Introduction: Commencing a Lawsuit

I. The Role of Lawyers in Civil Litigation (CB 1-17, RS

xiii-xiv and 405-407)

II. Jurisdiction
a. Subject Matter Jurisdiction

i. Defined by Art III § 2.

ii. A party wanting to put a case in fed court must make an

aff showing that it belongs there.

iii. A case may be removed for lack of SMJ at any time.

iv. Federal Q

1. § 1331

2. US Constitution, Statute, Treaty

v. Diversity

1. Substantive law of state applies/Procedural law of the

fed court applies

2. § 1332

3. Citizens of Different States – No P can be from the

same state as any D.

4. Matter exceeds $75,000 – MUST BE $75,000.01 or

higher.

a. Claims can be aggregated, but interest/atty’s

fees are excluded.

5. Natural person: based on:

a. Domicile

b. Birth, or

c. Established by intent to stay for indefinite

period
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 d. (Voters registration)

6. Corporate persons

a. State of incorporation or

b. Principle place of business

i. “Never Center” (HQ) Test

ii. “Place of Operations” (activity) test

iii. “Total Activity” test (take both into

account)

7. Diversity MUST BE COMPLETE – (Strawbridge v Curtis

Rule)

8. Nominal parties are ignored (when infant is a party,

guardian of infant are deemed to be of the same
state as the infant.) 28 USC § 1332(c)(2)

vi. Hawkins – deals with diversity/personal jurisdiction – voter

registration case – gf in one state, mom in another

b. Supplemental jurisdiction - governed by 28 USC § 1367.

i. If a district court can exercise jur over some of the claims

in a case, in certain circumstances it may be able to
exercise jur over the other claims that don’t themselves
qualify for federal jurisdiction under § 1331 or § 1332. –
Called supplemental jurisdiction.

ii. Overview

1. Available only when at least one claim independently

qualifies for federal SMJ. Courts refer to this as the
federal claim.

2. Diversity or federal question – the federal claim can

be either.

a. Exception – The supplemental jur statute

contains an important exception that applies

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 when the federal claim is a diversity claim –
see § 1367(b) below.

3. § 1367 applies only to federal district courts, but

because federal appellate and Supreme Court have
appellate jurisdiction over district courts, this
distinction usually doesn’t matter.

iii. Applying § 1367 – two step process – determine if state and

fed claims have sufficient factual relationship to qualify. If
it does, supp jur may be precluded if the situation falls into
an exception under § 1367(b) or (c)

1. Relationship test – Whether the two claims “form

part of the same case or controversy” under Art 3 of
the Constitution. 28 USC § 1367(a)

a. “Same case or controversy” – Two or more

claims comprise the same Art III case if they
arise out of the same basic set of facts.

b. If litigation of the claims involve many of the

same witnesses or other evidence, they’re
likely to satisfy the test.

c. Claims that stem logically from the same core

T or O are likely to qualify as well.

d. Constitutional grounding - United Mine

Workers v Gibbs – Court said Art III of
Constitution gives fed courts jurisdiction not
over “claims” but instead over “cases”. A
“case” comprised all claims that arose out of a
“common nucleus of operative fact”. Therefore,
Art III permitted fed jur over the entire case,
not just the fed question or diversity claims.

e. “Common Nucleus” standard – Although the

statute doesn’t use this language, legislative
history of § 1367 shows Congress intended to
codify the common nucleus standard. Others
have argued it’s not exactly the same as the
“same Art III case test”.
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2. Exceptions – § 1367(b) limits the use of supp jur
when the jurisdiction over federal claim is based
solely on diversity. § 1367(c) gives courts some
discretion in refusing to exercise jurisdiction

a. Diversity exception – 28 USC § 1367(b) – in

cases based solely on diversity, (b) prevents
use of supp jur over claims brought by
plaintiffs against parties joined under FRCP 14
(Impleader), 19 (compulsory joinder), 20
(permissive joinder), 24 (Intervention). Each
claim must independently meet the criteria for
diversity.

i. Based solely on diversity - This exception

doesn’t apply if any of P’s claims qualify
for jurisdiction under § 1331 (fed
question jur) or another jurisdictional
statute.

ii. By plaintiffs – The exception applies only

to parties “captioned as plaintiff” in the
original/amended complaint.

1. Counter- or cross-claims – §
1367(b) never bars counterclaims
or cross-claims by D

2. Third-party Claims – When D files a

3PC, he is labeled D-3PP. This does
not count as a plaintiff under the
exception.

3. D didn’t choose to be sued, so

court is more lenient in extending
jur over state claims.

4. (Any D can bring any P into a suit

but fed courts are undecided as to
whether 3PD can bring a supp jur
claim against original P if there
isn’t independent jurisdiction.)

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 iii. Listed rules – § 1367 only bars state law
claims made against parties who are
made parties under 14, 19, 20, 24 or who
seek to intervene as plaintiffs under 24.
As well as claims by parties who
intervene as Ps under 24 or who are
joined as involuntary Ps under 19.

iv. R20 and permissive joinder – each D

must independently meet the criteria for
diversity jurisdiction

v. Single P/Single D cases – unnecessary to

consider supp jur in these cases because
if P has one claim that gets into fed court
on diversity, he can aggregate all other
claims. Also, under aggregation rules, all
claims can be taken together to meet
amount in controversy requirement.

b. Discretion exception – 28 USC § 1367(c)

i. Allows fed court to refuse to exercise

supp jur over a state claim:

1. if the state claim raises a novel or

complex issue of state law

2. substantially predominates over

fed claim

3. if the district court dismisses all

federal claims

4. in exceptional circumstances, for

any other compelling reasons.

ii. Predominance is not measured only, or

even primarily, in dollars. If the state
claim is factually complicated and will
require the majority of the court’s
focus/attention, the predominance factor
can be satisfied.

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 iii. Other compelling reason – few courts
have dismissed under this catchall.

c. Procedure if exceptions apply – The court will

dismiss only the state law claim. It will retain
jurisdiction over the remaining claims

d. Extension of limitations period – IF the court

dismisses a state law claim, § 1367(d) extends
the limitations period for that claim. Limitations
period is tolled while case is in fed court, and
for 30 days after dismissal, unless a longer
period is provided in state law – this is so P can
refile the dismissed claim in state court.

c. Venue

i. Fed Venue – must have personal jur over all Ds

ii. 28 USC § 1391 governs

iii. Where the suit should be brought (geographically, now that

we know what court it belongs in)

iv. Things to think about

1. Where it took place

2. Where D lives

3. Where property is located.

d. Personal

i. If you can serve at the time, you have personal jur

ii. The ability of the court to exert power over a person

iii. Must have “minimum contacts” in the state or jurisdiction

iv. Only need to know for purpose of R12 motions.

e. General – state courts – can also hear fed claims, unless the
statute provides otherwise. Parties can still remove though.

f. Limited – all fed courts are courts of limited jur.

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III. Complaints I-II (CB 329-341, Rules 1-3, 7 and 8) (CB
341-354)
i. Modern versus Medieval Pleading

1. Generally

a. Modern pleadings addressed to the court, not

the parties

b. Default judgments are a modern thing – not

true in medieval times.

c. No “jurisdiction” in medieval courts – you just

had to pay fee to king.

2. Modern pleading

a. Eliminates cases that suffer from procedural

defects.

b. Shapes discovery

c. Possible to eliminate claims entirely (after

discovery)

ii. Early CL Pleading

1. Aimed at defining precisely the issue in contention

between the parties

2. Aimed at separating disputes focused on law from

those focused on fact

3. Responses to allegations

a. Dilatory pleas – responses that delayed the suit

but didn’t constitute resolution on the merits

i. Challenges to jurisdiction

ii. Pleas in suspension – challenge to P’s

right to bring the action until some
problem was resolved.

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 iii. Pleas in abatement – Challenged
procedural defects in complaint – ranging
from spelling errors to the pendency of
some other action on the same claim
between the parties.

b. Peremptory pleas – (when claims couldn’t be

disposed of through dilatory pleas) – had to do
with merits of the claim.

i. Demurrer – conceded the truth of

opponent’s factual allegations but
challenged their legal sufficiency – “So
what?”

ii. Traverse – Conceding legal sufficiency of

the plea but denying the factual
allegations – “Not true”

iii. Confession and avoidance – Conceded

both legal sufficiency and factual truth of
preceding plea, but alleged add’l facts
that changed their significance – “Yes,
but”

iii. FRCP Pleading

1. Fed pleading is notice pleading, not fact pleading.

2. Filing a claim commences an action. FRCP 3.

3. Parties other than P may seek relief through

counterclaims, cross-claims, or third-party claims

4. FRCP 8 and 9 establish standards for all these

claims

a. Applies to all claims – Rules in this section

apply to P’s complaint, CCs, C-Cs, and 3PCs,
even though it only says “P” and “complaint”.

b. Content of complaint FRCP 8(a)

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 i. short and plain statement of the basis for
SMJ

ii. short and plain statement of P’s claim –

allegations, proofs aren’t required.

iii. a demand for judgment setting out the

relief plaintiff seeks.

c. Jurisdiction

i. Federal Question – If jurisdiction based

on federal question, complaint cites the
fed statute or constitutional provision
involved.

ii. Diversity – complaint will state the

citizenship of the parties and specify that
the amount in controversy exceeds
$75,000.

iii. Supplemental Jurisdiction – Complaint

should indicate the claim in the suit to
which the claim in question is
supplemental and specify that the claim
in question forms part of the same Art. 3
case as that other claim.

d. Statement of the Claim

i. Basic standard – claim is sufficient if it

provides D adequate notice of the P’s
claims and of the basic situation(s) from
which the claim arises.

ii. Pleadings construed to do justice – FRCP

8(e) and (f) reinforce this

1. 8(e) – all averments shall be

“simple, concise, and direct”

2. 8(f) – all pleadings are to be

construed “as to do substantial
justice”
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iii. Example, sufficient complaint

1. On June 1, 2000, on X street in

Boston, defendant negligently
drove a motor vehicle against P
who was crossing said highway.

2. As a result P was thrown down and

had his leg broken and was
otherwise injured, prevented from
transacting his business, and
incurred expenses for medical
attention in the sum of 80,000
dollars.

iv. Legal conclusions – Ex, if P alleges D was

negligent, P need not allege exactly how
D was negligent.

v. Legal theories

1. As long as P states sufficient facts,

she can rely on any legal theory
that provides a cause of action
under those facts.

2. P must provide enough of the basic

facts to allow D to form a response.

vi. Inconsistency – A party may assert

alternative, even inconsistent, grounds
for relief FRCP 8(e)(2).

vii. Elevated pleading standards –

1. Fraud and mistake – A party

bringing a claim based on fraud or
mistake must state the
circumstances constituting fraud or
mistake with particularity FRCP
9(b).

a. A general allegation of D’s

“fraud” is insufficient. P must
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 describe D’s representations
and why they were incorrect.
Pratt v Whitney Aircraft -

b. Courts have dismissed fraud

claims pursuant to 9(b) even
where pleader alleged
specific communications
because the claims lacked
“particularized facts to
support the inference that [a
party] acted with fraudulent
intent.” Shields.

c. Other issues in a
fraud/mistake case, like
malice, intent knowledge,
etc, are not subject to the
higher standard, but may be
alleged generally.

2. Special damages – a party who

claims any special damages
(special injuries – injuries to P that
wouldn’t be reasonably expected –
heart attack after being hit by a
baseball bat) must allege them in
the complaint. FRCP 9(g).

viii. Pleading special matters (did we go over

this?)

1. Capacity

a. Claimant need not allege that

it has capacity to sue D or
that D has the capacity to be
sued. FRCP 9(a)

b. However, if the party is suing

in a representative capacity,
or suing the representative of

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 another, it may need to
allege the capacity as
necessary to prove
jurisdiction.

2. Conditions precedent – When a

claim turns on the satisfaction of
one or more conditions precedent,
P may allege generally that all
conditions have been met. FRCP
9(c).

3. Official documents and acts – If P’s

claim turns on an official doc or
act, P only needs to allege that doc
was issued or act performed “in
compliance w/ law” FRCP 9(d)

4. Judgment – If P is suing to recover

on a judgment rendered by another
court, he need not allege that the
rendering court had jurisdiction
FRCP 9(e).

ix. Prayer for Relief – P must specify the

remedy he wants court to grant

1. Different types allowed – P may

seek several types of relief on a
single claim. Can also seek
alternative forms of relief. (Ex,
rescind the K or, in the alternative,
reform it)

2. Prayer is non-binding

a. Even though the prayer is

required, court is not limited
to the prayer when it
determines actual relief.
FRCP 54(c).

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 b. Court may grant relief in
excess of the damages
sought.

c. Exception – in a default
judgment, the prayer is
binding. FRCP 54(c).

IV. Ethical Limits on Pleading and Pleading Disfavored

Claims (CB 354-371, Rules 9 and 11)
a. FRCP 11 – strict standards to ensure honesty and accuracy in
pleadings and motions

b. FRCP 11 is judged based on what you knew at the time of the

signing – if new info comes up in discovery, you haven’t violated
R11.

c. Sp Ct said it was constitutional – 28 USC § 2072 said that rules

can’t infringe on substantive rights – SC said R11 doesn’t
infringe)

d. Signing requirement – FRCP 11(a) requires certain

documents be signed by at least one attorney of record for the
party, or the party himself if unrepresented.

i. Applies to most documents the parties file w/ the court,

including pleadings and motions

ii. Unfiled Docs - Only filed papers are covered.

Correspondence between parties not covered.

iii. Discovery not included, including motions to compel or

object to discovery requests – FRCP 26(g) establishes
separate signing requirement for discovery.

iv. Failure to sign – if paper subject to signing requirement is

presented to court is unsigned, it is stricken.

e. Representations made to court – Implied Certifications. When

an attorney or unrep party presents a matter to the court, he is
deemed to have certified things concerning it. If certifications
aren’t accurate, party is subject to sanctions.

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i. In many states, this is limited to signed papers

ii. In the federal system, FRCP 11 is not limited to signed

papers, rather it applies to any pleading, motion other
paper is presented to the court. Can be presented by

1. Signing the paper

2. Filing or otherwise submitting the paper, regardless

of whether it is signed

3. Advocating the contents of the paper to the court.

(FRCP 11 requires the existence of a paper of some
sort. Merely advocating a matter not set out in a
pleading, motion, or other paper does not expose a
party to Rule 11 sanctions.)

iii. Certifications made – attorney or unrepresented party

certifies that:

1. She has conducted an inquiry into the matter that is

reasonable under the circs

2. That the following are true to the best of the

person’s knowledge, information, and belief:

a. The pleading, motion, or other paper is not

presented for any improper purpose
(“improper” explicitly includes harassment and
delay)

b. All legal arguments in the paper are supported

either by existing law or by a non-frivolous
argument to extend, modify, or reverse
existing law.

c. All factual contentions are either currently

supported by evidence, or are likely to be
supported by evidence after further
investigation or discovery (provided the
currently unsupported contentions are
specifically identified).

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 d. All denials of factual contentions are either
supported by evidence or are based on belief
or lack of information (provided the currently
unsupported denials are specifically identified).

iv. Sanctions

1. Christian v Mattel – R11 covers pleadings not

discovery

2. FRCP 11(c) allows a party to move for the

imposition of sanctions. Courts on their own can also
impose sanctions.

3. The rule contains a safe-harbor provision that gives

the offender the opportunity to cure her error in
certain situations

4. Sanctions are never required. They are discretionary,

and rule 11 limits the court’s discretion concerning
the type of sanction.

5. Process – One party moves for sanctions or the court

does it itself. In each case, the person to be
sanctioned must be afforded notice and an
opportunity to be heard.

a. By motion – FRCP 11(c)(1)(A) allows a party

to move for sanctions

i. Service – party first serves the motion on

offending party.

ii. Safe harbor – a motion for Rule 11

sanctions is not immediately filed.

1. Timing – Motion may be filed only if

the offending party does not
withdraw or correct the challenged
paper w/in 21 days following
service of the motion or other
period established by the court.

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 2. Use with complaints – Safe-harbor
provision may not apply to false
allegations made in a complaint.
Religious Technology Center v
Gerbode – the court reasoned that
it was impractical to apply the rule
to the complaint given that the
defendant was required to answer
before the safe harbor expired.

iii. Costs and fees – Court may award costs

and reasonable attorneys’ fees to the
party who prevails on a motion for
sanctions.

b. Court’s initiative – Court can impose sanctions

on its own pursuant to FRCP 11(c)(1)(B)

i. Court must issue an order to show cause

why sanctions should not be imposed.

ii. The safe harbor provision doesn’t apply

to sanctions imposed on the court’s own
initiative.

c. Order – an order imposing sanctions must

specifically describe the offending conduct and
justify sanctions imposed FRCP 11(c)(3).

6. Persons subject to sanctions – Court may impose

sanctions on individual attorneys who violated the
rule, their law firm, and a party. There are limits on a
court’s power to sanction a party.

a. A court may sanction a party only if she either

violated the rule herself or was responsible for
the violation FRCP 11(c).

b. Monetary sanctions cannot be imposed against

a represented party for violating the provision
dealing with wrongful legal contentions FRCP
11(c)(2)(A).

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7. Sanctions allowed – Rule limits sanctions to whatever
is “sufficient to deter repetition” of such conduct in
the future. Thus, a sanction may be punitive. FRCP
11(c)(2) allows for the following sanctions.

a. Nonmonetary sanctions, which the Advisory

Committee notes suggest may include an order
striking pleadings or issuance of a reprimand;

b. A penalty, which must be paid to the court

instead of the other party; and/or

c. Where a party moved for sanctions, an order

requiring the offending party to reimburse the
movant for costs and attorneys’ fees caused by
the violation. Costs and fees are available only
when needed for effective deterrence.

d. Distinguish – Order for fees imposed as a

sanction versus an order for reimbursement of
fees under FRCP 11(c)(1)(A).

i. Rule 11(c)(1)(A) – allows only fees

incurred in prosecuting or defending the
motion

ii. Fees granted as a sanction are those

incurred as a result of the violation itself
and may include amounts expended on
unnecessary discovery/legal research.

8. Determining appropriate sanction – AC notes indicate

the court has considerable discretion in determining
appropriate sanctions. Certain factors the court may
consider are:

a. Whether the violation was willful or merely

negligent.

b. Whether the offending party intended to injure

the other party.

c. Whether the offending person has had legal

training.
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 d. Whether there was a pattern of offending
conduct, in this case or others.

e. Whether the wrongful activity pervades an

entire pleading or motion or only a particular
claim/defense.

f. The effect the violation had on the litigation

process, including a consideration of added
time or expense.

V. Amendments (CB 393-405, Rule 15)

a. A pleading can be changed to (1) cure a defect in the original, (2)
to reflect new information acquired since the original, or (3) to
incorporate events that occurred after the pleading was filed. In
some situations, party must obtain permission to amend.

b. When permission of the court is required – FRCP 15(a) allows a

party to amend its pleading once without obtaining court
permission (rule calls this “as a matter of course”), provided the
amendment is made within certain time limits.

i. Before responsive pleading served – IF pleading is a

complaint, an answer with a counterclaim, a cross-claim, or
a 3rd party complaint, the party must amend before the
responsive pleading is served.

1. Time limit based on the actual service of the

responsive pleading, not the deadline for service.
(Even though D is allowed 20 days to answer a
complaint, the time to amend as a matter of course
expires when answer is served, which can be more or
less than 20 days.

ii. 20 days after pleading served – for all other pleadings, the
party must amend within 20 days after the pleading is
served. It’s a fixed timeline because no responsive
pleading is required for these pleadings.

iii. 12b motions are not responsive pleadings.

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 iv. Obtaining court permission – If a party desires to amend
after these deadlines or to amend a second time, must
obtain permission of the court. FRCP 15(a) says that leave
to amend “shall be freely given when justice so requires.”

1. Courts are extremely accommodating. Leave to

amend is denied only if the other party can show
prejudice by the amendment or the defect in the
original pleading was the result of inexcusable
neglect or carelessness on the part of the pleader, or
if the there is undue delay, bad faith, or a dilatory
motive on the part of the movant.

2. Beeck v Aquaslide N Dive Corp- court denied

Aquaslide’s request to amend because of prejudice.
Because statute of limitations had run, P would have
been left w/out a claim if the amendment were
allowed. Harsh ruling, but probably allowed because
the same insurance co. insured both the defendant
and the actual manufacturer.

v. Amending during/after trial – A party can amend its

pleadings during, or even after, trial, w/ court’s permission
FRCP 15(b).

c. Relation back of amendments

i. FRCP 15(c) Allows some amendments to relate back to

the date of the original pleading.

ii. Affects statute of limitations – Relation back is important

when party wants to add new claims after the statute of
limitations has expired. If the original pleading was timely,
and the amended pleading adding new claims relates back,
the new claims will not be barred by the statute of
limitations.

iii. RB unrelated to need for court’s permission – Whether an

amendment relates back has nothing to do w/ whether a
party needs to obtain court’s permission to amend. 15(a)
and 15(c) address entirely separate questions.

iv. Amendments adding claims relate back when:

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 1. The particular statute of limitations allows the
amendment to relate back; or

2. The claim or defense set out in the amended

pleading arose from the same conduct, transaction,
or occurrence as that set out in the original pleading.

v. Amendments changing parties relate back when:

1. The amended complaint meets the standard

discussed just above for relation back of claims, and

2. The party being brought in by amendment acquires

sufficient notice about the existence of the lawsuit
within the specified time.

a. Formal notice of lawsuit not required – “Notice”

in this context is not the same as service. It is
sufficient if the party learns of the action by
word of mouth or other informal means.

b. Sufficiency of notice – Notice must be received

early enough to prevent any prejudice to the
party in preparing its defense and contain
enough information that the party is aware or
should be aware that he would have been
named a defendant in the original action if a
mistake had not been made as to the ID of the
parties.

c. Timeliness – Notice must be acquired by the

FRCP 4(m) deadline for serving the summons
and complaint, typically 120 days after the
complaint is filed, but may be extended by the
court. The time period turns on the deadline
for service, not when service is actually
effected. (ex p 138 supp)

vi. Other changes to the pleadings – FRCP 15 also authorizes

amendments to conform the pleadings to the evidence and
supplemental pleadings.

1. Amendments to conform to the evidence

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 a. If a party attempts to introduce evidence on
matters outside the pleadings, the other
parties may object.

b. If a party fails to object, he’s deemed to have

impliedly consented to litigation of the issues
raised in the evidence.

c. In addition, a party may expressly consent to

litigation of matters outside the pleadings.

d. If a party consents, FRCP 15(b) provides that

any issues raised “shall be treated in all
respects” as if they were raised in the
pleadings and allows a party to amend its
pleadings to make them conform to the newly
raised issues.

e. Even if a party objects, the issue may end up

forming part of the trial. FRCP 15(b) provides
that a court should freely allow amendments if
it will help resolve the merits, unless the
amendment would cause other parties undue
prejudice.

2. Supplemental Pleadings – a party might be allowed

to supplement its original pleadings to set forth new
matters FRCP 15(d)

a. Amendments distinguished – supplemental

pleadings set forth facts that arise after
original pleading was filed. Amended pleadings
deal w/ facts that existed at the time of the
legal pleading, but change the way those facts
are alleged or the claims/defenses arising out
of those facts.

b. Court permission – supplemental pleadings

always require court permission. However,
leave to amend is freely given.

VI. Service of Process (CB 146-159, Rule 4)

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a. The Due Process Clause of the 14th Amendment requires there be
adequate notice of the litigation. A judgment w/out notice is
invalid.

b. Just because you serve someone properly doesn’t mean there’s

personal jurisdiction.

c. Both contacts and notice are required under due process.

d. Notice – P gives notice of a pending action when she serves the

summons and a copy of the complaint on D. The summons
commands the D to answer the P’s complaint w/in a fixed period
of time.

e. Adequacy of Notice – Due process requires that service of

process be “reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections” Mullane v
Central Hanover Band and Trust Co.

i. Receipt of notice unnecessary – As long as the method of

service meets this reasonableness standard, D is subject to
jurisdiction even if D never actually receives the notice.
(However, if D never receives notice, almost all courts have
a system whereby D may have the verdict set aside.

ii. Acceptable means – In addition to the trad’l means of

serving D in hand, various forms of “substituted service”
meet the reasonableness standard – first class or certified
mail, service on the secretary of state w/ instructions to
deliver it to D, or service to an adult at D’s usual place of
residence. Courts are experimenting w/ service by email or
other electronic means.

iii. Service by publication – In some cases, notification is

published in the newspaper.

1. In Rem cases – Several early cases, including

Pennoyer v Neff, held that service by publication was
sufficient in in rem actions. Mullane rejects this
old rule and holds that when the addresses of the
property owners can be ascertained, some other

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 method of service that is more likely to reach Ds is
required.

2. When publication alone is sufficient – If whereabouts

of D are unknown and can’t be ascertained w/
reasonable effort, service by pub. is the only viable
option. In these cases, it is acceptable in both in rem
and in personam actions.

iv. How notice is provided – State and fed courts allow for
various methods of service.

1. Who serves – Not the court itself. Also, service need

not be effected by the sheriff or other official except
in certain rare cases. Court rules generally allow
service by a private process server or the party’s
attorney. The party itself usually cannot serve.

2. Method of service – state court- States typically have

two sets of service rules, one for Ds who can be
found in-state, and a long-arm statute that allows
service on an out-of-state D.

a. D in-state – Most states allow for service in

hand and on an agent of the D designed to
receive service.

b. D out of state – Accomplished by means of the

state’s long-arm statute. These statutes are a
response to the SC’s decisions in International
Shoe which made it clear that D can be sued in
a state as long as contacts exist. Go into more
detail?

3. Service in fed court

a. Methods – FRCP 4(e)-(j) specify acceptable

means of service in federal court.

b. Ds within US – For defendants within the US,

service can be made by serving in hand,
leaving process at the D’s usual place of abode
with someone of suitable age and discretion

23
 who also resides there, serving on an agent
authorized by contractual arrangement or law
to receive service of process, or serving
according to any method authorized by either
the state in which the district court sits or the
state where service takes place FRCP 4(e).

i. Alternate methods – FRCP 4(e)(1) –

1. Serve an individual under the

provisions governing service on
individuals in the courts of the
state where the fed court sits

2. When serving an individual residing

outside the state where action is
pending, serve pursuant to the law
of the state in which service is
being effected. (where D is actually
being served)

c. Corporations within US FRCP 4(h) – parallels

FRCP 4(e). – For Corps and Associations w/in
the US, service can also be made by delivering
process to a managing or general agent.

d. Special Ds

i. Infants/Incompetents

1. In US - service “shall be effected in

the manner prescribed by the law
of the state in which the service is
made for the service of summons
or other like process upon any such
D in an action brought in the courts
of gen jurisdiction of that state.”
FRCP 4(g).

2. Outside US – in the manner

prescribed by the law of the foreign
country for service in that country
in any of its courts of gen
24
 jurisdiction or as directed by the
foreign authority in response to a
letter rogatory/letter of request.

ii. D’s in foreign nations – can be done –

1. “by any internationally agreed

means reasonably calculated to
give notice (ex., the Hague
Convention on the Service Abroad
of Judicial and Extrajudicial Docs)
FRCP 4(f)(1)

2. If no agreed-upon means of service

or the int’l agreements allows other
means of service, provided it’s
reasonably calculated to give
notice –

a. In the manner prescribed by

law of the foreign country
FRCP 4(f)(2)(A)

b. As directed by the foreign

authority in response to a
letter rogatory/letter of
request FRCP 4(f)(2)(B)

c. Unless prohibited by the law

of the foreign country –

i. By delivery to the
individual personally a
copy of the summons
and complaint FRCP
4(f)(2)(C)(i) or

ii. Any form of mail

requiring signed
receipt, to be
addressed and
dispatched by the clerk
of the court to the
25
 party to be served
FRCP 4(f)(2)(C)(ii)

d. By other means not

prohibited by int’l agreement
as directed by the court.
FRCP 4(f)(3).

iii. Gov’t or Gov’t agencies/officials –

effected by –

1. Delivering summons and complaint

to the US attorney for the district in
which the action is brought, or to
the assistant US att’y or clerical
employee designated by the US
att’y in a writing filed w/ the clerk
of the court, or by sending a copy
of summons and complaint by
registered/certified mail addressed
to the civil process clerk at the
office of the US att’y FRCP 4(i)(1)
(A) AND

2. By also sending summons and

complaint by registered/certified
mail to the AG of the US in D.C.
FRCP 4(i)(1)(B)

3. Service on an agency/corp of the

US, or an officer/employee sued in
an official capacity, done by
serving according to FRCP 4(i)(1)
and by sending summons and
complaint by registered/certified
mail to
officer/employee/corp/agency.

4. Service on an officer/employee of
the US sued as an individual for
acts/omissions w/ performance
of duties on behalf of US – done
26
 both in accordance w/ FRCP 4(i)
(1) and according to FRCP 4(e)
(people within US jurisdiction), (f)
(people in a foreign country) or (g)
(incompetents and infants). FRCP
4(i)(2)(A)

e. In rem actions – Fed court may exercise

jurisdiction based on seizure of property only
when fed statute provides for such jurisdiction,
or when P cannot obtain in personam
jurisdiction over D by reasonable means in that
district. (Remember, Shaffer only allows in rem
when there are enough contacts to exercise in
personam. FRCP 4(n) greatly limits use of in
rem jur in fed courts.

f. Territorial Limits

i. SC’s min. contacts analysis was for state

courts, not federal. FRCP limits
jurisdiction and requires fed court to act
like court of the state in which the fed
court sits.

ii. FRCP 4(k)(1)(A) - using methods in

3(b)-(d) above is effective to establish jur
over a D only if D “could be subjected to
the jur of a court of gen jur in the state in
which the district court is located.”

1. To apply this test – necessary to

consider both (1) whether there are
minimum contacts w/ the state and
(2) whether state law provides a
means of serving the D.

2. Even though it is necessary to

consider state service laws to
determine whether a fed court may
exercise personal jurisdiction, P in
fed court doesn’t necessarily use
27
 the state law to effect service. He
uses methods set out in FRCP.
(Note: FRCP allows P to “borrow”
state law service rules).

g. Exceptions – where a fed court is NOT

CONFINED by the territorial limits on jur that
apply to states

i. Impleader and involuntary plaintiffs

1. Service on 3PDs joined under FRCP

14 and involuntary Ds under FRCP
19 is proper either if (1) meets the
state territorial rule set out above,
or (2) if party is served anywhere in
the US w/in 100 mi of the court
issuing the summons FRCP 4(k)
(1)(B).

ii. Statutory Interpleader

1. A party joined to a statutory

interpleader may be served
anywhere in the US under 28
U.S.C. § 1335. FRCP 4(k)(1)(C).

iii. Federal statute

1. Service is effective to create jur

whenever authorized by a specific
fed statute. FRCP 4(k)(1)(D).

iv. No state has personal jur

1. Service is effective if the claim

arises under federal law and if
exercise of jur would compy w/ any
limits imposed by US Constitution.
FRCP 4(k)(2) Fed court may
exercise jur as long as the min.
contacts/fairness test is met w/
regard to the US as a whole, not

28
 merely to the state where the fed
court sits.

h. Waiver of service – FRCP 4(d) allows P to ask

D to waive service as an alternative to actual
service.

i. Request for waiver – P may ask D to

waive by mailing a written request for
waiver with a copy of complaint and
prepaid means of return.

1. Invalid request – No waiver can be

requested when D is an infant,
incompetent, or gov’t unit or
officer.

2. Date requirement – Request must

specify a return-by date, no less
than 30 days from the date it was
sent for Ds within US or 60 days for
Ds outside US.

ii. How waiver is effected – D waives service

by returning the request by specified
deadline. Failure to return the request
does not constitute a waiver.

iii. Effect of waiver – Party waives

requirement of formal service. Party does
not waive anyh defenses based on lack
of personal jurisdiction or venue. D may
argue lack of min. contacts even if it
waives service.

iv. Failure to waive – D is not required to

waive. However, the rule provides both a
carrot and a stick to encourage waiver.

1. Carrot – D who waives service

receives an automatic extension of
the time to answer. Instead of 20
days, D has 60 days following the
29
 day the request was sent in order
to answer. If request was sent to
address outside the US, time is
extended to 90 days from when it
was sent.

2. Stick – D is under a “duty” to avoid

unnecessary service costs. If D is
located w/in US, failure to return
the request results in an order
requiring D to reimburse P for the
costs of actual service unless there
was good cause for the failure. (It is
unclear whether lack of personal
jur constitutes good cause.)

VII. Motions
to Dismiss and Answers (CB 377-392, Rule 12
[and review Rule 8 carefully])
a. Pre-answer motions

i. FRCP 7 says parties seeking any form of relief from a

court will usually ask for it by way of motions. –
Challenging the judge, asking to transfer to different
venue, etc.

ii. FRCP 12 allows D to raise certain defenses and objections

(matters usually raise in an answer) in a pre-answer
motion. FRCP 12(b) allows D to move for dismissal, while
FRCP 12(e) and (f) ask P to correct parts of complaint.

iii. FRCP 12(b) Defenses

1. Lack of subject matter jurisdiction FRCP 12(b)(1)

2. Lack of personal jurisdiction FRCP 12(b)(2)

3. Improper venue FRCP 12(b)(3)

4. Insufficiency of process FRCP 12(b)(4)

5. Insufficiency of service of process FRCP 12(b)(5)

a. challenges the method used by P to serve D

30
 6. Failure to state a claim upon which relief can be
granted FRCP 12(b)(6)

7. Failure to join a party as required by Rule 19 FRCP

12(b)(7)

iv. The Rule 12(b)(6) Defense

1. Standard

a. Court applies the “notice-leading” standards

discussed above.

b. Court only dismisses if there is no reasonable

way to construe a complaint to allege a
recognized cause of action

2. How complaint defective – Basically two ways

possible

a. Facts

i. P has left out allegations concerning one

crucial element of a given claim. These
are somewhat rare, given the forgiving
“notice pleading” approach of FRCP
8(a).

b. Law

i. P has set out all the facts, but those facts

don’t allow P to recover under any legal
theory

ii. Ex, Haddle v Garrison – employer tried to

fire employee as retaliation for testifying
against employer. a court should not
dismiss a complaint for failure to state a
claim unless it’s clear that P has no set of
facts/proofs that would support of his
claim – p 345

3. Conversion to summary judgment

31
 a. If a FRCP 12(b)(6) motion includes facts not
set forth in pleadings, court treats the motion
as one for summary judgment.

4. Effect of grant of FRCP 12(b)(6) motion

a. Before dismissing case, courts generally give P

leave to amend complaint to cure its defect.

b. However, a FRCP 12(b)(6) dismissal is a

dismissal on the merits unless court says
otherwise.

i. A dismissal on the merits prevents P from

bringing any claim on the same D based
on the same facts

ii. Some states don’t treat dismissal for

failure to state a claim as a dismissal on
the merits.

5. Other challenges to ambiguous/objectionable

complaints

a. FRCP 12(e) motion for a more definite

statement

i. If party is served w/ a pleading to which

a responsive pleading is required but the
pleading is so vague/ambiguous that the
party can’t frame a response, that party
can make this motion.

ii. Must be specific – 12(e) motion must

specify the ambiguous portions of the
pleading.

iii. Rarely used – If a claim really is too

ambiguous, a party usually moves to
dismiss under FRCP 12(b)(6) for failure
to state a claim.

b. FRCP 12(f) Motion to strike

32
 i. Party moves to strike portions of a
pleading that are redundant, immaterial,
impertinent, or scandalous.

ii. Timing – must be made before a

responsive pleading is served or, if no
responsive pleading is needed, within 20
days of service of the pleading.

iii. Redundant/Superfluous Material

1. Courts rarely grant these motions

for these reasons.

2. However, if a party faces

considerable burden with response
to immaterial part, court may order
that part stricken

iv. Dismissing portions of complaint

1. FRCP 12(f) may be used to

dismiss some, but not all, counts of
a complaint. Some courts don’t
allow FRCP 12(b)(6) motions to
be used in these instances, so
FRCP 12(f) motions can be used
instead to strike improper counts.

2. Ex – P sues D for IIED and NIED.

Governing law doesn’t recognize
NIED. D can obtain dismissal under
either 12(b)(6) or 12(f)

v. Scandalous allegations

1. Courts strike these only when the

allegation is of marginal or no
relevance or when it’s worded in an
inflammatory way.

c. Timing of pre-answer motions and waiver of

defenses

33
 i. FRCP 12(g) and 12(h) set out strict
deadlines regarding when defenses must
be raised. IF a party fails to raise certain
defenses by that time, they are deemed
waived.

ii. Joinder of defenses - FRCP 12(g) allows

a party to join all Rule 12 defenses
available.

iii. Waiver of omitted defenses – If a party

raises any Rule 12 defense/objection by
pre-answer motion but omits a defense
of lack of personal jurisdiction,
improper venue, insufficiency of
process, or insufficiency of service
of process, that party waives the
omitted defense FRCP 12(h)(1).

1. If a similar defense to those above

is raised, but not under Rule 12,
the rest are not waived.

iv. This strict waiver rule doesn’t apply to

lack of SMJ, failure to state a claim,
and failure to join a party under
Rule 19.

1. These three defenses are

preserved, but they may not be
raised in a second pre-answer
motion.

a. Failure to state a
claim/failure to join a party
under Rule 19 can be raised
now only in a pleading,
motion for judgment on the
pleadings or at trial.

b. Lack of SMJ can be raised at

any time.

34
b. The answer – Regardless of whether D files a pre-answer
motion, D must also file an answer

i. Rules discussed here also apply to the reply (P’s response

to D’s counterclaim), cross-claim answers, and answers to
3P claim.

ii. Timing for filing answer – FRCP 12(a)

1. Default rule – 20 days – D must serve its answer w/in

20 days of the date she was served w/ summons and
complaint.

2. Effect of waiver of service – time limit extended

a. Domestic D – 60 days from the date request

was sent to answer

b. Outside the US D – 90 days from date request

was sent to answer.

3. US as a F – has 60 days to answer. FRCP 12(a)(3)

(A) Applies also to fed officers sued in an individual
capacity in connection w/ duties performed on behalf
of fed gov’t. FRCP 12(a)(3)(B).

a. Waiver of service rules don’t apply to US, so no

time period extension available.

iii. Effect of motions – If a party files pre-answer motion, time

to answer is extended.

1. Generally, D required to answer w/in 10 days of the

court’s ruling on the motion. FRCP 12(a)(4)(A)
(Except when it’s a motion to dismiss, obviously)

2. If court grants motion for a more def. statement,

answer must be filed w/in 10 days of when the more
definite statement is filed

iv. Denials and admissions – basic rule – D required to admit

or deny P’s averments FRCP 8(b)

1. Generally - Five Kinds (see below for details)

35
 a. General – D denies every allegation of the
complaint

b. Specific – Denying the allegations of specific

paragraphs

c. Qualified/Partial – Denying a portion of an

allegation

d. Denial of Knowledge/Info – not enough info to

form a belief.

e. Denial based on info/belief – generally for big

corp suits

2. Effect of failure to deny – constitutes an admission of

the matter in question FRCP 8(d).

a. Exception – D not required to deny averments

related to damages. (ex. Prayer for relief)

b. Responsive pleading required – failure to deny

operates as an admission only when a
responsive pleading is required. If no
responsive pleading needed, all averments are
treated as denied. FRCP 8(d).

3. Lack of knowledge

a. D can plead that he is “without knowledge or

information sufficient to form a belief as to the
truth of an averment” FRCP 8b). Pleadings
must be made in good faith.

i. Treated as a denial. (Issue remains in

controversy)

b. Information and belief – With a denial based on

information and belief D suspects something
but doesn’t have first-hand knowledge.
Functions as a denial

i. Not explicitly authorized in FRCP. It’s a

vestige of prior practice

36
 ii. No real need for it anymore. It’s a good
faith belief and a denial can be made
either as above in A or below according
to FRCP Rule 11.

4. Denials must meet substance of complaint –

Ineffective denials may constitute admissions of the
matter in question FRCP 8(b).

a. Partial denials – If D intends in good faith to

deny only part of averment, he must specify
which portions he denies.

b. Zielinski v Philadelphia Piers- D’s denial that he

“owned, operated, and controlled” a forklift is
ineffective if he did own it, but did not
operate/control it.

c. Objection – No specific rule covers these

motions, but party can object to a form of
denial

d. Caveat – FRCP 8(f) says pleadings should be

construed to do substantial justice. Thus, it is
unlikely a court will treat an ineffective denial
as an admission unless D intended to mislead P
OR P has irreversibly relied to its detriment on
the misleading denial (Zielinksi)

5. General denials – when D denies every allegation of

the entire complaint

a. Rarely appropriate – if pleading correctly states

P’s residence, no general denial available.

b. Gen denial with exceptions – Parties sometimes

file an answer denying everything except for
certain items they explicitly admit.

c. “Backup” general denial – After

admitting/denying allegations, D usually adds
at the end, “anything not specifically admitted
to/denied is hereby denied.”

37
6. Alternative/inconsistent denials – D can make
alternative/inconsistent denials, just like P can make
A/I claims.

7. Defenses – a reason why P is not entitled to relief

requested – can be missed in with denials. Two
types:

a. Ordinary Defenses – argue that P can’t recover

because of procedural/legal/pleading defect –
Ex, 12(b) defenses

b. Affirmative Defenses – usually involve

introduction of new facts which prevent P from
recovering

i. FRCP 8(c) defines several aff. defs. (p

30)

ii. Additional defenses – list of Rule 8(c) not

exclusive – an aff def is “any other
matter constituting an avoidance or
affirmative defense”

1. Layman v Southwestern Bell

Telephone Co – D wanted to argue
it had an easement on P’s land,
and should have raised it as an aff
def, instead of just denying P’s
trespass allegations.

iii. P can supply facts necessary for aff def.

8. Rules do not “create” defenses – just because a

defense is listed in Rule 8c doesn’t mean it exists as
matter of substantive law (Ex. many states have
abrogated assumption of risk)

9. (NOT REALLY COVERED IN CLASS?) Burden of

pleading – generally, if neither P or D raise an issue
in the pleadings, the issue can’t be litigated at trial.
The party who did not have the burden of pleading
on that issue prevails.

38
 a. Who has BoP? Hard to say.

b. FRCP 8(c) and 12(b) – Help to clear things up

– Certain issues are defenses (BoP on D).

c. Court decides – there’s no clear test, but courts

consider:

i. Whether the facts necessary to establish

the defense are more likely to be known
by one party than the other;

ii. If the underlying claim arises under a

statute, whether the language of the
statute treats th e issue as part of a
claim or as an exception

iii. Whether analogous issues are treated as

elements or defenses.

10. Heightened pleading standards, special

matters:

a. Heightened standards discussed above in

“complaints” apply to defenses/denials. D who
wants to defend a breach of K claim based on
fraud/mistake must allege the circumstances
constituting fraud/mistake specifically. FRCP
9(b)

b. RE: capacity – Party challenging capacity must

raise issue by specific negative averment.

11. Counterclaims, cross-claims, and 3PCs – In

addition to denials/defenses, D may also file claims
against Ps/Co-Ds.

a. Counterclaim – Claim against P

b. Cross-claim – Claim against co-D.

c. 3PC – Claim against impleaded D

Who Can Sue and Be Sued?

39
VIII. Joinder of Additional Claims by Plaintiffs and
Counter-claims by Defendants (CB 731-742, Rules
13 and 18, 28 USC § 1367)
a. Against Current Parties

i. Adding claims to original claim, counterclaim, cross-claim –

FRCP 18(a) says “a party asserting a claim to relief as an
original claim, CC, or C-C, or 3PC, may join as many claims
as the party has against an opposing party. (applies to any
party, not just P)

1. FRCP 18 applies only when party already has one

claim he has brought against the other party under
some other rule. (applies to claims 2 and higher)

2. FRCP 18 doesn’t use same transaction test.

3. Jurisdictional Limits – ability to join claims

significantly restricted by requirement that fed court
have SMJ over all claims.

4. Alternate/inconsistent claims are allowed

b. Counterclaims – FRCP 13 – D can bring claims she may have

against opposing party. Sometimes D must bring claims or she
risks losing them.

i. Permissive counterclaims – FRCP 13(b) allows D to bring

any claim he has against P, regardless of whether it is
related in any way to P’s claim

ii. Compulsory counterclaims – If D has a claim that arises

from the same transaction or occurrence as P’s claim, D
must raise claim in his responsive pleading unless an
exception applies.

1. Same transaction or occurrence –

a. Rationale – efficiency and consistency. If 2

claims overlap significantly, it’s not efficient to
have two courts decide the issues in separate

40
 cases. Courts want to limit possibility of
reaching inconsistent results.

b. Tests – there are several for “same T or O”

i. Majority Rule - Logical Relationship Test

1. Asks of the two claims are logically

related in any significant way.

2. Need not be strictly logical,

wherein the outcome of claim A
turns on the outcome of B.

3. Instead, they must arise from same

underlying set of facts even if the
subset of facts for each claim
differ.

ii. Significant Minority Rule – Same

Evidence Test

1. Asks whether there is a significant

overlap between the disputed
elements of the two claims.

2. Narrower than LRT – it isn’t enough

that the claims arise from the same
identifiable event

3. The core facts giving rise to the

claims must overlap to some
degree.

iii. Other Tests

1. Whether issues of law and fact

raised by the two claims are largely
the same.

2. Whether res judicata would bar the

claim if it wasn’t brought w/ the
other.

41
 2. Excepted claims (FRCP 13(a))– Even if counterclaim
arises from the same T or O, D need not assert it if:

a. D has not filed an answer.

b. The claim has not yet arisen when D files his

answer

c. Adjudication of the claim requires the presence

of third parties who would destroy diversity or
over whom court has no personal jurisdiction.

d. At the time the answer is served, the

counterclaim is already being litigated in
another state or fed action

e. The P’s suit is based on in rem or quasi-in-rem

jurisdiction.

3. Failing to plead compulsory counterclaim means

claim is lost and can’t be asserted later.

4. Counterclaims by Ps and others

5. By P – If D files a counterclaim against P, P may add

additional claims against D as counterclaims. If P’s
counterclaim arises out of same T or O as D’s
counterclaim and no exception applies, it is
compulsory.

6. By other parties – Counterclaims may, and

sometimes must be filed by 3P who have been added
to suit under impleader (FRCP 14) or 13(h).

c. Cross-claims – claims filed against a co-party against each

other. FRCP 13(g) governs C-Cs.

i. Same transaction test – party may file claim against co-

party arising out of same T or O as either the original
complaint or a counterclaim.

ii. Always voluntary – Cross-claims are optional, never

required.

42
 iii. Cross-claims v Counterclaims – Once party is served w/ a
cross-claim, she and claiming party become “opposing
parties” and she is required by FRCP 13(a) to file any
factually related counterclaims she has against serving
party.

IX. Joinder of Additional Parties (CB 742-753, Rules 14,

20, 21, and 42)
d. FRCP 20 allows multiple parties to join as Ps in the action and
allows the P or Ps to sue more than one D.

e. Multiple Ps and Ds

i. Parties joining as plaintiffs – “All persons may join in one

action as Ps if they asset any right to relief jointly,
severally, or in the alternative in respect of or arising out of
the same transaction, occurrence, or series of Ts and Os
and if any question of law or fact common to all these
persons will arise in the action”

1. Joint, several, or in the alternative

a. Jointly - Ps sue jointly when they share a right

b. Severally – P’s sue severally when they each

have an individual right to recover (auto
accident)

c. In the Alternative – Ps allege that one, but not

both, is entitled to recover.

2. Series of Ts or Os – interpreted no more broadly than

T or O of FRCP 13.

a. Mosley v General Motors Corp. – even though

Ps were subject to individualized acts of
discrimination, court relied on the fact that Ps
alleged a “general policy of discrimination” and
said all claims arose from that general policy.

3. Common question

43
 a. Significance – Common Q must bear a
significant relationship to the action in order to
qualify

b. Not redundant

i. Just because two claims arise from same

T or O doesn’t mean they have a
common Q of law/fact.

ii. Under Logical Relationship Test, it’s

possible for two claims to arise from
same basic facts but be based on
separate subsets of the general fact
pattern. It’s possible there is no common
Q of law/fact in that situation (Is this
similar to the evidence test then?

ii. Parties joined as defendants – similar to parties joined as

Ps

1. Jointly, severally, in the alternative – P must allege

that D’s are liable J,S, or in the A.

2. Same T or O – same as above.

f. Adding parties to counterclaims and cross-claims

i. If party has valid C-C or CC, FRCP 13(h) allows him to add
additional parties under FRCP 20’s conditions. (Think of
claim against the existing and add’l parties as a separate
suit and determine whether claimant could sue the parties
as co-Ds under Rule 20.)

g. Misjoinder FRCP 21 – under writ system, dismissed whole

case. Now, it doesn’t

h. FRCP 42 – Allows judge to consolidate/separate trials.

i. Impleader (3P claims)

i. Typically, parties who are jointly liable have a right to seek

contribution or indemnity from other responsible parties. If
P doesn’t sue all responsible parties, FRCP 14 preserves

44
 D’s right to seek contribution or indemnity and bring other
responsible parties into dispute.

ii. Terms

1. Joinder of add’l party this way is called impleader

2. Third-party D – person joined (3PD)

3. Third-party P – person impleading other party (3PP)

4. Court refers to party’s capacity in original/impleader

suits (ex. defendant/3PP)

iii. Impleader available to implead a 3PD “who is or may be

liable to the 3PP for all or part of” another party’s existing
claim against the 3PP

iv. Who may use – FRCP 14(a) talks about D using impleader,
which is the most common situation. However, FRCP
14(b) allows P to use impleader of P has been sued for aff
relief in a counterclaim

v. Permission of court – If 3P-complaint is filed within 10 days

of filing the original answer, no court permission needed.
After 10 days, court permission needed. FRCP 14(a).

vi. Impleader may not conflict with personal jurisdiction – for

due process to be respected, courts must always have
personal jurisdiction over the person

1. 100 mile bulge rule helps.

vii. Party may try to block impleader for prejudice, timeliness,

or dilatory reasons.

viii. Substantive Law Important

1. A party can only use impleader if substantive law

allows the 3PP to recover against the 3PD. Absent a
tort/contractual right to contribution/indemnity,
impleader is unavailable

45
 2. Price v CTB – Court found that Alabama law allowed
claim for implied contractual indemnity and so
impleader was proper.

3. Claim need not be mature – FRCP 14 allows

impleader if 3PD is or may be liable to the 3PP.

a. Note – In jurisdictions that don’t allow evidence

of insurance coverage to be introduced,
impleader of an insurance company may be
denied in order to keep such evidence away
from the jury.

4. Not used for “Him, not me” – Impleader is proper

only if 3PD is liable to the 3PP for all or part of 3PP’s
liability to P. Impleader isn’t used to say P has sued
wrong defendant or that D isn’t liable at all.
However, D who joins a 3PD may allege in the
alternative that she isn’t liable to P and that 3PC is
solely responsible.

ix. Unavailable against existing parties – FRCP 14(a) says

3PD must be someone “not a party to the action.” Thus,
party can’t use impleader to assert contribution/indemnity
claim against a co-D or P.

x. Add’l Impleader – A 3PD himself can bring a 3P-complaint if

it alleges someone else is for part or all of his liability to
defendant-3PP.

xi. Special service rules –

1. To hear a 3P claim, court must have personal

jurisdiction over 3PD.

2. FRCP 4(k)(1)(B) – special provision to help with

impleader, supplemental jurisdiction, R14 R19
– 100 mile bulge

3. Service is effective to create jurisdiction on any party

joined under Rule 14 who is served anywhere in the
US that is w/in 100 miles of the court that issued the
summons.

46
 4. Applicability of state’s long-arm statute/min contacts
between the 3PD and the state are immaterial.

xii. Venue – Addition of third parties doesn’t affect venue

under 28 USC §§ 1391-1392.

xiii. Procedure after impleader – impleader creates “suit within

a suit”. 3PD must respond to 3P-complaint and raise any
compulsory counterclaims.

1. Defenses to P’s claim – 3PD can assert any defenses

it has to P’s claim

2. Plaintiff-3PD’s claims – P and 3PD can also file claims

against each other.

a. Same transaction – claims against each other

must arise from same T or O as the original
claim by P against the original D.

b. Compulsory counterclaims - If original P

decides to file claim against 3PD, any
compulsory counterclaim 3PD has must be filed
in accordance w/ FRCP 13(a) (compulsory CC
rule). IT isn’t clear if the compulsory CC rule
applies when 3PD files claim against P.

X. Compulsory Joinder (CB 762-772, Rule 19)

j. In some situations, people must be joined to the action. FRCP 19
governs compulsory joinder in federal courts.

k. Primarily a defense – Generally comes into play when a party

moves to dismiss the action because of the absence of one or
more interested people.

l. How raised – As a pre-answer 12(b)(7) motion or as a defense in

the answer.

m. If motion’s successful – Court orders nonmovant to join the

person. If person can’t be joined, court then considers whether
action should be dismissed.

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n. History - Development of doctrine – “necessary or
indispensible party” approach (Still used in many states)

i. Indispensable party – one who had an interest in outcome

of pending litigation that would be affected by litigation’s
final decree.

ii. Necessary party – also has an interest in case, but his

interest is separable from those of the parties. Final
judgment wouldn’t affect the party.

iii. If party was indispensable and couldn’t be joined, court

would dismiss. If party was merely necessary, court would
retain the case.

o. FRCP 19 Approach

i. P can’t use supp jur to get someone in as under

compulsory joinder. You need independent basis for
compulsorily joined party.

ii. Different approach

1. No separate categories of necessary and

indispensible parties. Only one category – “persons
to be joined if feasible”

2. If court says a party should be joined but it can’t be,

court then decides whether to dismiss. No need to
use the words necessary or indispensible when
applying Rule 19.

iii. Three steps

1. SHOULD party be joined?

a. Absence of party precludes complete relief for

those involved

b. Absence prejudices missing party (person is

direct and legally protectable) and/or
practically impairs or impedes party (significant
difficulty in protecting interests)

48
 c. Absence prejudices parties already involved
(interests, inconsistent obligations, etc)

d. Absence makes a party subject to a substantial

risk of incurring double, multiple, or otherwise
inconsistent obligations by reasons of a
claimed interest

e. Common situations where compulsory joinder

arises:

i. Cases involving obligations where there

are joint obliges or obligors.

ii. Cases involving real or personal property

in which joint owners or others claiming
interest in the property aren’t included in
parties.

iii. Cases involving claims to a limited

fund/pool of assets, where potential
claimants who aren’t parties could find
funds depleted by the time their cases
are heard.

2. CAN party be joined?

a. As defendant - must satisfy FRCP 20.

b. As plaintiff - Rule 19(a) allows person to be

made involuntary plaintiff.

3. Consequences of nonjoinder

a. If plaintiff ordered to join someone but refuses

- dismissal

b. If P can't join party b/c of jurisdiction or venue,

court considers 4 things

c. Degree of prejudice to the absent or present

parties

d. Can relief be shaped to reduce

prejudices?
49
 e. Whether judgment rendered in person's
absence is adequate

f. Whether P can have adequate remedy if case

dismissed (can he bring it elsewhere?

XI. Intervention (CB 938-955, Rule 24)

p. Allows strangers to the lawsuit to join as parties in order to
protect their rights/interests. Governed by FRCP 24. Sometimes,
parties can intervene as of right. Other times, court permission is
required.

q. Jurisdiction – Independent subject-matter jurisdictional grounds

are required for intervention of right in a diversity case. In other
words, such intervention doesn’t fall within the court’s
supplemental jurisdiction.

r. Permissive intervention – FRCP 24(b)

i. Timely application – no explicit deadline in rules, but the

earlier you ask the better the chance request will be
granted.

ii. Grounds – Party may seek to intervene either when a

federal statute grants a conditional right to intervene or
when applicant’s claim or defense shares a common
question of law or fact with the existing suit.

iii. Discretion – court’s decision to allow/deny intervention

rarely reversed on appeal.

s. Intervention by right

i. FRCP 24(a) allows party to intervene without permission

in certain situations

ii. Timely application – here the requirement is important

because it’s the only issue a court can exercise its
discretion over. Turns on whether delay in applying to
intervene would prejudice the parties in preparing their
suit.

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iii. Grounds – party can intervene when either of these two
conditions is met.

1. A federal statute grants an unconditional right to

intervene. (ex. Many statutes give the US gov’t the
right to intervene in actions challenging fed law.

2. Applicant:

a. “Claims an interest relating to the property or

transaction that is the subject of the action”
AND

b. Applicant “is so situated that the disposition of

the action may as a practical matter impair or
impede the applicant’s ability to protect that
interest UNLESS

c. The applicant’s interest is adequately

protected by existing parties.

3. Interest – Historically, a proprietary interest or some

other significantly protectable legal interest.
Currently, a more relaxed requirement

a. Need not be economic – The interest need not

be a property or other economic interest.

b. Public interest – the req. of a legally

protectable interest is often relaxed when the
suit involves a matter of public interest, or
when PIG seeks intervention.

c. Broader than FRCP 19(a)

4. Practical Impairment

a. Practical, not legal – not necessary to show the

suit would operate as res judicata to
applicant’s future protection of right.

b. May be impaired – need not show impairment

is certain, just that it could occur.

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 c. There is a tendency to merge the interest and
impairment elements – the greater the
impairment, the broader the scope of interests
that the courts will protect.

5. Unless adequate representation

a. A party may not intervene as of right if the

existing parties already protect his interests.
However, it’s fairly easy to show lack of
adequate representation. Must only show the
parties have a definite incentive not to
represent interests of applicant.

6. NRDC v U.S. Nuclear Regulatory Commission.

Company Y tries to intervene in suit between
environmental group and gov’t agency. Company Y’s
has an interest, he may be practically
impeded/impaired, and Company X won’t necessarily
adequately represent Y’s interests, because they are
competitors and X might be seeking a decision that
would benefit him but not others.

XII. Interpleader – FRCP 22

t. A party who owes something to 2 or more persons, but isn’t sure
which, might force them to argue their claims between
themselves before they come after the party.

u. Deals w/ multiple/inconsistent claims to avoid

double/inconsistent judgments.

v. Interpleader only available if stakeholder (the stake is the

obligation owed) is exposed to double or multiple liability.

w. Statutory Interpleader – 28 USC § 1335 – Applies to real

property only?

i. Special rules about SMJ, PJ, and venue

1. SMJ

52
 a. allows jurisdiction where at least one of the
claimants is diverse from any other claimant
– minimal diversity.

b. Amount in controversy – more than $500

c. Personal Jur – 28 USC 2361 complements §

1335 by allowing the court to serve process
anywhere in the US.

d. Venue – proper anywhere where one or more

of the claimants resides.

x. Rule Interpleader – FRCP 22

i. Same SMJ, Personal Jur, Venue, etc- as in any other action.

ii. Stakeholder and claimants must be completely diverse.

Discovery: Finding the Facts

Standard for Discovery – FRCP 26(b)(1) – A party can discover information
relating to “any matter, not privileged, that is relevant to the claim or
defense of any party.”

I. Standard for Discovery – FRCP 26(b)(1) – A party can

discover information relating to “any matter, not privileged, that is
relevant to the claim or defense of any party.”

a. This standard doesn’t apply to mandatory disclosures, but most

of them fit the standard anyway.

b. Relevance – Information that helps a party prepare his case. Not

necessarily information that will be used as evidence at trial.

c. Davis v Precoat Metals - Ps seek discovery of complaints from

other employees of the same type of discrimination at the same
plant as the Ps. The ct has held that if a request for discovery is
narrowly tailored to the specific allegations of the P’s complaint,
than it is not overbroad. The P’s request is limited to the same
plant where the employees worked and with complaints of the
same type of discrimination. Therefore, the information is
narrowly tailored to not be overbroad.

53
d. Steffan v Cheney – information about P’s homosexual acts not
relevant. P was discharged from the military for his statements
about his homosexuality, not homosexual acts. Military sought
information about his homosexual acts but they weren’t relevant
because those acts weren’t relied upon in the military’s decision.

e. Relevance to party’s claim – standard in FRCP 26(b)(1)

significantly narrowed in 2000. (Prior standard required info only
be relevant to the subject matter of the action).

i. Any party – doesn’t have to be relevant to a claim/defense

of the requesting party.

ii. Good cause – Info relevant to SM of the action but not to a

party’s claim/defense can be discovered, but only by court
order upon showing of good cause.

f. Need not be admissible at trial – “Relevant info need not be

admissible at trial if the discovery appears reasonably calculated
to lead to the discovery of admissible evidence”

i. Background info – this allows a party to discover, for

example, a witness’ telephone number.

ii. Information precluded as evidence – Rule allows party to

discover info, such as hearsay evidence, that is not
admissible at trial.

g. Financial Info – Generally, information about D’s assets not

discoverable because it is irrelevant to whether P is entitled to a
judgment. Some exceptions:

i. Punitive Damages – Ps who seek punitive damages are

able to discover financial info, because the amount
necessary to punish D varies depending on D’s wealth.

ii. Insurance – In initial mandatory disclosures, parties must

disclose to the other side any liability insurance coverage
that may cover the claim.

h. Privileges – Even if relevant, info may be protected by privilege.

Privileges protect information from being disclosed by a
particular source. Info may be discoverable from other sources.

54
 i. Common Privileges – certain privileges are recognized in
many states

1. Self-incrimination – Allows a person to refuse to

provide information that constitutes admission of a
criminal act by that person – Constitutionally
protected.

2. Attorney-client – Gives a past/present client the right

to prevent an attorney from disclosing info pertaining
to the legal representation of that client relayed to
att’y.

a. Upjohn v US – attorney client privilege exists

between all corp employees within the
corporation and attorneys, and not just upper
management.

3. Doctor-patient – Gives past/present patient the right

to prevent a doctor and (in some states) other
medical practitioners from disclosing info relating to
the treatment the patient relayed to that medical
person.

4. Priest-penitent – Gives person the right to prevent a

religious leader from disclosing info relayed in
confidence.

5. Spousal – gives a person the right to prevent a

spouse from disclosing info relayed in confidence.

ii. Governing law in fed court – When a fed court hears a case
that will be governed by state law, the fed court uses state
law to determine existence/scope of any privileges.

iii. Privileges absolute – a true privilege is an absolute bar to

discovery of the information, no matter how badly the
other side needs it.

iv. Claiming privilege – party can’t withhold info based on

privilege unless party makes the claim of privilege
expressly and provides enough of a description of what is

55
 being withheld to allow the requesting party to determine
if privilege applies FRCP 26(b)(5).

XIII. Sequence of Discovery

i. Discovery Conference – FRCP 26(f) requires parties meet “as
soon as practicable” to discuss claims/defenses filed and
whether there is any possibility of settlement. If no settlement is
reached, they draw up a “discovery plan”.

i. Discovery Plan – covers the subjects on which discovery is

to be had, the timing and form of mandatory disclosures
and discovery, and any agreements parties make to limit
discovery or relax limits prescribed by rules, and any
orders court should issue to facilitate discovery process.

ii. Prerequisite to discovery – A party may not engage in

formal discovery until after the conference.

j. Initial Disclosures – shortly after conference, parties make

initial mandatory disclosures required by FRCP 26(a).

k. Party-initiated Discovery – Once initial disclosures complete,

parties serve discovery requests on each other and 3P witnesses.

l. Pretrial Disclosures – As the case nears trial, parties again

make certain mandatory disclosures of expert witness info and
other evidence to be offered at trial.

XIV. Discovery Methods (Organize chronologically?)

m. Mandatory Disclosures – There are two main stages: Initial
Disclosures and Pretrial Disclosures.

i. Background and overview – FRCP 26(a) relatively new

provision (1993) Only a few states include mandatory
disclosure requirements in their rules.

1. 2000 amendments – limited info that must be

disclosed

2. No opt-out rule for mandatory disclosure for federal

districts (as of 2000).

56
ii. Initial Disclosures

1. FRCP 26(a)(1) requires both parties to turn over

certain info

2. Timing – Must be made within 14 days following the

discovery conference unless parties agree
otherwise/court extends the time.

3. What must be disclosed

a. Name/contact info of any person w/

discoverable info that the party may use to
support its claim or defense in any way other
than impeachment.

b. Copy/description of all documents, data

compilations, and tangible things (written Ks,
photos) the party may use to support its claim
or defense in any way other than
impeachment.

c. A computation of damages, together w/

supporting documentation.

d. Any liability insurance policy that might apply

to claim(s).

4. “May use to support” – from 2000 amendments. Must

disclose items that may be used to support
claim/defense, unless it will be used solely for
impeachment.

5. Certain proceedings exempted from initial disclosure

requirement – see FRCP 26(a)(1)(E).

iii. Pretrial Disclosures – FRCP 26(a)(2) and (a)(3) – more

disclosures required as case draws near.

1. Expert testimony

a. Party must disclose the identity of any person

who will testify as an expert. If person is
retained to supply expert testimony, party

57
 must also include report signed by expert
witness describing expert’s qualifications,
opinions he’ll give, and grounds for those
opinions, amount of compensation he’ll
receive, and a list of other cases he’s testified
in FRCP 26(a)(2).

2. Lay witness

a. Party must disclose name and contact info

(unless already given) for all witnesses party
may call at trial.

b. Disclosure must differentiate between witness

a person plans to call and those he may call
depending on circumstances.

3. Tangible evidence – party must identify docs and

other tangible evidence that may be used at trial.
Again, must differentiate between evidence that will
be presented for sure and might be presented
depending on circs.

4. Timing – these disclosures must be made at least 30

days before trial for lay witnesses and evidence and
90 days before trial in the case of experts.

n. Overview – methods of obtaining info from others

i. When discovery begins – FRCP 26(d) says discovery can’t

start until after the discovery conference. (The only
exception is the FRCP 27(a) pretrial deposition, see
below) This limit can be waived by the parties or the court.

ii. Informal information gathering not barred – nothing in the

FRCP limits a party’s ability to informally gather info
through voluntary exchanges between parties, witness
interviews, etc.

o. Depositions – like questioning a witness at trial. Witness placed

under oath, proceeding is transcribed.

i. Who can be deposed –Depositions are the only discovery

device that can be used against nonparties.
58
ii. Limits on availability – court’s permission needed – to
depose someone in prison, to depose someone who had
already been deposed, if there would be more than 10
depositions for the party.

iii. How initiated – Party initiates dep by giving reasonable

notice to all other parties w/ time and location of dep, and
name of deponent.

1. Party deponent – Notice places duty on deponent to

appear and submit to questioning. Deponent may be
required to travel, but if location/timing is too
burdensome, party deponent may petition for
protective order.

2. Nonparty deponent – Notice alone doesn’t obligate

person to appear. Party may obtain subpoena
requiring the witness to appear at time/place
specified. FRCP 45 sets out subpoena rules.

a. Location – nonparty witness can move to quash

subpoena if it requires he travel more than 100
miles from where he lives/is employed, or
regularly conducts business.

b. Issuing court – subpoena must be issued in the

district where the dep will be conducted. FRCP
45(a)(2).

c. Service – subpoena may only be served:

i. Anywhere in the district where the

subpoena was issued

ii. Anywhere w/in 100 miles of the place

where the dep is to be conducted.

iii. If state law allows, anywhere in the state

in which the dep is to be conducted.

d. Consequences of failure to obtain subpoena

i. If no subpoena obtained and witness fails

to appear, no sanctions for witness.
59
 ii. However, party who noticed the
subpoena may have to pay
expenses/atty’s fees of parties who
attended the dep FRCP 30(g)(2).

3. Production of documents – Deposing party may

request deponent bring tangible things to the dep.

a. For parties – must submit a request to produce

FRCP 34.

b. For nonparties, subpoena may specify so

(called subpoena duces tecum).

4. Deposing corporations/other associations – useful

when party suspects someone w/in an organization
has desired info but doesn’t know who. FRCP 30(b)
(6) allows party to depose a corp. and say
specifically what info it wants.

a. Designated person – Corp./Assoc. must

designate one or more persons within the org.
or who agrees to testify on its behalf and
inform the requesting party about what each
person will testify.

b. Particular person – IF requesting party knows of

a particular official/employee who likely has
info, party may forgo all of the above and just
depose that person.

iv. Deposition procedure – Can be held anywhere. Can be held

over the phone – FRCP 30(b)(7).

1. Court officer – unless parties stip otherwise, dep is

conducted before officer of the court.

2. Oath – Deponent is under oath.

3. Questioning/cross – Party asks questions, other

parties often cross.

4. Inspection – of documents and tangible things, if

produced.
60
 5. Recording dep – transcribed by court reporter or
recorded electronically. Noticing party selects means
of preservation and pays costs. Other parties may
specify add’l means of preserving testimony.

6. Objections – must be made concisely in

nonargumentative and nonsuggestive manner. FRCP
30(d)(1). Prevents coaching.

a. Objection is noted in the transcript, and

deponent usually then has to answer the
question.

b. Atty may instruct a party not to answer a

question only when necessary to protect a
privilege, pursuant to a limit imposed by the
court, or if party plans to immediately seek a
protective order under FRCP 30(d)(4).

7. Protective orders – FRCP 30(d)(4) allows parties to

seek protective order when dep conducted in bad
faith or in a way that unreasonably annoys,
embarrasses, oppresses deponent or a party (ex,
continually asking about irrelevant matters).

a. Order must be obtained by district judge in the

district where the dep is being taken.

8. Time limit – FRCP 30(d)(2) – a single day of 7 hours,

unless parties agree otherwise/court issues order.

9. Review of transcript – If deponent or a party

requests, deponent may review the transcript. If he
wants to make changes, has to sign a statement
indicating changes desired and why.

v. Special depositions

1. Depositions before commencement of action – FRCP

27 allows depositions before suit is commenced

a. When used – to preserve testimony of witness

in poor health or one who is leaving the
country for a long time.
61
 b. Petition – Requires court approval. Petition
must describe underlying dispute, likely
parties, info the deponent likely has, and
reasons why it must be obtained now and not
later. Notice must be provided to all expected
parties

c. Deps while case is on appeal – allowable under

FRCP 27(b)

2. Deps on written questions – FRCP 31 allows party to

conduct dep w/out showing up in person. Party
submits written questions and presiding official asks
them to deponent.

a. When used – typically only to obtain

background info on (distant) nonparty
witnesses. If it’s a party, it’s easier just to use
rogs.

b. Cross-examination – questions are submitted

to all parties, who may also submit written
cross-ex questions. Noticing party can then
serve redirect questions.

p. Interrogatories – FRCP 33 governs rogs.

i. Available only against parties. No court approval

necessary.

1. Nothing prevents a party from sending written Qs to

a nonparty, but nonparty is under no obligation to
answer.

ii. Limit on number – FRCP 33(a) prevents party from asking

more than 25 questions unless court approves or parties
agree to more. Each Q’s “subpart” counts as separate
question.

iii. Answer – Recipient is under oath. Answers must be signed.

Parties work w/ attys in framing answers.

1. Time to answer – Within 30 days unless court orders

or parties agree otherwise.
62
 2. Duty to investigate – Party answering has duty to
investigate, unlike deps where the party speaks from
personal knowledge. If party doesn’t know something
but info can be obtained from his records, party must
investigate/provide info.

3. Exception - option to produce business records –

a. FRCP 33(d) says if answer to a rog can be

obtained from party’s business records, and
the burden of getting the info is substantially
the same for both parties, the answering party
can specify the records where the answer can
be found and allow asking party to conduct its
own search.

4. Objections – Unlike deps, if a party objects it can

refuse to answer a Q and instead specifically state
why the Q is objectionable. FRCP 35(b)(5)

a. Q is objectionable if it is overly burdensome,

calls for privileged info.

b. FRCP 33(c) makes clear that Q isn’t

objectionable simply because it makes
answering party apply law to fact. D can be
asked if he was “negligent” because it involves
application of law to fact.

q. Inspection of documents/tangible things – Governed by

FRCP 34

i. Available only against parties. Even if party is not in actual

possession of item, if item is under party’s control, he must
make it available for inspection.

1. Note - Obtaining docs/tangible things from

nonparties – two ways

a. Obtaining a subpoena duces tecum for a dep

and requesting NP to produce docs/TTs

b. If no testimony necessary, a subpoena under

FRCP 45(a)(1)(C) requiring nonparty to
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 produce and permit inspection of TTs or
premises.

ii. Procedure – seeking party serves request describing item

to be inspected and a reasonable time/place to do it. Opp.
party files response within 30 days stating whether
inspection will be allowed and grounds for objection, if any.

1. Other parties – FRCP 34 doesn’t say request for

inspection be served on parties other than item-
controlling party.

r. Requests for admission – FRCP 36 allows party to ask other

party to admit certain matters. If the other party doesn’t
object/effectively deny the matter, matter may be deemed
admitted for purposes of trial.

i. Available only against parties. Usually used at the end of

discovery to weed out matters in the pleadings that have
been resolved.

ii. Although technically a discovery device, closer to a

pleading. Function like a second round of pleadings before
trial to determine what issues remain in dispute.

iii. What may be requested – anything w/in scope of discovery,

including opinions of fact or the app of law to fact

iv. Party may not object to request to admit merely because it

involves issue that is the crux of their case or because it’s
something that “should be proved at trial.”

v. Process – Party serves request on other party. No limit on

number of requests that can be served.

1. Response – party served may

a. Admit matter is true

b. Deny truth of the matter, if he can do so in

good faith.

c. State in detail reasons why party cannot

admit/deny request.

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 d. Object to request.

2. Form of denial – must “fairly meet the substance of

the requested admission” – FRCP 36(a). If only
denying part, must be specific about which parts
admitted/denied. (same standard as complaint).

3. Effect of failure to deny – party who doesn’t deny

request to admit or who sets forth ineffective denial
is deemed to have admitted matter requested. Any
admission applies only in the particular case – no
effect in other cases.

s. Physical/Mental Exams – FRCP 35 makes it possible to force a

party to submit to phys/mental exam. Unlike other devices, party
must obtain a court order.

i. When available – May be ordered only for a party or person

in custody/under legal control of a party.

1. Custody or control – refers to a ward, such as an

infant/incompetent. Rights of infants and
incompetents usually litigated by guardians.

2. Need not be adverse – party to be subjected to exam

need not be adverse to the movant. However, it’s
rarely possible to show good cause for examining co-
party since requesting party will usually have no
need for info at trial.

ii. Court order required – Must be obtained from court in

which the action is pending. It is only granted if party
demonstrates that mental/phys condition is in controversy
and if good cause exists for exam.

1. In controversy – condition is in controversy if the

condition is relevant to one or more claims or
defenses before the court and if there is a genuine
dispute concerning condition.

a. Relevancy – ex. If D argues that K was invalid

because D was insane and lacked capacity,
mental condition is in controversy

65
 b. Placing condition in controversy –Schlagenhauf
v Holder limited ways in which a person’s
physical/mental condition can be placed in
controversy.

i. A party may place her own condition in

controversy in the pleadings by alleging
a claim or defense that turns on that
condition.

ii. However, party may not place the

condition of another party in controversy
in the pleadings. Instead, party needs
to offer an affidavit or other aff. evidence
tending to show person’s condition is in
controversy.

2. Good Cause – movant must show info can’t be

obtained by other means. (ex. If party is willing to
turn over med records, movant may not be able to
show good cause)

iii. Violation – Party who disobeys court order to submit to

exam is subject to sanctions under FRCP 37(b). However,
unlike other discovery orders, party can’t be held in
contempt. FRCP 37(b)(2)(D) and (E).

iv. Particulars concerning exam – Exam must be conducted by

licensed or certified examiner. Movant may select where
examination is held and must pay all costs.

v. Examiner’s report

1. Post-exam, examiner prepares written report and

delivers it to party requesting the exam.

2. Party who was examined can obtain copy of report

by request.

3. However, there’s a cost – If examined party requests

copy of report, party requesting the examination
may obtain copies of all other examinations of the
examined party involving the same condition.

66
 4. By requesting report, examined party waives any
doctor-patient or similar privilege protecting all other
reports.

XV. Policy-based Limits on Discovery

t. Protective orders – FRCP 26(c) allows court to enter a
protective order limiting discovery to protect party/person from
“annoyance, embarrassment, oppression, or undue
burden/expense.” - Can forbid discovery completely or limit
timing/scope including barring discovery into certain subjects.

i. Proper court – Order is sought from district court where

action is pending, or in case of dep, can also be sought
from court in district where dep is taking place.

ii. Informal discussion as prerequisite – Movant must certify

she’s conferred/attempted to confer with other affected
parties in an attempt o resolve discovery dispute w/out
court intervention. FRCP 26(c).

iii. Reasonableness standard – “annoyance, undue burden,

etc” must be unreasonable.

u. Privacy – Unnecessary intrusions into private matters are

common reasons for PO.

i. Highly personal matters – Sensitive info, such as

past/present sexual relationships or drug use, may be
highly embarrassing to party

1. Relevance – court considers how important info is to

seeking party. Less relevant – more likely PO will be
issued.

2. Disclosure – If info is highly relevant, court may limit

disclosure to 3Ps.

a. Stalnaker v Kmart Corp – Sexual Harassment

claim. P sought to depose certain other
employees about sexual conduct w/ D and
others. Court allowed discovery about conduct

67
 w/ D, but not with others. Court determined
info was relevant.

ii. Trade secrets – (chemical formulas, industrial processes,

etc. that gives party advantage over competitors)

1. Relevance and harm – A trade secret can be highly

relevant particular in products liability cases.

2. Ways to protect – Courts are creative in dealing w/

trade secrets – may conduct in camera inspection of
the secret (court reviews info and distills it, providing
requesting party only with what it needs).

v. Limits designed to protect adversarial process – overview

– WORK PRODUCT RULE AND INFO CONCERNING EXPERTS

i. Privilege distinguished – Work Product Rule and Expert

Testimony rules are referred to as privileges, but they
aren’t true privileges – They can usually be overcome by a
showing of need.

ii. Claiming protection – Party can’t withhold info based on

WP or ET rules unless party makes claim expressly and
provides enough of a description of what’s being withheld
to allow requesting party to determine if protection applies
– FRCP 26(b)(5).

w. Work Product – FRCP 26(b)(3) – covers documents/TTs

prepared in anticipation of litigation – Can only be obtained upon
showing of need.

i. History – work product rule is essentially a codification of

Hickman v Taylor. Hickman applied only to attys, but the
rule has been extended to things prepared by other reps.

ii. Purposes – Hickman established that the limited WP

exception serves two purposes

1. Prevents one side from piggybacking on the work of

another.

2. Helps minimize the number of situations in which an

atty will be called as a witness.
68
iii. Overview of FRCP 26(b)(3)

1. Proceeds from the unstated premis that WP as a

general rule is not discoverable, except as
specifically allowed by the rule.

2. As a result – info that meets general chars of WP but

isn’t listed in FRCP 46(b)(3) can’t be discovered
even on showing of need. Information that is non-
tangible – stuff atty hears when interviewing witness,
etc – doesn’t fall within exception and can’t be
discovered at all.

iv. Work Product – FF 26(b)(3) allows discovery of docs/TTs

otherwise discoverable under FRCP 26(b)(1) that were
prepared in anticipation of litigation or trial by party or
party’s rep.

1. Documents/TTs – broadly defined – notes taken

during interview, photos, etc.

2. Otherwise discoverable under FRCP 26(b)(1) – must

be relevant and not privileged.

3. In anticipation – must have been prepared in

anticipation of litigated dispute.

a. Not necessary that the case actually have been

filed when item prepared.

b. WP protection doesn’t extend to documents

prepared in ordinary course of business, like
personnel records or mid records of a hospital,
which would’ve been prepared regardless of
litigation.

4. Representatives – Explicitly included are “atty,

consultant, surety, indemnitor, insurer, agent” –
others may qualify.

v. When WP can be discovered – Only when party shows

substantial need for info same basic info can’t be obtained
from another source without undue hardship.

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 1. How request made – party seeks WP either through
rogs or by deposing the rep.

2. Demonstrating need – Two factors – importance of

the info and whether the equivalent can be obtained
by other means.

a. Information needs to be important to party

seeking it. (Unless evidence in party’s
possession is weak/ambiguous, evidence it
already has cannot be discovered through WP
rule)

b. If party can obtain info from another source, he

can obtain it under WP rule. However, if getting
the info from another source is difficult due to
substantial cost or because the witness is
hostile to seeking party, it may be possible to
obtain info from the other party.

3. Qualified immunity – docs/TTs, things prepared “in

anticipation of litigation”.

4. Absolute immunity – mental impressions,

conclusions, opinions, and legal theories – can’t be
discovered.

5. Privilege log – if a party is declining to furnish

docs/info because of a claim of privilege or WP
immunity, party must make the claim expressly, and
must describe the nature of the docs or
communications FRCP 26(b)(5)

6. Exception – FRCP 26(b)(3) allows a party to obtain

a copy of its own statement from the other side’s rep
without showing need.

vi. Mental impressions – court is obligated to protect against

disclosure of mental impressions, conclusions, opinions, or
legal theories of atty or other rep. Court will order WP info
that reveals these things be turned over only if there’s no
other way for requesting party to obtain info.

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x. Expert info – FRCP 26(b)(4) governs discovery of info/opinions
of experts. Clearly distinguishes between experts who may
testify at trial and experts who are retained but will not testify.

i. “Expert” defined – someone w/ specialized knowledge in a

particular subject area who gives an opinion based on facts
presented to her/obtained by her investigation. Only
experts can give opinions.

ii. Testifying Expert – mandatory disclosure rules require

party to provide detailed info about experts who may
testify at trial – FRCP 26(a)(2). FRCP 26(b)(4)(a) allows
party freely to depose anyone IDed as a testifying expert.

1. The other side gets a report containing, among other

things, the expert’s opinions, and their bases for
them; the data considered by the expert; any
exhibits to be used by the expert at trial; the expert’s
qualifications; his compensation; the names of other
cases expert has participated in.

iii. Nontestifying Expert Retained by counsel – If expert won’t

testify, his opinions generally aren’t discoverable. Info can
only be discovered based on showing of need, showing
impracticability of obtaining info through other means.
FRCP 26(b)(4)(B). When allowed, discovery can be by
dep or rogs.

1. Given that other experts in the field are available,

this standard is very hard to meet. However, when
underlying facts are no longer available for experts
to examine, a party can show need.

2. Thomspon v The Haskell Co. – a crucial issue was a

party’s mental state at a particular time. Because it
could’ve changed, other party allowed to discover
opinions of nontestifying psychologist.

3. Exception – although a med professional is

technically an expert, the report prepared following a
Rule 35 phys/mental exam can be obtained without
showing need under the circs set out in the rule.

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 iv. Costs – party seeking discovery from an expert is usually
required to pay a reasonable fee to expert providing the
info, as well as expert’s costs.

y. Unretained experts not to be called at trial – Where an expert is

consulted but not retained, there is virtually no way the other
side can discover the ID or opinions of that expert.

z. Participant Experts – one who actually took part in the T or O that

are part of the SM of the suit are treated like ordinary witnesses
for purposes of discovery.

II. Supplementing Disclosures and Responses – FRCP 26(e)

requires a party to supplement/correct disclosures and responses
made earlier in certain circs.

a. Only parties – Nonparties never have a duty to supplement.

b. Court-ordered supplementation – Party must supplement when

ordered to do so.

c. Supplementing Disclosures – even w/out CO, party must

supplement its mandatory disclosures if it learns its earlier
disclosure was incomplete/incorrect in some material way and
the add’l info has not been acquired by the other parties through
discovery or in writing.

d. Supplementing after discovery

i. Types of discovery that must be supplemented – answers

to rogs, responses to a request for production of
documents, and answers to requests for admission.
Answers to a dep need not be supplemented.

ii. When required – Party must supp if it learns that the earlier
answer or response was incomplete/incorrect in some
material way, and the add’l info has not been acquired by
other parties through discovery/in writing.

III. Preventing Discovery Abuse – there are different tools meant

to police abuse.

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a. Signing of discovery – FRCP 26(g) attempts to prevent
abuse by requiring all discovery docs to be signed. It’s
discovery’s counterpart to Rule 11.

i. What must be signed – all mandatory disclosures and

discovery requests, responses, and objections.

ii. Who signs – at least one atty of record, or the party if party
doesn’t have atty.

iii. Effect of signing – constitutes certification that the signer

has conducted a reasonable inquiry and that, to the best of
his knowledge, info, and belief:

1. In the case of mandatory disclosures, disclosure is

complete and correct when made.

2. In the case of other discovery requests, responses,

objections, item is:

a. Consistent with the rules

b. Warranted by existing law or a good faith

argument for changing law,

c. Not made for any improper purpose like

harassment/delay

d. Not unreasonably/unduly burdensome.

iv. Violation of Rule – Court may impose sanctions on

signer/represented party. No motion necessary, though
sanctions on the court’s own volition are rare. Judge has
discretion, but rule specifically authorizes an award of
expenses/atty’s fees.

v. FRCP 11 not applicable to discovery. Only FRCP 26(g)

governs here for discovery.

b. Compelling discovery – When a party refuses to provide info,

requesting party can obtain an order compelling discovery. FRCP
37(a). The order itself may impose sanctions on disobedient
party. Failure to comply could mean more sanctions as well.

i. Proper court
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 1. If person refusing to provide info is another party –
motion is filed in court where case is pending.

2. If nonparty – motion filed in court where dep is

pending.

ii. Must attempt to negotiate – Motion to compel discovery

must include cert that movant conferred/attempted to
confer in good faith with person refusing to give info in
order to resolve matter w/out court intervention – FRCP
37(a)(2)(A) – disclosures; FRCP 37(a)(2)(B) – other
discovery.

iii. Compelling disclosure/discovery – Order compelling

discovery is available for all discovery except requests for
admission and phys/mental examination. For phys/mental
exam, party already required to obtain order under FRCP
35.

iv. Sanctions for unsuccessful motion – If motion compelling

discovery unsuccessful and deemed not substantially
justified, court may order party/party’s atty to pay
expenses/atty’s fees of the party defending the motion.
However, court must give movant notice and opportunity
to be heard before imposing such sanctions FRCP 37(a)
(4)(B).

v. Order, add’l sanctions – If movant prevails, court will order

the other side to cooperate and may impose sanctions on
them.

1. Costs and atty’s fees on successful motion – if party

who initially refused discovery is ordered to give info,
and their refusal wasn’t substantially justified, costs
and atty’s fees can be imposed

2. Add’l Sanctions – Court also has discretion to impose

add’l sanctions against a party who refuses to
provide info in certain circs FRCP 37(d).

a. When available – Against a party who refuses

to answer rog, or refuses to serve a written

74
 response to a request for inspection of
docs/TTs.

b. Add’l sanctions usually accompany an order to

compel discovery, though they can be imposed
absent such an order. Therefore, if party
obtains info from another source, it may still
seek sanctions against the noncooperative
party.

c. Sanctions available – FRCP 37(d) – court can

order that:

i. Certain matters in the discovery request

are deemed established.

ii. The noncooperating party be barred from

making certain claims/defenses or from
introducing evidence on certain matters

iii. Parts of noncooperating party’s

pleadings be struck.

iv. The action be stayed until the party

complies

v. The action be dismissed, or default

judgment be entered.

d. Proportionality Requirement – Use of severest

sanctions prohibited for minor transgressions

i. Courts ask whether sanctioned party

acted in good faith or willfully, if the rule
was clear or open to interpretation, and
the degree to which failure affected the
underlying case.

ii. Within those restrictions, courts have lots

of discretion, and their decisions are only
overturned based on abuse of that
discretion.

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3. Sanctions for disobeying order – Violations of an
order to compel could expose violator to additional
sanctions, even if party was sanctioned when order
was issued.

a. When available – Whenever a party violates

court’s discovery order – could be an order to
compel, order to take part in discovery
conference (FRCP 26(f)), or order to submit to
physical/mental exam (FRCP 35).

b. Sanctions available – Same as those above, but

party can also be held in contempt of court.

i. Contempt – very severe. Generally, party

required to pay fine to court. Fine may be
levied daily until party “removes
contempt” by complying w/ order. In
cases of especially willful disobedience,
party can be jailed until she’s willing to
obey order.

ii. Exception – contempt not available for

refusing to submit to phys/mental
examination. FRCP 37(b)(2)(D).

c. Proportionality Requirement – same idea as

above. However, because in these cases party
more likely to have acted willfully, more severe
sanctions are likely.

4. Specific Sanctions – Rules contain specific sanctions

that apply to specific discovery problems

a. Failure to attend dep – If a party who is

supposed to attend a dep fails to, or fails to
ensure a nonparty attends, sanctions possible

i. Party requesting dep – if he fails to

attend, or if he notices the dep of a
nonparty witness but doesn’t serve a
subpoena and witness doesn’t show,

76
 sanctions possible. FRCP 26(g)(1) and
(2)

ii. Party deponent – If person scheduled to

testify doesn’t show, FRCP 37(d) allows
for “appropriate sanction”, which could
include atty’s fees. Also applies when
party notices the dep of an organization
on matters, and people designated by
organization fail to show.

b. Failure to answer question at dep – Party or

nonparty deponent who refuses to be sworn
in/answer a question may be held in contempt.
FRCP 37(b)(1).

c. Failure to disclose/supplement – Failure to do

either could result in sanctions under FRCP
26(e) unless failure was substantially justified
or failure was harmless.

i. Sanction –

1. Party who fails to

disclose/supplement is barred from
introducing evidence on that
matter at trial or at any hearing on
a motion.

2. Additionally/alternatively, court
may order party to pay
expenses/atty’s fees that other
parties incurred in obtaining info
from other sources.

ii. When failure is harmless – Failure to

disclose/supp is deemed harmless when
info is of little significance to other party
in proving/defending his case or when
party has already obtained the info from
another source when disclosure/supp
should have occurred.

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 d. Failure to admit – If party unreasonably fails to
admit, requesting party may recover all
reasonable expenses, including atty’s fees, it
incurred in proving matter at trial. FRCP 37(c)
(2).

e. Discovery plan – Party who refuses to

participate in framing of discovery plan may be
required to reimburse other parties for
reasonable expenses, including AF, it may
incur because of such failure. FRCP 26(f).

Avoiding Trial
I. Pleading stages – 12(b)(6)-(before you answer) 12(c)-(limited to
pleadings…can be filed after answer.

II. Summary Judgment – R56

III. Judgment as a matter of law - R50

XVI. Summary Judgment – FRCP 56

a. Different than other means of resolving cases pre-trial

i. Judgment on the pleadings – FRCP 12(c) – allows a court

to resolve a case based solely on the allegations in the
pleadings. (w/ Summ Jud, court looks at evidence each side
has.)

ii. Judgment as a matter of law – FRCP 50 – occurs during a

trial. (Summ Jud motion must be made pre-trial).

b. Procedure

i. Type of summ jud – Party may seek SJ on all claims in the

case, or partial SJ on one or more claims. FRCP 56(a).
Could also be on a counterclaim, cross claim, or 3P claim

ii. Who can move – Either party. Most commonly, both.

iii. Form of motion – Parties can file for SJ under FRCP 56, but
FRCP 12 also provides motions can be converted into a
motion for SJ. Motions to dismiss for failure to state a claim
78
 or a motion for judgment on the pleadings including facts
outside the pleadings are treated as motions for SJ – FRCP
12(b0(6) and 12(c).

iv. Material accompanying motion – Affidavits, answers to

rogs, transcripts of deps.

1. Affidavits must be based on personal knowledge and

include info that would be admissible as evidence,
and demonstrate the person making affidavit is
competent to testify. FRCP 56(e).

2. Memorandums often included too.

v. Timing – must be filed very early in case

1. By party defending against claim – can move for SJ

at any time, even before it files its response to that
claim FRCP 56(b).

2. By claimant – May move for SJ after defending party

makes its own motion for SJ or after 20 days
following commencement of the action. FRCP 56(a).

3. Timing of hearing – motion must be served 10 days

before hearing on the motion. FRCP 56(c).

4. Disposition of early motions – IF made too early,

court may delay the hearing until a party has had
adequate opportunity to conduct discovery. FRCP
56(f).

5. Response by opposing party – may submit its own

evidence supporting its side, including affidavits and
memorandums.

vi. Hearing – All parties appear at hearing and argue

for/against granting. Courts can take oral testimony at
hearing but usually doesn’t.

vii. Standard for SJ – FRCP 56(c) – courts will grant SJ if there

is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law.

79
1. Basic principles

a. Courts do not weigh evidence

b. Courts do not determine credibility of evidence

c. Evidence is to be viewed in favor of non-

moving party.

d. Problem of inferences

i. If each party has direct evidence

involving crucial issue, problem solved –
SJ denied.

ii. If both parties have evidence requiring

fact finder to draw inferences, it’s more
difficult.

iii. Generally, inferences are a matter for

the jury, unless they are simply too
improbable or farfetched. In the latter
case, SJ can be granted.

iv. Competing inferences – Often more than

one inference can be drawn from
evidence. Unless each inf. favors one
party, court should grant SJ for the party
without burden of production.

e. Issues for the jury – some issues are

considered particularly appropriate for jury
determination (ex, negligence).

2. No genuine issue of material fact – If there is a

genuine issue, SJ not allowed.

a. Various views

i. Some states – Almost impossible to get

SJ. If nonmovant as some evidence,
though weak, supporting its side, no SJ.

ii. Other states/fed court – SJ granted more

frequently. Here, though not explicitly,
80
 courts are weighing the evidence to a
limited degree.

b. Importance of burden of production (w/ respect

to “no genuine issue”)

i. Burden of Production – dictates who must

introduce evidence on an issue. If neither
party introduces any evidence on the
issue, party w/ B-o-Prod loses.

1. Claimant typically bears B-o-Prod

on every element of its claim.

2. Defending party typically has B-o-

Prod on aff defs.

3. Switching burdens when party has

overwhelming evidence in support
of its claim/defense. – If the other
party fails, court decides the issue,
not jury.

ii. Interrelationship of B-o-Prod and SJ – Two

categories of SJ cases

1. Nonmovant has burden – Court has

to determine whether the other
party has satisfied the burden by
introducing enough evidence on all
elements. If not, SJ granted.

2. Movant has burden – Court grants

SJ if:

a. Party has introduced so much

evidence that burden has
shifted to other side, and

b. Other side hasn’t introduced

enough evidence to meet the
shifted burden.

iii. Effect of B-o-Prod

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 1. Party w/ burden must prove his
case by preponderance of the
evidence.

2. For other issues, like fraud – by

clear and convincing evidence.

iv. Application of standard where Defendant

moves for SJ

1. Every element – P must have

significant evidence on every
element of claim.

2. “Mere scintilla” test – Some courts

will deny SJ if P has any evidence in
its favor. Federal courts have
rejected the mere scintilla
approach and require significant
evidence.

3. D’s duty – D has initial

responsibility of demonstrating to
court the absence of genuine issue
of fact.

a. Celotex Corp v Catrett –

court says D need not offer
proof that negates P’s case.
Must only show that P has
failed to meet the B-o-Prod.
However, D can simply
assert that P has no
evidence.

b. Bias v Advantage
International, Inc – NBA first
round pick coke case – P says
D failed to get P life
insurance, D says insurance
wouldn’t have been gotten

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 anyway because P’s son was
drug user. SJ for defendant

4. Think: if trying to analyze whether

or not summary judgment ought to
be granted, 1) break down the
claim into its elements. What
are the prima facie elements? 2)
See whether you’ve got them,
or if you see a void. If there’s a
void, there’s a Celotex failure of
proof. Key if you’re P’s council: can
I sustain a rule 56 motion and get
to a jury? If so, the case has value,
bc there’s no guarantees w/ a jury.
v. Application of standard where P moves
for SJ

1. P can move for SJ when it feels its

evidence overwhelms the evidence
of D

a. Presents greater difficulties

than SJ for D.

i. P must present enough

evidence to switch B-o-
Prod to D.

ii. P must have

substantial evidence
for all claims.

iii. D must either have no

conflicting evidence or
completely
overwhelmed evidence.

3. Movant entitled to judgment as matter of law –

second party of SJ.

i. Mostly this standard presents no

difficulty

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 ii. For P, means that even if evidence is
exactly as P claims, if the law doesn’t
favor P, court should not grant SJ for P.

viii. Judgment – A summary judgment is a final judgment and is

treated like a judgment rendered after a full trial

XVII. Settlements
c. Judicial approval usually necessary

i. One possible exception is a case involving minors.

ii. Another exception – court approval needed before

settlement/dismissal of class actions FRCP 23(e)

d. Termination of case – Once parties settle, parties arrange to

terminate case. Either by voluntary dismissal or court-entered
consent decree.

e. Postjudgment settlement – if parties settle a case after TC

decides it but while case is on appeal, courts are split on whether
or not TC’s judgment should be expunged and lose its precedent
value or estoppel value for loser in later litigation.

i. Courts may decide not to expunge judgment – US Bancorp

Mortgage Co. v Bonner Mall – “fed courts shouldn’t
expunge judgments”

ii. Other courts will expunge judgments – Neary v University

of California

f. Barring later actions – dependent on form of dismissal

i. Settlement agreement – typically, the agreement forbids

either party from suing on the claim again. It’s a K between
parties.

1. The agreement doesn’t affect court’s jurisdiction

2. However, if a party sues in violation of settlement,

the other side must assert the substantive defense of
accord and satisfaction.

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 ii. Voluntary dismissal

1. Dismissals by stipulation or court order are without

prejudice, unless the stipulation/CO provides
otherwise. FRCP 41(a)(1) and (2).

iii. Consent decree – A CD or order approving class action

settlement is a judgment and is entitled to full res judicata
effect

iv. When no SMJ – Parties may by settlement prevent a claim

from being asserted in later litigation even if the court in
which action was filed would not have had SMJ over the
claim Matsushita Electic Industrial Co v Epstein –
settlement evidenced by consent decree.

v. Confidentiality Provision – Settlement often contains

provision barring parties from speaking about dispute or
terms of settlement. Kalinauskas v Wong – these
confidentiality provisions do not necessarily protect a party
who is later subpoenaed to testify in litigation about the
same basic subject but involving a different P or D.

Trial: Judge or Jury?

I. Seventh amendment – “in suits at common law, where the value in
controversy shall exceed 20 dollars, the right of trial by jury shall be
preserved.”

a. Preserves, doesn’t create right – Therefore, to determine if party

has a right to jury, court has to determine if the underlying
action would have been heard by a jury in 1791.

b. Applies to issues, not case – possible for jury to decide some

issues and judge to decide others.

c. Not only source of right – some statutes give right to jury trial for
certain causes of action.

d. Amendment doesn’t apply to states – Many states afford a right

to a jury trial in civil matters, but not all.

II. Features preserved

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 a. Size – at common law, always 12. However, rules allow for “no
fewer than six and no more than twelve” – FRCP 48.

i. If jury falls below 6 for sickness or DQ, no verdict is taken

unless parties consent.

ii. Generally, fed courts rarely seat 6 member juries. More

common are 9- or 12-member juries

b. Unanimity – FRCP preserve requirement of unanimity FRCP 48.

However, parties can stip to a non-unanimous verdict. Most state
courts don’t require unanimous verdict.

c. Demand – Right to a jury trial can be waived by parties.

i. Under FRCP 38(b), party must serve on other parties

written demand for jury within 10 days following last
pleading dealing w/ issue for which jury is demanded. Must
also be filed in reasonable time w/the court. FRCP 5(d)

ii. Any party may file demand

iii. Unless demand specifies certain issues, party is deemed to

have demanded jury for all issues triable by jury. FRCP
38(c). If one party limits demand to certain issues, another
party can demand a jury trial for any and all remaining
issues.

III.Law v Equity

a. Legal remedies (jury trials available)

i. Habeas corpus

ii. Damages

iii. Mandamus – order to perform duties correctly (to do

something)

iv. Trover and Replevin – repossession of property

v. Ejectment – Legal

vi. Trespass

vii. Debt (to recover sums owed)

86
 viii. Covenant (to recover land unlawfully occupied)

ix. Assumpsit – (meaning “he promised,” to recover for

breaches of informal, usually oral contracts)

b. Equitable remedies (no jury trial)

i. Specific Performance

ii. Injunction – prevents someone/something from doing

something that would harm you.

iii. Restitution (cleanup doctrine – money damages are

intertwined with a primarily equitable relief – the money is
incidental/ancillary – possible that atty’s fees fit in here)

iv. Recission – to say a contract doesn’t exist.

v. Accounting – court ordered measuring of dams, etc.

vi. Procedural devices – CA, interpleader, etc.

c. Atty’s fees can be either law/equity.

d. Patent disputes

i. If the question is “is object A covered by patent?” it is a

question of law for the judge, but you still have a right for a
jury trial for dams, etc.

IV. Amoco Oil v Tarcomian - Whether something is law/equity is

procedural law, not substantive law – Fed Law determines it, not
substantive state law.

V. Steps for determining whether jury trial available – 3 steps

a. Can you fit the claim into a legal writ? (1791)

b. If no, is there a statute that specifically provides a jury

trial?

i. Congressional Intent in the language of the statute?

What is the primary relief afforded?

ii. Did Congress omit certain language on purpose?

c. If no, look to the remedies – are they legal/equitable?

87
 i. (If the remedies are ambiguous, look to cause of
action – legal/equitable?)

VI. Chauffeurs, Teamsters and Helpers Local No.391 v Terry – They ended
up with a mixed case, and then decided that the remedies were
primarily equitable, so no jury trial.

a. Generally a court will try to allow a jury to find facts in a mixed

case, unless the legal issue is really minimal as compared to the
equitable issues

VII. Mixed cases – Rule comes from Beacon Theaters, SC case

a. Jury must decide legal issues first, then the judge will use those
findings of fact in deciding the equitable issues.

b. If the equitable issue doesn’t depend on any of the jury’s findings

of fact, the judge will determine them independently.

VIII. (If you see a case where no one is morally wrong, there is a maxim
of equity that “equity will not suffer a remedy without a wrong”)

Trial: Limits to Jury Discretion

XVIII. Controlling Findings of Fact
a. Judgment as a Matter of Law (Directed Verdict) FRCP 50

i. Timing - Done at the close of the other party’s case.

ii. Asks the judge to take the case away from the jury to
prevent it from considering the evidence and reaching a
verdict

iii. Grounds for motion – that the evidence presented would

support only one result – There is no legally sufficient
evidentiary basis for a reasonable jury to find for
that party on that issue.

iv. Basic test in many courts – Could reasonable persons

differ? If so, court should defer to the jury on the issue.

v. Results in final judgment.

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 vi. Where a case has proven facts that give equal support to
two inconsistent inferences, judgment as a matter of law
must go against the party upon whom rests the necessity
of sustaining one of these inferences as against the other
before he is entitled to recover.

vii. Why aren’t they usually granted?

1. Even in situations where they might seem

appropriate, case could go to ap ct who could
reverse and then the district court has to retry case
all over again – waste of time, money.

viii. Pennsylvania RR v Chamberlain – Court comes about as

close as it can to the line between evaluating the evidence
and evaluating the credibility of the witness.

b. Excluding Improper Influences – accomplished in several

ways

i. Voir Dire – Screening process to eliminate

sympathetic/biased jurors

ii. Law of evidence – judge ensures jury only hears evidence

screened through it.

1. Even good faith efforts by jurors to bring their fellow

jurors information not filtered through the
evidentiary and adversarial screens may result in
new trials

iii. Instructing jurors not to discuss case w/ others and decide

case based only on courtroom evidence

iv. Sequester.

c. Instructions and Comment

i. Judge frames the questions for jury decision by instructing

the jury on the law – FRCP 51.

ii. Parties must request instructions, and if they don’t object

to an instruction they disagree with, they can’t complain
later.

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 iii. Instructions explain substantive law and the judge sets out
a sequence in which the decisions must be reached by the
jury.

iv. Jury instructions have two audiences

1. The jury – who want clear, easy to apply instructions

2. The appellate court – who want nuanced, balanced,

all inclusive statement of the law

3. The clash between these two goals often leads to

compromises in instructions.

v. Comment – If careful, the judge can tell jury what he thinks

of the evidence

1. There are several qualifications and hoops a fed

judge has to jump through to be able to do this and
avoid reversal on appeal.

2. Has to be careful not to “trespass into the jury’s

autonomous decision-making space.”

XIX. Controlling Juries After Trial

d. Judgment as a Matter of Law (JNOV) FRCP 50(b)

i. Final judgment

ii. Used when the jury comes back with an insupportable

verdict.

iii. Grounds – identical to a FRCP 50 judgment as a matter of

law

iv. It is essentially a renewed Rule 50a motion for directed

verdict

v. The party moving for 50b motion must have moved for
50a motion beforehand. – If you don’t move for JML under
50a, you can’t move for JNOV under 50b later – you’ve
waived that right.

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 vi. Courts call JNOV merely a ”delayed ruling on the motion for
a directed verdict.”

e. New Trial – governed by FRCP 59

i. Generally

1. Not a final judgment

2. Used when it can’t be said there wasn’t any evidence

to support one side, but that party A had really
strong evidence and B had really weak evidence, and
B won.

3. New trials can be granted sua sponte by the judge

(FRCP 59(d)) or by a party’s motion.

4. Law indicates two reasons for granting new trials

a. Procedure leading up to verdict

b. Correctness of verdict itself

ii. Flawed Procedures

1. NT can be granted when judge concludes the process

was flawed.

a. Impermissible args made by a party to the jury

b. Errors in admission of evidence

c. Errors in jury instructions

d. Juror misbehavior – consulting outside help,

visiting accident scene.

iii. Flawed Verdicts

1. Result of trial was unjustifiable

2. Ground – verdict was against the great weight of

the evidence. – lower standard than for JNOV, but
how low?

a. Lind v Schinley – Court says when the evidence

is close, or even somewhat in favor of the
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 losing party, the judge can’t step in and simply
substitute his interpretation for that of the jury.

3. Distinguish – JNOV and directed verdict

a. In JNOV, court says prevailing party had no

evidentiary support for at least one essential
element of its claim/defense.

b. Consequence of JNOV ruling – immediate entry

of judgment for the loser of the original verdict,
NOT new trial.

iv. Combined JML/New Trial motion

1. A party may want to bring both motions, hoping for

judgment in his favor, but willing to settle for a new
trial

2. FRCP 50b allows a party to ask for both a JML and a

new trial in the alternative.

3. Court must decide both – FRCP 50(c). The ruling on

the new trial motion is treated as conditional.

4. Purpose- save time on appeal. Requiring the

conditional ruling on the new trial motion allows ap
court to deal w/ both.

5. Application – because the standard is lower for new

trial, a judge who grants JML will typically grant new
trial conditionally, but this isn’t always the case.

a. Example – P’s evidence on point A calls for an

impermissible inference – TC judge grants JML.
Ap Ct rules inference was permissible, and
reverse, without need for a new trial.

6. New trial sought by winner – FRCP 50(d) allows

party who survives opponent’s JML motion to ask for
a new trial if opponent appeals.

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v. New Trial Limited to Damages – Courts can grant partial
new trials on damages, leaving the issue of liability
decided.

vi. Conditional New Trials – courts may give party a choice

between a new trial or a modification of the judgment.

1. Appeal – A verdict who accepts the condition and

avoids a new trial generally CAN’T appeal. A verdict
loser could appeal however, because her new trial
motion was denied.

2. Remittitur – judge orders new trial unless P agrees to

accept reduced damages. – Constitutional

3. Additur – Judge orders new trial unless D accepts a

higher damage award – Unconstitutional

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Appeal
XX. Filing Appeals and the Final Judgment Rule

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a. Determining what issues may be appealed
i. Adversity –
1. A party who loses may appeal
2. A party who “wins” but doesn’t win all the relief they
wanted or are given a different type of relief entirely
may appeal as well.
3. When both parties appeal, the appeals are called
“cross appeals”.
ii. Need to raise issue at TC – If a party doesn’t give TC
judge a chance to consider and rule on an issue, a party
cannot generally appeal it.
1. Legal theories – An appealing party can’t raise
claim/defense for the first time on appeal.
Additionally, if a party doesn’t raise a legal theory at
trial, he can waive that theory
a. Exception – SMJ – can be raised any time,
even on appeal.
b. Use of rejected theories by appellee – The
party who won at trial can use any legal theory
appearing in the record, including those the
TC rejected.
2. Objections to procedural mistakes – A party
presents the matter to the TC by lodging an
objection. Failure to object prevents a party from
raising the issue on appeal.
a. Timeliness – Objection must be timely, or the
grounds for the objection are waived. Ex- must
challenge evidence when evidence is
introduced.
b. “Renewing” an objection – If a mistake at
one stage of trial has an impact at a later
stage, party may be required to object at the
later stage too.
3. Exception – “plain error” – Some jurs don’t
require an objection in the case of plain error. Plain
error is an error so incorrect it calls into question the
competence/partiality of the judge. Rare.
iii. Harmless Error – 28 USC § 2111 – If an error doesn’t
“affect the substantial rights of the parties” it can’t be the
basis of a reversal on appeal. Ex – if TC admitted evidence
erroneously but the party also had a ton of other evidence
in support, the error might be harmless.
b. Timing of the Appeal
i. Final decision rule – 28 USC § 1291 – Allows appeals
from “final decisions” of fed district courts.

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 1. Jurisdictional – § 1291 is a jurisdictional statute.
Wait too long, and your appeals court lacks SMJ.
2. Appeals not covered by § 1291 – (Some cases go
directly to fed circuit, others to SC)
3. “Final Decision” Defined – “one which ends the
litigation on the merits and leaves nothing to do but
execute the judgment” – Catlin v United States.
a. Interlocutory rulings – Must TC rulings don’t
resolve the case and aren’t final – called
“interlocutory”
i. Discovery rulings, grant/denial of request
for jury, denial of motion to dismiss/SJ on
some/all claims/defenses, order granting
a new trial, etc.
ii. Liberty Mutual Insurance Co v Wetzel –
court grants SJ on liability, but not relief,
and this wasn’t a final decision.
4. Practical importance of finality – prevents party
from filing an appeal too early. Also determines if
appeal is too late.
a. Party has 30 days from final decision to file an
appeal.
b. Can be extended if party makes certain
motions (FRAP)
ii. EXCEPTIONS to Final Decision Rule
1. Resolution of Discrete Portion of Case under
FRCP 54(b)
a. Two requirements – judge must enter judgment
on discrete “claim for relief” and she must
expressly indicate that there’s no reason to
delay entry of judgment.
b. Claim for relief – Broad - If a party sets forth
a single basic wrong but seeks recovery for
that wrong under several different theories, the
diff theories are still part of same “claim for
relief” (On the other hand, merely because tow
claims are related/share considerably
overlapping facts doesn’t mean they comprise
the same form of relief – Sears, Roebuck & CO.
v Mackey)
i. Counterclaim, cross-claim, 3P claims
– They are separate from P’s original
claim even if they arise out of the same T
or O. Their judgment can be immediately
appealed even if the original claim
remains pending.
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 ii. Claims by/against separate parties
are separate claims under FRCP 54(b). –
Think joint tortfeasors. Judgment against
one is appealable.
c. Express determination – Judge must
expressly determine that there is no reason
to delay entry of judgment.
i. This is to provide parties notice that clock
is ticking.
ii. A court of appeals isn’t bound by TC
judge’s determination. AC can still
determine claim for relief requirement
wasn’t satisfied.
2. Injunctions – any order of TC that grants, refuses,
continues, modifies, dissolves an injunction can be
appealed immediately. TROs doesn’t qualify as
injunction under this rule.
3. Certification under § 1292(b) – certain issues can
be appealed when TC and AC agree an immediate
appeal is proper.
a. Must involve controlling question of law
about which there is substantial ground for
diff of opinion. (Doesn’t work for fact)
b. TC must determine an immediate appeal might
advance the ultimate termination of the
litigation.
c. TC judge must certify in writing that both (a)
and (b) are satisfied. – This is to the TC judge’s
discretion.
d. Party who wants appeal must apply to AC w/in
10 days of entry of the order.
e. AC must agree to hear the issue – it’s
completely discretionary.
f. RARE.
4. CA Certs – FRCP 23(f) allows for immediate review
of grant/denial of CA certification. AC has
discretion.
5. Mandamus/Prohibition – original proceedings
brought against public official (here, the court)
Mandamus – do something. Prohibition – don’t do
something.
a. Extraordinary relief – available only in
exceptional circs. Mandamus granted
frequently when judge improperly refuses to
impanel a jury.

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6. PRACTICAL FINALITY – “collateral order”
doctrine – allows appeal of certain interlocutory
orders.
a. Basic test
i. TC judge makes a ruling on an
important issue that is SEPARATE
from the merits of the case, and
ii. The issue is conclusively settled, and
iii. The ruling would be effectively
unreviewable if it couldn’t be appealed
until after final judgment.
b. Important issue separate from the merits
c. Conclusively determined – unlikely to be
revisited later in suit.
d. Effectively Unreviewable – hardest part to
satisfy
i. Court must determine if the ruling will
cause damage that can’t be repaired if
losing party must wait until an appeal
following final judgment
ii. In most cases, however, a new trial
could solve the problem. Thus, collateral
order appeals are limited to cases where
a new trial can’t repair the damage
done.
e. Application
i. Cohen v Beneficial Industrial Loan Corp –
TC refuses to require P to file a bond as
security for costs. Bond was to protect D
from expenses of defending a
frivolous case. This satisfied the three
elements above.
ii. Immunity – a ruling denying absolute
immunity might fit within the collateral
order exception doctrine, but judge’s
ruling must deny immunity as a matter of
law, not based on facts alleged by P, in
order for it to qualify. Qualified
immunity that can be overcome by
showing D acted in bad faith isn’t
immediately appealable as a collateral
order if it was so overcome.
iii. Discovery – collateral order exception is
almost never used for orders about
discovery.

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 iv. “Death knell doctrine” rejected – SC
has rejected expansion of CO doctrine in
rejecting the DK doctrine, which said that
come courts had to allow appeals of a
decision that had such an impact on the
losing party that it effectively ended
litigation.
c. General Info (Luke’s Outline)
i. Appeals are result-oriented: if parties seek the same
result on an successful theory that they sought in an
unsuccessful one, no appeal lies. That is, if the relief the
second theory entitles them to is no different than the
relief that the first theory entitled them to, it cannot be
appealed.
1. Only an adverse party may appeal (you are a
losing party)
2. Mootness—if situations have changed, the case is
now moot.
3. Harmless Error Rule - 28 USC § 2111 - Harmless
error rule - If defect or error does not affect the
substantial rights of the parties below (no harm
done) the court will not overturn the result arrived
at in TC
4. Class actions—class representatives are generally
parties to a case. Can class members have a right
to appeal? The modern view is yes, but there are
some cases that have no.
5. Waiver below: generally, a party cannot make a
claim on appeal that it did not make below. A
record must be made regarding an objection to
the specific evidence.
ii. Notes on deterrence to appeal:
1. The U.S. Supreme court has ruled that states can
outlaw civil appeals outright or make all appeals
discretionary (by leave). No state has yet done
this.
2. U.S. supreme court has made some rulings that
discourage appeals.
3. Statutes that impose penalties on unsuccessful
appeals of money judgments.
XXI. Scope of Appellate Review
d. Issues of Law

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 i. Reviewed de novo – no deference given to TC’s decisions
as to the rule of law.

e. Issues of Fact

i. Clearly erroneous standard applied – A finding is CE

when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” – SC in United States v U.S. Gypsum Co

1. Court should not reevaluate the credibility of

witnesses.

2. If there is significant evidence on both sides,

lower court’s finding cannot be clearly erroneous.

3. If the findings were made by a jury, the standard is

the no reasonable jury standard that applies in
JML. Harder to satisfy than CE.

ii. Mixed fact and law –

1. In fed system, mixed questions are treated just like

a question of fact and are subject to CE standard.

2. However, if the TC’s ruling on a mixed question was

based on an error in law, the AC hears the issue de
novo.

f. Documentary evidence

i. In fed courts, if the only evidence pertaining to an issue

at trial is set out in docs, the clearly erroneous
standard applies. Anderson v City of Bessemer City.

ii. In other courts, because the AC judge can interpret the

same document, the rationale for deferring to the TC
disappears.

iii. Applying standard to instruments – As practical

matter, it is easier to find TC’s interpretation of a contract
CE, because it doesn’t involve issues of credibility. If TC
judgment is at odds w/ the written words, CE is satisfied.

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 g. Issues w/in discretion of TC judge

i. (ex – decision to grant new trial) – AC reviews such

decisions under an abuse of discretion standard.

ii. Reversible only if AC concludes there is no possible

reasonable basis for the decision. Standard is also
referred to as arbitrary and capricious.

h. Complaint questioning the constitutionality of the law:

the court looks for irreconcilable variance between the statute
and the Constitution.

Class Actions

I. FRCP 23 governs class actions.

II. Need judicial approval to proceed – In many cases, class cert is the
most hotly contested issue.

III. Need judicial approval to settle.

IV. Variations

a. Normally, a CA involves a single class of people who otherwise

would be plaintiffs. Other variations are possible

b. Defendant class – Possible for P to sue defendant class if all the

members of the class acted the same way toward P.

c. Subclasses – Sometimes, members’ interests are different

enough to prevent them from being members of the same class.
It is possible to divide group into subclasses. Each subclass must
be separately certified.

d. Class action limited to particular issues – Possible for court to

cert a CA only as to particular issues.

V. Constitutional Concerns w/ Representational Litigation

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a. Due Process – CA presents concerns under DP clauses of 5th and
14th amendment. These clauses prevent gov’t from depriving a
person of property without due process

i. Property – A P’s right to recover money or specific relief

against another person qualifies as property here. Also, a
judgment against D to pay money constitutes deprivation
of property.

ii. Providing due process – two important parts

1. Person must be given notice and an opportunity to

be heard.

2. DP also forms the constitutional basis for the req. of

personal jurisdiction.

b. Notice and an opportunity to be heard – Hansberry v Lee

validated concept of CA and defined when it is constitutionally
acceptable.

i. Facts of Hansberry – case involved racially-restrictive

covenant on property, before such clauses were ruled
invalid. Here it wasn’t valid unless 95% of affected
landowners signed it. In truth, only 54% signed it.

ii. Earlier action – Before Hansberry arose, the validity of the

covenant had been litigated in another action, A v B. Both
A and B had signed the covenant

1. When landowner B tried to sell his property to

another in violation of covenant, A sued B and the
buyers. A designated her suit as a CA, w/ A
representing a class comprising all property owners
who had signed covenant.

2. Even though only 54% had signed covenant, A and B

stipulated that 95% had signed.

3. The court in A v B found for A, upholding covenant.

iii. Hansberry case – After judgment, different owner tried to

sell to the Hansberrys, violating covenant. Another owner,

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 Lee, sued the landowners and Hansberrys to enjoin the
sale.

1. D’s argued that the covenant was invalid by its own

terms because too few people had signed.

2. However, state court held that the party who agreed

to sell to Hansberrys was a member in the class of A
v B and accordingly was bound by the judgment
upholding covenant’s validity.

iv. Supreme Court Holding - SC disagreed with state court and

said Ds were not bound by ruling in A v. B. Held that D’s
right to due process would be violated if they were bound
by a suit in which their interests were not really
represented.

1. Lack of adequate representation bars class action – If

interests of the members were not adequately
represented, then it violated due process for the
court to issue a judgment adjudicating their
rights/obligations.

a. Court said a class member would have a right

to “change her mind”

2. When CA proper – Court said a CA could

constitutionally adjudicate the rights of absent
members provided there was adequate
representation. One key to AR is the lack of any
divergent interests like those in Hansberry.

3. In other words – a proper CA involves a situation

where the interests of the representative and the
class members are so closely aligned that the
representative, in looking out for his own best
interests, automatically looks out for interests of
class members.

c. Personal jurisdiction – SC has also dealt with the issue of

personal jurisdiction in class actions

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 i. Phillips Petroleum v Shutts- court held that in the typical
CA, a forum can adjudicate the claims of the absent
members even absent minimum contacts between the
members and the forum.

VI. Requirements of Rule 23 – most of the rule’s requirements

represent ways to ensure the class rep adequately represents the
interests of the class members.

a. Overview – FRCP 23 requires the court certify the case as a CA

by applying certain standards. It’s supposed to be done as soon
as practicable after the commencement of the CA FRCP 23(c)
(1). May take months/years.

i. Absent certification – Without cert, any judgment binds

only named parties.

ii. Two step process

1. Appropriateness – Court must determine whether

case is appropriate for CA.

2. Which category – if appropriate, court must

determine which category of CA is appropriate. There
are different procedural reqs for different types of
actions.

iii. Appeal – FRCP 23(f) gives ap ct discretion to hear an

immediate appeal of a decision granting/denying cert
provided the application is made to ap ct within 10 days of
entry of order.

b. Is dispute appropriate for CA? FRCP 23(a) contains the

standards for determining so. Four basic requirements –
numerosity, commonality, typicality, adequacy.

i. Numerosity – FRCP 23(a)(1) requires that the class be “so

numerous that joinder of all members is impracticable.” CA
only makes sense if dispute involves enough class
members to allow for economies of scale.

1. No fixed number.

2. One key factor – amount of each claim.

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 3. Another – How widely dispersed the members are

4. A few courts have allowed CA cert with as few as 30

members, but usually it’s much more.

ii. Commonality – FRCP 23(a)(2) allows a CA to be certified

only if “there are questions of law or fact common to the
class”

1. Commonality can concern either law or fact.

2. Unlike other forms of joinder, claims involved in a CA

need not arise from same T or O.

3. Commonality doesn’t mean most or all questions of

law/fact are shared. But if there is significant
difference, CA won’t prove efficient.

iii. Typicality – FRCP 23(a)(3) requires “the claims or

defenses of the representative parties are typical of the
claims/defenses of the class”

1. Turns on several factors

a. Size of the claims

b. Legal source of the claim

c. Whether the representatives or members are

subject to any defenses.

2. Most courts find typicality satisfied unless there’s a

major difference between reps’ and members’
claims.

iv. Adequacy – FRCP 23(a)(4) requires that “the

representative parties will fairly and adequately protect the
interests of the class.

1. Determining adequacy – several factors –

a. Parallel interests – If there is any sort of

conflict of interest, actual or potential,
representation might not be adequate.

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 b. Counsel for the representative – Courts prefer
counsel be both competent in the subject
matter and have experience w/ CAs

c. Financial considerations – Court also considers

the rep’s ability to fund the litigation.

c. Which category of CA? – If FRCP 23(a) is satisfied, court

applies FRCP 23(b) to determine whether case fits into one of
three acceptable categories of CAs. If not, it can’t be certified.

i. FRCP 23(b)(1) – numerous necessary parties – covers

situations where there are many absent parties, each of
whom meet the test for a “necessary party” under FRCP
19(a). This rule allows a CA when individual actions
involving the class pose a risk of either:

1. Inconsistent or varying outcomes with respect to the

ind members that would expose the party opposing
the class to incompatible standards of conduct FRCP
23(b)(1)(A) or

2. Results that as a practical matter would dispose of

the interests of the other members, or impair/impede
their ability to protect those interests FRCP 23(b)(1)
(B).

ii. FRCP 23(b)(2) – declaratory/injunctive relief – allows

for CAs in situations where “the party opposing the class
has acted or refused to act on grounds generally applicable
to the class, thereby making appropriate final injunctive or
corresponding declaratory relief w/ respect to class.

iii. FRCP 23(b)(3) – the “damages” CA – (b)(1) and (b)(2)

apply in narrowly defined situations. (b)(3) is a catchall
designed for when CA might be appropriate but where the
claims are not as intertwined as the other two cases. There
are additional restrictions for 23(b)(3) cert.

1. Basic Standard – 23(b)(3) cert appropriate when

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 a. The common questions of law/fact
predominate over questions affecting only
individual members of the class, and

b. Class action is superior to either individual

actions or a combined suit using other joinder
devices for fairly efficiently resolving the
underlying controversy.

2. Determining superiority- factors:

a. The extent to which individual members have

an interest in controlling the prosecution or
defense of their own actions. FRCP 23(b)(3)
(A)

i. An individual member is likely to want to

litigate her own stake in a matter if the
amt at stake is large or her claim/defense
has features not present in
claims/defenses of others in the class.

b. Whether litigation involving claims by or

against members of the class is already
pending. FRCP 23(b)(3)(B)

c. Whether the chosen forum is a desirable place

to concentrate litigation – Focuses on practical
issues such as ease of discovery and personal
jur.

d. Fourth factor is what other difficulties may

arise in managing the CA.

e. Heaven v Trust Company Bank – court held

that 23(b)(3) wasn’t satisfied because D had
counterclaims against many of the class
members and ind members would have ind
defenses to raise.

3. Application of Standard – each cert decision in 23(b)

(3) cases are fact dependant, but certain similar
issues arise

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 a. Damages – In personal injury or
misrepresentation/fraud cases, damages
suffered by each member may vary
significantly. If there’s a wide discrepancy,
individualized issues of damages may outweigh
the common issues in the cases and prevent
cert. One remedy would be to cert CA only on
issue of liability.

b. Defenses – D may have defenses to the claims

of some of the class members. These
individualized issues may prevent cert.

c. Choice of law – CA often involve members

scattered across country. These parties may be
governed by different substantive laws.
Difficulties in governing law often preclude cert
because ind issues are likely to predominate
over common issues.

Injunctions

I. FRCP 65 governs preliminary injunctions and TROs.

XXII. Preliminary Injunctions

a. Primary purpose – to preserve the status quo so that any final
relief granted by the court is effective.

b. Standard – More rigorous than for a final injunction. Courts

require requesting party to prove several things:

i. Threshold requirement – legal remedies are not adequate.

ii. Likely to prevail – Requesting party must prove it is likely

to prevail on the merits of the case. Court will hold hearing
on merits of P’s claim.

iii. Irreparable Injury – RP must run the risk of suffering

irreparable injury if relief were delayed until the end of the
case. Party must show strong need for injunction now.
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 iv. Balance of the hardships – Party must show it would be
harmed more by denial of the preliminary injunction than
the other party would be harmed by the injunction

v. Public interest - The injunction must be in the public

interest.

c. Court also has the power to expedite the process and have a
hearing on the permanent injunction and many parties will
simultaneously file for one.

i. Even if it doesn’t expedite the hearing on permanent

injunction, evidence presented during a hearing about a
preliminary injunction does not have to be reintroduced in
the trial for permanent injunction; it is made part of the
record.

XXIII. Temporary Restraining Order

d. Form of specific relief granted early in the case. There are
important differences between TROs and Preliminary Injunctions.

i. TROs are generally issued without notice to the other

party. In some cases, however, the party is given notice,
but court holds an immediate and relatively cursory
hearing because of the urgency of the matter.

1. However, if feasible, the opposing party should be

heard before order is granted.

2. Notice could be given by phone to attorney of

adverse party.

3. Informal notice is to be preferred to no notice at all

ii. Showing irreparable injury – much more rigorous

standard for TRO than for Preliminary Injunction.
Requesting party must show that he would suffer
irreparable injury if he had to use the regular PI process.

iii. Thus, TRO is available only when the need is so urgent that
PI won’t protect requesting party.

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 iv. Limited on term – expires 10 days after issuance unless
court specifies a longer like term or parties stip to a longer
term.

II. Both PIs and TROs are binding only on the parties to the action and
agents, servants, employees, attorneys, and persons in active
concert/participation with them who receive actual notice of the
order by personal service or otherwise.

Summaries of Rules
1 – Scope and purpose of rules

2 – One form of action

3 – Commencement of action

4 – Summons/Service of Process

7 – Pleadings allowed – form of motions

8 – General rules of pleading

9 – Pleading special matters – fraud/mistake

11 – Signing of pleadings/representations/sanctions

12 – Defenses and objections – when/how presented / Motions for judgment

on pleadings

13 – Counterclaim and Cross-claim

14 – Third-party practice – when P/D can bring in 3P

15 – Amended/supplemental pleadings

18 – Joinder of claims and remedies

19 – Joinder of persons

20 – Permissive joinder

21 – Misjoinder/nonjoinder of parties

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22 - Interpleader

23 – Class actions

24 - Intervention

27-37 - Discovery

38 – Jury Trial of Right

39 – Trial by jury or by the court

42 – Consolidation/separate trials

50 – JML/Alternative motion for new trial/conditional rulings

52 – Findings by the court – Judgment on Partial findings

56 – Summary Judgment

59 – New Trials – Amendment of Judgments

Summaries of Title 28 USC Provisions

§ 1254 – Writ of Certiorari

§ 1291 – Final decisions of district courts

§ 1292 – Interlocutory decisions

§ 1331 – Federal Question

§ 1332 – Diversity

§ 1335 - Interpleader

§ 1367 – Supplemental Jurisdiction

§ 1404 – Change of venue

§ 1441 – Actions removable generally

§ 1442 – Suing/prosecuting fed officers/agencies

§ 1861-1870 – Juries/Trials by jury

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§ 2071 – Rule-making power generally

§ 2072 – Rules of procedure/evidence – power to prescribe

§ 2111 – Harmless error

§ 2201 – Declaratory judgment – Creation of remedy

Summary of Cases

Overview of Procedure

Hawkins v Masters Farms, Inc

Bridges v Diesel Service, Inc.

Bell v. Novick Transfer Co.

Notice

Mullane v Central Hanover Bank and Trust Co.

Function of Pleading

Haddle v Garrison – Complaint

Haddle v Garrison – (S.D. Ga)

Haddle v Garrison (11th Cir. 1997)

Haddle v Garrison

Ethical Limitations on Pleading

Walker v Norwest Corp

Christian v Mattell, Inc

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Stradford v Zurich Insurance Co

Answers

Zielinski v Philadelphia Piers, Inc.

Layman v Southwestern Bell Telephone Co.

Amendments to Pleadings

Beeck v Aquaslide ‘N’ Dive Corp

Moore v Baker

Bonerb v Richard J Caron Foundation

Discovery

Davis v Precoat Metals

Steffan v Cheney

Stalnacker v Kmart Corp

Hickman v Taylor

Thompson v The Haskell Co.

Chiquita International Ltd v M/V Bolero Reefer

Avoiding Adjudication - settlement

Matsushita Elec. Industrial Co. v Epstein

Contracting for Confidentiality

Kalinauskas v Wong

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Summary Judgment

Celotex Corp v Catrett

Bias v Advantage International, Inc

Right to a Jury Trial

Chauffeurs, Teamsters and Helpers, Local No 391 v Terry

Amoco Oil Co. v Torcomian

Trial – Limits of Rational Inference

Reid v San Pedro, Los Angeles and Salt Lake Railroad

Controlling Juries Before/After Verdict

Pennsylvania Railroad v Chamberlain

Lind v Schenley Industries

Appeals - Finality

Liberty Mutual Insurance Co. v Wetzel

Exceptions to Final Judgment Rule

Lauro Lines s.r.l. v Chasser

Appeal – Scope of Review

Anderson v Bessemer City

Joinder of Claims
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Plant v Blazer Financial Services

Joinder of Parties

Mosley v General Motors Corp.

Joinder by D – 3P Claims

Price v CTB, Inc

Compulsory Joinder

Temple v Synthes Corp

Helzberg Diamond Shops v Valley West Des Moines Shopping Center

Intervention

Natural Resources Defense Council v United States Nuclear Regulatory

Commission

Martin v Wilks.

Class Actions

Communities for Equity v Michigan High School Athletic Assn.

Heaven v Trust Company Bank

Hansberry v Lee

Phillips Petroleum v Shutts

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