Civ Pro - Bryant

8/4/2019 Civ Pro - Bryant

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CIVIL PROCEDURE OUTLINE

I. DUE PROCESSa. What courts must have to adjudicate a case:

i. Comes from the 5th and 14th Amendment (no person shall be deprived of life,

liberty, or loss of land without due process)

ii. Service/Notice

iii. Jurisdiction

1. Personal jurisdiction (over parties)

2. Subject matter jurisdiction (over case)

a. Federal question jurisdiction

b. Diversity jurisdiction

iv. Proper venue

II. DUE PROCESS: THE RIGHT TO NOTICE AND THE

OPPORTUNITY TO BE HEARDa. Process Due

i. Hamdi v. Rumsfeld

1. Facts Hamdi, U.S. citizen detained for being an enemy combatant and

never given due process.

2. Rule Citizen must always have some form of due process. Even where

there are special circumstances (war crimes) you still need due process.

This case shows us how much due process is really appropriate. Enemy

combatants Guilty unless proven guilty OConnor. Every U.S.

citizen is due some notice of hearing and we use Mathews to

determine this.ii. The Mathews test: How much process is due?

1. Established in Mathews v. Eldridge, provides a test for balancing issuesof the Governments autonomy with a citizens right for dueprocess to prevent erroneous deprivation of process

2. Determined by weighing the private interested affected by thegovernment against the Governments asserted interest and theburdens the Government would face in granting more process.

3. Erroneous Deprivation the court will weigh the risk of erroneousdeprivation as well in light of the facts and circumstances of the case

b. Right to Notice

i. Fed. R. C.P. 4: Provides a way to assure notice follow the rule and you

have given constitutionally adequate notice

1. Central Function: to provide notice that a legal action has been filed,and to provide this notice in such a manner and at such a time that thedefending party will have a fair opportunity to answer the pleadingand raise defenses and objections.

2. Purpose of Summons to alert the defendant that a lawsuit ispending against him and that he has a limited time in which to respond.


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a. Subject matter jurisdiction, personal jurisdiction, and venue must albe present before a defendant can be served properly with asummons and complaint.

3. Multiparty, Multiforum Jurisdiction Statute Where federaljurisdiction is based, in whole or in part, upon the federal multiparty,multijurisdictional statute, service can be made at any place within theUnited States or , if otherwise permitted by law, anywhere outside the

United States.4. Burden of Proof the party attempting service generally bears the

burden of establishing that the service is proper.5. The summons MUST:

a. Issue from the Clerk the summons must be issued by the clerkof court, and must bear the courts seal and the clerks signature.

b. Identify the Case the summons must also identify the districtcourt, name the parties to the lawsuit, and list the name andaddress of plaintiff of plaintiffs attorney.

c. Directed to the Defendant the summons must be directedspecifically to the defendant.

d. Time to Appear the summons must state the time within which

the defendant must appear and defend.e. Warn Against Default the summons must caution the defendant

that a failure to appear and defend will result in the entry of adefault judgment for the relief requested in the complaint.

6. The summons and complaint are served together. The plaintiff isresponsible for effective service.

7. Age - Any person over the age of 18 who is not a party to thelawsuit may serve original process.

8. State Marshal can serve upon plaintiffs request BUT he must serve in thecases of pauper plaintiffs or seamen plaintiffs.

9. Service must occur after the complaint is filed.10. Waiver-of-Service

a. The waiver-of-service procedure applies to defendants except:i. The United States as a defendantii. agencies, corporations, or officials of the US as

defendantsiii. other governments and government-related entities as

defendantsiv. infant defendantsv. incompetent defendants

11.Serving Corporationsa. Service to the agent authorized to accept process or a

manager or under the state rule for service of a corporation.12. Rule 4: Best to Worst

a. Hand deliverb. Certified Mailc. Hand Deliver to an Agent must be over 18d. Mailing/Postinge. Publication

13.Default action served with a complaint and you dont respond. Theplaintiff wins by default.

14.Expires 120 Days (after the date of the issuance of the summons)15.Lack of Service can be Waived

ii. The Mullane test: What type of service is appropriate?

1. General standard for constitutionally sufficient notice


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2. Notice should be reasonably calculated to apprise interested

parties

iii. Notice: The Constitutional Dimension1. Greene v. Lindsey

a. Facts Tenants, Appellees, lived in a Louisville, Kentucky housingproject. The Deputy Sheriff was responsible for the serving processHe posted a copy of the write of forcible entry and detainer on theirdoor when they didnt answer. The appellees claim to have neverreceived it because kids in the neighborhood often take thingsposted on doors off.

b. Rule Application of Mullane. Was not adequate notice. Noticemust be reasonably calculated, under all the circumstances.Feasible alternatives existed that wouldve been moreconstitutional notice. (in this case, mail would have been thereasonable method given the nature of the neighborhood mail wasan inexpensive, efficient mechanism)

iv. Notice: Constitutional Requirements Ritualized: Rule 41. National Development Co. v. Triad Holding Corp. and Khashoggi

a. Facts Rich guy had houses all over the world, claimed service tohis NY apartment not adequate

b. Rule Rule 4(d)(1) requires that service of summons must bedelivered to the persons dwelling house or usual place ofabode.ACTUAL SERVICE IS NOT SUFFICIENT, MUST BEACCORDING TO RULE 4. In this case, the expensive condo was adwelling.

III. PERSONAL JURISDICTIONa. Territorial Jurisdiction from Pennoyer v. Neff old model

i. Pennoyer v. Neff

1. RULE: Physical presence dictates personal jurisdiction

a. Must exist at the TIME the lawsuit was filed2. This was because travel was difficult at this time, people were mostly

illiterate, and the country was founded on basis of states rights

ii. Pennoyerterritorial model of jurisdiction evolved because of increase in

technology, ease of travel, more mobile society, commerce

b. PERSONAL JURISDICTION ANALYSIS

i. FIRST look at - Long-Arm Statute

1. Broad or Narrow depending on the State

a. The analysis ends here if you cant get jurisdiction under Long-Arm

Statute

ii. Constitutional Basis for Jurisdiction

1. Can we get jurisdiction over the defendants in a way that goes with the

Constitution?

a. Service of Non-Resident In-State?

i. Shaffer v. Heitner

1. Facts Heitner was a shareholder in Greyhound who

sued a number of officers of the company. He moved

to sequester their property in Delaware. This

property included the defendants stock in Greyhound

and other financial instruments. The motion was

granted. The court reversed.


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2. Rule - The Shoe model should be applied to

jurisdiction in rem as well as in personam when

minimum contacts are a substitute for actual

physical presence. The court will no longer allow

the states to assert jurisdiction merely because

somebody owns some property in that state.

Must analyze property as a contact.ii. Burnham v. Superior Court

1. Facts Man served with divorce papers to appear in

CA court while on a visit to his kids in CA.

2. Rule - Service of process upon a non-resident

physicallypresent in the forum state is almost

always validand does not violate constitutional

due process. Transitory presence is sufficient. There

is therefore no need to apply the "minimum

contacts" test because there was actual

presence.

b. Consent?

i. The person being haled into court can consent to personal

jurisdiction.

ii. Most common way is a forum selection clause. (Waiver

of right to detest jurisdiction.)

iii. Carnival Cruise Line forum selection clauses are

generally good unless procured by fraud.

1. Rule: Generally, forum selection clauses will be upheld

unless there is fraud, etc. because signing the forum

selection clause signifies your submission to the

specific court and waiving your right to have itelsewhere. Held that forum selection clause helps the

cruise line keep costs down for tickets by not having to

worry about litigating anywhere, makes people certain

about litigation while traveling.

2. Why is the court inverting the traditional rules about

contracts of adhesion? Policy reasons upholding the

sanctity of the contract is paramount, forum selection

clauses should be upheld for efficiency, these

transactions are so routine that it would be

unreasonable for every passenger to negotiate3. After this case, legislation enacted that forum selection

clauses in a form ticketed type agreement wouldnt be

sufficient for personal jurisdiction when related to

transportation).

4. Brownie Points Will every forum selection clause not

procured by fraud give us personal jurisdiction? Point

this out if the clause it iffy to you. If its really iffy, go

on and do the constitutional analysis.

c. Service of Non-Resident Outside the State


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i. Specific v. General Discuss this on the test (will probably

be specific jurisdiction but will get points if you mention why

its not general and tell that you will analyze it under specific)

1. No Contacts No jurisdiction

2. Isolated and Irregular Contacts (Unrelated) No

jurisdiction

3. Isolated and Irregular (Related) Maybe jurisdiction **(specific)

4. Continuous and Systematic (Related) Probably

jurisdiction ** SPECIFIC

5. Substantial/Significant/Continuous GENERAL means

that there is jurisdiction and we dont have to continue

down this road.

6. When continuous corporate operations within a state

were thought so substantial and of such a nature as to

justify suit against it on causes of action arising from

dealings entirely distinct from those activities.

d. Specific Jurisdiction

i. Minimum Contacts

1. International Shoe Test

a. Rule - If protected by the laws of a state

shall be subject to personal jurisdiction in

that state. Got to haveminimum contacts.

Changes rule from territoriality to

minimum contacts, fair play, substantial

justice

b. Need to have enough contact with the

state like consistent corporate operation swith the state even where the suit is not

about those operations

c. However, even a single contact can be

enough if the cause of action is about that

contact (ex. Automobile accident)

ii. Purposeful Availment did the defendant purposefully

avail himself of contacts in the state?

1. Exception: If P made unilateral decision to move to

another state, should not subject D to jurisdiction in

that state because they had no purposeful availmentof contact

2. Hanson v. Denckla

a. Rule The court held that a FL court did not

have jurisdiction over a DE trust company that

entered into a trust agreement with a DE

woman who moved to FL. Contacts were too

minimum, unilateral action of FL woman

was not purposeful availment by D

3. Kulko v. Superior Court


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a. Rule The court held it was unconstitutional for

CA to exercise jurisdiction over a NY father who

sued for divorce from his wife who moved to CA.

He did not purposefully avail himself wife

unilaterally decided to move to CA

iii. Foreseeability Did thedefendant reasonably foresee

that they could be haled into court in this jurisdiction?1. World-Wide Volkswagen

a. Facts Somebody bought a car from a car

dealership in New York. They got into a car

accident in Oklahoma where the fuel tank

exploded. They started a product liability suit

against the present appellants and others in

Oklahoma.

b. Rule - Majority bases their decision on

foreseeable that the defendants would be haled

into court in Ok --no purposeful availment;

unilateral activity of the plaintiff should

not be enough to subject the defendant to

jurisdiction in OK when the defendant did

nothing to avail themselves of activity

there or they would not have reasonably

foreseen it

iv. Special Considerations

1. Stream of Commerce -- Not foreseeable (not enough

to satisfy jurisdiction-W.W. VW) Foreseeable (could

depend on whether the court favored WWVW or Asahi)

Stream of commerce plus (Asahi)

a. World Wide Stream of commerce:

manufacturer distributor shipper retai

consumer; Court decides to determine

when the disputed product leaves the

stream of commerce to examine

foreseeability;

b. Asahi mention distinction between OConnor

Standard and Brennan Standard.

i. OConnor stream of commerce PLUS

(marketing)ii. Brennan lesser standard; were you just

aware that the product might end up in

that state.

2. Contract

a. Burger King just because they have a contract

doesnt mean there is jurisdiction but it is a very

strong contact. Contract PLUS analysis.

These parties have a contract, could they have

reasonably foreseen that it would hail


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them into court in a certain state. More

than Likely Sufficient.

b. In considering whether contract creates a

contact look at the following factors:

i. The nature and prior negotiations

between the parties

ii. The contemplated futureconsequences of entering into the

contract

iii. The terms of the contract

iv. The course of dealings between the

parties

c. A contract is a really strong contact, if the

lawsuit is related to the contract at all, more

than likely the court will find jurisdiction

3. Internet/Websites where do these contacts fall on

the Zippo sliding scale? Where do the contacts fit into

the 4th Circuit adapted and adopted Zippo model in

ALS and AccuSport?

a. Zippo Sliding Scale nature and quality

of the contacts with the forum state are the

issue, look at the interactivity of the

websites.

i. Active websites If defendant enters

into contracts with residents of a foreign

jurisdiction that involve the knowing and

repeated transmission of files over the

internet (clearly does business)

personal jurisdiction is proper

ii. Interactive websites where a user can

exchange information with the host

computer personal jurisdiction decided

after determining the level of

interactivity and commercial nature

of info exchange that occurs

iii. Passive websites that just make info

available to those interested no

personal jurisdictionb. 4th Circuits adapted and adopted Zippo

model -- personal jurisdiction over a non-

resident defendant can be exercised when that

person

i. directs electronic activity into the

State

ii. with the manifested intent of

engaging in business or other

interactions in the state


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iii. that activity creates a potential cause

of action in the States courts

4. Intentional Torts (libel, slander, etc.) courts reach

farther to find sufficient contacts

a. Keeton v. Hustler

i. Facts: sued for libel

ii. Rule: Courts will tend to stretch toestablish personal jurisdiction when the

defendant is charged with an intentional

tort.

v. Relatedness between contacts and legal action

1. If claim arises from a single contact with the forum

state, the court will probably exercise specific

jurisdiction over the claim

vi. Fairness Asahifactors

1. burden on the defendant to defend in forum

state2. interests of the forum state,

3. interest of the plaintiff to have it adjudicated in

this state

4. interstate judicial systems shared interest in efficiency

5. respect between states/ nations interstate policy

interests

6. 3 factors will be determinative (burden on

defendant, plaintiffs interest, interest of forum state

(state laws or policies are at stake or when states

citizens are involved)most important)

IV. SUBJECT MATTER JURISDICTION: Due Process and the Dual

Court Systema. Dual Court System

i. Federal courts limited jurisdiction

ii. State courts general jurisdiction

b. Federal courts get subject matter jurisdiction from either:

i. Diversity jurisdiction based on 28 U.S.C. 1332

1. Domicile

a. Place where party has a physical presence and

b. An intention of returning or remaining

i. See Mas v. Perry below

2. Permanent Resident Aliens are domiciled in the state in which they reside

(only look at this is other party is a U.S. citizen)

3. Non-permanent Resident Alien is not considered a resident of any state,

and is considered domiciled in the foreign nation in which they are from

ii. Federal question jurisdiction based on 28 U.S.C. 1331

1. Claim arises under federal law, constitution or international treaty

c. Burden to show subject matter jurisdiction rests on the plaintiff


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ii. Muscle Test where are they doing the most actual work?3. Estates Citizenship determined by the decedent4. Unincorporated Enterprises Partnerships, LLCs, Trusts, etc., take

citizenship of every state where a general and limited partner,trustee or member is a citizen

a. Mas v. Perryi. Facts: Husband (French national) and wife try to sue their LA

landlord over two-way mirrors. Question was whether wifewas also domiciled in LA.

ii. Rule: Diverse citizenship must be present at the timethe suit is filed. Diversity is based on domicile.Domicile is the place of his true, fixed, and permanenthome and principal establishment, and to which he hasthe intention of returning whenever he is absenttherefrom.

iii. Ticking Time Bomb of subject matter jurisdiction1. It will be dismissed if it is found not to have subject matter

jurisdiction no matter how late in the case, unlike in personaljurisdiction where the person has to object in a certain amount of time or

it will not be dismissed and people can waive their rights to jurisdiction.2. Personal jurisdiction can be waived: consent, forum-selection

clausescontesting of personal jurisdiction must be done prior to

answering summons b/c once you answer, you are deemed to have

consented to jurisdiction of the court

3. Subject matter jurisdiction cannot be waived: parties cannot agree

to having the case heard, the judges must decidecontesting of subject

matter jurisdiction can be raised at any time during the case, either before

judgment of after trial, its ticking time bombcan destroy a case when

lack of it is discovered

4. Belleville Catering, Inc. v. Champaign Market Place, LLCa. Facts: Lease dispute, Federal trial court heard case based on

diversity, Entered judgment for D for $220,000, P appealed, J.

Easterbrook held there was no diversity jurisdiction on appeal,

threw out case, attorneys had to pay to re-try case in state court

b. Rule: Subject matter is a ticking time bomb, can kill a case

as soon as the defect is discovered. Do not treat citizenship

of unincorporated enterprises like individuals. (12(b)(1) is

not waived if not brought in either a pre-trail motion or

answer)

5. Tanzymore v. Bethlehem

a. Facts: Man had no real domicile, lived in OH and PA and wasnt

settled in either

b. Rule: Burden to show subject matter jurisdiction rests on

the plaintiff, and this Plaintiff could not prove his domicile was

diverse from D. ***lack of subject matter jurisdiction is a ticking

time bomb that can come up at any time and kill a case, lawyers

should be really careful and make sure that the court absolutely has

jurisdiction

iv. Why might a corporation want to go to federal court?

1. Jury pool may be more diverse


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2. Judges are not elected

3. Docket might be slower

4. Federal courts favor business generally

5. Federal courts know the cases better, more time and resources

6. Federal courts are more likely to throw cases out because of lack of

political pressure

v. Policy1. Reasons Against Diversity Jurisdiction

a. Almost half of our cases in our federal court system are diversityjurisdiction cases and eliminating those cases would make moreroom for cases in which the federal court is more equipped tohandle (civil rights, etc.)

b. State concerned cases need to be kept in state courts.2. Reasons For Diversity Jurisdiction

a. Out-of-State citizens cannot always count on a fair trial in a statecourt

b. Keeps federal judges up-to-date on state statutory and commonlaw.

c. Relieves the caseload of state courts.g. Federal Question Jurisdiction

i. 28 U.S.C. 1331: federal question jurisdiction is exercised when the case

arises under federal law has a substantialand directbearing on the

case; federal law must be an ingredient of the dispute

ii. Well-pleaded complaintRequirement Plaintiffs complaint must

include the federal question, is not sufficient if the only the defenses

raises a federal question

1. Franchise Tax Board v. Construction Laborers Vacation Trust(US

Supreme Court, 1983): summarizes the current test for determining

whether a case arises under federal law. Justice Holmes test:

lower federal courts have jurisdiction to hear well-pleaded

complaints

i. establishing either than federal law creates the cause of

action

ii. or that the plaintiffs right to relief necessarily depends

on resolution of a substantial question of federal law.

2. Louisville v. Mottley

a. Facts: Train wreck victims signed a release and settled outside of

courtgot free train passes for life. Train company refused to give

them passes after federal law passed prohibiting it. Plaintiffs filed

in federal court but only raised a federal question in anticipation ofthe defendants defense

b. Rule: No federal question just because defendant raises it,

the plaintiff must. Well-pleaded complaint just means the centra

claim is related to a federal question.

iii. Private right of action requirement: in order for someone to file a lawsuit,

they have to have a private right of action (suing under a federal law that

allows them to file a suit).

1. Not all federal laws contemplate a private party filing a lawsuit under it.


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a. Ex: Patriot Act you cant sue someone directly under it;

Immigration laws you cant individually sue someone you think is

an illegal alien

h. Supplemental Jurisdiction

i. A common problem in federal litigation is thatmultiple claims

frequently arise out of the same nucleus of facts and involve some of

the same parties1. Problem that 1367 seeks to solve is: How should a federal court

proceed when it does not have subject matter jurisdiction over

some of the claims?

ii. Common law types of supplemental jurisdiction

1. Pendent

2. Ancillary

3. combined and codified into 28 U.S.C. 1367

iii. 28 U.S.C. 1367 Supplemental Jurisdiction

1. Common law developed allowing federal courts to hear state law claims

under certain conditions2. 1367 was passed in 1990 to codify the best of the common law

concerning supplemental jurisdiction

3. Advantage: eliminated judge-made distinction between pendent

and ancillary jurisdiction by combining them both into supplemental

jurisdiction

4. 1367 provides supplemental jurisdiction

a. If a federal court has original jurisdiction over a claim, then all

other related claims forming the same case or controversy

can be heard by a federal court also by supplemental

jurisdiction; supplemental jurisdiction includes joinder or

intervention of additional parties

b. In a case founded on diversity, the P cant use supplemental

jurisdiction to bring claims against parties brought in as

third parties this only applies when you cant get an

independent claim under diversity jurisdiction or federal question

anyway; doesnt apply to claims brought by third party

c. Federal courts may decline supplemental jurisdiction if

i. The claim raises a novel or complex state issue

ii. If the claim predominates over the claim under original

jurisdiction

iii. All claims under original jurisdiction have beendismissed

iv. Exceptional circumstances or compelling reasons for

declining

1. Ex: P bringing in a claim late in the case

iv. The Gibbs Test

1. United States Mine Workers v. Gibbs (US Supreme Court, 1966)

stated the basic test for tacking on claims under supplemental

jurisdiction


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2. Test provides principals for tacking a state law branch claim to a

federal trunk

3. It is within a courts discretion to exercise subject matter jurisdiction over

the related claims, based their decision on factual relatedness:

a. Would a jury get confused?

b. Is there economy, convenience, and fairness to litigants?

c. Is the federal claim substantial?

i. Federal Removal Jurisdiction

1. If an action filed in state court could have been brought in federal court

(concurrent), a defendant may be able to remove the case to federal court

if the requirements of 28 U.S.C. 1441 (Federal Removal Statute) are met

2. Case would be removed to the federal court that embraces jurisdiction of

the state court where the original action was filed

3. 28 U.S.C. 1441 Actions removable

a. Where there are joined claims that are typically non-removable, the

district court may remove all of the claims of the case, and have the

discretion to remand the claims that were traditionally non-

removable

b. Home state rule -- defendant cannot remove a case to federal

court based on diversity if any of the defendants are citizens of the

state where the case is pending

i. Policy: no reason to fear prejudice in your own state, thus no

need for a neutral forum and the plaintiffs choice should be

honored.

ii. Home- base rule is not applicable to subject matter

jurisdiction pursuant to 28 USC 1331 (federal question)

1. Policy: the court system wants federal questions to beresolved in the federal system

ii. 28 U.S.C. 1446 Procedure for removal

1. Caterpillar v. Lewisa. Facts: Case was not legally removable under statute at time

Caterpillar moved to remove. s motion to remand was denied.The defect in federal jurisdictional requirements was cured at thetime of judgment.

b. Rule: Federal jurisdiction predicated on diversity ofcitizenship can be sustained even if there did not existcomplete diversity at the time of removal to federal court,

so long as complete diversity exists at the time the districtcourt enters judgment.

2. has 30 days from the time served with summons and receipt of thecomplaint, by service or otherwise to file for removal

3. In diversity, if action is not removable at time of filing, has 30 days fromfiling of amended complaint (pleading) to make a motion to remove

4. In diversity, may not remove case after 365 days from the date of filing5. If there are multiple defendants, all must agree to the removal6. The case shall be removed to the federal jurisdiction that embraces the

jurisdiction of the state court where the action was filed.iii. Remand 28 U.S.C. 1447 Procedure after Removal
http://en.wikipedia.org/wiki/Diversity_jurisdictionhttp://en.wikipedia.org/wiki/Diversity_jurisdictionhttp://en.wikipedia.org/wiki/Diversity_jurisdictionhttp://en.wikipedia.org/wiki/Diversity_jurisdiction


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

V. VENUE: Transfers within Federal Court System (Best Place toHear Case)a. Venue Generally

i. Based upon statutes

ii. SMJ and venue are very often confused. Subject matter jurisdiction is the powerof the court to adjudicate the matter before it. Venue relates to the proper

district in which to bring the action. Subject matter is a question of power or

authority; venue is a question of convenience. SMJ cannot be conferred by

agreement, venue can be. A court can have SMJ without being the proper venue

iii. Basic Concept: Venue is concerned with where is the district is proper; depends

on the size of the state

b. 28 USC 1391

i. (a) Venue case based solely on diversity

1. Judicial district where any defendant resides, if all defendants reside in

the same state2. Judicial district in which a substantial part of the events or omissions

occurred that give rise to the claim or substantial part of the property of

subject is situated

3. Judicial district in which any defendant is subject to personal jurisdiction, if

no other venue is proper from above two subsections

ii. (b) Venue case based not solely on diversity (solely federal question or federal

question/diversity)

1. Judicial district where any defendant resides, if all defendants reside in

the same state

2. Judicial district in which a substantial part of events or omissions occurred,

or substantial part of property involved3. Judicial district in which any defendant may be found, if there is no other

district in which the case could be brought

iii. (c) Corporations as Defendants

1. Corporations shall be deemed to reside in any judicial district in which it is

subject to personal jurisdiction at the time of filing

2. If state has more than one judicial district, and the corporation is subject

to personal jurisdiction in that state, and district will work so long as the

corporation has such contacts in that district that will subject it to persona

jurisdiction (PJ analysis for each district in the state)

3. If the above two do not result in a proper venue, then it can be the districtwith the most substantial contacts with the defendant

iv. (d) Alien may be sued in any district

1. Remember Venue is waived unless timely objected too (this would

be a 12(b)(3) motion to dismiss based on improper venue)

2. In this case courts will typically attempt to transfer to a proper venue (see

below)

c. Transfer of Venue

i. 28 USC 1404 (inconvenient venue) proper


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1. (a): district court may transfer any civil action to any other district or

division where it might have been brought

2. (b): Venue can be transferred based on motion, consent or stipulation of

all parties at the discretion of the court form the division in which it is

pending to any other division in the same district (12(b)(3), sua sponte,

consent)

3. (c): District court may order any civil action to be tried at any place withinthe division in which it is pending

a. Republic of Bolivia v. Phillip Morris (sua sponte)

i. Venue may be transferred sua sponte (on the courts

initiative) based on the inconvience the case would place the

judicial district in

b. In order to dismiss a case based on venue, the court must

find that venue is improper and the case would be better

held in a foreign nation or different court system (state

rather than federal court)

4. Original Venue Proper A transfer solely on convenience grounds

(under section 1404(a)) carries to the transferee court the original

applicable (under Erie) rules (including choice of law); i.e., the law of the

state in which the transferor court sat. This is true even where the

plaintiff initiates a transfer for convenience after initially choosing the

inconvenient forum.

ii. 28 USC 1406 (defective venue) improper

1. District court may dismiss a case based on improper venue (wrong court

system)

a. Forum non conveniens

i. Generally means a case is dismissed based on inconvenient

venue1. Piper v. Reyno

a. Forum non conveniens almost always arises

when the issues concerns whether an

appropriate venue would be international

courts are very reluctant to dismiss a case

based on venue

2. Original Venue Improper A transfer of the ground that the original

choice of venue was improper (under section 1406(a)) generally results in

a change of the law applicable under Erie, i.e., the law of the state in

which the transferee court sits.I. ERIE DOCTRINE AND CHOICE OF LAW (Deals only with Diversity)

d. Pre-Erie: Swift Doctrine

i. Stipulated that if there is no written statute the federal court would use federal

common law and would use state procedural rules (use federal substantive law

and state procedural law)

e. Three Questions Answered by Erie and Post Erie Line of Cases

i. Should we force federal courts to impose the substantive law of the state in

which they sit?

ii. Which procedural rules are they obligated to follow, state or federal?


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iii. What is the difference between the substantive and procedural rules?

f. Erie v. Tompkins R.R. Co.

i. Court reversed the Swift Doctrine

1. in diversity cases the court must adhere to the written and

unwritten law of the state in which they sit (state substantive

law) and follow to federal laws that govern procedure

a. Twin Aims of Erie:i. To discourage forum shopping

ii. Avoidance of Inequitable Administration of the Laws

Result should be the same regardless of where the case is this only applies in

diversity cases because if it were federal question then you would already know

to apply federal law.

o A diversity case where there is a state law claim and we cant tell if its

procedural or substantive and we are trying to decide whether to apply

state law or federal rules. Generally the claim itself isnt going to be what

we are talking about. The hard question is: which statute of limitations to

apply, or which service rule.o A federal court, in the exercise of its diversity jurisdiction, is required to

apply the substantive law of the state in which it is sitting, including

the states conflict of law rules. (Eric and Klaxon) However, the federal

courts apply federal procedural law in diversity cases.

Is there a Federal Directive on Point? To determine whether

the federal law should be applied, the first question to ask is

whether there is a federal law (e.g., statute, FRCP) on point. If there

is the federal law will apply, provided that it is valid (which is

usually difficult to determine)

Then you look at whether the federal procedural rule

governs and controls the situation completely. (We had this

in Hannah). It must expressly address the situation. This is called a

Hannah Rule so the following must be met: (if its not, go to *)

Does it Met the Twin Aims of Erie?

o Stop forum shopping; and

o Avoid unfair differences in administration of justice

between state and federal courts.(We generally want

the outcome to be the same whether in state or

federal court)

*If There is No Federal Directive on Point, Is the Issue

Substance of Procedure? If it is a matter of substance, the

federal judge must follow state law in a diversity case. If it is a

matter of procedure, the federal judge may ignore state law. Look

at this in terms of the state law would the state law be outcome

determinative?

Some Situations are Clearly Established

o Statutes of limitations - substantive

o Choice of law rules substantive

o Elements of a claim or defense - substantive


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Law is Unclear in Other Situations

o Outcome Determinative Test holds that an issue is

substantive if it substantially affects the outcome of

the case (Guaranty Trust Co. v. York)

o Balance of Interests the court weighs whether the

state or federal judicial system has the greater interest

in having its rules applied.

in Bird we see that this is where you do a bit of a

balancing test; look at state policies versus

federal policies which can result in a court

going either way so we must hope that the

Supreme Court has ruled on this issue before

Look at Chart in the book to see what they have

previously ruled on. (if all arrows are pointing

towards state law, there has to be a very strong

interest for applying the federal law in order to

apply federal law)o Forum Shopping Deterrence (one of the aims of Erie)

directs that the federal judge should follow state law

on the issue if failing to do so would cause litigants to

flock to federal court (Hanna v. Plumer)

Conflict Laws (Klaxon case)

o Conflicts laws a set of rules which tell the state which state laws to

apply. DONT ASSUME THAT NORTH CAROLINA STATE COURTS WILL

ALWAYS APPLY NORTH CAROLINA LAWS. The conflict laws are usually

very specific. Originally it was called lex loci delicti (place where the thing

happened), but each state is different now. A more modern approach ismore flexible and take a more fact sensitive approach, which way makes

the most sense.

1. The court first has to decide whether to apply federal or state lawand

then which state. The case tells us that federal courts apply the conflicts

law of the forum. This doesnt mean that they use the states laws that

they are in, but they apply that states conflict law

g. How do we tell the difference between substantive and procedural law (where is the

line of demarcation)

i. York Court

1. Held that if a law would be outcome determinative then it would be

classified as substantive law

2. If rule would change the result in state court, the same rule

should apply in federal court

a. Almost any rule can be construed as outcome determinative

ii. Hanna v. Plumer

1. If a FEDERAL RULE (frcp) govern an issue that you would have to

invalidate or ignore to apply state law, then it is procedural and you have

to apply the federal rule even if the state law is outcome determinative

2. Where determining if a law is substantive or procedural analyze the law

under the twin aims of Erie, outcome determinative is simple a test


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a. Byrd Court

i. Dont look at York in a vacuum, you must look to the twin

Aims of Eire and not simply if a law is outcome determinative

h. Choice of Law (Which states law apply)

i. Klaxon v. Electric

1. Must look to the conflict of law or choice of law rules of the state in

which the federal court sits to determine what states law to apply to adispute

a. Courts are bound to do whatever the choice of law rules dictate

Rule Choice of

Law

Authority

Standard of Care State Law Erie v. TompkinsConflict of Laws State Law Klaxon v. Stentor

Statute of Limitations State Law Guaranty Trust v. YorkBurden of Proof State Law Cities Service v. Dunlap

Burden of Pleading Federal Law Palmer v. Hoffman

Discovery PhysicalExaminations

Federal Law Sibbach v. Wilson

Venue Transfers Federal Law Stewart v. Ricoh Corp.Agreement to Arbitrate State Law Barnhardt v. Polygraphic

Co.

II. Constructing a Lawsuit Investigation and Inquiry Preceding

the Initial Pleadingi. RULE 11

i. (a) Attorney or record or self-represented party must sign each document filed

with the court (complaints, pleadings, motions, and all other documents filedwith court)

ii. (b) By present to the court a pleading, motion, or other paper, an attorney or

unrepresentative party is certifying that to the best of the persons

knowledge, information, and belief, formed after an inquiry reasonable

under the circumstances

a. Kraemer v. Grant County

i. You have to conduct a reasonable amount of research,

investigation into the facts of the case prior to filing suit

2. (1) No improper purpose

a. You are in violation of section (1) if your sole or primary purpose is

improper

i. Improper purposes =

1. Harass or cause unnecessary delay or needlessly

increase the cost of litigation

ii. Saltany v. Reagan

1. If you know that you have no chance of winning a

case, filing a suit to use the courthouse as a medium

for protesting is considered an improper purpose

3. (2) Claims with no legal basis


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a. If you are going to argue in the opposition of current law, you would

have to make a non-frivolous argument for the modification,

extension, or reversal of the law

i. Frantz v. USPF

1. Made claim that was clearly in violation of recent

Supreme Court ruling

a. Must have a legal basis for the claim that youare making

4. (3) No evidence supporting claim

a. You must have evidence to support you claim, or must argue that

discovery would provide you with the evidence necessary to

substantiate your claim

i. Business Guides, Inc. v. Chromatic

1. Rule: Need to investigate what has been told to you

before you place your signature on a claim; would

have been simple in this case to compare listings with

those in phonebook

5. (4) Denial of Factual contention must be reasonable

a. If you are going to deny a claim or allegation it must be reasonable

based upon the evidence

i. This section only applies to answers

iii. (c) Court may impose sanctions upon attorneys, law firms, or parties involved

that have violated subdivision (b)

1. How initiated

a. Motion you must prepare the motion and give notice to the

opposite party and they are given 21 days to withdrawal the claim

or provide evidence for why it is legitimate.

i. Problem not solved within 21 days then a party may filemotion for Rule 11 sanctions

2. Sua Sponte (Courts Initiative) court may enter show cause order

describing conduct in violation of Rule 11, then party has opportunity to

respond to that order

a. There is no grace period here as in subsection (A) you can still be

sanctioned after you correct the problem presented in the show

cause order

3. Nature of Sanction; Limitations

a. Money damages may not be awarded against a represented party

for violation of subdivision (b)(2)b. Money sanctions may not be awarded on the courts initiative

unless the court issues its order to show cause before a voluntary

dismissal or settlement of the claims made by or against the party

which is, or whose attorneys are, to be sanctioned.

III. THE INITIAL PLEADINGj. RULE 8

i. (a) Claims for Relief

1. Short and plain statement of the grounds upon which the courts

jurisdiction depends


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2. Short and plain statement of the claim showing that the pleader is entitled

to relief

a. Conley v. Gibson

i. Complaint shall not be dismissed for failure to state a claim

unless it appears beyond a doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him

to relief1. Rule 8 requires a short plain statement, enough to give

fair notice to defendant

ii. Policy

1. Rule 8 establishes a high standard for dismissing a

complaint because the courthouse door should not be

barred because counsel was not artful in drafting a

complaint.

b. Atlantic v. Twombly

i. Pleading must contain something more than a statement of

the facts that merely creates a suspicion of a legally

cognizable right of action

1. Plausibility Test

a. The pleading must have facts that establish a

plausible claim for which relief is based

b. Must cross the line from possibility to possibility

to probability

ii. Twombly can be read narrowly to only apply to anti-trust

cases under the Sherman Act, or it could be a reform on the

entirety ofRULE 8.

1. Unsigned opinion after Twombly appears to reinforce

Conley standard and holdpro se litigants to an evenlower standard of pleading

3. A demand for judgment for the relief the pleader seeks

ii. (b) Defenses; Form of Denials

1. Party shall state n short and plain terms the partys defenses to each

claim asserted and shall admit or deny the averments upon which

the adverse parties relies

a. If party is without knowledge or information sufficient to form a

belief as to the truth of an averment, the party shall state this ( =s

denial)

iii. (c) Affirmative Defenses1. 8(c) lists a number of affirmative defenses, yet is not exhaustive

a. Residual clause

i. Any other matter constituting an avoidance or affirmative

defense

b. Affirmative defenses let the defendant off the hook even if they had

done the actions alleged

2. Gomez v. Toledo

a. Burden of pleading affirmative defenses rests with the defendant


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i. Policy court does not want the plaintiff to have to plead in

opposition of anticipated defenses that might be raised by

defendant

ii. Must plead what the statute requires and place burden on

defendant to raise an affirmative defense

1. If an affirmative defense is not raised in the answer

then it is waivediv. (d) Effect of Failure to Deny

1. If you fail to deny an averment it is assumed to be admitted by the court

a. Averments in a pleading to which no responsive pleading is required

or permitted shall be taken as denied or avoided.

v. (e) Pleading to be Concise and Directed

1. Each averment of a pleading shall be simple, concise, and direct

2. Party may set forth two or more statements of a claim or defense

alternatively or hypothetically

a. Ingram Case

i. Inconsistent, alternative claims cannot be plead if you know

one of them is false, however if you are not sure as to the

truth of alternative claims then you may present them to the

court.

k. Rule 9

i. (a) Requires that you plead cases of fraud and mistake with particularity

1. Who, what, when, where and why

2. Letherman

a. Rule 9 says that fraud and mistake are the only cases that must be

plead with specificity, thus all other cases may be plead generally

ii. (b) (c) it is sufficient to plead conditions of the mind and conditions precedent

generally for mistake and fraud cases

IV. RESPONDING TO THE COMPLAINTl. Rule 12

i. (a) When presented.

1. Defendant shall answer serve an answer

a. Within 20 days after being served with the summons and complaint

b. If service of summons has be timely waived under RULE 4(d) then

within 60 days

i. Exceptions

1. US (employees or agencies) have 60 days 12(a)(3)(A-

B)2. If court denies motion or grants motion for more

definite statement responsive pleading should come

within 10 days of order 12(a)(4)(A)

ii. (b) How presented.

1. Must respond to each allegation placed against you in the complaint

a. Go through the numbered paragraphs and affirm, deny, or indicated

that you are without sufficient knowledge or information to form a

belief as to the truth of an allegation (thus denying it)

2. May file a pre-answer motion based on the list provided in RULE 12(b)


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a. 12(b)(1) lack of subject matter jurisdiction

i. File this when there is not a federal question or incomplete

diversity

b. 12(b)(2) lack of personal jurisdiction

i. File this when client does not meet minimum contacts test

c. 12(b)(3) improper venue

d. 12(b)(4) insufficiency of processi. File this when there is a defect with the papers

e. 12(b)(5) insufficiency of service of process

i. File this when there is insufficient service of process

f. 12(b)(6) failure to state a claim on which relief can be granted

i. File this when there are no set of facts under which plaintiff

can recover (Twombly may tweak this)

iii. (e) May file a motion for a more definite statement anytime prior to answering

complaint and does not have to be consolidated under subsection (g)

1. waived when the complaint is answered

iv. (g) Consolidation of Defenses in Motion

1. Must file all the applicable pre-answer motions that are available in a

consolidated motion to the court

a. Put all 12(b) motions in one big motion

v. (h) Waiver or Preservation of Certain Defenses

1. Personal jurisdiction, improper venue, insufficiency of process, or

insufficiency of service of process are waived if not included in the initial

motion or first responsive pleading

2. 12(b)(6), failure to state a claim and 12(b)(7), failure to join a party are

not waived if not included in the pre-answer motion or the answer, yet

must be raised in a pleading pre-trial

a. Once case goes to trail they are waivedb. Cannot be included in a separate 12(b) motion after one has been

previous filed, must either be raised in answer or future pre-trail

pleading

3. 12(b)(1), lack of subject matter jurisdiction is never waived and there is no

consolidation requirement

a. Can be raised at any stage during the course of a case

V. AMENDING THE PLEADINGS **** Second Semester Startm. Rule 15 Amended and Supplemental Pleadings

i. (a) Amendments.

1. Automatic Righta. Party may amend pleading once as a matter of course at anytime

before a responsive pleading is served or, if no responsive pleading

is required and the action has not been placed on the trial calendar,

the party may amend within 20 days of service of the pleading.

2. Leave or Written Consent

a. May amend later than above with leave of court or written consent

from adverse party

i. Leave shall be freely given when justice requires

3. Responses to Amended Pleadings


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2. It is not enough to hypothesize that a party knew and

nothing would have changed had they been a party to

the suit.

VI. Discovery --- Scope and Privilegen. Rule 16(b) Pretrial Conferences; Scheduling; Management

i. Judge, after receiving report from parties under Rule 26(f) or scheduling

conference, may enter a scheduling order that limits the time: (does not have to

be actual meeting, may be done by mail, phone, or appropriate means)

1. Join parties and amend pleadings

2. File motions, and

3. Complete discovery

ii. Scheduling order may also include:

1. Modifications of the times for disclosures under Rule 26(a) and 26(e)(1)

and the extent of discovery permitted

2. Provisions for disclosure or discovery of electronically stored information

3. Agreements parties reach for asserting privileges or for protection of trial-

preparation material after production4. Dates for pre-trial conferences and trial, and

iii. Order shall be issued as soon as possible

1. Within 90 days after appearance of defendant and within 120 days after

the complaint has been served on the defendant.

2. Not to be modified except upon a showing of good cause by the

requesting party (must seek leave of court)

o. Rule 26 General Provisions Governing Discovery; Duty of Disclosure

i. (a) Required Disclosures, Methods to Discover Additional Matter.

1. (1) Initial Disclosures: a party must, without awaiting a discovery

request, provide the other parties:

a. Name, address and telephone number of each individual likely to

have discoverable information that the disclosing party may use to

support its claim or defenses, unless solely for impeachment,

identifying the subject of the information

b. A copy or description of all documents, electronically stored

information and tangible things that are in the possession of the

party and that the disclosing party may use to support its claims or

defenses, unless solely for impeachment

i. Zubulake --- Spoliation and Document Retention

1. Once a party anticipates litigation they must place a

litigation hold to ensure the preservation of relevantdocuments.

a. Does not apply to inaccessible back-up tapes

2. Spoliation

a. Destruction of electronically stored evidence

i. Must show possession of evidence and

obligation to preserve at the time of

destruction

ii. Destroyed evidence was relevant

b. Sanctions


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i. Monetary

ii. Exclusion of Evidence

iii. Adverse inference jury instruction

c. Computation of damages claimed by disclosing party, making

available all non-privileged documents under Rule 34 from which

the computation is based

d. Insurance agreement, as under Rule 34, under which any personcarrying on an insurance business may be liable to satisfy all or part

of a judgment

e. Exceptions to Initial Disclosures: Note that subsection (a)(1)(E)

contains the exceptions

i. Time Limits:

1. Disclosures must be made at or within 14 days after

the Rule 26(f) conference

2. Any party first served or otherwise joined after the

Rule 26(f) conference must make these disclosures

within 30 days after being served or joined unless a

different time is stipulated by court order.

ii. Must make disclosures based on the information at the time,

and not excused because it has not completed investigation

or due to defects or non-produced discovery from the

adverse party

f. Chalick v. Cooper Hospital

i. Facts: Medical Malpractice case for wrongful death

ii. Rule: It is an obligation under Rule 26(a) for defendants to

provide plaintiff with the identities and roles of the

decedents treating physicians so that the case can be

decided on the merits.2. (2) Disclosure of Expert Testimony

a. Must disclose the name, address and telephone number of the

expert along with:

i. Written report prepared and signed by witness:

1. Complete statement of all opinions to be expressed

and the basis and reason therefor

2. Data or other information considered by the witness in

forming opinions

3. Any exhibits to be used in support or summary for the

opinions4. Qualifications of witness

5. Publications authored within last ten years

6. Amount of compensation to be paid to witness

7. Any other cases in which the witness has testified

within last four years

b. Timing of Disclosures

i. At least 90 days before the trail date or the date the case is

to be ready for trial


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1. 30 days after disclosure of other party, if the evidence

is solely to be used to rebut or contradict the same

subject matter

2. Must supplement these in the event that things change

3. (3) Pretrial Disclosures: In addition to the required initial disclosures, a

party must file the following information regarding the evidence that it

may present at trail (unless solely for impeachment)a. Name, address, and telephone number of each witness

i. Must distinguish those which plan to call and those which will

only be called if a the need arises

b. Designation of those witness whose testimony is expected to be

presented by deposition and a transcript of the deposition

c. Identification of each document or other exhibit separately

identifying those which the party expects to offer and those which

will be offered only if a need arises

i. These disclosures must be made at least 30 days before trial

1. Objections to these disclosure must be made within 14

days and are waived unless a showing of good cause

4. (4) Form of Disclosures

a. All disclosures under (1) (3) must be made in writing, signed and

served

vii. (b) Discovery Scope and Limits

8. (1)In Generalb. Parties may obtain discovery regarding any matter, not privileged,

that is relevant to the claim or defense of any party

i. Relevant information need not be admissible at the trail if

discovery appears reasonably calculated to lead to thediscovery of admissible evidence.

c. Blank v. Sullivan & Cromwell

i. Claim was for gender discrimination in hiring practices, yet

plaintiffs wished to discovery information regarding

promotion of women to the rank of partner.

1. The test for whether information is discoverable is that

it must appear to be reasonably calculated to lead to

discovery of admissible evidence

a. Realistically evidence of discrimination in

promotion would not be allowed at trial,

however it was in this case reasonably

calculated to lead to admissible evidence and

was thus allowed.

5. (2) Limitations

a. Court may alter the limits on the number of depositions and

interrogatories or the length of depositions under Rule 30. Also the

number of request may be limited under Rule 36.

b. A party need not provide discovery of electronically stored

information from sources that the party identifies as not reasonably

accessible because of undue burden or cost.


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i. Adverse party may make a motion to compel and party must

then show that information is not reasonably accessible due

to undue burden and cost

ii. Court still may enforce discovery on the showing of good

cause by adverse party

c. Court may not allow discovery if it determines that:

i. It is unreasonably cumulative or duplicative, or it isobtainable from some other source that is more convenient,

less burdensome, or less expensive

ii. Party seeking discovery has had ample opportunity by

discovery in the action to obtain the information sought

iii. The burden or expense of the proposed discovery outweighs

the benefit

1. Taking into account the needs of the case, amount in

controversy, partys resources, importance of the

issues at stake in litigation, and importance of the

proposed discovery in resolving the issues. --- This can

happen sua sponte or upon motion.

6. (3) Trial Preparation; Materials Attorney Work Product

a. May obtain discovery of documents and other tangible things

prepared in anticipation of litigation only upon a showing that

the party seeking discovery has substantial need of the

materials in the preparation of the partys case and that the

party is unable without undue hardship to obtain the

substantial equivalent of the material by other means.

(Essential to the case)

i. If discovery is order, court will protect against disclosures of

mental impressions, conclusions, opinions, or legal theoriesor an attorney (absolute protection)

b. Attorney Work Product

i. Privilege extends to notes, documents, and other materials

prepared by or for the party

1. Includes material prepared at the direction of counsel

c. Hickman v. Taylor

i. Court creates the attorney work product privilege in this case

protection material prepared in anticipation of litigation

7. (4) Trial Preparation; Experts

a. Party may only use interrogatories or depose an expert (notexpected to be called at trial) only upon a showing ofexceptional

circumstances under which it is impracticable for the party

seeking discovery to obtain the facts or opinions on the

same subject by other means

i. Party seeking discovery will bear the costs of both the

experts time and may be required to pay other party a fair

portion of the fees and expense incurred by retaining the

expert

8. (5) Claims of Privilege


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a. Information withheld.

i. Must claim expressly the privilege or work-product and shall

describe the nature of the documents, communications or

other things not produced

1. allows other party to assess whether the privilege is

applicable

b. Information Produced.i. If information is produced that is subject to a claim of

privilege or protection as trial-preparation material, the party

making the claim may notify any party that received the

information of the claim and the basis for it.

1. After notification, a party must promptly return or

destroy the specified information, or

2. Present the challenged material under seal to the court

to determine if the privilege is valid

c. Privileges

i. Attorney Client

1. Protects communication between attorney and client,

without presence of strangers, for the purpose of

securing primarily either an opinion of law or legal

service, or assistance is some legal proceeding, and if

not for the purpose of committing a crime or a tort

a. Privilege waived if one party subsequently

reveals the contents of the privileged

conversation to another party

b. Facts talked about are not privileged, simply the

communication

2. Corporations?a. UpJohn v. US

i. Previous only those in under the control

group test were protected by the A-C

privilege

b. New Rule: A-C privilege extends to:

i. Lower Level employee has needed,

important information for legal advice

ii. Within the scope of the employees duties

iii. Employee has to understand that purpose

of communication is for the lawyer to givethe company legal advice

iv. Employee must know that the

conversation was confidential

v. Information not otherwise available from

higher sources (minority of jurisdictions

require this element)

c. Rarely applies to former employees

ii. Doctor Patient

iii. Marital


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iv. Religious Advisor Clergy

v. 5th Amendment

ii. (c) Protective Orders

1. Court may make an order for protection as justice requires to protect a

party from annoyance, embarrassment, oppression, or undue burden or

expense --- must seek immediately during a deposition (must move the

court after attempting to resolve the issue between the adverse party)a. Note: long list of things a court may do to protect a party (1) (8)

iii. (d) Timing and Sequence of Discovery

1. Parties may not seek discovery from any source before the parties have

conferred as required by Rule 26(f)

a. Unless court order methods of discovery may be used in any

sequence

iv. (e) Supplementation of Disclosures and Responses

1. Party is under a duty to supplement or correct the disclosure or response

to include information thereafter acquired if ordered by the court or in the

following situations:

a. If party learns that is some material respect the information

disclosed is incomplete or incorrect and if the additional or

corrective information has not otherwise been made known to the

other parties no duty to correct depositions (see below)

b. Expert discovery must be supplemented if information contained in

their report or deposition is in error or incomplete and must be in by

Rule 26(a)(3) deadline

2. Party is under duty to amend a prior interrogatory, production request, or

request for admission if party learns that is some material respect the

information disclosed is incomplete or incorrect and if the additional or

corrective information has not otherwise been made known to the otherparties

v. (f) Conference of Parties; Planning for Discovery

1. At least 21 days prior to a scheduling conference is due under Rule 16(b)

the parties must meet to consider the nature and basis of the claims and

defenses and the possibility of settlement

a. Must also develop discovery plan and submit to court

i. List in Rule 26(f) about topics that should be discussed and

reported on by each party

2. Must submit plan to the court with 14 days following the meeting each

attorney needs to do thisvi. (g) Signing of Disclosures, Discovery Requests, Responses and

Objections

1. Every disclosure must be signed by an attorney of record, certifying that

to the best of the signers knowledge, information, and belief, formed after

a reasonable inquiry, the disclosure is complete and correct as of the time

it is made

2. Every discover request, response, or objection must be signed by an

attorney of record and signifies that


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a. It is consistent with the rules and warranted by existing law or a

good faith argument for the extension modification or reversal of

existing law

b. Not interposed for any improper purpose

c. Not unreasonable or unduly burdensome or expensive

i. If one of these three is not signed it will be stricken, unless

promptly signed when attention is called to the error3. A court can sua sponte or upon motion impose sanction against a party

that has made an improper disclosure, etc.

IX. THE DISCOVERY TOOLSp. Rule 33 Interrogatories to Parties

i. (a) Availability.

1. May serve upon any other party written interrogatories not exceeding

25 in number

a. Leave to serve additional interrogatories shall be granted to the

extent consistent with Rule 26(b)(2)

b. May not be served prior to time specified in Rule 26(d) unless leaveof court is granted

ii. (b) Answers and Objections

1. Each interrogatory shall be answered separately and fully in writing, under

oath

a. If objected to, the party shall state the reason for objection and

shall answer to the extent the interrogatory is not objectionable

2. Answers are singed by the party and objections signed by the attorney

3. Must serve answers and objections within 30 days of service

a. Varying time lengths may be imposed under court order

4. Grounds for objection must be stated with specificity

a. Failure to state a ground for objection is waived unless the partys

failure to object is excused by the court for good cause

5. Party submitting the interrogatories may move for an order under 37(a)

with respect to any objection to or other failure to answer an interrogatory

a. Must seek a protective order if objection concerns annoyance or

embarrassment

i. All other privileges or objections can be made in writing the

answers (duplicative, obtainable elsewhere, not relevant or

reasonably calculated)

iii. (c) Scope; Use at Trail

1. May relate to any matter that is relevant to a parties claim or defense, orreasonably calculated to lead to the admission or relevant evidence (rule

26(b)(1))

2. May not object merely because an answer to the interrogatory involves an

opinion or contention that relates to fact or the application of law to fact

a. Court may allow the interrogatory to be answered at a later time,

(e.g. after discover complete)

iv. (d) Option to Produce Business Records

1. If the answer to an interrogatory can be derived from the business records

of the party, and the burden would be the same for you to discover the


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answer yourself, you can specify the records where the answer may be

derived and afford the party an opportunity to look at and review the

documents

q. Rule 34 Production of Document

i. (a) Scope

1. Allows for the request of non-privileged relevant documents in the

possession of the other partyii. (b) Procedure

1. Request cannot be made, without leave of court, before the time specified

in Rule 26(d)

a. Applies to things in you possession, custody or control

i. You have the power to get the document, then you may have

the burden to produce it

1. Do not have the power to compel a friendly witness to

provide documents to an adverse party

b. There must be a written response within 30 days indicating and

stating the reasons for any objections to individual requests

2. Unless parties otherwise agree, the court will order:

a. A party who produces documents for inspection shall produce them

as they are kept in the usual course of business or shall organize

and label them to correspond with the categories in the request

b. If the request does not specify the form or forms for producing

electronically stored information, a responding party must produce

the information in a form or forms in which it is ordinarily

maintained or in a form or forms that are reasonably usable; and

c. A party need not produce the same electronically stored

information in more than one form

iii. (c) Persons not Parties1. May be compelled under Rule 45 to produce documents and things

a. Must use to get the documents and things in possession of

witnesses under Rule 45

r. Rule 36 Requests for Admission can only be used on parties

i. (a) Request For Admission

1. Must comport with the rules of 26(b)(1) and cannot be served before time

allowed in Rule 26(d).

a. Matter is admitted unless, within 30 days after service of the

request, other party denies.

i. Must deny or object to avoid admittanceii. Denials must be specific, indicating which part the question is

denied and which is admitted

ii. (b) Effect of Admission

1. Any matter admitted under this rule is conclusively established unless the

court, on motion, permits withdrawal or amendment of the admission

s. Rule 30 Depositions Upon Oral Examination

i. (a) When Depositions may be Taken; When Leave Required

1. Party may take deposition of any person, including other party, without

leave of court except as provided in the next section.


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a. Attendance can be compelled by subpoena as provided in Rule 45

2. Party must obtain leave of court, if person examined is confined in prison

or if, without the written stipulation of the parties:

a. Proposed deposition would result in more than 10 depositions begin

taken under this rule or Rule 31

b. The person to be examined already has been deposed in the case

c. A party seeks to take a deposition before the time specified in Rule26(d)

i. Must provide notice that person to be deposed is about to

leave the US and will be unavailable for examination before

trial.

ii. (b) Notice of Examination; General Requirements; Method of Recording;

Production of Documents and Things; Deposition Organization;

Depositions by Telephone

1. Must give reasonable notice of deposition in writing to every other party in

the action

a. State time and place of deposition and name and address of each

person to be deposed

2. State the method in which the deposition is to be recorded (in notice

document)

a. Can be recorded in any method and the party taking the deposition

bears the costs

3. With prior notice, party may request a different form of recording of the

deposition

a. Party making the request bears the cost of the additional record

measures

4. Conducted before an officer appointed or designated under Rule 28 and

begin with the officers statementa. There is a list in subsection 4 that indicates what the officers

statement shall include

5. May make a Rule 34 request in conjunction with the deposition, which can

occur at the taking of the deposition

6. This section deals with public or private corporations as deponents - 30(b)

(6) deposition

a. Describe with reasonably particularity the matters on which the

examination is requested

b. Corporation may send multiple parties

i. Must specify who will be discussing the specific matters ofthe deposition (who tells what)

7. May stipulate in writing or court may order upon motion a deposition by

telephone or other remote electronic means

iii. (c) Examination and Cross-Examination; Record of Examination; Oath;

Objections

1. Officer shall put the witness under oath

a. All objections will be noted in the record but the deposition shall

proceed

i. Qualifications of the officer


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ii. Manner of the deposition

iii. Evidence presented

iv. Conduct of a party, etc.

b. Party taking does not have to attend, but must submit questions

under seal to the officer who will propound them to the witness

2. Objections can be made to question form even if the person being

deposed is not your clienta. They will be noted under 32(d)(3) for the record

iv. (d) Schedule and Duration; Motion to Terminate or Limit Examination

1. A person may instruct a deponent not to answer only when necessary to

preserve a privilege, to enforce a limitation directed by the court, or to

present a motion under Rule 30(d)(4)

2. Depositions are limited to one day, seven hours

a. Unless otherwise stipulated by the court

i. Fair to give more time

ii. Deponent delays or impedes the proceedings

3. May sanction deponent for delays and impediments

4. Party or Deponent may make motion to terminate or limit deposition (Rule

26(c)) upon a showing that it is being taken in bad faith and designed to

annoy, embarrass, or oppress the deponent.

a. If court terminates the deposition, it may only resume upon court

order

v. (e) Review by Witness; Changed; Signing

1. Must request prior to the conclusion of the deposition

a. May review and change transcript within 30 days of notice that the

transcript is ready

i. Must sign a statement providing the reasons for making such

changes to the substance of the depositionvi. (f) Certification and Filing by Officer; Exhibits; Copies

1. The officer must certify that the witness was duly sworn and that the

deposition transcript was a true record of the testimony given by the

deponent

vii. (g) Failure to Attend or Serve Subpoena

1. The court may award expenses, including attorneys fees, to a party that

appears for a deposition that does not occur because either:

a. The party noticing the deposition does not attend, or

b. The party fails to subpoena a witness and that witness does not

appear.i. Parties may be order to pay expenses of other party in either

case.

t. Rule 32(d)(3) Using Depositions in Court Proceedings

i. (A) Objection to Competence, Relevance, or Materiality.

1. An objection to a deponents competence or to the competence,

relevance, or materiality of testimony is not waived by a failure to make

the object before or during the deposition

ii. (B) Objection to an Error or Irregularity --- Form of Question

1. These are waived if:


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a. It relates to the manner of taking the deposition, the form of an

question or answer, the oath or affirmation, a partys conduct, etc;

and

b. It is not timely made during the deposition

iii. (C) Objection to a written question

1. An objection to the form of a written question under Rule 31 is waived if

not served in writing on the party submitting the question with the timefor serving responsive questions or, if the question is a recross-question,

within 5 days after being served with it

u. Rule 37 - Failure to Make Disclosure or Cooperate in Discovery: Sanctions

i. (a) Motion for Order Compelling Disclosure or Discovery

1. (1) Party motion to compel must be made I the court in which the action

is pending

a. Non-party motion to compel must be made in the court in the

district were discovery is being taken

b. Note: Party must give notice to all other parties and persons

affect thereby prior to motion to compel

2. (2) Motion.

a. (A) Initial disclosures - For a failure to submit discovery required by

Rule 26(a), any other party may make a motion to compel such

discovery and for sanctions

i. Must certify motion to compel with a genuine statement that

movant has in good faith conferred or attempted to confer

with the party failing to make disclosure in an effort to avoid

court action

b. (B) Interrogatories, Document Request, and Depositions The same

certification as required for initial disclosures is required here as

well (discovering party must make the motion here)3. (3) Evasive or Incomplete Disclosure, Answer or Response.

a. Treated as a failure to disclosure

4. (4) Expenses and Sanctions.

a. (A) If motion to compel is granted with regard to disclosure or

requested discovery the court shall require the party that created

the need for the motion to pay the reasonable expenses incurred in

making the motion, including attorneys fees.

ii. (c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit

1. Unless failure to disclose is harmless, the party failing to make disclosure

is not permitted to use any of the information not disclosure during thecourse of the proceedings.

a. Reasonable costs and attorneys fees in accordance with the

standard laid out above

i. Will not impose penalty if court determines that motion was

not made with a good faith certification hat parties attempted

to work the problem out without court action, or

ii. Opposing partys nondisclosure, response or objection was

substantially justified or that other circumstances make an

award of expenses unjust


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b. (B) If motion denied court may enter a protective order of the

information under Rule 26(c) and shall impose reasonable

expenses, including attorneys fees to the moving party

i. Will not impose sanction if the motion was substantially

justified by the moving party or other circumstances make an

award of expenses unjust

c. (C) If granted in part and denied in part court may issue protectiveorder as necessary and may appropriate the expenses between the

two parties in a just manner.

iii. Failure to Comply with Order.

1. Can result in a number of sanctions by the court:

a. Contempt of court

b. Order indicating that matters not disclosed will be established in a

favorable manner for the party seeking to obtain discovery

c. Order refusing to allow the disobedient party to support or oppose

designated claims or defenses --- prohibiting the introduction of

certain evidence

d. Striking out pleading, suspending action until order obeyed, or

dismissing the action, or rendering a default judgment

i. Again attorneys fees will be award along with other

reasonable cost so long as the disobedient party was

substantially justified in their actions or other circumstances

make an award of expenses unjustified.

v. Rule 56 Summary Judgment (think of this rule as the table and leg example provided

in class)

i. (a) Claimant.

1. May make motion for summary judgment at any time after 20 days from

the commencement of the action or after service of a motion for summaryjudgment by the adverse party

a. Can move for summary judgment with or without supporting

affidavits

i. Celotex Since the moving party here will have the burden of

persuasion at trial, the burden of production for a summary

judgment motion must be accompanied by credible evidence

establishing each claim of the actions against the opposing

party.

ii. (b) Defending Party.

1. May move at any time for summary judgmenta. Can move with or without supporting affidavits

i. Celotex Since moving party will not have the burden or

persuasion at trail their burden of production can be met in

two ways

1. Submit affirmative evidence that negates and essentia

element of the non-moving parties claim (not done

often)

2. May demonstrate to the court that the non-

moving partys evidence is insufficient to


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establish an essential element of the non-

moving partys claim

a. Burden of production will then shift to the

adverse party

i. Must submit affidavits or other documents

allowed in the rule to show that there is a

genuine issue of material fact for trial.(56(e))

ii. Must take all counterevidence as true in

favor of the non-moving party

ii. If the moving party would have the burden of persuasion at

trail:

1. Their summary judgment motion must be support be

credible evidence showing that as a matter of law the

opposing party cannot defeat his claim

iii. (c) Motion and Proceedings Thereon.

1. The judgment sought shall be rendered if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits

if any, show that there is no genuine issue of material fact and that

moving party is entitled to judgment at law.

iv. (d) Case Not Fully Adjudicated on Motion.

1. The court may enter a summary judgment ruling on the issue of liability

alone, even though a genuine issue of material facts exists as to damages

The court may also summarily resolve other individual issues as to which

there remain no genuine issue of material fact.

v. (e) Forms of Affidavits; Further Testimony; Defense Required.

1. When a motion for summary judgment is made and supported as provided

by this rule, an adverse party may not rest upon the mere allegations ordenials of their pleadings, but the adverse partys response, by affidavits

or otherwise, must set forth specific facts showing that there is a

genuine issue of material fact for trial.

a. If the adverse party does not respond, summary judgment if

appropriate, shall be entered against the adverse party.

b. Matsushita v. Zenith Radio Corp.

i. When the moving party has carried its burden under Rule

56(c), its opponent must do more than simply show that

there is some metaphysical doubt as to the material facts

1. Has non-moving party put forth enough evidencethat a reasonable jury would be able to find for

you. Evidence must go beyond a mere

possibility, must be plausible that the jury could

draw the inference you desire.

2. Non-moving party has the benefit of all reasonable

inferences at summary judgment unreasonable

inferences will not be construed in the s favor

vi. (f) When Affidavits are Unavailable.


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1. If the adverse party submits affidavits showing that they cannot present

facts essential, by affidavit, to justify the partys opposition to the motion

for summary judgment, the court may order a continuance to permit

affidavits to be obtained of depositions taken or discovery had.

a. This provides non-moving party a fair opportunity to respond if

moving party makes motion early on in the discovery process

vii. (g) Affidavits Made in Bad Faith.1. If the court determines that an affidavits is submitted in bad faith or solely

for the purpose of delay, the court shall order the party employing them to

pay the reasonable expense incurred due to the filing of the affidavit,

including attorneys fees --- may be also judged to be in contempt of court

X. Trial, Judges and Juriesw. Rule 16(d)-(e) Final Pretrial Conference, Pretrial Orders

i. (d) The court will usually conduct the final pretrial conference after the pretrial

narrative statements have been filed and as close to trial as possible. At the

final pretrial conference, the court will make a schedule for any remaining

motions and set a trial date. An attorney who will conduct the trial or anunrepresentative party must attend the conference with the authority to enter

stipulations and make admissions

ii. (e) Requires the court to issue a pretrial order memorializing the action taken at

any pretrial conference. Once a pretrial order has been entered, it supercedes

all pleadings and controls the subsequent course of the case. The order shall be

modified only to prevent manifest injustice

1. In a pre-trial order you will see a bunch of deadlines concerning all

matters of the case for trial, such as dates for motions, jury instructions,

etc. You will also see a date for the exchange of pre-trail disclosures.

x. Rule 26(a)(3)

i. (3) Pretrial Disclosures: In addition to the required initial disclosures, a party

must file the following information regarding the evidence that it may present at

trail (unless solely for impeachment)

1. Name, address, and telephone number of each witness

a. Must distinguish those which plan to call and those which will only

be called if a the need arises

2. Designation of those witness whose testimony is expected to be presented

by deposition and a transcript of the deposition

3. Identification of each document or other exhibit separately identifying

those which the party expects to offer and