CIV PRO TOOL BOX

PRE-TRIAL PHASEService of Process (Greene v. Lindsey)

Serving summons: D must have adequate notice (b/c of Due Process requirement of 14 th Amendment). What is reasonable? Must consider likelihood of success, cost for all involved, the specific situation, and it must be proportional to interest at stake. In Greene v. Lindsey, in Kentucky, door posting wasn’t enough b/c kids tear down posting in public housing.

Rule 3: complaint commences action Rule 4: P serves a summons. First P sends request for waiver. If D does not return signed waiver, P has

someone serve the summons and D pays expenses. Can serve by delivering personally, by leaving a copy at each of the individual's dwellings or with someone of suitable age and discretion who lives there, or by serving someone who is authorized by appointment or law to receive service or process.

D has 20 days to respond to complaint (from time received complaint, rule 12) if didn’t waive service, 60 days (after sent) if did waive service. Note, P has 120 days to serve after complaint filed.

1: These rules cover all civil action, should be used for “just, speedy, and inexpensive determination of every action and proceeding”

2: “This is one form of action – the civil action.” [merges law and equity] 3: “A civil action is commenced by filing a complaint with the court.”

4: Summonso 4a1: What a summons must includeo 4c1-3: WHO can serve it (can go by state rules or federal rules below)o 4d: Waiving service – If D waives service, has 60 days instead of 20 to respond. If D fails to waive

service, must bear cost of making serviceo 4e: HOW to serve individual/corporation in the USo 4l: Must have server’s affidavit to prove serving if service is not waivedo 4m: D must be served within 120 days of filing complaint

5th Amendment (Due Process Clause): “No person shall be …deprived of life, liberty, or property, without due process of law.”

Greene et al v. Lindsey et al (SC, 1982, Supp. 1, 1)o Notice must be reasonably calculated, under all circumstances, to inform parties and give them

opportunity to defend themselves. Notice on door not sufficient b/c children often tear down (mail better…). State deprived P of property without due process, which is unconstitutional b/c of 14 th amend.

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PLEADINGS Rule 11: SANCTIONS for misrepresentation in pleadings (Christian v. Mattell)

o 11a: Every pleading and written paper must be signedo 11b: Signature certifies not presented for improper purpose, have or likely will have evidentiary support,

etc. Certifies all these things to the best of signers knowledge “after inquiry reasonable under the circumstances.”

o 11c: Sanctions: May be monetary, but courts usually prefer nonmonetary Christian v. Mattell (Barbie copyright case): P’s lawyer was terrible, D awarded monetary

damages under Rule 11c, appeals court reversed and said needed to reconsider because might have awarded money based on lawyer’s behavior instead of just on written documents

COMPLAINT (Gillispie v Goodyear, Conley v Gibson, Twombly)o Rule 8:

8a: P’s complaint must have short and plain statement of claim showing entitled to relief, and demand for relief sought.

8b: In response to pleading, D must state in “short and plain” terms its defenses to each claim, and admit or deny allegations asserted against it by opposing party

8c: Affirmative defenses 8d: Pleadings must be concise and direct, and inconsistent pleadings allowed 8e: “Pleadings must be construed so as to do justice”

o Twombly “retired” language of Conley. Conley said that complaint shouldn’t be dismissed unless no possible way P’s version of facts are true. Twombly says they need to be “plausible” or “probable” not just “possible.” (Sherman Act, competitive (Twombly) v. incumbent (AT&T/Bell) local exchange carriers).

RESPONSE (Haddle v Garrison, Zielinski, Jones v Block)o Default judgment: If D fails to respond at all, default judgment entered against her (Rule 55)o Pre-Answer Motions (optional)

Rule 12b6: Motion to dismiss for failure to state a claim for which relief can be granted (sometimes called demurrer) (Haddle v. Garrison, claimed conspiracy for firing injured people or property, SC said was a legal claim)

o Answer: Denial or Admission: Rule 8b requires D to deny only allegations he actually disputes, and

anything not denied is deemed admitted. There can be general denial of whole thing, or specific paragraphs

o Zielinski v. Philadelphia Piers: Insurance company may have deliberately done confusing general denial to protect other client past statute of limitations, sanctioned under Rule 11.

Affirmative defenses (Any fact asserted by D that vitiates P’s claims; acknowledges P’s claims as true)

Amendments to Pleadings (Beeck v Aquaslide, Zielinski)o Rule 15, can amend once as matter of course (before being served with responsive pleading, or within

20 days if no responsive pleading allowed), and amend before trial with permission of opposing party or court, who “should freely give leave when justice so requires.”

Beeck v. Aquaslide (D allowed to amend to say didn’t manufacture slide, destroying case, even though statute of limitations had run because no bad faith and not really prejudice to P)

o In general, amendments are to be freely granted (both before and during trial) as long as doing so won’t unduly PREJUDICE one of the parties

8: Pleadings and Responseso 8a: Pleading must include short and plain statement showing court’s jurisdiction, short and plain

statement of claim entitling P to relief, and demand for reliefo 8b: Admissions and denials as defenses; can admit or deny everything or specific claimso 8c: Affirmative defenses: basically admitting facts but offering justificationo 8d: Pleadings must be concise, and can include contradictory claims o 8e: “Pleadings must be construed so as to do justice.”

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Form 11 (example of sufficient complaint for negligence):o (statement of jurisdiction, see form 7)o On date at place, the D negligently drove a motor vehicle against the P.o As a result, the P was physically injured, lost wages or income, suffered physical and mental pain, and

incurred medical expenses of $___.o Therefore, the P demands judgment against the D for $___, plus costs. Date and Sign, see form 2.

11: Signing stuff, sanctions for untruthso 11a: Every pleading, written motion and other paper must be signed by attorney (or party representing

self)o 11b: By signing, signer is certifying that “to the best of the person’s knowledge, information and belief,

formed after an inquiry reasonable under the circumstances,” No presented for improper purpose All claims and legal contentions are warranted by existing law, or by nonfrivolous argument to

extend existing law Factual contentions have, or are likely to have upon further investigation/discovery, evidentiary

support Any denials of factual contentions are warranted on the evidence

o 11c: Sanctions Court may impose appropriate sanction on attorney (or party rep. self) who violates 11b Opposing party may make motion for sanction Or court may order sanction on its own initiative Should be “what suffices to deter repetition of the conduct” by guy sanctioned or others in similar

position. May include “nonmonetary directives [one judge ordered a class], an order to pay penalty into court…pay…reasonable attorney’s fees and other expenses directly resulting from the violation.”

o 11d: These sanctions not applicable to “disclosures and discovery requests” etc. (but apply to all other written documents)

12: Defenses and Objections, Motions to Dismiss (called Defenses) etc., and when and how to presento 12a1A: D must serve answer within 20 after served (unless service waived, in which case D has 60 days

after request for waiver was sent)o 12b: D can assert following defenses by motion (as opposed to part of responsive pleading):

1) Lack of subject-matter juris., -fatal, can be made anytime2) Lack of personal juris., -fatal 3) Improper venue, -fatal4) Insufficient process, -amendable5) insufficient service of process, -amendable6) “Failure to state a claim upon which relief can be granted.” –amendable, can be made

anytime. -In judging, court views pleading in light most favorable to non-movant.7) failure to join a party under Rule 19

o 12c: Motion for Judgment on the Pleadings (can move for this as long as it’s early enough not to delay trial)

o 12d: If matters outside of pleadings presented, treated as summary judgmento 12e: Motion for a More Definite Statement. Must be filed before responsive pleading is allowed, P has

10 days to reponse.o 12h: Waiving and Presenting Certain Defenses (see 12b)

15: Amended and Supplemental Pleadingso 15a1: Can amend once before trial as matter of courseo 15a2: Other amendments before trial must have opposing party or court’s consent. Court “should freely

give leave when justice so requires.”o 15b2: When an issue is not raised in the pleadings, but is tried by parties “express or implied consent,”

will be treated as if raised in the pleadings, and pleadings can be amended to include it later.

o 15c: Relation Back of Amendments – This comes into play when statute of limitations has run so if amendment didn’t relate back, P could not bring case.

15c1C: Can only change person against whom claim is asserted and have it relate back if the new person received such notice of the action that it will not be prejudiced in defending on the merits, and “knew or should have know”…that the action would be brought against them if it weren’t for mistake in identity.

16: Pretrial Conferences; Scheduling; Managemento 16f: Sanctions if don’t comply, including paying costs

Sufficiency of Complaint Gillispie v. Goodyear Service Stores (SC of North Car., 1963, Supp. 2, 29) -OUT OF DATE

o P’s complaint didn’t contain sufficient facts to constitute cause of action (under Code Pleading). Not enough to allege conclusions, must give facts. Possible repo gone wrong.

Conley v. Gibson (SC, 1957, Yeazell 358) -OUT OF DATEo “…a complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the P can prove no set of facts in support of his claim which would entitle him to relief.”

TWOMBLY [Bell Atlantic Corporation et al, Petitioners v. William Twombly et al] (SC, 2007, Supp. 2, 35)

o “Retires” language of Conley. Complaint can’t just show that it is POSSIBLE that allegations are true (which is what Conley demands). Complaint has to show that allegations are plausible or probable. Sherman Anti-Trust Act, competitive local exchange carriers (Twombly) competing with incumbent local exchange carriers (AT&T/Bell), Twombly alleging conspiracy with no proof.

Responses by D Haddle v. Garrison (SC, 1998, Yeazell 340-54) - Motion to Dismiss, Rule 12b6

o D made 12b6 motion, saying that there was no legal claim; SC said there was. Complaint alleged conspiracy to fire P who provided evidence against D in other matter. Had to allege conspiracy b/c no legal recourse just for being fired wrongfully under Georgia law, so had to use law from Civil Rights Act of 1871.

Christian v. Mattell Inc. (9th circ., 2003, Yeazell 381) - Rule 11 Sanctionso (Barbie copyright case): P’s lawyer was terrible, D awarded monetary damages under Rule 11c,

appeals court reversed and said needed to reconsider because might have awarded money based on lawyer’s behavior instead of just on written documents

Zielinski v. Philadelphia Piers, Inc. (E.D. Pa. 1956, Yeazell 393) - Denial of Allegations (general vs. by claim)

o (Forklift on docks): Complaint alleged PPI both owned and operated forklift. D responded with general denial of neg., which was assumed to mean denial of operating forklift but really was denying owning and operating forklift and didn’t make this clear, that they didn’t own the forklift, until after statute of limitations so that P then couldn’t file suit against real owner. Since insurance company was representing both companies, court issued jury instruction saying that PPI did own the forklift.

Jones v. Block (SC 2007, Yeazell 370) - What must be alleged as affirmative defense vs. be in the complaint

o Prisoner needn’t show exhaustion of administrative remedies in the complaint (to do so would be requiring a higher standard than is required by FRCP, and D can respond that P hasn’t exhausted administrative remedies as an affirmative defense, per 8c)

Beeck v. Aquaslide ‘N’ Dive Corp (8th Cir. 1977, Yeazell 403) - Amending pleadingso Absent a showing of undue prejudice to P or bad faith by D, leave to amend shall be freely

given by court. P hurt by Aquaslide, D realized after statute of limitations that it was not they did not manufacture slide, allowed to amend and relate back. Court said P not unduly prejudiced because can still pursue fraud claim.

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DISCOVERY (Stalnaker v Kmart, Hickman v Taylor, Zubulake)

Rule 26b1: “any nonprivileged matter that is relevant to any party’s claim or defense”o Limit: privilege (attorney-client, doctor-patient, husband-wife)o Limit: 26b3, work product (work developed in prep for litigation)

Case that prompted this rule: Hickman v. Taylor o Limit: 26b4, experts retained who will not stand at trial have their work product protected tooo Limit: 26c, court can order protective order to prevent “annoyance, embarrassment, oppression, or

undue burden or expense.” Stalnaker v. Kmart, didn’t compel people to testify about their voluntary sexual relations with

employers because didn’t have to do with sexual harassment case and just to embarrass.o Limit: 35, Physical and mental exams can only be obtained with court permission and good reason

Discovery can be: documents (34), depositions (30, 31), interrogatories (33), physical and mental exams (35), requests for admission (36)

Possible discovery abuses: stonewalling, over-discovery, and mismatched resourceso Over-discovery: can use 26b1 to argue that isn’t “relevant to claim or defense,” or 26g if “cumulative or

burdensome,” or 26c to ask for protective ordero Can use 37 to compel discovery, there are sanctions if still don’t obey

Rules 26-37 govern Discovery (plus rule 45 for subpoena)

26: Duty to Disclose; General Provisions Governing Discoveryo 26a: Required Disclosures (what needs to be disclosed; names of witnesses, copy of all documents, etc.)

(Automatic Disclosure) 26a1B: Various proceedings exempt from initial discloseure 26a1C: Time limits

o 26b: Discovery Scope and Limits 26b1: “any nonprivileged matter that is relevant to any party’s claim or defense” 26b2: Limitations on frequency and Extend

26b2B: Can limit discovery of electronically stored info for practical/expense reasons 26b2C: Limit discovery when discovery sought is “unreasonably…duplicative,” can be obtained

in easier manner, should have been discovered before discovery process, burden or expense outweighs likely benefit.

26b3: Work product protected 26b4: Expert who is employed only for trial prep, not to testify, is protected like work product 26b5: To claim privilege/protected, must expressly make claim, and preserve documents until

claim resolvedo 26c: Protective orders

Court can order protective order to prevent “annoyance, embarrassment, oppression, or undue burden or expense.”

o 26d: Timing and Sequence (can’t seek discovery until 26f Conference has happened)o 26f: Conference of the Parties; Planning for Discovery (There must be pretrial conference and discovery

plan)o 26g: Lawyer (or nonrepresented party) must sign and this certifies that it’s for good purpose, etc.

30: Oral depositions 31: Deposition by Written Questions 33: Interrogatories 35: Physical and Mental Examinations (Requires court assessment that it is relevant) 36: Requests for Admission

37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (i.e. Enforcement Mechanisms)

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o 37e: Failure to produce e-documents may not be sanctioned if deleted as part of routine, good-faith operation of an electronic info system.

45: Subpoena

Stalnaker v. Kmart Corp. (D. Kan 1996, Yeazell 455) - Protective Orderso Rule 26c provides that the court, upon a showing of good cause, "may make any order which

justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Sexual harassment case, holding can depose witnesses to limited extent and not about voluntary romantic relationships.

Long v. American Red Cross (SD Ohio 1993, Y Notes 457)o P wanted names of donors to further suit of neg. against blood bank for giving them HIV+ blood. Allowed

discovery (with unspecified protective order) because donor name sought was deceased and thus had dimished prop. rights)

Coca-Cola Botting Co. v. Coca-Cola Co. (D. Del. 1985 Y Notes 457)o Coca-Cola Co. (D) refused to give up recipe for syrup because trade secret even when ordered to by

court. Court order D to pay some attorney’s fees and instructed jury to infer formulas were identical (what P wanted to prove) but did not impose default judgment for failure to comply.

Hickman v. Taylor (US 1947, Yeazell 442) - Work Producto Can obtain info from written notes of opposing party’s lawyer when it’s the only way to obtain

info and to not allow info would be a hardship on requesting party. Even then, mental thoughts, defense strategies, etc., will remain privileged/be redacted. P trying to obtain notes from D’s lawyer interviewing survivors of tugboat crash.

Zubulake v. UBS Warburg LLC (SDNY 2003, Yeazell 464) - E-discoveryo Party must put “litigation hold” on any destruction of documents when party reasonably

anticipates litigation (which can be before complaint filed). Inaccessible backup tapes can continue to be erased on normal schedule, unless know that these tapes contain documents relating to “key players.” Women employee suing company for sex discrimination.

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SETTLEMENT(Kalinauskas, Neary, Bancorp v Bonner, Evans v. Jeff)

Rule 41 deals with dismissal of cases.

41: Dismissal of Actionso 41a: voluntary dismissal (by P)o 41b: involuntary (move by D to dismiss for P’s failure to prosecute or comply with rules/court orders)

Kalinauskas v. Wong (D Nev 1993, Y 500) - Can confidentiality requirement of settlement trump future case subpoena? No, with limits.

o May subpoena witness who previously settled with confidentiality agreement, but can’t ask about terms of settlement. Conflict of public and private interests. Sexual harassment case against Caesar’s Palace, wanted to subpoena previous employee who had settled sex harassment case with same employer.

Baker v. General Motors (US 1998, Y Notes 504)o Injunction as part of settlement in Michigan to forbid testifying can’t extend to cases outside of Michigan

jurisdiction. Neary v. University of California (Cal. 1992, P 46) - Can previous court decision be vacated? Cal. court

says yes.o Absent extraordinary circumstances, when both parties settle while appeal pending, should

vacate the decision if parties request it. Old cattle rancher, case had dragged on 13 years. US Bancorp Mortgage Co v Bonner Mall (US 1994 P 48) - Can previous court decision be vacated?

Fed. court says no. o Bankruptcy case, settled while appeal pending and Bancorp (but not Bonner) asked SC to vacate CoA

decision. SC says DON’T vacate except in extraordinary situations, bc judgments are valuable to whole legal community, don’t just belong to parties. (Note: do vacate when controversy becomes moot through no action of the parties).

Evans v. Jeff D. (US 1986) - Can settlement bargain away atty’s fees that are otherwise collectable? Yes

o Fees Act (allowing prevailing party to recover attorney’s fees in certain civil rights actions) doesn’t prohibit settlements that include a condition that attorney’s fees be waived. Legal aid lawyer on behalf of emotionally and mentally handicapped kids agreed to fee-waiving settlement but then asked SC to reject it bc Fee Act prohibits fees being waived (only SC says no).

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PRELIMINARY RELIEF(Inglis, American Hospital Supply)

Rule 65 deals with preliminary injunctions and TROs. When deciding whether to grant preliminary injunction, traditional test says that courts must consider:

o Will movant suffer irreparable harm if not granted?o Is movant likely to prevail on the merits?o Balance of harms: is harm to P if not granted greater than harm to D if granted wrongly?

i.e. that D won’t be harmed more by PI than P will be helped by ito Is it in the public interest? (in traditional and alternative tests, first you consider 1-3 and then if all

three met, than consider public interest) 9th cir in Inglis said there’s alt test, where if harm is very great but likelihood of prevailing on merits is weak, or

vice versa, should still grant prelim injun, and in American Hospital Supply Posner gives formula for test that sounds like alt test though he claims it’s trad test.

64: Seizing a person or property 65: Injunctions and Restraining Orders

o 65a: Preliminary Injunction 65a1: Must give notice to adverse party 65a2: Can consolidate hearing on motion of preliminary injunction with the trial on the merits.

Also, anything introduced in the motion for prelim injun becomes part of trial record.o 65b: Temporary Restraining Order

65b1: May issue without notice if circumstances require it (ex. abused wife) 65b2: TRO issued without notice expires after 10 days unless extended.

o 65c: Court may issue prelim injun or TRO only if movant gives security to pay costs/damages of enjoined/restrained party if wrongfully enjoined/restrained.

Inglis v ITT Continential Baking Co (9th Cir. 1976, Y 317)o Baker v. Competitor bakers. TC denied prelim injun. CoA said matter of law, so reviewed de

novo, and found that TC erred in applying only traditional test (4 elements that must each be satisfied: irrep harm, likelihood of prevailing, balance of harms, public interest) instead of alternative test which could grant prelim injun. Alt test: PROB success and POSS irrep injury, grant prelim injun, or if strong case on merits but weak harm, grant prelim injun. Wording of court: “P must prove either 1) combo of prob success and poss of irrep injury, or 2) serious ?s raised and balance of hardships tips in P’s favor”

American Hospital Supply (7th Cir, P 51)o Judge Posner turns four element test into formula: grant injun if (harm to P if injun denied) times

(prob that P would win, showing that injun wasn’t error) is GREATER THAN (harm to D if injun granted) times (prob that granting injun would be in error, i.e. P doesn’t win). Says he is stating trad test as formula but really this is more like alt test from Inglis.

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SUMMARY JUDGMENT (filed BEFORE trial starts, vs. JML which is after party’s present evidence (and can be b4 or after verdict))

(Celotex)

Rule 56c: “The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”

Motion to dismiss (Rule 12b6) assumes all facts true and says there is still no claim that entitles legal relief. Sum judg says there is a legal claim, but that movant can disprove claim/prove affirmative defense, or non-movant can’t meet burden of proof.

Sum judg is decided looking at the pleadings, all discovery and disclosure materials thus far on file, and any additional affidavits the parties provide.

Note: sum judg is reviewable de novo because if there is no genuine issue of fact, the trial pretty much has to grant summary judg, very little discretion in the matter.

Celotex says that party who does not have burden of proof at trial (D) can show that summary judg should be granted simply by showing that other party (P) can’t prove its case.

56a: P can move for sum judg on all or any part of the claim after 20 days have passed from commencement of the action, of after opposing party moves for sum judg

56b: D can move for sum judg at any time. 56c: “The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”

56e: Affidavits must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated.

56f: Court has discretion to order a continuance to allow non-moving party to gather the evidence needed to show it can prove its case.

Celotex v Catrett (US 1986 Y529)o The moving party, if they don’t have burden of proof at trial (i.e. are D), can just show that the

non-moving party (P) has an ABSENCE of proof, will not be able to meet burden of proof at trial, rather than affirmatively disproving P’s case. P was trying to prove that husband’s death was caused by asbestos, and Celotex said that she couldn’t prove that any Celotex product was cause of injury.

Adickes (US 1970, cited in Celotex 531)o Previous standard was that moving party couldn’t just show non-moving party’s lack of proof, but had to

affirmatively disprove other side, even if other side would have burden of proof in trial. Standard overridden by Celotex.

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JURIES

Right to Jury (Chaffeurs, Beacon)o Right to jury trial preserved in cases that would have been tried under CL at time of 7 th amend (1791) in

England CL: monetary damages Equity: injunctions, fraud, multiparty claims

o Rule 39 c: Either side can request jury trial. If one party requests and have right to jury under CL in 1791 in England, will have jury. If both sides want jury, court MAY grant jury even if not entitled by right to jury. If neither side wants jury, won’t have jury (at most administrative jury).

Voir Dire (jury selection process) (Edmonson, JEB)o Can challenge as many as you want for cause

Note, can also challenge judge for causeo Three peremptory challenges. However, can’t use for race or gender.

Must show pattern of eliminating members of particular race or gender, based on who’s eliminated and who’s left, and other side must show race (or gender)-neutral reason for cutting.

7th Amendment: “In suits at common law…the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined by any Court of US, than according to the rules of the CL.”

38: Right to a Jury Trail; Demand

o 38a: Right of trial by jury preserved as declared in 7th amendment.o 38b: In order not to waive right to jury trial, the party must demand a jury trial by written demand. Must

make demand within 10 days of last pleading or right is waived. 39: Trial by Jury or by the Court

o 39a: When demand is made, jury must be given unless parties stipulate a nonjury trial, or the court finds there is no federal right to a jury trial

o 39b: If jury not property demanded, the court may, on motion, order a jury trial on any issue on which jury trial might have been demanded.

o 39c: Advisory jury/Jury by consent

28 USC § 1861: Jury selection pool must be fair cross-section of community. Everyone has right to be considered for jury and have obligation to serve when summoned. Note is right to be part of jury POOL, not right to be on jury itself.

28 USC § 1862: Can’t exclude from jury pool based on race, color, religion, sex, national origin, or economic status.

28 USC § 1867: People can challenge compliance with selection procedures 28 USC § 1870: Each side entitled to three peremptory challenges. Court may allow additional peremptories.

Challenges for cause must be okayed by court.

47: Selecting Jurors

o 47a: Parties/lawyers may examine potential jurors.o 47b: Each side allowed the number of peremptories allowed in § 1870 (which is 3)o 47c: “During trial or deliberation, court may excuse a juror for good cause.”

48: Number of Jurors; Verdicto Must be btw 6-12 members. Must be unanimous unless other stipulated by the parties. Each juror must

participate in decision unless dismissed under 47c.

Chaffeurs v. Terry (US 1990 Y561) - Whether or not have right to juryo Court determines whether or not jury trial by looking at each issue of the claim and each issue

of the relief. If more CL issues than equity issues, than right to jury. If number of issues is in equipoise, put more emphasis on the type of relief than on claim (slice and dice method,

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Marshall wrote majority opinion). Bad union representation case, court ultimately found legal and thus should be jury.

o Two different concurring opinions and dissenting opinion; shows how judges don’t agree on how to decide.

Beacon (US 1959 Y569 in Notes)o Found that there is constitutionally protected right to jury trial but no constitutional right to trial by judge.

Also, if there are some claims to be tried by juries and some by judge, what order should they be tried in? First jury claims, then judge claims (and jury decisions binding on subsequent judge decisions).

Edmonson v Leesville Concrete Co. (US 1991 P57) - Peremptory challengeso Court held that couldn’t use peremptory challenges for race because violates the equal

protection rights of the challenge jurors (which they have under 5th amend due process clause). Action brought by construction site employee for negligence by employer.

Batson v Kentucky (US 1986 P57 in Notes)o Criminal case which said that can’t strike black jurors without nonracial justification; Edmonson extended

this ruling to civil cases. JEB v Alabama (US 1994 P59 in Notes)

o Said couldn’t use peremptory challenges for gender as well as race. Purkett v Elem (US 1995 P60 in Notes)

o Use of peremptories challenged but “don’t like their facial hair/hair cut” accepted as valid reason for cutting black jurors.

TRIAL

Judgment as Matter of Law (JML) – before jury verdict actually decided – (Motion for JML entered AFTER party/parties have presented evidence, vs. Sum Judg which is before trial starts) (Chamberlain, Reid)

o If evidence for one party is such that no reasonable jury could find otherwise, judge may (sua sponte or on motion from one of the parties) enter JML (previously called directed verdict) instead of sending matter to jury. May also enter JML after jury has come back with “wrong” verdict. I.e. if left of X line, find for D; if right of Y line, find for P

o D can move for JML after P’s case presented if P hasn’t met burden of proof. P can move for JML are D’s case presented (which is after P’s case presented).

o Different standards for entering JML Go to jury if “scintilla” of evidence that would support P (just barely past X line) [Rejected in

Chamberlain] Consider only evidence that supports non-moving party (usually P) in most positive light, and if STILL

doesn’t support P’s claim, enter JML for D. (“Favorable evidence standard”) Consider nonmoving party’s evidence in most favorable light, but also consider any evidence of

movant that “is not impeached or contradicted by the opposing party’s evidence.” (“Qualified favorable evidence standard”/the federal standard)

“All evidence rule”; look at everything (Ways that judges try to control juries (short of JML): jury instructions, insulating juries from outside influence,

requiring unanimous decision of large group which tends to erase outliers.)

JML after verdict (aka “judgment notwithstanding the verdict” aka “jnov”) – same standard as JML before verdict

o Why would judge wait until after verdict? If appealed and JML overturned, would have to go through entire trial again. If case so weak, jury will prolly do right verdict anyway.

o Moving party must make motion for JML after verdict within 10 days of entry of judgment (rule 50b) and they must have made motion for JML before verdict (rule 50b). This alerts non-moving party to defects in his evidence which he can then correct, prevents moving party from “sandbagging” opponent after verdict in.

New Trial (after verdict) (Lind)o Can be granted if errors in the trial that were harmful to a party. Judge may order new trial immediately

after verdict if thinks CoA would order new trial anyway.o Can be granted if judge thinks trial process fair but result clearly wrong (various standards: jury’s verdict

is “against clear weight” of evidence, “seriously erroneous result,” new trial “necessary to prevent injustice”). Can be granted even if evidence is strong enough to rationally support jury’s verdict but judge believes verdict is seriously erroneous.

o Can grant partial new trials, such as only of the damageso Decision to grant new trial “delicate” with careful weighing of evidence, so CoA don’t like to usually

overturn (but did overturn in Lind)

Difference btw JML before verdict, JML after verdict, and order for New TrialEvidence too weak to support rational verdict for a party

Verdict for winning party is supportable, but against clear weight of evidence

Judge does not agree with jury, but can’t say verdict for winning party against clear weight of evidence

Judge may entered JML before or after verdict for other party

Judge may order new trial Judge must go with jury’s verdict.

Remittitur: judge orders new trial unless P agrees to reduced damages. Additur is the opposite. Both cause problems and are rarely used, especially additur (Y616)

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49: Special verdict and General verdict with ?s/interrogatorieso 49a: Special verdicts – restricts power of jury by requiring special written finding on each issue of fact,

rather than issuing general verdicto 49b: General verdict with ?s (interrogatories) – judge may require general verdict to be supported by

interrogatories as to specific findings of fact (and if reasons inconsistent, can order further deliberation or mistrial)

50: Judgment as a Matter of Law in a Jury Trial [formerly known as Directed Verdict]; Related Motion for a New Trial; Conditional Ruling

o 50a1: If party has been fully heard on an issue during a jury trial and court finds that reasonable jury would not have legally sufficient evidentiary basis to find for the party on that issue, court may

50a1A: resolve issue against the party and 50a1B: Grant motion for JML against party on claim (or defense) that can be maintained (or

defeated) only with favorable finding on that issueo 50a2: Motion for JML may be made at any time before case submitted to jury. Must specify the

judgment sought and why justified.o 50b: Court can DEFER JML decision until after verdict, and then order JML is jury decides wrong

verdict. Can’t issue JML after verdict if it wasn’t requested before verdict. Renewed motion for JML must be made within 10 days of verdict, and may include a request for new trial under rule 59 as well for if JML denied/reversed on appeal.

50b1-3: Court can 1) let jury verdict stand, 2) order new trial, or 3) enter JML.o 50c: Granting the Renewed Motion; Conditional Ruling on a Motion for New Trial

50c1: If grant renewed motion for JML, must also conditionally rule on whether or not new trial should be granted if JML is vacated/reversed on appeal.

50c2: If conditionally granted new trial, does not affect judgment’s finality (i.e. immediately appealable. However, JML denied but new trial actually granted, must finish new trial before can appeal).

o 50d: Losing party must file motion for new trial within 10 days of entry of JML o 50e: If JML denied and losing party who requested JML appeals, winning party may assert grounds for

new trial in case CoA finds JML should have been granted. If CoA reverses judgment to deny JML, can order new trial, send back to TC, or enter JML.

51: Instructions to the Jury; Objections; Preserving a Claim of Erroro 51a: Parties submit requests for specific jury instructions before or at close of evidence, after close of

evidence if needed, or “untimely” requests with court’s permission.o 51b1: Court must inform parties of planned instructions before instructing jury and before final jury

argumentso 51b2: Must give parties opportunity to object on record (and out of jury’s hearing)o 51c: How to make objections (state on record, state grounds for objection, in timely manner)o 51d1: Party can assign instruction as error if objected to it earlier, or if court denied instruction party properly

requestedo 51d2: Court may consider a plain error in the instructions even if not preserved as required in 51d1 if error affects

substantial rights (this is imp for appeal)

59: New Trial; Altering or Amending a Judgmento 51a1: Court may, on motion, grant new trial for any reason that new trial has been granted in previous

case at federal law (i.e. precedent)o 51b: Motion for new trial must be filed w/in 10 days of entry of judgmento 51d: Court may grant new trial sua sponte (on own initiative) w/in 10 days of entry of judgmento 51e: Motion to amend or alter judgment must be filed w/in 10 days of entry of judgment.

Judgment as Matter of Law Reid v. San Pedro, LA and Salt Lake RR (Utah 1911, Y533)

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o TC allows case to go to jury, but CoA finds that TC should have issued directed verdict (JML) for D bc no rational jury could find by preponderance of the evidence that cow more likely to go through hole miles away rather than open gate yards away. Cow hit by train.

CHAMBERLAIN [Pennsylvania RR v Chamberlain] (US 1933 Y602) o TC directed verdict for D, even though P did have one witness (opposed to D’s many witness’s

who could see better). Evidence of P’s one witness could be interpreted in two ways, so shouldn’t it have gone to jury? SC said no, rejecting “scintilla of evidence” for P standard. Case brought by woman whose husband killed by string of train cars.

Motion for New Trial Lind v Schenley Industries (3rd cir. 1960)

o Jury finds for P, TC judge grants motion for JML after verdict and conditional new trial. CoA finds JML and new trial in error, even though traditionally CoAs don’t like to overturn orders for new trial. CoA says this falls into narrow grounds that justify reversal. Also, say more appropriate to grant new trial in complicated case where evidence likely to be misunderstood by jury, rather than in simple cases that come down to credibility like this. Liquor salesman P alleges breach of promise of more pay.

o Note that procedural error is matter of law so CoA reviews de novo, but decision to grant new trial is judged on abuse of discretion standard.

o Note that this case not relied on much outside of 3rd cir.

APPEAL

Adversity (Aetna): Can only appeal decision if adverse (either lose, or win but get less than want) o Doctrine of mootness: may not appeal from a judgment when circumstances have changed so that relief is no

longer possible (except in cases where question likely to recur and always become moot, shuch as one-year residency requirement to get a divorce in Sosna v Iowa (Y629)

Preservation: Party must present to TC the contentions on which it wants rulings, otherwise it waives those contentions and can’t appeal them. Why? Must give notice at time of trial to give opportunity correct, and ensure that trial is “main event.”

To object must state grounds for the request or objection. Object to evidence, request rulings and instructions from the Court to the jury, etc. in order to preserve contention.

o Exceptions to preservation rule: (Carson, Mass. Mutual) When new law has come to pass btw original trial and appeal When there was “plain error” in trial, typically invoked “where the error has seriously affected

the fairness, integrity, or public reputation of judicial proceedings.”

FINAL JUDGMENT (Liberty Mutual): Can only appeal from final judgment, which is “one which ends the litig on the merits and leaves nothing for the court to but execute the judgment.” (§1291)

o Defining moment of final judgment not always easy To bring appeal, must file notice with TC clerk w/in 30 days of final judgment (60 days for appeal

involving US govt.) CoA can’t hear appeals filed late, though DC can extend time to file for good cause.

o Exceptions to final judgment rule: INJUNCTIONS – §1292a: CoA can hear interlocutory appeals about injunctions INTERLOCUTORY – §1292b: If TC judge thinks an order not otherwise appealable involves a

controlling question of law with substantial grounds for difference of opinion, and an immediate appeal might materially advance the litig, he can state this and then CoA has discretion whether to take immediate appeal or not w/in 10 days of order being entered. Not often used, maybe should be.

COLLATERAL ORDER DOCTRINE (aka Practical Finality): (Lauro Lines) – classically applies in cases where govt officials have official immunity that protects them from obligation to stand trial.

Conclusively determine disputed question Resolve important issue that is separate from the merits Effectively unreviewable on appeal of final judgment

WRIT OF MANDAMUS: Obtained in an original proceeding in the court that issues the writ, and orders a public official to perform an act requires by law. Only available in extraordinary cases.

Used sparingly, except in case of TC denying right to jury trial under 7th amend. Rule 54b: In multi-claim or multi-party actions, court may enter final judgment on just certain claim or

certain parties which are then immediately appealable. (Considered and rejected in Liberty Mutual)

STANDARD OF REVIEW on appealo Clearly erroneous: standard applied to TC’s fact-findingo De novo: applied to questions of law/pure questions of lawo Abuse of discretion: applying law to fact/questions of law in which TC is given discretion in making

decision.

Clearly Erroneous De Novo Abuse of DiscretionFact-finding. Whether or not to impose Rule 11 sanctions. Allowing peremptory challenges.

12b6 motion. Summary judgment. JML. What rules apply in granting injunction. Jury instructions.

What sanctions to impose under Rule 11. Whether or not to amend under Rule 15 (although CoA leans towards freely allowing amendments). Discovery issues. Applying injunction rules to particular case. Order for new trial.

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Harmless error, Rule 61 (Harnden v Jayco)o Even if CoA decides there was error in TC, won’t reverse/change judgment unless error was harmful

to/prejudiced a party or affect party’s substantial rights. o Courts consider if affected substantial right, and what outcome of case would have been absent the

error.

28 USC §1291: CoA hears appeals from final judgements. 28 USC §1292: Interlocutory decisions

o 1292a1: Can hear interlocutory appeals regarding injunctionso 1292b: If DC judge thinks an order not otherwise appealable involves a controlling question of law with

substantial grounds for difference of opinion, and an immediate appeal might materially advance the litig, he can state this and then CoA has discretion whether to take immediate appeal or not w/in 10 days of order being entered. This appeal doesn’t stay DC proceedings unless DC or CoA judge so orders.

Rule 54b: In multi-claim or multi-party actions, court may enter final judgment on just certain claim or certain parties which are then immediately appealable.

61: Can’t vacate, grant new trial, modify judgment, etc., based on error if the error was harmless, i.e. did not affect any party’s substantial rights. (“unless justice requires otherwise”)

Aetna Casualty v Cunningham (5th cir 1955 P62) - What counts as adverse (judgment must be adverse in order to appeal)

o CoA said Aetna could appeal even though won on contract claim bc even though winning on fraud claim would’ve given same amount, D likely to declare bankruptcy in which case might not be able to collect on contract claim, but prolly could if had won fraud claim. Insurance comp. suing construction comp.

Carson Products v Califano (5th cir 1979 P62) - In general, issues raised in appeal must have been previously raised during trial (preserved). When can new issue be raised on appeal?

o P tries to make new argument during appeal based on Zotos case that happened btw his original case and the appeal which caused the FDA to change its procedures. CoA says it’s okay to make new claim based on new law in exceptional circumstances like this. Carson appealing FDA decision that their secret shaving powder ingredient wasn’t trade secret and needed to be listed in ingredients.

Massachusetts Mutual Life Insurance v Ludwig (US 1976 P64) - When can new issue be raised on appeal?

o TC said MI law applied and single indemnity. P had argued MI law and double indem, D argued IL law and single indem. P appealed, and D tried to raise new argument that even if MI law applied, still single indem. CoA said couldn’t make this argument because they didn’t cross-appeal (and couldn’t cross-appeal because not adverse). SC said this was exception to preservation rule: if defending decision of TC, can raise issues ignored by TC. P had double indemnity clause if killed while on commuter train; hit by other train while heading towards commuter train.

Liberty Mutual v Wetzel (US 1976 Y636) - What counts as final judgmento TC issued sum judg for P, but didn’t grant relief requested like injunction. D though sum judg

was final and appealed. CoA affirmed. SC looked at case, said dec not final bc relief not granted, so can’t be appealed yet. Could have been appealed if injunction granted (§1292a) or if judge had used §1292b, but they didn’t. Title VII maternity leave case.

Lauro Lines v Chasser (US 1989 Y644) - Collateral Order Doctrineo Cruise line required all cases to be brought in Naples. Cruise line wanted to appeal right away, SC

said Collateral Order Doctrine not applicable bc not effectively unreviewable on appeal (i.e. could be retried in Naples if US trial overturned on appeal).

Anderson v Bessimer City (US 1985 Y655) - Clearly erroneous standard of reviewo When there are two permissible views of evidence, factfinder’s choice btw them can’t be clearly

erroneous. Woman not hired as recreation director. CoA claimed to be using “clearly erroneous” standard in review TC’s finding of fact, but SC said they were using de novo standard bc not just looking at whether or not TC could rationally find what they did, but whether TC was right.

Harnden v Jayco (6th Cir 2007 Y662) - Harmless error

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Cases

o Error (in allowing report in inadmissible form) was harmless, so judgment stands. RV dispute case; error harmless bc P had opportunity to refute report even though wasn’t in form of affidavit, and if sent back to TC, they would just have D resubmit as affidavit and P presumably still wouldn’t be able to rebut.

ALTERNATIVE DISPUTE RESOLUTION

Mediation: Helping/facilitating parties reaching agreement. If no agreement, still go to adjudication. Arbitration: In lieu of adjudication.

o Pros: speed, cost, expertise of deciders in certain subjects, ability to modify substantive law, can create compromise instead of “all or nothing” decision, confidentiality

o Cons: Binding, with no appeal mechanism (except for when there’s blatant error in process).

Enforcement of Arb. Agreements:o 9th Cir. (Cal.) has struck down arb. agreements for unconscionability (Ferguson v Countrywide)o 5th Cir. (Texas) has allowed same arb. agreements to stand (except for shifting costs to D) (Carter v

Countrywide)o In Ferguson v Writers Guild court found that agreement for Writer’s Guild arbitration process (involving

only written evidence, fast, anonymous deciders, can only appeal for procedure, I.E. very different than normal court process) was enforceable.

Ferguson v Countrywide (9th Cir. 2002 Y508)o Arbitration agreement in employment contract unenforceable bc unconscionable. Procedural

unconscionability: oppression (unequal bargaining power) and surprise (hidden in language). Substantive uncon: Agreement one-side, puts unfair costs on P, possibly unfair discovery provision. Sex harassment case against employer, California law.

Carter v Countrywide (5th Cir. 2004, Y513)o P argued uncon. like above, but 5th cir. said not under Texas law. Found unfair costs on P, but

just required D to pay costs instead of saying don’t have to arbitrate at all. Overtime, Texas law. Ferguson v Writers Guild (Cal. App. 1991 Y520)

o Ferguson challenged procedure of Writers Guild Arbitration, and CoA refused to look at that. Would only look at whether arbitration procedures were properly applied in his case, found that they were. Writer’s Guild Arb. very diff. from court process (fast, majority vote, anonymous arbitrators, written evidence only, unreviewable except for procedure).

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