CIVIL PROCEDURE OUTLINE

I. DUE PROCESS
a. What courts must have to adjudicate a case: i. Comes from the 5th and 14th Amendment (no person shall be deprived of life, liberty, or loss of land without due process) ii. Service/Notice iii. Jurisdiction 1. Personal jurisdiction (over parties) 2. Subject matter jurisdiction (over case) a. Federal question jurisdiction b. Diversity jurisdiction iv. Proper venue

II.

DUE PROCESS: THE RIGHT TO NOTICE AND THE OPPORTUNITY TO BE HEARD

a. Process Due i. Hamdi v. Rumsfeld 1. Facts Hamdi, U.S. citizen detained for being an enemy combatant and never given due process. 2. Rule Citizen must always have some form of due process. Even where there are special circumstances (war crimes) you still need due process. This case shows us how much due process is really appropriate. Enemy combatants Guilty unless proven guilty OConnor. Every U.S. citizen is due some notice of hearing and we use Mathews to determine this. ii. The Mathews test: How much process is due? 1. Established in Mathews v. Eldridge, provides a test for balancing issues of the Governments autonomy with a citizens right for due process to prevent erroneous deprivation of process 2. Determined by weighing the private interested affected by the government against the Governments asserted interest and the burdens the Government would face in granting more process. 3. Erroneous Deprivation the court will weigh the risk of erroneous deprivation as well in light of the facts and circumstances of the case b. Right to Notice i. Fed. R. C.P. 4: Provides a way to assure notice follow the rule and you have given constitutionally adequate notice 1. Central Function: to provide notice that a legal action has been filed, and to provide this notice in such a manner and at such a time that the defending party will have a fair opportunity to answer the pleading and raise defenses and objections. 2. Purpose of Summons to alert the defendant that a lawsuit is pending against him and that he has a limited time in which to respond.

a. Subject matter jurisdiction, personal jurisdiction, and venue must all be present before a defendant can be served properly with a summons and complaint. 3. Multiparty, Multiforum Jurisdiction Statute Where federal jurisdiction is based, in whole or in part, upon the federal multiparty, multijurisdictional statute, service can be made at any place within the United States or , if otherwise permitted by law, anywhere outside the United States. 4. Burden of Proof the party attempting service generally bears the burden of establishing that the service is proper. 5. The summons MUST: a. Issue from the Clerk the summons must be issued by the clerk of court, and must bear the courts seal and the clerks signature. b. Identify the Case the summons must also identify the district court, name the parties to the lawsuit, and list the name and address of plaintiff of plaintiffs attorney. c. Directed to the Defendant the summons must be directed specifically to the defendant. d. Time to Appear the summons must state the time within which the defendant must appear and defend. e. Warn Against Default the summons must caution the defendant that a failure to appear and defend will result in the entry of a default judgment for the relief requested in the complaint. 6. The summons and complaint are served together. The plaintiff is responsible for effective service. 7. Age - Any person over the age of 18 who is not a party to the lawsuit may serve original process. 8. State Marshal can serve upon plaintiffs request BUT he must serve in the cases of pauper plaintiffs or seamen plaintiffs. 9. Service must occur after the complaint is filed. 10. Waiver-of-Service a. The waiver-of-service procedure applies to defendants except: i. The United States as a defendant ii. agencies, corporations, or officials of the US as defendants iii. other governments and government-related entities as defendants iv. infant defendants v. incompetent defendants 11.Serving Corporations a. Service to the agent authorized to accept process or a manager or under the state rule for service of a corporation. 12. Rule 4: Best to Worst a. Hand deliver b. Certified Mail c. Hand Deliver to an Agent must be over 18 d. Mailing/Posting e. Publication 13.Default action served with a complaint and you dont respond. The plaintiff wins by default. 14.Expires 120 Days (after the date of the issuance of the summons) 15.Lack of Service can be Waived ii. The Mullane test: What type of service is appropriate? 1. General standard for constitutionally sufficient notice

III. PERSONAL JURISDICTION

2. Notice should be reasonably calculated to apprise interested parties iii. Notice: The Constitutional Dimension 1. Greene v. Lindsey a. Facts Tenants, Appellees, lived in a Louisville, Kentucky housing project. The Deputy Sheriff was responsible for the serving process. He posted a copy of the write of forcible entry and detainer on their door when they didnt answer. The appellees claim to have never received it because kids in the neighborhood often take things posted on doors off. b. Rule Application of Mullane. Was not adequate notice. Notice must be reasonably calculated, under all the circumstances. Feasible alternatives existed that wouldve been more constitutional notice. (in this case, mail would have been the reasonable method given the nature of the neighborhood mail was an inexpensive, efficient mechanism) iv. Notice: Constitutional Requirements Ritualized: Rule 4 1. National Development Co. v. Triad Holding Corp. and Khashoggi a. Facts Rich guy had houses all over the world, claimed service to his NY apartment not adequate b. Rule Rule 4(d)(1) requires that service of summons must be delivered to the persons dwelling house or usual place of abode. ACTUAL SERVICE IS NOT SUFFICIENT, MUST BE ACCORDING TO RULE 4. In this case, the expensive condo was a dwelling.

a. Territorial Jurisdiction from Pennoyer v. Neff old model i. Pennoyer v. Neff 1. RULE: Physical presence dictates personal jurisdiction a. Must exist at the TIME the lawsuit was filed 2. This was because travel was difficult at this time, people were mostly illiterate, and the country was founded on basis of states rights ii. Pennoyer territorial model of jurisdiction evolved because of increase in technology, ease of travel, more mobile society, commerce b. PERSONAL JURISDICTION ANALYSIS i. FIRST look at - Long-Arm Statute 1. Broad or Narrow depending on the State a. The analysis ends here if you cant get jurisdiction under Long-Arm Statute ii. Constitutional Basis for Jurisdiction 1. Can we get jurisdiction over the defendants in a way that goes with the Constitution? a. Service of Non-Resident In-State? i. Shaffer v. Heitner 1. Facts Heitner was a shareholder in Greyhound who sued a number of officers of the company. He moved to sequester their property in Delaware. This property included the defendants stock in Greyhound and other financial instruments. The motion was granted. The court reversed.

2. Rule - The Shoe model should be applied to jurisdiction in rem as well as in personam when minimum contacts are a substitute for actual physical presence. The court will no longer allow the states to assert jurisdiction merely because somebody owns some property in that state. Must analyze property as a contact. ii. Burnham v. Superior Court 1. Facts Man served with divorce papers to appear in CA court while on a visit to his kids in CA. 2. Rule - Service of process upon a non-resident physically present in the forum state is almost always valid and does not violate constitutional due process. Transitory presence is sufficient. There is therefore no need to apply the "minimum contacts" test because there was actual presence. b. Consent? i. The person being haled into court can consent to personal jurisdiction. ii. Most common way is a forum selection clause. (Waiver of right to detest jurisdiction.) iii. Carnival Cruise Line forum selection clauses are generally good unless procured by fraud. 1. Rule: Generally, forum selection clauses will be upheld unless there is fraud, etc. because signing the forum selection clause signifies your submission to the specific court and waiving your right to have it elsewhere. Held that forum selection clause helps the cruise line keep costs down for tickets by not having to worry about litigating anywhere, makes people certain about litigation while traveling. 2. Why is the court inverting the traditional rules about contracts of adhesion? Policy reasons upholding the sanctity of the contract is paramount, forum selection clauses should be upheld for efficiency, these transactions are so routine that it would be unreasonable for every passenger to negotiate 3. After this case, legislation enacted that forum selection clauses in a form ticketed type agreement wouldnt be sufficient for personal jurisdiction when related to transportation). 4. Brownie Points Will every forum selection clause not procured by fraud give us personal jurisdiction? Point this out if the clause it iffy to you. If its really iffy, go on and do the constitutional analysis. c. Service of Non-Resident Outside the State

i. Specific v. General Discuss this on the test (will probably be specific jurisdiction but will get points if you mention why its not general and tell that you will analyze it under specific) 1. No Contacts No jurisdiction 2. Isolated and Irregular Contacts (Unrelated) No jurisdiction 3. Isolated and Irregular (Related) Maybe jurisdiction ** (specific) 4. Continuous and Systematic (Related) Probably jurisdiction ** SPECIFIC 5. Substantial/Significant/Continuous GENERAL means that there is jurisdiction and we dont have to continue down this road. 6. When continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. d. Specific Jurisdiction i. Minimum Contacts 1. International Shoe Test a. Rule - If protected by the laws of a state shall be subject to personal jurisdiction in that state. Got to have minimum contacts. Changes rule from territoriality to minimum contacts, fair play, substantial justice b. Need to have enough contact with the state like consistent corporate operation s with the state even where the suit is not about those operations c. However, even a single contact can be enough if the cause of action is about that contact (ex. Automobile accident) ii. Purposeful Availment did the defendant purposefully avail himself of contacts in the state? 1. Exception: If P made unilateral decision to move to another state, should not subject D to jurisdiction in that state because they had no purposeful availment of contact 2. Hanson v. Denckla a. Rule The court held that a FL court did not have jurisdiction over a DE trust company that entered into a trust agreement with a DE woman who moved to FL. Contacts were too minimum, unilateral action of FL woman was not purposeful availment by D 3. Kulko v. Superior Court

a. Rule The court held it was unconstitutional for CA to exercise jurisdiction over a NY father who sued for divorce from his wife who moved to CA. He did not purposefully avail himself wife unilaterally decided to move to CA iii. Foreseeability Did the defendant reasonably foresee that they could be haled into court in this jurisdiction? 1. World-Wide Volkswagen a. Facts Somebody bought a car from a car dealership in New York. They got into a car accident in Oklahoma where the fuel tank exploded. They started a product liability suit against the present appellants and others in Oklahoma. b. Rule - Majority bases their decision on foreseeable that the defendants would be haled into court in Ok --no purposeful availment; unilateral activity of the plaintiff should not be enough to subject the defendant to jurisdiction in OK when the defendant did nothing to avail themselves of activity there or they would not have reasonably foreseen it iv. Special Considerations 1. Stream of Commerce -- Not foreseeable (not enough to satisfy jurisdiction-W.W. VW) Foreseeable (could depend on whether the court favored WWVW or Asahi) Stream of commerce plus (Asahi) a. World Wide Stream of commerce: manufacturer distributor shipper retail consumer; Court decides to determine when the disputed product leaves the stream of commerce to examine foreseeability; b. Asahi mention distinction between OConnor Standard and Brennan Standard. i. OConnor stream of commerce PLUS (marketing) ii. Brennan lesser standard; were you just aware that the product might end up in that state. 2. Contract a. Burger King just because they have a contract doesnt mean there is jurisdiction but it is a very strong contact. Contract PLUS analysis. These parties have a contract, could they have reasonably foreseen that it would hail

them into court in a certain state. More than Likely Sufficient. b. In considering whether contract creates a contact look at the following factors: i. The nature and prior negotiations between the parties ii. The contemplated future consequences of entering into the contract iii. The terms of the contract iv. The course of dealings between the parties c. A contract is a really strong contact, if the lawsuit is related to the contract at all, more than likely the court will find jurisdiction 3. Internet/Websites where do these contacts fall on the Zippo sliding scale? Where do the contacts fit into the 4th Circuit adapted and adopted Zippo model in ALS and AccuSport? a. Zippo Sliding Scale nature and quality of the contacts with the forum state are the issue, look at the interactivity of the websites. i. Active websites If defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of files over the internet (clearly does business) personal jurisdiction is proper ii. Interactive websites where a user can exchange information with the host computer personal jurisdiction decided after determining the level of interactivity and commercial nature of info exchange that occurs iii. Passive websites that just make info available to those interested no personal jurisdiction th b. 4 Circuits adapted and adopted Zippo model -- personal jurisdiction over a nonresident defendant can be exercised when that person i. directs electronic activity into the State ii. with the manifested intent of engaging in business or other interactions in the state

iii. that activity creates a potential cause of action in the States courts 4. Intentional Torts (libel, slander, etc.) courts reach farther to find sufficient contacts a. Keeton v. Hustler i. Facts: sued for libel ii. Rule: Courts will tend to stretch to establish personal jurisdiction when the defendant is charged with an intentional tort. v. Relatedness between contacts and legal action 1. If claim arises from a single contact with the forum state, the court will probably exercise specific jurisdiction over the claim vi. Fairness Asahi factors 1. burden on the defendant to defend in forum state 2. interests of the forum state, 3. interest of the plaintiff to have it adjudicated in this state 4. interstate judicial systems shared interest in efficiency 5. respect between states/ nations interstate policy interests 6. 3 factors will be determinative (burden on defendant, plaintiffs interest, interest of forum state (state laws or policies are at stake or when states citizens are involved)most important)

IV.

SUBJECT MATTER JURISDICTION: Due Process and the Dual Court System
a. Dual Court System i. Federal courts limited jurisdiction ii. State courts general jurisdiction b. Federal courts get subject matter jurisdiction from either: i. Diversity jurisdiction based on 28 U.S.C. 1332 1. Domicile a. Place where party has a physical presence and b. An intention of returning or remaining i. See Mas v. Perry below 2. Permanent Resident Aliens are domiciled in the state in which they reside (only look at this is other party is a U.S. citizen) 3. Non-permanent Resident Alien is not considered a resident of any state, and is considered domiciled in the foreign nation in which they are from ii. Federal question jurisdiction based on 28 U.S.C. 1331 1. Claim arises under federal law, constitution or international treaty c. Burden to show subject matter jurisdiction rests on the plaintiff

d. Concurrent jurisdiction: shared jurisdiction b/w federal and state courts; plaintiffs can choose to file in either e. Exclusive jurisdiction: only either federal or state courts have jurisdiction over a case i. State courts have exclusive jurisdiction over 1. family law (divorce, child custody) 2. probate ii. Federal courts have exclusive jurisdiction over issues that need consistency in rulings and they are very complex areas of law. Some examples: 1. ERISA (employee retirement act) 2. Bankruptcy 3. Patent and copyright matters 4. National Labor Relations Act (deals with Unions) f. Federal Diversity Jurisdiction i. The constitution says in Article 3 Section 2 any cases between citizens of two different states can be heard in federal court. That got pulled back by congress and not all cases can be heard. They made the following limits in Statute 1332: 1. Amount-in-controversy: It has to exceed $75,000 a. Aggregation of claims i. One plaintiff, 2 claims add up to 75,000 = works ii. Two plaintiffs, claims add up to 75,000 = does not work; cant aggregate claims. iii. One Plaintiff with claim over 75,000 total, 2 defendants = works iv. Only use aggregation with same plaintiff, same defendant cant include a third party defendant brought in v. Cant use interest in coming up with that amount 2. AND have Complete Diversity all the plaintiffs must be different from all the defendants (Strawbridge Rule) at the time of filing. It requires only that no plaintiff be a co-citizen with any defendant. Thus, two plaintiffs who are both citizens of Missouri may invoke diversity of citizenship against three defendants, all three of whom are citizens of Kansas. a. Must have at least one citizen of the U.S. (be sure to check this) b. Permanent Resident Aliens are considered to be residents of the state they are in. c. Non-permanent Resident Aliens are domiciled in the foreign nation in which they reside d. No diversity between two citizens of foreign nations ii. Figure out Citizenships 1. Individuals Based on domicile and intention to remain indefinitely. a. Women used to be equal to domicile of husband, now most jurisdictions consider it independently 2. Corporations Dual citizenship in: a. State where it is incorporated b. State of principal place of business, different jurisdictions use different tests to determine where this is: (this test is jurisdiction specific, make sure to note this if it is not given to you) i. Nerve Test where are all the decisions being made?

ii. Muscle Test where are they doing the most actual work? 3. Estates Citizenship determined by the decedent 4. Unincorporated Enterprises Partnerships, LLCs, Trusts, etc., take citizenship of every state where a general and limited partner, trustee or member is a citizen a. Mas v. Perry i. Facts: Husband (French national) and wife try to sue their LA landlord over two-way mirrors. Question was whether wife was also domiciled in LA. ii. Rule: Diverse citizenship must be present at the time the suit is filed. Diversity is based on domicile. Domicile is the place of his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom. iii. Ticking Time Bomb of subject matter jurisdiction 1. It will be dismissed if it is found not to have subject matter jurisdiction no matter how late in the case, unlike in personal jurisdiction where the person has to object in a certain amount of time or it will not be dismissed and people can waive their rights to jurisdiction. 2. Personal jurisdiction can be waived: consent, forum-selection clausescontesting of personal jurisdiction must be done prior to answering summons b/c once you answer, you are deemed to have consented to jurisdiction of the court 3. Subject matter jurisdiction cannot be waived: parties cannot agree to having the case heard, the judges must decidecontesting of subject matter jurisdiction can be raised at any time during the case, either before judgment of after trial, its ticking time bombcan destroy a case when lack of it is discovered 4. Belleville Catering, Inc. v. Champaign Market Place, LLC a. Facts: Lease dispute, Federal trial court heard case based on diversity, Entered judgment for D for $220,000, P appealed, J. Easterbrook held there was no diversity jurisdiction on appeal, threw out case, attorneys had to pay to re-try case in state court b. Rule: Subject matter is a ticking time bomb, can kill a case as soon as the defect is discovered. Do not treat citizenship of unincorporated enterprises like individuals. (12(b)(1) is not waived if not brought in either a pre-trail motion or answer) 5. Tanzymore v. Bethlehem a. Facts: Man had no real domicile, lived in OH and PA and wasnt settled in either b. Rule: Burden to show subject matter jurisdiction rests on the plaintiff, and this Plaintiff could not prove his domicile was diverse from D. ***lack of subject matter jurisdiction is a ticking time bomb that can come up at any time and kill a case, lawyers should be really careful and make sure that the court absolutely has jurisdiction iv. Why might a corporation want to go to federal court? 1. Jury pool may be more diverse

Judges are not elected Docket might be slower Federal courts favor business generally Federal courts know the cases better, more time and resources Federal courts are more likely to throw cases out because of lack of political pressure v. Policy 1. Reasons Against Diversity Jurisdiction a. Almost half of our cases in our federal court system are diversity jurisdiction cases and eliminating those cases would make more room for cases in which the federal court is more equipped to handle (civil rights, etc.) b. State concerned cases need to be kept in state courts. 2. Reasons For Diversity Jurisdiction a. Out-of-State citizens cannot always count on a fair trial in a state court b. Keeps federal judges up-to-date on state statutory and common law. c. Relieves the caseload of state courts. g. Federal Question Jurisdiction i. 28 U.S.C. 1331: federal question jurisdiction is exercised when the case arises under federal law has a substantial and direct bearing on the case; federal law must be an ingredient of the dispute ii. Well-pleaded complaint Requirement Plaintiffs complaint must include the federal question, is not sufficient if the only the defenses raises a federal question 1. Franchise Tax Board v. Construction Laborers Vacation Trust (US Supreme Court, 1983): summarizes the current test for determining whether a case arises under federal law. Justice Holmes test: lower federal courts have jurisdiction to hear well-pleaded complaints i. establishing either than federal law creates the cause of action ii. or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law. 2. Louisville v. Mottley a. Facts: Train wreck victims signed a release and settled outside of courtgot free train passes for life. Train company refused to give them passes after federal law passed prohibiting it. Plaintiffs filed in federal court but only raised a federal question in anticipation of the defendants defense b. Rule: No federal question just because defendant raises it, the plaintiff must. Well-pleaded complaint just means the central claim is related to a federal question. iii. Private right of action requirement: in order for someone to file a lawsuit, they have to have a private right of action (suing under a federal law that allows them to file a suit). 1. Not all federal laws contemplate a private party filing a lawsuit under it.

2. 3. 4. 5. 6.

a. Ex: Patriot Act you cant sue someone directly under it; Immigration laws you cant individually sue someone you think is an illegal alien h. Supplemental Jurisdiction i. A common problem in federal litigation is that multiple claims frequently arise out of the same nucleus of facts and involve some of the same parties 1. Problem that 1367 seeks to solve is: How should a federal court proceed when it does not have subject matter jurisdiction over some of the claims? ii. Common law types of supplemental jurisdiction 1. Pendent 2. Ancillary 3. combined and codified into 28 U.S.C. 1367 iii. 28 U.S.C. 1367 Supplemental Jurisdiction 1. Common law developed allowing federal courts to hear state law claims under certain conditions 2. 1367 was passed in 1990 to codify the best of the common law concerning supplemental jurisdiction 3. Advantage: eliminated judge-made distinction between pendent and ancillary jurisdiction by combining them both into supplemental jurisdiction 4. 1367 provides supplemental jurisdiction a. If a federal court has original jurisdiction over a claim, then all other related claims forming the same case or controversy can be heard by a federal court also by supplemental jurisdiction; supplemental jurisdiction includes joinder or intervention of additional parties b. In a case founded on diversity, the P cant use supplemental jurisdiction to bring claims against parties brought in as third parties this only applies when you cant get an independent claim under diversity jurisdiction or federal question anyway; doesnt apply to claims brought by third party c. Federal courts may decline supplemental jurisdiction if i. The claim raises a novel or complex state issue ii. If the claim predominates over the claim under original jurisdiction iii. All claims under original jurisdiction have been dismissed iv. Exceptional circumstances or compelling reasons for declining 1. Ex: P bringing in a claim late in the case iv. The Gibbs Test 1. United States Mine Workers v. Gibbs (US Supreme Court, 1966) stated the basic test for tacking on claims under supplemental jurisdiction

2. Test provides principals for tacking a state law branch claim to a federal trunk 3. It is within a courts discretion to exercise subject matter jurisdiction over the related claims, based their decision on factual relatedness: a. Would a jury get confused? b. Is there economy, convenience, and fairness to litigants? c. Is the federal claim substantial? i. Federal Removal Jurisdiction 1. If an action filed in state court could have been brought in federal court (concurrent), a defendant may be able to remove the case to federal court if the requirements of 28 U.S.C. 1441 (Federal Removal Statute) are met 2. Case would be removed to the federal court that embraces jurisdiction of the state court where the original action was filed 3. 28 U.S.C. 1441 Actions removable a. Where there are joined claims that are typically non-removable, the district court may remove all of the claims of the case, and have the discretion to remand the claims that were traditionally nonremovable b. Home state rule -- defendant cannot remove a case to federal court based on diversity if any of the defendants are citizens of the state where the case is pending i. Policy: no reason to fear prejudice in your own state, thus no need for a neutral forum and the plaintiffs choice should be honored. ii. Home- base rule is not applicable to subject matter jurisdiction pursuant to 28 USC 1331 (federal question) 1. Policy: the court system wants federal questions to be resolved in the federal system ii. 28 U.S.C. 1446 Procedure for removal 1. Caterpillar v. Lewis a. Facts: Case was not legally removable under statute at time Caterpillar moved to remove. s motion to remand was denied. The defect in federal jurisdictional requirements was cured at the time of judgment. b. Rule: Federal jurisdiction predicated on diversity of citizenship can be sustained even if there did not exist complete diversity at the time of removal to federal court, so long as complete diversity exists at the time the district court enters judgment. 2. has 30 days from the time served with summons and receipt of the complaint, by service or otherwise to file for removal 3. In diversity, if action is not removable at time of filing, has 30 days from filing of amended complaint (pleading) to make a motion to remove 4. In diversity, may not remove case after 365 days from the date of filing 5. If there are multiple defendants, all must agree to the removal 6. The case shall be removed to the federal jurisdiction that embraces the jurisdiction of the state court where the action was filed. iii. Remand 28 U.S.C. 1447 Procedure after Removal

1. Once removed, the has 30 days to fill for a remand to state court

V.

VENUE: Transfers within Federal Court System (Best Place to Hear Case)
a. Venue Generally i. Based upon statutes ii. SMJ and venue are very often confused. Subject matter jurisdiction is the power of the court to adjudicate the matter before it. Venue relates to the proper district in which to bring the action. Subject matter is a question of power or authority; venue is a question of convenience. SMJ cannot be conferred by agreement, venue can be. A court can have SMJ without being the proper venue. iii. Basic Concept: Venue is concerned with where is the district is proper; depends on the size of the state b. 28 USC 1391 i. (a) Venue case based solely on diversity 1. Judicial district where any defendant resides, if all defendants reside in the same state 2. Judicial district in which a substantial part of the events or omissions occurred that give rise to the claim or substantial part of the property of subject is situated 3. Judicial district in which any defendant is subject to personal jurisdiction, if no other venue is proper from above two subsections ii. (b) Venue case based not solely on diversity (solely federal question or federal question/diversity) 1. Judicial district where any defendant resides, if all defendants reside in the same state 2. Judicial district in which a substantial part of events or omissions occurred, or substantial part of property involved 3. Judicial district in which any defendant may be found, if there is no other district in which the case could be brought iii. (c) Corporations as Defendants 1. Corporations shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time of filing 2. If state has more than one judicial district, and the corporation is subject to personal jurisdiction in that state, and district will work so long as the corporation has such contacts in that district that will subject it to personal jurisdiction (PJ analysis for each district in the state) 3. If the above two do not result in a proper venue, then it can be the district with the most substantial contacts with the defendant iv. (d) Alien may be sued in any district 1. Remember Venue is waived unless timely objected too (this would be a 12(b)(3) motion to dismiss based on improper venue) 2. In this case courts will typically attempt to transfer to a proper venue (see below) c. Transfer of Venue i. 28 USC 1404 (inconvenient venue) proper

1. (a): district court may transfer any civil action to any other district or division where it might have been brought 2. (b): Venue can be transferred based on motion, consent or stipulation of all parties at the discretion of the court form the division in which it is pending to any other division in the same district (12(b)(3), sua sponte, consent) 3. (c): District court may order any civil action to be tried at any place within the division in which it is pending a. Republic of Bolivia v. Phillip Morris (sua sponte) i. Venue may be transferred sua sponte (on the courts initiative) based on the inconvience the case would place the judicial district in b. In order to dismiss a case based on venue, the court must find that venue is improper and the case would be better held in a foreign nation or different court system (state rather than federal court) 4. Original Venue Proper A transfer solely on convenience grounds (under section 1404(a)) carries to the transferee court the original applicable (under Erie) rules (including choice of law); i.e., the law of the state in which the transferor court sat. This is true even where the plaintiff initiates a transfer for convenience after initially choosing the inconvenient forum. ii. 28 USC 1406 (defective venue) improper 1. District court may dismiss a case based on improper venue (wrong court system) a. Forum non conveniens i. Generally means a case is dismissed based on inconvenient venue 1. Piper v. Reyno a. Forum non conveniens almost always arises when the issues concerns whether an appropriate venue would be international courts are very reluctant to dismiss a case based on venue 2. Original Venue Improper A transfer of the ground that the original choice of venue was improper (under section 1406(a)) generally results in a change of the law applicable under Erie, i.e., the law of the state in which the transferee court sits.

I.

ERIE DOCTRINE AND CHOICE OF LAW (Deals only with Diversity)

d. Pre-Erie: Swift Doctrine i. Stipulated that if there is no written statute the federal court would use federal common law and would use state procedural rules (use federal substantive law and state procedural law) e. Three Questions Answered by Erie and Post Erie Line of Cases i. Should we force federal courts to impose the substantive law of the state in which they sit? ii. Which procedural rules are they obligated to follow, state or federal?

iii. What is the difference between the substantive and procedural rules? f. Erie v. Tompkins R.R. Co. i. Court reversed the Swift Doctrine 1. in diversity cases the court must adhere to the written and unwritten law of the state in which they sit (state substantive law) and follow to federal laws that govern procedure a. Twin Aims of Erie: i. To discourage forum shopping ii. Avoidance of Inequitable Administration of the Laws Result should be the same regardless of where the case is this only applies in diversity cases because if it were federal question then you would already know to apply federal law. o A diversity case where there is a state law claim and we cant tell if its procedural or substantive and we are trying to decide whether to apply state law or federal rules. Generally the claim itself isnt going to be what we are talking about. The hard question is: which statute of limitations to apply, or which service rule. o A federal court, in the exercise of its diversity jurisdiction, is required to apply the substantive law of the state in which it is sitting, including the states conflict of law rules. (Eric and Klaxon) However, the federal courts apply federal procedural law in diversity cases. Is there a Federal Directive on Point? To determine whether the federal law should be applied, the first question to ask is whether there is a federal law (e.g., statute, FRCP) on point. If there is the federal law will apply, provided that it is valid (which is usually difficult to determine) Then you look at whether the federal procedural rule governs and controls the situation completely. (We had this in Hannah). It must expressly address the situation. This is called a Hannah Rule so the following must be met: (if its not, go to *) Does it Met the Twin Aims of Erie? o Stop forum shopping; and o Avoid unfair differences in administration of justice between state and federal courts.(We generally want the outcome to be the same whether in state or federal court) *If There is No Federal Directive on Point, Is the Issue Substance of Procedure? If it is a matter of substance, the federal judge must follow state law in a diversity case. If it is a matter of procedure, the federal judge may ignore state law. Look at this in terms of the state law would the state law be outcome determinative? Some Situations are Clearly Established o Statutes of limitations - substantive o Choice of law rules substantive o Elements of a claim or defense - substantive

Law is Unclear in Other Situations o Outcome Determinative Test holds that an issue is substantive if it substantially affects the outcome of the case (Guaranty Trust Co. v. York) o Balance of Interests the court weighs whether the state or federal judicial system has the greater interest in having its rules applied. in Bird we see that this is where you do a bit of a balancing test; look at state policies versus federal policies which can result in a court going either way so we must hope that the Supreme Court has ruled on this issue before Look at Chart in the book to see what they have previously ruled on. (if all arrows are pointing towards state law, there has to be a very strong interest for applying the federal law in order to apply federal law) o Forum Shopping Deterrence (one of the aims of Erie) directs that the federal judge should follow state law on the issue if failing to do so would cause litigants to flock to federal court (Hanna v. Plumer) Conflict Laws (Klaxon case) o Conflicts laws a set of rules which tell the state which state laws to apply. DONT ASSUME THAT NORTH CAROLINA STATE COURTS WILL ALWAYS APPLY NORTH CAROLINA LAWS. The conflict laws are usually very specific. Originally it was called lex loci delicti (place where the thing happened), but each state is different now. A more modern approach is more flexible and take a more fact sensitive approach, which way makes the most sense. 1. The court first has to decide whether to apply federal or state lawand then which state. The case tells us that federal courts apply the conflicts law of the forum. This doesnt mean that they use the states laws that they are in, but they apply that states conflict law g. How do we tell the difference between substantive and procedural law (where is the line of demarcation) i. York Court 1. Held that if a law would be outcome determinative then it would be classified as substantive law 2. If rule would change the result in state court, the same rule should apply in federal court a. Almost any rule can be construed as outcome determinative ii. Hanna v. Plumer 1. If a FEDERAL RULE (frcp) govern an issue that you would have to invalidate or ignore to apply state law, then it is procedural and you have to apply the federal rule even if the state law is outcome determinative 2. Where determining if a law is substantive or procedural analyze the law under the twin aims of Erie, outcome determinative is simple a test

a. Byrd Court i. Dont look at York in a vacuum, you must look to the twin Aims of Eire and not simply if a law is outcome determinative h. Choice of Law (Which states law apply) i. Klaxon v. Electric 1. Must look to the conflict of law or choice of law rules of the state in which the federal court sits to determine what states law to apply to a dispute a. Courts are bound to do whatever the choice of law rules dictate Rule Standard of Care Conflict of Laws Statute of Limitations Burden of Proof Burden of Pleading Discovery Physical Examinations Venue Transfers Agreement to Arbitrate Choice of Law State Law State Law State Law State Law Federal Law Federal Law Federal Law State Law Authority Erie v. Tompkins Klaxon v. Stentor Guaranty Trust v. York Cities Service v. Dunlap Palmer v. Hoffman Sibbach v. Wilson Stewart v. Ricoh Corp. Barnhardt v. Polygraphic Co.

II.

Constructing a Lawsuit Investigation and Inquiry Preceding the Initial Pleading

i. RULE 11 i. (a) Attorney or record or self-represented party must sign each document filed with the court (complaints, pleadings, motions, and all other documents filed with court) ii. (b) By present to the court a pleading, motion, or other paper, an attorney or unrepresentative party is certifying that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances a. Kraemer v. Grant County i. You have to conduct a reasonable amount of research, investigation into the facts of the case prior to filing suit 2. (1) No improper purpose a. You are in violation of section (1) if your sole or primary purpose is improper i. Improper purposes = 1. Harass or cause unnecessary delay or needlessly increase the cost of litigation ii. Saltany v. Reagan 1. If you know that you have no chance of winning a case, filing a suit to use the courthouse as a medium for protesting is considered an improper purpose 3. (2) Claims with no legal basis

a. If you are going to argue in the opposition of current law, you would have to make a non-frivolous argument for the modification, extension, or reversal of the law i. Frantz v. USPF 1. Made claim that was clearly in violation of recent Supreme Court ruling a. Must have a legal basis for the claim that you are making 4. (3) No evidence supporting claim a. You must have evidence to support you claim, or must argue that discovery would provide you with the evidence necessary to substantiate your claim i. Business Guides, Inc. v. Chromatic 1. Rule: Need to investigate what has been told to you before you place your signature on a claim; would have been simple in this case to compare listings with those in phonebook 5. (4) Denial of Factual contention must be reasonable a. If you are going to deny a claim or allegation it must be reasonable based upon the evidence i. This section only applies to answers iii. (c) Court may impose sanctions upon attorneys, law firms, or parties involved that have violated subdivision (b) 1. How initiated a. Motion you must prepare the motion and give notice to the opposite party and they are given 21 days to withdrawal the claim or provide evidence for why it is legitimate. i. Problem not solved within 21 days then a party may file motion for Rule 11 sanctions 2. Sua Sponte (Courts Initiative) court may enter show cause order describing conduct in violation of Rule 11, then party has opportunity to respond to that order a. There is no grace period here as in subsection (A) you can still be sanctioned after you correct the problem presented in the show cause order 3. Nature of Sanction; Limitations a. Money damages may not be awarded against a represented party for violation of subdivision (b)(2) b. Money sanctions may not be awarded on the courts initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

III.

THE INITIAL PLEADING

j. RULE 8 i. (a) Claims for Relief 1. Short and plain statement of the grounds upon which the courts jurisdiction depends

2. Short and plain statement of the claim showing that the pleader is entitled to relief a. Conley v. Gibson i. Complaint shall not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief 1. Rule 8 requires a short plain statement, enough to give fair notice to defendant ii. Policy 1. Rule 8 establishes a high standard for dismissing a complaint because the courthouse door should not be barred because counsel was not artful in drafting a complaint. b. Atlantic v. Twombly i. Pleading must contain something more than a statement of the facts that merely creates a suspicion of a legally cognizable right of action 1. Plausibility Test a. The pleading must have facts that establish a plausible claim for which relief is based b. Must cross the line from possibility to possibility to probability ii. Twombly can be read narrowly to only apply to anti-trust cases under the Sherman Act, or it could be a reform on the entirety of RULE 8. 1. Unsigned opinion after Twombly appears to reinforce Conley standard and hold pro se litigants to an even lower standard of pleading 3. A demand for judgment for the relief the pleader seeks ii. (b) Defenses; Form of Denials 1. Party shall state n short and plain terms the partys defenses to each claim asserted and shall admit or deny the averments upon which the adverse parties relies a. If party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall state this ( =s denial) iii. (c) Affirmative Defenses 1. 8(c) lists a number of affirmative defenses, yet is not exhaustive a. Residual clause i. Any other matter constituting an avoidance or affirmative defense b. Affirmative defenses let the defendant off the hook even if they had done the actions alleged 2. Gomez v. Toledo a. Burden of pleading affirmative defenses rests with the defendant

i. Policy court does not want the plaintiff to have to plead in opposition of anticipated defenses that might be raised by defendant ii. Must plead what the statute requires and place burden on defendant to raise an affirmative defense 1. If an affirmative defense is not raised in the answer then it is waived iv. (d) Effect of Failure to Deny 1. If you fail to deny an averment it is assumed to be admitted by the court a. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. v. (e) Pleading to be Concise and Directed 1. Each averment of a pleading shall be simple, concise, and direct 2. Party may set forth two or more statements of a claim or defense alternatively or hypothetically a. Ingram Case i. Inconsistent, alternative claims cannot be plead if you know one of them is false, however if you are not sure as to the truth of alternative claims then you may present them to the court. k. Rule 9 i. (a) Requires that you plead cases of fraud and mistake with particularity 1. Who, what, when, where and why 2. Letherman a. Rule 9 says that fraud and mistake are the only cases that must be plead with specificity, thus all other cases may be plead generally ii. (b) (c) it is sufficient to plead conditions of the mind and conditions precedent generally for mistake and fraud cases

IV.

RESPONDING TO THE COMPLAINT

l. Rule 12 i. (a) When presented. 1. Defendant shall answer serve an answer a. Within 20 days after being served with the summons and complaint b. If service of summons has be timely waived under RULE 4(d) then within 60 days i. Exceptions 1. US (employees or agencies) have 60 days 12(a)(3)(AB) 2. If court denies motion or grants motion for more definite statement responsive pleading should come within 10 days of order 12(a)(4)(A) ii. (b) How presented. 1. Must respond to each allegation placed against you in the complaint a. Go through the numbered paragraphs and affirm, deny, or indicated that you are without sufficient knowledge or information to form a belief as to the truth of an allegation (thus denying it) 2. May file a pre-answer motion based on the list provided in RULE 12(b)

a. 12(b)(1) lack of subject matter jurisdiction i. File this when there is not a federal question or incomplete diversity b. 12(b)(2) lack of personal jurisdiction i. File this when client does not meet minimum contacts test c. 12(b)(3) improper venue d. 12(b)(4) insufficiency of process i. File this when there is a defect with the papers e. 12(b)(5) insufficiency of service of process i. File this when there is insufficient service of process f. 12(b)(6) failure to state a claim on which relief can be granted i. File this when there are no set of facts under which plaintiff can recover (Twombly may tweak this) iii. (e) May file a motion for a more definite statement anytime prior to answering complaint and does not have to be consolidated under subsection (g) 1. waived when the complaint is answered iv. (g) Consolidation of Defenses in Motion 1. Must file all the applicable pre-answer motions that are available in a consolidated motion to the court a. Put all 12(b) motions in one big motion v. (h) Waiver or Preservation of Certain Defenses 1. Personal jurisdiction, improper venue, insufficiency of process, or insufficiency of service of process are waived if not included in the initial motion or first responsive pleading 2. 12(b)(6), failure to state a claim and 12(b)(7), failure to join a party are not waived if not included in the pre-answer motion or the answer, yet must be raised in a pleading pre-trial a. Once case goes to trail they are waived b. Cannot be included in a separate 12(b) motion after one has been previous filed, must either be raised in answer or future pre-trail pleading 3. 12(b)(1), lack of subject matter jurisdiction is never waived and there is no consolidation requirement a. Can be raised at any stage during the course of a case

V.

AMENDING THE PLEADINGS **** Second Semester Start

m. Rule 15 Amended and Supplemental Pleadings i. (a) Amendments. 1. Automatic Right a. Party may amend pleading once as a matter of course at anytime before a responsive pleading is served or, if no responsive pleading is required and the action has not been placed on the trial calendar, the party may amend within 20 days of service of the pleading. 2. Leave or Written Consent a. May amend later than above with leave of court or written consent from adverse party i. Leave shall be freely given when justice requires 3. Responses to Amended Pleadings

a. Party has time remaining from the filing of the original pleading to respond or 10 days from service, which ever is longer --- court may order different time period. ii. (b) Amendments to Conform to the Evidence. 1. Issues not raised in pleadings a. When tried by express or implied consent of the parties, the issues will be treated as if they were raised in the pleadings. i. Any party may make a motion at any time, even after judgment, to amend the pleadings to conform to the evidence 1. Failure to amend does not affect the result of the trial on the issues not raised in the pleadings 2. Objection b/c not in the pleadings a. Court may allow the pleadings to be amended and shall do so freely when the presentation of the merits warrants such amendment i. Exception: Objecting party must show that failure to include evidence would prejudice the party in maintaining the action or defense on the merits iii. (c) Relation Back of Amendments --- relates back to original date of pleading when 1. Permitted by law that provides the Statute of Limitations applicable to the action, or 2. Claim or defense asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth in the original pleading a. Barcume v. City of Flint i. Facts: Original complaint concerned discrimination in hiring and promotion of women, yet amended complaint alleged sexual harassment. ii. If the alteration of the original statement is so substantial that it cannot be said that defendant was given adequate notice of the conduct, transaction, or occurrence that forms the basis of the claim or defense, then the amendment will not relate back and will be time barred if the limitations period has expired. 3. Changes the name of the party (must satisfy subsection 2) and a. Within 120 days from original service the party to be brought in: i. Received notice of the institution of the action and will not be prejudiced in maintain a defense on the merits, and ii. Knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against them. b. Nelson v. Adams USA, Inc. i. Procedure can trump substance 1. Procedural Rules of 15(c) not followed when adding a party to the suit

2. It is not enough to hypothesize that a party knew and nothing would have changed had they been a party to the suit.

VI.

Discovery --- Scope and Privilege

n. Rule 16(b) Pretrial Conferences; Scheduling; Management i. Judge, after receiving report from parties under Rule 26(f) or scheduling conference, may enter a scheduling order that limits the time: (does not have to be actual meeting, may be done by mail, phone, or appropriate means) 1. Join parties and amend pleadings 2. File motions, and 3. Complete discovery ii. Scheduling order may also include: 1. Modifications of the times for disclosures under Rule 26(a) and 26(e)(1) and the extent of discovery permitted 2. Provisions for disclosure or discovery of electronically stored information 3. Agreements parties reach for asserting privileges or for protection of trialpreparation material after production 4. Dates for pre-trial conferences and trial, and iii. Order shall be issued as soon as possible 1. Within 90 days after appearance of defendant and within 120 days after the complaint has been served on the defendant. 2. Not to be modified except upon a showing of good cause by the requesting party (must seek leave of court) o. Rule 26 General Provisions Governing Discovery; Duty of Disclosure i. (a) Required Disclosures, Methods to Discover Additional Matter. 1. (1) Initial Disclosures: a party must, without awaiting a discovery request, provide the other parties: a. Name, address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claim or defenses, unless solely for impeachment, identifying the subject of the information b. A copy or description of all documents, electronically stored information and tangible things that are in the possession of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment i. Zubulake --- Spoliation and Document Retention 1. Once a party anticipates litigation they must place a litigation hold to ensure the preservation of relevant documents. a. Does not apply to inaccessible back-up tapes 2. Spoliation a. Destruction of electronically stored evidence i. Must show possession of evidence and obligation to preserve at the time of destruction ii. Destroyed evidence was relevant b. Sanctions

i. Monetary ii. Exclusion of Evidence iii. Adverse inference jury instruction c. Computation of damages claimed by disclosing party, making available all non-privileged documents under Rule 34 from which the computation is based d. Insurance agreement, as under Rule 34, under which any person carrying on an insurance business may be liable to satisfy all or part of a judgment e. Exceptions to Initial Disclosures: Note that subsection (a)(1)(E) contains the exceptions i. Time Limits: 1. Disclosures must be made at or within 14 days after the Rule 26(f) conference 2. Any party first served or otherwise joined after the Rule 26(f) conference must make these disclosures within 30 days after being served or joined unless a different time is stipulated by court order. ii. Must make disclosures based on the information at the time, and not excused because it has not completed investigation or due to defects or non-produced discovery from the adverse party f. Chalick v. Cooper Hospital i. Facts: Medical Malpractice case for wrongful death ii. Rule: It is an obligation under Rule 26(a) for defendants to provide plaintiff with the identities and roles of the decedents treating physicians so that the case can be decided on the merits. 2. (2) Disclosure of Expert Testimony a. Must disclose the name, address and telephone number of the expert along with: i. Written report prepared and signed by witness: 1. Complete statement of all opinions to be expressed and the basis and reason therefor 2. Data or other information considered by the witness in forming opinions 3. Any exhibits to be used in support or summary for the opinions 4. Qualifications of witness 5. Publications authored within last ten years 6. Amount of compensation to be paid to witness 7. Any other cases in which the witness has testified within last four years b. Timing of Disclosures i. At least 90 days before the trail date or the date the case is to be ready for trial

1. 30 days after disclosure of other party, if the evidence is solely to be used to rebut or contradict the same subject matter 2. Must supplement these in the event that things change 3. (3) Pretrial Disclosures: In addition to the required initial disclosures, a party must file the following information regarding the evidence that it may present at trail (unless solely for impeachment) a. Name, address, and telephone number of each witness i. Must distinguish those which plan to call and those which will only be called if a the need arises b. Designation of those witness whose testimony is expected to be presented by deposition and a transcript of the deposition c. Identification of each document or other exhibit separately identifying those which the party expects to offer and those which will be offered only if a need arises i. These disclosures must be made at least 30 days before trial 1. Objections to these disclosure must be made within 14 days and are waived unless a showing of good cause 4. (4) Form of Disclosures a. All disclosures under (1) (3) must be made in writing, signed and served

vii.

(b) Discovery Scope and Limits

8.

(1) In General b. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party i. Relevant information need not be admissible at the trail if discovery appears reasonably calculated to lead to the discovery of admissible evidence. c. Blank v. Sullivan & Cromwell i. Claim was for gender discrimination in hiring practices, yet plaintiffs wished to discovery information regarding promotion of women to the rank of partner. 1. The test for whether information is discoverable is that it must appear to be reasonably calculated to lead to discovery of admissible evidence a. Realistically evidence of discrimination in promotion would not be allowed at trial, however it was in this case reasonably calculated to lead to admissible evidence and was thus allowed. 5. (2) Limitations a. Court may alter the limits on the number of depositions and interrogatories or the length of depositions under Rule 30. Also the number of request may be limited under Rule 36. b. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.

i. Adverse party may make a motion to compel and party must then show that information is not reasonably accessible due to undue burden and cost ii. Court still may enforce discovery on the showing of good cause by adverse party c. Court may not allow discovery if it determines that: i. It is unreasonably cumulative or duplicative, or it is obtainable from some other source that is more convenient, less burdensome, or less expensive ii. Party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought iii. The burden or expense of the proposed discovery outweighs the benefit 1. Taking into account the needs of the case, amount in controversy, partys resources, importance of the issues at stake in litigation, and importance of the proposed discovery in resolving the issues. --- This can happen sua sponte or upon motion. 6. (3) Trial Preparation; Materials Attorney Work Product a. May obtain discovery of documents and other tangible things prepared in anticipation of litigation only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the partys case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means. (Essential to the case) i. If discovery is order, court will protect against disclosures of mental impressions, conclusions, opinions, or legal theories or an attorney (absolute protection) b. Attorney Work Product i. Privilege extends to notes, documents, and other materials prepared by or for the party 1. Includes material prepared at the direction of counsel c. Hickman v. Taylor i. Court creates the attorney work product privilege in this case protection material prepared in anticipation of litigation 7. (4) Trial Preparation; Experts a. Party may only use interrogatories or depose an expert (not expected to be called at trial) only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain the facts or opinions on the same subject by other means i. Party seeking discovery will bear the costs of both the experts time and may be required to pay other party a fair portion of the fees and expense incurred by retaining the expert 8. (5) Claims of Privilege

a. Information withheld. i. Must claim expressly the privilege or work-product and shall describe the nature of the documents, communications or other things not produced 1. allows other party to assess whether the privilege is applicable b. Information Produced. i. If information is produced that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. 1. After notification, a party must promptly return or destroy the specified information, or 2. Present the challenged material under seal to the court to determine if the privilege is valid c. Privileges i. Attorney Client 1. Protects communication between attorney and client, without presence of strangers, for the purpose of securing primarily either an opinion of law or legal service, or assistance is some legal proceeding, and if not for the purpose of committing a crime or a tort a. Privilege waived if one party subsequently reveals the contents of the privileged conversation to another party b. Facts talked about are not privileged, simply the communication 2. Corporations? a. UpJohn v. US i. Previous only those in under the control group test were protected by the A-C privilege b. New Rule: A-C privilege extends to: i. Lower Level employee has needed, important information for legal advice ii. Within the scope of the employees duties iii. Employee has to understand that purpose of communication is for the lawyer to give the company legal advice iv. Employee must know that the conversation was confidential v. Information not otherwise available from higher sources (minority of jurisdictions require this element) c. Rarely applies to former employees ii. Doctor Patient iii. Marital

ii.

iii.

iv.

v.

vi.

iv. Religious Advisor Clergy v. 5th Amendment (c) Protective Orders 1. Court may make an order for protection as justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense --- must seek immediately during a deposition (must move the court after attempting to resolve the issue between the adverse party) a. Note: long list of things a court may do to protect a party (1) (8) (d) Timing and Sequence of Discovery 1. Parties may not seek discovery from any source before the parties have conferred as required by Rule 26(f) a. Unless court order methods of discovery may be used in any sequence (e) Supplementation of Disclosures and Responses 1. Party is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or in the following situations: a. If party learns that is some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties no duty to correct depositions (see below) b. Expert discovery must be supplemented if information contained in their report or deposition is in error or incomplete and must be in by Rule 26(a)(3) deadline 2. Party is under duty to amend a prior interrogatory, production request, or request for admission if party learns that is some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties (f) Conference of Parties; Planning for Discovery 1. At least 21 days prior to a scheduling conference is due under Rule 16(b) the parties must meet to consider the nature and basis of the claims and defenses and the possibility of settlement a. Must also develop discovery plan and submit to court i. List in Rule 26(f) about topics that should be discussed and reported on by each party 2. Must submit plan to the court with 14 days following the meeting each attorney needs to do this (g) Signing of Disclosures, Discovery Requests, Responses and Objections 1. Every disclosure must be signed by an attorney of record, certifying that to the best of the signers knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made 2. Every discover request, response, or objection must be signed by an attorney of record and signifies that

a. It is consistent with the rules and warranted by existing law or a good faith argument for the extension modification or reversal of existing law b. Not interposed for any improper purpose c. Not unreasonable or unduly burdensome or expensive i. If one of these three is not signed it will be stricken, unless promptly signed when attention is called to the error 3. A court can sua sponte or upon motion impose sanction against a party that has made an improper disclosure, etc.

IX.

THE DISCOVERY TOOLS

p. Rule 33 Interrogatories to Parties i. (a) Availability. 1. May serve upon any other party written interrogatories not exceeding 25 in number a. Leave to serve additional interrogatories shall be granted to the extent consistent with Rule 26(b)(2) b. May not be served prior to time specified in Rule 26(d) unless leave of court is granted ii. (b) Answers and Objections 1. Each interrogatory shall be answered separately and fully in writing, under oath a. If objected to, the party shall state the reason for objection and shall answer to the extent the interrogatory is not objectionable 2. Answers are singed by the party and objections signed by the attorney 3. Must serve answers and objections within 30 days of service a. Varying time lengths may be imposed under court order 4. Grounds for objection must be stated with specificity a. Failure to state a ground for objection is waived unless the partys failure to object is excused by the court for good cause 5. Party submitting the interrogatories may move for an order under 37(a) with respect to any objection to or other failure to answer an interrogatory a. Must seek a protective order if objection concerns annoyance or embarrassment i. All other privileges or objections can be made in writing the answers (duplicative, obtainable elsewhere, not relevant or reasonably calculated) iii. (c) Scope; Use at Trail 1. May relate to any matter that is relevant to a parties claim or defense, or reasonably calculated to lead to the admission or relevant evidence (rule 26(b)(1)) 2. May not object merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact a. Court may allow the interrogatory to be answered at a later time, (e.g. after discover complete) iv. (d) Option to Produce Business Records 1. If the answer to an interrogatory can be derived from the business records of the party, and the burden would be the same for you to discover the

answer yourself, you can specify the records where the answer may be derived and afford the party an opportunity to look at and review the documents q. Rule 34 Production of Document i. (a) Scope 1. Allows for the request of non-privileged relevant documents in the possession of the other party ii. (b) Procedure 1. Request cannot be made, without leave of court, before the time specified in Rule 26(d) a. Applies to things in you possession, custody or control i. You have the power to get the document, then you may have the burden to produce it 1. Do not have the power to compel a friendly witness to provide documents to an adverse party b. There must be a written response within 30 days indicating and stating the reasons for any objections to individual requests 2. Unless parties otherwise agree, the court will order: a. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request b. If the request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and c. A party need not produce the same electronically stored information in more than one form iii. (c) Persons not Parties 1. May be compelled under Rule 45 to produce documents and things a. Must use to get the documents and things in possession of witnesses under Rule 45 r. Rule 36 Requests for Admission can only be used on parties i. (a) Request For Admission 1. Must comport with the rules of 26(b)(1) and cannot be served before time allowed in Rule 26(d). a. Matter is admitted unless, within 30 days after service of the request, other party denies. i. Must deny or object to avoid admittance ii. Denials must be specific, indicating which part the question is denied and which is admitted ii. (b) Effect of Admission 1. Any matter admitted under this rule is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission s. Rule 30 Depositions Upon Oral Examination i. (a) When Depositions may be Taken; When Leave Required 1. Party may take deposition of any person, including other party, without leave of court except as provided in the next section.

a. Attendance can be compelled by subpoena as provided in Rule 45 2. Party must obtain leave of court, if person examined is confined in prison or if, without the written stipulation of the parties: a. Proposed deposition would result in more than 10 depositions begin taken under this rule or Rule 31 b. The person to be examined already has been deposed in the case c. A party seeks to take a deposition before the time specified in Rule 26(d) i. Must provide notice that person to be deposed is about to leave the US and will be unavailable for examination before trial. ii. (b) Notice of Examination; General Requirements; Method of Recording; Production of Documents and Things; Deposition Organization; Depositions by Telephone 1. Must give reasonable notice of deposition in writing to every other party in the action a. State time and place of deposition and name and address of each person to be deposed 2. State the method in which the deposition is to be recorded (in notice document) a. Can be recorded in any method and the party taking the deposition bears the costs 3. With prior notice, party may request a different form of recording of the deposition a. Party making the request bears the cost of the additional record measures 4. Conducted before an officer appointed or designated under Rule 28 and begin with the officers statement a. There is a list in subsection 4 that indicates what the officers statement shall include 5. May make a Rule 34 request in conjunction with the deposition, which can occur at the taking of the deposition 6. This section deals with public or private corporations as deponents - 30(b) (6) deposition a. Describe with reasonably particularity the matters on which the examination is requested b. Corporation may send multiple parties i. Must specify who will be discussing the specific matters of the deposition (who tells what) 7. May stipulate in writing or court may order upon motion a deposition by telephone or other remote electronic means iii. (c) Examination and Cross-Examination; Record of Examination; Oath; Objections 1. Officer shall put the witness under oath a. All objections will be noted in the record but the deposition shall proceed i. Qualifications of the officer

ii. Manner of the deposition iii. Evidence presented iv. Conduct of a party, etc. b. Party taking does not have to attend, but must submit questions under seal to the officer who will propound them to the witness 2. Objections can be made to question form even if the person being deposed is not your client a. They will be noted under 32(d)(3) for the record iv. (d) Schedule and Duration; Motion to Terminate or Limit Examination 1. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4) 2. Depositions are limited to one day, seven hours a. Unless otherwise stipulated by the court i. Fair to give more time ii. Deponent delays or impedes the proceedings 3. May sanction deponent for delays and impediments 4. Party or Deponent may make motion to terminate or limit deposition (Rule 26(c)) upon a showing that it is being taken in bad faith and designed to annoy, embarrass, or oppress the deponent. a. If court terminates the deposition, it may only resume upon court order v. (e) Review by Witness; Changed; Signing 1. Must request prior to the conclusion of the deposition a. May review and change transcript within 30 days of notice that the transcript is ready i. Must sign a statement providing the reasons for making such changes to the substance of the deposition vi. (f) Certification and Filing by Officer; Exhibits; Copies 1. The officer must certify that the witness was duly sworn and that the deposition transcript was a true record of the testimony given by the deponent vii. (g) Failure to Attend or Serve Subpoena 1. The court may award expenses, including attorneys fees, to a party that appears for a deposition that does not occur because either: a. The party noticing the deposition does not attend, or b. The party fails to subpoena a witness and that witness does not appear. i. Parties may be order to pay expenses of other party in either case. t. Rule 32(d)(3) Using Depositions in Court Proceedings i. (A) Objection to Competence, Relevance, or Materiality. 1. An objection to a deponents competence or to the competence, relevance, or materiality of testimony is not waived by a failure to make the object before or during the deposition ii. (B) Objection to an Error or Irregularity --- Form of Question 1. These are waived if:

a. It relates to the manner of taking the deposition, the form of an question or answer, the oath or affirmation, a partys conduct, etc; and b. It is not timely made during the deposition iii. (C) Objection to a written question 1. An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question with the time for serving responsive questions or, if the question is a recross-question, within 5 days after being served with it u. Rule 37 - Failure to Make Disclosure or Cooperate in Discovery: Sanctions i. (a) Motion for Order Compelling Disclosure or Discovery 1. (1) Party motion to compel must be made I the court in which the action is pending a. Non-party motion to compel must be made in the court in the district were discovery is being taken b. Note: Party must give notice to all other parties and persons affect thereby prior to motion to compel 2. (2) Motion. a. (A) Initial disclosures - For a failure to submit discovery required by Rule 26(a), any other party may make a motion to compel such discovery and for sanctions i. Must certify motion to compel with a genuine statement that movant has in good faith conferred or attempted to confer with the party failing to make disclosure in an effort to avoid court action b. (B) Interrogatories, Document Request, and Depositions The same certification as required for initial disclosures is required here as well (discovering party must make the motion here) 3. (3) Evasive or Incomplete Disclosure, Answer or Response. a. Treated as a failure to disclosure 4. (4) Expenses and Sanctions. a. (A) If motion to compel is granted with regard to disclosure or requested discovery the court shall require the party that created the need for the motion to pay the reasonable expenses incurred in making the motion, including attorneys fees. ii. (c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit 1. Unless failure to disclose is harmless, the party failing to make disclosure is not permitted to use any of the information not disclosure during the course of the proceedings. a. Reasonable costs and attorneys fees in accordance with the standard laid out above i. Will not impose penalty if court determines that motion was not made with a good faith certification hat parties attempted to work the problem out without court action, or ii. Opposing partys nondisclosure, response or objection was substantially justified or that other circumstances make an award of expenses unjust

b. (B) If motion denied court may enter a protective order of the information under Rule 26(c) and shall impose reasonable expenses, including attorneys fees to the moving party i. Will not impose sanction if the motion was substantially justified by the moving party or other circumstances make an award of expenses unjust c. (C) If granted in part and denied in part court may issue protective order as necessary and may appropriate the expenses between the two parties in a just manner. iii. Failure to Comply with Order. 1. Can result in a number of sanctions by the court: a. Contempt of court b. Order indicating that matters not disclosed will be established in a favorable manner for the party seeking to obtain discovery c. Order refusing to allow the disobedient party to support or oppose designated claims or defenses --- prohibiting the introduction of certain evidence d. Striking out pleading, suspending action until order obeyed, or dismissing the action, or rendering a default judgment i. Again attorneys fees will be award along with other reasonable cost so long as the disobedient party was substantially justified in their actions or other circumstances make an award of expenses unjustified. v. Rule 56 Summary Judgment (think of this rule as the table and leg example provided in class) i. (a) Claimant. 1. May make motion for summary judgment at any time after 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party a. Can move for summary judgment with or without supporting affidavits i. Celotex Since the moving party here will have the burden of persuasion at trial, the burden of production for a summary judgment motion must be accompanied by credible evidence establishing each claim of the actions against the opposing party. ii. (b) Defending Party. 1. May move at any time for summary judgment a. Can move with or without supporting affidavits i. Celotex Since moving party will not have the burden or persuasion at trail their burden of production can be met in two ways 1. Submit affirmative evidence that negates and essential element of the non-moving parties claim (not done often) 2. May demonstrate to the court that the nonmoving partys evidence is insufficient to

iii.

iv.

v.

vi.

establish an essential element of the nonmoving partys claim a. Burden of production will then shift to the adverse party i. Must submit affidavits or other documents allowed in the rule to show that there is a genuine issue of material fact for trial. (56(e)) ii. Must take all counterevidence as true in favor of the non-moving party ii. If the moving party would have the burden of persuasion at trail: 1. Their summary judgment motion must be support be credible evidence showing that as a matter of law the opposing party cannot defeat his claim (c) Motion and Proceedings Thereon. 1. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that moving party is entitled to judgment at law. (d) Case Not Fully Adjudicated on Motion. 1. The court may enter a summary judgment ruling on the issue of liability alone, even though a genuine issue of material facts exists as to damages. The court may also summarily resolve other individual issues as to which there remain no genuine issue of material fact. (e) Forms of Affidavits; Further Testimony; Defense Required. 1. When a motion for summary judgment is made and supported as provided by this rule, an adverse party may not rest upon the mere allegations or denials of their pleadings, but the adverse partys response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue of material fact for trial. a. If the adverse party does not respond, summary judgment if appropriate, shall be entered against the adverse party. b. Matsushita v. Zenith Radio Corp. i. When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts 1. Has non-moving party put forth enough evidence that a reasonable jury would be able to find for you. Evidence must go beyond a mere possibility, must be plausible that the jury could draw the inference you desire. 2. Non-moving party has the benefit of all reasonable inferences at summary judgment unreasonable inferences will not be construed in the s favor (f) When Affidavits are Unavailable.

If the adverse party submits affidavits showing that they cannot present facts essential, by affidavit, to justify the partys opposition to the motion for summary judgment, the court may order a continuance to permit affidavits to be obtained of depositions taken or discovery had. a. This provides non-moving party a fair opportunity to respond if moving party makes motion early on in the discovery process vii. (g) Affidavits Made in Bad Faith. 1. If the court determines that an affidavits is submitted in bad faith or solely for the purpose of delay, the court shall order the party employing them to pay the reasonable expense incurred due to the filing of the affidavit, including attorneys fees --- may be also judged to be in contempt of court

1.

X.

Trial, Judges and Juries

w. Rule 16(d)-(e) Final Pretrial Conference, Pretrial Orders i. (d) The court will usually conduct the final pretrial conference after the pretrial narrative statements have been filed and as close to trial as possible. At the final pretrial conference, the court will make a schedule for any remaining motions and set a trial date. An attorney who will conduct the trial or an unrepresentative party must attend the conference with the authority to enter stipulations and make admissions ii. (e) Requires the court to issue a pretrial order memorializing the action taken at any pretrial conference. Once a pretrial order has been entered, it supercedes all pleadings and controls the subsequent course of the case. The order shall be modified only to prevent manifest injustice 1. In a pre-trial order you will see a bunch of deadlines concerning all matters of the case for trial, such as dates for motions, jury instructions, etc. You will also see a date for the exchange of pre-trail disclosures. x. Rule 26(a)(3) i. (3) Pretrial Disclosures: In addition to the required initial disclosures, a party must file the following information regarding the evidence that it may present at trail (unless solely for impeachment) 1. Name, address, and telephone number of each witness a. Must distinguish those which plan to call and those which will only be called if a the need arises 2. Designation of those witness whose testimony is expected to be presented by deposition and a transcript of the deposition 3. Identification of each document or other exhibit separately identifying those which the party expects to offer and those which will be offered only if a need arises a. These disclosures must be made at least 30 days before trial 4. Objections to these disclosure must be made within 14 days and are waived unless a showing of good cause

XI. XIII.

Rule 45. Subpoena xii. Fill stuff in here !!! Right to Trial by Jury

xiv.

7th Amendment Is suits at common law, where the value in controversy shall exceed 20 dollars, the right of 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. (Never been incorporated under the 14th amendment to apply to states) 15.Limits the appellate court power, not allowed to re-examine the facts of a case Curtis v. Loether 17.Traditionally, at common law in England, in a case demanding an equitable remedy there was no right to a jury trial and thus legal remedies gave rise to the right of trial by jury (the distinction between law and equity was abolished in 1938 FRCP). Therefore, when a statute is silent about a trial by jury you are to look at the remedies provided by the statute and if they enforce legal rights then a trial by jury is warranted (if statute gives express right to jury trial dont do test) r. Curtis Test: xix. Under the historical analogue to this form of action xx. Is relief sought more like the traditional relief at common law (damages) of like the damages sought in a court of equity (injunction)

xvi.

Exception: Markman: Supreme Court has said that if an area of law or facts are so complex it was not what the framers of the constitution had in mind when drafting the 7th amendment and therefore too complex for a jury to rule on xxii. Rule 48. Number of Jurors Participation in Verdict 23.The court shall seat a jury of not fewer than six person and not more than twelve members and all jurors shall participate in the verdict unless excused from service by the court pursuant to 47(c). Unless the parties stipulate otherwise: x. The verdict shall be unanimous y. No verdict shall be taken from a jury reduced in size to fewer than six members xxvi. Rule 47. Selection of Jurors 27.(a) Examination of Jurors bb.The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the later event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper os shall itself submit to the prospective jurors such additional questions of the parties or their attorneys, as it deems proper. 29.(b) Preemptory Challenge

21.

The court shall allow the number of peremptory challenges provided by 28 USC 1870 --- 3 i. Excusing a juror without providing a reason 1. 28 USC 1862: cannot strike on the base of race, color, religion, sex, national origin, or economic statute ii. Edmonson v. Leesville Concrete 1. Civil litigation still involves state function (judge) and therefore parties may require an articulation of a race neutral explanation for a peremptory strike 2. JEB v. Alabama: extends the Edmonson rule to strikes based on gender 31.(c) Excuse ff. The court may for good cause excuse a juror from service during trial or deliberation 28 USC 1861 Federal jury selection Act hh.juries selected at random from a fair cross section of the community in the district or division wherein the court convenes iii. Venire 1. Entire panel of potential jurors compiled by voter registration (voter registration is used because it is a non-biased way to draw a cross section of society) 2. Can Challenge Venire Not Composition of Jury a. If a party does not feel the panel is an accurate representation of the community they can challenge (not typical) ii. All citizens shall have the opportunity to be considered for service in the district courts of the US, and shall have an obligation to serve as jurors when summoned for that purpose (civic obligation) b. Voir Dire (jury selection process) i. Courts typically require potential jurors to submit basic background information (may require more information in serious cases) ii. Live Voir Dire: rule 47 allows for judges or attorneys to control the proceeding iii. Challenges: 1. Cause the juror will not be able to impartially and fairly decided the facts and apply the law (no limit on these) a. Not automatically struck upon request, judge make the decision if the juror is ultimately struck 2. Peremptory: See Above y. Rule 49. Special Verdicts and Interrogatories

dd.

33.

xxxvi. (a) Special Verdicts: The court may require the jury to return special verdicts as to each factual issue, instead of a general verdict in favor of one party 1. Takes the jury step by step through the elements of the claim and bulds up to the overall charge (if you answered yes to all previous questions then you must find guilt) Galic Case a. Defense typically like these when the case is extremely complicated ii. (b) General Verdicts Accompanied by Answer to Interrogatories: The court may submit to the jury a general verdict and written interrogatories about specific factual issues 1. Lets the jury make the ultimate conclusion and then asks a question which would have to be answered in a particular manner in order to reach the specific conclusion z. Rule 51. Instructions to Jury; Objections; Preserving a Claim of Error i. (a) Requests 1. A party may, at the close of evidence or at an earlier reasonable time that the court directs, file and furnish to every other party written requests that the court instruct the jury on the law as set forth in the requests 2. After the close of the evidence a party may a. File requests for instructions on issues that could not reasonably have been anticipated at an earlier time for requests set under above rule, and b. With the courts permission file untimely requests for instructions on any issue ii. (b) Instructions The court 1. Must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments 2. Must give the parties an opportunity to object on the record and out of the jurys hearing to the proposed instructions and actions on requests before the instructions and arguments are delivered; and 3. may instruct the jury at any time after the trial begins and before the jury is discharged iii. (c) Objections 1. A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection 2. An objection is timely if: a. A party that has been informed of an instruction or action on a request before the jury is instructed and before final arguments objects at the opportunity for objection required by 51(b)(2); or b. A party has not been informed of an instruction or action on a request before the time for objection provide by 51(b)(2) objects promptly after learning of the instruction or request will be, or has been, given or refused iv. (d) Assigning Error; Plain Error. 1. A party may assign as error: a. An error in an instruction actually given if that party made a proper objection under Rule 51(c), or

b. A failure to give an instruction if that party made a proper request under Rule 51(a), and also made a proper objection under Rule 51(c). aa. Rule 50. JMOL i. (a) Allows the court to take a case away from the jury by entering a judgment if there is not sufficient evidence to raise a genuine factual controversy (looks like directed verdict) 1. Galloway v. US a. Standard for JMOL viewing the evidence in a light most favorable to the non-movant, could a reasonable jury find for the non-movant ( jury should not be allowed to make unreasonable inferences) 2. All motions made prior to verdict being delivered (after opening, after s evidence, after s evidence, after close of evidence) a. Judges typically defer ruling here and will wait to after a verdict has been returned to make a rule i. Wont be subject to appellate review if agree with verdict ii. (b) The court can enter a judgment that is inconsistent with the jurys verdict if it determines that the verdict was not supported by the evidence. However, a prerequisite to a motion for judgment after trial is a 50(a) motion at the close of the record. 1. Have 28 days to file after a jury verdict has been returned a. If verdict returned: i. Court can allow judgment to stand, order a new trial, or direct entry of judgment as a matter of law b. No verdict returned i. Court can order a new trial or direct entry of judgment as a matter of law iii. (c) If the court grants a motion for judgment as a matter of law after trial and a motion for a new trial was also filed, the court will make a condition ruling on the motion for a new trial 1. this is done for judicial efficiency allows appellate court to rule on JMOL and not have to decide if new trial is warranted since that has been done by the trial judge a. Flynn: get something 2. (d) If the losing party appeals the denial of a motion for Weisgram v. Marley Co. Judgment after trial, the prevailing party may on appeal assert grounds for a new trial in the event that the court reverses the denial of the motion for judgment after trial. If the appellate court does reverse, it may order the entry of judgment, order a new trial, or remand to the trial court to determine whether a new trial is warranted. a. Appellate court has the power to enter judgment as a mater of law or alternatively remand case back to trial level

XXXVII.

Rule 54. Judgment; Costs (a) Definition, Form: A judgment is any appealable decree of order. A judgment must be in writing and must be set forth in a separate document, free from extraneous materials iv. (b) Judgments Upon Multiple Claims or Involving Multiple Parties: A judgment entered as to less than all claims in a lawsuit, or as to less than all parties is a lawsuit, is not immediately appealable. Instead, the appeal must generally await the entry of judgment as to all remaining claims and parties. However, the district court can make a judgment as to less than all claims or parties final, and thus immediately appealable, by expressly determining that not just cause exists to delay the appeal and by directing the entry of judgment. v. (c) Demand for Judgment: The district court generally must grant all the relief to which the prevailing party is entitled, whether or not such relief was requested in the pleadings. Pleadings serve as guides to the nature of the case, but the lawsuit is ultimately measured by what is pleaded and proven, not merely what was demanded. In default judgments, however, the district court may not award relief beyond that sought in the complaint. vi. (d) Taxation of Cost: The district court may, in its discretion, award cost to the prevailing party in a lawsuit, unless an express provision regarding cost is made by federal statute or court rule. 1. In the absence of a federal rule to the contrary, the Supreme court has ruled that attorneys fees may not be taxed as costs

xxxviii.

XXXIX.
XL.

Attacks on Judgments xli.

(a) Grounds for Granting New Trial 2. In both jury and bench trials, the court may grant a new trial for any reason which new trials or rehearings were formerly granted, such as where the evidence is either excessive or inadequate, where probative evidence is newly discovered, or where conduct by the court, counsel, or the jury improperly influenced the deliberative process a. Remittitur: if the court finds that the verdict is excessive, the court may offer the verdict winner a reduction of damages in exchange for the courts denial of a motion for a new trial i. Problem: How to determine the amount that the verdict is reduced. Apply the Goldilocks rule and try to go in the middle. ii. Only Remittitur is constitutional in Federal Court b. Additur: if the court finds that the verdict was inadequate, the court may not offer the verdict winner an increase in damages --Dimick v. Schiedt (additur unconstitutional) c. Sanders-El v. Wencewicz i. Standard for Mistrial: improper questioning by counsel generally entitles the aggrieved party the right to a new trial if such questioning conveys improper information to the jury and prejudices the opposing litigant. must consider the climate of the contest in which it occurred

Rule 59. New Trials; Amendment of Judgment

1. Exception: Where rebuking or reprimanding the attorney will suffice --- not the case here vii. (b) Time for Motion 1. A party must file a motion for a new trial no later than 10 days after the entry of judgment viii. (c) Time for Serving Affidavits 1. A party may support a motion for a new trial with affidavits. Supporting affidavits must be filed with the motion. Opposing affidavits may be filed 10 days thereafter, unless an additional period not to exceed 20 days is permitted by the court for good cause shown or by stipulated agreement of the parties ix. (d) Order of New Trial on Courts Initiative 1. The court may grant a new trial entirely on it own initiative, or upon reviewing a partys motion, may grant a new trial for a reason not stated in the moving papers bb.Rule 60. Relief From Judgment or Order --- Make the repose issue argument here i. (a) Clerical Mistakes 1. The district court, on its own initiative or on motion of a party, may correct clerical errors in judgments, orders, or other parts of the record, and errors arising from oversight or omission. ii. (b) Relief for Other Reasons 1. In its discretion, the district court may grant a motion for relief from a final judgment, order or proceeding for various enumerated reasons a. (1) Mistake, inadvertence, surprise, or excusable neglect (one year after entry of judgment) b. (2) Newly Discovered Evidence (one year after entry of judgment) i. the evidence has been newly discovered since trial ii. the moving party was diligent in discovery could not have found evidence iii. the evidence is not merely cumulative or impeaching iv. new evidence is material, and v. in light of the new evidence, a new trial would probably produce a different result c. (3) Fraud, Misrepresentation, Other Adversary Misconduct (one year after judgment) i. the moving party possessed a meritorious claim at trial ii. the adverse party engaged in fraud, mis rep., or other misconduct, and iii. the adverse partys conduct prevented the moving party from fully and fairly presenting its case during trial iv. Curtis Publishing v. Butts 1. A new trial will not be granted where a party seeks to raise for the first time, on a motion for new trial, the objection that opposing counsel was guilty of misconduct in his argument to jury, where such conduct was not excepted to during trial. d. (4) Void Judgment (reasonable time)

i. court lacked SMJ, PJ or acted in a manner inconsistent with constitutional due process e. (5) Changed Circumstances (reasonable time) i. When the judgment is satisfied, released, or discharged ii. Where a prior judgment on which the present judgment is based has been reversed or vacated, or iii. In any other circumstance where the continued enforcement of the judgment would be inequitable f. (6) Interest of Justice (reasonable time) catch all, very rare cc. Rule 61. Harmless Error i. Defines a harmless error as one that does not affect the substantial rights of the parties or does not defeat substantial justice. Generally, an error will not be discounted as harmless is the court is left with grave doubt at to whether the error had a substantial influence in the ultimate verdict. In making this evaluation, the court considers the entire record and applied the harmlessness standard on a case-by-case basis. Every reasonable possibility of prejudice need not be disproved. At the core, the harmless error inquiry examines whether the trial error affected the outcome of a case to the substantial disadvantage of the losing party.

XLII.Claim and Issue Preclusion

XLIII. Res Judicata (Claim preclusion) xliv. Prior litigation in which identical claims were raised, or at least could have been raised 45.Arise from same transaction or occurrence tt. Different legal and damage theories are barred by res judicata xlvii. Parties in the second litigation must be identical in some manner to the parties in the original litigation (privity of parties) 48.successor in interest (spouse of deceased) 49.nonparty controlled partys litigation in first suit 50.nonparty shares a property interest with the party 51.party and nonparty have an agent-principle relationship 52.party otherwise adequately represented the interest of the nonparty liii. Final judgment on the merits in the original litigation 54.default will work not dismissal for lack of PJ or SMJ LV. Collateral Estoppel (Issue preclusion) lvi. Prior litigation in which the identical issue was before the court 57.must really be the identical issue, not like could have been raised in res judicata 58.it is settled that collateral estoppel will not bar litigation of any issue that was not actually raised in a prior proceeding regardless of whether the issue could have been raised lix. Same parties that previously litigated a case lx. Issue must have been actually litigated in the first judicial proceeding 61.must have been litigated with some vigor argued in court (not raised and dismissed in chambers) lxii. The issue must necessarily have been decided in a case which a final judgment was entered 63.no default judgment here 64.the issue decided in the first suit must have been decided in a way that is consistent with the judgment in the first suit 65.if a jury decides a case without explaining which of two ground is the basis for the verdict, an opposing party retains the right to challenge those same ground if they arise as issues in subsequent litigation

LXVI. LXVII.

Settlement and Alternative Dispute Resolution

Rule 68. Settlement (recall that parties are required to discuss settlement at Rule 26f conference, as well as Rule 16 conference) lxviii. 10 days or more before trial a party may serve upon the adverse party an offer for settlement (dollar amount or property) 69.offeree has 10 days to accept the offer, if no communication offer is deemed withdrawn and no evidence of offer is allowed in court (if accepted file with clerk to enter judgment) 70.if judgment is entered for offeree less than that of the settlement offer, offeree will be required to pay cost accrued from time of the settlement offer sss. Not attorneys fees

lxxii. ex. Offer was for 50 K and judgment for 40 K offeree to pay cost

LXXIII.

Mediation Third Party Dispute Resolution (, and Mediation) [Organized Settlement] lxxiv. Mediator helps the parties see the strengths and weakness of their case and attempt to get the parties to meet in the middle and settle lxxv. Impasse situation in which the parties dont reach a settlement through mediation lxxvi. End result is a settlement if successful 77.Note: that this process is no binding on the parties involved LXXVIII. Arbitration Binding Decision Maker lxxix. Truly alternative dispute resolution mechanism, litigate the case in an alternative forum (parties must agree to arbitrate) Gilmer v. Interstate/Johnson Lane Corp. cccc. FAA a written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract lxxxii. Exception: 83.Congress expressly says an action is not arbitratable 84.Independent reason that the contract itself in unenforceable a. So long as there is no inherent inconsistency between the policies behind a law and arbitration, then arbitration is ok ii. Who pays? 1. arbitration agreements may typically set the cost between the parties courts will not enforce an arbitration clause if it would be unfair that the person being a claim would have to pay the cost of litigation would cost deter bring an action (50/50 split is not ok in the courts eye)

80.