CIVIL PROCEDURE I- HALABI FALL 2010

TABLE OF CONTENTS
I. Introduction ................................................................................................................................. 5 A. The Rules ............................................................................................................................... 5 B. The System- Adversarial ........................................................................................................ 5 C. Procedural Complications ...................................................................................................... 6 II. Pleadings .................................................................................................................................... 7 A. Introduction ............................................................................................................................ 7 1. Pleadings & Form ............................................................................................................... 7 2. Background for Rules ......................................................................................................... 7 B. The Complaint ........................................................................................................................ 8 1. Form of Pleadings- Liberal Construction ........................................................................... 8 2. Specificity ......................................................................................................................... 10 3. The Complaint- FRCP 8(a)(2) .......................................................................................... 10 4. Employment Discrimination- 8(a)(2) ............................................................................... 10 5. Current Application of 8(a)(2) .......................................................................................... 11 6. The Complaint- Fraud or Mistake- FRCP 9(b) ................................................................. 13 C. Sufficiency of the Complaint- FRCP 12(b)(6) ..................................................................... 15 D. Defendants Response .......................................................................................................... 15 1. Time- FRCP 6 ................................................................................................................... 15 2. Pre-Answer Motions under FRCP 12 ............................................................................... 15 3. Failure to Answer- Default FRCP 55................................................................................ 17 4. The Answer- FRCP 8 (21 Days) ....................................................................................... 18 E. Judgment on the Pleadings- FRCP 12(c).............................................................................. 20 F. Voluntary Dismissal- FRCP 41 ............................................................................................ 20 G. Amendments to Pleadings .................................................................................................... 21 H. Proper Party to a Suit ........................................................................................................... 23 I. Joinder- FRCP 18, 19, 20 ...................................................................................................... 24 III. Discovery ................................................................................................................................ 26 A. Discovery in FRCP .............................................................................................................. 26 B. Discovery Devices................................................................................................................ 26 1. List of Devices .................................................................................................................. 26 2

2. Initial Disclosure- FRCP 26(a) ......................................................................................... 26 3. Depositions- FRCP 30 & 31 ............................................................................................. 27 4. Interrogatories- FRCP 33 .................................................................................................. 28 5. Document Inspection- FRCP 34 ....................................................................................... 29 6. Physical or Mental Examination- FRCP 35 ...................................................................... 29 7. Requests for Admissions- FRCP 36 ................................................................................. 30 8. Discovery Considerations ................................................................................................. 30 C. Scope and Limits of Discovery- FRCP 26(b) ...................................................................... 32 1. FRCP 26(b) Discovery Scope and Limits ...................................................................... 32 2. Limits- FRCP 26(b)(2)(C) ................................................................................................ 33 3. Electronic Discovery......................................................................................................... 34 D. Exemptions from Discovery ................................................................................................ 35 1. Attorney Work Product- FRCP 26(b)(3) .......................................................................... 35 2. Attorney-Client Privilege- FRCP 26(b)(5)(A) .................................................................. 36 3. Expert Witnesses- FRCP 26(b)(4) .................................................................................... 37 E. Investigation ......................................................................................................................... 38 F. Sanctions ............................................................................................................................... 39 IV. Summary Judgment- FRCP 56 ............................................................................................... 42 A. Dispositive Motions ............................................................................................................. 42 B. Burden Shifting in Summary Judgment ............................................................................... 42 C. Determining the Appropriate Standard of Proof .................................................................. 45 V. Pre-Trial Conferences .............................................................................................................. 46 A. Pretrial conferences - FRCP 16 ............................................................................................ 46 B. Incentives to Settle- Shifting Fees & Costs .......................................................................... 47 VI. Trial......................................................................................................................................... 49 A. Phases of a Trial ................................................................................................................... 49 B. Seventh Amendment Right to Jury Trial.............................................................................. 50 C. Composition of Juries, Jury Instructions, Jury Verdicts ...................................................... 52 D. Judicial Control of the Verdict ............................................................................................. 55 1. Judgment as a Matter of Law (JMOL)- FRCP 50............................................................. 55 2. Directed Verdict ................................................................................................................ 56 3

3. Judgment N.O.V. .............................................................................................................. 57 VII. Judgments and Post-Trial Motions ........................................................................................ 60 A. Motion for a New Trial- FRCP 59 ....................................................................................... 60 B. New Trial Amount of the Verdict ..................................................................................... 61 C. Relief From Judgments ........................................................................................................ 61 VIII. Appeals................................................................................................................................. 62 A. Appellate Review ................................................................................................................. 63 B. Stay of Enforcement of Judgments on Appeal- FRCP 62 .................................................... 63 C. Federal Appellate Procedure ................................................................................................ 63 D. Timely Notice of Appeal...................................................................................................... 64 E. The Final Judgment Rule...................................................................................................... 65 F. Exceptions to the Final Judgment Rule ................................................................................ 66 1. Collateral Orders ............................................................................................................... 66 2. Interlocutory Injunction Exception ................................................................................... 68 G. Appellate Review of Judicial Findings of Fact .................................................................... 69 H. Federal Appellate Procedure ................................................................................................ 70 IX. Remedies................................................................................................................................. 71 A. Preliminary Relief ................................................................................................................ 71 B. Interim Relief ....................................................................................................................... 72 C. Final Relief ........................................................................................................................... 73 D. Contempt of Court ............................................................................................................... 73 Table of Cases ............................................................................................................................... 74

I. INTRODUCTION
A. THE RULES
Scope of FRCP- FRCP 1 o Govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81 (bankruptcy, immigration, admiralty, etc.). o Rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. These legal principles guide rules and decisions. One form of action- the civil action. FRCP 2 o Historical development- WritsModern system. Kings Courts Courts of Law o ONE FORM OF ACTION = trans-substantive civil procedure Rules were intended to be trans-substantive They would apply to all types of cases the same way Old rules had certain magic words for each writ After a while, people argue that certain types of claims may require different rules

B. THE SYSTEM- ADVERSARIAL

Common Law vs. Civil Law o Common Law = Minimum judicial intervention o Civil Law = Judge plays more active role, interrogates witnesses Two parties arguing before a neutral decision maker (judge and jury) o Judge= decides on matters relating to law o Jury= finder of fact Parties control the direction of the case (not the judge) o Bands Refuse v. Borough of Fairlawn A judge may not assume the role of advocate in a trial over which he presides Courts of Law vs. Courts of Equity o Courts of Equity Developed alongside courts of law to fill in gaps between writs Limits on equitable jurisdiction: No adequate remedy at law, Balancing of hardships, Defense of unclean hands (trusts), Injunctive or Declaratory Relief. o Remedies: 5

Law- Money judgments, recovery of specific property Equity- Equitable decrees, injunctions, specific performance of contracts, recission and reformation of contracts o Enforcement Judgments enforced through execution Equitable decrees enforced through contempt o Modes of trial Law- Judge or jury Equity- Judge, no jury

C. PROCEDURAL COMPLICATIONS
Subject Matter Jurisdiction o Federal courts: Limited jurisdiction to federal questions, i.e. violation of civil rights, Constitution, federal statutes. Complete Diversity jurisdiction (1) all s come from different states than all s (2) damages $75,000 State substantive law Federal procedural law i.e. Kothe v. Smith o State courts: General jurisdiction i.e. Bands Refuse Personal Jurisdiction o Can the be compelled to travel to the location chosen by the ? o Due process forbids personal jurisdiction unless has contacts in the state Federal vs. State Law o Federal: Diversity jurisdiction - use state substantive law but FRCP (procedural law) o State courts use state substantive and procedural law.

II. PLEADINGS
A. INTRODUCTION
1. PLEADINGS & FORM
FRCP 7 Pleadings o a complaint; o an answer to a complaint; o an answer to a counterclaim designated as a counterclaim; o an answer to a crossclaim; o a third-party complaint; o an answer to a third-party complaint; and o if the court orders one, a reply to an answer. FRCP 8 General Rules of Pleading FRCP 9 Rules of Pleading- Fraud or Mistake FRCP 10 Form of Pleadings FRCP 11 Signature and Sanctions The legal process begins with the exchange of papers that frame the issues to be decided o 3 stages (generally): Complaint Answer (21 days) Reply to the Answer

2. BACKGROUND FOR RULES

Common Law Highly technical form of actions o Plead it right, or its thrown out o Problems losing sight of the case What if theres more than one claim o Sacrifices justice for procedure. Code Pleading Moves away from rigid requirement of choosing one form of action o Field Code- Complaint needs to contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. o Plead the ultimate facts of the case CRITICISM- No clear line between evidence, conclusions, and ultimate facts 7

Generated motions over the wording of complaints o Gillispie v. Goodyear Service Stores Facts: alleges s employees harassed her. Trial Ct. accepted s demurrer for lack of claim Rule: A complaint cant merely state legal conclusions, it has to state the facts by which one could reach those legal conclusions. o Still used in some states- NY, Cal, NC, etc. Notice pleading Short and plain statement [FRCP 8] o FRCP 8(a)(2)- "Short and plain statement" showing that the pleader is entitled to relief. o Merges law and equity o Must plead enough facts to put opposing party on notice of the claim made by and the grounds upon which the claims rest. o Dominant pleading regime today- Federal regime and majority of states. o CRITICISM-The complaint may be so vague that it is difficult to determine what the is complaining about. RESPONSE- Other procedures such as discovery, summary judgment or pretrial conferences can sort it out. Code Pleading vs. Notice Pleading o Code- must state ULTIMATE FACTS o Notice: may make a GENERAL CLAIM FOR RELIEF

B. THE COMPLAINT
1. FORM OF PLEADINGS- LIBERAL CONSTRUCTION
FRCP 10 Form of Pleadings o General principle- Free Form o Paragraphs should be numbered o Paragraphs should cover only a single set of circumstances o Adoption by reference- For cross reference FRCP 8(d)(1) o Each allegation must be simple, concise and direct. Judicial Notice= Common issues that judges can accept as fact (e.g. Madison is the capitol of Wisconsin) Fed. R. Ev. 201(b) McCormick v. Kopmann o Facts: leaves a bar after drinking, is run off of the road by truck, and dies. sued truck driver AND tavern (alternatively) for caraccident death 8

o Rule: A complaint may contain inconsistent allegations, even though the proof of one negates any fault on the basis of another. The trial is supposed to be a fact-determining event. o FRCP 8(d)(2) & (3)- Permits alternative and inconsistent pleadings- BOTH COMPLAINTS and ANSWERS FRCP 11- Certification by signing o Pleadings made under FRCP 8 are subject to the rules governing signed representations to the court under FRCP 11. o When lawyers sign petitions, they allege: Theyre not harassing or delaying Not frivolous The allegations have factual evidence Any denials are based on evidence o Factual matters can be pleaded even though you are not certain of the facts o Sanctions are discretionary, not mandatory A motion for sanctions under Rule 11 REQUIRES A SEPARATE MOTION FRCP 11(c)(1)(A)- Safe Harbor protects a party from sanctions; s motion for sanctions may not be presented to court within 21 days after service (Rule 5) of motion to has 21 days to withdraw complaint o Rule 11 requires good faith on the part of the attorneys and parties o Rule 11 sanctions can be imposed on either the party, or counsel, or both Sanctions are NOT automatic / are meant for deterrence only Encourage payment of fees to court rather than to opponent 28 U.S.C.A. Section 1927 sanctions for unnecessarily and intentionally multiplying proceedings Zuk v. Eastern Penn o Facts: , psychologist, worked for for a time, during which he made videos of session. files copyright suit against . s attorney is sanctioned under FRCP 11 and 28 U.S.C.A. 1927. Attorney appeals. o Rule: Sanctions may not be imposed upon an attorney pursuant to 28 U.S.C.A. 1927 where the attorney fails to make a reasonably adequate inquiry into the facts and law before filing the lawsuit. Only if there is willful bad faith. 9

o However, a trial court can impose sanctions under Rule 11(c) when counsel fails to conduct a reasonably inquiry into the facts and into the law as required by Rule 11(b)(2).

2. SPECIFICITY
United States v. Board of Harbor Commissioners o Facts: Govt. alleges oil leaked into river. moves for more definite statement [12(e)]. o Rule: If Rule 8 requirements are met, 12(e) motion is inappropriate (DENIED). o Rationale: A complaint need not allege the specifics of the transaction of which complaint is made. FRCP 12(e) motion for more definite statement for unintelligibility, NOT usually for lack of detail o Pleading must be so vague and ambiguous that the party cannot reasonably prepare a response o IT IS A MOTION (7(b))- Must be made before responsive pleading, must point out defects complained of and details desired

3. THE COMPLAINT- FRCP 8(A)(2)

FRCP 8(a)(2)- short and plain statement Conley v. Gibson o All the rule requires is a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. o A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts to support his claim which would entitle him to relief. o THE CONLEY STANDARD IS NOW BEING NARROWED

4. EMPLOYMENT DISCRIMINATION - 8(A)(2)

Swierkiewicz v. Sorema o Facts: , Hungarian, filed employment discrimination suit against former employer, , pursuant to Title VII of Civil Rights Act and ADEA of 1967 . Ct. dismissed claim- lack off specificity, did not establish a prima facie case under McDonnell Douglas. o Rule: The complaint in an employment discrimination suit does not need to contain specific facts establishing a prima facie case under McDonnell Douglas.

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Rationale: The McDonnell Douglas test is an evidentiary burden, NOT a pleading burden. McDonnell Douglas v. Green- Evidentiary framework, NOT A PLEADING BURDEN o Membership in a protected group; o Qualification for the job in question; o Adverse employment action; o Circumstances to support an inference of discrimination. Title VII of the Civil Rights Act of 1964- prohibits discrimination by employers on the basis of race, color, religion, sex or national origin. Age Discrimination in Employment Act of 1967 (ADEA)- prohibits employment discrimination against anyone over the age of 40 years in the United States.

5. CURRENT APPLICATION OF 8(A)(2)

NO SET OF FACTS (Conley) Totality of the claim in the complaint must indicate a PLAUSIBLE CLAIM, which is BEYOND MERELY CONCEIVABLE. Bell Atlantic Corp. v. Twombly o Facts: Telephone and Internet subscribers, , allege Bell Atlantic, , violated antitrust laws. Dis. ct. dismissed and held that failed to state a claim. App. ct. reversed. The complaint alleged that the conspiracy was shown by their engaging in parallel conduct and not competing with each other in their markets. It also alleged that this conduct prevented new companies from competing against them. o Rule: In order for a complaint to survive dismissal on the pleadings, the complaint must include enough facts to state a claim to relief that is plausible on its face. The claim for relief in the complaint must indicate a plausible claim, which is beyond merely conceivable. o The ct. used a FRCP 8 standard, not the heightened standard (FRCP 9) o A literal reading of Conleys no set of facts would permit a wholly conclusory statement of a claim to survive a dispositive motion if it left open the possibility that a plaintiff may later discover facts to support recovery. Ashcroft v. Iqbal

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o Facts: Iqbal, , files claims against Ashcroft, , for his detention following Sept. 11. moved for dismissal for a lack of specificity. Dis. ct. found that the facts alleged in 's complaint were sufficient and denied s motion. App. ct. affirmed the dis. ct. o Rule: All civil claims are subject to the Twombly plausibility pleading standard. The court held that its decision in Twombly was not limited to pleadings made in the context of an antitrust dispute. Twombly expounded the pleading standard for all civil actions. Two-pronged approach Identify those pleadings that are mere conclusions, because those are not entitled to an assumption of truth; and Assume the veracity of the remaining wellpleaded factual allegations (if any), and then determine whether they plausibly give rise to an entitlement of relief. o CRITICISM- Iqbal provides scant additional guidance in interpreting the plausibility pleading standard, while leaving uncertain what it takes to nudge a claim from the conceivable to the plausible. must claim under FRCP 8(a): o caption (name of ct., parties, case no., title of action); o subject matter jurisdiction; o claim for relief (body in accordance with Twombly and Iqbal); o relief sought (prayer or demand). The rule is more worried about insufficiency in the pleading than excessive detail. When drafting a complaint: o Whos your audience? Defendant Judge o Tactical Considerations Too much detail gives the other side a lot to work with Lawyers write short sentences to prevent clausal denials o Remember Twombly and Iqbal!!! Heightened "plausibility" pleading standard that requires plaintiffs to provide greater factual development in their complaints in order to survive a Rule 12(b)(6) motion to dismiss. 12

It is not clear how significant Twombly will be in the long run, but at least for now, it seems to be encouraging 12(b)(6) motions to dismiss. Iqbal appeared to push Twombly even further, allowing district judges to determine bare and conclusory allegations not entitled to the assumption of truth

6. THE COMPLAINT- FRAUD OR MISTAKE- FRCP 9(B)

FRCP 9(b)- In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. o A complaint averring fraud must: State circumstances constituting fraud with particularity, Malice and knowledge can be alleged generally. o Tension in Rule 9(b) requires particularity permits a general averment of knowledge (even though KNOWLEDGE is required) o Must provide enough facts to create strong inference of knowledge Ross v. A. H. Robins Co. o Facts: Stockholders sue company for fraud, alleging they knew the Dalkon Shield was ineffective, but told the public it was. o Rule: Rule 9(b) states that averments of fraud have to be made with particularity. Rationale: This protects defendants from the harm their reputations will suffer. The court emphasizes 3 reasons for 9(b); raising the bar in pleading: Notice (fraud cases are more complicated, s require more notice) Injury to Reputation (Since fraud cases are more damaging to reputation, they require more in pleading) Limiting in terrorem (Prevent people using threat of suit as a means of extorting a settlement) Tellabs v. Mako Issues & Rights o Facts: Shareholders of Tellabs, , sue Tellabs, , under Private Securities Litigation Reform Act of 1995 (PSLRA), claiming 13

intentionally deceived investors about companys stock value. Dis. ct. dismisses claim without prejudice; amends; dis. ct. dismisses again with prejudice. App. ct. reversed. Securities: Negotiable Instrument representing financial value o Debt: e.g. banknotes or bonds o Equity: e.g. stocks, derivative contracts (futures, swaps) Important Concept: Efficient Market Hypothesis all material information about a security is reflected in its price Section 21(D)(b)(2) of the PLSRA requires that plaintiffs plead facts sufficient to support a strong inference that defendant acted with the required state of mind.=Scienter o Rule: Under the PSLRA, to qualify as strong within the intendment of 21D(b)[2], an inference of scienter must be found by a reasonable person to be cogent and at least as compelling as any opposing inference of non-fraudulent intent. Cash Energy v. Weiner (Toxic cleanup under CERCLA) o Facts: owns land adjacent to , who claims contaminated the area. seeks cleanup costs. moves to dismiss for failure to state a claim. o Rule: Court uses logic chain: 9(b) heightened pleading standards 8(e) courts discretion in the name of justice 12(e) requiring more information in complaint. Rationale: A higher standard of particularity of pleading will be required where a heightened concern for due process arises by reason of the drastic nature of the remedies sought. CERCLA (i.e.) is an area in which a higher standard of particularity can be required because it involves many of the circumstances that have led courts to invoke higher standards of specificity in other contexts: severe consequences of individual liability and expense. FRCP Rule (8)(e)- All pleadings shall be construed as to do substantial justice Leatherman v. Tarrant County Narcotics Unit o Facts: Civil rights cases about searches by Narco unit. Review of motions to dismiss.

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o Rule: Heightened pleading standards apply to fraud or mistake, NOT civil rights cases Frederico v. Home Depot o Facts: sues alleging fraud under N.J. Consumer Fraud Act because of truck rental charges. o Rule: 9(b) clearly applies to fraud claims not involving securities fraud.

C. SUFFICIENCY OF THE COMPLAINT- FRCP 12(B)(6)

FRCP 12(b)(6)- failure to state a claim upon which relief can be granted o All material facts well-pleaded in complaint must be taken to be true o Motion to dismiss- Filed before the answer o Dismiss the pleading in the light most favorable to the o If material outside the pleadings is presented to the court in support of this motion, then Rule 12(b)(6) is CONVERTED to Rule 56 summary judgment and all parties are given opportunity to present materials pertinent to a summary judgment motion Mitchell v. Archibald & Kendall, Inc. o Facts: sues b/c he was shot when he parked adjacent to d store. Dis. ct. dismisses for failure to state a claim. o Rule: A complaint failing to include facts constituting a cause of action may be dismissed under FRCP 12(b)(6).

D. DEFENDANTS RESPONSE
1. TIME- FRCP 6
FRCP 6 o Count Last Day, But Not the First o Every day counts (Saturdays, Sundays, Legal Holidays) o If Last Day is a Weekend or Holiday, The Deadline Is Extended to Next Working Day

2. PRE-ANSWER MOTIONS UNDER FRCP 12

FRCP 12(f)- Motion to strike: o redundant, immaterial, impertinent, or scandalous matter; or o an insufficient defense s possible responses o can do nothing o can file motions A pre-answer motion extends the time for filing an answer 15

Pre-answer motion IS NOT A PLEADING Rule 12 motions FRCP 12(c)/(e) AND FRCP 56: court MUST take all wellpleaded statements as true (in light most favorable to ) Pre-answer motions are found ONLY under Rule 12(b) FRCP 12(b): Defenses motions (7): 1. No jurisdiction over subject matter (no fed. question, no diversity, under $75K) o Procedural 2. No jurisdiction over defendant (no contacts with state or forum) o Procedural 3. Improper venue (right system, wrong court [east or west district]) o Procedural 4. Papers have a technical defect (summons and complaint something technically wrong (i.e. name, address)) o Procedural 5. Papers werent served properly (invalid delivery, served to minor or incompetent) o Procedural 6. Failure to state a claim thatll lead to relief (evidence is not legally sufficient) 7. Lacking necessary party (necessary party is absent) o Procedural If files a pre-answer motion w/in 21 days following service of summons and complaint, the deadline for filing the answer is extended. FRCP 12(a) o If ct. denies the motion, has 14 days from reception of denial to file an answer. o If ct. grants the motion, is usually granted leave to amend, or the suit is dismissed o If a 12(e) motion for a more definite statement is granted, has until 14 days after service of the amended complaint to file answer FRCP 12(g) & (h) Consolidation and Waiver Provisions o If a party makes a pre-answer motion, but omits on of the FRCP 12 defenses then available, it cannot make any further pre-answer motions. o 12(h)(1)- 4 disfavored defenses- lack of jurisdiction over person, improper venue, insufficiency of process, or insufficiency of service of process Waived forever from the answer if omitted from preanswer motion.

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o 12(h)(2)- 3 favored defenses- failure to state claim upon which relief can be granted, failure to join an indispensable party, failure to state legal defense to claim Can be made in any pleading, or by motion for judgment on pleadings, or at trial on merits. o 12(h)(3)- Most favored defense- lack of subject-matter jurisdiction Can be made at any time. Denton v. Hernandez o Facts: alleges he was raped in prison o Rule: Unlike, 12(b)(6), Court can dismiss cases in forma pauperis (indigent filers) to dismiss cases, when their factual allegations are frivolous 28 U.S.C. 1915(e)(2)

3. FAILURE TO ANSWER- DEFAULT FRCP 55

Failure To Answer o Why would you not answer? Suit cannot be enforced Never received process Need an extension to be able to fully answer Concede all the facts and want to avoid expenses of litigation (strategic move) FRCP 55 Default o Equitable balance b/n preference for trials on the merits and the judicial systems need for finality and efficiency in litigation o FRCP 55(a) When a party fails to plead or defend, the clerk enters a default o FRCP 55(b) Entry of Default/Default Judgment (1) By the Clerk Clerk of court can easily enter entry of default Clerk of court can RARELY enter judgment of default- only if a claim is liquidated: o a sum certain or a sum that can be made certain by computation, o must also show that sum is reasonable under circumstances o must have completely failed to appear, and not merely have defaulted after initial appearance (2) By the Court (either because judge can decide damages) o FRCP 55(c) Setting Aside a Default 17

For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). o Shepard Claims Service v. William Darrah Facts: Negligence (not culpable conduct) on the part of s counsel resulted in default judgment. Dis. ct. refused to set aside judgment obtained by due to s negligence. Rule: Where a will not be prejudiced and a meritorious defense is shown, a default should be set aside if it was the result of mere negligence. United Coin Meter v. Seaboard Coastline o Cases decided under Rule 55 must answer the following questions: Whether will be prejudiced Whether has a meritorious defense- only has to be good at law, doesnt have to be likely to succeed Whether culpable conduct is worse than mere negligence Discretion left to the judge whether or not to set aside an entry of default

4. THE ANSWER- FRCP 8 (21 DAYS)

responses to a complaint: o Answer (FRCP 8(b)) Admit, deny allegations, or lack sufficient knowledge o Affirmative defenses (FRCP 8(c)) If defense was NOT available to you within proper time you DO NOT lose it o Assert a counterclaim or cross-claims s have an obligation of reasonableness when answering a complaint. o David v. Crompton & Knowles Corp. Facts: Products liability; answered complaint by saying it didnt have enough info to answer. now seeks to change answer to a denial. Rule: Theres an obligation of reasonableness to find out facts before answering. Its not sufficient to not look for info and then say you dont have the info. A denial based on lack of information will be deemed an admission if the facts relevant to the issue are peculiarly within the denying partys 18

knowledge and control. (ALSO Mesirow v. Duggan) FRCP 8(b)- Requires to admit or deny all averments and ONLY claim lack of sufficient information if he is without adequate knowledge/information FRCP 11(b)(4) Denial of facts are warranted if based on the lack of information or belief Affirmative Defenses (FRCP 8(c)) o Modern equivalent of confession and avoidance; accepts as true what alleges, but offers a justification/excuse for the conduct o Rule 8(c) requires them to be set forth affirmatively. o 19 defenses (i.e. statute of limitations) listed in Rule 8(c) but it is not a comprehensive list o has burden of pleading and proof o If you fail to plead an affirmative defense, you lose the right to bring it up later in the trial o FRCP 15(a) Judge can permit a party to amend its pleading and add an omitted defense Counterclaims (FRCP 13) o FRCP 13(a)- Compulsory Counterclaims One that arises out of the same transaction or occurrence as s claim (related) You must raise this counterclaim in your answer b/c it cannot be raised in a later suit Res judicata applies if you fail to assert compulsory counterclaim (cant file claims piecemeal) Rule 13 Test - arises out of the same transaction or occurrence OR series of transactions or occurrences FOUR COMPULSORY COUNTERCLAIM TESTS: Same issues of fact and law Test Would res judicata bar s claim if s counterclaim was not compulsory? Logical Relationship Test- United Artists v. Masterpiece Substantially the Same Evidence Test- Bose v. Consumers Union o Easier to use. o FRCP 13(b)- Permissive Counterclaims 19

One that does not arise out of the same transaction or occurrence as s claim (not related) Can be raised in a later suit or counterclaim o If answer contains a counterclaim that is labeled as a counterclaim, a reply is required. (FRCP 7(a)) o Wigglesworth v. Teamsters Facts: sues for violation of free speech. counterclaims libel, slander and abuse of procedure. Rule: A counterclaim is not compulsory if it does not arise out of the same transaction or occurrence that forms the basis of the complaint. Permissive counterclaims are independent from claim and require separate jurisdictional analysis. Rationale: Test for transaction/occurrence: SAME EVIDENCE TEST; if it can be shown that the same evidence is needed to prove claim A and claim B, they should be pleaded at the same time (compulsory). Cross-Claims (FRCP 13) o Rule 13(g) permits a party to state a cross-claim against a co-party (i.e. one against another ) if it arises out of the same transaction that is the subject matter either of original action or of a counterclaim therein OR relating to any property thats the subject matter of original action I.e. - claims for contribution or indemnification o Rule 13(h) the addition of claims can result in addition of parties if they can be in accordance with Rule 19 and 20.

E. JUDGMENT ON THE PLEADINGS- FRCP 12(C)

FRCP 12(c)- Motion for judgment on the pleadings: used instead of 12(b)(6) or 12(b)(7) AFTER AN ANSWER HAS ALREADY BEEN FILED because the pleadings are closed Use Rule 56 if material outside pleadings was used

F. VOLUNTARY DISMISSAL- FRCP 41

Voluntary Dismissal- FRCP 41(a) o Should be limited to the early stages of litigation o FRCP 41(a)(1) (i) can voluntarily dismiss suit if it files notice before service of an answer or motion for summary judgment OR (ii) stipulation is signed by all parties 20

o FRCP 41(b)(2) exercise of judicial discretion in all other situations o may move to vacate notice for dismissal under Rule 60(b) for mistake, surprise, inadvertence, or excusable neglect, or on a showing of good cause. o may want a voluntary dismissal to avoid Rule 11 sanctions

G. AMENDMENTS TO PLEADINGS
Permission to Amend FRCP 15 o Courts have a liberal approach to amendments on ALL pleadings FRCP 15(a)- Amendments to pleadings o Amendments can be made once before a responsive pleading has been served o Or if no responsive pleading is permitted, within 21 days o Three ways: (1) as of right, (2) by leave of court, or (3) written consent of the adverse party o Rules: has rt. to amend ONCE before serves answer has rt. to amend ONCE w/in 21 days of filing answer If no rt. to amend, ct. will usually grant unless too much delay or prejudice. David v. Crompton & Knowles Corp. o Facts: Products liability case. wants to amend answer to say its not the right Defendant. o Rule: Amendments are allowed to the extent that they will prejudice the other party. If a party waits a lengthy period of time b/n discovery facts making an amendment appropriate and moving to amend, the motion may be denied. FRCP 15(b)- Amendments to conform to the evidence o Amendments will be made for issues not raised by the parties Variance: Evidence at trial does not match pleading (only relevant at trial) Other party may object to this- if there is no objection, evidence will be admitted o Objections must show prejudice o Trend is to allow amendments FRCP 15(c)- Relation-Back of Amendments o Permitting parties to amend pleadings that:

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Would normally be barred by statute of limitations- request to amend might cause SERIOUS PREJUDICE TO ONE PARTY The claim arises out of the same transaction (Same Parties) Bring in new partiesMUST SHOW: Arises out of same conduct, transaction, occurrence, Notice such that new parties will not be prejudiced in defense Party knew or should have known that the action would have been brought against them (w/in 120 days after filing), but for a mistake concerning the identity of the parties o Policy Arguments of Statute of Limitations Fading memories of witnesses Non-existent documents (companies retaining docs) Its desirable to give people repose Expeditious litigations Goodman v. Praxair o Facts: , Goodman, contends that breach of contract action against should not have been dismissed (12(b)(6)) because his amended complaint related back to date of original complaint. o Rules: An amended complaint may not be dismissed under Rule 12(b)(6) where it does not on its face show that it is barred by the statute of limitations. Under Rule 15(c), an amended complaint that adds a party as defendant relates back to the original complaint where the added party is a subsidiary of the originally named defendant, and where, even though the plaintiff was aware of the subsidiarys identity and name, the plaintiff was mistaken as to its status as a successor-in-interest. o Three requirements for Rule 15(c): Claim asserted in amended pleading must have arisen from transaction set forth in the original pleading; New must have received notice of the action within the limitations period; and

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New should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him. Krupski v. Costa Crociere S.p.A. o Facts: Passenger, , brought action against carrier, , to recover for injuries sustained while aboard cruise ship. Dist. ct. entered summary judgment in 's favor, holding that 's amendment of her complaint to correctly identify did not relate back to her original complaint. appealed. App. ct. affirmed. Certiorari was granted. o Rule: Relation back of amendment changing party or naming of party against whom claim is asserted depended on what party to be added knew or should have known, not on amending party's knowledge or timeliness in seeking to amend pleading, and amendment of passenger's complaint to correctly identify carrier related back to her original complaint. FRCP 15(d)- Permits supplemental pleading if events occur after filing of complaint that make it necessary (ex: injuries, getting fired so to create contract-breach issues, etc.) o Depends on how much NOTICE was given in pleadings

H. PROPER PARTY TO A SUIT

At Common Law, brought under the name of the person w/ legal title to the right asserted To be a plaintiff you must assert a LEGALLY RECOGNIZED INJURY Real Party in Interest FRCP 17(a)- Every action should be prosecuted in the name of the real party in interest. Subrogation substitution of one party for another whose debt the party pays, entitling the paying party to the rights that would otherwise belong to the debtor (i.e. insurance companies) Fictitious Names: o Southern Methodist Women v. Wynne and Jaffe Facts: Various s in a gender discrimination action under Title VII of the Civil Rights Act wished to proceed anonymously. Rule: Parties are named anonymously or fictitiously for a variety of reasons. Rarely will s be granted anonymity for reasons of privacy. Not under Title VII of the Civil rights Act.

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Fictitiously named s usually are anonymous due to lack of knowledge on the part of a as to their true identities. General rule- NAME the parties FRCP 10(a)- Requires the naming of parties because (1) must give s proper notice and (2) important for future application of res judicata (3) public pays for court system and thus has right to know names Exceptions: sensitive situation, prejudice, admission of illegal activity, etc.

I. JOINDER- FRCP 18, 19, 20

Joinder of Claims FRCP 18(a) o Rule 18(a) allows a party to join as many claims, legal, equitable, or maritime, as the party has against an opposing party. The claims need not even be related (consistent with Rule 13(a)) o It does not mean they will be tried together. Rule 18(a) is a pleading rule. o FRCP 42(b)- a court may sever unrelated claims and order separate trials Permissive Joinder of Parties FRCP 20(a) AND FRCP 13(b) (permissive counterclaims) o Applies both to the joinder of s and the joinder of s o Joinder of parties is more restricted than joinder of claims o If (1) claim arises out of the same transaction, occurrence, or series of transactions or occurrences AND (2) if any question of law OR fact common to all these persons will arise in the action. Required Joinder of Parties- FRCP 19 o 3 MAIN REQUIREMENTS: 1. Is presence of defendant necessary to action? (see 19(a) below for tests) a) Yes go to step 2 b) No proceedings continue without absent party 2. Is joinder of defendant feasible? a) YesCourt will require joinder b) NoGo to step 3 3. Can case proceed meaningfully and equitably without joinder? a) Yes Case continues without party 24

b) No Case dismissed for failure to join FEASIBLE = can court assert personal jurisdiction? In context of Rule 12(b)(7) failure to join an indispensable party Action could not proceed if persons with joint interests were not joined unless they were not indispensable FRCP 19(a) - necessary Is the presence of the D necessary to the action? Is the joinder of the D feasible? 19(a)(1) Can complete relief be afforded in the partys absence? 19(a)(2) Will the persons absence (1) impair a persons ability to protect its interest (2) leave a person subject to incurring multiple obligations? FRCP 19(b) indispensable I.e. if the party is necessary but cannot be joined because of it would destroy diversity, then court considers 19(b) Can the case proceed without the joinder?

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III. DISCOVERY
A. DISCOVERY IN FRCP
Goals of Discovery o Get away from trial by surprise (the Perry Mason Moment) o Formulate the issues / simplifying (claims may later be dropped, based on discovery) o Promote settlement o Preservation of evidence (if a witness leaves the county, dies, etc.) o Leveling off of resource limitations (big corp. v. little guy) Negatives of Discovery o Expense (most cases, this is the largest expense) o Brings out a lot of info (bad, humiliating, etc.) o Can be over-broad FRCP 16 Pretrial Hearing FRCP 26 Discovery o FRCP 26(a) Mandates certain required initial disclosures Initial disclosure Disclosure of experts Pretrial disclosure o FRCP 26(b)(1) Provides a broad scope of discovery FRCP 27 through 35 outline discovery devices FRCP 37 Motion to compel discovery

B. DISCOVERY DEVICES
1. LIST OF DEVICES
Initial Disclosure FRCP 26(a)(1) o Provide the basic information all parties need Depositions FRCP 30 and 31 o Used in significant part for summary judgment motions and at trial Interrogatories FRCP 33 o Seek basic additional factual information Document Inspection FRCP 34 o Problem is to describe documents with sufficient specificity Physical or Mental Examination FRCP 35 Requests for Admission FRCP 36

2. INITIAL DISCLOSURE- FRCP 26(A)

Changes to the rule: 26

o 1983 rule- discovery should only be served when it is reasonably calculated to lead to the discovery of evidence both admissible and sufficiently significant to justify the burdens on both the serving and responding parties. o 1993 rule- relevant to disputed facts alleged with particularity in the pleadings. (w/ jurisdictional opt-out) o 2000 rule- material that the disclosing party may use to support its claims or defenses. (court-by-court opt-out) Party must disclose witnesses and documents it may use to support its claims or defenses. FRCP 11s safe harbor provision may prompt parties to reveal the strengths of their case to persuade the other side to drop a claim or defense. FRCP 37(c)(1) forbids use of materials that were not disclosed Applies only to supportive, not harmful, evidence Disclosure Required at or Within 14 Days After the Discovery Conference Things that have to be disclosed: o Name and address of anybody likely to have discoverable info. o Copies of documents, data compilations, and tangible things. o Computation of damages o Insurance agreements In re Convergent Technologies o Facts: In a large securities litigation, over 1,000 contention interrogatories were served upon s asking them to specify all evidence that they had in support of their allegations. The dispute became bitter and a motion to compel was filed. o Rule: The pretrial discovery process should be self-executing and have minimal judicial intervention. Parties involved should fully to ease the process. Good faith and common sense required in discovery Discover must lead to admissible and useful evidence. FRCP 26(a)(2)- Requires Disclosure of Expert Testimony 90 Days Before Trial FRCP 26(a)(3)- Requires Final Disclosure of All Witnesses and Documents 30 Days Before Trial

3. DEPOSITIONS- FRCP 30 & 31

Most expensive discovery device and most powerful of the discovery procedures Characteristics of depositions 27

o Usually taken in a lawyers office, with both lawyers and court reporter attending. o Taken of parties or non-parties Documents Subpoena duces tecum (subpoena for production of evidence before ct.) Subpoena required for nonparties Notice is sufficient for parties o Lawyers ask questions, which can be adapted based on previous responses o Parties dont object incessantly FRCP 30 Depositions Upon Oral Examination o FRCP 30(a)(2)(A)- Limits the number to 10 o FRCP 30(b)(1)- Reasonable notice for deponents under o FRCP 30(b)(5)- Document requests under o FRCP 30(d)(1)- One day of seven hours FRCP 31 Depositions Upon Written Questions o Deposition with Ct. reporter reading written questions prepared by lawyer. FRCP 27(a) authorizes deposition before suit FRCP 37 Failure to appear Sanctions Witness testifies under oath Lawyer can instruct witness not to answer ONLY IF: o Preserve privilege- The question seeks privileged information. o Enforce discovery limitation set by judge o Permit motion for protective order A lawyer should never whisper to the witness while the witness is testifying FRCP 30(e)- Once the Deposition is Completed, the Court Reporter Transcribes It and the Witness Has the Opportunity to Review and Sign It. FRCP 30(f)- Then the Court Reporter Certifies and Files the Deposition With the Court or Sends It to the Attorney Who Took the Deposition Other Parties Can Get Copies FRCP 32- Use of depositions in trial o Deposition is admissible if: It is the deposition of a party For impeachment of a nonparty The witness is unavailable o FRCP 32(d)- Waiver of objections

4. INTERROGATORIES - FRCP 33
28

Permits any party to send written questions to another party that must be answered under oath (CANNOT send interrogatories to non-party) Strengths o Useful for identifying witnesses, location of documents, precise info o May be useful for small against large, corporate Problems o Questions may be easy to write, but very burdensome to answer. (Rules responded by limiting to 25. However, a party may use subquestions.) o Lawyers tend to answer the questions, so they tend to reveal very little info. o Interrogatories are bad at getting useful info for litigation (i.e. narrative info) o Questions cant be tailored to responses. FRCP 33(a)- limits the number to 25/party absent stipulation or court order FRCP 33(c) Contention interrogatories, i.e. Convergent Technologies o Questions are not improper merely because they seek an opinion o Often used by as predicate for summary judgment motion as proof that has inadequate evidence to sustain case FRCP 33(d) - Authorizes production of documents in lieu of answer to an interrogatory that calls for a compilation of records

5. DOCUMENT INSPECTION- FRCP 34

Permits parties to demand an opportunity to inspect and copy documents and other tangible things possessed by other parties (for nonparties, use FRCP 45) Documents in the adverse partys possession, custody, or control o Document retention policies Electronic Discovery o Produce in the order kept in the normal course o According to category Parties have 30 days to respond FRCP 26(a)(1)(B) - Parties must disclose pertinent info about documents before formal discovery begins FRCP 45 subpoena a nonparty to provide documents

6. PHYSICAL OR MENTAL EXAMINATION - FRCP 35

29

When the mental or physical condition of a party is in controversy a court may order the person to submit to an examination by a suitably licensed or certified examiner. ONLY discovery tool for which stipulation or court approval is necessary The court may specify the time and place Two Requirements: o Good cause shown o In controversy Essential in most personal injury cases, but also very intrusive

7. REQUESTS FOR ADMISSIONS- FRCP 36

Permits any party to send requests to any other party asking for an admission of the truth of any matter within the scope of Rule 26(b) Deemed conclusively established for the litigation at hand Must answer w/in 30 days If not denied admitted Responding party must admit, deny, object, or give reasons why it cannot admit or deny May be used in conjunction with interrogatories

8. DISCOVERY CONSIDERATIONS
Protective Orders o FRCP 26(c)- Authorizes the Trial Court to Regulate Discovery o Commonly used to protect confidential information such as trade secrets or customer lists o May also be used for payment of travel expenses, etc. o These may be arranged pursuant to stipulation. For example, a confidentiality order may be a part of the settlement of a products liability case Discovery from Non-Parties o More limited than discovery from parties o Not subject to interrogatories or examinations o FRCP 45 allows discovery from nonparties comparable to party discovery under: Rule 30 (depositions) and Rule 34 (document requests) through subpoenas o FRCP 45(c) requires that parties avoid unfairly burdening nonparties and alert them in the subpoena itself to the right to seek a protective order. o May require party to reimburse nonparty for costs of responding. 30

Discovery from Corporate Parties o Use interrogatories to identify the person who has knowledge about the matter o FRCP 30(b)(6) permits a party to notice a deposition of a corporation, whether or not a party, with a description of the matters to be covered, and to require the organization to designate a person able to answer questions on that subject When a party can refuse discovery requests? o Information is privileged Attorney-Client Spousal Physician-Patient Clergy-Penitent Psychotherapist-Patient o Attorney work product o Information is burdensome o Transnational litigation information Discovery Sequence/Tactics o Must start with Initial Disclosure o FRCP 26(d) moratorium requires that formal discovery await the discovery conference under FRCP 26(f). o FRCP 26(f) Discovery meetings may be used to hand tailor discovery procedures for the particular case o Many lawyers have a routine procedure o One device may lay the groundwork for another device o FRCP 26(g) Certification Requirement for Discovery Admissibility at Trial o Documents are not admissible unless authenticated o FRCP 32(a) use of depositions at trial Discovery Disputes o FRCP 37 Motion to compel discovery Preservation of Evidence o Failure to keep items can lead to sanctions for spoliation o Desire to suppress evidence can lead to criminal sanctions Duty to Supplement o FRCP 26(e) provides that whenever the response is in some material respect incomplete or incorrect, the response must be supplemented o FRCP 37(c)(1) - Failure to supplement is subject to sanctions.

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C. SCOPE AND LIMITS OF DISCOVERY- FRCP 26(B)

1. FRCP 26(B) DISCOVERY SCOPE AND LIMITS
Key issue is RELEVANCE reasonably calculated to lead to admissible evidence o Relevant to the claim or defense of any party o Claims and defenses are based on the pleadings o Information does not have to be admissible if it appears reasonably calculated to lead to the discovery of admissible evidence o Broader than admissibility at trial (liberal discovery) A party may only obtain documents prepared in anticipation of litigation if it can show that it has: o Substantial need in preparation of its case; and o Unable to get an equivalent without undue hardship. Davis v. Ross o Facts: Davis, , a former employee of , Ross, sued for libelous letter. sought info. on: s net worth and income; Fees paid to s attorneys (one of whom was a witness in the case); Names of other employees who complained about sought to compel discovery on s psych. treatment o Rule: Information on a defendants net worth may not be discovered until a after verdict awarding punitive damages is made. Where mental or physical condition is at issue, the physician-patient privilege is waived and relevant evidence is discoverable ( claimed mental anguish). If the issue is whether Ross libeled Davis, the information sought MUST bear on that question. Names of other employees is NOT discoverable. Legal fees may NOT be discovered for determining attys bias or credibility where atty is witness in case where client is . FRCP 37: specifies range of available sanctions Coca Cola Bottling v. Coca Cola o Facts: , Bottling Co., seeks to compel to turn over Cokes formula (trade secret) 32

o Rule: will be foreclosed from presenting their claim if they cannot discover the formula. The public harm that can come from this discovery is great due to public disclosure. However, all harm can be virtually eliminated with stringent protective orders. PRIVACY o FRCP 26(a)(1)(D) requires disclosure of insurance policies o Protective orders, i.e. trade secrets like Coca Cola formula o Physician-patient privilege o There is distinction between what is discoverable (easier) and what is admissible (harder)

2. LIMITS- FRCP 26(B)(2)(C)

Judges directed to limit frequency and extent of discovery where certain conditions are met o Discovery is unreasonably cumulative or duplicative or can be more easily obtained elsewhere o The party seeking discovery has already had ample opportunity to obtain the information The discovery requested is more burdensome than its likely benefit Kozlowski v. Sears o Facts: Sears, , refused to produce records about flammable pajamas because it claimed that their indexing system made it too difficult. offered to allow s attorney to search. o Rule: If difficulty in locating records is the fault of the party requested to produce, then production will not be excused. FRCP 34 says that a party must show some sufficient reason why discovery should not be allowed To allow a defendant whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules. FRCP 34(b) o If a party requested to produce documents objects to the request, it must show why discovery should not be allowed o Responding party can organize the documents in accordance with the requests or provide them as they are kept in the usual course of business FRCP 34(c) - you can provide discovery documents EITHER (1) in the form you keep them; OR (2) in the form the requesting parties wants them 33

FRCP 33(d) look at my files option; this is permitted ONLY IF the burden incurred by the other side is no greater than the burden you would incur to locate the documents

3. ELECTRONIC DISCOVERY
McPeek v. Ashcroft o Facts: , an employee of DOJ, , filed sexual harassment suit that settled. did not allegedly adhere to the settlement. attempted to force to search hard-drive backup tapes for relevant evidence. said that potential costs outweighed utility, and attempted to avoid compliance. o Rule: The marginal utility approach to discovery is appropriate by which likely relevant evidence in digital format may be produced at the responding partys request, and no production is necessary if relevant evidence is not likely to be found. Balancing the utility of the information sought against the cost of the information. If the cost of producing the additional information exceeds the value/relevancy of the information, then the cost of producing the information should be shifted to the party requesting the information Fee-shifting to the requesting party (7 factor test in Zubulake v. UBS Warburg) The extent which request is specifically tailored to discover relevant info.; The availability of such info. from other sources; Total cost of production vs. the amount in controversy; Cost of production vs. resources available to parties; Relative ability of each party to control costs and incentive to do so; Importance of issue at stake; Relative benefits of obtaining the info. Must balance broad scope of discovery (FRCP 26(b)(1)) with cost-consciousness of FRCP 26(b)(2) o Cost-shifting would be to detriment of private individuals seeking discovery from large corps. Requiring good faith on part of parties is a good compromise. Over 90% of business info is created electronically and never printed out Paper does not include metadata or embedded data 34

It is likely that the parties seeking discovery will prefer electronically stored information that can be electronically searched. FRCP 34 does NOT have a look at my files option like FRCP 33(d) Five Categories of Inaccessible Material: o Active, online data (readily accessed) o Near-line data (quickly accessible) o Offline storage/archives (takes hours/days to access) o Backup tapes (not organized for archival use) o Erased, fragmented, damaged data

D. EXEMPTIONS FROM DISCOVERY

1. ATTORNEY WORK PRODUCT- FRCP 26(B)(3)
This Doctrine Protects a Lawyers Privacy in Connection With Trial Preparation 3 Aspects to Work Product Protection o FRCP. 26(b)(3)(A)- Trial Preparation Materials o FRCP 26(b)(3)(B)- Attorney Mental Impressions o FRCP 26(b)(4)- Expert Work Product These provisions were added to FRCP 26 in 1970 (Before these provisions were added, there was Hickman). Hickman v. Taylor o Facts: Tug boat sinks, five sailors killed. In preparation of litigation, tug companys lawyer interviews survivors. Later, during discovery, s lawyer requests info on the interviews. o Rule: Material obtained by counsel in preparation of litigation is the work product of the lawyer, and while such material is not protected by the attorney-client privilege, it is not discoverable on the mere demand without a showing of necessity or justification. To supersede attorney-client privilege, you need to show hardship and prejudice. Work-Product is otherwise protected. FRCP 26(b)(3) was added to deal with the discovery of work product Does NOT have to be created by attorney Available only if material is produced in anticipation of litigation o Does not cover materials prepared in the ordinary course of business Preserves an element of surprise for trial and effectiveness of impeachment evidence 35

PROTECTIVE ORDER: an order that prevents the disclosure of sensitive information except to certain individuals under certain conditions. FRCP. 26(b)(3)(A)- Qualified Protection for Ordinary Work Product o Ordinary Work Product = Trial preparation materials o If the information is RELEVANT (information must be NEEDED) and otherwise UNAVAILABLE, then it may be discoverable. o Can be overcome by 1) substantial need; OR 2) info not otherwise available. FRCP 26(b)(3)(B)- Absolute Protection for: Mental impressions, conclusions, opinions, and legal theories of attorney. o Otherwise discoverable documents, will not be discoverable if the reveal the lawyers thoughts (e.g. interoffice memos for opposing counsel).

2. ATTORNEY-CLIENT PRIVILEGE- FRCP 26(B)(5)(A)

FRCP 26(b)(5)(A) Information withheld by claim of privilege Confidential communications between lawyer and client in which the client seeks legal advice Promotes full disclosure by the client to the lawyer Privilege does not apply to instances of communication between the attorney and a third party. Absolute bar to discovery Elements of the Attorney-Client Privilege: o Legal advice is sought, o From a professional legal advisor in his capacity as such, o The communications relating to that purpose, o Made in confidence o By the client o Are at this instance permanently protected, o From disclosure by himself or by the legal advisor. Upjohn v. United States o Facts: Foreign subsidiary of Upjohn, , made illegal payments to foreign governments. voluntarily submitted forms with SEC and IRS to disclose payments. s general counsel had a previously sent out a questionnaire about the payments. IRS is now requesting those questionnaires. declines b/c of Atty-Client Privilege and work-product. Court of app. creates the Control Group Test, where those who control the company are the clients for purposes of the attorney-client privilege. 36

o Rule: Sup. Ct. overruled Control Group Test for federal courts. But it was not clear about the standard that replaced the control group test. Employee communications are subject to the attorneyclient privilege if they are made to counsel at the direction of superiors for the purpose of obtaining legal advice Employees communications are protected if The info provided is needed to supply the basis for legal advice The info concerns matters within the scope of the employees duties The employees know that they are being questioned so that the corporation can obtain legal advice The employees understand that the communications are confidential The court also mentions that the information was not available from upper-level management Policy behind the attorney-client privilege: o Encourage full disclosure from the client o Protect confidential communications b/n the attorney and the client in connection with legal services

3. EXPERT WITNESSES- FRCP 26(B)(4)

Two types of witnesses o Fact witnesses Can only speak to personal knowledge or personal observation, CANNOT give opinions o Expert witnesses Experts can give opinions, conclusions based on the facts Experts have to be qualified (training, credentials, etc.) Two types of experts: Testifying Non-testifying o Get preview of opinion before retaining expert Testifying experts o The identity of persons you intend to call as witnesses, plus whatever research reports they put together, fall under FRCP 26 initial disclosure o FRCP 26(b)(4)(A) allows for interrogatory discovery of experts expected to be called at trial The primary purpose is to permit the opposing party to prepare an effective cross-examination. 37

o FRCP 37(c)(1) - opinions that should have been disclosed but were not should be excluded from trial o FRCP 26(b)(4)(C) the court shall require that the requesting party pay the expert a reasonable fee for time spent in responding to discovery o FRCP 26(a)(2)- Information that can be discovered about experts Virtually the entire direct testimony Opinions that will be expressed Facts that expert testimony is based upon All exhibits All publications by the expert for the last ten years List of all cases in which the expert testified for the last four years Compensation o Look at Fed. R. Evid. 702, 703, and 705. Non-testifying experts o Less need for discovery from experts who will not testify at trial o Informal consultation is not subject to discovery o Discovery only in exceptional circumstances In Re Shell Oil Refinery o Facts: wants info from s in-house experts. Question turns on whether theyre primarily considered litigation assistance. o Rule: The facts known and opinions held by non-testifying experts who are retained or specifically employed in anticipation of litigation or preparation for trial are subject to discovery only in exceptional circumstances. This rule protects trial strategy and prevents one party from having a free ride at the expense of the other party You are not entitled to discover the evidence from this person, UNLESS you can show exceptional circumstance Equipment needed for tests is destroyed or unavailable. It is impossible for a party to obtain its own expert

E. INVESTIGATION
Interviews o Interviews can be conducted without notice to the adverse party o Much more flexible that discovery o Transcripts are not subject to discovery o Not subject to provisions of FRCP 38

o Interviews can compel attorneys to take depositions Rules of professional responsibility forbid a lawyer to talk to an opposing party who is represented by counsel unless the partys lawyer consents Corley v. Rosewood Care Ctr. o Facts: sues under RICO Act. interviewed witnesses (under oath w/ ct. reporter) who participated voluntarily. asks dis. ct. for protective order and to treat interviews as depositions. App. ct. reverses. o Rule: Counsel may choose to take sworn statements from individuals having knowledge of the claims or defenses at issue. Witness statements may include a stenographic, mechanical, electrical, or other recording.

F. SANCTIONS
FRCP 37(c)(1) The court may impose sanctions for the failure of the initial disclosure and will not permit the evidence at trial If you do not provide discovery, and there is no substantial justification for it, the court is REQUIRED to shift the cost of obtaining the discovery and the attorneys fees Cine Forty-Second Street Theatre v. Allied Artists o Facts: engaged in repeated and willful noncompliance with ct.s orders regarding answering s interrogatories. Case is ultimately dismissed. o Rule: Grossly negligent failure to obey order compelling discovery is sufficient to justify severest disciplinary measures under Rule 37. Spectrum of sanctions o Reimburse the opposing party for expenses o Strike or dismiss any or all of that parts claim or defense, preclude the introduction of evidence, or hold certain facts to be established o Hold in criminal contempt o Orders of dismissal and default judgment Threefold purpose o Preclusionary orders ensure that a party will not be able to profit from its own failure to comply o Specific deterrents and seek to secure compliance with the particular order at hand o General deterrent effect on this case and others, provided that the party on whom they are imposed is at fault Due process- fault should be found before sanctions are imposed 39

Courts have held that FRCP 37 sanctions should not be used when it is established that failure was due to inability, and NOT to willfulness, bad faith, or any fault of plaintiff. Multifactor tests to determine level of fault for ultimate sanctions o Publics interest in expeditious resolution of litigation o The courts need to manage its docket o The risk of prejudice to the opposing party o The public policy favoring disposition of cases on the merits o The availability of less drastic sanctions FRCP 37(a), (f) Light Sanctions o Failure: To make a mandatory disclosure under FRCP 26(a) To answer a question at a deposition To answer an interrogatory Of a party to produce documents under FRCP 34 Participate in a discovery plan in good faith FRCP 37(a)(4)- an evasive or incomplete response is a failure to respond o Remedy Provided: Motion to compel a response The ct. must require payment of reasonable attorney fees Discussed in advisory notes o FRCP 37(a)(1) Meet and confer requirement FRCP 37(b),(d),(c)(1) Heavy Sanctions o FRCP 37(b) Failure to comply w/ a ct. order o FRCP 37(d), (c)(1) Failure: Of a party to attend a deposition To serve answers to interrogatories To respond to a request for production To make mandatory disclosures under FRCP 26(a) Not merely an incomplete response- Complete failure is required o Sanctions Available Order that particular facts are established for purposes of the action Order prohibiting party from opposing certain evidence Judgment by default or dismissal of the action (Capital Punishment) Contempt for disobedience of ct. orders Reasonable attorney fees For FRCP 37(c)(1)- Inform jury of failure to disclose 40

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IV. SUMMARY JUDGMENT- FRCP 56

A. DISPOSITIVE MOTIONS
FRCP 12(b)(6) Failure to State a Claim on which Relief Can Be Granted FRCP 12(c) Judgment on the Pleadings (only after an answer) FRCP 56 Summary Judgment o Applicable when material obtained through discovery is the basis of the motion. You rely on more than the pleadings. Pleadings are only relevant, not evidence (b/c not signed under oath). Thus, if did not deny something, it is admitted and can be used for summary judgment. o Different from directed verdict because it is a pre-trial motion. o FRCP 56(c) NO GENUINE DISPUTE AS TO ANY MATERIAL FACT. Either party may win a case prior to trial by demonstrating that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law Rule 56(f) = a motion for summary judgment will be delayed if an opposing party has not been able to complete discovery o Chibundu: Rule 56 requires moving part not simply to produce evidence but to prove that opponent is not entitled to judgment and cannot succeed at all (such that all material evidence that could conceivably create a material issue of fact must be negated) Test: Look at all the evidence and ask: is there a material issue of fact in dispute? If no summary judgment ok FRCP 50 Judgment of a Matter of Law (JNOV / DIRECTED VERDICT) o The effect of directing the verdict is simply to take the case out of the juries hands. o At trial, party who does not have burden of production may, at close of opponents case, move for JMOL without presenting any evidence of his own. o Court will inquire whether evidence met burden of production (whether a finder of fact could reasonably find for that party on the basis of the evidence presented)

B. BURDEN SHIFTING IN SUMMARY JUDGMENT

Burden of Proof o Burden of persuasion o Burden of production

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A party may shift his burden of production by presenting enough evidence that a reasonable finder of fact MUST find for him. The burden is on moving party to negate every possible theory. Must show that under no conceivable set of facts, given evidence you had, could nonmoving party prevail. BURDEN IS LOWER IF IS REQUESTING SUMMARY JUDGMENT Adickes v. S.H. Kress Co. o Facts: Civil rights action 1983. , Adickes, sues after she is refused service. claims conspiracy b/n police and restaurant because she is accompanied by African Americans. Summ. judgment granted when could not produce evidence to support a conspiracy. o Rule: In an action based on conspiracy, summary judgment may not be granted unless a defendant can show that no evidence thereof exists. overcomes s motion for summary judgment by pointing out evidentiary gaps in the motion must make compelling showing to obtain summary judgment RULE WAS MODIFIED IN CELOTEX- Not overruled The Adickes case made it difficult to get summary judgment Three basic approaches o Traditional approach- movant who does not have burden of production at trial must establish truth of his position and shift burden of production to non-movant o Professor Louis approach- movant who does not have burden of production at trial must only meet a burden of production OR demonstrate absence of proof of an essential element o Professor Curries approach- treat SJ the same as a directed verdict, imposing no burden whatsoever on movant who would not have burden of production at trial Celotex Corp. v. Catrett o Facts: Catrett, , sues Celotex, , for death of her husband as a result of exposure to asbestos. moves for sum. judgment, contending that failed to identify, in answering interrogatories specifically requesting such info., any witnesses who could testify about the decedents exposure to s asbestos. o Rule: Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial. 43

Louis approach. o THE SUPREME CT. DID NOT OVERRULE ADICKES- How can they be reconciled? They focused on two different questionsThey deal with two different methods by which a moving party can acrry its initial burden of production. Central question in Adickes was whether moving party had carried its initial burden of production by producing affirmative evidence negating an essential element of nonmoving partys claim. Central question in Celotex was whether the moving party had carried its initial burden of production by showing that the nonmoving party did not have enough evidence to carry its ultimate burden of persuasion at trial. Where neither party could prove either the affirmative or the negative of an essential element of the claim Celotex is important in 2 ways: o Celotex integrates the burden of proof borne by the parties at trial with the corresponding burdens on a sum. judgment motion. o Celotex hints at a larger, more significant role for summary judgment in deciding cases What is the moving partys burden? o Only to inform the ct. of its motion and identify the portions of the pleadings, etc. that it believes demonstrate the absence of a genuine issue of material fact. Anderson v. Liberty Lobby o Facts: Libel action by public figure against a newspaper columnist. o Rule: Under the applicable law of libel, at trial would have the burden of proving Actual Malice with convincing clarity. Higher standard than the preponderance of evidence. The burden of persuasion raises the burden of production. Matsushita v. Zenith o Facts: Civil conspiracy action by Zenith, , against the Japanese electronics industry, . alleged a conspiracy to drive the American companies out of business by selling products below cost. o Rule: When the claims are implausible and make no economic sense, s must offer more persuasive evidence to support their claims than otherwise would be necessary. Neither s' pricing policies, their conduct in the Japanese market, nor their agreements respecting prices and distribution in the American market sufficed to create a genuine issue for trial under Rule 56(e). 44

C. DETERMINING THE APPROPRIATE STANDARD OF PROOF

Arnstein v. Porter o Facts: Arnstein, , appealed a summ. judgment for Porter, , who alleged, had stolen tunes for several popular songs had written. o Rule: Where credibility of the parties is crucial, summary judgment is improper and a trial indispensable. Dyer v. MacDougall o Facts: Dyer, , filed a complaint against MacDougall, . Four counts of slander and libel. presented affidavits of purported witnesses in which they denied hearing utterances. Two of the four counts were dismissed. appealed, arguing he could still bring demeanor evidence before the jury. o Rule: A directed verdict against a is appropriate where all of s witnesses deny the allegation of the complaint. Demeanor evidence o A jury is expected to take into consideration all the sense impressions they get from a witness. o Nothing in the law says that juries are not entitled to lend credence to characteristics of testifying witnesses o HOWEVER Mannerisms that people tend to associate with lying are characteristics of people who are simply nervous Many witnesses are nervous about testifying, and it may be that some liars are not nervous about lying. Some psychological research indicates that people are not effective at detecting lies from observing the speaker. Summary judgment is inappropriate in cases raising issues of state of mind Slightest doubt test (super criticized)- A litigant has the right to a trial where there is the slightest doubt as to the facts. o Superseded (by Matsushita), demanding non-movant make a stronger evidentiary showing- do more than show a metaphysical doubt as to material facts. FRCP 56(e) enables a party who believes there is no genuine dispute as to a specific fact essential to the other sides case to demand at least one sworn averment of the fact before the lengthy process of litigation begins.

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V. PRE-TRIAL CONFERENCES
A. PRETRIAL CONFERENCES - FRCP 16
Ct. may order the attorneys and any unrepresented parties to appear for one or more pretrial conference for such purposes as: o Expediting disposition of the action o Establishing early and continuing control Types of pretrial conferences: o Scheduling or status conferences early in the case FRCP 16(b) Within 120 Days of service on the defendant (or 90 days after any defendant has appeared) At conclusion, judges and attorneys fill out order to set deadlines for the rest of the case o Final pretrial conferences FRCP 16(e) Held close to trial Purpose is to formulate a plan for trial Pretrial order Order may be modified only to Prevent Manifest Injustice o Settlement conferences Early settlements: o Eliminates precedent o Shut out public scrutiny o Reduce Accountability o Peace doesnt equal Justice FRCP 16 is supplemented by local federal ct. rules Heileman Brewing Co. v. Joseph Oat Corp. o Facts: Joseph Oat, , represented by counsel, disobeyed a ct. order to send a corporate representative to a ct. hearing, and was sanctioned. o Rule: A dis. ct. may order litigants represented by counsel to appear at a pretrial conference to discuss settlement. Judicial activism/intervention in the adversarial system However, circumstances could arise in which requiring a corporate rep. to appear might be onerous, unproductive, expensive in relation to claim Abuse of discretion Settlement Devices o Growing efforts by both federal and state courts to encourage settlement through third parties o Devices 46

Mediation Early Neutral Evaluation Court-Annexed Arbitration Summary Jury Trial Mini-Trial

B. INCENTIVES TO SETTLE- SHIFTING FEES & COSTS

Terminology o American Rule - each party pays their own legal fees It would restrict access to ct. if had to pay s attorney fees if the lost Rule is subject to exceptions o English Rule - loser pays winners attorney fees Winner is not fully compensated if winner has to pay any attorney fees o Pooling Insurance (we all pay the premium, they cover the attys fees) o Contingency Fees The fee is a % of the judgment. Its a kind of pooling, because the winning cases subsidize the losing ones. o Fee Shifting Making the losing party pay the legal costs. FRCP 68- an incentive to settle o can make offer of settlement to o If refuses and the judgment is less than the settlement offer, is entitled to costs incurred after the making of the offer o This provision is important in civil rights cases, where costs include attorney fees FRCP 54(d) Unless a federal statute, these rules, or a court order provides otherwise, costs other than attorneys fees should be allowed to the prevailing party. Federal attorney fee statutes: o 42 U.S.C. 1988 o 42 U.S.C. 1983 o 28 U.S.C. 2412 Marek v. Chesny o Facts: Chesny, , refused a settlement offer ($100,000) in a 1983 claim and was awarded less at trial ($60,000 + $32,000 in attorneys fees). 47

o Rule: Attorneys fees incurred by subsequent to an offer of settlement will not be paid when recovers less than the offer. Reads attorneys fee language from 42 U.S.C. 1988 into costs language of Rule 68 Complicates attorney-client relationship in civil rights cases Venegas v. Mitchell o Facts: Civil rights case, s attorney had a 40% contingency fee agreement in a civil rights case. recovered a judgment for $ 2.08 Million. s attorney then sought fees under 42 U.S.C. 1988 and was awarded $ 117,000. o Rule: 42 USC 1988 permits reasonable fees to winner, but doesnt preclude a party from contracting a higher rate to secure counsel of his choice. Attorney was entitled to enforce the agreement. The award under 42 U.S.C. 1988 goes to the client, not the attorney. Interest- 28 U.S.C. 1961 o Interest is yield on 1 year US treasury bills

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VI. TRIAL
A. PHASES OF A TRIAL
Jury Selection o Questioning of jurors about possible biases or acquaintances with the parties or issues of the suit o Jurors must be completely ignorant of suit Opening Statements o Provides a roadmap for the trial; links together the disjointed evidence that will be presented at trial o NOT EVIDENCE IN ITSELF Presentation of Evidence o begins with chief claims against o responds with its opposing evidence and if there is a counterclaim, it presents its evidence toward that claim o Witnesses Each witness is examined by first, and then cross-examined by Then the puts on s case by calling witnesses Questioning of witnesses: Parties use Motions in Limine to narrow the scope of questioning by adverse or cross-parties In federal ct., the judge may ask questions o Law of evidence limits what can be presented Evidence excluded: relevance, competence, hearsay, privilege o At the close of evidence, any party may move for judgment as a matter of law (FRCP 50) Closing Arguments o goes first, responds, gets the last word o Limits: Arguing facts that are not in evidence is improper Explicitly urging jury nullification Arguing personal opinion Jury Instructions o Means by which the judge sets the scene for the jury to apply the law to the facts it finds Jury Deliberation and Verdict Post-Trial Motions and Judgment o Renewed motion for a judgment as a matter of law (formerly judgment notwithstanding the verdict) 49

Judge to render a verdict opposite the jury decision Requires that the party have motioned for judgment as a matter of law (FRCP 50(b)) o New trial FRCP 59- Set aside the verdict and order a new trial

B. SEVENTH AMENDMENT RIGHT TO JURY TRIAL

Seventh Amendment o In suits at common law... The right of a trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. o In common law suits over $20, the right to a jury trial is preserved, and no fact tried by a jury shall be re-examined in any court o 7th Amendment is not applicable to state courts (though most state constitutions have adopted some form of this) Right to Jury Trial o New causes of action Find closest analogy to 1791 Roles of judge and jury in jury cases Judge decides matters of law, Jury decides factual issues o Mixed legal and equitable claims, counterclaims, defenses, etc. FRCP 38 o FRCP 38(a)- preserves the right to a jury trial o FRCP 38(b)- jury trial must be requested in writing no later than 10 days after the service of the last pleading; failure to request results in forfeiture Arguments for/against juries: o Some Arguments in favor or juries: Brings in average common sense Do not create precedent, so they cant make bad law Preserve the dignity of the bench o Arguments against use of juries: Delay caused by juries Juror incompetence Juror prejudice Beacon Theatres v. Westover o Facts: Fox Theatrers, , filed an equitable claim (Declaratory relief and an Injunction against Beacon from filing an antitrust action) and 50

in the same action, Beacon, , filed a legal counter-claim for treble damages under Antitrust laws. The tr. ct. permitted to try the case first, even though this might deny its right to a jury trial in a subsequent case. Westover is judge in tr. ct. o Rule: Where a files a claim either in law or equity, and the defendant, by way of a defense or counterclaim, raises the opposing kind of claim, the legal claim must be tried first so as to preserve the right to a jury trial. The right to jury trial had to be given primacy in the sense that the legal issues had to be tried before the equitable issues Only under the most imperative circumstances, circumstances which in view of the flexible procedures of the federal rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims. To warrant legal relief there must first be an injury Use the historical test (in year 1791)to determine whether issue brought is one that wouldve been heard by common law court (legal issue) or a court of equity (equitable issue) FRCP 42- Consolidation or Separate trials o FRCP 42(a)- actions involving common questions of law may be consolidated into a single trial o FRCP 42(b)- court may separate issues or claims into separate trials to avoid prejudice where it is conducive to expedition or economy FRCP 57- Declaratory judgment o Used to get a legal ruling before claim arises o Used to determine if condition is fulfilled- This would avoid the risk of a breach by mistake. o Must be a real question (not abstract or academic question) Dairy Queen v. Wood o Facts: Case involving complex accounting o Rule: When legal and equitable claims are consolidated, the right to a jury trial is preserved (only under the MOST IMPERATIVE CIRCUMSTANCES is right to a jury trial of legal issues lost through prior determination of equitable claims). Because asks for both an accounting (equitable relief) and an injunctive relief and money, he is entitled to a jury trial. When accounting is accompanied by DEBT, a jury trial is warranted 51

Right to jury trial should be PRIVILEGED If accounting is VERY COMPLEX a court reserves the right to refuse a jury trial even if money-damages are requested (RARE) o Right to trial by jury is not lost as to legal issues which are characterized as incidental to equitable issues- THIS REJECTS THE CLEAN-UP DOCTRINE Clean-up doctrine= Right to trial by jury may be lost to legal issues where those issues are characterized as incidental to equitable issues. 3 Rules from Beacon and Dairy Queen : o Determine rt. to jury issue by issue o If issue of fact underlies both equitable and legal claims, must have jury on that issue o Generally, legal claims litigated first Katchen v. Landy o Facts: seeks to recover money from bankruptcy, but bankrupt party had already paid it to another ( claimed voidable preference) o Rule: Congress has created PARTICULAR STATUTORY REGIME for dealing with bankruptcy and has NOT explicitly provided for jury trial; therefore ct. not going to read a jury trial into Congress intent for this STATUTORY ISSUE Distinguishes Beacon and Dairy Queen- NEITHER CASE INVOLVED A SPECIFIC STATUTORY SCHEME Ross v. Bernhard o Facts: Ross, , brought a derivative suit on behalf of Lehman Corp. for damages resulting from breaches of fiduciary duty and negligence by Lehman Brothers, , who controlled the corporation. Shareholder derivative action= Action asserted by a shareholder in order to enforce a cause of action on behalf of the corporation. o Rule: The right to a jury trial attaches to those issues in derivative actions as to which the corporations, if it had been suing in its own right, would have been entitled to a jury. Follows Beacon

C. COMPOSITION OF JURIES, JURY INSTRUCTIONS, JURY VERDICTS

Characteristics o FRCP 48- 6 to12 members o FRCP 48- Unanimity required 52

o Drawn from entire district Waiver of a jury o FRCP 38 Requires jury demand within 14 days after the filing of the answer (or last pleading) FRCP 38(d) waiver if no demand Examination of jurors o FRCP 47- Ct. may conduct the examination itself or may supplement with questions from the attorneys Selection of jury- 2 Processes o Selection of the array Random selection No lawyer involvement o Selection of the panel from the array Lawyers involved Selection of the array o Federal Court o Random selection process based on voter registration and driver license lists o Exemptions Military, fire and police dept. members, public officials o Excuses on Request Over 70 years old, child care, prior juror service w/in 2 years, students, volunteer safety personnel, hardship Selecting the jurors from the array o Juror challenges (made by attorneys) For cause- Jurors may be disqualified if they have an interest in the case or there is any other reason they cannot be impartial 28 U.S.C. 1870- Peremptory Challenges 3 Strikes/Side. Gets rid of the extreme jurors on each side o Davis v. Baltimore Gas-Peremptory challenges for anything other than race (Batson v. Kentucky) or gender(JEB ex rel. T.B. v. Alabama) Once a party raises a Batson challenge by showing the exercise of peremptory challenges on the basis of race, the other party has to provide a racially neutral explanation for removing the jurors.

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If the other party provides a racially neutral explanation, the burden of proof shifts back to the moving party to show that the explanation was a mere pretext for racial discrimination. o Voir Dire (to speak the truth) Attorney objectives during Voir Dire Gather info. to determine basis for challenges Both for cause and peremptory Establish rapport w/ jurors Advocate your case Find out how to pitch your case during the rest of the trial o McDonough v. Greenwood- If a juror gives an incorrect response during voir dire Litigant entitled to a fair trial, not a perfect one Only time you get a new trial on account of false answer is if you could have had a challenge for cause Actual bias requires proof of an express admission of bias by juror Implied bias may be shown Jury Instructions o Order of jury instructions and closing argument FRCP 51 does not specify whether jury instructions come before or after the closing argument, but generally they come after it in federal court o Jury instructions must both state the law correctly and be understandable to the jury o Many federal courts use Uniform and Model Jury Instructions o FRCP 51, Objections to jury instructions must be raised before the jury begins deliberations, or else they are waived and will not be considered on appeal. Jury Verdicts o General Verdict- Most common No explanation of how or why the jury reached its conclusion o General Verdict With Interrogatories- FRCP 49(b) Provide more control over the jury Jury answers interrogatories, renders general verdict, court enters judgment based on the verdict Court basically gets to second-guess the jury verdict

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If the answers to the specific questions are consistent w/ each other, but they are inconsistent w/ the general verdict, the judge may enter judgment based on the answers rather than the general verdict If the answers to the specific questions are inconsistent w/ each other or w/ the general verdict, the judge can send the jury back to resolve the inconsistencies. Parties waive right to challenge inconsistencies if they fail to object to inconsistent interrogatory answers o Special Verdicts- FRCP 49(a) Jury answers specific questions and judge puts the answers together to base a judgment on Jury answers questions for benefit of trial court, which enters judgment based on the answers to the questions Reduces effects of jury confusion in complex cases Parties are NOT required to object to inconsistencies to preserve right to challenge inconsistencies in later motion / appeal

D. JUDICIAL CONTROL OF THE VERDICT

1. JUDGMENT AS A MATTER OF LAW (JMOL)- FRCP 50
Demurrer to the Evidence Applies ONLY IF you reach trial Combines: Directed Verdict + Judgment Non Obstante Veredicto (JNOV) FRCP 50(a)- enables court to determine whether there is question of fact to be submitted to jury and whether any finding other than the one requested would be erroneous as matter of law. FRCP 50(b)- in renewing motion for judgment as matter of law after verdict, moving party may ALTERNATIVELY request new trial or join a motion for new trial under Rule 59 Policy Balance the right to jury trial against the need that the jury follow the law Two Issues Decide Scope of Rule 50: o Whether motion is consistent with Constitution concerning role of jury

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o Whether there is sufficient evidence for reasonable jury to find for particular party Standard There is No Legally Sufficient Evidentiary Basis for a Reasonable Jury to Find for the Party Against Whom It is Granted o Sufficiency of Evidence If there has been a prima facie case (burden of production) presented, the court may not enter Judgment as a Matter of Law. But the judge may order a new trial if the judge concludes the verdict is Against the Clear Weight of the Evidence (burden of persuasion or burden of proof)

2. DIRECTED VERDICT
When one party concludes his case, the other party may move to assert that the former did not present sufficient evidence to go to a jury and thus cannot prevail. BEFORE case gets to jury. Courts can GRANT, DENY or RESERVE JUDGMENT Galloway v. United States o Facts: Spouse of WWI soldier, Galloway, , sues U.S. government for payments under War Risk Insurance Act. proved he was mentally ill beginning in 1919 and was mentally ill in 1934, but there was seven year gap in his evidence (1923-1930). Ct. directed a verdict for . o Rule: A directed verdict does not violate the Seventh Amendment. Who gets to speculate: judge or jury? Reasoning o 7th Amendment preserved ONLY the fundamental right to a jury trial NOT procedural requirements o Directed verdict motion is a modern extension of demurrer motion, which existed in 1791 Standard to Apply: legally sufficient evidence mere speculation cannot take the place of probative facts Courts look at credibility of witnesses when assessing a Rule 50 motion (the courts CANNOT feasibly do this when assessing Rule 56 motion) o Reasonable people could not disagree on the result 56

o Dissent: Justice Black likes the scintilla rule (a scintilla of evidence suffices to give the case to a jury)

3. JUDGMENT N.O.V.
JNOV; Judgment Non Obstante Veredicto; Judgment Notwithstanding Verdict; Renewed Judgment as a Matter of Law; RJMOL AFTER jury verdict, parties can renew motions as matter of law and asks court to set aside / throw out verdict o Parties can make this motion up to 10 days after entry of judgment Procedural advantages of renewed motion for judgment as a matter of law (J.N.O.V.) over the JMOL (Directed Verdict): o If the trial judge is wrong about a directed verdict and is reversed on appeal, a new trial will be required o But if the appellate court reverses a RJMOL the judge can enter judgment on the verdict Slocum v. New York Life o Issue: Seventh Amendment constitutional challenge to JNOV o Rule: Although DV is constitutional, JNOV is unconstitutional because (1) it did not exist at common law AND (2) it denied opportunity for new trial and voluntary non-suit NEVER FORMALLY OVERRULED, distinguished in Baltimore Baltimore & Carolina Line v. Redman o Rule: JNOV was constitutionally PERMISSIBLE because judge was merely making delayed ruling on DV motion 2006 Amendment to Rule 50 o Moving party may request JNOV as long as it has moved for judgment as matter of law any time after opposing party has been heard or before case goes to jury Lavender v. Kurn o Facts: Haney (Reresented by estate administrator, ), decedent, killed while working for Railway Co. (represented by ) due to head injuries. FELA o Rule: Appellate court can reverse a jury verdict as completely erroneous ONLY if there is a complete absence of probative facts to grant DV. If there is evidentiary support, jury can speculate and draw inferences at its own discretion FELA (Federal Employers Liability Act) STANDARD: intent of statute is to produce more jury verdicts in favor of plaintiff (for deep pockets / fairness reasons) 57

Test o So long as there is evidence from which an inference rationally might be drawn, either about how the accident happened or about whether the defendant's conduct was negligent, it is for the jury to accept or reject that inference, even though the inference may be quite an improbable one and some other inference is highly probable. FELA cases are statutory negligence actions FELA Test should NOT be employed to re-establish the scintilla test

Rule to Apply: o BEFORE: Use of scintilla rule (many people argue) o NOW: scintilla rule replaced by substantial evidence rule Should courts apply the same evidence standard to DV and JNOV? o DV = courts typically use substantial evidence standard o JNOV = courts typically use reasonableness of verdict standard Only granted if verdict is clearly erroneous o These are essentially the same standard, since a reasonable verdict is based on the presence/absence of substantial evidence Standard Used by Reviewing Courts: o If Judge = Fact-Finder: has judge reasonably exercised his discretion to grant/not grant DV or has he abused discretion? o If Jury = Fact-Finder: would it have been unreasonable for the court/judge to defer the case to the jury? o STANDARDS FOR BOTH: Clearly erroneous Legally sufficient evidence Employment Discrimination Standard - Three-Step Burden Shifting: o first establishes prima facie cause of discrimination (not onerous) ONLY requires production of admissible evidence that, if uncontradicted, would justify legal conclusion of discrimination o Then there is rebuttable presumption that shifts burden to o If meets burden, presumption of discrimination VANISHES and court can rule on judgment as matter of law

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s prima facie case + sufficient evidence to negate s justification = jury can conclude that discriminated (sometimes) Guenther v. Armstrong Rubber o Facts: Personal injury claim, where Guenther, , was injured by s allegedly defective tire. A directed verdict was awarded to when and his expert disagreed over the identity of the tire. o Rule: NAKED STATISTICS (probabilistic evidence) alone are never sufficient- statistics are pure speculation Possible Exception: very high probability (i.e. 99%) Blue Bus Hypothetical = statistics that give you more probably than not probability is insufficient

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VII. JUDGMENTS AND POST-TRIAL MOTIONS

A. MOTION FOR A NEW TRIAL- FRCP 59
FRCP 59(a)- A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury AND (2) in an action tried without a jury o FRCP 59(b)- 28 Day Deadline for Motion o Either party may move for new trial or the court may order a new trial on its own Standards for Granting New Trial o Error at trial- judge, attorneys, jurors o Verdict is against clear weight of evidence- misconduct of jury o Clear miscarriage of justice (vague)- accident or surprise Ahern v. Scholz o Facts: Scholz (musician in Boston), , sought review of the dis. ct.s denial of his motion for a new trial on the basis that the dis. ct. erred in not concluding that the jurys verdict in a breach of contract suit was against the clear weight of the evidence. o Rule: Jurys verdict was based on clear weight of the evidence, so the verdict stands and the district court did not abuse its discretion in refusing a new trial motion; appellate court will overturn trial courts ruling on new trial only if there is a CLEAR ABUSE OF DISCRETION Materiality is a matter of law FRCP 50(b)- in renewing motion for judgment as matter of law after verdict, moving party may ALTERNATIVELY/JOINTLY request a motion for new trial under Rule 59 FRCP 50(c),(e) o Both motions for new trial and for judgment as a matter of law are both due at the same time W/in 28 Days After the Entry of Judgment o FRCP 50(c)(1)- FOR PARTY WHO LOST AT TRIAL: If JNOV is granted, court MUST rule on any new trial Motions, if any, AND specify grounds for granting/denying new trial o FRCP 50(c)(2)- FOR PARTY WHO WON AT TRIAL: party who won at trial but lost motion for judgment as matter of law to move for new trial o FRCP 50(e)- Where the trial court denies the motion for JMOL: Trial court will have to rule on motion for new trial

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If the new trial motion is granted, there will need to be a new trial before any appeal If the new trial motion is denied, the losing party may appeal the denial of the motion for JMOL o Neely v. Martin K. Elby Construction- If appellate court reverses denial of motion for judgment as matter of law, it MAY simply direct entry of judgment for appellant EVEN when appellee has asked for new trial in the event the denial of judgment as matter of law is reversed o HOWEVER, Iacurci v. Lummus- appellate courts will often remand to trial court because of their greater knowledge of the case Unitherm Food v. Swift-Eckrich- There is no authority for an appellate court to order a new trial without a motionAlways motion for the trial

B. NEW TRIAL AMOUNT OF THE VERDICT

The verdict is either too big or too little Conditional new trials o Instead of ordering a new trial, the court may make the prevailing party an offer: Either take a different amount OR else there will be a new trial Remittitur For reductions in the verdict Additur For increases Dimick v. Schiedt: Even if the consents to an increase in damages, the court has no power to increase damages when the amount awarded by jury is deemed inadequate. o Additur would violate the right to jury trial o Federal Courts have nevertheless allowed equivalents through certain procedural mechanisms ADDITUR (Dimick Case) = when trial court grants new trial but conditions its order by providing that if will consent to increased damages, motion for new trial will be denied is not permitted in federal courts (permitted in some state courts) REMITTUR (Hertzel Case) = trial court remits (lowers) excessive damages (permitted in U.S. courts ONLY) when there is an error caused by a specific misconception that can be mechanically corrected

C. RELIEF FROM JUDGMENTS

FRCP 60 o (a) Clerical Mistakes May Be Corrected At Any Time

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o (b) 6 Grounds for Relief from Judgments o Classification is Important Because of Time Limits 1 Year for Grounds (1) to (3) No Limit for Grounds (4) to (6)

FRCP 60(b) - motions for new trial must be made within a reasonable time and for: mistake, excusable neglect, newly discovered evidence, and fraud not more than one year after the judgment New trial is available where a party has been denied opportunity to fairly present his claims (limited by res judicata) o Very rarely granted o Fed. R. Ev. 606(b)- Impeaching a verdict- Internal errors and external influences Difference b/n internal and external errors FRCP 60(b)(1) o Mistake, inadvertence, surprise, excusable neglect o Generally used for Default Judgments

Distinguish Default Judgments from judgments in contested actions o Courts favor trial on the merits over procedural defaults

FRCP 60(b)(2) o Newly discovered evidence o But only if it could not have been discovered w/in 10 Days after the entry of judgment

FRCP 60(b)(3)-(6) o (3) Fraud or Misconduct of Party o (4) Judgment is Void o (5) Judgment is Based on Another Judgment That was Reversed o (6) Catchall for Extraordinary Circumstances

VIII. APPEALS
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A. APPELLATE REVIEW
2 Purposes of Appellate Decisions o Correct errors below o Enunciate common law based on Stare Decisis Grounds for Reversal, Affirmance o An appellate ct. will reverse only if the error complained of affected a substantial right of the complaining party o An appellate ct. will affirm if there is any basis for the trial ct.s decision, even if the reason the trial ct. gave for the decision is wrong

B. STAY OF ENFORCEMENT OF JUDGMENTS ON APPEAL- FRCP 62

The filing of an appeal does not bar enforcement of the judgment FRCP 62- Stay of Judgments on Appeal o FRCP 62(a) Automatic 14 day stay for money judgments o FRCP 62(d) Generally the stay of a judgment requires the posting of a supersedeas Bond Normally the amount of the supersedeas bond will be the judgment plus post-judgment interest during the appeal Once the bond is posted, enforcement is stayed for the rest of the appeal Amount of the bond in state court varies significantly o FRCP 62(b) The trial ct. has discretion to stay enforcement while it decides the post-trial motions o FRCP 62(c) For injunctive relief, the trial ct. also has discretion to stay enforcement of the judgment during the appeal

C. FEDERAL APPELLATE PROCEDURE

28 U.S.C. 1291 construed to give right to appeal to intermediate appellate ct. (NOT U.S. Supreme Court) o Statutorily, the U.S. Supreme Court has discretion to select its own cases o Tends to grant review (petition for a writ of certiorari) in the case of circuit splits between appellate courts Courts of appeals do not handle all appeals the same way FRAP 3 o An appeal is commenced by filing a notice of appeal w/ the clerk of the district ct. Notice must include: Caption specifying the parties taking the appeal 63

Designation of the judgment, order or part thereof being appealed Name of the ct. to which the appeal is taken o The clerk serves notice of the appeal to other parties

D. TIMELY NOTICE OF APPEAL

FRAP 4 o The notice of appeal must be filed w/in 30 days o FRAP 4(a)(1) The notice of appeal must be filed w/in 30 days after the entry of judgment FRCP 77(d) Requires the ct. clerk to send out notice of the entry of the judgment to all parties o FRAP 4(a)(2) A notice of appeal filed after pronouncement of the judgment but before entry is valid o FRAP 4(a)(4) The time for filing a notice of appeal is extended by the following post-trial motions: Motion for Judgment as a Matter of Law Motion to Amend Findings of Fact (FRCP 52) Motion to Alter or Amend the Judgment or for New Trial Motion for Relief From the Judgment filed w/in 28 days after entry of the judgment But NOT motions filed after 28 days or motions involving costs o For an appellant to get the extension in FRAP 4(a)(4), the post-trial motion must have been timely Is a time limit jurisdictional? Bowles v. Russell o Facts: convicted of murder. files habeas corpus. fails to appeal after entry of final judgment. Dis. ct. may statutorily extend 14 days (FRAP 4(a)). Dis. ct. extends 17 days and files on day 16 (after 14, before 17). o Rule: The timely filing of notice is a jurisdictional requirement. When an appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction. Overrules Harris and Thompson Harris Rule: unique circumstances excused failure to comply with time limit Thompson: relied on ct. and ct. was mistaken- Equitable estoppel applied 64

The statutory time limitation for filing a notice of appeal is jurisdictional. Time limits o Jurisdictional Cannot be waived by the parties Can be raised at any time App. ct. has an affirmative duty to inquire into its own jurisdiction and must raise the issue on its own motion Ct. cannot forgive a time limit on equitable grounds o Mandatory - similar to statute of limitations Binding and dispositive if raised by opposing counsel Subject to waiver and equitable estoppel

E. THE FINAL JUDGMENT RULE

28 U.S.C. 1291- authorizing appeals from final decisions o A party may appeal ONLY from a final judgment o Avoids interfering with the trial judges decisions o Allowing multiple appeals would cause delays Final Judgment Rule Cant appeal until there is a final judgment o A final judgment ends the litigation on the merits and leaves nothing for the court to do but execute the judgment Catlin o After court order, does judge have anything left to do on the merits of the case? Yes It is not a final judgment No Judgment can be appealed and time for notice of appeal is running Final Judgment examples o Verdict/Judgment under JMOL- FRCP 50 o FRCP 12(b)(6)- Dismissal for Failure to State Claim o FRCP 12(c)- Judgment on Pleadings o NOT FRCP 56- Summary judgment o NOT FRCP 42- Default Judgment Quackenbush v. Allstate Insurance o Facts: Dis. ct. remanded a case to state ct. on abstention grounds, and Allstate, , sought an immediate appeal. Abstention where an action is first brought in state court, a district court may decide not to exercise lawful jurisdiction pending the outcome of the state litigation o Rule: A decision is appealable when it is a final judgment. There was no judgment on the merits because the court didnt hear the

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merits. A dis. ct. remnd order on abstention grounds is immediately appealable as a final order. As a practical matter, a remand is like a final judgment- A remand is like a stay because it puts parties effectively out of the court -Moses H. Cone And its effect is precisely to surrender jurisdiction to a federal suit to a state court

F. EXCEPTIONS TO THE FINAL JUDGMENT RULE

Despite the good reasons for a final judgment rule, there are a number of reasons why litigants may need to reach the appellate ct. before there is a final judgment, and there have been a number of exceptions developed to the final judgment rule List of Exceptions: o Collateral Orders o Appealable Interlocutory Orders (28 U.S.C. 1292(a)) o Certified Interlocutory Appeals (28 U.S.C. 1292(b)) o Multiple Claims (FRCP 54(b)) o Mandamus (28 U.S.C. 1651)

1. COLLATERAL ORDERS
Collateral Order Doctrine- Appeal from an interlocutory order may be brought in order to hear and determine claims which are collateral to the merits of the case and which could not be granted adequate review on appeal o Very narrow doctrine because court favors finality; looks at entire class not individual parties o Appellate court has discretion to review a ruling on a collateral order if party can show Important issue is separable from the merits of the case Their order on appeal completely resolved the issue The issue would be effectively unreviewable if we had to wait for a final judgment Cohen v. Beneficial o Facts: Derivatives action. NJ law requires bond to file suit. Dis. Ct. says bond is a matter of state law (because it is procedural and not substantive). Thus bond will not be applied in fed. ct. because only matters of substantive state law can be applied in fed. ct. Derivatives action- shareholder sues on behalf of corporation to get what you want from Board of Directors. o Rule: Exceptions to Final Dispositions- The order must: Conclusively determine the disputed question 66

Resolve an important issue completely separate from the merits of the action Be effectively unreviewable on appeal from on a final judgment Will v. Hallock o Facts: Hallocks, , whose property was damaged by federal agents, , brought an action under Due Process Clause of Consittution against agents (Bivens Claim) after losing FTCA case against govt. Agents contended that suit against them was barred by judgment bar of FTCA. FTCA- Generally, a state or the federal government cannot be sued without its permission under the doctrine of sovereign immunity (42 U.S.C. 1983 is a statutory and constitutional abridgment of state sovereign immunity) Bivens Action- Private damages action against federal officials for constitutional torts (civil rights violations), which are not covered by the FTCA. It is not considered to be an action against the United States and therefore is not barred by sovereign immunity. o Rule: Ct. applies the Cohen three-prong test. Conclusiveness Separability Unreviewability Digital Equipment v. Desktop Direct o Facts: Dispute over use of trade name and trademark. The district court granted Desktops, , motion to vacate a dismissal order, the court of appeals upheld this decision, and Digital Equipment, , appealed to the Supreme Court. o Rule: Refusal to enforce a settlement agreement claim to shelter a party from suit altogether does not supply the basis for an immediate appeal. Contractual rights could be vindicated by breach of contract suit. Lauro Lines - an order is effectively unreviewable only where the order at issue involves an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial o Cost associated with unnecessary litigation is not enough to set aside finality requirement Civil Rights Cases all questions of qualified immunity and collateral orders are immediately appealable 67

Discovery orders are not immediately appealable o Appealing discovery questions will remedy problem o Because it is fully remediable, it is an erroneous order o In cases where you cant refuse discovery orders, do not comply get CONTEMP and appeal contempt Mandamus order to avoid contempt; forces a court to do something Writ of prohibition forces the court not to do something

2. INTERLOCUTORY INJUNCTION EXCEPTION

28 U.S.C. 1292(a) Lists a number of orders where an immediate appeal is allowed o Injunctions o Orders appointing receivers o Admiralty cases Rationale for interlocutory appeals Possibility of irreparable harm before the final judgment Carson v. American Brands o Facts: Class action suit against employer based on FRCP 23 and Title VII of Civil Rights Act. (class) sues for civil rights violations in hiring practices. Dis. ct. denies injunctive relief, granting racial preferences. 4th Cir. says it does not have jurisdiction under 1291 or 1292(a). o Rule: A serious, perhaps irreparable consequence of refusing temporary injunctive relief is appealable. Multiple Claims o When one lawsuit involves more than one claim or multiple parties and trial court disposes one of the claims or all of the claims relating to one party, the court can enter final judgment on that claim or party but it must direct entry of final judgment and make an expressed finding that there is no just reason for delay o FRCP 54(b) (2nd sentence), the General Rule- an appeal is not allowed until all claims have been decided Exception: Trial judge is authorized make an express determination to enter a final judgment as to some of the claims or parties so that there can be an immediate appeal 1292(b) Allows appeal on interlocutory order if trial judge certifies that o It is a controlling issue of law o There is substantial ground for the difference in opinion Court of appeals still has to agree to hear it; wholly discretionary tool 68

o An immediate appeal must materially advance the ultimate termination of the litigation If fairly simple on the merits courts are more likely to not grant interloc. appeal because it would not materially advance litigation Appeals o If it is a final judgment, It is appealable o If it decides an issue, Then it is immediately appealable with a collateral order o If neither, Then may be immediately appealable on interlocutory appeal saying neither final judgment or collateral order o If either or both collateral order and interlocutory appeal is denied, then the party can still wait for final judgment and appeal verdict/judgment

G. APPELLATE REVIEW OF JUDICIAL FINDINGS OF FACT

3 Standards of Review o De novo appellate courts will review questions of law de novo (fresh look) giving the lower courts decision no deference o Clearly erroneous appellate courts will review or reverse findings of fact only if judge was clearly erroneous. Look at record and will defer to what district judge found as fact unless it is clearly erroneous There is a presumption that what the judge did is correct Findings of fact by juries are given even greater deference Lower courts decisions, especially jury findings are usually upheld if findings could have been reasonably found An appellate court may not reverse a trial court merely because it would have reached a contrary result. Rather it must be clearly convinced that an incorrect result was reached. o Abusive Discretion Orders which the judge made throughout the action are vested in the courts discretion They will be reviewed by the appellate court for abusive discretion Must show trial court was wholly out of bounds not enough that trial court was wrong. FRCP 52(a) -Only applies to the trial judges finding of fact o Bench Trials 69

Where there are claims for equitable relief (recall that any claims at law must be resolved by a jury first) Where the parties waive a right to a jury trial Judges issue findings of fact (and conclusions of law) which are generally more detailed than verdicts, either special or interrogatory Judges factual findings reviewed under a clearly erroneous standard Bose v. Consumers Union o Facts: A court of appeals performed a de novo review of a district courts finding of reckless disregard of truth in a defamation action. o Rule: In a defamation action regarding a public figure, an appellate court must perform de novo review of a district courts finding of reckless disregard of truth. FRCP 52(a)(6)- an appellate ct. may not reverse a trial ct. merely because it would have reached a contrary result. Standard of review under U.S. Supreme Court decision in New York Times v. Sullivan o Dissent (Rehnquist): Appellate cts. are ill-equipped to make the sort of mens rea determinations concerning malice that are at issue in defamation actions implicating the 1st Amend. o New York Times v. Sullivan In ordinary action for defamation, must prove falseness of the statement, injury and inadequate research into the veracity of the statement In actions based upon the criticism of a public figure exercising public duties, plaintiff must also show actual malice by clear and convincing evidence To protect First Amendment- Freedom of Press

H. FEDERAL APPELLATE PROCEDURE

FRAP 10 o Designation of the record on appeal o First by the appellant and then by the appellee o 10th Circuit Procedure provides for the designation of the record as an Appendix to the Briefs FRAP 11 and 12 o After the record is designated, it is sent up to the court of appeals and the appeal is docketed FRAP 31 Time for Filing Appellate Briefs 70

FRAP 34 Oral Argument

IX. REMEDIES
At the outset of the case, you need to think of potential remedies to pursue. Injunctions are enforced through contempt of court

A. PRELIMINARY RELIEF
FRCP 64- Seizure of Property or Person o At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies. o The remedies available under this rule include the following however designated and regardless of whether state procedure requires an independent action: arrest attachment- you attach your right to the good, its seized by and remains in the possession of the sheriff garnishment- taking of money from bank accounts or paycheck, held by authorities replevin- gets property until the end of the trial sequestration- sheriff takes property from until the end of trial Remedies that are available before trial o 2 Categories Legal Attachment Garnishment Replevin Equitable o Notice of pendency of action (Lis Pendens)- Gives constructive notice to prevent prospective purchaser from taking good title to the property while the lawsuit is pending Due Process Concerns: o 14th Amendment- Notice o 14th Amendment Required 3 Elements: State Action Deprivation of Life, Liberty or Property 71

Due Process of Law o Due Process Concerns limited the availability of these remedies (now require notice and hearing) which, depending on the state, are often available only in narrow circumstances Fuentes v. Shevin o Facts: Action to determine constitutionality of Florida and Pennsylvanias laws on replevin. o Rule: Under 14th Amendment, Procedural Due Process, property cant be taken without a hearing, there must be a notification and it has to be meaningful (time/manner). Hearing required in all but extraordinary situations FRCP 65- Injunctions o Preliminary Injunctions Indefinite, but require notice (and opportunity to be heard) o Temporary Restraining Order (T.R.O.) May be granted without notice, but can only last 10 days o In which circumstances might a client need FRCP 65 relief? What must be shown? Substantial likelihood of success on the merits Irreparable injury to the moving party (Inadequate remedy at law) Balance of hardships Public interest (if an action in public law) Ease of administration Carey v. Piphus o Facts: Two cases merged; students suspended without hearing. Parents seek injunctions to allow students back. o Rule: In an action based on denial of procedural due process, only nominal damages may be awarded in absence of an actual injury You can collect damages for deprivation of due process, but they wont be presumed; you have to prove them.

B. INTERIM RELIEF
Smith v. Western Electric o Facts: Smith, , claimed that his employer, s tobacco policy threatened his health and sought an injunction mandating the adoption of safer practices. o Rule: An employee may seek an injunction mandating that he be provided with a safer workplace. 72

Equity courts have historically took jurisdiction where: o Theres no common law rules (e.g. administration of trusts) o Theres some deficiency in the relief afforded at law. o Cases in which equity action was ancillary to legal action.

C. FINAL RELIEF
Final Equitable Remedies o Specific Performance o Constructive Trusts o Permanent Injunctions

D. CONTEMPT OF COURT
Criminal Contempt Violation of a court order can be prosecuted as a crime o can be sent to jail or force to pay a fine Compensatory Contempt Violation of a court order that damages . o can be ordered to pay P for his damages. Coercive Contempt For continuing violation of a court order o can be put in jail to coerce them into compliance. o is said to hold the keys to his own jail cell.

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TABLE OF CASES
Adickes v. S.H. Kress Co. .......................... 43 Ahern v. Scholz.......................................... 60 Anderson v. Liberty Lobby ........................ 44 Arnstein v. Porter ...................................... 45 Ashcroft v. Iqbal ........................................ 11 Baltimore & Carolina Line v. Redman ..... 57 Bands Refuse v. Borough of Fairlawn ....... 5 Beacon Theatres v. Westover .................... 50 Bell Atlantic Corp. v. Twombly ................. 11 Bose v. Consumers Union ................... 20, 70 Carey v. Piphus ......................................... 72 Carson v. American Brands ...................... 68 Cash Energy v. Weiner ............................. 14 Celotex Corp. v. Catrett ............................ 43 Cine Forty-Second Street Theatre v. Allied Artists .................................................... 39 Coca Cola Bottling v. Coca Cola ............. 32 Cohen v. Beneficial ................................... 66 Conley v. Gibson ....................................... 10 Corley v. Rosewood Care Ctr. .................. 39 Dairy Queen v. Wood ................................ 51 David v. Crompton & Knowles Corp.. 18, 21 Davis v. Baltimore Gas ............................. 53 Davis v. Ross ............................................. 32 Digital Equipment v. Desktop Direct ........ 67 Dimick v. Schiedt...................................... 61 Dyer v. MacDougall.................................. 45 Frederico v. Home Depot ......................... 15 Fuentes v. Shevin ...................................... 72 Galloway v. United States ......................... 56 Gillispie v. Goodyear Service Stores .......... 8 Goodman v. Praxair.................................. 22 Guenther v. Armstrong Rubber ................. 59 Heileman Brewing Co. v. Joseph Oat Corp. ............................................................... 46 Hickman v. Taylor ..................................... 35 Iacurci v. Lummus ..................................... 61 In re Convergent Technologies ................. 27 In Re Shell Oil Refinery ............................ 38 Katchen v. Landy ...................................... 52 Kozlowski v. Sears .................................... 33 Lavender v. Kurn ...................................... 57 Leatherman v. Tarrant County Narcotics Unit ....................................................... 14 Marek v. Chesny........................................ 47 Matsushita v. Zenith .................................. 44 McCormick v. Kopmann ............................. 8 McDonnell Douglas v. Green ................... 11 McDonough v. Greenwood ....................... 54 McPeek v. Ashcroft ................................... 34 Mesirow v. Duggan ................................... 19 Mitchell v. Archibald & Kendall, Inc........ 15 Neely v. Martin K. Elby Construction....... 61 Quackenbush v. Allstate Insurance ........... 65 Ross v. A. H. Robins Co. ........................... 13 Ross v. Bernhard ....................................... 52 Shepard Claims Service v. William Darrah ............................................................... 18 Slocum v. New York Life ........................... 57 Smith v. Western Electric .......................... 73 Southern Methodist Women v. Wynne and Jaffe ....................................................... 23 Swierkiewicz v. Sorema ............................. 10 Tellabs v. Mako Issues & Rights ............... 13 United Artists v. Masterpiece .................... 20 United Coin Meter v. Seaboard Coastline 18 United States v. Board of Harbor Commissioners ...................................... 10 Unitherm Food v. Swift-Eckrich ............... 61 Upjohn v. United States ............................ 36 Venegas v. Mitchell ................................... 48 Wigglesworth v. Teamsters ....................... 20 Will v. Hallock .......................................... 67 Zubulake v. UBS Warburg ........................ 34 Zuk v. Eastern Penn .................................... 9

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