schwartz cp2 outline2

8/4/2019 schwartz cp2 outline2

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Civil Procedure 1

Civil Procedure Outline

1. Real exam questions:a. What street did Prof. Perish grow upon?

i. Overstoneb. DC case

i. Orbitz2. Pleadings

a. Complaintsi. Puts parties on notice of claims and defenses

ii. Permits the quick disposal of complaints which suffer from serious defects or from which the lawprovides no redress

iii. Shapes the discovery process1. Guides the courts/parties in the conduct of the case

iv. Problems with the writ system1. Very formulaic and rigid2. Complicated3. Insufficient and sometimes strange results4. No discovery

a. Could lose once you learn he facts at trialv. Rule 8--Modern Pleadings (notice)

1. Claim for relief must contain:a. Short plain statement of the courts jurisdiction (form 7)

i. Subject matter jurisdictionb. Short plain statement of the claim showing the pleader is entitled to relief (form 11)

i. Invoke a body of substantive law and sketch out a factual scenario, that, if shown tobe true, would lead to a recognition of a right to relief

1. Must be legally sufficient (Body of law)2. Must be factually sufficient (Elements of claim)

1. State facts that could plausibly suggest there was misconduct orunlawful activity

c. Demand for the relief soughti. May include relief in the alternative or different types of relief

2. Defenses; Admissions; Denialsa. In responding to a plea, a party must

i. State in short and plain terms its defenses to each claim asserted; andii. Admit or deny the allegations

b. Denials must fairly respond to the substance of the allegationc. General denials

i. Party intends in good faith to deny all of the allegations of the pleading, includingjurisdiction

d. Specific deniali. Party does not intend to deny all the allegations1. Specifically deny designated allegations2. Generally deny all except those specifically admitted

e. Denying part of an allegationi. In good faith must admit the part that is true and deny the rest

f. If a part lacks knowledge or information sufficient to form a belief must state soi. Acts as a denial

g. Effect of failing to deny


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Civil Procedure 2

i. If a responsive pleading is required and is not denied, is admitted except foramount of damages

ii. If a responsive pleading is not required, an allegation is considered denied oravoided

3. Affirmative defensesa. In general, In responding to a pleading, a party must affirmatively state any avoidance of

affirmative defense, including:

i. Accord and satisfaction; arbitration and award; assumption of risk; contributorynegligence; discharge in bankruptcy; duress; estoppel; failure of consideration;fraud; illegality; injury by fellow servant; laches; license; payment; release; res

judicata; statute of frauds; statute of limitation; waiver

b. Mistaken designationi. 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 was

correctly designated, and may impose terms in doing so

4. Pleading to be precise and direct, Alternative statements, Inconsistencya. In general, each allegation must be simple, concise, and direct. No technical form is

required.

b. Alternative Statements of a Claim or Defensei.

A party may set two or more statements of a claim or a defense alternatively orhypothetically, either in a single count or defense or separate ones. If a party

makes alternative statements, the pleading is sufficient if any one of them is

sufficient.

c. Inconsistent Claims or Defensesi. A party may state as many separate claims or defenses as it has, regardless of

consistency

5. Construing Pleadingsa. Pleadings must be construed as to do justice

vi. Dioguardi v Durning CB 2931. Home drafted complaint by immigrant for the value of his imported tonics2. FRCP 8 must be pretty lenientas evidenced by this case

vii. Specificity1. Bell Atlantic v Twombly CB 298 (factual sufficiency)

a. P sues baby bells for conspiring to stay out of each others marketsb. As a matter of substantive law, to prove an Anti-trust violation, P must prove parallel

conduct and some plus factor ( agreement in a smoke filled room) to be successful at trial

c. P failed to state a plausible claim since there was no plus factor identified. There mustbe enough facts to state a claim to relief that is plausible on its face, not merely

conceivable.

i. A court must accept as true all allegations in a complaint except for legalconclusions as conclusions will not unlock the door to discovery

ii. The factual statements are scrutinized by the plausibility testiii. Only a claim that states a plausible claim for relief survives a motion to dismiss

d. P doesnt even get a chance to try and prove his case since he didnt have the plus factory

required in an Anti-Trust suit.

2. Ashcroft v Iqbal CB Supp (factual sufficiency)a. Alleged Ashcroft and Mueller had a policy allowing Muslim Iqbal's rights to be violated.b. Must prove they purposely created the policy to discriminate against Muslimsc. The complaint is deficient under R8 and therefore doesnt move on to discovery

i. Even though it can be proven that Muslims were treated differently after 9/11, itcannot be shown that that was the motive here.


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ii. The standard of plausibility applies to all casesiii. Legal conclusions are irrelevant

d. Did Iqbal change the standard?i. If it did, there would be many more motions to dismiss that have better chances

of winning after Iqbal, and now everyone brings motions to dismiss. Some say it

didnt change the standard, but attorneys do because P's are pleading more facts,

but obviously they aren't pleading enough because defendants are bring a lot

more motions to dismiss when previously they wouldnt have even wasted their

time.e. Perrish thinks this case was wrongly decided and if P was different, the case would be

decided differently

3. Arguments for the decisions of Twombly and Iqbala. Correct

i. Not a big change; stops frivolous claims (p); efficiency (p); limited resources (p)b. Incorrect

i. Imposable to meet in information asymmetry (p); excludes good claims (p);inconsistent with precedent; courts become legislative;

viii. Specificity Requirements are heightened in Certain Cases1. Rule 9 -- pleading special matters

a.

Except where required to show the court has jurisdiction, a pleading need not allege:i. A party's capacity to sue or be sued;ii. A parties authority to sue or be sued in a representative capacity; oriii. The legal existence of an organized association of persons that is made a party

b. To raise any of those issues, a party must do so by a specific denial, which must stateany supporting facts that are peculiarly within the parties knowledge

c. In alleging fraud or mistake, a party must stay with particularity the circumstancesconstituting fraud or mistake. Malice, intent, knowledge, and other conditions of a

person's mind may be alleged generally

d. In pleading conditions precedent, it suffices to alleged generally that all conditionsprecedent have occurred or have been performed. But when denying that the condition

precedent has occurred or been performed, a party must do so with particularity.

e. If an item of special damage is claimed, it must be specifically stated.2. Leatherman v Tarrant County CB 311--R9 (MAY BE DEFACTO OVERRULED)

a. Two search warrants. One homeowner claims he was assaulted by officers, the other saidthey killed her dogs.

b. The only cases that require a heightened pleading (more specificity) is fraud, mistake ,and special damages, not civil rights cases

i. Require more detail because R8(a)(2) is for all cases except those in R9ix. Inconsistent Facts and Alternative Theories--R8(d)(2&3)

1. McCormick v Kopmann (317)--R8(d)(2&3)a. Surviving spouse brings two conflicting alternative theories of recovery. He wasnt drunk--

he was drunk but it was the bars fault

b. This is allowedi. May be because there is a risk to the P, that the jury finds P lacking credit. But

since P is dead and the spouse really doesnt know, it shouldnt happen here.

x. Voluntary and Involuntary Dismissals1. Rule 41 -- dismissal of actions (see mc questions)

a. Voluntary dismissal by the plaintiffi. Without a court order by filing

1. A notice of dismissal before the opposing party serves either an answer or amotion for summary judgment; or


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2. A stipulation of dismissal signed by all parties who have appeared3. Effect

1. Unless the notice or circulation states otherwise, the dismissal iswithout 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

1. Dismissing once with notice is without prejudice, but if youdismiss twice, its with prejudice regardless of where the case

was filed.1. Doesnt apply when the second dismissal is by stipulation,

unless the stipulation specifically says with prejudice.

ii. By court order, effect1. Except as provided in part one an action may be dismissed at the plaintiff's

request only by court order, on the terms that the court considers proper.

2. If the defendant has pleaded a counterclaim before being served with theplaintiff's motion to dismiss, the action may be dismissed over the

defendant's objection only if the counterclaim can remain pending for

independent adjudication.

3. Unless the order states otherwise, this dismissal is without prejudice.b. Involuntary dismissal

i. If the plaintiff fails to prosecute or to comply with these rules or a court order, adefendant may move to dismiss the action or any claim against it.

ii. Unless the dismissal order states otherwise, a dismissal under this subsection andany dismissal not under this rule -- except one for lack of jurisdiction, improper

venue, or failure to join a party under rule 19 -- acts as an adjudication on the

merits.

c. Dismissing a counterclaim, cross-claim, or third-party claimi. This rule applies to dismissal of any counterclaim, cross-claim, or third-party

claim. A claimant's voluntary dismissal must be made:

1. Before a responsive pleading is served; or2. If there is no responsive pleading, before evidence is introduced at a hearing

or trial.d. Costs of a previously dismissed action

i. If a plaintiff who previously dismissed an action in any court files and action basedon 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 into the plaintiff has compliede. Therefore

i. Two kinds of dismissals1. On your own2. With permission

1.

Agreement by other side, or2. Agreement by the court1. No harm to the other side

1. Early on and not much happenedb. Responses to the complaint

i. Pre-answer motions 12(a)(4)(a)1. Defendant is usually seeking a dismissal2. If all motions fail, then must answer 14 days after notice ofcourts ruling3. Pre-answer motion must be filed within 21 days of being served with a summons/complaint


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4. Motionsa. 12(b) Motion to dismiss

i. Court may dismiss on 12 (b) if the complaint fails to State a claim. To state aclaim, a complaint must contain three things. A short plain statement of

jurisdiction, a short plain statement of claim, and a demand for relief. To state a

claim to meet the requirements of a short plane statement of the claim the

allegations must be both factually and legally sufficient.

1. Subject matter jurisdiction, personal jurisdiction, venue, insufficient process,insufficient service, failure to state a claim, failure to join a party

ii. 12(h)(1)1. A party waives any defense listed in rule 12 (b) (except SMJ, failure to state

a claim, and joinder) by;

1. Omitting it from a motion in the circumstances described in rule 122. Failing to make it my motion under this rule3. Failing to include it in a responsive pleading or an amendment allowed

by rule 15 as a matter of course

b. 12(f) Motion to strikec. 12(e) Motion for more definite statement

i. For when motion is unintelligible, rarely usedd. Motion for summary judgment

i. Applied when uncontested facts would suitii. With the court consider something outside of pleadings

e. 12(g)(2) Limitation on Further Motionsi. A party that makes a motion under this rule must not make another motion under

this rule raising the defense or objection that was unavailable to the party, but

omitted from its earlier motion

ii. Answer (pleading)1. A document filed with the court that response to the complaint and explains the issues that

the defendant intends to contest.

2. Can contain:a. Admissions/Denials

i. 8(b) Requires the defendant to deny only those allegations in disputeii. 8(d) Any allegation not denied is deemed admittediii. 8(b)(5) Denials or lack of information or knowledge

1. A party that lacks knowledge or information sufficient to form a belief aboutthe truth of an allegation must state so.

1. Has the effect of the denial2. Cannot be used if the defendant has reasonable access to the

information or if it is a matter of public record or general knowledge

3. When this happens, the issue is said to be joined (contested)--an issueon which an evidentiary determination is required

4. When the defendant admits an allegation of the plaintiff's complaint,the allegation is taken as true and no proof is requirediv. Admissions

1. Occurs when you either say in your answer to the complaint allegation is trueor by failing to properly deny

2. Bound by admission at trial3. Why admit

1. Duty to respond in good faith/strategic reasons (i.e. limiting cases totrial on damages)

v. Denials


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1. Gen. denial1. Single sentence stating that "defendant denies each and every

allegation of the plaintiff's complaint"

2. Specific denial1. Sentence by sentence or paragraph analysis of the complaint

b. Affirmative defenses 8(c)i. A party must affirmatively state any avoidance or affirmative defenses

ii. Different from denials because a new matter is injected into the disputeiii. Defendant must plead her affirmative defenses or they are lostiii. Counterclaims

1. The defendant may assert claims against other parties and, in some circumstances, force thejoinder of additional parties

iv. Default judgment1. If the defending party fails to respond in an appropriate and timely manner, she may find

herself in default

a. Notation on the Court's docket sheet that the defendant has failed to plead or otherwiserespond in time

b. Plaintiff cannot obtain money or other relief on the basis of defaulti. Plaintiff must get a default judgment

c. Amendmentsi. FRCP 15

1. Broad rule summarya. Courts should grant leave to amend freely if it's in the interest of justice unless the party

opposing the amendment can demonstrate prejudice, or granting the amendment

would be futile. If amendment cannot be done as a matter of course, it must be done

with permission, which can be done either through written stipulation of the parties or

through the court.

2. Matter of Right (as a matter of course)--Just do ita. Pleading that doesnt require a response (answer unless it had a counterclaim in it )

i. Can amend within 21 days from serviceb. Pleading that requires a response (complaint)

i. Can amend within 21 days from service of the response of pleading or motion3. With Permission

a. From the Opposing party (call the opposing counsel)i. File a Stipulation with the court (tell the court why it doesnt harm the other party)

b. From the Court (motion for leave to amend)i. Court will grant permission when there is no prejudice (harm) to the other side

1. Prejudice1. Undue delay2. Bad faith3. dilatory motive4. Repeated failure to cure5. Large amounts of time or money spent1. Even ifits only on one theory and the amended complaint gets

rid of that one theory

2. Cannot be futile1. Mustn't be barred by the statute of limitations

1. The relations back doctrine must apply if SOL problem1. Amendments will relate back if they only fleshed out the

factual details, change the legal theory, or add another

claim arising out of the same transaction, occurrence, or


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conduct. Relation back is denied those amendments

which are based on entirely different facts, transactions,

and occurrences.

2. Reason1. During discovery phase a party may realize that they

have other claims that they wouldn't have realized

prior to discovery, and the relation back doctrine is

there because

1. Parties are intended to find new information indiscovery and shouldnt be bound to their initialpleadings

2. But we dont want a free for all where partiesmake a crappy claim right before SOL has

expired

3. If SOL has expired, can still add a claim if it has the sametransaction or occurrence so that there was notice

4. If SOL has expired, can add a party if:1. Same transaction or occurrence2. The party to be added must have received notice

before the SOL expired

3. Knew or should have known that but for the mistakethey would have been sued

3. Standard for permitting an amendment1. Prejudice

d. Variancei. The complaint only says I'm suing you for contract A, but at trial I bring in evidence for A and B. The

other attorneyis asleep and doesnt object.

1. There is implied consent or consent to P amending the claim at that time2. If P doesnt or forgets to seek to amend, the claim is treated as pleaded, so it doesnt matter.

ii. If the court finds there is no consent, D objects1. P must file a motion for leave to amend to get permission from the court

a. The court will find prejudice since it is all the way at trial2. If for some reason the court allows it to be amended, the judge will allow additional time to

allow discovery on that claim

iii. Marsh v Cohen CB1. Assured he'd always have a job there and then fired, he sues for breach and age discrimination

bringing this suit one day before SOL expires. After the statute of limitations has run, he figures

out he has a claim for fraud and tries to bring in a fraud claim

2. The relation back doctrinea. Amending would be futile here

i. It doesnt relate back to the original claim. No connection between the added claimand the original claim. The only thing in common is the firing

b. Standardi. Same transaction or occurrence and here there was no notice3. Did the court get it right?

a. Many courts would allow this butits really a question of is it too burdensome. Its allabout the courts interpretation.

iv. Veracity in pleadings (limits)1. FRCP R11 (stop, think, research) for submitted documents holding both party/client (for

factual contentions only) and firm/attorney liable (for factual and legal). Does not apply to

discovery.


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a. Under rule 11 a party must sign all pleadings. The signing of the pleading certifies thatrepresentatives of court pleading is not being asserted for improper purpose, has a basis

in law or reasonable extension, and it's factually based. If it violates these requirements,

a court may sanction the party either on its own motion or if an opposing party files a

motion for sanctions. If a party seeks sanctions they must provide the 21 day safe

harbor, which is an opportunity to correct the mistake.

b. All papers must be signed by attorney , and must conduct a reasonable inquiry of thefactual allegations based on the circumstances

i. Must do a factual investigation to have a good-faith basis (based on thecircumstances) that what you allege is true1. Any factual denials are supported2. Any factual contentions are supported

ii. Must assure you have a good faith legal basis to assert the claimiii. Must assure you are not asserting a lawsuit for an improper purpose

c. If you dont stop, think, and research, you may be sanctionedi. Sanction by the other sides motion

1. 21 day safe harbor provision1. Serve it on the other side 21d before filing with the court to give the

other side an opportunity to file an opposition, amend, or dismiss the

claim

1. If choose to oppose the motion, wait the 21d and go before thecourt

2. If issue is due to changed circumstances, there is no need to amend thecomplaint as R11 looks at the circumstances when the complaint was

submitted

1. Cant pursue that theory thoughii. Sanction by the court's order to show cause (sua sponte)

1. Prove to us you didnt violate R11d. Can only use R11 to deter, cannot punish

i. Remedy and award attorneys fees for the cost of bring the R11 motionii. Imposes sanctions to deter future misconduct

e. If you think there are too many frivolous lawsuits, you want a strong R11 with bigsanctions. The problem is the push the boundary cases that may be viable but ask the

court to stretch the law or use a novel theory, you run he risk that you will get

sanctioned which would discourage those types of suits

i.Case 1 Case 2

Cutting edge civil rights claim Totally frivolous

R11 motion

Dont withdraw

Court disagrees

sanctions

R11 motion

Withdraw

No sanction

ii. The cutting edge cases who honestly feel they have a claim are the ones thatwon't back down and thus run the risk of R11 sanctions, while the totally frivolous

cases just try and get their best shot to get in the door will back down and face no

sanction. Only the stupid frivolous ones would not withdraw and get sanction


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1. The real slimy attorney knows he will not be sanctioned under R11, becausehe will admit his mistakes and get past it

2. rule 11 is said to have become toothless because case 2 is really the one thatdeserves sanctions in case one gets them.

iii. If someone tells you that he saw them in the smoke-filled room therefore allowingyou to satisfy the Twombly requirements, that person was not telling the truth

and there was no smoke-filled room and the court orders you to show cause why

you should not be sanctioned under R11, your argument would be that it was

reasonable under the circumstances for you to believe the person, or it wasreasonable that after further investigation you would have an evidentiary basis.

1. How on earth do you prove this? Courts struggle with whether it was areasonable belief or not.

2. Ss 1927a. If you unreasonably or vexatiously increase the costs of litigation the court can sanction

you for bad faith conduct.

i. R11 doesn't require bad-faithii. Here, under the inherent power of the court the court can also sanction you if you

do something bad faith.

3. Rector (348)a. After his original claim is dismissed for seeking $20 billion more than the purchase price, P

files a new complaint (amended) which seeks "an indefinite amount" as a remedy. D files

a motion for R11 sanctions, but doesnt serve it 21d before filing it with the court. P fails

to raise in court that they were not served with the 21d safe harbor provision, until the

case goes all the way up to the 4th circuit

b. If the safe harbor rule is a jurisdictional provision (like SMJ) it cannot be waived. If it is amandatory rule, the court has power to decide if waived or not.

i. This is a mandatory rule that must be complied with but can be ignored if theywant too.

ii. If the other side fails to object, no big deal, no sanction. The other side mustobject for the sanction.

3. Discoverya. So you dontlock yourself into a particular theory of the case too early, attorneys will plead as little facts

that are allowed. It's under discovery were attorneys will figure out a particular theory of recovery or

defense.

b. Scope of Discoveryi. Discoverable information is information that is relevant and not privileged

ii. Relevant1. Must be reasonably calculated to lead to the discovery of admissible evidence2. Something the law says matters and makes the fact in dispute more or less likely3. The information you seek mustn't be admissible at trial, it just needs to be reasonably

calculated to lead to the discovery of admissible evidence

iii. Privilege1. Information not privileged is subject to discovery2. Privilege is an absolute block

a. If you object and can prove that it fits within one of the privileges, you don't have to dodiscovery on that. If you fail to object you run the risk that the information is

discoverable.

3. Common-law privileges prevent obtaining informationa. Attorney-client

i. Confidential communication between the attorney and client1. No cocktail receptions


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b. Doctor-patientc. Husband-wifed. Psychotherapist-patiente. Priest-parishioner

4. Testimonial privileges prevent a particular person from testifying at triala. Self-incriminationb. Spousesc. Police informant

5. R26(b)(5)a. If asked from the other side, must produce a privilege log to determine if theinformation is in fact privileged information

i. Basic information for assessment, that doesn't disclose but allows identification ofthe document or type of document

c. Mechanismsi. Before automatic disclosures occur, no other formal discoveries permitted

1. Depositions, interrogatories, subpoenas, etc.ii. R 26 (a)(1) Automatic disclosures

1. Must provide:a. list of witnesses that may support your claim or defenseb. List of documents that may support your claim or defensec. List of itemized damagesd. An insurance agreement if case includes one

2. Disclosure must occur as soon as practicable, early on in the litigation no more than 21 daysbefore the pretrial conference ( set no later than 3 to 4 months after the claim is filed)

3. Prepare a report for the court and give the other side the information4. If you don't disclose something that you were required to disclose, you may be prohibited

from using what was not disclosed.

a. If you have the document and don't disclose it, it will be barredb. If the document turns up later on you must supplement that initial disclosure with it

i. Ifyou had a good reason why he could've provided earlier, just supplemented it andit can be used

5. Promotes settlement and avoids battles6. Cannot request or conduct formal discovery until automatic disclosures are completed

iii. R28 and R30 Depositions1. Can depose parties and non-parties (witnesses etc) as a way to get more information2. Assesses credibility for strategy3. 10 depositions allowed per side, no deposition can last more than one day, can only depose a

person once

a. These limits can be changed by court or stipulation (probably except for the onetime perperson provision)

4. Funnel very broad to very narrow questions and end with cross examination questions (leadingquestions).

iv. R33 Interrogatories1. Written questions2. Can only be served on parties

a. No nonparties (i.e. witnesses)3. Can only get 25 but may be changed by agreement4. 30 days to respond to the interrogatory, but this can be shortened or extended as stipulated

between the parties or by court order if necessary.

5. Grounds for objecting to an interrogatory must be stated with specificity. Any non-statedground in a timely objection is waived unless the court, for good cause, excuses for failure


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Civil Procedure 11

6. The party must sign the answer and the attorney must sign the objectiona. Answers are under oath

v. R34 producing documents and other tangible things1. For business records or documents ( tape recordings etc.), can just provide the record or

document rather than answering if you choose to

a. Must give a specific reason for why you're seeking theseb. May have to be inspected on-site

vi. R36 Requests for admissions1. Occur later on in the case (towards the end of discovery), as a way to kick things off the table.Ask the other side to admit a particular fact is true or not true so as to get rid of it from trial.

"Please admit you own a car in the accident"

2. The other side must admit the issues it cannot reasonably contesta. If you contest with no reasonable basis the court can shift the cost

3. Purpose is to narrow issues for trial4. Must object for cause to choose not to answer, since if you don't deny it's deemed admitted

a. Must reasonably investigate, cannot say you don't have the information to affirm or denyi. What's required

1. Witnesses that may support a claim or defense2. documents that may support a claim of defense3. Listed damages4. Any insurance contracts

ii. When1. As soon as possible but no later than 14 days after the early meeting of

Council

iii. Upon failing to do so1. Can be excluded from using information

vii. Experts1. Critical to litigation because you need them2. Four different types of experts that can be involved in litigation (Ager R26(b)(1))

a. Testifying experti. Party intends to call a trial

ii. Discoverable1. Must produce a report provided 90 days before trial

1. Expert Opinion2. Any data or information upon which the report is based3. Exhibits used to support this4. Qualifications5. Cases they've acted as an expert witness from the past four years6. How much they're getting paid

iii. The other side can depose the expert after receiving the reportiv. Anything given to the expert, including work product, is discoverable

1. Anything considered upon in writing the reportb. Informally consulting experti. Somebody you're asking questions with no intention of calling a trial

1. Basic questions of what they think2. Golf course type

ii. Never discoverablec. Expert employees/percipient (eye)witnessd. Consulting expert that's retained

i. Somebody retain for consulting with no intentions of putting on the standii. Not discoverable unless exceptional circumstances


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Civil Procedure 12

1. Impossible for the other party to retain the information because there's noother expert

3. Determining a consulting retained expert from a informally consulted not retained experta. Factors (look at everything, and make it up)

i. Manner consultationii. Nature of information providediii. Durationiv. Terms

b. Even if you pay them, do not necessarily retained and specially employedi. Calling somebody to get her initial thoughts on something, and they say you want totalk to me, its hundred dollars an hour

h. Timingi. The court is going to hold a hearing, three or four months after the case begins. Before that

hearing you need to meet with the other side, and discuss what the case is going to look like,

a discovery plan, and a chance of settlement. After that, they will provide automatic

disclosures.

ii. Lawsuit begins when a complaint is filed1. Between three and four months after, the court will set a rule 16(b) pretrial conference

a. Scheduling conferencei. Judge meets the parties and assesses if there's any case of settlement, and

to set the name dates in the lawsuit

b. As soon as possible, but no more than 21 days before the scheduled conference,there must be a rule 26(f) conference (early meeting of Council)

i. In-person meeting where you meet with the other side and talk aboutchances of settling and discussed were the witnesses and the main issues in

a lawsuit

ii. Automatic disclosures are exchanged ( but no more than 14 days after the)iii. Joint report filed

b. Complaint---------------R26(f)------- ---------------21days------------------------------------R16(b)---------------court enters pretrial order if they

early meeting --auto disclosure--joint report pretrial

scheduling order agree with the joint report

iii. R16(b) --pretrial scheduling ordera. After receiving the parties report, or consulting at a scheduling conference, a judge

must issue a scheduling order

b. The scheduling order must be issued as soon as practicable, but in any event within theearlier of 120 days after service of the complaint, or 90 days after any defendant has

appeared

c. The scheduling order must:i. Limit the time to join other parties, amend the pleadings, complete discovery, and

file motionsd. The scheduling order may:i. Modify the timing of disclosures

ii. Modify the extent of discoveryiii. Provide for disclosure or discovery of electronically stored informationiv. Include any agreements the parties reach for certain claims of privilege or of

protection as trial preparation material after information is produced

v. Set dates for pretrial conferences and for trial; andvi. Include other appropriate matters


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iv. R 26(f)-- early meeting/planning for discoverya. The parties must confer as soon as practicable, at least 21 days before a scheduling

conference is to be held or a scheduling order is due.

b. The parties must:i. consider the nature and basis of their claims and defenses and the possibilities for

promptly settling a resolving the case

ii. Make or arrange for the automatic disclosuresiii. Discuss any issues about preserving discoverable informationiv. Develop a proposed discovery planv. Submit to the court within 14 days of the conference a report outlining the plan.vi. ( the court may order the parties or attorneys to attend the conference in person)

c. The discovery plan must state the party's views and proposals on:i. What changes should be made in timing, form, or requirements for disclosure,

including a statement of one initial disclosures were made or will be made;

ii. The subjects on which discovery may be needed, when discovery would becompleted, and whether discovery should be conducted in phases or be limited to or

focused on particular issues

iii. Information about the electronic discoverable informationiv. Any information of privilege or protectionv. 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

vi. Any other orders the court should issued. If necessary to comply with the schedule for rule 16(b) conferences, the court may by

local rule:

i. Require the parties conference to occur less than 21 days before the schedulingconference is held or a scheduling order is due

ii. Require the written report outlining the discovery plan to be filed less than 14 daysafter the parties conference, or excuse the parties from submitting a report to

permit them to report poorly on their discovery plan at the rule 16 (b) conference

4. Limitsa. Work Product

i. Hickman v Taylora. Sinking tugboat's lawyer interviewed witnesses in anticipation of lawsuit, andsurvivors

attorneys wished to get those notes.

i. Note: the lower court found the information to be discoverable and ordered theattorney to give it up. He refused to, and purposely got himself held in contempt

because it is the only way a discovery ruling can be appealed before going through

the entire case

1. He was able to have an interrogatory appealb. Refuses to base its ruling on the fact that the lawyer is a nonparty, can't serve

interrogatories or document requests on nonparties

i. What they should've done to get the witness statements produced was do adeposition attached with a subpoena to depose and request the person coming in

for the deposition produce the documents.

ii. If you want to get information from the nonparties have to do with her depositionand if you want a nonparty to produce documents, a subpoena has to be attached.

c. Case based on the work product doctrine as he claimed attorney-client privilegei. He was discussing with third parties so the attorney-client privilege does not apply,

but there was no work product doctrine at the time

ii. The other side can do the interviews themselves, so this information is notdiscoverable under work product doctrine


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Civil Procedure 14

ii. R26(b)(3) Work product doctrine Document or tangible thing produced by or for the party inanticipation of litigation

a. Usually work product is protected, however this protection gives way if:i. No substantial equivalent available anywhere else

ii. Substantial need for the informationb. Mental impressions of counsel it's never discoverable because it would give away

strategy

i. Who the attorney interviewed--reflects mental impressions of who the attorneyfinds is important

ii. Statements given to the attorneyc. Work product applies to people who prepare information for the party or the parties

representative

i. Paralegals, insurance adjusters, private investigators, etc.ii. Trial preparation materials are work product generally

1. If it was not prepared in anticipation of trial it's prepared in ordinary businessiii. Work product doctrine test

a. Is a work producti. Document or tangible thing

ii. Prepared in anticipation of litigationiii. By or for a party of the party's representative

b. Are there any exceptionsi. Substantial need

ii. No alternativec. Is it a mental impression (non-tangible)(Hickman)

i. An attorney's mental impression is always protected (never gives way)1. Only for an attorney's mental impression

iv. Nonparty exceptiona. A nonparty who gives a witness statement is entitled to a copy of the statement even if

it is work product.

i. Major loophole1. So the witness can see what they wrote before testifying

ii. But an attorney's notes on what the witnesses said probably constitutes a mentalimpression and is never admissible and doesn't need to be given back to the

witness

iii. Incentive not to take a formal witness statementsv. Purpose is so attorneys do their own investigationsvi. Difference with privilege is that work product can give way if it's compelling but privilege never

does

vii. Anything tangible (without an exception) and an attorney's mental impression is protectedb. Nondisclosure of consulting experts (unless an exception) or informally consulting experts

i. However, If you meet the exceptions for work product, you will need the exception forconsulting experts and vice versa

a.

Ultimately do the same analysis, as a consulting expert fits squarely within the workproduct rule

5. Compliance (sanctions)a. The reason for compliance is because that's where lawyers act at their worst as there is little judicial

overview. Sometimes they only bring 10 documents, sometimes they bring 10,000. This other side may

be buried in discovery or buried in requests. The question is how early does the judge get involved,

and how heavy should their sticky when they do?

b. You have to either object or seek a protective order if you don't respond to a discovery or you riskbeing sanctioned


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Civil Procedure 15

c. Three remediesi. R26(g) signing disclosures and discovery requests, responses, and objections

a. Must sign document requests and responses to assure:i. Attorneys sign to the law and client must sign to the fact ( objections attorney only

need sign)

1. Responses are complete and correct disclosure at the time it is made2. Requests are consistent with the rules in terms of requests, Not for any

improper purpose, and Not overly burdensome

b. If not signed, you have a chance to sign it. If still not signed the other party has no dutyto act and the court to strike the response unless ones being notified of the omission ispromptly remedied

i. The problem is that if it's a response to a rule 36 request for admission, you will bedeemed to have admitted everything because you didn't sign the bottom of the

response. If it's a response to an interrogatory request, your objections will be

deemed waived because you never timely objected.

ii. R2(c)--Protective Ordersa. If you believe the discovery's improper you can ask a court to prevent the disclosure of

even stuff that would be relevant if you can show for good cause it should be disclosed

i. Commonly in situations of trade secrets you're worried about being disclosed orother personal or sensitive information. Even if the info is overly burdensome or

calls for too much information etc.

b. The burden shifts to the other sidec. Only use when you will not win on the objection alone

iii. R37 the court's authority to sanction or compel compliance with the discovery ordera. Failure to comply with the automatic disclosure requirement means that you can be

barred from using it at trial

b. Failing to admit something (frivolously) in a request for admission that at trial is provedto be true can cause the party to pay attorney fees and the cost to prove it.

i. Unless the request was objectionable, it was in a insubstantial importance, or youhave a reasonable ground to believe you will prevail on that issue

c. Failure to answer any response or interrogatory requests can result in compelling orsanctions being soughti. No response immediately seek sanctions

d. If a frivolous response or objection for documents, can compel only unless they stilldon't comply (sanctions)

i. Some response must compel before seeking sanctionsii. Frivolous objections and responses buy yourself some time

1. Meet and confer conferencese.

No response Failure to admit disclose Some response

(incomplete)

Motion for sanctions

Exclusion of evidence,

Deeming stuff

established,

Dismissal or default

Could lead to attorney's feesand cost of proving unless the

request

was objectionable, was a

insubstantial

importance, or a reasonable

ground to

believe you will prevail on the

issue

Meet and confer

motion to compel

Order to compel

( ignore the order)

Meet and confer


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Civil Procedure 16

Motion for sanctions

iv. R16 discovery conference like being called in for detention to explain why they're not gettingalong

v. Types of sanctionsa. Attorneys fees and costs ( always)b. Order of facts admittedc. Order conclusiond. Default are strikinge. contempt

vi. Washington State Physicians CB 418a. Two-year-old permanently disabled because of a drug, and the drug company withheld

letters that they knew about the possible harm which were anonymously sent to the

doctor after he settled. The next day after being caught they deliver 10,000 papers to the

doctor's attorney with the requested document buried inside

b. Rule 11 doesn't apply to discovery requests, because rule 26(g) is a work of rule 11 anddiscovery requests

c. If there's a violation of the certification requirement use the more specific rule over themore general rule

i. You get to rule 37 because you have rule 26(g)4. Trials and adjudication without trials

1. Right to Juriesa. The seventh amendment

i. Preserved at the time of the ratification of the seventh amendmentii. Must be a legal claim that was a suit at common law.

a. Only courts of law have juries, not court's in equityb. Federal Rule 38

i. Must make a demand for a jury trial within 14 days from the last pleading or the right iswaived.

a. Whenever a claim is served on an opposing party that contains a legal claim that issubject to resolution by the jury, you have 14 days from that particular serving

c. Claims that didn't exist at the time of ratification (not contracts, trespass, murder, etc.)i. Test to determine if a new claim is entitled to a jury under the seventh amendment:

a. Historyi. Looking to find with the historical analogue is

ii. Is there something similar, at common law at the time of ratification? (veryflexible)

b. Nature of remedyi. Was it legal or equitable in nature?

ii. Would have been heard in a court of law or court of equity?1. Only if it was heard in a court of law will a jury be allowed

1. Law1. Breach of contract seeking damages2. Equity

1. Breach of contract seeking specific performance2. Seeking an injunction

ii. Test for a very complicated case (i.e. patents)a. Functional approach

i. Look at who is better equipped to decide this type of case ignoring the seventhamendment's language if it leads to a strange result.


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Civil Procedure 17

1. Is it too complicated for the jury, etc. Patents etc. require special trainingand practice and therefore a judge is better equipped to decide this type of

case.

iii. Chauffeurs CB 436a. Fired teamsters sue their employer and the union for breaching their duty of fair

representation in their claim. The employer went bankrupt, so now they're just suing the

union for breaching the duty of fair representation and seek a jury trial.

b. Is the duty of fair representation entitled to a jury trial?i. The duty of fair representation is most like a trust (fiduciary duty)1. Encompasses both equitable and legal issues

2. This tells us nothingii. The nature of the remedy (back pay) is legal

1. Equitable if restitutionary, but back pay is not restitution, its damages.c. Plaintiffs are entitled to a jury trial

d. Equitable and legal claims brought togetheri. Beacon Theaters CB

a. The court will decide the legal claims first before the jury, and if any remainingequitable issues in the deciding, the judge will decide those claims.

2. Jury selection and sizea. Preemptory challenges

i. Excusing someone from the jury pool for any reasona. Possible reason is a legitimacy function

ii. Three in a civil case, six in a criminal case, 10 in a felony prosecution, 20 in a death penaltycase.

iii. J.E.B CB 457a. The attorneys used peremptory challenges discriminatory on sex.b. It is an equal protection clause violation to dismiss jurors solely on genderc. Must show a prima facie case with a pattern of discrimination

i. The burden of proof shifts to the other side to show it was dismissing on someneutral ground

b. Challenge for causei. Unlimited amount of challenges for cause

ii. Must have a reason for the dismissala. If the judge disagrees, use a peremptory challenge

3. Summary judgment (before trial during discovery)a. Rule summary

i. Summary judgment should be granted when no genuine issue of material fact exists and thecourt can enter judgment as a matter of law. First the moving party must meet their burden

of production and establish a prima facie case for summary judgment. If the moving party

meets their burden of production, the burden shifts to the non-moving party. The nonmoving

party must either establish that fact dispute exists sufficient to go to the jury or request

additional time. The court will draw all reasonable inferences in favor of the nonmoving

party. A mere scintilla of evidence is insufficient to establish a genuine issue of material fact.ii. If the moving party is moving on a claim or defense to which the moving party has the burden

of persuasion at trial than the moving party must establish that every element of the claim is

met so that no reasonable juror would find otherwise. Assuming they do this summary

judgment must be granted unless the other side can demonstrate a genuine issue of material

fact.

iii. When the moving party does not have the burden of persuasion at trial, the moving party canmeet its burden of production in two ways. First, they can show that the nonmoving party has


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Civil Procedure 18

no evidence to prove an essential element of its claim. Second, they could affirmatively

disprove an essential element of the opposing parties claim.

iv. Defendant moving for summary judgment on the plaintiffs claima. Summary judgment will be given when there is no genuine issue of material fact so the

judgment can be entered as a matter of law (R56). For the defendant to be successful,

he must establish a prima facie case.

i. Has defendant met his burden of production (established a prima facie case)(Anderson)

1. Defendant is the moving party. Because the defendant does not have theburden of persuasion of the plaintiff's claim, the defendant meets hisburden of production in one of two ways -- disapprove an essential element

of the plaintiff's claim, or show that the plaintiff has no evidence to support

an essential element of plaintiff's claim.

ii. If a prima facie a case is established, has plaintiff met his burden of production todefeat summary judgment (Anderson)

1. If the defendant has met its burden of production, then to defeat summaryjudgment the plaintiff must either establish a genuine issue of material fact

or may request additional time to conduct discovery assuming he can show

such discovery would be fruitful.

v. Plaintiff moving for summary judgment on their own claimb. Timeline

i. After pleading, and somewhere near the end of discovery, most file for summary judgmentmotion

c. FRCP R56i. When there is no genuine issue of material fact and judgment can be rendered as a matter of

law as no reasonable juror could find against you.

d. Burdensi. Burden of Production

a. What must be produced at the summary judgment stage for the judge in order to win orsurvive a motion for summary judgment

i. No genuine issue of material factii. No Reasonable juror standard

1. Below the line if no reasonable juror could find for you1. Even the one drunk will get you to court, but the blind man will not

2. More than a scintilla of the evidenceb. Establishing a prima facie case for summary judgment (BOP shifts, party needs to prove

or ask for more time for discovery)

i. The Celotex and Adikes standard1. A defendant, Moving on the opposing parties claim for which they do not

have burden of persuasion at trial

1. Showing the opposing party has no evidence on an essential element(Celotex)

2.

Affirmatively negating (disapproving) an essential element (Adikes)ii. Information learned in discovery is given to the court in declarations or affidavits.iii. Summary judgment can be brought by the plaintiff or defendant, it is unlikely that

a plaintiff will prevail on their own claim because the plaintiff would have to show

that no reasonable juror would find against them and to do so have to prove

every single element with amazing evidence. The defendant only needs to

disprove one element. So generally defendant spring summary judgment motions,

except for counterclaims when the plaintiff acts as a defendant, or for an

affirmative defense where the defendant has the burden of proof


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Civil Procedure 19

ii. Burden of Persuasiona. How much you need to prove to win your case before the judge or jury

i. By preponderance of the evidenceii. More than 50%

b. Moving party has burden of persuasione. Summary judgment trilogy

i. Andersona. Rule 56

ii. Celotexa. Woman claims her husband was killed from that asbestos and Celotex moved forsummary judgment based on her having no evidence that it was their asbestos

b. Showing the opposing party has no evidence on an essential element is sufficient forsummary judgment

i. Affidavits are not needed under this "gateway"c. Dissent: Most attorneys follow

i. Even if pointing to no evidence, the attorney should prove there is no evidence bysubmitting Affidavits.

1. Safe way to do thingsiii. Adikes

a. Affirmatively negating an essential element means the other side cannot succeed in itscase.

iv. Reconciling Celotex and Adikesa. Two cases focused on different issues. The central question in Adikes is whether the

moving party can reach its initial burden of production by producing affirmative evidence

negating an essential element in nonmoving parties claim. The central question in Celotex

was whether the moving party had carried its initial burden of production by showing that

the nonmoving party did not have enough evidence to carry its ultimate burden of

persuasion at trial. Ultimately these are two different methods by which the moving party

and carry its initial burden of production

i. Removing party without the ultimate burden of persuasion at trial may carry itsinitial burden of production by either of two methods. The moving party may

produce evidence negating an essential element of the nonmoving party's case, orafter suitable discovery, the moving party may show the nonmoving party does not

have enough evidence of an essential element of the claim or defense to carry its

ultimate burden of persuasion at trial.

1. Is easier in many cases to produce a permanent evidence negating anessential element of the nonmoving parties claim or defense than it is to show

the nonmoving party is insufficient evidence to carry its ultimate burden of

persuasion at trial.

f. Summary judgment compared to a 12(b)(6) motioni. 12(b)(6) motion to dismiss

a. Assuming the facts are true, there is no right to relief under the claimb.

Looks only at the four corners of the documentii. Summary judgment

a. Looks beyond the four corners of the document to see if they have or if they can prove thefacts alleged in the complaint

b. Looks beyond the pleadings to see if discovery has actually unearthed facts that could leadto success

g. Summary judgment is for the entire claim, summary adjudication would be for a specific issue4. Judgment as a matter of law (brought with a motion for new trial)

a. Directed verdict (similar to summary judgment based upon the trial)


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Civil Procedure 20

i. FRCP R50(a)a. If a party has been fully heard on an issue during a jury trial and the court finds a

reasonable jury would not have a legally sufficient evidentiary basis to find for the party

on the issue, the court may grant motion for judgment as a matter of law against the

party.

i. Must specify the reason a directed verdict should be granted.ii. Timeline

a. Applied at the close of the plaintiff's evidence, or any time before the jury deliberatesb. Reed CB 514 (nothing the jury can deliberate about)i. Cow killed by train, the farmer sues Train Company for having their fence in

disrepair.

ii. Two theories1. Fence was in disrepair around track2. Gate in fence left open around the farm

iii. Directed verdict for the Railroad as the plaintiff could prove his case topreponderance of the evidence.

1. Ties go to the defendantb. JNOV

i. Rule 50(b) motiona. Predicate before filing

i. Must have filed rule 50(a) motion, because if you have not asked for directedverdict first, the seventh amendment forbids it.

1. Technically this is a renewed rule 50(a) motion after trial under the seventhamendment's fiction.

ii. Timelinea. Occurs after the jury deliberates, after a verdict is made by the jury (no more than 28

days after entering the verdict)

b. Lavender CB 509 (stuff for the jury to deliberate about)i. Railway switch operator who switches the tracks killed by a train, and his estate

sues for negligence and unsafe conditions.

ii. Two theories1. Mail hook swung from train and hit him

1. Problem: eyewitness said no hook on train, and it would be a stretchfor it hit him if there was one.

2. Murdered by a hobo ninja1. Problem: he still had his gold watch and wallet and there was no

evidence of a scuffle

iii. Jury finds for the train operator, but the State Supreme Court said it was not enoughevidence to support the theory and judgment should have been entered as a matter

of law, reversing the judgment

iv. Supreme Court finds there is enough evidence to go to the jury and decide whichtheory prevails

c.

Appellate court has de novo reviewi. No deference is given to the trial court.5. New trials (retrial) R59 (wrought with a motion for judgment as a matter of law)

a. Can be brought by motion of the party, or sua sponte by the courtb. Basis for a new trial motion

i. Procedural error--something went wrong that can be pinpointeda. Something specific that trial was wrong

i. Wrongful exclusion of evidenceii. Incorrect jury instruction


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Civil Procedure 21

iii. Etc.b. Standard

i. Whether it's prejudicial, not a harmless errorii. Substantive error--the jury went wrong but cannot be pinpointed

a. Insufficient evidencei. On liability, or

ii. On damagesiii. If one of two is the problem, just that aspect will be retried; if both are

problematic there will be a complete new trial.1. If just damages is a problem, there will be a remitter (additor would be more

money, but it's not permitted in federal court)

1. Either taking a smaller amount, or going back and retry and the wholething

2. Reducing the amount is within what the jury awarded, so it's allowed bythe seventh amendment, but moving it up is not within what the jury

awarded so it usurps the jury and violates the seventh amendment.

b. Standardi. Against the great weight of the evidence

1. Not as hard to prove as no reasonable juror standardc. Timing

i. Must be brought 28 days after the judgment (entering of the verdict)a. Everything must be settled, all proceedings in lower court must have finished and been

concluded

d. Dadurian CB 517i. Takes out an insurance policy on jewelry, and says he's robbed at the insurance company

refuses to pay saying he never had the money to buy the jewelry in the first place and couldn't

find a person who supposedly sold it to him. They claim he didn't have the jewelry in the first

place and he lied to the insurance adjuster.

ii. Jury found for the plaintiff.iii. In determining if the trial court was correct, Court of Appeal's standard for granting a new

trial

a. Abuse of discretioni. Was it unreasonable for the trial judge to believe it was against the great weight

of the evidence

1. Was the trial judge reasonablee. Conditional new trial

i. In cases where you bring both new trial motion and a motion for judgment as a matter of law,you must make sure the court rules on both motions, even though the motion for new trial can

be somewhat pointless if given a judgment as a matter of law. If you fail to get the court to rule

on both things than the Court of Appeal can only consider the other, and if the Court of Appeal

disagrees there's no way to go back to the new trial, you have waived your right to new trial. If

on the other hand you get the trial court to rule on both, conditionally the new trial, at the very

least you preserve your right to retry the case if the appellate court disagrees with the ruling onthe JMOL. It is more likely they will uphold new trial rather than JMOL based on the abuse of

discretion standard.

a. Failing to press the new trial motion can wave it.f. Motion for new trial based on Jury misconduct

i. FRE 606(b) CB 531a. Jury affidavits can be used to impeach a jury verdict when:

i. Extraneous prejudicial informationii. Whether any outside influence was brought to bare influence on the juror


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Civil Procedure 22

iii. Mistake in entering verdict ( wrote yes instead of no)5. Respect for Judgments/Binding effect of judgments

1. Preclusion (former adjudication) (affirmative defenses)a. Overview

i. Issuea. When have you already had a bite at your Appleb. When have you already had your day in courtc. When are you allowed to file or re-litigate the same claim or the same issue again

ii. Former adjudicationa. Claim preclusion (res judicata)

i. Same claim1. Claims that were brought, or could have been brought but weren't

ii. Between the same parties (mutuality)1. Not only the same person you have sued, but also somebody you're in

privity with

iii. After A valid final judgment on the meritsb. Issue preclusion (collateral estoppel)

i. Same issueii. that's actually litigated and decided

iii.

Essential toiv. A valid final judgment on the meritsv. Between the parties

1. Offensive non-mutual collateral estoppel2. Defensive non-mutual collateral estoppel

iii. Policy reasonsa. Cost efficiencyb. Prevents overburdening of the courtc. Finality/reposed. Legitimacy

iv. How strictly or how narrowly you want to view these doctrines versus how broadly you want toview these doctrines depends on what rules you have for pleadings, Joinder and discovery. If you

have very broad rules, it makes sense to have broad preclusion because you had your bite at theapple, if you didn't bring or learn of the claim it was your own fault, if you didn't join the right

people it was your fault.

b. Claim preclusion (precludes the entire case) RES JUDICATAi. Rule

a. Claim preclusion prevents the re-litigation of claims that were already brought orshould have been brought.

Claim preclusion requires three elements. It must be the same claim between the same

parties and after a final judgment on the merits

ii. Same claima. Rule

i. Courts have found that the same claim exists if it was a claim that was brought orshould have been brought. To determine if it was a claim that was brought or

should have been brought courts apply one of four different tests. Must look out

for institutional restraints that made it impossible for the person to join the

claims. Some type of impossibility not created by the plaintiff in the original

action.

b. Tests: Same claim if arose from the same:i. Primary rights CA (minority) (focused on efficiency)

1. You have the right to be free from a particular type of injury


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Civil Procedure 23

1. Focused on the type of injury. Individuals have a right to be free from aparticular type of injury and if you are injured, then the defendant has

violated your primary right to be free from personal injury, property

damage, harm from reputation, etc. doesn't define the cause of action,

so you can have many causes of action.

ii. Single wrongful act (majority) (focused on individualized justice)1. If both derive from the same act there would be claim preclusion

1. Must be brought together in the same lawsuitiii. Same TNO test ( federal court) ( R. 2-D) (modern test)1. Same transaction or occurrence that would make it convenient for trial as

one

1. Same time2. Same place/origin3. Same motivation4. (Sometimes same evidence)

iv. Same evidencec. Carter CB 591

i. Driver sued another driver for negligence in the accident for damages to his car andloss of business. In the second case he sues the owner of the car and the driver for

personal injury

ii. Is the second suit precluded from litigation for being the same claim?1. Primary rights test

1. The second lawsuit is not barred2. Not a claim that should've been brought or had to be brought in the

first lawsuit because it was derived from two different primary rights

iii. Between the same parties (mutuality)a. Requirement derived from the due process clause which says it's unfair to be bound to a

judgment which you were not involved.

i. Includes the same parties and their privitiesb. When is this met?

i. Same names, orii. Person in privity so they can be bound by the same judgment

1. Relationships recognized by law1. Specific relationships between the parties that the law recognizes as

being substantively binding. I.e. fiduciary relationships and other

relationships recognized by law (executor of estate).

2. Representation in the prior suit1. I.e. class-action, Guardian/child, trustee/beneficiary, assignment of

contracts

iii. (At common law, the configuration needed to be the same. This is now out the doorbecause the compulsory counterclaims rule. If lawsuit one failed to submit the

compulsory cross-claim, they are barred in the second lawsuit from bringing it)

iv.

Valid final judgment on the meritsa. Elementsi. Validity

1. Subject matter jurisdiction and personal jurisdiction1. Tweak: the judgments are generally considered to be valid if the court in

deciding the case determined it had jurisdiction and there was no

appeal and it wasn't overturned

ii. Finality1. Nothing left to do but execute the judgment (writ) or appeal


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Civil Procedure 24

1. Note: anappeal will knock out the finality until the appeal is decided.This can go on for a long time

iii. On the merits1. Must be on something substantive2. R41(b)--dismissals

1. The court's decision as to whether it is with prejudice or withoutprejudice controls. If the courts order doesn't specify there are default

rules.

1. Dismissals based on jurisdiction, venue, or failing to join the partyare not considered to be a decision on the merits2. Dismissals for failure to state a claim could be a judgment on the

merits but it doesn't have to be

2. If it's dismissed for something other than this it is on the meritsv. Exceptions: where the courts will find there is no bar to the second action even if all elements

are met:

a. Agreement to split claimsb. Court order specifically allowingc. Prohibited by law, i.e. a particular law requires the case be filed in small claims court

where there's a prohibition to join claims

d. Policy: judgment in the first act was inconsistent based on statutee. Policy: substantive policy where you want people to sue as his injuries occur

i. I.e., Latent injuries that occur after the first caseii. Unless plaintiff purposely put themselves in the situation like choosing to bring in

small claims court.

f. Catch all: extraordinary reason (rare)vi. application: merger and bar

rs: application: you cant split claims

merger

-a victorious p who splits a coa may not seek addtl recovery for the other loss that

may have been causes from the harm

-prevents a winning p from further recovery

- rights merge into the first claimbar

a loosing p , who splits a coa, may not seek subsequent recovery for another loss

suffered from the same harm.

bar prevents a loosing p from further recovery

--the first judgment will bar the second suit.

c. Issue preclusion (prevents a real indication of particular issues of law or of fact)COLLATERAL ESTOPPLE

RS: Bars subsequent re-litigation of issues that were actually litigated and necessarily

determined in a prior proceeding

i. Same issuea. Must substantively be the same issue

i. Just because they nominally the same means nothingmust be the samelegal/factual determination

b. The burden of proof must be the same in both casesi. But a greater burden will allow for a lesser burden, not vice versa

1. This is why they never filed a civil action while a criminal is pending but ratherwait for the criminal to end in order to preclude the issue. Think OJ.

ii. Actually litigated and determined


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Civil Procedure 25

a. Proving the element, look at the actual evidence of:i. Pleadings

ii. Affirmative defensesiii. Motionsiv. Orders of the court

b. Cromwell CB 609i. Bonds were sold to build a courthouse. The judge keeps the bonds is no courthouse

1. Case one: S v. County for interest on the bonds. County raises the defense offraud (that the bonds were fraudulently obtained). To overcome this S wouldhave to say he was a bona fide purchaser for value, but he doesn't argue this

and the County wins

2. Case two: C v County for different coupons on the same bonds. County'sdefense was issue and claim preclusion. S is C's Rep., therefore their in privity.

ii. Claim preclusion failed because they were not the same claim under transactionand occurrence as they were different coupons with different contracts.

iii. Issue preclusion fails because it was missing the actually litigated element on thebona fide purchaser for value defense.

1. C can assert bona fide purchaser for value on the second set of coupons as itwas never raised in claim one and so can't be precluded from claim two.

iii. Essential toa. Rule

i. Generally essential to is determined by whether changing the issue would alterthe judgment except for those situations where there are two alternative findings

both which are sufficient to support the judgment. In those situations there are

two different rules states that applied the first restatement find that both are

preclusive, states that follow the second restatement find that neither are

preclusive unless one or both are affirmed on appeal.

b. Policyi. It's unfair to allow issue preclusion unless it was vigorously litigated in the first

place

c. Exceptioni. Alternate findings

1. Two findings are on their own sufficient to lead to judgment, what isessential depends on whether the jurisdiction uses the first or second

restatement. Both findings must be sufficient in of themselves.

1. First is both are preclusive2. Second is neither are preclusive unless the issues are affirmed on

appeal, where the appellate court decides.

1. Rationale is so people aren't dissuaded from appealingd. Rios CB 615

i. First suit: P v D for $443 car damage. D enjoins R for $248 car damage.1. All found negligent and no one got anything

ii.

Second suit: R v D or personal injury $17,500.iii. D claims issue preclusion on R as he was found to be negligent1. No compulsory counterclaim requirement, otherwise R would have raised

claim preclusion.

iv. The court says that the essential to element is missing as we could change R fromthe first case and the result would be the same as R was impleaded. Whether or

not R was found to be negligent, the defendant in the first case would still have

won


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1. If you didn't have an opportunity to appeal, courts are reluctant to say youhad your full day in court and your bite at the apple.

iv. A valid final judgment on the meritsv. Between the parties

a. Analysisi. Mutual or non-mutual?

ii. If mutual no problemiii. If non-mutual, is it being used against someone who had their day in court?

1. If not no IP2. If so, is it fair ( defensive is probably not a problem, offensive probably is aproblem but no need to make distinction between the two)

1. Unfair situations (usually in the offensive context)1. Wait-and-see approach evidenced (easy joinder issue)

1. P always relitigates, but D does not2. Easy joinder interpreted very narrowly

1. Usually only easy when they have the sameattorney and know each other. Deliberately chose

not to join.

3. Pushes people to split their claims2. Multiple lawsuits with inconsistent judgments3. Procedural differences

1. First case allows limited discovery, weren't able toconduct full examination, etc.

4. Incentives to litigate1. Case one for $50, case two for $5 million

b. No need for the same parties, but can only be used against someone who had their dayin court

i. Hypo 11. H v B, B is negligent2. W v B, preclusion permitted because it was against somebody who had their

day in court

ii. Hypo 21. H v B, B is not negligent2. C v B, preclusion not permitted because C hasn't been able to litigate yet,

would be in violation of the due process clause.

c. Non-mutual issue preclusioni. Offensive non-mutual collateral estoppel

1. P using issue preclusion to establish liability2. A v B then P v A3. Fairness and efficiency Policy issues

1. "wait & see"2. Inefficient3.

Over litigation due to fear of issue preclusion (Ripple effect)4. "over" settlement

5. Plaintiff shopping6. Encourages the plaintiff to split their claims

ii. Defensive non-mutual collateral estoppel1. D using issue preclusion as a shield to prevent liability

1. P v A then P v B2. Usually no fairness or efficiency policy issues

d. Parklane CB 629


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i. P v D. During trial SEC v D where D is found liable for fraud. P seeks non-mutualoffensive issue preclusion and piggy back off the SEC case.

ii. Whether defensive or offensive, the court has broad and wide discretion to see ifIP would be fair.

d. Problem of Federalismi. The second court does not apply its own rules, it applies the rules of the first court's judgment

because the judgment is worth no more and no less than what the first court said it would be,

except for the exception of the Erie doctrine

ii. Case one in state court, case two federal court (CA state to NY fed)a. SS 1738: federal court has to use the test of the state court, the place where thejudgment was entered determines

i. The preclusive effect of that first judgment is whatever the state court says it isiii. Case one in federal court, case to state court if it is a federal question (if sitting in diversity,

see the Erie doctrine)

a. The federal court standard applies6. Appeals

1. The final judgment rule SS1291a. In a civil context in the federal courts there's an automatic right to appeal. No need for permission and

no need to seek leave. All cases are generally appealable.

b.

Can only appeal however, when there is a final decisioni. Triggering eventii. No interrogatory appeals

iii. Nothing left to do but either appeal or execute on the judgmentc. Policy reasons

i. Deference to the trial courtii. Efficiencyiii. Const and harassmentiv. Independence from trial court

d. Exceptions to final judgment rule allowing Interrogatory appealsi. Collateral order doctrine

a. If you have a really important decision that has nothing to do with the merits, it's on theside and doesn't impact the merits, and it's likely that should not be able to have a

resolution of that issue when the case finally goes to appeal then you have the

collateral order and you can appeal on that collateral order

i. i.e., being placed in contempt during a contract case can only be appealed while thecase is ongoing.

b. Elementsi. Important and conclusive order

ii. Separate and distinct from the meritsiii. The likely not to be reviewed on the appeal itself

ii. Certification exception 1292(b)a. The trial court believes it has made a decision that is incredibly controversial, and they

want the Court of Appeal to decide the issue early on, because they think it's socontroversial and essentially will resolve the entire case.

b. Elementsi. It has to be an order

ii. Focused solely on controlling question of lawiii. Substantial grounds for difference of opinioniv. Immediate appeal may lead to an early termination of the case

iii. Injunction exception 1292(a)a. Can appeal to grant or denial of a judgment


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iv. Partial summary judgment R 54a. Multiple parties and partial summary judgment disposes of claims against one-party.b. The plaintiff can appeal as long as it's separate from the other case

v. Class-action certificationa. Reason is that the defendants exposure is minimal until certification. So this decision can

be immediately appealed.

i. Once your certified, you better settlevi. Writ of mandamus

a. Rarely granted remedy that allows the appellate court to mandate the trial court dowhat the appellate court wants them to do. Because it's an extraordinary remedy mustprove there's no other method or means to obtain relief.

i. Must be that the trial judge is totally out to lunch and isn't even listening to you andthat your right to relief is clear and indisputable. Must essentially win on the merits

before the case.

2. Standards of appellate reviewa. Appeal on a question of law is reviewed de novo

i. Fresh look by the appellate courtb. Appeal on a question of fact is reviewed by the clearly erroneous standard

i. Never winc. New trials and issue preclusion is reviewed under abuse of discretion standard

i. If the trial court has discretion to decide the issue, they overlook for abuse.7. Alternative dispute resolution (ADR)

1. Arbitrationa. Contractual agreement that you will resolve your dispute outside of courtb. Usually three Arbitratorsc. Truncated and less formal than a trial

i. Less discovery, shorter cross, etc.d. Normally bindinge. Reasons

i. Companies can protect exposure better than a trialii. More flexible/quicker/less costlyiii. No jury so less risk of craziness

2. Mediationa. Never binding resolution for formal processb. Helpful for cases that really should settlec. File mediation briefd. Soft as to law and tries to get a win/win

8. The Erie Doctrine--Diversity Cases in Federal Court Only1. Diversity cases only, if a federal question federal law applies2. Background--The Year Was 1938

a. Before Eriei. Substance was based on federal law (RDA) (Swift)

ii. Procedure was based on state law (conformity act)b. Swift (1842)

i. Must always apply federal statutes if applicable. If none are applicable:a. If you're a federal court sitting in diversity and the issue a matter of general law, the

federal court is permitted to use federal common law. Just look at other federal courts.

b. If you're federal courts in diversity and the issue is a matter of local law, the court mustfollow state common law. Look at the decision of those states.

ii. A huge body of federal common law developed that was uniformed across the federal systemthat dealt with lots of different state law issues.


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a. Horizontal uniformityb. No substantive vertical uniformity

c. Climatei. 1937 marked the end of the Lochner era, and the validation of the new deal. The size of the

federal government expanded and became more powerful as related to the state government.

Federal courts needed their own identity, and not merely be an appendage of the state court. It

made sense that they have their own federal procedural rules.

d. Erie RR (1938)--in one fell swoop the case over rules 100 years of precedent, including all thebodies of federal common law previously existed, based on a constitutional theory without citing toa single constitutional provision.

i. Phit by one of Erie's trains while walking next to the track late at night and loses an arm by anopen swinging door.

ii. Trial Court debates about what law to applya. Railroad argues it's a matter of local law, which would make P a trespasser and to succeed

would have to be willful and wanton conduct.

i. P would loose-- the railroad didn't deliberately leave the door openb. P argues it's a matter of federal law (general), which would make P a licensee.c. Trial Court says that general law applies, and P wins.

iii. United States Supreme Courta. The parties in the brief argue whether it should be general law or local law, however on

their own the Supreme Court only looked at whether Swift should be overturned.

b. The Supreme Court called Swift unconstitutional giving them a basis to overturnprecedent. They say the constitutional problem with Swift because the federal judges

were assuming power they didn't really have, citing no constitutional provision

however.

c. The Supreme Court overturned Swift even though wasn't argued by any of the litigants.i. Problems with Swift

1. Line between general and local is too ambiguous2. Lead to strange outcomes that made it easy to form shop and federal courts

were biased in favor of corporations (taxicab case)

1. Black-and-white taxicab: both parties were from the same state at atime when diversity was based just on the place of incorporation, so thetaxicab company changed its place of incorporation in order to get into

federal court on diversity.

3. We read the rules and decision act wrongiv. Problems with Erie

a. The Supreme Court reinterpreted a statute that had been around for 100 years, andquashed 100 years of good precedent.

b. Just changed the problem from vertical form shopping to horizontal form shoppingi. Used to be if you like to stay rule you go to the federal court. Now if you don't like

the rule in the CDCA, you go to the CDNY.

c. This doesn't change the ambiguity between local and general law, it just creates anotherdefinition, and the latter had 100 years of interpretation. They at least generally knewprior to Erie.

v. Modern interpretation of Eriea. It is a justification of judicial restraint. The idea that judges are only interpreting the law

created by Congress. They are not creating a law.

e. After Eriei. Substance based on state law in which you're sitting (Erie) "State law controls"

ii. Procedure based on the federal Rules of Civil Procedure (rules enabling act)3. Determining whether it is substance or procedure.


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a. Guarantee CB 546i. What were really concerned about is form shopping, leading to an illegitimate appearance of

the court system,

ii. Outcome determinative test to determine whether something is substantive or procedural:a. If it is substantive the outcome of the case would change depending on whether you

applied state or federal law.

b. There should be no labels as to if it should be procedural or substantive, there should befunctional and the question is whether there's a different outcome or not

iii. Problem with test:a. A procedural rule could change the outcome too, i.e. not including a footer on a paper onthe deadline of the statute of limitations. It would be accepted in federal court but not in

state court where it is a state law

b. Triple Play Cases--swingi. In each case, they upheld state procedural rules over federal rules

a. Concern after this case is that no federal rule is going to sustain itself on a challenge basedon Erie. They will always find the opposing state rule is outcome determinative, and will

rule. The federal court worries about becoming a lapdog to the state court.

c. Byrd-- swing backi. Who decides a workers comp claim -- judge or jury?

a. If applying the outcome determinative test:i. Doesn't necessarily mean they will be a different outcome determination, so it

possibly wouldn't lead to form shopping

ii. Test for determining if something is substantive or procedural:a. Is it substantive or procedural?

i. Substance is now called bound up in state created rights and obligations.1. If you have a rule that says the definition for negligence are these four

elements, you would use that, but if it is tied to that substantive law it is also

substance

ii. Procedural is now called form and mode1. Judge or jury is forum and mode

b. If it is form and mode, there's an outcome determination, it is outcome determinativethe federal law will give way to state law, but even if there is a difference federal rulesdon't always give way to competing state rules.

i. The federal rule trumps even with an outcome difference when applying state lawwould disrupt the federal systems function.

1. Is there a strong federal policy against allowing state rule to disruptc. Analysis:

i. Isn't bound up in state created rights and obligations?ii. If no is a mere function and mode?

1. If so, is there a countervailing strong federal interest?iii. This is a question of form and mode however the federal law trumps state law as there's a

strong federal policy under the seventh amendment to allow jury trials rather than judge

trials. The federal law does not give way here.a. The seventh amendment is more important than outcome determinativei. Note: at the seventh amendment actually applied there would be no need for an

Erie analysis because the supremacy clause. If it applies, it applies.

4. The Current Approach defining the difference between substance and procedurea. Hannah--replaces one tricky test with another one

i. Should service conform to state or federal rules?a. Server left the complaint with the wife which is okay under FRCP 4, but Massachusetts

required personal service.


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ii. Analysis:a. Is there a federal directive on point (Federal Constitution provision, federal statute, or

FRCP)?

i. If yes (REA prong):1. Is the federal rule unconstitutional, or does it violate the rules enabling

act?

1. If no (FRCP will never violate by definition and will always trump):1. Apply federal directive

2. If yes, there's no federal directive on point1. Apply the state ruleii. If no (RDA/Erie prong):

1. Is the state rule bound up in the rights and obligations of the party (usuallywill be), are purely substantive?

1. Yes-- Apply the state rule2. No--Would ignoring the state rule be outcome determinative by

looking at the twin aims of Erie (form shopping/Appearance of

ineffective administration of justice?

1. No -- apply the federal practice, because it has no impact2. Yes--Are there any federal interests outweigh the state

interests (Byrd) (rare only 7th amd.)?

1. No-- apply the state rule2. Yes-- apply the federal rule

b. If you're under the rules enabling act you always win because the supremacy clause. If youdon't have a federal rule you're talking about nonfederal directives you start looking at

the state interests. Even then it is less likely that the state rule is outcome determinative

under this test.

c. Judges can be vary results orientedi. If you don't want the state rules to apply read the federal rules very broadly, if you

want to stay rules to apply to the federal rules very narrowly

iii. Rule four is a federal directive on point. It is constitutional and doesn't violate the REAtherefore the federal controls

iv. What Parrish thinks:a. Erie was much easier to apply, however since Guarantee so they can

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