesce to employees advances.b) P seeks to block from discovery psychologists documents.c) Rule: not discoverable through any other manner.

3. Chiquita Intl. Ltd. v. M/V Bolero Reefer (S.D.N.Y. (1994))a) P alleges that D engaged to transport 154,660 boxes of bananasfrom Ecuador to Germany. Some boxes not delivered.b) Attempt to compel discovery underRule 37.c) Rule 26(b)(4)(b)no discovery of facts known or opinionsheld by a non-testifying expert and so anticipates that such an

expert may make his or her own investigation. Only by showingexceptional circumstances that info cannot be obtained otherwise.d) Info not exempt from discovery merely because conveyed tonon-testifying expert. Could be obtained through other means.

F. Controlling Abuse of Discovery

1. Thompson v. Department of H.U.D. (Dist. Md. Ct. 2001)a) Ps are class representatives of Afr. Am. residents ofBaltimores public housing developments.b) Motion by Ps to compel local Ds to provide responsive answersto Rules 33 and 34 discovery requests.c) Focus on burden/benefit factors ofRule 26(b)(2).d) Requests are too broad and need to be narrowed by a good faithanalysis of which requests will be furthered by discovery sought.

2. Poole v. Textron, Inc. (D. Md. 2000)a) P sued D for alleged defects in a golf cart, leading to injury.

Controlling Discovery

1. Rule 26(b)(1): Discovery of anything relevant to claims and defenses.Discovery of any matters relevant to the subject matter can be ordered

by the court.

2. Rule 26(b)(2): limitations: court may place limit number of requests,excessive duplication, excessively burdensome.

3. Rule 26(g): Signinga. Attorneys have to sign disclosures, discovery requests, responses, or

objections, signifying that

i. They are not interposed for improper purposeii. They are not unreasonable or unduly burdensome

iii. They are consistent with rules and warranted by law or agood faith argument for extension, modification, or reversal.


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b) Ps motion for sanctions raising instances of discovery abuse,motion to compel production of documents, and motion to findsufficiency of answers and objections to requests for admission.c) Rule 37: Ct. shall require the party or deponent whose conductnecessitated the motionto pay the moving partyreasonable

expensesincluding attorneys fees unless there was a lack ofgood faith effort by the movant to first obtain the documents.d) Rule 26(g)(3): court can award appropriate sanctions, fees.

VII.Resolution without Trial

A.Default Judgment1. Peralta v. Heights Medical Center (U.S. 1988)

a) Appellee sued Appellant to recover $5600 due underappellants guarantee of a hospital debt of one of his employees.b) Personal, but untimely service of return.

(1)Appellant did not appear or answer.c) Default judgment for amount claimed, attys fees, costs.d) Bill of review in TX courts to set aside default judgment andobtain relief.e) Rule 55 provides for default judgments against defendants whodo not respond.f) 14th Amendment requires Due Process in seizure of property.

B.Failure to Prosecute: Involuntary Dismissal

Rule 55 - Default Judgments

1. After application of the P to the clerk (in cases in which sum is certain).2. Or to the court3. 55(c): setting aside a default judgment in showing of good cause.

Rule 41(b) - Involuntary Dismissal

1. Failure to prosecute2

.

Will operate as an adjudication on the meritsRule 60(b):

1. Allows the re-opening of the case after default judgment is entered.2. Relief from ud ment or order.

Voluntary Dismissals1. Rule 41(a)(1)(i) allows P to dismiss any time before D answers2. Rule 41(a)(1)(ii) allows P to dismiss any time as long as both parties agree.3.

Rule 41(a)(

2

) after D answers, P can dismiss with permission of the Court.


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a) Possible abuses of41(c) when significant procedural mattershave been decided.b) Often in voluntary dismissal cases, P required to pay Ds fees.

2. Involuntary Dismissalsa) Question of how lax a plaintiff must be before a judge shouldenter a dismissal for failure of the plaintiff to prosecute.b) Some states deal with such Ps by setting firm statutory limits inaddition to allowing for judicial discretion.

C.Summary Judgment

1. Law responds to summary judgments only were there are notassessments of credibility, only in analyzing whether there is nodisputed material fact and that moving party is entitled tojudgmentas a matter of law.

a. Diff. from 12(b)(6): facts v. allegations, before/after disc.2. Celotex Corp. v. Catrett (U.S. 1986)

a. 9/80: Respondent started lawsuit alleging death of her husbandresulted from exposure to products with asbestos.

b. P needed to show that product was defective/dangerous,exposure to product, causation of problems by product.

c. Rule 56 motion for summary judgment: failure to produceevidence that Pet.s product was prox. cause of injuriesalleged.

d. Motion for summary judgment granted because of lack ofevidence submitted by respondent.

3. Bias v. Advantage International, Inc. (1990)a. P, parents directed D to get $1 mill. life insurance policy for P.b. P appeals granting summary judgment to D at District Ct. level.c. Because the Estates generalized evidence that Bias

was not a drug user did not contradict the more

specific testimony of teammates who knew Bias

well and had seen him use cocaine on particular

occasions, the Dist. Ct. determined that there was

no genuine issue that Bias was a drug user.

D.Judicial Management of Litigation1. Sanders v. Union Pacific Railroad Co. (9th cir. 1998)

a) Ps counsel failed to comply with almost all of therequirements of the pretrial order (after pretrial conference).

Rule 56 - Making and granting motions for summary judgment

1. 56(c) Motions are to be granted when the record shows that there is nogenuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.

2. 56(e) Do statements have to be sworn to in first person, set outaffirmativel ?


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b) Rule 16(b) allows judges to schedule motions, pleadings,amendments, discovery, modifications, conferences, trial, etc.c) Court did not abuse its discretion because of counselsmisconduct and flagrant disobedience of judges orders.

2. McKey v. Fairbairn (D.C. Cir. 1965)a)

Littlejohn brought suit to recover damages from landlord andagent for injuries from slipping and falling on wet floor.

b) Trial judge did not abuse justifiably large discretion inrefusing to permit P to change theory during the trial.

VIII. TrialA.Limits of Rational Inference

1. Reid v. San Pedro, Los Angeles & Salt Lake Railroad (Utah 1911)a) Alleged in first cause of action that Appellants railroad passesthrough lands in St. Lake City privately owned and that Appellantcarelessly and negligently allowed fence to be broken. Cow mayhave gone through gate (Ps fault).

b) Where undisputed evidence of plaintiff from which existenceof essential fact is sought to be inferred, points with equal force totwo things, one of which renders the defendant and the other not,the plaintiff must fail.

B.Procedural Control of Rational Proof1. Burdens

a) Burden of persuasion: on the preponderance of evidence(1)More likely than not.(2)In even-handed cases, verdict will go against the partywho has the burden of persuasion (usually P).

b) Burden of Production(1)

Needs to produce evidence, documents(2)If P fails to do this, P loses, even if the thing happened

for which P did not produce evidence.(3)Reid- evidence of sagging fence is sufficient to meetburden of production for negligence.(4)Defenses oftentimes bear own burdens of production.

Rule 50 - Judgment as a matter of law (j.m.l)1. 50(a): no legally sufficient evidentiary basis for a reasonable jury to find for that

party on that issue.

2. Because there is no longer really a directed verdict, j.m.l has been substituted.3. Also, motion for renewed judgment as a matter of law possible.

Rule 59 - Grant of New Trials on Motion

1. 59(d): On courts initiative2. Especially when process is flawed: evidence, instructions, misbehavior of juror,

error of jury, verdict against the weight of the evidence


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C.Controlling Juries before Verdict1. Pennsylvania Railroad v. Chamberlain (S.Ct. 1933)

a) Braking after coming over hump on way to track.b) For P: Foreman from far away saw convoy approachingdecedents convoy at an angle, then heard a crash.

c) For D: 19 eye-witnesses never saw crash, although they wereall nearer to the site.d) If there are several inferences deducible from facts whichappear, equally consistent with those facts, P has not maintainedthe proposition upon which alone he would be entitled to recover.

D.Controlling Juries after Verdict1. Lind v. Shenley Industries (3d Cir. 1960)

a) P sales manager for D liquor companyb) Alleged oral promises for raise and a share of commissions.c) D moved for j.n.o.v., granted by judge

(1)In the alternative, a new trial granted.d) Rule 50(c): Conditional new trial if j.n.o.v. reversed, vacated.e) Rule 50: renewed judgment as a matter of law.

2. Peterson v. Wilson (5th Cir. 1998)a) P claims property interest in employment at TSU damagedthrough improper firing.b) P filed suit in Dist. Ct. under 1983 and 1988, 1st, 5th, 14thAmendments. Judgment for P.c) Ct. granted new trial based on verdict and jurors commentsafter returning the verdict.d) Ct. never grant new trial b/c it would have ruled another way.e) Ct. can grant if it is against the great weight of evidence, butnot based on ex parte meeting evidence.

IX. Personal JurisdictionA.Specific Jurisdiction

1. Generallya) Based on two constitutional provisions the full faith andcredit clause (which requires each state to recognize and enforcejudgment of another state) AND the Due Process clause whichstates that no state will deprive a citizen of life liberty or propertywithout Due Process of Law.

2. Jurisdiction Vocabularya)

Jurisdiction: Power to render a judgment against a defendantb) In personam jurisdiction: jurisdiction over the person

(1)Due process requires that in order to exercisejurisdiction over a person, reasonable methods must beemployed to give the person notice of the action and affordhim a reasonable opportunity to be heard


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c) In rem jurisdiction: jurisdiction over the property/things(1)In rem jurisdiction can be obtained if non-resident ownsproperty within state and property is attached pre-judgment

d) Quasi in rem jurisdiction: property to obtain in personam juris.(1)Had attached land before suit began in Pennoyer, wouldhave established quasi in rem jurisdiction; wouldnt haveneeded (pure) in personam jurisdiction(2)Quasi in rem jurisdiction changed in Shaffer v. Heitner:suit must arise from property seized.

e) Special appearance: D appears b/f the court to challenge thecourts personal jurisdiction over her w/o subjecting herself to thepersonal jurisdiction of the court

(1)Need to file a 12(b)(2) motion first, or youve waivedyour personal jurisdiction

3. Pennoyer v. Neff (U.S. 1880)a) P failed to pay Mitchells fee, who sued in OR state courtb)

P was a non-resident who did not appear; judgment entered forMitchell after constructive service summons of publication.

c) After judgment, P purchased 300 acres from federal govt, wasordered seized by sheriff, sold to D, received sheriffs deed.d) For a state court, service of process and jurisdiction onlyoccurs when a non-resident is served within the borders of thatstate. Attachment would have had to occur at the beginning of suit.e) Notice Give D opportunity to respond, fulfill Due Process.f) Power Whether state has exercised power it has, or whetherit is acting outside its scope of power.g) Consent By action/explicit authorization

4. Milliken v. Meyera) D did not appear in WY, although he was a citizenb) Was served in CO according to statutory scheme.c) The authority of a state over one of its citizens is notterminated by the mere fact of his absence from the state.

5. International Shoe Co. v. Washington (U.S. 1945)a) Statute in Washington for a comprehensive scheme ofunemployment compensationb) Assessment of required contributions given to sales solicitor inWashington, copy mailed to appellant at address in St. Louis.c) Appellant has sales reps., models, pays commission,occasionally rents space in WA.d) Within the limitations of due process, a corporation can by itsactivities make itself amenable to actions brought against it there.

The International Shoe Doctrine

Due process requires only that D, if he is not present within the territory, maintain

certain minimum contacts with the state such that the suit does not offend traditional

notions offair play and substantial justice.


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6. McGee v. International Life Insurance Co. (U.S.a) Non-payment of insurance policy in Cal.b) Nationalization of commerce leads to decrease in burden oncompany in defending itself in other jurisdictions.c) Interests of plaintiff in not going elsewhere to prosecute suit.d)

Interest of state in jurisdiction over matters pertaining to it.7. Hanson v. Denckla (U.S. 1958)

a) Whether FL or DE cts. had jurisdiction over trust assets of awoman who set up trust in DE but moved to FL several years later.b) The unilateral activity of P who claims some relationship witha nonresident D cannot satisfy the requirement of minimumcontacts with the forum State.c) D must have purposely availed itself of the privilege ofconducting activities within the forum State, thus invoking thebenefits and protections of its laws.d) Similar to Worldwide Volkswagen v. Woodson.

8.

Shaffer v. Heitner (U.S.a) Directors of Greyhound, seizure of shares of Greyhound.b) The seizure of property cannot create in rem jurisdiction if thesubject of the suit is not that property. (Application of Intl Shoe).

B.Specific Jurisdiction: The Modern Cases1. World-Wide Volkswagen Corp. v. Woodson (U.S. 1980)

a) Ps in car crash in Oklahoma, sued regional distributor, retailer,manufacturer, importer. Regional distributor (WWVW) andretailer claimed lack of specific jurisdiction (Seaway) because oflack of minimum contacts. WWVW and Seaway only did businessin New York area, surrounding states.b) Forum State does not exceed its powers under Due ProcessClause if it asserts personal jurisdiction over a corporation that

The International Shoe Spectrum

G

|

Casual or Continuous |

No Isolated Single But Limited | Substantial or

Contacts Contacts Act Acts | Pervasive

|

|no no specific specific | general jurisdiction

jurisdiction jurisdiction jurisdiction jurisdiction |

|

E.g.: E.g.: E.g: |

Worldwide VW McGee v. Intl Ins.Co. Burger King |Hanson


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delivers its products into stream of commerce with expectationthat they will be purchased by consumers in the forum state.

c) Fair play and substantial justice are measured by:d) Ps interest in obtaining convenient and effective reliefe) Forum States interest in adjudicating the disputef)

Ps interest in choosing a forumg) Interest in maintaining the most efficient system

h) Joint interest in furthering fundamental social policies.i) Burden on D to defend suit.j) Foreseeab. of being called to ct. for claim related to activity.k) Dissent : Mobile nature increased range of specific jurisdiction.

2. Asahi Metal Industry Co. v. Superior Ct. (U.S. 1987)a) Impleader action (cross-claim) by Cheng Suin (Taiwanese tiremanufacturer) against Asahi (valve). Asahi aware that parts wereending up in Cal. Is this sufficient for minimum contacts?b) Due Process Clause requires more than that D was aware of itsproducts entry into the forum State through the stream ofcommerce in order for the state to exert jurisdiction over D.c) Lack of majority opinion (OConnor) means that there is roomfor argument over the actual rule.

3. Burger King Corp. v. Rudzewicz (U.S. 1985)a) D fell behind on franchise payments.b) P sued in Florida federal district court.c) Fair warning requirement is satisfied if D has purposefullydirected his activities at residents of forum and litigation resultsfrom alleged injuries that arise out of or relate to those activities.

4. Pavlovich v. Superior Ct. (2002)a) Real party in interest is DVD Copy Control Assoc., Inc.b) Pet.: resident of Texas, posted anti-encryption technology onwebsite; encryption tech. owned by DVD CCAc) Effects test: jurisdiction could be established based on theeffects of conduct in forum state. Because Pet. Did not have anycontact with Cal., conduct business there, he cannot be found tohave purposely availed himself of business opportunities there.

C.General Jurisdiction1. Coastal Video Communs. Corp. v. Staywell Corp. (E.D. Va. 1999)

a) P sought declaration that handbook produced by P does notinfringe on copyrighted material contained in Krames, Ds

handbook of similar name.b) Only when the continuous corporate operation within a state isthough so substantial and of such a nature as to justify suit againstit on causes of action arising from dealings entirely distinct fromthose activities may a court assert general jurisdiction.c) Because there is no specific jurisdiction (D did not distributepamphlet in VA), discovery allowed into general jurisdiction.


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2. Burnham v. Superior Court (U.S. 1990)a) Transient or tag jurisdiction.b) Service of process for divorce while in Cal. on other business.c) Jurisdiction based on physical presence alone constitutes dueprocess because it is one of the continuing traditions of our legal

system that define the due process standard of traditional notionsof fair play and substantial justice.

D.Consent as a Substitute for Power1. National Equipment Rental v. Szukhent

a) Ds rented farm equipment from Ps in NYb) Ds designated woman in NYC for accepting service of process.c) Such service is constitutional.d) E.g. of real consent rather than consent implied by contacts.

2. Carnival Cruise Lines, Inc. v. Shute (U.S. 1991)a) Cruise ticket that has Florida law forum clause on ticket.b) No bad faith motive, legitimate interest in having forum inFlorida although there is no bargaining parity.

E.Constitutional Requirement of Notice1. Mullane v. Central Hanover Bank & Trust Co. (U.S. 1950)

a) Trusts: assets deposited by a first party (settler) with secondparty (trustee) for the benefit of third parties (beneficiaries).b) Notification of parties for settlement through newspaper.c) Ds had addresses of Ps, could meet with them.d) Notice must be reasonably calculated to contact person.e) Process that is a mere gesture is not due process.

F. Venue1. Different from jurisdiction (authorized by 28 U.S.C. 1391)

a) In diversity jurisdiction, venue appropriate where:(1)Judicial district where any D resides, if all Ds reside inthe same state(2)Judicial district in which a substantial part of the eventsor omissions giving rise to the claim occurred, or asubstantial part of the property that is the subject of theaction is situated.(3)Judicial district in which any D is subject to personaljurisdiction at the time of the action is commenced, if thereis no district where the action may otherwise be brought.

b) In non-diversity jurisdiction cases, venue appropriate where:(1)Same as (a)(1)(2)Same as (a)(2)(3)Judicial district in which any D may be found, if thereis no district in which the action may otherwise be brought.

2. Contrast with personal jurisdiction: under p.j., suit can be broughtanywhere in state where jurisdiction exists.

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