Civ. Pro. Outline 05

7/31/2019 Civ. Pro. Outline 05

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CIVIL PROCEDURE II OUTLINE

JoinderJoinder is liberally allowed to resolve as many claims as possible at the same time. This saves time and money for the

parties, judges, etc. POLICY REASONS!!

In looking at joinder, ask:1) Is a claim or party being joined?2) Does a FRCP permit the joinder and, if so, which rule?

3) Is there SMJ over the new claim or party? Look for supplemental also.

NOTE: In the Owen Equipment & Erection Co v. Kroger case (1978) the court dismissed because there was no diversity andthis was before 28 U.S.C. 1367 was enacted.

Rules 13, 14, 18, 20

Rule 13: Counter-Claims (Two Types) can be made by ANY party even 3rd parties

Compulsory Permissive- Arises from the same T or O - Does not arise from the same claim (T or O)- Must be asserted in the answer or it is waived (13(a)) - Must have diversity or federal question jurisdiction- Always under supplemental as it arises out of the same claim - NO supplemental jurisdiction for Permissive CC

- The counter claim can exceed the original in amount - May bring. You dont lose right to bring up later(bring later in state court)

Test for Compulsory

(When a claim and counterclaim arise from the same transaction)

Same T or O Tests

1. Same evidence - Will substantially the same evidence support or refute Ps claim and Ds Counter-Claim?2. Common Qs of law/fact Are the issues of fact and law raised by the claim and counter claim largely the same?3. Logical Relationship - Same Aggregate of Operative Facts as the main claim (Plant v. Blazer). Is there any logicalrelationship between the claim and counter-claim? (Most Fed Courts use) a very broad test!4. Would res judicata bar a subsequent suit on the Defendants claim absent the compulsory claim issue?

**YES to ANY of these means the counterclaim is compulsory!**

Note: Most courts like the logical relation test

Cross-ClaimsRule 13(g)EX Plaintiff is suing two or three Defendants (D-1, D-2, and D-3)

- D-1 brings suit against D-2TEST: see if it arises out of the same transaction

Whether there is a logical relationship between the main claim and cross claim.Note: Remember, we want to save time by tying in all related claims. Unrelated claims will not save us time.

Supplemental jurisdiction applies to cross claims because they arise out of the same transaction or occurrence as themain claim.

- There is supplemental jurisdiction because it arises out of the same transaction- These are never compulsory, meaning you are free to bring them up later

Rule 14: 3rd party practice (Impleader) FOR ALL OR PART!Ex) If I (D) am liable to P, then 3pD is liable to me (indemnity/contribution)

Discretionary: Unless the third-party claim is filed within 10 days after the answer is filed, leave of the court is required.Whether a court will allow an impleader depends on:

1) inconvenience, delay or prejudice to the original plaintiff2) economies of a single trial

SUP. JUR. exists over the third party claim. This takes care of VEN and SMJ, but the court still needs PJ.

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Once a party is joined as a third party defendant under 14, ancillary jurisdiction also applies to claims asserted by the thirdparty defendant and against the third party by other parties if they are transactionally related to the main claim. Can NOTuse, It is his fault, not mine. You must be suing forderivative liability (if I am liable, this person should be liable to me).That is the rule from the Watergate case.

- This is the Defendant bringing a Third Party Defendant into the Suit- It can not be an It was him, not me scenario, meaning the Defendant must acknowledge some fault. An

appropriate application of Impleader would be for contribution, indemnity, or warranty- Once a third party Defendant is brought in, he can bring a counter-claim against the Plaintiff, thus becoming a third

party Plaintiff28 USC 1367 Supplemental Jurisdiction-common nucleus of operative facts-

1367 (B) (Only in Diversity Claims)

Basically, if a Defendant impleads another Defendant who is from the same state as the Plaintiff, the Plaintiff can not file suitagainst the impleaded party because they could not have done so before the impleading occurred. (This would result in anunfair advantage for the Plaintiff

DUE PROCESS: Can never be bound by a judgment to which you are not a party.

Stare Decsis: The doctrine of precedent, under which it is necessary for a court to follow earlier judicialdecisions when the same points arise again in litigation.

RULE 12(b) 7: Absence of necessary part (motion to dismiss)NOTE: Can be raised anytime.

PERMISSIVE JOINDER OF CLAIMS: (RULE 18)

RULE 18 is permissive joinder of claims (can join any claims)One party can bring as many claims as he has, even if unrelated, as along as they are all against the same defendant (ordefendants if it is for joint and several liability).

Once a party has made a claim angst some other party, he may then make any other claim he wishes angst that party.

Need independent SMJ

Diversity- not affected here b/c no new partiesAmt in controversy- can aggregate all claims by a P against a DSupplemental Jurisd- if only supp j., then no indep SMJ & NO

NOTE: Always mention 42(b) which says that the judge can sever the claims if it gets too confusing, timeconsuming, etc.

Rule 20: PERMISSIVE PARTY JOINDERUnderFRCP, joinder rules are very liberal. The basic objective is to prevent multiple actions, saving time and money.All persons may join as plaintiffs or be joined as defendants if:

1) they have rights or liabilities arising out of the same transaction or occurrence AND2) if any question of fact or law common to all of them will arise in the action

EXAMPLE: A may join B AND C claiming that his injuries are the result of either or both

Mosely v. General Motors Corp. (1974)P and 9 others sued for racial and gender discrimination and wanted to join together in one suit under Rule 20. The courtheld that each P to bring a separate suit. The higher court reversed, saying Rule 20 should be broadly granted and that Rule42, severing a claim, can be used if it gets too crazy.

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Rule 19:COMPULSORY JOINDER:If a person not being there will prejudice one of the parties, they are NECESSARY. If they are necessary and can NOT

be joined, they are indispensable and the action SHOULD be dismissed.

Rule19 occurs in pre-discovery phase

What it does: recognizes situations where P has not brought to the table all persons who need to be there in order tofully address the issue of the suit either for those already in the suit or not in the suit.

Due Process requires you can never be bound by a judgment to which you are not a party. But we recognize timeswhen the practical consequences when youre not a party do affect you.

Reasons to get in suit now (Precendent & Stare Decisis)

3 Step analysis under Rule 19:1) Is the person necessary? absentee needed for a just adjudication?2) If so, they should be joined if it is feasible: Is joinder feasible?3) Is the person indispensable? If not feasible, court must decide if suit can be heard without that party (if not they are

indispensable and the suit is dismissed)

12(B)7: mechanism by which absentee is raised. D files it & asks ct. to dismiss suit b/c of absence of a party. Then courtlooks at (R.19) to see if hes a necessary party.

a. When you file a 12(B)(7) you must tell ct analysis:b. With 12(B)7: If party is necessary & feasible, you get order to join party but party does not have to.c. 12(B)7: Not lost if not brought in answer

d. * see Rule (12L) and 12(h)(2): to see when can raise defenses

1) Necessary: Determine prejudice to missing party and present parties.

(a) Can you grant complete relief to all without the party there?(b) Will missing persons interest, as a practical matter, be impaired or impeded?(c) Will the absence expose any existing party of multiple or inconsistent obligations?

EXCEPTION: jewelry selling case (all you need is one of these factors for the person to be found necessary)

2) If feasible: If necessary, he must be joined unless no PJ, SMJ, Venue or if it would destroy diversity.

If he can be joined, he will be joined. If he can not be joined, then the court must, in equity and good conscience,

determine whether the action should proceed among the parties before it, or should it be dismissed, the absent party thusindispensable.

3) Indispensable: Court in deciding if it should dismiss the case looks at:a) Prejudice to all

b) Ability to shape relief to lessen prejudice (may give different remedy than one asked for if it would hurt missing part)c) Adequate remedy for plaintiff if case is dismissed? (alternative forum)d) Ability to render an adequate judgment in the persons absence

(Court uses TOC here and makes a judgment call whether to proceed without that party or dismiss the case)

Procedure for compulsory joinder: (Ds burden to show party is necessary)

1) The complaint must state the names of all parties who were not joined and the reasons they were not joined.The court then labels them as necessary or indispensable.3) If plaintiff does not join an indispensable party, D will file a 12 (b) (7) motion to dismiss.

NOTE: If you see 12 (b) (7) on examThink ofRULE 19.

Helzbergs Diamond Shops v. Valley Wes Des Moines Shopping CenterP had a lease agreement whereby he was leasing space in the Ds shopping center. The lease provided that D could onlylease to ONE other jewelry store. After D leased to a third jewelry store, P sued D. D made a 12(b) (7 motion to dismisssince the jewelry store was not made a party to the suit. The court denied the motion, holding: a party does not becomeindispensable to an action to determine rights under a contract simply because that persons rights or obligations under an

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entirely separate contract will be affected by the result of the action. Here, the court gave the third jewelry store a chance tointervene, but they declined, so the court thought they did enough to protect the third partys interests.

Step 1 : Is absentee necessary? needed for a just adjudication & one who shall be joined with: 19(a)(1) or 19(a)(2

3 ways absentee can be necessary only need one of 31. Incomplete Relief19(a)(1) - In the persons absence complete relief cant be accorded among those already

parties. (This deals with efficiency we want to minimize number of proceedings & conserve judicial resources)OR

2. Absentee claims an Interest relating to subj. of action & is so situated that the disposition of action w/outabsentee may:

i. As a practical matterimpede or impair the absentees ability to protect that interest (this furthersgoal of avoiding harm or prejudice to absentee) OR

3. ii. Leave any of persons already parties subject to a substantial. riskof incurring double, multiple, orotherwise inconsistent obligations by reason of the absentees claimed interest.(This serves goal of avoiding imposition of multiple or inconsistent liability on Ds)

If no to all 3, stop, absentee is not a nec.pty, but if yes to any of 3, go to step 2

Step 2 : Is joinder of the absentee Feasible (SMJ, PJ, Venue)

If so, then no problem & suit goes.If not go to step 3 (then court must balance 4 factors to see if suit is so important it cant go on w/out them, to see if

theyre indispensable).

A) Does ct. have SMJ to hear action if absentee becomes pty? (will joinder destroy diversity or will the claiminvolving absentee fail to satisfy amt. in controversy)

B) Will ct. be able to exercise P.J. over absentee & will the person be subj. to serv. of proc.C) Will Venue be proper for absentee?

If yes to all 3, then its feasible & ct. will order joinder of absentee.If no to any, then not feasible & go to step 3.

Step 3: Since joinder isnt feasible, ct, decides if it should inequity and good conscience continue the suit w/outabsentee or dismiss the entire case. ct. weights these factors:

1) Prejudice to what extent will absence of the absentee prejudice the absentee or those already ptys2) Framing of Judgment to what extent can ct. lessen the possible prejudice By some protective provision in the

judgment; by shopping the relief; or by some other measure

3) Adequacy of Remedy whether a judgment given w/out the absentee be adequate4) Result of Dismissal whether the P have an adequate remedy if court dismisses action for non-joinder of the

indispensable absentee.

? D cant bring in other parties (ex: permissive CC)

Situations where these are necessary ptys

1) If the law in a suit involves Rights And obligations of parties-Never with joint tortfeasors ( still can arg. For them), ex. Temple case-Rule 19a is never to apply when may have a K party.

2) When person has an interest3) Situations that would affect rts. to a pty who is not now a pty. Ex:Each on 50% of prop, cotenant is necessary pty.4) Always H&W (ten by entirety), where neither can convey w/out other, so no judgment angst one of them, need both

b/c they are necessary parties.

(Temple v. Synthesis) : 2 suits 1.( P D fed.ct. diversity) 2(P other D/st. ct.)

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D wants to get absentees here & he args well be prej if not there. (19a1) or (19a2) inconsistent judg.Rule : Joint tortfeasors: its not necessary for all joint tortfeasors to be named as Ds in a single suit, @ one place @one time.(notes to 19a) : Tortfeasor w/ usual joint & several liability is a permissive pty

Balance of 2 things why:1. Pty autonomy: we let P choose issues & people;2. Fairness & efficiency

- Ct.s bal. these and a joint tortfeasor can be permissive & not nec. Ptys.

(Helzberg v. ValleyWest Shop. Center) H&V.W. get in lease where VW will not rent space to 2 other full line stores,then VW leases to another (Lords (L)). H sues VW to stop them from breaching K. VW moves to dismiss on (19) forfail of # to join L as a pty ^ & ct. 1) denies motion and found L not indispensable pty; & 2) enjoined L from opening astore.- (L not a pty to suit, but they have an injunction angst them (&if not a pty, then judgment not binding. L will want to

sue VW & in that suit, there will be an inconsist. Judgment)

- VW args : well face 2 inconsist. Judgments 1) to keep L out; & 2) when L sues, well have to let them in.- Ct. says : VW too bad, you brought it on yourself & L cant come in b/c no P.J.- So pty is nec, but not indispensable

How Rule 19 worked: Is L nec? Yes b/c of compromise. 1st step- they pass. 2nd, is joinder feasible? No, b/c no P.J. soso, nec. And not feasible, apply 4 part test: *L not indispensable b/c the obligs are conflict b/c of 2 sep Ks entered

into prior to suit.Key to see if indisp. is if judgment itselfwill create conflicting obligs (rule 19b)** None of Ls rts. & obligs. Will have been adjudicated as a result of present proceedings (to which its not a pty) sothere not prejudiced & Ls absence wont prej. VW.* Court can determine all rts. & obligs. of both ptys (H & VW) w/ just them in ct by look at lease w/out L as a pty here

(19b ct. considers ways prej. To absentee can be lessened/avoided). Here the dist. Ct. gave L considers tointervene to protect any interest, so they had notice & decided not to come in; L could have waived P.J. by vol.coming into suit.Sum: gen. a person doesnt become indisp. to an action to determine rts. Under a K b/c that persons rts. Or obligs.Under a sep K will be affected by result, (lessor, lessee).

INTERPLEADER:

Technique whereby a pty who owes something to 1 of 2 or more others but isnt sure which, may force them to arg outtheir claims among themselves rt now in this suit before coming to sue him.Its designed to prevent the pty from being made to pay the same claim twice . (prevents double liability) in Fed cts &most St. cts.

What it fixes: helps the difficulties for a stakeholder when multiple people have claimed an interest in (claimants) w/mult suits. It allows a person who claims an interest in prop or subj-matter to be brought (interpleaded) in to the existingcase.Hypo: Insur co is obligated to pay the beneficiary of dead man 1 mil. He married 3 diff women and now they all claimto be the beneficiary and have all brought separate suits in diff places against the same D. If they all win then Insur cowill have to pay out 3 mil, whereas it only really owes 1mil to 1 sole beneficiary

Case1.) P(wife1 in CA)D(insur)(stakeholder) = ruled for wife and its final j on merits2.) P(wife2 in OK)D(same) = same3.) P(wife3 in NY)D(same) = same

Here wife 2 or 3 cant be bound by wife1s case bc due process, not the same party.Due process: not bound by judgment unless youre a party to the litigation.So, insur. co could lose all 3 cases in separate actions and sep jurisdictions.

Interpleader allows the stakeholder (here, insurance holder) to become the P and sue all the claimants at the same timeand same place, ( bring in all claimants of stake)Advantage is when ct reaches decision, res judicata and only 1 D will win and later other Ds (D1,2,or3) cant sue onthe same interest. (Claimants)

(w1) (w2) (w3)

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D D D

P(Insur Co.)(Stakeholder)

Federal Practice: 2 sorts allowed:

1.) Statutory (1335) you usually want to use this one. Biggest diff. are w/ PJ & SMJ2.) (Rule 22) interpleader main diff from statutory- R22 no effect on ordinary jurisd & venue rqs

Issue Statutory (1335) Rule 22

1. Diversity SMJ:

a. Citizenship a. Min divers. Required a. Complete divers required theneed only divers bt/w any stakeholder on one side must be2 claimants (if that exists, diverse from all the claimants onthe citizenship of stake- the other.holder and other claimants Note:is immaterial. Decision to use stat vs. rule interpl-Note: since tashire, lower gen is based on the jurisd std youfed cts have found diversity satisfy both allow same type ofwhere all claimants are citizens suit.

of the same st but theyre alldiverse from the stakeholder.)

b. Amt in controversy b. value of the fund or the stake b. value of the fund or stake mustmust be at least $500.00 be greater than $75,000

2. PJ and Service of Process 2.Nationwide sop available 2. ct must have PJ over allclaimants and service must

meet rule 4 reqs

3. Venue 3.proper in judicial dist in 3. Governed by 1391which one or more claimants residence of any claimantsresides (if all from 1 st, dist where dispute

arose; dist where prop is; distwhere any claimant may be foundif no other basis for venue

4. Injunctions against 4. stat authority cts may 4. only possibility is sec 2283instituting competing enjoin other actions over (ct may do so where necessaryproceedings the stake under sec 2361 in aid of its jurisdiction.)

5. Deposit 5. required; 1335 5. not required; permitted R.67

Federal Statutory InterpleaderPerson holding prop which is claimed or may be claimed by 2 or more adverse claimants can interplead those claimants.

Jurisdiction problems: if not for pj & smj, a stakeholder could most of the time avoid double liability w/out interpleaderby joining (rule20) all potential claimants as Ds to a declaratory judgment suit concerning title to prop.3 jurisd probs prevent this: pj, diversity, and amt in controversy

How commenced: to begin suit, stakeholder, P must deposit into ct the amt of prop in quest, or post a bond for that amt.Rt to deny debt: although stakeholder must deposit prop in ct, he may claim at trial he doesnt owe $ to claimant at all.Other suits restrained: (to protect from double liability) a ct hearing this action can enjoin (prohibit) all claimants fromstarting or continuing any other action, in any st or fed ct which would affect the prop

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Diff in them: not what it does, its the way that Fed ct has smj to hear the interpleader action.Stat- changes diversity reqs, only need min diversity bt/w any 2 claimantsStat broad power for ct to enjoin pursuing actions

Federal Rule 22 InterpleaderWhenever a person is or may be exposed to double or multiple liability, he may demand interpleader. They can comeinto ct on there own initiativeas P, or by counter-claiming, orcross-claiming as D in an action already against him

Rule 22 less preferable, usually tougher to get into, but good when stakeholder wants in Fed ct and he (P) is diversefrom all claimants, but claimants not diverse from each-other. For smj, must satisfy traditional complete diversityAmt in controversy 75k+Service of proc meets rule 4Venue satisfy 1391Injunctive power less broadPJ usually no tap rob where suit is brought in state of stakeholderMin Contacts 1.) establish purposefully contacts in that state,

2.) cause or action must arise out of or relate to those contacts

RULE 22 Interpleader (Where you have competing claims to ONE item)

EX: Guy has a life insurance policy and has two wives; he doesnt specify between ex-wife and present wife.

Allowed because it may open person up to multiple and inconsistent judgments (liability). If interpleader is proper andthe stakeholder has no further interest in the suit, they can give the item to the court and wash their hands of the suit.

How do you assert the interpleader? (Counter-claim, cross-claim, third-party-claim)

NOTE: Claim preclusion parties to suit can not file again in a diff. jurisdiction.

INTERPLEADER IS RULE 22 (STATUTORY) or 28 USC 1335 (FEDERAL)

Want to use statutory when possible.

RULE 22:

a) must independently get into federal courtb) P (stakeholder) must be different than all Dsc) Must exceed $75,000d) Must get PJ over all

28 USC 1335:

a) 1 claimant must be from a different state than any other claimantcitizenship of stakeholder is irrelevant!!b) $500 or morec) It is a federal statute, so you have diversity over all UNLESS they cant be found or are out of the country.

NOTE: Interpleader courts have priority. They can enjoin a lawsuit that is already under way. The stakeholdermay or may not assert a claim. For example, if they dispute owing money or liability, they will place theirown claim.

Cohen v Republic of Philipines

C received paintings on consignment from B, Marcos agent. B then demanded the return of the paintings, but thePhilippines claimed the paintings were theirs. Not knowing who to give the paintings to, P filed an interpleader action.Marcos then motioned to intervene and the court allowed her to.

D(Bremer- former agent of Imelda) D(Rep of Philipines) D(Imelda) intervenes(NY) (foreign govt) under( Rt 24 a2)

P (Cohen)

(stakeholder paintings)

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(NY)

-painting is valuable, min diversity, so can take advantage of venue, pj and nationwide sopBehind the scenes Cohens attys see all possible people w/interest in paintings and see that Imelda cant be reached, sothey let her know the paintings might disappear and that they have no authority to bring her into ct, but you may want tocome in.Practical lawyering: let everyone in the case, or invite enemies in, bring in people w/ an interest that could hurt yourclient. Ex) invite them to fly to NY and then personally serve them.

??? hypo if claimants all diverse from ____, ______, ______note- If stat interpleader authority, broad author for ct to enjoin other proceedings and stop the other cases.If rule interpleader, cts wont enjoin other cases.

Advantages /Important diff b/tw them is in SMJ, PJ, NOTICE,

???Need for jurisd over both claimants: Interpleader only works well if the ct. has jurisd overboth (or all) claimants.If 1 or more claimants are absent, then whole purpose of interpleader to relieve stakeholder of paying claim 2 times isthwarted, Since the absentee will not be bound & can bring her own suit later.

Rule 24: Intervention :

Intervention raised by the absentee. Nobody invited me in suit, but I need to be here.- Allows certain persons not initially part of suit to enter/intervene on their own initiative- To permit an unwanted party to elbow her way into suit where no one wants her

INTERVENTION (RULE 24): As OF RIGHT and PERMISSIVEOn exam discuss permissive as well

Rule 24 (a) As of Right

Upon timely application, when either: (timely motion, memorandum & pleading)

1) A U.S. Statute confers an unconditional right to intervene; or

2) When the applicant: --3 part test--

(a) Claims an interest relating to the property or transaction which is the subject of the action; and

(b) The applicant is so situated that the disposition of the action as a practical matter may impede or impair theapplicants ability to protect the interest; and

(c) The existing parties will not adequately represent the applicants interest

Rule 24 (b) Permissive

Upon timely application, anyone may permissively intervene in an action when either:

1) A U.S. statute confers a conditional right to intervene ; or

2) An applicants claim or defense and the main action have a question of law or fact in common

Note: This type of intervention is discretionary with the court, which shall consider whether the intervention will undulydelay or prejudice the adjudication of rights of the original parties.

NOTE: 1) No set time but court will look at diligence in acting to protect his interests and prejudice.

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2) Intervener is bound by judgment BUT can not raise any new issues or broaden the scope of theaction

3) Supplemental jurisdiction for (as of right) but not permissive. BUT, personal jurisdiction isWAIVED by voluntarily seeking to participate.

2 types: (24a) Intervention as of Rt. , and (24b) Permissive Intervention

Goal: 1.) Strike bal. b/t party autonomy, and 2.) suit not compromise rights of absentee or othersFocus: only on rights of absenteeArgue Both (24a&b) b/c if only argue one, then on appeal, cant argue other if didnt bring it up at t.c.

(24a) Intervention as of Right if meet criteria MUST be allowed in.

Procedure: Can enter as a P or D1.) Upon timely application, File a timely motion to intervenea.) include a memo and reasons supporting why you should be there

b.) give a copy of the pleading you wish to follow if you get in and serve it to all ptys in suit(and the other ptys are allowed to raise objections to the ct, to you coming in)

Upon timely application, when either:1.) a U.S. statute confers an unconditional rt. to intervene,OR IF NO STATUTE, you must satisfy 3 part test:

1.) interest in subj. matter you must claim a significant, protectable interest relating to the property or transactionwhich is the subj-mater of the action; and2.) impaired interest you must show that resolution of the action w/o you might harm (impair or impede) your abilityto protect the interest; (You will suffer) and3.) inadequate representation the existing ptys will not adequately represent the applicants interest,(Nobody in thecase can adequately protect your interest) -- If you can show an indirect interest that will be affected w/ precedent fromthis case, you will probably get in, bc precedent could affect you in the future.

(24b) Permissive Intervention:

if dont meet 24a, but meet 24b, MAY be allowed in, always go w/ as of rt 1st bc its stronger and 2nd use permissive asa fall back motion.- You will be bound by the judgment once you intervene.

Upon timely application a person MAY intervene when either:1.) U.S. statute confers a conditional right to intervene; or2.) an applicants claim or defense and the main action have a Common quest of law or fact

Discretion of Ct. this type of intervention is discretionary w/ the ct, which shall consider whether the intervention willunduly delay orprejudice the adjudication of rts of the orig ptys-Discretion: since granting it is up to T.Cs discretion, T.Cs decision is unlikely to be reversed on appeal, so mostappeals deal w/ (24a).Stare Decisis affect: (24a) in 1 case stretched to require intervention of rt of pty who is interested in litig only b/c it mayset an adverse precedent whose stare decisis effect may later hamper him.

24a compared to Necessary Joinder criteria of intervention of rt are same as those require to be feasible under (19a)

(24c) Procedure to intervene: pty trying to intervene must serve a motion that memo of law & serve it to all other ptys,stating grds, and w/ copy of pleading of claim or defense for which you plan to file of intervention sought.-The same goes for when a US statute gives rt to intervene and draft it if you are a P or D.

?? Jurisdiction: outsider w/ permission to intervene must meet indep. SMJ requirements ( as in interv. Of rt.Situation)?? Jurisdiction: Indep. SMJ grds needed for interv of rt in a Diversity case. It does not fall in cts supplemental jursisd?? Diff for intervention of rt. no leave of ct needed for only permissive its up to cts discretionmost common statute (Intervention by U.S. (2403): allows fed interv of rt in actions involving the constitutionality of anact of congress.

(Natural Resources v. U.S. Nuclear):

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Natural Resources co (NRC) has been delegating when shouldntKerr McGee & (United Nuclear) (UN) are potential recipients of licenses, both have an interest & both want in the case,U.N. gets in, after Ker McGee & others want in also & devise b/c TC said there interest was adequately representedP(nrc) D1 (nuc. reg.)

D2 (nmeia)UN

UN allowed to intervene as a D under (24a) b/c current license holderFocus here : is there some protective interest that could be impaired or impeded & no one in suit is able to rep interestSteps: Ker McGee 1. protective interest license; 2. impairment could lose it3. anyone in suit able to protect and rep interest diff here is (Ker McGee) can arg there liceses to do bus, so UNs costof prod will be lower & thats why (Ker) & others want in now.Under Due Process: (Ker & others) not bound by judgements for other ptys or here (UN), but a ct in any substantivecase will use Stare DecisisHeld: Sup Ct. reverses & lets (Ken) & others intervene as of rt (24a) b/c interest not adeq repd.

(Martin vs. Wilkes):

Black public workers (firefighters sued the city for discrimination. The city entered in to a consent decree on anaffirmative action program. After this, white firefighters tried to sue, saying this consent decree was reversediscrimination. The lower court dismissed their claim, saying they should have joined under intervention since they hadnotice of the proceedings, so now their lawsuit is barred. The higher court reversed, saying notice was not enoughintervention is not compulsory, so these white firefighters did not HAVE to join the lawsuit.

** This case was overturned by legislature in 1991. The statute prohibits a collateral challenge to a consent decree ina civil rights case complaining of employment discrimination if the challenger is a person who, prior to the entry of[the consent decree] had:

1) actual notice of the proposed judgment

2) a reasonable opportunity to present objections to such a judgment orderOR;3) a person whose interests were adequately represented in the first action.

White firefighters sue city for discrimination in favor of blacksSupreme Ct held: if not a party to an action, they cant be bound by judgment even if they knew& were invited & chosenot to come.Mere notice & opportunity in a case not enough to bind you on the judgment of that case.cant force you into a suit where nobody tried to bring you in as a nec pty, so ct wont force them into a suit. (idea from

Due Proc)Unless someone brings you in on (19), then ct cant force you in

Rule: a party cant bind another pty or force that pty to intervene under Rule 24. The only way you can enforce ajudgment against someone who does not seek to intervene on their own is to join that absentee as a pty under anotherjoinder Rule(s).If choose to intervene then o.k., but not bound by judgment if dont come in

Significant when a racial or other grp args an employer is discrim against it, employer and/or Ps should join all thosenot part of Ps racial & other grp as 19 nec ptys. If not then the 3rd pty workers may be able to undermine any ct ruling orsettlement many yrs later by claiming the ruling unfairly impacts their own rts.

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CLASS ACTIONS (Rule 23)Class action will bind everyone who was a member of rep class of named parties.How a class is initiated:

1.) They bring suit for themselves - File a complaint, Named reps get together and file a complaint2.) Bring suit for all others to get certified - File a petition forclass certification, where they define a proposed class andask for certification of it

One or more members of a class may sue or be sued as representative parties on behalf of all class members if: (meetsall reqs):

**MUST BE CERTIFIED BY THE COURT**

1. The proposed class action satisfies all four requirements of Rule 23 (a):

a) Commonality: there are questions of law or fact common to the class;(Greatest degree of scrutiny)

b)Adequacy: the representative parties will fairly and adequately protect the interests of the class;

c)Numerosity: the class is so numerous that joinder of all is impracticable:(Usually 25 or less)

d) Typicality: the claims or defenses of the parties are typical of those ofthe class;AND

2. The class action must also meet two requirements that are not stated in this rule:

a) The class may be capable of definition; andb) The class representative must be a member of the class

AND

3. The class action must fit into one of the three categories of class actions specified in Rule 23(b):

(b)(1) Separate actions by or against individual members of the class would create a riskof:

a) inconsistent or varying judgments for members of the proposed class which would establish incompatible

standards of conduct for the party opposing the class ( the possibility of inconsistent judgments leading toincompatible standards); or

b) adjudications for individual members would as a practical matter be dispositive of the interests of othermembers not parties to the adjudications, or would substantially impair or impeded the nonparties abilityto protect their interests. (Impair Non-Parties Interest)

OR

(b)(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class,thereby making it appropriate for a court to grant final injunctive , orcorresponding declaratory relief forthe class as a whole.

OR

(b)(3) The court finds that questions of law or fact common to members of the classpredominate over questionsaffecting only individual members, and that a class action is superior to other available methods for the fairand efficient adjudication of the controversy.

In making this determination, the court will consider:

a) the interest of class members in individually controlling the prosecution or defense of separateactions (party autonomy concern); and

b) the extent and nature of any litigation over the controversy already pending; and

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c) the desirability of concentrating litigation over the controversy on one forum; and

d) the difficulties a court is likely to encounter if the suit is permitted to proceed as a class actionIn addition,

4. Under Rule 23 (c):

(1)(A) The court must determine by order whether to certify the class at an early practicable time.

(B) An order certifying a class action must define the class and class claims, issues or defenses, and mustappoint class counsel under Rule 23 (g).

(C) The court may alter or amend certification before a decision on the merits.

(2)(A) For any class certified under Rule 23 (b)(1) or (2), the court may direct appropriate notice to the class.

(B) For any class certified under Rule 23(b)(3), the court must direct to class members the best noticepracticable under the circumstances, including individual notice to all members identifiable with reasonableeffort.

This notice must concisely and clearly state in plain, easily understood language:

- The nature of the action,- The definition of the class certified,- The class claim, issues or defenses,

- That a class member may enter an appearance through counsel if the member so desires,- That the court will exclude from the class any member who requests exclusion, stating how and

when members may elect exclusion, and

- The binding effect of a class judgment on the class members under Rule 23(c)(3).

(3) Thejudgment in a class action under (b)(2) or (3) shall include and describe those whom the court finds tobe members of the class. The judgment in a (b)(3) class action shall include and specify or describe thoseto whom the notice provided in the section (c)(2) was directed, and who have not requested exclusion, andwhom the court finds to be members of the class.

(4) A class action may be brought as a class action with respect to particular issues, and the class may bedivided into subclasses, with each subclass treated as a class and Rule 23 applied to the subclasses as to aclass.

5. Under 23(e):

(1)(A) The court must approve any settlement, voluntary dismissal or compromise (a resolution) of the claims,issues, or defense of a certified class.

(B) The court must send notice to all class members who would be bound by a proposed resolution.(C) The court may only approve a resolution that would bind class members after a hearing and on finding the

resolution is fair, reasonable and adequate.(2) The parties seeking approval of a resolution must file a statement identifying the proposed resolution.(3) The court may refuse to approve the resolution unless the resolution would give individual class members

who had a previous opportunity to request exclusion but had not done soa new opportunity to request

exclusion.

NOTE: This would allow class members who stayed in to see what a resolution might look like, an opportunity toget out if they do not like the proposed resolution, avoiding res judicata on any judgment incorporating theresolution.

(4)(A) Any class member may oppose a resolution which requires court approval under Rule 23(e)(1)(a).

(B) Such objections can be withdrawn only with court approval

Under Rule 23(g):

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(1)(A) The court that certifies a class must appoint class counsel unless a statute provides otherwise.(B) The appointed attorney must fairly and adequately represent the class.(C) The court must consider the work done by counsel in identifying potential claims in the action, experience in

class actions and complex litigation, knowledge of applicable law, resources, and any other matters pertinent tocounsels ability to fairly and adequately represent the case.

(2) Specifies appointment procedure there may be interim counsel, the court must appoint the applicant best ableto represent the interests of the class, and the order appointing counsel may include provisions about costs andfees.

Under Rule 23(h), the court may award reasonable attorney fees and costs:

(1) A claim for fees and costs may be made by motion, and motions by class counsel must include notice toclass members.

(2) Class members and parties from whom costs and fees are sought may object to the motion.(3) The court may hold a hearing on the motion and state findings of fact and conclusions of law on the motion

under Rule 52(a).(4) The court may refer issues on the amount of the award to a special master or magistrate under Rule 52(d)

(2)(D).

Jurisdictional Issues:

a. Federal question jurisdiction is OKb. Diversityclass action, the citizenship ofnamed reps, parties that is pertinent. (All named reps on one side

must be diverse by named parties on other side.-It doesnt matter if member of class is not diverse

c. Amt in controversy (i) some courts amt only have to be satisfied by named reps individually (everynamed rep must show 75k+(ii) other courts only named parties need to satisfy the amt

Bottom Line at least named parties have to satisfy itSupplemental jurisdiction is OK to cover non party class members

Major points:a. With any class action you get notice to opt out at settlement.

b. If a member (not a named party) of class in 1, 2, or 3 and dont opt out, your bound by the judgment andits adjudicated.

c. Courts problem w/ class-actions: attorneys who settle and keep quiet so the class loses and the attorney

wins at the detriment of the classd. New req: ct may as a condition to judges entry of settlement, opt out once youve seen the settlemente. Also, can make objections to proposed settlements and cant w/draw objection unless have court approvalf. Purpose of changes limit abuse and give class members option to be bound or not be bound in b3 case by

any settlement or resolution that affects verdict of the class.

g. Under 23(c) In a (b)(3) case, in the Notice: Thecourt must tell you that you have right to retain yourcounsel to enter an appearance for them and, the Notice must tell you the court will exclude you fromclass if you request exclusion and tell you what to be excluded. (1st chance to opt out)

h. Must id all who request exclusion in a b3 case

i. 23(e) made to id when collusive; ct must send notice of a resolution to all class members who would bebound by proposed settlement. (2nd chance to opt out) and no res judicata on you.

j. 23(g)counsel must be adequate no relationship w/ themk. 23(h) ct may award reas atty fees and costsl. 2 chances to opt out: 1.) when get notice, 2.) judge settlement

(Communities for equity) - Top players not want change. They were recruited better w/sports in diff seasons. Rigorousanalysis: commonality issue of whether D acted individ of title 9 is good, typicality who could resolve issues, adeq ofrep D will adeq. rep those who like status quo. Granting some relief may require less relief for others, so subclasses

(Heaven) Standard of Review to overrule lower court on class certification is Abuse of Discretion only way a higherct will overturn it (hard to get a reversal ) Bank made a good move to get cert denied, they counterclaimed showing

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actions that arent common will mess up litigation and need to deal w/ these individually Held: class action not thesuperior method to deal w/ problem. Here would have been possible w/ subclasses(Hansburry) This was a put up job to make a decision binding.

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DISCOVERY AND DISCLOSURE OVERVIEW

3 burdens for a case:1.) pleading st a claim, minimal requirements2.) production ( focus on this in discovery)3.) persuasion decided by trier of fact, only after you carried it on #2 (burden of production)

a. If you properly state a claim or defense you must provide some evidence of your every claim or defense.b. The way the burden of production is challenged by the other pty is w/ a motion for summary judgment.

Ex. here, D has burden to show no evid. for P to have met his burden of prod.c. Hypo: P has one witness ( a drunk convicted of perjury 3x and overdue for eye check-up bc 2100 vision eyes are

bad) saw green light for P. D has 4 witnesses (priests) all see light red for P. Ct will say P has some evid, it doesnthave to be good, trustful evid, bc trier of fact decides weight to be given to evid.

d. Discovery- flesh out case here, not in pleading phase. Ptys get to know all the strengths and weaknesses here. If youuse discovery process properly, youll have all info needed for all quests of both sides.

Discovery has impact on what you say in complaint bc scope is 26(a)(1), that relevant to the claims in the case.Where P has been specific in discovery, D gets to arg too broad of discoveryThe less specific the pleadings = broader discovery givenThe morespecific the pleadings = then P has better arg to limit it to D bc of Relevance

Discovery Plan (what your thinking)

1.) Who has info?2.) Is it discoverable?3.) If so, how do I get it?

4 Purposes of Discovery:

1.)Find and preserve evidence - Preserve (ex. get deposition of person right away if hell die in short time).2.)To evaluate your case- For settlement purposes, strategies, and tactics.3.)Avoiding Surprise (Of surprise witnesses or evidence). If used properly, you wont be surprised by any ofthe evidence.-If new witness and judge even allows it, you must let both sides ask quest and discover, so judge will stop the trial.-Only time surprise is allowed is because of your negligence (Ex not ask quest or didnt show up at deposition).4.)Isolate issues for trial (Refine & Isolate) (what issues that this case presents; parties can stipulate such)A.) Issues, claims, defensesB.) Which of elements of claims can we deem the parties agree upon? Most neglig cases arg about duty, not breach.

TOOLS AND METHODS OF DISCOVERYHow does a party gather information?

1) Rule 26(a)(1)(2) and (3) mandatory disclosures:

2) Depositions (Rule 30):

3) Depositions Upon Written Confessions (Rule 31):

4) Interrogatories to parties (Rule 33):

5) Production of Documents/Entry Upon Land (Rule 34):

6) Physical and Mental Examinations of Persons (Rule 35):

7) Requests for Admissions (Rule 36):

Enforcement and Sanctions (Rule 37 and others) What happens if a party refuses to comply?

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I. DISCLOSURE OBLIGATIONS:These must be given to the other party at the discovery conference or within 14 days thereafter, unless a different tie isagreed to by the parties. Any party first served or joined AFTER the discovery conference must make disclosures within30 days of being served or joined. (If one party does not provide disclosures, the other party still has to!)

What must you disclose under Rule 26 without the other side asking?

INITIAL DISCLOSURES

A.) What must parties disclose under Rule26 (a)(1)?

1.) Witnesses: Name and, if known the address and phone # ofall witnesses likely to have discoverable info thatthe disclosing party may use to support its claims or defenses, UNLESS solely forimpeachment, identifying the subjects of the info.Dont have to provide if party is just to break credibility.

2.) Documents and tangible things That a party plans to use:A copy of , or a description by category and location of, all documents, data compilations, andtangible things in the possession, custody, or control of the party and that the disclosing party mayuse to support its claims or defenses, unless solely for impeachment.

Documents are everything from printed and written papers to photos, videos, sound records, email.

3.) Damages: A party who is seeking damages must disclose the basis for those damagesComputation of any category ofdamages claimed by the disclosing party, making available forinspection/copying as under rule 34 the documents or other evidentiary material NOT privilegedorprotected from disclosure, on which such computation is based, including materials bearing onthe nature and extent of injuries suffered.

4.) Insurance: A party (usually D) must disclose any insurance policies that would apply in the case of ajudgment in the case.For inspection and copying as under rule 34, any insurance agreement under which any personcarrying on an insurance business may be liable to satisfy part or all of a judgment which may

be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Only have to DESCRIBE documents: For documents D has choice bt/w furnishing copies or just a description by

category and location of the docs

EXCEPTIONS

8 Categories of proceedings exempt from initial disclosure:i. action for review on administrative record;ii. petition for habeas corpus or other proceeding to challenge a criminal conviction;iii. action brought w/out counsel by a person in custody of the U.S., a state, or a state subdivision;iv. action to enforce or quash an administrative summons or subpoena;v. action by US to enforce or recover benefit payments;vi. action by US to collect on a student loan guaranteed by the USvii. proceeding ancillary to proceedings in other cts;viii. action to enforce an arbitration award

B.) When must parties make these 26(a)(1) disclosures?

Timing for 26(a)(1) disclosures: + (rd 26(f) and 16(b) see p497 n.2Timeline begins when D has been served or appearedService: when D served or waived formal service w/ rule 4(d)Appearance: Ds filing a paper or motion that evinces its participation in lawsuit (it includes an answer or various12(b) motions

A. Rule16(b): Within 90 days after Ds appearance and 120 days after service, judge shall hold ascheduling conference to discuss the way discovery and other pretrial matters should proceed.

B. 26(f): Parties have a discovery related meeting and other pre-trial matters without the judge as soon aspracticable, and at least 14 days before a scheduling conference is held.

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C. 26(a)(1): Parties at there meeting or w/in 10 days after, must exchange disclosure lists.NOTE: The parties exchange disclosures at least 4 days before the scheduling conference and at least 4months after the complaint is served on the D.More Commonly, where D has appeared, disclosure will occur no later than 85 days after that appearance.

26(a)(1) disclosures occur unless the parties have otherwise agreed or the court has otherwise ordered.

26(a) permits parties by agreement or ct by local rule applying to categories of cases, or an order entered in theparticular case, to dispense w/ required disclosure.Ex. cts may want to exempt social security claims cases where the amts at stake are small and the facts are wellknown to both ptys.

26(a)(1) A party 1st served or joined after the 26(f) conference must make these disclosures w/in 30 days after beingserved or joined unless a diff time is set by stipulation or ct order.

A party must make its initial disclosures based on info reas available to it, and is not excused from making thesedisclosures bc it hasnt completed its investigation of the case, or bc it challenges the sufficiency of another ptysdisclosures, or bc another pty has not made its disclosures.

Rule 26(d) Parties may not use other forms of discovery depositions, interrogatories, etc. until after the 26(f)conference.In such districts the other forms of discovery usually come into play after the initial disclosures.In districts not using disclosure, the 26(f) meeting usually triggers the 1st round of discovery requests.

C.) What must parties disclose under 26(a)(2)? Disclosureof expert testimony:

Any expert who may be used at trial

a.) Identity: a pty must give a list identifying each such expert who may be called at trial automatically, w/out arequest from other side

b.) Report: Pty who intends to call an expert witness must have the expert prepare and sign a report containing:i. A complete statement of all the experts opinions to be expressed and the basis for them;ii. The data/other info considered by the expert in forming the opinion;iii. Any exhibits to be used by her at trial to summarize her opinions;iv. Herqualifications (including a list of all publications authored by her w/in the preceding 10 yrs);v. The compensation she is receiving for her testimony; andvi. A listing of any other cases in which she has testified as an expert w/in the preceding 4 yrs.

D.) When must these 26(a)(2) disclosures must be made?

i. At the times AND in the sequence directedby the court;ii. In the absence of directions from ct OR stipulation by the ptys, theyll be made at least 90 days before trialdate, OR the date the case is to be ready for trial; ORiii. If the evidence is intended solely to contradict or rebut evidence on the same subject identified by anotherexpert, that report is due w/in 30 days of receiving the other partys expert report.iv. Partys shall supplement these disclosures when required undere(1)

Duty to supplement: a party must supplement any disclosure made by that partys expert who will be called at trial. Ifexpert changes his opinion or other aspect in the report, the party sponsoring that expert must disclose the change.

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PRE-TRIAL DISCLOSURES

E.) What must parties disclose under 26(a)(3)?

A party must provide other party and properly file w/ct this info regarding evidence that it may present at trial other thansolely for impeachment

1.) Witnesses expected to be used AND Witnesses that may be called if need arises:(name, and if not previously given, address,phone#)

2.) Witnesses whose testimony is expected to be presented w/ Deposition, And if not taken steno graphically,a transcript of the pertinent portions of deposition

3.) Identification of each document/exhibit w/ sums of other evid which the pty expects to use as a trialexhibit AND those which the pty may use if need arises

F.) When must they make these 26(a)(3) disclosures?

30 days before trial UNLESS otherwise directed by court. You must object within 14 days of receipt.W/in 14 days after Unless otherwise directed by ct, a pty may serve and promptly file a list disclosing:

i. any objections to the use (under rule 32(a) of a deposition designated by another pty under 26a(3)(B), andii. any objection , along w/ grds for, that may be made to admissibility of materials identified under 26(a)(3)(C).

Objections not so disclosed, other than objections under rules 402 & 403 of fed rules of evidence, are waivedUNLESS excused by the ct for GOOD CAUSE.

G.) How do partys make these 26(a)(1),(2), & (3) disclosures?

Form of Disclosures

In writing, signed, and served; UNLESS the ct orders otherwise.

I. SCOPE OF POST-DISCLOSURE DISCOVERY (Rule 26(b)(1) Can you discover the info or material you seek?

RELEVANCE - 26(b)(1)

1)Gen Rule:Parties are entitled to take discovery on any matter, not privileged, that is relevant to the claim ordefense of any party.

2) It expands the scope of what is subject to discovery subject to the courts discretion, as it permits discovery forGOOD CAUSE, the court may order discovery of any matter relevant to the subject matter.

A. Who has the info?B. Is it discoverable?C. How do I get it?

Relevance Test Rule 26 (b) (1):

Is the matter sought to be discovered evidence? (at trial)OR

Is it reasonably calculated to lead to discovery of admissible evidence?

**this is a broad rule and will be upheld unless there is good cause to protect a party against

1) annoyance2) embarrassment3) oppression4) undue burden or expense

Discoverable vs. Admissible Scope of discovery is broader than the scope of admissibility

Relevant information need not be admissible at trial, if the discovery appears reasonably calculated to lead to thediscovery of admissible evidence

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Blank v Sullivan & Cromwell (1976): In an action for sex discrimination in hiring, advancement policies of the D arerelevant.

Steffan v Cheney (1990): The court did not allow evidence of whether the guy performed homosexual acts in the navalacademy. This was not relevant to the wrongful discharge that was based on a superiors inquiry as o whether he washomosexual. This probably was not allowed because it ws very personal and private.

Stalnaker v Kmart Corp. (1996): Sexual harassment case dealing with relevance of the accuseds voluntary sexual actsbeing relevant! (Up to the individual judge)

Discoverable vs. Admissible

Certain information may be inadmissible at trial, but highly relevant, and discoverable, as it may lead to the discovery ofadmissible information. This can include hearsay statements, the identity and whereabouts of witnesses, objective legaltheories on which a party will rely (but not mental impressions, subjective thoughts, opinions or conclusions ofattorneys) and other types of leads.

**NOTE** Duty to Supplement:

Once you make a disclosure or respond to a request for discovery, you have a duty to supplement your disclosure ordiscovery response under Rule 26 (e), if you learn the disclosure or response is incomplete or incorrect, and if theadditional or corrective information has not otherwise been made known to the other parties during the discovery processor in writing.

RELEVANCE:

(Blank) & (Steffan) cases were decided before the recent amendments to rule26, so the courts there evaluated whether topermit discovery under the old relevant to the subj matter of the action std.Today, material that is relevant to the subj matter of the action is discoverable only upon a showing of good cause.Cases are still useful to show how cts apply the relevant std.

Exceptions to what is discoverable:

1.) Material that is Irrelevant to the claim, defense, or the subject matter2.) Privileged material3.) 26(b)(2) Limitations4.) Trial Preparation material (Work Product)5.) Non-testifying expert6.) Material subject to a Protective Order

1.) Irrelevance Relevancy for discoverability is so broad, it is difficult to argue irrelevancy. Look at how you aredefining the claim or defense (or upon good cause, the subject matter of the pending action.)

2.) Privileged This refers to formal, recognized evidentiary privileges as defined by substantive law. This exceptiongen bars the privileged source not necessarily the info; privilege does not protect confidential or private info.Where a privilege protecting disclosure of material exists, that material is not subject to discovery even though it may bevery relevant. Here the parties are not entitled to discovery if a privilege would protect such material from disclosure attrial.Examples: attorney- client, physician patient, and psychiatrist patient

3.) 26(b)(2) Limitations: The frequency or extent of use of the discovery methods otherwise permitted under these rulesand by any local rule shall be limited by the court if it determines:

26(b)(2)(i):Discovery sought is unreasonably cumulative or duplicative, is obtainable from some other moreconvenient, less burdensome, or less expensive source;26(b)(2)(ii):The party seeking discovery has had ample opportunity through discovery in the case to obtain theinfo sought; (court may put time limits on discovery)26(b)(2)(iii):Burden of discovery outweighs the likely benefit, considering the needs of and the amount incontroversy in the case, the parties resources, the importance of the issues at stake in the case, and theimportance of the proposed discovery in resolving the issues. (Court can limit unnecessarily expensivediscovery).

4.) Trial Preparation Material (Work Product) Rule 26(b)(3): material prepared by counsel or counsels agents inpreparation for trial, including expert opinions retained by counsel solely for trial preparation.

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This protects documents or tangible things prepared by a partys attorney, the party, or the partys representative, inpreparation or anticipation of litigation but the protection is QUALIFIED; your opponent may get discovery offactual work product upon strong showing of:

1) substantial need to prepare their case--and that the--

2) party is unable without undue hardship to obtain the info, or thesubstantial equivalent of the material by other means.

----- Compare this with OPINION work product (attorney work impressions and strategies) which can enjoy an absolute

immunity from discovery. -----The immunity can be virtually ABSOLUTE for the mental impressions, subjective thoughts, opinions or conclusions ofattorneys. See Hickman. A witness who gives a statement is entitled under Rule 26(b)(3) to a copy of the witnessstatement (but the witness may not get it until the witness gives a deposition.)

5.) Non testifying expert Rule 26(b)(4)(B) Generally, facts known to, or opinions held by, non-testifying experts(experts retained for consultation and case preparation purposes, who will not testify at trial).Protects consulting experts from discovery so long as the expert is not also a fact witness (who then would be subject tonormal discovery and disclosure). Just like the work product exception, the non-testifying expert exception is notabsolute and such experts may be discovered upon a showing of exceptional circumstances by your opponent wherebyit would be impracticable for your opponent to get duplicative facts or opinions by other.--If you request a copy of an examiners report under Rule 35(b), this will act as a waiver for all of your non-testifyingexperts who examined you for the same condition.

6) Material subject to a Protective Order Rule 26(c):Limiting evidence discoverable (only 1 defense attorney can see it)

To protect a party from annoyance, embarrassment, oppression, or undue burden or expense, the court may alwaysissue a protective order to limit or prohibit discovery.

Rocket Docket: 6 months from discoverywill deviate only for good-cause(Lets move this case)

**NOTE**

Is the amount of Defendants money relevant? Usually irrelevant BUT can be discovered FOR:

1) Punitive Damages: Have to know what it takes to hurt him or teach him a lesson.2) Insurance Policy Limits (26(b)(2)): Not really relevant but allowed because to may encourage settlement.

II. METHODS: How can you get the information or material you seek?

A. General Rules:

1. With the exception of depositions (both oral and written), you may only direct discovery tools againstparties.2. Unless authorized by local rule, court order, or agreement of the parties, the discovery tools may notused until the parties have theirRule 26(f) conference.3. Every written discovery request, response, and objection must be signed by the lawyer preparing it Rule 26(g); and such signatures certify that to the best of the lawyers knowledge, information, and belief,formed after a reasonable inquiry that the request, response, or objection:

a. is consistent with the rules and existing law;b. is not being done for any improper purpose; andc. is not unreasonable nor unduly burdensome, given the needs of the particular case Rule 26(g)(2)(A)(B)(C). (Compare this to the similar certifications required for every disclosure made

pursuant to Rule 26(a)(1) and (a)(3) under 26(g)(1).)

B. Specific Methods/Tools:

1. Depositions-- (Rule 30): (For Party or Non-Party)1) You must give proper notice of deposition to the deponent and every party, including the method of

recording testimony.

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2) You can depose a party or nonparty (you can direct Rule 45 subpoena for a nonparty).3) Each side is limited to:

a) 10 depositions (Rule 30(a)(2)(A)b) 7 hours maximum each (Rule 30(d)(2)

4) Rule 30(b)(6) notice when deposing a corporation:(You can serve notice (or a subpoena to a nonparty) simply to a corporation and describe with reasonableparticularity in the notice or subpoena the subjects on which you wish to take testimony. The corporationthen designates a representative or representatives to testify on the subjects described.

5) Depositions must be taken before an officer authorized to administer oaths.6) You can require a party to bring documents to a deposition by directing a request for production. (Rule

30(b)(5) Rule 34 procedure applies)You can require a non-party to provide documents at deposition by using a subpoena duces tecum. Rule 45

7) Oral examination is conducted as if at trial.8) Other parties may state objections for the record, such as the qualifications of the officer taking the

deposition, the manner taking it, the evidence presented, or to any other aspect of the proceeding. Thedeposition proceeds with testimony taken subject to the objections.

9) An attorney may instruct the client not to answer a question during the deposition only when necessary:(1) To protect a privilege;(2) To enforce a limitation imposed by the court on the scope of the deposition; OR(3) In connection with a decision to seek a protective order because the deposition is being

conducted in bad faith or to annoy, embarrass or oppress the deponent or part. Rule 30(d)10) Some objections are waived if not made at a deposition, others are not. (Rule 32(d))

(1) Objections to relevancy are not waived unless the problem could easily be removed if the

objection is raised at the deposition.(2) Objections to the form of a question, to the oath, to party conduct and other errors are waived if

not made at the deposition, but the parties may stipulate to preserve all objections for trial(where parties may raise for the first time objections arising out of the deposition) or to require allobjections be made at the deposition (meaning any objection not made at the deposition is waivedat trail.)

11) Sanctions are available for misconduct in the deposition process.12) A. Depositions may be used at trial as follows:

(1) Any deposition may be used to impeach (a witness) the testimony of the deponent as awitness if he made any prior inconsistent statements.

(2) A partys deposition may be used for any purpose (including a swat upside the head)

B. Nonparty depositions may be used by a party for any purpose only if:(1) The witness is dead, OR(2) Unable to be subpoenaed, OR(3) Otherwise unavailable or in exceptional circumstances

Without seeking permission, the total number of depositions taken by one side (plaintiff(s), defendant(s), third-partydefendant(s)) may not exceed 10, and no person may be deposed a second time without the permission of the court or theother side.

2) Depositions Upon Written Questions -- (Rule 31):

3) Interrogatories to parties (Rule 33): (PARTIES ONLY) 25 per party1) You can only direct them to a party; limited to 25 questions (unless the court orders, or the parties agree to,

more), including subparts.2) They are signed by the party/person answering them, but objections are made and signed by the attorney.3) Answers to interrogatories are due within 30 days (you may opt to produce business records Rule 33(d).)4) Failure to object within 30 days may waive the objection, absent written agreement of the opposing side or

good cause shown to the court.

4) Requests to Produce/Inspect (Rule 34) (Entry Upon Land):a. Only available against parties (use asubpoena duces tecum to get records from a non-party.)

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b. You can produce documents and things as they are kept in the ordinary course of business or organize and labelthem to correspond with categories of the request.c. The attorney signs as to objections (overly broad, burdensome, etc.)

5) Physical and Mental Examinations of Persons (Rule 35):

a.) You need a court orderYou must show good cause (party asking for exam)and that the conditionto be examined is in controversy.

b.) The person to be examined may be a defendant or a person in the partys custody or legal control, and theyneed not be the person who put the condition in controversy. See Schlagenhauf.

c.) If an examined party requests a copy of the examiners report, that party waives objection to discoveryregarding any person who has examined that party for the same condition, including, of course, non-testifying experts.

Scalgenhauf v Holder (1964): They did not allow the exam of a bus driver because it was never fully alleged that hiscondition was in controversy.

6) Requests for Admissions (Rule 36):

a.) Conclusively establishes the matter for this litigation only.b.) Matters are deemed waived if the party receiving the request to admit does not respond or object within 30

days after service, unless the court gives more time or the other agrees to it.c.) Failure to admit something later proven at trial may result in an order to pay the other parties reasonable

costs of proving the matter.

**NOTE**WATCH OUT FOR THIS GETTING TESTED WITH COLLATERAL ESTOPPEL

III. ENFORCEMENT AND SANCTIONS (Rule 37 and others): What can you do to ensure you get what you seek?

What happens if a party refuses to comply?Rule 26 (g) is discoverys version of Rule 11. Rule 26(g) says that every discovery request, response or objection must

be:

1) in good faith (usually called the certification statute)2) proper purpose

1. Rule 37

a. Rule 37 (a) provides formotions to compel for failure to make disclosures or cooperate in discovery.

i.) You must first show a good faith attempt to resolve the dispute (you must certify you have conferredor attempted to confer) if you are not successful, you may file a motion.ii.) The winning party gets expenses unless there has been no good faith effort to resolve the matter withoutthe court, the non-disclosure, response or objection was substantially justified or other circumstances makesuch an award unjust.

b. Rule 37 (b) - If the court grants a motion to compel and a person violates an order requiring disclosure orcooperation, then the court may impose sanctions, including exclusion of evidence or witnesses or evenclaims or defenses; dismissal of the claim or entire action; or contempt of court and jail.

C. Rule 37 (c) provides that the failure of a party o disclose or to amend a prior response will, unless harmless,

preclude the party from relying on the information at trail and subject the party to other Rule 37 sanctions,including instruction to the jury of he failure to disclose.

2. Rule 26(g)

Rule 26(g)(3) empowers the court to impose an appropriate sanction (including monetary awards) forcertifications made in violation of the rule. Rule 26(g) sanctions may be sought in conjunction with Rule 37sanctions.

3. 28 U.S.C. 1927

This empowers the court to fine any attorney who unreasonably and vexatiously multiplies the proceedings(requires bad faith showing)

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4. The Courts Inherent Power

a. This is a common law doctrine empowering the court to manage its own affairs to achieve the orderly andexpeditious disposition of its cases; but this, too, requires a showing ofbad faith (wanton, willful) conduct beforesanctions will be imposed.

5. Rule 30

Rule 30(d)(2) allows the court to sanction any party who impedes the fair examination of the deponent (but itsNOT against the rules to be obnoxious.)

6. Rule 26(c) Protective Orders

To protect a party from annoyance, embarrassment, oppression, or undue burden or expense, the court mayalways issue a protective order to limit or prohibit discovery.

7. Rule 26(b)(2)(i) (ii) and (iii)

a. Rule 26(b)(2)(i) - requires the court to limit discovery which is unreasonably cumulative or duplicative or isobtainable from a less burdensome source;

b. Rule 26(b)(2)(ii) - the court may put time limits on discovery; andc. Rule 26(b)(2)(iii) - the court can limit unnecessarily expensive discovery.

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ADJUDICATION WITHOUT TRIAL OR BY SPECIAL PROCEEDING

RESOULUTION WITHOUT TRIAL

(There are a number of ways that a case may be concluded without reaching a final decision by a judge or jury. It maybe voluntarily dismissed, involuntarily dismissed because lack of evidence, settled, arbitrated, etc.)

Motions for Summary Judgment

Timing:By a claimant - 56(a): Can move at any time after the expiration of 20 days from the commencement of the action orafter service of a motion for summary judgment by the adverse party, with or without supporting affidavits.

By a defending party 56(b): Can move at any time, with or without supporting affidavits.

Process and Standard:1) Parties may submit affidavits in support of, or opposition to, a motion for summary judgment. The court willconsider such affidavits (which can include exhibits and supplemented by discovery responses), as well as the pleadings,depositions, answers to interrogatories and admissions on file.

2) The court will grant summary judgment for the moving party if all the material properly before the court establishesthat there is no genuine issue as to any material fact and that the party thus is entitled to summary judgment as a matter

of law.

a. A genuine issue exists where the evidence presented could permit a reasonable jury to return a verdict forthe non-moving party. A mere scintilla of evidence or evidence that is only colorable or notsufficiently probative will not prevent a summary judgment.

b. The court will test whether a genuine issue exists by looking to the quantum ofproof needed to support afinding of liability under the substantive claim. (For example, if the burden of proof requires plaintiff to

prove the case by clear and convincing evidence, the court will assess whether the evidence in the recordwill allow a rational finder of fact to find that plaintiff has established the claim by clear and convincingevidence)

c. The materiality of a fact depends on the substantive law governing the cause of action . A fact is material ifit may have an outcome on the case.

d. Courts should grant a summary judgment where the non-moving party has failed to show a genuine issue

exists on any essential element of the case.e. The moving party has the burden of persuasion and must make a prima facie showing that summaryjudgment is appropriate.(This does not require disproving the opponents claims or defenses, but merely pointing out a lack ofevidence to support the non-moving partys claims or defenses. The non-moving party then has the

burden of going forward to show that there is a genuine issue of material fact. Where the moving partypresents direct evidence on a point, the mere existence of a plausible scenario to support a contraryposition on the point is insufficient)

f. Courts never weigh the evidence or find facts in ruling on a motion for summary judgment. The court willonly examine whether a genuine issue exists as to material facts. The court will treat as true for purposes ofthe motion all evidence of the non-moving party, will resolve all doubts against the moving party, willconstrue all evidence in the light most favorable to the non-moving party and will draw all reasonableinferences in favor of the non-moving party.

g. The court will not weigh the credibility of witnesses or other evidence in ruling on a motion for summaryjudgment.

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THE BURDENS AT TRAIL PRODUCTION AND PERSUASION

The party asserting a claim must satisfy two burdens at trial:1) PRODUCTION: to get the trier of fact to weigh evidence and creditability2) PERSUASION: which depending on the applicable standard, is either preponderance of the evidence (more likely

than not) or by clear and convincing evidence.The burden of production is the burden of coming forward with evidence from which a rational trier of fact couldconclude some proposition of material fact. (Satisfying the burden of production means only that a trier of fact mightrationally decide the case in ones favor not that it must.) Satisfying the burden of persuasion means you have

persuaded that trier of fact that, weighing all the evidence including creditability, you should prevail on every element ofyour claim, to the applicable standard.

INFERENCES:

REID:Where there are two or more rational explanations for proximate cause and there is no evidence presented on either, theS/J or JML is appropriate because the non-moving party will have failed to meet its burden of production and it would beimpermissible to allow an inference on just one of the potential causes when the other is just as likely.

Chamberlain:If the court was weighing Bainbridges testimony against the other three railroad employees, when its decision waswrong; but if Bainbridges testimony was discounted altogether, as the Court suggests, then there was no weighinggoing on and S/J or JML would be appropriate because the P would not have produces an evidence to meet her burden of

production.BURDENS

Burden: How its enforced: What the court examines & when:

Burden of Pleading

12(b)(6)(failure to stat a claim) -The court looks only at the pleadings it asks if everythingasserted is true, has P stated a claim (question of law)

12(c)(judgment on pleadings) -Can be raised at any time before final judgment

Burden of Production

Motions for S.J., Pre-and post-Trial JML and for New Trial Evidence the court looks at whether the party with the

Burden of production has put forth enough evidence to meet

that burden-that is, could a reasonable jury find for that party?If the other side has also put forth enough evidence that areasonable jury could find for it, then there is a genuine issueof material fact in that instance, the trier of fact hasevidence to weigh, so granting any of those motions would beinappropriate. Whether the evidence is credible is not relevantto whether the moving party is entitled to a judgment as amatter of law.Summary judgment may be brought by a plaintiff any timeafter twenty days post service or after a motion for summary

judgment by the D; D may bring a motion for S.J. at anytime.The court can grant S.J. before the case has reached final

judgment, but typically these motions are brought after

discovery and before trial.JML motions may be brought at any time during a trail

before the case is submitted to the jury or after the verdict ifwithin 10 days of entry of the final judgment.New trial motions must be brought no later than 10 daysafter the entry of final judgment.

Burden of production: coming forward with evidence from which a rational trier of fact could conclude someproposition of material fact(Satisfying a burden of production means only that a trier of fact might rationally decide the case in ones factornotthat it must.)

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Burden of Persuasion

Civil cases have two possible burdens:1. By a Preponderance of the Evidence2. By Clear and Convincing Evidence

-Both present questions of fact, decided by trier of fact.-These involve questions of credibility and truthfulness of the evidence and witnesses and are notto be second-guessed or substituted.

Involuntary Dismissals (Rule 41 (b):Unless the court specifies otherwise, a dismissal is with prejudiceexcept when made pursuant to Rule 12(b)(1),(2),(3) or (7). Dismissals under Rule 12(b)(4),(5) and (6) thus are with prejudice unless the court specifies that they arenot.

Voluntary Dismissal - (Rule 41 (a)(1) and (2):

A. By Plaintiff without order of court:

1. Under Rule 41(a)(1)(i), Plaintiff may simply file a notice of dismissal at any time before an adverse partyfiles an answer ora motion for summary judgment whichever of the two occurs first (If either 1 or 2, need aleave of court).

(Allows a plaintiff to dismiss any time before the defendant answers; after that point the courts permission oragreement of the other side is necessary)

2. Under Rule 41(a)(1)(ii), If an adverse party has filed an answer or motion for judgment, plaintiff may onlydismiss voluntarily by filing a stipulation of dismissal signed by all parties who have appeared in the action.(Permits the plaintiff to dismiss a suit at any time if all parties agree)

3. NOTE: A dismissal under Rule 41(a)(1) is without prejudice, unless the court specifies otherwise, except anotice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissedin any court of the United States or of any state an action based on or including the same action.

B. By order of court:

1. Under Rule 41(a)(2), An action can only be dismissed at plaintiffs insistence other than under Rule 41(a)(1)upon order of court and under such terms as the court deems proper. If a counterclaim is pending, no dismissalagainst the defendants objection unless the counterclaim can remain pending for independent adjudication bythe court.(Authorizes a voluntary dismissal only by permission of the court; gives the judge broad discretion in decidingwhen to grant a voluntary dismissal after the defendant has answered)

2. NOTE: Unless otherwise specified, a Rule 41(a)(2) dismissal is without prejudice.

Default Judgments - (Rule 55):

The entry of a default judgment is a two step process:

A.) Entry of Default - When a party against whom affirmative relief is sought has failed to plead or otherwise defend asrequired by the Rules, and affidavit or other information establishes such failure, the clerk shall enter that partysdefault.

B.) Judgment by default(default judgment) can be entered in one of two ways:

1.) By the Clerk, if: (In rare circumstances)a. Defendant has been defaulted forfailure to appear (and is not an infant or incompetent person);

b. Plaintiffs claim is for a sum certain or for a sum which can by computation be made certain; andc. plaintiff has requested judgment and submitted an affidavit of the amount due.

2.) By the Court; in all other cases.(Will usually hold a hearing to determine damages/truth of the matters asserted)

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Setting aside an entry of default Rule 55(c) - Court may set aside default for good cause shown.

Vacating a default judgment Rule 60(b) - If judgment by default has been entered, the court may set aside inaccordance with the requirements of Rule 60(b).

NOTE: Default judgments and involuntary dismissals may present both claim preclusion and issue preclusion issues ifplaintiff starts over or if there is litigation on a closely related matter.

NEW TRIAL AND POST-TRIAL MOTIONS

50(a): Pre-verdict JML (motion for a directed verdict) -

Brought before the verdict, at the close of the plaintiffs case and/or at the close of the defendants case (but you mustbring at the close of all the evidence if want to preserve the right to bring a later post-verdict JML.

50(b): Post-verdict JML (motion for judgment notwithstanding the verdict, or JNOV):

Brought after the verdict, but only allowed if the party also made a pre-verdict JML at the close of all the evidence; maybe combined with a Rule 59 Motion for a New Trial.

JURY INSTRUCTIONS AND VERDICTS

1) Jury instructions are usually drafted by parties and read to the jury by the judge.

2) May request they be given certain instructions AND MAY OBJECT to the jury instructions if judge doesnt tellthem what you ant him to!OBJECT RIGHT AWAY or waived!!

ERROR IN INSTRUCTIONS

1) Appellate court must first determine that there was an errorAND

2) Then must decide if it was not a HARMLESS ERROR!

JURY VERDICTS: Unanimous required in federal courts unless parties stipulate otherwise (48)DOES NOT HAVE TO BE: 12may be 6!!!

GENERAL VERDICT:Unless specifically instructed otherwise, jury enters a general verdict for either P or D! This makes it harder forissue preclusion!

SPECIAL VERDICT:Court can require this. (49a)more detailed- instead of P or D wins, answer questions.

GENERAL VERDICT WITH SPEICAL INTERROGATORIES:The interrogatories are for the court to confirm that they are logically reaching their decision (not a mistake) (49b).

Ifinconsistent, judge may:

1) Enter judgment in accordance with the answers2) Ask the jury to consider its answers further3) Order a new trial

NOTE: If 1 is not consistent with 2, order a new trial.- Failed to engage in rationale deliberation about the case

JURY MISCONDUCT

Setting aside jury verdict: (by person not on the jury)1) Facts concealed on voir dire regarding prejudice of juror2) Jurors have received unauthorized evidence not based on actual evidence at trialjuror who doesexperiment and burns down house3) Jury failed to discharge its obligation to engage in rational deliberation about the case

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Avoiding Adjudication: (Alternative Dispute Resolution (ADR))

1. Negotiation and Settlement:

a. Contracting to Dismiss

The simplest form of settlement is a contract (sometimes called a release) in which the plaintiff (orprospective plaintiff) agrees not to bring a lawsuit or to drop one already filed. Most plaintiffs wantsomething, typically money, in return for such agreements.

Matsushita Elec. Industrial Co. v Epstein

28USC1738

b. Contracting for Confidentiality

Kalinaskas v Wong

Rule 59: Motion for a New Trial

1) You must bring it within 10 days of entry of the final judgment2) You may combine it with a post-verdict JML, in which case the court may conditionally rule on the new trialmotion if it grants the JML and is later reversed on appeal.

3) Grounds for a new trial: for any of the reasons for which new trials have heretofore been granted in actions atlaw in the United States.4) The granting of a motion for a new trial is not a final judgment.5) Even if no motion for a new trial, court may grant one on its own initiative.

Court may order a PARTIAL trial (on certain issues)

GROUNDS FOR A NEW TRIAL:1) Errors of law at the trial2) Verdict contrary to the great weight of the evidence

(Judge can not substitute their judgment for the jurys)3) Improper conduct by attorney, judge, jury member4) Discovery of SIGNIFICANT new evidence

5) Verdict was clearly inadequate or excessive

NOTE: Remittitur may be allowed...ADDITUR IS NOT!!!!Remittitur: If damages are excessive, court may ask plaintiff if he will agree to less money or else he

will have to go through a new trial and get nothing.

APPEALABILITY OF ORDER: Order denying a new trial is final.Order granting a new trial is interlocutory (trial continues), so it is NOT immediatelyappealable.

HOW ABOUT MOTION FOR RELIEF FROM JUDGMENT?

Usually youll see this in a default judgment case, but it is whenever a party tries to get out of the judgment renderedagainst it. (60)

GROUNDS FOR THIS ARE:

1) Clerical mistakes in the judgment2) Mistake, surprise or excusable neglect3) Newly discovered evidence that would probably change the result and could not have been discovered before.4) Fraud, misrepresentation, other party misconduct5) Judgment is void6) Judgment has been satisfied, released or vacated7) Any other grounds justifying relief

If for #1, motion may be made at any timeIf for #2-4, must be within a year of entry of judgment. Any other, within a reasonable time.

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TRAL:

JURY:

Juries are a constitutional right for LEGAL claims (money damages).BUT NOT FOR equitable claims (injunctions, specific performance, recission)How about if there are both equitable and legal claims involved?

GET A JURY! Unfair for you to lose JUST BECAUSE you have both type o