Civil Procedure II

The jurisdiction of the state courts is plenary!—they have jurisdiction over any dispute that the federal government hasn’t specifically taken way from them, or that’s not removed by the defendant.

So long as there is personal jurisdiction, the state can even hear a case of two non-citizens and apply another state’s law (the Conflict of Laws is all about this.) A state can apply federal law, state law, or another state’s law—they can do pretty much anything, all they need is personal jurisdiction.

District Courts—each state is divided into one or more federal districts. If you lose, you have one appeal of right.

United States Court of Appeals—the United States is divided into different circuits. If you lose your case here, you do not have an appeal of right, it is discretionary only. You may seek review by certiorari though.

Superior Court—this is the court of general jurisdiction in California, unlike small claims and municipal courts, which are small courts of limited jurisdiction. If you lose here, you have one appeal of right. “Superior Court” is a CA specific way of saying “District Court.”

CA Supreme Court—you cannot appeal from here to a federal district or appellate court. Maybe you can go to the United States Supreme Court, but only if your case deals with a federal issue. This means that your case either 1) involved a federal question, or 2) involved a state law that you are claiming is unconstitutional.

You can appeal from a state to federal court essentially only a federal issue—not on diversity. And you can only get to the SC, if they’ll take you.

Rule 1: These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity…They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

The FRCP applies to cases of law and equity. Policy Alert! We want it to be just, speedy, and inexpensive.

Rule 7: There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross claim, if the answer contains a cross claim; a third party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third party answer, if a third party complaint is served. No other pleading shall be allowed…

Rule 10(a): Every pleadings shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7. In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.

Rule 10(b): All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances…Each claim founded upon a separate transaction…shall be stated in a separate count…whenever a separation facilitates the clear presentation of the matters.

Rule 11: Every pleadings, written motion, and other paper shall be signed by at least one attorney of records…by presenting to the court a pleading, the attorney is certifying that 1) the pleading is not being presented for any improper purpose, 2) the claims, defenses, and other legal contentions are warranted by existing law, 3) the allegations have evidentiary support, 4) the denials are warranted on the evidence.

Requires the signature of the attorney on every pleading—not a verification (which is a more stringent standard). What exactly are you saying when you put your name on a pleading?:

If you violate this, the Court can impose sanctions at their discretion. But signing is not held to the standard of verification!

Notice that the 1993 version of the rule allows for a “safe harbor” period, which is a new feature. As the opposing attorney, you can’t file with the Court for sanctions until you give the opposing attorney 21 days to withdraw the item you’re objecting to. Remember: Only within reasonable limits can an attorney rely on the representations of his client—look to Hilton Hotels and Hedges for examples. It’s the 21 day safe harbor!

First you file a complaint with the clerk, and present them with a summons. If the summons is correct, the clerk will stamp it, and you can serve it on your opponent.

Rule 4(a): The summons shall be signed by the clerk, by the seal of the court, identify the court and the parties, be directed to the defendant, and state the name and address of the plaintiff’s attorney…It shall also state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in judgment by default against the defendant for the relief demanded in the complaint.

At the top is the name and identification of the court. It also has the caption—i.e. plaintiff v. defendant. There is a civil action number that the clerk gives you when you file the complaint that will be on the summons and all subsequent pleadings.

The summons is what formally initiates the action—this is key in terms of the SOL!

The important thing is to notify the defendant of the time to respond, and that failure to respond will result in a nasty default.

Rule 4(d): A defendant who waives service of a summons does not thereby waive any objection to the venue or to the jurisdiction of the court over the person of the defendant…plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons…defendant is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent…the costs to be imposed on a defendant for failure to comply with a request to waive service shall include the costs subsequently incurred in effecting service.

Plaintiff can request that defendant waive the service of summons, if the defendant does, then they have a longer period of time to respond to the complaint. If the defendant doesn’t, then they have to pay the cost of serving the summons!

The Complaint [Pg. 185 Form 3] The complaint has allegations which, if true, would constitute a cause of action. It’s the lawyer’s job to take the facts as given by the plaintiff and determine what is necessary to make a cause of action.

It used to be that the complaint could plead only fact, not law. A faulty pleadings would mean dismissal of the case, with prejudice.

Rule 8(a): A pleading (including complaints, counterclaims, cross claims, etc.) shall contain a short and plain statement of the grounds upon which the court’s jurisdiction depends…a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief the pleader seeks.

Changes the old system. Now, the language just needs to be straightforward and simple. The 1930s FRCP brought with it the idea of notice pleading—easy! Remember: Complaints/counterclaims/cross claims—ALL a short and plane statement of the claim; and this goes for pleadings too! Read on!

Rule 8(e): Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. A party may set forth two or more statement of a claim or defense alternately…When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable grounds.

“In the alternative” complaints are allowed under new liberal pleadings—you can say, “The defendant struck me negligently, or in the alterative, recklessly.” Note that this rule indicates that when you are pleading in the alternative, you only need one of these independent alternatives to work! It doesn’t matter that your other bases flop—you just need one good one to get you in.

Dioguardi—This complaint meets Rule 8 requirements; the plaintiff may have an awful case, and may lose, but he’s not going to lose under a 12(b)(6) motion.

Need: When and where the incident happened; how the defendant is liable (in negligence, contract, whatever) only generally; consequences of the incident, and damages.

Don’t Need: Specifically how the defendant was negligent, “evidence” for why defendant was negligent, and you don’t have to head off the defendant’s defenses (i.e. that you weren’t contributorily negligent, AoR, etc.)

These rules are all obviously pretty liberal, but there is an exception to the simple notice pleadings of Rule 8. [Know that Rule 9 has other exceptions to general notice pleading, but we look specifically at fraud.]

Rule 8 says that in general, all we want is notice pleading, but Rule 9 says that in situations of fraud, we want more. The plaintiff in these cases will have a higher burden of specificity. Denny v. Carey—in this case, the burden was met when the plaintiff alleged circumstances of fraud. Rule 9 isn’t entirely clear on how to be specific, but it does require that the plaintiff must allege how the defendant caused the loss. Specifically regarding securities fraud (and other disfavored claims) we’re worried about baseless claims.

Remember: You want the circumstances of fraud, and how the defendant caused the loss.

Remember Skierkiewitz—the ethic of the federal rules is notice pleading, unless there is a specific statutory or rule requirement of more.

WHAT IF you put something into the complaint and it turns out to not be correct?—(i.e. you said July 14, and come to find out it happened July 13). You’re in luck!

Rule 15(a): A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or…at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given as justice requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer.

Rule 15(b): When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings…If evidence is objected to at the trial on the ground that it is not within the issues made in the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the parry’s action or defense upon the merits.

The pleadings are deemed to conform to the evidence; where the difference between the evidence and the pleading is negligible, it’s not going to matter. You go with what there’s evidence for. Of course, a “trumped up” complaint will result in sanctions.

Rule 15(b) doesn’t apply where it would be prejudicial to the other party—i.e. where they tailored their case around that portion of the pleading. Bail—can plaintiff amend his request for damages before the trial begins? There might be prejudice if you were jumping from $10k to $100k, but not $100k to $250k.

But note that you this gives you license to raise issues outside the pleadings—this seems like a good reason to have the pretrial conference.

Rule 15(c): An amendment of a pleading relates back to the date of the original pleadings when 1) it’s permitted by law, 2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence in the original pleadings, 3) the amendment changes the party or the naming of the party against whom a claim is asserted if the party to be brought in by amendment has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and if the party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against them.

This allows for certain amendments to relate back so that they still fall within the SOL. In Northington the plaintiff said that the defendants were unknown, this can’t relate back. But if he had misnamed the defendant, he could relate back, so long as that party knew or should have known that he was subject to action, except that the plaintiff got the name wrong.

In general, Rule 15 allows you to amend the complaint to encompass more bases for liability (i.e. start off with negligence, and amend to include contract claim.) So long as it involves the same incident/occurrence, then the defendant has been given notice.

Rule 15(d): Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transaction or occurrences or events which have happened since the date of the pleadings sought to be supplemented.

So, remember that you can amend pleadings once as a matter of right within a certain amount of time, otherwise at the discretion of the court, and they should be lenient. You can outright change the pleading, with this. You can also supplement the pleading with another document if the court gives you permission to do so. For big changes to the pleadings, (that will most likely affect the cause of action) they relate back for purposes of the SOL when they are the same transaction, or the correct party was put on notice. You can raise new issues at trial—a party can only object by showing that they were severely prejudiced by it.

Rule 12(b): Every defense…to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: 1) lack of jurisdiction over the subject matter, 2) lack of jurisdiction over the person, 3) improper venue, 4) insufficiency of process, 5) insufficiency of service of process, 6) failure to state a claim upon which relief can be granted, 7) failure to join a party under Rule 19…If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.

Defenses are generally raised in responsive pleadings except the 12(b) defenses that can be made by motion:

Notice that these are all procedural objections, except 12(b)(6) which is a substantive defense.

Rule 12(b)(6): Every defense to a claim for relief in any pleading (complaint, counterclaim, cross claims, etc.) shall be asserted in the responsive pleading…except than the following defenses may at the option of the pleader be made by motion…failure to state a claim upon which relief can be granted.

This is a motion to dismiss for failure to state a claim upon which relief can be granted. This is a demurrer equivalent—even if all the allegations are true, there is no cause of action. Remember—now that we have the policy of notice pleading, 12(b)(6) doesn’t have that much bite—it’s going to get you on not taking the time to look up the relevant law and figure out what you need for a complete cause of action.

Important!—this isn’t summary judgment, it’s just a little guy. BUT, if you introduce evidence outside the pleadings, then it will be treated as a motion for summary judgment, and whatever the court decides on the issue is IT.

American Nurses—the plaintiffs opened themselves up to a motion to dismiss by giving more information than necessary in the complaint and showing that it comes down to comparable worth. It’s almost a 12(b)(6), but the Court determines that there were enough other claims in the complaint to form a cause of action for discrimination. Consider Rule 8(e).

Rule 12(c): After the pleadings are closed… any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.

Rule 12(f): Upon motion made by a party before responding to a pleading, or if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the leading upon the party or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

The obvious problem with more liberal pleadings is that they mat not be as clear and informative as the old, technical ones. So, for that we have—

Rule 12(e): If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired.

The defendant can move for the plaintiff to make a more definite statement. If the plaintiff’s statement is sufficiently definite and the defendant is still unclear, the he can wait for discovery. Remember: with the FRCP there has been a shift from relying on pleadings to relying on discovery; the downside is that discovery is more expensive.

Remember: These motions aren’t a response to the complaint; it’s a request for a certain ruling by the judge before you respond to the claim.

Rule 12(h): A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived a) if omitted from a motion or b) if it is neither made by motion under this rule nor included in a responsive pleading. 2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a). 3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

So for the most part, you must raise most of the Rule 12 objections in a timely manner; but notice that you never waive an objection to subject matter jurisdiction. You can bring it up whenever you feel like it.

Once your done objecting and have accepted the fact that you’re being sued, you can file—

Remember: Don’t use negative pregnant in the answer—i.e. don’t frame a denial within the specific forms as they are written in the complaint. You can say, “denied as to negligence,” or “denied as to causation by defendant.” Don’t say, “denied that defendant was going 30mph.”

Also, don’t make a blanket denial, because if some of the allegations are obviously true, then the defendant is open to sanctions. i.e. don’t deny driving down the street, just that you were negligent.

Affirmative Defenses The answer can claim affirmative defenses. These will have to be proved by the defendant, and the plaintiff does not need to preempt them with a denial.

Rule 8(c): In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, AoR…and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms shall treat the pleading as if there had been a proper designation.

This is your go-to rule for affirmative defenses; it allows for enumerated and non-enumerated. You need to state your affirmative defenses in your answer. If your “affirmative defense” is really a counterclaim then don’t worry—it’ll be designated as such.

Ingraham—is a statutory (not FRCP) cap on damages an affirmative defense? Maybe—cases have gone both ways. On the one hand, you can say it’s not because it is law, on the other hand, the plaintiff may not be aware of the statute and miss out in the way they structure their case. When faced with this question, you’d do well to give an equivocal answer.

Beeck—defendant answered that they had made the slide and then wants to amend answer even though the plaintiff’s SOL had run.

Rule 54(c): A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.

The subject matter jurisdiction of state courts is plenary, but the subject matter jurisdiction of federal courts is limited. For a case to be heard in federal court, there needs to be:

1) Personal Jurisdiction (this is from last semester—also, federal statues can confer personal jurisdiction, like interpleader and mass tort statutes.)

3) The suit must be for over $75k—so long as the plaintiff is claiming over $75k, then it doesn’t matter that what he actually receives might be less. But the Court can dismiss the case if it becomes clear that the plaintiff’s claim amount wasn’t made in good faith. This amount requirement in §1332; and consider—

28 USC §1332(b):…Where the plaintiff who files the case originally in the federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim in which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.

Remember: you can object to subject matter jurisdiction at any time. You never waive an objection to subject matter jurisdiction! Subject matter isn’t discretionary—if there is no basis for subject matter jurisdiction, then there is no case in federal court.

Remember Strawbridge!—requires complete diversity among the parties. This means that none of the plaintiffs can match up with any of the defendants. The plaintiffs can be from the same state, and the defendant can be from the same state, but never plaintiff-to-defendant.

CA, NV v. FL, FL, MO…NV—no way! It would DESTROY diversity. Keep your diversity in tact!

28 USC §1332(a): The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and it between—1) citizens of different states, 2) citizens of a state and citizens or subjects of a foreign state, 3) citizens of different states and in which citizens or subjects of foreign state are additional parties, and 4) a foreign state…For the purposes of this section. §1335 and §1441, an alien admitted to the Untied States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled.

How do you determine citizenship for purposes of diversity?—it depends on if you’re a:

What is the test for citizenship for natural person?—domicile. Remember that this isn’t the same as residence—it is possible to be a non-citizen resident of somewhere. Domicile consists of 1) residence, 2) intent to remain. If you live in the state (resident) but don’t instead to stay there (maybe you’re a student) then you’re not domiciled there! If you are a resident without domicile then your state of citizenship for diversity purposes is the one where you were last domiciled, even if you don’t intend to go back there.

How do you measure an intent to stay?—maybe they bought property, or are renting month to month, maybe a student, etc. See Mas v. Perry for a good example of this, and a reminder that an alien is diverse to a US citizen.

The moral of this story is don’t look at residency!—go to wherever the last place of domicile was.

You are a citizen of 1) the state in which you were incorporated, and 2) the state in which you have your principal place of business. A corporation can only have one principal place of business for purposes of diversity—how do you figure out what it is? There are three different tests:

-Nerve Center Test—“the locus of corporate decisions making authority and overall control constitutes a corporation’s principal place of business”

-Corporate Activity Test—give weight to the location of a corporation’s production or service activities.

-Total Activity Test—this is a hybrid of the Nerve Center and Corporate Activity test; it considers all the circumstances surrounding a corporation’s business.

-if the members are spread out across different states, then the partnership is a citizen of all these states. Notice that this will make it harder for a partnership to be sued in diversity.

Know that if you, as a corporation, start assigning assets in a crazy way in an attempt to create or destroy diversity, then it’s not going to work. Remember: if you’re a corporation it’s easier to get stuck in a diversity suit than if you’re a partnership.

The plaintiff controls their own lawsuit, and they can bring their claim under a state law in state court, or a similar federal law in state or federal court. They can bring their claim under federal law in federal court even when their interpretation of federal law is ultimately incorrect—i.e. come to find out plaintiff is not a protected class doesn’t mean that they can’t bring a federal claim for discrimination to begin with.

This seems like a given when you actually think about it, but it’s worth remembering.

There are times when the defendant can remove a case to federal court, but they can’t remove it under federal Q when the only federal issue is their affirmative defense. See Louiseville.

You can remove from state to federal court, but you can never remove from federal court to state court. Remember: the defendant cannot remove by raising a federal question or issue as a defense.

28 USC §1441: A) …An action brought in a state court of which the district courts of the Untied States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. B)Any civil action of which the district courts have original jurisdiction founded on a claim arising under the Constitution, treaties, or laws of the United States shall be removable…any other action shall be removable only if none of the parties [that is a defendant] is a citizen of the state in which such action is brought. C) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title [federal question] is joined with one or more otherwise non-removable claims or causes of action the entire case may be removed and the district court may determine all issues therein.

The defendant can remove the action to federal court if that claim would have been brought in federal court originally—i.e. if there is diversity or a federal Q at issue. But watch out!—if the defendant was sued in his home state then he cannot remove! This is key! The idea is that the defendant will not be biased when he already has home court advantage.

If removed, the case will removed to the federal district court of the district where the state court claim was brought—i.e. from state court in SD to the southern federal district court of CA.

Notice that when the action is a federal question, then it and all the cases that are joined with it are removable to federal court, even if those attached cases wouldn’t be removable on their own. Since there is no provisions for diversity, I assume that it doesn’t work like this for an original action that was based on diversity.

28 USC §1446: A defendant or defendants desiring to remove any civil action or criminal prosecution from a state court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal pursuant to Rule 11…and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant in the action.

Venue is the question of which particular court and which particular geography the case should be heard in. This is a statutory issue. As opposed to subject matter jurisdiction which determines which system the case should be heard in an is a constitutional issue.

28 USC §1391: A civil action wherein jurisdiction is founded only on diversity of citizenship may be brought only in 1) a judicial district where any defendant resides, if all defendants reside into eh same state, 2) a judicial district in which a substantial part of the events or omissions occurred, 3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced if there is no other district…A civil action wherein jurisdiction is not founded solely on diversity may be brought only in 1) a judicial district where any defendant resides, if all defendants reside in the same state, 2) a judicial district in which a substantial part of the events or omissions occurred, 3) a judicial district in which any defendant may be found if there is no other district.

-District where any defendant is subject to personal jurisdiction, if no other

Bates—This liberal reading of “where the events of the claim arose” is typical of liberal venue ideas.

There is a statute that allows for change of venue—but the burden will be on the moving party to show why it’s necessary to change (think of a situation like the Virginia mine owners—they might have a good reason for change of venue.) Although the original choice of venue gives power to the plaintiff, because venue will be difficult to change.

The ESSENCE of forum non—the court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute. Remember that the federal venue provisions still allow for some “venue shopping” on the part of the plaintiff—the plaintiff may look for a venue in a very inconvenient place, just to harass the defendant and leverage him into doing what he wants.

A district court may consider such things as easy access to evidence, the cost of obtaining the attendance of witnesses, the enforceability of judgment, etc. They will consider things that will make the case easy, expeditious, and inexpensive.

Take the Piper case: Defendant is American company, and the people on board the plane were all Scottish; the plaintiff executor is American.

-Defendant wants to dismiss action on forum non and instead agree to be sued in Scotland, where they can have the Scottish pilot as a codefendant.

The more contacts with the US, the harder it is to get the case dismissed based on forum non.

So, the federal court has jurisdiction over cases of federal question, and diversity. Under our lovely parallel state/federal system, there is a question of which system of law a federal court should apply to a case based only on diversity. Remember: We’re looking at the federal law v. state law aspect, not state law v. state law, which is a question for the elusive Conflict of Laws.

Swift v. Tyson—The federal court would apply state statutory law, but not state common law. They would apply federal general law instead. The idea is that a federal general law would influence state laws, which would conform to federal laws and create greater uniformity. Over stepping boundaries a little?—um, yeah. It didn’t work.

Eerie—Eerie says that there is no such thing as federal general law. State common and state statutory law should apply—as to which law should apply, this is a question for the Conflict of Laws (fun fact: the federal court will follow the Conflict of Laws of the state in which they sit).

The idea that Swift would bring uniformity to state common law didn’t actually happen—instead, it resulted in forum shopping. Notice that the SC ruled on this case sua sponte—on an issue that wasn’t presented on appeal.

So, in a case based on diversity a federal court should apply the relevant statutory or common law of the state. But what about rules pertaining to procedure?

Guaranty—a state’s substantive law should always be applied (think SOL); but where the matter is procedural, state law will apply only where it will substantially change the outcome of the case. However, under this case any difference in any rule could change the outcome of the case.

Hanna—here, the state law said to deliver process to the person, and the federal law said to deliver it to the residence. This could be outcome determinative under Guaranty, but the court now says that if it’s found in the FRCP, it’s procedural and will govern. Procedural rules of the FRCP won’t make much difference to the outcome of the case where the parties are paying attention to them.

SOL = Substantive, will always apply of the state; and of course, substantive law includes common law and statutory law.

So, in a case based on diversity a federal court will apply the statutory and common law of the relevant state, and the procedural law of the FRCP. But what do you do when you have really, really old state common law?

Mason—this involved a federal court dealing with privity of contract in products liability. In a recent decision, the state court mentioned that they recognized the trend towards getting rid of the privity idea; but the decision on the books was from a long time ago which upheld privity of contract.

The federal court chooses to follow dicta, instead of the old holding on the books. This, of course, is not binding on the state when the issue does actually come up again. AND the federal court will be bound by the state’s future decision.

Fun Fact: A federal court can certify a question by asking a state court how it will rule on a particular issue. 45 states take questions from the Court of Appeals, and 35 take questions from district courts too.

So…when I said there was no federal general law this is pretty much true—there is a federal common law when it comes to federal interests.

Boyle—this is the helicopter contractor case. The court says that without governmental immunity, companies might not enter into government contracts. Ergo, this is a case for federal common law, and not for state tort law. The court considers that these weren’t “broiler plate” machines, and had specifications made by the government.

This federal interest common law will most likely apply in situations of foreign policy or defense.

The federal court will apply state substantive law, whether common law or statutory law. There is a possible exception to this when the state law is really outdated and the state has indicated that they’re open to change. Federal procedural law always applies in diversity. Is there federal common law?—yeah. There’s federal common law with respect to:

The basic rule of joinder is that you can join as many claims as you like. They don’t have to be related to the same event—the plaintiff can bring multiple unrelated claims against the defendant in one action.

Remember that to use joinder in federal court there must be either supplemental (dependant) jurisdiction, or independent subject matter jurisdiction. Supplemental jurisdiction means that the claim is part of the same case/controversy or came out of the same operative events as the main claim that got you into federal court. Independent jurisdiction means that your “joinder” claim is either a federal Q, or has complete diversity.

Within the guidelines of supplemental jurisdiction and independent subject matter jurisdiction:

BUT cross claims (claims by defendants, against defendants) have to be part of the “original” case/controversy. I believe that these cross claims can relate to whatever claims are being thrown around by the plaintiff and defendant in this action—whether they are there by supplemental or independent subject matter jurisdiction.

Rule 19: [A] A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if 1) in the person’s absence complete relief cannot be accorded among those already parties, or 2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may i)…impair or impede the person’s ability to protect that interest, or ii) leave any of the persons already parties subject to a substantial risk of incurring…inconsistent obligations. [B] If a person as described hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered into eh person’s absence might be prejudicial to the arson or those already parties. Second, the extent to which…the prejudice can be lessened of avoided; third, whether a judgment rendered into the persons’ absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Provident—joining Dutcher as an indispensable party would destroy diversity. His apparent ability to protect his interests was not impeded by the court’s decision to allow the plaintiffs to litigate directly against the insurance company.

Consider that Rule 19 allows the plaintiff to join defendants—think of the hunting situation where the plaintiff can’t bring a claim against them separately, but can be succesfful against them together. I think this would fall under, “in the person’s absence, complete relief cannot be accorded among those already parties.

Rule 20: [A] All persons may join in one action as plaintiffs if they assert any rightly to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences…All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence…and if any question of law or fact common to all defendants will arise into eh action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. [B] The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim band who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.

All people can be joined as plaintiffs (even if the original plaintiff doesn’t want them to) or may be joined as defendants if the claims by/against them arise out of the same transaction/occurrence.

Remember: the FRCP will not address the subject matter jurisdiction issue, but §1367 does. If the case is based on diversity, then Rule 20 won’t work; if this weren’t the case then P1 (CA) would get P2 (NV) to sue D (CA) in federal court and then add P1 under Rule 20.

Relate back to §1367—a plaintiff can join other plaintiffs, unless the action is based on diversity, in which there will be no supplemental jurisdiction (for same transaction/occurrence). The new plaintiff cannot destroy diversity. It will not be waived for the first plaintiff.

NOTE: Rules 19 and 20 are a method by which existing parties can join additional parties. Rule 24—intervention—is a method by which an outside party can join themselves! Rule 14 is a method by which a defendant only can join an additional party for his own purpose; i.e. for his own, “suit.”

Rule 42(b): The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue, or of any separate issue or of any number of claims, cross claims, counterclaims, third party claims, or issues.

The judge can separate out any joined claims, or any claims for that matter, at his discretion. Think of a rape, robbery, and fender bender situation—the parties can raise a motion, or the court can separate sua sponte.

Rule 13(a): A pleading shall state as a counterclaim any claim which at the time of serving the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication eh presence of third parties of whom the court cannot acquire jurisdiction.

Compulsory counterclaims pertain to the same transition/occurrence of the original claim. They are compulsory!—this means that they must be raised in that suit if they are going to be raised at all! The defendant can bring this kind of claim even where there is no independent subject matter jurisdiction for it. When it comes from the same transaction, you’re good—you don’t need to meet diversity/fed Q or amount requirements! Think of a compulsory counterclaim as having an automatic supplemental jurisdiction.

Compulsory counterclaims are a res judicata issue—once the claim has been litigated, it can’t be re-litigated.

Permissive counterclaims don’t arise out of the same transaction or occurrence; the defendant can bring the permissive counterclaim only when he has an independent basis for subject matter jurisdiction. Think of permissive counterclaims in terms of MUST have independent subject matter jurisdiction!

Whoa, check you out! You the defendant can essentially become the plaintiff when you counterclaim against P for more than his complaint damages! Way to take the bull by the horns!

Rule 13(g): A pleading may state as a cross claim any claim by one party against a cop arty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross claim ay include a claim that the party against whom it is asserted is or may be liable to the cross claimant for all or part of a claim asserted in the action against the cross claimant.

Rule 13 deals with counterclaims and cross-claims! So, counterclaims are divided into compulsory and permissive, but cross-claims aren’t. Remember that cross claims are not compulsory! Unlike counterclaims, cross-claims can only arise out of the same transaction or occurrence. Only! Rule 13(g) doesn’t waive a subject matter requirement, but §1367(b) does.

Cross claims are by defendants, against defendants—they must relate to the transaction/occurrence of the original claim, or counterclaim. Suppose:

Cross claims can relate to the antitrust issue, which is attached only by independent subject matter jurisdiction, since it’s not the same transaction/occurrence.

D1 cross claims D2 for D1’s responsibility—remember, this isn’t the same as D1 imp leading D2 (in which they would be third party parties.) D2 is already there for a cross claim.

Also, remember that plaintiffs can file cross claims. It goes like this—P v. D; D can cross claim against D2. D counterclaims P; P can cross claim P2 on this issue.

Umm…so you may be thinking that it’s important to figure out what the same transaction occurrence is. You’re right! Heyward—plaintiff v. defendant over a federal job (fed Q jurisdiction.) Then the defendant counterclaims over a different job that wasn’t part of the federal contract (no independent fed Q). Without an independent subject matter basis, defendant’s counterclaim must be compulsory if he wants to bring it in this lawsuit—i.e. it must be out of the same transaction/occurrence.

The court finds a logical relationship between the two jobs—they are covered under the same policy, they have intermixed funds, etc.

Remember: if the court finds that it is part of the same case/controversy, you will lose out if you don’t bring the claim up in this suit!

Four tests have been proposed to determine what the same transaction/occurrence is for purposes of Rule 13:

Supplemental jurisdiction IS the same transaction/occurrence—the relationship of the claims permits the conclusion that it is one constitutional case; i.e. you discriminated against me when you fired me (federal Q) and you violated the terms of our contract in doing so (state). United Mine Workers.

Supplemental jurisdiction will not be diluted in a federal question case; it will be there to stick to claims that both the defendant and plaintiff bring.

But if you’re dealing with an action based only on diversity, then watch out; supplemental jurisdiction becomes a fickle friend. It will still apply to the defendant and whatever claims he wants to bring (finally the defendant gets a break!) But it’s not going to work for claims that a plaintiff wants to bring against these specific parties:

Rule 14—A third party defendant is impleaded by the defendant. The original plaintiff cannot bring an action against this third party defendant when the original action is based on diversity, unless there is an independent subject matter basis for it (i.e. unless third party defendant is diverse, or the claim plaintiff is bringing against him is a federal question.)

Rule 19—A plaintiff or defendant is joined to the action as an indispensable party; under Rule 19, this person is not supposed to be joined if it would destroy the subject matter basis (i.e. diversity) of the original action.

The plaintiff cannot engage in a claim against this party where it would destroy subject matter jurisdiction. i.e. if this person is joined as a defendant, then it shouldn’t be a problem since they can’t be joined as a defendant if they would destroy diversity. However, if they were joined as a plaintiff, the original plaintiff cannot engage them in additional litigation on this same issue unless there is independent jurisdiction.

Also, the court will NOT have supplemental jurisdiction over any claims this party brings if they are brought in as a plaintiff. The claims must have an independent basis for subject matter jurisdiction.

Rule 20—A plaintiff or defendant is joined to the action as a permissive party. The plaintiff cannot bring any claims against them without subject matter jurisdiction.

Rule 24—A plaintiff (presumably) intervenes. The original plaintiff cannot litigate with them without independent subject matter jurisdiction.

Also, the court will; not have supplemental jurisdiction over any claims that this party brings.

Don’t forget where the restrictions apply. We are restricting action by plaintiffs against people made parties under 14. 19. 20. 24. and we are restricting joinder by parties as plaintiffs under 19. 20. 24. i.e. you cannot intervene under 24 or be joined under 19 as a plaintiff if it would be inconsistent with diversity.

28 USC §1367: [A] In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to the claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III [B] In any civil action of which the district courts have original jurisdiction founded solely on §1332 (diversity), the district courts shall NOT have supplemental jurisdiction over claims by plaintiffs against persons made parties under Rule 14 [third party defendants impleaded by defendant], 19 [persons joined as indispensable parties], 20 [persons joined as permissive parties], or 24 [persons intervening, i.e. joining themselves]; or over claims by persons proposed to be joined as plaintiffs under Rule 19 [indispensable party] of such rules, or seeking to intervene as plaintiffs under Rule 24 [intervention] of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of §1332

§1367(a) grants very broad supplemental jurisdiction BUT §1367(b) says that where the jurisdiction of the original claim is founded on diversity, then there is no supplemental jurisdiction of claims made by the plaintiff. However, a counterclaim is a claim made by the defendant—therefore there is supplemental jurisdiction for the defendant even if there would be no independent subject matter jurisdiction of their claim.

An impleader is not a cross claim, it’s an impleader. It’s an animal all its own.

Then D impleads to become P3 v. D3—third party plaintiff against third party defendant

Rule 14(a): At any time after commencement of the action a defending party, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third party plaintiff for all or part of the plaintiff’s claim against the third party plaintiff. The third party defendant shall make any defenses to the third party plaintiff’s claim as provided in Rule 12 and any counterclaims gains the third party plaintiff and cross claims against other third party defendant as provided in Rule 13. The third party defendant may assert against the plaintiff any defenses which the third party plaintiff has to the plaintiff’s claim. The third party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff. The plaintiff may assert any claim against the third party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff, and the third party defendant thereupon shall assert any defines as provided in Rule 12 and any counterclaims and cross claims as provided in Rule 13. Any party may move to strike the third party claim, or for it severance or separate trial. A third party defendant may proceed under this rule against any person not a party to the action who is or may be liable to the third party defendant for all or part of the claim made in the action against the third party defendant.

Impleader, is like magic. The defendant turns into a third party plaintiff and claims that the new defendant, the third party defendant, is responsible for all or part of whatever damages the defendant might owe the plaintiff.

Once the defendant brings in the third party defendant, the plaintiff can’t bring other claims he has against the third party defendant where it would destroy diversity.

The plaintiff is someone with some kind of fund—a bank account, or insurance—that more than one person is claiming. The holder can interplead the parties and get a judgment from the court of who the funds belongs to.

The plaintiff/stakeholder will need subject matter jurisdiction—there most likely won’t be a federal question, so it will probably be through diversity. Keep in mind that the plaintiff will also need personal jurisdiction, but we have federal interpleader statutes that confer broader personal jurisdiction.

Interpleader is a matter of equity, not law, which means that there will be NO JURY TRIAL!

Rule 22: [1] Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection that the claims do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20. [2] The remedy herein provided is in addition to and in no way supersedes or limits the remedy provided by §1335.

28 USC §1335: The district courts shall have original jurisdiction of any civil action of interpleader filed by any person, firm, corporation…having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond…or amount of $500 or more, or providing for the delivery or payment or the loan of money…of $500 or more IF [1] Two or more adverse claimants, of diverse citizenship as defined in §1332 are claiming or may claim to be entitled to such money or property…[2] and if the plaintiff has deposited such money or property…into the registry of the court.

Such an action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are adverse to and independent of one another.

1) Statutory interpleader requires diversity among the defendant themselves—two or more of the adverse claimants have to be diverse. Remember that the stakeholder may also be a claimant—the stakeholder will be a claimant as with an insurance company that is claiming that they don’t have to pay the money out at all.

2) Also, there is a diversity requirement between plaintiff and defendants, but—unlike Strawbridge—minimal diversity is acceptable. i.e. CA v. AZ, AZ, CA is okay! Minimal diversity is all right under Article III! Remember that federal Q and diversity come from Article III, although they are phrased differently. The diversity requirement is basically taken care of by the first requirement, unless the plaintiff is somehow from two states at the same time.

1) The FRCP doesn’t really deal with diversity requirements, the default, then, is complete diversity. None of the claimants can be from the same state as the stakeholder.

Hypo: CA v. AZ, AZ, AZ for $80k. There is no statutory interpleader because the claimants have to be diverse with each other, which they’re not here. You can use rule interpleader instead because diversity and the amount are satisfied.

28 USC §2361: in any civil action of interpleader under section 1335 of this title, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any state or United States court affecting the property, instrument or obligation involved in the interpleader action until further order of the court.

The moral of State Farm—the only thing you can interplead for is your fund. You can’t interplead everyone’s lives.

Rule 24(a): Upon timely application anyone shall be permitted to intervene in an action when 1) a statute of the United States confers an unconditional right to intervene, or 2) when the applicant claims an interest relating to the property or transaction…and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Rule 24(b): Upon timely application anyone may be permitted to intervene in an action when 1) a statute of the United States confers a conditional right to intervene, 2) when an applicant’s claim or defense and the main action have a question of law or fact in common…In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Intervention of right comes about when the intervener’s interest is not adequately represented by existing parties. Permissive intervention is liberal—it’s allowed whenever there is a question of law or fact in common.

There must still be jurisdiction. If this is a federal Q, then there’s no problem with intervention. But if it’s diversity, and the person is intervening as a plaintiff, then they cannot destroy diversity—there is no waiver for them under §1367(b).

If a person is intervening as a defendant, then they can “destroy” diversity (not really) because there is supplemental jurisdiction under §1367(b).

If you remember nothing else: The default rule is that we have a liberal discovery system. Liberal discovery creates the possibility that information will be used, or abused.

Rule 26(a):…A party shall, without awaiting a discovery request, provide to other parties; a) the name and , if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claim or defenses…b) a copy of, or a description by category and location of, all documents…that the disclosing party may use to support its claims or defenses…c) a computation of any category of damages claimed by the disclosing party…d)…any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part of all of a judgment...These disclosures must be made at or within fourteen days after the Rule 26(f) conference unless a different time is set by stipulation.

The overview of discovery. Under the 1993 reforms, we now have mandatory disclosures—names of parties, witnesses, damages sought, insurance involved, etc.

Rule 26(b):…The scope of discovery is as follows: 1) Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party…For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. 2) The court may later the limits in these rules on the number of depositions and interrogatories or the length of depositions under Rule 30. By order or local rule, the court may also limit the encumber of requests under Rule 36. The frequency or extent of use of the discovery methods otherwise permitted under these rules and any local rule shall be limited by the court if it determines that i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive, ii) the party seeking discovery has had ample opportunity by discovery into eh action to obtain the information sought; or iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case.

The scope of discovery is limited to information that is relevant to the cause of action, but remember that this isn’t limited to evidence that would be admissible at trial. But if it’s not admissible, then it needs to be reasonably calculated to lead to the discovery of admissible evidence.

You’re entitled to what’s relevant to the claim, but it’s within the court’s discretion to require you to go further and furnish what’s relevant to the subject matter. Consider Lind Berger—changes to a product after a suit is filed are not relevant to the claim, but are relevant to the subject matter. It’s discretional.

Rule 26(c): Upon motion by a party or by the person from whom discovery is sought, accompanied by a certificate that the moving in good faith has conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court…may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following 1) that the disclosure or discovery not be had, 2)…that it be had only on specified terms and conditions…4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited 5) that it be conducted with no one present except persons designated by the court, 7) that a trade secret or other confidential research…not be revealed.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery.

Look to page 753 for some good examples of potential protective orders. A protective order will be very fact specific—if this information will reveal what nothing else will reveal then you have a strong case for disclosure. Look for how indispensable the information is, and if you could find it through other means. Consider the orthopedic case—the judge can examine information first to determine if it should be allowed in discovery.

Remember: The parties must talk with each other first!—in the case of an impasse, then you can go to the court for a protective order, or an order compelling discovery, depending on which side you’re on.

Rule 26(e): A party who has made a disclosure under subdivision (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or…1) A party…learns that the information disclosed is incomplete or incorrect.

Rule 26(f): …The parties shall, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution…The plan shall indicate the parties’ views and proposals concerning: 1) what changes should be made in the timing, for or requirement for disclosures, 2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases, 3) what changes should be made in the limitations on discovery imposed under these rules…

Parties must get together to plan discovery—time tables, what will be disclosed, etc.

Rule 37: A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery…for purposes of this subdivision, an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond…if the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion…to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees…If a party fails to admit the genuineness of any document or the truth of any matter requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the trust of the matter, the requesting party may apply to the court for an order requiring the other party to pay the party the reasonable expenses incurred.

There are presumptive defaults on the amount of depos and interrogatories, but not document discovery! Documents discovery can be limited by Rule 26 protective orders.

Rule 30: A party must obtain leave of court, which shall be granted to the extent consistent with the principles states in Rule 26(b)(2) if the person to be examined is confined in prison, or if, without written stipulating of the parties, a) a proposed deposition would result in more than ten depositions.

Limits the number of rogs you can propound to 25. The judge can of course increase this, but the default is 25. This limit is strict, since rogs are cheap to propound and take a lot of time and resources to answer.

Know that there is inconsistency in the court about what creates a subpart—“Please state the name, address, and phone number of all employees.” Is this one question or 3?

When discovery is really expensive, who would be made to pay? Consider the eight criteria of pg. 781! The presumption is that the person producing the information will bear the cost.

Rule 35: 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 open 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. B) If requested by the party against whom an order is made, the party causing the examination to be made shall deliver to the requestor a copy of a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made.

Schlangenhauf: The plaintiff must make an affirmative showing to justify the examination. You can’t just speculate/allege in the pleadings—there must be an affirmative showing. Here, the plaintiff met the burden for requiring an eye examination, but not a psychiatric test. These tests aren’t just readily ordered—there must be good cause. Notice: Rule 37 applies to failure to produce all kinds of discovery, except this one!

Rule 36: A parry may serve upon any other party a written request for the admission, for purposes of the pending action only, of the trust of any matters within the scope of Rule 26 set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request…The matter is admitted unless…the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter…If objection is made, the reasons therefore shall be stated…When good faith requires that a party qualify an answer or deny only a part of the matter, the party shall specify so much of it as is true and qualify or deny the remainder. B) Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.

These come at the end of discovery, before trial. Once a party makes an admission, then it’s biding for trial. In the old days, this was established by pleadings, but now it’s done by discovery.

Why should you make an admission?—if at trial, it becomes apparent that you don’t have any argument against it, Rule 36 allows for discretionary sanctions. If there was no reasonable basis for not admitting, then this is a reasonable basis for sanctions!

Cine Forty—If lawyers don’t play by discovery rules, they will get burned! They will be held to be grossly professionally incompetent! When you aren’t playing nice, there are a variety of Rule 37 remedies—everything from striking your case, to financial remedies, to contempt!

This is the lesson that the underlying ethic of discovery is that it should be liberal.

Rule 16: In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference…for such purposes as, 1) expediting the disposition of the action, 2) establishing early and continuing control, 3) discouraging wasteful pretrial activities, 4) improving the quality of the trial through more thorough preparation, and 5) facilitating the settlement of the case.

This requires that time limits be set down for discovery. It permits the court to have a pretrial conference—judges love this. The parties come with evidence and organize the facts in dispute. i.e. they organize how the trial will go. Judges can issue orders based on the conference. Under Rule 16, judges are no longer passive; which can be a good or bad thing, depending on your point of view.

Know that summary judgment does not occur in the context of trial. Summary judgment is an alternative to trial.

Rule 56: A party seeking to recover upon a claim, counterclaim, or cross claim or to obtain a declaratory judgment may, at any time after the expiration of 2- days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof…A party against whom a claim, counterclaim, or cross claim is asserted may, at any time, move for a summary judgment…

Cole Porter: All the evidence there was in this case was the song, and the possibility that the jury would disbelieve Porter’s evidence. Is this…evidence at all? This is an iffy situation for trial.

Celotex: The defendant moved for summary judgment, and didn’t attach any counter evidence or affidavit to the motion—all that it said was that the plaintiff’s evidence was not enough to show that the defendant’s asbestos was at fault.

Rule 56 does not require that the moving party support their motion with an affidavit! Here, the plaintiff had the burden of proof—by a preponderance of the evidence.

It is possible that the defendant, through mandatory disclosures, could determine through the plaintiff’s evidence and witnesses that they have no evidence. Or at least not what they need to make any kind of a case.

In general, Rule 56 motions are not disfavored. The right side of the court leans this way, the Celotex way. The left side of the court might go ahead and allow something like a Cole Porter case to go ahead.

1) If the moving party has evidence, and the non-moving doesn’t (they have a claim that the jury will disbelieve the movant’s evidence) is this a genuine issue of fact? Most court’s today will say no—allow summary judgment. Remember: This is most courts—which is a lot, but not all.

2) If an affidavit is disputed by a really good affidavit (i.e. “I saw a label” v. “This company has never in its history attached labels”)—is this an issue of fact?

If there is a plausible chance that a jury would believe it, then okay. If no reasonable jury could believe it, then no. Remember: Summary judgment avoids trial. If there is any issue of fact then it will go to the jury.

If you don’t do your summary judgment motion before trial, you can do it after in the form of judgment as a matter of law, which essentially says that either the party hasn’t met their burden of proof (“no evidence”) or that there is no evidence that a reasonable jury would believe (good affidavit against a poor one.)

Which party can decide if there will be a jury trial?—either side can request a jury trial if one is allowed for the case. Both parties can choose to waive the right to a jury trial.

The right to a jury trial comes from the seventh amendment; this amendment allows for a jury for suits a common law, but not equity. Notice, then, that the plaintiff has some latitude in determining whether there will be a jury trial or not by deciding what remedy to ask for.

The court systems are merged in the US; but even though they’re merged, the law/equity distinction still matters when it comes to deciding whether the party gets a jury trial! Remember that the plaintiff can plead in the alternative—i.e. they can request damages and/or an injunction. When this happens, is there a jury trial or not?

Beacon: If there is any substantial question of law that is a predicate to money damages, then the party gets a jury. You could have a case where the jury finds a contract and gives damages, and the judges finds no contract and gives no injunction. Just the way it works.

Curtis: Even where legislative intent (on a Civil Rights bill) indicated that they didn’t want jury trial, an action at law (for damages) will get a jury trial!

Jury misconduct can be grounds for appeal or new trial—but it would be something like someone coming into the room to threaten the jury. One of the juror telling on another isn’t enough.

Don’t Forget!—The seventh amendment was not incorporated against the states. Different states will have different thresholds for when you’re entitled to a jury trial.

It used to be that right before the case went to a jury, you could file a motion for a directed verdict. After an unfavorable jury ruling, you could bring a motion for judgment notwithstanding the verdict, or motion for judgment nov.

Rule 50: If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against the party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained, 2) Motion s for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment b) If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as matter of law by filing a motion no later than 10 days after entry of judgment.

If a party has been heard and the other party believes that there is no legally sufficient basis for them to be given relief/acquittal, then they can ask for judgment as a matter of law. Hereinafter affectionately called JML.

Know that you can bring a motion for JML on a particular issue—you don’t have to bring it for the entire case, although you certainly can.

When we saw “as a matter of law” we’re saying that there is no evidence upon which a jury could find otherwise. Ergo, it isn’t infringing on a right to a jury trial. See Galloway—it’s fine to take a factual dispute away from the jury when no reasonable jury would reach a contrary result.

Granting this motion is going to be easiest when there is no contrary evidence against it. Or no evidence at all. Or if the plaintiff clearly hasn’t met their burden of proof, then it’s a good candidate. However, if the case has come down to which witness to believe, then this is probably best left to the jury.

Kanner: Remember that the plaintiff has the burden of proof on the case, but the defendant has the burden of proof for all affirmative defenses.

The general view is that just saying that a party may be disbelieved is not enough to survive JML. Unless you somehow discredited the other side, i.e. through cross examination or other.

A court can deny JML, send the case to the jury, and then the party can resubmit a JML motion and the judge can grant it and go against the jury. Why on earth would we do it this way?

If a party appeals to the appellate court, they may reverse the lower court decision. If there was a jury verdict, then they can simply reinstate the verdict. But if there wasn’t then the entire thing has to be retried, which is expensive.

Although notice that the JML has the same effect—a JML after a jury verdict is essentially saying that the jury is not reasonable.

Keep in mind that a prerequisite to a post verdict motion is that there was a preverdict motion. If you could bring a JML after the jury verdict, then this would be more of an affront to the seventh amendment, since you’re directly contradicting a jury. “Renewing” a JML that was made before a jury verdict is like giving lipservice to the seventh amendment—you can say that the jury verdict was always subject to the motion. It’s not reexamined—it’s like it never happened.

Remember: With the JML you aren’t saying that your evidence is better—you’re saying that the other party essentially has no evidence, or none that a reasonable jury would believe.

It’s simple: There is no relitigation of the same action/cause of action/case/controversy, etc. Res judicata applies to the SAME PARTIES and the SAME CASE/CONTROVERSY.

When the case has been decided, it’s res judicata. The plaintiff cannot split their case—they cannot have personal damages separated from property damages on the same indecent.

In order to be res judicata, the second case must be part of the same transaction as the first offense. You must demonstrate that the evidence of one is essentially the same evidence of the other.

What if the plaintiff tries for damages, and then years or months later, has more damages that couldn’t be anticipated at the time of the original suit?—the idea of res judicata is repose; parties shouldn’t be liable forever.

What if the defendant is bringing a claim against the plaintiff on the same issue?—it’s not res judicata, it’s a compulsory counterclaim issue. This is a tough issue.

To get around being blocked by the res judicata (if you’re the plaintiff) or counterclaim (if you’re the defendant) issue, then you need to argue that what you’re bringing is either NOT the same case or not the same parties!

Cromwell: This may look like res judicata—same parties, same case—the case was about bonds, and the first plaintiff was essentially a straw person.

But the court says that the respective plaintiffs are different people, and the notes at issue are different. What if it was a dispute about the same note?—the plaintiff is entitled to his day in court, and if it can’t be shown that he and the previous plaintiff were basically the same party. The defendant can’t claim issue preclusion on the note against a new plaintiff—otherwise they would get a straw man to litigate it against them originally so they could win.

When cases share an issue in common, we prevent parties from relitigating that issue. First, start with the simple case where the parties are the same:

Suppose that the wages D wants to get are from the day that the fender bender occurred. Both of these cases share one issue—where was D on that day?

This is issue preclusion—the cases share an issue, and the parties cannot relitigate it. Whatever was found about D’s whereabouts in Case 1 will be binding in Case 2, on both parties.

2) The issue must have been actually litigated—i.e. maybe subject to damages, determined by the jury. In other words, not just mentioned in the pleadings (the parties don’t have an obligation to litigate peripheral issues.)

3) It must have been material to the first case—it must be essential to the outcome.

In Case 1, the jury determined that everyone was negligent. Because this was a contributory negligence jurisdiction, P was barred from any kind of recovery—not against D, not against R. Now, in Case 2, D wants to claim issue preclusion—i.e. that it was already determined that R was negligent. The issue of R’s negligence was 1) the same issue, 2) actually litigated, BUT NOT 3) material to the first case, since the issue of his negligence, in light of P’s, was irrelevant.

Consider also that R never had an opportunity to appeal the judgment—Case 1 was essentially decided in his favor, since he didn’t have to pay anything. We want to be sure that everyone has their full day in court.

Hanover: When there are “settlements” completely out of litigation, will this work for issue preclusion? Does it meet the actually litigated requirement?—we won’t go into this much here.

Know that there is controversy in courts about whether issue preclusion can ever come from a default judgment.

So, that was easy issue preclusion. Slightly harder issue preclusion involves different parties. When are varying parties bound by judgments from previous cases?

These cases share the common issue of A’s negligence. If A wins in Case 1, he cannot preclude that issue against C. You cannot invoke collateral estoppel against a party who didn’t get a chance to litigate in the first place. The mutuality part comes in because if A lost in Case 1, C likewise cannot preclude the issue of A’s negligence in the second case.

The essential issue of these cases was if the Cooks rightfully had the money. Case 1 found against H on this issue; in Case 2 B would obviously like to preclude this issue, except for that stupid mutuality thing.

The court decides to get rid of mutuality. H had her day in court on the issue—it was the same issue, actually litigated, material, and all that good stuff.

This means that B can use estoppel defensively. Unilaterally. And keep in mind that if A had won Case 1, she could not have precluded the issue in Case 2 against B, because B didn’t have their day in court.

Just assume that they have an issue in common, and that H1 won on that issue. H2 can now preclude that issue against B in H2’s suit. B had their day in court (which is key!) so it makes sense to do it this way.

Parklane—held that issue preclusion is allowed at the discretion of the trial court. If offensive estoppel gets out of hand, then the court can stop it.

The chances for abuse come from one lawyer collecting a bunch of clients, and then putting them one by one against the defendant, just waiting for a good judgment that will decide all the subsequent cases.

Know that we don’t allow offensive collateral estoppel against the US, if that tells you anything about how we feel about it.