Civ Pro I & II

7/29/2019 Civ Pro I & II

1/42

Civ Pro Outline Page 1 11/6/2010

Notice Pleading

1) Notice Pleading vs. Fact Pleading

NoticePleading

To assert a substantive claim in an ordinary case, a complaint need only provide ashort and plain statement of the claim showing that the pleader is entitled to

relief.

Provide sufficient notice to permit to prepare a defense.

Used in federal district courts and in most state trial courts

Fact Pleading-aka Codepleading

Asserts/alleges facts in support of every element of each cause of actionindentified in the complaint. (Factual allegations).

Plead the operative facts.o Operative facts: are the facts that demonstrate that the plaintiff can meet

each element of a cause of action.

CA and NY (state courts) are fact pleading states.

FRCP Rules

Contours Why would anyone want to plead more than a bare bones account?

2) Complaint: s statement of claimA.

Rule 8(a) What is required for a complaint?

Claim for Relief: A pleading that states a claim for relief must contain:

(1) A short and plain statement of the grounds for the courts jurisdiction, unlessthe court already has jurisdiction and the claim needs no new jurisdictionalsupport;

(2) A short and plain statement of the claim showing that the pleader is entitled torelief; and

(3) A demand for the relief sought, which may include relief in the alternative or

different types of relief.

Contours Rule 8(a)(2):

A short and plain statement of the claim showing that the pleader is entitledto relief.

Has to put the on notice so that the can respond.

For federal courts it is OK that complaint does plead facts but for state courts (fact

7/29/2019 Civ Pro I & II

2/42


pleading states) you must state facts that support your claims.

Cases

Dioguardi v.Durning

(2nd Cir.1944)

Facts: Dioguardi ( ) imported bottles and tonics from Italy and claimed that Durning

( ), Collector of Customs at the Port of New York, improperly sold them at auction.

Rule: does not have to describe in detail all causes of action in the complaint forthe complaint to be sufficient. The Federal Rules of Civil Procedure have adoptedthe notice pleading standard. In order to withstand summary judgment, thecomplaint need only put the court and defendant on notice of the cause of action.The complaint need only present a short and plain statement of the claimdemonstrating that the pleader is entitled to relief.

Conley v.Gibson(S. Ct. 1957)

Facts: Group of black railroad employees brought suit, alleging that their union hadviolated the FRLA by failing to represent them fairly in collective bargaining with theemployer.

Rule:A complaint should not be dismissed for failure to state a claim unless itappears beyond doubt that the can prove no set of facts in support of hisclaim which would entitle him to relief.

Swierkiewiczv. Sorema(2002)

Facts: Man brought suit for Employment discrimination age and national origin.Two forms of employment discrimination illegal until Title VII.

Rule: a court may dismiss a complaint only if it is clear that no relief could begranted under any set of facts that could be proved consistent with theallegations.

Under

Dioguardi,Conley, andSwierkiewicz

Two kinds of insufficient complaints:

1) The complaint does not supply sufficient information to allow the defendant torespond; it leaves the defendant uncertain as to what the claim is.

Rule 12(e) Motion For A More Definite Statement

A party may move for a more definite statement of a pleading to which a responsivepleading is allowed but which is so vague or ambiguous that the party cannotreasonably prepare a response. The motion must be made before filing a responsive

pleading and must point out the defects complained of and the details desired. If thecourt orders a more definite statement and the order is not obeyed within 14 days afternotice of the order or within the time the court sets, the court may strike the pleading or

issue any other appropriate order.

2) The complaint does supply sufficient information, but it reveals that there is norecognized claim/cause of action that the allegations would support.

7/29/2019 Civ Pro I & II

3/42


B. Heightened Pleading: Sufficiency of Claims

Mistake and Fraud

Rule 9 Pleading Special Matters

(b) Fraud or Mistake; Condition of Mind.

In alleging fraud or mistake, a party must state with particularitythe circumstancesconstituting fraud or mistake. Malice, intent, knowledge, and other conditions of aperson's mind may be alleged generally.

Fraud Elements:1. False or misleading statement,2. Made with an intent to deceive (scienter)

Contours Under FRCP Rule 9(b)

Plaintiff:

1. Must plead the content of the statement, its falsity, and its materiality.

2. BUT, need not plead intent to defraud with particularity, because state of mind maybe alleged generally.

Cases Tellabs, Inc. v. Makor Issues & Rights, Ltd. (S. Ct. 2007)

Facts:

s alleged that Tellabs had misrepresented the strength of its products and earnings in

order to conceal the declining value of the company's stock. Under the PSLRA, bringing securities fraud complaints must allege specific facts that give rise to a"strong inference" that the defendant intended to deceive investors (scienter).

Under PSLRA, P must state with particularity:1. Facts constituting violation, and2. Facts evidencing scienter (defendants intention to deceive, manipulate or defraud).

(State with particularity facts giving rise to a strong inference that the defendantacted with the required state of mind.)

Thus, higher burden than under Rule 9(b).

Issue: What is a strong inference?

RULE:To qualify as strong the inference of scienter must be more than merely plausible orreasonable it must be cogent and at least as compelling as any opposinginference of nonfraudulent intent. (646, 651)

In sum, the reviewing court must ask: When the allegations are accepted astrue and taken collectively, would a reasonable person deem the inference ofscienter at least as strong as any opposing inference?

7/29/2019 Civ Pro I & II

4/42


The Answer

Denial or Admission s answer must respond to the s allegations.

The response to an allegation can be a denial, an admission, or silence.

FRCP Rule 8 General Rules of Pleading

Denial Puts allegation in issue and creates an issue of fact as to the allegation.

It imposes on , burden of proving the allegation denied.

Permits to introduce evidence that would tend to disprove the allegation.

When does denial fail to provide fair notice?

RULE 8(b)

(2) Denials Responding to the Substance.A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials.A party that intends in good faith to deny all the allegations of a pleading

including the jurisdictional grounds may do so by a general denial. A party thatdoes not intend to deny all the allegations must either specifically deny designatedallegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation.A party that intends in good faith to deny only part of an allegation must admit thepart that is true and deny the rest.

(5) Lacking Knowledge or Information.A party that lacks knowledge or information sufficient to form a belief about thetruth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny.An allegation other than one relating to the amount of damages is admitted ifa responsive pleading is required and the allegation is not denied. If a responsivepleading is not required, an allegation is considered denied or avoided.

7/29/2019 Civ Pro I & II

5/42


Admission Establishes the allegation as true for purposes of the case.

Failure to deny Has same Effect as an admission,

Contours Affirmative Defenses:

Some defenses must be affirmatively pleaded. Defenses go beyond

affirmative denials of allegations and constitute introduction of newmatter.

Counterclaim:

may choose not only to answer but to advance an affirmative claim ofher own.

Typically filed at the same time as the answer, but it is, in effect, a

complaint by the .

Denials? What effect?

Effect of denial:

Must be particularized, or it may be made ineffective.

Effect of general denial:

If not full, not permitted.

Effect of admission:

Issue is proven.

Cases

Zielinski

Facts:

P and Ds employee crashed their forklifts. P sued D, believing that employee worked forD, and in paragraph five of the complaint, alleged that the forklift was owned, operated,

and controlled by D.

Under Federal Rule 8(b), an answer must admit or deny the averments upon which theadverse party relies. When a pleader intends in good faith to deny only apart or aqualification of an averment, he must specify so much of it as is true and material and denyonly the remainder.

D knew that the forklift collided with P's forklift. Therefore, D should have admitted thatthe collision occurred and only denied that Johnson worked for D. This would have warnedP that he had sued the wrong defendant, and P could have brought his action against theproper defendant within the statute of limitations period.

Holding: The answer contains an ineffective denial.

Under the circumstances of this case, principles of equity require that defendant beestopped from denying agency (see page 689).

Rules FRCP Rule 8(b) Defenses; Admissions and Denials ( DAD)

(1) In General.In responding to a pleading, a party must:

7/29/2019 Civ Pro I & II

6/42


(A) State in short and plain terms its defenses to each claim asserted against it; and

(B) Admit or deny the allegations asserted against it by an opposing party.

FRCP Rule 8(c)

A. Amending the PleadingsCONTOURS 1. When can a party amend a pleading?

Only at three points: Before, During, or After Trial.

2. When can a party amend a pleading to change the name of the defendant?Almost Never (well, not quite, but . . .)

Relation back of Amendments:

Does Rule 15[C] apply?

1. Only if defendants were aware of the complaint within 120 days after filing.&2. Only if there was a mistake concerning the proper party's identity.

Note: In California, we allow Doe defendants, with amendment permittedanytime within the three years permitted for service of process.

RULE 15 Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course.

A party may amend its pleading once as a matter of course within:(A) 21 days after serving it, or(B) if the pleading is one to which a responsive pleading is required, 21 daysafter service of a responsive pleading or 21 days after service of a motion underRule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments.

In all other cases, a party may amend its pleading only with the opposing party'swritten consent or the court's leave. The court should freely give leave whenjustice so requires.

3) Time to Respond.

Unless the court orders otherwise, any required response to an amended pleadingmust be made within the time remaining to respond to the original pleading orwithin 14 days after service of the amended pleading, whichever is later.

(b) Amendments During and After Trial.

7/29/2019 Civ Pro I & II

7/42


(1) Based on an Objection at Trial.

If, at trial, a party objects that evidence is not within the issues raised in the

pleadings, the court may permit the pleadings to be amended. The court should

freely permit an amendment when doing so will aid in presenting the merits and

the objecting party fails to satisfy the court that the evidence would prejudice

that party's action or defense on the merits. The court may grant a continuanceto enable the objecting party to meet the evidence.

(2) For Issues Tried by Consent.

When an issue not raised by the pleadings is tried by the parties' express or

implied consent, it must be treated in all respects as if raised in the pleadings. A

party may move at any time, even after judgment to amend the pleadings

to conform them to the evidence and to raise an unpleaded issue. But failure to

amend does not affect the result of the trial of that issue.

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back.

An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct,transaction, or occurrence set out or attempted to be set out in the originalpleading; or

(C) the amendment changes the party or the naming of the party against whom aclaim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period providedby Rule 4(m) for serving the summons and complaint, the party to be brought in byamendment:

(i) received such notice of the action that it will not be prejudiced in defendingon the merits; and(ii) knew or should have known that the action would have been brought againstit, but for a mistake concerning the proper party's identity.

Cases Worthington v. Wilson (Family Matters)

Facts: P sued the city and "three unknown named police officers." P filed an

amended complaint naming Wilson and the other officer (Ds) by name. Ds movedto dismiss on the ground that SOL had run.

Issue:Does an amended complaint that changes the name of the defendant relateback to the filing of the original complaint if the amendment does not correct amistake in the original complaint?

Holding: No. Federal Rule 15(c) permits relation backif the amended complaintarises out of the same conduct contained in the original complaint and the new
http://www.law.cornell.edu/rules/frcp/Rule15.htm#Rule15_c_http://www.law.cornell.edu/rules/frcp/Rule15.htm#Rule4_m_http://www.law.cornell.edu/rules/frcp/Rule15.htm#Rule15_c_http://www.law.cornell.edu/rules/frcp/Rule15.htm#Rule4_m_

7/29/2019 Civ Pro I & II

8/42


party. Ds note that there was no "mistake" concerning their identity when theoriginal complaint was filed. P simply did not know Ds' names. In 7th Cir. the"mistake" language in Rule 15(c) has been interpreted to not apply to a substitutionof actual names where the true names were not known when the complaint wasfiled. P cannot satisfy the requirements of Rule 15(c) + cannot use state claims.

JOINDER

Theme: The general philosophy of modern procedural rules in both the federal andstate systems is to allow liberal joinder of claims and parties.

A. JOINDER OF CLAIMS

FRCP Rule 18(a) In General.

A party asserting a claim, counterclaim, cross claim, or third-party claim mayjoin, as independent or alternative claims, as many claims as it has against anopposing party.

Notes:

No requirement that they be related.

No requirement that claims arise out of the same or related transaction or

occurrence.

But, of course, always required that there be federal SMJ.

COUNTERCLAIMS

Counterclaim: is any claim asserted by any party against an opposing partywho has already asserted a claim. A counterclaim is usually a claim asserted

by a against a , but need not be. (Compulsory or Permissive)

1) A counterclaim is compulsory under Rule 13(a) if it arises out of thetransaction or occurrence that is the subject matter of the opposing partysclaim. (Must be asserted in the current suit or waived)

Exceptions:

Need not be filed if already pending as claim in another proceeding

If opposing party has not obtained in personamjurisdiction over the partywho has a potential counterclaim.

2) A counterclaim is permissive under Rule 13(b) if it does not arise out ofthe same transaction or occurrence as the plaintiffs claim. Claim must be a

claim asserted by the against a .

FRCP Rule 13(a) Compulsory Counterclaim.

(1) In General.

7/29/2019 Civ Pro I & II

9/42


A pleading must state as a counterclaim any claim that at the time of itsservice the pleader has against an opposing party if the claim:(A) arises out of the transaction or occurrence that is the subject matter of theopposing party's claim; and(B) does not require adding another party over whom the court cannot acquirejurisdiction.

(2) Exceptions.

The pleader need not state the claim if:

(A) when the action was commenced, the claim was the subject of another

pending action; or

(B) the opposing party sued on its claim by attachment or other process that

did not establish personal jurisdiction over the pleader on that claim, and the

pleader does not assert any counterclaim under this rule.

FRCP Rule 13(b) Permissive Counterclaims.

A pleading may state as a counterclaim against an opposing party any claim

that is not compulsory.

CROSSCLAIMS

Crossclaim: may be asserted only between co-parties, typically between co-

defendants. A cross-claim is always permissive.

Rule 13(g) and Rule 18(a):

Once a Rule 13(g) cross-claim is properly made, the cross claiming party can

add unrelated claims against the cross-claim defendant under Rule 18(a).

FRCP Rule 13(g) (g) Crossclaim Against a Coparty.

A pleading may state as a crossclaim any claim by one party against a copartyif the claim arises out of the transaction or occurrence that is the subjectmatter of the original action or of a counterclaim, or if the claim relates to anyproperty that is the subject matter of the original action. The crossclaim mayinclude a claim that the coparty is or may be liable to the crossclaimant for allor part of a claim asserted in the action against the crossclaimant.

1) Claims which maybe joined.

18(a): Multiple claims in any P v. D (or D v P etc.) (related or unrelated)13(a): D v P (related)13(b): D v. P (unrelated)

13(g): D1 v. D2 (related)

Cases:

Counterclaims:Federal Rule 13(a)and (b)

Jones v. Ford Motor Credit Company

Facts:Class action law suit brought by African Americans who were being chargedhigher interest rates on car loans from Ford. While awaiting classcertification, D brought a counterclaim against 3 African Americans forunpaid car loans, as well as a conditional counterclaim (in the event of class

7/29/2019 Civ Pro I & II

10/42


certification) against any class members who also defaulted.

Issue: Were these compulsory (related) or permissive (unrelated)counterclaims? Even if permissive, there is still the question of whether thecounterclaim satisfies the requirements of relatedness under 1367.

TEST: Court said compulsory claims are those which have alogical relationship. While there is no logical relationship here,there may still be enough relatedness for SMJ under 1367. Courtthen remanded to lower court for this determination.

Fairview Park Excavating v. Al Monzo Construction

Subcontractor (P) brought a claim against township and Monzo (contractor) infederal court under diversity jurisdiction for failing to pay for contractedwork. Monzo then brought a crossclaim against the township. However,primary claims again diverse parties were dismissed, leaving only two partiesin crossclaim that were not diverse. The issue is whether the crossclaim,

lacking diversity jurisdiction, should be dismissed.

Holding: Once the court had ancillary jurisdiction, it didnt lose it by adismissal for non-jurisdictional reasons of the initial complaint that madeTownship a defendant.

Contours Severance:

Rule 42(b) a district court may sever a case into two or more parts forseparate disposition for convenience, to avoid prejudice, or to expedite andeconomize.

May mean:Separate trials only as to certain issues or claims

Consolidation

Rule 42(a) a district court may consolidate separate filed cases.

May mean:Can be consolidated for certain purposes (pre-trial motions, not for damages)

7/29/2019 Civ Pro I & II

11/42


B. JOINDER OF PARTIES

THEME: If rules of joinder permit claim or party to be joined, will the new claim or

party be authorized by 1367?

PERMISSIVEJOINDER OF

PARTIES

FRCP Rule 20

(a) Persons Who May Join or Be Joined.

(1) Plaintiffs.

Persons may join in one action as plaintiffs if:(A) they assert any right to relief jointly, severally, or in the alternative withrespect to or arising out of the same transaction, occurrence, or series oftransactions or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the action.

(2) Defendants.

Persons as well as a vessel, cargo, or other property subject to admiraltyprocess in rem may be joined in one action as defendants if:(A) any right to relief is asserted against them jointly, severally, or in thealternative with respect to or arising out of the same transaction, occurrence, orseries of transactions or occurrences; and(B) any question of law or fact common to all defendants will arise in theaction.

Rules

Federal rule 20(a) authorizes permissive joinder of multiple parties, so longas 2 requirements are met:

1) All joined must assert, and all joined must have asserted against them,claims arising out of the same transaction, occurrence, or series oftransactions or occurrences,and

2) There must be a question of law or fact common to allof the joined parties.

Does not require joinder, rather, itpermits joinder when 2 criteria are met.

Contours

Supplemental Jurisdiction & Joinder

Federal Question

Under 1367, joinder of parties for whose claims theres no independentbasis for jurisdiction is permitted in FQ cases so long as the claims are partof the same case or controversy under Article III.

Diversity

7/29/2019 Civ Pro I & II

12/42


There is supplemental jurisdiction over Rule 20 claims brought by .

There is no supplemental jurisdiction for claims against non-diverse joined under Rule 20.

Reverse Exxon

P (NY) -> (1332) D1($75,000) D2( $50,000)Rule 20 says its ok to join them.But jurisdiction is not ok. Its ok for D1, because he meets the requirements of1332, but not for D2, because he doesnt.1367(b) for cases just based on diversity, theres no jurisdiction for claimsbrought in if its inconsistent with 1332.

COMPULSORY JOINDEROF PARTIES

FRCP Rule 19:

(a) Persons Required to Be Joined if Feasible.

(1) Required Party.

A person who issubject to service of process and whose joinder will notdeprive the court ofsubject-matter jurisdiction must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief amongexisting parties; or

(B) that person claims an interest relating to the subject of the action and is sosituated that disposing of the action in the person's absence may:(i) as a practical matter impair or impede the person's ability to protect theinterest; or(ii) leave an existing party subject to a substantial risk of incurring double,

multiple, or otherwise inconsistent obligations because of the interest.

(b) When Joinder Is Not Feasible.

If a person who is required to be joined if feasible cannot be joined, the courtmust determine whether, in equity and good conscience, the action shouldproceed among the existing parties or should be dismissed. The factors for thecourt to consider include:

(1) the extent to which a judgment rendered in the person's absence might

prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or avoided by:

(A) protective provisions in the judgment;(B) shaping the relief; or

(C) other measures;

(3) whether a judgment rendered in the person's absence would be

adequate; and

(4) whether the plaintiff would have an adequate remedy if the action were

dismissed for nonjoinder.

At Common Law:

7/29/2019 Civ Pro I & II

13/42


ANALYSIS

Necessary parties: Parties required to be joined if feasible or desirableparties. [Rule 19(a)]

Indispensible parties: Parties who are so vital that if their joinder isimpossible, the whole action must be dropped, are called indispensable

parties. [Rule 19(b)]

Analysis for RULE:

How do we determine whether [party] was an indispensable party?

1. Is it a Person Required to Be Joined if Feasible?

A) does its absence endanger the courts ability to afford complete relief?Or,

B1) does its absence impair its ability to protect its interests, or

B2) subject it to the potential of multiple or inconsistent obligations?

If YES, and if [party] cannot be joined, THEN:

2. In equity and good conscience, should the action proceed?

Will the judgment prejudice [party]? Can the court protect it from prejudice? Will a judgment for Helzberg be adequate without Kirk as a party? Would Helzberg have another remedy if the case was dismissed?

CASES

Temple v. Synthes Corp.

P: Temple (Mississippi) + D: Synthes Corp. (Pennsylvania) - 1332 DiversityjurisdictionTemple sued Synthes, the device manufacturer, for a screw that broke off insidehis back following an operation. Synthes argues for dismissal on the groundsthat P failed to join the doctor and hospital (argued they were necessaryparties).Decision: joinder of all tortfeasors in a single suit not required under Rule 19.P controls his/her lawsuit and is not required to sue joint tortfeasors.Reasoning: Notes to Rule 19(a) explicitly state that a tortfeasor with theusual joint and several liability is merely a permissive party to an action againstanother with like liability.

Helzbergs Diamond Shops v. Valley West Des Moines Shopping Center

Helzberg jewelry store (P, Missouri) sued Valley West (D, Iowa) in federalcourt (diversity 1332) for breaching a contract to not lease mall space to other

7/29/2019 Civ Pro I & II

14/42


competing jewelry stores.

Rule: A person doesnt become indispensible to an action to determine rightsunder a contract simply b/c that persons rights or obligations under an entirelydifferent contract will be affected by the result of the action (p.749)

CONTOURS

Rule 19 & Supplemental Jurisdiction

SJ is not available in a diversity case under 1332 when a person is soughtto be joined under Rule 19.

However, SJ is available, irrespective of the absent partys citizenship, isSMJ is based on FQ jurisdiction 1331.

IMPLEADER

Rule 14. Third-Party Practice

(a) When a Defending Party May Bring in a Third Party.

(1) Timing of the Summons and Complaint.

A defending party may, as third-party plaintiff, serve a summons and complainton a nonparty who is or may be liable to it for all or part of the claim against it.But the third-party plaintiff must, by motion, obtain the court's leave if it filesthe third-party complaint more than 14 days after serving its original answer.

(2) Third-Party Defendant's Claims and Defenses.

The person served with the summons and third-party complaint the third-party defendant:(A) must assert any defense against the third party plaintiff's claim under Rule

12;(B) must assert any counterclaim against the third-party plaintiff under Rule13(a), and may assert any counterclaim against the third-party plaintiff underRule 13(b) or any crossclaim against another third-party defendant under Rule13(g);(C) may assert against the plaintiff any defense that the third-party plaintiff hasto the plaintiff's claim; and(D) may also assert against the plaintiff any claim arising out of the transactionor occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

CONTOURS

Third-party complaint: complaint by the against the impleaded TPD. becomes the TP

Rule 14(a) & Rule 18(a)

Once a Rule 14(a) third-party impleader claim is properly made, the TPP canadd unrelated claims against the TPD under Rule 18(a).

In a diversity case, there is no SJ under 1367 over a claim by the against the impleaded TPD.

7/29/2019 Civ Pro I & II

15/42


INTERVENTION

Rule 24. Intervention

(a) Intervention of Right.

On timely motion, the court must permit anyone to intervene who:(1) is given an unconditional right to intervene by a federal statute; or

(2) claims an interest relating to the property or transaction that is the subject ofthe action, and is so situated that disposing of the action may as a practicalmatter impair or impede the movant's ability to protect its interest, unlessexisting parties adequately represent that interest.

(b) Permissive Intervention.

(1) In General.On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common questionof law or fact.

Contours

This rule is used when two parties have a lawsuit and a third party claims aninterest in the transaction subject to the suit and wants to intervene.

TEST:

The moving party must demonstrate 1) an interest, 2) which will beimpaired or impeded if it cannot participate and, 3) that there is no existingparty that adequately represents that interest.

The test for Rule 24 is whether there is a sufficient similarity of interest,such that it is well represented.

If the interest is not well represented, a party will be allowed to join.

Rule 19 & Rule 24

Under Rule 19, a party seeks to join a non-party with an important interest inthe case.Under Rule 24, a non-party with an important interest in the case seeks to join.

CasesBustop v. Superior Court

CLASS ACTIONS

Rule 23 Class Actions

(a) Prerequisites.

One or more members of a class may sue or be sued as representative parties onbehalf of all members only if:(1) the class is so numerous that joinder of all members is impracticable,(2) there are questions of law or fact common to the class,(3) the claims or defenses of the representative parties are typical of the claims

7/29/2019 Civ Pro I & II

16/42


or defenses of the class; and(4) the representative parties will fairly and adequately protect the interests ofthe class.

General

Prerequisites

Numerosity: Rule 23(a)(1) requires that the class be so numerous that joinderof all members as individual named parties be impracticable.

Commonality: Rule 23(a)(2) requires that there be questions of law or factcommon to the class.

Typicality: Rule 23(a)(3) requires that the claim or defenses of the named(representatives) party or parties be typical of those of the class as a whole.- the named party or parties should have claims sufficiently similar to those ofthe class as a whole such that in representing their own interests they alsorepresent the interest of the class members.

Fair and adequate representation: Rule 23(a)(4) requires that the namedparty or parties provide fair and adequate protection of the interest of the class

as a whole. Construed to foreclose the class action where there is a conflict of interest

between the named plaintiff and the members of the putative class.

Construed to mean that actual representation provided by the class attorneybe adequate.

Types of Class

Actions

(b) Types of Class Actions.

A class action may be maintained if Rule 23(a) is satisfied and if:(1) prosecuting separate actions by or against individual class members wouldcreate a risk of:(A) inconsistent or varying adjudications with respect to individual classmembers that would establish incompatible standards of conduct for the party

opposing the class; or(B) adjudications with respect to individual class members that, as a practicalmatter, would be dispositive of the interests of the other members not parties tothe individual adjudications or would substantially impair or impede theirability to protect their interests;(2) the party opposing the class has acted or refused to act on grounds thatapply generally to the class, so that final injunctive relief or correspondingdeclaratory relief is appropriate respecting the class as a whole; or(3) the court finds that the questions of law or fact common to class memberspredominate over any questions affecting only individual members, and that aclass action is superior to other available methods for fairly and efficiently

adjudicating the controversy. The matters pertinent to these findings include:(A) the class members' interests in individually controlling the prosecution ordefense of separate actions;(B) the extent and nature of any litigation concerning the controversy alreadybegun by or against class members;(C) the desirability or undesirability of concentrating the litigation of the claimsin the particular forum; and(D) the likely difficulties in managing a class action.

7/29/2019 Civ Pro I & II

17/42


Types of Class

Actions Cont.

Non-opt out class actions:

Rule 23(b)(1) (b)(2) are mandatory class actions, in that members of aproperly certified class are not permitted to opt out of the action and under therule are not entitled to notice of the filing of the action.

Class Actions under Rule 23(b)(1)

The general practice in the Courts of Appeals is to certify a (b)(1)(A) classaction only when injunctive or declaratory relief is sought

The most important kind of (b)(1)(B) class action is the so-called limitedfund suit, in which class members claim an interest in a limited fund.

When should we permit a class action 23 (b)(1)?Absent a class, is there a risk of inconsistent judgments?Absent a class, is there a risk that early judgments would impair the rights oflater claimants?


Class actions under (b)(2) are sometimes called injunction class actionsbut include both injunction and declaratory relief.

o Primarily civil rights class actions

When should we permit a class action 23(b)(2)?

Is there a need for injunctive relief that would apply to the entire class?


Questions of law or fact common to the class must predominate overquestions affecting only individual class members, and the class actiondevice must be superior to other available methods of adjudication.

o Notice is mandatory and class members must be afforded the right

to opt out of the class.

When should we permit a class action under 23(b)(3)?

Do the advantages of a class outweigh the disadvantages?Would a class action unduly interfere with the rights of individual classmembers?

Is the matter already the subject of ongoing litigation?Should the litigation be concentrated in one forum?Is a class of this size, under these circumstances, manageable for the court andcounsel?

Rule 23(c)(1)

(c) Certification Order; Notice to Class Members; Judgment; Issues

7/29/2019 Civ Pro I & II

18/42


Class Certification Classes; Subclasses.

(1) Certification Order.(A) Time to Issue. At an early practicable time after a person sues or is sued asa class representative, the court must determine by order whether to certify theaction as a class action.

(B)Defining the Class; Appointing Class Counsel. An order that certifies aclass action must define the class and the class claims, issues, or defenses, andmust appoint class counsel under Rule 23(g).

(C)Altering or Amending the Order. An order that grants or denies classcertification may be altered or amended before final judgment.

Class Cert Order may be altered or amended before final judgment.

Settlement (e) Settlement, Voluntary Dismissal, or Compromise

The claims, issues, or defenses of a certified class may be settled, voluntarily

dismissed, or compromised only with the court's approval. The followingprocedures apply to a proposed settlement, voluntary dismissal, or compromise:

CASES Hansberry v. Lee 311 US 32 (1940)

Rule: Class actions may proceed and bind, through res judicata, persons notparties to the action. BUT, their interests must be protected or due process hasbeen violated.

1) Unrepresented, unknown class members may be bound by a judgment, but

only if their interests are fully and fairly represented by an adequate class

representative.

And,

2) Collateral attack on adequacy of class representative is permitted.

Notice?RecallMullane -- due process does not require actual notice; it requires the bestnotice practicable under the circumstances.

7/29/2019 Civ Pro I & II

19/42


DISCOVERY I Case management/Devices

Theme: The legal process for compelling the disclosure of information relevant to

disputed factual issues in litigation.

MECHANISMS

OF

DISCOVERY

Initial Disclosures: Rule 26(a)(1)(A)(i)-(iv)

Except as exempted by or as otherwise stipulated by the court, a party must, withoutawaiting a discovery request, provide to the other parties FOUR classes ofinformation:

i. Names, addresses, and telephone numbers of individuals likely to havediscoverable information along with the subjects of that information that thedisclosing party may use to support its claims or defenses, unless the use would besolely for impeachment.

ii. Copies, or descriptions by category and location, of documents, data compilations,and other tangible things that the disclosing party may use to support its claims ordefenses

iii. A computation of any category of damages claimed

iv. Any insurance agreement out of which a judgment may be paid.

Initial disclosures must be made within 14 days after the parties meeting to

prepare a discovery plan. [Rule 26(a)(1)(C)]

Pre-Trial Disclosures: Rule 26(a)(3)

(A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), aparty must provide to the other parties and promptly file the following informationabout the evidence that it may present at trial

Discovery Plan: Rule 26(f)

Parties are required under Rule 26(f) to meet after the complain is served in order todevelop a proposed discovery plan.

(f) Conference of the Parties; Planning for Discovery

(1) Conference Timing.Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when thecourt orders otherwise, the parties must confer as soon as practicable and in any event atleast 21 days before a scheduling conference is to be held or a scheduling order is due underRule 16(b).(2) Conference Content; Parties' Responsibilities.

7/29/2019 Civ Pro I & II

20/42


In conferring, the parties must consider the nature and basis of their claims and defenses andthe possibilities for promptly settling or resolving the case; make or arrange for thedisclosures required by Rule 26(a)(1); discuss any issues about preserving discoverableinformation; and develop a proposed discovery plan.

Discovery

Devices

Rule 30. Depositions (oral examination): A formal questioning of a witness underoath.

(a) When a Deposition May Be Taken.

(1) Without Leave. A party may, by oral questions, depose any person, including aparty, without leave of court except as provided in Rule 30(a)(2). The deponent'sattendance may be compelled by subpoena under Rule 45.

Under Rule 30, a party may depose any person, whether or not a party, whopossesses relevant information within the meaning of Rule 26.

Lawyers notice the deposition of a witness. If it's a party, we only need to notice.If not, we need a summons (subpoena) that states when and where we plan todepose the witness.

Lawyers of witness who is being deposed may object to a question or eveninstruct a witness not to answer

o Preservation of a privilege

o Protective order

o Abusive behavior by deposing party

Rule 33. Interrogatories to parties: is a written question sent to a party that must beanswered under oath and in writing.

(a) In General.

(1)Number. Unless otherwise stipulated or ordered by the court, a party may serveon any other party no more than 25 written interrogatories, including all discretesubparts. Leave to serve additional interrogatories may be granted to the extentconsistent with Rule 26(b)(2).

Interrogatories can only be sent to parties.

Leave of court is required to submit more than 25 interrogatories. [Rule 33(a)]

Objections to interrogatories must be stated with specificity. [Rule 33(a)]

Any grounds for objection not so stated are waived.

To the extent that an interrogatory is not objectionable, it must be answered.[Rule 33(b)(1), (4)]

Party may answer interrogatories under 33(d): Option to Produce BusinessRecords. Party may, in lieu of answering, provide documents that have theinformation within it when the information has not yet been compiled.

Rule 34. Producing Documents, Electronically Stored Information, and Tangible

Things, or Entering onto Land, for Inspection and Other Purposes

(a) In General. A party may serve on any other party a request within the scope of :(1) to produce and permit the requesting party or its representative to inspect, copy,test, or sample the following items in the responding party's possession, custody, or

7/29/2019 Civ Pro I & II

21/42


control:(A) any designated documents or electronically stored information--includingwritings, drawings, graphs, charts, photographs, sound recordings, images, and otherdata or data compilations--stored in any medium from which information can beobtained either directly or, if necessary, after translation by the responding party intoa reasonably usable form; or

(B) any designated tangible things; or

A party may request another party to produce documents or tangible things forinspection, copying or testing; or to permit entry onto land or other physicalproperty for inspection, measuring or photographing. [Rule 34(a)]

Leave of court is not required for such a request, and there is no presumptiveupper limit on the number of documents or physical things that may be requested.[Rule 34(b)]

A non-party may be compelled by subpoena to produce documents and things, orto permit entry. [Rule 34(c); 45]

Rule 35. Physical and Mental Examinations

Rule 36: Requests for admission

A party may request that an opponent admit, for purposes of this case alone, thatcertain facts are true or that certain documents are genuine.

If a party does not answer or object to a request for admission within 30 days,the matter is deemed admitted. [Rule 36(a)(3)]

CASES

Zubulake v. UBS Warburg

In a sexual harassment case, P wished to compel disclosure of all electroniccommunications at UBS with regard to her employment. Issue here was who(requestor or responder) should pay for retrieval of electronic records.

Rowe 7-factor balancing test

Marginal Utility Test (most important):1. Extent to which the request is specifically tailored to discover relevant info

2. The availability of such info from other sources

2. Total cost of production, compared to the amt in controversy3. Total cost of production, compared to the resources available to each party4. Relative ability of each party to control costs and its incentive to do so5. The importance of the issues at stake in the litigation; and6. The relative benefits to the parties of obtaining the info

7/29/2019 Civ Pro I & II

22/42


DISCOVERY II PRIVILEGES AND IMMUNITIES

ATTORNEY CLIENT

PRIVILEGE

RULE: Where legal advice of any kind is sought from a professional legal advisor

in his capacity as such, the communications relating to that purpose, made inconfidence by the client are at this instance permanently protected from disclosureby himself or by the legal advisor, except the protection be waived.

Attorney must maintain as confidential and privileged:

1. Communications from a client (or would be client)2. Made to a lawyer (or her agent) acting in her capacity as a lawyer3. In private4. For the purpose of seeking legal advice or services,5. And must also maintain as confidential any resulting advice given to the clientby the attorney.

An attorney-client relationship is created when the client reasonablybelieves that the attorney is providing, or is willing to consider providing,legal services.

Only covers communications, NOT FACTS: A fact is not covered by theprivilege merely because it is disclosed to counsel.

Absolute quality of the privilege: Attorney-client privilege cannot beovercome by a showing that the information embodied in the protectedcommunication is unavailable from any other source.

Claiming and Waiving the privilege: The privilege can be waived by theclient, either by voluntarily disclosing the communication or by failing to

claim the privilege.

Exceptions:

If client/patient says they have intent to commit a crime (Tarasoff v. UCRegents) or if client reveals intent to commit perjury.

If you know client has committed perjury, you must advise client to tell thetruth and amend testimony; or else you must notify the court.

CASES

Upjohn Co. v. United States

Upjohn Co. (D), a multinational corporation, discovered that one of its foreign subsidiarieshad apparently bribed foreign government officials. As part of an internal investigation,

D's attorneys sent questionnaires to its foreign managers and conducted interviews withthese people and certain other employees. The IRS issued a summons for production of thequestionnaires and interview notes. D refused to produce the documents, claimingattorney-client privilege and work-product doctrine protection. The lower courts orderedproduction and D appeals.

Held: Attorney client privilege protects all of their communications, not just upper levelmanagement, the control group, but with all employees.

7/29/2019 Civ Pro I & II

23/42


WORK PRODUCT

DOCTRINE

FRCP RULE 23(b)(3)

(3) Trial Preparation: Materials.

(A)Documents and Tangible Things. Ordinarily, a party may not discover

documents and tangible things that are prepared in anticipation of litigation or for

trial by or for another party or its representative (including the other party's

attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule

26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case

and cannot, without undue hardship, obtain their substantial equivalent by other

means.

(B) Protection Against Disclosure. If the court orders discovery of those materials,

it must protect against disclosure of the mental impressions, conclusions, opinions,

or legal theories of a party's attorney or other representative concerning the

litigation.

Rule 26(b)(5)(5) Claiming Privilege or Protecting Trial- Preparation Materials.(A)Information Withheld. When a party withholds information otherwise

discoverable by claiming that the information is privileged or subject to protectionas trial-preparation material, the party must:(i) expressly make the claim; and(ii) describe the nature of the documents, communications, or tangible things notproduced or disclosed and do so in a manner that, without revealing informationitself privileged or protected, will enable other parties to assess the claim.

CASE

Hickman v. Taylor

Counsel for Tugboat that was involved in a fatal accident interviewed survivors.Takes written statements and makes notes. The opposing counsel issued aninterrogatory demanding the work-product of those interviews, which were refused

based on work-product privilege. Held: P made no attempt to establish any reasonfor forcing production of the written statements. Because the burden rests on theparty demanding production, the privilege was not overcome.

Factors inHickman:Necessity: Demanding party must be able to show necessity or claim that denialwould unduly prejudice the preparation of petitioner's case or cause him harm orinjustice. In Hickman, the witnesses were equally available and deposed byopposing counsel, so necessity would be difficult to claim.

7/29/2019 Civ Pro I & II

24/42


But see Upjohn: Work-product disclosure cannot be compelled solely on ashowing of substantial need and inability to obtain the equivalent without unduehardship. Must be a "strong showing".

CONTOURS

1. Absolute Immunity: documents that reveal the thought processes of a lawyershould not be disclosable through discovery.

Mental impressions, strategy, tactics, and mental opinions.

2. Qualified Immunity: Documents that are prepared by a lawyer for the purpose oflitigation should only be revealed if there are no other means for obtaining thesame information.

Overpowered if discovering party cannot get access to the information itsunavailable. Ex. Witness is dead or outside of jurisdiction.

Witness statements: If statement is recorded in preparation for trial, then

privilege intact.

Exception in 26(b)(3)(C): Any party or other person may, on request andwithout the required showing, obtain the person's own previous statementabout the action or its subject matter.

DISCOVERY III: DISCOVERY FROM EXPERTS

* The initial disclosure* The types of discovery devices, and how they work* Attorney-Client Privilege* Work Product/Trial Prep Materials* Experts: Disclosure* Protective Orders* Motions to Compel* Sanctions

SUMMARY JUDGMENT I

7/29/2019 Civ Pro I & II

25/42


RULE 56

Summary Judgment (adjudication without trial):

Rule 56 Summary Judgment

(a) By a Claiming Party.A party claiming relief may move, with or without supporting affidavits, forsummary judgment on all or part of the claim.

(b) By a Defending Party.A party against whom relief is sought may move, with or without supportingaffidavits, for summary judgment

56(c) Time for a Motion, Response, and Reply; Proceedings.

(2) The judgment sought should be rendered if the pleadings, the discovery anddisclosure materials on file, and any affidavits show that there is no genuine issueas to any material fact and that the movant is entitled to judgment as a matter

of law.

56(e) Affidavits; Further Testimony.

(2) Opposing Party's Obligation to Respond.When a motion for summary judgment is properly made and supported, anopposing party may not rely merely on allegations or denials in its own pleading;rather, its response must by affidavits or as otherwise provided in this rule set out specific facts showing a genuine issue for trial. If the opposing partydoes not so respond, summary judgment should, if appropriate, be entered againstthat party.

Summary Judgment

Process/STEPS

1. If the information presented by the moving party, taken as true, fails to establishthat no factual dispute exists, summary judgment will be denied.

2. But, if the moving party does produce information that appears to establish thatno factual dispute exists, then the responding party must come forward withmaterial to show that there is a genuine issue of material fact, or summaryjudgment will be granted.

3. If the responding party does produce information contradicting that of themoving party, or otherwise showing that a factual dispute does exist, summaryjudgment must be denied.

- Can make motion for SJudg up to 30 days after close of discovery

When is Summary Judgment appropriate?

1. Defendant produces evidence that negates a necessary element of plaintiffsprima facie case. This is what the Court seemed to require in Adickes.

2. Defendant asserts that following discovery, plaintiff can point to noevidence in support of a necessary element of plaintiffs prima facie case. This is

7/29/2019 Civ Pro I & II

26/42


what the Court permitted in Celotex.

Cases

Adickes

RULE: Burden is on the moving party to show there is no genuine issue of materialfact.

Celotex

Asbestos death case. Court found that D did not have to present additionalevidence in motion for SJ needed only to show that P had not met the burden ofproduction to begin with. I.e., D can simply poke holes in Ps case, as long asenough time has been provided to allow P to reveal the fabric of the case in termsof key operative facts (discovery).

Court permits the D to shift the burden of production to the P.

Difference between Adickes & Celotex:

In Addicks the Court requires the defendant/moving party [Kressdepartment store] to produce evidence disproving a fact [an agreement toharass plaintiff] which the plaintiff/responding party must prove to prevail.

But in Celotex the Court permits the defendant to shift the burden ofproduction to the plaintiff. If the defendant shows that the discoveryprocess has disclosed no evidentiary support for a fact which plaintiff must

prove, now the burden shifts to the plaintiff to produce admissible evidencesupporting that factual assertion, in order to avoid summary judgment.

Burden of Proof

Moving Party with burden of proof:

If the moving party has the burden of proof, he must produce evidence of suchstrength that no reasonable jury could find for the opposing party.

Moving party without burden of proof:

If the moving party does not have the burden of proof, then ---

Initial responsibility of informing court of basis for motion

- Moving part initial responsibility of informing the court basis for itsmotion, party must identify those portions of the record which it believesdemonstrate the absence of genuine issue of material fact.

- Moving party can offer affirmative evidence that negates an essentialelement of the opposing partys case.

- If thrust of motion is that the opposing party has no evidence, the showingshould reliably indicate that. Moving party should be able to point to

7/29/2019 Civ Pro I & II

27/42


discovery calculated to elicit from the opposing party any evidence he hadto support his case and then demonstrate that this evidence is inadequate.

Contours

Standard for granting SJ and burdens of production/persuasionThe principles governing the movant's burden of production under FederalRule 56(c) clearly indicate that the burden of persuasion at trial necessarily affectsthe burden of production under Rule 56(c) or (e). The burden of persuasion at trialalso determines the burden of persuasion on summary judgment.

Burden of production: typically fall son the , requires the plaintiff to produceevidence at trial that meets a minimum standard of sufficiency.

Burden of persuasion: by which the would ultimately have to convince the jury,which in a civil case is typically by a preponderance or more likely than not.

Summary judgment serves as a device that can be used prior to trial, todetermine whether a party who bears the burden of production will be ableto meet it.

Standard: the moving party is entitled to Summary Judgment if he/she can showthat there is no genuine issue of material fact. Judge can then decide case as amatter of law.

Extremely heavy burden of persuasion on moving party judge draws all inferencein favor of non-moving party. Designed to prevent premature entry of Summary

Judgment.- Judge needs to determine whether there is an issue of material fact.- Decide whether there is a triable issue of fact.

TEST:

Summary judgment motion = directed verdict motion (pre-trial vs. post-trial)

- Looking at all evidence in light most favorable to non-moving party(admissible evidence) would judge grant directed verdict motion or take itaway from jury (no reasonable way that the jury can find for non-moving

party) so shall grant summary judgment.- Context where likely to SJ be granted

o Look at all material presented at motion and realize that case

has no legal basis. For example, not a recognized wrong.o All of the materials are the same way, all consistent, nothing triable

and no reasonable jury could disagree with what all the documentssay.

o Summary Judgment material looks very powerful for but then

materials also show iron-clad defense like Statute of limitations or

7/29/2019 Civ Pro I & II

28/42


res judicata. (no genuine issue of material fact)

Discretionary outlet for judge to deny motion:- Moving party puts out powerful deposition but something fishy.- Issues of credibility- Rarely grant SJ with party who has ultimate burden of persuasion at trial

- Gap in material presented on motion

Court can look at evidenceEvidence standard:The moving party must show:

1) No dispute on a material issue of fact

2) She is entitled to judgment as a matter of law

If the evidence shows that there is no dispute of fact (before trial), then entersummary judgment (Rule as a matter of law)

Affidavits: Sworn written statements that are treated by the court as evidenceAlso depositions, interrogatories- Cannot use pleadings as evidence

- Court can never resolve dispute of fact in summary judgment

In applying Summary Judgment -Take all the evidence and read them allIs there a dispute on a material issue of fact? If answer is yes, then deny sum. Jud.

CONSTITUIONAL RIGHT TO CIVIL JURY

Law v. Equity

1. An action at law is traditionally an action for recovery of money damages -money is the currency of justice and is sufficient.

If you make the demand in proper time, you have a right to a trial by jury.

2. An action in equity asks, not for money, but for the Court to order the party todo something, e.g., an injunction, or even restitution/specific performance - usuallyapplied where money damages are inadequate.

Traditionally, in equity, there were no juries.

Since only judge hears case, it can often go on, piecemeal, for a long time.This allowed emergence much of complex civil procedures we now use today.

3. Mixed action at law + action in equityWhat do you do in a mixed law equity case?

- Ex. Damages + injunction, interposes legal claim and interposes

equitable counterclaim, says that breached contract and wants specificperformance or alternative of damages

7/29/2019 Civ Pro I & II

29/42


Historically:

Clean-up doctrine: Equity Court would say OK to have equity jurisdiction andgranted equitable remedy and now simply to end litigation will clean it up byawarding money as incident to injunction.

If center of gravity is equitable no jury BUT if center of gravity of case is legal then jury.

But what happens when, under the FCRP, law and equity are merged? Answer is inBeacon Theatres v. Westover.

Beacon Theatres (Mixed law/ Equity Case)

Facts: Case involves two competing movie theaters. When Beacon accuses Fox ofviolating antitrust laws, Fox sues Beacon for harassment, asking for injunction anddeclaratory judgment that Fox is not violating antitrust laws. Beacon files

compulsory counterclaim for damages under antitrust laws. (This can be thought ofas a race to the courthouse.)

Holding:Now that the federal rules have merged law and equity, the legal andequitable actions may be tried together, with a jury hearing the legal matters.

Reasoning:

1) Purely legal issue computing damages jury2) Purely equitable issues discretion in deciding on equitable remedy like injunction

judge

3) Issues Common to both legal side and to the equitable side of case if casewas purely legal then jury and if equitable to judge

Presumption in favor of jury trial -> just because case where mix, that

should not cause anyone to loose jury trial just because its mixed, the

issue should go to a jury. [KEY aspect of case]

Determine jury trial right in terms of issues not simply at wholesale level

(center of gravity)

Analysis in exam:

Announce Beacon theatre proposition and break it down into its constituents issue

and one by one decide whether each issue is legal, equitable, or common and assign itto jury trial/not to jury trial depending on characterization.

Dairy Queen

- Equitable issues. says misusing a franchise trademark (stop and giveaccounting for damages and utilization of DQ paraphernalia)

- Injunction, declarations, and accountings- SCOTUS: Historical artifact, have FRCP and can join claims now and can try

it at one time.

7/29/2019 Civ Pro I & II

30/42


- Right to jury is constitutional embrace opportunities to expand it- Rule: Accountings that were historical equitable moved to the law

Ross v. Bernard

- Shareholders derivative suits- Merged system and case says that doesnt matter that dispute comes into court

in an equity procedural vehicle (class action) you use equity principles, judgedecides whether or not procedural vehicle properly invoked) once decideequitable vehicle is appropriate, look at nature of action and doBeaconanalysis equity vehicle doesnt destroy jury triability of underlying issues

Question:

Is the 7th Amendment historically pinned in 1791?

Actions at common law - basic understanding was that it provided aconstitutional right to jury for all action that existed at common law in 1791.

What about actions created by Congress after 1791?

Jury nullification Whether 7th amendment has growth capacity or limited to 1791?

o If certain conditions are met, statutory rights carry the constitutional

jury trial right even though post 1791o 1) Right created by Congress must be vindicated by a court (article III

court)o 2) Remedy provided by substantive right must be one traditionally

granted by juries in courts of law (damage remedies)o 3) The right created by the statute must be analogous to a right that

existed in 1791 (right involved in Curtis innkeepersliability/dignitary tort) [Not really great restriction]

Beacon Theatres and Curtis

- 7th amendment jury trial guarantee for civil cases was expanded by SCOTUS- 7th amendment jury trial cases- 7th amendment has never been incorporated through 14th amendment and

applied to states so state courts are free to apply/rejectBeaconTheatres/Curtis

Note: Exam take note where court is at Federal (do Beacon) and in State (Do bothanalysis)

- Depends on whether the courts follow the federal precedent ofBeacon, if do,

analysis, BUT if dont follow, then do clean up or center of gravity analysis.- Federal civil jury must be unanimous.- State juries not necessarily unanimous CA 10-2

How do we decide whether there is a 7th Amendment right to a jury trial, in an

action that didnt exist in 1791?

THE EVOLVING TEST FOR RIGHT TO JURY:

Chauffeurs v. Terry

7/29/2019 Civ Pro I & II

31/42


7th Amendment/

Administrative

Agencies

Employee (P) seeks backpay for a unions (Ds) breach of duty of fair representation issueis whether P is entitled under 7th Amendment to jury trial.

RULE: Court applies a two-part test1. History Test: We compare the action to 18th century actions in England2. Relief Test: We examine the remedy to determine whether it is legal or equitable in

nature;

Holding (J. Marshall): breach of fair representation is more like a trustees breach offiduciary duty; however, it is still an action at law because P doesnt seek restitutionarydamages, it only seeks money damages.

Administrative Agencies & 7th Amendment:

Congress is free to take certain areas and give them to administrative agencies and noconstitutional req. to jury trial in admin agency.

Atlas Roofing:

Says that if Congress is enforcing, through its sovereign powers, what is called a publicright, such as OSHA, they can:

1. Create a cause of action for violation of a statute;2. Set a fine for violations;

3. And put the enforcement right in the hands of an administrative agency,using administrative hearings

4. All without violating the Seventh Amendment.

But how do you define a public right?

a. Narrower (Atlas Roofing): Public Rights are cases in which the governmentis involved as a party in its sovereign capacity enforcing a federal statute. particularized area of law?

b. Broader: Statutory rights that are integral parts of a public regulatory schemeand whose adjudication Congress has assigned to an administrative agency orspecialized court of equity (see p.1120)

Contours 7th Amendment does not apply in suits against the federal government. Seventh amendment does not require jury trial in suits against foreign

sovereigns under the federal FSIA.

7/29/2019 Civ Pro I & II

32/42


JURY SELECTION & INSTRUCTION

Jury Selection

Basic Legal Requirements

28 U.S.C. 1861-1878:Statutory requirement that juries represent a cross section of the generalpopulation is not a constitutional requirement, but the Supreme Court has held that

the values protected by the fair cross section requirement include the preventionof bias in fact finding

Litigant may move to stay proceedings on ground of substantial failure tocomply BEFORE voir dire OR within 7 days after party discovered issue

Federal Court ONLY

Prohibition on intentional discrimination against individual jurors

Criminal cases/ Federal Court (Civil Case) jury panel must be drawn from afair cross section of the community.

Selection Process

Qualifications: Must be 18 and a citizen of the U.S. In many states, felonyconviction also disqualifies you for jury duty.

Voir Dire Process

A group of jurors randomly drawn from those that show up at the court house areplaced under oath and questioned by the judge who will preside at trial (federalcourt) or by the lawyers for the parties (state court).

- In CA the lawyers are allowed to interview the jurors

Challenges for Cause and Peremptory Challenges:

Challenge for cause: when a juror exhibits bias, he will be excused for causePeremptory challenge: juror excused with no need to give reason

- In Federal Court civil cases, 3 peremptory challenges allowed for both sides- CA permits 6 peremptory challenges

Edmonson v. Leesville Concrete, Inc.

Edmonson (P) sued Leesville Concrete (D) for negligence when a Leesville

7/29/2019 Civ Pro I & II

33/42


employee allowed truck to hit him. Leesville used two of its three peremptorychallenges to remove black persons from the prospective jury. Edmonson was alsoblack.

Holding: Court said the equal protection rights of jurors had been violatedwhen they were peremptorily challenged on the basis of race. Race-basedperemptory challenges by attorneys in civil cases violate the Equal

Protection Clause of the 14th

Amendment.

CONTRACTUAL WAIVERS

Policy issue: contractual waiver of right to jury trial.1. E.g., contractual arbitration agreements required for disputes related to creditcards.2. Also in employment contracts, even those based on statutory rights such as theCivil Rights Act.3. Are usually enforced unless they are considered unconscionable.

Jury Instructions/

Objections

Rule 51: Instructions to the Jury; Objections; Preserving a Claim of Error

(a) Requests.

(1) Before or at the Close of the Evidence.At the close of the evidence or at any earlier reasonable time that the court orders, aparty may file and furnish to every other party written requests for the juryinstructions it wants the court to give.(2) After the Close of the Evidence.After the close of the evidence, a party may:(A) file requests for instructions on issues that could not reasonably have been

anticipated by an earlier time that the court set for requests; and(B) with the court's permission, file untimely requests for instructions on any issue.(b) Instructions.

The court:(1) must inform the parties of its proposed instructions and proposed action on therequests before instructing the jury and before final jury arguments;(2) must give the parties an opportunity to object on the record and out of the jury'shearing before the instructions and arguments are delivered; and(3) may instruct the jury at any time before the jury is discharged.(c) Objections.

(1) How to Make.

A party who objects to an instruction or the failure to give an instruction must doso on the record, stating distinctly the matter objected to and the grounds for theobjection.(2) When to Make.An objection is timely if:(A) a party objects at the opportunity provided under Rule 51(b)(2); or(B) a party was not informed of an instruction or action on a request before thatopportunity to object, and the party objects promptly after learning that theinstruction or request will be, or has been, given or refused.

7/29/2019 Civ Pro I & II

34/42


(d) Assigning Error; Plain Error.

(1) Assigning Error.A party may assign as error:(A) an error in an instruction actually given, if that party properly objected; or(B) a failure to give an instruction, if that party properly requested it and unlessthe court rejected the request in a definitive ruling on the record also properly

objected.(2) Plain Error.A court may consider a plain error in the instructions that has not been preserved asrequired by Rule 51(d)(1) if the error affects substantial rights.

NOTES:

Judge is required to instruct, correctly.

But, if the judge errs, and there is no objection, the losing party is out ofluck.

Unless, it is a plain error that affects substantial rights in which case acourt may, (not must) correct the error.

But, if the error is harmless it is not cause for reversal.When is instructional error reviewable?

1) Erroneous instruction was given;2) Proper Objection was made on the record;3) Error was not harmless.

General verdicts: Ask jury who won and what the damages might beSpecial verdicts: Jury answers specific questions on essential elements of the case.

JUDGMENT AS A MATTER OF LAW (JAML) Directed Verdict

Basic Principles

Taking the Case from the Jury

A judge can take the case away from the jury and enter judgment that he/she thinksis correct by:

- Directed Verdict (At trial)- Judgment n.o.v. (After trial)- Judgment as a matter of law (director verdict + judgment n.o.v.) [Rule 50]- Judge may also take case away from a jury and order a new trial and give it

to a different jury.

JAML

Motion for Judgment as a Matter of Law

In a jury trial, either party may move for judgment as a matter of law when theadversary has been fully heard with respect to the issue in question. [Fed.R.Civ.P.50(a)]

Directed Verdict + Judgment n.o.v. = JAML

JAML before submission aka Directed Verdict

7/29/2019 Civ Pro I & II

35/42


JAML after verdict aka JNOV (Judgment Notwithstanding the Verdict)

Tests the sufficiency of the non-moving partys evidence to meet its burdenof production.

When does it happen?

Pre and post- motion verdict.

Amended Rule 50 allows motion for JMAL at any time before the case issubmitted to the jury. A motion made after verdict is a "renewed motion".

How does JAML work?

Court reviews the evidence in the light most favorable to the party againstwhom the motion is made and he must be given the benefit of all reasonableinferences, which may be drawn in his favor from that evidence. The judge maynot make credibility determinations or weigh the evidence. Asks whether areasonable jury could find in favor of the non-moving party.

Standard of Review for JAML?

In deciding whether a reasonable jury could find in favor of the non-moving party,the court should:

1. Review all of the evidence in the record2. Draw all reasonable inferences in favor of the non moving party3. Not make credibility determinations or weigh the evidence AND4. Ask whether a reasonable jury could find in favor of the non-moving party.

Easier explanation:The court asks whether there is any substantial evidence in support of eachelement which the non-moving party must prove. If there is, the case must go tothe jury, and the jurys verdict must be accepted, because a reasonable jury could

rely on the evidence to find for the non-moving party.

Thus, the moving party must show that on at least one necessary element, there isno substantial evidence in support of the non-moving partys position.

In California?

- CA provides for both a motion for nonsuitand motion for a directed verdict

Motion for nonsuit: granted only to the . May be granted either at the close of

the s opening statement or at the close of the s evidence.

Motion for a directed verdict: granted at the close of the opposing partysevidence, and may be granted to either party.

- A motion for directed verdict is not a necessary precondition for a motionfor judgment n.o.v

7/29/2019 Civ Pro I & II

36/42


Rule 50

Rule 50. Judgment as a Matter of Law in a Jury Trial; . . .

(a) Judgment as a Matter of Law.

(1) In General.If a party has been fully heard on an issue during a jury trial and the court finds thata reasonable jury would not have a legally sufficient evidentiary basis to find for

the party on that issue, the court may:(A) resolve the issue against the party; and(B) grant a motion for judgment as a matter of law against the party on a claim ordefense that, under the controlling law, can be maintained or defeated only with afavorable finding on that issue.

(2) Motion.A motion for judgment as a matter of law may be made at any time before the caseis submitted to the jury. The motion must specify the judgment sought and the lawand facts that entitle the movant to the judgment.

(b) Renewing the Motion After Trial; Alternative Motion for a New Trial.If the court does not grant a motion for judgment as a matter of law made underRule 50(a), the court is considered to have submitted the action to the jury subjectto the court's later deciding the legal questions raised by the motion. No later than28 days after the entry of judgment or if the motion addresses a jury issue notdecided by a verdict, no later than 28 days after the jury was discharged themovant may file a renewed motion for judgment as a matter of law and mayinclude an alternative or joint request for a new trial under Rule 59. In ruling on therenewed motion, the court may:

(1) allow judgment on the verdict, if the jury returned a verdict;

(2) order a new trial; or(3) direct the entry of judgment as a matter of law.

JUDGMENT AS A MATTER OF LAW (JAML) JNOV

& NEW TRIAL

Post- Trial Motions/

Standard for

2 Post Trial Motions:

1) Enter judgment against the verdict-winner, i.e. judgment as a matter of law(federal court) or judgment notwithstanding the verdict (state court)

2) Order a New Trial

7/29/2019 Civ Pro I & II

37/42


Granting Relief Renewed JAML

- A reasonable jury would not have a legally sufficient evidentiarybasis to findfor the verdict winner

New Trial

- District court has discretion to grant a new trial when the verdict is against

the great weight of the evidence. (for liability)- Review is for abuse of discretion.

CONTOURS

Sua Sponte JMAL: Judge cannot enter JMAL sua sponte (without a motion).However, a judge can, sua sponte, enter a new trial under FRCP 59.

Timing for New Trial Motion

For losing party: Party has 28 days from date judgment is entered to movefor JMAL/JNOV, and conditional new trial. FRCP Rule 50(b)

If JMAL/JNOV is granted: Party who won verdict and has now lostJMAL/JNOV has 28 days from new entry of judgment to move for a new trial.

FRCP rule 50[c](d).

Remittitur:

-If the award is excessive as a matter of law, the judge may reduce it to thehighest amount a reasonable jury could have lawfully awarded, given the evidence.

Additur:

In California state courts, judge may order additur/conditional new trial.

Defendant agrees to the added amount, or judge orders a new trial.

Standard is whether the award is inadequate as a matter of law, in that noreasonable jury, having found liability, and given the evidence viewed in the lightmost favorable to the defendant, could have awarded this amount.

- Has not been adopted in the federal courts

Rule

Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a

New Trial; Conditional Ruling

(b) Renewing the Motion After Trial; Alternative Motion for a New Trial.If the court does not grant a motion for judgment as a matter of law made underRule 50(a), 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. No later than28 days after the entry of judgment or if the motion addresses a jury issue notdecided by a verdict, no later than 28 days after the jury was discharged themovant may file a renewed motion for judgment as a matter of law and mayinclude an alternative or joint request for a new trial under Rule 59.

7/29/2019 Civ Pro I & II

38/42


PRECLUSION I

RES JUDICATA

(CLAIM

PRECLUSION)

Res Judicata

Res Judicata (Claim Preclusion): Finality attached to a final judgment granting

or denying s claim or claims.

- If plaintiff wins, her claims (and sufficiently related claims) are mergedinto the judgment, and plaintiff may not bring these claims again in futurelitigation against the same defendant.

- If plaintiff loses, her claims (and sufficiently related claims) are barred bythe judgment, and plaintiff may not bring these claims again in future litigationagainst the same defendant.

FOUR ELEMENTS for barring claims based on res judicata:

1) Parties in both the prior suit and current suit must be identical2) A court of competent jurisdiction must have rendered the prior judgment3) Prior judgment must be final and on the merits4) The plaintiff must raise the same cause of action in both suits.

NOTES:- Typically, claims that were not litigated but should have been.

Forecloses relitigation of claims that were or could have been raisedin a prior action.

- If P wins her case, her claims and those she chose not to bring, but whichwere sufficiently related, are merged into the judgment. So, P may not

bring these claims again in future litigation against the same D.- If P loses, her claims and sufficiently related claims are barred by the

judgment.- No splitting of claims. "Use em or lose em."

E.g.: You can't bring a federal claim in federal ct and a state claimin state ct. You'd have to bring them both in fed ct.

BUT IN CA,

- CA defines a claim as a "primary right" interpretation of Res Judicata:Some legal theories do not have the same preclusive effect on other legaltheories. So, you could, for instance, split contract and tort claims because

they are different "primary rights".

Preclusion Between

Federated Department Stores, Inc. v. Moitie

FACTS: Plaintiffs filed suit in federal court, and their case was dismissed becausethey did not allege injury to their business. They did not appeal to the 9th Cir, butfiled in state court. They tried to assert state law claim because they were notrequired to allege injury to business as with federal anti-trust law. After removal,Dist Ct dismissed on res judicata, but 9th Circuit reversed because they haddecided another case showing that the first decision indicating viability and found

7/29/2019 Civ Pro I & II

39/42


the Same Parties there was a public policy rationale for not allowing a Res Judicata defense.

HELD: SCOTUS overturned, establishing that an unappealed judgment on themerits altered by the fact that the judgment may have been wrong or rested

on a legal principle subsequently overruled in another case is not exempt from

res judicata.

Claim Preclusion

Davis v. Dallas Area Rapid Transit

Ps tried to bring successive lawsuits. However, there was overlap and some of theconduct being complained of in the second case happened before the filing of thefirst case. As such, court dismissed based on Res Judicata. P argued that theywere waiting for a letter allowing the case to proceed, but court said they couldhave filed and petitioned for a stay.

Did the claims from both cases involve the same cause of action?Test: Were they part of the same transaction? [Transactional Test]

- Consider whether the facts are related in time, space, origin, or motivation,

whether they form a convenient trial unit.- Critical issue under the transactional test is whether the two actions arebased on the same nucleus of operative facts.

CONTOURS

Res Judicata and

Compulsory Counterclaims

- Same result and claims are barred- In systems that have adopted compulsory counterclaim rules (including

FRCP and California CCP), the effect of the rule is equivalent to resjudicata, for the defendant.

Intervenors- If a party intervenes in a suit, that party must pursue its claims in that suit or

be barred by claim preclusion later.

Non Parties

- Does Res Judicata require not only joinder of all cause of action but alljoinder of all possible parties? NO.

* A court may raise the question of claim preclusion Sua Sponte.

PRECLUSION II

7/29/2019 Civ Pro I & II

40/42


COLLATERAL

ESTOPPEL

(ISSUE

PRECLUSION)

Collateral Estoppel

Collateral Estoppel (Issue Preclusion): Refers to the finality attached to a finaldecision on an issue of fact or law.

Rule for Collateral Estoppel: A judgment in a prior proceeding bars a party and

its privies (those who have a legal relationship with that party, i.e. principal/agent,employer/employee, partners in business) from relitigating an issue if, but only if:

(1) the issues in both proceedings are identical;(2) the issue in the prior proceeding was actually litigated and actually decided;(3) there was a full and fair opportunity to litigate in the prior proceeding; and(4) the issue previously litigated was necessary to support a valid and finaljudgment on the merits.

ELEMENTS

(1) + (2)Identical Issue

Actually Litigated

and Determined:

CASES:

Levy v. Kosher Overseers Association of America- Facts: Levy had brought a complaint before the trademark board (TTAB)

claiming that KOA was using a trademark that is causing confusion andunacceptably similar. TTAB found that trademarks were too similar and rejectedKOA's application. Levy files a claim in federal court for infringement andseeking an injunction. Levy uses collateral estoppel offensively, stating that thequestion has already been litigated. Court rejects argument that issues wereidentical, noting that the standard for injunction under the Lanham act requiredanalysis of the use in full commercial context, and TTAB based theirdetermination on visual inspection.

"Identical Issue" requirement: Even though both TTAB standard and Lanham

standard were "likelihood of confusion", the district court was charged withwhether there was "infringement", which required a different method of reachinga determination. Even small differences, or methodological differences, canprevent preclusion.

"Actually litigated" requirement: Parties are genuinely adverse on an issue, andthe evidence has been actually presented to the court.

- Modern rule is that the issue is actually litigated if the parties areantagonistic to each other on the issue.

- Concession of an issue: does not count as CE. If a party concedes anissue it does not matter that some evidence was presented and the court

made a factual finding, issue has not been litigated.

Jacobs v. CBS Broadcasting

FACTS/HOLDING: Findings in an arbitration proceedings within a union as partof a collective bargaining agreement were held not to have collateral estoppeleffect on later litigation because proceedings were found to be too informal andlack certain core procedural components. No oath, no cross-examination, norecord, no discovery.

7/29/2019 Civ Pro I & II

41/42


ELEMENT (3)

Full and fair

opportunity to

litigate

Non- Judicial Proceedings

Rule: The full and fair opportunity to litigate requirement may be satisfied by anon-judicial proceeding, but that proceeding must be sufficiently formal and mustoffer sufficient procedural safeguards that the proceeding approximates a judicial

proceeding.

Administrative Agencies

Rule: Administrative proceedings that approximate court litigation in affordingthe parties a full and fair opportunity to litigate are generally treated asequivalent to court litigation for purposes of collateral estoppel.

Contours

Collateral Estoppel/ Burden of Proof

- No preclusive effect if Burden of Proof is higher in the second action.

- Under modern approach, a judgment of criminal conviction precludes thedefendant from denying the allegations in a subsequent civil complaint asto issues that were actually litigated and adjudicated in the priorproceeding.

- When there is a guilty plea: Can act as collateral estoppel, but there isreluctance to apply it