PROFESSOR STEIN

CIVIL PROCEDURE I
FALL 2014 1L SEMESTER
TEXTS: YEAZELL CIVIL PROCEDURE 8th EDITION
YEAZELL FEDERAL RULES OF CIVIL PROCEDURE 2014

Procedure is the etiquette of ritualized

battle
Litigation Facts
-95% of litigation in U.S occurs in state courts
-19 million civil lawsuits per year
-U.S litigation rates have grown faster than the population but slower
than the economy
-matters b/c studies suggest that civil litigation correlates more
closely with economic activity than with population alone
-Current civil litigation rate: 1 suit per year for every 15.5 persons
-54% contracts
-19% small claims
-15% Probate
-4.4% Tort
-No sort of case goes to trial at a high rate
-National average hovers around 3%
-With about 70 percent of those coming before a jury and
30% before a judge
-Tort/Contract distinction affects the kind of trial:
-When contract cases go to trial most are tried by judge (bench
trial)
-Plaintiffs do better in contract trials, prevailing in just over
2/3 of cases
-Median recovery in contracts disputes is 75k (jury
verdicts) and 25k (bench trials)
-90 % of tort cases that reach trial go before a jury
-Plaintiff win just about half the time
-Median recovery in torts is between 21k 24k
-Median jury award has declined by 40% since 1992
-Mostly attributable to lower awards in automobile personal
injury litigation
-Masks the substantial damage award gains in product
liability and medical malpractice
-Less than 10% of cases have a seven-figure verdict (million dollars)

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Venue:

(LESSON 1)

Court must have SMJ over issue, PJ over defendant

- Personal Jurisdiction:
a. Must be brought over the defendant
a. PJ matters only for defendant, dont care about the P b/c he brought the
lawsuit.
b. Cannot deprive a person of life, liberty, property, without DUE PROCESS of law
(constitutional mandate)
a. If no PJ, violates DP rights
5th Amendment: DP federal;
14th Amendment: DP state
c. PJ: depends upon connection to the D, court cannot exercise power over D
unless D has a connection to state or the accident in question is connected to the
state.
a. PJ matters only for defendant, dont care about the P b/c he brought the
lawsuit.
d. Domicile where you live and intend to stay, strongest connection with the state.
Physical presence in state/intent to remain. You assign to a states jurisdiction
when you drive through it
Subject Matter Jurisdiction:
Plaintiffs bear burden of proving proper jurisdiction
Federal courts have limited SMJ, can only take cases that fit w/in guidelines
a. USC 1331: Federal question, fed courts deal w fed issues
b. USC 1332: Diversity of citizens (Complete Diversity)
a. parties must be from different states
b. Sum must exceed $75k as well
Forum Non-Conveniens (for state courts)
a. Not convenient place to try the case (discretionary power)
b. Has to be serious inconvenience posing undue hardship upon: defendant, witness,
evidence
c. Court may only transfer case within the system court is in. Fed court can shift to
other district. State court asks for forum non-conveniens, dismiss and restart in
another state.

Hawkins v. Masters Farms:

a. Facts: Hawkins (P) represents deceased (Creal) in suit, killed in collision with
tractor driven by Masters (d) (Kansas citizen). Creal recently moved to Kansas,
death certificate lists Kansas as residence. Wrongful Death Tort.
b. PH: Hawkins filed suit in Fed court, Diversity Jurisdiction 1332(a),
a. Masters moves for motion to dismiss on the ground that there was no
diversity of citizenship (12 [b][1]).
c. Rule of Law: A person is a citizen of the state in which he is domiciled,
established by physical presence in a place and the intent to remain there
d. Issue: whether a person who lives in Kansas, but still has substantial connections
with his former domicile Missouri, is a resident of Kansas
e. Holding: Yes, resident of Kansas. Connections to Missouri were not sufficient to
establish domicile there, therefore P fails to establish diversity of citizenship due
to Masters also being Kansas citizen. Masters MTD granted, b/c no diversity
citizenship. P can file in state court.

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Sanctions: (Lesson 2)
FRCP 11(a) Needs to be signed attorney pleading filed with the court
to be sanctionable.
11(b)(1) If it is to harass, cause unnecessary delay or needless
litigation
11(b)(2) The legal contention made is not warranted by existing
law; or a non-frivolous argument to change the law (bum
argument/law it relies on)
11(b)(3) Fail to make a reasonable factual investigation and
filed frivolous suit (blah, ok Ill file the suitwho needs good legal
research)
11(b)(4) Defenses denial of facts is unreasonable
11(c)(1) Court is empowered to impose an appropriate sanction
on any party responsible for sanctionable violation (party,
esquire, expert witness)
11(c)(2) 21 Day Safe Harbor Before filing, serve opposing
counsel with it and prov3ide 21 days for them to withdraw the
sanctionable filing

Bridges v. Diesel Service Inc:

1) Facts: Bridges (p) fired by Diesel (D), b/c of his disability, sues under ADA.
2) PH: Court dismissed Ps complaint on the ground that Ps attorney had not exhausted
administrative remedies by 1st filing a complaint with the EEOC, shouldve went there 1st b4
filing law suit.
a) Diesel moved for Rule 11 sanctions against Ps attorney.
3) Rule of Law: Rule 11 sanctions are appropriate where the complaint filed is objectively
unreasonable under the circumstances, or where the claim asserted is without merit or
frivolous.
4) Issue: whether sanctions are warranted where counsel fails to file an EEOC complaint b4
bringing a discrimination suit
5) Holding: No. Motion for sanctions denied. Primary purpose for RULE 11 is to deter
improper conduct, sanctions appropriate when mistake is substantial rather than procedural,
and reserved for exceptional circumstances when claim is unmeritorious or frivolous.

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Pleadings: (Lesson 2)
Stating the case The Complaint
Complaint: asks the formal legal system to use the governmental power to grant P
relief. Explain grievance and ask court for remedy.

Rule 8(a) contains recipe of complaint: recitation of the basis for jurisdiction, a short
and plain statemtn of the claim showing that the pleader is entitled to relief & a
demand for judgment for the relief sought
a. Jurisdictional allegation,
b. Short/plain statement,
c. Prayer for relief
Detailed complaint allows courts to screen out weak claims
Notice Pleading: gives D a general idea of the nature of the claim, leads to more
claims being resolved on factual merits

Bell v. Novick Transfer Co.

a. Facts: Bells (p) infant injured by truck, owned and operated by Novick, (d)
during collision.
b. PH: Complaint filed in state then moved to federal court.
a. Novick moves to dismiss FRCP 12(B)(6) arguing Bells complaint failed
to state a claim against Novick upon which relief could be granted,
because P claims negligence, yet doesnt show specific acts.
c. Rule of Law: (1) A claim upon which relief may be granted is a short and plain
statement of the claim showing that the pleader is entitled to relief; (2) a party is
not entitled to a more definite statement unless the facts are necessary for the
party to form his response to the pleading
d. Issue: whether a party states a claim upon which relief may be granted if he
states that the defendant negligently operated a truck, causing plaintiffs injuries.
e. Holding Yes. Under FRCP 8, only a short & plain statement of the claim
showing that the pleader is entitled to relief is required. Bells statement satisfies
this standard. Novick isnt entitled to a more definite statement, discovery will
clear up most matters. MTD is denied.

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Pleadings: (Lesson 3)
Amending Complaint
Joinder of parties
Rule 15(a)(2) A party may amend its pleading if:
-Other party consents
-Courts leave
-Court should freely give leave when justice so requires
Rule 20(a)(2)(A)- Provides that all persons may be joined in one action
as defendants if there is asserted against them any right to relief
arising out of the same transaction, occurrence, or series of
transactions or occurrences.

Larson v. American Family Mutual Ins. Co.

a. Larson (P) sues American (D) for failure to pay a house fire claim. P learns that
his attorney didnt pursue claim b/c wants to represent D in other matters, retains
another lawyer who sued in state court.
a. American granted removal to Federal court based on diversity
jurisdiction.
i. P amends complaint to include initial attorney as D, which
destroys diversity forcing remand to state court.
1. American argued under Rule 20(a) new claims didnt
arise out of the same transactions/occurrences, shouldnt
be allowed.
b. Rule of law: all persons may be joined in one action as defendants if there is
asserted against them any claim arising out of the same transaction, occurrence,
or series of transactions/occurrences
c. Issue: may all persons be joined in one action as defendants if there is asserted
against them any claim arising out of the same transaction, occurrence, or series
of transactions/occurrences?
d. Holding: Yes. Adding initial attorney as D, to the suit against American is
allowed under RULE 20(a) provides that all persons may be joined in one action
as defendants if there is asserted against them any claim arising out of the same
transaction, occurrence, or series of transactions or occurrences.
USC 1447 (e) states that if after joinder, SMJ is destroyed, and action to
remand is permissible. Case is remanded to state court for proceedings.

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Discovery: (Lesson 3)
Factual Development
Questions of jurisdiction, pleading, parties arise during pleading stage.
o Discovery occurs after and is the cooperation of parties in unearthing of facts
Rule 26(a)(1) - During discovery both parties must provide relevant info to each
other, such as:
a. Names of witnesses, existence of documents, bases for damages,
interrogations, depositions, physical/mental exams
a. Must be relevant to claim/defense.
i. Even if relevant, requested info may be protected if
privileged.
b. If relevant & unprivileged, information may be undiscoverable
if party can convince court that its potential for annoyance,
embarrassment, oppression, or undue burden/expense outweighs
evidentiary value Rule 26 (c).

Butler v. Rigsby
a. Facts: Butler & 3 other Ps sued Rigsby (D) for injuries sustained in car accident.
Ps request health care records from AMG and MHC.
b. PH: P request health care records from AMG and MHC
a. AMG/MHC moved for an order protecting info from discovery by
Rigsby.
i. Court denied motions. AMG/MHC appealed

c. Rule of Law: Scope of discovery includes any matter, not privileged, that is
relevant to the subject matter involved in the pending action or is reasonably
calculated to lead to the discovery of admissible evidence.
d. Issue: whether any of the following are discoverable:
a. (1) Evidence of a relationship between expert witness and attorney;
i. Yes, discoverable, relevant to show possible bias
b. (2) Is evidence of income from litigation,
i. Yes, discoverable. Relevant to show bias or financial interest.
c. (3) Are patient records are discoverable.
i. No. Lists of patients not discoverable, confidential
communications between facilities and patients, therefore not
subject to discovery
e. Holding: Decision of lower court is affirmed and reversed in part on the above
basis.

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Pretrial Disposition: (Lesson 4)

Summary Judgment
Mechanism for deciding which cases going to trial would be unnecessary and would
serve no purpose. Can be right after pleadings + discovery
Rule 56(a) - grant summary judgment when there is no genuine dispute as to any
material fact.
-And only after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of
an element essential to that partys case, and on which that party will
bear the burden of proof at trial
Rule 56(d)(2) - states decision on motion for summary judgment must wait until
after opposing party completes discovery

Houchens v. American Home Assurance Co.

a. Facts: Ps husband disappears in Thailand. P brings suit against American
Assurance (d) to recover on occupational accidental injury/death insurance
policies issued to her husband. D refuses to pay b/c no evidence that Ps husband
died due to accident, and both policies require accidental death for relief.
b. PH: D moves for SJ, stating there was no genuine issue of material fact, there4
entitled to sum judge.
a. Court granted SJ motion
i. P appeals.
c. Rule of Law: Summary judgment is granted, after adequate time for discovery,
against a party who fails to make a showing sufficient to establish the existence
of an element essential to that partys case and on which that party will bear the
of proof at trial.
d. Issue: whether summary judgment on an insurance claim for accidental death is
appropriate when the insured has disappeared and there is no evidence that he
died.
e. Holding: No
a. Houchens has the BOP in proving her husbands death was accidental.
There is an unresolved issue of material fact (his death being accidental),

and when this happens evidence should be viewed in light most

favorable to opposing party. Her husband could have died in many ways.
Grant of summary judgment is affirmed.

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Trial: (Lesson 4)
Trials dont occur often; most suits are settled prior to reaching trial. But if it does reach
trial, the FRCP does consist of pattern of symmetrical opportunities for parties to present
their cases.
-Jury is trier of fact
-Judge is trier of law
RULE 50 - JMOL - Directed Verdict: exercise of judicial power b4 case is given to
the jury. Evidence of P is not sufficient, AFTER P has stated fully case. Jury cant
do anything b/c not enough evidence to make reasonable decision.
a. Must be put on court record so JNOV motion can be made
b. Ds lawyer should always make DV motion
o Judgment Not WithstandingVerdict(JNOV):describespostverdict
reversalofjurysdecision.IdenticaltoDV,exceptonlylateron.Didnt
allowDV,sonowaskforJNOV
o Isatypeofjudgmentasamatteroflaw(JMOL)thatisorderedatthe

conclusionofajurytrial

a. Judgerulesoverjury.LOSERofjuryverdictmakesthemotion
a. Judgefeelsjurydidnthavesufficient evidence to find there was
an inherent defect (Norton v. Snapper)
Summary Judgment v. DV:
o Under SJ, there is nothing to go to trial, want judgment b4 jury is picked;
there isnt any conflicting evidence that a trial could resolve.
o Under DV, elements of evidence not satisfied b4 defense presents. Only one
way jury could decide.

Summary Judgment b4 trial JMOL/DV after Plaintiff

has fully stated case JNOV after verdict.
o DV pre-jury, JNOV post-jury

- Norton v. Snapper Power Equipment:

a. Facts: Norton (P) operating a Snapper lawnmower and Ps hand was severely
injured in the lawnmower blade. P sued Snapper Power Equip (D).
b. PH: D moved for DV. DV denied, jury gets case,
a. Issues verdict in favor of P,
i. Judge enters JNOV, concluding jury couldnt have found mower
defective. JNOV prevents whole new trial, judge continued trial
to prevent this.
c. Rule: When considering entering JNOV, court should consider the evidence in
the light most favorable to the non-moving party and grant the judgment only

where the evidence so strongly and so favorably points in favor of the moving
party that reasonable people couldnt arrive at a contrary verdict.
d. Issue: whether JNOV is appropriate where court would have weighed the
evidence differently.
e. Holding: No. Norton offered proof that mower was defective due to lack of dead
man device. Jury couldve reasonably found the mower defective on these bases.
Jury could make its own inferences regardless of whether trial judge may have
weighed evidence differently. Jury was correct, JNOV is reversed.

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Former Adjudication: (Lesson 5)

Res Judicata- first claim precedes the 2nd. Has already been decided (double jep)
Claim Preclusion: claim can be taken to conclusion only once
a. Everything P did/claims is precluded and could have asked for are precluded.
1st claim is res judicata to the 2nd. Forbids party from relitigating a claim that
should have been raised in former litigation
b. Usually defendant claims (cant come after me again, you had your shot!)
Issue Preclusion: collateral estoppel. When you have a judgment, a party cant
bring an issue that has been settled.
a. Precluded from litigating all issues again in another claim.
b. Issue of fact or law is actually litigated and determined by a valid judgment
such that the determination is conclusive in a subsequent action b/w parties,
whether on the same or diff claims.
c. Issue cant be argued in court because its already been decided, must have
been FINAL, LITIGATED AND RESOLVED, ESSENTIAL TO PRIOR
JUDGMENT. (P says dont relitigate its already been concluded give me $)
USUALLY P!!!

Rush v. City of Maple Heights:

a. Facts: Rush (p) gets injured/damages motorcycle due to pothole.
b. P sues City (d) for negligence in not repairing road. Municipal court awarded
damages $100 for motorcycle to Rush.
a. State court of Appeals & State supreme affirmed.
i. P commenced a new action to recover damages for injuries from
same accident. D argues Claim Preclusion (res judicata), claim
for this incident has already been filed and concluded w/ verdict.
P argues Issue Preclusion (collateral estoppel). Trial court
enforced the previous judgment awarding Rush 12000$
c. Rule: where a person suffers both personal injuries and property damage as a
result of the same wrongful act, only a single cause of action arises
d. Issue: whether a person suffers both personal injuries and property damage as a
result of the same wrongful at, does only a single cause of action arise?
e. Holding: Yes. Where an injury to both property and person is suffered by the
same person as a result of the same wrongful act, majority rule is that only one
cause of action arises.
a. Logic of rule is to prevent multiplicity of suits, burdensome
expense, delays to P, and vexatious litigation against defendants.
If P fails to sue for all damages done to him, a 2nd action for
damages omitted in the 1st action will be precluded by judgment

in the 1st. (1 bite at the apple) Decision for court of appeals is

reversed and judgment entered for city.

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Appeals: (Lesson 5)
Cannot appeal a non-final (interlocutory) decision. Must be final judgment
Final Judgment Interlocutory A non-final decision that can not be appealed unless disobedience
results in an order that criminally punishes for contempt may a party have an
interlocutory order appealed b4 the court issues final judgment on a case

Apex Hosiery Co v. Leader:

a. Facts: Apex (d) was sued under Sherman Antitrust Act. Leader (p) requires an
order for discovery, court granted order, D appeals.
b. Rule: An order for the discovery and production of document by the P for use at
trial, is interlocutory and generally appeals arent permitted because it was not a
final judgment.
c. Issue: Whether a party can appeal an order for discovery and production of
documents.
d. Holding: No.
a. Only where disobedience results in an order that criminally punishes for
contempt may a party have an interlocutory order appealed b4 the court
issues final judgment on a case. This motion resembles the type made b4
or during trial to suppress evidence, and orders made upon such motions
are interlocutory. In Apex, the motion is not subject to appeal b4 the final
judgment, and is denied.

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Remedies: (Lesson 6)
Substitutionary Remedies
Substitutionary Damages: most remedies fall under this category, money damages
a. Seeks to provide P with a reasonable substitute.
b. Specific remedies seek to restore directly & specifically that which the
defendant has taken from the plaintiff.
Compensatory damages: economic damages to make injured party whole
a. Economic harms: Wages, damages, medical expenses
b. Non economic harms: pain & suffering, harm to r/s, humiliation, reputation
c. Rule of thumb: 3 times the amount of economic damages for pain and
suffering
Liquidated Damages: amount agreed upon ahead of time
a. If one of the parties beaches K, you have already agreed to liquidated
damages

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Punitive Damages: meant to punish

a. Provide exception to general rule that damages serve only to compensate the
injured party.
b. Aimed at deterrence and retribution

State Farm Mutual Automobile Insurance Co. v. Campbell:

a. Facts: Campbell (p) was driving and attempted to pass 5 vans traveling ahead on
a 2 lane highway. Ospital was driving a car approaching them. To avoid a headon collision, Ospital swerved into shoulder, was killed. State Farm (Ps
insurance) took case to trial assuring Campbells that their assets were safe and
State Farm would represent them. P sought another counsel to bring bad faith
action against SF
a. jury awarded $185k in punitive damages,
i. but TC reduced the awarded amount. Both parties appealed, Utah
SC reinstated the original amount.
1. US SC granted certiorari
b. Rule: Awards of punitive damages by state courts that exceed a single-digit ratio
between punitive damages and compensatory damages are usually grossly
excessive and violate the Due Process Clause of the 14 th Amendment. Damages
must be reasonable and the multiplier used must be a single digit ratio (1-9
times the compensatory damages).
c. Issue: Whether an award by a state court of $145 million in punitive damages,
where full compensatory damages are $1 million, is excessive and in violation of
the DPC of the 14th amendment.
d. Holding: Yes. Compensatory damages are awarded for actual losses suffered by
plaintiffs, while punitive damages serve to punish acts and deter repetition.
e. 3 factors determine whether punitive damages are grossly excessive:
1. Degree of reprehensibility of Ds misconduct.
2. The disparity between the actual or potential harm suffered by the plaintiff and
the punitive damages award.
3. The difference between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases. Damages must be
reasonable and the multiplier used must be a single digit ratio (1-9 times the
compensatory damages). The decision of the lower courts is reversed and
remanded for a proper recalculation of the punitive damages award.

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Remedies: (Lesson 6)
Specific Remedies
Specific Remedies: Courts may order parties to do things or refrain from doing them.
-When money simply isnt enough.
Replevin- Recapturing property.
-Replevin statutes lay down framework for a merchant to take back unpaid
goods. Act first, trial later. (Fuentes)

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Injunctions- Court orders directed to parties, commanding them to do or stop

doing an act. Filing injunction addresses what side of relief you are on, equity not
suing for damages but for action,
o Equity judge allows appeal b4 the final decision.
Provisional Remedies Court orders entered prior to trial, in order to
protect the rights of the plaintiff from irreparable injury during the
pendency of the action.
a. Preliminary injunction, rush job, done in few week
i. If disobeyed, court can charge violator with contempt
b. TRO temporary restraining order (done now). Seizure without a
hearing. Can be issued ex parte (w/o presence or knowledge of other
party). Occurs in situations with little time (Bulldozer about to tear
down building)
c. Declaratory relief: plaintiff seeking declaratory judgment isnt
asking for damages or injunctive relief, just for the court to set forth
legal rights under the circumstances (Proverbial Anvil waiting to be
dropped on head)
(ONLY EQUITABLE RELIEF)
a. Because clause: we give x amount of money because
b. Sets forth each parties legal rights, legal position.
c. Case or controversy required
Order of issuance by court: TRO --Preliminary Injunction -- Declatory injunction

- Sigma Chemical Co. v. Harris:

a. Facts: Harris (d), works for Sigma (p). D signed agreement that wouldnt work
for competitor for 2 years after leaving Sigma, and wouldnt disclose any
information from Sigma. While working, accepted position with competitor, and
lied to Sigma. D also disclosed confidential info after resignation.
b. PH: P sought injunction against D, prohibiting him from working at his new job.
c. Rule: Permanent injunctive relief is appropriate where the plaintiff is being
threatened by some injury for which he has no adequate legal remedy.
d. Issue: whether an employer is entitled to a permanent injunction against a former
employee when the employee violates an agreement not to work for the
employers competitors.
e. Holding: Yes. Court must balance the interest of both parties when weighing
injunctive relief (harm to P v. harm to D). Under 2942 at 366-67 Fed Practice
and Procedure Civil, main prerequisite to obtaining injunctive relief is finding
that a plaintiff is being threatened by some injury for which he has no adequate
legal remedy. Permanent injunction is entered against Harris, prohibiting him
from working for Sigmas competitor.

Common Law Actions v. Equity Actions:

-

Common law:
a. common law issues, award damages, juries, if you dont follow ruling you will
not go to jail, damages enforced through collection methods. For Breach.
Courts of Equity:
a. No jury, no damages, award is an ordered action, if you dont follow you will go
to jail.
-Specific Relief (Performance), right the wrong

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-Courts must weigh potential or actual harm done to each side

Coke-Ellesmere dispute truce between court of law and court of equity
-Court of equity defers to court of law
-In order to be entitled to equitable remedy, P must show that legal remedy
would be inadequate and some injustice would exist by not granting.

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Remedies: (Lesson 7)
Fee Shifting

American rule: Each party pays own fees. Encourages strong but low damage cases.
Discourages high-cost law reform suits
English Rule: loser pays the fees of both parties. Encourages law reform suits.
Discourages meritorious low damage suits.
Insurance: Pay damages up to policy limit, and provide lawyer to defend claim.
Insurer has power to settle a claim w/in policy limits
o Contingency Fee: pay lawyer with part of the damages, usually 1/3rd
a. idea is that you win enough of these cases to make up the ones you lose
b. payment is promise, lawyers cant lend $ to clients (ethical rule)
Pro Bono Representation: for free
o 18b Panel Panel of Criminal Defense attorneys in NYC for indigent clients
Low Bono: Little money
Legal Aid: funded by state providing representation to a huge scope, but they are
swamped.
Alternative Litigation Finance (3rd party finance, ex: contingent fee)
a. Consumer lending lends directly to clients, giving immediate cash in form of
loan that will not be collected if the borrower doesnt collect a judgment. Total
repayment will never exceed amount collected from judgment
b. Lawyer Lending group lends to lawyers, never clients. (pay bills until $ comes,
or use $ to invest deeper into cases)
c. Direct Investment in Commercial claims high profile clients & cases
d. Public Subsidies amounts necessary to maintain the judicial establishment.
Fee Spreading to Fee Shifting:
The Common Fund:
a. Requires that plaintiffs efforts create some fund from which the lawyers
fees can be deducted.
Class Action Lawsuit: Prevailing lawyer can motion for litigation costs.
Contract: if litigation over the contract arises the loser will pay the winners legal
fees.
Common Law: one side may pay the others legal fee when a plaintiff has
groundlessly brought a suit
By Statute: Federal & state statutes shift attorneys fees. Court has the discretion to
award prevailing party fees.

Evans v. Jeff D:

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a. Facts: Jeff D (P) represents emotionally/mentally handicapped children, sued

Evans (D) governor of Idaho, seeking injunctive relief to improve the treatment
of institutionalized class members. The representation agreement b/w the class
and the classs attorney (legal aid), contained no provision regarding attorneys
fees. Idaho brought settlement, granting injunctive relief, but excluding attorneys
fees.
a. DC approved, Idaho Legal Aid society, appealed.
i. Court of Appeals affirmed,
1. Legal Aid society petitioned US SC for certiorari
b. Rule: Courts should approve the terms of any settlement of a class action
including the waiver of attorneys fees. Can waive attorneys fees as long as it
was not coercive.
c. Issue: Whether attorneys fees must be assessed when the case has been settled
by a consent decree (wanting prospective relief to the plaintiff claim, but
providing that the defendants shall not pay any part of the prevailing partys fees
or costs. (whether court should have rejected settlement b/c it excluded statutorily
authorized attorneys fees: Fees Act 1976 federal)
a. Consent Decree - order by judge/court so ordering the settlement or
agreed upon fact or deal in the claim) Nobody admits guilt but a solution
is struck that the court okays.
d. Holding: No. The relevant statute doesnt ban fee waivers offered in connection
with substantial relief on the merits. Instead, the fees act makes the prevailing
party eligible for an award of attorneys fees; it doesnt prevent the prevailing
party from waiving the right to attorneys fees. FRCP 23(e) requires a court to
approve the terms of any settlement of a class action, and the settlement here is
fair to the class members. Lawyers duty is to serve client and accept best possible
result for client. DC approval of the settlement that waived attorneys fees is
proper and is upheld.
Buckhannon Board and Care Home Inc v. West Virginia Dept of Health/Human Resources
a. Facts: Buckhannon (p) failed inspection by WV office of state fire marshal, bc
some of residents were incapable of self preservation under state law.
b. PH: P sues West Virginia, 2 of its agencies, & 18 individuals (d). P sought
declaratory and injunctive relief, claiming the self-preservation requirement
violated the FHAA & ADA.
a. After suit filed, WV eliminated the self-preservation requirement, Ds
moved to dismiss on the ground that the case was moot. DC granted the
motion.
i. Ps sought attorneys fees as prevailing party pursuant to
FHAA/ADA. DC denied motion, court of appeals affirmed. US
SC granted certiorari
c. Rule: A number of federal statutes, including the FHAA and ADA, authorize
courts to pay attorneys fees and costs to the prevailing party.
d. Issue: Is a party that failed to secure a judgment on the merits or a court-ordered
consent decree, but nonetheless achieved the desired result bc the defendant
voluntarily changed its conduct as a result of the lawsuit, the prevailing party for
the purposes of a federal statutes authorizing courts to award attorneys fees and
costs to the prevailing party.
e. Holding: No. Many fed statutes such as FHAA/ADA authorize courts to pay
attorneys fees and costs to prevailing party. A prevailing party for these
purposes is party that has been awarded relief by the court, such as judgment
on merits or court-ordered consent decree. Under the Catalyst Theory- plaintiff

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is prevailing party if it achieves the desired result because the defendant

voluntarily changed its conduct due to lawsuit not a permissible basis for
awarding attorneys fees under statutes such as the FHAA/ADA.
a. Attorneys fees may not be awarded under statutory provision if there is
no alteration in legal relationship between parties, and here the voluntary
change in conduct brought Ps desired result, but didnt change
relationship between the parties. No fee shift, because not prevailing
party. Attorneys fees are not available to Ps under the FHAA/ADA.
b. Prevailing party got relief sought by initial claim,

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Remedies: (Lesson 8)
Temporary Remedies:
Provisional Remedies: relief pending final adjudication of the dispute, an issue so
important it must be done at the moment. All provisional remedies are examined
under Due Process Clause.
-EX: Prelim Injunction, TRO, Declaratory Relief (Know these)
-These are for when time itself (from pleading to verdict) will make the
eventual remedy meaningless because the threatened harm will already
have occurred.
-Temporary order holds things in place while the court decides
what final relief is appropriate.
Rule 64 - Seizing a person or property (arrest; attachment; garnishment;
replevin, etc.)
Rule 65 Preliminary injunctions and Restraining Orders

Winter v. Natural Resources Defense Council Inc:

a. Facts: NRDC (p) filed suit against Winter (d) alleging that Navys use of MFA
sonar used 4 sailor training exercises, harmed marine life, violating federal laws.
Ps argue that D shouldve prepared environmental impact statement prior to
using the sonar.
a. DC agreed granting Ps motion for a preliminary injunction, prohibiting
Navy from using MFA sonar.
i. D appealed. Court of appeals affirmed and the US SC granted
certiorari.
b. Rule: In awarding injunctive relief, a court must balance the competing claims of
injury and must consider the effect the requested relief will have on each party.
c. Issue: In awarding injunctive relief, must a court balance the competing claims
of injury and consider the effect the requested relief will have on each party?
d. Holding: Yes. Navy argues there is no evidence that MFA sonar harms marine
life. Court of appeals agreed, noting that the record contains no evidence of harm.
DC found that Ps successfully established a possibility of irreparable harm, D
claims its not enough, must establish a likelihood of harm to obtain injunctive
relief. Court agrees. Issuing injunction on possibility of harm is inconsistent with
Courts view that injunctive relief is extraordinary remedy awarded upon clear
showing that Ps entitled to relief. Even if P shows irreparable injury, injury is

15

outweighed by the public interest and the Navys interest in effective training of
sailors. When exercising discretion, courts of equity must pay attention for public
consequences in employing injunction. Judgment of court of appeals is reversed
and prelim injunction is vacated. Public Interest always trumps other side.
e. For a preliminary injunction P must establish:
a. (1) They were likely to succeed on merits
b. (2) They would suffer irreparable harm if injunctive relief were not
granted
c. (3) The balance of equity tips in their favor
d. (4) Injunction is in publics best interest.
i. Public interest always trumps other side

Due Process Issues under Rules 64 & 65

Fuentes v. Shevin:
a. Facts: Fuentes (p) purchased gas stove/phonograph from Firestone represented
by Shevin (d). Contract stated that Firestone retained title, but Fuentes possess
property until default on payments. Firestone brought repossession action in state
court due to Fuentes failing to make payments.
a. Firestone obtained writ of Replevin (Under Rule 64),
i. sheriff seizes both stove/phonograph from Fuentes home, even
though Fuentes hadnt received the summons to answer the
complaint, having no notice of the writ. Florida statute @ issue
makes no requirement of the applicant to make a convincing
showing prior to seizure of goods.
1. US SC granted certiorari on the 14th amendment issues.
b. Rule: parties whose rights are to be affected are entitled to be heard, and in order
that they may enjoy that right, they must 1st be notified.
c. Issue: Whether a state may seize property pursuant to a write of replevin w/o
giving the affected party notice & an opportunity to be heard
d. Holding: No. Under 14th amendment Due Process Clause, parties whose
rights are to be affected are entitled to be heard, and must be notified to
enjoy that right. Notice & opportunity to be heard must be granted at a
meaningful time in meaningful manner. Any taking by the state of personal
property requires this due process. Fuentes property was repossessed w/o any
opportunity to be heard. Theres no public policy justifying taking w/o due
process. The statute authorizing issuance of writ of replevin conflicts with the
14th amendment due process requirement. Judgment of lower court is vacated &
remanded.

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Pleadings: (Lesson 9)
Function of Pleading
Rule 7(a) defines the term pleading to include the complaint, the answer, and some
other initial papers in a lawsuit

16

Rule 7(b) distinguishes between pleadings and motions (any request for a court
order)
See Rule 8 Generally
For the plaintiff, pleading is particularly important because some factual
allegations in the complaint has to match each element in the statute creating the
claim.
-For the defendant it matters because if the allegations in the complaint do not
track the statute, then the complaint fails to state a claim on which relief can be
granted and will be dismissed via a 12(b)(6) motion.

Haddle v. Garrison: 1996 (Ct. of Appeals)

a. Facts: Haddle (p) at will employee at Healthmaster Home Health care sued
former employee Garrison (d) an officer of Healthmaster, alleging he was
wrongfully terminated to discourage his participation as a witness in a criminal
trial.
a. D move to dismiss for failure to state a claim upon which relief can be
granted (he was only a voluntary employee not actual).
i. Motion granted, P appealed.
b. Rule: A court should dismiss a claim for failure to state a claim upon which
relief can be granted if the defendant can prove no set of facts in support of
Ps claim would entitle him to relief
c. Issue: whether a claim by an at will employee brought under a statute requiring
actual injury to the employee should be dismissed for failure to state a claim
upon which relief could be granted
d. Holding: Yes. Under FRCP 12(b)(6) D may move to dismiss complaint if P fails
to state claim for relief. P brought suit under 42 USC 1985(2), which offers
relief only to party who suffered actual injury, also precluding at will employees.
Lower court decision to grant motion to dismiss is upheld for failure to state
claim upon which relief could be granted

- Haddle v. Garrison: 1998 (SCOTUS)

a. D motion granted, P appeal, loses, US SC granted certiorari
b. Rule: same as b4
c. Issue: Whether an at will employee who is wrongfully terminated as part of a
conspiracy to deter him from testifying against the employer suffers actual injury
w/in the meaning (all elements met) of 42 USC 1985 (2)
d. Holding: Yes. Certiorari was granted to resolve a circuit split over whether at will
employee suffers an actual injury w/in the meaning of the statute. P did suffer an
actual injury, due to being terminated as part of conspiracy to prevent testifying.
Statute doesnt require only property interest injury. Employee who is wrongfully
fired as part of conspiracy to intimidate him does suffer an injury to his person or
property, regardless of whether he is at will employee (set of facts existed that
could support his claim that entitled him to relief, therefore the 12(b)(6)
motion should not have been granted). The dismissal by 11th circuit is reversed,
remanded for further proceedings.

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17

Pleadings: (Lesson 10)

Notice Pleading, Youre Out! Fact Pleading, Youre In!
NoticepleadingNoticepleadingreferstoasystemofpleadingrequirementsthatonly
emphasizespleadingsasawaytonotifypartiesofgeneralissuesinacase.Thisallowsparties
draftingpleadingstostatetheirclaimsingeneraltermswithoutallegingdetailedfactstosupport
eachclaimandwithoutworryingabouthypertechnicaldetails
Rule8(a)statesthatallneedatpleadingstageisnotice
Shortandplainstatementoftheclaim
Flushingoutofdetailscomesindiscoverystage
NoSetofFactsstandardfromConleyv.GibsonCourtshouldnotbe dismissedby
motionunless:theacceptedrulethatacomplaintshouldnot bedismissedforfailuretostate
aclaimunlessit
appearsbeyonddoubtthattheplaintiffcanprove.nosetoffacts
canbefoundto
supportthe claimwhichwouldentitlehimtorelief.
StandardforquestionsregardingmotionstodismissunderRule8(a)
untilIqbal&Twomblycamealong.

BellAtlanticv.Twombly

a. Facts:Twombly(p)issuedcomplaintallegingthatBell(d)violatedtheSherman
ActSection1,whichprohibitsconspiracyforthepurposesofrestrainingtrade.
ComplaintallegedthatDconspiredwtelephonecompaniestoallowlocalphone
companiestohavedominanceoverspecificmarket.
b. PH:InDC,Dmovedtodismissunder12(b)(6).Motiongranted.UScourtof
appeals2ndcirc,overturneddismissal.SCOTUSgrantswritofcertiorari..
c. Rule:Tostateaclaimunder1oftheShermanAct,thecomplaintmustcontain
enoughfactualmaterialtosuggestthatanagreementexistedbtwnthedefendants.
d. Issue:Tostateaclaimunder1oftheShermanAct,mustthecomplaintcontain
enoughfactualmaterialtosuggestthatanagreementexistedbtwnthe
defendants?
e. Holding:Yes.Tostateaclaimunder1oftheSA,complaintmustcontain
enoughfactualmaterialtosuggestthatanagreementexistedbtwndefendants.
Thisrequirementistoprotectdefendantsfrommeritlessclaimsinwhich
Plaintiffshopetofindsomeformofevidenceduringdiscovery.(Plausabil.Std)
f. PlausibilityStandardrequiresenoughfactstoraisereasonableexceptionthat
discoverywillbringevidenceofillegalactivity.Conclusorystatementswillno
longersurvivemotiontodismiss.Complaintmustcontainenoughfactstoraise
areasonableexpectationthatthediscoveryprocesswillrevealrelevant
evidencetosupporttheclaim.Thecourtofappealsdecisionisreversedand
remandedtolowercourtfordismissal.

Ashcroftv.Iqbal

a. Facts:Iqbal(p)arrestedanddetainedduringtheinvestigationof911attacks.P
claimsthatconditionsofcustodyviolatedthe1stand5thamendmentsoftheUS
constitution,suingformerUSattorneygeneralAshcroft(d).Thecomplaint
accuseDofbeingtheprincipalarchitectintheimplementationofa

18

b.

c.

d.
e.

discriminatorypolicyconfiningindividualsinharshconditionsbasedsoleyon
religionraceornationalorigin.
PH:DclaimedqualifiedimmunityandmovedtodismissPsclaimforfailureto
stateaclaim.DCrefusedtodismisscase,andUScourtofappealsfor2 ndcirc
affirmedtherulingoninterlocutoryappeal.Dpetitioned,andUSSCgranted
certiorari
Rule:UnderBellAtlanticCorpv.Twombly,acomplaintwillonlysurvivea
motiontodismissifitallegesnonconclusoryfacts(itmeetsplausibility
standard),thattakenastrueNOWALSOMUSTSTATEACLAIMTO
RELIEFTHATISPLAUSIBLEONITSFACE
a. (FACIALPLAUSABILITYSTANDARD)stateaclaimtoreliefthat
isplausibleonitsfaceMeansthatthefactsallegedpermitareasonable
inferencethatthedefendantisinfactliable.Plausibilitydetermination
islefttothejudgmentoftrialcourt.
Issue:UnderTwombly,willacomplainttosurviveaMTDifthefactsalleged
areconclusoryinnature?
Holding:No.UnderTwombly,acomplaintmustallegesufficientfacts,thatif
takenastrue,stateaclaimtoreliefthatisplausibleonitsfaceinordertodefeata
motiontodismiss(plausibilitystandard).ThechargesagainstDdonotplausibly
indicateanythingmorethanapolicyofkeepingindividualssuspectedof
terrorismundertightsecuritywhilependingfullinvestigation.BcPhasntmade
therequiredshowingofplausibilityonitsface,thecomplaintdoesntstatea
claimagainstD.PfailedtoassertaplausiblecasetoassertthatDsqualified
immunityshouldbepierced.Therulingofthecourtofappealsisreversed,and
thematterisremandedforconsiderationofwhetherPshouldbepermittedto
amendthecomplaint.

To survive a 12(b)(6) motion, a complaint must contain sufficient

factual matter, which when accepted as true, states a claim to relief
that is plausible on its face.
TWOMBLY & IQBAL 8(a) INTERPRETATION

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Pleadings: (Lesson 11)

Pleading Special Matters under Rule 9

are

Some cases require extra specificity or forbid it within pleadings:

-Drafters carved out some areas where a rule requires more detail, and statutes
have sometimes either required extra specificity or forbidden it. These
known as special cases.
Rule 9(b) Special pleading requirements for Fraud or Mistake; Conditions of the mind
Rule 15(a)(1)(a) Can amend pleading for a period of 21 days (21 day safe harbor
rule)

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Rule 15(a)(2) Can amend only with other partys consent or the courts leave.
-Court can freely grant leave when justice so requires.

Stradford v. Zurich:
1. Stradford (p) was a dentist whose office was insured by Zurich (d). In 1999 P failed to
pay his premiums, and D cancelled the policy. D reinstated the policy once P started
paying again. 10 days later, P submitted claims for water damage for $151k. After D
made payment to P on these claims, P submitted revised claim identifying total property
damages of $1.39 million & business interruption costs of $168k. When P sued for
payment under the policy, D counterclaimed alleging fraud.
2. Rule: In alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake under FRCP 9(b)
3. Issue: Whether a claim for fraud must state the time, place, and nature of the
misrepresentations?
4. Holding: Yes. FRCP 9(b) requires that the time, place, and nature of the
misrepresentations be disclosed. The counterclaim doesnt state with particularity the
grounds for fraud. DS claim that P lied, but fail to identify the lie. Which fails to afford P
fair notice of precisely which statement, or aspect of his claim they allege to be false,
therefore insufficient under Rule 9(b). D is granted lead to amend its counterclaim under
Rule 15(a)(2) when justice so requires- disclosing that the flooding occurred during a
period of insurance lapse. Summary judgment is granted for Zurich on the original claim.

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Pleadings: (Lesson 11)

Allocating the Elements of a Claim
a. Allocation of the elements of a claim is a necessary process because it determines
who has burden of proof in pleading. Which is important to know because if
burden is not met it can be dismissed.
-The one who brings the case is usually the one who has the burden of
proving and providing evidence, or risk lose the case.
FRCP Rule 8(c) Identifies a non-exhaustive list of affirmative defenses that must be
pleaded in response
FRCP Rule 9 Contains special matters with heightened sense of pleading under FRCP
- No heightened sense of pleading for 1983 actions

Jones v. Bock
a. Facts: Jones (p) brought suit against the prison in which he was held when the
staff didnt reassign him to different work after injury. P claimed that performing
his work and failure to reassign worsened his injuries. The PRLA of 1995
requires exhaustion of administrative remedies (do something else before come
here) b4 a prisoner can bring an action in federal court.
b. Rule: Exhaustion is affirmative defense that must be plead and proved by
defendant, unless otherwise stated in binding decision or statute.
c. Issue: Whether exhaustion under the PLRA is a pleading requirement the
prisoner must satisfy in his complaint?

20

d. Holding: No. The PRLA is ambiguous as to whether exhaustion is a pleading

requirement that the prisoner must satisfy in his complaint or that it is an
affirmative defense the defendant must plead and prove. Under FRCP,
exhaustion is an affirmative defense that the D must plead and prove. After
examining exhaustion pleading requirements in similar federal legislation, it
concluded there was not a heightened level of pleading for the affirmative
defense of exhaustion in employment discrimination suits under Rule 9
(Special Matters) or any other relevant legislation.

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Sanctions: (Lesson 11)

Lawyers Responsibility to Clients and the Legal
System
Rule 12(b)(1) Motion to dismiss for lack of jurisdiction
Rule 11: restricts lawyers ability to file pleading when he has no more than a hope that
favorable facts or law will emerge as case progresses. Regulates the way lawyers and
clients conduct themselves, establishing standards for investigation of law and fact.
a. Gives court power to sanction an attorney for filing a pleading that contains a
frivolous claim, a claim for the purpose of harassing the other party, or a claim
that is not supported in fact or in law

Walker v. Northwest Corp.

a. Facts: DC awarded sanctions against Massey, Walkers attorney (p) for failing to
plead complete diversity of citizenship and for actually pleading facts indicating
there was not complete diversity of citizenship btwn parties. Complaint stated P
from South Dakota, D was Minnesota Corp, and other Ds were SD corps.
b. Rule: The plaintiff bears the burden to plead the citizenship of the parties in
attempting to invoke diversity jurisdiction
c. Issue: Whether an attorney may be sanctioned under FRCP 11(b)(3) (poor
research) for pleading diversity jurisdiction but failing to identify the citizenship
of the parties.
d. Holding: Yes. The Ps have the burden to plead the citizenship of the defendants,
but they instead argue that identifying the defendants citizenship would be more
trouble than they should be expected to take. When determining whether trial
court properly ordered Rule 11 sanctions, the reviewing court looks for an
abuse of discretion. Here, the court did not abuse discretion in awarding
Rule 11 sanctions, because the P clearly had the burden of pleading the
citizenship of the parties, and declined to do so. Rule 11 sanctions against the
Ps attorney affirmed.
a. The district court is not obliged to do attorneys research for him.
why the sanctions were not an abuse of the courts discretion

21

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Sanctions Contd.: (Lesson 12)

- Christianv.MattellInc

a. Fact:AttorneyHicksbroughtsuitonbehalfofChristian(p),claimingthatMattel
Inc(d)BarbiedollscopiedChristiansClaudenedoll.DCgrantedMattelmotion
forSJandRule11sanctionsagainstHicks.TheDCfoundthatHicksshould
havediscoveredpriortofilingsuitthatMattelsdollscouldnothaveinfringed
ChristianscopyrightbcMattelldollswerecreatedearlier,Hicksalsobehaved
bad
b. Rule:Anattorneyhasadutypriortofilingacomplainttoconductareasonable
factualinvestigationandtoperformadequatelegalresearchthatconfirms
whetherthetheoreticalunderpinningsofthecomplaintarewarrantedbyexisting
laworagoodfaithargumentforanextension,modificationorreversalof
existinglaw.Rule11(b)(2)and(3)
c. Issue:WhetherFRCP11sanctionsareappropriatewheretheattorneyfilesa
frivolouscopyrightclaimandabusesthediscoveryprocess.
d. Holding:No,underRule11,attorneyhasadutypriortofilingacomplaintto
conductareasonablefactualinvestigationandtoperformadequatelegalresearch
thatconfirmswhetherthetheoreticalunderpinningsofthecomplaintare
warrantedbyexistinglaw.Claimismeritless,astheBarbiehadbeen
manufacturedpriortotheClaudenedoll,andcouldnthavebeencopiedby
Mattel.RemandedandReversedtoseeifHicksfilingofthecopyrightcomplaint
wasitselfasufficientbasisforRule11sanctions.
a. WhenawardingRule11sanctionsacourtmayonlyconsiderconduct
regardingpleadings,writtenmotions,andotherpapersthathavebeen
signedandfiledinagivencase.
b. DistrictCourtsanctionsHicksatleastinpartbecausehesigned&fileda
factuallymeritlessclaim&formisrepresentationsinbriefing,butother
examplesgivenbythecourtsuggesttheyconsideredextrapleading
conduct
c. WhynotmoveforRule12(b)(6)rightawayinsteadofbringing
SummaryJudgment?Becausethecopyrightinfringementwasa
validclaimbutitwasfalsebecausecoolblueBarbiewascopyrighted
firstthatisadenialtoputinanAnswer
d. Denialsofallegationbelonginanswer,notina12(b)(6) motion

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22

Responding to Complaint: (Lesson 13)

-

Default: defendant who fails to respond to the complaint can have a default judgment
against them. Rule 55
Pre-answer Motion: A defendant who doesnt default can proceed to answer the
complaint:
o ex: Motion for a more definite statement 12(e),
o Motion to Strike- allows party to challenge part of a pleading that fails
under the substantive law. Ex: if P sues for punitive damages, but they arent
recoverable, D files motion 2 strike,
o Motion for Judgment on the Pleadings: after answer to the complaint.
Court match up the allegations of the complaint and those of the answer and
decide whether judgment for the P should be entered on the basis of the
pleadings.

Can file these motions with answer

Answer: If D cant demur to the complaint (or 12b6), or dispose of it on any of the
grounds listed in 12b she must respond to the factual allegations, either denying them
or raising some additional matter consituting a defense.
a. Rule 8b6 any allegation that is not denied is deemed admitted.
b. Rule 8b requires the D to deny only those allegations that he actually
disputes.
a. Courts condem casual, blanket denials because they require parties to
spend needless time figuring out the real items in a dispute. A
defendant who enters such a general denial can be sanctioned under
11(b)(4)(sanctionable denials).
c. Admit, Deny, Insufficient Knowledge to form belief
Affirmative defense: I am the defendant and am not liable to you bc of this. For the
following reasons I am not liable to you, even though otherwise I would be liable. If
D proves affirmative he automatically wins, but defense goes second after P pleads
his facts.
Reply: most pleadings stop with answer (stage ends, goes to discovery) but there are
2 exceptions: (amendments & counterclaim)
a. Counterclaim Rule 7(a)(3), requires a reply if the answer contains a
counterclaim designated as a counterclaim
a.
Amendments: Discovery may cause claims and defense to change as facts unknown
at the time of pleading emerge.
RULE 15 - allows revisions of parties original stories and limits extent and
timing of such changes in the plot lines.
-Statute of limitations exists under this rule for such changes

- Zielinksi v. Philadelphia Piers

a. Facts: Zielniski (p) was operating forklift when injured by Sandy Johnson. P
sued phila piers (d) and alleged his injuries were caused by Sandy Johnsons
negligent operation of a forklift owned by Phila Piers. P sued the wrong company
and didnt know until SOL ran out. D gave general denial.
b. Rule: a general denial is ineffective if some of the claims denied are true and not
at issue.
c. Issue: Whether a D should be estopped from denying alleged facts in a complaint
if he has made an ineffective denial of those facts and knowingly allows a
plaintiff to continue to rely on them.

23

d. Holding: Yes a D who knowingly makes inaccurate statements may be estopped

from denying those statements at trial. A general denial is ineffective if some of
the claims denied are true and not at issue,
a. Phila gave general denial. Piers should have made a specific denial of the
parts of the complaint it knew to be false and should have admitted the
parts that were true. A specific denial would have warned Zielinski of
his mistake.
Rule 7(a)(3) requires a reply if the answer contains a counterclaim designated
as a counterclaim
-If the answer contains allegations that are labeled as affirmative defense,
then no reply is required even if the same facts could have supported
counterclaims.
-Lawyers should reply to all new matter to avoid a possible
inadvertent admission.
Rule 7(a)(7) Allows a judge to order a reply to an answer

Beeck v. Aquaslide N Dive Corp

a. P sued in federal court based on diversity jurisdiction, injured from waterslide
manufactured by D. D realized it didnt manufacture slide, moved to amend its
pleading to deny manufacture (after SOL had run), court granted the motion,
ordered trial on issue whether D was manufacturer. Ps claim was dismissed, P
appeal saying court abused discretion in allowing D to amend its complaint,
order trial on issue of manufacture
b. Rule: A party may amend its pleading by leave of court or written consent of the
adverse party and leave shall be given when justice so requires
c. Issue: Whether a defendant who initially admits manufacture may amend its
pleading to deny manufacture?
d. Ruling: Yes, under FRCP 15(a)(2), a party may amend his pleading only by leave
of court or written consent of the adverse party, and the court should freely grant
leave when justice so requires. Motions to amend pleadings are generally
granted unless there is BAD FAITH, UNDUE DELAY, or repeated failure to
cure deficiencies, any of which could prejudice the other party. DC found
there would be no prejudice to P, and that D had not been lacking in diligence in
its investigation to whetehr it manufactured slide. DC didnt abuse discretion to
grant motion for leave to amend, or by ordering trial on issue of manufacture, bc
judicial economy is served best by solving the narrow issue of whether D made
the slide. Judgment affirmed.
SOL and Relation Back: usually plaintiff is unable to refile its complaint against the
right defendant within the SOL, Rule 15(c) gives plaintiffs some leeway in this
respect, but not limitless flexibility. 15c allows some amended complaints to relate
back to date of the original filing. If relates back, court will treat the amended
complaint as if it had been filed at the same time of original pleading and thus within
SOL.

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24

Pleadings: (Lesson 14)

Amendments to Complaint
SOL and Relation Back to original claim

Moore v. Baker:
a. P sued D when she was left permanently disabled after D performed surgery on
her, alleging violation of informed consent law. P filed suit on last day permitted
by Georgias SOL.
a. D moved for SJ on issue of consent, pointing to a consent form P signed.
P moved to amend complaint to include allegations of negligence against
D, P appealed denial of motion by DC
b. Rule: An amendment relates back to the original filing when it asserts a
claim or defense that arose out of the conduct, transaction, or occurrence set
out in the original pleading.
a. 15[c][2] allows some amended complaints to relate back to the
date of the original filing. If they relate back, the court will treat the
amended complaint as if it had been filed at the time of the original
pleading, and thus within the SOL.
i. requires two things
1. The proposed amendment has to arise from the same
conduct, transaction or occurrence
2. DS has notice of the new claim so that its fair to their
defense
c. Issue: Whether an amendment alleging negligence in surgery relates back to an
original complaint alleging failure of informed consent?
d. Holding: No. Since P filed her original complaint on the last day permitted by
SOL, her amended complaint was time-barred unless it related back to the date of
the original complaint.
a. An amendment relates back to the original filing when it asserts a claim
or defense that arises out of the conduct, transaction, or occurrence set
out in the original pleading, so as to ensure the defendant has notice of
the new claim. Here there is nothing in the original claim that would
have given notice to D of the claim put forth in the amendment. Original
claim asserts that D inadequately informed P of alternative treatment
options prior to surgery, but AMENDED complaint alleged negligence in
the conduct of the surgery itself, involving actions that occurred at diff
times and involved distinct conduct from the acts alleged in the original
complaint. Amendment doesnt relate back to OC and judgment is
affirmed.

- Bonerb v. Richard J Caron Foundation

a. P (ny resident) fell and hurt while playing bball at PA rehab center owned by D. P
sued, alleging in OC that bball court was negligently maintained. P subsequently
moved, to amend his complaint to add a cause of action for counseling
malpractice, after PAs SOL had ran.
a. D objected on ground that the counseling malpractice claim didnt relate
back to original pleading so was barred by PA SOL.
b. Rule: A claim relates back to initial pleading when the claim asserted in the
amended pleading arose out of the same nucleus of operative facts set forth
in the original pleading.

25

c. Issue: Whether a claim for counseling malpractice relates back to an original

claim of negligence when both claims arose out of same injury to plaintiff?
d. Holding: Yes. While leave to amend a complaint should be freely given, an
amendment which seeks to add a time-barred claim should not be allowed
unless the otherwise untimely claim relates back to the date of the original
a. Different from Moore v. Baker b/c it was further from trial (still during
discovery as opposed to after discovery in Moore.)

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Discovery (LESSON 15)

a. Discovery produces info about merits of lawsuit and permits parties to make
informed judgments about the strength of their and their opponents positions.
Such info can end in either settlement or in SJ.
b. Discovery costs time and money, might enable one party simply to wear other
down, or both sides, without regards to merit of case.
-

Modern Discovery: today the rules permit parties to compel the disclosure of witnesses,
evidence, documents, and other matters before trial.
a. Both state and fed system adopted broad discovery rules that permit a lawyer to
uncover, in advance of trial, enormous amounts of information.

Relevance: to be admissible at trial, evidence must be relevant. Relevance links the

admissibility to the substantive law and to common-sense patterns of inference.
a. For a piece of info to be relevant to a legal proposition means that the info tends to
prove or disprove something the governing substantive law says matters. If it doesnt
matter, law of evidence will prevent that info from being presented at trial.
b. Relevance is relations, asks whetehr info is pertinent given the claim or defense at
issue.

Privileged not getting it

Relevant Getting it subject to the rule
Trial Courts have extraordinarily broad power to regulate discovery
Rule 37 Motion to Compel Discovery
-Plaintiffs unhappy with what they got from DS , asks the court to compel a certain
document/set of documents from DS.
26(a)(1) Required initial disclosures (readopted within the last 5 years)
-Certain things have obligation to turn over to other side without them even having to ask
for.
-Litigating in southern or eastern district of new york, subject to required initial
disclosure rules
26(b)(1) - allows the parties, without court approval, to seek discovery regarding any nonprivileged matter that is relevant to any partys claim or defense. If a party shows good cause

26

the court may grant even broader discovery of any matter relevant to the subject matter involved
in the action and is reasonably calculated to lead to the discovery of admissible evidence.

Davis v. Precoat Metals: (Quest for relevant information by P)

a. Ps sued employer alleging hostile work environment, including racial and
offensive comments by other employees and other discrimentatory work
practices.
a. P moved to compel discovery of other employees complaints of racial
and natianl origin discrimination against D at the same manufacturing
plant. D argues that Ps requests were overbroad in that they sought info
regarding all allegedly discriminatory actions by the D.
b. Rule: A platiniff alleging a racially discriminatory and hostile work environment
is entitled to discovery regarding other employees complaints of discrimination
against the defendant, so long as the plaintiffs requests seek discoverable info
and are narrowly tairlored to the specific claims of the case.
c. Issue: Is a plaintiff alleging racial discrimination and hostile work environment
entitled to discovery of complaints by other employees, if the requests seek
discoverable information and are narrowly tailored to the specific claims of the
case?
d. Holding: Yes. Ps reqests seek discoverable info and isnt overbroad. Under
FRCP 26(b)(1) court can limit discovery (regarding unprivileged and relevant
matter) if it determines that the discovery is (1) unreasonably broad,
cumulative or duplicative material; (2) material available from more
convenient and less expensive sources; or (3) material that is overly
burdensome to obtain.
a. Here, the Ps limited request to 4 year time period to complaints by
employees who worked @ the same plant as they did; and to complaints
of race and national origin discrimination which are the same types of
discrim complaints alleged in Ps complaint. IF Ps sought discov of
discrim complaints across the entire company, result might be diff.
i. Ps discov requests are narrowly tailored to specific claims of
complaint, not overboard, motion 2 compel granted!

Steffan v. Cheney: (Quest for irrelevant information by DS)

a. P was student at US Naval Academy and made statements identifying himself as
homo to a superior prior to his impending graduation. Academy recommended
him to be discharged, and P resigned. P brough suit alleging constructive
discharge and challenging the constitutionality of the regulation providing the
discharge of homos. During deposition, P refused to answer ?s of whether he had
engaged in homo conduct and refused to answer ?s unrelated to the legality of
his separation. DC dismissed Ps action for failure to comply with its discovery
order, P appealed, naming Cheney (d).
b. Rule: Judicial review of an administrative action is confined to the grounds,
which the record discloses that the action was based. (this case it was about his
discharge not
c. Issue: Whether inquiry into homosexual conduct is appropriate where the
individual was dismissed for statements identifying himself as a homo?
d. Ruling: No. P challenged the Academy boards decision to discharge him bc he
said hes a homo, alleging this was an invalid ground for discharge. P wasnt
accused of homo conduct, so inqury into homo conduct is inappropriate for

27

courts reviewing this administrative decision. P seeks for relief for invalid
separation by reinstatement, the dismissal is reversed and Ps claim is reinstated.
a. Reversed because the case never should have got to being dismissed by
trial court. Because whether or not he had homo sex is irrelevant bc the
case isnt about that and the discovery request was unreasonable
therefore failure to comply should not have gotten the case dismissed.

Duty to preserve Evidence:

-

Spoilation: discov process assumes there is info in world ready to be gathered for
use of litigation. Court finds a duty to preserve potential evidence, and imposes
sanctions for violating the duty

- Silvestri v. General Motors Corp:

a. P got serious injuries when crashed landladys car while driving drunk at high
speed. P contended that he wouldnt have been injured if airbag worked. Neither
P nor his lawyer made effort to preserve the car or to notify General motors (d)
for 3 years after the accident until P filed claim. The DC dismissed complaint on
grounds that P was responsible for the spoliation of evidence, P appealed
b. Rule: Duty to preserve material evidence extends to that period b4 the litigation
when a party reasonably should know that the evidence might be relevant to
anticipated litigation.
c. Issue: Whether a party is responsible for spoliation of evidence if he does not
give the opposing party notice and an opportunity to inspect the evidence prior to
its destruction
d. Holding: Yes. When a party should reasonably know that evidence might be
relevant to an anticipated litigation, it is the duty of the party to preserve
this material (LITIGATION HOLD). P clearly thought about litigation
following accident, and failed to give D notice of his impending claim for the 3
years prior to the time he filed suit. Car was preserved in post-accident condition
for 3 months, during which time the court found that P had duty to notify D of its
claim.
a. Dimissal of Ps claim is appropriate for his breach of duty not to spoilate
evidence. DC decision upheld!

==========================================
==========================================
====================================

Discovery; Trial Preparation Material: (LESSON

16)
Rule 26
a. Work product, trial preparation materials DOCTRINE: Conditionally bars
discovery of some information from some sources even though is relevant and not
privileged.

28

- Hickman v. Taylor:
a. Tugboat JM Taylor (d) sank while helping to tow a car belonging to Baltimore & Ohio
RR. 5 crewmembers died. D hired attorneys to prepare defenses against potential suits of
the deceased and to seek damages against RR. Fortenbaugh, one of hired attroneys,
privately interviewd 4 survivors of accident after each had testified in public hearing
about incident. F interviewd other witnesses and memorialized his findings. Of the 5
estates of the deceased, only 1 estate, Hickman (P), filed suit in fed court against tugboat
owners and RR company under the Jones Act.
a. In preparing a defense, opposing counsel asked for exact copies of all
written statements and summaries of all information taken orally.
i. F declined on the basis of priv taken in the course of preparing
for litigation.
1. The DC ordered him to comply, D appealed.
b. Rule: Opposing counsel must demonstrate necessity, justification, or undue prejudice for
access to counsels written statements, private memoranda, and personal
recollections.
c. Issue: Must opposing counsel demonstrate necessity, justification, or undue prejudice for
access to counsels written statements, private memoranda, and personal recollections?
d. Holding: Yes. Opposing counsel must demonstrate necessity, justification, or undue
prejudice for access to counsels written statements, private memoranda, and personal
recollections.
a. Proper legal preparation demands that attorneys have freedom to prepare
their legal theories free from undue interference or intrusion. If opposing
counsel had unrestricted access to the work product of counsel, attorneys
would stop memorializing their work to avoid complete exposure of their
ideas. Without written detail of the attorneys work, the quality of legal
representation would deteriorate to the detriment of the clients. Fs
interviews and statements were secured through third parties, not through
his clients. Therefore, this information is not a privileged attorney-client
communication and is not exempt from discovery demands. However,
the numerous interrogatories taken on public record and the free access
to all the witnesses relevant to the case creates doubt why these open
areas of investigation are not sufficient for opposing counsel.
i. Ps counsel admits that the request for Fs info is for the
purposes of verifying his own info. Such a reason doesnt merit
intrusion into the work product of the opposing attorney.
1. decision reversed.

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====================================

Discovery; Expert Information: (LESSON 17)

a. Experts enter litigation in 2 ways:
b. Witness Expert: experts may participate in events that give rise to litigation;
c. Retained Expert: parties lawyers hire experts to analyze the case and perhaps to testify.
(physicians, accountants, engineers)

29

a. b4 court allows hired expert testify at trial, party offering testimony must
establish that the witness is an expert and that the expertise is relevant
to contested issues. Judge must certify that expert is reliable, in the
sense that witness is drawing on testable body of knowledge and is
qualified to testify about particular dispute.
d. Expert: someone who possesses knowledge and mthods beyond the experience of most,
including most lawyers.
a. Experts must produce some form of initial written report describing
their conclusions about the case at issue; and after such report is
available, the experts submit to a deposition.
i. See below : Rule 26(a)(2), (b)(4)
e. Rule 26(a)(2)(D)
a. requires 90 days b4 trial, or 30 days for rebuttal testimony, parties
identify experts who may testify.
f.

Rule 26(a)(2) divides experts into 2 groups:

o (26(a)(2)(B) - experts who must provide an elaborate written report(those
who hired especialy for lawsuit, not fact)
o (26)(a)(2)(C) - those who need not provide the elaborate written report (Fact
Witness Experts)
a. Rule 26(a)(2)(C) requires that as part of the pretrial disclosures, even
fact witness experts summarize facts and opinions to which they
testify.
g. Rule 26(b)(4) also addresses work product problems surrounding experts, focusing on
retained experts and their communications w lawyers as they prepared their reports and
testimony. Expert testimony, like work product, gets qualified protection: unlike
privilege, it can be discovered under some circumstances, if a party makes the requisite
showing of special cirucmstances and need.( Facts or opinions held by an expert retained
in anticipation of litigation may be discovered on showing exceptional circumstances for
the party to obtain the facts or opiions on the same subject by other means.)
-

Thompson v. The Haskell Co:

a. P sued d for sexual harassment, alleging that the harassment reduced her to a depressed
emotional state.
a. P stated that FRCP 26(b)(4) protected certain documents from discov. P
wished to shield a report prepared for her prior counsel by Dr. Lucas,
who performed a diagnostic review & personality profile. P contended
these docs were facts and opinions held by an expert witness she had
retained in anticipation of litigation and not expected to be called at trial
that were excluded by 26b4
b. Rule: Facts or opinions held by an expert retained in anticipation of litigation may be
discovered on showing exceptional circumstances for the party to obtain the facts or
opiions on the same subject by other means.
c. Issue: Whether a diagnostic review and personality profile are discoverable in a sexual
harassment case?
d. Holding: Yes. Rule 26(b)(4) permits for the discovery of facts or opinions by an expert in
the employ of a party in trial preparation upon a showing of special circumstances
whereby it is impracticable for these facts or opinions to be obtained by other means .
a. P alleged she was severely depressed as result of alleged harassment.
The examination was highly probative of that allegation, and the report
was accordingly essential to the case. No other report was prepared by
any other party on Ps emotional state. Hence, the D coldnt have

30

obtained the info on Ps emotional state at the time of the alleged

harassment by any other means. The docs at issue are therefore
discoverable.

- Chiquita International Ltd. V. M/V Bolero Reefer

a. P hired D to ship bananas. P alleged that due to malfunctions of the ships loading cranes
the entire shipment wasnt loaded and the cargo left behind was disposed of. At Ps
request, Winer, a marine surveyor, examined the ship and the loading gear after the ship
arrived at its destination.
a. P sued D for loss of the cargo, and D sought discovery of Winer
(depose).
i. P objected on the ground that W was a non-testifying expert.
b. Rule: 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 preparation
for trial and who is not expected to be called as a witness at trial, except upon a showing
of exceptional circumstances under which it is impracticable for the party seeking
discovery to obtain facts or opinions on the same subject by other means.
c. Issue: Whether a party may discover facts known or opinions held by a marine surveyor
hired by the other party to investigate cargo loss?
d. Holding: No. Under FRCP 26(b)(4)(B), a party ordinarily 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 and who is not expected to be
called as a witness at trial.
a. W clearly satisfied this standard, he was hired by P for specific purpose
of examining ship in connection w cargo loss. Under rule, discov of such
experts is permissible where there are exceptional circumstances making
it impratiable for the party to obtain facts or opinions on the same subject
by other means.
i. D could have sent his own expert to examine ship, and
shouldnt be rewarded by a grant of discovery of Ps expert
bc of failure to do so. Although deposition of W is denied, W is
ordered to produce his file, as the info therein is not protected by
discovery simply bc it is conveyed to a non-testifying expert.

Discovery and Privacy:

a. To any discovery disclosure, one may ask whether the gain in relevant info offsets the
embarrassment, pain, and possible consequences of revealing tangentially relevant info.
System seeks to shield parties from such excessive discovery.
b. Rule 26(g) - forbidding abusive discovery (general rules)
c. Rule 26(c) - permits a party to seek a protective order and gives the judge broad power
to prevent abusive discovery
d. Rule 35 - places special limits on the use of discovery to compel physical or mental
examinations.
e. Rule 26(c)(1) - provides the court may for good cause issue an order to protect a party or
person from annoyance, embarrasement, oppression, or undue burden or expense.
-

Stalnaker v. Kmart:
a. P sued D alleging sexual harassment by employee Graves. P sought to depose several
witnesses concerning voluntary romantic conduct or sexually-related activities. D

31

b.
c.
d.

e.

countered that none of the witnesses had sexual involvement with P and that any
voluntary romantic activities on their part were irrelevant.
a. D sought an order (Rule 26 (c)) from court protecting its employees from
giving depositions that D alleged would cause them embarrassment and
humiliation.
Rule: A court may order a protective order upon a showing of good cause to protect a
person from annoyance, embarrassment, oppression, or undue burden or expense, if the
inquiry is into areas clearly outside the scope of appropriate discovery.
Issue: Whether sexual activities between witnesses and other non-parties are within the
scope of an appropriate protective order in a sexual harassment suit.
Ruling: Yes. Under Federal rule of Evidence 412, evidence offered to prove that any
alleged victim engaged in other sexual behavior or to prove any alleged victims sexual
predisposition is inadmissible.
a. The policy of Rule 412 is to protect victims of sexual misconduct from
embarrassment and sexual stereotyping. However, it is noted that Rule
412 is not controlling here as the party against whom the evidence was to
be offered, Graves, was not a victim of sexual misconduct, as required
before 412s protection may apply.
i. Inquiry into the sexual contact with the witnesses is irrelevant to
the action, and thus the embarrassment the witnesses could suffer
is sufficient to justify the order. Nonetheless, romantic activities
between the witnesses and Graves could be relevant to the
alleged harassment, and discovery into these areas should be
permitted only to that extent.
(Info from these witnesses is relevant. Not privileged, nor is work product, court still
orders at least partial protection from discov. RULE 26(c) gives courts broad discretion
to forbid or restrict discovery of material not otherwise protected)

==========================================
==========================================
====================================Discov

ery; Contd. LESSON 18)

ABUSE:
3 patterns:
1) Too little discovery;
a. Too little: Stonewalling: occurs when one party resists appropriate requests
for discovery.
i. Stonewalling can subject party to sanctions. Rules 26(g), & 37 note
the range of propostitions to which the signature of a lawyer certifies
under 26(g). Some say judicial supervision is helpful in preventing
stonewalling, mandatory scheduling conference and disclosures will
help. 16(b)
2) Too much discovery;
a. Too much: occurs when one party seeks more discovery than the case
justifies.
i. If info requested is irrelevant/privileged one may decline to answer,
1. Rule 26(b)(1) now limits the scope of material discoverable
without a judicial order, to: matter relevant to a claim or
defense, requiring a judicial order to broaden the scope
a. Would be unfair if they didnt have it.
ii. If excessive or unduly burdensome:

32

1.

26(g) - signing lawyer certifies that discovery is neither

unreasonable nor unduly burdensome or expensive,
considering the needs of the case.
iii. Rules also impose mechanical limits:
1. Rule 33(a)(1) 25 interrogatories,
a. single 7hr deposition (usually 10 depositions) of
each witness.
b. A deposition is limited to 1 day of 7 hours.
i. Also sanctions against improper conduct
during a deposition) (ex. Excessive
objections)
iv. Discovery Protective Order:
1. Rule 26(c) - permits any party to seek a protective order.
Permits a court to limit discovery even though the
information sought might otherwise be discoverable, if it
produces annoyance, embarrass, etc.
a. Dont want to produce a certain piece of evidence
or witness.
3) Mismatched discovery.
a. Mismatched Discovery: occurs when two parties have significantly unequal
litigation resources.
i.
a. Rules employ 3 tools:
a. Limits on discovery,
b. Sanctions for bad behavior,
c. judicial supervision.
Rule 37 (a) Must make good faith effort to confer with the other party in an effort to obtain the
discovery items before moving for an order to compel disclosure or discovery. (motion to
compel)
Rule 26(b)(1) proportional to needs of the cases. Can still get any non privileged matter that is
relevant. But heavier burden put on proportionality.
-Consider amount in controversy
-Importance of the issues at stake in the action
-Partys resources
-Importance in discovery in resolving the issues
-Whether burden or expense outweighs the likely benefit
-26(b)(2)(C)(iii)

EVIDENCE SPOILATION LEGAL HOLDS ON RELEVANT

INFORMATION
-

Zubulake v. UBS Warburg LLP

a. P sued D for gender discrimination, failure to promote, and retaliation.
a. In response to her claim that all her allegations could be proven by email
correspondence sent to UBS employees, the judge ordered the parties to
share the costs of retrieving the backup takes containing the emails.

33

b. UBS accordingly ordered its employees to preserve the information

stored on tapes.
i. When several tapes discovered missing, P moved for sanctions
against UBS for failure to preserve the missing tapes and the
emailed contained therein.
b. Rule: A trial judge can, at his discretion, sanction a party for the destruction and significant
alteration of evidence or failure to preserve property for anothers use as evidence in pending
or reasonably foreseeable litigation.
a. The obligation to preserve evidence arises when the party has notice
that the evidence is relevant to pending or reasonably foreseeable
litigation.
c. Issue: Whether a party can be sanctioned for spoliation of evidence that is not relevant to the
litigation.
d. Holding: No.
a. UBS instructed its employees to retain information stored on backup
tapes, so all its employees were aware of the potential for litigation and
were under a duty to preserve what they reasonably should have known
was relevant to the litigation. UBS employees did not comply with the
order to preserve the information on the backup tapes. Thus they were
liable for spoliation of the evidence and were grossly negligent if not
reckless in their failure to preserve the evidence.
i. However, P failed to show that the tapes could have been
favorable to her (Failed relevance prong.)
1. Prior to the motion at issue she submitted sixty-eight
other emails. None of them supported an inference of
gender discrimination, so it is unlikely that the missing
emails would have either. Since the emails would not
have been favorable to her case the evidence was not
relevant and UBS was not liable for their spoliation.
a. BUT, UBSs failure to produce the requested
emails means Zubulake had to re-depose
witnesses regarding the destruction of the
emails. Because UBS should have produced
these emails in the first place, UBS should bear
the costs of Zubulake re-deposing these
witnesses.
i. Compared to Silvestri case, destruction
occurred after litigation had begun, so
Rules come into picture.
1. BALANCE: how critical was
evidence destroyed, how
culpable was party that
destroyed it?
e. Adverse Inference Instruction
a. Often ends litigation- it is too difficult a hurdle for the evidence spoliator
to overcome
i. Jury is allowed to infer that the spoliator realized the evidence
was so unfavorable
1. Extreme Sanction
b. Party seeking adverse inference instruction must establish the following
three elements:
i. That the party having control over the evidence had an obligation
to preserve it at the time it was destroyed

34

ii. That the records were destroyed with a culpable state of mind
1. Depends on jurisdiction but most ordinary negligence
in conjunction with the obvious intentionally or willful
destruction.
iii. The destroyed evidence was relevant to the partys claim or
defense such that a reasonable trier of fact could find that it
would support that cliam or defense.

==========================================
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====================================

Resolution Without Trial (Lesson 19)

Default and Default Judgments
Rule 41(a) Voluntary Dismissal - A plaintiff may dismiss at anytime
before the DS answers Can do this until DS answers once DS
answers cant do this unless all parties agree
Rule 41(b) Involuntary Dismissal Intended to keep the P from going
to sleep at the litigative switch (works against P who slumbers on their
rights, ignores dates from scheduling orders, just as Default Judgment
works against DS P got to keep bringing the case along)
Rule 55 - Default Judgment
55(a) Default Judgment entered by clerk (ex: it has been 30
days since served, still no response)
55(b) Default Judgment entered by court following the clerk
allowing
Rule 55(c) Parties seeking relief from defaults can get them set
aside if they can show some plausible reason (such as illness or
family emergency) for failing to respond to summons
Rule 60(b) - Relief from a Judgment or Order Permits the reopening of
the case even after judgment is entered on a default.
60(c) Motion under 60(b) must be made within a reasonable
time and by no means a year after the judgment enter date.
Peralta v. Heights Medical Center:
a. P sued Peralta (d) for Ds nonpayment of a debt due to P by one of Ds employees for
medical services and guaranteed by D. Subpoena service was personal by not timely,
D didnt appear to answer.
a. Default judgment was granted to P. Ds property was sold at auction to
pay the judgment, and D began proceedings to have judgment and sale of
property set aside in state court in Texas. Court granted P SJ.
i. D appealed on due process to US SC.
b. Rule: A requirement of due process in any proceeding is notice reasonably calculated
to apprise interested parties of the pendency of the action and afford them the
opportunity to present their objections.

35

c. Issue: Whether a default judgment should be set aside for failure of service bc the
party cant show he has a meritorious defense to the claim.
d. Holding: Yes. A fundamental requirement of due process in any proceeding is notice
to apprise parties of the pendency of an action to afford them the opportunity to
present their objections. Courts below held that D was harmed by the entering of the
DJ because he could not show that he had a meritorious defense to the action because
of the untimely and improper service, therefore the DJ was improper.
a. D could have impleaded the employee, negotiated a settlement, paid the
debt, or sold the property himself to pay the debt if he had been served
correctly.
i. These options were precluded because D didnt have notice of
the action (untimely service). Failure of notice is violation of Ds
due process rights and the grant of SJ is reversed.

Consent Decree The parties agree to resolve a lawsuit without either

side admitting wrong, the court then signs off on it and has the ability
to monitor it.
==========================================
==================
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==================

Resolution Without Trial Confidentiality; Intro to

Arbitration & Mediation
Contracting for Confidentiality:
Ds and Ps sometime share one common settlement goal in some cases: settlement must be
confidential.
o Confidentiality agreem ents seek to bar specific info or documents from public
exposure.
a. Seek to control parties future actions, what they can say about the lawsuit that
the agreement ends.
b. Confidentiality agreements dont buy silence in subsequent lawsuits. Cant forbid

awitnessfromtestifyingaboutpasteventsthatarerelevanttoanother
lawsuit.
c. BALANCINGACT:PUBLICORCITIZENHARMVSNECESSCITY

Intro to Arbitration & Mediation

Q: What is the difference between mediation and
arbitration?
A: Mediation is a voluntary dispute resolution process; all
parties must consent to participate in good faith and work
toward a mutually agreeable resolution. Mediating parties
are not bound to resolve their dispute (although mediated
settlements, once reached, can be made binding if the
parties decide to draft a contract called a settlement
agreement). Mediations are not "decided" in favor of one
36

party or another; rather, the mediator simply facilitates the

negotiation process. In evaluative mediation, the mediator
will counsel parties on the strengths and weaknesses of
their case and gauge each party's likelihood of success if
the dispute proceeds to arbitration or litigation.
Interest based mediation Mediator figures out what the parties interests are and then figures
out a way to construct a solution that will suit all parties purposes.
Evaluative mediation mediator will counsel parties on the strengths and weaknesses of their
cases and gauge each partys likelihood of success if the dispute proceeds to arbitration or
litigation.
Positional Mediation Pie to be divided and anything given to one party is the other losing some
of that pie. Much more money based Trying to settle on a number.
Arbitration

Arbitration, on the other hand, is a dispute resolution process in which

a neutral party (the arbitrator) hears a dispute between one or more
parties and, after considering all relevant information, renders a final
decision in favor of one of the parties. Arbitration decisions may be
either binding or non-binding, depending on the terms of the
arbitration agreement. Binding arbitration decisions may be confirmed
by a court and carry the same significance as a court judgment.
Summary Jury Trial A non-binding condensed version of a real trial
(form of non-binding arbitration) The jury is not told it is a summary
trial- very expensive.
Panel Arbitration Each side picks an arbitrator and then those pick the third.
High/Low Arbitration

Discovery Contd. Protective Order

- Kalinauskas v. Wong
a. P sued Caesars Palace and Wong (d), its representative, her former employer, for
sexual discrimination.
a. P sought to depose another former Caesars Palace employee who had
sued CP previously for sexual discrimination and had settled the matter
pursuant to a confidential settlement agreement. Court examined the
confidential settlement and noted that the employee had agreed not to
discuss any aspect of her employment at Caesars other than the dates of
her employment and her job title.
i. Caesars sought an order from the court protecting the employee
from being deposed.
b. Rule: Parties may obtain discovery regarding any unprivileged matter that is
relevant to any partys claim or defense.

37

c. Issue: Whether a party who has signed a confidentiality agreement as part of a

settlement can be deposed regarding the settled case?
d. Holding: Yes. FRCP 26(b)(1) parties may obtain discovery regarding any
unprivileged matter that is relevant to any partys claim or defense. To order
discovery of the employee would discourage settlements in similar cases, as it
would demonstrate confidentiality agreements have little effect. Contrarily, to
issue the protective order would encourage employers to buy the silence of
witnesses with settlements.
a. Issue is resolved in favor of P, holding P can depose the employee.
Although the scope of discovery is broad and deposing an employee
would likely lead to relevant evidence, in this matter the scope of
discovery should be limited to her knowledge of sexual harassment at
Caesars Palace alone and settlement confidentiality is to be maintained.
1. DS Motion for Protective order 26(c) - DENIED

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====================================

Resolution Without Trial Arbitration

(LESSON 20)
Arbitration -The settling of disputes (especially labor disputes)
between two parties by an impartial third party, whose decision the
contending parties agree to accept.
Federal Arbitration Act FAA - enacted to counter judicial
hostility to pre-dispute arb agreements, 3 basic sections:
a. Section 2: substantive law, declaring agreemtns to arb valid as matter of federal
law. Binding on both fed and state courts, state leg/court cant declare arb clauses
unenforceable.
b. Section 3: tells courts what to do if party, in spite of arb agreement, instead files
lawsuit.
c. Section 4: tells fed courts what to do if a party neither invokes arb nor files suit.
d. Arbitration agreement is unenforceable ONLY on a ground that would apply to
all Ks not just Ks to arbitrate. Ex: sign K to arbitration under threat of violence,
like all Ks entered under duressunenforceable.
The portion of general K doctrine most frequently used to challenge
arbitration clauses is Unconscionability
Dont need federal jurisdiction to get the act to apply
o If state law claim and no federal jurisdiction then
it will be brought in state court
-

Ferguson v. Countrywide Credit Industries Inc:

a. P sued her former employer for sexual harassment, retaliation, and hostile work
environment under fed/state law. D, her employer, petitioned the court to compel
arbitration pursuant to a clause in the Conditions of Employment that P signed. I
understand that in order to work at Countrywide I must execute an arbitration
agreement.
a. TC concluded that the arb was unconscionable and thus unenforceable, and it
consequently denied Ds petition to compel arbitration,

38

i. D appealed.
b. Rule: An arb agreement is unenforceable as unconscionable when it arises from an
inequality of bargaining power or surprise and when the terms are so one-sided as to
shock the conscience.
c. Issue: Whether an arb agreement heavily favoring the employer is enforceable?
d. Holding: No. The FAA affirmed the enforceability of arb agreements to the extent that
their enforcement is consistent with K law. Under K law an agreement is unconscionable
if it is both procedurally and substantively unconscionable. A K is procedurally
unconscionable when it results from an inequality of bargaining power or surprise, K is
substantively unconscionable if the terms are so one-sided as to shock the conscience.
a. Ds arb agreement is unconscionable. It requires arb for the claims most likely to
be brought against D by its employees and exempts from arb those claims most
likely to be brought against employees by Countryside. Moreover, the arbitration
requires expenses by the employees far exceeding those of bringing claims to
court.
i. Denial of Ds petition to compel arb is affirmed.
-

AT&T Mobility LLC v. Concepcion:

a. Ps purchased cell phones/service from At&T (d) after seeing advertisement that offered
free phones. Ps werent charged for phones, but charged $30 in sales tax. Included in
service agreement was arb clause that required all disputes b/w parties to be resolved by
arbitrator, and prohibited arbitration in form of class action.
a. Agreement additionally allowed D to make unilateral amendments to K at any
time, which it did.
i. P brought suit against D in fed DC as part of a punitive class action and
the class collectively alleged that D had engaged in false advertisement
and fraud by charging sales tax on phones advertised as free.
1. D filed motion to compel arb under terms of agreement w P.
a. DC denied Ds motion based on CA SC case, and found
that the arb prov was unconscionable bc D hadnt
shown that bilateral arb adequately substituted for the
deterrent effects of class actions. Appeals affirmed, and
SC certiorari.
b. Rule: FAA preempts any state law that conflicts w it.
c. Issue: Does FAA preempt any state law that conlficts w it?
d. Holding: Yes. The FAA makes agreements to arbitrate valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract. 9 U.S.C. 2. The second portion of 2 is a savings clause that permits
arbitration agreements to be declared unenforceable utilizing common contract defenses
such as fraud, duress, or unconscionability.
a. In CA case, court held that including an arbitration provision requiring a
waiver of class actions, was unenforceable because such waivers were
unconscionable
i. The judgment of the court of appeals is reversed and the matter is
remanded for further proceedings consistent with the opinion.(state law
says u cant waive class action for arbitration, fed court says u can, arb
clauses are enforceable)
ii. Smart move by AT&T lawyers bc it gave the judges the tools of
decision made it easy for supreme court to find that the
Ferguson v. Writers Guild of America, West
a. P was hired by Paramount Pics to write screenplay for Beverly Hills Cop II. Writers
Guild of America credited P as co-screenwriter and credited 2 other writers for story. The

39

membership agreement for Writers Guild of America, West (d) requires members to
submit disputes to arb.
a. P instead filed petition of mandate in the superior court to compel D to grant P
sole screenplay credit and sole story credit. Superior court denied his petition.
i. P appealed.
b. Rule: Review of arbitration procedures is limited to determining whether the parties
agreed to be bound to arbitration and whether the actual arbitration was conducted in
conformance with the agreement.
c. Issue: Whether the court has the power to reverse the decision of an arb proceeding.
d. Holding: No. Writers guild has detailed credit arb proceedings that involve three
independent arbitrators being given the screenplay and source material. P contended that
the credit determination process contained procedural improprieties and irregularities,
charging the credit arbitration secretary with wielding undue influence on the process,
claiming he was denied an opportunity to assemble evidence and prepare a statement, and
alleging a failure of arbitrators and other Guild members to guard the integrity of the
credit arbitration. However, this court declines to reach the merits of Ps claim, finding
the determination of whether he proper credits had been awarded nonjusticiable.
a. The courts only role is to determine whether the party had agreed to
arbitration and whether the arbitration procedure conformed to the
procedure outlined in the Writers Guild manual to which P had agreed to be
bound. On this issue alone, Ps case is without merit and the lower courts
decision is upheld.

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Summary Judgment (LESSON 21)

-

Summary Judgment forces adjudication in suits which facts are not disputed.
o SJ motion asks whether this evidence would be sufficient to allow a
reasonable jury to find in favor of the party with the BOP. If not, the court
should grant SJ against that party.
o Rule 56 - governs the making and granting of motions for SJ.
56(a), provides that the court shall grant SJ 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.

Difference between 12(b)(6) and Summary Judgement (56)

Rule 12(b)(6) Motion to Dismiss
- Only tests the adequacy of the allegations in the complaint
o Even if every allegation (in complaint) is true, and recovery still not possible.. no
need in putting the defendant through the expensive litigation process
What the plaintiff says to be trueto get him in the door
If everything a plaintiff says
Rule 56 Summary Judgement
- Probe the actual facts that were shown in the case
o At this stage, both sides will have had the input ability to develop the pot of
facts.
o To obtain a summary judgement motion:

40

Are any of the material facts disputed?

Do the undisputed facts state a claim?

Ex: 12(b)(6) motion to dismiss regarding pleading practice asks whether, IF

allegations were true, they would be legally sufficient.
o Discov gathers evidence but doesnt probe its sufficiency or accuracy. (you
say we have K, I deny, do you have evidence of agreement?)
Ex: By contrast, at SJ a party can challenge the truth of allegations.
o SJ motions also match up evidence with the substantive law. (must establish
all elements of a cause of action prima facie case)
Courts decide SJ motions on basis of various docs (affidavits,
deposition transcripts, relevant docs).
Affidavit is common SJ document used to establish a claim of
action.
Affidavit is written doc in which the affiant swears under
penalty of perjury that statements made are true. Typically
drafted by lawyer who reviews them w the affiant, who then
signs it, attesting that its statements are true. Rule 56(c)(4)
sets out requirements for affidavits to be used in SJ motions.
o After below Celotex case: burden of production at SJ stage is the same as at
trial. Waiting until just b4 trial to assemble evidence will be too late. If basic
evidence to prove your claim or defense is not available at SJ stage, you lose.
******Celotex Corp v. Catrett:
o Celotex (SC Petitioner, Defendant)
a. P sued a number of asbestos manufacturers including Celotex (d) in DC
a. claiming that the manufacturers fatally exposed her husband to asbestos.
i. D motioned for SJ on the ground: that P failed to present any
evidence linked Ds products to her husbands death. In objection
to the SJ, P submitted 3 docs that suggested that the decedent had
been exposed to Ds products. The DC granted Sj bc P lacked
sufficient evidence to show that she could prevail on trial.
1. On appeal, court of appeals reversed.
a. SC granted cert.
b. Rule: A party making motion for SJ doesnt need to provide affirmative evidence in
the form of affadavits to support its motion.
c. Issue: Does a party making a motion for SJ need to provide affirmative evidence in
the form of affidavits to support its motion?
d. Holding: No.
a. Rule 56(c) directs the entry of SJ, after adequate time for discovery and
upon motion, against a party who fails to establish the existence of an
element essential to that party's case, and bears the burden of proof of
demonstrating that element at trial.
i. SJ is designed to afford the parties a just, speedy, and
inexpensive resolution to their controversies. The party seeking
SJ arrives the initial responsibility of informing the court of the
reason why the motion should be granted by identifying those
parts of the lawsuit lacking a genuine issue of material fact.
However, there is no specific requirement under Rule 56 that the
movant provide affidavits to support its motion. A party making
motion for SJ doesnt need to provide affirmative evidence (in
form of affifdavit) to support its motion.

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1. Court of appeals (reversed for petitioner, plaintiff)

incorrectly assumed that the moving party was expressly
impliedly required to provide affidavits or other
evidence disproving the adverse partys claim. No such
requirement exists under Rule 56(c). SJ motion should
be used to identify factually insufficient claims or
defenses.
a. While the moving party need not present
affirmative evidence, nonmoving party
expected to present some form of affirmative
evidence to overcome the challenge.
i. Court of appeals shouldve looked at Ps
evidence produced in the TC to see if
Ds (plaintiff, respondent) claim was
warranted. Appeals decision is reversed
and remanded so appropriate review of
Ps evidence is done.
ii. Burden of proof on a summary
judgement motion is on the party who
bears the burden of proof of it at trial
1. After discovery, if party who
bears the burden, still cant
prove, how can they satisfy at
trial?
In Adickes v. S.H. Kress & Co. party moving for summary judgment bears the burden of proof
regardless of who bears it at trial. (keep digging)
-

Bias v. Advantage International Inc:

o Bias (petitioner, plaintiff)
a. Basketball star Leonard Bias entered into representation agreement w D, but P died of a
coke overdose 2 days after being drafted in the 1st round by the Celtics. Bias estate (p)
sued D.
a. 1st claim was that D had failed to obtain the 1 mill dollar life insurance
policy P and his parents requested and that, relying on D to obtain this policy,
they had forgone purchasing a policy themselves.
b. The 2nd claim alleged that D negotiated for an endorsement K not only on Ps
behalf, but on behalf of other players, and as a result D failed to obtain an
endorsement deal from Reebok, prior to Ps death. DC granted SJ to D, and
Ps estate appealed.
b. Rule: SJ is granted where the moving party shows that the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.
c. Issue: Whether there is a genuine issue of material fact, that a cocaine user could not
obtain a life insurance policy or that a representation K required the agent to secure an
endorsement deal for the client.
d. Ruling: No. Under FRCP 56(c), a party is entitled to SJ if there is no genuine issue as to
any material fact and the moving party is entitled to a judgment as a matter of law.
a. Under this rule the court noted that the moving party bears the initial
responsibility of informing the DC of the basis for its motion and identifying
those portions of the record that it believes demonstrate the absence of a

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genuine issue of material fact. When the moving party has met this burden,
the burden then shifts to the other party to show that there is a genuine issue
of material fact.
b. The other party must come forward with specific facts showing that there is a
genuine issue for trial.
i. DC granted SJ bc it found no genuine issue of fact that P suffered
any damages bc he couldnt have obtained a life insurance policy as
a consequence of a cocaine usage and no endorsement contract with
Reebok could have been reached prior to his death. The DC properly
held that there was no issue of material fact regarding Ps drug use,
as the Bias estate offered no evidence to rebut witnesses who
testified to specific instances of Biass drug use. Moreover, D offered
evidence that every insurance company inquires about drug use,
particularly where large values are concerned, and Bias offered no
rebuttal to this evidence.
1. Finally, there was no indication from the representation
contract that D breached a duty to Bias by failing to obtain
an endorsement deal with Reebok prior to Biass death. The
fact that there was potential that D could secure such a deal
doesnt mean it was obligated to do so. SJ affirmed.

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Trial (LESSON 23)

Scheduling Orders
Scheduling orders are part of case management, which in legal
terms refers to the schedule of proceedings involved in a matter.
There are various stages in litigation, such as the filing of a
complaint, answers, the discovery process (interrogatories,
subpoenae, depostions, etc.), and motions that occur before a trial
is held or a decision is rendered. Each stage of the process has a
scheduled timeframe in which it must be filed with the court or
completed. When a complaint is filed and a case is assigned to a
judge, the judge will often set forth a schedule for the submission or
completion of the relevant pleadings, court appearances, and other
matters.
FRCP Rule 16 governs Scheduling Orders
I. Rule 16(b) Scheduling Conference - 90 days after Ds appearance
or 120 days after service, the judge holds a scheduling conference to
discuss the way discovery and other pretrial matters should proceed
a. Rule 16(e) provides for a final pretrial conference and order. Final pretrial
conference assumes a trial will occur and is in fact imminent. The FPC aims solely
at clarifying the issues that trial will be about to formulate a trial plan

43

- Mckey v. Fairbairn:

a. Facts: Littlejohn represented by McKey (p) as adminstrix of her estate, sued her
landlord, represented by Fairbairn (d) after she slipped and fell on her floor
which became wet due to leaking roof.
a. During pretrial proceedings, the judge asked whether allegation was
negligence, and P responded in affirmative (yes, negligence). During
trial, Ps counsel moved to amend pretrial order to introduce section of
housing regulations req landlord to prevent leaks.
i. Judge denied motion and ordered DV for landlord. (P had no
evidence that landlord had notice of leak, there was nothing for
jury to decide)
b. Rule: A trial judge has wide discretion to grant or deny permission for a party to
change her theory during trial.
c. Issue: Whether a judge can deny a partys motion to change her theory from
negligence to violation of housing regulations during trial.
d. Holding: Yes. A trial judge has wide discretion to refuse to permit a party to
change her theory during trial. The judge here did not abuse his discretion and
the verdict is affirmed.
Modern procedure is flexible, but parties are locked into their respective stories. Will
be stopped at trial if they try to tell a diff story from one they identified at pretrial.

Divided Authority in Civil Litigation:

a. We divide governmental authority btwn states and fed govt. Divide among
branches. Within judicial branch we divide among tiers of courts. Powers that
might belong soley to juges in other legal systems are shared with litigats and
jury.
b. At trial the law deploys an array of overlapping procedures designed to police the
boundaries of this shared power.

Rule 38 - reaffirms the constitutional status of jury trial while insiting on a timely
demand and establishing waiver as the penalty for failing to do so: 14 days after answer
served allowed to demand a jury trial.

- Reid v. San Pedro, LA & Salt Lake RR:

a. FactS: P sued D alleging RR negligently let the fencing along its RR tracks fall
into disrepair, and one of Reids cows to wander onto the track where it was
struck and killed by a train.
a. Verdict for P,
i. D appealed.
b. Rule: P must fail where the undisputed evidence points with equal force to 2
things, one of which renders the D liable and the other not. (Jury not left to
speculate on key issue of fact essential to establishing prima facie case)
c. Issue: Whether the P meets the burden of proof when evidence points with equal
force to two things, one of which renders the defendant liable and the other not.
d. Holding: No. Its essential for burden of proof for P to present undisputed
evidence in order to render D liable and establish prima facie case.
a. Under Utah law the owners of the property are responsible for ensuring
that the gates in the railroad fencing are kept closed. The evidence
showed that the cow was killed near one of these gates but did not show

44

whether the cow had passed through the open gate or through fencing
that was damaged and left unrepaired by the RR.
i. P has burden to show which of these 2 scenarios occurred. Bc the
evidence points to 2 different scenarios with equal force, P does
not show by a preponderance of the evidence that the cow passed
through the damaged fencing. (Jury would have had to speculate)
(See Torts: Reynolds)
1. The TC decision is reversed with instructions to enter a
verdict in favor of the RR
-

Judges give juries instructions on the law it should apply.

o If instructions dont correctly state the law and the appellate court concludes
there is a likelihood that the error affected the jurys verdict, the judgment
will be set aside the and new trial will be ordered.
In bench trial, conclusions of law are similar, if judge gets law
wrong, he/she will be similarly subject to reversal, unless court of
appeals decides it wouldnt have affected the outcome. Judges and
juries decide disputed facts, and must apply law to the facts.

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Trial; Judge & Jury; Challenges (LESSON 24)

Challenging Individual Jurors:
a. From the pool of all prospective jurors, the clerk of the court or jury
commissioner will send summonses to a # of jurors asking them to report for
duty on a particular day.
b. Veneer Panel - From among these prospective jurors a certain # are randomly
selected and sent to a particular courtroom.
c. Petit Jury - From those 6 or 12 are selected to sit in the jury box for initial
questioning, Actual jurors who will hear the evidence
d. VOIR DIRE this stage provides the parties a basis for exercising challenges to
individual jurors.
a. Summary of VOIR DIRE: As with judges, the goal is to identify the
unbiased jurors who can fairly hear and decide the case. Both lawyers
and judge participate in screening process (VD) Judge will tell parties a
little about the case, identifiying the parties and counsel and asking
whether anyone on jury panel is personally acquainted with or related to
parties/counsel. Judge then asks each member briefly to describe their
area of residence, occupation, and that of their spouse/partner. This
questioning lays gourndowrk for additional questioning by lawyers.
1) 2 functions of VD: (1) Lawyers use it to begin presenting their
cases. Cant be too overt, cant make statements about facts; (2)
let parties develop a list of jurors whom they would like to
strike as one of the peremptory challenges.
2) In fed courts: lawyers submit questions to judge who screens
them and asks such as she thinks is helpful.

45

3)

In some state courts: lawyers are given free hand to engage

in detailed questioning. Answers to these questions provide
lawyers with basis for challenging jurors
e. For Cause Challenge - the lawyers explain their basis for thinking the juror is
unsuitable in this case. No statute defines the standard governing challenges for
cause.
a. DC must grant challenge for cause, if a prospective juror shows actual
prejudice or bias. Actual bias can be shown either by the jurors own
admission, or by proof of specific facts which show the juror has such a
close connction to facts at trial that bias is presumed.
f. Peremptory Challenge - allows a lawyer to strike juror for any reason or no
reason at all. Limited to 3 for federal.
a. Allow parties to choose their juries, allow parties to excuse a juror about
whom they have a hunch doesnt rise to level of a challenge for cause.
Limitaion: race, gender, etc.

- Thompson v. Altheimer & Gray:

a. P appealed from a jury verdict against her in a Title VII racial discrimination suit against
her employer, D. P argued that a juror, should have been struck for cause. When asked
during voir dire whether there was anything that would prejudice her decision, juror
stated that as business owner she would tend to favor the D, but would try and be fair.
Having exhausted 3 preemptory challenges, Ps attorney req the court to srike juror for
cause. Court refused, and juror remained.
b. Rule: Juror should be struck when she manifests bias
a. Bias anything that can cloud an individuals
b. Prior belief a past feeling regarding something, but can change and is not as
detrimental as a bias.. feelings can change
c. Issue: Whether a trial judge may strike a juror who suggests that she may not be able to
decide a case fairly.
d. Holding: Yes. The trial judge should have used his discretion to strike a juror for cause if
testimony suggested the juror was biased. Jurors belief that some employees sue simply
because they do not get a promotion or raise was clearly true, and this was not enough to
establish bias.
a. However, the juror did state that she may not have been able to decide the case
fairly.
i. It is significant that the trial judge did not follow up with the juror on this
issue, failing to ask questions to establish that the juror would decide the
case fairly. Accordingly, the verdict of the trial court is reversed and the
case is remanded for a new trial.

Challenging Judges
a. Fed statute 28 USC 144: require peremptory recusal(remove judge from particular case due
to bias) in the federal courts, but SC interpreted that statute to require cause.
b. 28 USC 455(b)(1) defines cause, 2 broad categories for disqualifying a judge:
a. (1) contains specific guidelines for barring (ex: judge hearing case where he serves
as lawyer in the matter in controversy). Also bars decisions in cases in which judge or
her family has a financial interest.

455(b)(2) - two broad categories for disqualifying a judge

1) Where he has served as a lawyer in the matter in
controversy

46

2) Where he has served in governmental employment

and expressed an opinion concerning the merits of the
particular case or controversy
455(e) can waive judges requirement to recluse self, if both
sides agree. EXCEPT cant waive 455(b) grounds for recluse

- Caperton v. A.T. Massey Coal Co.:

a. Facts: P sued D in WV state court for fraudulent misrep, concealment, and tortious
interference with contractual relations.
a. Jury found D liable and awarded P with 50 mill. D planned to appeal the verdict.
Blanker was Ds chairman, CEO, and president. After the verdict, but b4 the
appeal was heard, WV held its 2004 judicial elections. Blanker supported a
challenger to Justice Mcgraw, Brent Benjamin. Blanker donated the max amount
to Ben campaing and donated 2.5 mill and 500k. Blank donated more than all the
other supporters of Ben combined. Intotal spent more than 1mill more than total
amount spent by the campaign commitees of both candidates combined. Ben won
election in close race. WV SC then heard Ds appeal.
i. P requested that Ben recuse himself but he declined. Court reversed 50
mill verdict agasint D. P sought rehearing, and again sought Ben recusal.
Court granted rehearing and in April 2008, divided court again reversed
the jury verdict in 3-2 decision.
b. Rule: A judge is biased and should recuse himself when a contributors influence on his
election is so substantial that it would offer a possible temptation to the average judge to
lead him not to be impartial.
c. Issue: Should a judge recuse himself when a contributors influence on his election is so
substantial that it would offer a possible temptation to the average judge to lead him not
to be impartial?
d. Holding: Yes. Although not every campaign contribution by a litigant or attorney creates
a conflict of interest, there is a serious risk of bias when a person with a personal stake in
litigation before the court had a significant and disproportionate influence on placing the
judge on the case by contributing to the judges election.
a. The factors to be considered are the contributions relative size in comparison to
the total amount contributed, the total amount spent on the election, and the
effect of the contribution on the outcome of the election. It does not matter
whether Blankenships contributions were the cause of Benjamins election. The
test is as to whether due process has been violated is whether the contributors
influence on the election under all the circumstances would offer a possible
temptation to the average judge to lead him not to be neutral.
i. Here, although there was no allegation of a quid pro quo
agreement between Blank and Ben, the fact that Blanks
enormous financial contributions were made at a time when he
had an interest in the outcome of a case to be heard by the court.
On these extreme facts, the probability of actual bias rises to an
unconstitutional level. Reversed and remanded.
e. 28 USC 455 - state statutes already require judge to recuse himself if his impartiality
might reasonably be questioned.
a. Judge B declined to do so. (under some circumstances refusal to recuse is denial
of due process)

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47

Judgment as a Matter of Law:

a. ***Rule 50(a) DURING A JURY TRIAL AFTER THE PLAINTIFF HAS CLOSED
ARGUMENTS FULLY BEENE HEARD DURING TRIAL- And the facts still prevent
the jury from reaching an insupportable conclusion essential to one parties claim or
defense... Opposing party can ask the judge to grant motion for judgment as a matter of
law
i.
JMOL - judgment as a matter of law (aka directed
verdict), claiming the opposing party has insufficient evidence
to reasonably support its case; after arguments the judge
decides his own verdict based on this claim; jury never comes
to a verdict and is sent home, if directed verdict is reversed on
appeal, there has to be a new trial

i. If the court grants such a motion, the jury will not receive the
case (or that part of it as to which motion is granted). AKA
Directed Verdict.
1. Courts say they grant JMOL when the party with the
burden of production has presented its full case durint
trial.. but still failed to carry that burden. Rule 50(a) jury
doesnt get case if party w BOP fails
b. ***Rule 50(b) Allows for renewal of the JMOL motion after the verdict
a. 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 judgmentor if the motion addresses a jury issue
not decided by a verdict, no later than 28 days after the
jury was dischargedthe 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:
i. Allowjudgmentontheverdict,ifthejuryreturnedaverdict;
ii. Orderanewtrial;or
iii. Directtheentryofjudgmentasamatteroflaw.

c. Amotionforjudgmentasamatteroflawmaybemadeatanytimebeforethe
caseissubmittedtothejury.Themotionmustspecifythejudgmentsoughtand
thelawandfactsthatentitlethemovanttothejudgment

d. Procedural devices enforce BOP:

e. SJ is 1st, Judgment as matter of law 2nd.
f. D has responsibility of making motion that tests whether P carried out BOP.
a. To challenge Ps Bop: ******
i. @ Pretrial - D motions for SJ,

48

ii. @ During Trial D motions for JMOL.

b. P has BOP for initial claim, but if D claims SOL as defense, then has
BOP shifts to D to prove facts to support that defense.
c. When may a court interfere with the jurys fact-finding and law-applying
role? Judge may never make a credibility determination in granting
JMOL, that is a matter for the jury.
i. Nor may judge weigh the evidence, as opposed to finding
whether there is any evidence from which the jury could find for
the party against whom the motion is directed.

- PA RR v. Chamberlain:
a. Facts: Chamberlain sued RR alleging the RR negligently caused the death of a brakeman.
Chamber claimed that employees of the RR negligently caused a multicar collision,
resulting in the deceased being thrown from the car he was riding and run over by another
car. 3 witnesses testified no such collision occurred. 1 witness testified that there was
such a collision.
a. The TC directed the jury to find a verdict in RR favor,
b. Court of appeal reversed.
i. US SC grant reiew the reversal of judgment on a verdict directed
in favor of the RR.
b. Rule: When evidence tends equally to sustain either of 2 inconsistent propositons, a
verdict in favor of the party bound to maintain one of those propositions against the other
is necessarily wrong.
c. Issue: Whether a party offering evidence that tends equally to sustain two inconsistent
propositions meets his burden of proof.
d. Holding: No. A P has not maintained the proposition upon which recovery is likely when
evidence tends equally to sustain either of two inconsistent propositions. The witness on
whose testimony P seeks to sustain his judgment testified that he concluded from his
observations that the collision occurred. However, he did not personally observe the
collision, but merely inferred from the circumstances that the crash occurred. His factual
testimony was consistent with both a collision and a non-collision, and his speculation
that a collision occurred is inadmissible.
a. Since this is the only testimony that supports a judgment in favor of P, P
doesnt sustain his burden of proof. The TC was correct in directing a
verdict for RR. The court of appeals decision is reversed.
e. This case raises 2 related issues: (1) which evidence should be considered. There is
general agreement court should consider all evidence favorable to P, all inferences from
that evidence, and all undisputed evidence. (2) Should court also consider testimonial &
disputed evidence in favor of D?
f. Basic test is whether reasonable persons could differ on the sufficiency of a piece of
evidence needed to establish a claim- if they could, court should defer to the jury on the
ground that its members are reasonable persons whose verdict represents one of several
reasonable views.
a. Here, they couldnt differ b/c Bainbridge didnt actually ever see the
collision in-fact! Therefore didnt meet prima facie cause of action
burden.
i. Couldnt prove there was actually a collision from which the D
could be negligent.
g. Jury is undoubted arbiter of credibility. Jurors do more than decide who tell truth though,
we also give many questions that require jury to apply general standards to specific facts
of case. Jury is finder of facts, weigh conflicting evidence and inferences, determine
credibility of witnesses. Courts often give juries cases where facts are undisputed.

49

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Trial; Motion for a New Trial (LESSON 25)

New Trial Justifications:
a. Rule 59 governs motions for new trials -- doesnt specify grounds for which a new trial
may be ordered, stating only that the court may do so for any reason for which a new trial
has heretofore been granted in an action at law in federal court.
b. 2 Common Law reasons for granting new trials:
a. (1) focusing on the procedure leading up to the verdict
b. (2) focusing on the correctness of the verdict itself.
c. Flawed Procedures: New trials may be granted when the judge concludes that the
process leading up to the verdict has been flawed. Ex: Jury may conclude that a lawyer
has made an impermissible argument to the jury, or after trial over judge may conclude
she erred in admitting a piece of evidence or that she gave jury erroneous instructions.
Ordering new trial allows judge to correct themselves or fix flawed process. Rule 59(d)
gives judge power to order new trial even if neither party moves for one.
d. Flawed Verdicts: Even if perfect trial, judge may conclude that result of trial (verdict) is
unjustifiable.
a. Example: verdict that splits the difference b/w 2 parties when the law
says one or the other must take all; such a verdict tells judge that the jury
either misunderstood or ignored instructions.
i. (under FV) Most common ground for granting new trial is that
the verdict is against the great weight of the evidence. JMOL &
new trials both result from verdicts lacking evidentiary support,
diff is important. Consequences of each reflect diff rationales.

What is difference between motion for JMOL (Rule 50) and motion for new trial (Rule 59)?
e. In granting motion for JMOL (directed verdict) under Rule 50:
a. court says that winner of verdict had no evidentiary support for at least 1
essential element of claim or defense.
i. JMOL results not in new trial but in immediate entry of
judgment for the loser of the verdict.
f. In granting New Trial under Rule 59 is a do-over rather than final judgment for
one party.
a. The grant of new trial doesnt make winner out of loser; it begins contest
again. Judge may grant new trial when verdict is against the great weight
of the evidence.
b. Such do-overs represent a solution to diff problems. In one form, the
grant of new trial is an amost but not quite version of JMOL: one cant
say there was NO evidence for the prevailing side, but it was very thin.
In its other form, courts grant new trial bc the jury didnt have the right
info b4 it, and new trial gives jury chance to decide on the basis of the
right evidence/law.

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New Trial; Reexamination Clause & Jury as a

Black Box (LESSON 26)
-

Lind v. Schenley Industries:

a. P sued D for alleged breach of oral promise for an increase in pay. Both P and former
secretary testified that the promise had been made.
a. Jury returned verdict for P, and D moved for judgment not withstanding
verdict (JNOV), and alternatively, a new trial (RULE 59).
i. The trial judge granted motion bc it found jurys verdict contrary
to the great weight of the evidence
b. Rule: A judge shouldnt set aside the jury verdict as contrary to the weight of the
evidence simply bc he would have come to a diff conclusion
c. Issue: Whether a judge should set aside a jury verdict if he would have weighed the
evidence differently?
d. Holding: No.
a. A trial judge has wide discretion to grant a new trial. However, a verdict
cannot be set aside as contrary to the weight of the evidence simply
because the judge would have come to a different conclusion.
b. A jury verdict in a complex case is more likely to be in error because of
its difficulty, but here the case was simple and required the jury only to
weigh the testimony of P and his secretary, who, if believed, presented an
overwhelming case in Ps favor.
i. If the jury chose to believe their testimony, the trial judge should
respect that decision. The decision of the TC is accordingly
reversed and the jury verdict reinstated.

Conditional New Trials:

a. Judge may grant new trial regarding a limited and narrow issue.
a. New Trial Limited to Damages: judge must be convinced that w.e
influences led the jury astray on damages didnt infect the judgment on
liability as well.
b. Remittitur and Additur:
i. Remittitur - Instead of ordering new trial on damages, court can
reduce the amount of the damage award to one it thinks
reasonable under some circumstances. Judge orders new trial
unless the P agrees to accept reduced damages.
1. If remittitur is granted, and P refuses, consq is new trial.
a. SC held P has choice in new trial or accepting
reduced damages.
i. P cant appeal remittitur.
ii. Additur - Its damage increasing analogue is additur. Both
involve many of the problems inherent in the partial new trial as
well as other difficulties.

The Reexamination Clause

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2 bodies of law guard the integrity of jury verdicts or the jurors ability to reach erroneous
verdicts:
a. The Reexamination Clause of the 7th amendment (and similar state provisions):
provides substantive protections. A federal statute providing that whenever a judge
disagreed with a verdict it could be overturned would be unconstitutional.
i. 2nd half of 7th amendment provides:
1. No fact tried by a jury, shall be otherwise reexamined in
any court of the US, than according to the rules of CL.
This prevents a judge from overturning a jury verdict
merely because she/he, as a juror would have voted
differently than actual jury did.
b. Federal Rule of Evidence 606 (Black Box ) provides procedural protection
by blocking evidence that might otherwise be used to challenge verdicts. 606
allows verdict to be impeached by evidence that there was some improper outside
influence on the jury. (bribery, threats to jurors)

Jury is a Black Box

What happens during juror deliberations, other than foul or improper
play, stays in that room and cant be introduced as evidence or stand
as grounds for a new trial or change in verdict.
Rule 606(b) of the Federal Rules of Evidence (F.R.E) tightly controls
impeachment of jury verdicts
-a juror may not testify as to any matter or statement
occurring during the course of the jurys deliberations or to the
effect of anything upon that or any other jurors mind or emotions
as influencing the juror to assent to or dissent from the verdict.
-Receiving testimony from the jurors after they have
returned their verdict, for the purpose of ascertaining what
the jury misunderstood its instructions, is absolutely
prohibited by F.R.E. 606(b) - Robles
-Legislatively this was intended by the conscious
decision to disallow juror testimony as to the jurors
mental processes or fidelity to the ourts instructions.
-

Peterson v. Wilson:
a. Peterson was employed as a grant director at Texas University.
a. P brought suit when he was fired.
i. Jury found for P, believing that D, his employer, had acted
arbitrarily and capriciously in terminating P, and awarded
damages.
1. The DC, finding that the jury completely disregarded the
TC instructions, subsequently ordered new trial, and jury
found for D.
a. Peterson appealed.
b. Rule: A verdict can be against the great weight of the evidence and thus may justify a
new trial even if there is substantial evidence to support it
c. Issue: Whether a court can order a new trial if it learns from jurors that the jurors
disregarded the courts instructions.

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d. Holding: No. Rule 606(b) of the Fed Rules of Evidence specifically prohibits
impeachment of jury verdicts, disallowing admission of juror testimony relating to
extraneous influences, the mental processes during deliberation, or the jurys fidelity to
the courts instructions.
a. The DC granted a new trial after it met with jurors following the trial and
learned information from which it determined that the jury had
disregarded its instructions. The DC violated this restriction by
consulting with the jurors after they delivered their verdict to discover
whether they had followed the courts instructions. Therefore, the
granting of a new trial is reversed, the verdict from the second trial is
vacated, and the verdict in favor of P is reinstated.
FRCP Rule 52 Asks the judges to make findings of fact and law explaining how they arrived at
a given result, separate.
-During bench trial or advisory jury

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