Civil Procedure II Outline

Professor David Cotter.

Overview of Civil Procedure II

Litigation = Dispute Resolution
1. Facts- Heavily stressed. Sherlock Holmes beats Oliver
Wendall Holmes
2. Substantive Law applied to the facts

Procedural rules goal: air disputes completely to reach an

accurate and just outcome, 2) to end disputes even if the resting
condition is less then optimal. Finality, repose served by SofL and
limited power of appellate to overturn findings.

Select a Court
Service of process
PJ: specific or general, 5 presence OR minimum contacts +
purposeful availment
Long arm statute
SMJ and removal (federal question, diversity, supplemental
jurisdiction)
Venue and transfers for convenience and forum non conviens
EXAM TIPS: Cotter may base venue on Residency or acts and
omissions
Choice of Law:
1. Erie Doctrine= what law a federal court applies, often
the substantive law of the state
2. Horizontal: Conflict of law rules in each state. Example-
MI court having a CA pl and a CA df, the MI court selects
the use of the law of CA.

Pleadings Facts/Issues
Exam tips: Know this Stuff from Civ pro I:

Pleading FR 7(a)
Claims
FR8 (a) 1-3
FRCP 10: count 1, count 2, and count 3
Counterclaims, cross claims, 3rd party claims

Default

FRCP 5 Serving and Filing Pleadings

A paper is filed by delivering it to the clerk OR to a judge who
agrees to accept it for filing (and then notes date and sends its to
the clerk). A court may, by local rule, allow papers to be filed,
 signed or verified by electronic means. The clerk must not refuse
to file a paper solely b/c it is not in the form prescribed by these
rules or by a local rule practice.

FRCP 15: Amendments: by court’s leave.. the court should freely

give leave when justice so requires.
• FR 15 (a) by rights, by leave, timing
• FR 15(b)
• FR 15 (c) SofL and relating Back

Defenses
• Rule 12(b)
o SMJ
o PJ
o Venue
o Insufficient Process
o Insufficient service of Process
o Failure to state a claim upon which relief can be granted
 12(d) if motion for 12(b) (6) and considers matters
outside the pleadings, the motion must be treated as
one for summary judgment under Rule 56.
12(b)(7) failure to join a necessary party under rule 19
12(b) 2-5 are waivable; 1,6,7 aren’t

Motion asserting any of these defenses may be made b4 answers if

responsive pleading is allowed. If a pleading sets out a claim for relief
that doesn’t require a responsive pleading, an opposing party may
assert at trial any defense to that claim.

• Denials
o FRCP 8 General Rules of Pleadings : An allegation – other
then one relating to the amount of damages – is admitted
if a responsive pleading is required and the allegation is
not denied. If a responsible pleadings is not required, an
allegation is considered denied or avoided.

• Affirmatives Defenses

Dismissals –under FR 41, FR 12, FR 19

Joinder
FR 18: P v. D can join all claims
FR 13(a) and (b): compulsory and permissive counter claims
(g) and (h) cross claims
FR 14 Indemnification or Contribution
FRCRP 20 – Permissive Joinder or [Multiple Ps or Ds] whether P or D
hinges on same transaction or occurrence AND question of law or fact
in common

Res Judicata and Collateral Estoppel

Move for summary judgment

Discovery
Get the evidence

Pre-trial conference and pre-trial order

Trial
Resolve fact issues
+Evidence +Facts/ Fact Issues
+Substantive Law
---------------------------
= Judgment

Appeal
Review issues of law de novo
Issues of fact that are clearly erroneous

Summary Judgment= Before trial

Directed Verdict = at Trial
Jnov = after verdict is rendered

WEEK 1: WELCOME TO THE LITIGATION PARTY

o FR 19 necessary party can be joined
o FR 24 necessary party can intervene
o FR 22 necessary party can be interplead

Ask about how to do a 12(b)7/ FRCP 19 analysis:

Find that nonparty is necessary, that person’s joinder is not feasible
and that the nonparty is indispensable. If the nonparty is NOT
necessary the 12(b)7 defense will fail.

FRCP 19- Required Joinder of Parties

When asserting a claim, a party must state the name of any person
required to be joined if feasible and the reasons for not joining that
person.

A person who refuses to join can be joined by court order as a D or

involuntary P.
If the joined party objects to venue and joinder makes venue improper
the court must dismiss that party.

If joinder isn’t feasible court must decide whether to proceed with

existing parties or dismiss the case based on theses Factors: extent to
which judgment rendered in person’s absence prejudices that person
or the existing parties keeping in mind how the prejudice could be
lessened by protective provisions in the judgment or shaping relief.

Temple v. Synthes Corp (US 1990)

P had a plate and screw device implanted in his lower spine and the
screws broke off inside his back. He filed suit in diversity against
Synthes, they filed a motion to dismiss b/c Temple failed to join
necessary parties (which motion is that?= 12(b) 7). District Court
ordered P to join the Dr. and the Hospital or face dismissal. Temple
failed to join and court dismissed his suit w/ prejudice ( FR 41(b)
dismissal for failure to follow a court order). Temple appealed and
they affirmed. SCOTUS reversed. The advisory committee notes to
FRCP 19(a) explicitly states that a tortfeasor with the usual joint and
several liability is merely a permissive party in an action with like
liability. [Remember impleader under FRCP14 couldn’t be used b/c it’s
forbidden to use impleader to create an “it’s him no me” situation.]

Case issue: Is it necessary for all potential joint tortfeasors to be named as

defendants in a single lawsuit?

Rule: It is not necessary for all joint tortfeasors to be named as defendants in a

single lawsuit.

The party wished to be joined must be indispensible for the suit to be

dismissed. A party may be necessary, however, just b/c they are
necessary doesn’t not mean that the suit can’t be held w/o them. The
suit can’t be held w/o only if they are indispensible.

3 step analysis under rule 19:

1. is the person necessary
2. if so, they should be joined if it is feasible (talk about which joinder
rule will join him)
3. If not feasible, court must decide if suit can be heard without that
party (if no they are indispensable and the suit is dismissed).

How Can you tell if someone is necessary? They are necessary if :

1. In the person’s absence complete relief cannot be accorded
among those already parties
OR
 2. The person claims an interest relating to the subject of the action
and is so situated that the disposition of the action in the
person’s absence may:
a. As a practical matter(this is a buzz word for Cotter),
impair or impede the person’s ability to protect that
interest OR
b. Leave any of the persons already parties subject to a
substantial risk of incurring double, multiple or otherwise
inconsistent obligations by reason of the claimed interest.

If feasible: if necessary, a party must be joined unless there is no

personal jurisdiction, SMJ, or if it would destroy diversity. If the party
can be joined, he will be joined. If the party cannot be joined, then the
court must, in equity and good conscience, determine whether the
action should proceed among the parties before it, or should be
dismissed, the absent party thus regarded as indispensable.

Indispensable: Court in deciding if it should dismiss case looks at:

a. prejudice to all
b. ability to shape relief to lessen prejudice (may give different
remedy than one asked for if it would hurt missing party)
c. adequate remedy for plaintiff if case is dismissed? (Alternative
Forum)
d. ability to render an adequate judgment in the person’s absence
(court uses totality of circumstances her and make a judgment call
whether to proceed w/o that party or dismiss the case)

Helzberg Diamond Shops v. Valley West (8th Circuit 1977)

Lease agreement that mall wouldn’t lease to more than 2 full line
jewelry stores. Valley West tried to let a third (Lord’s Jewelers) in
calling it a “retail specialty jewelry store” and Helzberg sued seeking
an injunction. Valley West moved to dismiss pursuant to rule 19 b/c
Helzberg had failed to join Lords. Motion was denied and Valley West
appealed saying that this would prejudice Lords. 8th Circuit CofA
affirmed b/c rule 19(b) factors indicate that Lord’s was not
indispensable. Even if the court terminates Lord’s leasehold, Lords
can still sue Valley under rights in the lease agreement, therefore they
aren’t being prejudiced b/c their rights aren’t being adjudicated way.

Remember, you can’t destroy complete diversity by using rule 19 to

join a party b/c 28 USC 1367(b) forbids it.
Rule 19 is most commonly used where 2 parties have a joint interest in
property or are joint obliges/obligors but only one of them is named in
a lawsuit.

FRCP 24- Intervention

As a right: On timely motion the court must permit anyone to
intervene who: has an unconditional right to intervene based on a
federal statute; OR claims an interest relating to property that is the
subject of the action and is situated so that disposing of the action may
impair/impede the movant’s ability to protect its interest unless
existing parties adequately represent the interest.

Under 24(a), a person may intervene in a suit as of right if:

Upon timely application:
1) statute gives the unconditional right (rare) OR if no statute
then you need all of the following:
When the applicant claims an interest relating to the
property or transaction that is the subject of the action and the
applicant is so situated that the disposition of the action will, as a
practical matter impair or impede the applicant’s ability to
protect that interest, unless the applicant’s interest is adequately
represented by existing parties.
a. Timelines of motion
b. Interest
c. Effect on interest
d. Adequacy of representation

Permissive: 24(b) if upon timely application

1) statute gives a conditional right to intervene
OR
2) common questions exist between the applicant’s claim
or defense and the main action
If it would delay or prejudice the action, it will not be allowed
Time: No set time but court will look at diligence in acting to protect his
interest and prejudice intervener is bound by judgment BUT can not
raise any new issues or broaden the scope of the action. Supplemental
Jurisdiction for (as of right) but not permissive; But, personal
jurisdiction is “Waived” by Voluntarily seeking to participate.

National Resources Defenses Council (NR) v. United States Nuclear

Regulatory Commission (10th Cir, 1978)
USNRC has authorized some states to grant licenses for uranium mills,
(authorized to do so by the Atomic Energy Act of 1954), but NRC is
supposed to do impact statements. NR suing b/c the states not doing
impact statements. United Nuclear Corporation (UNC), which has
already been granted a license, and its license is a target of the
litigation, moves to intervene, is granted by DC. Kerr-McGee (KM) and
American mining Congress (AMC) (future applicants) also moved to
intervene; Held: may intervene b/c they are situated differently from
UNC---having satisfied intervention by right 24 (a)(2) requirements
(they have an interest, ability to protect that interest may be impaired,
and they are not already adequately represented)
• To require a direct interest in the matter is too narrow an
interpretation
• Impairment =impairment as a practical matter. Court is not
limited to considering consequences of strictly legal nature,
though the stare decisis effect may be sufficient to satisfy the
requirement.
• If applicants’ interest is similar too, but identical with that of
one of the other parties, the applicant should be allowed to
intervene UNLESS it is clear that the party may already in the
suit will provide adequate representation

Permissive Intervention: conditional right by fed statute OR claim of

defense that shares with the main action a common question of law or
fact. The court must consider whether the intervention will unduly
delay or prejudice the adjudication of the original parties’ rights.

A MOTION to intervene must be served on parties and must state

grounds for the intervention and be accompanied by a pleading that
sets out the claim/defense for which intervention is sought.

Example: A zoning board and developer are in litigation. A

homeowner bordering the plot of landowner of another bordering plot
may both be affected by the result although neither would be formally
bound by the judgment. Both may want to intervene to influence the
outcome of the lawsuit.

Martin v. Wilks
ONLY PARTIES OF A SUIT ARE BOUND TO THE JUDGMENT OF THE SUIT

FRCP 22 Interpleader – Persons with claims that may expose a P to

double/multiple liability may be joined as D’s and required to
interplead. Joinder for interpleader is proper even though the claims
lack a common origin or are adverse and independent or the P denies
liability. A Df may seek interpleader though a crossclaim or
counterclaim.
Interpleader allows a Pl to initiate a lawsuit in order to compel two or
more other parties to litigate a dispute. An interpleader action
originates when the Pl is holding property on the behalf of another, but
does not know to whom the property should be transferred. It is often
used to resolve disputes arising under insurance contracts.

Cotter: Interpleader is typically used when one party holds property

and there are multiple claimaints to that property.

There is statutory interpleader under federal Interpleader act 28 USC

1335, 1397, 2361 which allows $500 or more for the amount in
controversy and nationwide service of process. If possible use the
statute since its easier to get PJ instead of using FRCP which requires PJ
(which may be limited by the long arm statute), complete diversity,
$75k, plus service under rule 4.

Remember: property cases= no federal questions so you need

diversity or supplemental jurisdiction to get into federal court.

Statutory Interpleader Rule Interpleader

Diversity Minimal diversity Complete Diversity
(2 claimants from (Stakeholder may not have the
different states) same citizenship as any
claimant)
Service Nationwide Normal FRCP rules; Need PJ &
Rule 4 to serve
Venue Residence of one or Regular venue rule
more claimants
Amount in $500 or more $75,000 or more
Controvers
y

Deposit ? Yes NO/ Optional

Enjoins other claims Can enjoin other claims

**Impleader (rule 14) is not the same as Interpleader (rule 22).

Impleader= Third party practice
Also whether the stakeholder OR claimant sues first, interpleader is
available.**

Cotter: If the possessor of the property has NO interest in the property

you can interplead the property to the court and ask for a dismissal
form the lawsuit. If the stake holder is also a claimant then the
stakeholder’s citizenship can be used to assert statutory (not Rule 22)
diversity.

Week 2: Class Actions

FRCP 23-Class Actions

Prerequisites: one or more members of a class may sue IF they are

so numerous that joinder is impracticable AND questions of law or fact
common to the class; AND claims or defenses of the representative
parties are typical of the class AND representative parties will fairly
and adequately protect the interests of the class.

Rationale for Class Actions

Questions of law or facts common to class members and the class
action is superior to other available methods for fairly and efficiently
adjudicating the controversy.

Certification Order
As early as practicable the court must determine whether to certify the
action. Court’s order must define the class and class claims, issues or
defenses and appoint class counsel. The order that grants/denies the
class certification can be altered/amended before final judgment.

Class Counsel
Prior to appointment, the court may designate interim counsel to act
on behalf of a positive class. The court may appoint an applicant only if
he’s adequate and the court must appoint a person who is best able to
represent the interests of the class. The class counsel must fairly and
adequately represent the interest of the class.

Court must consider the work counsel has done indentifying/

investigating potential claims, his XP in handling class actions for other
complex litigation, Counsel’s Knowledge of Applicable law, the
resources that counsel has. The potential class counsel may need to
propose terms for attny’s fees and nontaxable costs. A claim for an
award of those fees/cost must be made by motion and serve all the
parties (and class members by reasonable manner). A class member,
or a party from whom payment is sought, may object to the motion.

Notice
Once certified, the court must send the class members the best notice
practicable under the circumstances including individual to those
members who can be identified through reasonable effort. The effort
must clearly and concisely state in plain, easily understood language
the nature of the action, definition of the class, the
claims/issues/defenses, and that a class member may enter an
appearance through an attorney if desired. The court will exclude any
member who wishes to be excluded. Notice must tell members the
time and manner for requesting exclusion and the binding effect of the
class judgment on the members who stay in the suit.
Subclasses are permitted
Members can intervene or otherwise come into the action

With the court’s approval the parties may settle and/ or receive a
voluntary dismissal. The parties must file a statement identifying any
proposed agreement. The court must direct reasonable notice to all
class members who would be bound by the proposal. Any class
member object to the proposal. The court may only approve it if after a
hearing it is found fair, reasonable and adequate.

Appeals: a party may file a petition to appeal w/circuit clerk within 10

days. An appeal does not stay proceedings in the district court unless
the district judge or court of appeals so orders.

Cotter on class actions

Think of a class action as FR 20 super-sized
Rule 23 (a) leads to certification
File the proposed class action complaint
Schedule a hearing w/court and it will, within its discretion, either
certify the class or deny certification. If denied Ps can still sue on their
own.

Settelements: courts must approve so class rep cant get quick

settlement for themselves and leave the class member high and dry.

Attny fees: you must present bill to the court for approval. They will
look at the hours and how much a skilled attny in the area would
charge for the work.

Distribution: often each class member must come forward with their
damages. Some issues are decided for and on behalf on the class,
others like damages, may not be determined by the trail Dalkon shield
IUD, damages pregnancy or death.

Class action fairness act 2005 substantially expanded SMJ (diversity)

for large class action suits. There is a lengthy list of criteria. Minimal
diversity instead 28 USC 1332 (d)? 1441 this makes it easier for the D
to get out of the state class action law suits.

23(a) 4 prerequisites
SCOTUS: courts must conduct a rigorous analysis into whether the
prerequisites are met b4 certifying a class action.

1. Numerosity: (not a bright line rule but usually

over 40 or 50 P’s). There have to be enough that
joining them as individuals would be impractical.

2. Commonality: The class should consist of

persons who share characteristics in terms of
the substantive law involved= a common issue.
Example: a class of people who all have claims
against the US don’t have enough in common.
Where the claims are such that individuals
would have to submit separate proofs to
establish liability, the class action lacks
commonality, however, differences in damages
sustained by class members will usually not
defeat certification. There needs to be a
common question of law or fact.

3. Typicality: nature of the claim and the nature of

the defenses. The class representatives must
stand in the same shoes as the average class
members so that the representatives has the
same incentives and motivations.

4. Adequacy of Representation:
• Lawyer’s XP + resource$
• Class Representative: The class
representative must have stake in the
litigation. Watch out for potentiality for
conflict among class members. Such a
conflict might be resolved by the creation of
subclasses.
A class member can intervene and become a named party

23(b) 3 categories of class actions

23 (b) (1) essentially a mass-production version Rule 19. There is risk
of inconsistent adjudications that would establish incompatible
standards of conduct for the D’s so the P’s are joined, even if sub-
group of the P’s are seeking different results: citizens opposing and
supporting a bound measure by the city.

23(b)(2) party opposing claim has acted/refused to act on grounds

generally applicable to the class. Drafters of rule meant this to be used
for civil rights claims. It is limited to cases in which the P’s are seeking
injunctive or declaratory relief.

23(b) (3) most controversial. Ps are seeking money damages and

claim doesn’t fit into either of other 2 categories of class action. If
certified as a 23(b)(3) class members must get individual notice, not so
with other 2 categories.

Cotter: FR 23(b)(3) b/c money claim [property], class members are

required to 1) to get notice in accordance with Mullane and 2) opt out.

Hansberry v. Lee (US 1940)

All white neighborhood. P Lee sues to enjoin D seller + Hansberry
(buyer). They wanted to lose the case to create a binding situation.
You get one bite out of the apple of justice.
Whether class members are stuck w/judgment is hinged on privity:
Privity
1) actual representation
2) successor in interest (property encumbered by a judgment)
3) Control of the action

Example: insurance company subrogation, insurance company is

bound even though they weren’t in suit

Hansberry +Vendor say unenforceable 54% signed

Lee: Burke case was a class action, Hansberry’s vendor was bound to
by the judgment, Hansberry is in privity with him, therefore Hansberry
is precluded from relitigating. Burke decision, res judicata 95% signed.
H+V: not a party to that suit, therefore not bound b/c of rule from
Martin v. Wilkes
Lee: assert Burke was a class action & Burke represented Vendors
Hansberry Says: I’m not a vendor
Lee: you’re in privity b/c you are the successor in interest

Week 3: RES JUDICATA

RES JUDICATA REQUIRES THE SAME PARTIES !!!!!!!!!

GR: Res Judicata has NO EXCEPTIONS, however it will not apply if

illogical, inequitable, or inconsistent results will follow.
Adams v. Pearson
A sold farm to Pearson for $4k down payment and balance due when
Pearson sold his farm in IN. Pearson took possession of A’s land. K
required A and his wife to sign warranty deed but she refused to sign.
S1: Pearson sued for SP. A counterclaimed for recission of the K. Court
denied both SP and counterclaim for recission.
S2: A sues for ejectment. Pearson counterclaim for SP.
If court would have used res judicata, Pearson would be left in
possession w/o title and Adams would have title but no $$.

Res Judicata is an affirmative defense. Plead it and then move for

summary judgment. Your remedy for a wrong decision is the appeal…
it is not a different lawsuit.

Vocabulary: Get it straight These are Specific words that Cotter wants:
 Claim- FR 8(a) (2 and 3) a claim is made up of one P and one D
based on one legal theory entitling the P to relief and the
demand for the relief the P seeks.
 Cause of Action(COA)- made up of one or more claims for
relief.
 Lawsuit- made up of one or more COAs.

4 Parts to Res Judicata

1) 2 or more lawsuits. There has to be two or more complaints for
there to be 2 lawsuits.
2) Judgment on the merits:
Cotter: the merits of the case are facts of the claims
and the facts of the defenses to those claims. Were
the claims and defenses asserted in the pleadings
addressed by court?
Dismissal for improper venue has nothing to do with
the merits.
Direct Verdict= judgment on the merits
Default judgment= yes on the merits for res judicata,
but not good for use with collateral estoppel.
Jury verdict= judgment on the merits
Summary judgment= depends on whether the
summary judgment is on some peripheral issue no
having to do with the claims or defenses
12(b)(6)= judgment on the merits
12(b)(2)= not on the merits
Read 41(b) about involuntary dismissals for other
gray areas.

3) Same parties( including person in privity). The person being

precluded in the 2nd suit has to have been a party in the first suit.
Persons who aren’t named parties can still be bound if in privity.
Different parties are thought to have different causes of actions.
 4) Same cause of action (COA). This is the tricky part. As the book
says to tell where one COA ends and another begins isn’t easy.
Cotter: different parties = different COAs. Change a P or D you
have changed the COA. If it’s a different COA it is not precluded
in a subsequent action.

Three common law tests for same COA

Rush v. City of Maple Heights

Motorcycle owned by wife, driven by husband (Cotter thinks this is b/c
he couldn’t get insurance).

Same Wrong Test: focusing on D, or you claiming relief the same

wrong done to you (Ohio Test)
Same Right Test: are the same rights of P being effective (Indiana test)
Same Evidence Test: look at claim 1 and potential claim in 2. Will it
take the exact same evidence in 1 to bring 2 (Illinois Test)
Same Transaction or Occurrence: Frier v Vandellia- the act of the
officers taking the cars putting them in the garage (actions was based
on the same core of operative facts and thus arise out of the same
transactions and occurrence)

Compulsory counter claim rule: When the Df filed its answer in

lawsuit 1 he was required to state all counterclaims it had against Pl in
lawsuit 1 arising out of the same transaction or occurrence that gave
rise to Pl’s claim. B/c Df failed to assert this compulsory counterclaim
in lawsuit 1, it is precluded from asserting the claim in a later suit. The
court will involuntarily dismiss the second lawsuit which is an
adjudication on the merits.

WEEK 4 COLLATERAL ESTOPPEL

Collateral estoppel: precludes relitigation of an issue that has been

fully and fairly adjudicated. Think of it as a method of establishing facts
in a subsequent lawsuit b/c that fact has been determined in a prior
lawsuit.

Collateral Estoppel (Issue preclusion) once facts are established in s1

we use them in the 2nd suit w/o evidence. They become givens.
COLLATERAL ESTOPPEL IS NOT AN AFFIRMATIVE
DEFENSE!!!!!!!! It is a doctrine that can be used offensively by the Pl
or defensively by the Df. Again use a summary judgment issue.
 Example: IF 2 people get in a car accident and the first litigation
determines they were required to wear glasses, then they get into a
second crash, this issue (of wearing glasses) has already been litigated
and is precluded from being relitigated.

Rule 42(b) gives the trial court the authority to sever parts of a
complaint for trial
1) the same issue in s2 as in s1
2) Actually litigated and determined in s1
3) An issue essential to the judgment in s1
4) Between which parties ?

Types of Collateral Estoppel deemed to be fair. The party subjected to

CE has the burden of showing that CE may be unfair.
Mutual Defensive
Example: S1 Pl sues Df using one theory/cause of action saying
Df ran a red light. J1=Df did not run the red light.
S2 Pl sues Df using a different theory/cause of action saying Df ran the
red light. Df denies the same fact issue and uses CE based on fact
found as part of J1.

Mutual Offensive
Example: S1 Pl Jessie sues Df RR company for a personal injury
(negligence action). Pl wins so duty, breach, causation, and injury are
established. S2 Pl Jessie sues Df RR company for loss of consortium
and argues that since duty breach and causation were established as
facts by J1, all that remains is to prove injury in S2 against the RR.

Non Mutual Defensive

For non-mutual it will be a the new Df that wants to use CE
S1 Pl vs. Df(1) Judgment for D.
S2 Pl vs. Df(2), Df(2) uses CE to establish favorable facts from S1
through a summary judgment motion.

REMEMBER you cannot use this on a party that wasn’t in the

prior lawsuit (Martin v Wilks)

Types of Collateral Estoppel which is NOT generally deemed fair.

Therefore, MUST, fulfill the Parklane fairness factors b/c with this type
of CE the chance of unfairness is very high.

Non Mutual Offensive

Example: S1 Pl(1) v. Df. Judgment for the Pl(1)
S2 Pl(2) v. Df, Pl(2) seeks to use CE so that facts from S1 favorable to
Pl(2) position can be used against D. Pl(2) motions for summary
judgment.

Parklane Fairness Factors:

1. Whether the P could have easily have joined in the first suit
(the amount of suit 1 v suit 2)
Here Shore doesn’t have a right to join in an SEC action. The SEC gets
in own day in court by itself. There is NO way Shore could have joined
in the SEC government action
2. Was it Foreseeable:
whether the D against whom the collateral estoppel is being asserted
could foresee the other lawsuit and therefore, foresee the collateral
estoppel and then try to defend accordingly
3. Do we have all the procedural opportunities to fully develop
the case
If there are significantly better procedures available in the suit where
the collateral estoppel is being asserted compared to the suit where
the judgment has already been rendered it is unfair to that losing D to
bind him to that previous judgment

4. No incentive to appeal:
if the amount in the 1st lawsuit is very small the D’s won’t care and not
litigate vigorously. And then those D’s might lose. And it is UNFAIR to
bound that D to that loss if the second suit is for a HUGE amount of
money

5. Is the decision relied upon inconsistent with another

decision
You might get a win and a loss and if there are prior inconsistent
decisions then it would be unfair to hold the judgment against you

Full Faith and Credit

Full Faith and Credit- both claim and issue preclusion may apply across
state lines. Both state and federal courts MUST give full faith and credit
to each other’s judgments
Since Frier lost in state court he must lose in federal court as well
because of the full faith and credit clause (Article 4, (1))

WEEK 5: LIMITS ON PRECLUSION

Case by case determination of whether non-mutual collateral estoppel
is fair.

If the party against whom CE is sought could not have obtained

review of judgment in S1, cannot use CE in S2.

If S1 differed in quality or extensiveness or procedures, then CE may

not apply.
S1= inferior pro traffic court speeding ticket
S2= superior proc suit negligence where speeding may be negligence
per se.
NO CE

Also, burden or proof ( persuasion/production/ who had it) may affect

CE.
S1 higher burden
S2 lower burden
=CE ok

Full faith and credit: Cannot use the judgment if it’s from a state
that doesn’t allow non-mutual collateral estoppel.

Law of the Case: functions within a single case to prevent relitigation

of decided points of law.
1) Trial Level: unexpected death of a judge, judge doesn’t get re-
elected
2) Appeal; Remand; Appeal 2
“record“ decision  “same record” = same decision
The principal is that you can’t have different decisions on the same
record. The law should be consistent.

Judicial Estoppel= you can’t have it both ways

S1: Pl1 v. Df1 who says he was not drunk in a negligence suit
S2: Df1 is now Pl2 and claims he was “drunk” to recover from Df2
bartender under a dram shop act suit.

If you win on one fact issue you can’t argue different facts in the
second suit.

Collateral Attack
Durfee v. Duke. SMJ was at issue. SCOTUS said that if the jurisdictional
issue was fully and fairly litigated you must give that
decision/judgment full faith and credit. This applies where the party
voluntarily appeared, presented his case and was fully heard and there
was an absence of fraud. Public policy dictates that there must be an
end of litigation.
GR: You cannot collaterally attack SMJ b/c court can rule on SMJ sua
sponte. If they enter a judgment they are presumed to have decided
they have SMJ. Solution is usually to appeal, however under RULE 60
(b). Reopened Judgment (asking for it to be set aside) is also an option.

The Reopened Judgment

Sometimes an appeal doesn’t work b/c the court committed no error;
the complaint may be that evidence never reached the court’s
attention. Under rule 60 (b) a judgment can be reopened.
Cotter: This works when it works.

FRCP 60- Relief from a Judgment or Order

Clerical mistakes- can be corrected by court at any time on own
initiative or on motion of any party (after any notice ordered by court);
during pendency of appeal. On motion and on such terms as are just,
court may relieve a party from a final judgment, order or proceeding
b/c of:
1. (w/I 1year) mistake, inadvertence, surprise, or excusable
neglect
2. (w/I 1 year; does not affect finality of judgment or suspend its
operation) newly discovered evidence which by due diligence
could not have been discovered in time to move fro a new
trial under rule 59(b).
3. (w/I 1 year) fraud, misrepresentation, or other misconduct of
adverse party
4. Judgment is void [instead of collaterally attacking the
judgment]
5. judgment has been satisfied or discharged or prior judgment
upon which it is based has been reversed or otherwise
vacated.
6. any other reason justifying relief from the operation of the
judgment
Example: federal court, hearing a state substantive law of
first impression rule that state would have thought x, real
state supreme court says y the next day.

When the right to make a motion is lost, the only other procedural
remedy is by new or independent action to set aside the judgment.

The 1 year of statute of limitations on parts 1,2,3 above is hard rule. If

a case falls into more than one category and one of them is in section
1,2, or 3 the case might fail if the 1 year SofL has run.

WEEKS 6 AND 7: DISCOVERY

Discovery analysis
Who has the evidence ?
Is it discoverable?
What device can be used to get it?
Rule 34 can be used to demand production of specified docs in
the hands of opposing party.
Rule 45 (subpoena party) can be used to get documents from
non-parties. For public agencies can use a request for public records.
Must I get the court involved?

Yeazell text book uses these categories but Cotter hops around.
 Scope of discovery
 Devices and Methods
 Court Involvement

Cotter: FRCP 26-37 are the cookbook for discovery.

Rule 26 limits the scope of discovery

1) Any matter not privileged that is relevant to a claim or defense.
Relevant= relevant to the subject matter of the evidence
2) If you can show good cause can broaden discovery to matters
relevant to the subject matter of the action.
3) Just b/c the evidence is inadmissible at trial doesn’t mean it can’t
be discovered. It can be discovered if it is reasonably calculated
to lead to admissible evidence.
a. Example: hearsay that is inadmissible from depo#1 leads
to questions that are admissible in depo#2

Rule 26
Rule 26 is a two step process. First there are mandatory disclosures,
then there are discovery requests.

FRCP 26(a)- Mandatory Disclosures

Without awaiting a discovery request within 14days after 26(f)
conference (unless different time set by stipulation or court order) and
30 days b4 trial a party must provide to the other parties the
name/address/telephone of each individual likely to have discoverable
information and that subjects of that info UNLESS the use would be
solely for impeachment.
Additionally, party must provide a copy or description by
category/location of all docs, electronic info, and tangible things that
disclosing party has in its possession, custody or control and may be
used to support its claims or defenses Unless use would be solely for
impeachment.
A computation of each category of damages and docs or evidence
(unless privileged or protected from disclosure) upon which the
computation is based.
Any insurance agreement that might cover the judgment.
The disclosure must be include the identity of any [fact] witness it may
use at a trial to present evidence.
If there’s an expert witness who will testify at trial, disclosure must be
accompanied by a written report that states the expert’s opinions he
will express and the reasons for them, data, exhibits, expert’s
qualifications including all publication within the last 10 years, and list
of cases within the last 4years in which the expert witness testified as
well as a statement of the compensation being paid to the witness.
Identification of each document or other exhibit
If a party is served/joined later they need to make these disclosures w/I
30 days of being served/joined unless different time set by stipulation
or court order.
A party isn’t excused from making these disclosures just b/c it hasn’t
made its own its own investigation or another party fails to make its
mandatory disclosures.
Objections must be made within 14days such as an objection to the
admissibility of materials identified. An objection not so made is
waived unless excused by the court for good cause.
All disclosures under Rule 26(a) must be in writing, signed and served.

Rule 26(b) Discovery Scope and Limits

Relevant info need not be admissible at trial. The discovery can be
reasonably calculated to lead to the discovery of admissible evidence.
The court may alter the limits on the number of depositions and
interrogatories.
The court (on motion or sua sponte) must limit discovery if: discovery
sought is unreasonably cumulative/duplicate or could be obtained from
a more convenient/less burdensome/ less expensive source OR party
seeking discovery had ample opportunity already to discover the info
OR the burden/expense outweighs its likely benefit considering the
needs of the case, amt in controversy and importance of discovery in
resolving issues.

Trial preparation materials may be discovered if a party shows that it

has substantial need for the materials and cannot w/o undue hardship,
obtain them by other means. The court must protect against disclosure
of the mental impressions, conclusions, opinions, or legal theories of
the party’s attny.
An expert who may testify may be deposed, but if the expert produces
a report the deposition can only be done after the report is provided.
If an expert is only employed for trial preparation and won’t testify
then he cannot be deposed UNLESS on showing exceptional
circumstances under which it is impracticable for the party to obtain
facts or opinions on the same subject by other means.
To claim priv or protected trial prep materials you must expressly
make the claim and describe the nature of the docs/commo/ tangible
things not disclosed (w/o revealing priv’d protected info) so the other
parties can assess the claim of priv/ protection.

Rule 26 (c) Protective Orders

A party or any person from whom discovery is sought may move for a
protective order. The motion must include a certification that the
movant has in good faith conferred or attempted to confer with the
other parties to resolve the dispute w/o court action. The court may,
for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression or undue burden or expense.
For example, the court can require that a deposition be sealed and
opened only on court order or that commercial information is only
relevant in a specified way.

Rule 26 (d) Timing and Sequence of Discovery

A party may not seek discovery before parties have had a rule 26(f)
conference except mandatory disclosures under 26 (a) or when
authorized by stipulation or court order.

Rule 26 (e) Supplementing Disclosures and Responses

A party who has made a disclosure must supplement/correct the
disclosure in a timely manner if the party learns that in some material
respect the disclosure/response is incomplete/incorrect.

Rule 26 (f) Conference of the Parties; Planning for Discovery

A discovery plan must state:
 Timing, form, or requirement for 26(a) disclosures
 Subjects on which discovery may be needed
 Issues about discovery of electronically stored info including
form/forms
 Issues about claims of priv or protection as trial prep materials

Rule 26(g) Signing Disclosures/Discovery Requests/

Responses/Objections
Every disclosure, discovery request, response or objection must be
signed by at least one attny of record (signer’s address, email,
telephone). The certification means that to the best of the attny’s K
after a reasonable inquiry it is complete and correct at the time it is
made, consistent with these rules and the law, not intended for any
improper purpose. Neither unreasonable nor unduly burdensome or
expensive considering the needs of the case, prior discovery in the
case, the amount in controversy and the importance of issues at stake
in the action.
Other parties have NO duty to act on an unsigned disclosure/discovery
request /response/objection
On motion or sua sponte the court MUST sanction a party for improper
certification. Sanctions may include order to pay reasonable expenses
and attny fees caused by the violation.

Devices to Get Materials

Much of this varies from case to case. Different lawyer prefer different
things. If you have a dying witness before the 26f conference go to the
judge and get an order allowing the deposition. Make a plan and go for
it.

26(a) 4 mandatory disclosures Know for the exam

1) names, addresses, etc. about the fact witnesses you intend to
use to establish your case. Fact witnesses have knowledge
related to the case based on their sensory perception.
2) Must disclose tangible evidence that you have that you know
of you intend to use to establish your case.
3) P’s seeking money damages must disclose how they
calculated their damages.
4) Any D from whom money damages are being sought must
disclose any insurances that would cover the claim if recovery
is granted.

Discovery plan should use devices below in roughly the same order

Interrogatories (FR 25) can only be sent to parties and not non-
parties. Under rule you are limited to 25(per party), although at the 26f
conference or at the 16b conferences you and opponent can work out
a different number. “Interrogatories are written questions by one party
to another party in the action. They must seek information that falls
within the scope of discovery. “ (From M04)

Depositions: anyone with relevant non-priv’d info you can take their
deposition UNLESS they have a protective order in hand that protects
them from being deposed. Can adjourn deposition to get a protective
order. If you can’t get the protective order you must pay expenses for
all involved with the depo. 10 depos per side. Limited to 1 day 7hours
Unless parties agree otherwise.
Production of documents (FR 34) from parties only. If you want
documents from a non party you have to use a FR 45 using a
subpoena duces tecum.

Physical and mental exams: parties only. Only device that

requires a court order to use.

Request for admission (FR 36) is NOT a discovery device b/c it

doesn’t seek to find information. It is a pleading augmentation device
b/c it asks someone to admit something.
Hypo: your client runs a red a light and is caught on the traffic
cam. You get the tape. You must make mandatory disclosure.
Opponent makes request for admission that client ran the red light. If
proven, you must pay opponents cost of proving that particular fact.

Court involvement
 Disclosure conference
Pleadings are followed by a FRCP 26f conference. The attnys are
required to get together to discuss settlement, to discuss the
issues, the 26(a) disclosures, the discovery that will be needed in
the case, discuss electronic discovery, and work out a mutually
agreed upon plan for the discovery in the case.
Exam tip: Read 26f
14 days after the conference the 1) disclosures AND 2)
discovery plan are due. 7 days or more thereafter there will
be a FRCP 16 (b) scheduling conference with the judge. At least
21 days after the 26f conference.
Scheduling order from the court:
o Limits the time for joinder or parties
o Limits the time for amendments to the pleadings
o Limits the time for making motions
o Limits the time for discovery.
Any changes to the discovery plan should be incorporated in
the 16b order.

 Traditional discovery (FR 30, 34, 35) can begin after the 26f
conference and continue until the time limit is up.
 Protective order
Before asking for sanctions or asking for court involvement you
must try to work it out with the opposing party.
 Sanctions under rule 37 (motion to compel) or 26(g) which
applies to all discovery documents that have to be signed. GR:
discovery doc are not filed with the court, they are kept private
unless being used to support a motion or trial
The difference b/w rule 11 and rule 26(g): sanctions are mandatory
and there is no safe harbor under 26(g).

People v. Textron
Sanctions can be granted under rule 37. A judge should select the least
harsh sanction that will deter the bad conduct.
 Deem fact to exist/admission
 Preclude party from putting in evidence on issue in dispute
 Court strikes part of the pleadings that raises a certain issue.
 Dismissal of P’s claim (Gargalow case?)
 Strike D’s answer making them appear to be in default, set trial
ASAP and limit to trial to damages only.
 Stop the proceedings and tell P (or D) that no further action will
happen Until P complies, put pressure on P using threat of 41b
dismissal.
 Hold attny in contempt and incarcerate. This is rare and cannot
be used against a party who refuses to show up for a physical or
mental exam.

Electronically stored information

Discovery Hold: Upon reasonable anticipation of litigation it is the
responsibility of the lawyer to be sure that the client takes reasonable
steps to insure that electronic info is not destroyed. This may require
lawyer to work with client’s IT staff. May require client’s info storage
systems to be modified to turn off such features as “auto –delete.”
The lawyer should be able to discuss what steps have been taken in
this vein at the 26(f) conference.
In addition to other subjects that will be discussed at the conference
electronic discovery should be specifically addressed:
 Steps taken to preserve electronic info should be disclosed
 Whether a “claw back” agreement should be entered into along
w/terms of the agreement (see below)
 Whether any party will be disclosing electronic info under
mandatory disclosures rules and form of such material
 Whether any party posses inaccessible electronic info (see
below)
 A specific e-discovery plan to be part of the general discovery
plan.

Claw-back agreement. Due to the voluminous nature of electronic

info, the likelihood that priv’d info will be inadvertently disclosed is
substantially increased. As such, the lawyer will want to discuss
whether they should be allowed to “claw back” such info from the
opponent who received, but is not entitled to, the priv’d info. This can
be accomplished by entering a claw-back agreement.
  Often, priv is a matter of state law and any disclosure of priv info
may be construed as a waiver of the priv. An agreement can
circumvent a waiver when the disclosure was accidental.
 The agreement should specify that the lawyer who received the
priv info will not look at it and whether the info will be returned
to merely destroyed.
 Such as agreement should be incorporated into the discovery
plan and approved by the court to insure its enforceability.

Production of electronic stored info:

Info that isn’t disclosed pursuant to mandatory disclosure rules is
obtained from parties using request for production under FR34 and
from non-parties using subpoena under FR 45.

Inaccessible data: due to quickly changing technology, older data

may have become inaccessible. Such data need not be produced
when requested. The requesting party may seek an order from the
court forcing production of inaccessible data. The court may shift
expense of producing inaccessible data to the requesting party. When
an order to produce inaccessible data is sought, the producing party
may object to the form of the data specified by the requesting party.

Form of data: a party requesting production of electronic info should

specify the form in which the data should be produced. If not specified
the producing party can use whatever form desired. Data received in
an undesirable form cannot be requested a second time unless the
desired form was specified in the original request. The producing party
can object to the form specified in the request.

Sanctions: Sanctions for improper e-discovery can be sought just as

for other discovery infractions.

Safer harbor: Intentionally destroyed data will not result in sanctions

so long as the data was destroyed by the usual and ordinary good faith
operation of electronic storage systems b4 litigation hold was
implemented AND the hold was implemented in a timely fashion.

Week 8 Summary Judgment (SJ) & Pretrial orders

Summary judgment (SJ) test the genuineness of the fact issues on the
pleadings to decide if we need a trial on the facts.
The motion test the sufficiency of the evidence to get the case to the
jury.
SJ- rule 56 FOR OUR PURPOSOSES ASSUME D MUST PLEAD AFFIRM
DEFENSES BEFORE D CAN MAKE A MOTION FOR SUMMARY JUDGMENT.
Res judicata and Statute of limitations are often used to get summary
judgment.

Summary Judgment is the procedural device you use to implement res

judicata and collateral estoppel.

Friar v. City of Vandalia is an excellent example of how summary

judgment is used to implement collateral estoppel b/c trial court used
transcript from state replevin case to prove that that P’s due process
rightes were not violated, therefore his civil rights claim (only had 2
elements from Gomez v. Toledo), will fail b/c no genuine issue of
material fact.

Rule 56( c) “no genuine issue as to any material fact AND the movant
(i.e the moving party) is entitled to judgment as a matter of law.”

How to raise a fact issue? In the pleadings. Pleadings raise fact issues
and those are resolved by presenting evidence to a factfinder to
resolve the dispute.

Exam: you will see pleadings. Consciously determine who has the
burden of proof of the issues raised. GR: the burden of proof follows
the burden of pleading. Must prove the disputed elements of the claim.
Look out for counterclaim and cross clams…think of them as “claim
plaintiffs and claim defendants”
Burden of proof includes a burden of production (evidence presented
to the factfinder) and a burden or persuasion.

FRCP 56 – Summary Judgment

A party may move for summary judgment on all or part of the claim at
any time after: 20 days have passed from the commencement of the
action OR the opposing party serves a motion for the summary
judgment. The motion must be served at least 10days b4 the day set
for the hearing. The judgment sought should be rendered if the
pleadings, discovery and disclosures on file, and any other affidavits
show that there is NO GENUINE ISSUE OF MATERIAL FACT and the
movant is entitled to judgment as a matter of law.
An interlocutory summary judgment may be rendered on liability alone
if there is a genuine issue as to the amount of damages.
An opposing party may not rely on allegations or denials in its own
pleading, rather its response must-by affidavits or otherwise –set out
specific facts showing a genuine issue for trial. If the opposing party
does not so respond, summary judgment, if appropriate, should be
entered. The court may also deny the motion or order a continuance. If
an affidavit is submitted in bad faith or solely for delay the court must
order the submitting party to pay the other party the reasonable
expenses, including attny fees, it incurred as a result. The offending
party may also be held in contempt.

Note: Non-movant can try that it had insufficient time for discovery to
avoid summary judgment.

Someone must show there is no genuine issue of material fact. What’s

critical is who has the burden of proof. If the non-moving party has the
burden of proof and has no evidence OR by coming forward
affirmatively with evidence to show that the opponent can’t win on the
issue.

Burden of Proof
P – elements of the claim
D – affirmative defenses. By operation of FRCP 8(d) old version 8(b)(6)
new version the affirmative defense is considered denied b/c there is
no responsive pleadings an affirmative defense.

Burden of Proof :
 Burden of production- gets you to the jury. Must come forward
with enough evidence, if you believed would allow rational jury to
find in your favor. Requires a party to “produce” = find and
represent evidence. Satisfying a burden of production means
only that a trier MIGHT rationally decided the case in one’s favor,
not that it must.
 Burden of persuasion- with the jury deciding if they are in your
favor. Burden of persuasion = “preponderance of evidence “ or
“more probable than not” In a few specialized circumstances it is
clear and convincing evidence or beyond a reasonable doubt.

Affidavit =written document in which the affiant swears under penalty

of perjury that the statements made are true. Typically drafted by
lawyers and the affiants merely sign them.

Rule 56 – partial summary judgment : can get judgment on some of

the issues. American Airlines filed flight plan 300’ below the highest
obstacle. Plane crashed into mountain and wreckage found 300’ below
peak of the mountain. You need evidence of a scientific nature.
Testimony is ALWAYS subject to jury’s evaluation [ for partial and full
summary judgment]
Usually, partial summary judgment is granted b/c to get full summary
judgment you must have damages that are sum certain or equitable in
nature.

Legal (damages) remedies = replevin , ejectment, writ of

mandamus , habeus corpus
Equitable in nature= temp restraining order, preliminary injunction,
recission, reformation, action to quiet title, declaratory judgment,
constructive trust

Rule 16 Pretrial Conferences: Scheduling: Management

Purpose: court may order attnys and unrepresented parties to appear
for one or more pretrial conferences to:
 Expedite the action
 Establish early and continuing control
 Discourage wasteful pretrial activities
 Improve quality or trial through thorough preparation
 Facilitate settlement
Scheduling order is sent after receiving parties’ report under rule 26(f)
and the order must be issued as soon as practicable but within earlier
of 120 days after any D has been served with the complaint OR 90
days after any D has appeared.

The order MUST limit the time to join other parties, amend the
pleadings, complete discovery and file motions.

The order MAY modify: timing of disclosures under 26(a) and 26(e)(1);
modify the extent of discovery; provide for disclosure or discovery of
electronic docs; set dates for pretrials conferences and trial.

Once the schedule is created it can only be modified good cause with
judge’s consent. A represented party must authorize at least one attny
to make stipulations and admissions about all matters that can
reasonably be anticipated for discussion at a pretrial conference.

At any pretrial conference the court MAY consider:

 Formulating and simplifying the issues;
 Amending the pleadings and stipulation about the facts and docs
to avoid unnecessary proof;
 Rule in advance on admissibility of evidence
 Avoid unnecessary proof and cumulative evidence;
 Determine timing /appropriateness for summary judgment (rule
56);
 Control and schedule discovery
 Identify witnesses and documents
 Schedule filing and exchange or pretrial briefs;
 Set dates for further conferences
 Settle the case
 Dispose of pending motions
  Adopt special procedures for managing potentially difficult or
protracted actions that may involve complex issues, multiple
parties difficult legal questions or unusual proof problems
 Order a separate trial under rule 42(b) of a claim, counter claim,
cross claim, third-party claim, or particular issue (Bifurcate the
trial)

Final Pretrial Conference and Order: to formulate a trial plan held

as close to start of trial as reasonable. The court may modify the order
issued after a final pretrial conference ONLY TO PREVENT MANIFEST
JUSTICE.

Sanctions (on motion or sua sponte) if party/attny fails to appear at a

scheduling or other pretrial conference; is substantially unprepared to
participate- or does not participate in good faith, fails to obey a
scheduling or other pretrial order. The sanctions may include an order
to pay reasonable expenses, including attny fees, incurred b/c of any
unjustified noncompliance w/ this rule.

COTTER ON PRETTRIAL CONFERENCE AND PRETRIAL ORDER

Rule 16 governs all conferences. FRCP 16(b) initial conferences,
settlements conference, or subsequent discovery conference, a status
conference, any type of conference you can dream of, and final pretrial
conference. The pretrial order should be a kind of script of what’s
going to happen a the trial.

You present a proposed pretrial order and hope the judge plagiarizes it.
Take advantage of these opportunities to posture the judge in your
favor. Example of sending a a memorandum since cotter didn’t have
an opportunity to present a proposed pretrial order. At the start of trial
judge read from the memo, the case was a slam dunk.

Call other side and see if they will stipulate to a continuance. If that
fails, go to the judge and ask for a continuance.

Common issues that get litigated are situations where the pretrial
order specifies that certain issues will be tried, certain witnesses will
testify, or certain evidence will be introduced and then the other party
tries to raise matters at trial not within the scope of the order.

Exam: pretrial order controls the trial and it is very difficult to get it
amended.

Week 9: Judge or Jury

GR: if there is any appearance of partiality on the part of the judge, the
judge should recuse him/herself

28 usc 144 a judge cannot hear a case where he has served as a

lawyer in the matter in controversy b4 becoming a judge, or where
he served as govt employee and expressed an opinion concerning
the merits of a particular case or controversy.

28 USC 455 (a) Broad: “ any justice, judge, or magistrate of the US

shall disqualify himself in any proceedings in which his impartiality
might reasonably be questioned.”

28 USC Narrow: “bars decisions in cases in which a judge or his

family has a pecuniary interest.”

Amendment VII- in suits at CL, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be preserved, and
no fact tried by jury shall be otherwise reexamined in any Court of the
US than according to the rules of the CL.

FRCP 38- Right to a jury trial; Demand

The right to a trial by jury as declared by VII amendment. A party may
demand a jury trial by:
Serving the other parties with a written demand no later than 10days
after the last pleading directed to the issue is served AND filing the
demand in accordance with rule 5 (d) [aka delivering it to the clerk or
judge] .
A party must specify in the demand a jury trial that only on issues that
it wishes to have tried by a jury, otherwise it is considered to have
demanded a jury trial on issues so triable. If a party requests a jury
trial only on some issues, any other party may (within 10days after
being served with the demand) serve its own demand for a jury trial on
any other or all factual issues triable by the jury.

FRCP 39- Trial by Jury or by the Court

When a trial by jury has been demanded action must be designated as
a jury action, UNLESS:
The parties file a stipulation to a nonjury trial or stipulate on the record
OR the court, on motion or on its own, finds that on some or all of
those issues there is no federal right to a jury trial.

GR: crim D’s want juries and civil P’s want juries.

Historical test – merely preserves the right that was in place in 1791.
2 courts: law (jury), equity (judge) not under a writ= having no remedy
at law
Applying the historical test to new claims is difficult
Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry (SCOTUS
1990)
Would this case in a court in 1791, be litigated in a court of law or
equity?
First, most closely analogous case (writ that matches the legal
theory). This is the character of the overall action. In this case, trust
analogy/fiduciary duty of union to employees = equity.

Second, Ross v. Bernhard, 396 US 531 (1970) 7th Amendment

question depends on the nature of the issue to be tried rather than the
character of the overall action. In Ross, a shareholder’s derivative
liability suit (typically suit brought in equity) was actually given a jury
trial b/c the P’s case presented legal issues of break of K and
negligence. The P’s case presents legal issues like those in a break of
K= legal.

Third, additionally, court looks at the remedy sought. Remedies

available historically in a court of law: 1) money damages other than
for restitution 2) get your property returned – replevin and ejectment.
Justice Brennan’s concurrence says we should just focus on the
remedy.

Cotter: Right to trial by jury is a jealousy guarded right………if

anything looks tastes, smells legal the right to trial by jury attaches.

Note: regardless of what would be traditionally done at trial, to

preserve the jury right, the trial judge’s discretion must be exercised in
a way that the case would be tried to a jury. Also the fact that
equitable relief is sought in addition to a substantial legal relief does
not eliminate the right to a jury trial.

7th amendment right under CL as of 1791. GR: Beacon Theater –

supreme court said that there is no reason why an issue that would
have been tried in a court of law in 1791 wouldn’t cause the jury right
to attach, no matter how equitable case appears.

Teamster case: if remedy creates a legal issue due to money damages,

you going to get a jury.

Ross: Burnhart was a purely equitable case and by simply finding a

legal issue the jury right attached.

Dairy Queen case: DQ styled its claim as an equitable suit for an

accounting. Nice try no cigar. The respondent’s contention that their
complaint was an accounting rather than an action for debt or
damages avails nothing. The constitutional right to trial by jury cannot
be made to depend upon the choice of words used in the pleadings.

The 7th Amendment and Administrative Proceedings

GR: admin agencies enforce public rights. Atlas roofing case, court said
you don’t get a jury when you are fined (even though it looks like
money damages) b/c it was for the benefit of the public.

Private rights, any setting , you will always get a jury. However with
public rights you may not get a jury.

Jury size
SCOTUS: In civil cases, a 6 person jury is sufficient to satisfy the 7th
amendment.

28 USC 1861- all litigants in Fed courts entitled to trial by jury have the
rights to grant or petit juries to selected at random from a fair cross
section of the community in the district where the court convenes. All
citizens shall have the opportunity to be considered for services.

FRCP 48- a jury must initially have at least 6 months and no more
than 12 members and each juror must participate in the verdict.
Unless the parties stipulate otherwise, the verdict must be unanimous
and be returned by a jury of at least 6 members.

Jury Composition, Selecting Jurors

1862- Cannot discriminate against selecting a juror based on
race/color/ religion/sex/ national origin/ economic status

1863-1866 check rule book

1867-Challenging compliance w/ selection procedures: b4 the

voir dire begins or within 7 days after the party discovered (or could
have discovered by exercise of diligence) a party may move to stay
the proceedings on ground of substantial failure to comply with
provisions in 28 USC dealing with selecting the jury. 1867 doesn’t block
anyone from bringing an action to vindicate their rights to prevent
discrimination on the bases of race/color/ religion/sex/ national origin/
economic status.

1870- each party is entitled to 3 peremptory challenges. Several

D’s or several P’s may be considered a single party for the purposes of
making challenges or the court may allow additional peremptory
challenges and permits them to be exercised separately or jointly.
FRCP 47- the court May permit the parties or their attnys to examine
prospective jurors or may do so itself. Peremptory challenges are
provided by 28 USC 1870. During the trial or deliberation the court
may excuse a juror for good cause.

FRCP 40- the scheduling cases for trial the court must give priority to
actions entitled to priority by federal statute.

Cotter Summary
Using voter registration, driver’s license lists, etc.
Questionnaires go out, they come back and are pre-screened based
on the statute. To the qualified jurors a jury summons is sent out
specifying the date they have to be present. Select 6 jurors (or 8 if
alternatives) who sit in jury box. Then voir dire. (during pre-trial
conference ask judge if judge or counsel will voir dire the jurors. In fed
court usually the judge. May I submit voir dire questions: determine if
biased, (one side of the issue over another), prejudiced (one party over
another)).
 Challenge for cause (unlimited)
 Peremptory challenge (limited)
Court in its discretion can grant the P additional peremptories to even
things up b/w P and D. Each party gets 3 by statute.

Cotter example: if juror explicitly agrees that he will follow the

evidence and the instructions of judge, challenge for cause can be
overruled. Keep these 2 questions in your back pocket. Will you decide
solely on the evidence y/n? Will you decide solely based on the judge’s
instructions y/n? MAKE SURE YOU GET ON THE RECORD b/c on appeal
this guarantees that the juror cannot be the basis of the case being
reversed.

Week 10: Trials and Post-trial Motions

 Motion for SJ tests the genuineness of the fact issues to see if we
need to go to trial
 Pre trial conference to get script
 TRIAL (potential events)
o Jury selection, instruction, oath
o Opening statement : P (you’ve got to hit the elements
otherwise case can be dismissed), D? OR D can reserve
opening statement until after P’s case in chief. Cotter’s
rule of thumb: If D is going to try to convince that P can’t
make his case, give D’s opening statement up front; if
 going for affirmative defense D should preserve opening
statement until later.
o P’s evidence
o Directed Verdict (jml) Example: D makes a motion for
directed verdict if D thinks P hasn’t met his burden of
production on essential elements of claim.
o D’s evidence
o Rebuttal Evidence
o (Jury Instruction optionally before)
o Closing Arguments: how these are done varies from court
to court some courts P,D, P’s final closing otherwise D, P.
o Jury Instructions on the law (if not given before)
o Deliberations
o Verdict: general or Special?

Factual Findings
Jury trial
 General verdict
 Special verdict- also tells what the facts were decided
 General verdict- w/ special interrogatories

Bench Trial
Findings of fact must be expressly stated as well evidence upon which
he relied and conclusions of law.

Special verdict and bench trial make it easy to establish collateral

estoppel in a subsequent lawsuit.

Judgment on the verdict ( later we’ll see that a party can make a
judgment for JNOV or new trial within 10 days)
7th amendment: and no fact tried by a jury, shall be otherwise
shall be otherwise re-examined in any court of the United states, than
according to the rules of the common law. So long as there is evidence
in the record that a rational jury could have believed, no court can
overturn this verdict.

When can the judge take this away from the jury?
 Excluding improper influences – if juror is bribed, threatened , or
talks to people outside the litigation about the case.

At trial P has the burden of proving claim elements. D has burden of

proving the affirmative defense elements. Burden of production (gets
you to the jury) Burden of persuasion (what the jury weighs, is it more
likely than not true). Viewing the evidence in the light most
favorable to the non-moving party, could a reasonable jury find
in favor of the non-moving party? The judge is not permitted to
substitute his belief about how the case should have been decided for
that of the jurors.

Bench Trial vs. Jury Trial

How is a bench trial different from a jury trial?
With non-jury trials there is no verdict, just a judgment and written
opinion with his (judge) findings of fact citing evidence it was based on
and his conclusion of law.

FRCP 52- Findings and Conclusions by the court; Judgment on partial

findings
In a nonjury trial the court must find the facts specially and state its
conclusion of law separately. This can be done: on the record after
close of evidence OR in an opinion OR memorandum of decision filed
by the court.
The court is NOT required to state the findings or conclusions when
ruling a on a motion unless these rules provide otherwise.
Findings of fact must not be set aside unless clearly erroneous and the
reviewing court must give due regard to the trial court’s opportunity
to judge the witnesses credibility.

Directed Verdict ( AKA JUDGMENT AS A MATTER OF LAW)

Permits a party, at the close of the otherwise party’s case, to move for
JML. The ground for the motion is that the evidence presented would
only support one results: There is no legally sufficient evidentiary basis
for a reasonable jury to fin for the nonmovant on that issue.

NO JUDGE IN HIS/HER RIGHT MIND WILL GRANT A DV IN A CLOSE CASE

B/C COURT OF APPEALS MIGHT REMAND

Exam Tip: Diagram FRCP 50.

FRCP 50- Judgment as a matter of law (JML) and Motions for New trial.
If a party has been fully heard on an issue and court finds that a
reasonable jury would not have a sufficient evidentiary basis to find for
a party on that issue the court MAY resolve the issue against the party
and grant a motion for JML on a claim that or defense. The motion for
JML may be made at anytime b4 the case is submitted to the jury and
must specify the judgment sought and law/facts that entitle the
movant to the judgment.
No later then 10days after entry of judgment (or if motion addresses
an issue not decided by a verdict 10 after jury discharge) the movant
may file a RENEWED motion for JML and may include an alternative
request for new trial.
The court may: allow judgment on the verdict, order a new trial, or
direct entry if JML. If the court grants a RENEWED motion for JML it
must conditionally rule on any motion for a new trial by determining
whether a new trial should be granted if the judgment is later vacated
or reversed. The court must state the grounds for conditionally
granting/denying the motion for a new trial. Conditionally granting a
new trial doesn’t affect the finality of the judgment.
A motion for a new trial must be filed no later than 10 days after entry
of the judgment.

GR: If there is a direct conflict of testimony upon a matter of fact, the

question must be left to the jury to determine w/o regard to the
number of witnesses upon either side.

The leading case on the prevailing view of whether reasonable persons

could differ is Boeing.

JNOV
JNOV tests the sufficiency of the evidence to submit a case to the jury.
(2) it tests whether the party with the burden of production (2) has met
its burden of production thus creating genuine questions of material
fact (2) on which reasonable minds could differ. In determining
whether a JNOV should be granted, the judge will not weigh the
evidence as jurors would do, (2) Rather, the judge will view the
evidence in a light most favorable to the non movant to determine
whether the party with the burden of production has met that burden.
(M 2001).

Cotter: Do we need a new trial? If appellate court finds that there is not
support for a JNOV then the jury verdict must stand. For DV a new trial
is granted b/c there is no verdict to the reinstate so judges are loath to
give DV b/c they can always rescue a case with a JNOV later if the jury
screws up.

Terminology is no longer directed verdict or JNOV. Terminology is now

based on FRCP 56 JML (judgment as a matter of law).
3 points in trial where you can make a motion that the P doesn’t meet
his burden or production: SJ before the trial, DV during the trial, JNOV
at end of trial. Form of evidence has to be admissible at trail, there are
cases where you can beat the SJ by showing the ability to produce at
trial but you can actually can’t and therefore you’ll lose a motion for
DV. Copy of document versus the original document under the best
evidence rule.
FRCP 50 for our purposes, JML b4 verdict or JML after verdict (judgment
as a matter of law) OR you can use DV and JNOV. If you file a motion in
federal court after law school ( or during externship) use the court rule
JML.

If JNOV granted and appellate court reverses judge will simply reinstate
the jury verdict.

A motion for JNOV cannot be approved UNLESS the motion for DV was
made first. Why? 7th Amendment says “no fact tried b4 a jury shall be
otherwise reexamed….than according to the rules of CL.” SCOTUS has
held that CL had an analogue to DV, but NOT for JNOV. SCOTUS views
JNOV as a delay ruling on a motion for a DV. A motion for DV must be
made b4 the case is submitted to the jury. Remember, to be able to
make a motion for JNOV, you must make a motion for DV.

New Trial
FRCP 59- New Trial; Altering or Amending a Judgment
The court may, on motion, grant a new trial on all/some of the issues
after a jury or nonjury trial. For a nonjury trial, the judgment can be
opened to take additional testimony, amend findings of facts and
conclusions of law or make new ones and direct the entry of a new
judgment.
The motion must be made no later than 10 days after the entry of
judgment.
The opposing party has 10days after being served to file opposing
affidavits, but the period can be extended up to 20days either by the
court for good cause or by the parties stipulation.
The court can sua sponte order a new trial no later than 10 days
after entry of judgment for any reason that would justify granting one
to a party’s motion.

Movant can make a motion for JNOV OR can make motion for a new
trial.

What are the grounds for a new trial? Federal rules don’t tell you but
Michigan rules do. Great weight of the evidence, basically jury
wasn’t reasonable in interpreting the evidence. Michigan Grounds
whenever substantial rights are materially affected for any these
reasons:
 Irregularity in the proceedings of the court, jury, or prevailing
party, or order of the court or abuse of discretion which denied
the moving party a fire trail.
 Misconduct of the jury of prevailing party
 Excessive or inadequate damages influenced by passion or
prejudice
  Verdict clearly or grossly inadequate or excessive
 A VERDICT OR DECISION AGAINST THE GREAT WEIGHT OF
EVIDENCE OR CONTRARY TO THE LAW
 Material evidence newly discovered that couldn’t have been
discovered previously with reasonable diligence
 Error of law in the proceedings or mistake of the fact by the court
 Same grounds as FR 60(b)

“Combo” motion where a party makes a 50(b) motion for JNOV, or in

the alternative, a new trial~ when one of the motions are granted,
other motion is also automatically decided on “conditionally” meaning
that if the granted motion is served on appeal, the appeal, the
alternative motion will already be in place when the reversal is
remanded.

4 combinations: both motions approved, both denied, JNOV granted

and new trial conditionally denied and new trial conditionally granted.

The trial judge has wide discretion to set the verdict aside but cannot
do it simply b/c judge would have come to a different conclusion if he
were the trier of fact.

Additur and Remittitur

In federal courts Additur violates 7th amendment but remittitur does
not. Some states allow both additur and remittitur. Sometimes, instead
of ordering a new trial on damages a court may order a new trial
unless the P agrees to accept additur/remittitur.

Week 11 Appeals
For exam, appeals as procedural device, is a safety net, mechanism by
which we determine whether trial court has made a reversible error
and fix errors that may have occurred at the trial level. Primary
function is to review the proceedings of the trial court to determine
whether there is an error, which if correct could change the result (aka
reversible error).

Issues decided at appellate level are almost always legal issues.

FRCP 54- Judgment = a decree or any order from which an

appeal lies.
 If there are multiple claims/parties the court may direct entry of
final judgment as to one or more but less than all ONLY if the
court expressly determines that there is no just reason for delay.
 A default judgment must not differ in kind/amount from what was
demanded in the pleadings Every other final judgment shall
 grant the relief to which each party is entitled even if the party
has not demanded that relief in its pleadings.
 Costs, other than attn fees, should be allowed to the prevailing
party.
 On motion the prevailing party make a claim for attny fees and
related nontaxable expenses (unless already awarded as an
element of damages). The motion must be made no later than 14
days after entry of judgment and specify the ground entitling the
movant to the award, state amount sought or a fair estimate,
and disclose any agreement about fees for services for which the
claim is made. The court must give an opportunity for adversary
submissions on the motion and must find the facts and state
conclusions of law.

Who can appeal? GR: a party who receives an adverse judgment has
the right to appeal. Aka the losing side.
Exception: state small claims courts
Exception: an appeal doesn’t lie (even if appellate court thinks
the trial court erred) if the party wins on one theory and loses on
others IF the relief sought under the other losing theories was identical
to that awarded under the winning theory b/c there was no “adverse”
judgment. The party got what it was after.

Exception: even if relief was the same under both the winning and
losing theories, if the theories differ in their collateral
consequences, then the appeal will lie.

Rule: whenever the respondent in the appeal (appelle) wishes to assert

a right to something different than what the trial court granted, you
must cross appeal (file your own notice of appeal with the district
court’s clerk’s office).

GR: you cannot raise an issue on appeal unless you raised/ preserved it
at trial court.
3 Exceptions
 SMJ of the trial court, appellate court can raise it sua
sponte.
 New law after trial court has decided the case but b4
appeal is decided.
 Plain error and to let it stand would cause a miscarriage of
justice. Not easy to argue if same lawyer is doing appeal
who did the trial.
Raise an issue
Make a motion= raise an issue
Oppose a motion= raise an issue
Object to evidence = raise an issue
Judge grants objection the issue is raised for the side that proffered the
evidence
Move for DV= raise the issue
Make a good record at the trial court.

SCOTUS has never held that there is a constitutional right to appeal a

civil case. However, look for due process violations b/c they may be
constitutional grounds to the appeal.

Court of Appeals must have SMJ for the appeal. It falls into 2
categories:
 28 USC 1291: Right to appeal final decisions on the trial
court. A final decision leaves nothing for the trial court to
do. Example: dismissal for want of jurisdiction, dismissal for
failure to state a claim, dismissal as a discovery sanction, entry
of default judgment for a specified sum, SJ, DV, judgment
entered on the verdict, JNOV entered. Anything that
terminates the litigation in the trial court can be
appealed as a right.

 28 USC 1292: interlocutory decisions (decisions that do not

terminate the litigation at the trial court) happen b/w filing of the
complaint and the final judgment.
 Example: Discovery complaints, denial of
motion for SMJ, objections to ordering of non-
party physical and mental exams

 BY RIGHT
1. if involves the granting, denial, modification or
anything having to do with an injunction you
can appeal immediately.
2. Imposition of a receivership (taking of
someone’s property and giving to receiver for
safekeeping, example in bankruptcy.)
3. Admiralty?????( not sure) ask cotter

 BY LEAVE
• Any other interlocutory decision however it
requires BOTH trial court and appellate court of
approval
28 USC 1292 – Interlocutory decisions, when a district judge, in making
an order not otherwise appealable, is of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for differences of opinion and that an immediate appeal from
the order may materially advance the ultimate determination of the
litigation he shall so state in writing. Court of Appeals may in its
discretion permit an appeal if application is made within 10days after
entry of the district court’s order.

Cotter: Under FRAP 4 you only have 30 days in which to file your notice
of appeal. Written judgment starts 30day period ( historically problem
with oral judgment). SCOTUS has decided that this issue determines
jurisdiction. Too soon (old rule), too late you won’t get an appeal. If
filed too early, doesn’t matter anymore.

Exception to Final Judgment: Writ of Mandamus

A writ of mandamum orders a public official to perform an act required
law. The public official may be a judge of lower court.

Where the appellate court is presented only documentary evidence

(therefore no testimonary evidence) appellate court is in the same
situation as trial court and SCOTUS allows the appellate court to re-
decide the issues in the cases.

Multiple choice Questions *= correct answer.

Civil Procedure Possible Multiple Choice Questions.

1) Class actions certification requires

a. That class members cannot intervene
b. That class members have no counterclaims
c. That class members are too numerous that join under FRCP 20*
d. That class members notify the court of their intent to be part of the class
action lawsuit.

2) A class action is filed in which there are 5,000 members who must be notified.
Postage is $. 37 each. Printing of the notice $.13each. The cost of notifying the
class will be:
a. $2,500*
b. $25,000
c. $250,000
d. $2,500,000

3) Barb is Joe’s second wife. She is suing the phone company for an injuction, wish
them to delete the list of Mrs. Jane Axt (joe’s ex wife), and replace it with hers.
 The phone company moves to dismiss the action on the grounds that joe’s ex wife
is an indispensable party. Assuming joinder of jane is not feasible,
a. The motion should be granted b/c Jane is not necessary, but she is
indispensable.
b. The motion should be granted b/c Jane is necessary and indispensable. *
c. The motion should be denied b/c Jane is indispensable but not necessary.
d. The motion should be denied b/c Jane is necessary but not indispensable.

4) Assuming an intervenor has an interest in the litigation which, as a practical

matter, may be impaired or impeded,
a. The intervenor must be allowed into the suit.
b. The intervenor must show a statutory right to intervene.
c. The intervenor has a right to intervene if none of the other parties
represents the intervenor’s interest.
d. The intervenor has a right to intervene if application has been timely made
and none of the other parties represents the intervenor’s interest. *

5) Tonya thinks Nick has sued the wrong person. She was not involved in the
planning the attack. However, Tonya thinks that her bodyguard, Danny, was
involved along with Sal and that Danny is therefore liable to Nick. What should
she do?
a. File a motion to dismiss for failure to join an indispensable party.
b. File a cross-claim action against Danny
c. File an impleader action against Danny
d. File an interpleader action against Danny and Sal
e. None of the above. *

6) Nick’s complaint and summons was hand delivered to Tonya on April 4, 1994, by
a person over the age of 18 and not a party to the lawsuit. Tonya must respond to
the complaint?
a. On or before April 21, 1994
b. On or before April 24,1994
c. On or before April 25, 1994*
d. On or before June 3, 1994.
e. She need not respond b/c the complaint was not properly served.

7) Tonya initially responded to the complaint by filing a motion to strike the claim
for punitive damages. That motion was denied. Assuming a good argument was
made in support of each defense, Tonya should assert which of the following
defenses in her answer:
i. Lack of subject matter jurisdiction
ii. Statute of Limitations
iii. Failure to state a claim upon which relief can be granted
iv. Lack of personal jurisdiction
b. i. – iv
c. i. iv only
 d. i. ii only
e. i.-iii only*
f. i. only

8) Tonya has a claim against Nick based upon Nick’s alleged theft of one of Tonya’s
designer bags two yrs ago. Tonya filed this claim in federal court b4 it had been
dismissed for lack of smj. She then filed the action in state court, but chose to
voluntarily dismiss the action. Which of the following is true.
a. Tonya cannot assert this claim in this action*
b. Tonya can assert this claim as a permissive counterclaim against Nick
c. Tonya can assert this claim as a compulsory counter claim against Nick
d. Tonya’s claim is barred by claim preclusion principles
e. Tonya’s claim is barred b/c it has been dismissed twice.

9) Tonya wants to determine the extent, if any, of the physical injury alleged by Nick
in her complaint. She should :
I. Serve interrogatories on the ice rink’s trainer who
treated Nick when she saw first attacked.
II. Serve a request pursuant to rule 34 upon Nick’s regular
doctor to have her produce copies of his files on the
injury.
III. Serve a notice to take the deposition of any expert
nick’s attorney retained for the purposes of the
litigation who, although she will not testify at trial, has
examined Nick and produced a report for use by Nick’s
attorney regarding Nick’s physical condition.
IV. Serve a copy of a motion filed with the court requesting
a physical examination of Nick.
b. I-IV
c. I, II, and IV only
d. I and III only
e. IV only*
f. I only

10) Nick’s lawyer is making the complaint. To comply with the pleading
requirements in the FRCP and obtain, w/o discovery requests, information such as
the names and addresses of all witnesses the defendants are aware of who have
information relevant to Nick’s claim, Nick’s lawyer MUST, at a minimum:
I. Plead as many facts with particularity as possible.
II. Provide only a short plain statement of the claim
showing that the pleader is entitled to relief (notice
plead).
III. Provide a short and plain statement of the grounds upon
which the court’s jurisdiction depends.
IV. Include a demand for judgment for the relief sought by
Nick.
 b. I, III, & IV only*
c. II, III & IV only
d. II & IV only
e. I & IV only
f. I only

11) Nick wants to get copies of handwritten notes and envelope with sal’s name on it
which were found in a dumpster by a restaurant owner, rusty recall. To get the
documents as inexpensively as possible, Nick should:
a. Serve recall with a request for production of documents pursuant to rule
34
b. Subpoena recall demanding that the documents be produced. *
c. Subpoena recall, requiring recall to attend a deposition and to bring the
requested documents to that deposition.
d. Wait for recall to provide the mandatory initial disclosures required by
rule 26(a)
e. File a motion to compel production against recall.

12) Assume Tonya and Sal responded to Nick’s complaint by filing and serving
answers. No other action has been taken in the case. Immediately after serving her
answer, Tonya serves nick with a set of interrogatories asking for information on
all offers of endorsements which were written after her silver medalist finish in
the Olympics. Nick refused and filed objections to the interrogatories. The dispute
is not resolved through an exchange of letters. Tonya has filed a motion to compel
answers to the interrogatories. How should the court rule on Tonya’s motion?
a. Grant the motion b/c the info is relevant to Nick’s claim and is not
privileged
b. Grant the motion b/c discovery can conducted in any sequence
c. Deny the motion b/c information is confidential.
d. Deny the motion b/c the interrogatories were served too early in the
litigation. *
e. Both a and b.

13) In the course of his deposition, Sal admits facts that he denied in his answer. The
answer was signed by sal’s lawyer, Dolce Gabana. When questioned about this
inconsistency, sal indicates that he never saw the answer b4 it was filed and
served and that he was never asked about the particular fact at issue by Gabana
before the answer was filed and served. Dolce Gabana is an associate in the firm
of Burberry. Nick files a motion with the court seeking monetary sanctions
including the reasonable attorneys fees incurred by nick b/c of this conduct. The
court should:
a. Grant the motion awarding sanctions against Sal, Gabana, and Burberry
b. Grant the motion awarding sanctions against Gabana and Burberry only.
c. Grant the motion awarding sanctions against Gabana only.
d. Deny the motion b/c monetary sanctions are no longer available for such
conduct in any circumstances.
 e. Deny the motion b/c it was filed prematurely *

14) After the pleadings closed, Tonya decieded to file a motion to have the case
dismissed. She wants to court to consider the complaint, her answer, sal’s answer
and an affidavit from Danny which states that Tonya had nothing to do with the
conspiracy. The motion filed by tonya should be entitled:
a. Motion for a judgment as a matter of law
b. Motion to dismiss for failure to state a claim upon which relief can be
granted
c. Motion for summary judgment *
d. Motion for Judgment on the pleadings
e. Motion for directed Verdict

15) Assume Tonya and sal file answers to nick’s complaint. Each of the defendants’
asserts as a defense that the injury to nick’s knee was caused by her having fallen
during practice on the day in question, not by the blow from the baton. In
response to theses allegations, Nice should file and serve which of the following:
a. Response to defendants’ answers
b. Reply
c. Counterclaim denying the allegations in the answers
d. Cross-claim denying allegations in Answers
e. None of the above *

16) No evidence was presented by nick during the trial connecting tonya in any way
to the conspiracy. Nick rested her case. Tonya then presented her case, testifying
that she was unaware of any conspiracy and never attended any discussions of a
plan to harm nick. Tonya rested her case. No motions were made during the trial,
although objections were asserted by tonya’s lawyer to certain testimony. At the
conclusion of the trial, the jury returned a verdict for Nick on all counts against
both tonya and sal. What should tonya’s counsel do?
a. Make a motion for a new Trial.*
b. Make a motion for Judgment as a matter of law.
c. Make a motion for summary judgment
d. Make a combined motion for judgment as a matter of law and, in the
alternative, for a New Trial.
e. Ask for a written statement of the jury’s reasons for its verdict.
17) Under the presumptive limits on discovery imposed by the FRCP, the maximum
number of specifications which can be included in Documents Requests served by
Tonya on Nick is:
a. 10
b. 25, including sub parts
c. 25 total, counting the specifications served by sal
d. 0. Document requests cannot be served on nick
e. None of the above. *
18) The allegations in Nick’s complaint regarding tonya’s involvement in the
conspiracy stated that nick did not, at the time the complaint was field, have any
evidentiary support for theses allegations. However, the complaint stated that nick
would likely be able to develop evidentiary support for theses allegations after a
reasonable opportunity for these allegations after a reasonable opportunity for
further investigation. Nick’s lawyer will be subject to rule 11 sanctions:
a. For filing a claim for which nick’s lawyer admittedly had no evidentiary
basis.
b. If, upon learning that evidentiary support for certain of the allegations
cannot be obtained, nick’s lawyer fails to amend the complaint to
withdraw those allegations for which no support is obtained.
c. If upon learning that evidentiary support certain of the allegations cannot
be obtained, Nick’s lawyer persists with the contentions represented by
those allegations. *
d. If upon learning that evidentiary support for certain of the allegations
cannot be obtained. Nick’s lawyer fails to supplement any interrogatory
answers which had been previously provided to tonya.
e. If nick does not prevail at trial with respect to this contention.
19) A serves B with a complaint. B responds by filing an answer which denies the
allegations in the complaint and asserts a counterclaim. B then discovers that he
has a viable defense for lack of personal jurisdiction (assume already in Federal
court) B:
a. Cannot assert this defense as it was waived by failing to include the
defense in the answer.
b. Can amend his answer to include this defense as long as the amendment is
done within 20days after the original answer was served.
c. Can file a post-answer motion raising this defense since he did not file a
pre-answer motion.
d. Can amend the answer to include this defense as long as he does so before
a responsive pleading to his answer is served. *
e. Can amend the answer to include this defense b/c leave to amend should
be liberally granted where justice so requires.
20) (assume already in federal court) In which of the following actions would a
defendant be allowed to make a jury demand:
I. Action seeking specific performance in which the
defendant has asserted a permissive counterclaim
seeking money damages.
II. Action seeking replevin of goods in the possession of
the defendant
III. Action for ejectment to remove defendant from
plaintiff’s property
IV. Action seeking recision of a contract.
b. I, II and III only*
c. I, II and IV only
d. I only
e. II only
 f. None b/c a df cannot make a jury demand.
21) Which of the following must be pleaded particularity:
I. The circumstances constituting fraud
II. Malice
III. Intent
IV. Any claim seeking punitive damages
b. I –IV
c. I and III only
d. I and IV only
e. I and II only
f. I only *
22) Which of the following rules are immediately appealable by statute without any
additional action on the part of the District court:
I. Ruling denying a party’s jury demand.
II. Ruling granting a motion for new trial
III. Ruling denying a motion for judgment as a matter of
law and entering judgment on the jury’s verdict
IV. Ruling granting a motion for summary judgment.
a. I and IV only
b. II and III only
c. II and IV only
d. III and IV only*
e. IV only
23) A party does not have to provide mandatory initial disclosures:
I. If the disclosures would be harmful to the disclosing
party’s case.
II. If the party asserts a general objection stating that
“certain information is withheld on privilege and work
products grounds.”
III. If the opposing party has not provided its disclosures.
IV. Regarding specific facts admitted in the Answer
a. I, II, and III
b. II only
c. IV only *
d. I and III only
e. III and IV only

24) Which of the following is NOT required as a pre requisite to allowing one or
more members of a class to sue on behalf of all:
a. Commonality
b. Typicality
c. Numerosity
d. Compatibility *
e. Adequacy of representation
25) Judge X is presiding in the case of Adams v. Big Corp. The best argument for
requiring Judge X to rescues herself is:
a. Judge X commented to the jury on the credibility of one of the witnesses
for adams.
b. Judge X’s spouse owns stock in Big Corp. But Judge X does not own any
stock and is unaware, b/c she has made no inquiry of her spouse’s
holdings. *
c. Judge X discussed materials of the case to the public
d. Judge X’s gardener owns stock in Big Corp.

26) A summary jury trial:

a. A fast trial used by courts having a “rocket docket.”
b. An ADR device used to predict the outcome of case after the lawyers
summarize the evidence to real juror w/o actually presenting the
evidence.*
c. A jury trial to determine one or more but less than all of the materials
issues of fact so that summary judgment may be rendered on the rest of the
issues.
d. A jury trial in which a special master is used to summarize for jurors the
evidence on complex issues.

27) The burden of production means:

a. Either the P or the D must produce enough evidence so that a judgment as
a matter of law may be entered. *
b. P must have at least some evidence on each contested element of its claim.
c. D must produce rebuttal evidence or suffer a directed verdict for the P
d. Both parties must produce enough evidence so that reasonable minds
cannot differ.

28) Grounds for a new trial include:

a. Jury Misconduct
b. Newly Discovered Evidence
c. Misconduct of party
d. All document *

29) P sues D for breach of contract seeking money damages and an injunction
prohibiting further breaches. P demands a trial by jury. D moves to strike the jury
demand.
a. The motion should be denied b/c a breach of contract action seeking
money damages would have been tried in 1791*.
b. Denied b/c courts of law and equity have merged
c. Granted for the reason P is seeking equitable relief
d. Granted b/c P has improperly joined legal and equitable claims.

30) Ron’s car was struck by Jim who allegedly was driving negligently. Mary was a
passenger in Ron’s car. Mary sues Jim for her personal injuries. Mary wins b/c the
 jury decided that Jim was negligent. Now Ron sues Jim for Ron’s personal
injuries
a. Ron can use collateral estoppel offensively only if mutuality is not
required *
b. Jim cannot use collateral estoppel offensively b/c the second suit involves
a different a cause of action
c. Ron cannot use collateral estoppel but jim can
d. Ron can use CE offensively b/c his non-negligence was determined in
Mary’s suit.
31) Assume there are two lawsuit, each of which involves only one claim, and a
judgment is entered in the first action. Select the FALSE statement:
a. It is possible that both res judicata and collateral estoppel may apply in the
second suit. *
b. It is possible that neither RJ nor CE would apply in the second suit
c. It is possible that either RJ or CE could apply in the second suit
d. RJ applies in the second suit only if the same cause of action is being re-
litigated