Civil Procedure II: Schwarzschild Outline 3

Civil Procedure II

Schwarszchild Outline





Now:  FRCP 18. Joinder of Claims and Remedies.

·         (a) Joinder of Claims.  A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or 3rd party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.

·         Abolishes all restrictions on joinder of claims and provides that a party asserting a claim for relief may join as many claims as she has against an opposing party, regardless of subject matter.

·         P can even join claims to meet the jurisdiction amount requirement for fed DJ if ag the same person arising from a separate transaction

·         only restriction on the claims that may be joined is imposed by SMJ requirements.

·         Ex. Joinder of parties rules in multi-party cases

·         Rule works in tandem w/ Rule 15 (amendment of pleadings) and Rule 20 (Joinder of parties)




Permissive Joinder of Parties




FRCP 14. Third Party Practice.










Physical and Mental Examinations

(a) Order for Examination. When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

o    Exams may be ordered by an suitably licensed or certified examiner usu. Selected by the party wanting the exam

(b) Report of Examiner.  Upon request, examinee has right to receive copy of the examiner's report, but waives the doctor-patient privilege w/respect to any previous exams of the same condition by his own physician

(c) Definitions. For the purpose of this rule, a psychologist is a psychologist licensed or certified by a State or the District of Columbia.


Requests to Admit




FRCP 37. Failure to Make or Cooperative in Discovery; Sanctions.




Summary Judgment

FRCP 56. summary Judgment.


Pretrial Management

FRCP 16. Pretrial Conferences; Scheduling; Management



I.      Class Actions

A.   FRCP 23

1.    Rule 23 provides that members of a class can sue or be sued with binding effect on the whole class.

2.    Under FRCP 23(a), all four of the following conditions must be established in any type of class suit.  All class actions must also fit into one of the categories of Rule 23(b).

a.    Numerous Parties

i.      The class must be so numerous that joinder of all members individually is impractical.  Rule 23(a)(1).

ii.    There is no fixed minimum number required to make a class “too numerous” for joinder of all members individually.  If the class is 50 or less, whether a class will be permitted usually turns on the following factors:

a.    The size of each members claim (the smaller the claim the more likely a class suit will be allowed);

b.    The practical likelihood that individual suits will be brought (the lower the likelihood, the more likely a class suit will be allowed);

c.    The public importance of the right being enforced (the greater the public importance, the more likely a class action will be permitted);

d.    The geographic location of class members (the more difficult the geographic location makes it for class members to intervene, the more likely a class suit will be allowed).

iii.   No Fixed Maximum

a.    There is no fixed maximum size for a class action.  Castano v. The American Tobacco Co.

iv.   Need for Ascertainable Class

a.    The class must be defined with sufficient clarity that its members can be identified.

b.    Common Question

i.      The action must involve questions of law or fact common to the class.  Rule 23(a)(2).

c.    Representative’s Claims Typical

i.      The claims (or defenses) of the persons maintaining the action on behalf of the class must be typical of those of the class generally. Rule 23(a)(3).

d.    Adequacy of Representation

i.      The persons representing the class must be able fairly and adequately to protect the interests of all members of the class.  Rule 23(a)(4).

ii.    Amchem Products, Inc. v. Windsor

a.    At least in the tort claimaints context, the Supreme Court has implied that those who presently have claims for current injuries are not adequate representatives of those who may in the future fall ill because those with current claims would want to maximize payouts presently, while those who may fall ill in the future would want to preserve resources for later compensation.

3.    Three Grounds for Class Actions

a.    FRCP 23(b):If the foregoing 4 conditions are all present, the class action may be based on any one of the following grounds:

i.      Prejudice from Separate Actions

a.    Under Federal Rule 23(b)(1), a class action is permitted if the prosecution of separate actions would create either of the following risks:

1.    Establishing incompatible standards of conduct for defendant through inconsistent adjudications.

II.    Default Judgment

A.   General

1.    If a defendant fails to answer or otherwise plead within the time permitted, the clerk of the court is required to enter a default.  FRCP 55.

B.   Effect of a Default Entry

1.    The defendant’s failure to plead is regarded as an admission of the claim against her.  So long as the default stands, any attempt by the defendant to “answer” or file any other pleading in the case will be disregarded.

C.   Obtaining Judgment

1.    After an entry of default, the plaintiff must proceed to obtain a default judgment.  If he is suing on a promissory note or other sum certain, the judgment may be entered directly by the clerk of the court.  In all other cases, the plaintiff must present his evidence to the court in order to obtain judgment.  FRCP 55(b)(1).

2.    Relief Limited to Prayer

a.    In default cases, the judgment cannot exceed the amount or type of relief requested in the prayer of the complaint.

D.   Setting Aside Default

1.    If the defendant’s default has been entered, her remedy is to move the court to set aside the default.

a.    Time limits

i.      In federal practice a motion to set aside the default can be made at any time until judgment is entered.  FRCP 55(c).  Thereafter, a motion to set aside the judgment can be made at any time within 1 year after the judgment or order is entered. FRCP 60(c)(1).

b.    Grounds

i.      Ordinarily the defendant must show

a.    That she has a valid excuse for her default (i.e. neglect, fraud, inadvertence)

b.    That she has a meritorious defense

c.    That the plaintiff will not be prejudiced.

III.   Voluntary Dismissal

1.    Under federal practice, a plaintiff retains the right to dismiss his own action by filing a notice of dismissal.  FRCP 41(a)(1)(A)(i).

2.    Time for Filling

a.    An effective notice of dismissal must be filed before the filing of the adversary’s answer or motion for summary judgment. FRCP 41(a)(1)(A);41(a)(2).

3.    Number of Dismissals

a.    The plaintiff is limited to one voluntary dismissal by notice.  Thereafter any dismissal operates as a dismissal with prejudice.  FRCP 41(a)(1)(B).

4.    Dismissal By Leave of Court

a.    Time for Motion

i.      The court may grant the plaintiff’s motion for leave to dismiss without prejudice at any time prior to the judgment—i.e. even after trial has commenced.

b.    Discretion to refuse

i.      Counterclaims preserved

a.    The court may not dismiss over the objection of a defendant who has filed a counterclaim unless the counterclaim can remain pending for independent adjudication.  FRCP 41(a)(2).

c.    Number of Dismissals

i.      The court is not limited as to the number of times it may grant motions to dismiss the same action without prejudice—provided of course, that there is a legitimate reason for the repeated requests.  American Cyanimid Co. v. McGhee.

IV.  Trial by Jury

A.   Federal Constitution

1.    The Seventh Amendment of the US Constitution provides: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved.”  This requirement applies to diversity cases regardless of whether there would have been a jury trial if the case had been in state court.

B.   Cases in Which Right Exists

1.    Basic Historical Test

a.    Because the 7th Amendment and many state constitutional jury guarantees refer to preserving the right to a civil jury trial, a major factor in applying the guarantees is historical inquiry into practice at the time of their adoption.  The right to jury trial existed in the English law courts but not in chancery, where the system of equity was administered.  Accordingly, with a traditional type of claim a federal court will consider whether the claim is legal or equitable.

b.    Counterparts to actions at law—right to jury

i.      Modern actions that are counterparts to actions at law, such as personal injury damage claims or to recover damages for breach of contract, are triable to a jury.

c.    Counterparts to suits in equity—no right

i.      There is no right to a jury in actions that are counterparts to suits in equity—e.g., actions to foreclose mortgages, to enjoin misconduct, or for specific performance of a contract.

2.    When “new right” involved

a.    Congress may provide for nonjury trials when the right to be enforced is one not known at common law and practical considerations justify withholding the right to a jury in order to assure efficient disposition, especially if initial adjudication and enforcement of the right are assigned to a federal administrative agency rather than an Article III court.

b.    Atlas Roofing Co. v. OSHA

i.      Congress could create new duties of employers regarding employee safety and assign disputes to an administrative agency with which a jury trial would be incompatible.

c.    COMPARE: Curtis v. Loether

i.      Proceedings to enforce new statutory rights in federal court are triable to a jury when the remedy sought is a legal remedy such as damages.

3.    Civil Penalty

a.    When a statute provides a civil penalty for violation (e.g. a certain amount per day of violation), that is sufficient to create a right to a jury trial in an action for a civil penalty.  Tull v. United States

4.    Distinguish—amount of penalty

a.    While holding that there is a right to a jury trial with regard to liability for a civil penalty, the Supreme Court has held that there is not right to a jury trial on the amount of the penalty.  Tull v. United States.

C.   Proceedings in Which Right to Jury Applies in Part

1.    Actions Joining Legal and Equitable Claims

a.    In general, federal courts are to structure their proceedings to preserve a jury trial on the issues common to the legal and equitable aspects of a case.  Beacon Theatres, Inc. v. Westover.

D.   Demand and Waiver of Trial by Jury

1.    FRCP 38(b)

a.    In federal actions when a right to a jury trial applies, a party must demand a jury trial in writing with regard to any issue within 10 days of the service of the last pleading directed to that issue.

2.    Bereslavsky v. Caffey (Federal circuit case)

a.    The court held that plaintiff was entitled to trial by jury even though the Rule 38(b) time period had expired.

b.    The court reasoned that although the original complaint carried no right to jury trial, a later amendment changing the claim from equitable to legal relief renewed the right and gave plaintiff an additional ten days to demand a jury.

E.   Jury Trial Discretionary With Court

1.    The court may order a jury trial on any or all issues in a case in which the right has been waived. FRCP 39(b).

2.    Even when no right to a jury exists, th court may order a binding jury trial with the consent of both parties.  FRCP 39(c).

V.   Selection of the Jury

A.   Trial juries are selected from a larger panel of citizens, commonly known as the venire.

B.   Systematic exclusion prohibited

C.   Cross section not required

D.   Blue Ribbon Juries

1.    The Constitution does not proscribe the use of blue ribbon juries selected on the basis of special intelligence or experience to handle complicated cases.

E.   Number of Jurors Required

1.    Twelve not required by Due Process

a.    The common law requirement of 12 jurors has been held not to be required by the Due Process Clause.  However due process requires at least six jurors in a criminal case.

b.    Civil Cases

i.      The minimum number of jurors constitutionally required in federal court civil cases had not been finally resolved. 

ii.    FRCP 48 provides that the court shall seat a jury of not fewer than six nor more than 12 jurors.

F.    Voir Dire Examination of Jurors

1.    Prospective jurors are generally subject to further interrogation about their possible biases.  This examination is known as voir dire.

2.    Challenge for cause

a.    A party may challenge a prospective juror if it appears that the juror has a financial stake in the case or in similar litigation, if members of the juror’s immediate family have such an interest, or if there is other sufficient reason to believe that the juror may be unable to render impartial service.

b.    There is no limit to the number of challenges for cause.

3.    Peremptory challenge

a.    Each side is also entitled to a limited number of challenged without a showing of cause—i.e. a peremptory challenge.  The purpose of the peremptory challenge is to give each side the opportunity to act upon intimations of bias that may not be demonstrable or even rationally explainable.  In this way, those persons most distrusted by either side are removed from the jury.

b.    Each side is entitled to three peremptory challenges.

c.    Racial grounds for exercise

i.      The equal protection component of the Fifth Amendment Due Process Clause precludes a private party in federal civil litigation from using peremptory challenges to excuse potential jurors on grounds of their race.  Edmonson v. Leesville Concrete Co.

d.    Gender grounds for exercise

i.      The Equal Protection Clause forbids use of peremptory strikes to remove jurors on the basis of their gender.  JEB ex rel. T.B.

G.   Instructions  to the Jury

1.    Kennedy v. Southern CA Edison Co.

a.    Case where judge gave a different instruction to jury for asbestos injury.

b.    We hold that when the district court is presented with an applicable instruction that raises an important issue of law or directs the courts attention to a point upon which an instruction to the jury would be important, it is not relieved from the responsibility of giving a proper instruction simply because the party making the request has proposed an instruction that does not completely comply with the relevant law.

H.   Commenting on the Evidence by the Judge

1.    Right of judge to comment on the evidence is firmly established in the federal system.

2.    Opinion on an ultimate fact question peculiarly for jury consideration amounted to an instructed verdict.  (Nunley v. Pettway Oil Co.)

I.      Jury Misconduct and the Integrity of the Verdict

1.    Mansfield Rule

a.    Affadavits of jurors may not be used to impeach their verdict.

b.    4 reasons why courts still invoke the strict rule of exclusion:

i.      Need for stability of verdicts

ii.    Need to protect jurors from fraud and harassment by disappointed litigants

iii.   Desire to prevent prolonged litigation

iv.   Need to prevent verdicts from being set aside because of the subsequent doubts or change of attitude by a juror

v.    Concept of sanctity of jury room

VI.  Order of Trial

A.   Court has discretion to determine order of trial, but the judge usually will not deviate from the standard practice:

1.    Π’s opening statement

2.    Δ’s opening statement

3.    Π’s presentation of direct evidence

4.    Δ’s presentation of direct evidence

5.    Π’s presentation of rebuttal evidence

6.    Δ’s presentation of rebuttal evidence

7.    Opening final argument by plaintiff

8.    Δ’s final argument

9.    Closing final argument by plaintiff

10. Giving instructions to the jury

VII. Judgment as a Matter of Law (Directed Verdict)—FRCP 50(a), (b)

A.   At the close of proof, motions may be used to determine whether a party has carried the burden of producing evidence, e.g., motion for judgment as a matter of law, for nonsuit, or for involuntary dismissal.

B.   Jury Trial-Motion for Judgment as a Matter of Law

1.    In a jury trial, either party may move for judgment as a matter of law when the adversary has been fully heard with respect to the issue in question.  FRCP 50(a).

C.   Standard for Grant

1.    The general standard for whether to grant a motion for judgment as a matter of law looks to whether there is a legally sufficient evidentiary basis on which the jury could find for the nonmoving party.  The application of this standard depends on whether the moving party has the burden of proof on the issue raised.

2.    Moving party with burden of proof

a.    If the moving party has the burden of proof, judgment as a matter of law is appropriate only if the evidence favoring the moving party is of such compelling strength that the jury could not reasonably find for the opposing party.  Accordingly, to defeat the motion it is sufficient that the jury could reasonably disbelieve the witnesses upon whom the moving party relies.

3.    Opposing party with burden

a.    If the party moving for judgment as a matter of law does not have the burden of proof, the motion should be granted only if the opposing party has no substantial evidence to permit a jury reasonably to find in its favor.

b.    Galloway v. Untied States

i.      In some jurisdictions the scintilla rule still is invoked.  Under this rule, a party with a scintilla of evidence would be allowed to have her case presented to a jury.  The federal courts have rejected this rule.

D.   Rogers v. Missouri Pacific R. Co.

E.   Daniel J. Hartwig Associates, Inc. v. Kramer

VIII.       Motion For Judgment as a Matter of Law After the Verdict (JNOV)

A.   If a motion for judgment as a matter of law is made before a verdict is rendered but is denied and the verdict goes against the moving party, the party may make a renewed motion for judgment as a matter of law (JNOV).  Whether resolved before or after the verdict, the motion uses the same standard and thus asks the same question at different times—whether the case should be (or should have been) submitted to the jury.

B.   Pre-verdict motion as a predicate for renewed motion

1.    In federal court, a party may not make a renewed motion unless she moved for a judgment as a matter of law after the opposing party was fully heard on an issue and before submission of the case to the jury.  FRCP 50(b).

2.    Baltimore & Carolina Line v. Redman

a.    Whether the evidence was sufficient or otherwise was a question of law to be reserved by the court. 

b.    This requirement of a pre-verdict motion is a result of the Supreme Court’s early decision that the judgment n.o.v. violated the right to a jury trial, which the court modified to permit a renewed motion if there was first a directed verdict motion on which the judge “reserved” ruling.

C.   Test Applied

1.    The standard applied for a renewed motion is the same as for such a motion at the close of all the evidence, i.e. the motion should be granted only if there is no substantial evidence to support the decision of the jury.

D.   Timeliness of Motion

1.    FRCP 50(b)-a renewed motion for judgment as a matter of law must be made within 10 days after the entry of judgment on the verdict.

E.   Deferring decision until after verdict

1.    Judges presented with motions for judgment as a matter of law may consider a variety of factors, including the following, in deciding whether to defer decision when they find the motions persuasive.

a.    Jury will agree

i.      If the judge feels that one side’s case is so weak that judgment as a matter of law is proper, it is likely that the jury will also feel that way, and a jury verdict to that effect will be harder to overturn on appeal.

b.    Judge may be wrong

i.      If the judge grants judgment as a matter of law and is reversed on appeal, it will be necessary to hold a second trial, whereas the appellate court may be able to reinstate the jury verdict if it reverses a post-verdict decision to grant judgment as a matter of law, and avoid thereby the need for a retrial.

IX.  Motion for a New Trial

A.   The trial judge has the power to order a new trial on all or part of the factual issues in dispute.  FRCP 59(a)(1).

B.   Grounds for Motion

1.    A federal court may order a new trial in a jury case “for any reason for which a new trial has heretofore been granted in an action at law in federal court.”  FRCP 59(a)(1)(A).

C.   Aetna Casualty & Surety Co. v. Yeatts

1.    A new trial may be ordered if the judge finds the verdict to be contrary to the manifest weight of the evidence.

D.   Marsh v. Illinois Cent. R. Co.

E.   Procedural Requirements for a New Trial Motion

1.    FRCP 59(d)—A federal court may grant a new trial on its own motion.

F.    Motion for Relief from Judgment

1.    FRCP 60.  If the judgment as entered by the clerk differs from that ordered by the court, the mistake can be corrected.

2.    Excusable Neglect:

a.    Briones v. Rivera Hotel & Casino

i.      Factors to be considered in deciding if neglect was excusable—

a.    The danger of prejudice to the opposing party

b.    The length of delay and its potential impact on the judicial proceedings

c.    The reason for the delay

d.    Whether the moving party acted in good faith

X.   Res Judicata