Civ Pro Outlines
Civ Pro Test Outline
Civil Procedure: Cases and Materials 6th Edition
John C. Cound, Jack H. Friedenthal, Arthur R. Miller, John E. Sexton
Rush v. City of Maple Heights
Res Judicata--final & binding dec.
Issue of Preclusion
Claim of Preclusion
Stare Decis 4 lower cts
Leg. v. Jud
1) Leg.
1. Det. the jxn. of cts
2. Can overrule any C/L
2) Jud.
1. Follow statutes as long as Const.
2. Dec. Const.
3. Defer D in C/L 2 leg. usually
Pennoyer v. Neff
Terr. sov. of state & ct.
In Personam Jxn--FF&CC, Res Judicata, Preclusions (issue & claim)
In Rem--No Res Judicata, & Preclusions (issue & claim)
Quasi In Rem--No Res Judicata
Dir. Appeal
Collateral Appeal
Grace v. MacArthur
P. 74 Nt 4
Served notice in plane which is valid b/c terr. land up
Milliken v. Meyer
P. 73 Nt 5
Cant take irreconciliable difs collaterally
Persons Home is basis 4 jxn
Gen Jxn
Domicile (Milliken v. Meyer)
Presence (Grace v. MacArthur)
Sys & Cont. (Int. Shoe)
Specif. Jxn
Specif. issue like car (Hess) / tax (Int. Shoe)
Hess v. Pawloski
Specif. Jxn
Spec. Appearance
Appeal both jxn & merit
Implied consent 2 reach jxn 2 non-residents (agent 4 serv. w/in state)
Statutory construction issue--Statute giving rise 2 C/A
PA statute giving jxn over auto accident
Int. Shoe Co. v. Wash.
Statutory construction issue--statute giving rise 2 C/A
Const. Issue--due process
Jud. Jxn
1. Jxn 2 adjudicate
2. Rendering binding dec
Leg. Jxn
Subst. law jxn
L-A Statute--only need 14th amend. arg. 2 go as far as Const. permits
Min Contact
1. Trad. notions of fair play & subst. justice
2. Rsblness 2 subj. D & notice
3. Basis 4 specif. jxn but eventually 4 gen
4. Purposefully comes in contact w/the state
Facts
1. Salesmen resided in Wash.
2. Their activities in state where commissioned
3. Supplied them w/line of samples 2 display 2 purchasers
4. Rented perm sample rooms
5. Merchandise shipped into Wash.
6. Systematic solicitation of orders
McGee v. International Life Insurance Co.
Statute 4 C/A
No need 4 serving in state
Rsbl stand. b/c subst. dealing in state CA although just 1 busi.
Purposeful Availment
Options of D
1. Default
2. Spec. Appearance--preserve jxn pt in dir. appeal
Facts of Contacts
1. One policy w/McGee in CA
2. K delivered in CA, premiums mailed there
3. Resident of CA
4. CAs int.
Hanson v. Denckla
Collateral Attack
NO prop., min. contact, / purposeful availment so no jxn by FL
Limit the reach of states
Facts
1. Trust in DL
2. Moved 2 FL
3. Ded beneficiaries in FL
4. DL Co. not present in FL
World-Wide Volkswagen Corp. v. Woodson
No jxn. b/c no purposeful availment, no min. contact
1. Fair play & subst. justice 2 D
2. Terr.
Manufacturers should anticipate but Distributors dont 4 prod. liability
Specif. Jxn
1. Arise out of the contacts 2 purposefully avail or related 2 the
contacts / axns
2. Axns/contacts R dired @ the forum state
Brennans Dissent that look @ all parties, choice of law relev.
Unilateral activity by P isnt enough 2 find jxn over D
Facts
1. Bought in NY
2. Accident in OK
3. No contacts of sales, servs,advertise, /purposefully avail
themselves 2 the law
Keeton Case
Statute gave rise 2 C/A
Multi-state jxn b/c arise out of more than 1 state
Potential of Specif. Jxn.
Hussler & megazines
Burger King Corp. v. Rudzewicz
Fed. Ct. proceedings
Choice of law provision which is dif. from selection of forum
Purposefully Avil 2 the law b/c contractually agree 2 the law of FL
Sliding Scale of Brennan
1. Purposeful availment & Min. Contact v. Fairness,
Subst. Justice,
Rsblness
2. If really fair, not need as much of purposeful availment &
min. contact
3. If really unfair, doesnt matter if lots of min. contact ested
5 factors of fairness
1. The burden on the D
2. Forum states int. in adjudicating the dispute
3. Ps int. in obtaining convenient & effective relief
4. Interstate jud. syss int. in efficient resolution of controversies
5. Shared int. of the several states in furthering fund.
subst. soc. policies
Burdens of Proof
1. P has burden 2 prove jxn & contact
2. D has burden 2 prove a compelling case of unfairness
Accomodation of unfairness by D of venue
Facts
1. BK in FL while franchisee in Mich.
2. Choice of law, benefit, K of subst cnxn w/FL, reached deliberately
beyond Mich., negotiations, vol. acceptance, mail & telephone
Asahi Metal Ind Co. v. Superior Ct.
Stream of Commerce
1. Manufacturer & Importer put the prod dirly into stream of commerce
2. Five justices said its enough & should anticipate b/c purposeful
availment
3. Four justices said need more
Additional activities D dired purposefully @ the forum state 2 stream of
commerce 2 est. jxn
1. Designing the prod. 4 the mkt in the forum state
2. Advertising in the forum state
3. Esting channels 4 providing regular advice 2 customers in the
forum state
4. Mkting the prod. through a distributor who has agreed 2 serve as
the sale agent in the forum state
Brennans Sliding Scale
1. Compelling case of unfairness
2. Foreign element
Consistency in indemnification
Facts
1. Asahi manufactures 2 Cheng Shin
2. Aware that valve sold 2 Cheng Shin will B sold 2 US
Perkins v. Benguet Consolidated Mining Co.
Gen. Jxn--unrel. 2 cause of axn / not arising out of that state
1. Pres maintained an office on behalf of the Co.
2. Office files maintained
3. Correspondence reling 2 the busi. of the Co.
4. Drew & distributed salary checks
5. Used banks in OH 4 balancing Co. funds
6. Meetings held @ home
7. Supervised policies of the Co.
Cont. & Sys
Helicopteros Nacionales de Colombia v. Hall
Gen. Jxn not enough
Foreign element
4 pts failing gen jxn
1. No place of busi. in TX
2. One trip by chief executive officer 2 Houston
3. Acceptance from Consorcio/WSH of checks drawn on a TX bank
4. Purchases & the reled training trips of helicopter
Jxn over Prop.
No limited appearance
In personam immly upon enter
Issue preclusion
Prop incls movables like horses & debtors
Harris v. Balk
Respect FF&CC so debtors can B seized
Ontario & Vermont
Attached the obligation 2 defend by ins. co.
Shaffer v. Heitner
Overrule quasi-in-rem
Subst. law application doesnt translate into jud. jxn
Est. Min. Contact of Int. Shoe requirement
Due Process Clause used 2 overturn whats been accepted b/c not follow
w/the notions of modern socs view
Del. stocks were attached 2 get the directors
Burnham v. Superior Ct.
Due Process
1. Scalia claims that wont thrown out historically feasible things
2. Brennan claims that evolves w/the era so the stands can D so apply
Int. Shoe stand w/Ding X
Physical Presence still good 4 jxn
Accidental/Transitory Presence
1. Scalia--o.k.
2. Brennan--no P.A. b/c no choie & unilateral activity of someone not
connected 2 D so no jxn.
Facts
1. Busi. trip then visit children for the weekend where served
Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee
Consent by D that ct. in PA will have jxn 2 det. if have jxn
Discovery Issue
M/S Bremen v. Zapata Off-Shore Co.
Consent in K 2 use London Ct.
Admiralty isnt binding on state ct.
Amer. cts cant B 2 parochial in international law
Carnival Cruise Lines v. Shute
K w/selected forum
1. FL has int.
2. Cost lowered=AF by it
Admiralty isnt binding on state ct.
Omni Capital international, Ltd. v. Rudolf Wolff & Co.
Const Issue
1. Fifth Amend.
2. Contact w/entire US
Statute
Need it 4 the ability 2 serve process
Rule 4(k)
1. Lec. 16
2. Serv. of summons effective
3. Jxn of gen jx of state ct--meet state statute req.
4. Impleader Rule of 100 miles
5. Authed by fed. law
6. Sub 2 addresses contact, pers. jxn, fed law, & not subj. 2 gen
jxn of state
Fairness
1. Change in venue
2. Not pertinent 2 5th Amend. so less imp in fed. law
Facts
1. CEA act used
Rule 12
Lec. 17
Mullane v. Central Hanover Bank & Trust Co.
Const.
1. Suff of Notice under 14th Amend.
2. Test--Rsbly calculated under all circs 2 afford them theopp. 2
present objs
Binding req. 4 min. notice 4 all states
Subj. Matter Jxn
Dismiss any X ct lacks subj. matter jxn Rule 12)h)3
Imp. 2 systemic rts of fed. govt & jud. pwr cant B waived by indiv.
Diversity
1. Art. III Sec. 2
2. Suits btwn cit of dif. states, btwn cit. of state & alien
3. Cong. Act of 1789--min. jxnal amt
4. No incompl. diversity by Strawbridge v. Curtiss--=A71332
Removal
By =A71441 must have had orig. jxn
Manufacturing Fed. Jxn
Not allowed by =A71359--no improper collusive 2 manufacture
Defeating Fed. Jxn--o.k.
Cit of Fictitious names R disregarded by =A71441(a)
Corporation
By =A71332 c)1), its a cit. of any state where incorp & where it has
princ. place of busi.
Limited Partnership
All cit. of partners count
Mas v. Perry
Domicile
Orig. b/c no intent 2 stay in LA
Supplemental Jxn
1. By =A71367 take other cases & sweep in
2. Common nucleus of fact
3. One person must @ least have orig. jxn
Last paragraph of =A71332a--alien perm res., cit of the state
Det of cit.--@ filing
Burden of Proof--person who brings suit
Min. Jxnal Amt
1. Appear 2 a legal certainty that the claim is really 4 less than
the jxnal amt 2 justify a dismissal
2. By =A71332b, Ct can deny costs 2 P & impose costs if P gets less
than jxnal amt
AFA Tours Inc v. Whitchurch
Test 2 det. min. jxnal amt--unless legal certainty its less
Ct. takes the active role in subj. matter jxn
Injunction
Both P & Ds values taken into acct
Backgrounds 2 Osborn
Art III =A71--inferior cts
Art III=A72--jud pwr 2 extend 2 law & equity arise under Const. laws, &
treaties
Specif. Jxnal Statutes--open up Dist. Cts
28 USC =A71331--Gen Fed Quest Jxn; same lang. of Const
28 USC =A71441--Removal Statute
Osborn v. Bank of the US
Statute--gave C/A
Const Issue--arise under meaning of Art III
Orig. Ingredient 2 form a creature of fed. govt
Louisville & Nashville Co. v. Mottley
28 USC =A71331--1875 gen fed.
Well Pleaded
1. Not really about Art III
2. K case injecting fed. issues
Sep. Statute--review states decs on fed. quests
Restrictive Reading of =A71331
Skelly & Franchise Tax Case
Declaratory Judgment Act of 1935--no good against well pleaded cases
^ back to top
Civ Pro Outline2: Subj. Matter Jxn, Venue,
State Law in Fed Ct., Fed. Law in State Ct, Modern Pleadings
Backgrounds 2 Osborn
Art III §1--inferior cts
Art III§2--jud pwr 2 extend 2 law & equity arise under Const.
laws, & treaties
Specif. Jxnal Statutes--open up Dist. Cts
28 USC §1331--Gen Fed Quest Jxn; same lang. of Const
28 USC §1441--Removal Statute
Osborn v. Bank of the US
Statute--gave C/A
Const Issue--arise under meaning of Art III
Orig. Ingredient 2 form a creature of fed. govt
2 arise under Art III, there must B fed. ingredient
Louisville & Nashville Co. v. Mottley
28 USC §1331--1875 gen fed.
If P's claim arises from state law, matter can't B heard in fed. ct
Well Pleaded--P's complaint must show that essential element of
claim & suit arises under fed. law not from Ds defense
1. Not really about Art III
2. K case injecting fed. issues
Sep. Statute--rev states decs on fed. quests
Restrictive Reading of §1331
Skelly & Franchise Tax Case
Declaratory Judgment Act of 1935--no good against well pleaded cases
Bases 4 fed. jxns
Cong. specif'ly open up in a statute
Well pleaded complaint
Art. III giving rise 2 subst. of fed. quest.
Merrel Dow Pharmaceutical Inc. v. Thompson
Facts
1. State claims w/1 violation of fed. state axnable by
state (FDCA)
2. Ct. of Appeals said that if only 1 fed claim against 5
state, then no fed. quest.
3. Sup. ct. said if truly 1 fed. claim, then can use
§1367 4 suppl jxn.
If there's no express/implied C/A in fed. statute, then
Cong. didn't intend 2 open up so no remedy
4 removal, see if there was orig. jxn
If stand. incorp'ed in state based C/A, Cong. didn't intend 2
create priv. C/A so can't open up fed. ct.
Novelty of issue is insuff. 2 confer fed. jxn
Cort v. Ash
4 part test 4 priv. C/A implied
1. P in class of statute
2. Leg. intent
3. Purposes consistent
4. Trad. in state law
Not a good law except 4 Const. & old Cong. statute
Bivens v. 6 Unknown Named Agents of the Fed. Bureau of Narcotics
Implied C/A in Const. Amend.
Smith Case Rule
Holmes Dissent--case arises under the law that creates it
Can arise under more than 1 sov.'s
Shoshone case was an exception by statutory construction
If state incorporates fed. provision, then theres fed. jxn
Moore Case distinguishable b/c didn't allege fed. statute
Merrel Dow Case distinguishable b/c Cong. didnt intent 2 create remedy
Suppl Jxn
UMW of Amer. v. Gibbs
Common nucleus of facts test
2 step analysis
1. Jud. pwr 2 hear by Art. III
2. Discretion
Factors of discretion
3. Needless dec. of state law avoided/novel state quests
4. If fed. claim dismissed, should dismiss state claims
5. If state issues predominates, may dismiss
6. If indep of jxnal issues, jury R confused
Not deal w/C/A v. grounds as set by Hurns v. Oursler
Pendant parties
Aldinger v. Howard
Fact
1. P sued county under state & police under fed
Distinguished pendant parties v. claims
3 step analysis
2. Art III of pwr.
3. Fed. statutes
4. Discretion
Owen Equipment & Erection Co. v. Kroger
Still a good law
No suppl. jxn 4 impleading which results in incompl. diversity
Finley v. US
Changed the test of fed. statute negating 2 actively affirming
the jxn
§1367
Overruled Finley v. US
Sub a)--Unless express exception, axn w/in such orig. jxn that
form same case; joinders & interventions R also o.k.
Sub b)--In diversity, can't have suppl jxn over claims against
parties under
Rule 14, 19, 20, 24; Ps of Rule 19; & intervene as Ps under Rule
24 if incompl. diversity created (all joinders after orig. parties)
Sub c)--Discretion factors: novel claims, state claims
dominates, fed claim
dismissed, & exceptional circs
Sub d)--State statute tolled 4 30 days
§1441
Removal statute
Sub a)--if orig. was able 2 bring, remove 2 where axn pending
Sub b)--dont care about ress/cits except in diversity in which
case can only
remove if none of the parties in D is a citizen of the state its brought
Sub c)--sep. & indep. claim w/in §1331 joined by non-removable
` claims, then
entire case may B removed
Sub d)--if any civil axn brought against for. state, removed
where axn pending
Removal only by D
Zahn v. Int. Paper Co.
Facts
1. Same waterfront residents bring suit 4 water pollution
2. No diversity case
By §1367)a, can satisfy joinder req.
Subj. matter defects
Rule 12)h)3--can throw out whenever lack subj. matter jxn (Mottley)
B/c of Const. /Statute dimension unlike pers & venue jxns
DiFrischia v. NY Central R. Co.
Only suppl jxn addresses staute of lim. in states
Diversity cases must rely on states 2 toll
US v. United Mine Workers
Even when ct. lacks subj. matter jxn, follow judges orders
Willy v. Coastal Corp.
Ct. can do a lot of stuff even if lack subj. matter
Collateral Attack
Pers. Jxn
1. No limited/spec. appearance--waive
2. Default--attack later collaterally
3. Defend jxn pt.--cant walk away
Res judicata v. policy that cts can't go beyond their boundaries
Rest 1
4. Collateral attack w/balancing factors
5. Clear lack subj. matter
6. Quest. of law & det. of jxn
7. Limited ct.
8. Jxn quest. not litigated
9. Policy strong against cts acting beyond
Rest 2
10. Default--can collaterally attack subj. & pers. jxn
11. Contested then can attack if no justifiable int.s of
reliance +
12. Subj. matter plainly beyond or
13. Infringe on auth. of another tribunal/agency of govt
(Kalb) or
14. No pwr 2 subpeona witnesses 4 fair proced.
Durfee v. Duke
Can't collaterally attack on factual basis
Kalb v. Feuerstein
In bankruptcy area, Cong. wanted state cts 2 stay out
Lack of subj. matter jxn so subj. 2 collateral attack
§1391
Venue may B waived if not set up like pers. jxn by Rule 12)b)3
Sub a)1--in diversity, venue where D resides; if all D's in same
state, can choose
Sub a)2--venue where sub. events/ommissions giving rise 2 the claim
Sub a)3--venue where Ds R subj. 2 pers. jxn only if no other
dist. exists
Venue can no longer B brought where P resides
Sub d)--an alien may B SUED in any dist.
Transfer of Venue
§1404a)
1. Transfer of venue where it could've been orig'ly brought
(Hoffman Case)
2. Justice & Conv.
3. If P & D consent, then doesnt matter
4. Use this statute if there was orig. jxn over venue &
pers. jxn
5. Transferors law holds in transferees forum
6. Transfer is discretionary
§1406 a)
7. If improper venue, then has the option of transferring
cases where it could've been brought
8. Apply the law of transferees instead of transferors
§1631
1. Can transfer 2 cure pers. jxn defect
2. Apply the law of transferees instead of transferors
Factors 4 transfer
3. Witnesses
4. Ease of Proof
5. P's choice
Little occasion 4 forum non conveniens since can transfer
Forum Non Conveniens
Piper Aircraft Co. v. Reyno
Facts
1. Accident, witnesses, plane, pilot in Scot / Eng.
2. Reyno is CA res. who brought suit 4 prod. liability
Removed by §1441)a in CA dist ct.; diversity & axn pending, then
go 2 embracing
Does §1332)c)2--does it apply 4 legal rep. of the estate of
decedent deemes 2 B a cit. of the same state? no b/c Scot not a state
Found pers jxn over Piper by §1391 a)3; transferred 2 PA
Ct. of Appeals
3. Replaced their judgment b/c of abuse of discretion
4. If det. that outcome is less favorable, can't dismiss
Sup. Ct.
5. Only 1 of the factors, not det. factor, is that if
outcome is less favorable
6. Burdensome is the def. of forum non conv.
Stay v. dismissal v. injunction
7. Stay the axn so if Eng. won't take, can retake the case
8. If dismiss, no res judicata so can go elsewhere but
can't take back
9. If injunction, prob. of national, fed, & counterinjunctions
Not carry Const. weight of min. contact (14th Amend.) so
not binding on state cts
Don't want people elsewhere 2 litigate in Amer.
Choice of law is through conflict of law provisions
Can exercise rt. 2 remove w/o waiving pers. jxn
Gulf Oil Corp. v. Gilbert
Cited factors 4 forum non conv.
1. Private int. of the litigant--ease of access 2 proof,
cost of witnesses, view of premises, other practical probs
2. Enforceability of a judgment
3. P's choice of forum shouldn't B disturbed unless by
choice vex, harass, / oppress D
4. Pub. int.--adm. difficulty (congestion), jury duty
Not good 4 inter dist.
Choice of Law
Conflict of law rules usually through C/L
There's some restraint on states through 14th Amend. 2 use the law
that had some contact
Dif. facets of trxns can B gov'ed by dif. laws which R goved by
conflict of law rules
Swift v. Tyson
Gen Fed C/L should govern where not bound by any state dec. if
there's no state statute
Interprete §1652 that laws of the sev. states don't incl.
unwritten law
Forum shopping encouraged
This era looked 2 states 4 proced. rules
Erie R. Co. v. Tompkins (1938)
Overrule Swift b/c
1. Cong. couldn't leg. in this area by Art I so illogical
that ct. could
2. Diversity can B created 2 get around the state law
3. Polit., Soc., & benefits didn't come
Probs of Swift
4. State cts didn't follow fed. cts dec's b/c not binding
so no uniformity
5. No equal protection of the law b/c of diversity
6. State pwrs R eroded
7. Invites state leg. 2 D the law so fed. would follow
the state law
8. Classification prob. of local laws v. gen. laws
9. Took over huge area of law by Gen Fed C/L
Promotes uniformity w/in the state not btwn Fed. Cts
Subst law incl's conflict of law rules
Dist ct. must apply the local subst law where it sits
10. Doesn't address the proced. laws
Twin Aims 2 B used when no Fed. proced. rule on pt.
11. Discourage forum shopping
12. Avoid inequitable adm. of law
Same yr., Fed Rules of Civ Pro was promulgated so that instead of
applying state proced rule w/fed subst law, now apply fed proced rule
w/state subst law
Guaranty Trust Co. v. York (1945)
Apply subst state law & proced. fed. law
Since Erie was about whether the fed ct can entertain axn when
state ct. can't, subst means outcome determinative
Erie York Doctrine
Uniformity w/in state is an imp. princ.
Proced. is det'ed by outcome
No Gen Fed C/L & not allow manufacture of diversity
Byrd v. Blue Ridge Rural electric Coop. Inc.
Balancing Test
1. If proced. rule & mode of trial is bound up 2 state
created rts, must apply state law (must B specif. rts)
2. By policy of uniform enforcement, where state rts Rnt
bound up, if state rule disrupts fed. sys. even when outcome det.,
then not follow the state rule
3. Apply if there's no Rule/statue of fed. (in combination
w/Erie twin aim test)
Hanna v. Plumer (1965)
Test
1. As long as Rules cover the sit. textually, then trumps
any contrary state rules, laws
2. Fed. Ct. must apply Fed. Rules unless Adv. Committee,
Sup. Ct, & Cong. erred prima facie by Enabling Act/const. Restriction
3. If Const Rule, must apply
Stewart Case Org. Inc. v. Ricoh Corp.
Embellished Hanna: extended 2 fed. statute
Enabling Act is where Statute/Rule is promulgated by Sup Ct.
persuant 2 Cong. not vetoing in 6 months
Look 2 Eries twin aims if no statute/Rule
Klaxon Co. v. Stentor Electric Mfg. Co.
Apply states conflict of law provision when fed. ct. applies the
law of state
Want uniformity w/in state
Mason v. American Emery Wheel Works
If Fed dont know, can abstain / certify a quest. 2 the highest ct.
of the state
Unusual that the Circ. Ct. would overrule the state law
If Circ. Ct. was wrong, still res judicata which is the dang. of
fed. ct. opining on state law
De Novo Rev.--no deference 2 what the dist. ct. says; encourages appeal
Spec'ed Fed C/L in State Ct.
Todays speced Fed. C/L is binding on state cts
Uniformity among speced fed. C/L
Req. speced fed C/L when fed. int. is imp.
Clearfield Trust Co. v. US
Erie Rule not applicable b/c its not a diversity case where fed.
ct. sits like state ct.
Cong. can change fed. dec's but if Erie Rule gov'ed, Cong. couldn't
change state laws
Cong. is silent on how fed. cts should fashion law so fed cts
have choices
Fed. subst. law apply here b/c want 2 see nationwide uniformity
Sources that det. fed. law is case law so look @ cases from Swift
4 spec'ed fed C/L
Automatic push toward uniformity
Facts
1. JC Penny guaranteed check 2 Clearfield & Clearfield
g guaranteed 2 US
2. Clearfield wanted PA law 2 apply
US v. Kimbell Foods Inc.
Deemphasis of uniformity
Erie still does not control but fed. int. doesn't nec.'ly mean fed.
subst rule gov's the case
Weigh & balance policies: Need 4 uniformity v. Fed. Rules dont
disrupt commercial rel.'s of state law
This is maj. now, not Clearfield
Miree v. DeKalb County
No automatic Fed subst. law
Must look @ part. issue 2 dec. application of fed. v. state law
State law govs here b/c really about breaching K
Fed. reg. rules about trash cans doesn't translate 2 US as
beneficiary
Fed law govs the meaning of K but not the case
Bank of Amer. Nat. Trust & Savings Assn v. Parnell
Priv. indiv's suing so not a Clearfield case
Bonds R imp. 4 treasury but should look @ the issues not the outcomes
There's no need 2 resolve the entire case by 1 law
Fed Law in Suppl. Jxn
If implead by §1367, entire trxn should B gov'ed by fed. law
(Clearfield Ex.)
If dec'ed 2 bring sep. axn as in Clearfield v. JC Penny, then by
Supremacy Clause, state cts must still follow Fed. C/L
Fed Law in §1331
4 purposes of fed. law arising under the Fed. Const. & Law, fed.
C/L is incl'ed in the Fed. Law
Cases under Fed. C/L can B brought under §1331 w/o diversity /
suppl. jxn
Fed Law in State Cts
State cts must take fed quests & apply fed. law
If any mistakes, US Sup. Ct. can review @ appropriate Xs
Dif. from when fed. cts make mistakes of state law--res judicata
Testa v. Katt
Still good law
Application of Penal law
US isn't sep. state but co-exists w/other states
Sup. Clause does not allow state ct. 2 not enforce fed. law
Must enforce fed. axn except in valid excuse
1. Forum non conveniens--must B nondiscriminatory forum
non conveniens
2. If state ct. doesn't have jxn conformable 2 subst. of
the case
Dice v. Akron, Canton & Youngstown R. Co.
Fed. C/A so cant bring in subst. state law defenses
If letting state law control alter fed. law / uniformity, then
apply fed.
Jury trial was found 2 B fundamental 2 FELA act; bound up rt. of
the act
Hence, no mere local rule of proced. should B used
Cong. can force proced. in state ct. by Nec. & proper clause;
should write statutes superseding state proced. in clear &
unmistakeable lang. in concurrent jxns
Exception --usually state proced. govs the case
Brown v. Western Ry. of Ala.
Fed. rt. cant B denied by local practice
Seventh Amend. is NOT binding on states
Modern Pleading
Gillispie v. Goodyr. Service Stores NC
State Case
Dif. view of purpose of pleading from fed. notice pleading
Rule 8
Sub a)1--Short & plain statement of the grounds
Sub a)3--Demand 4 judgment 4 the relief
Sub a)2--Short & plain statement of the claim; dif. from
statement of facts
Rule meant 2 overturn Code States pleading facts
Allegations would suffice under Fed. Rule
Rule 9
Rule 8)a guides unless this Rule which trumps general pleading
Exception 2 Federal Rules of Civ Pro's tendency 4 notice pleading
Form 9
X & place is imp. 4 pleading
As long as pass Form 9, o.k.
Diogouardi v. Durning
Only need suff. of statement of claim not facts
Only dismiss if fail 2 state a claim upon which relief can B granted
Fact--P filed complaint w/o an atty 4 injury of not auctioning @
the rt. price
Lodge Int. Ass'n of Machinists v. united Aircraft Corp
Motion 4 more def. statement by Rule 12)e
Still need 2 claim that Ps pleading so vague that D cant frame a response
Not asking 4 dismissal
Rule 12)e is read restrictvely 2 not undermine Rule 8)a)2
Although granted motion, P didn't need 2 ans. any part of the
motion until its own discovery phase
Not a good auth. on Rule 12)e
Probs of Descriptive Pleading
If dif. later, unfair notice 2 D
More particular the pleading, more problematic
Conley v. Gibson
Notice Pleading
Leatherman Case
Code states wanted 2 plead ultimate fact but not evid. facts
Cts differ on these interps
Feds moved away from this
McCaughey v. Schuette
Ds demur denied & P won
State sup. ct. said should've affirmed dismissal b/c pleaded evid. facts
Remanded 4 new trial
Rules 4 Notice Pleading
Main Rule is 8)a)2
Rule 12)b)6--move 4 dismissal b/c of failure 2 state claim; subj.
2 Rule 56; like a demur; it's a summary judgment
Rule 12)e--used very rarely; req. more definite statement; If
look @ Rule 8)b, party w/o knowledge / info suff, can state that & that
would B denial
Rule 12)f--pwr of ct. 2 dismiss & strike certain allegation as
redundant, scandalous, irrelev.
Rule 10)b--put sep. counts in; D ans's each sep'ly
Rule 9
Sub b--malice, intent, S/M of fraud/mistake then plead part.'ly;
exception 2 Rule 8
Sub f--X & place suff. of pleading; venue & stat. of lim. concerns
Sub g--spec. damage rule so plead w/specificity
Rule 8)e)2
Can make 2 / more statements of alt. / hypothetically
Subj. 2 Rule 11
Rule 11
Sub a--All papers must have attys sig. except discovery;
continuous duty
that papers R correct; every X U rely afterwards, must B correct
Sub b--any papers 2 the ct, U R reping 2 the best of Ur
knowledge; rsbl inquiry under circs; obj. stand
Sub b)1--Not improper
Sub b)2--Law allow/extension allow
Sub b)3--Alleg. & other factual contentions should have facts
supported / ID those that R likely 2 have support after rsbl opp. 4
further investigation
Sub b)4--Denials of factual contentions R warranted on evid. / ID
rsbly based on lack of info / belief
Sub c)--Sanctions may B imposed 2 law firm not just atty
Sub c)1)a--By motion; 21 days 2 correct & end matter
Sub c)1)b--Ct. takes own initiative so more serious & no 21 days rule
Sub c)2--Punish by nonmonetary nat., penalty 2 ct. / dir'ing
payment 2 movant of rsbly attys fees / other expenses
Sub c)2)a--No $ sanction against reped party
Sub c)2)b--If ct. starts initiative, then can't have $ sanction if
the parties settles / disposed the case
Sub c)3--Ct. describes conduct violation & explain so will B
honest & Appeal Cts can look
Ziervogetl v. Royal Packing Co.
Rule 9)g violated b/c didn't specif'ly state spec. damages
Spec. damages when ord'ly doesn't occur
Unfair if not give notice; no surprises
Missouri Ct. of Appeals Case
Rule 15
Sub b--issues not raised by pleadings can B tried by
express/implied consent
If D doesn't obj. then implied consent during trial
If D obj's then Rule 15 allows pleading 2 amend unless obj'ing
party can show that would prejudice the party; obj'ing party has burden
2 prove
Wide latitude 2 discourage reliance on pleading
Bail v. Cunningham Bros Inc.
Rule 54)c--P is bound by lim. of ad damnum clause only when D defaults
Again, deaccentuates role of pleading
Can show prejudice, otherwise no limit 2 damages
Haney v. Burgin
Raised the amt. each X
Rule 54)c should B the goal
Rule 6)b
Ct. can enlarge
Discretion
Rule 12)a & Extension
X per.
When ask 4 extension, ask 4 what U want; extension in 1 count
doesn't mean extension 4 other counts
Zelinski v. Phil. Piers, Inc.
Rule 15)c--Can add Carload as D notwithstanding stat. of lim.;
can amend pleadings; stat. of lim. tolled if satisfy sub 1, 2, / 3
Sub 1--Rel. back 2 orig. pleading permitted by law prov. of stat.
of lim.
Sub 2--Claim same from con., trxn, / occurrence
Sub 3--If change the party in the same case w/in per. of Rule 4)m
of 120 days + cts add'al amt, o.k.
Sub 3)a--D received notice so won't B prejudiced in maintaining defense
Sub 3)b--D knew/should've known that axn would've been brought if
n not 4 mistake
Even in aff. defense, admission takes precedence over gen. denial
Facts
1. Z hit by a fork truck; thought had rt. D PPI but
actually Carload operated it
2. PPI & C. had same insurance co.
Rule 8)c
Aff. defense must B pleaded by D / waived
Burden of pleading & proving on D
If not plead aff. defense, which U have, probably can't present
evid. in trial
If take on aff. defense & didn't need 2, then burden of sustaining
Ingraham v. US
US party like priv. indiv. so can have defense by the statute
limiting tort damages
US didn't raise aff'ly
Ct. said 2 late 2 raise
Taylor Case
Allowed govt 2 come back @ late state
Better rule than Ingraham b/c taxpayers $ was spent
Reply
Unimp. in Fed; deaccentuate pleading
If counterclaim specif'ly laid out & denominated, then P has
obligation 2 reply
Moore v. Moore
Rule 15--implied consent 2 try issues not raised in pleadings;
custody case
^ back to top
Civ Pro Joinders, Class Axn, & Sep. Test
Outline
Joinders
Rule 18: Joinder of Claims
1) Claims listed
1. Orig. claim
2. Counterclaim
3. Cross claim
4. Third party claim
2) No trxnal nexus
3) May throw in as many claims as like as long as
"opposing parties"
4) Jxn
1. Still need 2 run through subj. matter jxn,
venue, & pers.
2. If 2 claims like SEC & auto collision truly
arises under the common nucleus of operative facts then must go
through §1367)a
3. If no common nucleus of fact, then look 4 diversity
5) Permissive Assertion w/ Res Judicata
1. Not reqed by the Rule 2 assert
2. Res judicata prob. where trnxal claims barred
whether asserted / not
3. Hence, people assert b/c of res judicata
Harris v. Avery (State Claim)
1) Code case
2) Same trxn
3) D can sue 4 any claims
Sporn v. Hudson
1) Neg. & malicious prosecution
2) Concerns
1. Jurys bias by malicious prosecution
2. Might give punitive instead of compensatory damages
3. Since prejud., best 2 go forward sep'ly
Rule 13: Counterclaim
1) Counterclaims
1. Must rel. 2 subj. matter of the opposing
party's claim
2. Trxnal threshold 2 det. compulsory v. permissive
3. Any claims against the "opposing party" not P
v. D
4. Cross claims may become counterclaims since
co-parties may become "opposing parties"
2) Compulsory Counterlclaim: Rule 13)a
1. Must state if arises under the
trxn/occurrence; Rule 13)a
2. Incl's prop. damage 2 (Rush Case)
3. In diversity & §1367)b--prevents P from doing
things so D must assert counterclaims
4. Preclusive conseq's--Must assert counterclaim
in state ct. otherwise can't assert in fed.
5. If axn commenced / in another axn, pleader
needn't state the claim--Rule 13)a)1
3) Reply
1. If denominated as counterclaim, P must reply
2. If not reply, then defaults
4) Omitted Counterclaims
[1] Discovery
1. Rule 13)f & Rule 15--May amend when
just. req's
[2] After Trial
1. Rule 13)e--Claim matured / acquired by
the pleader after serving a pleading
2. Can B counterclaim by suppl. pleading
3. Discretion of the ct.
[3] Rule 15)c
1. If rel's back 2 the orig. pleading the
claim/def. asserted in the amended pleading arose out of the
cont., trxn/occurrence
2. If trxnally rel. back, o.k.
[4] S/L
1. Erie & state law
2. State law seems 2 gov. if state
provides S/L
Cross Claim
1) State Subst. & Fed. Proced. Law
1. If diversity / suppl. claims, then must go
through Erie 2 see if state allows subst. law such as contrib. / indem.
2. Just b/c Fed. proced. doesn't mean have C/A
3. If no state subst. rt 4 indem., then can ask 4
dismissal 4 failure 2 state a claim: Rule 12
4. Rule 13)g, Rule 13)h, & Rule 14 4 proced. of
cross claims & impleading
2) Jxn
1. Always go through jxnal analysis again
2. Most subj. matter jxn probably from suppl.
through same trxn
3) Rule 13)g
1. Claim against co-party
2. Must arise out of the trxn
3. May incl. a claim that's the suit
4. May state not must so permissive
4) Rule 13)h
1. Join parties by Rule 19 / 20 if counter claim
/ cross claim
Goodhart v. US Lines Co.
1) Not really a good law
2) Gen'ly ct. doesn't have the discretion 2 not allow party
2 come in by Rule 14
3) Rules allow regardless of prejud.
4) When it's a good law
1. If go over the X limit & ask the ct. 2 use discretion
2. D can still sue ee (employee) indep'ly
Impleader
1) Rule 14
1. P can bring claim against the person impleaded
2. P may not must assert trxnally rel'ed claim
against 3PD (3rd party D)
3. Again Erie 4 state & fed if fed. claim 4 subj.
matter jxn
2) §1367: Suppl. Jxn
1. No suppl. jxn over P's claims against persons
made parties by Rule 14 (§1367)b) destroying diversity
2. 3PD may assert trxnally rel'ed claims b/c was
dragged in
3. The statute covers P not 3PD & 3PD not
considered P's 4 this statute
4. Once 3PD sues P, open quest. whether P can sue 3PD
[1] Apply plain meaning of statute, P
can't counterclaim against 3PD
[2] Cong. didn't mean 2 incl. counterclaim
in suppl. jxn b/c there's sep. statute of counterclaim so P
can counterclaim
Joinder of Parties
1) Continuum of Joinders
1. No joinder possible b/c not w/in Rule 20; no
trxnal nexus
2. Joinder permissible by Rule 20; trxnal nexus
3. Ct. trumps P's choice & strangers (S) must B
joined by Rule 19)a; S may B P / D
4. Cases where must join but can't by Rule 19)b
can cont. w/o joinder / dismiss; if dismiss case, then S called
indispensable party
2) Ryder v. Jefferson Hotel Co. (SC Case)
1. Husb. & wife as guests so by Rule 20 wouldve allowed
2. Was a state case
3) Tanbro Fabrics Corp. v. Beaunit Mills, Inc. (NY, Yarn case)
1. Ideal case 4 joinder 2 sue both mfgr. & processor
2. Won't get inconsistent jury verdict
4) Sun-X Glass Tinting of Mid-Wisconsin, Inc. v. Sun-X
Intl Inc.
1. Eight people joined but sep. b/c defraud indep'ly
2. Couldn't join b/c didn't state commonality
5) Akely v. Kinnicutt
1. Probably should've been class axn case since
193 P's
2. Still satisfy same commonality by same fraud
6) Rule 20 v. Rule 42)a
1. Joinder of parties harder than consolidation
2. Joinder req's trxnal nexus & commonality of law/fact
3. Consolidation req's only commonality of law/fact
7) Rule 20 v. Rule 19
1. Rule 20 only permissive b/c "may" & subj. 2
ct's discretionary
2. Rule 19 is mandatory joinder
3. If reinterp. 19, would swallow up 20 joinders
but ct. not do that
4. Joint & sev. not 19)a case
5. Rule 20 guides but subj. 2 how interp. Rule 19
8) Rule 19)a
1. Sub 1--Join if relief can't B accorded but not
usually fit this b/c P won't complain of no relief if orig'ly not want
joinder
2. Sub 2)ii--join if subst. risk of multiple
oblgn but if P didn't care, then ct. shouldn't care; care more 4 D but
they could've joined by Rule 13)h, Rule 14, etc.
3. Sub 2)i--Imp. category: absence as a pract.
matter may impair/impede persons ability 2 protect int.; not
res judicata but pract. matter such as stare decisis; if broad
interp, can incl lot
9) Rule 19)b Sits
1. If fit 19)a but can't join, then nec. party;
jxnal prob's usually
2. Consider 4 factors 4 dismissing / cont'ing w/o
joinder in equity & good consc.
3. Imp. factor--if another forum, then go there;
adeq. remedy if dismissed
4. Others --lesson prejud., adeq. judgment w/o
join, & prejud. 2 orig. parties
10) Provident Tradesmens Bank & Trust Co. v. Patterson
(Sup. Ct.)
1. If Ductcher joins, subj. matter diversity destroyed
2. Since can't go anywhere if dismiss (S/L run),
can det. lesson prejud. in equity & good consc. so not dismiss
3. Pragmatic approach & called Dutcher nec. party
11) Dismissal of Nonjoinder Proced.: Rule 12)b)7
1. Failure 2 join a party under Rule 19
2. Not waived if didn't set this up 1st X
Interpleader
1) Def.
1. Usual case, when owe but don't know who 2 give
$ 2, then interplead 2 parties & give $ 2 ct.
2. Solves no res judicata prob. b/c w/both
parties in 1 trial, won't need 2 pay twice
2) Rule 22
1. Proced. 4 interpleading but still subj. 2
jxnal probs
2. More problematic w/diversity b/c need compl.
diversity, min. contact, & amt.
3. Last resort
4. Use only if claimants in same state / fed.
quest. jxn
3) Statutory Interpleader: §1335, 1397, & 2361
1. Min. diversity req'ed by §1335 inc's jxnal amt.
of $500 & if 2/more claimants from dif. states
2. Min. diversity Const. by Tashire Case
3. Specif. venue so look @ §1397 not §1391;
anywhere claimants reside
4. Nationwide jxn & serv. by marshall by §2361
but no subst. law
5. Restraining order 2 enjoin any state/fed. proceedings
6. Can get rsbl attys fee
7. Can only use the statutes 4 §1335, min.
diversity stat. interpleading not w/Rule 22
4) X Frame
1. If @ trial interplead, o.k.
2. If after trial, probs w/res judicata so can't
Intervention: Rule 24
1) Sub a
1. As of rt. if X'ly & not adeq. rep. &
2. Statute gives rt. / int. rel'ing 2 the
prop./trxn which is the subj. of axn & pract. matter impair/impede
2) Sub b
1. Permissive intervention
2. No need 4 inadeq. rep.
3. Discretion 2 consider delay: unduly delay /
prejud. party's rt.
4. Need same quest. of law / fact OR statute
5. B/c discretion, hard 2 appeal
3) Atlantis Devt Corp v. US
1. Res judicata not essential 4 intervention but
if find it, ez'est case
2. Stare decisis cause pract. impairment; en banc
rare & can't go 2 another circuit
3. Not dec. merits 4 intervention hearing
4. Need precise int.: same piece of prop, int.
in very trxn b/c not want lots of suits
4) Rule 19 & 24
1. Usually 19)a then 24)a
2. Before 1966, had 2 care about jural rel. but
now only care about trial strategy & pract. stuff
3. Same lang.'s but dif.
[1] 24 req's adeq. rep. but not 19)a
[2] Someone else wants 2 come in but
forced in 19)a
5) Smuck v. Hobson (class axn black kids; parents wanted
2 intervene)
1. Allowed but limited 2 appealing issues that
affect parents
6) Provident Case Sugg.
1. If had rt. 2 intervene, not come in later
2. Case in 1989 w/black firefighters & consent decree
[1] Cong. unhappy that strangers could
intervene so passed statute; if title 7 case,
judgment, & S had actual knowledge but not intervene, then bound
[2] Even if no actual knowledge, 2nd
case, orig. party fight 2nd X loses, orig. dec. holds
Class Axn
Ethics
1) Attys duty 2 Class not 2 Client so should inform
client before dec.
2) Judges Resp.
1. Unsually not care if people fail 2 make motion
/ stipulate wrong facts b/c of jud. eff.
2. Since bind absent people, dif.
3. Care about what other judges say
4. Can dismiss atty & get another
Rule 23)a: Prereq. of Class
1) Sub 1: Numerosity
1. Joinder impract.
2. Over 40 good, under 25 not good--gen'ly good reqt
2) Sub 2: Commonality
1. Common quest. of law / fact 2 the class
2. Not that the application of the law is the same
3) Sub 3: Typicality
1. Diffictul criteria b/c merges 1,2,& 4
2. Claims of rep. typical 2 class
3. If suppl. state claim (allowed usually) & req's
lots of dif. state laws, then may not B typical
4) Sub 4: Adeq. Rep.
1. Indiv. rep. adeq'ly & member of class
2. No conflict of class
3. Adeq. atty rep. b/c bind strangers who didn't
reach out 2 the atty
Collateral Attack
1) Strangers Not Bound
1. Not frowned upon
2. S's can always attack in later suits
Trial Strategies
1) D tries 2 kill the class
1. Indiv's won't file
2. S/L would run
2) If can't kill, try 2 broaden & use the class
1. If win, can get res judicata of everybody
2. If lose, most cases will B settled
Tacking 3 mo's if dismissal
1) S/L runs, but if class axn improperly brought, tack 3 mo's
Rule 23)b: Class Axn Categories
1) Not mutually excl. & no jural rel.
2) b)3 (practitioners case)
1. Common law / fact predominates & class axn
superior vehicle 4 eff. adjudication
2. Manageability
3. Rule 20, trxnal nexus rel.
4. Only $ damage
5. Discretionary class
6. Rsbl notice & Indiv. notice if rsbly id'able by
Rule 23)c)2
7. Option of opting out
[1] If not opt out, then bound unless
collateral attack
[2] If 2 many people opt out, then look @
numerosity & superior vehicle again
3) b)2 (civil rts cases)
1. Injunctive
2. Little $ o.k. but if a lot turn 2 b)3
4) b)1)a
1. Focus on prejud. 2 those opposing the class
2. Only $ damage, then can't B this class
3. Incompatible stand. of cond. results from
indiv. cases
4. All bound & no notice
5) b)1)b (limited fund case)
1. Seldom used
2. Indiv. members as pract. matter B hurt
3. Ex. of punitive damages where 1st people would
eat up $ so can't pay next people
4. No notice
Certification of Class
1) Ct. certif. order
1. Rule 23)c)1 says as soon as practic., ct.
shall det.
2. No merit heraing
3. Conditional order so not appealable @ this X
Res Judicata: Rule 23)c)3
Sub Classes: Rule 23)c)4
Dismissal w/Cts Approval: Rule 23)e
1) Cant dismiss w/o approval
2) Must look @ fairness
3) All notified in such manner as ct dir's
Attys Fee
1) Amer. Rule of Class Axn
1. If big $ damage, ct. will grant fee b/c rep'ed
people not client
2. Probs in calculation like hrs, multipliers, etc.
Hansberry v. Lee (IL State Case)
1) Not Binding Strangers
1. Hansberry (H) not bound b/c int. not rep'ed in
1st case
2. Can't bind strangers 2 stipulations if not rep'ed
2) Bound People
1. Parties 2 litigation
2. Adeqly rep'ed by parties who R present
3. Actually participated in the conduct of the
litigation so vitual parties
4. If joint so jural rel.
5. Present but absent cases where legally
entitled the former 2 stand in judgment 4 the latter
3) Const. Consideration
1. Fourteenth Amend. of due process 4 min. stand.
of decency of fairness, trial, etc.
2. Can't bind people not adeq'ly repe'd
3. Can't rep. people antagonistic 2 U
Gonzales v. Cassidy
1) Collateral Attack
1. S attacked the judgement in 2nd suit
2. In 2nd suit, S has rt. 2 det. if class axn met
& Const.
3. But pract'ly, usually give deference
Eisner Case
1) Unmanageable Notices
1. Class b)3 axn but couldn't give serv. 2 3/4
mill. people
Wetzel v. Liberty Mutual Ins. Co. (Ct. of Appeals)
1) b)2 Class w/o injunction
1. First certified as b)2 but didn't need injunction
2. Can't D 2 b)3 class axn b/c of unilateral
activity of D
Gen. Telephone Co. v. Falcon (Sup. Ct.)
1) Probs
1. Looks like promotion case not hiring case
2. Can't go into EEOC, rt. 2 sue, sue, & then
broaden 2 incl. hiring
3. No factual allegations
4. Hiring means apply & then not hired so wrong 2
put "would've applied" in class definition
2) Art III won't allow promotion & hiring as same class
3) Subclasses
1. Sep. into subclasses w/rep. 4 each
2. Can join them by Rule 20 & trxnal nexus
3. Need dif. attys
4. Can't rep. the world b/c everybody has own int.
4) Holding
1. Indiv. case won but not class 4 promotion
5) Indiv. Suits After Class Axn
1. A member of class can sue after 4 indiv. but
not gen. (Cooper Case)
Diversity Probs
1) Art III allows U 2 pick & choose class rep. 2 have
dif. cit.
2) Can't add up min. jxnal amt. where rts. R sev. & jural rel.
3) Opposite effects on cit. & min. jxnal amt.
4) Zahn Case
1. Can't have pendant jxn over those who don't
2. Policy of not want a lot of diversity cases
3. Can't add up min. jxnal amt.
4. Not overruled by sec. 1367 when sep. parties;
can argue sub b didn't carve out Zahn
5) Snyder Case
1. Don't want 2 aggregate min. jxnal amt.
Phillips Petroleum Co. v. Shutts (state ct)
1) Absent P's Min. Contact
1. D raised jxnal pt. b/c wanted res judicata
2. Not req. P's min. contact b/c not same as D
having min. contact
3. Not req. opt in & aff. opt out b/c FRCP also
has it so can't declare state opt out unConst.
4. This holding only 4 P class axn & $ damage;
not 4 equity relief & not D class axn b/c of grave due process prob.
2) Choice of Law
1. Apply law where int. start 2 run & what the
rate is
2. Assumed that Kansas law dif. from OK, TX, etc.
4 conflict of law
3. Kansas can't apply Kansa law 2 trxns not rel'ing
2 Kansas
4. Law may B dif. 4 each trxn
5. States have a lot of latitude b/c not dev'ed much
3) Const'al Underpinnings of Choice of Law
1. Due process clause: can't deprive life, etc.
if no contact whatsoever, & apply law, then violates
2. FF & CC: must apply in some case of other
states law
Separation
Rule 42)b: Sep. Trials
1) Rsns 4 sep. trials
1. In furtherance of conv. / 2 avoid prejud.
2. Econ. / expedite
2) Still jury trial
3) Claims list same as Rule 18
4) Sep. of State Claims
1. If violate subj. matter jxn, state claims
should go 2 state after sever
2. If diversity, sever, then keep in fed ct.
3. If suppl., sever, then 2 state ct.
4. Issue preclusion prob.; Sup. Clause says state
must give issue precl.
Rule 21: Misjoinder & Non-joinder
1) Improper joinder severed not dismissed
^ back to top
Discovery and Motions 2 End Before Trial
Test Outline
Discovery (discov.)
- Background
- Slow Appreciation
- Thought @ 1st fishing expedition & intrusive
- Then enthusiastically embrace b/c reach just dec. by
no surprises
- Then sick of discov. b/c used 2 bludgeon opponent
into settling
- Stand. Interrog. Quest's Lead 2 Disclosure
- Stand. interrog. quest's R list of people who know
the case, relev. doc's, & experts but before disclosure,
hassled about whether req'ed 2 give
- Disclosure req'ed once litigation, must give cert.
things in cert. X per.
- Still have depo, interrog, etc. but also disclosure
- Rules 4 Discov.
- Main Rule: Rule 26
- Most imp.
- Gen. rule of discov. unless trumped by specif. local
rule/more specif. fed. rule which were stipulated, /
dir'ed by order
- Mech. Proced: Rules 27-36
- Rule 30: deposition (depo)
- Rule 33: interrogatories (interrog) where write out
quest.
- Rule 34: prod. of doc's
- Rule 35: phys. & med. exam
- Rule 36: req. 4 admission (adm)
- Prof. Berch only wants passing familiarity of
specif. but focus on adv. & disadv. of the mech's
- Sanctions: Rule 37 & Rule 26)g
- Sanctions & sig.
- Like Rule 11, Rule 26)g has rsbl belief & rsbl
inquiry
- Structure of Rules
- Local Rule can trump
- Fed. rules gen'ly 4 uniformity but here opposite
- Do your part even if opponent doesn't b/c ct. will
take care
- Rule 26: Main Rule
- Disclosure before Discov.
- Sub a)1-3 disclose names, dates, addresses, etc.
- After disclosure then discov.
- Sub a)1: Initial Disclosure
- ID all who has relev. info
- ID all doc.'s & where located but not mean they R
discov'able
- Sub a)2: Disclosure of Expert Testimony
- ID expert testimony & if not tell, then sanction of
no expert witness
- Sub a)3: Pretrial Disclosure
- Initial disclosure wanted simple knowledge but want
more now
- ID witnesses expected 2 call, depo, / expect 2 call
if need 2
- ID docs expected 2 present / present if need 2
- Name of experts
- Sub a)4: Form of Disclosure
- Writing, signed, served, & promptly filed
- Unless otherwise dir'ed by order / local rule
- If mistake & neg. which rsbl person wouldn't, then
sanctioned
- Sub b: Discov. Scope & Limit
- Imp. that sub 1 says discov. only 4 relev.
nonprivileged matter
- Sub 1: relev is rsbly calculated 2 lead 2 discov. of
adm'able evid.
- Discov'able not mean adm'able
- Lindberger v. Gen. Motors Corp def's priv.
- Sub 2: ct. can limit by order/local rule on # of
depo & interrog.'s, lengthof dep, & # of req's
- Sub b)3: Work Prod.
- See Hickman v. Taylor def'ed priv. where if write
something on memo
- Disclosure not trump this rule
- Sub c: Protective Order
- Gen'ly if get discov. req., do it otherwise
sanctioned
- Sub c compels 2 give up
- Move by party who doesn't want discov. 4 protective
order
- Must make prima facie case
- Gen. lang. but Marresse Case def'ed
- Someone initiates & ct. can do in camera, seq'ing,
redacting, order P's atty not 2 tell client, etc. so lot
of discretion
- Sub d: X'ing & Seq'ing of Discov.
- Entitled 2 info but not now so not give discov.
- Sub e: Suppl. of Disclosure & Responses
- If something then duty 2 suppl. it
- If expert added, amend seasonably otherwise no
expert
- Other party can't B surprised & will B sanctioned
- Sub f: Mtng of Parties; Planning 4 Discov.
- Parties meet 4 discov. & plan
- Scheduling conference 14 days before schedule
- Shouldn't discov. before mtng
- Sub g: Signing & Sanctions
- All Rules subj. 2 this providing that signing
disclosure, response, etc. has serious conseq's if wrong
- Sub 2 Sig. of atty certifies that 2 best of signer's
knowledge, it's after rsbl inquiry the req.,
response/obj. is
- Sub 2)a: consistent w/Rules & law
- Sub 2)b: No improper purpose
- Sub 2)c: Not unrsbl/unduly burdensome by needs,
discov. already made, amt in controv., & imp. of issue
- Sub 3: if no subst'l justification then sanction
- Marrese v. Amer. Academy of Orthopaedic Surgeons
- Facts
- Fraud in state axn before going 2 fed.
- Issue & Claim Preclusion & Res Judicata
- No res judicata b/c in state, state claim but
anti-trust fed. claim in fed. ct.
- Claim subj. 2 claim precl. even if unasserted but
jxn'al bar so would think res judicata not apply
- Sup. Ct. said claim precl. b/c Forum 1(F1) even if
no jxn b/c could've split axn but still no res judicata
by jxnal bar
- Contempt Not Appealable Until Final
- Appeal & Scope of Rev.
- Appeal must B X'ly & scope of rev., cite latest
cases, & get 2 merits
- Dissent thought abuse of discretion was the stand.
- Can't B de novo stand. b/c then lots would B
overturned
- Posner only mentions erroneous but never say the
stand.
- Divulgence v. Privacy
- Legit aspects of institution that should B protected
so need 2 balance
- Civil Rts cases where death if reveal names b/c of
racial prob. but may need info b/c highly relev. so 1st
Amend. concerns both ways
- Posner's View that Predatory Discov.
- But gen'ly don't come 2 fed until thrown out of
state so not really predatory discov.
- Ordering Discov.: Rule 26)c
- For merits, can redact, cut the names out & put dif.
names 2 make a case
- Do noncontroversial discov. 1st
- In camera where judges look @ the paper
- Gag order (not mentioned here) where P's counsel
sees discov. but not tell P
- Class Axn Observation
- Not matter if class b/c wouldn't save this case
- Seattle Times Co. v. Rhinehart
- Facts
- Wanted list of relig. members
- Prob's b/c may B inflammatory
- Free speech, pub. v. not wanting the list 2 come out
- Protective Order
- Limited 2 pretrial civil trial stuff not 4 other
sources
- Not offend 1st amend.
- Wash Ct. wouldn't allow pub. but Sup. ct. allowed
but limited
- D got the info b/c of Rule, also has protective
order
- Deposition: Rule 30
- Proced.
- Oral quest's & ans's of witness of party & party so
imp. b/c can get non-party
- Like trial w/transcript & oath
- Purpose
- Discover info under oath
- Can impeach if change story by locking witnesses 2
their story
- More spontaneous than interrog.
- When witness unavailable, can record testimony &
read as evid. in trial
- Can read admissions 2 jury by Rule 32 w/o impeaching
- Uncontroverted so no issue of fact in depo
- X'ing
- Rule 26)d & f which has pretrial conf. but ct. can
trump everything
- Notice
- If party, only need notice
- If non-party & want cert, then notice & subpoena 2
compel b/c then could B in contempt of ct. but not
req'ed 2 subpoena
- Corporation Officers: Rule 30)b)5 & 6
- Depo org. but not know who in org. knows relev.
info, then org. designate those who can testify, gen'ly
those who will B good 4 org.
- Failure 2 Show Up: Rule 37)d (party), Rule 30)g)2
(nonparty only notice), Rule 45 (nonparty w/subpoena)
- Party not show after notice, then could charge atty
fee / in egregious violation get sanctions, default,
precl., etc. & try 2 get case dismissed
- Nonparty not show & no subpoena, then charge the
party giving notice 2 pay the other party
- Nonparty not show & was subpoenaed, then sanction
against witness
- Obj's & Priv's: Rule 30)c
- Can obj. & save priv's of sustaining the obj's
- If fail 2 obj., then waive priv's
- Can seek order term'ing depo
- Interrogatories: Rule 33
- Stand.
- List of all people, doc's, etc. of potential stuff
- Disclosure so no real need 4 interrog's
- Rule 33 Applies Only 2 Parties
- Party prep. ans.'s w/atty
- Purpose
- Get detailed info unlike depo b/c party would prep.
ans. w/the atty
- Can't get smoking gun though
- Quest's That May B Priv'ed
- Can not ans. quest. & obj. w/specificity by Rule
33)b)4
- Atty sign the obj. by Rule 33)b)2
- If other atty didn't think is priv'ed then can go 2
ct. 2 compel by Rule 37)a)2)b
- Can also ask 4 protective order but %'ly burdensome
& could B wrong
- Record Handover: Rule 33)d
- If ans. in record, can give it 2 other party if no
more burdensome
- Unwise b/c may B giving smoking gun if give
everything
- Prod. of Doc's: Rule 34
- Prob's of Good Cause Before
- Had 2 make motion & show good cause 2 get doc's
before
- Motion thrown out if no good cause / couldn't i.d.
doc's
- Notice & Disclosure
- Rule 26)a now so disclose all relev. doc's w/o
motion
- Notice o.k. & no good cause reqt as long as relev. &
unpriv'ed
- Subj. 2 work prod. doc, disclose doc's
- Nonparty
- Nonparty compelled 2 prod. doc's by Rule 34)c,
subpoena, & Rule 45
- Notice 4 dir'ly getting doc's from nonparty & if not
prod, sanctions
- Phys. & Mental Exam: Rule 35
- Party, Under Custody, / Legal Control Only
- Reqt's
- Controv.
- Look @ pleading 2 know what's in controv.
- Good cause
- If P suing, good cause as matter of law but
harder w/D 2 set up b/c of Const. dimension
- Reciprocity Rule: Rule 35)b
- P complies w/D's Dr's exam & it's priv'ed but P asks
4 it then waives priv's
- If D supplies b/c of req., then D can get P's exam
of all like report before & after w/o req. even though
may have been priv'ed before
- If D supplies w/o P's req, then still priv'ed so
long as didn't ask 4 it
- Schalgenhauf v. Holder
- Facts
- Dist ct. ordered 9 med. exam when D only wanted 4
- Sued airline & named pilot 2 can fit under Rule 35 2
get med. exam
- Phys & Med Exam Not Subst. Rt. w/in Hanna's Rule
- Benning v. Phelps
- Ct.order isn't same as req'ing med. report so priv'ed
- Request 2 Admit: Rule 36
- Admission of Fact
- If fail 2 ans. w/in 30 days, consid'ed 2 have
admitted
- If denies truth, then sanctions by Rule 37)c)2 4
rsbl expenses of making proof & atty's fee 4 not
admitting genuineness but must have rsbl ground 2
believe party might prevail
- If iffy ans, can compel ans. by Rule 36)a 2 det.
suff'cy of the ans./obj's & can't obj. on ground of
triable issue
- If admit, then concl'ly est'ed unless ct. o.k.'s
w/drawl unlike other interrog. / depo where can
undermine in trial
- Scope of Use
- Things under oath like depo can B used against you
in any other cases
- Admission is 4 the case/pending axn only & not 4
others
- Rsbl Investigation
- Rsbl inquiry not just obj.
- As is available 2 the party not the person signing
- Privileges
- Three Categories
- Work Prod. Rule
- Claims of Priv's
- Atty-Client Priv's
- Waiving Priv's
- If show witness work prod, then no longer work prod.
b/c witness can B cross examined on what he saw
- If show client work prod, then destroys atty client
priv.
- Work prod. probably more limited waiver
- Work Prod. Rule: Rule 26)b)3
- Rule 26)b)3
- Must B in anticipation & show need, prejud. like
Hickman but party / nonparty can get own statement w/o
showing so takes out of work prod. 4 signed doc's
- Ct. protects against disclosure of mental
impressions, concl's, opinions / legal theories
concerning litigation 4 memo b/c ct. not want 2 redact
forever / discourage memos
- Disclosure
- By Rule 26)a req. disclosure of existence of work
prod.
- Admit have it not mean other party can get it
- Admit b/c ct. must rule on it
- Facts Not Part of Work Prod.
- Only insulates notes, memos but not facts so can't
cite work prod. in interrog. 2 avoid fact
- Facts never priv'ed
- Finding fact not make fact priv'ed only doc's U work
on is priv'ed
- Hickman v. Taylor
- Facts
- Tried 2 get D's atty's material who refused
- Categories of Info Rel'ing 2 Witnesses
- Written & /signed statements
- Memo but no witnesses' sig's
- Note / recollection of communication
- Mistakes
- Can't use Rule 33, interrog's, against atty only 4
parties but can use Rule 34
- Didn't do depo & then demand
- Atty Client Priv. Not Apply b/c Not Clients
- C/L Work Prod. Rule
- Not had Rule 26)b)3
- Not priv'ed w/in meaning of Rule 26)b)1 b/c atty not
thought about it but outisde the arena of discov. by
custom
- Doc's not discov'able unless nec. & w/o prod. would
unduly prejud. prep. of petitioner's case cuasing
hardship/injustice b/c mental impression in file
- Need 2 show good cause like witnesses died not
checking prep.
- Must B in anticipation of litigation not in ord.
course of busi.
- No showing of any nec. can B made under the circ. of
the case 2 prod. oral statements & rare sit. justifying
such prod. b/c hard 2 make somebody remember & conflict
of int's
- Atty Work Prod. Rule v. Rule's Gen. Work Prod.
- Read only as atty work prod. so 4 atty's econ. adv.
since only 1 insulated
- Not true by Rule 26)b)3 which incl's other party's
atty, consultant, surety, indemnitor, insurer, / agent
- Ins. co. by def. is in anticipation of litigation
- Case v. Rule
- All written/signed must show good cause v. show some
good cause, etc. so basically same thing
- Hard Part of Hickman
- Full & fair ans's in interrog. so not need the doc's
anyway
- Claims of Privilege: Rule 26)b)5
- Used 2 not ans.
- When party w/hold info otherwise discov'able b/c of
priv. / subj. 2 protection, then make claim expressly
- Also tell there's such doc's w/o revealing the
content
- Atty Client Privilege
- Only Communication Priv'ed Not Facts
- Upjohn Co. v. US
- Facts
- Co. took bribery & got caught
- Cooperated b/c was scared but not turn over doc's of
interviews
- Atty Client Priv. of Corporation
- Control group is any indiv. w/facts should B
insulated 2 insulate communication since corp. is the
client
- Any conversation w/present employee (ee) w/info
subj. 2 priv.
- Past ee's not subj.
- Corp's Atty
- When atty talks 2 any people, subj. 2 priv. b/c of
corp. but each indiv. not priv'ed b/c atty not rep. them
- Client always corp.
- Atty's gen'ly not rep. both corp. & indiv's
- Precedent Quest.
- Not binding on state b/c not Const'al dec. of due
process
- Diversity in fed. ct, Erie & Hanna would've said
binding but Fed. Rules of Evid. say in diverisity, look
@ state law 4 rule of priv.
- Binding only 4 fed. quest. in fed. ct.
- Work Prod.
- Must show stronger showing of nec. & unavailability
by other means
- Priv. only protects disclosure of communication not
disclosure of underlying facts
- Perry v. W.S. Darley & Co
- Dist. Ct. Opinion That's O.K. Rule
- Not req. name & id experts that R basically
retained/spec'ly employed
- But must still disclose trial expert
- Can always label experts disfav'able as nontrial
expert
- Rule 26 Not Overturn This Case
- Sub a)1)a: discov'able info
- Sub a)3: discloses only experts 2 B used as
witnesses in trial
- Sub a)2)a: disclose name & id of witnesses used in
trial
- Sub b)4)b: trial prep. experts, then work prod. &
need 2 show exceptional circ's which is gen'ly not
possible
- Sanctions: Rule 37 & Rule 26)g
- Interrog's Unans'ed
- Rule 37)d imm'ly sanctions if fail 2 ans.
- Can get sanctions of Rule 37)b but not contempt b/c
contempt only when fail order
- Can also ask ct. 2 compel, then Rule 37)b 4 failing
order but indir. way
- Rule 26)g
- Disclosure & discov. a little dif.
- Not quite same sanctions b/c not get $ 2 ct. sys.
- Like Rule 11 of rsbl inquiry that correct but harder
b/c sig. of atty certifying 2 best knowledge, after rsbl
inquiry the response/obj. is by Rule 26)g)2
- Sub a: consistent w/Rules & law
- Sub b: nothing improper like delay
- Sub c: not unrsbl / unduly burdensome/ expensive
given the needs of the case, amt. in controv., imp.
of issue
- Sub c prob. b/c not know where the line is but ct.
recog. & not penalize 2 much
- Sub 3: if no subst'l justification then sanction
- If Client Lies on Stand, Must Tell Ct.
Motions 2 End the Trial
- Summary Judgment (Sum Jgmt): Rule 56 & Rule 54)b
- Dif. from Motion 2 Dismiss
- Motion 2 dismiss b/c even if facts correct, no legal
ground
- Sum jgmt is when facts not support even if legal
claim
- Burden 2 Prove Triable Issue of Fact by Party Opposing:
Rule 56)e
- Can't rest on mere allegation/pleading if moving
party met the burden
- Affidavit so long as pers. knowledge of facts
admissible in evid. & affiant would testify
- Can also get depo
- Only need 2 show triable issue of fact not jgmt
(same test w/dir'ed verdict)
- If do nothing 2 oppose, then over b/c not show
triable issue of fact
- Deposition 2 Oppose: Rule 56)f
- If affidavits of party opposition the motion can't
show facts essential 2 justify denying sum. jgmt then
ct. can refuse the application / order a continuance 2
permit ffidavits, depo's / discov.
- If Celotex gov'ed, where sum jgmt w/o any affidavit,
then more need 2 get depos 2 oppose
- Bad Faith: Rule 56)g
- If affidavit by moving party in bad faith, then
movant must pay expenses & atty may B disbarred so
serious
- Gen'ly not invoke this 1st
- Discov. Tool
- If move 4 sum jgmt, must come up w/lots 4 issue of
material fact so can B a tool 2 know the theories of
D's, witnesses, proof, etc.
- Create Issue of Fact v. Jury Consid.
- As long as create issue of fact, go 2 trial 2 jury
- Jury may consid. stuff other than issue of fact
though
- Ct. recog's jury may say something dif. but still
grant sum jgmt by issue of fact b/c if not, no mech. 2
control lwr ct.
- Sum Jgmt Denied
- Not a jgmt but go 2 discov. & trial
- Sum Jgmt Granted
- May not B final jgmt, not appealable, & subj. 2
revision any X before entry of jgmt dep'ing on judge's
lang. in order
- Final Sum Jgmt: Rule 54)b
- In multiple claims/parties, ct. MAY, not must, dir.
the entry of final jgmt
- Can dir. 4 1 / more but fewer than all claims
- Final only if meet 2 criterias
- Express det. that no just rsn 4 delay
- Express dir. upon entry of jgmt
- Other form, SHALL NOT term. the axn of any
claims/parties & subj. 2 revision before the entry of
jgmt adjudicating
- Characteristics of Non-Final Jgmt
- Can't get damages on sum. jgmt claim until other
claims all judged
- If law changes, then judge can change sum jgmt
- If sum jgmt finalized, then res judicata & can't
reopen if Sup. Ct. announces new rule but if not
finalized then must reopen since Sup. Ct. retroactive
effect unless good rsn
- Disadv's of Final Sum Jgmt
- Have 2 fight the case on appeal if opposing party
appeals
- S.t's they appeal just 2 harrass
- Inconsistency of Rule 54)b v. Rule 56)d
- Last sentence of Rule 56)d provides facts so
specif'ed SHALL, not may, B deemed est'ed 4 purposes of
trial
- But Rule 54)b that unless ct. expressly det. & dir,
subj. 2 revision
- Can't harmonize that sum jgmt on claims can B rev'ed
but not sum jgmt on facts
- Read shall as should in Rule 56)d
- Liab. Sum Jgmt: Rule 56)c
- Sum Jgmt interlocutory in character 4 liab. alone
even though genuine issue on amt of damages
- Means not final, not appealable, & probably subj. 2
revision
- Split of Auth: Error in Denying Sum Jgmt then Opposing
Party Wins
- Arg. that should reverse jgmt & grant sum jgmt b/c
abuse of discretion tolerated if not recog. sum jgmt
- Other arg. that won so harmless mistake
- Obj'ing 2 Affidavits
- Can obj. 2 affidavits b/c not comply w/Rule 56)e as
admi'able evid.
- Can obj. that affiant can't testify in trial
- Can move 2 strike such affidavits
- Can't just arg. law b/c failure 2 obj. = 2 allowing
affidavit
- Lundeen v. Cordner
- Facts
- Two wives fighting over ins. $ w/interpleader by
ins. co. & intervention by wife
- Posture of Case by Sum Jgmt
- If no sum jgmt, then Lundeen would win b/c
beneficiary is Lundeen & can't get affidavit in trial so
get dir'ed verdict
- Here sum jgmt so can intro. affidavit by Burke
- Lundeen's Mistake
- Should've asked 4 depo 2 get past sum jgmt 2 jury
trial
- Dyre v. MacDougall
- Facts
- P said slandered but D had affidavits of people who
said no
- Sum Jgmt Despite Jury Factor
- Ct. recog. that rational people can take x 2 mean
non-x but grant sum jgmt b/c can't ever rev. if never
grant sum jgmt
- Only need issue of fact 2 impress judge not jury by
Rule 56 2 deny sum jgmt
- Cross v. US
- Facts
- Prof. Cross claimed busi. expense on for. travel in
IRS income tax
- Dist Ct. said all expenses deductable
- Motivation & Intent Critical
- Subj. so not bound by what P says is fact
- Cases not open 4 sum jgmt when involve intent,
motivation, / other subj.
- Govt not do anything & won b/c subj.
- Adickes v. SH Kress Co.
- Civil Rts Case Not 4 Sum Jgmt
- Can't B bound by liars so overturn sum jgmt
- Not est'ed absence of genuine issue
- Dang. of seeing things the way U want 2 so no sum
jgmt in Civil Rts / IRS Cases
- Anderson v. Liberty Lobby
- Fraud: Clear & Convincing Stand. of Proof Case
- Burden of proof of clear & convincing stand. is btwn
beyond rsbl & preponderance of evid.
- Must put more evid. then preponderance 2 convince
judge 2 go 2 trial
- Also no sum jgmt if jury can find as preponderance
but not as clear & convincing
- Celotex Corp. v. Catrett (asbestos case)
- Shifting Burden of Proof
- After moving party meets the burden that there's no
issue, then opposing party must bear the burden of
coming up w/issue of triable fact
- This makes it ez'er 2 grant sum jgmt
- Congestion
- Rule 56 transformed sum jgmt from disfavored motion
2 something integrated into our modern proced.
- Get rid of cases b/c 2 congested
- Remand: Failing 2 Obj.
- If fail 2 obj. inadmissiable evid, then has allowed
4 sum jgmt
- Dismissal: Rule 41
- Vol. Dismissal: Rule 41)a
- Must B dismissed before adverse party ans/motion 4
sum. jgmt
- Motion 2 dismiss not consid'ed sum jgmt gen'ly
- If motion 2 dismiss incl's affidavits, then
consid'ed sum jgmt
- Second Dismissal w/Prejud. on Merit
- If dismissed before in any ct, fed./state, on axn
on/incl'ing same claim, then 2nd dismissal will B
w/prejud. on merits
- Can ask judge 2 stay, dismiss by Rule 41)a)2 since
that's w/o prejud., / stipulation
- Class Axn
- Rule 41)a)1 says look 2 Rule 23)e where can't
dismiss w/o ct. approval
- Invol. Dismissal: Rule 41)b
- All Dismissal W/Prejud. Unless Says W/O Prejud.
- Adcox v. Souterhn Ry Co.: Tenn State Case
- Not Given Lot of Wt.
- Fed. dismissed on merit by Rule 41)b but state ct.
allowed
- Can't do that by Sup. Clause, res judicata, & FF&CC
- If dismiss w/prejud. in fed. sys, then w/prejud.
everywhere & res judicata binding
- Default Jgmt: Rule 55
- Entry: Sub a
- Failure 2 plead / defend which wouldn't incl. asking
4 extensions
- Clerk enter party's default in record so D can't
file ans.
- Jgmt by Clerk: Sub b)1
- Must B sum cert. so like K, penalty, promissory
note, etc.
- Default 4 failing 2 appear prob. b/c not know what
appear means
- All agre that any submission 2 ct. is appear but not
know if asking 4 extension 2 other party's atty incl's
as appear
- If thrown out b/c of failure 2 amend ans, that's
still plea
- If not appear, then can't enter
- Jgmt by Ct.: Sub b)2
- If appeared, need 3 day notice of hearing
- Can't have damage in default higher than pleaded
- Rule 54)c limits Rule 55 jgmt's 2 what P claimed
- If D default, then may not mind paying the amt but
prob. if make him pay more
- Options 1 Yr. After Default: Rule 60
- Rule 55)c says can set aside jgmt if good cause
- Rule 60)b says may relieve party from final jgmts
but sub 1-3 can't B invoked after 1 yr.
- Sub 4 of void jgmt: can invoke 4 violating Rule but
not 4 pers / subj. matter jxn
- Sub 6 of any other rsn: not construe as X
constraints of sub 1-3 so rsn must B outside of those
rsns
- Ct. gen'ly not like sub 6
- Pleading Default
- If not ans. interrog. then default which isn't Rule
55 jgmt so not trigger Rule 54)c so anything can happen
- Rule 55 on limited pleading stuff
- Options After Notice
- Can try 2 get entry aside if can show any excusable
neglect / mistake
- Can also show that damages R nothing even though
default in liab. in trial before judge (no jury)
- Coulas v. Smith
- Not Showing Up in Trial
- Not default w/in the meaning of Rule 55
^ back to top
Jury Trial, Motions 4 New Trial,
Appellate Review, Claim Precl, & Issue Precl.
Jury Trial
- Seventh Amend. Rt 2 Jury
- Not binding on states
- Only Const. Rt. that's ez 2 waive
- Might want 2 discard jury trial b/c can't understand
complex material
- FRCP b/c not trust jury
- C/L & Equity
- Suits @ law always had jury trial, $ damage, & statutory
C/A incl'ed as well
- Equity involved injunction, admiralty, ecclesiastical,
etc. & no jury trial
- Fusion of C/L & Equity in 1938
- 7th Amend. only allows jury trial 4 C/L not equity, so
couldn't compl'ly fuse
- Prob's when case rep. both C/L & equity / didn't know
which it was
- Beacon Theatres, Inc. v. Westover
- Jury Trial 4 Facts Common 2 Both Legal & Equity
- Jury's dec. binds the judge but judge doesn't have 2
give injunction if jury finds guilty
- Jury's dec. is issue precl. 4 purposes of equitable
part of the case
- C/L
- Decl. jgmt (only a preemptive strike)
- Compulsory counterclaim (against equit. as well)
- Equity
- Injunction
- Judge can grant temp. injunction which R'nt final
- If P seeks alt. relief of either equit. / leg., then rt.
2 jury unless abs. election
- Dairy Queen, Inc. v. Wood
- Rt 2 Jury Trial If Any Aspect of Leg. Remedy
- P arg'ed leg. claim incidental b/c really ask 4
injunction & acct'ing
- X Can Change Equit. Remedy 2 C/L Remedy
- Acct'ing consid'ed C/L now b/c not as complicated 2
understand 4 the jury although was equit. before b/c was
2 complex
- Ross v. Bernhard
- Expand Scope of C/L by Decr'ing Equity
- Class & derivative axns where sue on behalf of
somebody else were equity
- Initial proced. of bringing axns is still equit. but
det'ing merit is C/L so jury trial
- Jury trial being preserved doesn't mean exact
proced. from 1791
- Equity only when no adeq. remedy @ law
- Footnote Test: Leg. Nat. of Issue Dec'ed by
- Pre-merger custom: not really relev.
- Remedy sought: really imp. (Tull, Nordberg)
- Pract. abilities & limitation of jury: confused
everybody
- Const'al Rt v. Fairness
- Since Const'al rt., not matter if unfair
- Yr. 1791 still does control which isn't fund'ly fair
4 today's issues
- Curtis v. Loether (civil rts case)
- Statutory Rt of Jury Broader than Const'al Rt. 2 Jury
- B/c 7th amend. not bind on state, Cong'al statutory
rt of jury in concurr. jxn has more impact
- Stand.: 7th amend. 4 axns enforcing statutory rts & req.
jury trial on demand if statute creates legal rts & remedies
enforceable in axn 4 damages in ord. cts of law
- Ord. cts of law is dist ct. not state, Sup Ct /
tribunal
- Atlas Roofing Co. v. OSHA Commmission
- Pub. Rt Exception
- Narrow exception where US is party, gen'ly P
- If sue govt as sov, then 7th amend. not give rt
unless govt waives
- Tribunal case & suit 4 safety & pub. rt.
- At times, Cong. can take cases from ord. ct & put 2
legislative, Cong., / adm. cts where 7th amend. not
matter (Curtis) but limited 2 involving govt
- Tull v. US
- Bifurcation: Jury Dec's Liab. but Judge Dec. Damages
- Punitive Damages & Cong'al Latitude
- Remedies like penalty which was trad'ly dec'ed by
jury
- But Ct said Cong. delegated 2 judge of det'ing civil
penalties in statute & jury 2 det. liab.
- Not an essential fn. of jury & not req'ed 2 have
jury trial 2 det. damage
- Katchen v. Landy (bankruptcy)
- Bankruptcy is like equity (maybe)
- Creditor filed claim so waived 7th amend.
- Granfinanciera v. Nordberg (bankruptcy)
- Can't Read All Bankruptcy as Equity: Jury Trial In
Bankruptcy
- Here, creditor didn't want 2 B in trial b/c
trustee's fraud so rt 2 jury trial
- This is suit 4 fraud not figuring out prorata share
like Katchen
- Chauffeurs Teamsters & Helpers Local 391 v. Terry
- Not Binding on State Case
- Remedy 4 C/L
- Punitive / compensatory then jury trial but NOT
restitution
- Some States Have Const'al Rt 2 Judge in Equity But Not in
Fed
- Galloway v. US
- No Const'al Rt 2 Jury 4 Suing US as Sov.
- Dir'ed Verdict & Jury Trial
- Dif. from 1791 where demurrer 2 evid. & getting new
trial had stand. of not taking cases away unless no
evid.
- But ct uses dif. stand. 2 say real substance
preserved, not proced.
- Rule 50: Dir'ed Verdict & Sum Jgmt
- Stand. similar 2 sum jgmt (suff. evid. 2 go forward)
b/c see if suff. evid. 4 jury
- Sum jgmt is pretrial, affidavit but dir'ed verdict
is trial, evid. motion
- Strategy of Dir'ed Verdict
- Want 2 lose b/c want 2 go through trial & if lose in
trial, then appeal 2 say should've won dir'ed verdict
- If win, other side can appeal
Motions 4 New Trial
- Rule 59: Motion 4 New Trial
- Discretionary Motion in Fed
- But if in state which req's, then if not make the
motion & appeal, can't raise the pt b/c statute says
must raise issues by motion 4 new trial
- In fed, b/c discretionary, can waive
- X Per.
- Sub b says 10 days after jgmt, not when verdict
- Rule 6)b says can't extend by ct even 4 good cause
- If not X'ly motion, can't appeal / get new trial
- Can go 2 Rule 60 if can't do it w/in 10 days
- Strategy
- Two opp's b/c if deny motion, then can still appeal
- But may B better 2 appeal b/c if new trial denied,
may influence appellate ct b/c judges explain their
denial
- Nonfinality of Jgmt 2 Grant New Trial Motion
- D can't appeal b/c not final
- If D loses in new trial, ct. probably would not
disrupt the error b/c looking from hindsight
- Motion 4 new trial suspends the finality of jgmt 4
purposes of appealing
- Judge's Discretion 4 New Trial
- Magnani v. Trogi (Berch dislikes the case)
- Harmless Error Then No New Trial
- Not Rely on This Case
- Rare that ct wouldn't assist P's
- If obj. 2 verdict form, would req. specificity
gen'ly & would consid. the matter waived by failing 2
ask
- Aetna Casualty & Surety Co. v. Yeatts
- Rule 50 v. Rule 59: Motion 4 Dir'ed Verdict v. New Trial
- If P has low evid., then Rule 50's dir'ed verdict as
matter of law
- In motion 4 new trial, little more evid. b/c enough
2 go 2 jury so Rule 59 & not jgmt as matter of law
- Judge is like another juror in new trial motion so
weigh testimonies but in dir'ed verdict, must assume
witnesses R truthful
- Deference 2 Trial Judge
- Gen'ly appellate not overrule denial of new trial if
enough evid. 2 go 2 jury b/c can't say denial is abuse
of discretion
- Fisch v. Manger
- Additur & Remittitur
- Condition grant of new trial on getting approval of
1 party 2 lwr / incr. the jgmt amt
- Additur adds the amt & remittitur remits the amt
- Fed allows remittitur but not additur
- Remittitur tells P that P won but not enter jgmt on
that amt & make P accept lwr amt w/consent then enter
- D can still appeal but goes back 2 orig. amt then &
if P not accept, then new trial
- Jury Compromise Probably In This Case But Allowed Trial
On Damages Only
- Allowed additur in this case
- Gen'ly Not Give Dir'ed Verdict in PI
- Pwr v. Allstate Ins. Co.
- Arist Mean Stand. Adopted 4 Remittitur
- What judge thinks is rsbl jury would've given
- Overruled Heimlich v. Tabor which placed lwest amt
jury would give as stand.
- 3rd possibility that give highest amt that jury
would've given (Berch likes this)
- Rule 60: Relief from Jgmt / Order
- Final Jgmt
- Must B final jgmt 2 invoke this rule
- Six Categories
- First 3 limited 2 X per. of 1 yr.
- Sub 1: Mistake, inadvertence, surprise: gen'ly
default sit
- Sub 2: Newly discov'ed evid.
- Sub 3: Fraud, misrep, / miscond. & fraud can B
intrinsic / extrinsic
- Exceptions 2 X Per. Limitation
- Hazel Atlas Glass Co v. Hartford Empire Co.:
Fraud upon ct so not limited 2 1 yr.
- Equitable Axn: Permit indep. axn in equity 2 set
aside jgmt
- Last 3 Not Limited 2 X Per
- Sub 4: Jgmt void: default / subj matter jxn
stuff
- Sub 5: Jgmt release, satisfied, discharged /
prior jgmt based on reversed
- When P takes F1 jgmt 2 F2 2 collect but F1
jgmt gets reversed, then can invoke this rule
- Can also move 2 vacate if no longer equit.
that jgmt should have prosp. application like
injunction b/c can't go dir'ly 2 appellate w/o
vacating old jgmts
- Sub 6: Any other rsn: must B more than 1st 3
categories
- Hulson v. Atchison, Topeka & Santa Fe Ry
- Rule 6 Violation B/C Ct Ext they did but now they can
- Jurors still can't testify 2 their thoughts b/c can't
prove
McDonough Pwr Equipment v. Greenwood
- Juror's Response as Grounds 4 Impeachment
- Lied
- Affected partiaility
Appellate Review
- Rules & Statutes
- Statute §1291 & 1292
- Rule 54)b
- Rule 4)a of Fed Rules of Appellate Proced.
- Sum Jgmt & Appealability
- Denied
- Can't appeal b/c interlocutory & not final since not
on merit by §1291
- Can appeal after trial, but another hindsight prob.
- Could appeal by §1292)b & certify 2 ct of appeals in
10 days so escape final jgmt rule
- Only on controlling quest. of law
- Dist ct agrees w/U
- Ct of appeals willing 2 take
- Granted
- Can appeal b/c final by Rule 58
- Rule 4)a of fed rules of appel. proced. says 30 days
2 appeal & if don't, can never appeal
- If multiple party & 1 party's sum jgmt granted, can
appeal if express lang. of Rule 54)b
- Liberty Mutual Ins. Co. v. Wetzel
- Can't Use Rule 54)b 4 Single Claim Relief
- If pled decl. jgmt, then would work b/c sep. claim
- Can't Use §1292)a 4 Liab.
- This statute only 4 injunction
- Rule 4)a of Appellate Rule of Proced.
- Sub a)4 Gives 30 days 4 X'ly motion
- If deny new trial motion, then 30 days from X when
denied
- Sub a)5 says another 30 days 4 negligible excuse from
the expiration
- Rule 6: On How 2 Count Days
- Final Jgmt & 1 Appeal
- Only 1 appellate rev. 4 everything so not have 2 go back
& forth
- Suspension 4 Purposes of Appeal
- Rule 60 doesn't suspend anything so must appeal by 30
days
- Rule 59 suspends everything
- X'ing of File
- Rule 4)a)2 of appellate proced. says if notice of appeal
after ct announces dec. but before jgmt entered, treat as
filed on date of & after entry so early filing o.k.
- Cohen Exception
- Main goal 2 prevent irreparable harm
- Reqt's
- Not subj 2 revision by Dist Ct / disposes of
something
- Not enmeshed in the merit of the case
- Unreviewable later on
- Subj. Matter Jxn
- Not final & appealable after so fails 3rd prong of
Cohen
- Any lack of Jxn
- Not final in any of them so not Cohen Rule
- Qualified Immunity & Abs. Immunity 4 Cohen Rule
- Imm'ly appealable b/c meet all 3 prongs of Cohen
- Class Axn: Denial of Class (Copper Lybrand v. Livesay)
- For yrs said was appealable
- But Rule 23)c)1 says cond'al order & reviewable
later on so not Cohen exception
- Counsel's Disqualification
- Four possibilities w/crim v. civil & motion granted
v. motion denied
- Not appealabe order b/c not final & subj. 2 rev.
later on theoretically
- Practically, hard 2 appeal later when 2nd atty
probably is better than 1st so hindsight prob.
- Practical rsn that not want lots of cases so trust
trial judges
- Jury Trial
- Can appeal by §1292)b 4 writ of mandamus 4 quest. of law
- Seventh amend. jury trial can't B harmless error so can
appeal if denied jury trial
- Rule 54)b Jgmt
- If express reqt's met, then final & X per. 4 appeal runs
when that jgmt entered
- Appeal as of Rt
- Not Exercised
- Then can't appeal later so must do it w/in X per.
- Can invoke Rule 60 2 get fresh jgmt
- Injunction
- Statute §1292)a)1
- Even though not final, can appeal as of rt
- Order dissolves, refuses, modifies, grants, etc.
- Not Subj. 2 Rule 54)b
- Temp. Restraining Order (TRO)
- Not appealable b/c not w/in §1292)a)1
- Prelim. Injunction
- Can appeal but not penalized 4 not appealing
- If prelim. injunction becomes final, can still
appeal
Res Judicata: Claim Precl. & Issue Precl
Claim Precl.
- Final Jgmt
- What Might Have Been Brought
- Merger: When successful P, then jgmt merged all trxn'ly
rel'ed claims
- Bar: When successful D & P tried 2 find another way 2
prevail then barred
- Trxn'al Rel
- Can't change theories 2 bring in same claims
- Changed meaning over time b/c don't want P come back
repeatedly
- Privy
- Restrictive class before but that class expanded now
- Merit changed in meaning 2 incl. Rule 12)b)6 jgmts
unless ct orders otherwise
- Jgmt takes over & C/A can't B sep'ed once jgmt given b/c
becomes something new
- Rule 41)b
- Except 4 any jxn'al stuff, dismissal is adjudication on
merits unless ct says otherwise
- Collateral Attack
- FF&CC
- F2 must look 2 law of F1 4 res judicata
- Law that controls res judicata is law that rendered
the jgmt
- Fed. Law of F1 Controls
- Although can argue that state law def's rts & oblgn
of parties, 4 Erie, fed. law controls the incident of
jgmt
- Law of F1 Controls
- Whether jgmt final / not
- whether something trxn'ly rel'ed / not
- Det'ing which persons may take adv. of issues that
were det'ed in litg.
- If mistake in interp. of F1 law, move on b/c it
happens
- Domesticate Jgmt
- When take F1 jgmt 2 F2 4 exec. of order
- F2 jgmt can B set aside if F1 jgmt is reversed by
Rule 60)b)5
- Latest Jgmt in X Controls
- Even if incorrect interp. of law
- US Sup Ct has jxn of FF&CC
- Aff. Defense that D must Plead of Res Judicata / forever
waive
Issue Precl.
- Def's
- Privy if virtually rep'ed in axn
- Binds subseq. litig. on issues dec'ed btwn parties &
privies in final jgmt
- Actually litig'ed
- Nec. 2 resolution
- Not unimp. / tangential
- Strangers
- Not Privies so Not Binding
- Mutuality of Estoppel / Oblgn
- No longer the law
- Strangers may use issues used against the parties in
previous litig. even though couldn't B bound by opposite
finding in some X's where F1 law controls the issue
- If P lost before, D can set up defensive issue precl.
- But if P won, D can make P prove case each X
- Offensive Issue Precl.
- Gen'ly no offensive use
- Allowed when couldn't intervene in 1st case &
weren't waiting in the wings 2 take adv. of finding
- Dep's on cases & law of F1
Can litig. Issues Not Raised in 1st Trial
Er & EE
- ER Not in Privy
- If ee wins case by non-neg, er can use that in
defensive issue precl.
- But if ee lost, er not bound b/c stranger
- So P should join them
Crim.
- D Convicted v. Acquitted
- V's couldn't bring claims before so can use
offensive issue precl. if convicted
- V's not bound if acquitted
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Ms. . Haeji Hong
July 19,1996
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