Civil Procedure II Outline
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Date Created: 02/13/14
English Common Law 9 Duplicity prohibition 9 prevented P from bringing more than one cause of action in court 9 In Scott V Shepard firecracker exploded and injury resulted to P and P brought 3 causes of action 9 Judge Blackstone said no only one cause of action is allowed 9 Judge Gould dissented and said that the P should be allowed to bring more than one 9 FRCP 8 repudiated duplicity prohibition following Gould s progressive approach Modern Pleading 9 In modem civil litigation there are very few surprises 9 new revelations or surprise witnesses is very rare 9 modem procedure has abandoned the notion of trial by ambush 9 its geared towards full disclosure in an effort to ferret out the truth 9 each party learns every contentionclaimdefense that the other party will make if the case goes to trial 9 purpose is to provide notice of a claim or defense 9 P must allege a cognizable claim in her pleading to get the case to go to trial otherwise the case can be dismissed at the pleading stage 9 After being sued the D must respond in a timely and proper fashion by making a motion or filing and serving a pleading usually called an answer 9 failure to make an appropriate response puts the D at risk of losing by default 9 issues properly asserted by the P in her complaint and denied by the D in her answer are said to be joined and the case can therefore go forward into the discovery phase of litigation of such issues 9 P must state a short and plain statement of the claim showing that the pleader is entitled to relief 9 2007 Twombly 9 provided that claimant must state facts supporting a plausible claim 9 a motion is not a pleading 9Under FRCP there are 3 pleading stages 1 complaint 2 answer 3 reply FRCP 8a A pleading that states a claim for relief must contain 1 a short and plain statement for the grounds of the courts jxn 2 a short and plain statement of the claim showing that the pleader is entitled to relief and 3 a demand for the relief sought which may include relief in the alternative or different types of relief 9 a complaint lacking these three requirements will be dismissed without prejudice or with leave to amend which means that the P is permitted to file an amended complaint in order to satisfy the requirements of 8a For FRCP 8a2 9 the court does not require detailed factual allegations but does call for sufficient factual matter accepted as true to state a claim to relief that is plausible on it s face 9 Plausible is defined as9 enough facts to raise reasonable expectation that discovery will reveal sufficient evidence 9 even if an essential element is not formally pleaded a complain is still sufficient if it is plausible that the plaintiff may prevail on the merits 9 Essentially for 8a2 if the P proved everything she has alleged in her complaint would she win 9 valid defenses are presented at trial besides defenses for motion to dismiss claim ie failure to state a claim upon which relief can be granted Iqbal 9 Threadbare factual allegations need not be presumed by the court 9 In the complaint legal conclusions must be supported by factual allegations 9 complaint must allege the transaction or occurrence that formed the basis of the cause of action Pleading Altemate or inconsistent allegations 9 cant plead inconsistent facts 9 a party can plead inconsistent legal theories as long as each altemative legal theory is set forth separately in a separate count of the complaint9 not a grounds for dismissal 9 must plead in Good faith Pleading Damages 9 diversity jxn case must be 75000 9 includes equitable reliefs such as injunctions speci c performance etc 9 Rule 54c9 P is entitled to recover whatever amount and relief that is shown appropriate at trial regardless of what she asked for in the demand 9 Exception however under 54c is that in the case of default judgment P is not allowed to recover more than the relief sought in her complaint FRCP 9g 9 P must plead specific damages but need not plead general damages 9 General vs specific damages General damages ow expectedly and naturally out of the nature of the cause of action damages that are generally to be expected from cause of action pleaded Specific Damages natural but not neccisarily and inevitable result of the wrongful act 9 special damages must be set out with particularility 9 failure to plead special damages will result in dismissal or to amend complaint and plead them in particularity 9 ie damages of high blood pressure does not usually result from a car accident therefore it is specific damages and must be plead before one can receive such damages 9 general damages9 general summation of damages is sufficient 9 failure to plead special damages will not result in dismissal Prayer for Relief 9 every complaint must contain a statement of relief to which the plaintiff deems herself entitled 9 failure to do this renders the complaint subject to dismissal 9 can be amended 9 damage award in excess of those pleaded is permissible if proof merits such damages FRCP 54c In the case of default by the defendant ie fails to answer the complaint or does not contest the action 99 damages cannot exceed prayed for amount 9 constructional limits Convertible Top Replacement Co V Aro Manufacturing FRCP 8a 9 a pleading must contain a demand for relief sought which may include relief in the alternative or different types of relief FRCP 10b 9 requires that as far as practicable each claim or defense of a pleading be limited to a single set of circumstances 9 failure to do this may be cured by motion to separate 9 almost never grounds for dismissal FRCP 12b6 How to present defenses Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required But a party may assert the following defenses by motion 99 6 failure to state a claim upon which relief can be granted FRCP 9b Fraud or Mistake Conditions of Mind 9 In alleging fraud or mistake a party must state with particularity the circumstances constituting fraud or mistake Malice intent knowledge and other conditions of a person s mind may be alleged generally 9 requiring the plaintiff to meet a rigorous burden of pleading fraud would be unfair especially where many of the matters are peculiarly within the defendants knowledge Public Securities Litigation Reform Act 9 Imposes super heightened standard of pleading fraud in securities cases Responding to the Complaint 9 20 days from service of the complaint9 Frcp 12a 1 9 failure to respond may result in default judgment FRCP 12 9 D can respond to complaint in two ways 1 by motion 2 by answer 9 can do both usually do motion to dismiss first then answer If motion denied D has 10 days to file answer FRCP 12b6 Responding by Motion 9 Failure to state a claim upon which relief can be granted 12b6 and failure to join an absentee under Rule 19 12b7 do not need to be made in the first response to the complaint 9 the other 4 need to be made in first response besides 1 FRCP 12c Motion for judgment on the Pleading 9 same as FRCP 12b6 but is brought after D has filed his first answer Motion to Dismiss 9 American Nurses 9 dismissal improper if there is a Glimmering of viable legal theory 9 if complaint does not make allegations that do not constitute the cause of action claimed it is still proper if another legal theory is sufficiently alleged 9 need not set forth complete and convincing pictures 9 Jones V Clinton motion to dismiss is not a device to test allegations or supporting evidence FRCP l2f Motion to Strike Motion to Strike 9 used to challenge pleading that include scandalous Impertinent or irrelevant matter 9 allegations will not be stricken from the complaint unless their presence will prejudice the adverse party which depends on whether the contents of the pleading will be disclosed to the jury 9 challenges pleading filed late as well 9 allows the court to strike an insufficient defense 9 may be as a matter of law or by failure to allege sufficient factual detail 9 can be used to determine an important issue early in proceedings like whether a jury trial should be granted Answering the Complaint 9 must respond to the allegations in P complaint and raise affirmative defenses 9 function is to avoid the allegations of the complaint either by 1 Admitting allegations 2 denying the allegations or introducing new facts that avoid the legal consequences prayed for in the complaint or 3 say the P lacks sufficient information on which to admit or deny has effect of denial 9 an allegation is admitted if a responsive pleading is required the allegation is not denied 9 failure to deny allegation is considered an admission of that allegation Denials 9 D may attempt to escape legal consequences by denying truth of the allegations 9 denying an allegation of something that D knows is true is violation of Rule 11 General Denials and Specific Denials 9 when party intends to deny only party of an allegation she must must either specifically deny designated allegations or generally deny all except those specifically admitted 9 General denials9 denies every allegation of the complaint and asks the P to show proof of the allegations 9 anything allegation not denied must be admitted 9 it is rare that a party can generally deny every allegation 9 Improper use of general denial FRCP 8c 9 In responding to a complaint the D must plead affirmative defenses 9 failure to raise an affirmative defense in a response pleading constitutes a waiver of that defense 9 in denying an allegation the D must allege an affirmative defense of truth 9 ie a fact that goes against the P allegations Taylor v US 9 court held that a statutory limitation on damages was not an affirmative defense reasoning that unlike the affirmative defenses listed in Rule 8c the statute limits but does not bar recovery for non economic damages Special Heightened Pleading Standard Freer pages 321326 9 Rule 9b 9 for fraud or mistake alleged or for special damages alleged 9 requirement must be raised by opposing party FRCP 8d Hypothetical and Inconsistent Pleading freer pages 326328 REPLY 9 reply by P is required only if the court orders one and they rarely do 9 P is require to reply to D answer only if it contains a counterclaim or when the court so orders Request to Amend complaint 9 When P wants to introduce new cause of action 9 there is no requirement that the amendment confine itself to the original legal theory sued on or even the same transaction or occurrence that formed the basis of the original cause of action 9 there are certain limitation to this however AMENDED AND SUPPLEMENTAL PLEADINGS freer starting page 343 Under FRCP 15 FRCP 15 a 9 Amendments by right by specialization and with leave of court By right9 must be done within 30 days of filing the complaint or answer Leave of court9 court looks if there are any dilatory motives in filing and whether there would be unduly delay if court allowed the party to amend its complaint 9 a party may amend its pleadingresponsive pleading once within 21 days after serving it 9 after making a first amendment to a complaint a party may only amend it again with the written consent of the adverse party or by leave of the court upon motion 9 leave of the court is freely given when justice so requires FRCP 15c 9 The relation back doctrine9 statute of limitationspg 130 in supplemental book Beek9 it s an abuse of discretion to deny amendment in the absence of some justification for doing so 9 failure to name correct defendant Amendments Adding Parties 9 FRCP allows amendments adding a new party to toll the statute of limitations against a new party if within the period for service of process the new party had actual notice that except for a mistake in identity she herself would have been named in the original complaint 9 Mistake concerning identity of a party 9 doesn t apply to cases where the P is unaware of D identity at time complaint was filed Variance 9 Variance between evidence in pleading and evidence introduced at trial is almost never grounds for automatic exclusion of the proffered evidence 9 rather leave to amend pleadings to conform to the evidence is within the courts discretion 99 amendments for this must be freely granted unless there is undue surprise to the opposing party 9 party may not make amendments raising a new claim or defense for which the opposing party had no opportunity to prepare and which would result in prejudice in maintaining his action or defense FRCP 15c 9 Amendments can generally relate back to the date that the original complaint was led Due Process Limitation 9 when a new D is added through an amendment the D must have an opportunity to respond to the claim and present a defense otherwise his due process rights would be violated 9 therefore a D cannot be added in a post verdict amendment SUPPLEMENTAL PLEADINGS FRCP 15d 9 not an amendment 9 its function is to call to the attention of the court and the opposing party occurrences directly related to the cause of action sued upon that have transpired after the filing of the original complaint 9 may be use to cure defects in the original complaint 9 can t add new causes of action in a supplemental pleading unless the cause of action was acquired subsequent to the supplemental pleading FRCP 11 amp SLAPP SUITS I FRCP 11 Done to Avoid Frivolous Lawsuits A Rule 11a Attorney must sign pleading motion or other paper filed with court B Rule 11b Challenged Pleading Make sure parties aren t lying or their attomeys 1 4 factors a No improper purpose for filing pleadingmotion b ClaimsDefenses are warranted by existing law or nonfrivolous argument for amendingchanging the law c Factual Contentions have evidentiary support or such support will likely be found upon discovery d Denials of allegations are supported by evidence or lack of information 2 Safe Harbor Provision a Before you file an 11b motion with court serve the opponent with papers for a motion to sanction opponent has 21 days to amendwithdraw challenged pleading wo court knowing or sanctioning C Courts hate these can impose sanctions on it s own 1 Rule 11c Order to Show cause why Rule llb hasn t been violated D Hadges Case Attorney made mistake by not invoking the Safe Harbor Provision Attomey doesn t have duty to confirm everything client tells them but make sure it s obiectivelv reasonable to a reasonable counsel or pleading has to be verified and you may be sanctioned II SLAPP Strategic Lawsuits Against Public Participation A AntiSLAPP motions Motion to Strike the SLAPP 1 For proponents must show Constitutionally Protected Activity in their actions Protesters 2 For D show that he s likely to prevail on the merits in order to survive the Motion to Strike B 2003 Revisions AntiSLAPP improper if SLAPP is brought in public interest Claims 1 Regular Claim P files a complaint against D 2 Counterclaims D files a claim back against P feels he also has been wronged Also can be a 3rd party D against D Compulsory Counterclaim FRCP 13a When served with complaint the counterclaimer must state any claim arising out of the same transaction or occurrence of the opposing party s claim Court must have jxn over the parties involved in this claim If you don t bring them now D 3rd Pty D may be barred from doing so in the future overlaps with Res Judicata Permissive Counterclaim FRCP 13b May be brought against an opposing party any claim which isn t compulsory Heyward Case Not always easy to determine whether claim arises out of same transaction or occurrence whether it s permissive or compulsory 3 CrossClaim Claims brought by different parties on the same side in a suit So D against another D or P against another P Common in cross claims also Must be claimed at the outset of the case if brought and must be related to the same case amp controversy as opposing claim Gibbs 1367 Alexander Case Cross claims related to compulsory counterclaims claims don t need to be identical just a logical relationship to treat them under the same light 4 Third Partv Claim When a D feels that somebody else is responsible for PS injuries so he brings in the person who he feels is actually responsible J OINDER 1 Claim J oinder FRCP 18 A A party bringing any claim discussed in the preceding section many join as many claims as it has against an opposing party B FRCP 42b Separate Trials Severance 1 Court for purposes of convenience efficiency and to avoid prejudice amp delay can order a separate trial to decide separate issuesclaims before it II Permissive J oinder of Parties FRCP 20 A 20a 1 Co plaintiffs may be joined together if 1 claims arise out of the same transaction or occurrence or series of transactions or occurrences 2 there is at least one common issue of factlaw B 20a2 Codefendants may be joined if meeting the same criteria as above C MK v Tenet Rule 20a is not a rigorous test claims don t have to be identical III Misjoinder FRCP 21 A Not grounds for dismissing action Court may sua sponte add or drop a party to cure the defect or sever any claim against a party which should not be in IV Consolidation FRCP 42b A Court orders minitrials within the same dispute in order to settle issues in a more efficient and intelligent manner B Can be in entirety or only in application to certain stages of the lawsuit V Required J oinder of Parties FRCP 19 A Must join party if 1 wout this person complete relief cannot be granted to existing parties 2 person s interest is so closely related that if not joined a would impair or impeded their ability to protect their interest b subject an existing party to double multiple or inconsistent obligations related to the interest 3 Court must have personal or SM over person B When J oinder of this Person isn t feasible 1 Necessary v Indispensible Necessary means that before court can accord complete relief it is necessary to join party But if court doesn t have personal jxn or joinder would wreck diversity needs to decide whether to Go forward without necessary party or dismiss case bc the party wout proper jxn is indispensible and lawsuit cannot go on without this person a Factors to decide whether to go forward with case 1 Prejudice to absent person or existing parties 2 If Prejudice could be lessened by judicial tools available 3 Adequacy of judgment absent person to be joined 4 Adequate remedy for existing P if action dismissed b Bank of California Case Necessary is not the same thing as Indispensible the prejudice was minimal and adequacy of judgment still strong without them so not joined c Remember that generally joinder is P s choice unless court deems it a required Party VI Impleader FRCP 14ThirdParty Practice A D becomes 3rd Party P serves complaint on an absentee who he believes ismay be liable for P s injuries Absentee becomes 3rd Party D B By Right If 3rd Party PD does this within 14 days of serving answer to P C With Leave of Court File Motion to Implead 4 factors from T 00 Inc case 1 Good Faith request or deliberate delay in doing this 2 Prejudice to exisiting partiesl availability of severance to benefit P 3 Prejudice against parties to be impleaded 4 Viability of claims against party to be impleaded D Jeub Bad Ham Case D s liability to P doesn t have to be decided before impleader granted Sufficient that absentee may be liable and the sooner they are brought in the sooner parties may settle or adequate relief can be granted in one trial VII Intervention FRCP 24 Each type requires timely motion Court s discretion A Of Right Must be permitted if meet either of these 2 1 Given unconditional right by federal statute 2 Claims an interest in the action and if not granted mav impair or impede ability to protect this interest a Interest Doesn t just have to be economic 1 Qualitative also reputation for instance b If existing parties already adequately represent interest judge may not allow this 3 1 Smuck Court rules that the school board did not adequately represent the parents interest allowed to intervene Parents subjective interest in the education of their children was different from the members of the school board B Permissively May be permitted if 1 Given conditional right by federal statute 2 Intervenor s claim or defense shares common question of lawfact to main action C Judge must consider whether intervention will unduly delay or prejudice existing parties 1 When it adversely impacts the original parties interests D According to 1367 Might not be able to intervene anymore if you wreck diversity VIII Interpleader Rule amp Statutory Third Party Complaint A Interpleader When D is being sued by multiple parties in different cases and asks that they be brought together 1 Made available to a stakeholder person who holds something that is intended to bene t someone else the stake Problem is they don t know who it belongs to E nature anymore F 2 Use Interpleader to join competing claimants for the stake together in court 3 Can combine with intervention if absentee finds out and thinks he is entitled to stake History of Interpleader 1 PureTrue Interpleader Stakeholder relinquishes any personal right to stake just about figuring out who is proper claimant 2 Actions in the Nature of Interpleader All parties can compete for the stake including stakeholder 3 Hancock Oil Case Doesn t matter what the origin of the different claims to stake are can have different theories on why you own the stake Recognizes action in the nature of interpleader Rule Interpleader FRCP 22 1 22al P may join claimants as D to avoid double or multiple liability 2 22a2 one of claimants sues stakeholder to get his stake using cross claim or counter claim 3 Requisites Need Complete Diversity and amount in controversy of 75000 or more a Don t need to deposit the stake Statutory Interpleader 1 1335 Requisites amount in controversy 500 a Minimum Diversity Any two parties are of diverse citizenship b Stakeholder has to deposit the stake or bond with the court to hold on to 2 2361 adds that court may prevents other courts from hearing dispute affecting the property instrument or obligation involved in the interpleader action Pan American Fire Case No distinction between pure interpleader and action in the State Farm Case Interpleader is not to be used as an all purpose bill of peace to resolve many claims bring in parties unrelated to the claim Used in limited circumstances CLASS ACTION At the beginning start with Representatives parties to the litigation and serve as Plaintiffs on behalf of their own interests and the interest of a putative or proposed class members The putative class members are not parties to the suit meaning they can do nothing a party does they just sit back and rely on the class rep Once certified the putative class and rep become an actual class and actual rep The Court oversees the entire process of a class action because of the higher number of people with interests represented no room for error I Prerequisites FRCP 23a A 4 prerequisites must meet all 4 in order to be certified 1 Numerosity there are too many people for joinder under Rule 20 to be practical 2 Commonality needs to be some common questions of lawfact as to the entire putative class a Wal Mart v Dukes 54 SC decision written by Justice Brennan where the class was not certified because it failed the commonality req The reps needed to show proof that policies were being controlled from the top to discriminate against female employees not sufficient indication of this Common question of lawfact not enough but that also a common answer exists to explain for it 1 Similar to T wiqbal Seems there needs to be some showing at certification stages to ensure we aren t wasting resources expands judges ability to dismiss claims 2 Dissent of WalMart Everything taken together here may be sufficient to show disparate impact so shouldn t have been killed on commonality 3 Typicality The rep s claim is typical of the class feels the same painharm as the rest a General Telephone Lack of typicality bn rep amp class bc he was actually hired and they weren t Also lack of commonality bn discrimination in hiring V promotion 4 Adequate Representation Closely related to typicality rep will be able to adequately protect the rest of the class court concern bc of due process Securities Fraud Actions Special Rules The adequate representative in this area a is the person with the biggest financial interest in the stocklargest shareholder P b Hansberry About racially restrictive covenants the issuesconcerns alleged must pass the standard of the due process clause of 14th amendment doesn t here II Types of Class Actions FRCP 23b A PrejudiceLimited Fund 9 1 Proper when it would be prejudicial to non class party to have uncertainty of individual suits or when there is a limited fund to pay the class B Injunctive Relief 9 2 When parties aren t seeking compensatory relief but rather injunctivedeclaratory relief something to affect the future 1 WalMart39When what you are seeking is an injunction for backpay can t be certi ed as a b2 should have gone for a b3 since damages is what you want Atty s only did this to get around the predominance and superiority reqs Damages Sought 9 3 Only type where damages are specifically sought hardest to be C certified bc of this need to show 1 Predomination Of common class questions of lawfact over individual questions 2 Superiority Class action is the superior way to resolve this case as opposed to any other method a Castano The class action is not proper here because it is difficult for common issue of law to predominate because class members are from so many different states Also it is an immature tort claim so it would superior to try it individually in state courts III Who is bound ALL members except those who opt out of a b3 if not bound by a final judgment A and can t bring an individual claim on the matter 1 2 chances to optout of a b3 Done to Ensure DUE PROCESS a At the time for certification b Before settlement negotiations B b 1 amp b2 are mandatory classes no right for members to optout IV Certification FRCP 23c Motion must be submitted to accomplish this A Timing At an early practicable time after rep has sued or has been sued De ning As to the class their claims issuesdefenses and must appoint B 1 23 g class counsel When considering who to appoint look at Work done in identifyinginvestigating potential claims for class a b Experience in handling class actions and the specific claims asserted in this one c Knowledge of the applicable law d Resources counsel will commit to representing class Challenge Cert Can be done by interlocutory appeal while the suit is ongoing C usually have to wait until a final judgment on merits but class action is different Court s Alteration Court can decertify class at any time before final judgment or split D the class will usually issue an order to show cause why decertification is improper V Notice of pendency to class members A 23 b3 Court must give individual notice to ALL members reasonably identifiable class rep pays for this can be very costly 1 Also for a b3 must let them know that they can opt out if they choose VI SettlementDismissal of certified class FRCP 23 e A Dismissal If atty finds class does not have a good case must gain court approval to dismiss Court acts as protector of absent class members B Sweetheart Deals Where the class members get hardly anything coupon but their counsel makes out well Court wants to avoid this that s why atty needs their permission to dismiss VII SMJ for Class Actions Class Action Fairness Act A SMJ Remember reps are the only parties 1 Fed Question Anything counts 2 Diversity Must look to the domicile of the parties only can t have rep P s domiciled in the same state as D a Amount in Controversy Has to exceed 75000 only look at the reps 3 Exxon Mobil v Allapatah Court can exercise supplemental jxn over class members claims through 1367 if fed question or diversity reqs met by class rep B 2005 CAFA Makes it easier to bring class actions in fed court 1 Diversity Now only has to be minimal diversity for fed court 2 Amount in Controversy As long as a class aggregate amount is 5mil doesn t matter the AIC of the reps anymore INJUNCTIVE RELIEF Enforceable by contempt of court I Permanent A Issued by the judge as part of the final judgment on the merits at the trial level 1 Affects future behavior either forever or for a specified period of time 2 Party whom injunction is imposed can move to stay the injunction while appealing it II Preliminary A A provisional type of relief which comes anytime before the final judgment is rendered 1 Goal is to preserve the status guo while case is still being decided B CA Need to satisfactorily that sufficient grounds exist to grant it court invites affidavits and outside evidence to make this determination C FED Two Party inquiry Burden is on injunction seeker 1 Likely to Prevail on Merits a Similar to T wiqbal but standard here is probability not plausibility that s why courts invite a lot more to show this 2 Balance of Harms Actual or Foreseeable harms would result if injunction not granted a Seeker The harm to me if not granted will be irreparable while the harm to other side would be speculative at best b Non Seeker their injuries can be fixed with if shown the balance of harms would likely swing in their favor D TRO Temporary Restraining Order 1 Like expedited prelim inj when there is not enough time to wait for a motion hearing the issue is exigent and relief needs to happen now 2 Seaquist Case Ex Parte Application Give informal shortened notice to Court and other side 2448 hours email voicemail etc a Undertaking or Security Similar to depositing stake with court to pay other side for damages if party seeking injunction loses DISCOVERY Purpose To Find out what the other side knows avoid trial by ambush not going to let you bring up issue for first time at trial Provide Reality Check Want to know everything the other side plans to bring before trial Helps parties to settle quicker also Underlying Concerns Due Process amp General Notions of Fairness Fishing Net Good analogy to describe the info sought to be collected upon discovery Proportionality Balancing the Hardships on Parties Overly Expensive Overly Intrusive Time Consuming I Required Disclosures FRCP 36a A Must produce info for the other parties even if they didn t ask for it B 3 times 1 a1 Initial Disclosures a Scope Anything you might use to support your claimdefense 1 Name address phone of people who might have discoverable info 2 Copy of docs ESI tangibles could be used to support claimdefense 2 a2 Expert Witnesses 3 a3 Pre Trial Disclosures II Discovery Tools 5 What are they and which can be used to get info from nonparty A Depositions FRCP 30 amp 31 1 Deponent person being deposed testifies live under oath conversation recorded and then typed up 2 Can Depose a party or non partv a nonparties should be subpoenaed or else they aren t obligated to show up b Court must have jxn over nonparties 3 Each party may notice up to 10 depos Each depo lasts one day max 7 hours 4 Depo of Entity Want to depose the person with the most knowledge PMK 5 Polycast Tech v Uniroyal Unless two depositions are extraordinary duplicative Court will not intervene and grant a protective order don t want to be dragged into this B Interrogatories FRCP 33 Written questions sent to other side and answered in writing also under oath Responding Party has 30 days to respond after service Can be sent to parties only Party can propound up to 25 interrogs per each party C Request to Produce FRCP 34 1 Written request to gain access to anything Docs ESI physical items property etc a 2006 amendment now treats Electronically Stored Information as docs 2 Rule 34 c Can get info from nonparties also should subpoena them 3 No specified number limit put on these Make Sure you Behave Though a Follow proportionality for both sides Don t want to overburden other side b reasonably calculated to lead to admissible evidence 4 Scope of Produced Need to make a reasonable search of documents within your control a Means anything you can gain access to with reasonable efforts 5 Condition of Produced As ordinarily maintained D Medical Examinations FRCP 35 1 Must seek a court order to do this to avoid harassment 2 Have to be reasonable and can only be ordered on a party or someone in party s custody or legal control not an employee E Request for Admission FRCP 36 lgtU3l III IV C be unduly prejudicial to our case V A professional manner and sanctions can be severe if court must step in B C 1 Only for parties answered within 30 days of service 2 Requires party to admit or deny any discoverable matter see below a If party fails to respond you will be deemed to have admitted 3 No specified limit on these what may be asked is broader than admissionsdenials in complaint Scope of Discovery What can we use the tools to get Rule 26b1 Standard 1 Any nonprivileged matter which is relevant to any party s claim or defense 2 Includes anything reasonably calculated to lead to admissible evidence doesn t have to actually be admissible itself Rule 26e Duty to Supplement Discovery Tools 1 If responses are found to be incompleteinaccurate in some material respect 2 Timely Manner When the party disclosing learns of it 3 Materiality Only when material to the main issues of the dispute 4 According to FRCP 11 if Attomey knows they must supplement but does not can be sanctioned Defenses to Discovery Privileged Matter Is not discoverable 1 Focuses on relationships Most common is AttorneyClient but also Spousal Clergy DoctorPatient etc Rule 26b 3 Work Product 1 Described as material which has been prepared with an eye towards litigation a Know you are going to get sued and prepare materials to discover your risk it is for your use only 2 Can be overridden a Show Court that there is a substantial need for info to prepare their case AND without undue hardship can t obtain substantial equivalent elsewhere 3 Doesn t have to be prepared by lawyer Can be a party or any agentrep of a party Undue Burden Making us producedisclose this would put an undue expense on us or Sanctions FRCP 37 Judge is relying on the parties to run discoverable themselves in an equitable and Motion to Compel 1 Can move for this if other party has failed to disclose available info a Must be done in good faith b Show you conferred or attempted to confer with other side first before Court Rule 37a Effects 1 Lose Attomey s Fees if a Motion to Compel accepted but didn t go through meet amp confer process first b The other side s nondisclosure was justified you shouldn t have brought this Rule 37b If Party disobeys discovery order 1 FactsIssues can be established against disobeying party 2 Striking of cause of actionparty kills a claim 3 Stay a case give you time to behave and if not gone forever 4 Contempt of court Motion for Protective Order FRCP 26c 1 Courts have broad latitude to protect a deserving party who moves for this bc other side is overreaching and movant needs protection 2 Clinton v Jones Clinton s Attorneys seek protective orders on interrogatories where Jones attorneys want info on all the women Clinton has slept with over X of years a Judge Wright Strikes a balance If it s 5 years prior anyone working with the government and used State Action Troopers to obtain may ask about it b Also Wright made Clinton pay attomey s fees for his depo she had to y to DC 1 Lied in his depo sanctioned by the bar of Arkansas for 2 years as a result F Cine Case Cine claims damages of 3 million and injunction and upon interrogatories propounded was supposed to hire an expert to testify to how the damages were computed but never did this D brings a Rule 37 motion to compel judge orders Cine to pay 500 because disobedience of duty to supplement Still doesn t supplement and loses his ability to support his damages claim PRETRIAL ADJUDICATION Ways of getting rid of case or claim before trial 1 Rule l2b6 Motion to state a claim for which relief may be granted Characteristics Court only looks at the face of the complaint NOT evidence to see if allegations are threadbare If everything P said were true would she win If no doesn t make sense to go forward with this Twiqbal P must allege facts supporting a plausible claim Up to judge s common sense to determine this May be granted leave to amend a faulty complaint II MSJ Rule 56 Do we need a trial Characteristics Court CAN look at information reasonably calculated to lead to admissible evidence Always discretionary Court does not have to grant it Purpose Pierce the Pleadings amp Assess Proof Is there information here which could really prove the elements of the claims listed in the complaint Standard Rule 56a Moving Party must Show 1 There is no genuine issue of material fact material fact one which is relevant to proving the claim effects outcome of case 2 They are entitled to a judgment as a matter of law Burden Celotex Case Brennan s 2 part Burden Test 1 Moving party must point to the absence of the nonmoving party to produce anything which shows there is a genuine issue as to material fact 2 Burden then shifts to the non movant to produce evidence that there is a genuine issue of material fact Scope Available to both parties Can have competing MSJs Can be used to the whole claim or to certain issues only Called Summary Judication if used surgically Cases LundeenCross If a case hinges on witness credibility their testimony should be heard Lundeen Opposite of a he saidshe said situation especially when witness is a disinterested person with no interest in case no reason why their depo shouldn t be considered as fact MSJ granted Cross Guy goes on European vacation with wifedog and writes off many expenses as being work related IRS goes after him Trial Court grants Cross MSJ but reversed on appeal bc the issue hinges on witness credibility of Cross himself Clinton v Jones Clinton s MSJ granted Judge Wright likens this to Lundeen no reason to put Ms Pennington on the stand Jones has nothing to support her claim of tangible job detriment Jones appeals the MSJ but case settles before this is ruled on finally Timing Rule 56f2 If MSJ is brought prematurely issues on discovery still need to be uncovered judge will allow discovery to continue and stay the MSJ Judge will get pissed off if you move for it too close to trial and will deny JMOLRJMOL I J MOL called a Directed Verdict in CA used to be in Fed also A Judge has some control over jury in a civil trial this is an example where judge takes decision away from jury acts as the functional equivalent of an MSJ B Rule 50a Must be done on motion judge CANT do it sua sponte 1 Standard Granted if reasonable mindsjurors could not disagree as to the result no legally sufficient basis to rule any other way 2 Timing Can only move for it after other party has been fully heard at trial and before it has been submitted to jury C Galloway Justice Black criticizes J MOL as eroding the 7th Amendment should be reserved only when there is no honest difference of opinion over the factual issue in controversy II RJMOL called a J NOV in CA used to be in Fed also A CAN T move for this unless you moved for an J MOL at the proper time and it was denied B Timing Must be brought within 28 days after entry of judgment C Standard Jury reached a conclusion that reasonable minds on these facts could not have reached PRECLUSION DOCTRINES 1 Res J udicata Claim Preclusion Efficiency Finality A Describes claim which should have been raised in the first case between the same parties B 3 things Applies to both P amp D 1 Both cases brought by the same claimant against same D and ONLY them no privity a Also applies to compulsory counterclaims Rule 13a 1 Mitchell Case Potato Farmer should have brought counterclaim 2 Case 1 ended in a final judgment on the merits a Rule 41a all judgments are final except to jxn venue or indispensable parties 3 Case 1 and Case 2 involves claim which arose from the same Operative Facts a Maj Arose out of the same transaction or occurrence only get one chance to vindicate every claim arising out of the same TO must bring in 1st suit or lost forever b CA Primary Rights Theory View that you get a different claim for each right invaded so if it s a different right the second time around may not be barred focus on the Wrongful acts of the D c Rush v City of Maple Heights Trial court goes to apply the Primary Rights Theory but SC of OH says no this arises out of the same act TO II Collateral Estoppel Issue Preclusion A About the preclusion of matters which have already been litigated amp decided B Need 1 Final Judgment on the merits in Case 1 Necessarily Decided a Completely resolved and it s re ected in specific language in the court s opinion 1 Russell Leather Treating judge wasn t precise that both issues were resolved so collateral estoppel cannot be invoked b If didn t deal with the substance of the claim and only procedural might not be final 2 This issue was actually litigated amp decided in Case 1 a Cromwell Example of no issue preclusion What was decided in the first case was who was the proper bond holder In Case 2 We are deciding Whether County needs to pay Cromwell back on the bond Different Issues 3 This issue was essential to judgment in Case 1 affected the outcome C Brought Against Any party to case 1 1 Privity Also applies to parties in privity to the parties in the first case insurance cases D Brought By 1 Mutual Issue Preclusion Brought by someone who was a party to case 1 2 Non Mutual Issue Preclusion Brought by someone in Case 2 who was not in case 1 E Sunnen When there is a change in the law collateral estoppel may not apply IRS Tax code
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