Civil

Procedure Outline Table of Contents

Overview/History………………………………………………………………………………………………………………………………..2
Subject Matter Jurisdiction…………………………………………………………………………………………………………...…….2
• Standing…………………………………………………………………………………………………………………………...……….4
Personal Jurisdiction……………………………………………………………...…………………………………………………………….4
Procedural Due Process…………………………………………………………………………………………………………..……………7
Pleading (FRCP R3-12)-Framing Stage………………………………………………………………………………………………….9
Pleadings/Complaint…………………………………………………………………………………………………………………………11
• Consistency and Honesty…………………………………………………………………………………………………………12
• More Particularized Pleading………………………………………………………………………………………………..….12
• Defendant’s Response……………………………………………………………………………………………………………...15
• Counter Response to Defendants Answer/Motion…………………………………………………………………….15
• Amendments and Relation Back…………………………………………………………………………………………….…16
Discovery (FRCP R26-56)……….………………………………………………………………………………………………………..…17
• Scope of Discovery…………………………………………………………………………………………………………………..20
• Discretionary Tools for Discovery…………………………………………………………………………………………….22
• Summary Judgment……………………………………………………………………………..…………………………………..26
Trial……………………………………………………………………………………………………………………………………….…………30
• Judicial Control of the Verdict…………………………………………………………………………………………………..32
• Judgment as a Matter of Law……………………………………………………………………………………………………33
• Post-Judgment Remedies…………………………………………………………………………………………………..……..35
Appeal……………………………………………………………………………………………………………………………………………….36
Settlement…………………………………………………………………………………………………………………………………………38
Preclusion………………………………………………………………………………………………………………………………………….41
“Choice of Law” (aka “Conflicts of Law”)……………………………………………………………………………………..………45

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 The Basic Model:
Pleading Discovery Trial
ß------------R12--------------R56----------à
J1 J2

(NOTE: Pre-litigation, π weigh the costs/benefits, “pricetag” of justice even before J1? Once π selects a jx, ∆
will try to kick it out [J1-Jx]. First hurdle)
Posner: Efficiency, Rawls: Justice, Michelman: Intrinsic (justice) and Instrumental (mode of doing it)
OVERVIEW / HISTORY
(Take note of jx/time to see if case may be binding/good law anymore)
- Adversarial System: American courts derived from England-Common Law. Principle of the American
court system.
o 19th C. Laissez Faire, parties given much leeway of presentation
o Late 19th C. Shifted towards a more active role for judges
o Mid-20th C Soviet Model giving judges “inquisitorial process”
- Objective: not to obtain “truth”, but to resolve conflicts b/t the 2 parties
- Function: Allows parties to feel like they had their “day in court”, while outcomes are not always absolute
(varying factors like juries), procedures validates the integrity of the legal system
- Foundations: difference in systems rooted in allocation of power b/t decision-maker & parties b/c
procedures dictate what information will be provided to decision-maker; how/what this information is
presented
o Atty’s role is to ensure parties take full advantage of this power
o Exclusionary: CP does not include substantive law
- Sources of Procedural Doctrine: (Think of how these relate to one another)
o U.S. Constitution Article III: Defines Judicial Power (limits what types of cases go to federal
court, and the subjects)
o Federal Statutes: 28 USC §§ 41 and 133 lists which states go to which courts
o 28 U.S.C. §§ 2071-2074 give rulemaking power to SCOTUS and other lower crts
o FRCP R1: Rules Enabling Act-SCOTUS develop rules of CP
§ Values: Justice, Speed, Efficiency (Soft issue: What is justice/fairness?)
o Common Law
- Roles of Judges:
o 1960’s: Judges are umpires to resolve neutrality
§ Band’s Refuse: Judge has discretion, but still needs to be impartial & judge shouldn’t cross
the line
• In Band’s Refuse, judge was actively participating & held impromptu, one-sided
meetings with π’s and not ∆’s.
o 1980’s: Managerial Judges
***NOTE: Valid Judgment requires BOTH Personal and Subject-Matter
jurisdiction***

SUBJECT MATTER JURISDICTION

(Right System?)
CASES:
Mas v. Perry: Newlywed couple living in Louisiana rent an apartment, building owner has one way mirrors
where he can see them having sex. Mr. Mas- citizen of France, Mrs. Mas-citizen of Mississippi (crts have to
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determine her domicile [where you intend to remain permanently]-not Louisiana, or France, but Mississippi
where her family is), Mr. Perry-citizen of Louisiana. YES fed crt has jdx under diversity jdx, US const art III.
Louisville and Nashville Railroad: Couple injured in railroad accident, given free lifetime passes to railroad, but
railroad cancels free passes because its illegal to give free passes?? à breach of contract suit.
Federal issue-the breach of contract claim is based on state law and the railroads defense is based on federal
law. Crt says there is not federal question jurisdiction à we get the well pleaded complaint rule.

- Questions to ask to see if subject-matter jurisdiction applies:

§ Is there diversity jurisdiction (are the citizens from two different states)?
§ Is there a Federal Question? (i.e. did π choose right system à federal vs. state?)
• U.S. Constitution Article III, Section 2: Fed court allowed to listen to 9 categories of cases
o This includes federal statutes (28 U.S.C. § 1331 – Federal Question; 28 U.S.C. §
1332 – Diversity jurisdiction)
- Subject-Matter jurisdiction is non-waivable
§ Subject-Matter Jx would first be evidence in complaint (required)
§ Not Waivable because rooted in the U.S. Constitution Due Process
- Federal Question (28 U.S.C. § 1331):
§ Traditionally: Ruled using federal common law on federal cases, but no longer allowed (Erie)
§ How do we know it’s a federal question?
• Pleading includes violation of federal statute
o TRAP: Federal claim could still be heard in state court unless state limits only to
federal court
§ Well-pleaded complaint rule: Must look at “four corners” of complaint to determine whether
there’s a federal question, you cannot anticipate that defense will include federal statute
• Louisville v. Mottley: π suing ∆ for breach of contract (state claim), but anticipated that ∆
would use a federal statute as defense so filed in federal court
• Policy: Speculative b/c π does not know what ∆ will assert; also allowing affirmative
defenses of federal statutes to constitute federal question à huge shift of cases to federal
court
§ Implicates Federal Question?
• Test:
o (1) Federal Question embedded into state law claim (i.e. right to relief of necessity is
embedded into claim)?
o (2) Significant or substantial question to federal law?
§ Grable & Sons v. Darue: π had question of state claim but required taxes
(IRS) à Federal; procedural question of how IRS is serving taxes is
substantial matter affecting many people outside of state
§ Must Address federal question (“substantial question”) in complaint
n Why substantial and not just ALL federal cases? (work flow; respect
of Congress’ authority of construing flow of business)

- Diversity Question (28 U.S.C. § 1332):

§ Amount in Controversy (§ 1332(a)): currently minimum of $75K, but Congress keeps changing it
because (1) inflation (2) screening function
• Screening Function: High enough to bar “low-valued” cases from using federal court
resources
• Subjective Test: Whether in good faith, π’s request for amount, meets the controversy à
NOT determined by what the eventual outcome was
o How do you show bad faith? State that it lacks “legal certainty”
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 § Legal Certainty: Accepting complaint as true, they could not have genuinely
pled that amount (4:1 ratio)
o Parties assessed separately: each individual π must have claim amounting to
controversy
§ Citizens from different states: If issue is a state matter, can still be in federal court if citizens are
from different states
• Domicile: Citizen of the state where you reside, a natural person of both the U.S. and
domiciliary (i.e. live there and/or intentions of permanent citizen of the state)
o “Last State”: If currently in limbo (Mas v. Perry: grad students attending school in
LA, but no intentions to live there), then domicile is last permanent location.
o Subjective: contested since subjectivity is soft issue
o 28 U.S.C §1441 –Removal of Civil Actions
§ (a)-any case brought in state crt for which US dist. court has jdx may be removed by D to US dist.
crt (federal)
§ (b)-Removal based on diversity of citizenship- complete diversity requirement
o 28 U.S.C. §1446-Procedure for Removal of Civil Actions
o 28 U.S.C. §1447(c)-Procedure After Removal Generally-motion to remand for anything but SMJ must be
made w/in 30 days after filing notice of removal under 1446(a). if at any time before final judgment district
crt lacks SMJ, case is remanded.

Standing
CASE:
**Hollingsworth v. Perry- Prop 8 sponsors don’t have auth to rep state of CA in appeal of adverse fed crt ruling
that CA refuses to appeal.

ANALYSIS: 2 same sex couples were injured by prop 8, official sponsors of prop 8 bill weren’t injured, state
was so sponsors don’t have standing in 9th circuit
-crt wont hear a case just to answer a question, must be actual controversy, not 2 parties who want to test crt
-“injury” defined in terms of standing
• causation-injury must be traceable to what happened (issue)
• redressability- crt must have ability to redress

US Const. art. III §§ 1-2 (pg 231)

• 1)gives power to judges of SCOTUS and inferior courts
• 2)judicial power extends to all cases in law and equity except military-SCOTUS has original jdx,
trial of all crimes but impeachment shall be by jury

PERSONAL JURISDICTION
(Right Location?)
CASES:
Daimler(supp)- “natural person” v. corporations. If you are a resident of a certain state, you can be sued there no
matter what. German co makes Mercedes Benz cars-does a fed crt in CA have jdx over a German company for
acts in Argentina.
Intnl Shoe- State of WA suing co based in MO for not paying unemployment wages. Salesmen go around WA
with one shoe and solicit orders, actual solicitation are sent back to MO where co ships shoes to buyer back in
WA. Standard crt uses is the “presence of the company in the state” their agents and how connected to the state.

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Crt says WA has Pjdx, this is an example of minimum contacts- sending salesmen into state, taking advantage
of states laws, purposefully direction of activity at WA.
• Justice Black (separate opinion)- afraid precedent will limit states’ authority to regulate issues within
its borders.
Burger King: a Florida-based corporation sued a franchise in Michigan for breach of franchise obligations and
trademark infringement. The franchisees entered into a 20-year contract with Burger King, but stopped paying
their monthly dues after business declined. Burger King terminated the franchise and filed suit when the
franchisees continued to operate the restaurant.
The franchisees argued that because they were Michigan residents and the restaurant was located in Michigan,
the claim did not arise in Florida, so they were not subject to the personal jurisdiction of Florida.
The court found that the franchisees knowingly entered into a contract that explicitly subjected them to
Florida state laws, so the claim did in fact arise in Florida. Since the franchisor’s claim arose out of the
franchisees’ breach of a Florida contract, the court held that Florida could exercise SPECIFIC personal
jurisdiction over the franchisees pursuant to Florida’s long arm statute.
-
- When can Personal Jurisdiction be Raised?
§ Within a proceeding – OR – R12(b)(2)
§ “Collaterally” in a subsequent proceeding (Pennoyer)
- Questions to ask to see if Personal jurisdiction applies:
§ Are we in the right geographic location? (i.e. did π choose the correct forum?)
§ Did ∆ waive it (Rule 12(g) + (h), which would preclude ∆ from using it as a defense
§ If ∆ never got appropriate notice (Pennoyer), then ∆ may “collaterally” attach personal jurisdiction
in subsequent proceeding
- Different Approaches:
§ Traditional: Territorial (Pennoyer)
§ Modern: (Shoe) and progeny
• Test: (See Chart Below)
o (Prong 1)“Minimum contacts” (with forum) such that
§ What’s the quality of that contact?
n Continuous and systematic business? Then runs farther down “quality”
axis
§ What’s the relatedness of what π seeking from ∆ to the contact?
n International Shoe: Government Agency was seeking taxes from the
corporation
§ Example: Yacht that’s not from Oregon, but yacht was kept in Oregon all the
time and hits someone swimming, then (1) continue and systematic presence –
i.e. quality (2) Related because ∆’s yacht is related to π’s cause of action,
accident is related to presence of ∆’s yacht
o (Prong 2) Exercise of personal jurisdiction does not violate “traditional notions of
fair play and substantial justice” (Fairness Prong)
§ Vague, but concerns of “unreasonableness” and “undue procedures”
§ Fairness issues (Burger King) include:
n Undue Burden on ∆
n Whether forum state has an interest in adjudicating dispute
n Judicial Systems’ interest in obtaining most efficient resolution of
controversies
n Shared interests of several states in furthering fundamental substantive
social policies

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 o Relationship b/t Minimum Contact (prong 1) & Fairness (prong 2): Satisfy
minimum contact but unfair? Only in rare circumstances that would “severely
disadvantage” would fairness prong overcome strong showing of minimum contact
(Burger King)
o Different Views in applying test:
§ Conservative Judges: Minimum Contact = territorial (Pennoyer); Prong 2 =
Fairness
§ Liberal Judges: Minimum Contact = sovereignty and bound by sovereign
power
• Values Driving Modern View: More mobile era, people moved from state to state, rise of corporations (so
physical presence harder to define), improvement of communication and transportation (easier to travel,
less of a burden to fly in state

-
- Long Arm Statutes: Applies to out-of-state ∆’s, “long arm” is reaching from another state to bring out-of-
state ∆ back into state
§ Full Faith and Credit: Whichever state federal court is sitting in will adopt that state’s “long arm”
statute
- Basic Components to Personal Jurisdiction:
§ (1): If ∆ resides in the forum
• If person or person’s property resides in state, then person is considered “physically” present;
if not, ∆ cannot be “dragged” from out-of-state into the state form (Pennoyer)
§ (2): Consent
• Ex Ante – before the dispute, consented to personal jx (EX: Signing K to litigate all claims in
a certain state)
• Ex Post – after the dispute (EX: showing up to the court and NOT raising personal jx as an
issue, court will assume you have consented).

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o Rule 4(k)-Territorial Limits of Effective Service
§ (1)-service of summons establishes Pjdx over D who is subject to jdx in state where dist crt located,
who is a party joined under r. 14 or 19 and is served w/in judicial district of US and not more than
100 miles away from where summons issued, or when auth by fed statute
§ (2)-for a claim arising under fed law, serving a summons or filing a waiver of service establishes
Pjdx over D if they are not subject to jdx in any states crt of gen jdx and exercising jdx is consistent
w/US const and laws.
o US Const. Am V-no double jeapordy, don’t have to testify against self, not deprived of life, liberty or
property w/out due process of law, no private prop taken for public use w/out compensation
o US Const. Am XIV-All citizens are citizens of US and state in which they reside, due process of law, state
cant deprive any citizen of equal protection of the laws.

PROCEDURAL DP-Due Process is the Constitutional Floor (bare

minimum)
CASES-
Bands Refuse: Garbage collection racketeering, judge oversteps boundaries-plays attorney
Kothe v. Smith: med malpractice-judge says 20k case, sanctions Ds lawyer b/c settles for 20k after 1day trial-
Court’s ability to influence trial
-**Mathews v. Eldridge - crt holds social security pre-termination procedure consistent w/due process. 3 factors
-**Connecticut v. Doehr- Conn statute deprives D of property w/out due process, violates 14th am-remanded

• FRCP 16 (pg 43-49): Judges authority and purpose in pretrial conference

o a)Purposes of a Pretrial Conference
§ crt MAY order one-to improve quality of trial through thorough prep and to facilitate
settlement
o b)Scheduling Order-Judge must issue scheduling order
§ w/in earlier of 120 days after service of complaint or 90 days after D has appeared
o c)Attendance and matters for consideration at a pretrial conf
§ attorneys MUST be ready to make decision re case
§ try to settle case and promote just, speedy and inexpensive action
o d)Pretrial Orders
o e) Final Pretrial Conference and Orders
o f)Sanctions-must be just
§ gives crt authority to back up orders w/punishment

-established procedures lie at heart of due process, as important to attainment of ultimate justice as factual
merits of the case.

Due Process Clause: 5th and 14th Amend: “no one shall be deprived of life, liberty, or property without due
process
o 5th Amendment: To the United States pg 232
§ no person shall be held to answer for a crime unless on presentment or indictment of Grand
Jury (except military)
§ no double jeopardy
§ can’t be made to be witness against oneself
§ no deprivation of life, liberty or property without due process of law
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 § no private property shall be taken for public use w/out compensation

o 14th amend applies to states pg 233

§ everyone born in US is citizen and subject to jurisdiction of state they reside
§ no state will make or enforce laws to abridge privileges or immunities of citizens
§ no state shall deprive anyone of life, liberty or property w/out due process
§ equal protection of laws
-Mathews 3 factors: in deciding if a procedure complies w/due process, crts evaluate
• Private interest-protected?
• Risk of error-are rules reliable in producing adequate outcome?
• Govt interest/other litigant interest-does it protect public interest?

- Values:
o Rawles: Rational adjudication, formal justice (getting to the truth, getting to the right outcomes)
§ Instrumental view
o Posner: Economic judge B< PL
o Michaelman: Instrument and intrinsic value
§ Instrinsic: what underlies these access to the court, a participatory value, we want people to
be able to have access to the courts, dignity issue
§ Instrumental value: to deter people from doing wrong and committing crimes
Fuentes v. Shevin Test (SCOTUS, 1971):
- Still allowed DP of property when not completely theirs?.
- Intrinsic values were important
- Test for pre-attachment seizures + Due Process:
o Was there a deprivation of property? (temporary counts)
o If so, what process is due?
§ Notice and prior hearing (Soft issue: opportunity for prior hearing- setting time unavailable to
∆ can be notice?) is required except:
• Necessary to secure important gov’t interest
• Special needs for prompt action
• State Controlled (judge issues the writ of replevy)
Mitchell (SCOTUS, 1974)
- Didn’t overrule Fuentes but allowed for a statute w/o prior notice to be valid because it was more narrowly
drawn
- 3 views of how Mitchell affected Fuentes:
o 1. Overruled it
o 2. Narrowed scope of Fuentes (Powell concurrence)
o 3. Exception to Fuentes
Di-Chem (SCOTUS, 1975):
- Struck down GA statute, didn’t have redeeming qualities of the Mitchell statute.
Conn v. Doeher (SCOTUS, 1991):
- Added a clearer framework to Fuentes (which had broad and abstract values)
o Bond Requirement: half SCOTUS said a bond should be required in additional to procedural
safeguards (e.g. prompt postseizure hearings) for prejudgment seizures
o Mathews 3 Factor Test for Prejudgment Seizures:
§ Private Interest of the guy whose property is being seized
• EX: Conn. V. Doeher, lien on property affected his interest
§ Risk of error and value of addt’l process
• EX: Conn Statute had just one-sided story, risk of error was high
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 § Creditor’s Interest (changed from gov’t interest in Mathews)
• EX: ∆ in Conn v. Doehr had no interested in actual property, just wanted to make sure
party had money left

PLEADING (FRCP R3-12)-FRAMING STAGE

- CASES:
- Gillespie v. Goodyr- woman accuses men of various crimes, conclusions but no specific facts-case thrown
out.
- **Conley v. Gibson- P sues D over racial discrimination of union. D says complaint not adequate. Crt says
short and plain statement all that is required in pleading stage.
- US v. Board of Harbor Commissioners- Complaint wordy & unclear, 12e mo for more definite statement
denied b/c only for unintelligible complaints, not to request more detail.
- McCormick v. Kopmann: Ps dead husb. dies in crash after drinking. P pleads inconsistent alternative
allegations. OK under 8d as long as P doesn’t know which is right.
- **Swierkiewicz v. Sorema, N.A.-P sues for wrongful termination b/c of national origin and age. Dismissed
b/c hasn’t established prima facie case of discrimination. SCOTUS says ok-pleading requirement lower than
evidentiary standard. P meets r. 8 short and plain statement requirement.
- Bell Atlantic Corp v. Twombly- Ps sue Bell Atlantic and local phone cos for antitrust violation. Fails at
pleading b/c complaint too speculative. P ‘s claim of “conscious parallelism” not enough to show collusion.
- **Ashcroft v. Iqbal-P detained after 9/11, sues fed officials for infringing on constitutional rightsàpleading
issue.
o Facts alleged must make claim plausible.
o complaint needs to be non-conclusory, irrefutably supported by facts, plausible under the
circumstances of the case and factually true, to be well-argued.
o A well-pleaded complaint requires to be supported by allegations containing factual content which
leads to the conclusion given, and have factual and plausible arguments which cannot be easily
disproved.
o Souter Dissent-Like in Twombly, non-conclusory allegations should be accepted as true unless they
are so incredible as to be obviously untrue. Crt wanted to stop minimally intrusive discovery
o
o Function: Describe and define the dispute b/t the parties (which effects the substantive law and procedures
to be taken in court)
o Stringency: how stringent do we want the screening process to be?
§ What cases do we want to weed out? How detailed should π’s complaint be?
o History:
o Common Law Pleading: designed to reduce dispute to a single issue
§ Problems:
• 1) Framing issue correctly could pre-determine case
• 2) Pigeon-hole strictness prevented π a remedy even if π should have remedy
§ Function: A screen to weed out meritless cases, focused on efficienc
o Code Pleading: (aka “Field Code”, many states including NY/CA still maintain this,
§ Abolished forms of action and created one form of action. Limited to complaint, answer,
reply, and demurrers
• Ex: Gillispie v. Goodyear: π only pled conclusory allegations and no facts re: ∆
coming onto her land
• Must state cause of action, cannot just state the elements
§ Cons: What if you do not know the facts and you need discovery to access these facts? One
of the faults of Code pleading that shifted towards regime of notice pleading instead.

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 §π’s job to establish cause of action, if you pled the wrong cause, not the judge’s job to
identify the correct cause (unlike Notice Pleading)
§ Want a lot of facts (on spectrum of specificity, very high)
o Notice Pleading: (R8)
o A Claim for relief, if you identified the wrong cause, judge can still ID relief from elsewhere
o Conley v. Gibson: dismissed only if “no sets of facts” can be found
§ Board of Harbor Comissioners: liberal pleading std; ∆’s 12(e) Motion for more Definite
Statement denied b/c notice pleading is to place ∆ “on notice”;
• Harbor ruled 12(e) used only when pleading is unintelligible
o R8(a)(2) hasn’t changed textually, but interpretation has changed
o Only requires conclusory allegation
§ Bare Minimum: Only need to plead bare minimum, but can still plead with specificity
(BCD: who pled a lot b/c they knew their mental anguish argument was weak )
§ Tradeoff b/t burdening π who may only obtain facts during discovery vs. ∆ who may be
burdened with a meritless claim and still pay costs of discovery
o Current Era?: (Iqbal and Twombley).
o A heightened notice pleading using R8(a)(2)-more showing than just notice?
o Twombley: Overruled “no set of facts” rule; now a pleading must contain “Allegations provide
enough facts (accepted as true) to raise a reasonable expectation that discovery will reveal
evidence of a cause of action and a claim to relief that is plausible on its face”
§ Twombley’s pleading insufficient b/c conduct just as likely as another theory
• Parallel conduct could mean there is conspiracy, but could also mean companies just
all acting in their self-interest)
• Without more, conduct by itself is not enough b/c the law states parallel conduct itself
isn’t enough
o “Raise a right to relief above the speculative level”, more than “formulaic
recitation of elements”
o Plausibility: NOT just legal conclusions, NOT speculative (“merely possible”
or “conceivable”), NOT heightened pleading, NOT a probability standard
(NOT like the Strong Inference test est. by Ginsberg & Scalia in Tallebs)
§ No agreement for what “plausibility” is, but just a heightened regime from
Conley
§ Ct may have been motivated by policy reasons of allowing too many claims
into discovery phase
§ Courts could have chosen to lump this to 9(b); instead, they chose a 8(a)(2) and
applied this ruling “transsubstantively” (across the board of all substantive law)
§ “Nudge from possibility to plausibility.”
• Calls for enough facts to raise reasonable expectations that discovery
will reveal evidence of the cause of action.
§ R8(a)(2) must have factual allegations and not a blanket assertion of
entitlement to relief
§ Steven’s Dissent: Conley Eulogy
• Notice pleading may not be completely dead; discovery can be costly
and jury could erroneously side with π in a complicated case, which is
why they are suppose to strictly utilize the discovery tools
o Iqbal: Twombley defined plausibility, Iqbal created 2-part process test
§ Facts alleged (assumed to be true) don’t have to make crt think its probable that D acted
unlawfully, just have to “nudge claims across the line from conceivable to plausible.”
§ Separate legal conclusions from fact allegations (cut fat)

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 •
SPLIT: can go line-by-line or see the entire complaint as a whole to see where facts
are distinguishable from legal conclusions
• Iqbal/Twombley didn’t overrule Form 11
§ Apply new Twombley plausibility standard (enough facts to have expectation that discovery
will reveal evidence)
• Plausibility varies depending on the claim; harder to establish plausibility in
discriminatory cases than in negligent cases
o Swierkiewicz v. Sorema: employment discrimination
o Must go past speculative level “more than a sheer possibility that a D has
acted unlawfully” Iqbal
o “Plausibility” vs “Strong inference”
§ Strong inference: requires more details of facts
• Fraud requires even more details, and whether the weight of those facts support
YOUR inference (securities fraud, even MORE heightened)
§ Plausibility: weight of those facts to find the inference
o Mini Rules:
o Rule 3: Filing of complaint commences civil action
o Rule 4: π serves complaint to ∆
o Rule 10: Form (how the complain should be formatted), separated by numbers.
§ Split pleading by Counts vs. Causes of Actions
• Separated into counts =multiple causes of action; or
• Each count separated by each individual cause of action

Pleadings/Complaint:

Rule 8 (If in CA Ct, §425.10 is CA’s version) General Pleading

o 8 (a): Contents of pleadings
o R 8(a)(2):
§ Relationship to R12(b)(6) Motion to Dismiss by failure to state a claim).
• Rule never amended, just interpreted differently
• Harbor Board Commissioners: “Short and plain statement”, discovery is where it’s
relevant to find facts
• “Short and plain statement showing claim to relief”
§ Current view: emphasis on showing now (Iqbal/Twombley standard: 2 part test for
plausibility)
(b)(1):Defenses: Admissions and Denials
§ 1(a) state in short and plain terms defenses to each claim
§ 1(b) admit or deny all allegations UNLESS
• lack of knowledge or Info-if don’t have info to form a belief about truth of allegation,
must so state, and statement=denial

o (b)(3): must deny line by line if not making a blanket denial

(b)(5): Defenses
• David v. Crompton: Lacking Knowledge or Information.
§ Couldn’t use R8(b)(5) because they should have known information
(c): Affirmative Defenses: (fraud, estoppel, res judicata, stat of lim, etc.)
o MUST be raised in pleading, can’t wait until trial. ∆ has Burden of Persuasion
o (d)(2): Inconsistent Pleadings Allowed
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 o McCormick v. Kopmann-π was drunk & π was sober/driver was negligent). B/c notice pleading is
just to establish conclusory allegations and facts are to be determined in discovery, a π may plead
inconsistent pleadings (if π truly doesn’t know the facts)
o Policy reasons for inconsistent pleadings:
§ Efficiency reasons: if π could file individual cases, then just file all cases at once
§ Eliminates potential inconsistent rulings if π sought separate trials w/ each ∆
§ Allows for π to keep options open when facts are uncertain until discovery
§ Jury can only find for one count, cannot find for both
o (e): “To do Justice” (SOFT ISSUE)
More Particularized Pleading
CASES:
**Tellabs, Inc. v. makor ltd: P shareholders say Tellabs CEO intentionally misled investing public about value
of Tellabs stock. Crts dismiss Ps complaints b/c can’t prove D acted w/scienter. SCOTUS overturns. Tellabs
SCOTUS standards for fraud cases
• crt must accept all fact allegations in complaint as true
• must consider complnt in entirety-do all alleged facts taken collectivelyà strong inference scienter?
• Plausible opposing inferences-complaint will survive if rsble prson would deem inference of scienter
at least as compelling as any opposing inference.

Rule 9(b): Heightened Pleading for Fraud or Mistake-must state with particularity the circumstances
constituting fraud or mistake-malice, intent, knowledge and other conditions of a persons mind may be alleged
o Strong Inference Test (Tellabs)
o SCOTUS: Maj by Ginsberg: Facts not just plausible, but requisite intent is at least as likely as any
other conclusion from facts alleged (50%)
§ Heightened from general pleading (which is to give notice); strong inference involves
weighing allegations w/ inferences
o Concurring Opinion by Scalia:
§ 50/50 not strong enough inference, must be more than 50% chance (i.e. 51% chance at least)
o Policy: heightened pleading standard deters frivolous suits, but you also want the consumer to sue
corporations to keep them in check. Balance issue.
o Purposes: prevent fear/nuisance lawsuits that lack merit, reputational injury, notice
o 9(b) applies to all fraud
o Securities is A type of fraud. Previously, lawsuits would ensure if someone’s stocks fell
significantly, Congress required heightened pleading to decrease lawsuits against companies
(PSLRA) Tellabs
o 9(b) states fraud or mistake (note: NOT negligence): Heightened b/c state of mind is hard to prove.
o Securities Fraud even more heightened standards: “at least as cogent an inference as competing
inference”
§ Why? B/c π’s may enter a baseless claim in hopes of an extensive discovery with the goal of
settling)

Consistency and Honesty

CASES:
Zuk v. Eastrn Penn Psych Inst.: P sued D for copyright infrngment, crt grants MoDis and orders sanctions from
Ps attorneys under 28 USCA sec 1927 and Rule 11. Reversed. Rule 11 OK but 28 USCA 1927 not proper.

Rule 11: Sanctions; Certification by Signing

o Definition: Lawyer’s signature certifying documents
o Function: Weeds out weak claims; code era pleading + stringent R11 = a lot of weeding out.
12
o 11(a): Signing Requirement: Somebody is responsible for document
o 11(b): Certification Requirement: Guarantees that § 1-4 are true and claim is not being filed for improper
purposes
o What is a “reasonable inquiry under circumstances”?
§ Objective view
§ How much research is reasonable for lawyer?
o 11(b)(1): “Improper purposes”: Soft issue.
o 11(b)(3): Evidentiary support and/or likely to have evidentiary support
o 11(c): Sanctions
o 11(c)(1): Who Can be Sanctioned?
§ The whole firm since lawyers work in context of firm
o 11(c)(2): Safe Harbor Provision
§ Allows attorneys to change or withdraw the claim after 21 days of filing
§ Values:
• Allows accountability
• Lowers cost of litigation
• Adversarial driven à allows parties to work out matter themselves
o 11c(3)-Show Cause Order-crt may order attorney/party to show why conduct didn’t violate 11(b)
o 11c(4)-limit sanctions to what suffices to deter repetition of conduct
o 11c(5)-crt cant impose sanctions
• A-against represented party for legal error 11(b)(2)
• B-after settlement/voluntary dismissal unless earlier show cause order
o 11c(6)-crt must describe sanctioned conduct and explain basis for sanction

Purpose of sanctions: deter the conduct, NOT to get back attorney’s fees from opposing party (ex: “super spicy
era” à sanctions (11)(c)(4) overzealously used )
§ Zuk v. EPPI: Attorney did not properly conduct research to show that claim was improperly
filed. Relied on π’s testimony w/o conducting own research/followed-up
o -Rule 11 standard-requirement of honesty & due diligence w/respect to written docs to crt
o -Rule 11 sanctions are proper when counsel fails to make an adequate inquiry into both the facts and the
law, which is reasonable under the circumstances.
o -crt can impose sanctions on their own without motion
o -crt can make you pay other side’s attorney fees if your negligence caused extra litigation costs, BUT must
have a motion to do this
o -to prove section 1927 violation-must show bad faith on part of offending attorney
o -crt must provide comments WHY sanctions imposed
o -crt must consider mitigating factors in imposing sanctions: Under Zuk
o Can sanctioned party pay?
o History of behavior
o Willfulness of violation
o Frivolousness
o Damage to integrity of legal system

Rule 12: Motions (If in CA Ct, §430.10 is CA’s version)

o 12(a): Timing of responsive pleadings (∆’s response)
o Options:
§ ∆ can file answer (i.e. admit, deny, go automatically to discovery)
§ ∆ can file a motion under 12(b), and if it’s denied THEN answer
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 § ∆ must answer 21 days after being served (unless D is USA, then 60 days)
o 12(b)(6): Motion to Dismiss
o Function: Court denies MTD à ∆ has to answer and move on to discovery, court can also grant
specific counts while denying others, that means discovery will proceed with the counts that
survived
o Lacking Substantive Sufficiency: Can dismiss complaint b/c no substantive sufficiency even if a
lot of facts
§ Mitchell v A&K: lacked substance when pleading said ∆’s complaint said he was shot on ∆’s
property, but facts alleged he was on sidewalk (which was not ∆ property)
§ If lacking, courts will usually allow π at least once to amend pleading
§ Lawyering: May plead more than necessary to see if their claims will hold up in court; would
rather know sooner to avoid costs of discovery)
o 12(b): Defenses- besides 12(b)(6); 1-5 are procedural in nature
o (b)-How to present defenses-can assert the following defenses by motion-If have defenses, must put
them in response BUT can assert other defenses by filing a MoDis-deadline is before pleading, this
will extend the deadline for filing an answer. Making choice not to file an answer through motion,
gives a party more time, and if granted, party doesn’t have to go through lawsuit. Legal strategy
§ 1-Lack of Subject matter jdx-MOST FAVORED (auth of crt to decide case)
§ 2-lack of personal jdx- 2-5 are least favored, gone if not raised at beginn
§ 3-improper venue
§ 4-insufficient process
§ 5-insufficient service of process
§ 6-failure to state a claim upon which relief can be granted eg Zuk, Swierkiewicz (how you
challenge sufficiency of the pleadings)
§ 7-failure to join a party under Rule 19
o
o 12(c): Motion for Judgment on Pleadings:
o Def: After pleadings are closed, either π or ∆ can file a 12(c); court will take all allegations (in
complaint and answer) as true and will make a decision.
o 12(e) Motion for More Definite Statement: Only used if complaint is completely unintelligible (Board of
Harbor Commissioner)
o May be paired with 12(b)(6) insufficient specificity
o 12(f): Motion to Strike: Strike for pleading insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter, either by:
o Sua sponte (12(f)(1)
o On a motion either (1) before responding to a pleading; or (2) w/i 21 days after being served with
pleading (12(f)(2)
o 12(g): Joining Motions
o 12(g)(2): Limitations to successive motions: can’t make successive motions if you have already
waived your rights. Connects with 12(h)(2)
o 12(h): Waiving and Preserving Certain Defenses
o 12(h)(3): NEVER waive 12(b)(1) subject-matter jx
o 12(h)(1): Can’t raise 12(b)(2-5) in successive motion b/c waived defenses after failing to bring them
up in your initial motion
o 12(h)(2): When you can raise 12(b)(6): 3 points
§ In any pleading (either pre-motion or answer) allowed under R7(a)
§ By motion under R12(c): Judgment on Pleading
§ At trial
Defendant’s Response

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CASES:
Shepard Claims v. William Darrah & Assoc.-laywer makes mistake by not filing answer in time. Rules have
mechanical framework, but cases should be decided on merits not technicality.

Answers/Responses: How ∆ can respond to complaint

o 7: Types of pleadings vs. motions

o 7(a): Defines Pleadings
§ TRAP: Motion & Answer are DIFFERENT
§ Answer: document either asserting or denying the claims made against the litigant à
standards of what goes into an answer is in R8(b) Pleading
§ Motion: under R12, allows ∆ to bring up issues that shouldn’t move forward to discovery
phase.
• Brought up before an answer.
o 7(b): Explains contents, forms, and functions of pleadings
o 8(c): Affirmative Defenses
o 12(g)+(h): consolidation and waiver provisions
o Purpose: prevent ∆ from using multiple pre-answer motions for different defenses; prevent ∆ from
omitting certain defenses from motions/answers
13(a): Compulsory Counterclaim
o Claims that D may have against P may be pleaded in the answer as counterclaims. If counterclaim
arises out of same transaction or occurrence as one of Ps claims, it is compulsory and must be
pleaded or it will be barred.
o 55: Default Judgment à when a ∆ does not respond either w/ answer or motion, judgment automatically
in π’s favor if:
o R55(b)(1): clerk can determine the sum as long as it is exact and can be calculated
o Court very lenient view of what an answer is
§ EX: Guy basically responded in crayon and answer said “π was shit” = answer
o R55(c): 3 factors to consider when giving default judgment
§ Shepherd v. William, Darren, and Asst
• Whether π will be prejudice
• Whether ∆ has meritorious defense
• Whether culpable conduct led to default (intent to mess with judicial proceedings or
reckless disregard)

Counter-response to ∆’s answer/motion

o 41(a): Voluntary Dismissals: π can choose to withdraw complaint whenever

o R41(a)(1)(A): By the π w/o a court order (i.e. w/o permission needed)
§ Limitations: Voluntary dismissal only allowed at early stages of litigation, if it’s progressed
too far, court won’t allow for voluntary dismissal
• Split: What’s “ too far”?
o Some courts stopped with injunctions; others allow for voluntary dismissals
after TRO’s
o With or without prejudice: means case closed w/o judgment on the merits à if π wants to refile
again within right period, they may do so
§ Forum Shopping: If judge feels you may be dismissing b/c you are forum shopping à
claim could be dismissed with prejudice
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 § Preference towards voluntary dismissal: if you decide to settle, believe some discovered
facts may weaker your claim, avoid 11(c) sanctions, litany of reasons why you may seek
voluntary dismissal
o ∆ can fight voluntary dismissal by:
§ Request to file summary judgment
§ Serve answer prior to voluntary dismissal
• TRAP: serve ≠ file
o R41(a)(1)(b): Voluntary Dismissal With Effect:
§ Function: If π voluntarily dismisses same claim twice, you’re done.
§ Applied liberally 1st time b/c courts know that second time = final (sometimes, judges just
want to clear their dockets) à Judge can use R41(d) to punish parties who re-file the same
claim
o 41(a)(2): π’s voluntary dismissal after ∆ has served response à π will need ct permission

Amendments and Relation Back

CASES:
Crompton and Knowles: Ds motion to amend answer (from did not know to def did not mnfctr product that
injured P) denied b/c would prejudice P and prevent from suing another b/c statute of lim ran out.
**Krupski v. Costa Crociere S.P.A.: Cruise ship accident, D names CCL, should have sued CC. SCOTUS says
was a mistake, so relates back.

o R15 Amendments to Pleadings

o Values: Very liberal approaches to prevent complaints from being knocked out easily, so people can have
their day in court
o (a)(1) Absolute Right To Amend: only once, π may amend pleading after 21 days of serving
o (a)(2): With “Leave of Court”: After 21 days, need court’s permission to amend
o When a court will not allow amendments:
§ Unfair: If “justice so requires it” comes down to fairness
• David v. Crompton: ∆ will be prejudiced b/c new π out of statute of limitation)
§ Futile: (linked to 15(c)), if doesn’t constitute relation back & not timely filed, motion
denied)
§ Undue Delay: Party knew of amendment before it was requested
§ Preparation Prejudice: Brought up really late, would prejudice other party’s preparation of
case
§ Disruption of Trial Schedule: Late amendment requires extension of discovery
o (c): “Relation Back” : Brings related amendments back to original pleading date; circumvents
statute of limitation
§ Policy: Highly politicized b/c bringing back ∆’s who thought they were safe due to statute of
limitations
§ Krupski v. Costa Cociere: There needs to be some relation of the amendment back to the
original complaint.
• Π trying to amend pleading to include correct ∆ (Cruise ship company had American
affiliate and Italian HQ), allowed b/c correct ∆ was from same transactional nexus
(π had slipped and fell, nothing changed; ∆ was on notice b/c both cruise ship
companies shared the same lawyer; and ∆ should have known it was a mistake)
§ Relation Back is allowed if à
• Same Transactional Nexus R15(c)(1)(B): does it have to deal with the same
transaction / fact pattern?
• ∆ On Notice R15(c)(1)(C)(i): Was the ∆ notified of the lawsuit.

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 o EX: On notice if wrong ∆ and right ∆ shared the same lawyer; lawyer should
have known and made the correction (Krupski)
• ∆ should’ve known R15(c)(1)(C)(ii): Defendant (NOT π’s mistake , Krupski)
should have known that the only reason he wasn’t sued was b/c it was a mistake
o Actual v. Constructive (should’ve known) Notice
o Soft Spot: Prongs 2 and 3 à Just b/c companies part of same entity ≠ not sure
if share same information ≠ put on notice

DISCOVERY (FRCP R26-56)

o CASES:
o Phoenix Drilling (supplement): D offers P a lot of $ for Ps business, causing P not to sell, D never had $ or
wanted to buy in the first place. 2 interoggs and 1 request for disc. What is unrsble?
o Kozlowski v. Sears, Roebuck & Co.: P claims D sold unrsbly dangerous pajamas, request to produce other
complaints about burning PJs to show if D knew of danger. D says inventory system not organized by
nature of complaint so too burdensome to go through. Crt says too bad, not our fault your inventory system
isn’t efficient.
o Davis v. Ross: P sues D for defamation, P seeks discovery of Ds net worth & income, billing info from Ds
lawyers, and names of other employees who complained against D. All denied. D seeks discovery of info
about Ps treatment by psychiatrist when P worked for D, granted b/c P sues for mental pain and anguish.
o Coca-Cola Bottling Co. v. Coca-Cola Co.: Contractual dispute over Diet Coke syrup price. P motions for
disc of cokes secret formula [to determine if same product as diet coke]. Granted b/c need for secret formula
> Ds need to protect it. Nothing sacred in civil litigation. P has incentive to keep recipe secret, protective
order to safeguard formula.
o
o Values of Discovery:
o Party driven, judge is involved minimally.
o Fact-gathering process shaped by what the pleading framed.
o Stage where parties prove the value of their cases
o Fact Discovery (anything that’s not expert discovery) vs. Expert Discovery
§ Discoverability vs. Admissibility
o Lowered pleading = broad and liberal discovery à integral to American litigation to “discover
truth”
o Since1970’s, some restraint on broad discovery, judge’s role to manage it (Linked to R26(b)(1)
scope of discovery “relevance”)
o Function of Discovery: Pleading was to inform parties of relevant issues, Discovery is to narrow and
clarify the disputes

o Federal Rule of Evidence 401-“relevant evidence” means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less
probably than it would be w/out the evidence. –used in Davis v. Ross

o Shift of Values from pre-E Discovery to Present:

o Pre-E-Discovery:
§ Hickman v. Taylor 1947: “mutual knowledge of all relevant facts are essential” to minimize
surprise at trial (no surprises)
§ Goals of Discovery: minimize surprise, promote settlement, avoid trials à cheaper for
litigation system
o E-Discovery onwards: Introduction of Technology Shifts

17
 §In Re Technologies: values where parties started “gaming” each other, expected to use
“common sense”
• Π demanded 1,000 contention interrogatories against ∆, obviously abusing process
b/c ∆ could not answer them at such an early point of the case; judge reprimanded
them
• Values of In Re Technologies:
o Burden (Proportionality): Burden must be in proportion to what’s
discoverable
§ Not only will request reasonable lead to relevant information, but tool is also
the most efficacious way of obtaining information (R26(b)(2)(C)(iii))
o Most effective tool/efficiency
o Timing (EX: Contention Rogs early in discovery is stupid)
o Common Sense (1983 Amendments): Use best judgment and not as tactical
tool to game other party
o Examples of Discovery Abuse
o Π abuse: (In Re Technologies) π abusing ∆ by asking 1,000 R33 contention rog questions at the
beginning of court (abusive with time and amount)
o ∆ abuse: (Phoenix Drilling) ∆ abusing π by not responding with anything relevant; π in good faith
tried to accommodate ∆ (agreed that certain rogs were too general, allowed ∆ to push back answer
date)

Rule 16: Pre-Trial Conference in context of discovery; requires R26(f) conference b/t parties to present
discovery plan to judge in R16 Pre-Trial Conference Meeting (so Judge can oversee and manage discovery)
o Function: Case Management Tool for judge. The more complex the case, the more R16 conferences will be
held. Before parties go crazy on each other in discovery, a judge can:
o Focus Discovery
o Sequence Discovery (to promote settlement or direct discovery)
o Control scope and burden by controlling time period allotted
§ EX: Allowing more time, might allow parties to use tools against each other vs. very little
time, parties will focus on utilizing their time properly
o Set presumptive limits on discovery tools
§ EX: Allow only a certain number of depositions or allow more rogs
o Tools Used by Judges: (General Proportionality Principle: in considering tools below, judges will use tools
below to prohibit unduly burdensome discovery against one party)
o Court decides relevancy by determining the scope (26)(b)(1)
§ Davis v. Ross
o “Protective Orders” (26)(c): either by Court or stipulation to limit what parties can / cannot discover
from other party
o If by stipulation, must have, in good faith, tried to work it out first
o Prohibit discovery deemed excessively burdensome
§ Proportionality
o Cost shifting to manage scope and burden
§ COUNTER: Disparity in wealth b/t 2 parties, lead to unfairness

Rule 26:
o Values: R26 is inherently linked to R12 and R56. What survives R12 will shape what’s discoverable, and
what’s discovered will shape R56.
o Depending on what survives R12 Pleading, initial disclosures will vary

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 o Internal Discovery Plans: Clients may want to gauge how much $$$ will be spent; whether they will
be willing to expend that much money à lawyering component
o R26(a)(1): Required Disclosures:
o Function: Automatic, required disclosures tied to R16. Under R16, parties meet and have R26(f)
conference to discuss discretionary discovery plans and disclose certain information automatically
o Values: Promote Efficiency à parties were going to disclose / request this information via
discovery anyways
§ Balance Test: Supplying too much (incriminate client) vs. supplying too little
§ Must disclose 14 days after R26(f) conference
§ Supportive / Positive Material Only; all harmful information must come out in discretionary
discovery
§ Incentive to turn over information now, which they may want to use at trial, or motion for
summary judgment
§ “Gaming” the system- super stingy or data-dump
o A Copy or List (a)(1)(A)(ii): Parties must provide copy / list of all documents, e-info, and tangible
things which disclosing party has possession, custody, or control
§ Influence Test: If party had control of these documents for document production (R34), then
it constitutes as under a party’s “control” even if not directly within their facilities
§ EX: You hire third party accountant, you still have control to request that information even if
you, as a party, do not physically have it.
o Disclosure of Expert Testimony (a)(2): Party must disclose to other parties identity of any witness
it may use at trial before the trial date
§ Expert Testimony: 90 days before trial (or, if just to contradict other party’s witness, w/in 30
days after they disclose info) expert witnesses for trial must provide report if specially
retained or specially employed OR if employee who regularly gives expert testimony.
• Other side CAN depose witness-whose opinions or testimony will be used at trial
• Other side CAN’T depose witness IF:
o Not a trial witness
o Retained or specially employed
o In anticipation of litigation or in preparation for trial
• Absent extraordinary circumstances
o
o Pretrial Disclosures (a)(3): In addition to initial and expert witness disclosures, parties must also
disclose the name, address, and telephone number of each witness; designation of those witnesses
whose testimony the party expects to present by deposition; and identification of each
document/exhibit before the trial date
§ Timing: Must be made at least 30 days before trial
- Discretionary Disclosures: discovery that’s not automatically disclosed, which parties must work for
o EX: documents, oral depositions, requests for admissions, etc.
o Formal Discovery: Commencement started in R26(f) conference
o Why not disclose everything in Required Initial Disclosures (R26(a)(1))?
§ Inconsistent with adversarial process
§ Inconsistent with client’s interests
§ Disputed issue may be only a tiny portion of relevant information, not lawyer’s best interest
to disclose all “relevant” material

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 Scope of Discovery
o CASES:
o Hickman
o Upjohn
o Shell Oil Refinery:
o Cine 42nd St Theater Corp v Allied Artists Pictures Corp-SEE BOOK
o
o (b)(1): General Scope of Discovery: What is proper scope of discovery? Court decides relevancy
o Test: R26(b)(1) “Anything Relevant to any party’s claim or defense…relevant information need not
be admissible evidence”
§ Hickman v. Taylor: Tugboat case, purpose of discovering is to narrow and clarify issues,
broad scope prevents surprise at trial
• Values: avoiding expensive trial, liberal discovery to have no secrets
§ Davis v. Ross: π was fired and sued for libel by ∆; π claimed ∆ made false claims to not hire
π b/c she sucked
• Judge used R26(b)(1) Scope argument for privacy (limited π’s discovery b/c too
extensive invaded Diana Ross’ privacy
§ Scope is linked to relevancy à Use scope to manage parties
o Implicit Proportionality / Value Judgment: Made by judge in deciding how broad the scope will
be
o Inadmissible Information: Can be admissible if it can reasonably lead to admissible evidence, but
must make argument to judge or he may deny your request
§ Davis v. Ross: π requested documents from ∆ w/o explaining relevancy for why it would be
essential to argument à denied; ∆ made proper argument and was allowed her discovery
o R26(b)(2)(A) Limitations In General: Allows courts to use their discretion to limit discovery or set
presumptive limits on depositions (R30) and interrogatories (R33), or length of depositions (R30), and
RFA’s (R36)
o R26(b)(2)(B) Limitations on ESI: Parties don’t need to provide ESI if à
o Unduly Burdened: ESI not reasonably accessible b/c of the undue burdened costs
§ Soft Spot: What’s undue burden?
• Kozlowski v. Sears: ∆ still had to produce documents even though bad organization
of files would lead to extensive discovery/work on their part, bad organization is not
an excuse for undue burden, ∆ also didn’t submit affidavit about the burden of
discovery
§ Counter: Court can still compel party to produce ESI if requesting party can show good cause
• Soft Spot: What’s good cause?
• Courts may make specific conditions for discovery (incl cost shifting to equalize
paying fee)
§ McPeek vs. Ashcroft: ESI was expensive, but court allowed for sampling to
see if there was good cause to reconstruct tapes
o Propounding Party shows relevance of information, Responding Party shows burden
o Values: Fairness and Proportionality (Burden vs. Costs)
o Counter to ESI Limitations: How do we know something is awesome until we see it?
§ Standard that requires judges to know value of discovery before they haven’t even seen
evidence
§ Judge’s discretion
o R26(b)(2)(C) Shifting ESI Costs:
o Zubulake 7 Factor Test codified in Advisory Notes
§ Request specifically tailored to discovery of relevant information?

20
 § Availability of information from other sources
§ Total cost of producing ESI (compared to controversy)
§ Total cost of producing ESI (compared to available resources)
§ Relative ability of each party to control costs + incentives to do so
§ Importance of issues at stake in litigation
§ Relative benefits to parties obtaining information
o R26(b)(2)(C)(iii) Proportionality: burden or expense of discover vs. benefits
§ Test for Proportionality:
• Should there be discovery at all? R26(b)(2)(C)
• Does the burden or expense of proposed discovery outweigh its likely benefit?
R26(b)(2)(C)
• In Re Technologies: Not sufficient to just say information is relevant, but must also
use common sense to discern the scope and determine that the tool used is the most
sufficient tool given time and use
o 26(b)(3)(A) Attorney Work Product Doctrine: Unlike attorney-client privilege, work product is qualified
but not absolute.
o Values: Limit other party’s accessibility to attorney work product b/c lawyers shouldn’t be turned
into witness, should do their own work, adversarial system, lawyers are professionals
§ Counter: Free and open discovery to surprise; obtaining truth is purpose of discovery
o Definition: Any materials prepared “in anticipation of litigation” (Hickman)
o Test: to obtain opposing counsel’s attorney work product. Must prove à
§ Essential R26(b)(3)(A)(i)
§ No Alternate non-privileged Source R26(b)(3)(A)(ii)
§ Trap: Must be within the scope of discovery R26(b)(3)(A)(i)
o How to make information privileged: (i.e. work-product or A/C privilege)
§ Function: Assert as defense to prevent materials from being disco.
§ R26(b)(5)(A) Information Withheld by:
• Expressly making the claim that information is privileged or subject to protection
R26(b)(5)(A)(i)
• Describe nature of documents, communications, etc. without revealing protected
information so opposing counsel can assess claim R26(b)(5)(A)(ii)
o R26(c) Protective Orders:
o Definition: Orders either stipulated or entered by Court prohibiting discovery on that information
§ Davis v. Ross when π/∆ entered into a private confidentiality; judge denied and used
protective order to prohibit discovery b/c it wasn’t deemed relevant (what π was asking for)
à linked to 26(b)(1) scope of relevancy
o R26(d)(1) Timing of discovery: Can’t start discover before R26(f) unless otherwise stipulated
o R26(d)(2) Sequencing of Discovery: Unless court directs a sequencing order themselves (based on values
of convenience and interests of justice), parties can:
o Sequence however they like R26(d)(2)(A)
o Discovery by one party doesn’t require any other party to delay its discovery R26(d)(2)(B)
o R26(e) Supplementation is required if you learn something different from prior disclosures, then you are
obligated to supplement
o Sanctions available for not supplementing
o R26(f) Conference:
o Function: Where parties formulate a plan for “Discretionary” discovery. Relationship b/t 26(f)
conference and 26(a) Initial Disclosure
o Conference will discuss:
§ 26(a) initial disclosures

21
 § 26(b)(1) scope
§ 26(d)(1) timing
§ 26(d)(2) sequence
§ 26(e) supplementation if required
§ 26(g) certification requirement
o R26(g)(1) Certification Requirement:
o Function: Analogous to 11(a) certification in pleading, attorneys must sign off on every request,
response, or objection stating that certification based on person’s knowledge, information, and belief
formed (i.e. performing disco in good faith)
o R26(g)(3) Sanctions for Improper Certification: Usually not used b/c you don’t have lawyers
signing without proper certification until there’s a motion to compel à which usually uses R37
Sanctions

Work Product Doctrine R26(b)(3)(A) Attorney/Client Privilege

(Hickman v. Taylor) (Upjohn)

1. Qualified Absolute
2. “Anticipation of Litigation” A/C privilege satisfied if:
1) Legal Advice is sought
2) From a professional legal advisor in his capacity
3) Communications relating to that purpose
4) Made in confidence
5) By the client
6) Are at his instance permanently protected
7) From disclosure by himself or by legal advisor
8) Except if protection is waived
3. Asserted by + for lawyer Held, it can be waived by client
4. Purpose: Lawyer ‘role’ in adversary system Purpose: Protect + Encourage open communication b/t
lawyer + client
5. Includes lawyer’s of communications w/ 3rd Only communications b/t lawyer and client
parties

o Attorney/Client Privilege for Corporations: Question of who falls under A/C

o Policy: Promote legality and adversarial system
o Counter: Free and open discovery to prevent surprise
o Purpose: Allows for open communication b/t lawyers & clients in order to facilitate:
§ Investigation and preparation of a good defense
§ Advise clients (especially corporations) on how to abide the law
o Test:
o Traditional:
§ “Control Group Test”: If the individuals have the ability to make controlling decisions (i.e.
high level employees, NOT low level employees), then they fall under A/C privilege
o Modern: See chart above / Values: Attorneys must speak both to high level and low level
employees to determine what’s best for the company

Discretionary Tools for Discovery

* Note: Documents/Evidence must be “authenticated” before being admitted as evidence
-Courts weigh relevance, privacy issues, necessity for case, etc. in compelling discovery.
Rule 30-Oral Depositions
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o Pro’s to Oral Depo: Instantaneous, must answer unless info is privileged, not only learn facts but info
about witnesses’ demeanor (read the witness); only device which allows for direct contact w/ witnesses
before trial; no geographic limit for depositions
o Cons to Oral Depo: Can be coached to shape testimony (“woodshedding”), expensive (but still less costly
than document production R34), witnesses’ attorney can sit and object (which is taken down in records).
o If it’s within A/C privilege, doesn’t need to answer question
o (a)(1) Without Leave: Meaning do not need Court’s permission for oral depo.
o Can combine R30 with R45 (Subpoenas) to serve oral deposition on 3rd party
o (a)(2) With Leave: You will need a court’s permission for oral depo if:
o Not Stipulated: Parties didn’t agree on it beforehand
o More Than 10: which is presumptive limit set
§ If party wants more than 10, must file motion for leave of presumptive hearing à usually
given freely unless abused
o Deponent already deposed
o Outside time limits: More than 7 hours/1 day
o (b) Notice of Deposition: Instructions on how to serve depo; what it should look like
o (b)(5) Officer’s Duties: Requires that an officer be present at depo, usually a court reporter.
§ Officer’s Duties include swearing in witnesses, people who are present
o LOOPHOLE (b)(6): Deposing a Corporation: To depose a corporation, corp will present an
individual who can “testify about information known or reasonably available to organization” à can
depose individual as specific individual again
§ Corporation = 1 deposition
§ Must be careful re: what questions are asked, party only has one chance to “bite at the apple”
(i.e. can’t ask same questions in corporate deposition vs. individual deposition)
o Rule 32(a) Using Depositions in Court: Allows for depositions to be used in Court when witnesses are
unable to testify
o When? If Witness is unavailable à R32(a)(4)(A-E)

Rule 33-Interrogatories
o Definition: questions you ask in writing; limited to 25 questions including sub-questions.
o Pros: Allow for a lot of facts and knowledge
o EX: How opposing party stores their records?
o Useful in trying to ID certain people and discovering locations of documents
o Cons: Opposing counsel is crafting answers that won’t give away much
o Hard to compile a narrative from crafted factual answers
o Can produce a box of documents and tell you to find it yourself (this is allowed b/c they would have
had to search through documents themselves) à ∆ can just tell you where the information is
o Interrogatories vs. Request for Admission (R36):
o Broader than 36(a) b/c it goes beyond what parties think support their claims; can be paired with
R36 RFA.
§ EX: Under R36 RFA, either affirm or deny; and support with R33 facts
o Strategy: Rogs can also be paired with document production (R34)
o Contention Interrogatories:
o Pros: Permissible and very power, done at tail-end of discovery, can ask questions requiring other
party to state what it believes it’s position of case is
§ May be used to predicate summary judgment on basis of non-evidence
§ In Re Technologies: π tried to abuse disco power by requesting contention interrogatories at
beginning of case

23
 o Cons: Lawyers can object to answering (33(b)(4)), but must be made with specificity and answer
parts of question that you do not object to
§ EX: Phoenix Drilling: ∆ made blanket denial and assertion of no knowledge, used boiler-
plate language response in every answer to π’s interrogatory requests

Rule 34-Document Request

o Little Tricks:
o No presumptive limit
o Pros: Records can’t be edited; Cons: Expensive and hard to sift through
o May be paired with subpoenas from non-parties (R45)
o Rolling Production: Party typically has 30 days to respond to document request; if party is unable
to, they can have a “rolling production” (party can “roll out” documents for several months)
§ EX: BCD
o Reasonable Particularity R34(b)(1)(A): When requesting, must describe each request with “reasonable
particularity” (meaning can’t be blanket demand for “relevant documents”)
o Preservation Doctrine: Once a party has been put on “notice”, they are required to preserve all relevant
documents including e-mails, cannot destroy them.
o Soft Issue: What is “notice”?
o Once opposing counsel has served, most evident that you’re on notice.
o Attack Plan for ESI:
o Rule 34(b)(2)(E) Producing Documents or ESI: How should it be organized? Can it be presented
reasonably?
o If no, then Rule 26(2)(B) Specific Limitations on ESI
§ Is there an undue burden? Determined by Zubulake factors as codified in advisory notes
§ Even if undue burden present, will court still allow for it under Rule 26(2)(C)(iii)?
• Proportionality: “the burden or expense of the proposed discovery outweighs its
likely benefit”
• Court may allow sampling instead
o (a)(1) Scope of Document Production
o In Control: Must product requested documents within party’s possession, custody, or control
§ Soft Issue: Control à not just limited to what’s in party’s filing cabinets, but could include
their vendors or anybody whom they have the ability to order to turn over relevant
documents
§ Same standard as “control” within Rule 26(b)(1) Scope of Discovery
o (b)(2) Responses and Objections to Disco Requests: Must be very specific
o Response R34(b)(2)(B): Must include either inspection and related activities permitted or an
objection and the reasons why
o Objections R34(b)(2)(C): Objection to part of request must specify the part and permit inspection
of the rest of request
o (b)(2)(E) Producing Documents or E-Discovery
o How to produce e-discovery documents?
§ Usual court or business; or,
§ Label them to correspond to categories in request
§ SPLIT: Some will allow ∆ to pick option, some will not if specified
o Kozlowski v. Sears: must produce documents, can’t just tell someone to “come to their filing
systems and just go at it”
§ ∆ still forced to product documents even though horrible system, encourage parties to
maintain better filing systems, bad record keeping shouldn’t exempt from producing
documents.

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 o Proportionality Analysis for costly e-discovery:
§ Rule 26(b)(2)(B) Test to determine whether discovery will be allowed
§ Ashcroft v. McPeek:
• Values:
o Fairness
o Proportionality Analysis: Burden/Costs vs. Benefits
o May allow to shift costs if that important
• Questions to ask / Test:
o Should discovery be allowed at all?
o And if so, who should bear the costs?

Rule 35-Physical and Mental Examinations:

o If phys or mental health is in controversy, can force them to submit to exam on that issue.
o Rarely used b/c if you wanted info re: previous health, can refer to their health records; if you wanted to see
if person mentally depressed, wouldn’t utilize mental examination (witness will just admit they’re
depressed) but ask neighbors, friends, family instead.
o Only tool that requires court approval
o Affirmative Showing Required: that condition is real and genuinely in controversy
o Counter: Balanced with not burdening witness or party with examinations
o EX: BCD à πs had to have medical examinations, had to take a day off and go to another town à
Judge allowed ∆ to provide stipends for medical examinations

Rule 36- Request for Admissions (RFAs)

o Extension of Pleading, but useful to take care of small factual matters
o No presumptive limit à usually served at end of the case
o Generally Married w/ Interrogatories R33: Please provide facts if you admit or deny
o Married w/ Document Production R34: Give us documents supporting your admittance or denial

Rule 45-Subpoenas: Court issued command for person to attend and testify, produce documents, or permit
inspection of premises at a specific time and place. Allows for discovery of non-parties.
o R45(c) Protection of third parties: Cannot unduly burden nonparties à Judges are more careful about
burdening non-parties

Rule 37: SANCTIONS! For Discovery:

o Function: 2 dimensions to R37
o How serious did party blow off rule (i.e. intentional or unintentional?)
o What type of requests are at issue?
o Relationships:
o 37(a) Motion to Compel and 37(b) Failure to comply
o 37(b) Failure to Comply (feared sanctions) and 37(d) Party’s failure to attend own depo, service
answers to ‘rogs, or respond to request for inspection
§ Failure to comply with attending own deposition, answering interrogatories, or responding
request for request 37(d) à you go STRAIGHT to harsh sanctions
o Purpose:
o Deterrence: Prevent present and future performances of not complying
o Fairness: Prevent the party not-complying from profiting
o (a): Motion to Compel: A party can request to court for motion to compel other party to disclose
information or discovery

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 o Good faith: Must have conferred in good faith first
o R37 (a)(5)(A) Motion To Compel Granted: Will allow opportunity to hear party out first, if
justified, may force non-movant party to pay for movant’s fee UNLESS:
§ Movant didn’t file motion to compel in good faith
§ Opposing party’s non-disclosure/response was substantially justified
§ Other circumstances making it “unjust”:
• How pissed off the judge is at you
• Judge thinks you might have been acting reasonably, but just happened to have not
complied
o Corporations don’t care about minor fee shifting, but in order to use heavier sanctions, must jump
through hoops first (i.e. motion to compel, granted, fees shifted first)
o (b)(2) Failure to Comply with Court Order: SERIOUS SANCTIONS
o Available if other party not complying even after court orders
o Gross negligence IS willfulness
§ Cine 42nd Street: π’s gross negligence was considered willful disregard for not complying to
motion to compel, led to harsh sanctions effectively negating case (wasn’t allowed to use a
certain type of damages) à R37(b)(2)(A)(ii)
o Sanctions Available: R37(b)(2)(A)(i-vii) à from least harsh to harshest
§ Take prevailing party’s claims as fact
§ Prohibiting disobedient party from supporting or opposing designated claims or defenses, or
from introducing new evidence
§ Striking pleadings in whole or in part
§ Staying further proceedings until order is obeyed
§ Dismissing the action or proceeding in whole or in part
§ Rendering default judgment against the disobedient party
§ Treating failure to obey as contempt of court except when failing to submit to physical or
mental examination
o (d) Failure to Attend Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for
Inspection
o R37(d)(3) Sanctions Available: If you do one of the actions stated above, you are automatically
sanctioned and may be subject to one of the punishments outlined above, EXCEPT for contempt of
the court
o R37(d)(2) Objection is not valid excuse for failing to comply
o R37(d)(1)(B): Certification à Movant must include certification that they tried in good faith to
work with disobedient party first
o (e) Failure to Provide ESI: Besides exceptional circumstances, court can’t use sanctions under R37 to
punish a party for failing to provide electronically store information that’s been lost b/c of good faith
operation of how ESI is usually stored
o (f) Failure to Participate in R26(f) Discovery Plan Conference: Party or attorney fails to participate in
good faith to submit a proposed discovery plan, then court can (after hearing the party out) require party or
attorney to pay the other party’s expenses including attorney’s fees

SUMMARY JUDGMENT
CASES:
**Adickes v. S.H. Kress & Co. pg 434: woman sues saying Kress had conspiracy w/police to arrest her b/c she
was hanging out w/black students. Ds mo for SJ on basis that Adickes had no proof granted but overturned by
SCOTUS because moving party (D) didn’t meet burden of showing no issue of material fact. Overturned by
Celotex

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**Celotex v. Catrett pg 440: woman sues celotex claiming her husb died from asbestos they mnfctrd. Celotex
files mo for SJ saying P had no evidence to support her claim (for which she had burd of proof.) She produces
depo of deceased & letters from deceased employer and insurance co. Celotex says inadmissible heresay, cant
use to oppose SJ. SCOTUS upholds. Show ≠ Prove
Matsushita: P must show “More than a scintilla of doubt,” burden of prod is a bit more than plausible
Arnstein v. Porter: P accuses musician D of copyright infringement, Crt of Appeals thinks evidence sufficient to
go to trial. “Slightest doubt.” Much more pro-trial than Matsushita, Scott, Anderson
Dyer v. MacDougall: P sues D for libel and slander, D denys, SJ granted. P appeals but wont depose witnesses,
SJ upheld. Must prevent irrational cases from going to trial, must have affirmative proof of your claim.
**Scott v. Harris: high speed chase, cop rams Ps car àquadripalegic. Did cop violate 4th am “excessive force?”
SCOTUS grants SJ. Dissent(Stevens)-issue of fact, was he driving carefully?
**Anderson: Libel case, SCOTUS says when party has higher burden of proof at trial, crt must consider higher
standard in deciding SJ.

o Screening Function: Similar to R12(b)(6) to weed out cases before trial; relationship b/t what was
discovered and summary judgment.
o Question Asked: Are there any real conflicts/disputes at issue?
o Policy: How much do we want to weed out/keep out of court?
o While Celotex has lowered bar for granting msj (meaning allows movant party to shift burden to
non-movant party more easily), judges are still hesitant to grant msj
o 1980’s Cases: Celotex, Matsushita, and Anderson seen together show how the bar for MSJ has been
progressively being lowered
§ Celotex: Opened up new pathway (56(c)(1)(B)) to shift burden
§ Matsushita: Abolished “slightest doubt” test à where judge would deny MSJ if he had the
slightest doubt that jury could find for π
• Effect: After Matsushita, even if judge had slightest doubt, could still grant msj.
§ Anderson: Correlation b/t π’s burden of persuasion at trial must correlate to ∆’s burden of
production at msj
• EX: In fraud case, π has higher burden of persuasion, must establish plausibility AND
strong inference à then ∆ in msj must also have same standard
• Anderson: B/c π’s burden of persuasion at court would be to prove NYT Malice, ∆
had higher burden too
§ Effect: B/c bar for msj has been lowered à becomes more acceptable to use msj as
discretionary tool to weed out weak cases
o Judge’s Concerns:
o If MSJ Granted à “Final Judgment” à Appealed à Potentially reversed in appeals, which judges
care about
o If MSJ Denied à No appeal, case continues
o Vocabulary:
o Burden of Persuasion (in Court): Which party has to provide evidence/proof à Usually the π
o Movant’s Burden of Production (in MSJ): The party who is trying to move for motion of summary
judgment and must provide either cite evidence that there’s no issue at dispute (Celotex) or provide
enough evidence that the jury could not find for non-moving party (Adickes) à Usually the ∆
o Non-Movant’s Burden of Production: Under 56(c), once movant party has produced evidence to
satisfy either the Adickes path or the Celotex path, non-moving party must do two things:
§ Existence of material fact: Show enough to demonstrate the existence of material fact (I,e.
non-moving party can meet its shifted burden of product) à MSJ denied
§ Shift Burden Back: Make a tremendous, overwhelming showing that no reasonable jury
cant find for the non-moving party

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 • Professor Ratner has never seen this happen

Rule 56: Summary Judgment

o Rule 56(a): What’s the standard for a genuine dispute of material fact?
o Function: Standard for MSJ; Court will grant MSJ if there’s no genuine dispute of material fact and
movant entitled to judgment as matter of law (same standard as R50)
o Attack Plan for Motion for Summary Judgment:
o Movant’s Burden of Production Met?
§ Adickes vs. Celotex route to show “there is no genuine dispute as to any material fact and
movant entitled to judgment as matter of law”?
• Standard of no genuine dispute: Rule 50 Judgment at Law
o 1) Judge’s Discretion to determine issue (Arnstein)
o 2) Reasonable Jury? Unreasonable if:
• Speculative inferences (Galloway)
• Inconsistent Evidence (Guenther)
o Shifted? Then can non-movant meet his Burden of Production?
§ Adickes route ONLY (cannot cite Celotex & say lack of evidence from movant party)
§ Must show there is evidence that there is an issue
• Standard of genuine dispute existing:
o 1) Judge’s Discretion (Arnstein)
o 2) Reasonable Jury?
o Test: Court will grant a Motion for Summary Judgment if:
§ (1) There is “no genuine dispute as to any material fact”? AND
• Was there a conflict?
o Arnstein v. Porter: π claimed ∆ stole music & had goons stalker π à judge
said while fantastic (i.e. almost absurd), jury could find for π à MSJ denied
o Soft issue: judge’s discretion whether reasonable jury will find a dispute, it’s
their call so could lead to some dispute (Arnstein v. Porter, Scott v. Harris)
§ (2) Movant is “entitled to judgment as matter of law” (Same standard as Rule 50, please see
Judgment as Matter of Law)
• Even if theoretically possible for jury to find for π, if practically, evidence is so
weak, judges can draw the line & say w/o more admissible evidence, they will grant
msj (Dyer v. MacDougall)
• Judges cannot “weigh the evidence”, but they can make a credible assessment and
weigh the evidence enough to see if jury could reasonably find for non-movant party
(Scott v. Harris, car chase)
o 56(b) When Party may file MSJ: Anytime unless (1) directed by local rules; and (2) 30 days after the
close of all discovery
o 56(c): What’s the moving party’s initial burden to shift burden to non-moving party?
o Two Paths:
o (c)(1)(A): <Adickes>: cite to materials in the record to affirmatively disprove or negate issues as to
which non-moving party has burden of persuasion; close all gaps so non-moving party (π) can’t
possibly win for any reason
§ EX: π claims ∆ committed robbery, ∆ has alibi that he was elsewhere so no possibility that π
committed crime
§ Policy: Weed out weak cases, when Adickes first used, courts weren’t sure how to use MSJ
as discretionary tool

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 § Mitchell: if π is moving for summary judgment (and π also has burden of persuasion at court
too), then π may ONLY use Adickes route, cannot use Celotex route
§ If the ∆ would have burden of persuasion in court (i.e. affirmative defense), then when π
moves for summary judgment, π may use Adickes or Celotex route
§ If Moving party shifts burden of product through Adickes path, non-moving party can’t shift
back using Celotex route
• i.e. if ∆ has affirmatively provided material showing jury can’t reasonably find for π;
π can’t shift burden of production back by citing that ∆ has lack of evidence.
o (c)(1)(B): <Celotex>: Movant cites to materials to show absence of proof, not closing all the
gaps/holes of non-movant party’s argument, saying there is no case b/c non-moving party has no
evidence
§ EX: Celotex: Girl couldn’t identify which manufacturer provided the asbestos that killed
husband
§ SPLIT on how to show absence of proof (4-1-4 decision)
• Rehnquist Maj à Citing insufficient evidence is enough
• Brennan Min à Need to take affirmative action (i.e. conducting own depositions on
π’s witnesses to show lack of proof)
§ Effects: Seen as liberalizing R56 msj à Court’s shift towards screening out relatively weak
cases at trial
o (c)(2) Inadmissible Information: is allowed if party can convert to admissible evidence
o Strategy: Practically, (c)(1)(A) and (c)(1)(B) is usually filed together (i.e. show how π has lacking evidence
AND how ∆ has enough evidence that jury couldn’t plausibly find for π)
o (d) Facts Unavailable to Non-movant: Used to cite if you think motion is premature; allows judge to
either (1) defer consideration of motion; (2) allow time to obtain more information; or (3) issue any other
appropriate order à Basically, use if you reasonably need more time / haven’t had proper time to do
discovery
o (e) Court’s Options in deciding MSJ: when non-moving party has failed to properly support or address a
fact:
o Give Opportunity to provide proper facts/support
o Consider fact undisputed for purposes of motion
o Grant Summary Judgment
o Issue any other order appropriate
o (f) Judgment Independent of Motion:
o Function: gives trial courts discretion as device
o Court May:
§ Grant summary judgment for nonmovant
§ Grant msj sua sponte à May be used to limit trials
§ Grant summary judgment on grounds not raised by parties

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 TRIAL
CASES:
Dairy Queen: Procedural innovation! DQ sues franchisee for breach of contract (didn’t pay for TM) wants
• Injunction(equitable remedy)-franchisee stop using TM
• Injunction(equitable remedy)-franchisee stop collecting $ from TM
• Legal remedy-DQ get $$ it hasn’t been paid.
**Beacon Theaters: Procedural innovation! Fox files for equitable relief, BT counter-claims for legal relief. Crt
decides equitable issues first, then jury for legal remedies. Crt of app says have to consider claim as a whole.
Overturned by SCOTUS, cant take away BTs right to jury trial because fox’s issues are equity.

-Phases of Trial:
• jury selection-get fair and rsble pple, random group “voir et dire” can strike based on cause
• opening arguments-give jury tour of whats coming
• presentation of evidence-party w/burden of proof goes 1st
• closing arguments-make argument why should win, why they have or other side hasn’t met B of P
• instructions-what needs to be established legally
• JML?-parties can move for JML, like sum judge but in regards to evidence presented at trial

o Function: To see the relationship between the judge and the jury; and the tools used by the judge to control
the jury
o Four Ways for Judge to control Jury:
§ R49 Verdict Forms (General vs. Specific)
§ R59 New Trial
§ R50 Judgment as Matter of Law
§ R51 Jury Instructions
o Attack Plan to determine whether party entitled to jury trial:
o Did party waive right to jury trial by not demanding it? (R38(b))
o If no, is party entitled under 7th Amendment? (CL vs. Equity)
§ Teamster test: (1) nature of claim (2) remedy
§ Is it a mixed case, or even incidental damages à if yes, probably jury trial
7th Amendment: 2 Parts
-7th Am only applies to Federal Court, many states don’t have civil jury trial. In fed crt, jury must be
unanimous
o (PART I) “In suits at common law…right of trial by jury should be preserved” (aka Right to Jury
Trial)
§ Common Law vs. Equity: Jury trials allowed for cases in common law but not equity law
• Equity filled in the holes of the rigid CL system
• As technology developed, new claims that didn’t exist in 1791, hard to categorize
§ American merged CL/Equity courts à issue of whether courts are depriving of 7th
amendment rights when case involves both equity and CL aspects
• Due to liberal joinder rules, mixed claims constantly lumped
§ Party Entitled to Jury Trial? Used when claim is mixed (Teamster):
• (1) Nature of the Claim
o Did this claim exist in 1791 when 7th Amendment was drafted?
o Beacon Theater: π’s claim (equitable claim) and ∆’s counter-claim (legal
claim) is one issue; cannot treat overall issue as equitable just b/c π filed
injunctive relief first à still legal claim SPLIT
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 • Narrow Reading: Was it done it bad faith only? If so, bifurcation may be
allowed
• Broad Reading: View as a whole issue, any semblance of damages/legal
issues à jury trial
o Teamster: While claim sounded equitable (seeking injunctive relief), if
remedy is legal à still determine as legal
• Underlying Intent: π was evading jury trial by filing injunctive relief to
prevent lawsuit first, Court may have been motivated to find reason to
allow jury trial for π.
o Dairy Queen: Even if legal remedy is incidental, still allowed a jury under 7th
amendment
• (2) Remedy of the claim (given A LOT more weight)
o Role of Remedy in the test (Teamster; SCOTUS): HUGE SPLIT
• Maj View: Both parts of test still relevant b/c 7th Amendment requires it
• Min View incl Brennan & Stewart concurring: Abolish the historical
portion b/c 9 justices couldn’t adequately decide whether claim was
equity or legal; waste of everyone’s time
o (PART II) “No fact tried by jury, shall be otherwise re-examined in any Court…” (aka re-
examination clause)
§ Historical Implications: England didn’t trust American juries, so took away jury trials
Views on Juries: Trusting juries allow for a lot of jury discretion (liberal view) v. distrusting average people
(conservative). -originalism v. living constitution-people are obsessed w/constitutional right to jury trial, but
juries make mistakes
o Pros to Jury Trial: Determining justice by average common sense, puts into laymen terms to make
intelligible, preserves dignity of the bench b/c verdicts isn’t binding precedent, it doesn’t affect what the
judge thinks
o Cons to Jury Trial: Delays caused by use of jury trials, jury incompetence, juror prejudice

Rule 38- Right to Jury Trial; Demand

o (a) Absolute Right to Jury Trial either by: (1) 7th Amend or (2) Statute (even if you wouldn’t have been
allowed that right under 7th Amend)
o (b) Jury Trial must be demanded:
o Party can demand a jury trial by:
§ Serving other party w/ written demand (i.e. could be in pleading) no later than 14 days after
the last pleading
§ As outlined in R5(d) à Instructions on how to file
o Specific Issues could be subject to jury trial
o Demand for all issues could also be subject to jury trial
o No Agreement needed, as long as one party demands it
o (d): Waiver: If you don’t properly demand jury trial à then you waive it
o TRAP: In determining whether party proper to have jury trial, one must see if party waived it first by
now properly demanding a jury trial first
§ If Waived, then even if party allowed jury trial, no need to determine whether party was
entitled to one.
o GenR: π will want jury trial (more sympathetic to their cause). ∆ will want a bench trial

Rule 42- Consolidation and Separation of Trials

o (a) Consolidation: Please also see Complex Joinders Sec.
o Definition: à Squish together cases to aggregate cases

31
 § Different from R23 Class Action b/c in order to consolidate:
• Cases had to all have been filed
• In the Same District <Intra-District>
o (b) Separate Trials
o Function: Sequencing Tool for judge to divide up a case for:
§ Convenience, Economize, Fairness (FRCP Rule 1) à Case Management Tool
§ Examples of Application:
• Could be used on weak cases, try liability first, don’t need to address damages
• Could also be sub-issue, not essential to the rest of the litigation, to try this separately
using 42(b)
• Judge can bifurcate the case, allow for same jury on separate issues
• Beacon Theater: Fox (π) wanted exclusive rights, Beacon (∆) threatened Fox
Theaters; π sued ∆ for injunctive relief from being sued
o Judge tried to bifurcate case to try π’s claim first (injunctive portion) à then
try ∆’s counter-claim second
o Sequencing not allowed b/c it violated the 7th amendment by not allowing a
jury trial
o Pros: Rooted in 7th Amendment
o Cons: Who cares? Dissent Opinion by Justice Stewart, doesn’t matter if it’s a
judge or jury, court shouldn’t be so committed to jury trials, it’s more
important to see who is right and who is wrong
• Malcolm: Asbestos litigation, tried damages portion first (to encourage settlement),
and then tried the other portions of case after deciding who was entitled to damages.
o Rule 48-pg 144-Number of Jurors; Verdict; Polling
o must be between 6 and 12 jurors
o verdict must be unanimous
o after verdict, before jury is discharged, crt may poll jurors individually. If poll reveals lack of
unanimity, crt can order further deliberation or new trial

Judicial Control of the Verdict

CASES:
Galloway-JML Ok, no 7th am right to jury trial in action against govt.
Slocum-Motion pre-verdict rule 50
Redman
Gunther
Ahern v. Scholz
Whitlock v. Jackson-See book

Rule 49 (Verdict Forms): 3 types of verdict forms

o (a) Special Verdicts: Jury must answer specific questions
o (1) Is it a factual Question? (2) Did the jury get it wrong? (i.e. internally inconsistent) à If yes, then
two options:
§ (i) New Trial; or (ii) Non-liability found
o Allows judge more control than general verdicts (49(b))
o (b) General Verdict- commonly used, either for π or for ∆. Once decided, gives document titled
“judgment” to judge (final judgment R54a), once judgment entered by judge, clock starts for appeal process
o (b)(3): Answers Inconsistent w/ Verdict:

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 o Judge’s options:
§ (1) New Trial; (2) Find non-liability for ∆; (3) Send back to jury to correct until they get that
shit right!
-(b)(4): Answers Inconsistent w/ EACH OTHER:
o Judge MUST send jury back to correct

Inconsistency Standard-crt needs to try to see jury’s answers to interrogatories as consistent, even if its hard to
make sense of it. Must try as hard as possible to try to see what jury did as making sense.

Lawyering Strategy: π would want general verdict; ∆ would generally want specially verdict à Usually, party
who wants the most specific form would win b/c courts want to choose and err on side of specificity
- Rule 51: (Jury Instructions): Judge tells jury which facts are at issue, what jury needs to decide, what is the
standard they have to decide, instructions to help a jury determine / explain the substantive law issues.
AFTER close of evidence a party can file for instructions on issues that couldn’t have been
anticipated earlier
o can file untimely requests with court’s permission

Rule 59: New Trial to Alter or Amend a Judgment

o Function: Another tool used for judge to control the jury (in addition to judgment in law, jury verdict, and
jury instructions)
o (a)(1) Grounds for New Trial if: “it’s against the weight of evidence, the verdict is clearly erroneous or a
mistake of justice”
o Softer standard than R50 b/c it’s a do-over, doesn’t deprive parties of jury trial, judge’s decision is
not substituting jury.
o Outlier: Judge has weighed evidence (unlike R50), decide that even if jury could find for one side,
weight of evidence is that this jury is an outlier
o Test for New Trial (Raedel):
§ Error of law
§ Clearly erroneous factual finding
§ Not a permissible decision
• Meaning jury’s decision was outlier compared to other verdicts
o New Trial ≠ Final Judgment: If judge grants new trial, “un-appealable” b/c there’s no “final judgment”
o Technically, judge could issue new trial over and over again if second trial has same outcome as first; but
practically speaking, second verdict sticks regardless of outcome

JUDGMENT AS A MATTER OF LAW

o Function: If party believes opposing counsel has weak case mid-trial, file for R50 in middle case, you can
also file R50 together with R59 for new trial
o Questions to Ask: When judge uses R50 (judgment as matter of law) and R59 (New Trial) + other tools to
control the jury à Does it conflicts with 7th Amendment right to jury?

Rule 50(a): Judgment as Matter of Law

• 50(c)-if crt grants renewed JMP, judge must ALSO rule on new trial or not [b/c if on appeal JML
deemed inappropriate, then whether or not new trial has already been ruled]

33
o Inferences in favor of non-moving party, judge doesn’t weigh inferences except to see if judge could find
for non-moving party
o Counter: Judges aren’t suppose to weigh evidence, but in order to determine judgment as matter of
law; judges must look at the record to weigh discovery and see if reasonable jury could find à
THEN give to jury
o TRAP: even though R50 & R56 have same standard, R56 msj may be denied, but R50 judgment as matter
of law granted b/c evidence & witnesses get torn apart at trial
o Policy: Not a violation of 7th amendment when determining judgment as matter of law (+ motion for
summary judgment) b/c even in 1791, there were tools to knock out cases if claims lacked sufficient
evidence à so not unreasonable to use tools now
o Underlying Value: Evidence should meet a certain / sufficient threshold before being presented to
the jury
o Standard/Test: A judge has discretion to determine whether a “reasonable jury” would find that a party
does NOT have legally sufficient evidentiary basis to find for the party on that issue:
o Arnstein v. Porter: Judge has discretion (by slightly weighing the evidence) to decide if there is a
“general dispute to matter of fact”
§ Arnstein: In case, judge felt that π’s argument that ∆ (Cole Porter) had hired goons to stalk π
to steal his songs were ludicrous, but weighed evidence (music did sound a like) to determine
that jury could find for π to determine that there is a general dispute over matter of facts.
o In determining what’s reasonable vs. what’s unreasonable, the judge may consider:
§ (1) Insufficient Evidence (Galloway v. US)
• Disbelief
• Adverse Inference
• Reasonable Inferences: Court allows jury to make Reasonable Inference but NOT
speculative inference
o Houchens: π requires that jury infer that (1) husband died in Thailand; and (2)
death was accidental based on husband going to trip in Thailand and never
coming back à speculative
o No test for reasonable inference, can only analogize to Galloway & make
argument
• Galloway: π had weak testimony, witnesses were contradictory and not
sure, his doctor’s testimony missing 5-year gap
§ (2) Internally Inconsistent Evidence (Guenther v. Armstrong Rubber)
• When evidence is inconsistent with testimony, judge can:
o Common Sense: π could’ve been disoriented from explosion & improperly
remembered tire
o Probability Evidence: SPLIT
• Some allow to use probability of evidence (75% chance π used those
tires, than likely he used them)
• Some do not allow for probability evidence (Guenther)
• Guenther: π testified that type A tires caused explosion to blow him back and injure
him, but evidence shows that it was a type B tires that caused explosion

34
 Post-Judgment Remedies
- CASES:
- **Dimick v. Scheidt: Crt says remittitur OK but additur is impermissible reassemssment of jury’s verdict
(violates 7th amendment)
- Sopp v. Smith: Car accident case, juror goes to scene and investigates. NOT OK
§ Mansfield-Can’t impeach
§ Iowa-objectively provable, extrinsic evidence, OK to impeach
§ Fed-Extraneous prejudicial info (improperly brought to jurors attn), OK to impeach
- Hutchinson: Baliff harassing jurors, rushing them so jurors say it forced them to improperly come to
conclusion.
§ Mansfield-can’t impeach
§ Iowa-Affadavit that he was harassing them, so extrinsic evidence, OK to impeach
§ Fed-improper outside influence
-
- Function: Remedy is not always the endgame, other reasons for litigation incl. changing the law, moral rx,
π’s need to be heart. But litigation is expensive and in American adversarial system, each side bears own
costs.
§ What you plead affects remedies you’re entitled to
- Policy Choices: affects relief and damages (injunctive vs. monetary) à Carey v. Piphus
- Values of Damages: To make someone whole, place π back into rightful place; causal link needed
(compensatory damages); to punish the violating party if they intentionally committed the acts (punitive
damages)
§ Nominal Damages: small damages. When awarded nominal damages, still required to pay atty’s
fees; “symbolic” damages. Often given in violation of statutory cases but hard to prove injuries
• Carey v. Piphus: π argued that violation of due process was an injury, court said technically
but not really à awarded $1
§ Equity Remedies: When money isn’t enough to protect rights, ∆ is ordered to cease certain actions,
used only when π faced w/“irreparable” harm & money damages won’t suffice
- Injunctive Relief (R65): Allowed when irreparable harm will occur
§ Smith v. Western Electric: Must prove causationà Making an injunction should be as specific as
making an allegation for pleading
§ Criteria for permanent injunctions: Courts usually hesitant to issue permanent injunctions
• Π succeed on the merits/did he win?
• Π has adequate remedy at law
• Π risks imminent irreparable harm**
• Balance of hardships of people being subjected to vs. issuance of injunction
• Will injunction serve public interest?
• Can court practically administer injunction?
§ Enforcing Injunctions: Punishment for non-compliance
• Criminal Contempt: Violation of injunction is a crime (similar to punitive damages)
• Compensatory Civil Contempt: Pay monetary compensation for harm
o Counter: Injunction only when damages are unavailable
• Coercive Civil Contempt: Penalty to enforce future compliance
o EX: a fine of $150K/day until they turn over certain judgments)
- Attorney’s Fees:
§ Venegas v. Mitchell: If contingency fee greater than Lodestar amount, they do not conflict with each
other; if π established contingency-fee and court uses Lodestar formula, π still obligated to pay
contingency-fee (minus Lodestar amount)

35
 • Contingency-Fee
• Lodestar Formula: (Hours of work) x (average charge of lawyer rate) + (sometimes awards
more if lawyer did “good work” and won the case)
- American v. British Systems:
§ Americansà no fee-shifting for winning party to losing party (promotes settlement)
§ England à allows fee-shifting for winning party (less incentive for parties to settle b/c they want
their fees shifted)
- R54(d): Fee-shifting statutes awards costs to prevailing party, but these do not incl. attorney’s fees,
experts, non-testifying experts, cost of discovery

REMITTITUR AND ADDITUR

Remittitur-Judge thinks jury awarded too much $$ à P needs to either accept lower amount or submit to
new trial
Additur-Judge thinks jury has awarded too little $$ à D needs to agree to pay more or submit to a new trial

JUROR IMPEACHMENT OF THE VERDICT

Why discouraged? Don’t want juror to have to be cross-examined after verdict.
• Mansfield Rule: Just can’t do it-juror can’t testify against his own verdict.
• Iowa Rule: CA Adopts-distinction between extrinsic & intrinsic evidence
o Extrinsic evidence-facts, things that can be proven à OK to impeach on
o Intrinsic evidence-juror’s thought process à CAN’T impeach on
• Federal Rule 606(b): Juror can testify about
o Extraneous prejudicial info
o Improper outside influence
o Mistakes made on verdict form

APPEAL
CASES:
Bowles v. Russell: man wants to appeal murder conviction, Crt gives him wrong deadline, he files too late,
Appellat Crt has no jdx over hearing the case b/c time limits are jurisdictional and thus not waivable
• Dissent: this is crazy, crt shouldn’t treat pple this way, should make equitable exceptions to statute
**Quackenbush v. Allstate: Respondant removes action to fed crt on diversity, Fed remands to state crt,
abstains from resolving dispute. SCOTUS says treat it as final decision b/c even though its in interlocutory
phase re state crt, it terminates fed crt proceedings.
Cohen derivative lawsuit???
Mohawk Industries, Inc. v. Carpentor???????

Appeals “As of Right”:

o Rule 54-Judgment, Costs: a judgment includes a decree and any order from which an appeal lies
o 28 U.S.C § 1254-Court of Appeals; Certiorari; Certified Questions-Crt of Appeals can be reviewed
by SCOTUS by writ of certiorari or certified Qs
o 28 U.S.C § 1257-State Courts; Certiorari-judgments from highest court of a state can be reviewed by
SCOTUS if case has a constitutional issue

o 28 U.S.C. § 1291 (Levine Rulebook Pg 228):

§ Definition of Final Judgment Rule: Appellate Court may review appeals once there is a final
decision in district court
36
 § Function: prevents piecemeal appellate review (inefficiency, fairness, legitimacy)
o Exceptions to Final Judgment Appeals:
§ Quockenbush-“Pragmatic Construction”
• Definition: If decision is final in federal court (sent back to State Court), consider
that “final decision” eligible for appeal.
§ “Collateral Order” Exception – Coehn / Will
• Definition: Final order on a matter/issue, but the case isn’t final yet, will be allowed
for appeal if:
o Separable (no relationship to core issue of case)
• Coehn: Bond Requirement is collateral from rest of case
o Unreviewable: Issue becomes unreviewable if wait until case finishes
o Final on that matter
o Important: Question deemed worthy of appellate court’s time; interests must
go beyond the case itself
• Will v. Hallock: Officers wanted gov’t immunity, not that important and
didn’t go past the parties themselves
• Picky Courts: Courts will err on side being particular / choosy b/c of court’s
resources. Trying to accomplish three types of efficiency:
o Costs on Parties
o Incentive for parties to try to work it out in real world
o Judicial Economy
§ FRCP 54(b) Final Judgment to subset of parties/claims
• Curtiss-Wright: (CB pg 1063) π was suing ∆ for $200+ million dollars for breach of
K; additionally, π suing for $19 million for debts already owed à subset to the claim
o Order must be final subset of claims
o Sufficiently separable from rest of the case to avoid piecemeal litigation
§ 28 USC § 1292(a)(1) Levine Rulebook pg 229: Injunctions
• Injunctions, generally, are not final, but allow for automatic right to appeal b/c if
injunction is denied, can’t make it up
o By definition, injunctions are non-final
• Policy: Allows for injunctions too b/c not too many cases seek injunction, wouldn’t
flood docket
o Appeals using a Discretionary Path (Main ones, but not the only ones)
o Judge has a Question à 28 U.S.C. § 1292(b)
§ Function: Used when trial judge uncertain about legal issue, sends to appellate court for
clarification-efficiency reasons.
• Waste of time if trial judge isn’t sure of legal issues, make decision, completes case,
only for it to be reversed b/c judge was wrong
§ Test: Appellate Court will allow if:
• “Controlling question of law”
o Means important legal question for the case at hand
• “Substantial ground for difference of opinion”
o Means no clear idea of what the law is, unsettled
§ Appellate Judge’s Discretion: Appellate Court will decide whether or not to accept or deny
trial court judge’s request
o Writ of Mandamus: Sue the Judge! à 28 U.S.C. § 1651: “All Writs Act” – enables party to sue
judge
§ Test: Judge must be:
• Wrong
37
 • Willfully usurped or abused power
• Will v. US: Can’t just be unhappy with decision, writ was denied b/c π wasn’t able to
show a history of abuse either in current case or prior cases
o Standard of Appeal for Cases in Appellate Court Review:
o GenR, appellate court accords more deference to trial court judgment when:
§ Judgment of Facts / Character Witness
§ Standard of Review for Witness Testimony à almost entirely deferred to trial court judge
unless clearly erroneous
• Abuse of Discretion evidence
o GenR, less deference is given for questions of law à appellate court judges likely to substitute own
judgment b/c they didn’t need to be present at case to make decision
o De Novo (Review from scratch), least kind of deference à blank slate
o Bose v Consumer Union: Issue of mixed facts and legal issue
o “Constitutionalized” issue of mens reas (intent) over malice of the written report
o Initially factual question of character witness from trial court, SCOTUS turned to mix fact/legal
question (NY TIME malice and 1st amendment)
o Standard of Review changes from case-to-case; and even within a case
- Values: Final judgment is important to allow parties to have peace of mind, strict application of appeals b/c if
not, parties will keep appealing and those with asymmetric resources (more money) will keep appealing,
prevention of piece of mealing.

SETTLEMENT
CASES:
Heilman Brewing-suing oats corp. Judge orders a corporate officer w/authority to settle to a pre-trial
conference. They only send a lawyer, so judge sanctions Oats. 7th circuit says crt has INHERENT
AUTHORITY to force parties to come with authority to settle. Sanctions w/in crts authority, esp since here such
a high $$ case so it would be long and take up lots of crt resources, imp. to settle.
• Dissent- no reason to prefer an executive over an attorney, maybe attorney has authority to settle?
Courts undervalue importance of executive’s time.
Facebook (supp): Winklevosses sue Zuckerberg for stealing their idea (in Mass). Zuckerberg counter-sues
ConnectU and Winklevosses in CA. Case is resolved through mediation
Facebook gets ownership of ConnectU in exchange for Winklevosses getting a share of Facebook.
Winklevosses sue Zuckerberg again, saying that they were mislead to believe that facebook stock was worth
many times more than it actually is.
• Winklevoss Appeal Arguments
o Settlement agreement is void b/c it doesn’t include material terms, not a valid contract
because its too indefinite
§ 9th circuit says it is enforceable, under CA law an agreement is enforceable even if it
doesn’t specify all its terms because in CA can delegate some terms to parties as long
as theyre executed in good faith
o Settlement was procured by fraud-deception regarding value of fb stock
§ Crt talks about settlement agreement being adversarial, they should have done their
homework. Very unsympathetic to the fact that they didn’t know what they were
doing when they made the agreement. Have a general policy favoring settlement.
Cant include evidence from confidential mediation to prove fraud

38
NFL Case- Long term brain injury to players, class action suit, crt orders mediation. Will soon be a hearing so
all non class members can object if they don’t want it to go into affect. Basic terms of the settlement
• Compensation fund for athletes-families can make claims for deceased players
• $75 mill baseline assessment program-everyone gets medical exams. If they have diagnoses that
qualify, get some compensation fund $$
• $10 mill education
• attorney fees up to $112.5 mill

o Function: Where and when settlement occurs on timeline affects payout, think about settlement at
beginning of case, not after.
o Factors Include: knowledge of FRCP, knowledge of substantive law, knowledge of your client (what they
want), knowledge of other side’s client, and knowledge of opposing counsel.
o Values: Settlement promotes efficiency
o Advantages of Settlement: less costly to court system, predictability and avoids variable trial outcome,
public relations, business relations, different kind of remedy (you can contract differently and contract
anything you want)
• EX: NFL Case
o Players need $$ NOW
o Its good that actual injured parties can have a say in controlling the settlement
o Might have difficult time proving causation, very hard to prove, long trial
o NFL doesn’t want to admit how early they knew the extent of the dangers of playing football,
this way they don’t have to.
§
o Disadvantages of Settlement: tort is compensation/deterrence, settlement takes it away if ∆ knows they can
pay people off
o EX: NFL Case
§ The things that would come to light with trial will be kept underground, no discovery, no
admission of guilt
• Broader societal concern that this case could have been a good way to discover what real
consequences of these brain injuries are
• Future players won’t be able to sue the NFL many years later

o Asymmetric resources leads to quick settlements à unjust since poorer party may settle quicker
§ EX: BCD, some who didn’t join suit b/c they needed the money right away, π’s had trouble
since case took 2 years to settle and π’s didn’t see money for a long time when houses/family
destroyed
o Class Actions (R23), corporations argue they’re being over-deterred
o Common Law is based on trial judgments, settling deprives courts their law-making function
o Case Value: The case value determines the worth and at which point to settle
o Calculations: (Damage Awards) x (Probability of Winning)
o Case value changes depending on which point of spectrum
o Features of Settlement: A settlement is a contract containing the following:
o Agreement to dismiss claim (end litigation)
o Release claims forever (dismissal with prejudice)
o Relief to be provided (incl cash, injunctive relief, etc.)
o Timeline à by Date X
o Rule 68: Offer of Judgment
o Function: To get parties to think about and encourage settlement before trial à therefore, only applicable
before trial
39
o (a) Making Offer of Settlement: ∆ can make settlement offer at least 14 days before trial via “R68 offer
letter”
o Fees / Costs covered include U.S.C. 28 § 1920 (Levine Rulebook Pg 268)
§ Fees of clerk and marshal
§ Fees for printed or electronically recorded transcripts
§ Fees & disbursements for printing & witnesses
§ Fees / Costs of making copies of materials
§ Docket fees under § 1923
o Usually for smaller cases, larger cases don’t care about small fees, keep them out of trial if relatively
reasonable
o Carrot for ∆ à If they make an offer before trial and jury decision awards less than settlement, then
fees can be shifted
o Stick for π à Don’t accept now, unpredictable jury trial could lead to smaller offer, means you’re
stuck with smaller award and fee-costs
o Policy: more likely to go for settlement in one shot cases; more substantial impact on smaller cases
b/c costs listed in § 1920 don’t amount to that much
o U.S.C. § 1983 (Marek v. Chesny): Used § 1983 + R68 together
o Marek v. Chesny: Court held that settlement offer can include attorney’s fees
§ π’s lawyer is forced into adversarial position of allocating own funds from settlement offer
§ Reason they included fees and costs in case was b/c it’s a special case
o Both R68 + § 1983 (civil litigation suits to promote fair litigation) play on the financial incentives
of lawyers and risk aversions à two conflicting views that lawyer must balance
o Judge’s Active Role in Settlement:
o Heileman v. Joseph Oat: Judge controlling discovery to promote settlement, required president of ∆
company to show up, lawyer (who’s a valid agent) wasn’t acceptable b/c lawyer didn’t have power
to settle
§ Lawyer doesn’t have power and also no incentive to settle; even if president had decided not
to settle, he could have changed mind during pre-trial conference à Judge wanted the
possibility of settling still on table
o Under R16(c)(1), judge allowed to require a principal representative of co. to show up at Pre-Trial
Conference
§ Values:
• Conserving Judicial Resources
• Understanding Dynamics of Settlement
o Limitations on Judge’s Role of Settlement:
o Court can’t force settlement, just encourage settlement
o Court force parties to act unreasonably
§ Heileman: depending on value of case, could be unreasonable for CEO to fly out for a day;
however, since in this case, trial was for $4million, reasonable to force CEO to take day off
to fly from NY to WI
o Courts REALLY WANT SETTLEMENT: Courts will bend over backward to protect settlements
o Facebook: Settlement will probably be binding à meaning you better be damn careful when
drafting settlement agreement, don’t whine like babies about the settlement afterwards, cause that
will piss off your judge

40
 PRECLUSION
CASES:
Manego v. Orleans Board of Trade: Man wants to open a disco, so goes to the board of trade. BUT theres a
skating rink nearby that is owned by a bank, person managing skating rink opposes licenses that man needs to
open disco.
• Lawsuit #1- P claims Bank and manager conspired to deny him his license based on his race. SJ for
Ds. 1st circuit affirms-insufficient evidence of a racial motive
• Lawsuit #2-P claims bank, manager, and BOARD OF TRADE in antitrust conspiracy. SJ for Ds on
basis of claim preclusion-res judicata bars relitigation. Why is it same claim?
o (1) Same parties
o (2) different legal theories but use transactional test to decide if it’s the same claim
§ Is this the same transaction or series of connected transactions?
ú Yes each claim had the same purpose
o (3) Resolution of prior case on merits
• Ps argues he’s bringing up different facts-crt says you could have figured out these new facts if you
had done adequate discovery in the first case
Martino v. McDonald’s System pg 1111
• Lawsuit #1-McD sues Father for breach of contract b/c his son bought a burger chef franchise
• Lawsuit #2-Father sues McD for antitrust
o crt says claim preclusion bars this suit because even though he didn’t have to present the
compulsory counterclaim, he’s trying to nullify the earlier judgment .

Little v. Blue Goose Motor Coach Co pg 1145-Car accident between bus and Mr. Little
• 1st suit-Blue Goose(bus co) sues Driver and gets $139
• 2nd suit-driver has died, his widow sues the bus company
o why is this an issue preclusion case and not a claim preclusion case? Not a claim-illinois
does not have a compulsory counter claim rule at time, Happens in justice of the peace court
(under certain $ amount)
Blonder-Tongue pg 1190- Nonmutual defensive issue preclusion is OK if in the previous case there was a full
and fair opportunity to litigate the issue (ie validity of a patent)
**Parklane Hoisery: New P asserting issue preclusion against new D-SEC suing PH for security fraud-govt
obtains injunction against continued use ofthis material misrepresentation, now a bunch of new Ps suing PH
saying crt already decided you have materially misrepresented thing, you owe us $$- Crt says this promotes “sit
and wait.” If you let new Ps sue D over and over again then Ds wont know what theyre up against and might not
litigate as hard. SO case by case basis to decide if offensive issue preclusion is appropriate. BUT in PH itself its
ok.
**Taylor v. Sturgell: Taylor’s friend sued FAA for documents that were deemed “trade secrets” and not subject
to Freedom of Information Act. He appealed many times. Taylor filed suit against FAA requesting same docs,
covering all issues Appeals crt told Taylor’s friend he was missing. SCOTUS outlines acceptable exceptions to
rule against nonparty preclusion, and says that “virtual representation” is not one of them.

- Function: Preclusion is affirmative defense (except for non-mutual offensive mutual preclusion) to bar re-
litigation in a second case.
- -Why is Claim Preclusion good? ? Doesn’t waste time and resources, same purpose but two different law
suits not ok.
- -Due process issue-can’t let a plaintiff repeatedly harass a defendant
-

41
 § Analogous to Rule 13 Counter-Claim Waiver: Use it or lose it, if you didn’t enter first case which
arose from same transactional nexus, then you lose your opportunity to re-litigate
- 2 points of occurrence: either as Motion to Dismiss (R12(b)(6)) or Motion for Summary Judgment (R56).
- Preclusive Effect is determined by judge in Case 2, not Case 1.
- Deference to State Court 28 U.S.C. § 1738 Full Faith and Credit Act: If Case#1 was in State Court, and
Case#2 is in Federal à Case2 will accord judgment using State Court’s rules b/c there’s comity (collegiality
and respect) and deference
- Values: Efficiency (every case needs to END, Facebook), Fairness (parties shouldn’t fear having case re-
litigated)
§ Constraints/Counter: Due Process Clause à every party should have their fair day in court
- 5 questions to ask in order to approach preclusion question:
§ (1) Jurisdiction
§ (2) Same Parties
§ (3) What the case is about?
§ (4) Cause of action
§ (5) Judgment à Who the judgment is ruling in favor of b/c that decides who/what is precluded.
Test Claim Preclusion Issue Preclusion
(Res Judicata) à Manego (Collateral Estoppel) à
(Same parties in case 1 over same Little v. Blue Goose,
claim) Hardy v. Johns-Manville
(May only 1 party from
case 1 over issue)
May be Affected By:*** Only parties in prior litigation (Case Parties in prior litigation as
1) well as non-parties

May ONLY be Asserted Parties in Case 1 Parties in Case 1 who had a

Against: “full and fair opportunity to
litigate”
Require a “Final Yes Yes
Judgment” (§ 1291)?
“On the merits” Yes, but read broadly to just mean Same
“with prejudice” (aka decided not
just on technicality)
In a court of competent Yes Yes, except where jx is the
Jurisdiction? “issue” as to which issue
preclusion is asserted

On the same “claim” Yes, with modern test equating No, doesn’t need to be on
(most litigated issue, “claim” + “transaction” same claim; although issue
biggest soft spot to • Facts based, diff claims from has to be the same AND has
argue) same transaction à “same claim” • to have been actually
(Manego): transaction factors à litigated + essential to
time, space, origin, motivation judgment
Note: Also applies to claims that
could’ve been brought up
Note: can be barred if party
could’ve raised under R13(a)
compulsory counterclaim

42
 Precludes relitigation Any claim (defined transactionally) Any issue that was actually
of…. that was or could have been litigated, determined, &
litigation in prior action central to final judgment in
prior action
- Exceptions to Mutuality Requirement- Claim Preclusion: ***(Taylor v. Sturgell) Party in case 2 (who
must have also been a party in case 1) asserting claim preclusion against other party, who must have also
been a party in case 1 EXCEPT:
§ (1) New party in Case 2 had previously agreed to be bound to Case 1
§ (2) New party in Case 2 had pre-existing substantive legal relationship
§ (3) Court deems that non-party was adequately represented in Case 1(incl. class actions, fiduciary
relationships (defined by law))
§ (4) If new party in Case 2 had assumed control of Case 1
§ (5) If new party in Case 2 is just a proxy/agent for party in Case 1 (Taylor) [virtual representation
not enough!!]
§ (6) Special Statutory Scheme (e.g. Bankruptcy Proceedings)
- Values of Exceptions: Create exceptions to Preclusion Doctrine b/c rigorous boundaries could allow parties
to manipulate and “game the system” to have their cases “retried”
- Different from Stare Decisis: Sets precedent but doesn’t bar parties from re-litigation of claims + issues
- Difference from Law of the Case: Law of the Case is different b/c it’s convention and not a doctrine à
Parties aren’t barred from litigating again
§ EX: filing 12(b)(6) over and over again after it’s been denied already
- Rule 60(b): Grounds for Relief from Final Judgment, Order, or Proceeding
§ Function: If you discover new evidence, then motion under 60(b) to open up case 1 and use R15 to
amend the complaint (Is there a statute of limitation? May relation back apply?)
§ Loophole: Usually, if you have new evidence introduced, you’re stuck with preclusion unless you
file Rule 60(b) judgment for relief along with Rule 15 to amend pleading
§ Test: Rule 60(b)(1-6)
• Mistake, inadvertence, surprise, or excusable neglect?
• Newly discovered evidence, with reasonable diligence, couldn’t have been discovered in
time to move for new trial (R59)?
• Fraud, misrepresentation, or misconduct by opposing party during trial?
• Judgment is void
• Judgment has been satisfied, released, or discharged; it’s based on earlier judgment that has
been reversed or vacated, or applying it prospectively no longer equitable
• SOFT SPOT: Any other reason that justifies itself
§ Timing: Rule 60(b) requires “reasonable time” à first 3 must be done within yr
- Mutuality Requirement:
§ Definition: Party asserting preclusion in Case 2 must have been a party in Case 1 (so that s/he would
have been bound by an adverse judgment in Case 1)
• Not relaxed for claim preclusion
• Relaxed for issue preclusion
- Attack Plan for Preclusion:
§ Claim Preclusion First: As ∆, claim broader, may be able to knock out entire claim; however, if
unavailable, then
§ Issue Preclusion (if claim preclusion may be unavailable due to non-mutuality, for example): Same
issue can’t be relitigated twice, was issue “fully litigated and essential to the judgment”?
• EX: Exercise 22 à π appealed issue re: jury mistake, appeal struck it down. 2 years later,
found that jury mistake was legitimate, π barred via preclusion from re-litigation issue b/c
jury mistake was already decided on and essential to π’s negligent case against ∆.
43
 Defensive Issue Preclusion vs. Offensive Issue Preclusion

Party Asserting Issue Against . . .

Preclusion
Non-mutual Defensive issue New ∆ (Case 2) Π who lost in Case 1 (e.g.
preclusion patent)
(Blonder-Tongue)
Non-mutual offensive issue New π (Case 2) ∆ who lost in Case 1
preclusion
(Parklane, Hardy)

- Test for Non-Mutual Offensive Preclusion: (Parklane)

§ (1) Could π have joined in Case 1, and was taking a “wait-and-see result” before filing own case?
• If yes, then preclusion barred; if no, then preclusion allowed
§ (2) Are there inconsistent judgments?
• EX: 10 previous verdicts, and π only selecting the 5 that favor his case?
• If yes, then preclusion may be barred; if no, then preclusion allowed
- Values Driving For A Stricter standard for non-mutual offensive preclusion:
§ 1. Does not mitigate litigation like defensive issue preclusion à in non-mutual defensive issue
preclusion, π’s want to join all possible ∆’s b/c they fear that issue preclusion will prevent them from
future litigation; here, π has opposite incentive, could “wait and see” if Case 1 is successful before
proceeding with own case
§ 2. Fairness to ∆
• ∆ may not have as much incentive to litigate Case 1 if it was just minor, shouldn’t bind ∆ to
that judgment if they didn’t really try
• Inconsistent Judgments à which one do we pick?
- 7th Amendment Hurdle: Parklane with no jury doesn’t violate 7th Amendment b/c 2 separate cases w/ 2
separate judges, 1 happened to be tried first. 7th amendment applied to cases, not across cases à Parklane
Case 2 would have allowed for jury, just happened that Case 1 (with no jury) tried first and issue preclusion
was applied.

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 “CHOICE OF LAW” (aka “Conflicts of Law”)
CASES:
Swift v. Tyson-OLD SOLUTION-in fed crt because parties are diverse-if NY commercial law applies then
financial instrument will be invalid. Apply general commercial/common law of contracts. What is general
common law? Common law legal system, common law judges come to solution when no statute
Erie-1938-MODERN VIEW-1st yr FRCP go into effect-guy walking along RR track, train door flies off and hits
him-suing RR for neg-diversity case because guy is from different state than RR co-Penn common law rule-RRs
only liable for injuries to pple walking along tracks if its willful and wanton
• SCOTUS rejects theory of Swift v. Tyson and embrace positivist view of law-suggest that Swift v.
Tyson is unconstitutional. b/c if congress cant pass general law of contracts then fed crts definitely
don’t have authority to do so. Reject pre positivist view of law.
• Necessarily applying law of some state, fed govt. doesn’t have general law making power, states
have complete governmental authority
Klaxon-once you have this vision of the way the law works (common law or not), then you have to decide
which state’s common law to use.
• Fed Dist Crt applies same rules that CA state crts use to decide which laws to apply in diversity
cases. IMPORTANT- does not mean then necessarily apply substantive CA state laws.

- Different Views:
§ Traditional: Restatement (First) aka “Lex Loci Delicti” (Law of the place of the wrong) à Single
point/territorial/rule-based
• Swift v. Tyson: Court allowed to adopt federal CL on substantive issue (no longer allowed)
• 14 states still adopt this view à if you are in Alabama, would adopt Alabama state law
§ Modern: Balancing/multi-factored/standard
• “Most Significant Relationship” Test: balancing factors and standard rather than a rule à
Look at all the factors and see what’s most in contention
- When would you challenge choice of law?
§ 12(b)(6) pre-answer motion to dismiss
• EX: Jx recognizes conspirary but another state doesn’t recognize it
§ 12(c) motion for judgment on pleadings b/c law isn’t sustainable
- 28 U.S.C. § 1652 State Laws as Rules of Decisions: “Laws of several states, except where the Constitution
or treaties…shall be regarded as rules of decision in civil actions in the courts of the US”
§ Traditional View: Only applies to statutes created by Congress, not the court-made “federal
common law” (Swift v. Tyson)
• Values: B/c judges only interpret the law, not create laws; federal CL changes all the time;
they are merely interpreting the laws and rendering decisions
o Judges are merely trying to find “truth” and divining the truth of the law à so no real
“law” to apply
§ Modern View: Abolished substantive federal common law
• Eerie Doctrine- 28 U.S.C. §1652-State laws are rules of decision in civil actions in US fed
crts in cases where they apply.

• Statutes in § 1652 now interpreted to mean state common law

§ Underlying Values:
• Forum Shopping: Federal vs. State court houses right across the street from one another
• Constitutional Argument: Argument, WHERE is this rooted in?
o Erie: Grounded in constitution but did not state where, but stronger than stare decisis
(which is precedent that can be overturned)
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 • Uniformity: Allows for intra-state uniformity
• Equal Protection Clause: People should be treated equally
o Counter: Parties weren’t treated unequally, subjected to the same type of law,
everyone within courthouse still accorded same system
• Philosophical Values: Judges don’t divine truth anymore, they make up laws from first
impressions, “law making power”

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