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Civil Procedure I
ii. because he didn’t do this, defense counsel filed motion for sanction under
federal rule 11, which is to deter improper conduct
1. sanction wasn’t held because before that rule 11 motion, he filed
the administrative complaint and tried to get the action he had
made suspended
2. ruled that plaintiff made a mistake but almost immediately caught
it, and in areas where people make civil rights types of complaint,
judge does not want to discourage them, because these cases when
legitimate should be litigated.
iii. Strategic move Defendant didn’t think that he’d win, he wanted to point
out that plaintiff’s counsel was a doofus
VI. Complaint: goals (1) show the other party know you have a good case (2) let the judge
know what the case is about – may not want to reveal everything
a. Bell v. Novick Transfer Co. (Rule 8)
i. Rule 8 says you only need a short & plain statement of the claim
ii. Wanted Motion to be dismissed for failure to state a claim
1. court ruled that they gave them enough for now!
2. rule 11 has to do with whether or not you conducted at least the
minimal research to make the claim legitimate
iii. Rule 8 establishes elements of claim & defenses
1. need a short & plain statement of claims
2. Defense: forms of denial & affirmative defenses
VII. Responses – Motions and Answer
a. Response: defense of the action
i. Motion: attacks the summons and complaint in some way
ii. Answer: a responsive pleading
b. Preanswer Motions:
i. There is a reason, that has nothing to do with the claim itself, why the
action should not proceed
ii. Can say that even if everything in the complaint is true under the
substantive law the plaintiff has no right to relief
iii. If the defendant is unsure of what is being asserted he can say the
complaint is too vague or confused & complicated
c. Possible Answers
i. Defendant denies the truth of 1+ allegations or he may deny the allegation
until he finds out more (Rule 8(b))
ii. Defendant can assert addition claims which will wholly or partially defeat
the plaintiff’s claims (affirmative defenses)
iii. Asserting a claim against the plaintiff (Rules 13 & 14)
1. Counterclaims
a. Compulsory: must assert it now or you have no other
chance, use it or lose it
b. Permissive: if you don’t make it now you can make it
another time
2. Cross-claims = claims against co-parties (D1 sues D2)
3. Third-party claims
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Trial
XIII. Jury selection: can challenge jurors for cause and have a certain number of preemptory
challenges, for which a reason is not necessary
a. Jury trial is disappearing, over 95% of cases files don’t go to trial
XIV. Trial Order: P opening statement, D may make opening statement, P examines his
witnesses, D cross-examines them, D may make a motion for directed verdict, if not made
already D can make opening statements, D examines his witnesses, P cross-examines them,
P may move for directed verdict, P rebuts, D rebuts, P & D rest, either can move for a
judgment as a matter of law, closing arguments, within 10 days the loser may move for a
judgment notwithstanding the verdict, loser may appeal
a. Norton v. Snapper Power Equipment
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i. Norton was using the Snapper mower and as he was going up an incline,
the breaks failed, causing him to land in the creek. The blades then
chopped off a few fingers.
1. if there had been a “dead man” device, his fingers may have been
saved
ii. Defendants filed motion for directed verdict
1. court granted it on several claims
2. judge reserved ruling on the strict liability—counsel, I’m not ruling
on that now
a. the only claim he’s worrying about is strict liability
b. he’s denying it now, trial continues
3. jury decides that superior was liable for 80% liability
iii. Jury found D 80% liable for injuries – Judge issued j.n.o.v.
1. Says a reasonable jury could not have come to his conclusion
2. the JNOV saves time and money because the appellant court can
reverse because they can appeal to the jury decision
Former Adjudication
XV. Claim Preclusion v. Issue Preclusion – Previously litigated to a conclusion
a. Claim Preclusion: the first claim precluded the second one, the claim must be the
same in both actions (res judicata)
i. in a claim preclusion, the first judgment is deposed on all matters which
were, should, or could have been litigated
ii. this claim was already the subject of the law suit, therefore the plaintiff
doesn’t get to try it again
b. Issue Preclusion: a different cause of action is filed, but one or more of the issues
have been previously litigated to a conclusion (collateral estoppel)
c. Rush v. City of Maple Heights
i. Rush was injured in motorcycle accident, judgment was for rush on
property damages—city was negligent for potholes, city must pay $100
for motorcycle damages
ii. Rush then tries to sue for personal injuries
1. sues again and its Rush against city for personal injury and claims
negligence
a. they should be prohibited from saying that they are
negligent or not causing the action because it was already
decided in the former case that they were negligent
i. ISSUE PRECLUSION
iii. Ohio supreme court decided there was claim preclusion, and case can’t be
tried twice
1. the injuries are 2 things that are for 1 case because they were
caused by 1 action!
2. moral of the story, file it all at once!
iv. P wants issue preclusion to allow a previous verdict of negligence causing
property damage in a lawsuit to be applied to the claim for personal injury
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v. D wants claim preclusion to say that this claim has already been filed
Court found for D
Appeals
XVI. Appeals address the correction of a trial courts ruling, not every mistake can be appealed
a. Interlocutory: to speak between, not a final judgment, only a ruling on a matter in
front of the court
b. Final judgment: the trial courts ruling ends, can be appealed
c. Apex Hosiery Co. v. Leader
i. Plaintiff filed motion for discovery
1. trial court doesn’t want to get into this unless it is dire
ii. court granted the motion for discovery, which defense then took to court
of appeals, appeals court said that they have no jurisdiction on this matter,
because they can’t appeal after a motion, you can only appeal after the
case is done
1. motion for discovery is interlocutory judgment
iii. Court did not have jurisdiction to hear the appeal because it was an
interlocutory order
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Why Litigate?
Substitionary Remedies
III. Substitionary Remedies = $ Money Damages $
a. Compensatory Damages: the damages should compensate the plaintiff for:
i. money he has lost, had to pay – easy to calculate
ii. beyond economic losses (pain & suffering, emotional distress, loss of
consortium, humiliation, harm to reputation) – hard to measure or predict
1. Usually 3-5 times compensatory damages to cover attorney’s fees
because you cannot tell the jury to give counsel fees, but jurors
know
b. Liquidated, Statutory, & Punitive Damages
i. Liquidated: an agreed to the price of the harm set beforehand by the
parties, an estimate by the parties of what they think the breach is
1. cant be too high, it can induce sabotage
2. cant be punitive in nature
3. we have them because its easier for the courts
ii. Statutory: statutes sometimes set minimum damages not specifically tied
to the amount of the loss suffered in order to offset the costs of litigation
over monetarily small disputes & encourage plaintiffs to enforce public
policy by bringing suit
iii. Punitive: aim at punishing defendants who have acted outrageously,
deterrence & retribution
1. only given in 5-7% of cases, median amount is $50,000, ratio is
1:1
IV. State Farm Mutual Automobile Insurance Co. v. Campbell
a. The investigators & State Farms found the Campbell was liable for accident, P
offered to settle for $50,000 (State Farms limit on insurance), State Farm turns it
down & tells the Campbell’s the risk is on State Farm, Went to trial, came back
for P for $185,849 & State Farm wouldn’t pay excess, told them to put for sale
signs on their house & State Farm would not post bond for the appeal
b. Campbell’s got their own lawyer, The two victims accepted the $50,000 if they
could join in litigation with the Campbell’s against State Farm
c. Campbell’s appealed & it was denied – then State Farm paid the excess damages
d. In federal courts on appeal because question is about due process, violation of
constitution amendment
e. Litigation #2: State Farm is saying that it was an honest mistake, Campbell’s
bring in lots of evidence on State Farms scheme for cutting costs (got the info
through discovery)
f. Issue: Does the large punitive damage violate due process?
g. BMW v. Gore
i. degree of reprehensibility of the defendant’s misconduct
1. the court really found State Farm reprehensible for their national
policy – not at issue here
ii. the disparity between the actual or potential harm suffered by the plaintiff
and the punitive damages award
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Specific Remedies
V. Civil is not obeying the order of the court: to testify on steroid investigation
a. you are incarcerated until the grand jury is done, or until you agree to testify –not a
crime, you are holding the keys to your own cell!
b. Criminal is violation of a court order “walked right through that restraining
order”—another crime
VI. Law & Equity
a. Law = common law
b. Equity = Chancellor, specific performance
c. 3 key differences
i. jury demandable: can you get a jury in this case?
1. law cases are
2. equity are not
ii. damages
1. at common law, looking back & want cash
2. equity- generally limited to specific performance, looking forward
& want to stop something
iii. how do you enforce it
1. money judgments through collection like procedures, cannot get
the defendant locked up for it
2. equity orders are enforced by compulsions (Greg Anderson)
d. money judgments are enforced through collection type procedures
e. equity orders are collected by coercion
VII. Specific remedies: courts may order parties to do things, or refrain from doing things, or
have official recapture personal or real property from defendants wrongfully possessing or
occupying it.
VIII. Sigma Chemical Co. v. Harris
a. Former employee of Sigma learns trade secrets while employed with there, Sigma
had him sign non-competitor agreement (can’t work with competitor for 2 years
& never disclose secrets)
b. Employee worked for competitor & blabbed
c. Sigma sued for equity (specific performance) – Injunction!
i. Damages would be hard to determine
ii. Even if Sigma got damages their trade secrets are still getting out
d. Balances hardship to the parties: to plaintiff if relief is denied & to the defendant
if its granted
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Declaratory Relief
IX. Declaratory Relief: parties seek a declaration of their rights without any coercive relief
such as damages or an injunction (Rule 57)
a. In order to retain a declaratory judgment the court must be convinced that there is
a substantial dispute—but it doesn’t have to be filed as a complaint
b. The law is set up to resolve real fights not hypothetical ones Case or
controversy must exist
c. Declaratory judgments appear to contradict this notion
i. The court must be convinced there is a substantial dispute
ii. How do you know it’s a real case?
1. person asking for relief must show that if he doesn’t get the relief
he will be in the middle of a dispute & it will be worse
d. A says he’ll build house for B using top quality material, B keeps complaining
about A’s material, B demurs stating there is no claim, A seeks declaratory relief,
granted because there is a confrontation & the damages will keep getting bigger
Financing Litigation
X. Part of the cost is provided by the public the judge, the court, salaries of institutional
lawyers (prosecutors) -- Others a provided by the parties form fees, expert witnesses,
attorney’s fees
XI. The American Rule: system in which each party pays its own legal fees
a. English Rule: Compensates winner with damages & cost of litigation
b. Way attorney’s are paid: contract/retainer letter, hourly fee, flat rate
XII. Insurance & The Contingency Fee
a. Contingent Fee System: lawyer agrees to provide legal representation, with the
fee to be paid from the proceeds of any settlement or recovery
b. Contingency fee attorney: (1) take every case you can get (2) be selective in what
cases you take
c. Successful cases must cover the expenses of the unsuccessful cases
d. It’s a form of insurance
i. Insurance shares costs between clients – pooling resources
ii. Same thing is happening on the P’s side
1. clients usually don’t have the money to pay the hourly fee
2. they pool the resources
3. the lawyer does all the work & is not paid if & until they win
e. There are some financial companies that will purchase an interest in your lawsuit
XIII. Public Subsidies & Professional Charity
a. If there is no potential monetary damages you cant have contingency fees
i. Persons with small claims & persons without liquid assets holdover
tenants, spouse & parents sued for divorce & child custody
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Provisional Remedies
XVII. Provisional Remedies: relief pending final adjudication of the dispute
a. Problems: (1) How should a court decide whether to grant temporary relief
without all the relevant information? (2) When does the curtailment of ordinary
procedures in granting provisional relief amount to a denial of due process?
b. If you wait for relief there will be catastrophic results, need emergency relief or
there will be irreparable harm
c. TRO Temporary Restraining Order: what you file for if there is no time to do
anything else – legal equivalent to shouting fire in a theater (You better be right!)
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i. Courts hate to do it
1. Ex parte orders: without the other party
2. most judges don’t allow if it its all possible to get the other party
there in some way
ii. Methods of TRO:
1. Stop
2. Do it right
3. Don’t Stop
iii. Rule 65(b) just because you want TRO for an emergency doesn’t mean
you don’t produce the other side in some capacity
d. freezes the case until the preliminary injunction can be heard - to keep the status
quo until judge/jury can decide the case
e. median time between cases to trial is 18 mo., preliminary injunction hearing can
be held in 2 mo.
f. Preliminary injunction: notice & opportunity to be heard
i. TRO- ahead of the preliminary injunction
XVIII. William Inglis & Sons Baking Co. v. ITT Continental Baking Co.
a. P will go bankrupt/out of business if a preliminary injunction is not awarded -
Lawsuit is for injunction & damages
b. Case filed in 1971 under anti-trust statute, injunction filed in 1974
c. District Court made D do a cost-benefit analysis
i. Appears to defeat fast-track = case specific
d. Rule: (1) P will suffer irreparable injury if the injunctive relief is not granted (2) P
will probably prevail on the merits (3) in balancing the equities, D will not be
harmed more than P will be helped by the injunction (4) granting the injunction is
in the public interest
e. Higher court says the trial court forgot about a test
i. Serious question on the merits & the harm is much greater to P than D
It is not necessary that the moving party be reasonably certain to succeed
on the merits, if the harm that may occur to P is sufficiently serious, it is
only necessary that there be a fair chance of success on the merits.
ii. court reversed now have to have another hearing & apply the test, or
just apply the facts if it can be done with out a hearing
f. What if the preliminary injunction was granted but then D won? Who’s liable?
i. not judge
ii. if the suit was frivolous then P could be
iii. if they acted in good faith then “tough luck” to D
g. D’s are reducing prices in an anti-trust fashion harm to P is staying business
fighting the market
i. Public interest: hurts poor who are buying the bread if we put in an
injunction to raise prices for P
1. If D can keep lowering the prices then they could put everyone out
of business & then shoot their prices up
h. Preliminary injunctions are interlocutory orders (grant of denials) that are
appealable
i. Garnishment & attachment are provisional monetary relief
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Pleading
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a. If you don’t know & you have to file to get that info or the statute is running out
you have a good faith reason for believing one or the other statement is true
V. Ethical Limitations
a. Rule 11 is part of the procedural guidelines but its an ethical limitation
i. so important, we want it to be so obvious to lawyers
b. To be sanctioned under Rule 11 it must be in writing
c. Rule 11 doesn’t apply to anything dealing with discovery
d. Under Rule 11 a lawyer can be for not doing proper research & party can be
sanctioned if they are responsible for the violation because he provided the
attorney false documentation
i. lawyers are required to be suspicious of their clients stories/ skeptical
about everything
e. there is a 21 day grace period with rule 11 where you can take back the complaint
i. not trying to punish, try to move along wheels of justice
f. Rule 11 doesn’t require you to correct to the complaint, but you cant refer to it
i. A good lawyer would withdraw it
ii. You are forbidden from later advocating a position you know to be false
VI. Walker v. Norwest Corp.
a. District Court granted D’s motion to dismiss the complaint (Rule 12(b)(1)) and
awarded sanctions of $4,000 worth of attorney’s fees (Rule 11) against Massey,
Walker’s attorney, for filing a diversity case in which he failed to plead complete
diversity citizenship & actually alleged facts against it. Circuit affirmed
b. P’s counsel thought it was too hard to find out the citizenship of all the D’s
i. Too hard is not believable – just do the research
ii. Bring it only against those D who he knows live in another state then you
can have it in Federal Court under diversity jurisdiction
iii. Violation of Rule 11(b)(2) he is trying to sue non-diverse defendants in
federal court – legal contention not warranted by law
1. cannot sanction a party for a violation of rule 11(b)(2) – this is in
11(c)(2)(B)
VII. Christian v. Mattell, Inc.
a. When awarding Rule 11 sanctions a court may only consider conduct regarding
pleadings, written motions, and other papers that have been signed and filed in a
given case.
b. District Court sanctions Hicks at least in part because he signed & filed a factually
meritless claim & for misrepresentations in briefing, but other examples given by
the court suggest they considered extra-pleading conduct
c. Why not move for Rule 12(b)(6) right away instead of bringing Summary
Judgment?
i. Because the copyright infringement was a valid claim but it was false
because cool blue Barbie was copyrighted first that is a denial to put in an
Answer
d. Why didn’t D move for Rule 11 sanctions right away?
i. Need to get something to show there is adequate proof of the frivolousness
e. The lawyer was obnoxious in many ways, but Rule 11 only deals with things filed
with the court
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1. The court of appeals is telling the judge that there are other
sanctions that go with the other behavior so articulate which facts
go with which sanctions
f. Mattell wanted over $500,000 in attorney’s fees
i. Rule 11 sanctions are for what was done that did not need to be done
ii. Mattell trying to make a profit
iii. The awarded fees must be justifiable
g. Why did the lawyer for Claudene doll cry poor? What if Mattell knew he was
poor?
i. Aggressive protection of the copyright
ii. They knew they wouldn’t get the money
iii. They care about the message to the legal community
h. Rule 11 isn’t just punishment – trial courts want to fix the problem & there are
other options for sanctions
i. Can make attorney apologize, continuing legal education.
VIII. Special Claims Requiring and Forbidding Specificity in Pleading
a. Stradford v. Zurich Insurance Co.
i. Stradford was a dentist that allowed his insurance to lapse and then filed
fraudulent charges for damaged property, insurance co pays first claim,
but catches on at the second one
ii. Stradford files suit for breach of contract & Insurance co. counterclaims
fraud
iii. Stardford makes a 12(b)(6) to dismiss the counterclaim because they failed
to articulate the fraud with particularity bringing to the courts attention the
violation of Rule 9(b)
iv. Do the defendant’s counterclaims of fraud comply with Rule 9(b) that “all
averments of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity?”
1. have to be particular with fraud cause it can be damming to your
reputation – claim on your character
2. it is a legitimate exception to Rule 8
v. The counterclaims do not satisfy Rule 9(b) because it did not state the
“time, place, and nature of the alleged representations” be disclosed to the
party accused of fraud. The claims did not state which statement made by
P was fraudulent.
vi. Motion for Summary judgment granted to D because of P’s breach of
contract (failure to cooperate with investigation)
vii. Why didn’t lawyer for insurance co bring breach of contract?
1. they want to be aggressive but they also want to keep their
reputation in tact – wants to show they don’t just not pay claims
b. District court allowed D to amend their pleadings – why?
i. Rule 15(a) allows for a fairly liberal amendment policy
ii. counsel wrote the court a letter & asked for leave to amend & put in what
the new pleadings would say & showed that it would further the resolution
of the case
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1. P’s counsel should be very worried about Rule 11- everything they
have written has been false
a. He has to show he has records & documentation
IX. Allocating the Elements
a. Which party has the responsibility for which issues?
i. Burden of pleading
1. one must allege the element of the claim or defense
ii. Burden of production (of evidence)
1. one must produce evidence that tends to demonstrate the
proposition at stake
iii. Burden of persuasion (Proving particular elements of the claim)
1. one must persuade the trier of fact that one’s version of the facts is
more likely than not to be true
b. Deciding who has the burden can be critical - Many cases are very close & the
side that has the burden will probably lose the very close case
i. P usually bears burden of proof
c. Hypo:
i. Persons shall be liable for injuries to others caused by failure to take
reasonable care; provided that no person shall be liable if the plaintiff's own
negligence was the primary cause of the injury.
1. D has the burden of proof for contributory negligence
2. P has to bring the negligence claim
ii. A person who is not himself negligent but who is injured by the negligence
of another, has a cause of action against the injurer.
1. P has the burden to proof for negligence & disproving contributory
negligence
X. Gomez v. Toledo
a. Gomez fired for being an honest cop, reinstated, sued claiming denial of due process
– suspension without a hearing
b. Qualified immunity: The right of a gov’t agent not to stand trial in civil rights
violation where actions took place under a reasonable misapprehension of the law
c. D moved to dismiss (Rule 12(b)(6)) & the court granted it because D was entitled
to qualified immunity for acts done in good faith within the scope of his official
duties & P did not allege bad faith.
d. Must D plead good faith as an affirmative defense? Yes
e. Court held that qualified immunity is available for a defendant to assert as a
defense & a plaintiff is not obligated to anticipate such a defense by stating in his
complaint that the defendant acted in bad faith.
f. Strategic- Why didn’t P just put it in the pleading that Toledo was acting in bad
faith? Because then the burden would have shifted to him & he has to prove it
XI. Thinking Like a Fox – Mark Neal Aaronson
a. Fox knows many things & Hedgehog knows one big thing
b. Lawyers tasks are multi-centered
c. History of law school
i. Lawyers used to be taught through apprenticeship
ii. In school setting is developed very slowly, first there were legal lecture
courses
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Discovery
Modern Discovery
I. Uses of Discovery
a. produces information about the merits of the lawsuit and permits parties to make
informed judgments about the strength of their and their opponent’s positions
b. because it costs time & money, enables one of the parties to wear the other down,
or both sides to wear each other down, without regard to the merits of the case
c. State & Federal courts adopted broad civil discovery rules
d. If we had open discovery both sides would need to have everything the other side
had no matter how private
e. If we had no discovery you couldn’t get anything from the other side. Trials
would be games of chance
f. What we have is closer to open discovery with important limitations The
guardians at the gates of discovery: (1) Relevance (2) Privilege
g. Trial court rulings in discovery usually melt into what happens at trial & the
discovery issue is usually not appealable (interlocutory)
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vi. Strategy: This will build a much stronger case, more people will join in the
action, and now there is real pressure for settlement to get this out of the
workplace
vii. Can they appeal right now? NO – it’s interlocutory!
b. Steffan v. Cheney
i. Self-proclaimed homosexual is challenging the constitutionality of the
regulations that provided for the discharge of admitted homosexuals from
the Naval Academy
1. He was let go from the navy not because he was a homosexual, but
because he said he was
ii. P objected that the questions of his conduct regarding his homosexual
behavior were not relevant to the legality of his separation. He refused to
answer deposition questions on this subject
1. DC dismissed P’s action for failure to comply with its discovery
order.
2. Could do this because of Rule 37
iii. P appealed and order was reversed b/c the nature of his conduct was not
the reason for his dismissal, therefore not relevant. What he did is not
relevant to what he said.
iv. Reversed because DC erred in dismissing claim for failure to comply with
a discovery order
v. Did the appellate court reverse district court for an abuse of discretion?
1. No they held that the question was irrelevant
2. No discretion to abuse because he had no power – don’t have
discretion over everything but over what the law allows them to do
a. reversal on the law, if they never had the power to do it in
the first place
b. have to have discretion in order to abuse it
vi. How did they get to the circuit court?
1. TC order granting sanction under rule 37 dismissed the case
a. not interlocutory, therefore appealable
IV. Privilege
a. Law of evidence creates privileges – protections for information from certain
sources
b. Common types of privilege
i. Self incrimination
ii. Attorney-client
iii. Doctor-patient
c. Rule 26(b)(1) contains an explicit exception: it makes discoverable “any matter,
not privileged, which is relevant.”
i. Relevance
ii. Not privileged
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b. Because we only have notice pleadings, we need to establish other things, which
the parties don’t actually disagree about
V. Ensuring Compliance
a. Rule 26(g) – general
b. Rule 37 – specific
VI. Others
a. phone calls, informal interviews, examination of public records, etc.
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iv. TC held that in order to have judgment set aside, appellant was
required to show that he had a meritorious defense, on the grounds that
without a defense, the same judgment would again be entered on
retrial (so appellant had suffered no harm from the judgment entered
without his notice).
v. AC reversed because D lost his property and there is no way to say
that the same result would have occurred, because he could have
borrowed money to pay the loan, worked out a settlement, etc. instead.
i. Rule 55(c): parties seeking relief from defaults get them set aside if they can
show some plausible reason for failing to respond.
j. Rule 60(b): permits the reopening of a case even after judgment is entered on
a default.
II. Failure to Prosecute: Involuntary Dismissal
a. Does to P what default does to D: forces them to pursue the lawsuit to some
resolution.
b. Rule 41(b): provides for involuntary dismissal “for failure of the P to
prosecute” – takes the lawsuit off the books.
i. When does “standard” foot-dragging become abandonment?
c. TC decision denying involuntary dismissal is not immediately appealable
because it is interlocutory. A denial of dismissal will be reviewed only if the
victorious party on the motion also wins the case on the merits.
d. With prejudice means you are sunk, final judgment, can only appeal
e. Without prejudice to refilling the identical motion - means I’m denying it right
now
III. Voluntary Dismissal
a. Rule 41(a)(1)(i): allows P to dismiss any time before D answers
b. Rule 41(a)(1)(ii): permits P to dismiss the suit at any time if all the parties
agree.
c. Rule 41(a)(2): authorizes a voluntary dismissal after D answers only by
permission of the court.
d. Moral: if a voluntary dismissal will harm your case, answer the complaint
promptly and lock P into the forum.
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iii. Settlements do not need judge approval though they must grant P’s request
to dismiss the case if that’s part of the deal. (except in class actions &
multi-defendant cases & if minor is imvolved).
iv. Settlements are contracts and can be attacked on any of the grounds on
which one can attack any contract: fraud, duress, mistake, incapacity,
unconscionability, etc.
v. D wants the lawsuit to go away, but for a court to enter a judgment on the
merits
1. Involuntary dismissal with prejudice: Rule 41(b)
a. Acts as a judgment on the merits and allows the scope of
the claim to be defined by the doctrines of former
adjudication rather than by the contract of settlement.
vi. Parties can stipulate to liability but contest damages; or they can stipulate
to one of two damage figures, trying only the question of liability to the
jury.
c. Client question: Am I gonna win? How much?
i. Avoid saying your gonna win
ii. Avoid saying I don’t know
iii. Give a fair assessment – say I cant tell future, but this is how I assess the
possible outcomes
1. tell client & write it down
2. give reasonable assessment with reasons for that assessment[set
parameters of client’s risk; their decision]
d. Agree to settle with opposing counsel- Problems that might come up:
i. Release of liability- someone has to draft a release to do away with the
lawsuit
ii. withdraw the case if it’s in litigation (voluntary dismissal, etc.)
iii. put in the agreement money must be given within a reasonable time, if not
there will be interest
iv. confidentiality – part of the deal can be keeping it quiet in some way
v. have you settled the whole case?
1. Be clear what you’re settling
2. Can settle on liability not damages
3. Rare- but you can agree of damages & not liability
vi. Enforcement:
1. Employ contract law or make the settlement part of a court decree
a. court decree usually because its easier, can’t do it when no
suit was filed
b. cts can enforce their own decrees
2. Problem: original lawsuit for violation of civil rights law in federal
court; settle the case with a contract--- other side breaches
a. Go back to court?
i. you can only go back to the same court if you can
show jurisdiction
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ii. Arbitration: parties need not be present, can be done through parties
iii. Binding arbitration: parties bound to arbitrators decision
iv. Non-binding arbitration: the parties present their cases to an arbitrator who
issues a decision. Decision is only binding if the parties accept it.
v. Summary Jury Trial: Small jury is chosen (>8 members) parties present
their cases to the jury in very abbreviated form, the jury is charged,
deliberates, and returns its verdict, which is not binding.
1. not a separate ADR procedure
f. Contracting for Confidentiality
i. Kalinauskas v. Wong
1. P wishes to depose Thomas who also filed a sexual harassment suit
against Caesars about the same person, but Thomas settled with a
confidential settlement agreement.
2. P wants to depose Thomas and serves notice. Caesars would file
motion for protective order [Rule 26c]– Thomas would be
violating confidentiality embodied in settlement contract
3. Pros & Cons of allowing this discovery
a. Con: To allow full discovery into all aspects of Thomas’
case could discourage similar settlements, the secrecy of a
settlement agreement and the contractual rights of the
parties deserve court protection.
b. Pro: Preventing the deposition of Thomas would condone
the practice of “buying the silence of a witness with a
settlement”
c. Pro: Likely to lead to relevant evidence, not allowing this
deposition would lead to wasteful efforts to generate
discovery already in existence.
4. Allowed the deposition of Thomas but could not disclose any
substantive terms of the Thomas settlement.
II. Contracting for Private Adjudication: Arbitration and its Variants
a. Benefits of arbitration
i. Permits the parties to design their own procedure
ii. Parties may control the applicable substantive law
iii. Faster, cheaper, more private
iv. Ensure a decision maker who is experienced in the field (because they can
arrange what kind of arbitrator to have)
v. May decide the case more “softly” than a court
b. The process is an adjudicated process- attorneys make arguments, its adversarial
c. Pre-dispute arbitration
i. Earlier courts refused to enforce pre-dispute arbitration agreements; they
would enforce arbitration only if the parties chose the method after the
dispute had arisen.
ii. Case law & statute, the rule has generally been changed in favor of
arbitration even if agreed to by the parties before any dispute has arisen.
d. Federal Arbitration Act
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e. Celotex Corp – focuses on what the party moving for summary judgment must do
to justify a court’s granting its motion
i. Before this, the leading case on federal SJ was Adickes where the court
held that the D moving for SJ had the burden of showing that P could not
prevail at trial.
1. standard = anything you can prove from now until trial
2. Celotex claims to not overrule this case
f. Bias v. Advantage focuses on what a party opposing the motion must do to defeat
it.
g. Steps of Trial to Summary Judgment
i. Malpractice for losing custody of child to husband
1. D filed 12(b)(6) motion denied
2. P made Motion for summary judgment?
a. Denied – there is nothing there yet – must do discovery –
Premature
3. D then files an answer that denies negligence, denies causation and
includes a counter-claim for unpaid lawyer’s fees - P then files a
reply to the counter-claim
a. She did not pay the lawyer’s fees because of incompetency
4. D then files a judgment on the pleadings 12(c)
a. Can the lawyer do this - this is a legal question
i. Is the refusal to pay the lawyer’s bill on the grounds
that the lawyer was incompetent a valid defense?
ii. The response is not “I need discovery”
iii. Depends on the substantive law of contract i.e. is
the defense of competency valid?
5. The parties are now ready for discovery – how and what do they
do?
a. Plaintiff
i. P is entitled to everything in D’s file for the divorce
case since she was the beneficiary of the lawsuit
that she is claiming malpractice for
ii. There are 2 cases on which work product may apply
1. The divorce case full access
2. The malpractice case work product
protection
b. Defendant
i. Want to retain an expert to evaluate the handling of
the case
ii. Are there any facts that would make it clear that she
would never have retained custody?
iii. Did the lawyer tell her that she would not get
custody?
6. Request for admission
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e. SC doesn’t think Adickes should be construed to mean that the burden is on the
party moving for summary judgment to produce evidence showing the absence of
a genuine issue of material fact, even with respect to an issue on which the
nonmoving party bears the burden of proof.
i. Instead, the burden on the moving party may be discharged by “showing”
that there is an absence of evidence to support the nonmoving party’s case.
ii. At the moment the SJ motion is before the court P must prove they have a
case
f. In this case, D can prevail on a SJ motion in 2 ways
i. Prove that Mr. Catrett was not exposed to its asbestos
ii. If Mrs. Catrett failed to show that Mr. Catrett was exposed to its asbestos
g. Celotex made the standard = nonmoving party has to prove a genuine issue of
material fact as of the SJ motion
i. discovery should be used to find all the facts, need it done by the time SJ
comes
h. A party seeking to resist SJ bears the burden of production as to the issue
i. P failed to supply an evidence of a link
i. Practical impact: more SJ granted, nonmoving party is not allowed to just go
fishing, counsel will be more thorough in discovery
III. Bias v. Advantage International, Inc.
a. DC granted SJ to D because even if D had tried to obtain a one-million dollar
policy on a cocaine user’s life they would not have been successful
i. i.e. the breach resulted in no damages
b. SC has stated that the moving party always bears the initial responsibility of
informing the DC of the basis for its motion and identifying those portions of the
record which it believes demonstrate the absence of a genuine issue of material
fact (Celotex).
i. Once they do this, the burden shifts to the non-moving party to prove the
moving party is wrong.
c. Rule: In order to withstand a summary judgment motion the nonmoving party
must come forward with specific facts showing that there is a genuine issue for
trial.
d. P’s counsel should have known affidavits from mom, dad & coach weren’t
enough & D’s witnesses should have been deposed
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i. Setting an early date for trial – setting a firm trial date will prevent counsel
(and judges) from procrastinating; deviations from schedules have to be
justified.
d. Vast majority of a judge’s time is not spent presiding over a trial, vast majority is
presiding over case management
i. At trial judges are passive, much more active in management stage
ii. Judges have become managers of the judicial process rather than to say the
focus of a court is to sit and rule on objections
iii. Affirmatively force the parties to narrow the issues
1. Significant percentage of cases require SJ rulings, including partial
SJ where on or more issues are knocked out of case
II. Sanders v. Union Pacific Railroad Co.
a. District judge issued a form order concerning preparation for the pretrial
conference. Order set forth a schedule for the filing of various motions,
oppositions, proposed instructions; and warned the parties that a failure to comply
could result in sanctions.
i. Point of schedule is to reduce surprise at trial
ii. Rule 16 allows judge to make pretrial schedule
b. Sanders counsel consistently failed to meet deadlines, submit briefs, stay on
schedule, etc., making it clear that he was not ready to go to trial.
i. On a case that went too long, didn’t tell judge
c. DC dismissed Sander’s action with prejudice as a sanction for failure to comply
with the pretrial order. Rule 37 allows him to do this. Did so because:
i. Sander’s counsel had failed to comply with the pretrial order
ii. D had already incurred great pain and expense in preparing for trial
iii. Other litigants before the DC would be inconvenienced by a delay in the
present case
iv. Sander’s case did not involve important questions of public policy.
v. Trial judges are constantly struggling to avoid the increasing problems of
delay and expense – court held that you must not allow the flagrant
disobedience of judges’ orders to bring about further delay and expense.
vi. En Banc panel reversed DC – sent to a diff judge (slap in face)
1. En banc procedure: lose at trial, file an appeal to the circuit court,
heard by a 3 judge panel, lose again, can file for rehearing to the
panel or file a petition for rehearing en banc, can be denied, or can
file a writ of cert
vii. Options for new judge:
1. Dismiss without prejudice (what P wants, he needs the time)
a. D’s counsel will be mad because D already shared all their
discovery & P can make their case based on D’s work
2. Give D attorney’s fees for the time they spent when P stopped
cooperating
3. Give P a time table (short times) & if he’s one day late it’s
dismissed with prejudice
III. McKey v. Fairbairn
a. Pretrial order important because it limited the scope to negligence
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ii. Judge called the paper & said she had discretion to make public comments
about court procedure
1. Talk about a pending case is totally different from talking about
court procedure especially with these controversial cases
iii. Instead of public comment, could have spoken to both counsel in chamber
1. Gag order inappropriate because there was no jury involved
iv. Should not respond, she has life tenure, no need to worry
v. Issue: Should a sitting DC judge have recused herself after commenting
publicly on a pending matter?
vi. §4559(a) requires any judge to disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.
1. Seeks to balance 2 competing policy considerations
a. Courts must not only be, but seem to be, free of bias or
prejudice
b. The fear the recusal on demand would provide litigants
with a veto against unwanted judges.
vii. Although the judge’s statements may be legitimate efforts to explain
operative law, the comments were sufficiently open to misinterpretation so
as to create the appearance of partiality, even when no actual prejudice or
bias existed.
viii. After-the-fact cases appeals will often involve 2 questions:
1. Should the judge have recused himself?
2. If so, did the failure to recuse involve a sufficiently serious
likelihood of injustice as to overturn or reopen the case?
ix. Why grant a writ of mandamus? Judge denied counsels motion to recuse,
not a final order, writ was the only thing he had because he couldn’t
appeal at this point
d. Liljeberg v. Health Services Acquisition Corp
i. Leading SC case interpreting §455
ii. Reopened a judgment because it was discovered that the judge sat on the
board of directors of a university that stood to profit or lose depending on
the decision of the case.
1. §455(b)(4) requires that the judge know of the interest in the case,
this judge claimed he had no idea about the university’s interest.
2. SC required the reopening of the judgment because an objective
observer would have questioned the judge’s impartiality.
e. Blank v. Sullivan & Cromwell
i. Counsel wanted the judge recused because she was a black woman civil
rights attorney & this was a civil rights issue
1. This attorney was soooo wrong!
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b. Becomes cloudy area when you talk about bankruptcy court which operates
without a jury
IX. Discrediting arguments that the FR’s violate 7th amendment
a. 12(b)(6) no claim
b. Summary Judgment never put forth evidence to support claim
c. Directed Verdict at the end of trial, the evidence put forth is not such that a
rational jury could make such a decision
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