Kwok Tse Civil Pro Rules: Pleadings11/15/14

THE COMPLAINT- PLEADINGS

Rule 7: allows 7 pleadings (complaint) to be brought by the pleader. o Pleadings are allegation of facts or events. Needs to be distinguished earlyo 1st pleading is the complain (needs to look at forms and fill them in)

Π establishing a pleadingSummary: Rule 8 tells us what has to be in the case (must have 3 things)

1) Has to have SMJ (either invokes FQ or Diversity/supplemental Jurisdiction)2) Short and plain statement of the claim3) Demand for relief

Rule 8(a)(1). – Have to have Subject matter jurisdiction (first after the complaint to see which court can see it.) ( 1st allegation in the pleadings that should be made).

*Rule 8(a)(2). – Pleader needs to shows legal and factual sufficiency for entitlement of relief. o Factual sufficiently needs to go from conceivable to plausible(must be enough facts for

plausibility) (Bell Atlantic Corp) o If plausible = survive objection (Rule (b)(6) defense objection)/ if conclussory= will not

survive obj. (Case: Iqbal)o Pleader responsibility is to “state a claim to relief that is plausible on it’s face.” Must

give enough details about subject to present a story that holds together. Courts will ask would these things have happened. (Case :Swanson v. Citibank)

o The facts must support a plausible claim.o Court uses experience and common sense to assets plausibility (very subjective)

Case: Twombly+Iqbal:o Courts ignore conclusion of law and looks only @allege factso The facts must support a plausible claimo Courts uses experience and common sense to assess plausibility (very

subjective)

Hypo #1: Legal sufficiently that complaint has to have:1. Π v. Δ (1st allegation: I was mugged on Somerville Ave on 2/25/12)2. Δ(B) was present at the time3. Δ(B) did nothing to save me4. Π (A) claims Δ(B) was an accomplice to the battery

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Answer: X – B has no legal duty to act o Legal sufficiency, even though Π allegation are true, he has failed in stating a

claim in which a relief can be granted under Rule 12(b)(6). Since there is no law for a legal duty for B to act, there is not relief for this claim.

o Note: If judge dismiss without prejudice, Π can feel free to file a new case

Note: If judge grants leave to amend the complaint, it gives the Π a chance to amend.

Hypo#2: Same story, under the facts, add additional facts stating Δ(B) was a security guard. Answer: Since Δ (B) had authority to protect Π, the allegation meets legal sufficiency.

IMPORTANT: Note: This does not have to be proven in the pleadings, it will be proven during the discovery stage. However, if Π has no basis for this type of claim, he would have acted in bad faith and violated Rule 11 because he just “threw” in the facts.

(Below) See Rule 11: gives Π sanction by the court if there is no basis for the claim.

(Does it meet the legal statue?: the proof for the violation of the law for legal sufficiency. )

Form 11, pg. 144 meets the legal sufficient and the factual sufficiency.

Rule8(a)(3)- Demand for relief.

Rule 8(d)(2)- Alternative Statements of a Claims or defense. o Pleader can claim two alternative theories for recovery. Alternative facts

can be alleged as well (can have 2 claims of relief)o Pleaders within same complaint can put forth various theories on recovery.

(ie. Inadequate warning etc, Count #1 BATTERY AND Count #2 NEGLIGENCE)

o Δ can also plead these claims all in the same answers and object and failure to state a claim.

Rule 8(d)(3)- Inconsistent claims or defenses. o Pleader can make 2 allegations which are inconsistent with one another.

“State as many separate claims or defenses as it has, regardless of consistency.”(If one is true, the other one could not have been true). (ex. if A then not B, If B then not A= have to pick one)

o Case: McCormick: absolute affirmative defense: even if defendant is negligent, if plaintiff is also negligent, plaintiff has contributory negligent and defendant has a right for a full defense of being absolve of the liability.

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o Inconsistent claims are allowed if there is no basis to ascertain the information (ex. if wife was not there, she assumes this many things happened.)

o Note: attorney will rarely present inconsistent theory because it makes them look less believable.

Hypo: Husband (McCormick) did not die and went to attorney and told attorney he was drunk when leaving the tavern, but still wants to sue defendant.

Under Rule 8(d)(3) attorney can bring inconsistent claims if client does not disclose this information however, Attorney has a legal obligations under Rule 11 that prohibits attorney to make claims that they know is not true . (*Attorney will commit perjury if they lie)

Lawyer and the party need to conduct themselves in a reasonable inquiry.

Rule 11: lawyers need to conduct a reasonable inquiry. o Rule 11(b): When submitting all the paperwork, attorney must have certified the

information formed after an inquiry reasonable under the circumstances. o Reasonable is (subjective) and depends on the circumstanceso reasonable inquiry if use for both the plaintiff and defendant attorney (goes to all the

rules except discovery).o

Hypo: Π comes to you to file suit a day before statute of limitation runs. An attorney did not look @ the police report. Attorney files, is this reasonable inquiry?

Hypo: Under Rule 11, client can tell attorney about an accident, Client was hit when D while passing a red-light (this is what the police report says)

o Answer: Attorney can bring suit on the facts of the police reports. If you don’t’ allow a lawyer to go to trial, then it is unfair to give Π because they should have a day in court.

Rule 11 should not prohibit the clients claim due to reasonable inquiry.

o Rule 11 (c)(2)Sanctions: Safe Harbor Provision. o Allows attorney to have 21 days after service (time runs after person ahs notice with

paper) to fix the mistake. If they do not fix it, (Π) can file with the courts.o Note: Courts may impose sanctions and may not!

Rule 10: Forms

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o Rule 38(b): you can ask for a jury trialo ask for it within 14 days of closingo If past 14days, you give up right to jury trial. o Either party can ask for jury trial Π/Δ

Δ Pre-answer motion/ Answer to Π pleadings:

Answer

Δ has option to pre-answer or answer: Rule 8(1)(B)

1. Respond to allegation: ADMIT, DENY, OR STATE lack of knowledge and information

Failure to deny is admission on any allegation except on damages. (If you don’t deny it, you then admit it).

Rule 8(b)(5)- Lack of knowledge and info has to be something not in your control.

2. Rule 8(c): Raise a new matter through an affirmative defense: injecting a new fact and that Π should not win (such as statute of limitation or statute of fraud)

Note: put affirmative defenses in your answer or risk waiver.

Rule 12(a)(1)(A): tells Δ that they must file an answer within 21 days after being served with the summons and complaint otherwise they can be sued for default.

Note: Δ has two options: they can respond through motions or by answer. ** Motions is not pleading: Motions are request for the court to do something (court

order) and Pleadings are allegations.

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MOTION

After receiving the summons and complaint, Δ then may assert the following defenses by motions under Rule 12(b) defenses

1. Lack of SMJ: Can be brought @ anytime2. Lack of PJ *3. Improper venue*4. Insufficient process*: (documents were not specific format, challenge adequacy of

summons, etc.) 5. Insufficient service of process*: (challenge manner in which it was delivered to Δ)6. Failure to state a claim upon which relief can be granted; and7. Failure to join a party under Rule 19: (indispensible party rule: order particular party to

be added because they are indispensible to the law suit)

Note: * mean it needs to be brought in 1st response or you waive those rights for all time.

Rule 12(g)(h) Waivable defenses: States that *Lack of PJ,* Venue,* Insufficient process, *Insufficient service of process must be in the 1st response by Δ or else they will be waived thus they are known as Waivable defenses.

Rule 12(b)(6)(7) : can be raised for the 1st time, anytime through trial. (you do not have to put it in the 1st response, however if you do not raise it throughout the trial, you cannot put it if you have an appeal.

Rule12(b)(1) : SMJ can be raised at anytime through the case or on appeal.

Other Defenses that Δ may use

Rule 12(e): motion for a more definite statement: order the Π to come up with a better pleading b/c it’s unclear. Narrow down general allegation. Allow a party to prepare a responsive pleading “or to prepare for trial.” (Requires Δ to make this motion before filing a responsive pleading) *if Π does not obey within 14 days after notice, courts may strike the pleading.

Rule 12(f): Motion to strike: courts may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter on its own or by the other party within 21 days after notice was served.

Notice

Adequate Notice: Constitutional requirement Rule 4(c)(1): “summons must be service with a copy of the complaint.” – copy of the complaint

gives the Δ notice of the allegation made against her.

o Case: Mullane: Reasonable Test notice must be of such nature as reasonably convey the required information and it must afford reasonable time for those interested to make their appearance.

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The more substantial (serious) the case, the more substantial to use reasonable test. (Ex. if you have the person address, the bare minimum you are required to do is to mail the notice and include a copy of the provision of the act.)

Rule4(a)(1): tell you what summon does and what it contains Rule 4(c)(3): by a marshal or someone specially appointed. When the Marshal’s office is to effect

service, the Π may be required to instruct the marshal how to do so. Rule 4(e) servicing an individual within a judicial district of US: an individual other than a minor,

an incompetent person, or a person who waiver has been filed may be serviced in a judicial district of the US.

Rule 84: Federal rules are accompanied by a set of forms which are deemed sufficient to satisfy the requirement (ex. From 3:summons form)

Amendment and statutes of limitation

Policy Considerations:Rule 15(a): Amended and Supplemental Pleadings

a) Amending as a matter of course (don’t’ have to ask the court or Δ for permission): a party may amend its pleading once as a matter of course:

b) Within 21 days after serving it, or If the pleading is one to which a responsive pleading is required, 21 days after service

of a responsive pleading or 22 days after service of a motion under Rule129b), (e), or (f), whoever is earlier.

Note: the rules also applies equally to Δ as well

i. Case: Aquaslide : Manufacturer or waterslide, a year and half later inspected the slide and determined that he did not built the slide and sought to leave to amend its answer to deny manufacture of the slide.

Rule: Because of no bad faith by Δ, or undue delay, or prejudice, amendment was granted.

Reason: Aquaslide proved that it was not there slide and therefore Π does not have a party to sue.

Hypo: A hit by a car B is drivingi. A sues B (A serves in hand notice and alleges B ran a redlight and this

complaint has Legal and Factual Sufficiency)ii. After lawsuit commenced, A discovers that through police report B was DUI

and C was the owner of the car and was fully aware of B DUIiii. What would A attorney Do given the facts?

Answer: Add on C to suit: A v. Δ(B) + Δ (C) and add another claim of C for separate damages (add another party and claim)

Note: it si very easy for Π and Δ to amend their pleadings because of the structure of the course by discovery and finding out new things.

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If A adds C to the lawsuit there is obligation to notify B of the case. Rule 15(b)(2): courts should freely give leave to amend when justice is

required . Burden is on Δ to convince the court that they should nto grant the

amendment Δ has to argue that Π is prejudice, amendment was in bad faith, or

undue delay For prejudice: Δ has to argue unfair position and that Π is “sand

bagging” the case.

Rule 15(c): if amendment relates back to claim, court will allow claim regardless of statute of limitation if the original claim was within statute of limitation prior.

Rule 15(c)(1)(A): if State/Fed law allows it, you can add on the claim regardless of statute of limitation.

Rule 15(c)(1)(B): it has to arise out of Same transaction and occurrence set out. (ex. because the DUI relates to the car accident, this meets the relating back to the claim also it is with same Δ)

Rule 15(c)(1)(C): very difficult to add new claim due to statute of limitation. (MA does not make it difficult to add a new party—all that is needed is to prove the same transaction and occurrence)

Hypo#1: Dates: Event6//12 Car accident Claim #110/13 Suit filed (Π filed within Statute of Limitation)5/14 Statute of Limitation is past7/14 Π wants to file amendment for claim #1Hypo: Π now wants to Ammend the complaint. Π found out from Discovery other claims he want to add. (Π discovered that Δ was DUI and want to add this as #2 complaint)

Answer: Under Rule 15(c): if amended relates back to claim- we are going to allow the amendment to relate back regardless of Statute of Limitation if the original claim was within the statute of limitation. Notes: 15(c)(1)(A): if state and Fed law allows it, you can add on the claim regardless of

SOL has passed. Note: Under Rule 15(b)(2): If Π wants to add complaint before Statute of Limitation

passes: He could do that and it’s up to the Δ to prove bad faith rule under Rule 15(b)(2)

Joinder Rule

*when new party or claim is added: have to see if there is SMJ (FQ, Diversity, or Supp jurisdiction)

Joining PartiesRule 20: Permissive Joinder of parties: allows Π to join parties (Δ’s) if the claims arise out of the same transaction and occurrence + relates to the question of law/fact. (Just has to be one question to relate to the claim)

Π can join based same T+O or series of T+O.

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Π can join the Δ if the same T+O or series of T+O arises from the claim.

Hypo: A(Π) sues Dr. B(Δ1). A(Π) want to add Dr. C (Δ2). Π was unsure which Dr. (either Δ1 or Δ2) operated on her. Can she sue both?

Answer: Yes, the adding of Δ2 was related to the same occurrence. The common fact between Δ1 and Δ2 was which one performed the operation. She can also add more Δ if the claim was related to the same transaction or series of occurrence.

Hypo: what about adding the hospital to the claim as Δ3? Answer: Yes. A can assert a claim against the hospital due to allowing Dr. the privilege to

perform in the hospital: The T+O: the surgery occurred @ the hospital and the common question is to add the hospital because the jury needs to find out which one of the Dr. committed the negligent.

Hypo: Can husband join with A as Π? They would have to prove the law of consortium? relates back to the surgery (yes it’s easy?)

Note: Rule 20 allows claim if they related back to same T+O I t set up for easy defenses to be brought in. Help clients and judicial economy (less cases spreads out) Allows to find out who was really liable between the (if spreadout, the ruling may be

inconsistent and may find all the Δ1 and Δ2 guilty if separate trial).

Hypo: P gets hit by A in car accident (P breaks leg). 2 weeks later, P in friend’s car got hit by B (P breaks arm). 2 separate injured occurred at this point- divisible injury.

Q1: Can P join A and B in suit? o Answer: No, because this is 2 different injuries (not coming out of the same

transaction occurring)o Is there a question of fact/law: No thought it’s the same question, it pertains to

different injuries.

Q2: Can P and her friend (who’ s car was damaged) sue B in the same lawsuit.o Answer: Yes, it is relating from the same T+O w/ the car accident. Yes, there is same

fact/law (question was if B is negligent)

Q3: same hypo but 1st and 2nd accident both resulted in the same injury for P (shoulder and neck injury). Can P now bring suit between both A &B?

o Answer: Yes, when you have separate events but there is a relationship between the two (both have shoulder and neck injury that resulted) then you can sue both together.

o Rule: Π are permitted to join multiple Δ in a single action even when the relief sought relates to a series of wrongful acts, which were committed by different Δ if the wrongful acts involved related to the questions of law/fact.

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Joining ClaimsRule 18 Joinder of claim (piggy back)

Hypo: A sue Dr. B for malpractice. A also sue Dr B for breach of K (which is unrelated to malpractice.) Is this allowed? Answer: Yes under Rule 18, A brings multiple different claims that are unrelated to the first

claim, but the judge may not keep them under Rule 42. (Judge may dismiss the 2 nd claim in order to not confuse the jury).

Hypo: A in a car accident w/ B. A brings claims against B for (#1) person injury and another claim (#2) loss wages. Can A (Π) bring suit against B with claim together? Answer: Yes under Rule 18(a). The Π can bring the claims together in the suit but it is not

required. ( **Res judicata requires Π to bring all transactional related claims during time of suit. )

o IMPORTANT NOTE: Just because Rule 18 allows it, it does not mean that they will all be heard. There

has to be SMJ before a new claim is permitted. Rule 42(b): Courts can allow separate trial for claims to not confuse the jury. Rule 18 applies to every joinder claim from the Π or Δ

Rule 18: Π/Δ can join any claim she has (does not have to be related and does not have to be raise from same trans and occurrence)*with every claim, has to see if it invokes SMJ (FQ, Div, or Supp Jurisdiction)Rule 18: Claim against opposing party; against someone who sues you (file into an answer)

Rule 13(a)Compulsory counter claim: arises from same T+O as the Π claimo Must be asserted in the pending claim otherwise it is waived. o Has to be raise as a counterclaim first if it is related from same T+O

Rule 13(b) Permissive: unrelated claim. May be asserted but does not have to.

Steps to take: Every claim you have to see if there is SMJ (Diversity, FQ, or Supplemental)1. Procedural formation (does it arise from same T+O)2. Does the T+O invokes Diversity by itself (note: if it does not invoke it diversity due to amount

in controversy, go to step 3 supplemental jurisdiction).3. Supplemental jurisdiction

a. Under Case: Gibbs, claim must have common nucleus on operative fact =compulsory counter claims always meets common nucleus b/c it is narrower rule with same T+O.

b. Rule 1367 applies to diversity cases, but it only have supplemental jurisdiction if it’s a claim by the Δ.

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Cross claim/counterclaimHypo: A v. B (driver of car sue for negligence) +C (owner of the car sue for negligence) (It was a car accident )

1. Rule 20: allows Π to add party (join party) that arises out of T+O (relation: automobile accident that both were involved in)

2. What if C wants to sue B for value of the car because B was driving.Answer: C and B were co-defendant. Under 13(g) cross claim against co-party , C can sue B if it arises out of the same T+O. (C will be 3rd party Π and B will be 3rd party Δ)

3. What if C sues B, and B sues C for his negligence of failure to maintain his breaks. Can B sue?Answer: Because C brought the suit against B first in a crossclaim, B and C are not opposing each other. B now has sue as a counterclaim because they are opposing each other now. Rule 13(a) counter claim rule assert any claim as long as it arise from same trans and occurrence.

Impleader: Δ can join someone called 3rd party Δ due to the 3rd party may be partially liable for the Δ claim.

Rule 14- Permitting Δ to bring in another Δ.Δ is called 3rd party Π and the person he is suing (Δ2) is called third party Δ

Under Rule 14, the Δ may implead a 3rd party Δ within 14 days of answering the complain without obtaining a leave of court.

Contribution: Δ obtain a judgment that the third party Δ is liable to pay the main defendant part of the damages she is ordered to pay the Π. (ex. shared negligence of the liability)

Indemnification: obtain judgment that the third party should cover “all” of the liability. (does not dissolve liability of Δ, but says that third party should still pay because they are the cause of the harm).

Hypo: A (passenger in car 1) v. B (accident car II)(truck driver who work for D) D(B’s employer) + C (driver of car I)

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Rule 14 provides B opportunity to bring in people whom A did not want to bring in. But B has to be partially liable for this to bring in third parties. Note: at this time 3rd party lawsuit: A has no suit against C and D yet.

Rule 14(a)(1): Δ cannot defer all their faults to 3rd party. Use only for derivative liability. It can only be used to collect from C and D only if B is liable for A. (3rd party Δ can be added in the same suit, however, no money will be given to B until B gives money to A).

Contribution (pay for half of the damages because I’m only half responsible) and Indemnification (company will bear the cost of the driver) is only allowed under Rule 14 when B is liable to A suit. B has to be @ fault or partial for claim to bring third party Δ to the court. (B has to pay A before suing 3rd party Δ).

Note: B can call C as a hostile witness’ to have him testify** (need further explanation).

Litigation strategies for 3 rd party Δ Hypo: if we are defending C from a lawsuit against B who used Rule 14 , what are ways C can

defend himself on contribution on the merits. o Common enemy: C can argue that B is not negligent to A (common enemy) therefore

if B does not pay A. C will not have to pay B. (C has to work together with B to go against A to defend his case of not paying B).

14(a)(2)(d): a 3rd party Δ, if they have a claim that relates to the same T+O against original Π can assert a claim against Π.

14(a)(3): Π can assert a claim on Third party Δ if the claim arses from the same T+O

Hypo: A(driver) v. B (driver) C (owner of the car)

A sue B for negligence damages B bring in C (owner) for negligence of maintaining the breaks on the car (this is allowed due to

Rule 13(g) because it arises from the same T+O)o Note: Now C can sue A for negligence due to A damaging C’s car under Rule 14(a)2(D)

due to the negligence of the car damages arising out of the same T+O

Rule 14(a)2(D): 3 rd party Δ can bring a claim Π: (if they had a claim against the original Π) for their damages so long as it arises from the same T+O

If C wants to bring a claim against A: It will be a counter claim. 3rd party Δ may also assert against the Π any claim arising from the same T+O that is the

subject matter of the Π claim against the 3rd party Π (as long as it arises from the same original claim).

if it relates to the same T+O it will be a compulsory counter claim, If it does not relate to T+O, it will be a permissive counter claim.

Rule 14(a)(3): Π claims against a third party Δ:Rule 14 states that Π may assert against the 3rd party Δ any claim arising out of the same T+O that is part of the initial claim (in this case, it is the original claim of the suit).

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If A file a suit against C for negligence on maintaining the breaks, then it will a compulsory counterclaim under Rule 13(a) then A can file a Rule 18 and state another claim (a party can assert any claim after the initial claim).

Notes and Questions; pg. 700

Hypo: P and D have entered a business contract that is not faring well. In a completely unrated event, each is driving her own car, and they collide. P sues D to recover damages for the auto collision. D wants to counter claim for (1) her injuries from the collision and (2) P’s alleged breach of contract in the business deal.

May she assert these two in the pending case? Why? Does Rule 13(b) add anything to Rule 18(a).

o Answer: Yes, first claim that D asserted is a compulsory counter claim because it arises from the same T+O of the accident. Rule 18(a) allows D to piggy back off of the first claim and add any additional claims that are not from the same T+O of the accident. (Note: compulsory counter claim must be raised first or else it will be lost?)

Must D assert either of these two in the pending case or risk losing the claim? o Answer: Yes, D has to assert Rule 13(a) compulsory counter claim and it must be raised

in original litigation or else it will be waived.

Assume that D asserts a counterclaim against P, how must the plaintiff respond? Rule 7(a) and Rule 12(a) eschew (does not use) the labels “Plaintiff and Defendant.”

o Answer:

Notes and Questions; pg. 702Hypo: Perry is injured when the car he operated is involved in a collision with a car owned by Olive and driven by Donna. Perry sues both Olive and Donna. (By way of review, why is the joinder of Olive and Donna as co-defendant proper?) In addition to filing an appropriate defense response to the complaint, Olive want to assert offensive claims (1) recover for the damage to her car and, (2)if Donna was at fault in the collision, to receive indemnification from Donna for the judgment in Perry’s favor. Note that the first of these two claims can be asserted against both Perry and Donna; the second is against Donna only.P v. O + D

Answer: Under Rule 20, Π can join parties if the claims arise out of same T+O and relates to question of law. Yes, Π can bring both Δ into suit due to claims’ of both parties arising out of same T+O and the question of fact would be who was negligent in the accident

What claim may Olive assert against Perry? What if anything ,might happen to her claim if she failed to assert it?

o Answer: Under 13(a) : compulsory counter claim to opposing parties: Olive can assert a compulsory counter claim from her first claim because it relates to the same T+O of the accident. For compulsory CC it must be asserted in the first claim or she will waive her rights to it.

What claim may Olive file against Donna? Must she do so? Note that Last sentence of Rule 13(g). It clearly allows the indemnify claim against Donna. What part of the rule allows her to sue Donna for damage to the car? O(3rd party Π) D (third party Δ)

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o Answer: Under Rule 13(g) Olive can file a compulsory cross claim between Co-parties. O can sue D if it arises out of the same T+O as the accident in which case it does.

Suppose Olive asserted a claim against Donna for Indemnity but not fro damage to the car. The entire case, including this claim against Donna, goes to trial, and the court concludes that Donna was solely responsible fro the accident. Now Olive files a separate action against Donna to recover for damages to her car. Why would this be dismissed in most jurisdictions?

o Answer:

Suppose Oliver asserted against Donna both the claim for indemnification and the claim for property damage to her car in the original proceeding. If olive had a completely unrelated claim against Donna—say for trespass on her farm, how could Oliver assert that claim in the pednign case? Must she do so?

o Answer: Under Rule 18, you can piggy back any claim related or unrelated. However courts may dismiss the claims under Rule 42 under there discretion.

Suppose Olive Asserted a cross claim against Donna seeking both indemnification and damages for wrecking her car. Now assume that Donna wants to assert a claim against Olive, Alleging that the car Olive lent her had defective brakes, which caused the collision with Perry. What argument can you fashion for the proposition Donna must assert this claim in the pending case?

o Answer: Under Rule 13(g) Olive started the suit as a compulsory counterclaim which must be raised otherwise it’s waived when he sues D. O and D are no opposing parties and so D can do a counterclaim under Rule 13(a), a pleading of any claim that is against the opposing party if the claim arises out of the T+O.

Suppose Olive had a claim against Donna that was not transactional related to the pending case, for which there would be SMJ. Why can she not assert that claim alone in the pending case? If she had a claim against Donna that was transactional related to the pending case, how would she assert it and the unrelated claim in the pending suit?

o Answer: no, not arising from same T+O. Cross claim have to arrive from same T+O if you want it to be brought. 1st claim needs to be related with T+O. Use Rule 13(g) to have cross claim, then you can assert Rule 18 to have any claim including breach of K.

SUPPLEMENTAL JURISIDICTIONStatute 1367: SUPPLMENTAL JURISIDCTIONHypo: A is suing B

A (MA) V. B (MA) Suit is based on FQ B files a claim against A based on Rule 13a compulsory counterclaim (it arises from the same

T+O as the FQ) o Ex. A alleges B (police officer) used excessive force therefore violated 1983 of Federal

law. And police officer filed a Rule 13(a) counter claim stating that he did not use excessive force, but in fact Δ resisting arrest caused me injury and I will sue for battery.

Problem with the compulsory counterclaim: It’s not a 1331 FQ counterclaim and also no 1332 Diversity due to both being from MA. (No independent SMJ). If there is no claim by which the counterclaim cannot have SMJ, you can go to Supplemental jurisdiction.

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Use supplemental Jurisdiction:

Supplemental 1367(a) : it provides supplemental jurisdiction if there was a problem with subject matter jurisdiction

Hypo:A v. B A sues B for FQ B sue A for battery which is a state claim(counter claim): Under Rule 13a (compulsory

counterclaim)- which is permits If the district court have original jurisdiction over the claim, you can have supplemental

jurisdiction. Rule: form part of the same case or controversey: As long as it’s the claim is from same T+O of

the original claim. There is supplemental Jurisdiction. o only can hear compulsory counterclaims related to the T+O

Supplemental jurisdiction 1367(b): stops supplemental jurisdiction NO SUCH THING AS A COMPULSORY RULE 18 CLAIM

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BIG BARBI HYPO

A(Π) (MI) v. B(Δ) (NY) Car accident claim #1 : 100,000 (Diversity and amt in controversy met)

Cross claim

Comp

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Test SMJFQ Does the claim violate Fed law that’s supposed to protect you?

Diversity and amount Are the parties from diff area and 75k requirements met?#1: If they are met, you do not have to do supplemental jurisdiction.

#2: If the 1st claim is a SMJ and the 2nd claim does not have SMJ, you have to test Supplemental jurisdiction to get the 2nd claim heard in Fed court together

Supplemental Jurisdiction1367(a) (2 part test)(easier test)

If the claim #2 arises from the same T+O (common nucleus)(compulsory counter claim), then there is Supplemental Jurisdiction

Have to make sure by testing 1367(b) (only deals with Diversity

1367(b) (if all elements are met, then there is no supp jurisdiction)

Initial claim was based on diversity (statute 1332)Initial Π file against the party is added by either:Rule20 : Π can join co-Π or defendants or co-ΔRule 14: Δ (3rd party Π) adds another Δ (3rd party Δ) based on indemnification or contribution and relates back to T+OA claim must be brought by the original Π. (3rd party Π is excluded) IF ALL of these tests are MET, then the suit will NOT have supplemental jurisdiction and therefore will not be in federal court. If 1, 2, or none are met, there IS SUPPLEMENTAL JURISDICTION.

CCC (Δ) (NY)

1. Under 13(g): against co parties (Δ v. Δ) must rise from same T+O as the underlying case. (C can sue B) C may file a cross claim between it’s between co-parties and arises from the same T+O

2. Claim #1 amount in controversy and diversity if met (it’s good for SMJ)3. Q: if there is NO SMJ because of Diversity or FQ then you jump to Supplemental jurisdiction for the #2 claim.

Under Rule 1367: Cross claim arises from same T+O (which always meets gibbs common nucleus of operative facts

Applies to only diversity cases: only takes away supp jurisdiction over claims made by Π. If the claims are made by Δ then , then 1367(b) does not kill supp juris and the claim can be brought into fed court with claim #1

4 Federal Rule Procedure by which the party can get the other party to lose before trial begins.

12(b)(6): Failure to state a claim for a remedy Rule 56: summary judgment Rule 50(a) (JMOL) Directed Verdict Rule 50(b) (RJOL)

12(b)(6): Failure to state a claim at which a remedy can be granted: Raised by Δ (needs to raise it anytime until the trial) Made at the very outset of the trial Δ, even if everything Π says is true about the claim, the law does not provide a remedy for the

claim he is asserting. Ex. I file complaint that Δ who was walking by swimming pool failed to jump in and save my

child from drowning Answer: Π states alleging Δ was able to save the child but did not has no legal sufficiency

because there is no law enforcing a legal affirmative duty for a bystander to act). o Note: Δ will file a Rule 12(b)(6) motion and at that point, Π has two choices depending

on the court: can re-file (dismiss w/ prejudice) or Π can amend the complaint. o If Π comes back and states that Δ was a lifeguard, then there is a legal duty (Π has a

basis to allege the reasonable inquiry that the fact is true).

Discovery: process at which each party follows up on what the other parties knows. (there are a # of ways different steps can be taken).

Interrogatories (Rule 33): written questions answered in writing under oath.o Answer sent to each party to answer in a truthful way.o Parties have 30 days to answer the questions o (only able to call on the opposing party) and not non-parties

Deposition (Rule 30): Questions asked orally and each side call in opposing side, where other side is asked questions by the other court.

Statements become part of the record to use to impeach the speech of the person. (can call for medical records, etc)

Can be called by anyone like witnesses or have relation with the circumstance.

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Only way to have non-party to talk, needs a subpoena otherwise they do not have to show up.

Deposition can get heated like yelling and people telling the truth.

Summary Judgment

Rule 56(a): Summary judgment Authorizes the court to enter judgment whenever it appears that --“there is no

genuine issue as to any material fact the movant is entitled to a judgment as a matter of law.”

Slaver Caseo 1:15- arrested and put in jail, 4:30 sister went to visit him in jail,1:30 am victim

hung himselfo *these facts are not disputed*o Δ (police) sent all the affidavits from other police officers claiming that they

had no idea and reasonably should not have known he was going to hang himself.

Ex. police did not see a suspicion of suicide, it was self servingo Π(sister) had no evidence to counter the Δ arguments

Note: the sister could have written an affidavit and said he was acting abnormal to give suspicion of matters of fact, but she probably did not because she could not see anything wrong with him.

o Why is the question of him wearing a belt not a genuine issue of material fact? Answer: The law was based on if the police had a reasonable belief

that the brother was suicidal in this case. Π could not prove her brother was suicidal so therefore she could not prove reasonable belief that police had a legal duty.

Note; there is only one reason why people go to trial, that is to resolve dispute of fact. So, if there is no dispute of fact, we do not take this matter to trial and judge can make a decision on a matter of law.

o The evidence comes from the parties under oath through (affidavits, declaration, depositions)

Pleadings are not under oath and not used as evidence. Summary judgement is granted when there is no dispute (no genuine issue of material

fact).o If no dispute on material fact, the court can rule based on the matter of law. o Note: this is under discretion not the judge, they do not have to grant

summary judgment

Barbri Hypo: (no summary judgment)o Π sues Δ alleging that Π was in a x-walk, Δ ran a red light (all in the complaint)o Δ file answer and deny this allegation

Δ move for summary judgment (giving affidavits of witnesses saying all same stories under oath).

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Witnesses all say that Δ had the green light and Π jumped in front of the car.

o Answer: if there is a dispute on the material fact (evidence), there is no summary judgment because you can’t judge credibility, have to deny summary judgment

o Exception: Case Scott v. Harris: if there is video surveillance showing the accident and the facts (judge may grant summary judgment based on the video).

Primo facies case: Π has burden of proof to prove all elements of the case are true Affirmative Δ: Δ has burden of proof on all affirmative defenses.

o If Δ has not given any evidence, affirmative defense is void

o Δ has to show and disprove one of the elements that there is no genuine issue and it will not be based on summary judgment?

Π to get summary is very hard: unlike the Δ, Π has to prove that there is no question in regards to all the questions of fact.

So long that there is issue of some fact/ Π may not win on summary judgement because Δ may have a genuine issue

Burden of Production and Persuasion

Whoever has the Burden of production also have burden of persuasion

Burden of production: Π must produce some evidence of each of the element If Π can prove that there was a breach of duty not meeting burden of production= no

summary judgement Burden of production goes to the production of some evidence Note: it’s not a question of believe by the judge, it’s a burden of Persuasion

Motions to judgment as a Matter of Law (JMOL)

JMOL also called a directed verdictJudge takes away the case from the jury.Standard: reasonable people cannot disagree on the result (because the evidence is so clear reasonable people cannot reach different result, therefore Judge will enter JMOL and no jury.

Under Rule 50(a)(2): cannot move for JMOL until other side has been heard at trial

Barbri Hypo: Π must show 4 things to win his case, must show (A)(B)(C)(D). (Π have to prove a,b,c,d, are all true).

If Π shows all (A)(B)(D) and not (C), Δ may raise JMOL because a reasonable people could not disagree. Π did not put on enough to justify going to the jury.

This is the same as summary judgment, but it comes up during trial while summary judgment comes up before trial while avoiding trial.

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Because there is no dispute of fact/ reasonable people could not disagree, therefore move to JMOL

Note: if reasonable people could disagree, we can’t use Directed verdict. If we are at trial and reasonable people could not disagree then JMOL is valid and no jury.

Renewed Judgment as a Matter of LawRule 50(b): Renewed JMOL (JNOV): comes up later (same as JMOL)

It is a 2nd chance at JMOL) The court denied JMOL initially and the case went to the jury. When jury enter the verdict to

the judge, the losing party can bring JNOV and if granted, the victory is taken away from the winner and given to the losing party.

We do this if the jury reached a conclusion that a reasonable person could not reach.o Must be made within 28 days after the judgmento Must have moved for JMOL at a property time at trial (after the other side has put on

their evidence)o Note: it can be waived if not proper.

Directed Verdict (judgment as a Matter of Law) pg. 508-510When a case goes to trial before a jury, the court continues to have authority to determine whether there is sufficient evidence to support a jury verdict.

If court determine insufficient evidence, it may decline to submit the case to the jury and instead enter judgment called directed verdict.

In the alternative, the court can submit the case to the jury and if the jury returns a verdict for which

there is insufficient evidentiary support, the court may enter judgment notwithstanding the verdict called a JNOV.

o Note: std for directed verdict and JNOV is the same as the STD for summary judgment which is: “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” (Anderson v. Liberty Lobby Inc)

Rule 50: Directed verdict is now a “motion for judgment as a matter of law” (JMOL) and the JNOV is now a renewed motion for judgment as a matter of law.

o Note: despite the name change in the Rule, “directed verdict” and “JNOV” are still sometimes used in federal practice and are widely used in most practice.

JNOV (JMOL granted after a jury verdict) presents a somewhat trickier problem. Rule 50(b) provides that if a motion for JMOL is denied, “the court is considered to have submitted the

action to the jury subject to the court’s later deciding the legal questions raised by the motion.” o The rule also allows a party to file a “renewed” motion for JMOL, but a motion can be renewed

only if there was a prior motion. o A renewed motion for JMOL must be filed within 28 days after the entry of a judgment and this

time limit cannot be enlarged by the court. o If a party moves for JMOl before the case is submitted to the jury and then does not renew the

motion after the verdict, the courts held that in the absence of such a timely motion, the trial court lack authority to enter a JMOL (Johnson v. NY 1952) (motion by a party is required)

Motion for new trial Must be made within 28 days after the judgment

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Different from RJMOL (here the judge is convinced that something was wrong in the case and we should start over)

This can be anything that convinces the judge that the case was wrong. (Mistake by the judge, jury, and burden was put on the wrong person, etc)

New trial is less drastic: same party might still win. Barbri example: suppose we go all the way

Res Judicata (CLAIM PRECLUSION)

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