How to use:
The first outline consists of a larger more comprehensive description of all the material covered in the course (that I was able to get down on paper). The second outline was a shorter, very condensed "bare essentials" version used for the final exam.
I don't encourage law students to copy this or any other outline prepared by another, but rather, read through it and use it to gap-fill or review the subject matter. I do encourage students to copy the strategy of writing a condensed outline for the final rather than bringing in a giant 80+ page behemoth into finals, provided they are open book/open note. Honestly, I'd prepare short-form outlines even if it was closed notes, just to use as a study aid.
Before using or relying upon this outline, please refer to this website's disclaimer.
Big Outline (.doc version available here, via Dropbox)
I. Incentives to Litigate
A. Remedies (What the Parties Receive)
- Substitutionary Remedies – Damages
o Comes from the Defendant’s Assets, Liability Insurance, Etc.
o Monetary Damages
* Compensatory
* Designed to “make the plaintiff whole,” includes Economic losses and Non-Economic (Pain and Suffering, emotional distress, harm to reputation, etc.)
* Liquidated
* Contractually set amount of damages, May be granted but limited by what is reasonably calculated (UCC §2-718(1))
* Statutory Damages
* Causes of action with minimum or maximum recoveries – Jury must set the amount of statutory damages between the applicable minimum and maximum (Feltner v. Colombia Pictures Television 1998)
* Punitive Damages
* Designed to punish for malicious behavior
o Punitive damages may be determined by three guideposts; 1) degree of reprehensibility of the defendant’s misconduct, 2) difference between actual or potential harm and punitive damages (punitive usually about 3x economic, less than 10x, but no bright line, 3) difference b/w punitive damages and civil penalties. (State Farm v. Campbell 2003)
* Limits on Monetary Damages
* Vague jury instructions may result in “abuse of discretion” in giving damages, and, if they are too high, a court may refuse to permit them (Beagle v. Vasold 1966)
* Jury awards are sometimes limited by state statute
* In contracts, damages limited to consequential damages, not pain and suffering or other unforeseeable harms (UCC §2-715)
* Broke folks can’t be sued for ridiculous high damages (Valencia v. Shell 1944)
* Due process clause limits size of civil damages pursuant to statutory scheme (Browning-Ferris v. Kelco Disposal 1989)
* Can’t award punitive damages based upon parties not present (Phillip Morris USA v. Williams 2007)
o Other Remedies
* Specific Remedies
* Court Ejection, Rescission, Divorce, Replevin, Injunctions
* Declaratory Relief
* “Declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought” (28 USC §2201)
* Preliminary & Provisional Remedies
* Preliminary injunctions, temporary restraining orders
- Equity v. Law
o Equity
* Remedies associated with fairness – Injunctions, specific performance, rescission, etc.
o Legal
* Remedies associated with legal right – Trespass, debt, covenant, ejectment, etc.
- Specific v. Substitutionary Remedies
o Specific
* Replevin, Ejectment, Injunction, Reformation, Rescission, Etc.
o Substitutionary
* Damages, Etc.
B. Financing (What the Attorneys Receive)
- Settlement
* Most common (2/3) method of settling civil suits
* Avoids publicity, uncertainty, additional court/legal costs
o Consent Decree
* Judge rules to validate agreement, violations are contempt of court
o Contract to Dismiss
* Enforceable as a contract, is more confidential than a consent decree
- Paying the Lawyer
o American Rule
* Sides pay their own fee, encourages reform suits and discourages meritorious low damage suits
o English Rule
* Loser pays all, Encourages strong low-damage cases and discourages high cost law reform suits
- Costs of Litigation
* Estimated total about $6000 in 2010.
o Direct
* Lawyers, Experts and Investigators, Filing Fees, Technology, Travel, Process Servers
o Indirect
* Loss of time and focus, etc.
- Styles of Payment
o Hourly, Flat Rate, Insurance, Legal Aid, Contingency Fee, Shared and Shifted Fees
o May be waived by an agreement/settlement (Evans v. Jeff. D. 1986)
o Fee Shifting
* Court may allow the prevailing party an attorney’s fees as part of the costs at the court’s discretion (42 U.S.C. §1988(b))
II. Jurisdiction and Related Matters
- The Importance of Jurisdiction Determinations and Placement of your Pleading
o Convenience to parties, attorneys familiarity with the court, jury pools, judicial selection, “home towned,” which laws apply, local rules and customs, chance and speed of recovery
- A Court Needs the Following for Jurisdiction
o Personal Jurisdiction + Notice + Venue + Subject Matter Jurisdiction
A. Subject Matter Jurisdiction in Federal Court
- Subject Matter Jurisdiction (SMJ)
o The Court’s Power to hear and adjudicate the cases of the general category to which the proceeding belongs, is a procedural matter that MAY NOT BE WAIVED
o Supreme Court also has APPELLATE JURISDICTION from the State’s Supreme Court
- General v. Limited SMJ
o General Jurisdiction
* SMJ is presumed in a court of General Jurisdiction, unless stated otherwise in statute
* Example: State Trial Courts
o Limited Jurisdiction
* Lack of SMJ is presumed in a court of Limited Jurisdiction
* Examples: Federal Courts, Family Court, Municipal Court
- Federal SMJ
o Is presumed limited, but granted by the following statutes
* Article 3 of the US Constitution
o 1. Subject must “Arise Under” an issue of the Constitution
o 2. Cases with ambassadors
o 3. Admiralty and maritime cases
o 4. Cases to which the US is a party
o 5. Cases between 2 or more States
o 6. Cases between a state and citizen of another state
o 7. Cases between citizens of different states, aliens, foreign nations
o 8. Cases between citizens of the same state claiming land grants from other states
* Federal Statutes
* 28 USC §1331 (Federal Question I.E. constitutional challenges to laws)
o “The District courts shall have original jurisdiction over all civil actions “arising under” the Constitution, laws, or treaties of the United States”
* 28 USC §1332
o (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
* (1) citizens of different States;
* (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;
* (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
* (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.
o (b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.
o (c) For the purposes of this section and section 1441 of this title—
* (1) a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of—
* (A) every State and foreign state of which the insured is a citizen;
* (B) every State and foreign state by which the insurer has been incorporated; and
* (C) the State or foreign state where the insurer has its principal place of business; and
* (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.
o Interpreting Diversity Jurisdiction
* Hawkins v. Masters (2003)
* A person is a “citizen” of the state in which he or she is “domiciled” AND has intent to remain
* A corporation is a citizen of both the state of incorporation and the principal place of business
* Jurisdiction is determined at the time of filing the complaint
* Complete vs. Minimal Diversity
o Minimal
* At least one P and one D are diverse
o Complete
* All D are diverse from all P
* Is required under 28 USC §1332 for Federal Diversity SMJ
* Defining “Arise Under” the Constitution for Federal Question SMJ
* Louisville v. Mottley (1908)
o SMJ is determined prima facie on the complaint, not in an anticipated defense of the complaint.
* Holmes Test (1916)
o If a federal question appears on the face of the complaint if the cause of action is federal
B. Personal Jurisdiction and Service of Process
Personal Jurisdiction
- Personal Jurisdiction
o The power of the court over the person of the defense, is a protection of the defendant and MAY be waived by the defendant
o Is primarily a question of a state’s ability to exercise power over an individual
* Long arm statutes allow a state to take personal jurisdiction over individuals out of state
- Specific Jurisdiction vs. General
o Specific
* Jurisdiction allowed so long as contacts relate to the cause of action, contacts may be isolated
o General
* State has jurisdiction over defendant, regardless of his contact’s relation to the cause of action
- Caselaw defining Personal Jurisdiction requirements
o Pennoyer v. Neff (1877)
* States hold exclusive personal jurisdiction over persons and property within a physical territory
* States may not exercise personal jurisdiction over persons or property not presently within its territory
* Parties must be given notice for a judgment to be valid
o International Shoe v. Washington (1954)
* Exception to Pennoyer
* Court may have personal jurisdiction IF
* D’s contacts with the state are sufficient to take jurisdiction
o Minimal contact gives specific jurisdiction
o “Substantial,” “Pervasive” and “continuous” contact give general jurisdiction
* Taking Jurisdiction conforms to traditional notions of justice and fair play
o Asahi v. Superior Court (1987)
* Standards for fairness and substantial justice
* 1. Burden on Defendant
* 2. Interest of Forum State
* 3. Plaintiff’s interest in obtaining relief
* 4. Efficiency of interstate system
* 5. Shared interest in furthering policy goals
o Hanson v. Denckla (1958)
* Rule that “minimal contact” must be made by the defendant “purposefully availing” such contact
o AST v. CLF (2008)
* Personal Jurisdiction in complaint to the court need only present a case for minimal contact prima facie – substantial detail is not necessary
Notice and Service of Process
- Notice of a suit is required as a matter of due process
o What is considered sufficient notice?
* Mullane v. Central Hanover Bank (1950)
* “If notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection.”
o Form of Notice must be reasonable given the circumstances.
* Balance factors
* 1. Chance of actual notice
* 2. The cost of notice
* 3. The interest at stake for person receiving notice
- Rules that specify forms of service
o FRCP Rule 3: Commencing an Action
* A civil action is commenced by filing a complaint with the court.
o FRCP Rule 4: Summons
* (a) Contents; Amendments.
* (1) Contents. A summons must:
o (A) name the court and the parties;
o (B) be directed to the defendant;
o (C) state the name and address of the plaintiff's attorney or--if unrepresented--of the plaintiff;
o (D) state the time within which the defendant must appear and defend;
o (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;
o (F) be signed by the clerk; and
o (G) bear the court's seal.
* (2) Amendments. The court may permit a summons to be amended.
* (b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons--or a copy of a summons that is addressed to multiple defendants--must be issued for each defendant to be served.
* (c) Service.
* (1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.
* (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.
* (3) By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
* (d) Waiving Service.
* (1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:
o (A) be in writing and be addressed:
* (i) to the individual defendant; or
* (ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;
o (B) name the court where the complaint was filed;
o (C) be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form;
o (D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;
o (E) state the date when the request is sent;
o (F) give the defendant a reasonable time of at least 30 days after the request was sent--or at least 60 days if sent to the defendant outside any judicial district of the United States--to return the waiver; and
o (G) be sent by first-class mail or other reliable means.
* (2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:
o (A) the expenses later incurred in making service; and
o (B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.
* (3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent--or until 90 days after it was sent to the defendant outside any judicial district of the United States.
* (4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.
* (5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.
* (e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States by
* (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
* (2) doing any of the following:
o (A) delivering a copy of the summons and of the complaint to the individual personally;
o (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
o (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
* (f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served at a place not within any judicial district of the United States:
* (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
* (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
o (A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;
o (B) as the foreign authority directs in response to a letter rogatory or letter of request; or
o (C) unless prohibited by the foreign country's law, by:
* (i) delivering a copy of the summons and of the complaint to the individual personally; or
* (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
* (3) by other means not prohibited by international agreement, as the court orders.
* (g) Serving a Minor or an Incompetent Person. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).
* (h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:
* (1) in a judicial district of the United States:
o (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or
o (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the defendant; or
* (2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).
* (i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.
* (1) United States. To serve the United States, a party must:
o (A)
* (i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought--or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or
* (ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;
o (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
o (C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
* (2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.
* (3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).
* (4) Extending Time. The court must allow a party a reasonable time to cure its failure to:
o (A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or
o (B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.
* (j) Serving a Foreign, State, or Local Government.
* (1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608.
* (2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by:
o (A) delivering a copy of the summons and of the complaint to its chief executive officer; or
o (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant.
* (k) Territorial Limits of Effective Service.
* (1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:
o (A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;
o (B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or
o (C) when authorized by a federal statute.
* (2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:
o (A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and
o (B) exercising jurisdiction is consistent with the United States Constitution and laws.
* (l) Proving Service.
* (1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit.
* (2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:
o (A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or
o (B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.
* (3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.
* (m) Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1).
* (n) Asserting Jurisdiction over Property or Assets.
* (1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.
* (2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant's assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.
o FRCP Rule 12: Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
* (a) Time to Serve a Responsive Pleading.
* (1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
o (A) A defendant must serve an answer:
* (i) within 21 days after being served with the summons and complaint; or
* (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.
o (B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.
o (C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.
* (2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.
* (3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.
* (4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
o (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or
o (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.
* (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
* (4) insufficient process;
* (5) insufficient service of process;
C. Venue
- Is a right of the Defendant and MAY be waived
- Defines the place in a jurisdictional area where specifically suit will be brought
o State Venue in KS
* KSA 60-603
* Action against a resident of this state… may be brought in the county:
o (1) in which the defendant resides, (2) in which the plaintiff resides if the defendant is served within, (3) in which the cause of action arose, (4) defendant’s place of employment or business (6) where there is personal property subject of the action, if possession is sought at the time of the filing
o Federal Venue defined by statute
* 28 USC § 1391
* (b) Venue in general
o 1) A judicial district where any defendant resides, 2) district where a substantial part of the events giving rise to the claim occurred, 3) If no district otherwise applies, any where the defendant is subject to personal jurisdiction will work
* (c) Residency
o 1) Deemed to reside in the district where domiciled, 2) entity resides in principal place of business, 3) if doesn’t live in US, any will do, and will be disregarded in the case of a joinder
* (d) Residency of Corporations in States with many districts
o Deemed to reside in any district where contact would be sufficient to subject it to personal jurisdiction
* (e) Actions where Defendant is officer or employee of the US
o 1) In general, if when acting in official capacity under legal authority, may be brought in the following judicial districts
* A) Where the defendant resides, B) substantial part of the events giving rise to the claim arose, C) where the plaintiff resides if no real property is involved.
* (f) Civil Actions Against a Foreign State
o 1) Any district where events give rise to the claim, or where the property is located, 2) any district where vessel or cargo of the foreign state is located, 3) any district where the agent is licensed to do business or is doing business, 4) in DC if action is against a foreign state or subdivision thereof
- Change of Venue
o Forum non conveniens
* Moves from state to state court
o Transfer of Venue
* Within a state change, or within federal district
o Remove
* Issue of Subject matter jurisdiction, may move from state to federal court, or other way around
D. Judicial Recusal
- A party may file one motion to recuse a judge for cause
o 28 USC §144 “Bias or Prejudice of Judge”
* Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
* The Affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall not be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.
o Motions are to be heard by the potentially biased judge. (Berger v. US (1921))
o 28 USCA §455: Disqualification of justice, judge, or magistrate judge
* (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
* (b) He shall also disqualify himself in the following circumstances:
* (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
* (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
* (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
* (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
* (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
o (i) Is a party to the proceeding, or an officer, director, or trustee of a party;
o (ii) Is acting as a lawyer in the proceeding;
o (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
o (iv) Is to the judge's knowledge likely to be a material witness in the proceeding.
* (c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
* (d) For the purposes of this section the following words or phrases shall have the meaning indicated:
* (1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
* (2) the degree of relationship is calculated according to the civil law system;
* (3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
* (4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
o (i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
o (ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
o (iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
o (iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
* (e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
* (f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
- The appearance of bias is grounds for recusal
o In Re: Boston’s Children First (2001)
* Even the appearance of bias may be grounds for recusal, and the standards are highest when the judge is outside of the court
o Caperton v. A.T. Massey Coal (2009)
* Financial interest in the outcome of a case due to a substantial financial relationship with a party is grounds for recusal.
III. Pleading
A. The Complaint
- A complaint is a formal request to the legal system to use governmental power to grant plaintiff relief
- Responsibility of the Lawyer to draft a substantive complaint
o Bridges. V. Diesel (1994)
* Administrative remedies must be exhausted prior to filing in order for a suit to be brought, or else the suit will be dismissed without prejudice and waste time and money
o Jones v. Bock (2007)
* Defense has the burden to prove that executive remedies have been exhausted.
* The Plaintiff has the responsibility of proving their pleading, produce evidence, and persuade the court.
o Fed. R. Civ. P. Rule 11 “Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions”
* (a) Signature
* Pleadings must be signed by the attorney submitting, or personally by the party if unrepresented
* (b) Representations to the Court
* (1) Not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation
* (2) The… legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law
* (3) Factual contentions have evidentiary support… or will be likely to do so
* (4) Denials of factual contentions are warranted on the evidence or are based on a reasonable lack of information
* (c) Sanctions
* Punishments, the court may impose on the council for violations of 11(a) or (b)
- What does the complaint/cause of action require?
o Bell v. Novick Transfer Co. (1955)
* A complaint only requires “a short and plain statement of the claim showing that the pleader is entitled to relief”
* Red. R. Civ. P. 8(a)(2)
* A short and plain statement of the claim showing that the pleader is entitled to relief
o Conley v. Gibson (1957)
* “A complaint should not be dismissed for failure to state a claim…beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
- Current two pronged test for what a complaint requires
o Bell v. Twombly (2007)
* Two prong test: a) complaint must be more than a recitation of the cause of action (specificity) and b) must be plausible
* Fear of discovery costs (related to unspecificity) motivate the court
* “If the threat of discovery expense will push cost-conscious defendants to settle even anemic case before reaching”
* Ashcroft v. Iqbal (2009)
* Complaint failed to provide enough details, aka, b) of Twombly test
o Implausible to fault Ashcroft as accused of this kind of discrimination
* Test
o 1) Must accept all allegations as true in a complaint and 2) only plausible facts may survive
* Court draws on “judicial experience” and “common sense”
* Rhodes v. MacDonald (2009 Complaint)
* Accused Obama of being a non-citizen, protesting being brought to war
* Failed Iqbal test, saying this is implausible (prong 2)
o States require different things in a complaint
* Statement of fact vs. statement of claim
* Statement of claim
o KSA 60-208(a)(1)
* Kansas is a notice state, but other states may require facts
* Statements of fact
o Mo. Stat. 509.050.1
* “(1) A short and plain statement of the facts showing…”
o Mich. Rule Civ. P. 2.111
* “(1) A statement of fats… specific allegations necessary reasonably to inform the adverse party about the nature of the claims.”
o Statute defining what complaints need/require
* Fed. R. Civ. P. 8(a)(d)(e): Pleading Special Matters
* (a) Capacity or Authority to Sue; Legal Existence.
o (1) In General. Except when required to show that the court has jurisdiction, a pleading need not allege:
* (A) a party's capacity to sue or be sued;
* (B) a party's authority to sue or be sued in a representative capacity; or
* (C) the legal existence of an organized association of persons that is made a party.
* (d) Official Document or Act. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done.
* (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it.
B. The Answer and Pre-Answer Motion
Answers and Motions in General
- Defendant’s options after the Complaint
o Time to Answer
* 21 days from time of service FRCP Rule 12
* If service waived, 60 days
* Federal official gets 60 days from notice default
* 60 is 90 for foreign officers
* 14 Days to respond after a motion
* Time starts from the day after receipt
* Rule 6(a)
* Time to File FRCP 12 motions
* D may file prior to filing an answer
* A party may only make 1 pre-trial motion, if not brought, the motions are waived
o Except 12(h)(2) and 12(h)(3)
o Responses that may be done pre-answer to the complaint
* Change of Jurisdiction
* Fed. R. Civ. P. Rule 12(b)(1), Fed. R. Civ. P. Rule 12(b)(2), Fed. R. Civ. P. Rule 12(b)(3)
o (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
* (1) lack of subject-matter jurisdiction;
* (2) lack of personal jurisdiction;
* (3) improper venue;
* Not served/informed of proceedings/failure to notify
* Fed. R. Civ. P. Rule 12(b)(4)
* Fed. R. Civ. P. Rule 12(b)(5)
* (4) insufficient process;
* (5) insufficient service of process;
* Failure to state a claim upon which relief can be granted
* Fed. R. Civ. P. Rule 12(b)(6)
o (6) failure to state a claim upon which relief can be granted; and
* Defining the boundary for motions to dismiss based on failure to state a claim
o Haddle v. Garrison (1996)
* Facts
* P employee D employer
* D terminated employment based on his participation in a criminal trial against P
* P an at-will employee
* Motion to dismiss based on failure to state the claim
* FRCP 12(b)(6)
o “if everything you allege is true, the law affords you no relief”
* Motion to dismiss granted because
o Case law precedent states:
* …plaintiff must have suffered an actual injury… at will employee…no constitutionally protected interest in continued employment…
o Haddle v. Garrison (1997)
* Dismissed again in a very short sentence
o Haddle v. Garrison (1998)
* Did the P suffer injury, or, did the termination of an at will employee constitute injury to that employee
* Caselaw cited, “…discharge an employee, by means of false statements, threats or putting in fear, or perhaps by means of malevolent advice and persuasion…Makes no difference whether the employment was for a fixed term not yet expired or is terminable at the will of the employer.” The harm may give rise to claim for damages under §1985(2), and therefore the case was remanded for further proceedings.
o Stradford v. Zurich Insurance Co. (2002)
* Facts
* P sued for insurance payment that D, insurer, refused to pay.
* D countersued for fraud.
* P moves to dismiss counterclaims based on Rule 9(b) aka “failure to state a claim”
* Ruling
* “…counterclaims fail to provide…fair notice of precisely which statement, or which aspect of his claim on the Policy, they allege to be false.” Allows D to amend and resubmit counterclaim.
* Motion for a more definite statement
* Fed. R. Civ. P. Rule 12(e)
o (e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
* Note that this competes with FRCP Rule 8(a)(2): a short and plain statement of the claim
o Responses on the merits of the clam that may appear in an answer to a complaint
* Admitting to an allegation (FRCP Rule 8(b)(1)(B))
* a) obligations of FRCP Rule 11 (Must have some factual basis) and b) tactical reasons such as avoiding having the issue discussed in open court or the defendant believes they are already lost
* Denial of the Facts
* Fed. R. Civ. P. Rule 8(b)
o (b) Defenses; Admissions and Denials.
* (1) In General. In responding to a pleading, a party must:
* (A) State in short and plain terms its defenses to each claim asserted against it; and
* (B) Admit or deny the allegations asserted against it by an opposing party.
* (2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.
* (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
* (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.
* (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.
* (6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.
* Zielinski v. Philadelphia Piers, Inc. (1956)
o Facts
* P injured employee working for D
* P was injured by what P reasonably believed to be was an employee of D, but it was not due to a transfer of ownership or some such thing.
* D moved for dismissal as the driver was not an employee of D.
o Ruling
* Court found that it was an ineffective denial under Rule 8(b) because D had previously admitted the driver was an employee of D and the proceedings had put the 3rd party past the statute of limitations.
* Privilege or Justifications for actions (Affirmative Defense)
* Fed. R. Civ. P. Rule 8(c)
o (c) Affirmative Defenses.
* (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:
* Accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver.
* (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.
* Cross-claims that accuse another party of the action in question
* Fed. R. Civ. P. Rule 13(g),
o (g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
* Fed. R. Civ. P. Rule 14: Third-Party Practice
o (a) When a Defending Party May Bring in a Third Party.
* (1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer.
* (2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint—the “third-party defendant”:
* (A) Must assert any defense against the third-party plaintiff's claim under Rule 12;
* (B) Must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);
* (C) May assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and
* (D) May also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.
* (3) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).
* (4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately.
* (5) Third-Party Defendant's Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.
* (6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the “summons” includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.
o (b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.
o (c) Admiralty or Maritime Claim.
* (1) Scope of Impleader. If a plaintiff asserts an admiralty or maritime claim under Rule 9(h), the defendant or a person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party plaintiff, bring in a third-party defendant who may be wholly or partly liable—either to the plaintiff or to the third-party plaintiff—for remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences.
* (2) Defending Against a Demand for Judgment for the Plaintiff. The third-party plaintiff may demand judgment in the plaintiff's favor against the third-party defendant. In that event, the third-party defendant must defend under Rule 12 against the plaintiff's claim as well as the third-party plaintiff's claim; and the action proceeds as if the plaintiff had sued both the third-party defendant and the third-party plaintiff.
* Fed. R. Civ. P. Rule 19: Required Joinder of Parties
o (a) Persons Required to Be Joined if Feasible.
* (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
* (A) In that person's absence, the court cannot accord complete relief among existing parties; or
* (B) That person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
o (i) As a practical matter impair or impede the person's ability to protect the interest; or
o (ii) Leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
* (2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.
* (3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.
o (b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:
* (1) The extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;
* (2) The extent to which any prejudice could be lessened or avoided by:
* (A) Protective provisions in the judgment;
* (B) Shaping the relief; or
* (C) Other measures;
* (3) Whether a judgment rendered in the person's absence would be adequate; and
* (4) Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
o (c) Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state:
* (1) The name, if known, of any person who is required to be joined if feasible but is not joined; and
* (2) The reasons for not joining that person.
o (d) Exception for Class Actions. This rule is subject to Rule 23.
* Counter-claim to accuse the Plaintiff of harms or damages
* Fed. R. Civ. P. Rule 13: Counterclaim and Crossclaim
o (a) Compulsory Counterclaim.
* (1) In General. A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:
* (A) Arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
* (B) does not require adding another party over whom the court cannot acquire jurisdiction.
* (2) Exceptions. The pleader need not state the claim if:
* (A) When the action was commenced, the claim was the subject of another pending action; or
* (B) The opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
o (b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.
o (c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.
o (d) Counterclaim Against the United States. These rules do not expand the right to assert a counterclaim—or to claim a credit—against the United States or a United States officer or agency.
o (e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.
o (f)[Abrogated]
o (g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
o (h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.
o (i) Separate Trials; Separate Judgments. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.
Special Pleadings
- FRCP Regarding Special Pleadings
o FRCP Rule 9. Pleading Special Matters
* (a) Capacity or Authority to Sue; Legal Existence.
* (1) In General. Except when required to show that the court has jurisdiction, a pleading need not allege:
o (A) a party's capacity to sue or be sued;
o (B) a party's authority to sue or be sued in a representative capacity; or
o (C) the legal existence of an organized association of persons that is made a party.
* (2) Raising Those Issues. To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge.
* (b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
* (c) Conditions Precedent. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.
* (d) Official Document or Act. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done.
* (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it.
* (f) Time and Place. An allegation of time or place is material when testing the sufficiency of a pleading.
* (g) Special Damages. If an item of special damage is claimed, it must be specifically stated.
* (h) Admiralty or Maritime Claim.
* (1) How Designated. If a claim for relief is within the admiralty or maritime jurisdiction and also within the court's subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim for purposes of Rules 14(c), 38(e), and 82 and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those purposes, whether or not so designated.
* (2) Designation for Appeal. A case that includes an admiralty or maritime claim within this subdivision (h) is an admiralty case within 28 U.S.C. § 1292(a)(3).
- Stradford v. Zurich Insurance Co. (2002)
o Facts
* P sued for insurance payment that D, insurer, refused to pay.
* D countersued for fraud.
* P moves to dismiss counterclaims based on Rule 9(b) aka failure to state a claim’s particulars of what constituted fraud on the part of the P
o Ruling
* “…counterclaims fail to provide…fair notice of precisely which statement, or which aspect of his claim on the Policy, they allege to be false.” Allows D to amend and resubmit counterclaim.
- If the court orders one, a reply to an answer may be made by the plaintiff (Rule 7(a)(7))
C. Joinder of Parties and Claims
Jurisdiction
- Who may be joined as a plaintiff or a defendant in the lawsuit?
o FRCP Rule 20, Permissive joinder of parties
* (a) Persons Who May Join or Be Joined.
* (1) Plaintiffs. Persons may join in one action as plaintiffs if:
o (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
o (B) any question of law or fact common to all plaintiffs will arise in the action.
* (2) Defendants. Persons--as well as a vessel, cargo, or other property subject to admiralty process in rem--may be joined in one action as defendants if:
o (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
o (B) any question of law or fact common to all defendants will arise in the action.
* (3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.
* (b) Protective Measures. The court may issue orders--including an order for separate trials--to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.
o Larson v. American Family Mutual Insurance Co. (2007)
* Facts
* P brought claim against D insurance company
* P’s lawyer failed to bring suit, hoping to get hired by the D
* P got new lawyer, sued in state court
* D removed case to Federal court
* P attempted to sue in joinder both lawyer and insurance company to eliminate diversity jurisdiction
* D claims that joinder is fraudulent for the purposes of changing jurisdiction
* Ruling
* Joinder valid, as the need for discovery provided adequate excuse to wait until after the case was remanded to file the motion.
o FRCP 20(a): Breach of fiduciary claim against lawyer was sufficiently involved with the claim against the D so that joinder was acceptable
* Permitted joinder and remanded to a lower court.
- Who must be joined as a plaintiff or a defendant in the lawsuit?
o FRCP Rule 19: Required Joinder of Parties
* (a) Persons Required to Be Joined if Feasible.
* (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
o (A) in that person's absence, the court cannot accord complete relief among existing parties; or
o (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
* (i) as a practical matter impair or impede the person's ability to protect the interest; or
* (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
* (2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.
* (3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.
* (b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:
* (1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;
* (2) the extent to which any prejudice could be lessened or avoided by:
o (A) protective provisions in the judgment;
o (B) shaping the relief; or
o (C) other measures;
* (3) whether a judgment rendered in the person's absence would be adequate; and
* (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
* (c) Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state:
* (1) the name, if known, of any person who is required to be joined if feasible but is not joined; and
* (2) the reasons for not joining that person.
* (d) Exception for Class Actions. This rule is subject to Rule 23.
- Are there persons who are not in the lawsuit who can join as parties if they so choose?
o FRCP Rule 24: Intervention
- May some of the parties in the lawsuit represent others who are not in the lawsuit as to determine the rights of all?
o FRCP Rule 23
- What the hell is supplemental jurisdiction?
o USCA § 1367. Supplemental jurisdiction
* (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
* (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.
* (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—
* (1) the claim raises a novel or complex issue of State law,
* (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
* (3) the district court has dismissed all claims over which it has original jurisdiction, or
* (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
* (d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.
* (e) As used in this section, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.
o In re: Ameriquest Mortgage Co. Mortgage Lending Practices Litigation (2007)
* Facts
* Skanes requests mortgage transaction with Ameriquest.
* Appraisal done by Homestead.
* Skanes claims value was far less than appraisal estimate
* Skanes claims conspiracy between Homestead and Ameriquest to increase value and increase loan amounts, and profits for Ameriquest company.
* Rules
* USCA § 1367(a) Supplemental Jurisdiction
* In any action in which we already have jurisdiction over some federal claim, we also have sup jurisdiction over state claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article 3…”
* To determine if fed and state law claims are connected by common and operative facts… compare facts necessary to the success of the state claim.
* Application
* Claims are interconnected of the violation of TILA (fed law) and state laws regarding fraud, so supplemental jurisdiction exists.
* Rules
* USCA § 1367(c) Discretionary Exercise of Supplemental Jurisdiction
o Four instances in which the court may choose not to exercise jurisdiction; 1) novel or complex issue of state law, 2) state claims are predominant in the complaint, 3) district court has dismissed all claims over which it has original jurisdiction, 4) other compelling reasons
* Application
* No reason to dismiss, court chooses to retain jurisdiction
o Szendrey-Ramos v. First Bancorp (2007)
* Facts
* P employee of D
* P lawyer, found ethical violations and brought them to the board of directors at D
* D fired P and blamed P for the ethical violations
* Sued for violations of fed employment law and a number of Puerto Rican laws
* Rules
* USCA 1367(c): 1) state law claims rise complex or novel issues and 2) state law claims substantially predominate over federal claim.
* Application
* Refusal to exercise supplemental jurisdiction because 1) Deals with complex issues relating to PR law Canon 21 that the court wishes to leave to their own local courts and 2) the majority of the claims relate to PR law and not to Title VII.
Joining Additional Claims
- FRCP Rule 13: Counterclaim and Crossclaim
o (a) Compulsory Counterclaim.
* (1) In General. A pleading must state as a counterclaim any claim that--at the time of its service--the pleader has against an opposing party if the claim:
* (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
* (B) does not require adding another party over whom the court cannot acquire jurisdiction.
* (2) Exceptions. The pleader need not state the claim if:
* (A) when the action was commenced, the claim was the subject of another pending action; or
* (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
o (b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.
o (c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.
o (d) Counterclaim Against the United States. These rules do not expand the right to assert a counterclaim--or to claim a credit--against the United States or a United States officer or agency.
o (e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.
o (f) [Abrogated]
o (g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
o (h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.
o (i) Separate Trials; Separate Judgments. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.
- FRCP Rule 14: Third-Party Practice
o (a) When a Defending Party May Bring in a Third Party.
* (1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.
* (2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint--the “third-party defendant”:
* (A) must assert any defense against the third-party plaintiff's claim under Rule 12;
* (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);
* (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and
* (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.
* (3) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).
* (4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately.
* (5) Third-Party Defendant's Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.
* (6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the “summons” includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.
o (b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.
o (c) Admiralty or Maritime Claim.
* (1) Scope of Impleader. If a plaintiff asserts an admiralty or maritime claim under Rule 9(h), the defendant or a person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party plaintiff, bring in a third-party defendant who may be wholly or partly liable--either to the plaintiff or to the third-party plaintiff--for remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences.
* (2) Defending Against a Demand for Judgment for the Plaintiff. The third-party plaintiff may demand judgment in the plaintiff's favor against the third-party defendant. In that event, the third-party defendant must defend under Rule 12 against the plaintiff's claim as well as the third-party plaintiff's claim; and the action proceeds as if the plaintiff had sued both the third-party defendant and the third-party plaintiff.
- FRCP Rule 18: Joinder of Claims
o (a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.
o (b) Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties' relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money.
- FRCP Rule 21: Misjoinder and Nonjoinder of Parties
o Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.
- Res Judicata
o Concept refers to the fact that a single claim may not be brought repeatedly, nor may the issue be brought repeatedly for an incident with multiple claims.
- Rush v. City of Maple Heights (1958)
o Facts
* P driver of motorcycle injured while driving over a pothole
* P first sued city for damages to motorcycle and was awarded $100 for the city’s negligence
* P sued again for personal injury
o Rule
* If a plaintiff fails to sue for the entire damage done him by the tort, a second action for the damages omitted will be precluded by the judgment of the first suit brought and tried.
o Application
* Plaintiff had already brought suit and therefore was not able to recover personal injury damages.
- Joinder can (but not necessarily) be brought joining any and all claims against a single defendant
o FRCP Rule 18: Joinder of Claims
* (a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.
* (b) Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties' relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money.
o Judge may sever claims at trial for convenience
* FRCP Rule 42(b) (Consolidation; Separate Trials)
* (a) Consolidation. If actions before the court involve a common question of law or fact, the court may:
o (1) join for hearing or trial any or all matters at issue in the actions;
o (2) consolidate the actions; or
o (3) issue any other orders to avoid unnecessary cost or delay.
* (b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.
- Sometimes forced to bring claims in joinder
o May be barred from bringing another claim later (like in Rush v. City of Maple Heights)
- Counterclaims
o Plant v. Blazer Financial Services (1979)
* Facts
* P owed D debtor 2520 to be paid in monthly installments of 105
* P brought suit under fed law for failure of D to make disclosures
* D brought counterclaim for the balance left unpaid
* P claimed that the counterclaim was inadequate.
* Rule
* A permissive counterclaim must have an independent jurisdictional bias while a compulsory counterclaim falls within the ancillary jurisdiction of the federal courts, even if it would normally be a matter for state court consideration. (FRCP Rule 13(a))
* Determined by 1) Are the issues of fact and law raised by the claim and counterclaim largely the same? 2) Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule? 3) Will substantially the same evidence support or refute plaintiff’s claim as well as the defendant’s counterclaim? 4) Is there any logical relation between the claim and the counterclaim?
* Application
* The loan claim was linked to the claim of failing to disclose and therefore could both be joined in a single suit.
- FRCP Rule 13: Counterclaim and Crossclaim
o (a) Compulsory Counterclaim.
* (1) In General. A pleading must state as a counterclaim any claim that--at the time of its service--the pleader has against an opposing party if the claim:
* (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
* (B) does not require adding another party over whom the court cannot acquire jurisdiction.
* (2) Exceptions. The pleader need not state the claim if:
* (A) when the action was commenced, the claim was the subject of another pending action; or
* (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
o (b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.
o (c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.
o (d) Counterclaim Against the United States. These rules do not expand the right to assert a counterclaim--or to claim a credit--against the United States or a United States officer or agency.
o (e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.
o (f) [Abrogated]
o (g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
o (h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.
o (i) Separate Trials; Separate Judgments. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.
Joining Additional Parties
- By Plaintiffs
o Mosley v. General Motors Corp. (1974)
* Facts
* P and 9 others joined fed discrimination suit against D
* Was a violation of federal law
* Issue
* Should those claims be brought separately, or did they arise out of the same “transaction or occurrence”?
* Rules
* FRCP 20(a)
o Persons may join if…same transaction, occurrence, or series of transaction or occurrences…question of law or fact common to all plaintiffs…
* Application
* Does not appear to be common at first glance because the events happened at different times and in different places
* But plaintiffs claim that the injury arose out of the same discriminatory policy at General Motors
* Ruling
* May be joined as they did arise out of the same transaction or occurrence, in that they were instantiations of the same wrong policy of GM.
- By Defendants
o Price v. CTB, Inc. (2001)
* Facts
* P chicken farmer sued D builders for chicken house
* Chicken house defective
* D blamed defective nail company
* Rule
* Under 14(a), a defendant may assert a claim against anyone not a party in the original action if that third party’s liability is in some way dependent upon the outcome of the original action. Must be same transaction or occurrence.
* Third party liability must in some way be derivative of the original claim; a third party may only be impleaded when the original defendant is trying to pass all or part of the liability onto that third party.
* Application
* Is a proper pleading of 14(a) because blah blah, their fault.
- Compulsory Joinder
o Temple v. Synthes Corp. (1990)
* Facts
* Mississippi P underwent surgery and had an implant by D.
* Implant broke
* P sued D in federal court under diversity jurisdiction
* P sued doctor who installed the implant in state court at the same time
* D attempted to dismiss the complaint instead of joining them
* Rule
* Required joinder? “interest of the courts and the public in complete, consistent, and efficient settlement of controversies”
* Application
* Requirements to necessary joinder not met. Joinder is at the discretion of the Plaintiff.
- Rules
o FRCP 19: Required Joinder of Parties
* (a) Persons Required to Be Joined if Feasible.
* (1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
o (A) in that person's absence, the court cannot accord complete relief among existing parties; or
o (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
* (i) as a practical matter impair or impede the person's ability to protect the interest; or
* (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
* (2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.
* (3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.
* (b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:
* (1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;
* (2) the extent to which any prejudice could be lessened or avoided by:
o (A) protective provisions in the judgment;
o (B) shaping the relief; or
o (C) other measures;
* (3) whether a judgment rendered in the person's absence would be adequate; and
* (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
* (c) Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state:
* (1) the name, if known, of any person who is required to be joined if feasible but is not joined; and
* (2) the reasons for not joining that person.
* (d) Exception for Class Actions. This rule is subject to Rule 23.
o FRCP 20: Permissive Joinder of Parties
* (a) Persons Who May Join or Be Joined.
* (1) Plaintiffs. Persons may join in one action as plaintiffs if:
o (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
o (B) any question of law or fact common to all plaintiffs will arise in the action.
* (2) Defendants. Persons--as well as a vessel, cargo, or other property subject to admiralty process in rem--may be joined in one action as defendants if:
o (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
o (B) any question of law or fact common to all defendants will arise in the action.
* (3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.
* (b) Protective Measures. The court may issue orders--including an order for separate trials--to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.
o FRCP 14: Third-Party Practice
* (a) When a Defending Party May Bring in a Third Party.
* (1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.
* (2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint--the “third-party defendant”:
o (A) must assert any defense against the third-party plaintiff's claim under Rule 12;
o (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);
o (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and
o (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.
* (3) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).
* (4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately.
* (5) Third-Party Defendant's Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.
* (6) Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the “summons” includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.
* (b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.
* (c) Admiralty or Maritime Claim.
* (1) Scope of Impleader. If a plaintiff asserts an admiralty or maritime claim under Rule 9(h), the defendant or a person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party plaintiff, bring in a third-party defendant who may be wholly or partly liable--either to the plaintiff or to the third-party plaintiff--for remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences.
* (2) Defending Against a Demand for Judgment for the Plaintiff. The third-party plaintiff may demand judgment in the plaintiff's favor against the third-party defendant. In that event, the third-party defendant must defend under Rule 12 against the plaintiff's claim as well as the third-party plaintiff's claim; and the action proceeds as if the plaintiff had sued both the third-party defendant and the third-party plaintiff.
D. Amendments
- The problem of prejudice in amendments
o Beeck v. Aquaslide ‘N’ Dive Corp. (1977)
* Facts
* P was injured while using water slide
* P sued on D negligence, strict liability, breach of implied warranty
* D initially admitted manufacture of water slide, later moved to amend and deny manufacture of water slide
* Rule
* Rule 15(a)(2) FRCP
o Once issue is joined in lawsuit, a party may amend his pleading only with opposing party’s written consent or the court’s leave. Court should freely give leave when justice so requires.
* If underlying facts or circumstances relied upon by P may be a proper subject of relief, he ought be afforded an opportunity to test his claim on the merits.
* Allowance or denial of leave to amend depends on the discretion of the trial court and is reviewable only for abuse of discretion.
* Trial court ordered separate trial and jury to determine the manufacturer of water slide
* Court determined it was not made by D
* P challenged trial court’s grant of a separate concurring trial
* Application
* D relied on the information by insurance companies that claimed that the slide was in fact manufactured by the D, when it was not.
* No bad faith on the part of D
* Was an issue of the court’s discretion
- Statutes of Limitations and Relation Back
o Moore v. Baker (1993)
* Facts
* P patient D doctor
* P signed consent form
* Operation went badly
* P claims violation of consent as she was not advised of alternative therapies
* P moved to amend for negligence during the surgery
* Court denied P’s motion to amend
* P claims abuse of discretion in denying the motion
* Rule
* Original complaint must give notice to the defendant of the claim being asserted
* Statute of limitations applies unless amendment is directly related out of same transaction/occurrence
* Amendment must be related to same transaction or occurrence
* Application
* Moore’s new claim does not arise out of the same conduct, transaction or occurrence, because it has to do with treatment after and during the surgery, whereas the other complaint has to do with failure to notify of alternative therapies, which occurred earlier than the surgery.
* Ruling
* P is barred from amending, judgment upheld
o Bonerb v. Richard J. Caron Foundation (1994)
* Facts
* P slip and fall while on D’s basketball court
* D is non-profit drug and alcohol rehab clinic
* P was patient at clinic, participating in mandatory exercise program
* P claims negligent maintenance
* Move to amend for counseling malpractice
o Would violate statute of limitations, but was not discovered until after the original pleading
* Rule
* FRCP 15 once time for amending has expired, a party may request a leave to amend, given freely by the court at their discretion
* Parties still must have notice
* Amendment may be cool despite statute of limitations if litigant advised of facts from which the claim arises prior to the rise of the claim
* Application
* Original and amended complaint have the same nucleus of operative facts
* There was no bad faith
- FRCP 15: Amended and Supplemented Pleadings
o (a) Amendments Before Trial.
* (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
* (A) 21 days after serving it, or
* (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
* (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
* (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.
o (b) Amendments During and After Trial.
* (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.
* (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move--at any time, even after judgment--to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.
o (c) Relation Back of Amendments.
* (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:
* (A) the law that provides the applicable statute of limitations allows relation back;
* (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading; or
* (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
o (i) received such notice of the action that it will not be prejudiced in defending on the merits; and
o (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
* (2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.
o (d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.
E. Ethical Limitations
- FRCP Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
o (a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name--or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.
o (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
* (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
* (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
* (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
* (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
o (c) Sanctions.
* (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
* (2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.
* (3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
* (4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.
* (5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:
* (A) against a represented party for violating Rule 11(b)(2); or
* (B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
* (6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
o (d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.
- Walker v. Northwest Corp. (1996)
o Facts
* P’s lawyer name is Massey
* P filed in diversity but failed to plead complete diversity
* Complaint stated “some of the defendants are citizens of different states”
* D’s lawyers sent a letter to Massey warning that they would seek to dismiss and sanctions if complaint was not amended
* P’s lawyer did not amend
* Court issued sanctions and did not allow amendment of complaint
o Rule
* FRCP 11 requires a pleading be made with some factual standing and not wholly frivolous
o Application
* They didn’t properly file, sanctions were per FRCP 11
- Christian v. Mattel, Inc. (2003)
o Facts
* D Mattel toy company, owns Barbie trademark
* P created and marketed “Claudene” doll to resemble USC cheerleader
* P sued D for copyright infringement when D released a Barbie that strongly resembled Claudene
* D claims copyright on Barbie look-alike predated Claudene by 5 years
* D notified P’s lawyers of this fact to show that the claim was frivolous
* P’s lawyers “hurled them in disgust”
* P’s lawyers Served with rule 11 motion and sanctions
o Rule
* D claimed that even if district court was justified in rule 11 sanctions, the conclusion was tainted because it impermissibly considered other misconduct that cannot be sanctioned.
o Application
* Determined that the court can make the ruling to sanction under 1) Rule 11, 2) 28 USC 1927, 3) Courts inherent authority
o Ruling
* Remanded for clarification by the lower court, but did not reverse their ruling.
IV. Discovery
A. Relevance & Procedures
- Cases
o Butler v. Rigsby (1998)
* Facts
* Automobile accident
* P sued D, driver of gravel truck
* During discovery, D filed for discovery of health care providers for P’s injuries
* D requested information showing
o a) total number of patients treated involved in litigation since January 1992,
o b) total number of patients referred by attorneys,
o Contacts with attorneys, and so on…
* Medical providers protested on the ground that the request was overly burdensome, protected by provider-patient privilege, and not relevant to the lawsuit
* Issue
* What are the limits for discovery, or the guidelines of what may be discoverable?
* Rule
* Scope of discovery includes any matter, not privileged, that is relevant to… any party’s claim or defense
* May be limited by the court if it determines that the discovery is unreasonably cumulative or duplicative, or if the burden outweighs any likely benefit, taking into account the facts of the case relating to parties’ resources, amount in controversy, etc.
* The court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.
* Application
* Is related in discovery as it could show the health care providers’ bias, and it is relevant to the case at hand
* Lower court not wrong to compel discovery, but after the court received the cost info, agreed that the D shall pay ? the price of discovery
* However, it reversed the part of the decision and deemed that the identity of the other patients is privileged and not relevant to the case.
* Ruling
* Affirmed in part, reversed in part
o Davis v. Precoat Metals (2002)
* Facts
* P employees of D employer
* Allege race and national origin discrimination
* Rule
* Discoverable information is not limited to that which would be admissible at trial, so long as it appears reasonably calculated to lead to the discovery of admissible evidence
* Court can limit if… as earlier discussed, burdensome or whatever
* Issue
* Is a plaintiff entitled to discovery regarding other employees’ complaints of discrimination against a defendant?
* Application
* Requests for other employees’ complaints is normally privileged. However, P is asking for all complaints specific to national origin or race discrimination, therefore, it is allowable.
o Steffan v. Cheney (1990)
* Facts
* P admitted to being homosexual
* P resigned from Navy after a discharge was recommended by a naval board
* P filed suit claiming unconstitutional discrimination
* Navy wanted discovery proving homosexual acts
* P claimed that it was irrelevant, as his admission was all that was relevant, not whether or not he engaged in homosexual acts
* Rule
* Discovery allowable?
* Application
* Discovery not allowable as it would not be relevant or lead to any relevant information in the case.
o Silvestri v. General Motors Corp. (2001)
* Facts
* P filed for products liability after D airbag did not deploy as warranted
* D was not able to inspect the vehicle, the only piece of evidence
* D moved for dismissal, and lower court approved
* P appealed, claiming that he had no duty to preserve the vehicle because he was not the owner (was his landlady’s car), and he nor his agents were engaged it its destruction
* Issue
* Should the case be dismissed for “spoliation” of evidene?
* Rule
* Duty to preserve evidence and turn it over to the other party. May face sanctions otherwise.
* Application
* Spoliation is only reserved for bad faith or other like action. It is the most severe punishment in cases like this.
* More importantly, it was highly prejudicial for the D
* Ruling
* While severe, it was not outside of the lower courts’ discretion to dismiss. Therefore, ruling affirmed.
o Zubulake v. UBS Warburg LLP (2003)
* Facts
* P equities trader working for employer D
* D sues for gender discrimination
* Court orders D to present email records relevant to P’s claims
* Court and P noted several deletions from what was submitted to the court
* D was notified to preserve such emails, and failed to do so
* P seeks sanctions
* Issue
* How to determine an appropriate remedy for the party that caused the prejudice from obstructing the discovery process?
* Rules
* A party may only be sanctioned if there is a duty to preserve it
* Adverse inference instruction where a party destroys evidence purposefully may end litigation and cause a ruling in favor of the other party
o Must have 1) control over evidence, 2) records destroyed on purpose, 3) evidence was relevant to the party’s claim or defense
* Application
* There was a duty to preserve the tapes because they were relevant and told to preserve them
* Is uncertain if it was purposeful or grossly negligent, but considering that it was the specific tapes relevant, and they knew to keep the emails, it was grossly negligent
* Not certain that the missing tapes contained the questionable information and no bad faith was proved.
* Ruling
* Adverse inference not appropriate, but D should bear the full cost for re-deposing witnesses and further discovery for the purposes of inquiring into issues raised by the destruction of evidence
- Rules
o FRCP 26: Duty to Disclose; General Provisions Governing Discovery
* (a) Required Disclosures.
* (1) Initial Disclosure.
o (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
* (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
* (ii) a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
* (iii) a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
* (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
o (B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
* (i) an action for review on an administrative record;
* (ii) a forfeiture action in rem arising from a federal statute;
* (iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
* (iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
* (v) an action to enforce or quash an administrative summons or subpoena;
* (vi) an action by the United States to recover benefit payments;
* (vii) an action by the United States to collect on a student loan guaranteed by the United States;
* (viii) a proceeding ancillary to a proceeding in another court; and
* (ix) an action to enforce an arbitration award.
o (C) Time for Initial Disclosures--In General. A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.
o (D) Time for Initial Disclosures--For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
o (E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
* (2) Disclosure of Expert Testimony.
o (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
o (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
* (i) a complete statement of all opinions the witness will express and the basis and reasons for them;
* (ii) the facts or data considered by the witness in forming them;
* (iii) any exhibits that will be used to summarize or support them;
* (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
* (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
* (vi) a statement of the compensation to be paid for the study and testimony in the case.
o (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
* (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
* (ii) a summary of the facts and opinions to which the witness is expected to testify.
o (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
* (i) at least 90 days before the date set for trial or for the case to be ready for trial; or
* (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.
o (E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).
* (3) Pretrial Disclosures.
o (A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:
* (i) the name and, if not previously provided, the address and telephone number of each witness--separately identifying those the party expects to present and those it may call if the need arises;
* (ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and
* (iii) an identification of each document or other exhibit, including summaries of other evidence--separately identifying those items the party expects to offer and those it may offer if the need arises.
o (B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made--except for one under Federal Rule of Evidence 402 or 403--is waived unless excused by the court for good cause.
* (4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served.
* (b) Discovery Scope and Limits.
* (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
* (2) Limitations on Frequency and Extent.
o (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
o (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
o (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
* (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
* (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
* (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
* (3) Trial Preparation: Materials.
o (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
* (i) they are otherwise discoverable under Rule 26(b)(1); and
* (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
o (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
o (C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:
* (i) a written statement that the person has signed or otherwise adopted or approved; or
* (ii) a contemporaneous stenographic, mechanical, electrical, or other recording--or a transcription of it--that recites substantially verbatim the person's oral statement.
* (4) Trial Preparation: Experts.
o (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
o (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
o (C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
* (i) relate to compensation for the expert's study or testimony;
* (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
* (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
o (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
* (i) as provided in Rule 35(b); or
* (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
o (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:
* (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and
* (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.
* (5) Claiming Privilege or Protecting Trial-Preparation Materials.
o (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
* (i) expressly make the claim; and
* (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
o (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
* (c) Protective Orders.
* (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending--or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
o (A) forbidding the disclosure or discovery;
o (B) specifying terms, including time and place, for the disclosure or discovery;
o (C) prescribing a discovery method other than the one selected by the party seeking discovery;
o (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
o (E) designating the persons who may be present while the discovery is conducted;
o (F) requiring that a deposition be sealed and opened only on court order;
o (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
o (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
* (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.
* (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
* (d) Timing and Sequence of Discovery.
* (1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
* (2) Sequence. Unless, on motion, the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice:
o (A) methods of discovery may be used in any sequence; and
o (B) discovery by one party does not require any other party to delay its discovery.
* (e) Supplementing Disclosures and Responses.
* (1) In General. A party who has made a disclosure under Rule 26(a)--or who has responded to an interrogatory, request for production, or request for admission--must supplement or correct its disclosure or response:
o (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
o (B) as ordered by the court.
* (2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.
* (f) Conference of the Parties; Planning for Discovery.
* (1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable--and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
* (2) Conference Content; Parties' Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.
* (3) Discovery Plan. A discovery plan must state the parties' views and proposals on:
o (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;
o (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
o (C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
o (D) any issues about claims of privilege or of protection as trial-preparation materials, including--if the parties agree on a procedure to assert these claims after production--whether to ask the court to include their agreement in an order;
o (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
o (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).
* (4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:
o (A) require the parties' conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and
o (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties' conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.
* (g) Signing Disclosures and Discovery Requests, Responses, and Objections.
* (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name--or by the party personally, if unrepresented--and must state the signer's address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:
o (A) with respect to a disclosure, it is complete and correct as of the time it is made; and
o (B) with respect to a discovery request, response, or objection, it is:
* (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
* (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
* (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
* (2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention.
* (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.
o FRCP 27: Depositions to Perpetuate Testimony
* (a) Before an Action Is Filed.
* (1) Petition. A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:
o (A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;
o (B) the subject matter of the expected action and the petitioner's interest;
o (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;
o (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and
o (E) the name, address, and expected substance of the testimony of each deponent.
* (2) Notice and Service. At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the district or state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies.
* (3) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.
* (4) Using the Deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed district-court action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken.
* (b) Pending Appeal.
* (1) In General. The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court.
* (2) Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the district court. The motion must show:
o (A) the name, address, and expected substance of the testimony of each deponent; and
o (B) the reasons for perpetuating the testimony.
* (3) Court Order. If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken and used as any other deposition taken in a pending district-court action.
* (c) Perpetuation by an Action. This rule does not limit a court's power to entertain an action to perpetuate testimony.
o FRCP 28: Persons Before Whom Depositions May Be Taken
* (a) Within the United States.
* (1) In General. Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before:
o (A) an officer authorized to administer oaths either by federal law or by the law in the place of examination; or
o (B) a person appointed by the court where the action is pending to administer oaths and take testimony.
* (2) Definition of “Officer”. The term “officer” in Rules 30, 31, and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a).
* (b) In a Foreign Country.
* (1) In General. A deposition may be taken in a foreign country:
o (A) under an applicable treaty or convention;
o (B) under a letter of request, whether or not captioned a “letter rogatory”;
o (C) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or
o (D) before a person commissioned by the court to administer any necessary oath and take testimony.
* (2) Issuing a Letter of Request or a Commission. A letter of request, a commission, or both may be issued:
o (A) on appropriate terms after an application and notice of it; and
o (B) without a showing that taking the deposition in another manner is impracticable or inconvenient.
* (3) Form of a Request, Notice, or Commission. When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed “To the Appropriate Authority in [name of country].” A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken.
* (4) Letter of Request--Admitting Evidence. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States.
* (c) Disqualification. A deposition must not be taken before a person who is any party's relative, employee, or attorney; who is related to or employed by any party's attorney; or who is financially interested in the action.
o FRCP 29: Stipulations About Discovery Procedure
* Unless the court orders otherwise, the parties may stipulate that:
* (a) a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified--in which event it may be used in the same way as any other deposition; and
* (b) other procedures governing or limiting discovery be modified--but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial.
o FRCP 30: Depositions by Oral Examination
* (a) When a Deposition May Be Taken.
* (1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45.
* (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2):
o (A) if the parties have not stipulated to the deposition and:
* (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants;
* (ii) the deponent has already been deposed in the case; or
* (iii) the party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or
o (B) if the deponent is confined in prison.
* (b) Notice of the Deposition; Other Formal Requirements.
* (1) Notice in General. A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.
* (2) Producing Documents. If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition.
* (3) Method of Recording.
o (A) Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition.
o (B) Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.
* (4) By Remote Means. The parties may stipulate--or the court may on motion order--that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions.
* (5) Officer's Duties.
o (A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer must begin the deposition with an on-the-record statement that includes:
* (i) the officer's name and business address;
* (ii) the date, time, and place of the deposition;
* (iii) the deponent's name;
* (iv) the officer's administration of the oath or affirmation to the deponent; and
* (v) the identity of all persons present.
o (B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded non-stenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i)-(iii) at the beginning of each unit of the recording medium. The deponent's and attorneys' appearance or demeanor must not be distorted through recording techniques.
o (C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters.
* (6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
* (c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.
* (1) Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer.
* (2) Objections. An objection at the time of the examination--whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition--must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
* (3) Participating Through Written Questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.
* (d) Duration; Sanction; Motion to Terminate or Limit.
* (1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
* (2) Sanction. The court may impose an appropriate sanction--including the reasonable expenses and attorney's fees incurred by any party--on a person who impedes, delays, or frustrates the fair examination of the deponent.
* (3) Motion to Terminate or Limit.
o (A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.
o (B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.
o (C) Award of Expenses. Rule 37(a)(5) applies to the award of expenses.
* (e) Review by the Witness; Changes.
* (1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:
o (A) to review the transcript or recording; and
o (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.
* (2) Changes Indicated in the Officer's Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.
* (f) Certification and Delivery; Exhibits; Copies of the Transcript or Recording; Filing.
* (1) Certification and Delivery. The officer must certify in writing that the witness was duly sworn and that the deposition accurately records the witness's testimony. The certificate must accompany the record of the deposition. Unless the court orders otherwise, the officer must seal the deposition in an envelope or package bearing the title of the action and marked “Deposition of [witness's name]” and must promptly send it to the attorney who arranged for the transcript or recording. The attorney must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.
* (2) Documents and Tangible Things.
o (A) Originals and Copies. Documents and tangible things produced for inspection during a deposition must, on a party's request, be marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the originals, the person may:
* (i) offer copies to be marked, attached to the deposition, and then used as originals--after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or
* (ii) give all parties a fair opportunity to inspect and copy the originals after they are marked--in which event the originals may be used as if attached to the deposition.
o (B) Order Regarding the Originals. Any party may move for an order that the originals be attached to the deposition pending final disposition of the case.
* (3) Copies of the Transcript or Recording. Unless otherwise stipulated or ordered by the court, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent.
* (4) Notice of Filing. A party who files the deposition must promptly notify all other parties of the filing.
* (g) Failure to Attend a Deposition or Serve a Subpoena; Expenses. A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney's fees, if the noticing party failed to:
* (1) attend and proceed with the deposition; or
* (2) serve a subpoena on a nonparty deponent, who consequently did not attend.
o FRCP 31: Depositions by Written Questions
* (a) When a Deposition May Be Taken.
* (1) Without Leave. A party may, by written questions, depose any person, including a party, without leave of court except as provided in Rule 31(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45.
* (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2):
o (A) if the parties have not stipulated to the deposition and:
* (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 30 by the plaintiffs, or by the defendants, or by the third-party defendants;
* (ii) the deponent has already been deposed in the case; or
* (iii) the party seeks to take a deposition before the time specified in Rule 26(d); or
o (B) if the deponent is confined in prison.
* (3) Service; Required Notice. A party who wants to depose a person by written questions must serve them on every other party, with a notice stating, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. The notice must also state the name or descriptive title and the address of the officer before whom the deposition will be taken.
* (4) Questions Directed to an Organization. A public or private corporation, a partnership, an association, or a governmental agency may be deposed by written questions in accordance with Rule 30(b)(6).
* (5) Questions from Other Parties. Any questions to the deponent from other parties must be served on all parties as follows: cross-questions, within 14 days after being served with the notice and direct questions; redirect questions, within 7 days after being served with cross-questions; and recross-questions, within 7 days after being served with redirect questions. The court may, for good cause, extend or shorten these times.
* (b) Delivery to the Officer; Officer's Duties. The party who noticed the deposition must deliver to the officer a copy of all the questions served and of the notice. The officer must promptly proceed in the manner provided in Rule 30(c), (e), and (f) to:
* (1) take the deponent's testimony in response to the questions;
* (2) prepare and certify the deposition; and
* (3) send it to the party, attaching a copy of the questions and of the notice.
* (c) Notice of Completion or Filing.
* (1) Completion. The party who noticed the deposition must notify all other parties when it is completed.
* (2) Filing. A party who files the deposition must promptly notify all other parties of the filing.
o FRCP 32: Using Depositions in Court Proceedings
* (a) Using Depositions.
* (1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions:
o (A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
o (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and
o (C) the use is allowed by Rule 32(a)(2) through (8).
* (2) Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence.
* (3) Deposition of Party, Agent, or Designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).
* (4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds:
o (A) that the witness is dead;
o (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition;
o (C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
o (D) that the party offering the deposition could not procure the witness's attendance by subpoena; or
o (E) on motion and notice, that exceptional circumstances make it desirable--in the interest of justice and with due regard to the importance of live testimony in open court--to permit the deposition to be used.
* (5) Limitations on Use.
o (A) Deposition Taken on Short Notice. A deposition must not be used against a party who, having received less than 14 days' notice of the deposition, promptly moved for a protective order under Rule 26(c)(1)(B) requesting that it not be taken or be taken at a different time or place--and this motion was still pending when the deposition was taken.
o (B) Unavailable Deponent; Party Could Not Obtain an Attorney. A deposition taken without leave of court under the unavailability provision of Rule 30(a)(2)(A)(iii) must not be used against a party who shows that, when served with the notice, it could not, despite diligent efforts, obtain an attorney to represent it at the deposition.
* (6) Using Part of a Deposition. If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.
* (7) Substituting a Party. Substituting a party under Rule 25 does not affect the right to use a deposition previously taken.
* (8) Deposition Taken in an Earlier Action. A deposition lawfully taken and, if required, filed in any federal- or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Federal Rules of Evidence.
* (b) Objections to Admissibility. Subject to Rules 28(b) and 32(d)(3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying.
* (c) Form of Presentation. Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party's request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise.
* (d) Waiver of Objections.
* (1) To the Notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.
* (2) To the Officer's Qualification. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made:
o (A) before the deposition begins; or
o (B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.
* (3) To the Taking of the Deposition.
o (A) Objection to Competence, Relevance, or Materiality. An objection to a deponent's competence--or to the competence, relevance, or materiality of testimony--is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.
o (B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if:
* (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and
* (ii) it is not timely made during the deposition.
o (C) Objection to a Written Question. An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross-question, within 7 days after being served with it.
* (4) To Completing and Returning the Deposition. An objection to how the officer transcribed the testimony--or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition--is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known.
o FRCP 33: Interrogatories to Parties
* (a) In General.
* (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2).
* (2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.
* (b) Answers and Objections.
* (1) Responding Party. The interrogatories must be answered:
o (A) by the party to whom they are directed; or
o (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.
* (2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
* (3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.
* (4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.
* (5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.
* (c) Use. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.
* (d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
* (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
* (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
o FRCP 34: Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
* (a) In General. A party may serve on any other party a request within the scope of Rule 26(b):
* (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
o (A) any designated documents or electronically stored information--including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations--stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
o (B) any designated tangible things; or
* (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
* (b) Procedure.
* (1) Contents of the Request. The request:
o (A) must describe with reasonable particularity each item or category of items to be inspected;
o (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
o (C) may specify the form or forms in which electronically stored information is to be produced.
* (2) Responses and Objections.
o (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
o (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.
o (C) Objections. An objection to part of a request must specify the part and permit inspection of the rest.
o (D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form--or if no form was specified in the request--the party must state the form or forms it intends to use.
o (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
* (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
* (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
* (iii) A party need not produce the same electronically stored information in more than one form.
* (c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.
o FRCP 35: Physical and Mental Examinations
* (a) Order for an Examination.
* (1) In General. The court where the action is pending may order a party whose mental or physical condition--including blood group--is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.
* (2) Motion and Notice; Contents of the Order. The order:
o (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
o (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
* (b) Examiner's Report.
* (1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined.
* (2) Contents. The examiner's report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests.
* (3) Request by the Moving Party. After delivering the reports, the party who moved for the examination may request--and is entitled to receive--from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them.
* (4) Waiver of Privilege. By requesting and obtaining the examiner's report, or by deposing the examiner, the party examined waives any privilege it may have--in that action or any other action involving the same controversy--concerning testimony about all examinations of the same condition.
* (5) Failure to Deliver a Report. The court on motion may order--on just terms--that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner's testimony at trial.
* (6) Scope. This subdivision (b) applies also to an examination made by the parties' agreement, unless the agreement states otherwise. This subdivision does not preclude obtaining an examiner's report or deposing an examiner under other rules.
o FRCP 36: Requests for Admission
* (a) Scope and Procedure.
* (1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:
o (A) facts, the application of law to fact, or opinions about either; and
o (B) the genuineness of any described documents.
* (2) Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying.
* (3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.
* (4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.
* (5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial.
* (6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses.
* (b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.
o FRCP 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
* (a) Motion for an Order Compelling Disclosure or Discovery.
* (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
* (2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.
* (3) Specific Motions.
o (A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.
o (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
* (i) a deponent fails to answer a question asked under Rule 30 or 31;
* (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);
* (iii) a party fails to answer an interrogatory submitted under Rule 33; or
* (iv) a party fails to respond that inspection will be permitted--or fails to permit inspection--as requested under Rule 34.
o (C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.
* (4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.
* (5) Payment of Expenses; Protective Orders.
o (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
* (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
* (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
* (iii) other circumstances make an award of expenses unjust.
o (B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
o (C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
* (b) Failure to Comply with a Court Order.
* (1) Sanctions in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court.
* (2) Sanctions in the District Where the Action Is Pending.
o (A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
* (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
* (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
* (iii) striking pleadings in whole or in part;
* (iv) staying further proceedings until the order is obeyed;
* (v) dismissing the action or proceeding in whole or in part;
* (vi) rendering a default judgment against the disobedient party; or
* (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
o (B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person.
o (C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
* (c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.
* (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
o (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
o (B) may inform the jury of the party's failure; and
o (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
* (2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:
o (A) the request was held objectionable under Rule 36(a);
o (B) the admission sought was of no substantial importance;
o (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
o (D) there was other good reason for the failure to admit.
* (d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.
* (1) In General.
o (A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:
* (i) a party or a party's officer, director, or managing agent--or a person designated under Rule 30(b)(6) or 31(a)(4)--fails, after being served with proper notice, to appear for that person's deposition; or
* (ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.
o (B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.
* (2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).
* (3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
* (e) Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
* (f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.
o FRCP 45: Subpoena
* (a) In General.
* (1) Form and Contents.
o (A) Requirements--In General. Every subpoena must:
* (i) state the court from which it issued;
* (ii) state the title of the action, the court in which it is pending, and its civil-action number;
* (iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and
* (iv) set out the text of Rule 45(c) and (d).
o (B) Command to Attend a Deposition--Notice of the Recording Method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.
o (C) Combining or Separating a Command to Produce or to Permit Inspection; Specifying the Form for Electronically Stored Information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.
o (D) Command to Produce; Included Obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.
* (2) Issued from Which Court. A subpoena must issue as follows:
o (A) for attendance at a hearing or trial, from the court for the district where the hearing or trial is to be held;
o (B) for attendance at a deposition, from the court for the district where the deposition is to be taken; and
o (C) for production or inspection, if separate from a subpoena commanding a person's attendance, from the court for the district where the production or inspection is to be made.
* (3) Issued by Whom. The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena as an officer of:
o (A) a court in which the attorney is authorized to practice; or
o (B) a court for a district where a deposition is to be taken or production is to be made, if the attorney is authorized to practice in the court where the action is pending.
* (b) Service.
* (1) By Whom; Tendering Fees; Serving a Copy of Certain Subpoenas. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party.
* (2) Service in the United States. Subject to Rule 45(c)(3)(A)(ii), a subpoena may be served at any place:
o (A) within the district of the issuing court;
o (B) outside that district but within 100 miles of the place specified for the deposition, hearing, trial, production, or inspection;
o (C) within the state of the issuing court if a state statute or court rule allows service at that place of a subpoena issued by a state court of general jurisdiction sitting in the place specified for the deposition, hearing, trial, production, or inspection; or
o (D) that the court authorizes on motion and for good cause, if a federal statute so provides.
* (3) Service in a Foreign Country. 28 U.S.C. § 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country.
* (4) Proof of Service. Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.
* (c) Protecting a Person Subject to a Subpoena.
* (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction--which may include lost earnings and reasonable attorney's fees--on a party or attorney who fails to comply.
* (2) Command to Produce Materials or Permit Inspection.
o (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.
o (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises--or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:
* (i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.
* (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.
* (3) Quashing or Modifying a Subpoena.
o (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:
* (i) fails to allow a reasonable time to comply;
* (ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person--except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;
* (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
* (iv) subjects a person to undue burden.
o (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:
* (i) disclosing a trade secret or other confidential research, development, or commercial information;
* (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or
* (iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial.
o (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
* (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and
* (ii) ensures that the subpoenaed person will be reasonably compensated.
* (d) Duties in Responding to a Subpoena.
* (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information:
o (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.
o (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
o (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.
o (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
* (2) Claiming Privilege or Protection.
o (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:
* (i) expressly make the claim; and
* (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
o (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.
* (e) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).
B. Privilege, Work Product, and Experts
- Cases
o Hickman v. Taylor (1947)
* Facts
* 2 Boats sank while towing a car float for unknown cause
* Survivors deposed and testimony was recorded
* P, estate of a dead guy, filed interrogatory asking if statements of members of the crews of sank tugs
o Asked for what they had talked about with their lawyer, D (Towing Co.) claimed privilege
* Issue
* Can the P ask for all of the statements that the survivors have made?
* Rules
* Discovery serves to narrow and clarify the basic issues between the parties and serve as a device for determining facts
* Application
* Guilty of contempt for refusal to answer.
o Thompson v. The Haskell Co. (1994)
* Facts
* P motion for protective order to shield from discovery documents relating to a psychologist
* Doctor was retained by P prior counsil to perform diagnostic review.
* Rule
* Ordinarily a party may not… discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial who… with some exceptions
* Ruling
* Because the information gained by the doctor was “highly probative” it may be subject to discovery and the motion for protection is denied
o Chiquita International Ltd. V. M/V Bolero Reefer (1994)
* Facts
* P shipper, D carrier
* Sued for cargo loss and damage
* D was to transport a bunch of bananas, but due to malfunctions, only about 2/3 were loaded onto the boat. That which did arrive was in poor condition.
* Submitted question to compel discovery of Mr. Winer
* D objected because Winer is a non-testifying expert…
* P claims Winer is a witness, not expert
* Rule
* Non-testifying expert is generally immune from discovery
* Ruling
* Qualifies as an expert with his expertise
* But his purpose would be as a witness, so he is not allwed to testify under 26(b)(4)(d)
- Rules
o FRCP 26: Duty to Disclose; General Provisions Governing Discovery
* (a) Required Disclosures.
* (1) Initial Disclosure.
o (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
* (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
* (ii) a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
* (iii) a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
* (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
o (B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
* (i) an action for review on an administrative record;
* (ii) a forfeiture action in rem arising from a federal statute;
* (iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
* (iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
* (v) an action to enforce or quash an administrative summons or subpoena;
* (vi) an action by the United States to recover benefit payments;
* (vii) an action by the United States to collect on a student loan guaranteed by the United States;
* (viii) a proceeding ancillary to a proceeding in another court; and
* (ix) an action to enforce an arbitration award.
o (C) Time for Initial Disclosures--In General. A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.
o (D) Time for Initial Disclosures--For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
o (E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
* (2) Disclosure of Expert Testimony.
o (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
o (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
* (i) a complete statement of all opinions the witness will express and the basis and reasons for them;
* (ii) the facts or data considered by the witness in forming them;
* (iii) any exhibits that will be used to summarize or support them;
* (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
* (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
* (vi) a statement of the compensation to be paid for the study and testimony in the case.
o (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
* (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
* (ii) a summary of the facts and opinions to which the witness is expected to testify.
o (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
* (i) at least 90 days before the date set for trial or for the case to be ready for trial; or
* (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.
o (E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).
* (3) Pretrial Disclosures.
o (A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:
* (i) the name and, if not previously provided, the address and telephone number of each witness--separately identifying those the party expects to present and those it may call if the need arises;
* (ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and
* (iii) an identification of each document or other exhibit, including summaries of other evidence--separately identifying those items the party expects to offer and those it may offer if the need arises.
o (B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made--except for one under Federal Rule of Evidence 402 or 403--is waived unless excused by the court for good cause.
* (4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served.
* (b) Discovery Scope and Limits.
* (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
* (2) Limitations on Frequency and Extent.
o (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
o (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
o (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
* (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
* (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
* (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
* (3) Trial Preparation: Materials.
o (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
* (i) they are otherwise discoverable under Rule 26(b)(1); and
* (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
o (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
o (C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:
* (i) a written statement that the person has signed or otherwise adopted or approved; or
* (ii) a contemporaneous stenographic, mechanical, electrical, or other recording--or a transcription of it--that recites substantially verbatim the person's oral statement.
* (4) Trial Preparation: Experts.
o (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
o (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
o (C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
* (i) relate to compensation for the expert's study or testimony;
* (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
* (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
o (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
* (i) as provided in Rule 35(b); or
* (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
o (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:
* (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and
* (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.
* (5) Claiming Privilege or Protecting Trial-Preparation Materials.
o (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
* (i) expressly make the claim; and
* (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
o (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
* (c) Protective Orders.
* (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending--or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
o (A) forbidding the disclosure or discovery;
o (B) specifying terms, including time and place, for the disclosure or discovery;
o (C) prescribing a discovery method other than the one selected by the party seeking discovery;
o (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
o (E) designating the persons who may be present while the discovery is conducted;
o (F) requiring that a deposition be sealed and opened only on court order;
o (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
o (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
* (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.
* (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
* (d) Timing and Sequence of Discovery.
* (1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
* (2) Sequence. Unless, on motion, the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice:
o (A) methods of discovery may be used in any sequence; and
o (B) discovery by one party does not require any other party to delay its discovery.
* (e) Supplementing Disclosures and Responses.
* (1) In General. A party who has made a disclosure under Rule 26(a)--or who has responded to an interrogatory, request for production, or request for admission--must supplement or correct its disclosure or response:
o (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
o (B) as ordered by the court.
* (2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.
* (f) Conference of the Parties; Planning for Discovery.
* (1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable--and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
* (2) Conference Content; Parties' Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.
* (3) Discovery Plan. A discovery plan must state the parties' views and proposals on:
o (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;
o (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
o (C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
o (D) any issues about claims of privilege or of protection as trial-preparation materials, including--if the parties agree on a procedure to assert these claims after production--whether to ask the court to include their agreement in an order;
o (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
o (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).
* (4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:
o (A) require the parties' conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and
o (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties' conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.
* (g) Signing Disclosures and Discovery Requests, Responses, and Objections.
* (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name--or by the party personally, if unrepresented--and must state the signer's address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:
o (A) with respect to a disclosure, it is complete and correct as of the time it is made; and
o (B) with respect to a discovery request, response, or objection, it is:
* (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
* (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
* (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
* (2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention.
* (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.
C. Privacy
- Cases
o Stalnaker v. Kmart Corp (D. Kan. 1996)
* Facts
* Motion for protective order before the court
* D seeks an order protecting non-party witnesses from discovery concerning voluntary romantic conduct of their sexual activities
* P claims sexual harassment from an employee of D
* D alleges that voluntary sexual relations or activities of the witnesses are irrelevant, invades privacy rights, such that it will cause embarrassment, humiliation, and invasion of privacy rights that outweighs any probative value of the activities.
* P suggests that witnesses may have information relating to sexual harassment at that workplace
* P would agree to prevent dissemination of discovery to third parties to alleviate privacy concerns
* Rules
* Protective orders may be issued at the sound discretion of the court upon a showing of good cause that the order would protect a person from annoyance, embarrassment, oppression, or undue burden or expense
* A party is entitled to request protective areas that are clearly outside the scope of appropriate discovery
* Fed. R. Evid. Rule 412, applies generally to sexual harassment cases that aims to safeguard victims against invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate details
* Application
* D has demonstrated good cause to bar discovery of the voluntary romantic and sexual activities of non-parties to the extent that the relationships have no relation to the charges against the D
* Any reports of sexual harassment by D’s employee, however, is relevant.
* Ruling
* P may not pursue discovery from… about any voluntary activities, except to the limited extent indicated in this order. Also, may not disclose to non-parties the results
- Rules
o FRCP 26: Duty to Disclose; General Provisions Governing Discovery
* (c) Protective Orders.
* (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending--or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
o (A) forbidding the disclosure or discovery;
o (B) specifying terms, including time and place, for the disclosure or discovery;
o (C) prescribing a discovery method other than the one selected by the party seeking discovery;
o (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
o (E) designating the persons who may be present while the discovery is conducted;
o (F) requiring that a deposition be sealed and opened only on court order;
o (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
o (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
* (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.
* (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
V. Resolution Without Trial
A. Default and Dismissal
- Cases
o Peralta v. Heights Medical Center (1988)
* Facts
* Heights sued appellant Peralta for a hospital debt $5600
* Default judgment issued after a failure to appear
o $5600 plus attorney’s fees and costs
* Peralta was given untimely service
* Peralta appealed the default judgment
o Claimed defective service of process and that Peralta had not been served in fact at all, therefore judgment void under Texas law
* Rules
* Failure of service violates fundamental due process rights
* Ruling
* Where a person has been deprived of property in a manner contrary to the most basic tenants of due process, it is no answer to say that he had no adequate defense upon the merits.
* Judgment reversed.
- Rules
o FRCP 41: Dismissal of Actions
* (a) Voluntary Dismissal.
* (1) By the Plaintiff.
o (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
* (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
* (ii) a stipulation of dismissal signed by all parties who have appeared.
o (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
* (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
* (b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.
* (c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant's voluntary dismissal under Rule 41(a)(1)(A)(i) must be made:
* (1) before a responsive pleading is served; or
* (2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.
* (d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:
* (1) may order the plaintiff to pay all or part of the costs of that previous action; and
* (2) may stay the proceedings until the plaintiff has complied.
o FRCP 55: Default; Default Judgment
* (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.
* (b) Entering a Default Judgment.
* (1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk--on the plaintiff's request, with an affidavit showing the amount due--must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
* (2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals--preserving any federal statutory right to a jury trial--when, to enter or effectuate judgment, it needs to:
o (A) conduct an accounting;
o (B) determine the amount of damages;
o (C) establish the truth of any allegation by evidence; or
o (D) investigate any other matter.
* (c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b).
* (d) Judgment Against the United States. A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.
B. Summary Judgment
- Rules
o FRCP 56: Summary Judgment
* (a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
* (b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
* (c) Procedures.
* (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
o (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
o (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
* (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
* (3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
* (4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
* (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
* (1) defer considering the motion or deny it;
* (2) allow time to obtain affidavits or declarations or to take discovery; or
* (3) issue any other appropriate order.
* (e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:
* (1) give an opportunity to properly support or address the fact;
* (2) consider the fact undisputed for purposes of the motion;
* (3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or
* (4) issue any other appropriate order.
* (f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:
* (1) grant summary judgment for a nonmovant;
* (2) grant the motion on grounds not raised by a party; or
* (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.
* (g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact--including an item of damages or other relief--that is not genuinely in dispute and treating the fact as established in the case.
* (h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court--after notice and a reasonable time to respond--may order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.
- Cases
o Houchens v. American Home Assurance Co. (1991)
* Facts
* Breach of contract
* Mr. Houchens disappeared while on vacation in Bangkok
* Insurance policy covered “accidents” which was not defined
* Virginia law stated that the burden to prove accidental death in insurance cases fell on the insured
* D refused to pay out the policy, P sued
* D moved for summary judgment because P could not prove that D died as a result of an “accident”
* Rule
* FRCP 56(a) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which the party will bear the burden of proof at trial
* Application
* Only evidence of a disappearance, not of an accident. Cannot conclude that he died accidentally, and to do so would be to “pile inferences on inferences”
* Ruling
* Ruled in favor of D for summary judgment to dismiss the case
o Celotex Corp. v. Catrett (1986)
* Facts
* Products liability claim, D died from asbestos cancer, P was accused of making the asbestos
* D moves for summary judgment based on failure to produce evidence
* P some produces evidence that shows D may have caused the harms
* Rule
* There can be no genuine dispute as to any material fact in a pleading in order for summary judgment to be granted
* Application
* Does not need to have enough evidence/in sufficient form in the pleading to immediately determine guilt or innocence, but some material claims must be included.
* Ruling
* Remanded for trial
o Bias v. Advantage International, Inc. (1990)
* Facts
* Bias was a basketball player represented by Advantage
* Bias’s family was told that Advantage had a 1 million dollar insurance policy, a claim upon which the family relied and did not receive life insurance on their own.
* Bias died of a cocaine overdose
* Advantage had no insurance policy, so Bias was uninsured
* Family sued, Advantage moved for summary judgment
o A) Bias was a cocaine user, and b) a cocaine user would not have been able to be insured for a million dollar policy, therefore no basis upon which to state a claim
* Rule
* The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Burden shifts and the non-moving party must, after such a motion is made, “come forward with ‘specific facts showing that there is a genuine issue for trial.’”
* Application
* He was a cocaine user, and he wouldn’t have been able to be insured at the time, and so there was no loss to the Bias family
* Ruling
* Affirmed the motion for summary judgment
IV. Trial
A. Right to a Jury Trial
- Cases
o Teamsters v. Terry (1990)
* Facts
* Trucking Co. and Union were in a collective-bargaining agreement that covered workers for the Trucking Co.
* 27 respondents employed by Trucking Co., members of the Union and party to the agreement
* Trucking Co. transferred respondents, laid them off and recalled them several times, resulting in a loss of seniority
* Respondents filed grievances with the Union, and refused to pursue them to the satisfaction of the workers. Workers/respondents sued for lack of fair representation.
* IS a federal statute that obligates fair representation
* Issue
* If an employee who seeks relief in the form of back pay for a union’s alleged breach of its duty of fair representation has a right to a trial by jury.
* Rule
* Questions of fact or equity are determined by a jury, generally, while questions of law may be determined by a judge – not proper for a jury.
* Application
* Action is both legal and equitable issues.
* Remedy is sought as a request for compensatory damages, which is generally entitled to a jury determination. Monetary awards incidental or intertwined with injunctive relief may be equitable, also entitled to a jury.
* Ruling
* Affirm judgment of the court of appeals, entitled to a jury trial on all issues presented in their suit.
o Beacon Theatres, Inc. v. Westover (1959)
* Facts
* Fox asked for declaratory relief against Beacon alleging a controversy under the Sherman Antitrust Act
o Antitrust laws prohibit monopolies
* Fox’s movie theatre was showing movies under contracts with distributors with exclusive first run rights, with a period of exclusive showing
* Beacon notified Fox that it considered contracts with simultaneous first run films in other theatres in violation of antitrust laws.
* Rule
* Issues of equity and the law are not entitled to a jury
* Application
* Statute in question specifically reserves the right to a jury trial for parties in anti trust cases
* Ruling
* Judgment Reversed
- Statutes
o FRCP 38: Right to a Jury Trial; Demand
* (a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate.
* (b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:
* (1) serving the other parties with a written demand--which may be included in a pleading--no later than 14 days after the last pleading directed to the issue is served; and
* (2) filing the demand in accordance with Rule 5(d).
* (c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may--within 14 days after being served with the demand or within a shorter time ordered by the court--serve a demand for a jury trial on any other or all factual issues triable by jury.
* (d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.
* (e) Admiralty and Maritime Claims. These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h).
o FRCP 39: Trial by Jury or by the Court
* (a) When a Demand Is Made. When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury unless:
* (1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or
* (2) the court, on motion or on its own, finds that on some or all of those issues there is no federal right to a jury trial.
* (b) When No Demand Is Made. Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.
* (c) Advisory Jury; Jury Trial by Consent. In an action not triable of right by a jury, the court, on motion or on its own:
* (1) may try any issue with an advisory jury; or
* (2) may, with the parties' consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right, unless the action is against the United States and a federal statute provides for a nonjury trial.
o FRCP 52: Findings and Conclusions by the Court; Judgment on Partial Findings
* (a) Findings and Conclusions.
* (1) In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be entered under Rule 58.
* (2) For an Interlocutory Injunction. In granting or refusing an interlocutory injunction, the court must similarly state the findings and conclusions that support its action.
* (3) For a Motion. The court is not required to state findings or conclusions when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other motion.
* (4) Effect of a Master's Findings. A master's findings, to the extent adopted by the court, must be considered the court's findings.
* (5) Questioning the Evidentiary Support. A party may later question the sufficiency of the evidence supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings.
* (6) Setting Aside the Findings. Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility.
* (b) Amended or Additional Findings. On a party's motion filed no later than 28 days after the entry of judgment, the court may amend its findings--or make additional findings--and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59.
* (c) Judgment on Partial Findings. If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a).
B. Choosing Juries
- Cases
o Thompson v. Altheimer & Gray (2003)
* Facts
* P brought suit under Title VII of Civil rights act, race discrimination
* Jury found for D and P appeals
o Juror Leiter should have been struck due to bias as a business owner, was biased toward businesses and the D was a business.
* P wanted juror struck during voir dire but was not struck
* Issue
* Did what Leiter say manifest a degree of bias such that the judge abused his discretion in failing to strike her for cause?
* Rule
* If a juror manifests bias, must be removed, at the discretion of the judge.
* Application
* The question in this case was if her beliefs would impede her giving due weight to the evidence and following the judge’s instructions. The question was not adequately explored. Had she said that she could not be fair, the judge would have had to strike her for cause. She did not say that so the judge should have asked explicitly if she would follow his instructions on the law and suspend judgment until she had heard all the evidence. He failed to make Leiter give unequivocal assurances to deem her credible.
* Ruling
* Reversed and remanded (for a new trial)
- Statutes
o 28 USC § 1861: Declaration of Policy
* It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.
o 28 USC § 1862: Discrimination Prohibited
* No citizen shall be excluded from service as a grand or petit juror in the district courts of the United States or in the Court of International Trade on account of race, color, religion, sex, national origin, or economic status.
o 28 USC § 1863: Plan for Random Jury Selection
* (a) Each United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors that shall be designed to achieve the objectives of sections 1861 and 1862 of this title, and that shall otherwise comply with the provisions of this title. The plan shall be placed into operation after approval by a reviewing panel consisting of the members of the judicial council of the circuit and either the chief judge of the district whose plan is being reviewed or such other active district judge of that district as the chief judge of the district may designate. The panel shall examine the plan to ascertain that it complies with the provisions of this title. If the reviewing panel finds that the plan does not comply, the panel shall state the particulars in which the plan fails to comply and direct the district court to present within a reasonable time an alternative plan remedying the defect or defects. Separate plans may be adopted for each division or combination of divisions within a judicial district. The district court may modify a plan at any time and it shall modify the plan when so directed by the reviewing panel. The district court shall promptly notify the panel, the Administrative Office of the United States Courts, and the Attorney General of the United States, of the initial adoption and future modifications of the plan by filing copies therewith. Modifications of the plan made at the instance of the district court shall become effective after approval by the panel. Each district court shall submit a report on the jury selection process within its jurisdiction to the Administrative Office of the United States Courts in such form and at such times as the Judicial Conference of the United States may specify. The Judicial Conference of the United States may, from time to time, adopt rules and regulations governing the provisions and the operation of the plans formulated under this title.
* (b) Among other things, such plan shall—
* (1) either establish a jury commission, or authorize the clerk of the court, to manage the jury selection process. If the plan establishes a jury commission, the district court shall appoint one citizen to serve with the clerk of the court as the jury commission: Provided, however, That the plan for the District of Columbia may establish a jury commission consisting of three citizens. The citizen jury commissioner shall not belong to the same political party as the clerk serving with him. The clerk or the jury commission, as the case may be, shall act under the supervision and control of the chief judge of the district court or such other judge of the district court as the plan may provide. Each jury commissioner shall, during his tenure in office, reside in the judicial district or division for which he is appointed. Each citizen jury commissioner shall receive compensation to be fixed by the district court plan at a rate not to exceed $50 per day for each day necessarily employed in the performance of his duties, plus reimbursement for travel, subsistence, and other necessary expenses incurred by him in the performance of such duties. The Judicial Conference of the United States may establish standards for allowance of travel, subsistence, and other necessary expenses incurred by jury commissioners.
* (2) specify whether the names of prospective jurors shall be selected from the voter registration lists or the lists of actual voters of the political subdivisions within the district or division. The plan shall prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title. The plan for the District of Columbia may require the names of prospective jurors to be selected from the city directory rather than from voter lists. The plans for the districts of Puerto Rico and the Canal Zone may prescribe some other source or sources of names of prospective jurors in lieu of voter lists, the use of which shall be consistent with the policies declared and rights secured by sections 1861 and 1862 of this title. The plan for the district of Massachusetts may require the names of prospective jurors to be selected from the resident list provided for in chapter 234A, Massachusetts General Laws, or comparable authority, rather than from voter lists.
* (3) specify detailed procedures to be followed by the jury commission or clerk in selecting names from the sources specified in paragraph (2) of this subsection. These procedures shall be designed to ensure the random selection of a fair cross section of the persons residing in the community in the district or division wherein the court convenes. They shall ensure that names of persons residing in each of the counties, parishes, or similar political subdivisions within the judicial district or division are placed in a master jury wheel; and shall ensure that each county, parish, or similar political subdivision within the district or division is substantially proportionally represented in the master jury wheel for that judicial district, division, or combination of divisions. For the purposes of determining proportional representation in the master jury wheel, either the number of actual voters at the last general election in each county, parish, or similar political subdivision, or the number of registered voters if registration of voters is uniformly required throughout the district or division, may be used.
* (4) provide for a master jury wheel (or a device similar in purpose and function) into which the names of those randomly selected shall be placed. The plan shall fix a minimum number of names to be placed initially in the master jury wheel, which shall be at least one-half of 1 per centum of the total number of persons on the lists used as a source of names for the district or division; but if this number of names is believed to be cumbersome and unnecessary, the plan may fix a smaller number of names to be placed in the master wheel, but in no event less than one thousand. The chief judge of the district court, or such other district court judge as the plan may provide, may order additional names to be placed in the master jury wheel from time to time as necessary. The plan shall provide for periodic emptying and refilling of the master jury wheel at specified times, the interval for which shall not exceed four years.
* (5)
o (A) except as provided in subparagraph (B), specify those groups of persons or occupational classes whose members shall, on individual request therefor, be excused from jury service. Such groups or classes shall be excused only if the district court finds, and the plan states, that jury service by such class or group would entail undue hardship or extreme inconvenience to the members thereof, and excuse of members thereof would not be inconsistent with sections 1861 and 1862 of this title.
o (B) specify that volunteer safety personnel, upon individual request, shall be excused from jury service. For purposes of this subparagraph, the term “volunteer safety personnel” means individuals serving a public agency (as defined in section 1203(6) of title I of the Omnibus Crime Control and Safe Streets Act of 1968) in an official capacity, without compensation, as firefighters or members of a rescue squad or ambulance crew.
* (6) specify that the following persons are barred from jury service on the ground that they are exempt: (A) members in active service in the Armed Forces of the United States; (B) members of the fire or police departments of any State, the District of Columbia, any territory or possession of the United States, or any subdivision of a State, the District of Columbia, or such territory or possession; (C) public officers in the executive, legislative, or judicial branches of the Government of the United States, or of any State, the District of Columbia, any territory or possession of the United States, or any subdivision of a State, the District of Columbia, or such territory or possession, who are actively engaged in the performance of official duties.
* (7) fix the time when the names drawn from the qualified jury wheel shall be disclosed to parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require.
* (8) specify the procedures to be followed by the clerk or jury commission in assigning persons whose names have been drawn from the qualified jury wheel to grand and petit jury panels.
* (c) The initial plan shall be devised by each district court and transmitted to the reviewing panel specified in subsection (a) of this section within one hundred and twenty days of the date of enactment of the Jury Selection and Service Act of 1968. The panel shall approve or direct the modification of each plan so submitted within sixty days thereafter. Each plan or modification made at the direction of the panel shall become effective after approval at such time thereafter as the panel directs, in no event to exceed ninety days from the date of approval. Modifications made at the instance of the district court under subsection (a) of this section shall be effective at such time thereafter as the panel directs, in no event to exceed ninety days from the date of modification.
* (d) State, local, and Federal officials having custody, possession, or control of voter registration lists, lists of actual voters, or other appropriate records shall make such lists and records available to the jury commission or clerks for inspection, reproduction, and copying at all reasonable times as the commission or clerk may deem necessary and proper for the performance of duties under this title. The district courts shall have jurisdiction upon application by the Attorney General of the United States to compel compliance with this subsection by appropriate process.
o 28 USC § 1864: Drawing the names from the master jury wheel; completion of juror qualification form
* (a) From time to time as directed by the district court, the clerk or a district judge shall draw at random from the master jury wheel the names of as many persons as may be required for jury service. The clerk or jury commission shall post a general notice for public review in the clerk's office and on the court's website explaining the process by which names are periodically and randomly drawn. The clerk or jury commission may, upon order of the court, prepare an alphabetical list of the names drawn from the master jury wheel. Any list so prepared shall not be disclosed to any person except pursuant to the district court plan or pursuant to section 1867 or 1868 of this title. The clerk or jury commission shall mail to every person whose name is drawn from the master wheel a juror qualification form accompanied by instructions to fill out and return the form, duly signed and sworn, to the clerk or jury commission by mail within ten days. If the person is unable to fill out the form, another shall do it for him, and shall indicate that he has done so and the reason therefor. In any case in which it appears that there is an omission, ambiguity, or error in a form, the clerk or jury commission shall return the form with instructions to the person to make such additions or corrections as may be necessary and to return the form to the clerk or jury commission within ten days. Any person who fails to return a completed juror qualification form as instructed may be summoned by the clerk or jury commission forthwith to appear before the clerk or jury commission to fill out a juror qualification form. A person summoned to appear because of failure to return a juror qualification form as instructed who personally appears and executes a juror qualification form before the clerk or jury commission may, at the discretion of the district court, except where his prior failure to execute and mail such form was willful, be entitled to receive for such appearance the same fees and travel allowances paid to jurors under section 1871 of this title. At the time of his appearance for jury service, any person may be required to fill out another juror qualification form in the presence of the jury commission or the clerk or the court, at which time, in such cases as it appears warranted, the person may be questioned, but only with regard to his responses to questions contained on the form. Any information thus acquired by the clerk or jury commission may be noted on the juror qualification form and transmitted to the chief judge or such district court judge as the plan may provide.
* (b) Any person summoned pursuant to subsection (a) of this section who fails to appear as directed shall be ordered by the district court forthwith to appear and show cause for his failure to comply with the summons. Any person who fails to appear pursuant to such order or who fails to show good cause for noncompliance with the summons may be fined not more than $1,000, imprisoned not more than three days, ordered to perform community service, or any combination thereof. Any person who willfully misrepresents a material fact on a juror qualification form for the purpose of avoiding or securing service as a juror may be fined not more than $1,000, imprisoned not more than three days, ordered to perform community service, or any combination thereof.
o 28 USC § 1865: Qualifications for Jury Service
* (a) The chief judge of the district court, or such other district court judge as the plan may provide, on his initiative or upon recommendation of the clerk or jury commission, or the clerk under supervision of the court if the court's jury selection plan so authorizes, shall determine solely on the basis of information provided on the juror qualification form and other competent evidence whether a person is unqualified for, or exempt, or to be excused from jury service. The clerk shall enter such determination in the space provided on the juror qualification form and in any alphabetical list of names drawn from the master jury wheel. If a person did not appear in response to a summons, such fact shall be noted on said list.
* (b) In making such determination the chief judge of the district court, or such other district court judge as the plan may provide, or the clerk if the court's jury selection plan so provides, shall deem any person qualified to serve on grand and petit juries in the district court unless he—
* (1) is not a citizen of the United States eighteen years old who has resided for a period of one year within the judicial district;
* (2) is unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form;
* (3) is unable to speak the English language;
* (4) is incapable, by reason of mental or physical infirmity, to render satisfactory jury service; or
* (5) has a charge pending against him for the commission of, or has been convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been restored.
o 28 USC § 1866: Selection and Summoning of Jury Panels
* (a) The jury commission, or in the absence thereof the clerk, shall maintain a qualified jury wheel and shall place in such wheel names of all persons drawn from the master jury wheel who are determined to be qualified as jurors and not exempt or excused pursuant to the district court plan. From time to time, the jury commission or the clerk shall draw at random from the qualified jury wheel such number of names of persons as may be required for assignment to grand and petit jury panels. The clerk or jury commission shall post a general notice for public review in the clerk's office and on the court's website explaining the process by which names are periodically and randomly drawn. The jury commission or the clerk shall prepare a separate list of names of persons assigned to each grand and petit jury panel.
* (b) When the court orders a grand or petit jury to be drawn, the clerk or jury commission or their duly designated deputies shall issue summonses for the required number of jurors.
* Each person drawn for jury service may be served personally, or by registered, certified, or first-class mail addressed to such person at his usual residence or business address.
* If such service is made personally, the summons shall be delivered by the clerk or the jury commission or their duly designated deputies to the marshal who shall make such service.
* If such service is made by mail, the summons may be served by the marshal or by the clerk, the jury commission or their duly designated deputies, who shall make affidavit of service and shall attach thereto any receipt from the addressee for a registered or certified summons.
* (c) Except as provided in section 1865 of this title or in any jury selection plan provision adopted pursuant to paragraph (5) or (6) of section 1863(b) of this title, no person or class of persons shall be disqualified, excluded, excused, or exempt from service as jurors: Provided, That any person summoned for jury service may be
* (1) excused by the court, or by the clerk under supervision of the court if the court's jury selection plan so authorizes, upon a showing of undue hardship or extreme inconvenience, for such period as the court deems necessary, at the conclusion of which such person either shall be summoned again for jury service under subsections (b) and (c) of this section or, if the court's jury selection plan so provides, the name of such person shall be reinserted into the qualified jury wheel for selection pursuant to subsection (a) of this section, or
* (2) excluded by the court on the ground that such person may be unable to render impartial jury service or that his service as a juror would be likely to disrupt the proceedings, or
* (3) excluded upon peremptory challenge as provided by law, or
* (4) excluded pursuant to the procedure specified by law upon a challenge by any party for good cause shown, or
* (5) excluded upon determination by the court that his service as a juror would be likely to threaten the secrecy of the proceedings, or otherwise adversely affect the integrity of jury deliberations. No person shall be excluded under clause (5) of this subsection unless the judge, in open court, determines that such is warranted and that exclusion of the person will not be inconsistent with sections 1861 and 1862 of this title. The number of persons excluded under clause (5) of this subsection shall not exceed one per centum of the number of persons who return executed jury qualification forms during the period, specified in the plan, between two consecutive fillings of the master jury wheel. The names of persons excluded under clause (5) of this subsection, together with detailed explanations for the exclusions, shall be forwarded immediately to the judicial council of the circuit, which shall have the power to make any appropriate order, prospective or retroactive, to redress any misapplication of clause (5) of this subsection, but otherwise exclusions effectuated under such clause shall not be subject to challenge under the provisions of this title. Any person excluded from a particular jury under clause (2), (3), or (4) of this subsection shall be eligible to sit on another jury if the basis for his initial exclusion would not be relevant to his ability to serve on such other jury.
* (d) Whenever a person is disqualified, excused, exempt, or excluded from jury service, the jury commission or clerk shall note in the space provided on his juror qualification form or on the juror's card drawn from the qualified jury wheel the specific reason therefor.
* (e) In any two-year period, no person shall be required to (1) serve or attend court for prospective service as a petit juror for a total of more than thirty days, except when necessary to complete service in a particular case, or (2) serve on more than one grand jury, or (3) serve as both a grand and petit juror.
* (f) When there is an unanticipated shortage of available petit jurors drawn from the qualified jury wheel, the court may require the marshal to summon a sufficient number of petit jurors selected at random from the voter registration lists, lists of actual voters, or other lists specified in the plan, in a manner ordered by the court consistent with sections 1861 and 1862 of this title.
* (g) Any person summoned for jury service who fails to appear as directed may be ordered by the district court to appear forthwith and show cause for failure to comply with the summons. Any person who fails to show good cause for noncompliance with a summons may be fined not more than $1,000, imprisoned not more than three days, ordered to perform community service, or any combination thereof.
o 28 USC § 1867: Challenging Compliance with Selection Procedures
* (a) In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.
* (b) In criminal cases, before the voir dire examination begins, or within seven days after the Attorney General of the United States discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the Attorney General may move to dismiss the indictment or stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.
* (c) In civil cases, before the voir dire examination begins, or within seven days after the party discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, any party may move to stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the petit jury.
* (d) Upon motion filed under subsection (a), (b), or (c) of this section, containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title, the moving party shall be entitled to present in support of such motion the testimony of the jury commission or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence. If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the grand jury, the court shall stay the proceedings pending the selection of a grand jury in conformity with this title or dismiss the indictment, whichever is appropriate. If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in conformity with this title.
* (e) The procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal crime, the Attorney General of the United States or a party in a civil case may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title. Nothing in this section shall preclude any person or the United States from pursuing any other remedy, civil or criminal, which may be available for the vindication or enforcement of any law prohibiting discrimination on account of race, color, religion, sex, national origin or economic status in the selection of persons for service on grand or petit juries.
* (f) The contents of records or papers used by the jury commission or clerk in connection with the jury selection process shall not be disclosed, except pursuant to the district court plan or as may be necessary in the preparation or presentation of a motion under subsection (a), (b), or (c) of this section, until after the master jury wheel has been emptied and refilled pursuant to section 1863(b)(4) of this title and all persons selected to serve as jurors before the master wheel was emptied have completed such service. The parties in a case shall be allowed to inspect, reproduce, and copy such records or papers at all reasonable times during the preparation and pendency of such a motion. Any person who discloses the contents of any record or paper in violation of this subsection may be fined not more than $1,000 or imprisoned not more than one year, or both.
o 28 USC § 1870: Challenges
* In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.
* All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court.
o FRCP 47: Selecting Jurors
* (a) Examining Jurors. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.
* (b) Peremptory Challenges. The court must allow the number of peremptory challenges provided by 28 U.S.C. § 1870.
* (c) Excusing a Juror. During trial or deliberation, the court may excuse a juror for good cause.
o FRCP 48: Number of Jurors; Verdict; Polling
* (a) Number of Jurors. A jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused under Rule 47(c).
* (b) Verdict. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.
* (c) Polling. After a verdict is returned but before the jury is discharged, the court must on a party's request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to, the court may direct the jury to deliberate further or may order a new trial.
o FRCP 49: Special Verdict; General Verdict and Questions
* (a) Special Verdict.
* (1) In General. The court may require a jury to return only a special verdict in the form of a special written finding on each issue of fact. The court may do so by:
o (A) submitting written questions susceptible of a categorical or other brief answer;
o (B) submitting written forms of the special findings that might properly be made under the pleadings and evidence; or
o (C) using any other method that the court considers appropriate.
* (2) Instructions. The court must give the instructions and explanations necessary to enable the jury to make its findings on each submitted issue.
* (3) Issues Not Submitted. A party waives the right to a jury trial on any issue of fact raised by the pleadings or evidence but not submitted to the jury unless, before the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue. If the court makes no finding, it is considered to have made a finding consistent with its judgment on the special verdict.
* (b) General Verdict with Answers to Written Questions.
* (1) In General. The court may submit to the jury forms for a general verdict, together with written questions on one or more issues of fact that the jury must decide. The court must give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing, and must direct the jury to do both.
* (2) Verdict and Answers Consistent. When the general verdict and the answers are consistent, the court must approve, for entry under Rule 58, an appropriate judgment on the verdict and answers.
* (3) Answers Inconsistent with the Verdict. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may:
o (A) approve, for entry under Rule 58, an appropriate judgment according to the answers, notwithstanding the general verdict;
o (B) direct the jury to further consider its answers and verdict; or
o (C) order a new trial.
* (4) Answers Inconsistent with Each Other and the Verdict. When the answers are inconsistent with each other and one or more is also inconsistent with the general verdict, judgment must not be entered; instead, the court must direct the jury to further consider its answers and verdict, or must order a new trial.
C. Directed Verdict and Motion for New Trial
- Cases
o Norton v. Snapper Power Equipment (1987)
* Facts
* P on lawnmower made by D
* P slid backwards off a hill into a lake, and the blades cut off some of his fingers
* P sued for negligence and warranty claims and strict liability defect claims
* P claims that he would not have been injured if it were not for the lack of a deadman switch, a claim for which he brought evidence
* Judge struck the negligence and warranty claims, Jury found for the P
* Judge entered a judgment notwithstanding the verdict for the D
* Judge claims that there was not sufficient evidence to find for the P because there was no showing that any inherent defect caused P’s injuries
* P appealed
* Rule
* The court considers evidence most favorable to non-moving party and should grant summary judgment notwithstanding the verdict only where the evidence so strongly and so favorably points in the favor of the moving party that reasonable people could not arrive at a contrary verdict.
* P are not entitled to a verdict based on speciation and conjecture, however, the jury is permitted to reconstruct the series of events by drawing an inference upon inference.
* Application
* Norton claims the Snapper mower was unreasonably dangerous because it did not have a dead man device. Norton showed that such a device would have prevented his injuries. Norton showed some evidence to this effect.
* DEBATE ABOUT APPROPRIATE AND INAPPROPRIATE INFERENCES OF THE JURY.
* Ruling
* Reversed and remanded.
o Reid v. San Pedro, Los Angeles & Salt Lake Railroad (1911)
* Facts
* P sued to recover for D train killing P’s cattle
* P claims that D negligently and carelessly permitted the fence to be in disrepair, which allowed for cattle to enter the land
* Verdict for P, D appealed the judgment entered on the verdict
* Application
* Cow could have entered upon the right of way through the open gate, appellant cannot be held liable for her loss; there being no evidence of negligence on the part of the D train
* No evidence to show how the cow got to be in front of the train.
* Ruling
* Verdict was not supported by evidence, and that the trial court should have directed a verdict for the D on that cause of action in accordance with appellant’s request.
o Pennsylvania Railroad v. Chamberlain (1933)
* Facts
* Chamberlain died, estate sued for negligence
* Train yard
* Evidence dispute over the directed verdict for RR
o Several witnesses who claim accident could not have been caused by negligence as stated by Chamberlain
o Chamberlain has only one who sort of saw what happened
* Rule
* Jurys are to determine facts where there is any dispute in evidence, regardless of how many or how credible the witnesses are.
* Application
* There was only one
* Expert witness can offer inferences, but I guess not a direct or lay witness
* However, Chamberlain’s witness was wholly unreliable and therefore did not constitute a witness at all
* Ruling
* Affirmed the directed verdict for the RR
o Lind v. Schenley Industries (1969)
* Facts
* P sales manager for D liquor company
* Alleged oral contract for D to give a raise and increased commissions for the P
* D denied the contract
* Jury found for P, judge granted judgment not withstanding the verdict
* D appealed
* Rule
* Usually appeals court does not overturn because it is an issue of discretion to grant an order for judgment notwithstanding the verdict.
* If there is an obvious verdict contrary to the weight of evidence, it may be overturned
* Application
* Testimony of Secretary and P seemed credible and the jury found it to be so. Judge submitted its judgment for that of the jury and thereby abused its legal discretion.
* Ruling
* Reinstated the verdict in favor of P.
- Statutes
o FRCP 50: Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling
* (a) Judgment as a Matter of Law.
* (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
o (A) resolve the issue against the party; and
o (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
* (2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
* (b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment--or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged--the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:
* (1) allow judgment on the verdict, if the jury returned a verdict;
* (2) order a new trial; or
* (3) direct the entry of judgment as a matter of law.
* (c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial.
* (1) In General. If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial.
* (2) Effect of a Conditional Ruling. Conditionally granting the motion for a new trial does not affect the judgment's finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders.
* (d) Time for a Losing Party's New-Trial Motion. Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment.
* (e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal. If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment.
o FRCP 54: Judgment; Costs
* (a) Definition; Form. “Judgment” as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a master's report, or a record of prior proceedings.
* (b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief--whether as a claim, counterclaim, crossclaim, or third-party claim--or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.
* (c) Demand for Judgment; Relief to Be Granted. A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.
* (d) Costs; Attorney's Fees.
* (1) Costs Other Than Attorney's Fees. Unless a federal statute, these rules, or a court order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. The clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action.
* (2) Attorney's Fees.
o (A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.
o (B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must:
* (i) be filed no later than 14 days after the entry of judgment;
* (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award;
* (iii) state the amount sought or provide a fair estimate of it; and
* (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.
o (C) Proceedings. Subject to Rule 23(h), the court must, on a party's request, give an opportunity for adversary submissions on the motion in accordance with Rule 43(c) or 78. The court may decide issues of liability for fees before receiving submissions on the value of services. The court must find the facts and state its conclusions of law as provided in Rule 52(a).
o (D) Special Procedures by Local Rule; Reference to a Master or a Magistrate Judge. By local rule, the court may establish special procedures to resolve fee-related issues without extensive evidentiary hearings. Also, the court may refer issues concerning the value of services to a special master under Rule 53 without regard to the limitations of Rule 53(a)(1), and may refer a motion for attorney's fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.
o (E) Exceptions. Subparagraphs (A)-(D) do not apply to claims for fees and expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. § 1927.
o FRCP 58: Entering Judgment
* (a) Separate Document. Every judgment and amended judgment must be set out in a separate document, but a separate document is not required for an order disposing of a motion:
* (1) for judgment under Rule 50(b);
* (2) to amend or make additional findings under Rule 52(b);
* (3) for attorney's fees under Rule 54;
* (4) for a new trial, or to alter or amend the judgment, under Rule 59; or
* (5) for relief under Rule 60.
* (b) Entering Judgment.
* (1) Without the Court's Direction. Subject to Rule 54(b) and unless the court orders otherwise, the clerk must, without awaiting the court's direction, promptly prepare, sign, and enter the judgment when:
o (A) the jury returns a general verdict;
o (B) the court awards only costs or a sum certain; or
o (C) the court denies all relief.
* (2) Court's Approval Required. Subject to Rule 54(b), the court must promptly approve the form of the judgment, which the clerk must promptly enter, when:
o (A) the jury returns a special verdict or a general verdict with answers to written questions; or
o (B) the court grants other relief not described in this subdivision (b).
* (c) Time of Entry. For purposes of these rules, judgment is entered at the following times:
* (1) if a separate document is not required, when the judgment is entered in the civil docket under Rule 79(a); or
* (2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs:
o (A) it is set out in a separate document; or
o (B) 150 days have run from the entry in the civil docket.
* (d) Request for Entry. A party may request that judgment be set out in a separate document as required by Rule 58(a).
* (e) Cost or Fee Awards. Ordinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees. But if a timely motion for attorney's fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and become effective to order that the motion have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59.
o FRCP 59: New Trial; Altering or Amending a Judgment
* (a) In General.
* (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues--and to any party--as follows:
o (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or
o (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.
* (2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.
* (b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the entry of judgment.
* (c) Time to Serve Affidavits. When a motion for a new trial is based on affidavits, they must be filed with the motion. The opposing party has 14 days after being served to file opposing affidavits. The court may permit reply affidavits.
* (d) New Trial on the Court's Initiative or for Reasons Not in the Motion. No later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either event, the court must specify the reasons in its order.
* (e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.
VII. Appeal
- Cases
o Aetna Casualty and Surety Co. v. Cunningham (1955)
* Facts
* Contractor D failed to complete project
* P stepped in and financed the completion of the project
* P theories for recovery
o Terms permitted it
o D had committed insurance fraud
* Court ruled for P on 1 but D on 2
* Both parties appealed
* Rule
* Appeals may only be brought by the a party who lost
* Application
* If Aetna was denied judgment of the quality it laid claim, it is a party aggrieved on appeal
* Ruling
* The denial of any one claim results in the P not getting the relief to which it claims to be entitled, and has a right to an appeal.
o Liberty Mutual Insurance Co. v. Wetzel (1976)
* Facts
* Wetzel filed complaint that asserted Liberty violated Title VII of Civil Rights act of 1964
* Court ruled in favor of Wetzel on issue of liability under the act
* Wetzel moved for summary judgment
* Motion was granted, but they did not receive the relief requested and thereby petitioned for appeal of the ruling
* Court of appeals refused to look at it as an appealable decision because Wetzel received a favorable ruling
* Taken by the supreme court
* Rule
* If a court grants a favorable ruling but not the particular relief not satisfactory or preferred, the order may be appealable as an interlocutory order under USC 1292(a)(1)
* Application
* Court Granted Wetzel’s request for injunctive relief, but not on other requests for relief
* Ruling
* Vacated court of appeals ruling and sent it back for them to hear the case
o Lauro Lines s.r.l. v. Chasser (1989)
* Facts
* D(respondents) were passengers aboard a ship while it was highjacked by terrorists
* P owned the ship
* D sued for injuries and wrongful death
* P claimed waiver on the ticket, motion for dismissal
* Court denied motion (this is the interlocutory order)
* P appealed the motion
* Issue
* If an interlocutory order of a US District Court denying a D’s motion to dismiss a damages action on the basis of a contractual forum-selection clause is immediately appealable under 28 USC 1291 as a collateral final order
* Rule
* USC 1291 provides for appeal to court of appeals only from “final decisions of the district courts of the United States”
* A final judgment is regarded as a decision that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.
* Exception for orders too important to be denied until the end of the proceedings
o Three prong test: (must satisfy all elements)
* Conclusively determine the disputed question
* Resolve an important issue completely separate from the merits of the action
* Be effectively unreviewable on appeal from a final judgment
* Application
* Does not fall under the “too important” exception because it would not necessarily change the outcome of the case
* Ruling
* Affirmed, no appeal possible for this interlocutory order
o Anderson v. Bessemer City (1985)
* Facts
* Title VII discrimination case
* P sued City after hiring a male for a job when she was turned down
* Court found that it was a valid claim of discrimination as a finding of fact
* Appeals reversed the finding that she was the most qualified candidate, and that the committees were biased
* Rule
* Finding of fact standard: shall not be set aside unless clearly erroneous, and due regard shall be given the opportunity of the trial court to judge the credibility of the witnesses
* Application
* Did appear to be wrong, but not “clearly erroneous”
* Ruling
* Affirmed trial court, reversed the court of appeals
o Harnden v. Jayco, Inc. (2007)
* Facts
* P bought RV that was returned several times for various defects
* Repairs failed to fix the vehicle
* P sued er’body: Jayco making the body, Ford, the dealer
* Most claims were dropped, all parties except Jayco dismissed
* Jayco moved for summary judgment, P appeals grant for summary judgment
o Is an appeal on the testimony which was the grounds for summary judgment
o Says that it was not properly formatted
* Rule
* Reversal is required only where the district court’s error affected a party’s substantial rights and the party was prejudiced by the district court’s error
* Application
* The format was not a big deal, and D offered to amend, Judge didn’t care about the formatting issue, P was just being a dick.
* Ruling
* Affirmed ruling for the D
- Statutes
o 28 USC § 1291: Final Decisions of District Courts
* The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title.
o 28 USC § 1291: Interlocutory decisions
* (a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:
* (1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;
* (2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property;
* (3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.
* (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
* (c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction—
* (1) of an appeal from an interlocutory order or decree described in subsection (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under section 1295 of this title; and
* (2) of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the United States Court of Appeals for the Federal Circuit and is final except for an accounting.
* (d)
* (1) When the chief judge of the Court of International Trade issues an order under the provisions of section 256(b) of this title, or when any judge of the Court of International Trade, in issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order.
* (2) When the chief judge of the United States Court of Federal Claims issues an order under section 798(b) of this title, or when any judge of the United States Court of Federal Claims, in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order.
* (3) Neither the application for nor the granting of an appeal under this subsection shall stay proceedings in the Court of International Trade or in the Court of Federal Claims, as the case may be, unless a stay is ordered by a judge of the Court of International Trade or of the Court of Federal Claims or by the United States Court of Appeals for the Federal Circuit or a judge of that court.
* (4)
o (A) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of an appeal from an interlocutory order of a district court of the United States, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, granting or denying, in whole or in part, a motion to transfer an action to the United States Court of Federal Claims under section 1631 of this title.
o (B) When a motion to transfer an action to the Court of Federal Claims is filed in a district court, no further proceedings shall be taken in the district court until 60 days after the court has ruled upon the motion. If an appeal is taken from the district court's grant or denial of the motion, proceedings shall be further stayed until the appeal has been decided by the Court of Appeals for the Federal Circuit. The stay of proceedings in the district court shall not bar the granting of preliminary or injunctive relief, where appropriate and where expedition is reasonably necessary. However, during the period in which proceedings are stayed as provided in this subparagraph, no transfer to the Court of Federal Claims pursuant to the motion shall be carried out.
* (e) The Supreme Court may prescribe rules, in accordance with section 2072 of this title, to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for under subsection (a), (b), (c), or (d).
o FRCP 54: Judgment; Costs
* (a) Definition; Form. “Judgment” as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a master's report, or a record of prior proceedings.
* (b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief--whether as a claim, counterclaim, crossclaim, or third-party claim--or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.
* (c) Demand for Judgment; Relief to Be Granted. A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.
* (d) Costs; Attorney's Fees.
* (1) Costs Other Than Attorney's Fees. Unless a federal statute, these rules, or a court order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. The clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action.
* (2) Attorney's Fees.
o (A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.
o (B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must:
* (i) be filed no later than 14 days after the entry of judgment;
* (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award;
* (iii) state the amount sought or provide a fair estimate of it; and
* (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.
o (C) Proceedings. Subject to Rule 23(h), the court must, on a party's request, give an opportunity for adversary submissions on the motion in accordance with Rule 43(c) or 78. The court may decide issues of liability for fees before receiving submissions on the value of services. The court must find the facts and state its conclusions of law as provided in Rule 52(a).
o (D) Special Procedures by Local Rule; Reference to a Master or a Magistrate Judge. By local rule, the court may establish special procedures to resolve fee-related issues without extensive evidentiary hearings. Also, the court may refer issues concerning the value of services to a special master under Rule 53 without regard to the limitations of Rule 53(a)(1), and may refer a motion for attorney's fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.
o (E) Exceptions. Subparagraphs (A)-(D) do not apply to claims for fees and expenses as sanctions for violating these rules or as sanctions under 28 U.S.C. § 1927.
o FRAP 4 (Federal Rules of Appellate Procedure 4): Appeal as of Right – When Taken
* (a) Appeal in a Civil Case.
* (1) Time for Filing a Notice of Appeal.
o (A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.
o (B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is:
* (i) the United States;
* (ii) a United States agency;
* (iii) a United States officer or employee sued in an official capacity; or
* (iv) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf--including all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person.
o (C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).
* (2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order--but before the entry of the judgment or order--is treated as filed on the date of and after the entry.
* (3) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.
* (4) Effect of a Motion on a Notice of Appeal.
o (A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:
* (i) for judgment under Rule 50(b);
* (ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
* (iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;
* (iv) to alter or amend the judgment under Rule 59;
* (v) for a new trial under Rule 59; or
* (vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.
o (B)
* (i) If a party files a notice of appeal after the court announces or enters a judgment--but before it disposes of any motion listed in Rule 4(a)(4)(A)--the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
* (ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment's alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal--in compliance with Rule 3(c)--within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.
* (iii) No additional fee is required to file an amended notice.
* (5) Motion for Extension of Time.
o (A) The district court may extend the time to file a notice of appeal if:
* (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
* (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
o (B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
o (C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.
* (6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
o (A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
o (B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
o (C) the court finds that no party would be prejudiced.
* (7) Entry Defined.
o (A) A judgment or order is entered for purposes of this Rule 4(a):
* (i) if Federal Rule of Civil Procedure 58(a) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or
* (ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:
* the judgment or order is set forth on a separate document, or
* 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).
o (B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order.
* (b) Appeal in a Criminal Case.
* (1) Time for Filing a Notice of Appeal.
o (A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the later of:
* (i) the entry of either the judgment or the order being appealed; or
* (ii) the filing of the government's notice of appeal.
o (B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of:
* (i) the entry of the judgment or order being appealed; or
* (ii) the filing of a notice of appeal by any defendant.
* (2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision, sentence, or order--but before the entry of the judgment or order--is treated as filed on the date of and after the entry.
* (3) Effect of a Motion on a Notice of Appeal.
o (A) If a defendant timely makes any of the following motions under the Federal Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion:
* (i) for judgment of acquittal under Rule 29;
* (ii) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 14 days after the entry of the judgment; or
* (iii) for arrest of judgment under Rule 34.
o (B) A notice of appeal filed after the court announces a decision, sentence, or order--but before it disposes of any of the motions referred to in Rule 4(b)(3)(A)--becomes effective upon the later of the following:
* (i) the entry of the order disposing of the last such remaining motion; or
* (ii) the entry of the judgment of conviction.
o (C) A valid notice of appeal is effective--without amendment--to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A).
* (4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may--before or after the time has expired, with or without motion and notice--extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).
* (5) Jurisdiction. The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.
* (6) Entry Defined. A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.
* (c) Appeal by an Inmate Confined in an Institution.
* (1) If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
* (2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the date when the district court dockets the first notice.
* (3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30-day period for the government to file its notice of appeal runs from the entry of the judgment or order appealed from or from the district court's docketing of the defendant's notice of appeal, whichever is later.
* (d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.
o FRCP 52: Findings and Conclusions by the Court; Judgment on Partial Findings
* (a) Findings and Conclusions.
* (1) In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be entered under Rule 58.
* (2) For an Interlocutory Injunction. In granting or refusing an interlocutory injunction, the court must similarly state the findings and conclusions that support its action.
* (3) For a Motion. The court is not required to state findings or conclusions when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other motion.
* (4) Effect of a Master's Findings. A master's findings, to the extent adopted by the court, must be considered the court's findings.
* (5) Questioning the Evidentiary Support. A party may later question the sufficiency of the evidence supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings.
* (6) Setting Aside the Findings. Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility.
* (b) Amended or Additional Findings. On a party's motion filed no later than 28 days after the entry of judgment, the court may amend its findings--or make additional findings--and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59.
* (c) Judgment on Partial Findings. If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a).
o FRCP 61: Harmless Error
* Unless justice requires otherwise, no error in admitting or excluding evidence--or any other error by the court or a party--is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.
VIII. Finality
- Cases
o Norton v. Snapper Power Equipment (1987)
* Facts
* P on lawnmower made by D
* P slid backwards off a hill into a lake, and the blades cut off some of his fingers
* P sued for negligence and warranty claims and strict liability defect claims
* P claims that he would not have been injured if it were not for the lack of a deadman switch, a claim for which he brought evidence
* Judge struck the negligence and warranty claims, Jury found for the P
* Judge entered a judgment notwithstanding the verdict for the D
* Judge claims that there was not sufficient evidence to find for the P because there was no showing that any inherent defect caused P’s injuries
* P appealed
* Rule
* The court considers evidence most favorable to non-moving party and should grant summary judgment notwithstanding the verdict only where the evidence so strongly and so favorably points in the favor of the moving party that reasonable people could not arrive at a contrary verdict.
* P are not entitled to a verdict based on specution and conjecture, however, the jury is permitted to reconstruct the series of events by drawing an inference upon inference.
* Application
* Norton claims the Snapper mower was unreasonably dangerous because it did not have a dead man device. Norton showed that such a device would have prevented his injuries. Norton showed some evidence to this effect.
* Ruling
* Reversed and remanded.
o Rush v. City of Maple Heights (1958)
* Facts
* P driver of motorcycle injured while driving over a pothole
* P first sued city for damages to motorcycle and was awarded $100 for the city’s negligence
* P sued again for personal injury
* Rule
* If a plaintiff fails to sue for the entire damage done him by the tort, a second action for the damages omitted will be precluded by the judgment of the first suit brought and tried.
* Application
* Plaintiff had already brought suit and therefore was not able to recover personal injury damages.
o Frier v. City of Vandalia (1985)
* Facts
* P parked cars in the street, obstructing traffic, had his cars towed.
* P sued city all the way to federal court
* Fed court claim was due process under 14th amendment because he didn’t receive a hearing before having his car towed
* Suit dismissed for failure to state a claim, as P had notice of the tow and how to get his cars back, also had a full hearing for replevin action in state courts
* Rule
* Court ought not resolve a constitutional dispute unless absolutely necessary
* Application
* Frier had his day in court in the replevin action, but he failed to join his claim for constitutional violation with his replevin claims (claim preclusion/res judicata/estoppel by judgment)
* Ruling
* Affirmed. Should never have had the case in federal court but he did anyway, but even so, he looses because he had due process and summary judgment applies.
o Searle Brothers v. Searle (1978)
* Facts
* Edlean Searle sued Woodey Searle for divorce
* A piece of property known as Slaugh House, recoreded in Woodey’s name, but was part of the marital property
* Other half of House was owned by sons as partners
* Court awarded the entire property to Edlean
* This action was brought by the partnership against Edlean (dad)
* Trial court held that claim and issue preclusion barred this action
* Rule
* A divorce decree, like other final judgments, are conclusive as to parties and their privies and operates as a bar to any subsequent action. Both suits must involve the same parties or their privies and also the same cause of action; and this precludes relitigation of all issues that could have been litigated as well as those that were, in fact, litigated in the prior action.
* Exception for Collateral estoppel, which decides the status of a property and is a settled matter regardless of the parties
* Application
* The prior divorce case did not settle the issue of the partnership’s claim over the property.
* Ruling
* Reversed and remanded.
o Gargallo v. Merrill Lynch, Pierce, Fenner & Smith (1990)
* Facts
* Gargallo invested with Merril Lynch but lost a bunch of money
* Merrill sued for failure to pay, Gargallo countersued for negligence, other state claims, and violation of federal securities laws
* State court dismissed the counterclaim with prejudice for refusal to comply with discovery requests
* Gargallo filed in federal court, but the case was dismissed for claim preclusion
* Gargallo appealled
* Rule
* A judgment rendered by a court lacking subject matter jurisdiction ought not be given preclusive effect
* Application
* Ohio court lacked subject matter jurisdiction over the federal statute, and so it there was no claim preclusive effect
* Ruling
* Reversed and remanded
o Illinois Central Gulf Railroad v. Parks (1979)
* Rule
* Jessie and Bertha Parks drove car, collided with Illinois Central train
* Parks sued
* Bertha recovered 30,000 and judgment rendered for Illinois Central on Jessie’s claim
* Jessie sued RR for his own injuries on the claim
* RR Motion for summary judgment, court held that Jessie’s claim was not barred by claim preclusion and that the prior action did not preclude Jessie on the issue of contributory negligence
* RR appealed
* Rule
* Estoppel by Judgment
o Precludes relitigation of a cause of action finally determined (on same cause of action)
* Estoppel by Verdict
o Causes of action are not the same but, issues raised, some facts or questions determined would again be put in issue in a subsequent action between the parties
* Application
* Prior verdict established that RR was negligent and it was a proximate cause
* It therefore was decided, and the court’s summary judgment on the issue was valid
* Ruling
* Affirmed trial court
o Parklane Hosiery Co. v. Shore (1979)
* Facts
* Complaint alleged that petitioners Parklane issued a materially false and misleading proxy statement in connection with a merger, which violated SEC regulations
* Complaint sought damages, rescission of the merger, and recovery of costs
* A prior decision found the proxy statement false and misleading
* Respondent Shore moved for partial summary judgment on the issue of fact relating to the proxy statement, citing claim preclusion
* Rule
* Res judicata, prevents claims from being brought over and over, issues already decided, etc.
* Rule is that the trial courts have discretion for claim preclusion to determine when it should be applied, with biases for or against either party being taken into consideration as a mater of equity.
* Application
* Was a matter of discretion for the trial court, which rightly found that no bias toward either party existed for permitting claim preclusion on the issue already decided as to the proxy statement being false and misleading
* Ruling
* Affirmed, 7th amendment (right to jury trial) not a bar to issue preclusion
o State Farm Fire & Casualty Co. v. Century Home Components (1976)
* Facts
* Defendant constructed prefab homes in a big warehouse
* Warehouse was next to another warehouse with P’s property in it
* Defendant’s janitor dumped oil and dry sawdust into a box negligence
o Led to a fire that destroyed P’s property
* P brought 50 claims against D for essentially the same thing, which was negligence and damages from the fire
* Some of the cases were granted summary judgment, and they seemed to be gathered in different places in the court process
* Final judgment was granted on 2 claims which found for the P, one found for the D
* Present P’s amended their complaint to conform with those other cases
o Asserted that judgments preclude the D from questioning their liability
o D argues that would be unfair because of the jury verdict that found for the D
* Rule
* Multi-claimant anomaly
o Can’t give preclusive effect because one has more judgments than the other
o Collateral estoppel should not be applied where a defendant potentially faces more than two successive actions
* If multiple rulings on the same basic facts are inconsistent, they may be relitigated or challenged
* Application
* The prior determinations are basically inconsistent and that the circumstances are such that it would be unfair to preclude defendants from relitigating the issue of liability
* Ruling
* Reversed and remanded.
- Statutes
o US Constitution. Art. IV § 1: Full Faith and Credit
* Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
o 28 USC § 1738: State and Territorial Statutes and Judicial Proceedings; Full Faith and Credit
* The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.
* The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
* Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
IX. Intro to Complex Litigation
- Cases
o Wal-Mart Stores, Inc. v. Dukes (2011)
* Facts
* Court of Appeals approved certification of a class of comprising about 1.5 million plaintiffs, current and former female employees of Wal-Mart
* Violation of Title VII for discrimination
* Class claims that the discrimination is common to all female employees as a part of a corporate culture that permits bias against women to infect the discretionary decision-making practice of each of Wal-Mart’s thousands of managers
* Rule
* Respondents rely on Rule 23(b)(2)
o Applies when the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole
* Application
* Respondents moved to the Court to certify a P class of all women employed by Wal-Mart who may have been subjected to the pay and management discrimination
* Their claims must depend upon a common contention, for example, the assertion of discriminatory bias on the part of the same supervisor, that common contention
* Must be of a nature that it is capable of class wide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke
* Ruling
* Class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims
* The necessity of that litigation will prevent back pay from being incidental to the class wide injunction, respondents’ class could not be certified even assuming that incidental monetary relief can be awarded to a 23(b)(2) class
- Statutes
o FRCP 23: Class Actions
* (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
* (1) the class is so numerous that joinder of all members is impracticable;
* (2) there are questions of law or fact common to the class;
* (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
* (4) the representative parties will fairly and adequately protect the interests of the class.
* (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
* (1) prosecuting separate actions by or against individual class members would create a risk of:
o (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
o (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
* (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
* (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
o (A) the class members' interests in individually controlling the prosecution or defense of separate actions;
o (B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
o (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
o (D) the likely difficulties in managing a class action.
* (c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.
* (1) Certification Order.
o (A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
o (B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).
o (C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment.
* (2) Notice.
o (A) For (b)(1) or (b)(2) Classes. For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class.
o (B) For (b)(3) Classes. For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language:
* (i) the nature of the action;
* (ii) the definition of the class certified;
* (iii) the class claims, issues, or defenses;
* (iv) that a class member may enter an appearance through an attorney if the member so desires;
* (v) that the court will exclude from the class any member who requests exclusion;
* (vi) the time and manner for requesting exclusion; and
* (vii) the binding effect of a class judgment on members under Rule 23(c)(3).
* (3) Judgment. Whether or not favorable to the class, the judgment in a class action must:
o (A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and
o (B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.
* (4) Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.
* (5) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.
* (d) Conducting the Action.
* (1) In General. In conducting an action under this rule, the court may issue orders that:
o (A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;
o (B) require--to protect class members and fairly conduct the action--giving appropriate notice to some or all class members of:
* (i) any step in the action;
* (ii) the proposed extent of the judgment; or
* (iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;
o (C) impose conditions on the representative parties or on intervenors;
o (D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or
o (E) deal with similar procedural matters.
* (2) Combining and Amending Orders. An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 16.
* (e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
* (1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.
* (2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.
* (3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
* (4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
* (5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court's approval.
* (f) Appeals. A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
* (g) Class Counsel.
* (1) Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:
o (A) must consider:
* (i) the work counsel has done in identifying or investigating potential claims in the action;
* (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
* (iii) counsel's knowledge of the applicable law; and
* (iv) the resources that counsel will commit to representing the class;
o (B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;
o (C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs;
o (D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and
o (E) may make further orders in connection with the appointment.
* (2) Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.
* (3) Interim Counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.
* (4) Duty of Class Counsel. Class counsel must fairly and adequately represent the interests of the class.
* (h) Attorney's Fees and Nontaxable Costs. In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement. The following procedures apply:
* (1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.
* (2) A class member, or a party from whom payment is sought, may object to the motion.
* (3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a).
* (4) The court may refer issues related to the amount of the award to a special master or a magistrate judge, as provided in Rule 54(d)(2)(D).
Condensed Outline (.doc version available here, via Dropbox)
Remedies
- Monetary Damages
o Liquidated Damages are contractually set amounts of damages, may be granted but limited by what is reasonably calculated (UCC 2-718(1))
o Statutory Damages are causes of actions with minimum or maximum recoveries. Jury determines the amount to set within the limits (Feltner v. Colombia)
o Punitive Damages determined by 1) Degree of reprehensibility, 2) difference between actual or potential harm and punitive amount (Usually 3x economic, no more than 10x, no bright line), 3) difference between punitive damages and civil penalties. Limited due process clause. (State Farm v. Campbell)
o Limits on Monetary Damages:
* Vague jury instructions may result in abuse of discretion, and a court may refuse to admit them if too high (Beagle v. Vasold)
* Damages in contracts limited to consequential damages, excludes pain, suffering and unforeseeable harms (UCC 2-715)
* Ability to pay damages (Valencia v. Shell)
* Due process limits civil damages pursuant to statutory scheme (Browning-Ferris v Kelco)
* Can’t award punitive damages for absent parties (Phillip Morris USA v. Williams)
- Non-Monetary
o Declaratory Relief: Declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought (28 USC 2201) (FRCP 57)
Financing Remedies
- Court may allow prevailing party attorney’s fees as part of costs at court’s discretion (42 USC 1988(b))
o Prevailing Plaintiff, not defendant unless sued in bad faith (Christianburg Garment)
- Fee may be waived by agreement/settlement (Evans v. Jeff D.)
Subject Matter Jurisdiction
- Federal Subject Matter Jurisdiction IF:
o Issue arises under a constitutional issue, laws of the US (US Constitution, Article 3), (28 USC 1331)
* Also, cases with: ambassadors; maritime; US is a party; between 2 or more states; between a state and citizen of another state; between citizens of different states/aliens/foreign nations; between a state claiming land grants from other states (US Constitution, Article 3)
* Constitutional issue must be on the face of the complaint, not as an anticipated defense (Louisville v. Mottley) (Am. Well Works Co. v. Layne & Bowler Co.)
o Amount in controversy is more than $75,000 AND is of 1) citizens of different states; or 2) citizens of a State and citizens of foreign state; or 4) foreign state as plaintiff and citizen/state (28 USC 1332(a))
* Must be over $75,000 after judgment rendered, or plaintiff may face costs (28 USC 1332(b))
* Must be in good faith (St. Paul Mercury Indemnity Co. v. Red Cab Co.)
* $75,000 includes non-discretionary attorney’s fees if awarded by contract (Springstead v. Crawfordsville State Bank) or statute (Missouri State Life Ins. Co. v. Jones)
* A corporation is a citizen of every state where: it is incorporated, principal place of business (28 USC 1332(c)), (Hawkins v. Masters)
* BUT if a direct action against insurer, will be a citizen of where a) insured is a citizen, b) insurer has been incorporated, c) insurer principal place of business (28 USC 1332(c))
* Legal rep of a person is a citizen for jurisdiction purpose of estate (28 USC 1332(c)(2))
* Must have complete diversity of parties (28 USC 1332)
* A person is a citizen where they are domiciled and have intent to remain (Hawkins v. Masters)
* Jurisdiction is determined at the time of filing the complaint (Hawkins v. Masters)
o Supplemental Jurisdiction may be exercised if:
* Claims related to actions arising under the constitution (28 USC 1367(a))
* May deny Supplemental jurisdiction if:
* Under diversity jurisdiction & eliminates complete diversity (28 USC 1367(b))
* If 1) raises novel or complex state law issue, 2) state claim predominates 3) district has dismissed original jurisdiction claims, 4) other compelling reasons (28 USC 1367(c))
o Court will determine if state claim predominates by considering what the operative and common facts necessary to the success of the state claim are (In re: Ameriquest Mortgage Co. Mortgage Lending Practices Litigation)
o Novel or predominating issues of state laws will be kept in state courts (Szendrey-Ramos v. First Bancorp)
Personal Jurisdiction
- Personal jurisdiction in a complaint only need present a case prima facia (AST v. CLF)
- States hold exclusive personal jurisdiction over persons/property in physical territory, but not that which isn’t within the territory (Pennoyer v. Neff)
o Exception: if contacts with State is sufficient. Minimal contact allows specific jurisdiction; Substantial, pervasive and continuous contacts give allow general jurisdiction (International Shoe v. Washington)
* Minimal contact must be made purposefully (Hanson v. Denckla)
- Jurisdiction must conform to traditional notions of justice and fair play (International Shoe v. Washington)
o Balancing test for jurisdictional fairness: 1) burden on Defendant, 2) interest of forum state, 3) Plaintiff interest in obtaining relief, 4) efficiency of interstate system, 5) shared interest in furthering policy goals. (Ashai v. Superior Court)
o Parties must be given notice for a judgment to be valid (Pennoyer v. Neff)
* Serving a summons or filing waiver establishes personal jurisdiction:
* Who a) is subject to jurisdiction, b) is joined under FRCP 14 or 19 and is served in a district no more than 100 miles from where summons was issued, or c) as authorized by federal statute (FRCP 4(k)(1))
* For claims arising under federal law, a) defendant isn’t subject to jurisdiction in any state’s courts and b) Exercising jurisdiction is consistent with US laws (FRCP 4(k)(2))
* If no service within 120 days after filing complaint, must dismiss the action (FRCP 4(m))
* Notice must be reasonably calculated: 1) chance of actual notice, 2) cost of notice, 3) interest at stake for party receiving notice (Mullane v. Central Hanover Bank)
* IF not issued proper notice, may move to dismiss for 4) insufficient process or 5) insufficient service of process (FRCP 14(b)(4&5))
Venue
- Proper venue is the district where 1) jurisdiction resides, 2) where a substantial part of the events giving rise to the claim occurred, 3) if no district otherwise applies, any that holds personal jurisdiction over the defendant. (28 USC 1391(b))
o Residency is determined as 1) where domiciled, 2) principal place of business, 3) any or disregarded in joinder (28 USC 1391(c))
Judicial Recusal
- Party may submit affidavit for recusal if judge has personal bias for/against either party (28 USC 144)
o Motions are heard by potentially biased judge (Berger v. US)
o Judge may also disqualify themselves for bias/knowledge/interest/whatever (28 USC 455)
o Interest in outcome due to financial relationship with a party: grounds for recusal (Caperton v Massey)
- Even an appearance of bias may be grounds for recusal (In Re: Boston’s Children First)
Complaint
- Pleading must be signed, good faith, nonfrivolous, or there may be sanctions (FRCP 11)
o Requires short & plain statement that pleader is entitled to relief (Bell v. Novick) (FRCP 8(a)(2))
* Dismissed only if cannot prove any facts of claim that’d entitle him to relief (Conley v. Gibson)
* Test for sufficiency: a) specific, b) plausible. (Bell v. Twombly)
* Avoids frivolous cases brought then settled for fear of discovery costs (Twombly)
* Complaint must be plausible (Ashcroft v. Iqbal), (Rhodes v. MacDonald)
o States may require statement of claim (KSA 60-208(a)(1)) or statements of fact (Mich. RCP 2.111)
- Administrative remedies must first be exhausted (Bridges v. Diesel)
o Defense has burden to prove remedies haven’t been exhausted (Jones v. Bock)
Timing for Answers and Pre-Trial Motions
- Time to Answer and counter/crossclaim: 21 days from time of service (FRCP 12(a)(1)(A)(i)),
* 60 Days if Fed (FRCP(a)(2)) or if outside US (FRCP 12(a)(1)(A)(ii))
* 60 days if waived (FRCP(a)(1)(A)(ii)), 90 if waived and outside US (FRCP 12(a)(1)(A)(ii))
* 14 days or whatever court says to respond after a motion (FRCP 12(a)(4))
* 14 days to respond after motion for more definite statement (FRCP (12)(a)(4)(B))
o Time starts when specified or midnight the day after triggering event, includes weekends, but if ending on a non-business day, period will run until end of the next business day, which expires when clerk’s office closes or midnight (FRCP 6(a))
* May be extended for good cause on motion (FRCP 6(b))
o Only one pre-trial motion may be filed but many may be grouped, with or before Answer (FRCP 12(g))
* If not raised, motions are waived, except 12(h)(2)&(3) (FRCP 12(h)(1))
Pretrial Motions
- Jurisdictional motions:
o Lack of Subject-Matter Jurisdiction (FRCP 12(b)(1))
o Lack of Personal Jurisdiction (FRCP 12(b)(2))
o Improper venue (FRCP 12(b)(3))
- Due Process motions:
o Insufficient process (FRCP 12(b)(4))
o Insufficient service of process (FRCP 12(b)(5))
- Motions on the claim:
o Failure to state a claim upon which relief may be granted (FRCP 12(b)(6))
* If everything stated is true, plaintiff still cannot recover (Haddle v. Garrison)
o Motion for a more definite statement (FRCP 12(e))
* Motion must be made before a response (FRCP 12(e))
* If a claim/counterclaim is not precise, may move to have amended (Stratford v. Zurich)
Responses on the Merits
- Admission to an allegation (FRCP 8(b)(1)(B))
o May be required to admit some things due to responsibility for true representation of facts (FRCP 11)
- Denial of Facts (FRCP 8(b)(2))
o May be general or specific (FRCP 8(b)(3)) or a partial denial (FRCP 8(b)(4))
* Must be specific enough to give notice of denial (Zielinski v. Philadelphia Piers, Inc.)
o Claim a lack of knowledge, functions as denial (FRCP 8(b)(5))
o Failing to deny acts as admission (FRCP 8(b)(6))
- Privilege or justification (FRCP 8(c))
o Includes: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; waiver (FRCP 8(c)(1))
- Cross-claims to accuse a third-party (FRCP 13(g))
o Defendant may bring in a third party who may be liable for the claim against it (FRCP 14(a))
* Subject to joinder rules: Refer to that subsection
o May assert crossclaim against co-party if same transaction/occurrence (FRCP 13 (g))
- Counter-Claims to accuse Plaintiff of harms or damages
o Compulsory, i.e. must state or is waived, if a) same transaction occurrence and b) doesn’t require adding another party over whom the court lacks jurisdiction (FRCP 13 (a)(1))
* Except a) claim subject to another pending action or b) other party raised issue (FRCP 13 (a)(2))
o Permissive Counterclaim is that which is not compulsory (FRCP 13(b))
* May determine by: 1) same issues of law or fact raised by claim counterclaim; 2) res judicata bar subsequent suit; 3) substantially same evidence support or refute claims; 4) logical relation between claims (Plant v. Blazer Financial Services)
- Other Responses/Special Pleadings
o Lack of Capacity or Authority to sue - must be by specific denial (FRCP 9(a))
o Fraud or Mistake must state particulars of fraud (FRCP 9 (b)), (Stratford v. Zurich Insurance Co.)
- Plaintiff may respond to answer if ordered by the court (FRCP 7(a)(7))
Joinder
- May join third party, generally, if:
o Defendant may if: Service of process to third party; claim arises out of same transaction/occurrence; proper subject matter jurisdiction; (FRCP 14(a))
* Same transaction/occurrence may happen at different times and places, so long as it is a question of law that is in common (Mosley v. General Motors Corp.)
* But third party claim must be derivative of the original claim (Price v. CTB, Inc.)
o Plaintiff may if: same conditions as if Defendant may (FRCP 14(b))
o Party may move to strike or un-joinder claims (FRCP 14(a)(4))
- May join claims, generally, if:
o A common issue of law or fact (FRCP 42(a))
o May join as many claims as a party has against another, even if claims are dependent (FRCP 18)
- Nonjoinder/Misjoinder, generally, if:
o Court may do it on its own (FRCP 21)
* For convenience, avoid prejudice, expediency (FRCP 42(b))
- Things that may be permissive or required:
o Counterclaims and cross-claims (refer Responses on the Merits sections)
- Required joinder if:
o Will be barred by res judicata if claim not brought (Rush v. City of Maple Heights)
* Can’t keep bringing claims if party has had their day in court (Frier v. City of Vandalia)
* May bring case again if no specific ruling was made and are different parties not able to be joined in the previous action (Searle Brothers v. Searle)
* Doesn’t apply to ruling by a court without subject matter jurisdiction (Gargallo v. Merrill Lynch)
* Court may preclude relitigation if issue determined, but must be specifically that issue (Illinois Central Gulf Railroad v. Parks)
o Is at the discretion of the courts to preclude or not previous claims if it isn’t made clear (Parklane Hosiery Co. v. Shore)
o If multiple rulings on the same issue in the past are not the same, then the issue may be relitigated (State Farm Fire & Casualty Co. v. Century Home Components)
* Full faith and credit means that states respect other states’ rulings and laws (US Const. Art. IV 1), (28 USC 1738)
o Subject to service of process and won’t deprive court of jurisdiction, i.e. diversity (FRCP 19 (a)(1))
* AND: A) court can’t otherwise afford complete relief OR b) a party’s interest would i) impede protecting their interest OR ii) create a risk of inconsistent or duplicate obligations. (FRCP 19(a)(1))
* If complete relief may be reached, is only permissive joinder (Temple v. Synthes Corp.)
o May be joined by court order (FRCP 19(a)(2))
* Must be dismissed if venue improper (FRCP 19(a)(3))
* May argue for nonjoinder via pleading (FRCP 19(c))
o If required but not feasible, court will determine if action among existing parties should be dismissed based on 1) extent of prejudice; 2) extent to which prejudice can be avoided by a) protective provisions in the judgment; b) shaping relief, or c) other measures, 3) if judgment without party would be adequate, 4) if plaintiff could have adequate remedy after dismissal for nonjoinder (FRCP 19(b))
- Permissive joinder if:
o Court has supplemental jurisdiction (under Subject Matter Jurisdiction section)
o Plaintiffs a) assert any right to relief arising out of same transaction/occurrence and b) common question of law or fact between all plaintiffs will arise (FRCP 20 (a)(1))
* Same transaction occurrence only needs be slightly interconnected for permissive joinder (Larson v. American Family Mutual Insurance Co.)
o Defendants a) right to relief asserted against them out of same transaction/occurrence and b) common question of law or fact will arise (FRCP 20 (a)(2))
o Court may separate permissive claims to protect parties’ interests (FRCP 20 (b))
Amendments
- Amendments pre-trial allowed if:
o A) Within 21 days after service, or b) if pleading requires response, 21 days after service or 21 days after service of 12(b),(e), or (f) motion, whichever is first (FRCP 15(a))
* Otherwise, requires opposing party’s consent or court permission (FRCP 15(b))
- Amendments during/after trial allowed if:
o Amendment relates back to the original pleading, which requires: a) applicable statute of limitations allows it, b) same transaction/occurrence, c) changes the name, but only if i) notice without prejudice, and ii) party knew/should’ve known, but for a mistake of proper identity (FRCP 15(c))
* Court may allow amend if it wouldn’t cause bias (Beeck v. Aquaslide ‘N’ Dive Corp.)
* If beyond statute of limitations, must relate to the same transaction/occurrence (Moore v. Baker)
* Needs good faith and prior notice before expiration (Bonerb v. Richard J. Caron Foundation)
Ethical Limitations
- Court has fairly wide discretion to issue sanctions, including an inherent authority (Christian v. Mattel)
- Pleadings must not 1) be presented for any improper purpose, such as to harass, cause delay, increase costs of litigation; 2) be warranted and nonfrivolous; 3) contentions must have some factual basis to warrant discovery; 4) denials must be warranted on evidence or based on belief or lack of information (FRCP 11(b))
o Sanctions if violated, at the court’s discretion, but must be reasonable to deter conduct, and not monetary sanctions unless cause before voluntary dismissal (FRCP 11(c))
* This section doesn’t apply to discovery disclosures and discovery requests (FRCP 11(d))
o Sanctions issued for mistakes a party refuses to fix after request (Walker v. Northwest Corp.)
Discovery
- Discovery in General:
o Initial Discovery: required, without requests unless ordered by court, a party must disclose: (FRCP 26(a)(1)(A))
* Documents, witness info, damages calculations, relevant insurance agreements (FRCP 26(a)(1)(A))
* Must be made within 14 days of discovery conference (FRCP 26(a)(1)(C))
* If joined after conference: within 30 days of service or joinder (FRCP 26(a)(1)(D))
* Expert witness information (FRCP 26(a)(2))
* Due i) 90 days before trial or ii) if a rebuttal, 30 after opposition disclosure (FRCP 26(a)(2)(D))
o Limits: nonprivileged, relevant, & reasonably calculated to lead to admissible evidence (FRCP 26(b))
* Must make claim and describe nature of privilege (FRCP 26(b)(5)(A))
* May petition for protective orders to prevent discovery to prevent annoyance, oppression, undue burden or expense by a) forbidding disclosure; b) specifying terms for disclosure; c) prescribing discovery methods; d) forbidding particular inquiry or limited scope of disclosure; e) designating parties present at discovery; f) requiring sealed depositions; g) requiring trade secrets not be revealed or only in specific ways; h) sealed documents opened as the court directs (FRCP 26(c))
* Scope of discovery includes all non-privileged material relevant to party’s claim or defense, but may be limited by the court if it determines that discovery is unreasonable, or if burden outweighs benefit, considering parties’ resources or potential embarrassment/annoyance (Butler v. Rigsby), (Davis v. Precoat Metals)
* Is not limited by what would be admissible at trial, so long as it appears reasonably calculated to lead to discovery of admissible evidence (Davis v. Precoat Metals), (Steffan v. Cheney)
* Privilege, Work Product, and Experts:
* Work product privilege protects written statements, memos, personal recollections by adverse party’s counsel in the course of legal duties (Hickman v. Taylor)
o Non-testifying experts are generally immune from discovery (Chiquita International Ltd. v. M/V Bolero Reefer),
* Experts who are retained by another party in anticipation are generally privileged from discovery, but may be subject to discovery if probative, i.e. essential to the case (Thompson v. Haskell)
* Privacy protection for outside the scope of appropriate discovery (Stalnaker v. Kmart)
o Discovery takes place after conference, after initial discovery (FRCP 26(d))
* May have supplemental discovery later as court orders, as soon as is practicable (FRCP 26(e))
o Failure to Disclose:
* Motion to compel disclosure after good faith attempt to confer with other party has failed (FRCP 37(a)(1))
* Motion to Compel disclosure: (FRCP 37(a)(3)(A))
* Motion to Compel Discovery Response: (FRCP 37(a)(3)(B))
* Evasive or Incomplete disclosure is treated as a failure to respond (FRCP 37(a)(4))
* Failure to comply with order = sanctions, including i) directing matters to be taken as facts; ii) prohibiting evidence or claims in court; iii) striking pleadings; iv) staying proceedings until order is obeyed; v) dismissing proceedings; vi) default judgment; vii) contempt of court (FRCP 37(b))
* Failure to attend deposition is grounds for sanctions (FRCP 37(d))
* May face sanctions if violates duty to preserve evidence (Silvestri v. General Motors Corp.) (FRCP 26(g))
* Must have 1) control over evidence; 2) records destroyed on purpose; 3) evidence relevant to the party’s claim or defense (Zubulake v. UBS Warburg LLP)
- Subpoenas issued under (FRCP 45)
o Standard stuff
- Depositions:
o Must file in the district where any adverse party resides and request an order to depose (FRCP 27(a)(1))
* Notice must be given at least 21 days before hearing (FRCP 27(a)(2))
o Depositions may be taken before a) an officer authorized to administer oaths or b) a person appointed by the court to administer oaths and take testimony (FRCP 28(a)(1))
* Outside the US, may be taken a) under treaty; b) under letter of request; c) on notice before person authorized; d) before a person commissioned by the court (FRCP 28(b))
o Parties can determine a) time, place, notice, manner of deposition and b) other procedures governing or limiting discovery, so long as it does not interfere with the times set (FRCP 29)
* Deposition must not be taken before a biased party (FRCP 28(c))
o Oral Depositions:
* Done without leave of the court unless parties not stipulated in the disposition and i) more than 10 by all parties; ii) have already deposed the person; iii) before conference (FRCP 30(a))
* Notice must be given (FRCP 30(b))
* Objections to questions must be stated during deposition, and must be noted and recorded, unanswered questions only if necessary to protect privilege (FRCP 30(c)(2))
* Limited by duration to 1 day of 7 hours, and sanctions may be imposed for those who frustrate or delay the process (FRCP 30(d))
* Motions to terminate or limit (FRCP 30(d)(3))
* Deposed one may review transcripts 30 days after it is made available (FRCP 30(e))
* Not attended = must pay for it (FRCP 30(g))
o Written Depositions:
* Done without leave of the court unless parties not stipulated in the disposition and i) more than 10 by all parties; ii) have already deposed the person; iii) before conference (FRCP 31(a))
o Using Depositions in Court:
* May be used if a) party was present, represented or had notice of it; b) used as admissible c) is allowed under the other rules (FRCP 32(a)(1))
* May be limited if a) deposition taken on short notice or b) deponent not available or could not obtain an attorney despite diligent efforts (FRCP 32(a)(5))
* Objections to admissibility may be made in court (FRCP 32(b))
* Objections waived if not brought up during deposition or as soon as discovered: 1) Notice; 2) Officer’s qualifications; 3) To the deponent’s competence, relevance, materiality of testimony only if correctable during deposition 4) method of transcription or process (FRCP 32(d))
- Interrogatories:
o No more than 25 written questions, including all subparts (FRCP 33(a)(1))
* May relate to any matter; isn’t objectionable because it asks for opinion, contention that relates to fact or application of law. Court may order it need not be answered until later (FRCP 33(a)(2))
* Answered by: a) who is are addressed; b) if an organization, by any officer (FRCP 33(b)(1))
o Must respond with answers/objections within 30 days of being served (FRCP 33(b))
- Production of Documents:
o Request must a) describe with reasonable particularity what is wanted; b) time for inspection; c) forms in which electronically stored information is to be produced (FRCP 34(b)(1))
* Generally is produced in any way reasonably usable (FRCP 34(a))
o Response to requests, and objections, must be in 30 days after served (FRCP 34(b)(2))
- Physical or Mental Exams:
o Orders for exams require motion for good cause and notice (FRCP 35(a))
* Receipt of exams or records waives any privilege it may have (FRCP 35(b)(4))
- Requests for Admissions:
o Party may request another to admit the truth of facts pertaining to a) facts, application of law to fact, or opinions about either; and b) genuineness of any described documents (FRCP 36(a)(1))
* Must respond within 30 days after being served (FRCP 36(a)(3))
* If not admitted, must specifically deny or state why cannot admit or deny (FRCP 36(a)(4))
* Must state specific reasons for objections (FRCP 36(a)(5))
* May move to determine sufficiency, and amend or consider an admittance (FRCP 36 (a)(6))
* May amend or revoke admission with court’s permission (FRCP 36(b))
Resolution Without Trial
- Default and Dismissal:
o Dismissal
* Voluntary dismissal without prejudice at discretion of plaintiff doesn’t need court order if i) notice prior to answer or motion for summary judgment, or ii) agreement between all parties (FRCP 41(a)(1)(A))
* Otherwise requires court order only if counterclaim may remain bending (FRCP 41(a)(2))
* Involuntary dismissal for failure to comply with rules or by court order operates as adjudication on the merits (FRCP 41(b))
* Without service, dismissal may be issued as a failure despite lack of defense as a matter of law (Peralta v. Heights Medical Center)
* Rule applies to counterclaims, cross-claims, and third-party claims (FRCP 41(c))
o Default
* Party fails to plead or defend, clerk enters default (FRCP 55(a))
* Must not differ in kind from or exceed amount which is demanded in pleadings (FRCP 54(c))
* Includes all but attorneys’ fees (FRCP 54(d))
- Summary Judgment:
o Motion for summary judgment if there is no genuine dispute of a material fact (FRCP 56(a))
* Must be filed within 30 days after the close of discovery (FRCP 56(b))
* If facts unavailable to non-movant, court may: 1) defer or deny motion; 2) allow time for discovery; 3) issue any other appropriate order (FRCP 56(d))
* If assertion not properly supported court may 1) allow opportunity to address facts 2) consider the fact undisputed 3) grant summary judgments 4) issue any other appropriate order (FRCP 56(e))
* After notice and time for response, court may 1) grant summary judgment; 2) grant motion on grounds not raised 3) consider summary judgment on facts not in dispute (FRCP 56(f))
o Bad faith submissions: court may order payment for expenses incurred (FRCP 56(h))
o Inferences upon inferences counts as no genuine material dispute and the court may issue summary judgment (Houchens v. American Home Assurance Co.)
* However, does not need certainty or substantial evidence to survive (Celotex Corp. v. Catrett)
* Needs evidence specific enough to challenge motion to dismiss (Bias v. Advantage International)
Trial
- General Right to a Jury Trial:
o Questions of fact or equity are determined by a jury, generally, while questions of law may be determined by a judge (Teamsters v. Terry)
o Right to a jury trial must be demanded by 1) serving no later than 14 days after the last pleading directed to the issue is served and 2) proper filing procedure (FRCP 38(b))
* Party may specify issues to be tried before a jury or all issues triable by jury (FRCP 38(c))
* Otherwise, right is waived (FRCP 38(d))
* Court may find issues to have no jury triable questions (FRCP 39(a)(2))
* Court may order a jury trial anyway (FRCP 39(b))
o If Court determines findings of facts without a jury, court must specify findings of facts (FRCP 52(a))
o Right to jury may be reserved in specific cases where statute demands it (Beacon Theatres v. Westover)
- Choosing Juries:
o All litigants entitled to jury trial, fair and random (28 USC 1861)
* Can’t exclude juror on race, color, religion, sex, national origin, economic status (28 USC 1862)
* Entitled to 3 peremptory challenges without cause (28 USC 1870)
* If juror manifests bias, must be removed at discretion of trial judge (Thompson v. Altheimer)
* Court may excuse jurors with cause (FRCP 47(c))
o Random Jury Selection in each district, up to the district (28 USC 1863)
* Random jury wheel (28 USC 1864)
* Between 6-12 jurors (FRCP 48)
* Specification of process: (28 USC 1866)
* To qualify for service: must 1) be 18 and reside in district for 1 year; 2) be literate; 3) speak English; 4) not be physically/mentally incapable; 5) charge pending or conviction in a court with a punishment of 1 or more year of imprisonment and rights not restored (28 USC 1865)
o May challenge compliance with selection process within 7 days after being able to discover grounds for failure to comply with jury selection provisions (28 USC 1867(c))
- Special Verdict:
o Court may require jury to return special verdict in the form of specific findings of fact (FRCP 49(a))
* Or a general verdict with answers to written questions (FRCP 49(b))
- Directed Verdict and Motion for New Trial:
o “Judgment” = decree from which an appeal lies (FRCP 54(a))
* Judgment entered according to: (FRCP 58)
o Judgment as a matter of law: If a party has been heard fully and finds that a reasonable jury couldn’t find for a party on the issue, the court may; a) resolve the issue against the party and b) grant motion for judgment against the party on that issue (FRCP 50(a))
* Cannot direct a verdict based on conjecture and inference, but may direct a jury to reconstruct a series of events based on reasonable inference (Norton v. Snapper Power Equipment)
* If evidence being equal, and no proper method of determining facts, it is improper for a jury to find for a party, may direct for the Defendant (Reid v. San Pedro, LA & Salt Lake Railroad)
* Evidence being so unreliable such that it would be improper for a jury to find for a party based on it, the court may direct a verdict (Pennsylvania Railroad v. Chamberlain)
* Directed verdicts are made at lower court’s discretion and may only be overturned if grossly unfair (Lind v. Schenley Industries)
o Motions for judgment may be made at any time before submitted to a jury (FRCP 50(a)(2))
* Post-trial motions no later than 28 days after entry of judgment/discharge of jury: may 1) allow judgment on the verdict; 2) order new trial; 3) direct entry as a matter of law (FRCP 50(b))
o If grants motion for new trial, court must determine if judgment is vacated or reversed, and state grounds for conditional grant/denial of motion for new trial (FRCP 50(c))
o New Trial:
* Court may grant it a) after jury trial or b) after nonjury trial (FRCP 59(a)(1))
* For nonjury trial, court may open proceedings back to hear more stuff (FRCP 59(a)(2))
* Must be filed no later than 28 days after entry of judgment (FRCP 59(b))
Appeal
- Courts of appeals have jurisdiction from all final decisions of district courts (28 USC 1291)
o Appeal as right:
* Must appeal within 30 days of judgment or 60 days if a party is the US (FRAP 4(a))
* Judgment occurs when entered on the civil docket (FRAP 4(a)(7)(A)(ii))
* Denial of any part of relief sought entitles one to an appeal (Aetna Casualty and Surity Co. v. Cunningham)
* Finding of fact not set aside unless clearly erroneous, and due regard shall be given to the trial court judge to determine credibility of witnesses (Anderson v. Bessemer City)
* Reversal is required only where district court’s error affected a party’s substantial rights and a party was prejudiced by the district court’s error (Harnden v. Jayco, Inc.)
o Interlocutory orders:
* Jurisdiction over 1) interlocutory orders that grant, continue, modify, refuse dissolving injunctions; 2) Interlocutory orders… directing sales of property; 3) Interlocutory decrees determining rights and liabilities of parties (28 USC 1291(a))
* If an interlocutory order determines a controlling question of law (28 USC 1291(b))
* Involves patent infringement (28 USC 1291(c)(2))
* Even favorable but not the particular relief sought, may appeal an interlocutory order (Liberty Mutual v. Wetzel)
* Interlocutory orders generally not appealable unless order too important to be denied until end of proceedings: determined if order: a) conclusively determines a disputed question; b) resolves a key issue separate from merits of the action; c) unreviewable on appeal from a final judgment (Lauro Lines v. Chasser)
- Harmless errors are not grounds for retrial (FRCP 61)
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