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Clauss Civ Pro Fall 2012

I. Introductory ConceptsA. The Court System

1. Our federalist system of dual sovereignty provides for a parallel system of state and federalcourts

2. Most business is conducted in state court system (98% of all cases filed).a. Each state has its own court systemb. State courts retain virtually same authority they had at time of independence

3. The concept of subject matter jurisdiction controls whether cases may be filed:a. Only in state courtb. Only in federal courtc. In both

4. Each court system is tiereda. The lowest level are the trial courts (viz., the courts with original jurisdiction or where the

case is first filed). Trial courts typically exercise only original jurisdiction but occasionallythey review the decisions of specialized courts or state agencies, in which event they aresaid to exercise appellate jurisdiction.

b. Both the state and federal court systems have higher or appellate courts empowered toreview lower court decisions. There are a few matters over which the U.S. SupremeCourt has original jurisdiction (i.e., serves as the court where a lawsuit is initiated), as,for example, in the case of a dispute between two states.

c. Most common system has two levels of review, with highest level being discretionary withthe reviewing court

d. The nomenclature for the carious courts differs from state to state. For example the trialcourt is known as the Court of Common Pleas in Maryland, the circuit courts inWisconsin, the Superior Court in California and the Supreme Court in New York. Thehighest court is know as the Court of Appeals in New York and the Supreme Court inWisconsin. The intermediate level of court is know as the Court of Appeals in the federalcourts system, and the Appellate Division in New York

5. The state/federal relationshipa. When a case is in federal court only because of diversity, the federal court must apply

substantive law of the state where the federal court sits. An example would be BuffaloCreek where any federal court Stern had selected to hear the case would have had toapply West Virginia law (based on governing conflict of law rules). This is sometimesknown as the choice of law issue. But federal courts always apply federal rules ofprocedure. Differences between state and federal procedural rules may influence choiceof forum (35 states had adopted the federal rules in toto as their own rules of procedure).

b. U.S. Supreme Court can review both federal appellate court decisions (on any question oflaw) and state supreme court decisions that turn on questions of federal law, regardlessof whether or not federal law was the basis of the original claim giving rise to the lawsuit.In other words, the U.S. Supreme Courts appellate jurisdiction is broader than a federal

district courts 1331 jurisdiction. See Lou isvil l e v. Mott ley p. 179B. SOURCES OF PROCEDURE

1. There is no one system of civil procedure, but rather a body of law determines procedurewithin each court system. Sources Include:a. Federal Rules of Civil Procedure (for federal courts)b. State Procedural Rules (for state courts)c. U.S. Constitutiond. Congressional enactments, ex. 28 U.S.C.

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e. Common law doctrines (for example what materials are privileged for purposes of Rule26(b), and thus nondiscoverable, is determined by common law doctrines).

f. Local rules (while FRCP provides a set of uniform rules to govern all federal courts, mostcourts adopt additional local rules, and such rules are authorized by the FRCP 16 and26(a) and by custom).

2. Values that determine rules of civil procedure

a. Fairnessb. Efficiency and speedc. Just resultd. FRCP 1 states that the rules shall be construed and administered to secure the just,

speedy, and inexpensive determination of every action.C. SOURCES OF LAWYER REGULATION

1. FRCP Rules 11 and 26 (prohibiting vexatious litigation or litigation not warranted by fact orlaw, misuse of discovery procedures).

2. State regulation of practice, generally called the Code of Professional Responsibility (ex.Evans v . Jeff D p. 302(requiring attorney to act solely in the interest of his or her client); orthe many examples in Buffalo Creek, including for example, prohibiting the settlement of asuit involving numerous parties unless each plaintiff consents after being told what each

plaintiff will get and what the attorneys fees will be; prohibiting certain types of solicitation ofbusiness, prohibiting any communication by an attorney with the opposing party except afternotice to that partys attorney; providing information that is not part of the public record, etc.

II. PRE-COMPLAINT STAGEA. Investigation and Research

1. R 11(b) requires the attorney to make an inquiry reasonable under the circumstances, toinsure that factual allegations have evidentiary support or are likely to, and that legalcontentions are warranted by existing law or by a nonfrivolous argument for the extension ,modification or reversal of existing law or the establishment of new law.

2. Violations ofR 11(b) can result in sanctions, either on motion of the opposing party, subjectto certain conditions, or on the courts own initiative,

3. Sanctions are discretionary (may) and are determined by what is needed to deter such

conduct in the future (see, e.g. Bri dg es v. Diesel Service p. 13, where atty failed toexhaust administrative remedies prior to filing suit to remedy violations of the Americans withDisabilitiesAct, and court expressed its belief that counsel ha[d] learned its lesson).

B. Where Can Suit be Brought?1. Courts with Subject Matter Jurisdiction. Courts must be empowered by the relevant

constitution or by statute to hear the particular type of dispute.a. State trial courts are normally courts of general jurisdiction and can hear any type of

case except those reserved exclusively for courts of limited jurisdiction (as forexamplea divorce, which in some states can only be heard in a special family court, or a disputeabout the disposition of deceaseds estate, which in some states can only be heard in aprobate court, or an admiralty case, which under federal law can only be heard in afederal district court).

b. Specialized state courts can hear only those types of cases that fall within the confines oftheir limited jurisdiction, e.g. small claims, probate, etc.

c. Federal courts are courts of limited jurisdiction, with the outer limits of their jurisdictionestablished by Art III of the U.S. Constitution.(1) UnderFRCP 8, plaintiff must state source of federal court jurisdiction(2) Examples of federal jurisdiction

(a) 28 USC 1331, if plaintiffs claim arises under federal law or the U.S. Constitution.See Louisvi l le v . Mott ley p. 179, the railroad pass case. Plaintiffs claim must bebased of federal law; it is not enough that a claim, based on state law, will be

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determined by a question of federal law (like the contract claim in Mottleywheredefendant relied on impossibility as a result of federal law).

(b) 28 USC 1332, if there is diversity of citizenship between plaintiff and alldefendants, and if the amount in controversy exceeds 75,000. Hawkin s v.Masters Farms, Inc p. 5(a wrongful death suit involving a man who worked inMissouri and had lived with his mother until a year before his death when he

moved in with his girlfriend in Kansas) holds that citizenship means residenceplus intention to remain for the indefinite future. Because the deceased hadnever discussed with his new wife any intent to relocate their home to Missourihe was found to be a citizen of Kansas(i) The burden of proving citizenship is on the plaintiff. Moreover, while the

question of citizenship is fact specific it can be raised in a pre-answer motionsince it goes to the courts authority to hearthe suit. Any factual inquiry canbe limited to that one issue.

(ii) Do not confuse residence and citizenship. Individuals can have only oneplace of citizenship but they can maintain a residence in several states.Residence is almost always enough to satisfy personal jurisdiction (which is astate-based test) and venue (which is a judicial based test). Of course, if a

state is sparsely populated and thus has only one judicial district, then thegeographic location personal jurisdiction and venue will be the same.

d. Plaintiff autonomy is an important value, so if there is subject matter jurisdiction (SMJ) inmore than one court plaintiff chooses which court.

e. However, as we discussed in class, our procedural system tempers plaintiffs autonomywith some protections for the defendant, so under28 USC 1441 defendant can removesuit to federal court if federal court has jurisdiction.

f. Decisions on where to file (federal of state) are representative of the many strategicdecisions that are made by the parties.

g. But SMJ because it refers to the authority of the court to hear particular disputes cannever be waived or consented to where SMJ does not exist. See Mottley. Without SMJ,the court is not authorized by law to hear the dispute. See Rule 12(h)(3).

2. Personal Jurisdiction refers to a courts power over the person of the defendant.a. The court must be located in a state where the defendant has sufficient presence to make

trial there consistent with notions of minimum due process. Any court located in a statewhere the defendant has the requisite presence has personal jurisdiction. In otherwords, personal jurisdiction exists on a state-wide basis. It is venue that examines each

judicial district within a state.b. For a federal or state court to have personal jurisdiction over the defendant, the courts

jurisdiction must be consented to, or the court must be located in a state where:(1) Defendant is a citizen, as for example, in the case of a corporation in the state where

the corporation is incorporated, or, in the case of an individual, in the state of his orher domicile (residence plus intent to remain for indefinite future); or

(2) Defendant resides or is present and generally conducts his or her affairs; or

(3) Defendant has at least minimum contacts, but in this instance jurisdiction will belimited suits arising out of those minimum contacts (Internation al Shoe p. 75).

c. Rules of personal jurisdiction can be waived by the defendant.3. Venue refers not to the state but to the particular judicial district where the actual trial will take

place, assuming that there is more than one judicial district within the state that has personaljurisdiction.a. Determined in federal court by 28 USC 1391 and in state court by relevant statuteb. Venue normally determined by place where defendant resides orplace in which a

substantial part of the events or omissions giving rise to the claims occurred. Where

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there are several courthouses located in different cities within the same judicial district,the plaintiff can choose in which location to file suit. (Thus, in Buffalo Creek, there weretwo courthouses located within the Southern District of W.Va. one in Huntington andone in Charleston, the plaintiff originally filed in Huntington, but ended up in Charleston,when the only Charleston judge, Judge Christie, recused himself because of a personalfriendship with the president of Pittston).

c. Under28 USC 1404 a court, whether by motion or acting sua sponte, may transfer a caseto any other state or venue where suit might have been brought if the court concludesthat such a transfer would be more convenient for the parties and witnesses and wouldbe in the interest of justice.

4. Plaintiffs choice of forum must satisfy each of three criteria set forth above. If plaintiff, afterapplying these criteria, is left with multiple choices, the plaintiff can then make strategicdecisions as illustrated in Buffalo Creek.

5. Defendant can in certain circumstances respond to plaintiffs choice with a variety ofcountermoves:a. A pre-answerRule 12(b) motion to dismiss on grounds that the court selected lacks either

SMJ (Rule 12(b)(1)) or personal jurisdiction (Rule 12(b)(2)) or it is not the correct venue(Rule 12(b)(3)).

b. A motion under28 USC 1441 to remove suit from state court (if that is where the plaintifffiled) to federal court, on the ground that defendant is entitled to have the matter heardthere since the federal court has SMJ. The defendant cannot force a removal fromfederal court to state court, unless it can establish that the federal courts lacks any basisfor SMJ.

c. A motion under28 USC 1406 to transfer suit to the correct venue.d. A motion under28 USc 1404 to transfer suit to a more convenient forume. A motion under28 USC 1631 to transfer suit from a federal court that has jurisdiction.

III. PLEADING STAGEA. The federal rules adopt a system of notice pleading. See Rule 8. Unlike code pleading, notice

pleading delays disclosure of specific facts supporting allegations made in the pleadings untildiscovery. It is for this reason that a defendant cannot use Rule 12(e) to demand more factual

detail at the pleading stage, unless the basis for the plaintiffs claim is so obscure that thedefendant cannot draft a response. The rules may be different in a particular state court system,which may require more factual detail than the federal courts.

B. Notice Pleading serves three purposes1. Satisfies notions of due process by giving parties reasonable notice of what claims and

defenses are being made by each party. This enables the parties to prepare their case andpreserve important matters of evidence.

2. Allows the court to perform a gatekeeper role by diminishing or striking claims, counterclaims,defenses or requests for relief that are unavailable as a matter of law 12(b)(6), 12(c), and12(f).

3. May disclose uncontested factsC. Plaintiffs Complaint

1. Filed with the court and served on the defendant together with a summons2. Date of filing with the court is commencement date of plaintiffs action for purposes of the

applicable statute of limitations (Rule 3).3. Service on defendant must be accomplished within 120 days after filing complaint with the

court (4(m)),a. Service must be accomplished by personal service as defined in Rule 4(e) or by mail, if

defendant waives personal service (Rule 4(m)).b. A defendant who receives mail service but refuses to waive personal service can be

made to pay the costs incurred in effecting personal service

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4. Content of plaintiffs complainta.A short an plain satement of

(1) Grounds for SMJ, since federal courts are courts of limited jurisdiction (Rule 8).(2) Plaintiffs claim, showing that the pleader is entitled to relief, and

(a) These claims need to be more than conclusory statements, must be more thanmere possibilities, they must be plausible. Twombly . Ashcrof t.

(3) Relief soughtb. Plaintiff must allege each element necessary to the claim (in other words, the plaintiff

must allege enough to plead a prima facie case). It is this pleading burden that allowsthe court to perform its gatekeeper function. For example, in a tort suit, plaintiff will allegethe occurrence, defendants negligence, the causal connection between the occurrenceand defendants negligence, and some injury to the plaintiff.

c. Plaintiff can join more than one claim against defendant, or can initiate separate suits oneach distinct claim plaintiff has against defendant. Rule 18. However, it is clear fromcase law that plaintiff cannot split a single claim. Attempts to split claims violateprinciples of res judicata which provide that no one claim can be relitigated following a

judgment on the merits of that claim. See Rush v . City of Maple Height p. 43.D. Defendants Response

1. Timing and content of defendants responsea. UnderRule 12(a), defendant has 20 days after receiving plaintiffs complaint (or 60 days

if defendant accepted service by mail) to respond, unless the defendant has obtained anextension of time (by motion to the court, with or without the plaintiffs consent).

b. Defendant may have basis for pre-answer motion underRule 12. A motion is a request tothe court for an order (see Rule 7(b)), which in the case ofRule 12(b) motion is arequest for an order dismissing the plaintiffs complaint. If a Rule 12(b) is granted noanswer will ever become necessary because the case will have been dismissed, withoutever having reached the merits of the underlying suit. (Of course, the plaintiff may beable to file a new complaint, depending on whether or not the dismissal was withoutprejudice.)(1) Rule 12(b) motions include:

(a) Wrong court (Rule 12(b)(1), (2), and (3));(b) Procedural defect in summons or service (Rule 12(b)(4) and (5));(c) Failure to state a claim (Rule 12(b)(6)).(d) Missing necessary part (Rule 12(b)(7)).

(2) Defendant is allowed only one pre-answer motion, but this motion can raise as many12(b) defenses as are applicable (Rule 12(g)).

(3) Rule 12(e), or motion for a more definite statement, seeks a clarification of plaintiffscomplaint; rarely granter and only when defendant cannot reasonably respondbecause the complaint is too garbled or confusing. Stern in Buffalo Creekwasrequired to file a more definite statement detailing the damage computation for eachplaintiff.

2. Content of Defendants Answer

a. Rule 12(b)defenses can be raised as part of defendants Rule 8 answer rather than in aseparate pre-answer motion. In such case, the Rule 12 defenses would be raised asaffirmative defenses (see Rule 8(c)).

b. Defendant must respond to each of plaintiffs averments, either by (1) Admitting,(2) Denying, or(3) Stating that the defendant is without knowledge or information sufficient to form a

belief, which functions as a denial (Rule 8(b)).

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c. When [defendant] intends to deny only a part or qualification of an averment,defendant shall specify so much as is true and deny only the remainder (Rule8(b)). General denials, because they tent to mislead, are disfavored and risky.

d. Denials should be specific (Rule 8(b)). Any averment not responded to will be deemedadmitted (Rule 8(b)(6)).

3. Waivers and Affirmative Defenses

a. Defendants failure to object to personal jurisdiction or venue or to any procedural defectsin the form of service of process, in the very response it files (whether a pre-answermotion or an answer) waives such objections, unless the defendant files an amendmentwithin the 20 day period during which defendant may amend as matter of course withoutthe courts permission (Rule 12(h)(1)). Note that Rule 12(b)(6) motions can made upuntil the time case is submitted to a jury or to a judge ( Rule 12(h)(2)) and that objectionto a courts SMJ is never waived but can be raised at any time. Rule 12(h)(3), See alsoLous iv i l le v. Mott ley.

b.Any matter not contained in the plaintiffs complaint, which defendant believes avoidsliability, or constitutes a defense, must be specifically raised by defendant in the answer,as an affirmative defense (Rule 8(c)). Failure to plead such matter (unless defendant issubsequently allowed to amend his answer underRule 15) precludes defendant from

later submitting evidence on that matter and thus constitutes a waiver of the defense.4. Counterclaims (Rule 13)

a. Compulsory counterclaims, viz. claims aris[ing] out of the transaction or occurrence thatis the subject matter of the opposing partys claim. Failure to raise a compulsorycounterclaim precludes defendant from ever litigating that claim. Rule 13(a).

b. Permissive counterclaims, viz., any claim unrelated to plaintiffs suit that defendant hasagainst plaintiff. Such counterclaims are not required and may be pursued in subsequentlitigation if defendant so chooses. Rule 13(b).

5. Cross claims (Rule 13(g)) are claims that the named defendants have against a co-defendant; inclusion of these claims in defendants response are only allowed if they ariseout of the transaction or occurrence that is the subject matter either of the original action orof a counterclaim. Unrelated matters among defendants would have to be resolved in some

other litigation, and cannot be allowed to complicate a plaintiffs suit.E. Amendments to Pleadings

1. Rule 15requires courts permission (or leave) or opposing partys consent once a responsivepleading is served, or, if no responsive pleading is permitted, once 20 days have elapsed(Rule 15(a)).

2. Leave shall be freely given when justice so requires (Rule 15(a)).F. Parties

1. Whom to include as a plaintiff?a. Plaintiff chooses whom to sue within constraints ofcourts jurisdiction. Cant sue someone

over whom the court does not have personal jurisdiction. Also, cant sue someone whois citizen of same state as plaintiff without destroying diversity jurisdiction. This is whyStern did not name Buffalo Mining Company as a defendant.

b. Plaintiff may, but is not required to join as co-plaintiffs one or more individuals who giveconsent and who were similarly affected by the same transaction or occurrence; ifplaintiff chooses to do so, each such individual must be name (Rule 20(a)).

c. Alternatively, plaintiff can seek to be certified as the class representative for similarlysituated individuals without identifying them by name. Because plaintiffs adjudication ofthe claim(s) would be binding on such unnamed individuals (res judicata), who may ormay now have received actual notice of the pending action, class actions suits arepermitted only in very narrow circumstances, and must both:

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(1) Satisfy the prerequisites set out in Rule 23(a), concerning numerosity, commonalityof questions of law or fact, typicality of claims or defenses, and ability of plain tofairly and adequately protect the class, and

(2) Fall into one of three categories of cases permitted underRule 23(b):(a) Anti-prejudice class action e.g. where there is a risk of inconsistent

adjudications, or judgments dispositive of interests of others (e.g., a limited fund

case);(b) Class action seeking only final injunctive or declaratory relief; or(c) Class actions where common questions of law or fact predominate

d. Defendant can oppose plaintiffs motion for class certification on grounds that therequirements ofRule 23 have not been met.

e. Defendant cannot force plaintiff to take on co-plaintiffs, but can ask court to consolidatetwo or more individually filed suits underRule 42(a). Defendant may also ask the courtto dismiss plaintiffs who cannot properly be joined underRule 21.

2. Whom to include as a defendant?a. Plaintiff is not required to include as defendants all individuals who may be responsible, in

whole or in part, for plaintiffs injury or lossb. Defendant has two very limited trumping rights over plaintiffs choice of defendants:

(1) UnderRule 19, defendant can ask that a necessary party be added. Note that anecessary party does not include other potential defendants, but must be someonewhose absence 1) could subject defendant to inconsistent obligations, or 2) wouldmake complete relief impossible. If the missing party is inside the courts jurisdictionand would not defeat diversity, the court will order joinder on pain of dismissal ofplaintiffs suit; but if joinder is not possible, or would defeat SMJ, court should dismissplaintiffs suit only if equity and good conscience requires.

(2) UnderRule 14, defendant can implead as a third-party defendant any person whomay be liable to the defendant for all or part of any judgment obtained by plaintiffagainst the original defendant. (Indemnification ex. When a good a fails you couldtry to bring the producer into the suit).

3. Persons Outside Suit Wanting In

a. Rule 24permits outsiders to participate in plaintiffs lawsuit as interveners (on either side),if a timely application is made, and if the requirements ofRule 24(a) or (b) are met.Even without intervener status, outsiders may be able to present legal arguments on oneside or the other as amicus curiae. Amicus status is obtained by motion and can beopposed by one or both sides to the suit.

b. Intervention is of right underRule 24(a) if either:(1) Pursuant to an unconditional statutory right of intervention; or(2) When the applicant 1) has an interest relating to the property or transaction that is

the subject of the action; 2) shows that disposition of the action is likely to impair hisor her ability to protect that interest; and 3) shows that the existing parties do notadequately represent the interveners interest. NOTE: One issue will be what kinds ofproperty interests merit Rule 24 protection.

c. Intervention is permissive (i.e., within the courts discretion) underRule 24(b) when a) anapplicants claim or defense and the main action have a question of law or fact incommon and b) the applicants participation will not hinder or impair the rights of theoriginal litigants, and will serve some useful purpose. Concerns here are efficiency andpotential harm to applicant for intervention of an adverse precedent.

IV. DISCOVERY STAGEA. Fact Revelation Function

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1. Because the Federal Rules require only simple notice pleading, parties do not typically learnthe factual basis for each of the other sides allegations and defenses or claims until thisstage of the lawsuit

2. Formal discovery is in addition to informal fact-finding, not in lieu of. Note, however, thatwitnesses may be unwilling to cooperate except under court order (see Rule 45); in addition,the professional code of responsibility prohibits a lawyer from talking to the other side unless

the other sides attorney is present. Where the other side is a corporation or other institution,administrators and managers may qualify as an opposing party.

B. Different discovery devices are available for parties and nonparties.1. Automatic disclosures are required only of parties. Rule 26(a), which was added to the FRCP

in 1993, and amended in 2000, mandates certain automatic disclosures, unless the court orthe parties have provided otherwise:a. Initial disclosures, including name, address and telephone number of each individual

likely to have discoverable information that the disclosing party may use to support itsclaims or defenses, as well as all documents and tangible things that the disclosingparty may use to support its claims or defenses.(1) Includes insurance information as it will facilitate the settlement process

b. Pretrial disclosure of any reports prepared by experts retained to provide testimony at

trial, together with the information considered by the witness in forming [the experts]opinions; 90 days before trial.

c. Pretrial disclosure of names of trial witnesses, together with identification of anydocuments or exhibits that the party expects to offer. 30 days before trial

2. Rules allow parties to compel both parties and non-parties to provide vast quantities ofinformation that could reasonably lead to the discovery of admissible evidence. Onlyrestrictions on scope of discovery are:a. Historically, matter only had to be relevant to the subject matter of the lawsuit; the scope

of discovery was limited in 2000 to any matter that is relevant to the claim or defenseof any party although the court can on a showing of good cause order discovery ofany matter relevant to the subject matter involved in the action.

b. Matter cannot be privileged.

(1) Refers to common law privilege protecting communications between doctor andpatient, lawyer and client, husband and wife, etc.

(2) Concept of privilege expresses balance of other societal values against desire togive access to information.

c. While not an absolute prohibition to discovery, Rule 26(c) allows both parties and non-parties to seek protection from unnecessary and burdensome discovery, or to protect thefurther disclosure of certain confidential or highly personal information, etc.

3. Discovery takes place outside the presence of the court, although the court will help managediscovery through Rule 16 (requiring early and frequent pre-trial conference), Rule 26(f)(requiring the parties to prepare and submit a plan for discovery), and Rule 37 (granting thecourt discretion to impose sanctions on noncooperating parties).

4. Discovery from non-parties:

a. By oral deposition in judicial district having personal jurisdiction of non-party (Rule 30).b. Presence at deposition is obtained by a court-issued subpoena; the subpeoona can

command not only the deponents presence, but also that the deponent produceevidence or permit an inspection (Rule 45(a)).

5. Discovery from parties:a. By oral deposition (Rule 30);

(1) May take 10 depositions, do not need to be a party to be deposedb. By written interrogatories (Rule 33);

(1) May serve on any party 25 written interrogatories (including discrete subparts)

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c. By written requests for admissions (Rule 36);d. By a request for the production of documents and things, and/or for inspection (Rule 34);

(1) May requests documents, etc(2) May examine others property(3) Must be served to a party

e. By a physical or mental exam of the party (Rule 35), but only if:

(1) The partys mental or physical condition is in controversy;(2) Good cause has been shown by the requesting party; and(3) The court has entered an order directing submission to the exam(s).

C. Enforcement of Discovery Orders1. Against non-parties. Failure to obey a subpoena (which is an order or the court) can result in

sanctions for contempt (viz., a fine or imprisonment, or both) Rule 45.2. Against parties. In addition to contempt sanctions, the court may strike claims and defenses,

enter judgments of dismissal or default, prohibit admission of evidence and shift fees andcosts incurred as a result of noncompliance with discovery orders. Rule 37.a. Parties must show that they tried to work it out themselves before making a motion

V. PRE-TRIAL DISPOSITION OR NARROWING OF CLAIMS AND/OR DEFENSESA. Vast majority of cases are resolved prior to trial.

B. The Federal Rules provide a variety of procedures for identifying cases which should notproceed to trial, either:1. Because there are no genuine issues of material fact, and the dispute can therefore be

resolved as a question of law (Rule 56, governing motions for summary judgment on one ormore of the claims and/or defenses);

2. Because one of the parties is unwilling to cooperate with the litigation, in which event thecourt could dismiss plaintiffs suit (Rule 41) or enter a default judgment againstnoncooperative defendant (Rule 55); or

3. In addition, there are rules which can be used to narrow or reduce the number of factual orlegal disputes that actually go to trial, e.g., a motion for partial summary judgment (Rule 56),a pretrial order, agreeing to undisputed facts or to the elimination of specific claims,defenses or legal theories (Rule 16), and responses to requests for admissions, eliminating

one or more fact issues from trial (Rule 36).C. Summary Judgment

1. Rule 56 permits the moving party to establish by affidavit that there are no disputed issues ofmaterial facts relevant to a specific claim or defense, and to therefore request that the courtdecide that claim or defense as a matter of law. Legal arguments can be made bymemoranda and oral argument.

2. The non-moving party may file refuting affidavits, establishing the existence of a genuineissue concerning a material fact i.e., a fact that could determine the outcome of theclaim or defense. In order to raise a genuine issue, the affidavit must be based onpersonal knowledge, set forth facts that would be admissible, and show affirmatively theaffiants competence to testify; unlike pleadings, allegations in a Rule 56 affidavit cannot beconclusory, but must set forth specific facts showing that there is agenuine issue for trial.

Rule 56(e).3. Moving party can establish the absence of any genuine issue of material fact either:

a. By setting forth facts based on personal knowledge, orb. By referring to discovery documents demonstrating that the party having the burden of

proof has no evidence from which a jury could reasonably infer the existence of a factnecessary to the non-moving partys claim or defense. Houchens p .34is a good caseillustrating this point. There, the insurance company could demonstrate by pointing todiscovery documents that plaintiff had no evidence concerning the circumstances underwhich her husband died; as a result, the only question was whether the state statute

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creating a presumption of death after 7 years also created a presumption that the deathwas by accident, in which event the insurance company would have to pay on thedecedents accidental death policy. The court held that this was not a permissibleconstruction of the state statute viz., as a matter of law, plaintiff could not win withoutindependent evidence concerning the circumstances under which her husband died.

4. Affidavits are construed in the light most favorable to the non-moving party. If there is a

genuine issue of material fact, the trial court should deny the motion, since questions of fact(including the drawing of inferences and determinations of credibility) are for the jury, not the

judge; moreover, even in a bench trial, questions fact should be resolved at an oral hearingand not by motion. Rule 56 motions are designed to resolve issues of law, not issues of fact.

VI. TRIALA. The trial is the point at which each side gets to put on its proof, and to demonstrate the existence

or absence of facts. At the pleading stage, parties submit allegations, unsubstantiated at thatpoint by any facts available to the other side. During discovery, each side has to produce anyfacts it has in support of its allegations. If the facts are undisputed, and determine the lawsuitsoutcome, the case should be disposed of by summary judgment. But if these material facts aredisputed, the trial is the place at which they are subjected to cross examination, rebuttal andconfrontation.

B. Division of function1. In a jury trial, it is the function of the jury to weigh the evidence and reach a conclusion based

on its factual determinations (findings ofraw facts) and on its application of law to facts(findings of ultimate facts). For example, it is the jury that decides if, in applying the law tothe facts, the defendants conduct constitutes negligence,or discrimination because ofsex, or if accident arose out of and in the course of employment.

2. The judges role is to oversee the proper conduct of the trial (e.g., ruling on the admissibilityof evidence, excluding prejudicial matter, assuring an impartial jury) and to instruct the juryon the law (Rule 51).

C. Motion for a Directed Verdict or, as now called, Motion for Judgment as a Matter of Law. Rule50(a).1. A Rule 50 motion is a device which requires the trial judge to review the strength of the

proofs, and, if the proof submitted by the party with the burden of persuasion is insufficientto support a verdict, the court should on a proper motion for a judgment as a matter of law(formerly called a directed verdict), enter judgment accordingly. The reason for this rule is toavoid the expense of further trial proceedings and, even more importantly, to preserve theintegrity of the judicial system by avoiding a patently erroneous verdict.

2. UnderRule 50(a), the defendant can more for judgment as a matter of law at the close ofplaintiffs case. The court must deny the motion if it determines that the jury couldreasonably find for either party, Since fact finding and law application are jury functions, thetrial court, in ruling on a Rule 50 motion, views the evidence in the light most favorable tothe nonmoving party. The court can grant defendants motion only if plaintiffs evidence isinsufficient as a mater of law.

3. Plaintiff can also make a Rule 50(a)motion at the close of defendants case. Moreover, if

either party wants to preserve its right to a renewed motion for judgment as a matter of lawunderRule 50(b), it should again made Rule 50(a) motion at the close of all the evidence.

VII. POST-TRIAL MOTIONSA. Motion for judgment notwithstanding the verdict or, as it is now called, renewed motion for

judgment as a matter of law. Rule 50(b).1. Once a verdict has been reached, the verdict loser can, within 28 days from date of judgment,

renew its motion for judgment as a matter of law underRule 50(b). If granted, the courtwould vacate the jurys verdict and enter judgment for the verdict loser on the ground thatthe jury could not on the basis of the evidence before it have reasonable found for the

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verdict winner. This device does constitute a reexamination of the facts found by the jury(prohibited by the 7th amendment), but a reevalution of a legal question that had beenreserved for the judge viz., was there sufficient evidence from which a jury couldreasonably find for the verdict winner. If not, then the case should never have gone to the

jury,2. Rule 50 tests the sufficiency of the evidence offered by the nonmoving party. If the quality

and quantity of evidence are insufficient to support either the claim or defense of the verdictwinner, the court can grant the motion.

3. The reason a trial court might deny a Rule 50(a) motion and then grant a Rule 50(b) motionafter the verdict is reached is:a. The trial court may hope that the jury will decide for the moving party; andb. If the trial courts entry of judgment is subsequently reversed on appeal, the appellate

court can simply vacate the trial courts judgment and reinstate the jury verdict. If the trialcourt granted the Rule 50 motion before submission of the case to the jury, there wouldbe no verdict to reinstate and the court would have to order a new trial.

4. Questions concerning the sufficiency of a partys evidence depend on which party has theburden of proof. If the evidence is in equipoise, so that the jury can only speculate as towhat happened, and either version is as likely as the other, the party with the burden of

proof loses5. The term burden of proof has two distinct meanings:

a. Burden of production, under which the party raising the claim or defense is responsible forproducing evidence sufficient to establish that claim or defense.

b. Burden of persuasion defines the party who must ultimately persuade the fact finder thatits version of the facts Is true.

c. The standard of proof or required persuasive power of the evidence varies with thenature of the claim or defense.(1) Preponderance of the evidence or more likely than not: the standard of proof in a civil

case.(2) Clear and convincing: only in special circumstances established by statute or case

law.

(3) Beyond a reasonable doubt: the usual standard of proof in a criminal caseB. MOTION FOR A NEW TRIAL Rule 59

1. Within 10 days of entry of judgment2. May be made by motion of a party or by the trial court on its own motion3. Because it is the jurys function to weigh the evidence, the trial court cannot grant a new trial

simply because it would have resolved fact and application of law to fact issues differently.However, it is the trial courts responsibility to insure that justice is done. As a result, the trialcourt will order a new trial if it is convinced either that the:a. Trials process was flawed (e.g., the court erred in allowing or disallowing evidence, or

preventing attorney misconduct); orb. Jurys verdict was flawed (e.g., the verdict is internally inconsistent or against the great

weight of the evidence); the court, in basing new trial on this ground, cannot act as the

13th

juror, granting a new trial because s/he simply disagrees with the jurys verdict.4. The grant of a new trial is functionally different than a JNOV. It is not that a jury could not

reasonably have found for the verdict winner. It is that the trial court believes that trial courterror or jury misconduct may have tainted what is otherwise a possible verdict; because thetrial court is unable to determine the extent of the taint, or whether it affected the outcome,s/he orders a new trial.

5. Unlike a successful Rule 50 motion, the grant of a new trial is not a final judgment and thuscannot be immediately appealed.

C. RELIEF FROM JUDGMENT Rule 60.

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1. Normally the only mechanism for curing an erroneous judgment is an appeal. Once the timefor appeal has expired, the judgment cannot be revisited, even if seriously flawed. Closureand finality are important values in any judicial system.

2. Rule 60 provides a very limited mechanism for correcting a clerical mistake in the judgmentor for reopening the judgment when evidence that was unavailable or fraudulently concealedis uncovered.

VIII. APPEAL STAGEA. Appeals to intermediate appellate courts are as of right

1. Judgment must be adverse to the appealing party2. Appellate courts will not correct harmless errors

B. Appeals to the Supreme Court are mostly discretionary and rarely granted.C. Parties generally can only appeal from a final judgment 28 USC 1291.

1. Avoids piecemeal appeals2. Preserves judicial efficiency

D. There are certain types of interlocutory or non-final orders than can or in some circumstancesmay be appealed from immediately.1.An order granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to

dissolve or modify injunctions (28 USE 1291(a)(1)).

2. When a district judge certifies that an interlocutory order involves a controlling question oflaw as to which there is substantial ground for difference of opinion , and that an immediateappeal may materially advance the ultimate termination of the litigation, and the Court of

Appeals, based on the partys application, permits the appeal. (28 USC 1292(b)).3. Where the interlocutory order results in practical finality. This exception to final judgment rule

is judge-made.4. Interlocutory appeals through the use of an extraordinary writ

E. Standards of Review1. Trial and appellate courts are responsible for different tasks. Trial courts are responsible for

fact-finding whereas appellate courts are responsible for interpreting and declaring the law.2.As a result, the standard for reviewing a trial courts decision varies depending on the issue.

At one end of the spectrum, the appellate court can substitute its own judgment, without

regard to the decision of the trial court. This is called de novo review. At the other end of thespectrum, the appellate courts role is limited to intervening only when the trial court hasacted abusively or capriciously. This is called abuse of discretion review.a. De novo review of the trial courts determination of questions of law. Because the

appellate court is primarily responsible for declaring the law, the court can substitute itsjudgment for that of the trial courts.

b. Clearly erroneous review of the trial courts findings of fact. Because the trial court isresponsible for fact determinations, the appellate court will overturn a trial courtsfindings of fact only if convinced that clear error has occurred. Rule 52(a); it is notenough that the appellate court would have made different findings of fact on the samerecord.(1) Finings of fact include both basic fact-findings (who, when, where, what) and

findings of ultimate fact (negligence, discrimination).(2) In a jury trial, findings of fact are insulated by the 7th Amendment from any review at

all: no fact tried by a jury shall be otherwise reexamined in any Court of the UnitedStates.

c. Abuse of discretion review or matters committed to the trial courts discretion (e.g. wherethe Rules provide that the district court may do something). This is a very deferentialstandard of review, since the Rules invoke the district courts discretion not the appellatecourts; the appellate court will reverse only if the trial court has acted abusively orcapriciously See, e.g. Sigma Chemcial p. 285.

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IX. REMEDIESA. Distinction between equitable and legal remedies

1. Distinction is determined by whether remedies were available historically in equity or in law;determined by reference to history, although most equitable remedies are for specificremedies of some kind (such as reform or rescission of contract, or injunction againstproposed action or continuation of specified conduct). Note, however that there are specific

remedies, which are legal (e.g. replevin, ejectment, habeas corpus, and writ of mandamus).2. Since law and equity are now merged, why does the historic distinction still matter?

a. The jury trial right is only preserved in a suit seeking legal relief and even where bothtypes of relief are sought, the jury does not decide requests for equitable relief.

b. Equitable relief is committed to a trial courts discretion and may be denied for a variety ofequitable reasons (e.g., the plaintiff has unclean hands, or the relief sought isunnecessary to achieve justice).

c. A prerequisite for equitable relief is the inadequacy of legal relief.3. Because equitable remedies invoke the courts discretion, the court will also consider other

competing values, such as speech or ability to pursue ones profession (Sigma Chemical v.Harris).

B. Types of Remedies Generally

1. Remedies are either specific of substitutionary2. The purpose of remedies is to make the plaintiff whole viz., to put the plaintiff in the position

he or she would have been in but for the defendants challenged conduct a. Actual damages will include in some cases not only direct loss but in contract cases,

other foreseeable damages, and in tort cases, other proximate loss.(1) Measured by market value; courts typically refer to the general market and not to

specialized markets which might reflect subjective or objective valuation(a) Importance of records(b) Individualized determination for each plaintiff

(2) Recovery is subject to mitigation, which means that the plaintiff must take reasonablesteps to minimize actual damages (e.g., replace animals needed to manage cattleherd or crop acreage, or obtain new employment, etc.)

(3) Includes in some kinds of cases pain and suffering, which is an individualizeddetermination (see Buffalo Creek).

(4) Actual damages in Hathleyinclude herd loss which is proximately related to loss ofhorses and Navajo

b. Under modern procedural rules a plaintiff may seek both equitable and legal relief3. Pre-Judgment and Post-Judgment Interest4. Punitive Damages

a. Purpose to deter not to make wholeb. Substantive requirements

(1) Malice or reckless conduct; reprehensibility. The Court in State Farm p . 274heldthat the determination of reprehensibility could not include conduct unrelated to theconduct giving rise to the plaintiffs claimed injury, nor would it include conduct that

occurred outside the state.(2) Amount cannot exceed what can be rationally imposed, determined by degree of

reprehensibleness, ratio with actual damages and with any criminal penalty, networth (but only insofar as consideration of is necessary for determination of whatwould be needed to deter). This requirement is imposed by U.S. Supreme Courtsconstruction of 14thamendment to U.S. Constitution and notion of substantive dueprocess (BMW v. Gore). State Farm v . Campbellsuggests that anything morethan a single digit ratio would probably be excessive and that in a case like

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Campbell, where the plaintiff incurred no physical injury, a one to one ratio wouldprobably be the upper limit.

c. Procedural requirements, imposed by procedural due process in 14 th Amendment toU.S. Constitution, typically include courts authority to review and reduce amount ofaward; proper jury instructions, explaining the nature and function of punitive damages;appellate review; and careful handling of any issue concerning defendants net worth

5. Declaratory Reliefa. A form of relief in which the party asks the court for a declaration of its rights. See 28 USC

2201 and Rule 57.b. Typically used to contest the constitutionality of a statute that purports to regulate the

litigants conduct, or the legality of conduct where a person has threatened suit but notyet filed, thereby exposing the plaintiff seeking declaratory relief to an actual threat ofharm.

c. To satisfy Article III (US Constitution) case or controversy requirement, threat to plaintiffmust be real and immediate, and issue must be fit for determination (viz., the issue is notdependent upon changing factual circumstances)

d. Availability of such relief does not depend upon any showing that other relief isinadequate

C. Costs1.Awarded to prevailing party underRule 54(d)2. Costs do not include all the expenses of a lawsuit but only those costs referred to in 28 USC

19203. Costs typically do not include attorneys fees. Rule 54(d) and the American Rule. Costs do

include attorneys fees where the particular statute sued under provides that attorneys feeswill be allowed as part of costs (e.g. 42 USC 1988, providing for fee shifting in civil rightssuits, and discussed in Marek v. Chesney Xerox).

4. The effect ofRule 68 on post-offer costs (and on post-offer attorneys fees in those limitedcircumstances where fees are shifted to the losing party as part of costs) is discussed inmore detail in the special class handout discussinf costs and attorneys fees ??

D.Attorneys Fees

1. Under the American Rule, each side typically pays its own attorneys fees, regardless of thesuits outcome. The advantage of the American Rule is that it removes what otherwise be animpediment in the filing of meritorious suits

2. A countervailing concern for the defendant who is subjected to frivolous suits is met in partyby rules shifting all or part of defendants fees to the plaintiff in cases where there is nofactual or legal support for the suit, or where the filing is vexatious or frivolous. See Rule 11and 26(g), as well as 28 USC 1927

3. Fees must come from either:a. Litigants own pocket (based on flat or hourly rate);b. Plaintiffs eventual recovery (under some kind of fee sharing arrangement known as a

common fund or contingency few);c. The losing party, under a fee shifting statute or pursuant to a contractual arrangement

between the parties. 28 USC 2412(d) provides for fee shifting in any civil suit brought byor against the United States, where the position of the United States was notsubstantially justified. See Buck hannon B oard and Care Home v. West Virginia Dept.of Health p . 312, denying fees to a lawyer whose suit against the state was made mootwhen it resulted in the W.Va legislature changing the states rules in the way sought bythe plaintiff. The Court ruled that the term prevailing party is a word of art meaning aparty in whose favor a judgment is rendered (including a settlement embodied in aconsent decree). Do fee shifting provisions work well in a legal system where mostcases never reach judgment?

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E. Provisional Remedies1. Certain types of interim relief, pending a full hearing and often without notice (as in the case

of a Temporary Restraining Order, garnishment, or replevy). Concerns area. Because interim relief is based either on allegations of only one side to the dispute, or

only after a truncated hearing, there is a risk of unjust result.b. Merit aside, the opposing party does not have a full opportunity to be heard (and

sometimes does not even receive notice of the suit) until after the interim relief has beengranted, thus raising procedural due process concerns.

2. Despite there concerns, limited grants of provisional relief are possible, provided all thecriteria for such relief are satisfied.

3. Examplesa. Temporary Restraining Order (TRO), Rule 65(b). Since such orders may sometimes be

obtained ex parte (without the other party present), and since there is typically noopportunity for an kind of adversary proceeding, such orders are for a very limited time(not to exceed 10 days) and are secured with a bond; the applicant must also file anaffidavit setting forth specific facts clearly showing that immediate irreparable injuryloss or damage will result.

b. Preliminary Injunction. Unlike TROs, preliminary injunctions are determined only after

notice and some kind of hearing. However, the hearing is truncated, and thus dueprocess concerns are raised, even though the non-moving party will eventually receive afull trial. Accordingly, such provisional relief is available only when, without it the trialcourt will not be able to do justice later on, because relief will come too late.(1) Criteria for granting preliminary injunctive relief:

(a) Irreparable harm to plaintiff(b) Plaintiffs likelihood of success on the merits(c) Balance of harm to the plaintiff against harm to the defendant(d) Interest of the public(e) Posting of security bond

(2) Some courts employ a sliding scale rule, under which the likelihood of successrequirement is heavier or lighter depending on the degree of irreparable harm to the

plaintiff. See Will iam Ingl is & Sons B aking Co. v. ITT Baking p. 317c. Prejudgment garnishment or replevy

(1) Fuentes v Shevinstruck down Fla. and Pa. replevy statutes on due processgrounds, holding that(a) Provision in installment contract that retailer may retake goods in the event of a

default was inadequate to constitute either a knowing or voluntary waiver orprocedural due process;

(b) Purchasers interest in the continued possession and use of the gods was aproperty inertest protected by the 14th Amendment, even though title remainedwith creditor;

(c) Although replevy procedures of both states required retailer or individualrequesting the writ to post bond in twice the amount, the replevy procedures

were otherwise inadequate because:(i) Self-serving allegations of ownership and default were insufficient to protect

against mistake of fact; in Louisiana, where the replevy law was upheld, thelaw required an affidavit (sworn to) reciting more details concerning theplaintiffs claimed right to possession;

(ii) In Louisiana the replevy or sequestration order must be issued by the judge,not the clear, thus assuring review by a knowledgeable neutral; and

(iii) Pa. law did not require the plaintiff to pursue a post-seizure adjudication, sothat the alleged defaulter was not guaranteed a post-seizure hearing unless

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the individual initiated his/her own suit, which he/she might now have thefunds to do.

(d) And finally, the 1991 Connecticu t v. Doehr p. 148case makes it clear that evenif some or all of these protections are available, the procedure will beconstitutionally defective if no bond is required.