Civ Pro II Outline.doc

7/28/2019 Civ Pro II Outline.doc

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CHAPTER 2:

BASIC JOINDER OF CLAIMS AND PARTIES

When a claim involving multiple claims and parties is litigated in federal court, it is CRUCIALto deal with jurisdiction and joinder separately.

Joinder of claims and parties is usually at the discretion of parties, but is some cases is required

by FRCP 19.

You may join:

1. Claims, Rule 18

2. Parties, Rule 20

3. Jurisdictions, especially SMJ (the court must have jurisdiction over each and every claim

of the case.

RULE 18: Joinder of Claims

18(a): a party asserting a claim, counter-claim, cross-claim,or 3rd party claim may join as

independent or alternative claims, as many claims as he has against an OPPOSING PARTY.

18(b): No relationship between the claims is required; it doesnt matter if the claims have

anything to do with each other. Alternate claims and contingent claims allowed; even if claims

are inconsistent they may be joined

In federal court, use of rule 18 is greatly limited because the federal court must have SMJ overall claims!!!!!

No supplemental jurisdiction if claims dont arise from a common nucleus of operative

facts so unless 18(b) claim meets SMJ on its own, 1367 will not be able to be used.

RULE 20: Permissive Joinder of Parties

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Reason for joinder is efficiency and consistency

Only plaintiffs may invoke Rule 20 except

Exception: P sues D. D has a claim against P and a non-party who acted in concert with

P. D files counterclaim against P. Because Rule 20 allows D to sue both P and non-partyas codefendants in an original action, D can add the non-party to the counterclaim

pursuant to Rule 13(h).

To use joinder (Rule 20) at least 1 party in the suit wants the 3rd party to be in the suit. The

original plaintiff amends his complaint or adds the party to the original complaint.

As opposed to intervention when no party wants the 3rd party in the suit and 3rd party files

his own complaint

Three requirements must be met:

1. Parties must be suing or being sued jointly, severally, or in the alternative

Jointly: shared interest, the harm is owned by more than 1 person/ they have an

undivided interest.

In the case of defendants both are liable together

Severally: each plaintiff has a separate claim/individual right to recover. Easy to

litigate at the same time. (2 people are injured in a car accident caused by D)

In the case of defendants, each defendant is liable separately and both are liable

In the alternative: Plaintiffs, it cannot be determined who was harmed and there

needs to be a trial to determine who was actually harmed/entitled to relief.

This is rare! Plaintiffs dont normally want to bring action if only one will get

relief.

2. The claims must arise out of the same transaction or occurrence/series of

transactions or occurrences: Two tests to determine if same transaction or

occurrence/series is met:

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1. Same evidence test: Minority View (stricter/more narrow test)- How much

overlap is there between these cases? How much time would you save by trying

these cases together? Meet this test you will meet the logical relationship test

2. Logical Relationship test: Majority View (broader test): Whether theyre logically

related in any significant way. The outcome of one claim need not turn on theoutcome of the other, they just need to derive from the same underlying set

of facts (even if the sub-set of facts relevant to each claim differs).

3. There must be a common question of law or fact

If there is a same transaction than there will almost always be a common question of fact

(the inverse is not true though!)

CLAIM PRECLUSION OF CLAIM NOT JOINED IN ORIGINAL

SUIT

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The difference between Rule 20 and claim preclusion is that Rule 20 is for efficiency and claim

preclusion is a sanction.

Rule 20 uses same evidence and logical relationship test

Claim preclusion uses only the same evidence test

Huffey v. LeaAction 1: will contest (will makers interest looked at)Action 2: tortious interference of the will (defendants intentions looked at)If a claim or cause of action is the same as a previous claim, the claim is precluded from a futurelawsuit.

The majority opinion says that the evidence and relief would be different in both actions soAction 2 is not barred because of the claim preclusion rules.

Just because you fail to join a claim doesnt mean you loose the claim. In order for the judgment

in the first action to have claim preclusion effect, the claim asserted in the 2nd action must be of

the same evidence of the claim asserted in the 1st action.

Joinder may be proper under Rule 18 but that doesnt mean if claim is not brought it will

have claim preclusion effect. (Just because you dont bring a claim that may be properly

brought under rule 18, it doesnt mean at a later date, you cant bring the claim). Claim

must meet same evidence test to have claim preclusion effect.

COUNTERCLAIMS

RULE 13

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13(a)(1) Compulsory Counterclaims: A pleading must state as a counter claim any

claim that, at the time of its service, the pleader has against an opposing party, if the claim: a)

arises out of the transaction or occurrence that is the subject matter of the opposing partys

claim: and b) does not require adding another party over whom the court cannot acquire

jurisdiction.

Claim Preclusion Effect: A claim is precluded if you dont file an existing claim in your

responsive pleadings. Must file a compulsory counterclaim or you loose it!

Tests to see if it meets the same transaction/occurrence standard:

1. Same evidence test: Minority View (stricter/more narrow test)- How much

overlap is there between these cases? How much time would you save by trying

these cases together? Meet this test you will meet the logical relationship test

2. Logical Relationship test: Majority View (broader test): Whether theyre logically

related in any significant way. The outcome of one claim need not turn on the

outcome of the other, they just need to derive from the same underlying set

of facts (even if the sub-set of facts relevant to each claim differs).

13(a)(2) Exceptions:

Unmatured claims

Adjudication of the claim requires the presence of 3rd parties who would destroy diversity

jurisdiction or whom court doesnt have personal jurisdiction over.

At the time the answer is served, the counterclaim is already being litigated in another

action

The plaintiffs suit is in rem

Defendant hasnt yet filed an answer

13(b)Permissive Counterclaims: a pleading may state as a counterclaim against an

opposing party any claim that isnt compulsory. Discretionary function of the court (usually will

allow)

13(e): court may permit a party to supplement its pleading if the counterclaim had not matured

by service date.

13(f) Omitted Counterclaim: the court may permit a party to amend a pleading to add a

counterclaim if it was omitted through oversight, inadvertence, or excusable neglect, or if justice

so requires.

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13(i): if the court orders a separate trial underRule 42(b) it may enter judgment on a

counterclaim or crossclaim underRule 54(b) when it has jurisdiction to do so, even if the

opposing partys claims have been dismissed or resolved.

Rule 42(b) the court always has the discretion to not allow counterclaims. For

convenience, to avoid prejudice, or to expedite and economize the court may order aseparate trial.

Simmons v. Simmons (example of counterclaim)

While divorce action was proceeding the wife brings tort claim against her husband. May she do

so or did she loose her tort claim when she failed to file it as a counterclaim in the divorce

action?

The tort claim existed at the time wife was served with the dissolution suit.

Rule 13(a)(1) governs this case

Action 1: H v. W (dissolution of marriage)

Action 2: W v. H (tort claims)

Divorce action seeks to dissolve a marriage. It is a specialized proceeding and the court wants

divorces to be as quick and easy as possible. Wifes counterclaim is not compulsory nor is it

permissive because of policy reasons. (quick and easy divorces)

Wifes counterclaim doesnt arise out of the same transaction or occurrence: no fault divorce

state so its not relevant in divorce actions to determine if husband threw coffee at wife. The tortissue is irrelevant in determining the divorce. (If this was a fault state, the outcome may be

different because the tort issue would be relevant to the divorce proceeding).

Rule 42(B): the court always has the discretion to separate issues, claims, counterclaims,

crossclaim, 3rd party claims into different trials for convince, efficiency, or for prejudicial

purpose,

CROSSCLAIMS:

13(g): You file crossclaims against co-parties. A claim is allowed as a cross claim if is arises

out of the same transaction or occurrence of the original transaction OR if it arises out of the

same transaction or occurrence of a counterclaim.

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If you file a crossclaim against a co-party then you become opposing parties and must file

any compulsory counterclaims pursuant to 13(a)

Crossclaims are always voluntary

The crossclaim must be a substantive claim to make a party have to file compulsory

Counterclaims but a non-substantive cross-claim is allowed

Non-substantive claims are indemnity (3rd party is liable for all of your

liability/you reimburse me for what I have to pay someone else) and contribution

(3rd party is partly liable for your liability)

Exception to optional crossclaim rule: if Ds are adverse, applies in foreclosure/lien

action. P and Ds are arguing over the same thing (place in line) so they are considered

opposing parties. Ds MUST assert crossclaims against other Ds, they may not bring an

action challenging the 1st actions ruling if they dont assert crossclaim.

13(h): additional parties may be joined by Rules 19 or 20. If a party files a counterclaim or

crossclaim that party may bring a third party into the action, if he could have sued the third party

and the plaintiff as co-defendants in a separate action under Rule 20.

EX: P v. D. D has a claim against both P and a party who acted in concert with P (:non-

party). D can file a counterclaim against P. Because Rule allows D to sue both P and X

as codefendants in an original action, D can add the other party to the counterclaim

IMPLEADER: Adding Third Parties

Rule 14

Defendants may only join third parties under FRCP 13 or 14.

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Purpose of impleader is to bring all parties into 1 suit for efficiency

Rule 14 allows a party to implead a 3PD who is or may be liable to the 3PP for all or part of

another partys existing claim against the 3PP. (a party may implead a non-party who is or may

be liable to him for the claim asserted against him)

3PD: third party who is joined

3PP: the defendant who impleads the third party

Impleader only used when the 3PD is liable to D for contribution or indemnity. Impleader

available only when 3rd party (non-party who D wants to bring in) is liable to D.

substantive law must allow indemnification or contribution: by contract or by implication

(vicarious liability such as employers, parents, etc) or jointfeasors

small minority of jurisdictions dont allow contribution or indemnification against joint

tortfeasors, in these jurisdictions impleader not proper if jointfeasors

A defendant may not use impleader to argue that hes not liable to the plaintiff at all and

that plaintiff has sued the wrong defendant. But, defendant may implead a 3PD in the

alternative that he is not liable to the plaintiff and that 3PD is solely responsible.

Once 3PD is served:

Must assert Rule 12 defenses against 3PP (Lack of SMJ, PJ, improper venue, insufficient

process, or service of process, 12(b)(6) and failure to join a party under 12(b)(7),

Must assert compulsory counterclaim under 13(a) against 3PP, may assert permissive

counterclaim against 3PP.

May assert crossclaim against other 3PD (only happens if at least 2 3PD)

May assert against plaintiff any claim arising out of the transaction of occurrence that is

the subject matter of the plaintiffs claim against 3PP/D

3PD may assert claim against a non-party who may be liable to 3PD for all or part of

3PPs claim against him. (14(3))

If plaintiff files claim against 3PD, 3PD must assert compulsory counterclaims under

13(a). (14(3)(Rule unclear if 13(a) applies when 3PD files a claim against plaintiff).

14(a)(4): any party may move to strike the third-party claim, to sever it, or to try it separately.

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Often claims against insurance companies are severed

Rule 14(b): A plaintiff may use impleader if that plaintiff has been sued for affirmative relief

in a counterclaim. Then the plaintiff may use impleader as a defendant would. (3rd party must be

liable to P for all or part or claim).

Timing: If defendant files the 3rd party complaint (impleader) within 10 days of filing hisanswer (or if plaintiff is filing, then within 10 days of filing his reply) the party doesnt needcourt permission. If it had been 10 days the party needs courts permission.

10 working days (weekends and holidays dont count)

Jurisdiction and Rule 14: Any party joined by Rule 14 is brought within the jurisdiction ofthe court which issued the summons so long as party is served within 100 miles in the US of thecourt that issued the summons.

Rule 4(k)(1)(B) gives court personal jurisdiction over the new 3PD if 3PD served within100 mile radius. (regardless of minimum contacts and state long-arm statute, court has

PJ) Adding 3rd party under Rule 14 doesnt affect venue

Impleader Examples: Intro Problem 1 (pg. 33). Competitor sued CC. CC wants

to implead Gull, Insurance, and Attorney

CC may implead Gull - Gull a joint feasors (A minority of jurisdictions dont allow

indemnity between active tortfeasors so impleader wouldnt be proper against Gull

because Gull and CC are active tortfeasors)

CC may implead insurance because indemnification

CC may implead attorney because liable to CC for all or part (attorney malpractice)

Intro Problem 2. All are joined. May Competitor bring a claim against Insurance? May

Competitor bring claim against Gull? May Gull bring a counterclaim against CC?

Competitor may bring claim against Gull

Competitor may bring claim against Insurance because of impleader. Competitor

couldnt bring claim in a separate suit but it may bring a claim in this suit

Gull may file her claim against competitor because it is a permissive counterclaim. Rule

14(3) (plaintiffs claims against a third party defendant): a 3rd party defendant may

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assert may counterclaims under 13(b). Gull became a 3rd party defendant when

Competitor joined her to the suit.

SUPPLEMENTAL JURISDICTION 1367

The court must have SMJ for every claim by every party (SMJ by 1332,

1331, 1367).

A single plaintiff v. single defendant never need to use supplemental jurisdiction (aggregate

claims, a defendant can file a counterclaim of any nature, etc)

Aggregating claims:

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Multiple plaintiffs can only aggregate claims when they jointly own something (ex: P1

has 2/3 interest in a $90,000 house and P2 has a 1/3 interest. They may aggregate their

claims to meet the minimum amount in controversy).

If plaintiff is not suing for monetary damages then measure the amount in controversy by:

1. The value of the injunctive relief to plaintiff (majority); or2. Cost of the injunction to the defendant; or3. Greater of the two

Nominal parties wont destroy diversity: nominal parties are those that have no real claim orliability

1367(a)1367(a): In any civil action of which the district courts have original jurisdiction, the districtcourts shall also have supplemental jurisdiction over all other claims that are so related to theclaims in the action within such original jurisdiction that they form part of the same case or

controversy.

Same case or controversy = same transaction or occurrence =common nucleus ofoperative facts test.

o If these following issues satisfy the same transaction test for joinder, they will

automatically meet the supplemental jurisdiction requirement:

compulsory counterclaims

cross-claims

joinder of Ps or Ds (under Rule 20)

parties joined to counter claims or cross claims

claims by 3PD against the P

Claims by P against the 3PD

Allows a party to join a claim that the federal court could not hear on its own withanother claim that the federal court can hear on its own so long as the 2 claims arise froma common nucleus of operative facts.

A claim fails 1367(a) if there is not complete diversity at the time the action wasCOMMENCED. Congress only intended to allow parties from different states to use 1332.

All claims must be diverse but amount in controversy doesnt have to be met for allclaims

At least one claim must meet amount in controversy for court to have original jurisdictionover a claim in the case.

When measuring diversity only consider original plaintiffs and originaldefendants

Exceptions to this rule

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1. When a party is joined because they are a necessary party. In those cases, there

must be complete diversity throughout the entire case.

2. Removal: if the case isnt diverse when the action commenced but becomes

diverse later, removal is proper.

1367(b)

1367(b): Supplemental jurisdiction for claims based solely on diversity jurisdiction.

1. Is this a diversity claim? If not, 1367(b) will NOT preclude (will allow)

2. If YES, Is this a claim by a plaintiff? If NOT, 1367(b) will preclude (will NOT allow).

3. Is the claim by the Plaintiff made against a party to the claim under Rules 14, 19, 20, 24? If so,

1367(b) precludes jurisdiction (will NOT allow).

NOTE: If defendant files claim against 3PD (Rule 14- Impleader) then 1367(b) doesnt

apply because its not a claim by a plaintiff.

NOTE: if party is joined as a necessary party (Rule 19), 1367(b) will always bar the

claim

NOTE: if party intervenes (Rule 24) then 1367(b) will always bar the claim

Mandatory! Court cant exercise supplemental jurisdiction if this rule says it cant!

Lower courts decision on this matter may be reviewed by the appeals court.

Both 1367(a) and 1367(b) must be met in order for the court to exercise

supplemental jurisdiction. If plaintiff sues defendant and its a federal

question then 1367(b) doesnt apply because SMJ isnt based solely on

diversity

1367(c)

1367(c): district courts may decline to exercise supplemental jurisdiction over a claim if:

1. The claim raises a novel or complex issue of state law

2. The claim substantially dominates over the claim or claims over which the district

court has original jurisdiction

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3. The district court has dismissed all claims over which it has original jurisdiction

4. In exceptional circumstances, there are other compelling reasons for declining to

exercise jurisdiction.

A courts refusal to exercise supplemental jurisdiction is discretionary. If court refuses to

exercise supplemental jurisdiction, this is its discretion and appeals courts will almost never

overturn a lower tribunals decision to not exercise supplemental jurisdiction under 1367(c).

SUMMARY OF 1367When analyzing supplemental jurisdiction:

Do you meet 1367(a)? if yes, continue1. Does claim arise out of a common nucleus of operative facts?2. Does the court have original jurisdiction over at least one of the claims by 1331 or1332?3. If the claim is not a diversity action then 1367(b) doesnt apply!

Applying 1367(b) - if the answer is yes to all then the claim is barred, if answer no to at

least 1 (besides 2) then court may exercise supplemental jurisdiction

1. Is this a diversity action? (Is the only reason this claim is in federal court because of

diversity?)

2. Is this a claim brought by a plaintiff?

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3. Is the claim by the plaintiff against a person who was made a party under rule 14, 19,

20, or 24

4. Is this a claim brought by a person made a plaintiff under Rule 19 or 24?

1367(c): does court want to use its discretionary power to not exercise supplementaljurisdiction?

Supplemental jurisdiction in a diversity action can never be used if plaintiff who intervened

is bringing the claim in question. 1367(b) will bar the claim.

Class Actions and 1367:

In a class action suit, if the court has original jurisdiction over a single claim in the complaint, it

has original jurisdiction over a civil action because of 1367(a).

CHAPTER 6: ADVANCED JOINDER

A. INTERVENTION: FRCP 24

Where litigation affects another party, they can intervene as a third party as a P or D, even if the

original parties dont want them to. The intervening party files his own complaint.

Typically, once a party is allowed to intervene, they are allowed to assert any claim they wish

Majority: a party need not have standing in order to intervene; they couldnt sue independentlybut they may intervene.

There are two types of intervention: Intervention as a matter of right, and

permissive intervention.

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Intervention as a matter of right: Rule 24(a): a party may intervene of right if

her interest is directly threatened even if the court and other parties dont

want her in the case

Intervention as matter of right must meet 4 requirements:

i. Timeliness1. Timeliness is the sole issue on which the court may use discretion in an

intervention of right. Determining timeliness turns on whether delay in applying tointervene would prejudice the parties in preparing their suits.

ii. Interest in the action:

1. Historically, the applicant had to show a proprietary interest or some othersignificantly protectable legal interest. But the trend today is more relaxed:a. Does not have to be economicb. If it involves a public interest, the requirement of having a legally protectable

interest in the suit is relaxed.c. Requirement is broader than in Rule 19(a) (required joinder of parties).

iii. Impairment of the interest:

1. Parties must be fighting over the same identifiable thing2. The impairment has to be practical, not legal (so they dont have to show that it

would operate as res judicata in the future).3. Only has to show that interest may be impaired, not that it will be for certain.

Stare decisis effect of a judgment is only enough to permit intervention of

right when the parties are fighting over the same identifiable thing.

Interest is impaired because although party may bring a separate suit after

this suit is over, the courts 1st ruling is opposed to your interest, the

courts ruling will impair your ability to obtain a favorable judgment in the

2nd suit thing (ex: turning off the lights in class affects me and the rest of

the class so anyone in the class may intervene. Ex: Beth wants to use her

computer, its not enough for the stare decisis effect because its not the

same thing; my computer is not Beths computer)

Practical impairment: if your (3rd party) world would change then your

interest would be impaired physically. (ex: builder wants to tear down a

building and you dont want him to. If the builder wins your interest

would be practically/physically impaired)

4.Not adequately represented:a. Even if the party meets other requirements, they cant intervene if their

interests are already represented.b. Its fairly easy to meet this requirement though. The applicant only needs to

show that the existing parties have a definite incentive not to represent theapplicants interests.

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o If your interest is IDENTICAL to another party already in the suit, than

your interest is most likely adequately represented.

Permissive Intervention: Rule 24(b): a party may intervene by permission if

the court rules her interest in the case is genuine and her case overlaps thecurrent case

This is very difficult to get overturned because trial court has discretion to allow, so it must

be an abuse of discretion. (The intervening party would want to argue under 24(a) not24(b)).

i. right by statuteii. claim or defense shares common question of law or fact with main action.

There is no strict timeliness requirement so a request to intervene will likely be granted if

its early in a lawsuit.

Must be common question of law or fact

If a trial court decides to not allow a party to intervene, the appeals court cant/wont allow

intervention by permission. The party must show they meet Rule 24(a) in order to intervene at

the appeals level when he has been denied the ability to intervene at the trial level.

Personal jurisdiction and venue arent considered in intervention because by asking to

intervene a party is waiving their defense of PJ and venue. (PJ and venue are personaldefenses which may be waived)

SMJ IS CONSIDERED; court MUST have SMJ over every claim by every party

Use Rule 24 first, then check to make sure court has SMJ

B. NECESSARY PARTIES

RULE 19

Rule 19 decides if a party is a necessary party and should be joined. If the party cant be joined

than the court must decide whether or not to dismiss the suit.

Rule 19 allows a party to be joined by Rule 20, 13, or 24

A party who may intervene by right is always a necessary party but the converse is nottrue.

Doesnt matter if third partys interest is adequately represented (this is the onlydifference between Rule 24 and Rule 19)

Usually necessary parties should be plaintiffs suing in the alternative

Rule 19 is usually used as a defense. Usually comes into play only when a party moves to

dismiss the action because of the absence of one or more interested people.

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Rule 19(a)(2): the only time Rule 19 is used as joinder rule

Allows a person to be joined as an involuntary plaintiff or defendant

Must be complete diversity throughout the entire case

Joinder under this rule relates back to the date suit is filed

How Rule 19 is raised:1. Party (usually the defendant) invokes Rule 19 by raising a Rule 12(b)(7) motion todismiss due to failure to join a party under Rule 19. This motion asks the court to dismiss thecase because a necessary party is not part of the action

Defendant can also raise a Rule 19 defense in his answer

If party should be in the suit: Plaintiff can use Rule 20 to join party as a defendant ( a necessary defendant will always

meet the requirement of Rule 20) Plaintiff can offer to allow the party to join as a co-plaintiff under Rule 20 Party will normally be able to intervene by right or the court may invite them to intervene

by permission If party refuses to join, the court can make them join under Rule 19(a)(2) If there are so many necessary parties that joinder of all as individual parties is

impracticable then Rule 23(b)(1) allows the case to become a class action

Common problems: PJ and venue if party refuses to join (if they want to join then they waive those defenses) SMJ a problem if the case is in federal court and joining the party destroys complete

diversity. SMJ also a problem if using supplemental jurisdiction because 1367(b) willnot allow the use of supplement jurisdiction if the party is joined as a necessary party.

If the party should be joined but cant for lack of PJ or venue then the court must decidewhether to dismiss. May be able to use interpleader

In many situations involving damages and not an injunction the non-party is not necessary. Injunction, wills, SP: more likely necessary party Damages: more likely not necessary party

If promisor is at fault for the inconsistency, the parties promised are not likely necessary parties

Comparative negligence doesnt effect whether or not third-party is necessary because plaintiffcant recover more than 100% of the damages from the first trial and not incontinency we areworried about.

EX:#1: P v D - Ps damages are $100, D is 80% liable

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D pays $80 (P collects judgment from D)P cant ask for more than $20 from anyone else who is liable because he cant get morethan $100

Applying Rule 19:

Step One: Should third-party be joined? 19(a)

1. Can the parties in the suit get adequate relief if third-party isnt joined?

A person should be joined if in the persons absence complete relief cannot be

accorded among those already parties.

2. Does third party have a substantially protected interest? (much narrower than Rule

24)

Would that interest be impaired if plaintiff won? Would the absence of the

missing party prejudice the missing party?

The interest must be a direct and legally protectable interest and the present

lawsuit must impair or impede that interest. Must only show that ajudgment in this action would make it significantly more difficult for theabsent party to protect his interest if he werent joined and had to bring aseparate action later.

3. Would defendant meet impermissible inconsistent obligations if plaintiff wins andthird-party isnt joined? Would defendant be exposed to double liability?

Does the absence of the party risk inconsistent or multiple obligations by virtue

of the partys legally protected interest

Step Two: If the third-party should be joined, can third-party be joined?

(consider SMJ, PJ, VENUE, JOINDER RULES)

1. SMJ: Must be a federal question or satisfy complete diversity. If no complete

diversity, supplemental jurisdiction may not be applied. Necessary partiesanalysis is an exception to the rule regarding diversity being measure at the time

of filing the case- It is also measured at the time of the motion.

2. Personal Jurisdiction: If the necessary party is involuntary, to establish PJ they

must be served within 100 miles of where summons was issued.

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3. Venue: Will not be an issue is all defendants reside in same state or if suit is filed

where substantial amount of facts/controversy occurred.

4. Joinder: Rule 19(a)(2) allows the court to make a third-party an involuntary

plaintiff or a defendant, whichever is appropriate. only time when Rule 19

operates as a joinder rule.

If third-party is joined by this rule, PJ, Venue, SMJ an issue

If person doesnt protest being joined, look to Joinder rules.

PJ and Venue not an issue, SMJ an issue

Step Three: Is the third-party so important to the case and third-party

cant be joined should the case be dismissed? 19(b). This is a judgment

call; there is no clear way to weigh the following factors. Dismissal is not favored and

courts will try to minimize prejudice by limiting or shaping the judgment in the case.

1. The extent to which a judgment rendered in the persons absence might prejudice

that person or the existing parties

2. The extent to which any prejudice can be lessened or avoided (ex: can the party

be given another type of damages or can the court modify the breadth of the

injunction)

3. Would judgment rendered in third-partys absence be adequate?

4. Would plaintiff have adequate remedy if action were dismissed for non-joinder?

(federal courts rarely say that an ability to sue in state court is an adequate

remedy)

See pg. 419 for necessary party problems

ALL CLAIMS MUST BE BROUGHT BY THE REAL PARTIES IN

INTEREST

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RULE 17

Rule 17(a)(1): who may bring actions in their own names on behalf of another without joining

the person for whose benefit the action was brought (executor, bailee, power of attorney, trustee,

administrator, guardian, a party with whom or in whose name a contract has been made for

another partys benefit, party authorized by statute)

Person you are suing, not named person, is the person who matters for purposes of PJ and

Venue

C. INTERPLEADER

Rule 22 and 1335

Definition: Interpleader is a special type of joinder designed to deal with the situation where a

party faces multiple, inconsistent claims. Instead of waiting for the claimants to bring suit,

and possibly to obtain inconsistent judgments, the process of interpleader allows the party who

owes the obligation to bring an action against all the claimants and let the claimants fight it outamongst themselves.

Typically interpleader is used by a party who is liable to someone but not sure who. When a

party may suffer double liability interpleader is proper.

ASK:

1. Is interpleader proper?

2. Can interpleader survive PJ, venue, SMJ?

3. If 1 & 2 are met, what happens to the stake and how is despite settled?

Rule 22

1335

How to use interpleader:

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1. Stakeholder may initiate an interpleader action in an original action naming the claimants asdefendants

2. If 1 or more claimants sues stakeholder, the interpleader action may be initiated by acounterclaim or crossclaim.

When it is proper: Proper only in order to prevent impermissible double liability and/orinconsistency or contradictory judgments

Proper when stakeholder may be exposed to double or multiple liability and its not due afault of his own.

proper where more than one party claims the same thing, but only one party is lawfullyentitled to it.

Proper when 1 party is liable to 1 claimant but more than 1 cliamant claims they have alegal right to it

Examples of proper interpleader v. not proper interpleader

Ex: defendant promises to give $1 million to the first person to call in; interpleader isproper because the court must decide who the first person is. Ex: defendant makes a contract with me, Katie, and Jenn to sell us his car. Interpleader

isnt proper because defendant is legally obligated to pay us all damages

Ex: truck driver crashes into a bus and lots of people are injured. Truck drivers assets

are $30,000. All injured passengers sue in separate actions for over $500,000. Truck

driver cant interplead because her liability is legally unlimited

Ex: truck driver crashes into a bus and lots of people are injured. Truck driver has

liability insurance of $50,000. Insurance may properly use interpleader because its legal

liability is capped at $50,000.

Interpleader is concerned with efficiency

When seeking interpleader you may ask for a provisional jurisdiction and/or preliminary

injunction until jurisdiction is proven (operating to keep the stake safe until litigation).

No in rem jurisdiction in interpleader.

Terminology used in interpleader:

The stake: the thing being claimed by 2 or more persons. It can be property or anobligation

The stakeholder: person who is in possession of the stake

The claimants: the parties who seek to obtain the property or performance of the

obligation.

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There are 2 types of interpleader: statutory (1335) and rule (Rule 22)1. Statutory interpleader:

SMJ: Minimal diversity; 2 adverse claimants must be diverse and the amount incontroversy must be equal to or greater than $500. Stakeholder citizenship notconsidered but, many courts hold that for the purposes of determining diversity under

1335, a stakeholder who has a claim to the stake is also treated as a claimant. PJ: (2361): nationwide service, if you know who they are then you must mail themservice, if you dont know them try to find out who they are, if you cant thempublication is okay

Venue: (1397) where any claimant resides, stakeholder never treated as a cliament Must put stake in court registry

2. Rule:

Complete diversity and greater than $75,000 Minimum contacts or consent, greater than $75,000 For service you must follow state service rules or Rule 4(k) Venue: where any defendant resides

RULE 22 Statutory

SMJ Greater than $75 thousandComplete diversity (stakeholdermust be diverse from allclaimants)

Greater than or equal to $500Minimal diversity (as b/tclaimants) - at least twoadverse claimants are from

different statesPJ Defendants minimum contacts

or consentNationwide service (2361) notbound by Rule 4(k)(1)(c)

Venue Where all defendants reside or if all dont reside in the same statethan where a substantial portionof the events occurred

Where any claimant resides(1397) (for purpose of venuethe stakeholder is neverconsidered a claimant)

NOTE:

For the purpose of SMJ when the stakeholder claims he should have the property/chattel

he becomes a claimant. The stakeholder is who claims to own the stake

You must use Rule 22, not statute, if all claimants are from the state because then there

would be no minimum diversity between the claimants

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D. CLASS ACTIONSRule 23

In a class action suit, 1 or more person(s) represents the others. The person(s) suing must also besuing on behalf of themselves.Class action is a type of representation litigation

At any time, class members can challenge the adequacy of representation. A member can alwaysargue he wasnt adequately represented, he just might not win!

2 STEPS

1.23(a): is it proper to bring the suit as a class action? One or more members may sue or be sued on behalf of the member when:

1. Joinder is impracticable2. Questions of fact or law are common to all class members3. Claims or defenses are common to all class members4. Representatives will fairly and adequately represents class members

2.23(b): 3 Types of class actions:1. Separate actions against class members would risk impermissible inconsistentjudgments or legally protected interests of non-members would be impaired

(Everyone is a necessary party). No notice required, cannot opt out.2. Party opposing the class has acted on grounds that would alleviate the entire class(seeking injunction/declaratory relief) (must satisfy everyone). No notice

required, cannot opt out.3. Interests of class members together predominates the interests of individual potential

members. Notice is required for 23(b)(3). You can opt out of a (b)(3) and not bebound (nor can they take advantage of the judgment). *most mass tort actions fallin this category.

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When someone is bound by a class action judgment (also satisfies dueprocess):

1. Representative must have an interest closely aligned with those in the class2. Representative must do a good job in representing the class

Variations on class action types:1. Typical class action includes a single class of people who would otherwise be plaintiffs2. Defendant Class: plaintiff may sue a defendant class if the members of that class acted

in the same way toward the plaintiff3. Subclasses: larger class is divided. Each subclass is treated as a separate class and

must be separately certified4. Class actions limited to particular issues: the court may certify a class action on 1 issue

only

Diversity and Class Actions

1. If plaintiff class action suit and the aggregate claims exceed $5 million and minimaldiversity then federal SMJ is met Exceptions:

a. If 1/3 of class members are same state as primary defendant and actionis filed in that state and that is where the action took place

court may decline to exercise jurisdiction based on 1332(d)(3)b. If 2/3 of class members are the same state as any significant defendant

and action took place in that state, the court must decline toexercise jurisdiction

2. At least one claim must meet $75,000 amount in controversy to have3. Diversity is only calculated by the named class members

Efficiency Facts include:1. Individuals interests or if collective interests control litigation2. Extent and nature of any litigation that has already been done by potential member3. Desirability of concentrating litigation in a particular forum4. Difficulty in managing the specific class

Technicalities of Class Action:1. Must get certified by the court as a class2. Must get judicial approval to settle

3. If its a situation where notice is required you must give as best notice as possible.Give instructions for opting out and what will happen if you do opt out and mustsay judgment will be binding to all class members

4. Judgment is only binding to all class members (if you opt out, the judgment doesntbind you)

5. Representative must represent class fairly and adequately

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If theres a settlement, the court must approve it through certification ofclass settlement

1. Court can certify a class; OR2. Decertify a class; OR3. Exclude a subclass when appropriate

Usually class actions end in a settlement or court says no to the class action

CHAPTER 7: DISCOVERY

A. THE SCOPE OF DISCOVERY

Rule 26

When co-parties seek discovery from one another, the same rules apply

3 questions:1. What may be discovered?2. How do you get the information? (What discovery devices to use)3. What happens if a party doesnt comply with discovery?

WHAT MAY BE DISCOVERED?A party can get information from the opposing party and from non-parties.

Ask: is this information coming from a party or a non-party? if info is coming from a non-party you have to ask for it because no mandatory disclosure

for non-parties

If its a party:

3 times of mandatory disclosure (26(a)):

1. Early (various types of information): Must disclose witnesses/people with discoverable information that the disclosing

party may use to support its claims or defenses, unless the witness will be usedsolely for impeachment. (if you only want to call a witness for the purpose ofshowing opposing party is lying you dont have to disclose that witness throughmandatory disclosure.)

Ex: If I have a witness saying the other party ran the red light, Ihave to disclose him because I am seeking to prove negligence and

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the witness helps me prove the other party was negligent. Thewitness is not being used solely for impeachment.

Not required to overturn a witness that will undermine opposing partys case. Ifopposing party hears about the witness and asks for their info, then you would berequired to provide it- IF ITS RELEVANT.

If relevant to claim/defense, YES, discoverable If relevant to subject matter, must get court order.

Copy/location of all documents, data compilations, and tangible things that thedisclosing party may use to support its claims or defenses

Computation of each category of damages and must allow inspection unlessprivilege/protected information

Liability insurance if it applies to claim

Summary: must disclose persons/documents/things/damages/insurance if relevant toclaim or defense of disclosing party, and not privileged, and not only forimpeachment

2. Disclosure of expert witnesses (eve of trial) An expert is someone with more than the average knowledge about a specific

subject matter. They are allowed to give their opinions. An expert is onlyconsidered an expert witness when they are asked their opinion about something.

A testifying expert is one who is testifying in her expert capacity at trial. Theparty using the expert must give a comprehensive report of the testimony andmust identify who the expert is. This is mandatory disclosure.

A non-testifying expert (NOT MANDATORY) is someone who is consulted butwont be testifying. Party doesnt have to disclose anything about this witness inmandatory disclosure. The only way for the opposing party to obtain information

from a non-testifying expert is if the subject of the investigation is no longeravailable. 26(b)(4).

3. Disclosure of other witnesses (eve of trial)

Non-Mandatory Disclosure (26)(b): Allows for discovery of most informationthat is relevant and non-privileged1. Rule 26(b): if the information is relevant to a claim or defense you may get it at any time. Ifthe information is only relevant to the subject matter you can only obtain it through a court order.

99% of the time you want information that is relevant to a claim or defense

information must be relevant and non-privileged2. Ordinary discovery: must ask for information relevant to a claim or defense

Test is is the information relevant? if yes, then it is discoverable3. Self-incrimination only applied to criminal liability

Hearsay is discoverable, although not admissible at court because it may lead to relevant

information.

Work Product Doctrine (Trial preparation: materials) 26(b)(3):

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Rule: If prepared by a partys representative (including attorney, insurance co., etc.) in the courseof/anticipation of litigation and shows mental impression or legal evaluation its privileged.Exception:

1. You can only get documents or tangible items from opposing counsel upon a showingof need and unavailability.

Unavailability means either a hostile witness (refuses to appear), a witness outsidethe scope of a subpoena, or if the object doesnt exist anymore.2. You may only get information from one representative through the work productdoctrine (if attorney and insurance co. both have same information you can only choose 1source)3. Usually things that are done after the incident are considered in anticipation oflitigation while things done before the incident are not.4. Conversations between an attorney and client are privileged. That privilege lastsforever and even if the opposing party shows need the information cant be disclosed.

Witness Statements

1. A party or a witness can obtain a copy of her own statement from the party whom thestatement was given.2. You dont have to show need or unavailability or relevancy to obtain your ownstatement. Just ask3. A party can pay a witness to obtain a copy of her statement but you cant pay a witness

to refuse to obtain a copy.5. A witness statement is a monologue of the witness information.

B. DISCOVERY DEVICES(How you get discovery)

I. DEPOSITIONS (Rule 30): like a courtroom questioning just not in a courtroom.

Must give notice to other parties so they can attend and so they can cross examine them.

Also must give notice to deponent.

A. Non-parties v. Parties1. If deponent is a party you dont need a subpoena to insure they show up2. If deponent is a non-party you need a subpoena to insure they show up. If you dont

get one and the non-party doesnt show up you have to compensate those that doshow up for their time.

3. Individual only has to tell you what they know. Individuals dont have to prepare.

B. Subpoena- Rule 45:1. Which court may issue: Must be issued by a court in the district where the deposition

will occur2. Where it can be served: In the district in which the deposition will occur, OR within

100 miles of where the deposition will be conducted.

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3. Location of the deposition: Within 100 miles of where they live or work (live/reside,but NOT domicile), or where they regularly transact business. You can also havethem travel further, if they dont object, but you must pay heir costs.

C. Deposing Corporations -Rule 30(b)(6)

1. Must tell the organization in the notice of deposition, what subject matter you want toknow.2. The organization may choose the deponent

a. must give you proper person in the corporation (one who knows about thesubject matter)

3. Deponent has a duty to prepare (different from individuals who can say they dontknow the information you want)

a. must describe matters with reasonable particularity4. If you already know who would have the information you want, you can just send

notice/subpoena them, but you only get what they know.

D. Objections at depositions (must give grounds for objection)-Rule 30(c)(2)

1. Attorney may only order a witness not to answer the question to preserve a privilege orif the court has issued a protective order.

a. Protective order: go ask judge in the district where the deposition is being takenafter the sensitive question is asked

b. Protective orders are used very rarely

2. If no privilege and no protective order, the attorney objects but deponent must answer

the question. Attorney says objection and your objection is noted on therecord

a. If you dont object to the form of the question you dont lose the objection

b. You waive the right to object to anything but form if you dont raise objectionin deposition.

i. If you dont object to privileges or relevancy of question youloose the objection

E. Limits on Depositions:1. Non-parties/witnesses may only be deposed once2. Deposition can only last 7 hours in 1 day3. A party only has 10 depositions4. Limits may be exceeded with the courts permission

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II. INTERROGATORIES: (RULE 33): Send questions to be answered by the party, andobligates them to investigate.

A. Parties v. Non-Parties1. You can send interrogatories to parties and force them to answer

2. You can send interrogatories non-parties but you cant force them to answer

B. Objections1. Refuse to answer and state objections with specificity2. If you dont answer a question you must say why you arent answering

a. Overly burdensome or oppressiveb. Its privilegedc. Broad, vague or ambiguousd. Non-discoverable witness infoe. irrelevant info

C. Duty to investigate:1. The party has a duty to investigate in order to find answers. (reasonable duty toinvestigate)

2. Exception is the Option to Produce Business Records Rule 33(d): (instead ofanswering questions)

a. Only used if burden on both sides is about equalb. A Party can produce business records to answer interrogatoriesc. If you give business records you are allowing a party to use anything they findd. Party must produce the documents as they are kept in the usual course of

business or shall organize and label them to correspond with the categoriesin request

3. A party can refuse compliance by claiming the documents can be procured fromanother source, such as a public record. There is accessibility to an alternativesource, go look at that one.

D. Limitations1. Party can only serve 25 questions at a time on the other party

a. if subparts to a question each subpart counts towards the 252. 30 days to answer the questions3. Limits may be exceeded by courts permission or if partys agree on a higher number

III. REQUEST FOR PRODUCTION OF DOCUMENTS: (Rule 34): You can requestdocuments/tangible things you want to inspect.

A. Parties

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1. Party must comply so long as the request is reasonable and the stuff is non-privilegeda. If thing is in possession of someone under the partys control, the party mustmake it available to you for inspection

2. Serve a request upon the party in possession or control of the itema. describe the items to be inspectedb. specify a reasonable time and place for inspection to occur

3. Other party must file a response within 30 days that says they will allow inspection orgrounds for objection

B. Non-parties (Rule 45):

1. You can subpoena duces tecum to compel the non-party to bring documents or othertangible things them to deposition

2. If you dont want to depose them, you can obtain a subpoena requiring the nonparty toproduce and permit inspection of tangible items or to permit inspection of premises

IV. REQUESTS FOR ADMISSIONS (Rule 36): allows a party to ask another party to admitcertain matters (facts, application of law to fact, or opinions about either, genuineness of anydescribed documents)

If its not objected to or denied then the matter is deemed admitted for purposes of trial.

Once admitted its conclusive unless the court, upon motion allows amendment or withdrawOnly used against a partyObjections

1. Party may object if admitting would incriminate them in a felony2. Party cant object because its grounds for the case

Admissions cant be used as admissions in other cases but they may be used as evidence inanother case

Helps to expedite litigation Requesting party may challenge sufficiency of the answer or objection Party may serve written request for pending action only, the truth about facts, application

of law to fact, opinions, and genuineness of described documents.

V. REQUEST FOR A PHYSICAL OR MENTAL EXAMINATION (Rule 35): You canforce a party to submit to a physical or mental exam by obtaining a court order. (You would tryto resolve this informally first by just asking them if theyll submit to the exam).

A. How it works:1. Must motion court to get order

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2. Must show good cause for wanting exama. If person turns over medical records that are on point and not suspect of bias or

incompleteness, may terminate good causeb. No other feasible way to get the information needed to show a fact

3. Condition must be in controversy (as determined by the court)

a. Relevancy ANDb. Party must place a condition in controversy by:i. non-moving party may do this in her pleadings alleging a claim or

defense that turns on the conditionii. moving party may do this by offered affidavit or other affirmative

evidence tending to show the other persons condition is incontroversy

4. Must get a court order (unless party consents to exam)5. Party must receive notice of the court order

B. Party requesting the exam chooses the Dr. to perform the exam, pays for exam, and selects

where its going to be held

C. Examiners Report:1. Examiner prepares a written report and delivers to moving party2. Party who got the exam may obtain the report by request

a. by asking for report, they waive the right of privacy to their medical recordsregarding the condition in question (even with other doctors)

D. Courts are split on whether or not emotional harm puts mental condition in controversy.

C. DISCOVERY SANCTIONS

Rule 26(g): automatic sanction for failure to sign a submitted document with their document

1. Every piece of paper in discovery must be signed and the signature serves ascertification.

Rule 37Compelling discovery

1. Failure to comply with mandatory disclosure:a. complete failure to disclose (party will compel compliance by getting order)

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b. failure to give part of disclosure (such as a witness or a document) onlysanction for this is to not allow the witness/document at trial

2. Mid-deposition non-compliance: if someone wont answer, etc. then you can try tocompel them to answer or make them pay attorney fees. If party denies a court order theymay be held in contempt of court (violate a court demand once is civil contempt, if

violation is requiring may become criminal contempt).

Only thing you can do if a non-party fails to comply is to compelling to answer and/or holdingthem in contempt of court

Mandatory sanctions for:1. Failure to attend a deposition2. Failure to respond to request for production of documents

If court finds failure was substantially justified or there were other circumstances sanctions maynot be imposed.Sanctions: reasonable expenses & attorney fees

If you schedule a deposition with a non-party and you dont subpoena them, and they dont showup, you pay the other parties for showing up.

CHAPTER 9: JURY TRIAL

A. THE CONSTITUTIONAL RIGHT TO A JURY IN CIVIL CASES

7th Amendment Right to a Jury In federal court you have a Constitutional right to a jury even in civil trials Doesnt apply to the states Doesnt create a right it just preserves a right that already existed at the time the bill of

rights was adopted

Do this for every claim!

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1. Does an exception apply? Exceptions: Is this claim in state court, admiralty court, or a suit against the government? If its any one of those then no 7 th Amendment right to a jury. If a statute provides the right to a jury than you get a jury!

2. Is the claim legal (jury) or equitable (no jury)?

3. Is it a common law claim or statutory claim? If its a common law claim than ask what the claim was in 1791. Then ask what the

remedy is. Unless claim is for a fiduciary duty the claim is legal

If its a federal statutory claim than claim didnt exist in 1791a. Closest analog (Cross will give us the historical claims and we pick one)

b. Nature of the remedy (most important unless there is a perfect analog. If there

is a perfect analog then Congress has codified a claim that existed in 1791)

c. If you determine you want to treat it as a legal claim then ask Is what we are

asking the jury to do, fundamentally different then what a jury in 1791 would

do? if the answer is yes then no jury. This will hardly ever happen (only case in

book is when the jury would have to determine claims in a paten)

4. Does the public rights exception apply?

For this to apply it must be a statutory public right and a non-article III court Article III courts: If the judge has life tenure and has protection against salary reduction

while in office than its an article III court. All US district courts and US appellate courtsare article III courts. No jury if its not an Article III court.

A public right is created by a statute within the power of congress to enact that deals witha broad regulatory scheme intended to benefit the public as a whole. It has to be createdby Congress, Judge made law is NEVER a public right. No jury if the caseinvolves a public right.

Ask: did congress create a different and coordinated way to deal with the problemfor example, by creating a regulatory agency. If congress creates a broadregulatory scheme even if it has a private flare, it may still be public

Private party bringing public right action could be anti-trust or false advertising.

5. Is this a mixture of legal and equitable claims? If yes: jury hears all issues relevant to all legal claims (even if those same issues are in

the equitable claim). Judge only decides issues related solely to the equitable claims. If

its a shared issue (one issue is both legal and equitable) it goes to the jury.

If it would only go to equity because of procedural devices then today it is considered

legal and you get a jury. Intervention, interpleader, class action, discovery.

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*If corporation sues officers of the corporation, its law. If the shareholders sue officers, itsequity.

B. DEMANDING A JURY

Rule 38

Demand for jury trial of any issue must be served within 10 days after service of the last pleadingdirected to the legal issue. The 10 days does not include weekends or holidays (Rule 6).

It can be, and often is, part of a complaint.

The demand for a jury must be in writing.

If case is removed to federal court, a party has least 10 days following removal to demand a jury

Once a party files a demand for a jury, he cant withdraw it without consent of all parties

Any party can demand a jury, and the right to a jury can be waived by failure to act, orvoluntarily.

C. JURY SELECTION4 stages:

1. Identify all potential jurors (the master jury wheel)a. Voter registration is the only thing that can be the sole method for identifyingpotential jurors. Registering to vote exhibits your willingness to perform yourcivic duty

2. Form jury pool (getting called for jury duty; 50-500): selected randomly3. Form jury panel from the jury pool (15-30): selected randomly

a. Use voir dire to get to the actual jury

4. Pick jury from panel (actual jury) As long as going from potential to the pool and from the pool to the panel is random its

okay.

Who is eligible?

Over 18

Resided for one year in the judicial district

Able to read, write, speak, and understand English

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Whos not?

Incapable by reason of mental or physical infirmity to render jury service

Convicted or charged with a felony and has not had their rights restored yet

May be excused for: undue hardship or extreme inconvenience

Of an inability to render impartial jury service

that their service would likely disrupt proceedings

their their service would likely threaten the secrecy of the proceedings or otherwise adversely

affect the integrity of jury deliberations

Example of automatic exemption: firemen, police, military

CHALLENGING:

Peremptory Challenges: attorney doesnt have to give a reason for striking a juror; he mayexclude for no reason

Number is limited (3 in federal court) Cant strike jurors for race, sex, national origin, religion Can strike jurors because of their profession, inadequate education, business experience

A. Court can compel you to give a reason for your strike if strike is challenged1. Opposing party has the burden of proof to must make a prima facie showing that thestrike was discriminatory.

a. Questioning, reasoning, and conversation in voir dire that seems prejudicialb. Pattern of strikes: shows an inference that the party excluded jurors based on

race or sex; look at the number of people struck v. number ofpeople in the pool (60% blacks excluded using challenges but only 30% ofpanels undergoing voir dire are black)

2. Striking party must give reasonable explanation for strike3. Court decides if opponent of the strike carried his burden of persuasion regarding theimpermissible motivation.

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Discriminatory peremptory challenges are prohibited (Batson rule)

When challenging a peremptory challenge, its the rights of the struck jurors that are being

violated, but because they do not know why they are being struck, the opponent to the strike isin essence representing their rights.

Gender, race, religion, and national origin (and maybe age and income) are prohibited reasons

for peremptory challenges. There must be any other reason besides these- The reason can be arbitrary (such as if

theyre a Virgo or lawyer) but if that characteristic is shared by another in the group whowas not stricken, the difference must be articulated or the strike is forbidden.

Exclusion based on things such as race or religion is absolutely forbidden, even if the group

discriminated against is the majority (i.e. white, males, etc.)

When the opposing party suspects discriminatory challenge, a 3 part mini hearing is conducted:

1. The opponent of the strike must make a prima-facie case that there has beendiscrimination. Test to determine if its a prima-facie case:a. Nature of the questions in voir dire (like the way it was phrased)b. Based on percentage. As long as the percentage struck is greater than the total

of that representation in the panel, its a prima-facie case.2. The striking party must articulate a neutral reason for the challenge. The burden

of production is on the striking party. Then,3. The court must determine whether the opponent of the strike has carried its

burden of proving purposeful discrimination. The burden of persuasion isalways on the opponent of the strike.

Challenge for Cause: excludes jurors who fail to meet 1 or more statutory qualifications forjury duty and jurors who are biased to parties or to the substance of the dispute. There is no limitfor these.

For professions (attorney, doctor), a challenge for cause probably wont stand.

If juror should be struck for cause and Judge wont allow him to be, an attorney isntforced to use his peremptory challenges.

On appeal, the decision to not strike a juror for cause may be reviewed. Appellate courtsare highly deferential to the trial judges exercise of discretion in ruling on challenges forcause.

A. Examining Bias: The test is whether or not, after hearing all the evidence, the prospectivejuror can adjust his views to the requirements of the law, and render a fair judgment.

1. If predisposition is not grounded in reality/truth then the juror must be struck for biasa. Even if juror says belief wont cloud his judgment he still must be struckb. This bias is less likely to change because its not based in fact

2. When bias is based on fact, it shows the juror thinks facts are important and can judgethe situation at hand without bias

a. Must ask juror if he can set aside his bias and judge the case based on the factsaccording to what the judge says

b. If juror can, then he may sit.c. If juror cant, then he must be struck

B. Other kinds of bias:

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1. Juror is too sympathetic to a party2. Juror disagrees with the law

C. Automatic strikes (unshakable bias):1. Blood

2. Marriage3. Employer/Employee

If juror lies (McDonnough test):

For false information/answering of questions, a trial court has the discretion to decide whether

a rpost-verdict hearing is necessary to determine juror bias. It must be proven that they failedto answer honestly and that the correct answer would have provided a valid basis for achallenge for cause.

If the honest answer is a view so skewed and far out that it could have been challenged for

cause, you can ask for a new trial.

Time period (Rule 6): Must be 10 days after the judgment was entered. There can be NO

extension of the motion for new trial. Practically, you need to poll/probe the jurors immediately after the trial.

Because of the strict timeline an immediate jury pool should be conducted.

E. JURY INSTRUCTIONS AND JURY VERDICTS

Jury instructions: logical process by which we tell the jury how to base their decisions Must object to jury instructions before decision in lower court is made or you waive the

right to object on appeal. Does the objection have to be before the instructions aresubmitted to the jury, or prior to the verdict?

Instructions must include every important issue in the case and must communicate theapplicable principals of law and tell you how many jurors must find for the plaintiff inorder for plaintiff to win.

Verdicts (Rule 49):

A. General verdict: One sentence answer rendered by the jury we find in favor of the plaintiff

B. General verdicts with interrogatories: jury makes written finding of fact and renders a generalverdict.

1. Inconsistencies arise only if line of questions are inconsistent with one another. Try toreconcile them, if not possible, maybe a new trial is granted

2. If the questions are consistent with each other but one or more of the questions areinconsistent with the general verdict the court may order new trial, order jury todeliberate further, or enter judgment based on the questions under the theory that specificfindings prevail over a general one

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C. Special verdict: jury answers factual questions and the court applies the law to the answers1. Inconsistencies arise if line of questions are inconsistent with one another and one ormore is likewise inconsistent with the general verdict.

a. Judgment not entered and the court shall return the jury for further

considerations of its answers and verdict or order a new trial

CHAPTER 10:

DISPOSITIVE AND POST-TRIAL MOTIONS

A. DISMISSALS (Rule 41)

Voluntary Dismissals are brought by the plaintiff (Rule 41(a))

A. Plaintiff may file a voluntary dismissal by:

1. Court order: file a motion asking the court to dismiss the casea. If defendant has filed a counterclaim and defendant rejects to dismissal, thecourt cant dismiss unless it may retain jurisdiction over the counterclaim

2. Filing a notice of dismissala. Must be before defendants answer or motion for summary judgment

3. Stipulation of dismissal signed by all parties who have appeared

B. Preclusive effect of a judgment:

1. Unless court order or stipulation states otherwise, the dismissal is without prejudice.

2. If plaintiff who has previously dismissed another action based on the same claim byand dismisses again by notice, the 2nd time operates as an adjudication on the merits

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C. If defendant has made a counterclaim then there can be no court order to dismiss unless thecounterclaim can stand on its own

Involuntary Dismissals: dismissals filed by the defendant to get rid of

plaintiffs case (Rule 41(b))

A. Defendant may file an involuntary dismissal if:

1. Failure to prosecutea. The court must give the plaintiff at least 1 warning before the case is dismissedfor failure to prosecute, but they need not repeatedly warn.

b. Courts should try to sanction the misbehaving lawyer before the sanction ofdismissal is imposed on a possibly faultless plaintiff

c. Factors to determine failure to prosecute:1. The frequency and magnitude of the plaintiffs failure to comply withdeadlines for the prosecution of the suit

2. The apportionment of responsibility for those failures between theplaintiff and his counsel

3. The effect of those failures on the judges calendar and time4. The prejudice, if any, to the defendant caused by the plaintiffs

dilatory conduct5. The probable merits of the suit6. The consequences of dismissal for the social objectives of the type of

litigation that the suit represents

2. Sanction dismissal for failure to comply with the rules or a court order

3. Failure to state a claim for which relief may be granted 12(b)(6)

B. The preclusive effect of a dismissal under 41(b) is that it operates as anadjudication on the merits (except improper venue, lack of jurisdiction, or failure to join aparty under Rule 19)

1. A judge may use his discretion and choose not to dismiss a case with prejudice.Judge cant dismiss a case with prejudice under 41(b) for improper venue, lack ofjurisdiction, or failure to join a necessary party.

2. A court can take dismissal that is ordinarily on the merits and make it not on themerits, BUT the reverse is not true.

C. If the plaintiff fails to state a claim there are 3 options:

1. Court may allow the plaintiff to amend his complaint

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2. Court may dismiss the claim with prejudice (you cant ever come back to court withthis claim)

3. Court may dismiss without prejudice (plaintiffs claim is dismissed but plaintiff may

file a new complaint that does state a claim)

The court uses its discretion. If they simply says that the claim is dismissed for failure

to state a claim, you cannot bring the action again.

Reasons court will dismiss with prejudice:1. If the rules require it to2. Legal prejudice: party has relied to its determinant in an irreversible way3. Practical prejudice: too long a time, other practical things

B. DEFAULT JUDGMENTS

A default judgment is a judgment, and judgements are on the merits. The preclusion effect willvary.

Rule 55Default is proper when:

1. A party fails to plead or otherwise defend the merits of the claim (this is our focus)

This is not only for defendants! Although it is usually the defendant that defaults,

the rule applies to all parties against whom a claim is filed. So a plaintiff who failsto defend against a counterclaim can have a default entered against her on thecounterclaim.

2. Party fails to comply with the rules (sanction default)

a. Sanction Default: defendant has filed an answer but has failed to comply withthe rules or a court order in such a way that the court deems it is necessary toenter a default judgment.b. Defendant gets notice because he has appeared. Notice is called an Order toShow Cause which is essentially the judge asking why shouldnt I hold you indefault?c. More difficult to overturn then other default

STEPS:1. Entry of default: A precondition of default judgment entered by the clerk. No

notice to defendant required. Is the 20 day rule the same for length of time before entering the

default and length of time between entering and moving for default judgment? A party may challenge an entry or default and ask to have it set aside by showing

good cause. Factors to determine if there is good cause:

whether the default was willful

whether setting it aside would prejudice the adversary

whether a meritorious defense is presented

the nature of the defendants explanation for the default

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the good faith of the parties

the amount of money involved

timing of the motion to set aside the entry of default

Examples of good cause include:

The party never received notice of the suit

The party suffered a serious illness2. If nothing has resulted, party must move for default judgment.

A. By the clerk: Must meet these requirements: Amount is a sum certain, OR asum can be made certain by computation (including costs), but defendant cannothave appeared, cannot be a minor, and cannot be an incompetent person.

B. By the court: In all other cases, the party must apply to the court for a defaultjudgment. Requirements must be met:

Motion required: The claimant must apply to the clerk or court to have

judgment entered.

If damages are not a sum certain, or if the court desires evidence to

substantiate any of the allegations in the claim, the court schedules a hearingprior to entering the default judgment. In other cases, no hearing isnecessary.

At the hearing, the claimant proves the damages by offering evidence. If

the defaulting party attends, he may counter the evidence.

However, unless the court specifically asks for such evidence, the

claimant need not prove other elements of her claim. Nor may thedefaulting party, if he appears, offer evidence on the merits.

Notice of hearing: If the defaulting party has appeared in the action, he must

be served with written notice of the application for judgment at least 3days before the hearing.

The notice requirement only applies to a party who appears in the action

but does not defend by serving an answer of other defensive motion.

Distinguish default with sanction default: The entry of default for sanction default

will typically be entered by the court, not the clerk. The defendant is given notice of the defaultjudgment, which is called order to show cause. The entry and default judgment often happenat the same time for sanction defaults.

A defendant who has had default judgment entered against him improperly he has the

option to re-open the judgment.

May use:Rule 59(a): New TrialRule 60(b): If party can show any of the grounds listed the court will set aside thedefault judgment

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SUMMARY JUDGMENT

Rule 56

Summary judgment is a way to resolve a case before trial, allowing the court to look at the

actual facts of each side. The court shall grant summary judgment if there is no genuine

question of material fact

Summary judgment should be distinguished from judgment on the pleadings. Judgment

on the pleadings allows a court to resolve a case based solely on the allegations in thepleadings, but the court must accept the factual allegations in the pleadings as true. Insummary judgment, the court looks at the evidence each side has.

Summary judgment should be distinguished from judgment as a matter of law, which

occurs during the trial. A summary judgment motion must be made before the trialcommences.

Court may grant SJ on all claims in a case or a partial SJ on one or more specific claims.

(claims can include counterclaims, crossclaims, third-party claims)

Timing:1. A party defending a claim may move for SJ at anytime, even before they have filedtheir response to that claim.

2. A claimant may serve a SJ motion for SJ after the defending party makes its own SJmotion or 20 days following commencement of the action

3. SJ motion must be served at least 10 days prior to hearing on the motion

4. If SJ motion is very early in the case, the court may delay the hearing until thenon-moving party has opportunity to conduct discovery

Standard for SJ:1. Court doesnt weigh the evidence (if theres conflicting evidence SJ will be denied)2. Court doesnt determine creditability of the evidence (this must be done by a factfinderat trial!)

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3. Court views in light most favorable to non-moving party

Inferences:Inferences allow you to prove indirectly what you seek to prove directly

We allow inferences if they are more likely than not, or if they are most likely. In a motion for SJ as a matter of law, the non-moving party is only entitled to the benefitof reasonable inferences.

o Reasonable inference: one which may be drawn from the evidence without resort

to speculation Inferences are typically a matter for the jury, so courts faced with evidence that calls for

an inference typically denies SJ and lets the jury face the question. If the inference is simply too improbable or farfetched, the court can grant SJ against

the party who needs to rely on the inference. If partys inferences are equally compelling the party without the burden of production

gets SJ.

If one partys inference is much more likely then the alternative then the court may grantSJ for that party

Presumptions:1. Shift the burden of production to the other party2. The court gives the plaintiff a presumption that defendant copied if the plaintiff canshow the defendant had access to the work and the defendants work is substantiallysimilar to the plaintiffs. Access + substantial similarity = presumption of copying

The burden of proof tells you who looses when theres evidence lacking onan issue.

1. No evidence: the party with the burden of production loses2. The plaintiff has the burden of production for the issues he must prove

a. If the plaintiff has the initial burden of production and gives so much evidencethat no reasonable juror could find for defendant, plaintiff gets SJ

3. Defendant has the burden of production to show he isnt liable.a. Defendant must negate plaintiffs evidence if plaintiff offers anyb. Defendant has the burden of production for showing any affirmative defenseshe offers

What defendant needs to show SJ is proper:1. Defendant doesnt have to have evidence negating the plaintiffs claim; defendant must

review the discovery and show where the evidence should be in order for the plaintiffs argumentto win

2. Cant just be a conclusory assertion3. If defendant does have evidence he may share it with the court, but he doesnt have to.

SJ for the party SJ for the party

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with the burden NO SJ without theburden of burden ofproduction ----------------------------------------------------------------------------------------------production

1st yellow line: some evidence that proves your case2nd yellow line: so much evidence that unless the other party negates it any reasonable jurorwould rule for that party

Explanation: If party with the burden of production presents enough evidence to get to the 1st yellow

line then there is no SJ. If that party presents enough evidence to get to the 2nd yellow line, then the court grants

SJ for the party with the burden of production If party without the burden of production presents enough evidence to negate the other

evidence move back to 2nd yellow line, no SJ If party without the burden of production presents enough evidence to negate the other

evidence so that no reasonable juror could find for other party, SJ for party withoutburden of production

A presumption can get the party with the burden of production to the 1st yellow line.

The burden of persuasion may change the party who has the burden of production but this isinsignificant.

*SJ and Judgment as a matter of law are similar in analysis:1. Who has the burden of production?2. Does the party have direct evidence?3. Then looks to inferences

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JUDGMENT AS A MATTER OF LAW

Rule 50

Motion for judgment as a matter of law is made after the moving partys opponent has

completed presentation of their case and before the case is submitted to a jury.

It allows the court to take the case away from the jury and resolve the issue.

A motion for judgment as a matter of law may be made after a jury verdict, but only if the

party making the motion has previously made such a motion at the close of all evidence beforethe case was submitted to the jury. The court will be limited to the arguments raised in theoriginal motion in deciding to grant the post-verdict motion.

Standard:1. No reasonable jury could find for the non-moving party2. A court will grant JML if there is insufficient evidentiary basis for a jury to legally find

for the non-moving party.3. A grant of JML is proper if no rational jury could find for the opposing party

Old terms:

Directed verdict: pre-verdict judgment as a matter of law (Rule 50(a)) Judgment notwithstanding the verdict: post-verdict judgment as a matter of law (Rule

50(b))

Analyzing JML:

ALWAYS ASK:Part 11. Who has burden of production?2. Does that party offer direct evidence?

a. If yes, is the evidence contradicted?

3. If no, do they have indirect evidence from which a reasonable inference can be made?(Reasonable inference 51% standard, just remember to think reasonably)

Part 21. Who is the moving party? (Must believe the non-moving partys evidence but dont have tobelieve his inferences)2. Weigh the non-moving partys evidence (taken as true) with moving partys un-contradicted,un-impeached evidence from disinterested witnesses.

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3. Finally, would a reasonable jury be able to find for the non-moving party?

Considering whether JML is appropriate:

1. Court gives credence to the evidence favoring the non-moving party as well as to thatevidence supporting the moving party that is un-contradicted and un-impeached, at leastto the extent that the evidence comes from a disinterested witness.

a. testifying against your interest (giving evidence that helps the other party)makes you a disinterested witness

2. Judge may weigh credibility to the extent he may judge whether the witness is aninterested party or not.

3. Judge also may weigh evidence

a. If there is substantial evidence on both sides the court denies JML and the jurywill weigh the evidence (jury decides who wins)

How it works:1. Plaintiff bears the burden of production and the burden of persuasion. This means theplaintiff must prove each and every element of his claim.

2. Defendant moves for JML: they are saying the plaintiff hasnt met the burden of

production on 1 or more elements of the claim.

3. Only evidence admitted at trial is considered

Reasonable Inferences:Reasonable inference: inference that may be drawn from the evidence without resort tospeculation. When the record contains no proof beyond speculation to support the verdict, JMLis appropriate. (if the only proof you have to support your claim is speculation and other partyhas reasonable inference then JML is appropriate for party with reasonable inference.)

1. If inference makes the situation more likely than not, the inference is reasonable2. The most likely inference will be allowed3. The court can consider the evidence offered by the opposing party to draw an inference4. The court must view evidence in light most favorable to non-moving party: the courtmay have to believe the evidence but the court doesnt have to believe their inferences.

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Timeliness:1. Motion for JML is untimely if the other party has not been heard yet (plaintiff cantmove for JML after they have finished presenting their case because defendant hasnt

offered testimony yet)2. At some point prior to the verdict, you must make a motion for JML for you to be ableto make the motion for JML post-verdict. (pre-verdict motion for JML is a pre-requisitefor post-verdict motion for JML)

Ex:P v. D for nuisanceP testifies D was loud on these datesDs witnesses say D was out of town and quiet as a mouseP moves for JML: wont be granted; direct evidence but its contradicted

D moves for JML: wont be granted because a reasonable juror could find either way

Defendant asks for JML:1. Plaintiff has burden of production2. Plaintiff has no direct evidence3. Plaintiff has no indirect evidence that creates a reasonable inference

Defendant gets JML

1. Plaintiff has burden of production2. Plaintiff has no direct evidence

3. Plaintiff has indirect evidence that creates a reasonable inference Defendant doesnt get JML

Plaintiff asks for JMLPlaintiff may be entitl

Documents

Civ Pro II Outline.doc