Civil Procedure II: Schwarzschild Outline 3
Civil Procedure II
Schwarszchild Outline
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JOINDER
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Definition:
the uniting of parties or claims in a single lawsuit
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It is not required for P to join in a single action separate and independent
claims, Ps usually join related claims due to principles of res judicata and
danger of collateral estoppel.
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Permissive Joinder (of claims)
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Common Law-
joinder of separate claims permitted only if all claims were in the same
form of action and there was identity of parties to each claim.
Now:
FRCP 18. Joinder of Claims and Remedies.
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(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.
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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.
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P can even join claims to meet the jurisdiction amount requirement for fed DJ if
ag the same person arising from a separate transaction
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only restriction on the claims that may be joined is imposed by SMJ
requirements.
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Ex. Joinder of parties rules in multi-party cases
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Rule works in tandem w/ Rule 15 (amendment of pleadings) and Rule 20 (Joinder of
parties)
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In its discretion, the trial court may remedy any possible inconvenience or
prejudice caused by the joinder of claims by ordering separate trials.
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FRCP 42. Consolidation; Separate Trials
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(b) Separate Trials.
The court, in furtherance of convenience or to avoid prejudice, or
when separate trials will be conducive to expedition and economy,
may order a separate trial of any claim, cross-claim, counterclaim,
or 3rd party claims, or of any separate issue or of any number of
claims, cross- claims, counterclaims, 3rd party claims, or issues
always preserving inviolate the right of trial by jury as declared
by the 7th Amendment to the Constitution or as given by a statute of
the United States.
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As part of her answer, D may set forth by way of counterclaim any claims
that she has against the P.
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FRCP 13.
Counterclaim and Cross-Claim.
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(a) Compulsory Counterclaims.
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If D's claim ag the P arises out of the same transaction as the
claim set forth in the complaint, the counterclaim is compulsory=
it must be asserted in the action or it will be barred
(principles of res judicata, waiver or estoppel can explain this
result)
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United States
v. Heyward-Robinson Co.
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Rule 13(a)
a counterclaim is compulsory if it arises out the
transaction or occurrence that is the subj matter of the
opposing party's claim.
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If compulsory, fed court acquire jurisdiction ancillary to
the jurisdiction of the claim asserted in the complaint and
no independent basis of fed jurisdiction is required.
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A counterclaim is compulsory:
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Arises out of the transaction or occurrence that is the subj
matter of P's claim AND
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Does not require the presence of 3rd parties over whom the court
has no jurisdiction (provision invokes the requirement of Rule
19)
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4 tests suggested for determining whether claims comprise the same
transaction for purposes of Fed Rule 13:
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Are the issues of fact and law raised by the claim and
counterclaim largely the same?
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Would res judicata bar a subsequent suit on D's claim absent the
compulsory counterclaim rule?
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Will substantially the same evidence support or refute P's claim
as well as D's counterclaim?
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Is there any logical relation btw the claim and the
counterclaim?
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(b) Permissive Counterclaims.
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A pleading may state as a counterclaim any claim against an opposing
party not arising out of the transaction or occurrence that is the
subject matter of the opposing party's claim.
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Permissive= optional for D to assert them in the counterclaim; may
be brought in a later, separate action
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When D's claims ag the P are unrelated to the claims set forth in
the complaint
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(c) Counterclaim Exceeding Opposing Claim.
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A counterclaim may or may not diminish or defeat the recovery sought
by the opposing party. It
may claim relief exceeding in amount or different in kind from that
sought in the pleading of the opposing party.
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(d) Counterclaim Against the United States.
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These rules shall not be construed to enlarge beyond the limits now
fixed by law the right to assert counterclaims or to claim credits
against the United States or an officer
or agency thereof.
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(e) Counterclaim Maturing or Acquired After Pleading.
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A claim which either matured or was acquired by the pleader after
serving a pleading may, w/the permission of the court be presented
as a counterclaim by supplemental pleading.
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(f) Omitted Counterclaim.
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When a pleader fails to set up a counterclaim through oversight,
inadvertence, or excusable neglect, or when justice requires, the
pleader may by leave of court set up the counterclaim by amendment.
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28 USC 1367. Supplemental Jurisdiction
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(a)
Provides for supplemental jurisdiction over claims that are part of the
same case or controversy under Article III of the Constitution as the
P's claim.
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(b)
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D may set forth in the answer any claims that she ag a co-D that relate to
the transaction or occurrence or to any property that is the sub of P's
complaint
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Responsive pleading- co-D ag whom the claim is asserted must file an
answer to cross-claim (Rule 7(a))
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cross-claims are permissive & failure to raise them doesn't bar suit in
subsequent action
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LASA per L'Industria del
Marmo Societa per Azioni v. Alexander.
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Since cross-claim must relate to the transaction in the existing action,
better view is that it is w/in the supplemental jurisdiction of the
court, and no independent ground for fed jurisdiction is required.
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Basic cross claim ag a co-D; P1 could cross-claim ag his co-party P2 for
contribution as to the claim asserted in D's counterclaim
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FRCP 13
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(g) Cross-Claim Against Co-Party.
A pleading may state as a cross-claim any claim by one party ag a
co-party 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 subj matter of the
original action. Such
cross-claim may include a claim that the party ag whom it is asserted is
or may be liable to the cross-claimant for all or part of a claim
asserted in the action ag the cross- claimant.
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2 prerequisites for a cross claim:
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That it be a claim by 1 party ag a co-party and
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That the claim arise out of the same transaction or occurrence as
the original counterclaim
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(h) Joinder of Additional Parties.
Persons other than those made parties to the original action may be made
parties to a counter-claim or crossclaim in accordance w/the provisions
of Rules 19 and 20.
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cross-claimant may add new parties ag whom it has claims growing out
of the same transaction
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Counterclaims
lie only ag the opposing party (P) and sometimes compulsory
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Cross-claim
lies ag a co-party (D2) and permissive
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Impleaders
are claims ag a 3rd person who is a stranger to the action
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Impleader
claim is limited to a claim for indemnification or contribution
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Cross-Claim
can be asserted for any claim D1 has against D2 arising out of the
transaction that is the basis for the P's action
Permissive Joinder of Parties
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Rules of PJ apply to parties who may be joined ("proper parties")
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P may join anyone involved in the transaction that is the subject matter of
the suit
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FRCP 20. Permissive Joinder of
Parties
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(a) Permissive Joinder.
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Parties may join or be joined in 1 action if:
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A right to relief is asserted by (or ag) them jointly, severally, or
in the alternative
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Separate or joint
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Ea P isn't req'd to have an interest in every cause of
action in all the relief prayed for.
If there's several Ps, they have the opt. to seek
separate relief or joint relief.
If several Ds are joined, the relief sought may be ag
ea separately or ag them jointly.
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In the alternative
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P "in doubt" sometimes, a P may be in doubt as to which of
sev D is liable for his injuries in such a case.
It's proper for P to set forth a claim ag ea in the
alternative, so that their respective liabilities can be
determined.
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Court shouldn't dismiss after close of P's case merely
b/c P hasn't show which of the 2 Ds is responsible if
has shown that 1 of them must have been
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Not unfair to req ea of the D to assume the risk of
failure to show that he wasn't responsible @ least
reserve decision on the motion to dismiss until
after the Ds rest
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Right to relief arises out of the same transaction or series of
transaction and
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Construed very broadly
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Some causal relationship or interrelation among D's conduct, or
in the interest being asserted by multiple Ps is suff
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Where D's are joined in the action b/c P is in doubt about which
1 cause his injuries, the injury issues supplies the requisite
relationship b/w the claims joined even where the conduct of the
2 Ds is otherwise
factually unrelated
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There's at least 1 question of law or fact common to all parties
sought to be joined ("Common question requirement"):
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Suff if there's a single question of law in fact common to all
parties joined (not nec that the common question be in dispute)
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If this req is relatively unimp court will define req #2
more narrowly to prevent joinder of claims that
have no sig evidentiary relationship to each other
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=practical test applies- art the issues in the 2 claims
factually intertwines w/ ea other in any sig way
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there are limitations on the rules of joinder where there are
several co-P or co-D but no restriction if a single P is suing a
single D. When there are
multiple parties, at least one of the claims by or against each
party must arise out of the same transaction or series of
transactions and must involve a common question of law or fact
affecting each of the parties joined
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(b) Separate Trials.
Option for the court @ its discretion to remedy any possible
inconvenience or prejudice caused by the joinder of claims by ordering
separate trials
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As long as the req for joinder of parties are met, each of the parties
joined may assert as many claims as she has ag any opposing party (Rule 18)
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Allows unlimited joinder of claims as long as there's a transactional
connection among all of the parties
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FRCP 21. Misjoinder & Non-joinder of Parties.
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Misjoinder of parties is not ground for dismissal of an action. Parties
may be dropped or added by order of the court on motion of any party or
of its own initiative at any stage of the action and on such terms as
are just. Any claim against a party may be severed and proceeded with
separately.
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A misjoined claim may be dismissed on motion of the party ag whom it is
asserted, and the whole action may be dismissed as to that party if no
claim for relief remains ag him
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28 USC 1367. Supplemental
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(b)
In addition to the req of personal juris over Ds, fed SMJ reqs must be
satisfied as to all parties (Ps or Ds) permissively joined= supplemental
jurisdiction not extend to PJ when permissively joined matter isn't part
of the same case or controversy w/the claim over which the fed court,
has original jurisdiction or in diversity cases where banned by 28
U.S.C. 1367(b)
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Note:
*Fed SMJ reqs must be met for all parties.
Supplemental Jurisdiction will NOT help when joinder is of a matter
that is not part of the same case or controversy as the claim over which the
federal court has original jurisdiction.*
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CJ rules cover parties who must be joined (indispensable parties) and those
who should be joined if possible (conditionally necessary parties)
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Joinder req'd for any person who has a material interest in the case and
whose absence would result in sub prejudice to the absentee or to other
parties before the court
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FRCP 19. Joinder of Persons Need for Just Adjudication
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Persons to be joined if feasible
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Provides that any person w/ an interest in the subj matter of a pending
action shall be joined as a party if:
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1) in his absence complete relief cannot be accorded those already
parties or
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2) his interests is such that to proceed w/out him would be
substantial prejudicial as to a practical matter b/c it would
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a) impair his ability to protect his interest in later
proceedings or
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b) expose the parites already before the court to the risk of
double liability or inconsistent obligation
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Determination by court whenever J is not feasible
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If a person to be joined cannot be made a party, the court must
determine whether in equity and in good conscience, the action can
proceed w/out him or whether action should be dismissed.
Court's determination based on following practical
considerations ("equity and good conscience" test)
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Extent to which any judgment rendered in the action would be
prejudicial to the interest of the absent party, or the interests of
those already by the court.
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Extent to which such prejudice could be lessened or avoided by
appropriate court action.
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Whether relief rendered w/out the absent party would be adequate,
and
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Whether the P has any other adequate remedy if the action is
dismissed for Nonjoinder of the absent party
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Pleading reasons for nonjoinder
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Exception of class actions
Impleader
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A procedure that permits D to bring into the lawsuit a 3rd person who is or
may be liable for all or part of the P's claim ag the D (only ag a person
not yet a party)
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Confined to those situations in which the defending party has a
right to indemnity, in whole or party, ag the impleaded 3rd
party
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Authorizes impleader of any person who is or may be liable for
any part of P's claim
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General rule: courts do not allow a P to implead a D's ins co until
after the P has obtained a judgment ag D
FRCP 14. Third Party Practice.
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(a) When
Defendant May Bring in Third Party.
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Impleaded party must also file a counterclaim or cross-claim ag existing
parties, or may implead any person who may be liable to him, subject to
the jurisdictional limits.
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(b)
When Plaintiff May Bring in Third Party.
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2 features that guard against prejudice to the 3rd party:
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3rd party may plead any defenses that the D might have ag the P's claim
and may participate fully in defending ag the claim; and
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Court may grant a separate trial on any separate issues of the 3rd party
claim if needed to prevent undue confusion or prejudice
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Leave of court is not required for impleader if the D (3rd party P) files a
3rd party complaint of impleader w/in 10 days after he serves his original
answer. Thereafter, leave of court
is required, and grant of the motion is @ the discretion of the court.
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Impleaded party must file an answer to the 3rd party complaint, and
answer may raise whatever defense could be asserted to the original
cause of action (P vs. D).
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Court has considerable discretion in deciding whether the permit a 3rd party
complaint
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Factors to be considered in determining whether to grant leave to
implead a 3rd party D are:
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Whether the movant deliberately delayed or was derelict in filing
the motion
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Whether impleading would unduly delay or complicate the trial;
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Whether impleading would prejudice the 3rd party D; and
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Whether the 3rd party complaint states a claim upon which relief can
be granted
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Court must balance the benefits derived from impleader (benefits of
settling related matters in 1 suit ag. Potential prejudice to P and 3rd
party D)
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28 U.S.C. Sec. 1367
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Impleader claim is usually deemed ancillary to the main claim and has no
effect on jurisdictional and venue requirements= an independent ground
of fed juris need not be established and impleaded D cannot object to
venue
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provides for supplemental jurisdiction over additional claims so long as
they are part of the same case or controversy as the action over which
the court has original jurisdiction.= std encompasses impleader claims
and additional related claims asserted by the 3rd party P ag the 3rd
party D.
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When a fed court's SMJ is based solely on diversity, Section
1367(b) withholds supplemental jurisdiction from Ps who bring claims ag
parties joined pursuant to Rule 14.
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Interpleader
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Device designed to enable a party who might be exposed to multiple claims to
money or property under her control ("stakeholder") to settle the
controversy in a single proceeding and require them to litigate among
themselves to determine which, if any, has a valid claim to the debt or
property involved
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Once the stakeholder's right to interplead is established and he has
deposited the funds or property in court, he can be released or
"discharged" from the litigation; it is up to the adverse claimants to
litigate their claims to the property
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2 types of interpleader:
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Rule 22 interpleader
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Permits interpleader in any action that meets the normal
jurisdictional requirements in fed court and proper diversity or fed
question
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Complete diversity btw P-stakeholder and all of the adverse
claimants or a fed question must be involved
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Where all the claimants are citizens of 1 state and the stakeholder
is a citizen of another- suit brought only under rule 22
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If case relies on diversity jurisdiction, jurisdictional amount is
the same as in any other civil action $75K
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Service of process is the same as in any other civil action
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Statutory interpleader--28
USC 1335
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Contains special provisions as to jurisdiction, venue, and service
of process, if:
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2 or more claimants of diverse citizenship are making adverse
claims to the same debt, instrument, or property owed or held by
the P and
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Minimal diversity is all that is needed
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Debt, instrument, or property has a value of at least $500
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P must deposit (or give security for) the entire amount in his
possession that is claimed by the claimants and may not hold back
amts that he claims
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Diversity among the claimants required
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Reach of process is nationwide
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28 USC 1397
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28 USC 2361
Intervention
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Procedure whereby a nonparty, upon timely application, may become a
party in a lawsuit in order to protect her interests in that action
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Whether intervention is allowed depends on a balancing of 2 conflicting
policies:
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That the P should be allowed to be "master of his action" in the sense
of joining such parties w/him or ag him as he wishes; and
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That other interested parties and the court have an interest in avoiding
multiplicity of litigation or inconsistency or result, which may require
overriding the P's choice of parties
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FRCP 24. Intervention/
Types of Intervention:
Upon timely application anyone shall be permitted to intervene in an action:
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(a) Intervention of Right
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(1) Federal statute
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Intervention granted as a matter of right where a fed statute
confers an unconditional right to intervene.
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(2) To Protect Intervenor's interest
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Also granted when the applicant claims an interest relating to
the property or transaction that is the subj of the action and
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.
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Nature of interest
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Outcome of litigation may impair intervenor's interests
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Intervenor not adequately represented by present parties
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(b) Permissive Intervention.
Upon timely application anyone may be permitted to intervene in an
action:
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Court has very broad discretion to permit a nonparty to intervene
if:
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A fed statute confers a conditional right to intervene;
or
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A question of law or fact in common w/the main action is part of
the applicant's claim or defense
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Motion for leave to intervene must be made in a timely fashion
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Effect of Intervention in fed cases:
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SMJ: if action is in fed court solely on grounds of diversity, there is
no supp juris over claims by intervenors or claims by P ag persons who
intervene (28 U.S.C. 1367(b))= must be an independent basis for
fed court juris to permit assertion of the claim.
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If fed juris doesn't depend solely on diversity of citizenship there
would usu be supplemental juris over claims by or ag intervenors of
right.
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DISCOVERY
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Common problems on the test:
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Scope of discovery=
Is the matter relevant to the claims or defenses in the action and not
privileged? Yes= w/in scope of discovery.
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Protective orders=
Is there a good cause for a protective order limiting, conditioning, or
delaying the discovery?
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Sanctions=
Has a party's resistance to discovery or noncompliance w/discovery rules
and orders been sufficient to warranty judicial imposition of sanctions?
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Main Vehicles for seeking discovery:
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Initial disclosure
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Depositions- Sworn oral testimony of witnesses
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Interrogatories- Written addressed to your opponent; always answered by
the lawyer
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Document request
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Request for inspection of property, crime scene, factory
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Request for physical and mental admissions
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Request for admissions
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FRCP 26. General Provisions Governing Discovery; Duty of Disclosure
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LIBERAL DISCOVERY!
(adopted in 1993 and amended in 2000)
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Discovery is not limited to admissible evidence; can get access to info
that you might not use during trial
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(a)
mandatory disclosure--
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Initial disclosure- produce only info that will support its claims and
defenses
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Materials to be disclosed:
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Identity of witnesses:
names, address, and if known phone number of any person the
disclosing party may use to support its case
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Documents that may be used:
copy or description of all documents in its possession that it may
use to support its claims or defenses
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Damages computation:
computation of those damages and produce the documents on which the
computation is based
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Insurance Agreements:
ins agreement that might cover the claim
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As discovery progresses and new things come up, required to update
parties on new witnesses (esp. experts)
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(1)(e)
gives a limited no of categories of cases in which substantial discovery
is unlikely are exempted from the disclosure requirement and
accompanying attorney conference and discovery mortorium provisions ie.
habeas corpus petitions
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(b) relevant to the claim/ cause of action
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relevant to the claim or defense of any party ("limited' discovery in
2000)
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court has power to limit discovery to prevent abuse of discovery
ie.discovery unduly burdensome or unreasonably cumulative
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(c) Protective order
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Marrese v. American
Academy of
Orthopaedic Surgeons.
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Compare the hardship to the party ag whom discovery is sought w/
hardship to the party seeking discovery if discovery is denied
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More weight to social value interests than to purely private
interest
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Possibility of reconciling the competing interests through a
carefully crafted protective order (ie. en camera inspections)
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Oral Examination of a witness under oath in the presence of a court reporter
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FRCP 30. Depositions Upon Oral Examination
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(a) When Depositions May Be Taken; When Leave Required.
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(2)(a)
Presumptive limit of 10 depos (per side-- Ps, Ds, 3rd-party Ds)
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(2)(b)
rules provide that a given witness's depo may be taken only once
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(b) Notice of Examination: General Requirements; Method of Recording;
Production of Documents and Things; Deposition of Organization; Deposition
by Telephone.
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Permits a right to choose the method of recording and the duty to bear
the cost ie. writing, oral, by telephone, videotape
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An attorney may notice the deposition of a corp or association,
requiring the latter to produce the person or persons having knowledge
of the subject matter upon which the depo is to be taken
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Party seeking the info must detail the issues that are to be
explored in order that the organization can ascertain which of its
personnel has the relevant knowledge
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Party wishing to depose a witness must give written notice to every
other party in a reasonable length of time in advance- identifying the
deponent, time and place of dep
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Sufficient to give notice to the parties that a deposition is to be
taken
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A nonparty witness must be commanded to attend by means of a
subpoena
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Subpoena (when necessary) or the notice may direct witness to bring
along and produce at the depo any documents that could property be
sought by a request for production of documents
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(c) Examination and Cross-Examination; Record of Examination; Oath;
Objections.
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(d) Schedule and Duration; Motion to Terminate or Limit Examination.
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Witness may be instructed not to answer a question only to:
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To enforce a limitation on evidence imposed by the court in the
case, or
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To present a motion for a protective order (30(d)(4))
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Witness may move to limit or terminate the exam if questioning
is conducted in an unreasonably oppressive manner
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durational limitation on depos= 1 day of 7 hours.
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authorizes the imposition of costs and attorney's fees to sanction any
culpable indiv if the court finds that any impediment, delay or other
conduct has frustrated the fair exam of the deponent
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(e) Review by Witness; Changes; Signing.
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When depo is concluded, reporter prepares a transcript, which the
deponent then is called upon to sign
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(f) Certification and Delivery by Officer; Exhibits; Copies.
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(g) Failure to Attend or to Serve Subpoena; Expenses.
Interrogatories
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Written questions from 1 party to another party to the action
requiring written responses
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Served during discovery and no court order is required to send them
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Answers are prepared in writing
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Require the party to answer not only of her own knowledge, but also on the
basis of info to which she has reasonable access w/in 30 days after
interrogatories are served
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Motion to compel responding party to answer fully is avail if answer is
evasive or incomplete
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FRCP 33. Interrogatories to Parties.
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(a) Availability.
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Presumptive limit of 25 interrogatories to each party
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(b) Answers and Objections.
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Party must answer or object to interrogatories w/in 30 days after their
date of service
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(c) Scope; Use at Trial. Interrogatories may relate to any
matters which can be inquired into under Rule 26(b)(1), and the answers may
be used to the extent permitted by the rules of evidence.
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Provides that an interrogatory is not necessarily objectionable merely
b/c an answer involves an opinion or contention that relates to fact or
the application of law to fact
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(d) Option to Produce Business Records.
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Requires a party exercising the option to produce its business records
to specify the records from which the answer can be found in sufficient
detail to permit the interrogating party to locate and to identify them
as readily as can the party served
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Presumption is the responding party must bear the expense of complying w/
discovery requesting but it may invoke district court's discretion under
rule 26(c) to grant orders protecting it from undue burden or expense in
doing so ie. cost shifting
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8 factor test to determine whether discovery costs should be shifted:
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Specificity of the discovery requests
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Likelihood of discovering critical info
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Availability of such info from other sources
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Purposes for which the responding party maintains the requested data
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Relative benefits to the parties of obtaining the info
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Total cost associated w/ production
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Relative ability of each party to control costs and its incentive to do
so
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And resources available to each party
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Zubulake.
Whether production of documents is unduly burdensome or expensive turns on
whether it's kept in an accessible format? Active, online data; near-line
data; offline storage/archives; backup tapes; erased, fragmented or damaged
data
Physical and Mental Examinations
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FRCP 35. Physical and Mental Examination of Persons.
(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.
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Rule requires a court order for an exam and imposes strict stds
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Person's physical or mental condition must be in controversy and
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Condition that's the subj of the exam must be raised directly by
pleadings or by factual contentions of the parties through discovery
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movant must show good cause to compel exam
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Weigh pain, danger or intrusiveness of the exam ag need for, or
usefulness of, info to be gained
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Effect of rule is to encourage parties to stipulate to exams
Requests to Admit
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FRCP 36. Requests for Admission.
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(a) Request for Admission.
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Device to eliminate issues by imposing a duty on the party served to
knowledge the existence of facts that are not in doubt and that should
not be necessary to prove at trial
-
May be served by any party on any party, whether or not adverse
at anytime after Rule 26(f) pretrial conference and response must be
filed w/in 30 days under oath
-
(b) Effect of Admission.
-
If presentation of the merits will be served, court may allow a party to
amend or withdraw an admission previously made
-
Subject of Request:
-
Facts or application of law to fact
-
Request may ask the party served to admit the genuineness of a
documents, the truth of factual allegations, or applicability of
legal concepts to specified facts in issue
-
Conclusions of law
-
Ultimate issues
-
Opinions
-
Matters unknown to responding party
-
Appropriate responses:
-
Admit--
not permitted to controvert admission at trial; binding in present
action only
-
Deny--
if matter denied and matter is later proved, party may be liable for
full costs of proving that matter unless court finds that there were
good reasons for the denial
-
Reasons for not admitting or denying--
state refusal and grounds for good cause
-
Ignorance of matter sought to be admitted
-
Self-incrimination
-
If there is no timely response to a request, matter is deemed admitted
-
Court may excuse party's failure to respond in a timely manner, withdraw
or modify an admission in a timely response== Court's decision turns on
the degree of prejudice the requesting party will suffer b/c of its
reliance on the admission
-
Functions:
Pleading refinement and possibly a discovery device if a party uses them
early enough in the litigation to help identify the issues not in dispute
and to target the remaining issues for discovery
-
Responding party may also object to a request b/c improperly phrased or b/c
it seeks privileged or protected info and may request a court to extend its
time to respond
Sanctions
-
Non compliance/non cooperation can cause sanctions, but courts are reluctant
to impose
-
FRCP 26(c). Protective Order.
-
Designed to prevent undue burdens that might otherwise be imposed by
discovery
-
Granted only on a showing of good cause by the party seeking protection
-
Confidential information
-
Showing that info has been held in confidence
-
Showing that a specific harm is likely to flow from disclosure
of the info
-
Privacy interests
-
Judge can create an order appropriate for that case ie. forbid discovery
altogether; designation of confidential info; no public access to
discovery
-
Can grant an order if a depo has been schedule at an unnecessarily
inconvenient place
-
Before going to court to get a protective order, parties must confer
together to see if they can settle it first before going to court
FRCP 37. Failure to Make or Cooperative in Discovery; Sanctions.
-
(a) Motion for Order Compelling Disclosure or Discovery.
-
(b) Failure to comply with order.
-
(1) Sanctions by Court in District Where Deposition is Taken.
-
(2) Sanctions by Court in Which Action Is Pending.
-
(c) Failure to Disclose; False or Misleading Disclosure; Refusal to
Admit.
-
(d) Failure of Party to Attend at Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection.
-
(g) Failure to Participate in the Framing of a Discovery Plan.
-
B4 filing a motion to compel discovery, a party must attempt to meet and
confer w/the opposing party in an effort to secure compliance w/out court
action.
-
B4 discovery sanctions can be imposed, party seeking discovery must usu
obtain an order compelling discovery
-
If a motion to compel discovery is made, an evasive or incomplete answer is
treated as a failure to answer
-
If a party completely fails to file a response to a discovery request or to
attend his properly noticed depo, discovery sanctions can be sought
immediate, w/out the need for a prior order compelling discovery
-
If a party fails to make or supplement a prediscovery disclosure as required
by Rule 26 and the failure was harmful, party who failed to disclose will be
prohibited from using the undisclosed evidence and may also impose Rule
37(b) sanctions,
-
Rule 27(b) sanctions
are usu reserved for failures to comply w/discovery orders.
-
Trial court has substantial discretion to select the proper sanction
-
Possible Sanctions:
-
Order that facts pertinent to the undisclosed material be established in
favor of the party seeking discovery= Establishment of a party's prima
facie case
-
Dismiss or default nondisclosing party
-
Hold nondisclosing party in contempt
-
Preclusion of right to present claims or defenses
-
Dismissal of counterclaims;
-
Exclusion of evidence
-
Forfeiture or
-
Jury instruction that a party's failure to disclose can lead to the
assumption that evidence would be unfavorable to that party
Summary Judgment
FRCP 56. summary Judgment.
-
Pretrial device that permits the court to determine whether there is an
issue of fact to be tried; allows court to look at evidentiary material to
determine this
-
Decided before trial normally
-
D can move for summary judgment at any time and P may do so 20 days
after commencement of the action
-
Granted when court determines that "there is no genuine issue as to any
material fact" or that there is "no triable issue as to any material
fact"
-
Moving party's Burden
-
If moving party has burden of proof, must produce evidence of such
strength that no reasonable jury could find for the opposing party
-
If moving party doesn't have the burden of proof:
-
Not enough to move for summary judgment w/conclusory assertion that
P has no evidence to prove his case
-
Initial responsibility of informing the court of the basis for its
motion
-
Opposing party's burden
-
If moving party has made the initial showing, burden is on the opposing
party to come forward w/evidentiary material that established the
existence of a triable issue
-
Should be used sparingly
-
View evidence in the light most favorable to the nonopposing party and see
if there is a genuine dispute
-
Opposing party is entitled to notice of the motion and an opportunity to
submit opposing materials
-
Materials considered on a motion:
Admissions in the pleadings; affidavits made on personal knowledge of facts
(moving party is not required to submit affidavits); discovery materials
-
When Presented w/ a Motion for Summary Judgment:
-
Has moving party made a sufficient initial showing?
-
Was the opposing party given notice and an opportunity to respond?
-
Is there a triable issue?
-
If motion is granted, judgment is entered for the prevailing party.
If motion is denied, litigation continues.
Pretrial Management
FRCP 16. Pretrial Conferences; Scheduling; Management
-
(a) Pretrial Conferences; Objectives.
-
(b) Scheduling and Planning.
-
DC are required to enter a scheduling order w/in 90 days after a D's
appearance and w/in 120 days after service of complaint= set time limits
for joining parties, amending pleadings, completing discovery, and
filing motions
-
(c) Subjects for Consideration at Pretrial Conferences.
-
(d) Final Pretrial Conference.
-
(e) Pretrial Orders.
-
(f) Sanctions.
-
Expanded judicial role pretrial process-
-
mandatory conferences among the parties (26f, 16a-c, and final pretrial
conf 16d)
-
Control and development of civil cases
-
Mandatory scheduling order
-
Judge serves as an engaged supervisor- responsible for encouraging,
facilitating, and even pressuring the parties to resolve their disputes
-
Issue simplication
-
keep cases moving at a reasonable pace, and to see that cases not
needlessly tried
-
deadlines for specific litigation activities, makes explicit and expands
the topics to be discussed at the pretrial conference, provides for
greater supervision of discovery, allows for earlier consideration of
summary judgment motions
-
Settlement promotion- by ordering parties to be present at pretrial
conferences
-
Affords trial court broad discretion in the imposition of sanctions on
the parties for failure to comply w/ a scheduling order and absence
from, or lack of prep for, a pretrial conference
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
A.