Civil Procedure The Best Outline

CIVIL PROCEDURE OUTLINE
Text: Civil Procedure 5th Edition by Yeazell

The Power of Procedure by Hunter
The Anatomy of a Lawsuit by Simon
Civil Procedure Examples & Explanations 4th Edition by Glannon
Table of Contents
1. JURISDICTION: SELECTING THE RIGHT COURT...........................................................................19
I. Definitions and Fundamentals......................................................................................................19
II. Subject Matter Jurisdiction (Where Can Suit Be Brought?)......................................................20
Peters Hypo, p. 3 (SMJ, PJ, Venue).................................................................................................20
28 U.S.C. §1391(a) Venue...............................................................................................................21
Gordon v. Steele, (W.D. Pa. 1974) p. 7 (SMJ).................................................................................22
Wednesday, April 21, 2004.................................................................................................................22
Diversity Jurisdiction.........................................................................................................................24
In general: defined by who the parties are, not by the subject matter of the complaint....................24
28 U.S.C. §1332: Diversity of parties...............................................................................................24
Mas v Perry (1974) – where a husband (France) and wife (Mississippi) sue landlord (LA) for
watching them through double-sided mirrors in their bathroom and bedroom while Mr. Mas was in
school in LA and they lived in Perry's building. D claims no diversity b/c Mrs. Mas is domiciled in LA.
Mrs. Mas did not intend to stay in LA, but also did not intend to return to MS. Court found that a
domiciliary of a state remains so for diversity purposes until she formulates the intent to permanently
remain in another state. Establishes 2 part test for diversity of citizenship:.......................................26
Ankenbrandt v Richards (1992) – where P was ex-wife of D and sued him and his girlfriend for torts
against her children. Question of diversity arose b/c P was citizen of MO, and Ds were citizens of
LA. Ds tried to get removal to state court for lack of diversity b/c of domestic relations exception.
Court recognized the exception existed, but ruled that it did not apply to this case, b/c it was a child
abuse case........................................................................................................................................26
Indiana Gas Company v Home Insurance Company (1998, 7th Cir) (Easterbrook opinion) – where
issue of diversity arose b/c the P named several Ds including multiple syndicates of underwriters in
the Insurance company. ...................................................................................................................26
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C. Diversity Jurisdiction (§1332)......................................................................................................27
1. Requirements; Constitutional/Statutory Basis..............................................................................27
2. Time to determine diversity..........................................................................................................27
3. Rationale......................................................................................................................................27
4. Corporations §1332 (c)(1)............................................................................................................27
5. Partnerships.................................................................................................................................27
6. Issue of Domicile – ......................................................................................................................27
7. Presence of foreigner §1332 (a)(2,3,4, add.)................................................................................28
8. Amount in Controversy ................................................................................................................29
D. Supplemental Jurisdiction (§1367)...............................................................................................30
1. Traditionally, pendent and ancillary jx from common law.............................................................30
2. Merged doctrine required three part analysis: .............................................................................30
3. Statute 28 USC §1367.................................................................................................................30
4. Limits............................................................................................................................................31
5. Purpose........................................................................................................................................31
6. “Common Nucleus of Operative Facts” Test (Gibbs)....................................................................31
7. Once there is a common nucleus – factors in discretion (§1367c)...............................................32
8. Fed question claims.....................................................................................................................32
9. Does not affect the need for personal jurisdiction.........................................................................32
VI. Removal §1441 (vertical from state to fed)......................................................................................32
A. ∆ ’s Power......................................................................................................................................32
1. Rationale......................................................................................................................................33
B. Can only go from State to Fed......................................................................................................33
C. Only where it could have originally been brought......................................................................33
D. Procedure For Removal.................................................................................................................33
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E. 28 USC §1441..................................................................................................................................33
F. Complete Diversity May Not Be Required at time of Removal...................................................34
G. Chicken-Egg; PJ/SMJ....................................................................................................................34
1. Steel Co. v. Citizens for a Better Environment supp.....................................................................34
2. Ruhrgas AG v. Marathon Oil Co. supp.........................................................................................34
VII. Choice Of Law – Erie and its Progeny............................................................................................34
A. The Rules of Decision Act 28 USC §1652....................................................................................35
B. Rules Enabling Act 28 USC §2072................................................................................................35
C. The Old Approach (Swift v. Tyson)...............................................................................................35
D. Erie v. Tompkins (p. 265) ..............................................................................................................36
1. This doctrine and line of cases only concerns instances where the case is brought to federal
court under §1332 (diversity).............................................................................................................36
2. Facts............................................................................................................................................36
3. There is no federal common law; State Law governs...................................................................36
4. Significance..................................................................................................................................36
5. Reed’s Concurrence.....................................................................................................................36
6. The Three Prongs of Erie:............................................................................................................37
7. What does Erie actually do?.........................................................................................................37
8. Preventing Forum Shopping.........................................................................................................38
9. State does substance, Fed does procedure.................................................................................38
10. Only applicable where there is no federal statute.......................................................................38
11. Fed must ask what the state Supreme Court would do TODAY!!!..............................................38
E. Erie’s Progeny................................................................................................................................38
1. The Outcome Determinative Test (York)......................................................................................38
2. Byrd Balancing Test (Retreat from Outcome Determinative Test)................................................40
3. Hanna Test – Twin Aims – Removed FRCP from Erie.................................................................41

4. The state’s law to apply is where the federal court sits – so the conflict of laws rules of the state
must be followed...............................................................................................................................43
F. The Two Tracks of Analysis..........................................................................................................43
G. Statutes – Fed Wins, Choice of Law – State Wins......................................................................44
1. Where there is a direct conflict, federal rule wins (Burlington)......................................................44
2. If the Fed. Statute covers the point in dispute then follow it (Stewart)..........................................44
3. Gasperini v. Center for Humanities p. 297...................................................................................46
4. A fed ct. in diversity must apply horizontal choice of law rules the state court would (Klaxon).....46
5. Certification???............................................................................................................................46
In ascertaining state law, the fed ct must do what they believe the state ct would do......................47
III. Personal Jurisdiction...................................................................................................................47
Pennoyer v. Neff (1877); (Who Bought the Farm?)..........................................................................48
Tuesday, April 13, 2004......................................................................................................................53
Notice Evaluation.............................................................................................................................54
Rule 4...................................................................................................................................................54
Monday, April 19, 2004.......................................................................................................................59
IV. Venue (Which Courthouse?)........................................................................................................59
2. PLEADINGS........................................................................................................................................60
I. Definitions and Fundamentals......................................................................................................60
b) Code Pleading (i.e. CA, FL)..........................................................................................................60
Who was suing whom, and why?......................................................................................................63
What form of complaint did the plaintiffs use?................................................................................63
How did Caltrans respond to the complaint? What did Caltrans argue in opposition to the
complaint?...........................................................................................................................................63
II. WORKSHEET: DEVELOPMENT OF PLEADING SYSTEMS........................................................65
a. Modern..................................................................................................................................................65

i. Give notice of the nature of the claim ................................................................................................65
1. RA: notice is most important if the purpose of the civil litigation system is to dispense justice.
...................................................................................................................................................................65
a. More important resolution on merit is, the less important pleading is and the more important
access to justice is (basis for notice pleading; main factor in notice pleading)................................65
2. Opposing point-of-view is that one should not be able to invoke the legal system at the drop-of-
a-hat. Must be sure that the dispute has some legal and factual merit.............................................65
a. If you take this viewpoint, you mostly care about pleadings and making sure that the paperwork
is correct. (main focus of code pleading)..............................................................................................65
ii. Separate disputes over facts from disputes over law......................................................................65
b. Obsolete...............................................................................................................................................65
i. State the relevant facts.........................................................................................................................65
ii. Narrow the issues to be addressed at later stages of the litigation process.................................65
iii. Serve as guides for later discovery and trial (2nd major focus for notice pleading; guiding he
discovery process)..................................................................................................................................65
iv. Expose insubstantial claims..............................................................................................................65
c. RA – Key Issue is Gatekeeper Function of the Pleading..................................................................65
i. Pleading is the gateway to discovery which is the gateway to trial.................................................65
ii. Collateral issues of pleading set the stakes in the lawsuit. Depending on what you sue for;the
types of relief you seek, punitive, compensatory, attorneys’ fees, insurance coverage. Is there
something in the pleading that could lead to discovery that could lead to costly, embarrasing, or
otherwise unwanted public disclosures................................................................................................65
d. RA – More Key Issues.........................................................................................................................66
i. Look at Rule 9.......................................................................................................................................66
ii. No best system of pleading; depends on what purpose you think pleading should serve..........66
iii. Choices interrelationship of different procedural steps; choices made in drafting a complaint
will affect the entire course of the trial. What did you sue for and what did you accomplish..........66
2. English Pleading System: Common Law and Chancery..................................................................66

a. What is a “form of action?” ..........................................................................................................66
Under English Royal (Common) Law there were a limited number of wrongs with which the
Royal Courts would concern themselves:........................................................................................66
1. Trespass...........................................................................................................................................66
2. Debt..................................................................................................................................................66
3. Covenant (K’s).................................................................................................................................66
4. Ejectment ........................................................................................................................................66
5. Trover and Replevin (Recovery of wrongfully taken property)...................................................66
6. Assumpsit (Oral Promises).............................................................................................................66
a. What were the objectives of common law pleading?...................................................................66
i. Give notice of the nature of the claim.................................................................................................66
ii. Separate disputes over facts from disputes over law. ....................................................................66
1. This greatly streamlined the trial and sped up the process.............................................................66
Summary..........................................................................................................................................69
a. What was the lawsuit about?..........................................................................................................69
b. How did defendants respond to the complaint?..........................................................................69
Motion for dismissal...........................................................................................................................69
c. Why did the court deny the defendants’ motions?.......................................................................69
d. What does the court’s citation to FRCP Form 9 indicate about its approach to Rule 8?..........69
III. RULE 11 and ETHICAL LIMITATIONS.........................................................................................69
Overview..........................................................................................................................................69
Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions. .70
Major Points for Rule 11...................................................................................................................71
Business Guides v. Chromatic Communications Enterprises (Copyright-Copywrong).....................72
Religious Technology Center v. Gerbode (Scientology Case).........................................................72
IV. WORKSHEET: RULE 11..............................................................................................................72

V. RULE 9: DISFAVORED CLAIMS..................................................................................................74
Overview..........................................................................................................................................74
Rule 9. Pleading Special Matters.....................................................................................................74
Olsen v. Pratt & Whitney Aircraft (Fraud – Company Cons 36 Year Employee Out Of Pension).....75
Leatherman v. Tarrant County (Civil Rights – Suing a Municipality for Invalid Drug Searches).......75
Gomez v. Toledo (Civil Rights – Puerto Rican Cop Breaks Code of Silence)..................................76
VI. WORKSHEET: RULE 9/ALLOCATION OF BURDENS...............................................................77
2. Why did the drafters of Rule 9(b) require that allegations of fraud or mistake be made with
particularity?............................................................................................................................................77
3. Olson v. Pratt & Whitney Aircraft.......................................................................................................77
a. Why did Olson sue Pratt & Whitney?.............................................................................................77
b. What did the Second Circuit conclude that Olson failed to do in his complaint?.....................77
c. What did P&W do in response to complaint?...............................................................................77
d. How did district court rule on the motion.....................................................................................77
e. What did Court of Appeal do? On what grounds?.......................................................................77
f. What did the Court of Appeal say was wrong with the fraud claim as plead? ...........................77
g. What was the consequence of this decision to the parties?? ....................................................78
4. Please review note 6 on page 440. How does the Private Securities Reform Act modify the
effect of Rule 9(b)? ................................................................................................................................78
5. Who should decide the level of specificity required to state a claim – the courts or the
legislature? ..............................................................................................................................................78
6. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit................................78
a. Who was suing whom, and why?...................................................................................................78
b. What did the defendants do in response to the complaint?........................................................78
c. What did the Fifth Circuit do? How did the Supreme Court get involved? .............................78
d. Why did the Supreme Court reverse the Fifth Circuit? ...............................................................78

What is a “Reply?”..................................................................................................................................79
How did the Fifth Circuit address the Leatherman decision through use of the reply?...................79
The Court set forth the requirements of a proper pleading which π failed to meet.........................79
What does Rule 9 provide regarding: (a) allegations of conditions precedent; (b) allegations of
time and place; and (c) special damages?............................................................................................79
What is the burden of pleading?...........................................................................................................79
One must allege that element of a claim or defense and cannot rely on the other party do so. p.
446.............................................................................................................................................................79
What is the burden of production?.......................................................................................................79
What is the burden of persuasion?.......................................................................................................79
How are burdens allocated between a plaintiff and a defendant?......................................................79
Gomez v. Toledo.....................................................................................................................................79
1. Who was suing whom, and why?...................................................................................................80
2. What did the Supreme Court hold regarding the allocation of burdens? What was the basis
for the Court’s decision?....................................................................................................................80
Please review note 2 on page 450. Why do you think that Gomez chose not to simply amend
his complaint and add the bad faith allegation?...............................................................................80
Please review note 4 on page 451. Do you think that plaintiff would be better off under Shultea
than if Gomez had been decided the other way and plaintiff required to plead bad faith? Why or
why not?...............................................................................................................................................80
No, because π would have no way of showing bad faith without massive discovery to compare
treatment of other officers by Toledo................................................................................................80
ALLOCATION OF BURDENS RECAP................................................................................................81
STATUTORY ALLOCATION RULE.................................................................................................81
COMMON LAW CLAIMS RULE.......................................................................................................81
VII. PLEADINGS SUMMARY..............................................................................................................81
VIII. WORKSHEET: RULE 12 AND PRE-ANSWER MOTIONS.........................................................82

Rule 12. Defenses and Objections.When and How Presented.By Pleading or Motion.Motion for
Judgment on the Pleadings...............................................................................................................82
IX. RULE 7, PLEADINGS ALLOWED; FORM OF MOTIONS...........................................................91
X. RULE 8. GENERAL RULES OF PLEADING.................................................................................92
XI. WORKSHEET: ANSWERS AND AFFIRMATIVE DEFENSES.....................................................93
Zielinski v. Philadelphia Piers, Inc., p. 457 (Forked-Tongued Forklift Fiasco).................................93
Layman v. Southwestern Bell Telephone Co., (1977) p. 463 Affirmative Defenses - (Ancient
Easement Case)................................................................................................................................96
The Power of Procedure: Chapter Four -- The Answer 2/2/04........................................................98
Jones’ Amendment in Clinton v. Jones............................................................................................99
XII. AMENDMENTS..........................................................................................................................100
Rule 15. Amended and Supplemental Pleadings...........................................................................100
Beeck v. Aquaslide ‘N’ Dive Corp., (1977) p. 470 Amendments (Pool Pres Poo-Poos Pleading) 101
Rule 15 Highlights..........................................................................................................................102
Statute of Limitations and Rule 15..................................................................................................102
Federal vs. California – No DOE ∆ in Federal...............................................................................102
Relation Back - 15(c) p. 478 ..........................................................................................................105
3. PRE-TRIAL PROCEDURE................................................................................................................108
I. Definitions and Fundamentals....................................................................................................108
II. Discovery.....................................................................................................................................112
A Applicable Rules............................................................................................................................112
Rule 26. General Provisions Governing Discovery; Duty of Disclosure..........................................112
Rule 30. Depositions Upon Oral Examination................................................................................119
Rule 31. Depositions Upon Written Questions...............................................................................122
Rule 32. Use of Depositions in Court Proceedings.........................................................................123
Rule 33. Interrogatories to Parties..................................................................................................125

Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other
Purposes.........................................................................................................................................126
Rule 35. Physical and Mental Examinations of Persons................................................................127
Rule 36. Requests for Admission...................................................................................................128
Rule 37. Failure to Make Disclosure or Cooperate in Discovery; Sanctions...................................129
B DISCOVERY OVERVIEW................................................................................................................133
C WORKSHEET: DISCOVERY SCOPE AND DEVICES....................................................................133
I. Scope of Discovery.....................................................................................................................133
II. Discovery Conference................................................................................................................136
III. Required Disclosures...............................................................................................................137
IV. Oral Depositions – Rules 30, 45...............................................................................................141
V. Interrogatories – Rule 33...........................................................................................................142
VI. Requests for Production and Inspection of Documents and Things – Rule 34.........................143
VII. Request for Physical Examination – Rule 35...........................................................................144
VIII. Requests for Admissions – Rule 36........................................................................................144
IX. Failure to Make or Cooperate in Discovery, Sanctions – Rule 37.............................................144
D WORKSHEET: DISCOVERY AND PRIVACY.................................................................................145
E WORKSHEET: WORK PRODUCT AND EXPERTS.......................................................................151
I. Hickman v. Taylor, 1947 p. 525 (Lawyer Files on Sunken Tugboat) Privilege & Trial Prep.......151
II. Hickman v. Taylor – the Supreme Court’s Decision...................................................................152
III. Rule 26(b)(3).............................................................................................................................154
IV. Experts......................................................................................................................................156
Thompson v. The Haskell Co. (1994) p. 539 (Discovery of Non-Testifying Expert)........................158
Chiquita v. M/V Bolero (1994) p. 541 (The “Yes, We Have No Bananas” Case) Experts..............158
F WORKSHEET: POWER OF PROCEDURE ....................................................................................160
G WORKSHEET: POWER OF PROCEDURE DISCOVER, RELEVANCE, PRIVACY......................164

See Rule 26(g); lawyer must sign discovery request certifiying good faith reasonable
investigation. Language is similar to Rule 11. .................................................................................164
1. How did Jones’ new lawyers attempt to obtain discovery about Clinton’s past sexual
encounters? What rules did they employ?.........................................................................................164
2. On what grounds did Clinton seek a protective order in response to the discovery strategy of
Jones’ new lawyers? What specifically did he want the court to order?.........................................164
3. What arguments did Jones make in opposition to the motion?....................................................164
4. What additional arguments did Clinton make in his opposition to motion to compel
interrogatory responses? ...................................................................................................................165
5. How did the court rule on the motion to compel?..........................................................................165
6. Please review note 1, page 111: Do you think that a confidentiality order reflects an adequately
compromise between discovery and privacy interests? Do you think that Judge Wright erred in
apparently relying on the confidentiality order? Why or why not? ................................................165
7. Should the court have revisited the issue once the leaking began? What enforcement problems
are present with a confidentiality order?.............................................................................................165
8. Please see Exercise 10. Do you agree with Judge Wright’s decision on the motion to compel?
How would you have decided the question? Be prepared to describe fully your analysis with
regard to the interrogatories and proposed depositions...................................................................165
9. Should it make any difference in weighing the right to discovery against privacy interests
whether the affected individual is a non-party? Why or why not?...................................................165
10. What grounds were asserted by the “Jane Doe”witnesses as a basis for a protective order? 166
11. What was the basis for the court’s January 9, 1998 ruling denying the motions for protective
order?.....................................................................................................................................................166
12. Please review note 1, page 116: Should Judge Wright have taken into account the non-party
status of the witnesses? Should the court have taken a different approach to balancing the
interests of the plaintiff and the non-party witnesses? If not, why not? If so, what should the
court have done differently?.................................................................................................................166

13. Please review Exercise 11. Should public policy interests be taken into consideration when
fashioning discovery orders? If not, why not? If so, what types of interests should be considered
and how should the court conduct the balancing?............................................................................166
14. What was the basis for Clinton’s assertion that first amendment considerations did not
imposition of a protective order?.........................................................................................................166
15. Do you agree with Judge Wright’s November 25, 1997 order that the names of individual
contributors should remain confidential? Why or why not?............................................................166
16. On what basis did Clinton contend that information about the PJLF was relevant to Jones v.
Clinton?..................................................................................................................................................167
17. Did the court’s November 25, 1997 decision permitting discovery about the number of
contributors, the amounts raised, communications with Jones and information about organization
and finances of the organization strike a satisfactory balance? Why or why not?........................167
18. Please review note 1, page 121. Do you think the court would have reached the same decision
about individual identification if the defendant had been a corporate CEO? Why or why not? ...167
H RULE 56: SUMMARY JUDGMENT...............................................................................................167
Rule 56. Summary Judgment.........................................................................................................168
Celotex Corp. v. Catrett, p. 630 (Evidentiary Burden in Summary Judgment)................................170
How to Defeat Summary Judgment................................................................................................171
Visser v. Packer Engineering Associates, (636) (Posner Ruling on SJ Affadavits)........................172
P. 643 Hypos - #2...........................................................................................................................172
Sanctions for Bad Faith..................................................................................................................173
Jones v Clinton...............................................................................................................................173
ReCap of Summary Judgment.......................................................................................................173
Standard of Analysis for Review of Summary Judgment: Scintilla vs. Totality..............................174
4. TRIAL AND POST-TRIAL PROCEDURE..........................................................................................175
A DEFINITIONS..................................................................................................................................175
(i) General and Special Jury Verdicts............................................................................................176

B JUDGE OR JURY: THE RIGHT TO A CIVIL JURY TRIAL............................................................177
Review – History of Common Law Pleadings: Chancery vs Common Law ..................................177
General Rule..................................................................................................................................177
Hypos p 669 ..................................................................................................................................177
Exam Update.................................................................................................................................178
E. Juries.........................................................................................................................................178
Rule 38. Jury Trial of Right.............................................................................................................178
Rule 38 Hypo.................................................................................................................................178
Public Rights Issues.......................................................................................................................179
Rule 39. Trial by Jury or by the Court.............................................................................................179
Rule 47. Selection of Jurors...........................................................................................................180
Rule 48. Number of Jurors—Participation in Verdict......................................................................180
Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, p. 670 (1990) ......................................180
Notes p. 677...................................................................................................................................182
Amoco Oil Co. v. Torcomian. (1983) (p. 685)................................................................................183
28 U.S.C. § 1861. Declaration of Policy.........................................................................................184
28 U.S.C. § 1862. Discrimination Prohibited..................................................................................184
28 U.S.C. § 1870. Challenges........................................................................................................185
Rule 47. Selection of Jurors...........................................................................................................185
Edmonson v. Leesville Concrete Co. (1991) (p. 703)....................................................................185
Three Part Test for Third-Party Challenge.....................................................................................188
C TRIAL..............................................................................................................................................188
Rational Decision Making: 5 devices to ensure that trial verdict is rational...................................188
Reid v. San Pedro, Los Angeles & Salt Lake Railroad (1911) p. 713 (“Moo” ve It on Over Case). 188
Summers v. Tice, (1948);...............................................................................................................190

Hypo p. 716 #5...............................................................................................................................190
D JUDGMENT AS A MATTER OF LAW............................................................................................191
1. Controlling Juries Before the Verdict..........................................................................................191
1a. Judgment as a Matter of Law (Directed Verdict)......................................................................191
Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional
Rulings............................................................................................................................................191
Rule 50. JMOL Summary...............................................................................................................192
What Evidence Must The Court Consider in Ruling on a JMOL Motion?.......................................193
HYPO P. 720, note 1 Burden of Proof............................................................................................193
***See Glannon, p. 411. Burden of Production..............................................................................193
Pennsylvania Railroad v. Chamberlain (1933) p. 724 (All Evidence Rule Version of JMOL)........193
2. Controlling Juries After the Verdict.............................................................................................196
2a. Judgment as a Matter of Law (JNOV aka Renewed JMOL Rule 50b).....................................196
2b. New trial......................................................................................................................................196
Lind v. Schenley Industries (3rd Cir. 1960) p. 736..........................................................................196
E NEW TRIAL.....................................................................................................................................199
Rule 59. New Trials; Amendment of Judgments............................................................................199
The Limits of The Law’s Control: The Jury as a Black Box...........................................................199
Peterson v. Wilson, (5th Cir. 1998) p. 745 ()..................................................................................199
2c. Conditional New Trials..............................................................................................................200
F APPEAL...........................................................................................................................................201
1. Requirement of Adversity...........................................................................................................201
Aetna Casualty & Surety Co. v. Cunningham (1955).....................................................................201
2. Waiver of rights..........................................................................................................................202
Carson Products Co. v. Califano (1979).........................................................................................202
Massachusetts Mutual Life Insurance Co. v. Ludwig (1976)..........................................................203

G FINAL JUDGMENT RULE – 28 U.S.C. § 1291...............................................................................204
28 U.S.C. § 1292. Interlocutory Decisions......................................................................................205
Liberty Mutual Insurance Co. v. Wetzel (1976), p. 764 (Final Judgment Rule).............................205
According to § 1291, appeals lie only from final judgments of the district court, whereby a final
judgment “is one which ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment.”....................................................................................................................205
4. Exceptions to Final Judgment....................................................................................................207
4a. Collateral Order Doctrine..........................................................................................................207
Lauro Lines s.r.l. v. Chasser (1989), p. 773 (Achille Lauro Case – Collateral Order Doctrine).......207
To fall within the Cohen articulation of the collateral order doctrine, an order must: .....................207
1. CONCLUSIVELY DETERMINE the disputed question; ..............................................................207
2. Resolve a SIGNIFICANTLY IMPORTANT issue; .......................................................................207
3. COMPLETELY SEPARATE from the merits of the action; and ..................................................207
4. Be EFFECTIVELY UNREVIEWABLE on appeal from a final judgment......................................207
5. Scope of Review........................................................................................................................209
5a. Abuse of Discretion..................................................................................................................209
2. De Novo Review.........................................................................................................................209
3. Clearly Erroneous.......................................................................................................................210
Anderson v. Bessemer City (1985).................................................................................................210
6. Harmless Error Rule 28 U.S.C. § 2111.....................................................................................211
H. Alternative Dispute Resolution...................................................................................................212
1. Arbitration...................................................................................................................................212
Ferguson v. Writers Guild of America, West (1991).......................................................................212
2. Mediation....................................................................................................................................213
5. RULE 16. PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT......................................217
A TEXT OF RULE AND OVERVIEW..................................................................................................217

B JUDICIAL MANAGEMENT OF LITIGATION..................................................................................219
Sanders v. Union Pacific Railroad, p. 645 .....................................................................................219
McKey v. Fairbairn, p. 650 ............................................................................................................220
C EASTERN DISTRICT LOCAL RULES............................................................................................221
6. LITIGATION REMEDIES AND FINANCING.....................................................................................222
I. Incentives to Litigate....................................................................................................................222
(a) Statistics..................................................................................................................................222
II Remedies.......................................................................................................................................222
(a) Substitutionary Remedy. .........................................................................................................222
(b) Compensatory Damages.........................................................................................................222
(c) Legal Remedy..........................................................................................................................223
(d) Equitable Remedy....................................................................................................................223
(e) Replevin...................................................................................................................................223
(f) Ejectment..................................................................................................................................223
(g) Liquidated Damages................................................................................................................224
(h) Statutory Damages.................................................................................................................225
(i) Punitive Damages.....................................................................................................................225
(j) Specific Relief .........................................................................................................................225
(k) Injunction..................................................................................................................................226
(l) Declaratory Relief......................................................................................................................226
(m) Prayer for Relief.......................................................................................................................227
(n) Garnishment.............................................................................................................................227
(o) Attachment................................................................................................................................227
(p) Alternative Dispute Resolution..................................................................................................227
III. U. S. v. Hatahley, Compensatory Damages (The Navajo Burro Case)...................................228

(a) Summary.................................................................................................................................229
(b) Questions..................................................................................................................................229
Compensatory Damages Rule.......................................................................................................230
IV. State Farm v. Campbell Substitutionary Remedy (The $145mm Utah Case)........................231
(a) Summary.................................................................................................................................231
Punitive Damages Rule..................................................................................................................232
(b) Questions..................................................................................................................................232
V. William Inglis & Sons Baking Co. V. ITT Continental Baking Co. Preliminary Injunction (The
Predatory Pricing Case) p. 364.........................................................................................................233
Summary........................................................................................................................................233
Preliminary Injunction Rules...........................................................................................................234
VI. Financing Litigation – How to Pay for a Lawsuit.....................................................................235
a) Cost of Litigation as a Prelminary Consideration.........................................................................235
b) American Rule.............................................................................................................................235
c) English Rule................................................................................................................................236
d) Contingent Fee............................................................................................................................236
e) Common Fund..........................................................................................................................236
f) Fee Shifting Statute....................................................................................................................237
g) Contractual Damages Clause...................................................................................................237
h) By Common Law........................................................................................................................237
i) By Statute...................................................................................................................................237
j) Human Cost of Litigation............................................................................................................238
VII Fee Shifting and Settlement......................................................................................................238
(a) Rule 68....................................................................................................................................238
(b) Separating Lawyer and Client..................................................................................................238
VIII Evans v. Jeff D Separating Lawyer & Client (The Honest Lawyer Case)..............................238

(a) Summary..................................................................................................................................238

CIVIL PROCEDURE OUTLINE Section 1 - Jurisdiction
1. JURISDICTION: SELECTING THE RIGHT COURT
I. Definitions and Fundamentals

(a) Personal jurisdiction -- refers to the court's power to render a judgment that either commands
defendant's personal obedience or imposes obligations on the defendant that will be enforced by other
courts. [See Burnham v. Sup.Ct. (1990) 495 US 604, 609-610, 110 S.Ct. 2105, 2109-2110]
When Personal Jurisdiction Required: In personam jurisdiction is required whenever a judgment is
sought that would impose an obligation on defendant personally: e.g., a judgment for money damages, or
an injunction commanding defendant to act or refrain from acting in some manner. [Pennoyer v. Neff
(1877) 95 US 714, 720-722; Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee
(1982) 456 US 694, 711, 102 S.Ct. 2099, 2109, fn. 1] Personal rights or responsibilities of the defendant.
Compare--jurisdiction in rem: Historically, courts treated quiet title and other actions to determine
interests in property differently--so- called 'in rem' (literally “over the person”) jurisdiction. However, the
rules as to jurisdiction over property are now governed by doctrines similar to those governing personal
jurisdiction (see ¶ 3:211 ff.). Litigation against the property; clarifies title or status of property to all the
world.
Quasi-in rem: 1) not an adjudication relative to the world; instead it is an adjudication among known
parties; or 2) Attachment of property to address unrelated liabilities, capped at value of property. Court’s
jurisdiction is limited to the value of the property
(b) Limited Subject Matter Jurisdiction: Federal courts are courts of limited jurisdiction. They can
adjudicate only those cases which the Constitution and Congress authorize them to adjudicate: basically
those involving diversity of citizenship, or a federal question, or to which the U.S. is a party (see below).
[Kokkonen v. Guardian Life Ins. Co. of America (1994) 511 US 375, 114 S.Ct. 1673, 1677; Finley v.
United States (1989) 490 US 545, 109 S.Ct. 2003, 2008]
Federal courts are presumptively without jurisdiction over civil actions and the burden of establishing the
contrary rests upon the party asserting jurisdiction. [Kokkonen v. Guardian Life Ins. Co. of America, supra,
511 US at 377, 114 S.Ct. at 1677]
(Compare--state courts: California Superior Courts are courts of general, unlimited jurisdiction. They can
render enforceable judgments in practically any kind of case involving more than $25,000. The only real
exception is cases involving matters within the exclusive jurisdiction of federal courts)
Federal question jurisdiction' defined: This term refers to the subject matter jurisdiction of federal
courts for claims 'arising under' the U.S. Constitution, treaties, federal statutes, administrative regulations,
or common law (see ¶ 2:67 ff.).
No amount in controversy limitation: Unlike diversity cases, there is no minimum monetary amount in
controversy required in most federal question cases. [See Brown v. Masonry (11th Cir. 1989) 874 F2d
1476, 1478]

Exceptions: In actions against an interstate carrier for damage to goods shipped interstate (under 49
USC § 11707), the amount in controversy must exceed $10,000. [28 USC § 1337(a); see Hunter v.
United Van Lines (9th Cir. 1984) 746 F2d 635, 648]
In actions under the Consumer Products Safety Act (15 USC § 2501 et seq.) for knowing violations of
consumer product safety rules, the claim must exceed $10,000.
Under the Magnuson-Moss Warranty Act, individual breach of warranty claims must exceed $25; and if
separate claims are aggregated, the claims must exceed $50,000. [15 USC § 2310(d)(3)]
NEED THE 75,000 AND DIFFERENT STATES FOR SMJ UNDER 28 USC 1332
ALSO ADD ARTICLE III OF USCONST.
(c) Venue: Venue rules give defendants some control over the place of trial. Otherwise, plaintiff could
file suit in some remote district where it might be unreasonably burdensome to defend. The venue rules
thus balance the conveniences of the parties with other policy factors in selecting an appropriate forum for
trial. [Denver & Rio Grande Railroad v. Brotherhood of Railroad Trainmen (1967) 387 US 556, 560, 87
S.Ct. 1746, 1748; see Beattie v. United States (DC Cir. 1984) 756 F2d 91, 103]
Entirely Statutory: Federal venue is governed entirely by statute. [See Brunette Machine Works, Ltd. v.
Kockum Industries, Inc. (1972) 406 US 706, 709, 92 S.Ct. 1936, 1939, fn. 8]
The venue rules appear in:
• The general venue statute--28 USC § 1391 (¶ 4:37 ff.);
• Special venue statutes (¶ 4:140 ff.); and
• The change of venue provisions--28 USC §§ 1404, 1406 (¶ 4:261 ff.).
Venue Determinations Governed Exclusively by Federal Law: Issues raised in determining proper
venue in federal actions are governed exclusively by federal law ... even if the action is based on diversity
jurisdiction. [Stewart Organization, Inc. v. Ricoh Corp. (1988) 487 US 22, 28, 108 S.Ct. 2239, 2243]
II. Subject Matter Jurisdiction (Where Can Suit Be Brought?)
Peters Hypo, p. 3 (SMJ, PJ, Venue)
3/15/04 In deciding where to bring suit, lawyer must consider:
a. Access to Evidence
b. Convenience for All Parties
c. Geographic Scope of Jury Pool
d. Demographic Makeup and Characteristics of Jury Pool
e. Caseload for the Court; how long will it take to get to trial.

f. How does the court system deal with its volume? How hands on is the judge? How many cases
on his docket? State Court will have a master calendar which means you are not assigned a
judge until trial. Are there fast track rules?
g. Which state or jurisdiction has the more favorable body of law?
h. Rules of procedure? Code or notice pleading? How flexible are the discovery rules? Is the
jurisdiction sympathetic to summary judgment? Does the judge have life tenure?
i. Are there political ramifications?
j. Who does voir dire? How many pre-emptory challenges are allowed?
k. What rules of evidence apply?
l. What rules govern expert testimony? Daubert rule? Or Kelly Frieberg (check spelling)?
If Peters had read Gordon v. Steele, he might believe that the could establish citizenship for diversity
purposes. If he had done so and filed in Federal Court, the next question the lawyer would need to
address is which Federal Court? That raises the question of personal jurisdiction.
An intense factual analysis would be required in order to determine which Federal Court makes the most
sense and which would have personal jurisdiction.
Venue 28 U.S.C. §1391(a): Example: 58 County Courts (Superior Courts) in California.
28 U.S.C. §1391(a) Venue
A civil action wherein jurisdiction is founded only on a diversity of citizenship may, except as
otherwise provided by law, be brought only in
1. a judicial district where any defendant resides, if all defendants reside in the same state;
2. a judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated, or
3. a judicial district in which any defendant is subject to personal jurisdiction at the time the action
is commenced, if there is no district in which the action may otherwise be brought.
Peters’ lawyer will need to consider matters of joinder, preclusion, and go throught the whole checklist
before determining jurisdiction and venue. Based on § 1391, they will be in Michigan, but which Venue?

Gordon v. Steele, (W.D. Pa. 1974) p. 7 (SMJ)
A student who resides in a state maintaining a home there and having the intention to remain
indefinitely is a citizen of that state for diversity purposes..
Factors Against Diversity Factors For Diversity
∆ gave Penn address when applying to school ∆ ’s expressly stated intention NOT to return to Penn
College records indicate Penn residency Apartment in Idaho not sublet during absences
Worked in Penn during summers Returned mainly to see doctor
Spent Christmas in Penn Only went to Penn at Christmas to be deposed
No plans to undertake missionary work Is sincere Mormon and wishes to meet more
Mormons for marriage purposes
Member of Blue Cross of Idaho
Not sure where she’ll go after graduation, but plan is
NOT to return to Penn
Court finds diversity and case continues. But, if statute of limitations had not run and the Court had
dismissed with prejudice, she could re-file in state court. Dismissed with prejudice just means you can’t
refile in that Court.
Think of how these factors influenced the Court. What if she lived in student housing? What if the Blue
Cross was required of all students? What if one month after filing the lawsuit she moved back to Erie and
transferred to a Penn school? Even though it’s supposed to be citizenship at the time of the filing of the
suit, it probably would be a pretty significant factor for the Court to consider.
Grab new syllabus off of TWEN

Get Definition of Removal
Cases
Class Notes
Textbook Hypos
Glannon Hypos
Remember, under 8(a)(1), you must claim federal jurisdiction. Can be challenged under Rule 12.
Wednesday, April 21, 2004

Peay v. Bellsouth
See new set of notes.
Osborne v. Bank of the United States, 22 US 738 (1824)
Answers the question of what “arising under” means

John Marshall – says scope of “arising under” is any case where a federal law is an ingredient of the
case.
Until 1875, unless there was a specific statute, Federal Courts did not have statutory jurisdiction. But,
after the Civil War, Federal Powers were expanded under the predecessor of 28 U.S.C. §1331. But, the
Supreme Court has ruled that Congress did not intend to bestow ALL of the Article III, §2 powers upon
the Federal Courts via 28 U.S.C. §1331. So, no one knows exactly where the line is.

Diversity Jurisdiction
In general: defined by who the parties are, not by the subject matter of the complaint.
28 U.S.C. §1332: Diversity of parties
The district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state;
(3) citizens of different States and in which citizens or subjects of a foreign
state are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and
citizens of a State or of different States. For the purposes of this section, section
1335, and section 1441, an alien admitted to the United States for permanent
residence shall be deemed a citizen of the State in which such alien is domiciled.
Remember, that if you want to sue some guy in Europe, you still need a citizen
of a different state in order to establish diversity.
If sum awarded is less than $75K, then court can deny costs to P and make P
pay D's costs. (not including atty's fees)
Corporations are citizens of the state where they are incorporated and where
they have their principle place of business.

Corporations must choose one principle place of business, although there may be several
possible locations. The court can choose either test (seat of power or muscle) for determining
Corp's citizenship, but usually choose the seat of power; the nerve center where the principle
place of business is difficult to determine, as in when a corp has several loci of business dealings
in several states.
Amount in Controversy:
Amount must be more than $75,000.
If P has several claims against one D that add up to more than $75K, then it is okay.
If P has claims against 2 or more Ds, then it depends on whether the liability is joint and
several if the court will allow aggregate amount.
2 Ps CANNOT pool their claims against one D – EACH must satisfy the amount in
controversy limitation.
courts are split on class action suits – some say that each P must satisfy amt in controversy, some
say that the pooled amount is okay. (28 USC §1367 allows whole class to be treated as one party.)

Mas v Perry (1974) – where a husband (France) and wife (Mississippi) sue landlord (LA) for
watching them through double-sided mirrors in their bathroom and bedroom while Mr. Mas was in
school in LA and they lived in Perry's building. D claims no diversity b/c Mrs. Mas is domiciled in
LA. Mrs. Mas did not intend to stay in LA, but also did not intend to return to MS. Court found that
a domiciliary of a state remains so for diversity purposes until she formulates the intent to
permanently remain in another state. Establishes 2 part test for diversity of citizenship:
Taking up residence in a different state AND
having the intention to remain there permanently.
Ankenbrandt v Richards (1992) – where P was ex-wife of D and sued him and his girlfriend for torts
against her children. Question of diversity arose b/c P was citizen of MO, and Ds were citizens of
LA. Ds tried to get removal to state court for lack of diversity b/c of domestic relations exception.
Court recognized the exception existed, but ruled that it did not apply to this case, b/c it was a
child abuse case.
Domestic Relations Exceptions: Common Law exception which says that

diversity jurisdiction does not extend over divorce, alimony, child custody, but
DOES extend over child abuse claims.
Indiana Gas Company v Home Insurance Company (1998, 7th Cir) (Easterbrook opinion) – where
issue of diversity arose b/c the P named several Ds including multiple syndicates of underwriters
in the Insurance company.
Court found that underwriting syndicates are not corporations, but an

unincorporated business entity, and therefore are treated as citizens of every
jurisdiction in which any equity investor or member is a citizen. (this rule also
includes membership associations such as labor unions, joint stock companies,
and joint ventures).

Court also found that at least one member of a syndicate was a citizen of IN,
as the P, so there was not complete diversity. Case dismissed for lack of SMJ.
C. Diversity Jurisdiction (§1332)
1. Requirements; Constitutional/Statutory Basis
• 28 USC § 1332 and Article III, Sec. II provides for original jx in federal DC of all civil actions between,
inter alia, citizens of different states or citizens of a state and citizens of foreign states in which
amount in controversy exceeds $75K.
• Even though not written anywhere, case law reveals that the requirement is complete diversity among
parties.
So you need 1) complete diversity of citizens and 2) amount in controversy>$75k
2. Time to determine diversity
Look to diversity at time complaint is filed.
3. Rationale
Probably routed in early concern about bias towards out of state parties.
Modern advantage of interplay between state and fed procedures, fed judges benefit
from exposure to state law, and fed courts superior to state.
Cons are that diversity cases clog federal court docket and state-state prejudice is
probably not significant anymore.
4. Corporations §1332 (c)(1)
Corporations has dual citizenship where incorporated and where has chief place of
business, based on “nerve” or “muscle” analysis. Where the executive decisions are
made, or where the corp. has most of its assets
5. Partnerships
Partnerships are not considered entities but rather collection of individuals, so citizenship
of each member of partnership must be considered for purposes of establishing
complete diversity.
6. Issue of Domicile –
Domicile is what matters, not residence

A change of domicile requires two elements:
1) taking up residence in a different domicile, with

2) the intention to remain there
a. Mas v. Perry – p. 229

Jean Paul Mas, of France, and Judy Mas, of Mississippi, married in Miss. and teaching in
LA. Sued landlord for being a pervert. AC holds that both are citizens of Miss. for diversity
purposes. To be citizen within §1332 must be both citizen of US and domiciliary of the
State. Citizenship means domicile, mere residence not sufficient. In general, domicile of
wife is deemed that of her husband (!!) but court in this case finds no reason to extend
that where husband is an alien, since it would result in wife losing her US citizenship. As
a student, lacked requisite intention to remain in LA.
Until she acquired a new domicile she remained a domiciliary and citizen of Miss
7. Presence of foreigner §1332 (a)(2,3,4, add.)
• In a suit between citizens of different states, the fact that foreign citizen is a party does
not destroy diversity §1332(a)(3)
o P1 – Ohio, P2 – Canada v. ∆ 1 – NJ, ∆ 2 – Canada. The configuration is
analyzed as if the foreigner were not present.
• Alien admitted to US for permanent residence shall be deemed a citizen of state in which
domiciled §1332 (a)
• Alienage jurisdiction – under §1332(a)(2)
o Fed jur exists where there is a suit btwn a citizen of a state on one side and
foreign countries or citizens therof on the other
o BUT, a suit solely between citizens of foreign countres does not fall w/in
alienage jurisdiction. i.e. a suit btwn citizens of Canada and Mexico
• Americans living abroad there will not be diversity btwn him and an opposing party who
is a citizen of a particular American state
a. Saadeh v. Farouki – p. 236

F, Jordanian citizen residing in MD with permanent resident status, defaults on loan
from S, Greek citizen. While litigation pending, F became citizen of US. (But remember,
citizenship at time of filing is what is relevant.) §1332(a) provides: alien admitted to US for
permanent residence shall be deemed citizen of state in which domiciled. Read literally,
appears to abrogate rule of complete diversity and result in case of alien v. alien. But

intent seems to have been to narrow rather than expand diversity jx. Courts differ as to
how to deal with this, debates about statutory interpretation. This case does not appear to
have a holding, so that’s all for now folks. OK to use statute to restrict diversity; but not to
expand. Other jurisdictions treat it differently.
US citizen domiciled in Md. He wants to sue a foreigner who is a resident alien in Md.
Therefore, the US citizen can bring diversity action in Federal Court. Before the statute,
the lawsuit could be brought. But then Congress amended §1332 to try and treat the
resident alien as a citizen to reduce the number of diversity cases. Aronovsky says “who
cares?” Just wait a day until the guy becomes a US citizen and bring another suit in
either Federal or State court; as long as the SOL has not run.
Test Alert: So, this issue has not been addressed by the Supreme Court so we have to
be able to present both arguments.
8. Amount in Controversy
• §1332 requires amount in controversy may be greater than (not at least!)

$75,000.
• Note that burden on Π is only to show that is may exceed not that it will (but the
court can assign costs if it doesn’t - §1332(b) – rarely used)
• If injunction, courts 1) determine value to Π , 2) determine cost to ∆ , 3)
determine cost/value to party invoking jx and 4) allow jx if any of 1-3 analysis yields
statutory amount.
• Majority of courts apply either 1 or 4
Aggregation
In some circumstances, Π may aggregate claims to reach amount:
1) single Π with 2+ unrelated claims against single ∆ may aggregate,

i. but once a Π has that, he cannot then join another ∆ for less
2) 2 Π with separate and distinct claims where none meet the amount against ∆
may NOT aggregate,
3) 2 Π with related claims and where 1 exceeds and 1 doesn’t may, sometimes,
aggregate,
4) multiple Π or ∆ with single interest may look at value of total interest,
5) in class actions, simply aggregating all member’s claims cannot satisfy amount.

Compulsory Counter-Claims
Despite these common law rules, when Π ’s claim exceeds amount, compulsory
counterclaims may be heard regardless of amount while permissive counterclaims
require independent jx basis.
D. Supplemental Jurisdiction (§1367)

When can a fed ct exercise jurisdiction over a claim when there is no independent basis for
jurisdiction, but it is in the same suit for which there is a claim in which there is an independent
basis?
1. Traditionally, pendent and ancillary jx from common law
• Pendent involved Π asserting jurisdictionally proper claim against nondiverse

party and adding related state law claim (c.f. United Mine Workers v. Gibbs)
• There was a fed question, supplemented by a state claim
• Ancillary involved related claims asserted by ∆ or parties after initial complaint.
Claim added by someone who is not the Π (related claims asserted by additional parties
after the initial complaint)
• There was diversity and added a non-diverse party (the Π wouldn’t be
allowed to bring them in )
• Counter Claim (Rule 13) – no independent jurisdiction over counter-claim, but
ancillary jurisdiction allows it to be brought in
• Impleader (Rule 14)
• Cross-Claim (Rule 14(g))
• Intervention of a right (Rule 24)
2. Merged doctrine required three part analysis:
1) constitutional basis for exercise of jx over related but insufficient claim,

2) congressional intent behind statute granting jx over fed claim,
3) discretionary factors from Gibbs.
3. Statute 28 USC §1367
If Π brings proper fed or diversity claim, such that fed court has original jx, court may
hear all claims that are part of same case or controversy.
• §1367(a) — extends federal jurisdiction up to the limits of the Constitution (pendent

party v. pendent claim no longer matters). “Same case or controversy”
• §1367(b) — limits reach of jurisdiction only in diversity cases — exercise of
jurisdiction must be consistent w/§1332 (diversity statute)

o No supp/need independent jx for claims by Π against persons made parties
by:
 Rule 14 (Impleader)
 Rule 19 (Compulsory Joinder of Parties)
 Rule 20 (Permissive Joinder of Parties)
 Rule 24 (Intervention)
• §1367(c) — gives Ct discretion to hear cases (like Gibbs — but not clear whether list
is illustrative or exhaustive)
o Says that the Ct may decline to exercise j if:
(1) Claim raises a novel or complex issue of state law
(2) The claim substantially predominates over the claim(s) over
which the dc has original jurisdiction
(3) The dc has dismissed all claims over which it has original j
(4) In exceptional circumstances – other reasons
• §1367(d) — Statute of Limitations will be tolled so long as federal court is hearing the
claim, then + 30 days to file state claim (unless State allows longer)
4. Limits
§1367(b) provides supplemental jx shall not extend to certain claims by Π in diversity

cases and §1367(c) allows courts to exercise discretion in declining jx over supplemental
claims.
5. Purpose
To cover parts of cases that, if brought independently, would not fit in DC’s subject matter
jx.
FOR: 1) convenience; 2) preserve the validity of the federal forum
6. “Common Nucleus of Operative Facts” Test (Gibbs)
a. United Mine Workers v. Gibbs (p. 244)

G hired during labor strike to run mine. G brings suit in Tenn. DC for 1) fed claim under
fed statute and 2) state law claim of conspiracy, for which jx based on pendent jx since
both based on same dispute. DC dismissed fed (JNOV on the hauling claim; removal on
the other claim and reduces the punitive damages.) but not state claim, which had no
independent basis for fed jx. Pendent jx requires one constitutional case (not claims), i.e.
state and fed claims must derive from common nucleus of operative fact. SC holds
claims arose from same facts, no error by DC because has pendent jx over state claim
b/c joined with fed. Suggests courts don’t have to exercise supplemental jx even if have
constitutional power to. Aronovsky: Is this a statutory or a constitutional case? At that

time, it was a constitutional case because there was no statute authorizing pendent
jurisdiction. Today, we have §1367, so it would be a statutory issue.
7. Once there is a common nucleus – factors in discretion (§1367c)
So once a common nucleus of operative facts is found – then go to discretion of court

whether to hear it or not. Factors:
1) substantiality and complexity of the separate claims (the federal claim must
be substantial — tail can’t wag the dog)
2) is federal jurisdiction exclusive?
• if the federal claim is exclusive then it makes sense to attach state claims
(otherwise necessarily a two track system)
3) how are the legal issues related — are they intricately involved?
4) have the federal claims been dismissed?
• is it appropriate for federal court to consider state claims if federal claims

have been dismissed (esp. if dismissed at the start of litigation)
• if dismissal of federal claim is on basis of subject-matter jurisdiction — the
court has no discretion, it must dismiss state claims
8. Fed question claims
Codifies pendent juris. So that if there is a fed q and a state q arising from same nucleus
of facts, they could be adjudicated
BUT, under Erie – the fed question will apply fed law and the state claim will apply state
law.
9. Does not affect the need for personal jurisdiction
VI. Removal §1441 (vertical from state to fed)
A. ∆ ’s Power
• ∆ can second-guess Π choice of federal court, forum shop within strict limits, e.g. same
state. This represents an exception to the general principal that the Π is master of his/her claim.
• Can only be invoked by ∆
• Π may never remove even if there is a counter-claim that would work under diversity, or
fed question

1. Rationale
∆ should also have option to choose fed courts since jx intended to protect both parties,
efficiency for courts, fed shouldn’t have to make ruling on state law (Federalism)
Level the playing field (for the ∆ )
a. Pete Rose (not a case we read or discussed)

In the lawsuit btwn MLB and Pete Rose, MLB removes from state court in
Cincinnati, OH to fed court. There would have been an incredible bias if the case
were heard by Pete Rose’s biggest fans. (Just ask Guthrie)
B. Can only go from State to Fed

• Removal is a one-way street from state to fed but not vice-versa. Once removed from state, state
court loses jx.
C. Only where it could have originally been brought

• Removal is only available to ∆ where could originally have been brought in fed court, i.e. doesn’t
expand limits of fed jx, just allows ∆ opportunity.
• And not necessarily available just because suit could have been in fed originally,
• e.g. if ∆ sued in home state may not remove.
• 28 USC §1441(b): diversity case only removable if none of ∆ s is a citizen of state in
which suit brought because local prejudice presumably not an issue.
• §1441(e) provides fed court not precluded from hearing case just because state court lacked jx, thus
remedying earlier impractical common law rule.
D. Procedure For Removal

• Procedure for removal under §1446: ∆ must file notice in DC within 30 days of receiving Π ’s
pleading. State court then automatically loses power over case, although decision not irrevocable.
Π can move in fed court to remand back to state. This procedure eliminates confusion over whose
case it is.
• Fed court can remand part or all claims
E. 28 USC §1441
(a) — authorizes removal for actions which the district courts have original
jurisdiction
(b) — If there is fed question jurisdiction, then its ok;

a diversity case is removable only if none of the parties in interest properly joined and
served as Ds is a citizen of the state in which action is brought
(c) — whenever a separate and independent claim under §1331 is joined w/one
or more otherwise nonremovable claims, the entire case may be removed — federal
question claim + independent state claim (removed, but state claim may be
remanded) (does not apply to all diversity – if 2 claims, and one is against a non-
diverse party, then complete diversity is not met for the whole case)
(d) — any civil action in State court against a foreign state as defined in
§1603(a) may be removed by the foreign state to district court
(e) — Ct to which action is removed is not precluded from hearing and
determining any claim, b/c the State court did not have jurisdiction over that claim.
F. Complete Diversity May Not Be Required at time of Removal

Caterpillar, Inc. v. Lewis (p. 253)
State law claims began in state court. Case removed to fed court without complete diversity. DC
for ∆ . AC vacates for lack of subject matter jx. Issue is whether absence of complete diversity at
time of removal is fatal to federal-court adjudication. SC holds it is not, if fed jx requirements are
met at time judgment is entered. Policy reasons such as cost of retrial seem to control decision.
G. Chicken-Egg; PJ/SMJ
1. Steel Co. v. Citizens for a Better Environment supp
Issue is whether statute authorizes suits for past violations and whether Citizens has standing
to bring action. SC holds that none of relief sought would remedy injury, so lacks standing
and court lacks jx. This is a threshold question and court may not hypothesize subject
matter jx to decide merits.
2. Ruhrgas AG v. Marathon Oil Co. supp
Issue is whether, if Steel Co. requires jx must generally precede merits in decision-making
order, must subject matter precede personal jx analysis? SC holds that there is no
unyielding jx hierarchy. In this case, decide personal jx first.
VII. Choice Of Law – Erie and its Progeny

2 questions:

Horizontal Choice of Law – which State law applies?
Vertical Choice of Law – which law applies when there are two judicial systems in the
same territory (Federal or State)?
Only applies to Diversity – if Federal Question then federal law applies
A. The Rules of Decision Act 28 USC §1652

o The laws of the several states, except where the Constitution or Acts of Congress
otherwise require or provide, shall be regarded as rules of decisions in civil actions in
the courts of the United States, in cases where they apply.
o Purpose: trying to create uniformity between federal and state courts
o There was dispute about what law the fed cts should apply where there is no controlling
constitutional or statutory provision, federal or state; that is, where the law in question is
common law.
B. Rules Enabling Act 28 USC §2072

(a)The Supreme Court shall have the power to prescribe general rules of practice and
procedure and rules of evidence for cases in the United States district courts (including
proceedings before magistrates thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict
with such rules shall be of no further force or effect after such rules have taken effect.
(c)Such rules may define when a ruling of a district court is final for the purposes of appeal
under section 1291 of this title.
C. The Old Approach (Swift v. Tyson)

o The leading pre-Erie case that Erie overrules.
o The Fed. courts are not bound by the state laws
o J. Story saw the law as an ideal entity that was not created, but discovered – search for a
transcendental body of law.
o Interpreted the Rules of Decision Act narrowly- they did not apply to State judicial
decision. Ct. should apply the general common law (not NY law)
o Forum shopping became rampant (Black & White Taxicab)

D. Erie v. Tompkins (p. 265)
1. This doctrine and line of cases only concerns instances where the case is brought
to federal court under §1332 (diversity)
2. Facts
Respondent brought a negligence action against petitioner railroad company seeking

damages for injuries sustained when he was hit by a door projecting from petitioner's train
while he was walking along a railroad right of way.
3. There is no federal common law; State Law governs
The circuit court affirmed judgment in favor of respondent, refusing to consider petitioner's
claim that it was not liable for respondent's injuries under state common law. It held instead
that liability was a question of general law about which federal courts were free to render
independent decisions. On the instant appeal the court reversed and remanded, holding
there was no federal general common law, and that except in matters governed by the
U.S. Constitution or by acts of the U.S. Congress, the law to be applied by federal
courts in any diversity case was the law of the state. In so holding the court overruled
the contrary doctrine of Swift v. Tyson, finding it an unconstitutional assumption of powers
by federal courts that invaded state autonomy and prevented uniformity in administering state
law
4. Significance
the court held that there was no federal general common law, and that except in matters
governed by the U.S. Constitution or by acts of the U.S. Congress, the law to be applied by
the federal courts in diversity cases was the law of the state. Court construes “laws” in the
Rules of Decision Act to include judicial decisions. Furthermore, if the 10th amendment
would prevent Congress from legislating a national law for torts, why should the judiciary
have the power to do so under the guise of “federal common law.”
5. Reed’s Concurrence
Reed argued that the case should be decided solely on the grounds that the Swift
interpretation of the Rule of Decision Act was erroneous, w/o discussing the Constitutionality
of the Swift view. Congress has power to create Courts w/diversity jurisdiction, so Congress

may have power to enact substantive law — b/c line between substance and procedure is
hazy.
6. The Three Prongs of Erie:
STATUTORY INTERPRETATION
 as a result of the realist movement, the notion of “law” had changed since Swift
 law was now seen as made and not discovered
 Ct made law as valuable as legislative law
 error of interpretation would not alone be sufficient to overrule
 super-strong presumption of correctness — if courts get it wrong, the legislature
is always free to change (in this case Swift was 100 years old)
POLICY – THE TWIN EVILS OF ERIE

 Unequal treatment of litigants (See Black & White Taxicab footnote 7 on pp.141
of Glannon)
 Forum shopping
CONSTITUTIONAL ARGUMENT
 Federalism Concerns — ignoring State common law rules invades rights
reserved to the States under the federal system of divided powers — Congress
has no power to declare substantive rules of common law applicable in any State
— and no clause in the Constitution purports to confer such power upon the
federal courts
7. What does Erie actually do?
1. Core primary conduct of case decided by state regulations
2. Other issues to be applied under Erie:
a. burdens of proof - state
b. statutes of limitation - state
c. commencement of case
d. federal courts respect recognized state court privileges
e. jury or judge (federal)

f. choice/conflict of laws (state)
g. choice of forum
h. manner of service (FRCP)
i. forum non conveniens (fed)
8. Preventing Forum Shopping
To prevent litigants from choosing btwn federal and state court based on which system is
more favorable to her substantive case.
9. State does substance, Fed does procedure
But that then begs the question.
Covered by the Rules Enabling Act
10. Only applicable where there is no federal statute
11. Fed must ask what the state Supreme Court would do TODAY!!!
Not 50 years ago. So if only precedent is from a long time ago and thee is reason to
believe the state would change its mind – then go for it.
BUT, some have held that the fed ct should do what the state TC would do – to avoid
forum shopping.
E. Erie’s Progeny
Erie commands the courts to apply state law – but what else must the federal court do?
1. The Outcome Determinative Test (York)
Rule – if following a federal practice not available in state court might “significantly affect
the result of litigation,” the court must apply the state rule instead, to prevent diverse
parties from gaining unfair advantages simply b/c they can choose federal court
So – if it is outcome determinative – use the state rule
Effect of Rule – York broadened the Erie doctrine considerably. York extended the
doctrine well beyond the area in which it is constitutionally compelled by the limits of
federal power. Very difficult not to apply state law – so long as procedural rules have

sanctions, outcome will be affected.
 state procedural law applied in diversity case b/c outcome in fed ct should, as far
at it is bound by rules, be no diff than outcome in state court.
 extremely broad test, sweeps up nearly all procedural rules b/c they will most
likely have an impact on outcome of case
 rejects distinction b/t substantive and procedural law and asks if applying fed
law would change outcome, if so, don’t apply.
a. Guaranty Trust Co. v. York (p. 276) – State Statute of Limitations

Guaranty Trust was trustee for the Van Swerigen Co. VS issues $30 mil in bonds.
VS has financial problems and offers an exchange to its bond holders. Three
bondholders sue and lose. York brings a second suit in federal court (in NY
statute of limitations would probably bar recovery).Petitioner trustee appealed
reversal of a summary judgment that would have barred respondent note holder’s
action for petitioner's breach of trust. The decision was reversed on grounds that a
federal court sitting in diversity was not bound in equity by the state statute of
limitations that barred the suit in the state court. The Court noted that under the
Erie Doctrine, in all cases where a federal court has jurisdiction solely
because of diversity of citizenship, the outcome of the litigation in the federal
court should be substantially the same, so far as legal rules determine the
outcome of a litigation, as it would be if tried in a state court. The doctrine
required the federal diversity court to follow state law, and if the statute of
limitations under state law barred recovery in a state court, the federal court could
not afford recovery. The Court reiterated that the source of substantive rights
enforced by a federal diversity court was state law, and that this law determined
the outcome regardless of the forum or whether the remedy was in law or in
equity.
PP: Certiorari granted to the Circuit Court of Appeals for the Second Circuit to
review the reversal of a summary judgment for petitioner trustee, decided on
grounds that respondent note holder’s suit alleging petitioner's breach of trust was
barred by state statute of limitations, and to determine the binding effect of
state statutes and remedies on a federal diversity court
Significance: The judgment that a federal diversity court was not bound by a state
statute of limitations was reversed. The Court concluded that the federal
diversity courts are required to apply state law to determine the outcome of
litigation, regardless of whether the remedy was in law or in equity.
Respondent note holder’s suit against petitioner trustee arising from an alleged
breach of trust was remanded for further proceedings. The court must obey the
state statute of limitations. J Frankfurter refuses to draw a distinction

between procedure and substance — instead asks if application of state law
leads to a different outcome.
Because of this case, the Supreme Court went through a roughly ten year stretch where
any time federal rules and state rules came into conflict in a diversity action, the Court
held in favor of the state rule.
2. Byrd Balancing Test (Retreat from Outcome Determinative Test)
1) Is the rule bound up with state-created rights and obligations? (what is

substantive / what is procedural?) (See York)
2) form and mode of enforcing these rights — does it make a difference in the
outcome?
3) if the form and mode would lead to a different outcome — what are the different
state and federal interests and how do they balance out?
Test:
1) Federal policy – especially here w/ judge/jury

2) State interest – weak – having the trial judge decide the question of employee
status not strong
3) Probability of outcome-determinative – here not likely
Weighs the substantive interests of the states against the procedural concerns of the federal courts
a. PRO  designed to reduce encroachments on state interests while still

giving credit to federal interests
b. CON  the Byrd test tracks Erie’s federalism concerns, but how do you
determine state interests?
Effect:
State procedural rules that may be outcome determinative are not necessarily
controlling
a. Byrd v. Blue Ridge Rural Electric Cooperative (1958) [281] –

Jury?
Petitioner was employed by a construction company that had contracted with respondent
corporation to build power lines and stations. Petitioner was injured while working and
brought negligence suit against respondent. Respondent claimed that petitioner's remedy
was under the South Carolina Workmen's Comp Act. The court of appeals directed judgment
for respondent. The Supreme Court reversed and remanded. The Court held that petitioner
should have an opportunity to offer his own proof under that interpretation of the statute. The
Court also held that petitioner was entitled to a jury trial, even though under South

Carolina law petitioner would not have been entitled to a jury trial on this issue. The
Court stated that it did not believe that the likelihood of a different result was so strong
as to require the federal practice of jury determination of disputed factual issues to
yield to the state rule in the interest of uniformity of outcome. The Court stated that there
was a strong federal policy against allowing state rules to disrupt the judge-jury relationship in
the federal courts.
PP: Certiorari was granted to the United States Court of Appeals for the Fourth Circuit to
determine whether the court of appeals erred in directing judgment for respondent
corporation in negligence action and to determine whether petitioner was entitled to a jury
trial.
Significance: The Supreme Court reversed the judgment of the court of appeals that
directed a verdict for respondent corporation in negligence action. The Court also held that
petitioner was entitled to a jury trial, even though under state law petitioner would not
have received a jury trial. The Court stated that the federal policy favoring jury
decisions of disputed fact questions should not yield to the state rule.
3. Hanna Test – Twin Aims – Removed FRCP from Erie
o Part I Hanna modified the outcome-determinative test of (York) — “The outcome-

determination test therefore cannot be read w/o reference to the twin aims of the Erie
rule: the discouragement of forum shopping and avoidance of inequitable
administration of the laws”
o Part II the Court noted that the service provision at issue was a Federal Rule of Civil
Procedure officially promulgated by the Supreme Court under the Rules Enabling Act (28
U.S.C. §2072), and implicitly endorsed by Congress.
 In Hanna the Court held that Article III and the Necessary and Proper Clause
provide broad constitutional authority to “make rules governing the
practice and pleading in [federal] courts, which run in turn includes a
power to regulate matters which, though falling w/in the uncertain area
between substance and procedure, are rationally capable of classification
as either.”
a. In English -
[Thus, a Federal Rule, though “procedural” under the first subsection of the REA, is
invalid under the second if it infringes on “substantive rights” — but no Federal Rule has
ever been found invalid under the REA.]

This is only where there is a direct conflict. If there isn’t then look at Byrd balancing
test. (Burlington)
b. Hanna v. Plummer – p. 284 – FRCP Rule 4 issue

The plaintiff, a citizen of Ohio, filed her complaint in the United States District Court for the
District of Massachusetts to recover for personal injuries resulting from an automobile
accident allegedly caused by the negligence of a Massachusetts citizen deceased at the time
of the filing of the complaint. Service was made upon the executor of the deceased by
leaving, in compliance with Federal Civil Procedure Rule 4(d)(1), copies of the summons and
the complaint with the executor's wife at his residence. Because Massachusetts law required
service by "delivery in hand" upon the executor, the District Court entered summary judgment
for defendant
PP:
The District Court entered summary judgment for defendant, and the Court of Appeals for the
First Circuit affirmed. On certiorari, the United States Supreme Court reversed.
Significance:
Rule 4(d)(1) transgressed neither constitutional bounds nor exceeded the congressional
mandate embodied in the Rules Enabling Act, which provides that the rules prescribed by the
Supreme Court for the practice and procedure of the federal district courts in civil actions
shall not abridge, enlarge, or modify "any substantive right." It was further held that the Rule
was the standard against which the District Court should have measured the adequacy of the
service. two purposes of Erie: (1) discourage forum shopping, and (2) avoid inequitable
administration of the law
c. Harlan’s Concurrence
o Established the conduct determinative test
o concurred in the result, but expressed the view that the Court misconceived the
constitutional premises of Erie R. Co. v Tompkins and failed to deal adequately with
those past decisions upon which the courts below relied.
o When deciding whether to apply State or Federal Rules one must “inquire if the choice of
rule would substantially affect those primary decisions respecting human conduct

which our constitutional system leaves to state regulation.” If it would, state law
must be applied.
4. The state’s law to apply is where the federal court sits – so the conflict of laws rules
of the state must be followed
F. The Two Tracks of Analysis

• There are two tracks of analysis when determining if federal or state law applies in diversity
cases.
1) TRACK ONE — Judge-made rules
 If the Rules of Decision Act applies, court must defer to state law
 How do you know? — apply one of 4 tests
a.) Outcome Determinative test (York) — clearly part of the test used (but only
part)
b.) Twin Aims test (York + Hanna) — often used to narrow York
c.) Byrd Balancing Test — sometimes used
d.) Conduct Determinative test (Harlan) — no one applies this test
2) TRACK TWO — Rules made pursuant to an Act of Congress
 double inquiry:
a) what has the Act of Congress allowed?
b) is what the Act allowed constitutional?
 Rules Enabling Act — can’t abridge or modify substantive rights

•Test — if rationally classified as procedural, then constitutionally ok
why not apply one of the above 4 tests?
• Reasons for a looser test:
a) process is different for judge-made rules than rules made pursuant to

an Act of Congress — fact that Congress is more involved suggests that
more lax test is appropriate
b) purpose of FRCP was to create uniformity

G. Statutes – Fed Wins, Choice of Law – State Wins
1. Where there is a direct conflict, federal rule wins (Burlington)
If there is a conflict btwn state and federal rules, the fed rule wins
If both can co-exist then go to Byrd balancing test
a. Burlington Northern Railroad v. Woods p. 296 - Penalty

o Facts: Respondents brought a tort action in Alabama state court to recover damages for
injuries sustained in a motorcycle accident. Petitioner removed the case to a federal
district court having diversity jurisdiction.
o PP: Petitioner, defendant in tort action, sought writ of certiorari to review decision of
United States Court of Appeals for Eleventh Circuit, granting respondents' motion, for
imposition of mandatory affirmance penalty for obtaining stay of judgment, pending
unsuccessful appeal.
o Significance: The court reversed, holding that the mandatory affirmance penalty had
no application to the judgment entered by a federal diversity court because it
conflicted with a federal rule of appellate procedure.
o State Rule – if appellant gets stay of judgment pending appeal and he loses appeal –
10% mandatory penalty. FRAP – judge may impose a penalty (discretionary).
2. If the Fed. Statute covers the point in dispute then follow it (Stewart)
So, if it is a matter of fed policy v. state policy then you look to the other tests; where
there is a direct Congressional statute – then you use that
Stewart Organization, Inc. v. Ricoh (1988) [297] – forum selection clause
Facts: A dealership contract, negotiated by an Alabama dealer and a corporate

manufacturer of copier products with headquarters in New Jersey and significant
corporate operations in New York City's borough of Manhattan, contained a forum-
selection clause providing that "any appropriate state or federal district court" located in
Manhattan would have "exclusive jurisdiction over any case or controversy arising under"
the contract. In September 1984, the dealer brought an action against the
manufacturer in the United States District Court for the Northern District of Alabama, on
both diversity of citizenship and federal question jurisdictional grounds, alleging breach of
the dealership contract, breach of warranty, fraud, and federal antitrust violations arising
out of the dealer-manufacturer contractual relationship. In response, the manufacturer

moved, pursuant to the forum-selection clause, to transfer the action to the United
States District Court for the Southern District of New York, in Manhattan.
o PP: The District Court denied the manufacturer's motion to transfer, refusing to enforce
the forum-selection clause, based in part on its conclusion that state law--in this case,
Alabama law, which deemed such clauses contrary to public policy--governed the
clause's enforceability. On interlocutory appeal, the United States Court of Appeals for
the Eleventh Circuit, on rehearing en banc, reversed the District Court, concluding that
the forum-selection clause was in all respects enforceable generally as a matter of
federal law. On certiorari, the United States Supreme Court affirmed the Court of
Appeals' decision and remanded.
o Significance: it was held that a fed. statute (28 USCS 1404(a) ) governs the decision of
a District Court sitting in diversity whether to give effect to a contractual forum-selection
clause and transfer an action to a venue provided in such clause, and therefore that the
case would be remanded so that the District Court could determine in the first instance
the appropriate effect, under federal law, of the forum-selection clause on the
manufacturer's 1404(a) transfer motion. Federal statute must be followed — covers
the point in dispute, and the section was a valid exercise of Congressional
constitutionally-granted power to run federal judiciary.
Concurrence: Kennedy, Oconner

 While state policies should be weighed in the balance, the authority and
prerogative of the federal courts to determine the enforcement of forum-
selection clauses, as Congress had directed by 1404(a), should be
exercised so that a valid clause is given controlling weight in all but the
most exceptional circumstances.
Dissent: Fucking Scalia (nino needs an ass kickin’)

 (1) the validity of a forum-selection clause does not fall within the scope of
1404(a), and
 (2) that the federal courts could not fashion a valid judge-made procedural rule to
govern the issue consistent with either of the "twin aims," under the rule of Erie
R. Co. v Tompkins,
• (a) discouragement of forum shopping and
• (b) avoidance of inequitable administration of the laws--the failure of
either of which sufficed to warrant the application of state law rather than
federal law.
§1404(a)
allows the district court to transfer the case for the parties’ convenience — and
gives considerable weight to forum-selection clauses.

3. Gasperini v. Center for Humanities p. 297
o Facts: Petitioner journalist was awarded $ 450,000 in compensatory damages by a

federal court jury for the loss of 300 slide transparencies. Respondent's motion for a new
trial was denied. Under the law of NY, appellate cts are empowered to review the size of
jury verdicts and to order new trials when the jury’s award “deviates materially from what
would be reasonable compensation” under the VII amendment.
o PP: The United States Supreme Court vacated the judgment with instructions to the
appellate court to remand the case to the district court to revisit the motion for a new trial.
o Significance: The Court determined that the New York statute could properly be given
effect in federal court, without detriment to U.S. Const., amend VII, if the statutory review
standard was applied by the federal trial court judge, with appellate control of the trial
court's ruling limited to review for abuse of discretion.
4. A fed ct. in diversity must apply horizontal choice of law rules the state court would
(Klaxon)
5. Certification???
The district court hearing the case, can ask the state court to decide an issue
Todd v. Societe BIC (1994) [Supp 36] – State Refused

Certification
o Facts: Two-year-old Tiffany Todd died tragically when four-year-old Cori Smith used a
Bic lighter to start a fire in Tiffany's bedroom. Deceased child's father, on behalf of her
estate, brought action against cigarette lighter manufacturer for negligence and strict
liability after another child used lighter to start fire, resulting in first child's death.
o PP: court granted summary judgment in favor of the defendants. After rehearing the
appeal en banc, a majority of this court concluded that the warning printed on the
lighter--"KEEP OUT OF REACH OF CHILDREN" was adequate, and that summary
judgment on the issue of duty to warn was proper.
o Significance:
 (1) lighter was not unreasonably dangerous under consumer contemplation test;
 (2) consumer contemplation test under Illinois law had to be viewed from vantage
of ordinary consumer, rather than foreseeable user;
 (3) risk-utility test did not apply under Illinois law to lighter that was obviously, but
not unreasonably, dangerous; and (4) warning placed on lighter "KEEP OUT OF
REACH OF CHILDREN" was adequate.
o ***Certification:
 7th cir certified quest to IL sup ct and they rejected, so 7th cir sat en banc to
issue state law and many judges furious b/c total waste of resources for court to
sit en banc when not even creating precedent. Societie Bic
 7th Cir groveled to get Ill Sup Ct to certify quest by showing
• (a) no Il precedent existed to guide the court and
• (b) that the Il Sup Ct’s answer would truly matter in case.

Trans States Airlines v. Tratt and Whitney Canada, Inc. (1996)
[Supp 42] – Certified to IL SC
o Facts: Airline that subleased plane whose engine failed, resulting in in-flight fire and
emergency landing, brought action against engine manufacturer for negligence, breach of
warranty, and strict liability.
o PP: the United States District Court for the Northern District of Illinois, ruled that, under
Illinois law, if engine failure was result of sudden and calamitous breakdown, airline could
seek not only property and personal injury damages but also economic losses.
Manufacturer appealed to of all freeken’ people… Judge Wood!
o Significance:
 (1) question of whether Illinois recognizes sudden and calamitous occurrence
exception to economic loss doctrine was certified to Illinois Supreme Court, and
 (2) question of whether airframe and engine that failed constituted single product
or two distinct products was certified to Illinois Supreme Court.
In ascertaining state law, the fed ct must do what they believe the state ct would do
So they can ask the state for certification, or look to lower cts holdings or policy
III. Personal Jurisdiction

Remember, SMJ deals with whether the Court can hear a particular matter. PJ, on the other hand, deals
with whether the Court can render judgment on this particular person. What are the relevant factors
which the Court must consider in determining PJ?
a. Party’s relationship with the forum? Property and presence in the jurisdiction?
a. What if your only presence in the jurisdiction is the party’s ownership of property there?
b. State protecting its own citizens
c. Property
d. Doing business in the jurisdiction
e. Long Arm Statutes – how far should that reach go?
f. Court administration
g. What other forums are available to the π?
h. Convenience for ∆ .
i. Residence of the ∆ .
j. Applicable law
a. Does the state have an interest in the body of law being interpreted or enforced?
k. Availability of witnesses and other evidence.
l. Where did the cause of action accrue? (Where was the accident?)

Pennoyer v. Neff (1877); (Who Bought the Farm?)
Where the object of an actlon Is to determine the personal rights and obligations of the
parties, service by publication against a nonresident is ineffective to confer jurisdiction upon
the court.
Justice Field’s opinion is the most important part.

P. 84 Notes
1. Look at Facts
a. Neff never received notice.
b.
Class Notes
8 years before Neff realizes his land is occupied by Pennoyer.
Trial Court ruled original judgment invalid due to defective notice by publication. Pennoyer appealed to
Supreme Court which affirmed the judgment.
Friday, March 19, 2004

In Personem
In Rem
Indiviual Rights in an In Rem proceeding – not yet addressed; big impact on issue preclusion.
Quasi-In Rem – either:
a. litigation regarding disputed status of property between 2 known parties (e.g., probate litigation)
b. Use of property as a means to get the ∆ before the Court
Disputed amount limits the litigation. Harris v. Balk
Pennoyer – 2 lawsuits, etc. No personal jurisdiction. Jurisdiction = power. Download class 2 review
slide. Justice Field comments most important part of this case
International Shoe
What did the briefs look like? Shoe brought cases that said it had no presence in the state and that
jurisdicition did to apply. No presence = No Due Process. Both parties were arguing Pennoyer.

Shaffer v Heitner
These 2 cases are monumentally important. Everything that follows on jurisdiction are just variations on
the same theme. WW Volkswagen, etc.
What remains of Pennoyer? It set and framed the original debate. Shoe changed it but it still fit into
Judge Field’s discussion of Due Process. It’s all case law driven. How have the rules been addressed in
a variety of factual settings.
The Line in Pennoyer is bright when dealing with individuals. But, it’s not so clear when determining PJ
over a corporation. Shoe deals with this. But, Shoe does NOT overrule anything in Pennoyer. It just re-
casts and re-interprets Pennoyer. Shoe is an alternative interpretation of the presence test launched by
Pennoyer. But, what is left of the rest of Pennoyer? Shaffer v Heitner helps answer that.
Hess v Pawloski p91
Monday, March 22, 2004

Direct Attack vs Collateral Attack; remember impact of 12(g)
Collateral Attack derives from default judgment in prior case.
PJ can be waived
Evolution of Pennoyer into modern economy.
Bottom Line: All assertions of state court jurisdiction must be evaluated in the highlights of Shoe.
No “special appearance” under Calif. Or Federal Rules.
Shaffer v. Heitner
Buying stock ≠ consent
Not residents
No Delaware conduct
No Delaware statute.
Jurisdiction
Law
Convenience
Grace v. MacArthur; keep this in mind. (∆ served on airplane in flight over Arkansas so as to obtain PJ).
PJ test is the Shoe test today. But, it’s so broad and fact intensive that it requires a case-by-case factual
analysis. Aronovsky is big on factual analysis.
Pennoyer doesn’t work so well in the modern travel age. But Shoe didn’t know about the internet,
websites, email, faxes.
Need to make a table of jurisdiction factors.
Tuesday, March 23, 2004

Purposful availment – Hanson v Denckla
Wednesday, March 24, 2004
Be sure to know the underlying policy considerations of each PJ test; especially Shoe. Convenience to
∆ , foreseeability.
Friday, March 26, 2004

In-class PJ exercise next Wednesday, 3/31/2004; review the worksheet!!
Need to finsih through asignment 8 by Wednesday, 3/30.

Tuesday, March 30, 2004
Pavlovich v. Superior Court (CA 2002) (DVD Copyright Case)
A court may exercise specific jurisdiction over a nonresident ∆ only if:
1. the ∆ has purposefully availed himself or herself of forum benefits;
2. the controversy is related to or arises out of the ∆ ’s contacts with the forum;
3. the assertion of personal jurisdiction would comport with fair play and substantial justice
Pavlovich posted DVD code breaking code on his website; the DVD police sued him in California. In the
Shirley Jones defamation case (Calder v. Jones), Florida writer & publisher were sued in California for
smearing a California actress. In that case, the Court reasoned that the ∆ ’s knew that their actions would
have a dramatically negative impact on the π in California; thus their actions were aimed at the forum.
1. Court’s Effects Test – Tests Effects of ∆ ’s Behavior on Π
a. Purposeful Direction
b. Intentional Harm aimed at the forum
c. “the foreseeability that third parties may use DeCSS to harm the motion picture industry
cannot, by itself, satisfy the express aimin requirement.”
2. Other Factors
a. Web site is like placing a product in the stream of commerce; but without more is not
purposefully aimed at the form state (p. 384)
b. Purposeful availment is close, but ∆ didn’t know that DVD Police were located primarily
in California so can’t prove that he intended to harm them
3. Dissent
a. He knew that entire industries would be affected and that 2 such industries – movies and
computers – were based in California
i. Thus, ∆ ’s actions were deliberately aimed at California and PJ applies per
Shriley Jones case.
Pavlovich Jones
Knew wrongul conduct Knew harm of article on π
Knew license needed Intended article to reach forum
Did not know exactly who/where
Passive Interactive Business w/ Forum

|__^____________________^____________________^___________|
Purposeful Availment of Forum? Contacts? Intent to Harm?

Red Alert – Test Gray Area Hypo – what if Pavlovich earned money by advertising California companies
on his web site? Does this change the contacts analysis? We don’t know; the Court may re-visit this
issue if there is no other forum available.
What is the minimum contacts test – with the state or with the U.S.? We’ll see this in our study of long
arm statutes.
Washington Concrete
Not a lot of case law on General Jurisdiction b/c if you have someone who is big enough for GJ, you
would need a lawsuit where specific jurisd didn’t exist and that’s not likely. ∆ can be sued in state of
incorporation for anything; for persons it’s your state of domicile.
Monday, April 12, 2004

1. Schedule changes
2. Jurisdiction to determine jurisdiction
3. Direct or collateral attack
4. Ins. Co. of Ireland  shows the Court’s remedies for non-compliance
5. Fair discovery process that is ignored my be used to infer that the non-complying party doesn’t
comply because the information is adverse to them.
6. Forum selectin clauses - Carnival
a. Reasonableness of the clasue – pre-printed on a
b. Clause must be consistent with fundamental fairness; was the forum selected just to be
inconvenienet? Was there fraud?
7. If Due Process Caluse of 14A is meant to prevent states from exercising power across state lines;
so how can a party waive?
8. Problems with consent or waiver go away if there is no federal issue at stake
a. Choice of law contracts are different; they define the law that governs the dispute, not the
court which will hear the case
9. Confession of judgment clauses – conditional consent to jurisdiction clauses
10. Two elements that go into the due process analysis:
a. power – What we’ve covered so far
i. Shoe must be met; sufficient minimum contacts; not just transient
ii. Burnham 4-4-1 tie
iii. Notions of consent to the power of a court to adjudicate the rights and
responsibilities of a ∆ .
b. Consent
11. How does a Court exercise jurisdictional power?

a. Must you notify a ∆ that she has been sued?
b. How do you give notice?
c. At what point have you done your best to give notice
d. For a court to effectively exercise jurisdiction:
i. Must comply with Shoe test
ii. Notice sufficient to satisfy the US Constitution and applicable statutes.
e. notice
12. Statutory requirements – long arm statutes
a. What mechanisms has the legislature provided regarding notice?
b. What form does the notice take?
c. How is it delivered to the ∆ ?
13. Is the reach of the long-arm statute consistent with the Constitution?
14. Is the Method of noticing the ∆ constitutional?
15. Pennoyer –
a. primary issue was state’s rights, how far can a state exercise power?
b. Also Notice – Neff couldn’t read, but the notice in the newspaper that Mitchell published
would not have been sufficient anyway because Neff was outside the state.
16. Purpose of notice: Give the other side a chance to defend themselves.
a. So what’s the best way to do this?
i. One way is to require that the ∆ be personally notified
ii. And say that you can’t continue the suit until that person is notified
iii. But, that could lead to undue delays; especially if the person is hiding
iv. What would the standard be? Objective? Or fairness based on the case. Do
you take costs into account?
v. What form of notice works? Is mail OK?
17. Mullane
a. Remember the Pennoyer context: In the 1870’s, in rem only required a notice in the
newspaper
18. ASSIGNMENT 10 DUE TOMORROW.
Tuesday, April 13, 2004

Lesson 11 next time

Role of Jurisdiction
Assuming a Court has the Power of Jurisdiction (Pennoyer); how do they exercise that power? (Notice)
Notice Evaluation
1. Evaluate the Statutory Implications: What is the form and how is it to be effected?
2. Assuming Compliance with the Legislatively Prescrribed Procedure, (as in Mullane), you ask “Is it
Constitutional
3. Notice reasonabley calculated under all the circumstances to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections (Mullane)
4. Must reasonably convey required information, afford reasonable time to apear
5. May consider pecularities of the case
6. Need reasonable means to actually inform absentee
7. Rejects in rem/in personam jusrisdiction (Pennoyer)
8. Notice under Mullane facts:
a. Know persons:
i. Mialing adequate for large group
b. Unknown persons
i. Publication adequate
1. Other means not reasonable
2. Similarly situated to known persons
9. Due process requires reasonable effort to inform; itdoes not require perfection
10. As long as they comply with Mullane, it is up to the states to decide how to handle this.
Rule 4
Rule 4. Summons
(a) FORM. The summons shall be signed by the clerk, bear the seal of the court, identify the court and
the parties, be directed to the defendant, and state the name and address of the plaintiff’s
attorney or, if unrepresented, of the plaintiff. It shall also state the time within which the defendant
must appear and defend, and notify the defendant that failure to do so will result in a judgment by
default against the defendant for the relief demanded in the complaint. The court may allow a
summons to be amended.
(b) ISSUANCE. Upon or after filing the complaint, the plaintiff may present a summons to the clerk for
signature and seal. If the summons is in proper form, the clerk shall sign, seal, and issue it to the
plaintiff for service on the defendant. A summons, or a copy of the summons if addressed to
multiple defendants, shall be issued for each defendant to be served.
(c) SERVICE WITH COMPLAINT; BY WHOM MADE.
(1) A summons shall be served together with a copy of the complaint. The plaintiff is responsible
for service of a sum2 mons and complaint within the time allowed under subdivision (m) and
shall furnish the person effecting service with the necessary copies of the summons and
complaint.

(2) Service may be effected by any person who is not a party and who is at least 18 years of age.
At the request of the plaintiff, however, the court may direct that service be effected by a
United States marshal, deputy United States marshal, or other person or officer specially
appointed by the court for that purpose. Such an appointment must be made when the plaintiff
is authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 or is authorized to
proceed as a seaman under 28 U.S.C. § 1916.
(d) WAIVER OF SERVICE; DUTY TO SAVE COSTS OF SERVICE; REQUEST TO WAIVE.
(1) A defendant who waives service of a summons does not thereby waive any objection to the
venue or to the jurisdiction of the court over the person of the defendant.
(2) An individual, corporation, or association that is subject to service under subdivision (e), (f), or
(h) and that receives notice of an action in the manner provided in this paragraph has a duty
to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify
such a defendant of the commencement of the action and request that the defendant waive
service of a summons. The notice and request
(A) shall be in writing and shall be addressed directly to the defendant, if an individual, or else
to an officer or managing or general agent (or other agent authorized by appointment or
law to receive service of process) of a defendant subject to service under subdivision (h);
(B) shall be dispatched through first-class mail or other reliable means;
(C) shall be accompanied by a copy of the complaint and shall identify the court in which it has
been filed;
(D) shall inform the defendant, by means of a text prescribed in an official form promulgated
pursuant to Rule 84, of the consequences of compliance and of a failure to comply with the
request;
(E) shall set forth the date on which the request is sent;
(F) shall allow the defendant a reasonable time to return the waiver, which shall be at least 30
days from the date on which the request is sent, or 60 days from that date if the defendant
is addressed outside any judicial district of the United States; and
(G) shall provide the defendant with an extra copy of the notice and request, as well as a
prepaid means of compliance in writing.If a defendant located within the United States fails
to comply with a request for waiver made by a plaintiff located within the United States,
the court shall impose the costs subsequently incurred in effecting service on the
defendant unless good cause for the failure be shown.
(3) A defendant that, before being served with process, timely returns a waiver so requested is not
required to serve an answer to the complaint until 60 days after the date on which the request
for waiver of service was sent, or 90 days after that date if the defendant was addressed
outside any judicial district of the United States.
(4) When the plaintiff files a waiver of service with the court, the action shall proceed, except as
provided in paragraph (3), as if a summons and complaint had been served at the time of filing
the waiver, and no proof of service shall be required.
(5) The costs to be imposed on a defendant under paragraph (2) for failure to comply with a
request to waive service of a summons shall include the costs subsequently incurred in
effecting service under subdivision (e), (f), or (h), together with the costs, including a
reasonable attorney’s fee, of any motion required to collect the costs of service.
(e) SERVICE UPON INDIVIDUALS WITHIN A JUDICIAL DISTRICT OF THE UNITED STATES. Unless otherwise provided
by federal law, service upon an individual from whom a waiver has not been obtained and filed,
other than an infant or an incompetent person, may be effected in any judicial district of the
United States:
(1) pursuant to the law of the state in which the district court is located, or in which service is
effected, for the service of a summons upon the defendant in an action brought in the courts of
general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by
leaving copies thereof at the individual’s dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein or by delivering a copy of the
summons and of the complaint to an agent authorized by appointment or by law to receive
service of process.

(f) SERVICE UPON INDIVIDUALS IN A FOREIGN COUNTRY. Unless otherwise provided by federal law, service
upon an individual from whom a waiver has not been obtained and filed, other than an infant or an
incompetent person, may be effected in a place not within any judicial district of the United States:
(1) by any internationally agreed means reasonably calculated to give notice, such as those means
authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents; or
(2) if there is no internationally agreed means of service or the applicable international agreement
allows other means of service, provided that service is reasonably calculated to give notice:
(A) in the manner prescribed by the law of the foreign country for service in that country in an
action in any of its courts of general jurisdiction; or
(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or
(C) unless prohibited by the law of the foreign country, by
(i) delivery to the individual personally of a copy of the summons and the complaint; or
(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the
clerk of the court to
the party to be served; or
(3) by other means not prohibited by international agreement as may be directed by the court.
(g) SERVICE UPON INFANTS AND INCOMPETENT PERSONS. Service upon an infant or an incompetent person in
a judicial district of the United States shall be effected in the manner prescribed by the law of the
state in which the service is made for the service of summons or other like process upon any such
defendant in an action brought in the courts of general jurisdiction of that state. Service upon an
infant or an incompetent person in a place not within any judicial district of the United States shall
be effected in the manner prescribed by paragraph (2)(A) or (2)(B) of subdivision (f) or by such
means as the court may direct.
(h) SERVICE UPON CORPORATIONS AND ASSOCIATIONS. Unless otherwise provided by federal law, service
upon a domestic or foreign corporation or upon a partnership or other unincorporated association
that is subject to suit under a common name, and from which a waiver of service has not been
obtained and filed, shall be effected:
(1) in a judicial district of the United States in the manner prescribed for individuals by subdivision
(e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing
or general agent, or to any other agent authorized by appointment or by law to receive service
of process and, if the agent is one authorized by statute to receive service and the statute so
requires, by also mailing a copy to the defendant, or
(2) in a place not within any judicial district of the United States in any manner prescribed for
individuals by subdivision (f) except personal delivery as provided in paragraph (2)(C)(i)
thereof.
(i) SERVING THE UNITED STATES, ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES.
(1) Service upon the United States shall be effected
(A) by delivering a copy of the summons and of the complaint to the United States attorney for the
district in which the action is brought or to an assistant United States attorney or clerical
employee designated by the United States attorney in a writing filed with the clerk of the court
or by sending a copy of the summons and of the complaint by registered or certified mail
addressed to the civil process clerk at the office of the United States attorney and
(B) by also sending a copy of the summons and of the complaint by registered or certified mail to
the Attorney General of the United States at Washington, District of Columbia, and
(C) in any action attacking the validity of an order of an officer or agency of the United States not
made a party, by also sending a copy of the summons and of the complaint by registered or
certified mail to the officer or agency.
(2)(A) Service on an agency or corporation of the United States, or an officer or employee of the
United States sued only in an official capacity, is effected by serving the United States in the
manner prescribed by Rule 4(i)(1) and by also sending a copy of the summons and complaint
by registered or certified mail to the officer, employee, agency, or corporation.
(B) Service on an officer or employee of the United States sued in an individual capacity for
acts or omissions occurring in connection with the performance of duties on behalf of the
United States—whether or not the officer or employee is sued also in an official capacity—

is effected by serving the United States in the manner prescribed by Rule 4(i)(1) and by
serving the officer or employee in the manner prescribed by Rule 4(e), (f), or (g).
(3) The court shall allow a reasonable time to serve process under Rule 4(i) for the purpose of
curing the failure to serve:
(A) all persons required to be served in an action governed by Rule 4(i)(2)(A), if the plaintiff
has served either the United States attorney or the Attorney General of the United States,
or
(B) the United States in an action governed by Rule 4(i)(2)(B), if the plaintiff has served an
officer or employee of the United States sued in an individual capacity.
(j) SERVICE UPON FOREIGN, STATE, OR LOCAL GOVERNMENTS.
(1) Service upon a foreign state or a political subdivision, agency, or instrumentality thereof shall
be effected pursuant to 28 U.S.C. § 1608.
(2) Service upon a state, municipal corporation, or other governmental organization subject to suit
shall be effected by delivering a copy of the summons and of the complaint to its chief
executive officer or by serving the summons and complaint in the manner prescribed by the
law of that state for the service of summons or other like process upon any such defendant.
(k) TERRITORIAL LIMITS OF EFFECTIVE SERVICE.
(1) Service of a summons or filing a waiver of service is effective to establish jurisdiction over the
person of a defendant (A) who could be subjected to the jurisdiction of a court of general
jurisdiction in the state in which the district court is located, or
(B) who is a party joined under Rule 14 or Rule 19 and is served at a place within a judicial district of
the United States and not more than 100 miles from the place from which the summons issues, or
(C) who is subject to the federal interpleader jurisdiction under 28 U.S.C. § 1335, or
(D) when authorized by a statute of the United States.
(2) If the exercise of jurisdiction is consistent with the Constitution and laws of the United States,
serving a summons or filing a waiver of service is also effective, with respect to claims arising
under federal law, to establish personal jurisdiction over the person of any defendant who is not
subject to the jurisdiction of the courts of general jurisdiction of any state.
(l) PROOF OF SERVICE. If service is not waived, the person effecting service shall make proof thereof to
the court. If service is made by a person other than a United States marshal or deputy United
States marshal, the person shall make affidavit thereof. Proof of service in a place not within any
judicial district of the United States shall, if effected under paragraph (1) of subdivision
(f), be made pursuant to the applicable treaty or convention, and shall, if effected under paragraph (2)
or (3) thereof, include a receipt signed by the addressee or other evidence of delivery to the
addressee satisfactory to the court. Failure to make proof of service does not affect the validity of
the service. The court may allow proof of service to be amended.
(m) TIME LIMIT FOR SERVICE. If service of the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint, the court, upon motion or on its own initiative
after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct
that service be effected within a specified time; provided that if the plaintiff shows good cause for
the failure, the court shall extend the time for service for an appropriate period. This subdivision
does not apply to service in a foreign country pursuant to subdivision (f) or (j)(1).
(n) SEIZURE OF PROPERTY; SERVICE OF SUMMONS NOT FEASIBLE.
(1) If a statute of the United States so provides, the court may assert jurisdiction over property. Notice
to claimants of the property shall then be sent in the manner provided by the statute or by service
of a summons under this rule.
(2) Upon a showing that personal jurisdiction over a defendant cannot, in the district where the action
is brought, be obtained with reasonable efforts by service of summons in any manner authorized
by this rule, the court may assert jurisdiction over any of the defendant’s assets found within the
district by seizing the assets under the circumstances and in the manner provided by the law of
the state in which the district court is located.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 1980, eff. Aug. 1,
1980; Jan. 12, 1983, eff. Feb. 26, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 17, 2000, eff. Dec. 1, 2000.)

The main idea is to save time and money on the process server. Biggest advantage to granting waiver is
that you get extra time to reply. (See rule 12(a) infra)
A lawsuit commences with the filing of a complaint. Whether the time clock for answering the complaint
starts running once the lawsuit commences or only after the ∆ is served is a matter of state law.
Rule 3 has something to do with this.
Do you want to give the adverse party 60 extra days to fight you? Or do you want to fight hard?
Focus on Power (Shoe) Does the Court have power to adjudicte AND Mullane – Adequate Notice.

Monday, April 19, 2004

Waiver of service issues
Get checklist off of TWEN
Rule 4
Look up pcourt utah case in supplement
Due process implications; split in authority
Aggregate claims; nationwide jurisdiction; look at local circuit rulings; the Supreme Court has not ruled on
this yet.
IV. Venue (Which Courthouse?)

Venue is a statutory concept; it does not have a constitutional component. Laws will vary by state.
28 U.S.C. §1391 is the default venue statute.

CIVIL PROCEDURE OUTLINE Section 2 - Pleadings
2. PLEADINGS

a) Notice Pleading FRCP 8(a)
1. Used in Federal and Many State Courts
2. Pleading must merely set forth:
a) Short and plain statement of federal court subject matter jurisdiction
b) “a short and plain statement of the claim showing the Pleader is entitled to relief.” [frcp
8(a)(2)]
c) Demand for judgment for the relief pleader seeks.
3. Note: No requirement to state facts – therefore no need to deal with ultimate vs. evidentiary
facts, etc. Much simpler than code pleading.
b) Code Pleading (i.e. CA, FL)
A Pleader must set forth all facts intended to be proven at trial – the “ultimate facts” of the case.
(a) Code Pleading Requirements
i. Statement of the Facts

1. Must be “Ultimate Facts”
a. Sometimes difficult to define “ultimate” facts
b. Form pleadings avoid this pitfall.
2. Not “Evidentiary Facts”
3. Not “Conclusions of Law”
ii. Constituting a Cause of Action, and

1. Facts that, if true, implicate a body of law giving rise to a remedy
a. Example: tort law, contract law
iii. A Demand for Judgment of Relief the Pleader Seeks

1. Statement of What Π Wants
(b) 8(f) Construction of Pleadings. All pleadings shall be so construed as to do

substantial justice. Liberal interpretation of pleadings is required. Fair and reasonable
Page 60 of 240
inferences must be drawn. Probably wouldn’t work as well in a code pleading

jurisdiction. So, if you think this isn’t met, you file a 12(b)(6) motion.
(c) In Class Example: If the π files a complaint that alleges breach of K but the statute has
run, you cannot assert violation of 8(a)(2) if there is any way to interpret the document
under 8(f) that would result in the π winnning. So, if the π’s complaint states the date of
the K and you can show that as a matter of law the statute had run, they you can file a
motion to dismiss. But if he doesn’t put the date in, you can’t prove it from the face of
the document.
c) Service of process: 'Service of process' refers to a formal delivery of documents that is legally
sufficient to charge the defendant with notice of a pending action. [See Volkswagenwerk
Aktiengesellschaft v. Schlunk (1988) 486 US 694, 699, 108 S.Ct. 2104, 2108]
'Service of process ... is properly regarded as a matter discrete from a court's jurisdiction to adjudicate a
controversy ... (T)he core function of service is to supply notice of the pendency of a legal action, in a
manner and at a time that affords the defendant a fair opportunity to answer the complaint and present
defenses and objections.' [Henderson v. United States (1996) 517 US 654, 671, 116 S.Ct. 1638, 1642
(emphasis added); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. (1999) 526 US 344, 350, 119 S.Ct.
1322, 1327]
d) Summons: “Summons” in a civil action is a document designed to provide notice to the defendant of:
(a) the pendency of a lawsuit against him or her; (b) the limited period of time within which to respond;
and (c) the consequences of failing to make a timely response (Kitty’s note: The King has SUMMONED
you to Court)
e) Complaint -- A civil action is commenced by filing a complaint with the court. [FRCP 3] (Kitty’s
note: the plaintiff has a complaint about the defendant)
f) Claim for Relief: The heart of the complaint is the set of factual allegations that set forth the basis
for relief. The basic requirement is that the complaint contain 'a short and plain statement of the claim
showing that the pleader is entitled to relief.' [FRCP 8(a)] (Kitty’s note: aka “causes of action”)
A claim is the 'aggregate of operative facts which give rise to a right enforceable in the courts.' [Bautista
v. Los Angeles County (9th Cir. 2000) 216 F3d 837, 840 (internal quotes omitted)] There is no limit on
the number or nature of claims that may be alleged: i.e., the party asserting an original claim 'may join ...
as many claims ... as the party has against an opposing party.' [FRCP 18(a); see ¶ 7:135]
g) Answer: Defendant’s response to the Complaint (Kitty’s note: the defendant ANSWERS the
plaintiff’s complaint). An answer should contain whatever denials and defenses are necessary to
controvert the material allegations of the complaint. Its function is to put the case 'at issue' as to all
important matters alleged in the complaint that the defendant does not want to admit.
An answer cannot be used to claim affirmative relief. In federal practice, a counterclaim must be filed (see
¶ 8:256).
h) Affirmative defenses: A defendant's assertion raising new facts and arguments that, if true, will
defeat the plaintiff's or prosecution's claim, even if all allegations in the complaint are true. * Examples of
affirmative defenses include duress and contributory negligence (in a civil case) and insanity and self-
defense (in a criminal case).In addition to admissions and denials, the answer must contain any
affirmative defenses that defendant may have to the plaintiff's claim. The answer must provide fair notice
of any such defense so the plaintiff may conduct discovery and develop any responses to the defense.
Page 61 of 240
[Woodfield v. Bowman (5th Cir. 1999) 193 F3d 354, 362; Federal Election Comm'n v. National Rifle Ass'n
of America (DC Cir. 2001) 254 F3d 174, 189] Rule 8(c).
i) Rule 12(b)--motions to dismiss: While any defense can be raised in the answer, the following
defenses may also be raised by motion to dismiss:
1. lack of subject matter jurisdiction (FRCP 12(b)(1);
2. lack of personal jurisdiction (FRCP 12(b)(2);
3. improper venue (FRCP 12(b)(3);
4. insufficiency of process (FRCP 12(b)(4); ;
5. insufficiency of service of process (FRCP 12(b)(5);;
6. failure to state a claim upon which relief can be granted (FRCP 12(b)(6); (Kitty’s note: this
known as a Demurrer in State Court: basically says “I’ve read your complaint and SO
WHAT?)”; THIS TESTS 8(A)(2) and
7. failure to join a ('necessary' or 'indispensable') party under Rule 19 (FRCP 12(b)(7);.
j) Fact Patterns Favorable to a 12(b)(6) Motion
9(b) complaints requiring greater specificity (fraud or mistake), complicated areas of the law, or law
versus fact; the law says no, or trying to change the law, or a weak claim for punitive damages.
k) Reply
A court mandated response to a motion. suppose the  pleads an affirmative defense asserting new
facts. At common law, the π would have to reply to that. Under the FRCP and most notice pleading
jurisdictions, most stuff stops at the answer. So, no need to respond to new material in an affirmative
defense. But the court can ask for it. So, no right to a reply; just something that you do if the court
requires it. Otherwise, all the new stuff in the affirmative defense is assumed denied. See p. 469 in
Yeazell. “Rule 7(a) requires a reply if the answer contains ‘a counterclaim denominated as such.’ In
other words, a reply is required only if the answer contains a counterclaim that is labeled as a
counterclaim.
l) Rule 7. Pleadings Allowed; Form of Motions

(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as
such; an answer to cross-claim, if the answer contains a cross-claim; a third-party complaint, if a
person who was not an original party is summoned under the provisions of Rule 14; and a thrid-party
answer, if a thrid party complaint is served. No other pleading shall be allowed, except that the court
may order a reply to an answer or a third-party answer.
m) CalTrans (Is Brevity The Soul of a Well Pled Case?)

People ex rel. Department of Transportation v Superior Court
Inadequate factual allegation & failure to implicate an adequate body of law; form pleading was
vague. In a code pleading jurisdiction be sure to have a factual allegation to support each cause
of action.
Page 62 of 240
P. 404 – Π was hit head-on by a car that crossed the dirt median on 101 in Santa Barbara. Π sued
CalTrans but did not specifically state that the lack of a barrier was the cause of the accident which
caused his injuries. The trial court overruled ∆ CalTrans demurrer, stating that form pleading was
“demurrer proof.” ∆ avoided the final judgment rule by filing for a writ of mandamus in CA Court of
Appeals which granted the writ. Good legal strategy by CalTrans to ensure that π stated highly specific
theory of the case as required by CA law. Take away ∆ “wiggle room” on legal theory.
Who was suing whom, and why?
See summary
What form of complaint did the plaintiffs use?

982.1 which is now a 425.11 (I think).
INSERT FORM HERE
How did Caltrans respond to the complaint? What did Caltrans argue in opposition to the
complaint?
They demurred alleging that the complaint did not set forth adequate “circumstances of injury” and
“reasons for liability.”
What was the ruling of the trial court? What was the court’s reasoning?
Overruled the demurrer because it was on a form pleading; the court reasoned that if it was on the form it
must meet minimum standards.
What was the holding of the Court of Appeal? What was the court’s reasoning?
Granted the writ of mandamus because they reasoned that Caltrans had a right to the information
necessary to defend the suit and the facts as stated could be interpreted several ways.
What standard did the Court apply to measure the sufficiency of allegations in the complaint?
In order to be demurrer proof a complaint must contain whatever ultimate facts are essential to state a
cause of action under existing statutes or case law. (p. 405). To satisfty CA CCP § 425.12, the π should
have alleged that the lack of a barrier was the proximate cause of π’s injuries and why. See p. 405.
n) Haddle v. Garrison (The Healthmaster Case)
Π was terminated for cooperating with government probe of fraud by his employer. Π filed a
detailed pleading based on a cause of action narrowly focused on an anti-bellum statute designed
to prevent intimidation of witnesses. Trial Court and Circuit Court of Appeals upheld summary
judgment in favor of ∆ . Supreme Court overturned for social purposes – to prevent witness
intimidation and also for consistency among the Circuits.
P. 409 – Π worked for Healthmaster Corp. for ≈ 10 years. Company went chapter 11 and officers were
indicted. Ousted officers conspired with remaining officer of Healthmaster to fire Haddle because he
complied with a Grand Jury supoena and cooperated with the federal investigation. Haddle sued in
federal court alleging “harm to property” under an old federal statute written after the civil war to prevent
Page 63 of 240
intimidation of freed slaves called to court. District Court sustained ∆ demurrer based on 11th Circuit
precedent which said termination of an “at-will” employee did not constitute “harm to property” under the
statute. U.S. Supreme Court granted certiorari and reversed. Interpretation of “harm” by Supreme Court
was consistent with 1st and 9th Circuits and in harmony with social policy. ∆ ’s opposing motion should
have focused on the potentially bad precedent – lots of people suing for wrongful termination in federal
court.
Lawsuit was brought in Southern District of Georgia; so the pleadings would have been under FRCP –
notice pleading. Introductory statement on p. 410 are to show jurisdiction as required in rule 8(a)(1).
What body of law did Haddle intend to invoke? 1)§ 1985 – law against harm to person or property. So,
he didn’t plead harm to person so he must be pleading harm to property. Default employment status in
Georgia is “at-will.” Why do we care about that? B/C under Georgia law at-will employees have no
property interest. The question is whether he has such a right under federal law.
Defense files for a 12(b)(6) alleging failure to state a claim under 8(a)(1). District Court sustained the
motion. The Court said π was unable to state a claim; the facts he stated did not invoke a valid body of
law. The question of law is does § 1985 say that “at-will” employees have a property interest? No, said
the District Court. The 11th Circuit had already ruled on this so the legal question was easy for the District
Court to answer.
What standard for 8(a)(2) did the court apply? Conley? Under Conley says you don’t dismiss a claim
unless there is no set of facts that the π can offer to make their claim valid. Since the key “at-will” fact
cannot change, the Court dismissed. The Court said that π lost his chance to play in federal court and
they dismissed the state claims without prejudice; so if π desired, he could re-file in statute of limitations.
Haddle alleged that he had a lost a property interest. For purposes of dismissal, isn’t the court supposed
to assume that the facts alleged are true? Fact vs. Law. Court assumes facts are true but does not make
any assumptions about legal conclusions.
Haddle had a good-faith basis to challenge the law. Just like Hart in “Anatomy of a Lawsuit.” He knew
that he’d lose at trial, but hoped that the guest statute issue was ripe for review and over-rule by the
Supreme Court. 11th Circuit panel is bound by precedent decisions. But, the Court sua sponte or the π
could ask for an en banc re-hearing of the case. But, the Court probablyfigured that they should not
waste time since the case law in that Circuit was already decided.
The Supreme Court was probably interested due to split in the Circuits’ interpretation of § 1985(2). Also,
it was an interesting case. Did Haddle’s termination invoke a property right interest under § 1985(2)?
Yes.
This is a chess game. Keep thinking of the next move.
How would you distinguish CalTrans and Haddle?
Caltrans involved a vague complaint that the trial court accepted and the appellate court rejected. Haddle
involved a detailed complaint that the trial and appellate courts rejected but the U.S. Supreme Court
accepted for social purposes. Haddle is about sufficiency of the legal case.
o) Counter Claim: A counterclaim is a claim for affirmative relief asserted by a party (generally the
defendant) against an opposing party (i.e., plaintiff). [See FRCP 13] (Kitty’s note: known as a cross-
complaint in State Court)
This procedure allows--and in some instances may compel--the responding party to resolve in one action
all existing or potential disputes with the opposing party, subject to the limitations of federal jurisdiction.
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II. WORKSHEET: DEVELOPMENT OF PLEADING SYSTEMS

1. What are the potential purposes that could be served by pleading? (1/14/04)
a. Modern
i. Give notice of the nature of the claim
1. RA: notice is most important if the purpose of the civil litigation system is
to dispense justice.
a. More important resolution on merit is, the less important pleading

is and the more important access to justice is (basis for notice
pleading; main factor in notice pleading)
2. Opposing point-of-view is that one should not be able to invoke the legal
system at the drop-of-a-hat. Must be sure that the dispute has some
legal and factual merit.
a. If you take this viewpoint, you mostly care about pleadings and
making sure that the paperwork is correct. (main focus of code
pleading)
ii. Separate disputes over facts from disputes over law.
b. Obsolete
i. State the relevant facts
ii. Narrow the issues to be addressed at later stages of the litigation process
iii. Serve as guides for later discovery and trial (2nd major focus for notice
pleading; guiding he discovery process)
iv. Expose insubstantial claims
c. RA – Key Issue is Gatekeeper Function of the Pleading
i. Pleading is the gateway to discovery which is the gateway to trial.
ii. Collateral issues of pleading set the stakes in the lawsuit. Depending on what
you sue for;the types of relief you seek, punitive, compensatory, attorneys’
fees, insurance coverage. Is there something in the pleading that could lead to
discovery that could lead to costly, embarrasing, or otherwise unwanted public
disclosures.
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d. RA – More Key Issues
i. Look at Rule 9
ii. No best system of pleading; depends on what purpose you think pleading
should serve.
iii. Choices interrelationship of different procedural steps; choices made in drafting

a complaint will affect the entire course of the trial. What did you sue for and
what did you accomplish.
2. English Pleading System: Common Law and Chancery
a. What is a “form of action?”
Under English Royal (Common) Law there were a limited number of wrongs with which the Royal
Courts would concern themselves:
1. Trespass
2. Debt
3. Covenant (K’s)
4. Ejectment
5. Trover and Replevin (Recovery of wrongfully taken property)
6. Assumpsit (Oral Promises)
Each of these writs (summons) was pled on a different form of action with different rules of procedure.
Writs could not be combined.
a. What were the objectives of common law pleading?

i. Give notice of the nature of the claim
ii. Separate disputes over facts from disputes over law.
1. This greatly streamlined the trial and sped up the process.
What was the significance of the form of writ selected by a plaintiff?

Every writ was pled with a different set of procedures and different evidentiary burdens.
Example: Debt writs could be defended with a required number of “oath swearers” coming in to
swear the debtor didn’t owe the money. How hard is it to get a bunch of yahoos to vouch for
you? So creditors began bringing their suits under different forms of action.
What were the forms of response at common law? How did they differ from each other?
i. Dilatory Pleas [Don’t address the merits of the case, similar to 12(b)(1)-(5)] p. 390
1. Challenge jurisdiction (Not Here)
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2. Pleas in suspension (Not Now)

3. Pleas in abatement (Not like this)
ii. Peremptory Pleas (Address Merits of Case)
1. Demurrer (So What?) Similar to 12(b)(6) motion

2. A Traverse (Not True) Similar to denials in answer
3. Confession and Avoidance (Yes, but …) Similar to Affirmative Defense
iii. Big difference in modern pleadings: facts are assumed only for the motion; you can
argue one way in a motion and another way at trial.
How did Chancery (equity) differ from the royal courts?

i. Mostly procedural differences: modes of proof, trial, and relief.
ii. No juries; just the Chancellor and some judges
iii. Allowed specific relief; not just substitutionary
iv. No live testimony; used depositions instead
v. No limit on # of parties to a suit
vi. Π required to state claim that was within Royal power and why common law court could
not hear the case
vii. 7th Amendment preserves (not guarantees) the right to a jury trial. Whatever types of
claims that had a right to jury trial in 1789, those are protected by the U.S. Constitution.
This is where the difference between law and equity becomes important.
What were the drawbacks of the Chancery and common law pleading systems?
Chancery: proceedings took too long. Dickens (Bleak House): “a lawsuit so complicated no man alive
knows what it means.”
Common Law: Jeremy Bentham: “Judge and Company”; too intricate so only lawyers understand and
can use the system.
What is “code pleading?”

Pleader must set forth all facts intended to be proven at trial – the “ultimate facts” of the case.
What is the “Field Code?”

Forerunner of the FRCP. Named after David Henry Field, Dean of the Yale Law School. It was an
attempt to simplify common law procedural rules and merged law and equity. See rule 2 which
abolished single form of pleading. It was the first time such procedural rules were promulgated by the
legislature and not the courts.
What is “notice pleading?” How does it differ from code pleading?
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b. Used in Federal and Many State Courts
c. Pleading must merely set forth “a short and plain statement of the claim showing the Pleader is
entitled to relief.” [FRCP 8(a)(2)]
d. Some basis for relief (notice) versus some valid body of law w/ supporting facts (code)
Is the California state court system a code pleading or notice pleading system? What is the
standard for testing the sufficiency of a complaint in California state court?
Code See p. 398 and “Code Pleading” at 2-I(b) supra.
CA CCP – § 425.10: Complaint requirements(statement of facts and demand for judgment)
CA CCP – § 452: Liberal construction of pleading required.
What is the difference between ultimate facts and evidentiary facts? Under what circumstances
would this distinction be significant? Why?
evidentiary fact (ev-i-den-sh<<schwa>>-ree). 1. A fact that is necessary for or leads to the determination
of an ultimate fact. -- Also termed predicate fact. 2. A fact that furnishes evidence of the existence of
some other fact. -- Also termed evidential fact. 3. See fact in evidence
ultimate fact. A fact essential to the claim or the defense. -- Also termed elemental fact; principal fact.
What policy choices are reflected in Rule 8 of the Federal Rules of Civil Procedure?
Desire to simplify? Not sure …
What is the significance of Conley v. Gibson [never dismiss a claim unless it clearly shows no
valid claim] (p. 401)? Can you reconcile Conley and O’Brien v. Di Grazia [“When a complaint
omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that
those facts do not exist.”](p. 422)?
The former represents judicial reluctance to dismiss claims for procedural issues; every person deserves
their day in court. The latter stands for the proposition that if a party were aware of a fact central to the
case (e.g., if that fact existed), then surely they would introduce it. The two concepts can only reconcile if
the latter case involves facts supportive to one’s stated legal position. In-other-words, parties might easily
suppress facts harmful to their cases. If there is a big gap in your pleading, the court will assume that it
was not an accident and they will infer that you did not intend to bring that claim or argue that point. What
is to be gained by not including additional factual information? These issues should come into play in
situations where you have limited information available and you must draw inferences. It’s risky to try and
see how few words you can put in a (successful) complaint.
What are the three pleading requirements of FRCP Rule 8?

a. Short plain statement of the grounds for jurisdiction
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b. Short and plain statement showing that the pleader is entitled to relief
c. Demand for judgment for the relief the pleader seeks.
2. Bell v. Novick Transfer Co. (Hwy. 101 Vague Tort Claim Case)
Insufficient or vague complaints will not normally be dismissed. If the complaint is vague, ∆
should obtain further information through interrogatories [FRCP 33], not a 12(e) motion for a more
definite statement or 12(b)(6) motion to dismiss.
Summary
p. 18. Π was driving in car with minor child when struck by tractor-trailer truck operated by ∆ trucking
company. Complaint for personal injuries alleged negligence by driver of truck but failed to meet state
standards for specificity, but did meet FRCP 8. ∆ got too cute by half. He removed it to federal thinking
that the claim was not properly stated. But, ∆ forgot that in the move from state to federal, the pleading
rules changed from code to notice. Purpose of FRCP is to give you enough detail to prepare a defense.
This case gives you enough information to know what the π alleges. The detail comes in discovery. As
long as π shows entitlement to relief, it’s ok.
a. What was the lawsuit about?

Personal injury, tort action alleging negligence.
b. How did defendants respond to the complaint?

Motion for dismissal
c. Why did the court deny the defendants’ motions?

Too severe, waste of time, fairness and justice.
d. What does the court’s citation to FRCP Form 9 indicate about its approach to Rule
8?
They will accept a form pleading.
III. RULE 11 and ETHICAL LIMITATIONS
Overview
Rule 8 only requires a “short and plain” statement of facts and courts are reluctant to dismiss claims for
procedural reasons; every person should have their day in court. So, how do courts discipline lawyers
who file frivilous lawsuits? Under Rule 11, lawyers may be punished for misbehavior. This provides a
yardstick for counsel to judge the propriety of their actions. Civil court is largely a self-policing entity. At
least contemporaneously, there is not a high degree of second guessing and scrutiny. Attorneys are
expected to act in good faith and Rule 11 provides a guideline for them to follow.
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Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions
(a) SIGNATURE. Every pleading, written motion, and other paper shall be signed by at least one
attorney of record in the attorney’s individual name, or, if the party is not represented by an
attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone
number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not
be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the
signature is corrected promptly after being called to the attention of the attorney or party.
(b) REPRESENTATIONS TO COURT. By presenting to the court (whether by signing, filing, submitting, or
later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is
certifying that to the best of the person’s knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances,—
(1) it is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or
by a nonfrivolous argument for the extension, modification, or reversal of existing law or
the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so
identified, are likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on a lack of information or belief.
(c) SANCTIONS. If, after notice and a reasonable opportunity to respond, the court determines that
subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an
appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or
are responsible for the violation.
(1) How Initiated.
(A) By Motion. A motion for sanctions under this rule shall be made separately from other
motions or requests and shall describe the specific conduct alleged to violate subdivision
(b). It shall be served as provided in Rule 5, but shall not be filed with or presented to
the court unless, within 21 days after service of the motion (or such other period as the
court may prescribe), the challenged paper, claim, defense, contention, allegation, or
denial is not withdrawn or appropriately corrected. If warranted, the court may award to
the party prevailing on the motion the reasonable expenses and attorney’s fees incurred
in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall
be held jointly responsible for violations committed by its partners, associates, and
employees.
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(B) On Court’s Initiative. On its own initiative, the court may enter an order describing the
specific conduct that appears to violate subdivision (b) and directing an attorney, law
firm, or party to show cause why it has not violated subdivision (b) with respect thereto.
(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited
to what is sufficient to deter repetition of such conduct or comparable conduct by others
similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may
consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into
court, or, if imposed on motion and warranted for effective deterrence, an order directing
payment to the movant of some or all of the reasonable attorneys’ fees and other
expenses incurred as a direct result of the violation.
(A) Monetary sanctions may not be awarded against a represented party for a violation of
subdivision (b)(2).
(B) Monetary sanctions may not be awarded on the court’s initiative unless the court issues
its order to show cause before a voluntary dismissal or settlement of the claims made by
or against the party which is, or whose attorneys are, to be sanctioned.
(3) Order. When imposing sanctions, the court shall describe the conduct determined to
constitute a violation of this rule and explain the basis for the sanction imposed.
(d) INAPPLICABILITY TO DISCOVERY. Subdivisions (a) through (c) of this rule do not apply to disclosures
and discovery requests, responses, objections, and motions that are subject to the provisions of
Rules 26 through 37.
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec.
1, 1993.)
Major Points for Rule 11
1. Filing must be signed
2. Signature attests that signer has personally verified after OBJECTIVELY REASONABLE inquiry:
a. Not filed for improper purposes

b. Is supported by current law or is based on good faith effort to change law
c. Allegations or denials of fact are adequately supported with evidence
3. Must give other side 21 days to review motion for sanctions before filing with court
4. Sanctions are permissive, not compulsive. (Not required).
5. Court may impose sanctions sua sponte without 21 day safe-harbor
6. Cannot levy monetary sanctions on a represented party
7. Rule does not apply to discovery
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Business Guides v. Chromatic Communications Enterprises (Copyright-Copywrong)
The Supreme Court, Justice O'Connor, held that Rule 11 imposed an objective standard of
reasonable inquiry on represented parties who signed papers or pleadings, whether signatures
were voluntary or mandated.
Summary
p. 424. Law firm files copyright action against competitor, claiming that “seeds of misinformation”
deliberately published in BG’s directory also appeared in competitor’s guides. Client and law firm never
checked the facts; judge’s clerk made a few phone calls and determined in 5 minutes that it was a bullshit
claim. When called to explain, lawyers and clients acted like worms and spoke of “coincidence”.
Sanctions levied against client and law firm under Rule 11 upheld by U.S. Supreme Court.
Religious Technology Center v. Gerbode (Scientology Case)
It is within the judge’s discretion under Rule 11 to impose sanctions on lawyers and law firms “for
their part in causing a violation.”
Summary
p. 427. Dianetics / Church of Scientology brought a RICO action against Gerbode who apparently had
been suing them using dummy corporations to shield him from retaliatory litigation. The RTC action
clearly failed to meet the well established RICO guidelines and served no purpose other than to harrass
Gerbode. Court awarded partial attorneys’ fees and, in recognition of the long and acrimonious history of
litigation between the parties, sanctioned the lead law firm which had signed the complaint.
IV. WORKSHEET: RULE 11

1. What is the purpose of Rule 11? What type of behavior does Rule 11 address?
Deterrence; to prevent the filing of groundless papers.
2. Why did the drafters of Rule 11 include the “safe harbor” provision of Rule 11(c)(1)(A)?
To afford parties and counsel ample time to correct innacurate filings before imposition of
sanctions; for fairness.
3. Why did the Magistrate Judge in Business Guides recommend sanctions against the law firm?
Do you agree with the recommendation? Should the client have been sanctioned?
The law firm should have been sanctioned for filing a complaint that lacked a factual basis and
which they made no effort to verify. Yes, they both should have been sanctioned. Probably
Finley Kumble was not sanctioned b/c at the time that firm was dissolving. The Magistrate noted
that:
As to Business Guides:
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1. Business Guides had failed to conduct a proper inquiry with the result that false information
was presented to the court;
2. Business Guides would be responsible for that violation because its officers had signed
papers (affidavits) that were presented to the court;
3. Business Guides failed to make a factual inquiry after the initial errors were brought to their
attention;
4. Business Guides failed to investigate facts prior to either of two early evidentiary hearings,
relying instead on coincidence, rather than figuring out the actual reason for the errors;
As to Finley Kumble;
1. It was o.k. for them to rely on their client’s representations in presenting the matter for initial
review, because of the urgency of the matter and the sophistication of the client;
2. Finley Kumble failed to investigate after discovery of the error with 3 “seeds;”
3. Finley Kumble failed to investigate facts prior to the earlier evidentiary hearings, relying on
the coincidence of the ads;
4. As a result, the court imposed sanction against Business Guides only in the amount of
$13,865.66, the amount of the defendant’s attorney’s fees and out-of-pocket expenses
4. What should the law firm in Business Guides have done differently?
Gain a thorough understanding of the basis for the claim before filing the complaint. This was
very bush league for a big-time law firm like Finly Kumble.
5. Why did the Court issue sanctions against the law firm in Religious Technologies? Do you agree
that the law firm should have been sanctioned? Why or why not?
Because 11(b)(2) does not allow sanctions against a represented party but 11(c)(1)(a) allows
sanctions against a law firm “absent exceptional circumstances.” The judge feld that the lead law
firm was culpable in the filing of an obviously frivolous complaint and that this was just a
continuation of a long history of acrimonius litigation.
6. What was the difference between the bases for sanctions in the Business Guides and Religious
Technologies cases?
In Business Guides, the court awarded attorney fees as the primary sanction; but in Gerbode, the
court, p 428-29 indicates that attorney fees should only be awarded when needed for "effective
deterrence," citing the Advisory Committee Notes to a 1993 Rule Amendment. No sanctions
against represented parties b/c clients presumably don’t know the law and whether there truly is
legal basis for the complaint.
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7. Does Rule 11 permit sanctions for “honest” mistakes or other conduct short of intentional
wrongdoing? Should it? (See note 3(b) on page 432 of the casebook.)
“Objective standard of reasonable care” per Justice O’Connor in Business Guides. Yes, it is the
appropriate standard because a minimal amount of basic preparation should be required. The
filing of the suit was defacto negligence and a waste of everyone’s time and money. Court kept
half the sanctions and client got half in the Gerbode case.
V. RULE 9: DISFAVORED CLAIMS
Overview
Some pleadings require additional information which is why they are said to be disfavored claims. Rule
9(b) Fraud, Mistake, Condition of the Mind. The circumstances of the fraud must be stated with
particularity. The condition of the mind, that is, why you believe that it’s fraud, does not have to be
stated with particularity. But the essence of the charge must be stated with factual particularity. So, your
complaint must state the “what, when, and where” of the statements in contention in factual particularity.
But your conclusion “and she did all this to defraud me” can just be a general statement.
Rule 9. Pleading Special Matters

(a) CAPACITY. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a
party to sue or be sued in a representative capacity or the legal existence of an organized
association of persons that is made a party, except to the extent required to show the jurisdiction
of the court. When a party desires to raise an issue as to the legal existence of any party or the
capacity of any party to sue or be sued or the authority of a party to sue or be sued in a
representative capacity, the party desiring to raise the issue shall do so by specific negative
averment, which shall include such supporting particulars as are peculiarly within the pleader’s
knowledge.
(b) FRAUD, MISTAKE, CONDITION OF THE MIND. In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and
other condition of mind of a person may be averred generally.
(c) CONDITIONS PRECEDENT. In pleading the performance or occurrence of conditions precedent, it is
sufficient to aver generally that all conditions precedent have been performed or have occurred. A
denial of performance or occurrence shall be made specifically and with particularity.
(d) OFFICIAL DOCUMENT OR ACT. In pleading an official document or official act it is sufficient to aver
that the document was issued or the act done in compliance with law.
(e) JUDGMENT. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-
judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it.
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(f) TIME AND PLACE. For the purpose of testing the sufficiency of a pleading, averments of time and
place are material and shall be considered like all other averments of material matter.
(g) SPECIAL DAMAGE. When items of special damage are claimed, they shall be specifically stated.
(h) ADMIRALTY AND MARITIME CLAIMS. A pleading or count setting forth a claim for relief within the
admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some
other ground may contain a statement identifying the claim as an admiralty or maritime claim for
the purposes of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and
Maritime Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for
those purposes whether so identified or not. The amendment of a pleading to add or withdraw an
identifying statement is governed by the principles of Rule 15. A case that includes an admiralty or
maritime claim within this subdivision is an admiralty case within 28 U.S.C. § 1292(a)(3).
(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 30, 1970, eff. July 1,
1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)
Olsen v. Pratt & Whitney Aircraft (Fraud – Company Cons 36 Year Employee Out Of Pension)
When pleading fraud, mistake, or Condition of the Mind, must state claim with particularity.
Special damages claims must be stated specifically. Fed. R. Civ. 9(b) & (g).
Summary
p. 436. 36-year veteran employee is convinced to revoke early retirement benefits and continue working
in exchange for promised job security. Of course, company fires him shortly after obtaining employee’s
waiver of benefits. Employee sues for fraud and trial court dismisses for preemption. 2nd Circuit agrees
that π failed to meet the standard for a fraud complaint under 9(b) and remanded with order for trial court
to give π leave to amend:
1. Detail the statements that the π contends are fraudulent;

2. Identify the speaker;
3. State where and when the statements were made;
4. Explain why the statements are fraudulent.
Leatherman v. Tarrant County (Civil Rights – Suing a Municipality for Invalid Drug Searches)
No Heightened pleading requirements allowed. 8(a) applies unless specifically addressed in Rule
9. But court may tighten up process by requiring REPLY to the answer, in which π would have to
set out the attack on official immunity more specifically. P. 445.
Summary
p. 442. 42 U.S.C. § 1983 as interpreted in Monell, allows victims of civil rights violations alleging
municpal liability to bring action directly against the municipality. In this case, the 5th Circuit imposed
more stringent pleading requirements upon π’s bringing such actions. The Supreme Court ruled that
heightened pleading requirements could not be judicially imposed. Because the municipality had
Page 75 of 240
immunity which they believed made them lawsuit proof, discovery proof, etc. They sought the hightest
level of protection from litigation and they believed that a higher pleading standard would be consistent
with the immunity. The municipality also wanted to shift the burden of proof to the π. Immunity from suit
vs. immunity from liability. The Supreme Court said that the municipality had to respond to the
allegations, regardless of whether they could ultimately be held liable for damages.
Gomez v. Toledo (Civil Rights – Puerto Rican Cop Breaks Code of Silence)
When bringing suit against a public official who has immunity when acting in good faith, π need
not specifically plead bad faith in order to adequately state a claim.
Summary
p. 446. Veteran police officer alleges police misconduct and later testifies for the defense in a criminal
trial, stating that evidence was falsified by other police officers. Officer was re-assigned – probably
constructive termination – and eventually fired. He was later charged with unlawful wiretapping of other
officers’ conversations. He was vindicated and finally won re-instatement with back pay. His suit for
violation of procedural due process was dismissed on the ∆ ’s 12(b)(6) motion which concurred with the
∆ ’s argument that in order to pierce a good faith immunity, π must allege bad faith. First Circuit affirmed
and U.S. Supreme Court reversed, noting that π would likely have very little information regarding ∆ ’s
state of mind prior to the discovery phase of the proceedings.
Class
Whose responsibility was it to anticipate an immunity defense? The Court ruled that it was akin to a
common law confession and avoidance. Under CL (see history of pleadings) the ∆ could plead
confession and avoidance. Affirmative defenses Rule 8(c) must be alleged in the answer – ∆ bears
burden of pleading. Also, the Court was concerned about the ∆ ’s state of mind – no way for π to know
∆ ’s planned defense or good faith argument. As a result, the Court ruled that it was consistent with the
nature of the ∆ to have the ∆ bear the burden of proof for qualified immunity defense. But, π has no
obligation to anticipate such a defense. If Gomez pleaded bad faith on the ∆ , would he be forced to
prove bad faith at trial? Gomez did not plead additional charges b/c he did not want to incur the burden of
production at trial.
Dance of Pleading (Schultea):
Gomez – only needed to plead deprivation of due process under Monell; no heightened pleading
requirement. Good faith/Bad faith is ∆ ’s burden. ∆ would have to address that issue and then ask the
court to require Gomez to reply with specificity as to why he thinks Toledo acted in bad faith. See
pleading requirements of Schultea on pp. 445 451 470. This basically says that you can plead in general
but you must respond to affirmative defenses in detail.Even though heightened pleading requirements are
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not allowed per Supreme Court decision in ________, the 5th circuit gets there through the back door by
using REPLIES; a rarely invoked court-mandated response.
VI. WORKSHEET: RULE 9/ALLOCATION OF BURDENS

2. Why did the drafters of Rule 9(b) require that allegations of fraud or mistake be made
with particularity?
a. Fraud involves a statement about the defendant's morality;
b. The allegation of "fraud" carries with it some stigma--clearly more than the allegation of
negligence;
c. Additionally, with proof of fraud comes a potential entitlement to of punitive damages thereby
increasing the stakes for the defendant; increases scope of discovery.
d. Might not be covered by insurance (intentional torts usually not covered)
e. Could result in recission of K.
3. Olson v. Pratt & Whitney Aircraft
a. Why did Olson sue Pratt & Whitney?

See brief above; fraud.
b. What did the Second Circuit conclude that Olson failed to do in his complaint?
Comply w/ rule 9(b).
c. What did P&W do in response to complaint?

12(b)(6) motion to dismiss for failure to state a cause of action.
d. How did district court rule on the motion

Trial court dismissed the fraud claim for a substantive reason–saying it was preempted
by the Federal ERISA statute.
e. What did Court of Appeal do? On what grounds?

Appellate court agreed with the dismissal, but for a procedural reason–the appellate court
uses Rule 9(b) as the standard for viewing the complaint. Court will always dismiss on
procedural grounds if the court then does not need to reach the substantive grounds
because courts do not want to change the substantive law unless necessary (per
Knipprath). Preemption analysis is complicated and courts will avoid if possible.
f. What did the Court of Appeal say was wrong with the fraud claim as plead?
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The complaint must detail the statements that constitute fraud, identify the speaker of
those statements, tell where and when they were made and explain why the statement is
fraudulent. Most federal courts indicate that fraud must be pleaded in newspaper story
terms–that is the plaintiff must tell the "who, what, when, where, and how" of the fraud.
g. What was the consequence of this decision to the parties??

The Court gave π leave to amend which means that π and ∆ will once again face each
other in court. Because the court is dismissing on procedural grounds, the court does
not really want the case decided on procedural grounds. Rather, all matters should be
decided on substantive grounds if possible.
4. Please review note 6 on page 440. How does the Private Securities Reform Act modify
the effect of Rule 9(b)?
The provisions of Rule 9(b) have been changed substantively in federal securities laws cases.
Note 6, p 440 In recent amendments to federal securities laws, the substantive law now includes
what must be added to a federal complaint under these statutes
5. Who should decide the level of specificity required to state a claim – the courts or the
legislature?
Legislature.
6. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit
a. Who was suing whom, and why?

See brief above.
• Local law enforcement executed two separate search warrants in

two separate incidents, involving forcible entry into a home based on the detection of odors
associated with making drugs. Included claims of homeowner assault, killing pet dogs.
• Plaintiffs sued local officials in their official capacities, and the

county and two cities that employed them.
b. What did the defendants do in response to the complaint?

Motion to dismiss 12(b)(6).
c. What did the Fifth Circuit do? How did the Supreme Court get involved?
Affirmed trial court grant of motion to dismiss. Supreme Court got involved to address
the immunity issue.
d. Why did the Supreme Court reverse the Fifth Circuit?
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Improper judicial action interferes with legislative function.
• What is a “Reply?”
A court mandated response to a motion. suppose the ∆ pleads an affirmative defense asserting
new facts. At common law, the π would have to reply to that. Under the FRCP and most notice
pleading jurisdictions, most stuff stops at the answer. So, no need to respond to new material in
an affirmative defense. But the court can ask for it. So, no right to a reply; just something that
you do if the court requires it. Otherwise, all the new stuff in the affirmative defense is assumed
denied. See Rule 7(a).
• How did the Fifth Circuit address the Leatherman decision through use of the reply?
The Court set forth the requirements of a proper pleading which π failed to meet.
• What does Rule 9 provide regarding: (a) allegations of conditions precedent; (b)
allegations of time and place; and (c) special damages?
A OK to plead generally that all conditions have been met. But, a denial of
performance must be stated specifically.
B Material item.
C Must be pled specifically. Rule 9(g) Special Damage: When items of special
damage are claimed, they must be pled specifically.
• What is the burden of pleading?

One must allege that element of a claim or defense and cannot rely on the other party do so. p.
446.
• What is the burden of production?

At trial one must produce evidence – witnesses, documents, and the like – that tend to
demonstrate the proposition at stake.
• What is the burden of persuasion?

One must persade the trier of fact that one’s version of the facts is more likely than not to be true.
• How are burdens allocated between a plaintiff and a defendant?

Usually all three go together and fall on the π. When information is necessarily within the
knowledge of one party, it is normal to require that party to plead the issue.
Statutory Allocation of Burden: does it allocate burden? When basing a claim on statute, the
statute may allocate burden. If so, then you follow the statute.
• Gomez v. Toledo
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1. Who was suing whom, and why?

See brief above; Gomez brought a due process action against Toledo for damages realized as a
result of Toledo’s punitive dismissal of Gomez from the Puerto Rico Police department.
a. Facts
(1) Plaintiff was a police officer;
(2) Alleged that other police officers were dirty;
(3) Ultimately testified against other officers;
(4) After he did, he was arrested for illegally wiretapping the other officers;
(5) Discharged by police department;
(6) Tried and acquitted;
(7) Was restored to original job with back pay;
(8) Filed federal complaint alleging a denial of his civil rights in failing to provide due process;
b. Supervisor claims that plaintiff must prove absence of good faith;
2. What did the Supreme Court hold regarding the allocation of burdens? What was the
basis for the Court’s decision?
Supreme Court says nformation necessary to support that finding is particularly within the
knowledge of the officer (the defendant);
(1) When information is necessarily within the knowledge of one party, it is normal to require
that party to plead the issue;
(2) Here the Court looks at the Affirmative Defense Rule, Rule 8(c) for this rationale;
o Please review note 2 on page 450. Why do you think that Gomez chose not to simply
amend his complaint and add the bad faith allegation?
Difficulty of proving the point at trial.
o Please review note 4 on page 451. Do you think that plaintiff would be better off under
Shultea than if Gomez had been decided the other way and plaintiff required to plead bad faith? Why or
why not?
No, because π would have no way of showing bad faith without massive discovery to
Page 80 of 240
compare treatment of other officers by Toledo.
ALLOCATION OF BURDENS RECAP

Who Has Burden Of Pleading Contributory Negligence Under Each Statute?
STATUTORY ALLOCATION RULE
1. Statutory Language
a. “If” propositions – Π
b. “But” Exceptions – ∆
STATUTE ONE:
“Persons shall be liable for injuries caused by failure to take reasonable care; provided that no person
shall be liable if the π’s own negligence was the primary cause of the injury.” Π only needs to show
negligence of ∆ .
STATUTE TWO:
“A person who is not himself negligent but who is injured by the negligence of another shall have a cause
of action against the injurer.” Π must prove that he himself is not negligent.
STATUTORY CONSTRUCTION RULE
Party wishing to take advantage of an exception carries the burden of proving the excepting.
COMMON LAW CLAIMS RULE
1. Controlling Precedent
2. Policy Judgments
VII. PLEADINGS SUMMARY

Civil Practice/Jurisdiction
Professor Aronovsky
SCALE I: Spring 2004
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VIII. WORKSHEET: RULE 12 AND PRE-ANSWER MOTIONS

What options are available to a defendant once she is served with a summons and complaint?
To file either a pre-answer motion or an answer. (Or do nothing, which option is not recommended).
1) You can attack the complaint; either substantively or procedurally.
2) You can respond on the merits of the complaint.
3) Do Nothing – not normal, but could do that by stating that no jurisdiction and therefore I won’t
dignify this with a reply. Very high stakes maneuver. Could do this if your client’s threshold of
pain is above the default amount. Save trial costs and let court impose a default judgment.
Class Notes
Rule 12(a) – Shall serve an answer within 20 days. So you must answer or file a motion w/in 20 days.
You can ask for more time, but that is a function of local rules. So, you may ask for another 30 days to
answer. But, you should ask for time to respond so that you have a choice of answer or pre-answer
motion. If you ask them, and the other side objects, you are stuck w/ 20 days unless you go directly to
the court. Almost invariably, the court will agree.
Rule 4(d) gives you 60 days if served by mail.
Cross claim replies, replies ordered by court also required in 20 days
Federal government gets 60 days to respond if they are the ∆ .
If court denies a 12b motion, the answer must be served within 10 days; so if you file a demurrer and it is
overruled, you get 10 days to file your answer.Same for a 12f motion – 10 days to reply.
Rule 12(c)
Rule 12. Defenses and Objections.When and How Presented.By Pleading or Motion.Motion for
Judgment on the Pleadings
(a) WHEN PRESENTED.
(1) Unless a different time is prescribed in a statute of the United States, a defendant shall
serve an answer
(A) within 20 days after being served with the summons and complaint, or
(B) if service of the summons has been timely waived on request under Rule 4(d),
within 60 days after the date whenthe request for waiver was sent, or within 90 days
after that date if the defendant was addressed outside any judicial district of the
United States.
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(2) A party served with a pleading stating a cross-claim against that party shall serve an
answer thereto within 20 days after being served. The plaintiff shall serve a reply to a
counterclaim in the answer within 20 days after service of the answer, or, if a reply is ordered
by the court, within 20 days after service of the order, unless the order otherwise directs.
(3)(A) The United States, an agency of the United States, or an officer or employee of the
United States sued in an official capacity, shall serve an answer to the complaint or crossclaim
— or a reply to a counterclaim—within 60 days after the United States attorney is served with
the pleading asserting the claim.
(B) An officer or employee of the United States sued in an individual capacity for acts or
omissions occurring in connection with the performance of duties on behalf of the United
States shall serve an answer to the complaint or cross-claim— or a reply to a counterclaim—
within 60 days after service on the officer or employee, or service on the United States
attorney, whichever is later.
(4) Unless a different time is fixed by court order, the service of a motion permitted under this
rule alters these periods of time as follows:
(A) if the court denies the motion or postpones its disposition until the trial on the
merits, the responsive pleading shall be served within 10 days after notice of the
court’s action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading
shall be served within 10 days after the service of the more definite statement.
(b) HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a
claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses may at the option of the pleader be made
by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3)
improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state
a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making
any of these defenses shall be made before pleading if a further pleading is permitted. No defense or
objection is waived by being joined with one or more other defenses or objections in a responsive
pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required
to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to
that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the
pleading to state a claim upon which relief can be granted, matters outside the pleading are presented
to and not excluded by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.
(c) MOTION FOR JUDGMENT ON THE PLEADINGS. After the pleadings are closed but within such time as
not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment
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on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all
parties shall be given reasonable opportunity to present all material made pertinent to such a motion
by Rule 56.
(d) PRELIMINARY HEARINGS. The defenses specifically enumerated (1)–(7) in subdivision (b) of this rule,
whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of
this rule shall be heard and determined before trial on application of any party, unless the court orders
that the hearing and determination thereof be deferred until the trial.
(e) MOTION FOR MORE DEFINITE STATEMENT. If a pleading to which a responsive pleading is permitted
is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading,
the party may move for a more definite statement before interposing a responsive pleading. The
motion shall point out the defects complained of and the details desired. If the motion is granted and
the order of the court is not obeyed within 10 days after notice of the order or within such other time
as the court may fix, the court may strike the pleading to which the motion was directed or make such
order as it deems just.
(f) MOTION TO STRIKE. Upon motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the
service of the pleading upon the party or upon the court’s own initiative at any time, the court may
order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter. So, if an allegation is not in the pleading, then no discovery. So you can move to
strike a protion of the complaint so that you don’t have to respond to discovery.
(g) CONSOLIDATION OF DEFENSES IN MOTION. A party who makes a motion under this rule may join
with it any other motions herein provided for and then available to the party. If a party makes a
motion under this rule but omits therefrom any defense or objection then available to the party which
this rule permits to be raised by motion, the party shall not thereafter make a motion based on the
defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the
grounds there stated. So, any motions available at the time you receive the complaint, you can
combine them together. But, if you do make a Rule 12 motion, and you omit any motion then
available, you waive the right to make such motions or object to such motions at any later point. But,
you get a safe harbor under 12(h). Also, if pleadings were not closed yet, the motion was not then
available. So, a 12(c) motion will NEVER be implicated by a 12(g) motion.
Hypo: π files complaint; ∆ files 12(b)(6) which is granted. Π files first amended complaint and ∆ files
another 12(b)(6). Is that precluded by 12(h)? No, b/c the amended complaint was not available last
time.
(h) WAIVER OR PRESERVATION OF CERTAIN DEFENSES. 1/28/04
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process,
or insufficiency of service of process is waived (A) if omitted from a motion in the
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circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule
nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a)
to be made as a matter of course. 20 day window to amend your answer. So, if you are
still in that window, you can add one of these defenses under rule 12. You better include these
as affirmative defenses in your answer or as motions or you lose them.
(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure
to join a party indispensable under Rule 19, and an objection of failure to state a legal defense
to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for
judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action. Must be in the
constitutional and statutory jurisdiction; parties cannot waive the constitution. SMJ is never
waived.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July
1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1,
2000.)
What is a “motion?” What documents usually comprise a motion?

A request to the Court for an order. (See Rule 7). Usually consists of four parts (p. 454):
1. Motion itself (a request for specific relief);
2. Notice of the motion;
3. Affadavits if applicable;
4. Memorandum of law explaining, with reference to supporting authorities, the legal basis of the
motion.
What are the pre-answer motions permitted by Rule 12?

12(b)(1) Lack of jurisdiction over the subject matter
12(b)(2) Lack of jurisdiction over the person
12(b)(3) Improper venue
12(b)(4) Insufficiency of process
12(b)(5) Insufficiency of service of process
12(b)(6) Failure to state a claim upon which relief may be granted.
12(b)(7) Failure to join a necessary party under Rule 19.
12(e) Motion for a more definite statement.
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12(f) Motion to Strike.
What limitations on motions are imposed by Rule 12(g)? What do you think is the purpose of
these limitations?
If you make a Rule 12 motion, you must include all rule 12 motions then available or you waive them.
What is the effect of Rule 12(h) on the ability of a defendant to assert Rule 12 defenses? What do
you think is the purpose of this rule?
12(b)(2) Lack of jurisdiction over the person
12(b)(3) Improper venue
12(b)(4) Insufficiency of process
12(b)(5) Insufficiency of service of process
If you don’t file any of these, you lose them unless you can file under a 15a amendment. Need to be
included in the answer or in the 15a window to amend.
What is the difference between a Rule 12(b)(6) and a Rule 12(c) motion?
Demurrer (state court) and Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (federal
court)
Both of these motions are the legal equivalent of saying "so what?" For example, where a plaintiff files
a complaint, the defendant may file a demurrer to the complaint that argues that the plaintiff is not entitled
to any relief even if one assumes that all of the allegations of the plaintiff's complaint are true. If a
complaint states more than one cause of action, the demurrer may be directed at one or more of the
causes of action. A demurrer or motion to dismiss is typically filed shortly after the filing of a complaint for
the purpose of attempting early resolution of a case without further expense, eliminating at least some of
the causes of action in the complaint, or forcing the plaintiff to amend the complaint with allegations that
may state a claim but be more difficult to prove. Consider the following example. Suppose that a
customer of See's Candies filed a complaint against See's Candies consisting exclusively of an allegation
that she could not determine the filling of a candy by looking at the chocolate coating. A court would
sustain a demurrer to that complaint (or, if brought in federal court, would grant a Rule 12(b)(6) motion to
dismiss), because the customer has not alleged facts entitling her under the law to some remedy against
See's. A plaintiff may also demur to some or all of a defendant's answer, claiming, for example, that
allegations in the answer, even if true, do not constitute a legally cognizable defense to the complaint.
For example, if a defendant who has been sued for assault files an answer claiming that the assault was
justified because the plaintiff's eyes were blue, the plaintiff could successfully demur to that defense in the
answer.
Judgment on the pleadings
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A judgment on the pleadings is based exclusively on the pleadings in a case (complaint, answer, reply
to the answer, if any), i.e. without consideration of any evidence. It is thus similar to a demurrer, except
that a demurrer will be to a particular pleading. For example, a defendant may demur to the plaintiff's
complaint or may wait until after it files its answer and then file a motion for a judgment on the pleadings.
In contrast, a summary judgment (a judgment prior to and without trial) will typically be based both on
pleadings and on evidence presented through declarations, admissions, depositions, or interrogatories.
Four corners only; no new evidence. But 12c covers all pleadings in the case whereas 12(b)(6)
only covers the complaint.
What was basis on which Clinton wanted the court to dismiss the complaint in the motion
described in Chapter 2 of The Power of Procedure?
Clinton filed a 12(c) motion for judgment on the pleadings.
How did Jones respond to the Clinton motion? What was the basis on which Jones argued that
the court should not dismiss her complaint?
Jones filed a memorandum in opposition to Clinton’s 12(c) motion, arguing that Clinton was trying to
change the complaint and reformulate it so that it would fail the heightened pleading standard required by
Rule 9. Jones pointed out that such heightened pleading standard was not required because (p. 25)
“Jones does not allege fraud, or mistake, for which Fed. R. Civ. P. 9 sets forth a heightened pleading
standard. Rather, the allegations here relate to a claim for agarden variety § 1983 calaim based on
outrageous , sexually-related misdeeds.”
What was the tension between substantive law and the law of procedure presented by the Rule
12(c) motion in Jones v. Clinton?
What was the decision of the District Court?
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What standard did the Court apply to its decision on the Rule 12(c) motion?
What was the basis for the Court’s decision?
What did the court mean on page 33 when it observed that “the court must look to the facts
alleged to determine the true nature of the cause of action and whether the action is time-barred”?
What type of motion is brought under Rule 12(e)? What is the purpose of a Rule 12(e) motion?
What type of motion is brought under Rule 12(f)? What is the purpose of a Rule 12(f) motion?
under Rule 12(b)(6), likening it to a failure to allege enough to invoke a body of law. negligence
claim, including negligent misrepresentation. Just has not provided detail required to state a
claim.
Please review the hypotheticals contained in Note 9 on page 456 of the Yeazell casebook.
Page 456 Hypos
Note 9(a), p 456, raise other issues:
a. A sues B, and within the proper time, B moves to dismiss for failure to state a claim which
motion is denied;
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a. Can B move to dismiss for improper venue--No Rule 12(g) permits only one pretrial motion
raising the issues in rule 12. Under Rule 12(h), this motion is waived;
b. Can B move to dismiss for failure to join an indispensable party?

(a) Under Rule 19, all parties necessary to grant complete relief in the action are to be joined;
a. So as to avoid multifaceted litigation over the same topic;
b. If a party who needs to be joined cannot be joined, then under Rule 19(b), the court must
determine if the action can continue in the absence of that party;
c. If the action cannot continue without the omitted party, then the action must be
dismissed;
d. Under Rule 12(g), the motion to dismiss for failure to join an indispensable party cannot
be made in a second motion, but under Rule 12(h)(2) the claim is not waived, because it
can still be made in the answer or by later judgment on the pleadings;
c. Can B move, under Rule 12(e) for a more definite statement; No--Rule 12(g) applies to all of
Rule 12;
d. Can B include the defense of insufficiency of service of process in the Answer;
a. (1) If a motion raising any of the objections in Rule 12(g) is made, then it must include
lack of jurisdiction over the person, improper venue, insufficiency of process or
insufficiency of service of process, or those defenses are waived;
(2) If no motion under Rule 12(g) had been made, then this could be raised in the
answer;
b. The answer to the question is "no;"
e. Can B include the defense of failure to join an indispensable party in the Answer; Yes--
already answered in b. above;
f. Can B move to dismiss for lack of subject matter jurisdiction;
a. Technically no; Rule 12(g) includes the defense of absence of subject matter jurisdiction--
this it must be included in the one--and only one motion;
b. The nature of subject matter jurisdiction, however, is Constitutional and relates to the
Court being a tribunal of limited jurisdiction;
c. Thus, the rules had to leave an escape hatch for want of subject matter jurisdiction;
d. As a result, Rule 12(h) always permits the suggestion of absence of subject matter
jurisdiction to be raised;
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e. It should be done, not by motion, but by suggestion--which would look just like a motion
but would be titled differently;
f. Might also be done by motion for summary judgment;
b. C sues D, and within the proper time D answers, denying the material elements of the
complaint;
1) Following the answer, can D move to dismiss for improper venue; No, Rule 12(h)(1); this
goes back to our notion of personal jurisdiction–once defendant has answered, want of personal
jurisdiction has been waived;
2) Following the answer, how does D raise the issues that have now been waived by failing to
raise them in a motion to dismiss for failure to state a claim? Rule 12(h)(2) says to move
for judgment on the pleadings;
3) Following the Answer, can D move, three months later to amend her answer to include the
defense of improper service of process?—No under 12(h)1; can only do this by amendment
as a matter of course; cannot ask court for permission after time has run to do this.;
Tim’s answer: (a) Rule 12(h) indicates that the defense of improper service of process is NOT
waived if it is included in an amendment "permitted by Rule 15(a) to be made as a matter of
course;" (b) If this amendment was made to an answer 3 months later, it was not made within 20
days and therefore fell outside the "matter of course" language of Rule 15(a); (c) Therefore the
amendment had to be made with leave of court and fall outside the permission of Rule 12(h); (d)
D should not be able to amend in this fashion; (same as my answer only more longwinded).
4) What strategy considerations are involved in raising defenses by motion?
a. On positive side:
i. Easier to do than to answer;
ii. can eliminate the need to answer;
iii. can end case sooner;
b. On the negative side;
i. As notes hint, pre-answer motions are not normally granted;
ii. Thus, can become expense without much benefit;
5) Answer, p 456
a. Assume that the court denies your motions and, for reasons that remain unclear, has not
dismissed the case on the merits for want of federal subject matter jurisdiction;
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b. When must the answer be served? Rule 12(a)(4)--10 days after the court denies the
motion;
c. How is the answer written? Rule 8(b)--this rule contains a lot of information not
necessarily presented in the proper order
IX. RULE 7, PLEADINGS ALLOWED; FORM OF MOTIONS

(a) PLEADINGS. There shall be a complaint and an answer; a reply to a counterclaim denominated as
such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a
person who was not an original party is summoned under the provisions of Rule 14; and a third-
party answer, if a third-party complaint is served. No other pleading shall be allowed, except that
the court may order a reply to an answer or a third-party answer.
(b) MOTIONS AND OTHER PAPERS.
(1) An application to the court for an order shall be by motion which, unless made during a
hearing or trial, shall be made in writing, shall state with particularity the grounds therefor,
and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion
is stated in a written notice of the hearing of the motion.
(2) The rules applicable to captions and other matters of form of pleadings apply to all motions
and other papers provided for by these rules.
(3) All motions shall be signed in accordance with Rule 11.
(c) DEMURRERS, PLEAS, ETC., ABOLISHED. Demurrers, pleas, and exceptions for insufficiency of a
pleading shall not be used.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 28, 1983, eff. Aug.
1, 1983.)
Rule 7.1. Disclosure Statement
(a) WHO MUST FILE: NONGOVERNMENTAL CORPORATE PARTY. A nongovernmental corporate party to an
action or proceeding in a district court must file two copies of a statement that identifies any
parent corporation and any publicly held corporation that owns 10% or more of its stock or states
that there is no such corporation.
(b) TIME FOR FILING; SUPPLEMENTAL FILING. A party must:
(1) file the Rule 7.1(a) statement with its first appearance, pleading, petition, motion, response, or
other request addressed to the court, and
(2) promptly file a supplemental statement upon any change in the information that the
statement requires.
(As added Apr. 29, 2002, eff. Dec. 1, 2002.)
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X. RULE 8. GENERAL RULES OF PLEADING

(a) CLAIMS FOR RELIEF. A pleading which sets forth a claim for relief, whether an original claim,
counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the
grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and
the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the
pleader seeks. Relief in the alternative or of several different types may be demanded.
(b) DEFENSES; FORM OF DENIALS. A party shall state in short and plain terms the party’s defenses to
each claim asserted and shall admit or deny the averments upon which the adverse party relies. If
a party is without knowledge or information sufficient to form a belief as to the truth of an
averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the
substance of the averments denied. When a pleader intends in good faith to deny only a part or a
qualification of an averment, the pleader shall specify so much of it as is true and material and
shall deny only the remainder. Unless the pleader intends in good faith to controvert all the
averments of the preceding pleading, the pleader may make denials as specific denials of
designated averments or paragraphs or may generally deny all the averments except such
designated averments or paragraphs as the pleader expressly admits; but, when the pleader does
so intend to controvert all its averments, including averments of the grounds upon which the
court’s jurisdiction depends, the pleader may do so by general denial subject to the obligations
set forth in Rule 11. In CA, general denial still allowed.
(c) AFFIRMATIVE DEFENSES. In pleading to a preceding pleading, a party shall set forth affirmatively
accord and satisfaction, arbitration and award, assumption of risk, contributory negligence,
discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations,
waiver, and any other matter constituting an avoidance or affirmative defense. When a party has
mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on
terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
(d) EFFECT OF FAILURE TO DENY. Averments in a pleading to which a responsive pleading is required,
other than those as to the amount of damage, are admitted when not denied in the responsive
pleading. Averments in a pleading to which no responsive pleading is required or permitted shall
be taken as denied or avoided.
(e) PLEADING TO BE CONCISE AND DIRECT; CONSISTENCY.
(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of
pleading or motions are required.
(2) A party may set forth two or more statements of a claim or defense alternately or
hypothetically, either in one count or defense or in separate counts or defenses. When two
or more statements are made in the alternative and one of them if made independently
would be sufficient, the pleading is not made insufficient by the insufficiency of one or
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more of the alternative statements. A party may also state as many separate claims or
defenses as the party has regardless of consistency and whether based on legal, equitable,
or maritime grounds. All statements shall be made subject to the obligations set forth in
Rule 11.
(f) CONSTRUCTION OF PLEADINGS. All pleadings shall be so construed as to do substantial justice.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.)
XI. WORKSHEET: ANSWERS AND AFFIRMATIVE DEFENSES

What is an answer? What are the components of an answer?
See Rule 8(b) and “Definitions & Fundamentals” supra.
What choices of response to an averment are available under Rule 8? What are the consequences
of failing to respond to an averment in a manner permitted under Rule 8?
Choices are to admit, deny, or ask for more information. If a required response is not filed, the averment
is deemed admitted.
Is Rule 11 relevant to answers? If so, how?

Yes, see 8(e) supra.
Zielinski v. Philadelphia Piers, Inc., p. 457 (Forked-Tongued Forklift Fiasco)
Truthful but misleading replies are not a good idea! Short, simple complaints and responsive
replies per 8(b).
This just a case of bad cases making bad laws. To understand this case, look at note 3, p 462--what
change in facts would have permitted the court to allow the defendant to stand by its deceptive, but
untruthful denial? The answer to this question explains the case. (There is no answer – it’s a messy case
and the judge relied on equitable estoppel to make things right.)
Facts
1. Plaintiff injured in collision on pier between two fork lifts, one of which was operated by plaintiff;
2. Plaintiff alleged that it was owned by defendant;
3. When defendant got complaint, it sent it to its insurance company;
4. Defendant evidently knew that accident was caused by Carload, a business to whom defendant had
sold the moving of pier items;
5. Carload was also insured by the same insurance company;
6. Defendant did not deny the claim that negligent forklift was owned by defendant--and, in fact, omitted
information in answer to interrogatories which would have given plaintiff a clue;
Page 93 of 240
7. Plaintiff found out at a pretrial conference, presumably after the statute of limitations had run;
8. Court found a violation of rule requiring a more specific answer in cases where part of facts are
admitted and part are not;
9. Court, p 460, also found that equitable principles required that defendant be estopped from denying
that it was the owner/operator because otherwise plaintiff would be denied a cause of action;
a. What court is really doing here, however, is using equity's notion of unjust enrichment;
b. That is--by looking through the relationship among the Pier/Carload and the Insurance Company
and finding that the Insurance Company is the real party that will be paying the claim--thus, it is
equitable to require them to pay, even though the plaintiff technically got the wrong one of their
insureds as defendant;
c. Without the fact that the insurance company was the same for both Philadelphia Piers and
Carload--you could not have gotten to this result;
10. What would plaintiff have to do?
a. Presumably, the only remedy would be under Rule 11;
i. Would have to convince the court that, based on letter of April 29, 1953 to its insurance
company, defendant knew the real facts, and that defendant's conduct, directed by the
insurance company thereafter, was designed to hinder or delay civil litigation;
ii. Damages would be a problem in light of the provision in rule 11 limiting relief to that
which would deter repeat;
iii. See rule 11(b)(4) and then 11(c) and ask for evidentiary sanctions. Non-monetary
sanctions can be evidentiary sanctions as well as monetary payments to the court.
11. After admitting, denying, or indicating a lack of information as to each allegation of the complaint, it is
normal to state the separate defenses--like those contained in Rule 12(b)--in this Answer, there are
none;
12. Because I assumed that all separate defenses were previously made by motion;
13. Are there any separate defenses that are not waived when a motion is made and does not
include a particular defense?
a. Motion to dismiss for failure to state a claim, failure to join an indispensable party can be made in
any responsive pleading--and is not waived, under Rule 12(h)(2);
b. Form 20 in the Supplement shows you how to allege the separate defenses;
Page 94 of 240
14. The conjunctive “and” turns the whole answer. If the complaint, paragraph 5 said “owned, opwrated
OR controlled” instead of “and controlled”, then they would have been forced to answer differently.
COMPLAINT ANSWER TRUE / FALSE
∆ PPI Owned the forklift. Denied in p 5 True; PPI owned the lift.
∆ PPI operated the forklift. Denied in p 5 False, CCI operated it – S. Johnson worked for CCI.
∆ PPI controlled the forklift Denied in p 5 False, CCI controlled it – S. Johnson worked for CCI, not PPI.
Issue: Was ∆ PPI’s denial of p 5 proper under Rule 8(b)? If not, what remedy?
Who was suing whom in Zielinski, and why?

Zielinski was suing Philadelphia Piers b/c he was injured on the dock in a forklift accident.
How did the issue regarding defendant’s denials come to light? What did plaintiff do once it
learned that Johnson was not employed at the time of the accident by Philadelphia Piers?
The case proceeded. P. 457 “Π requests a ruling …” so, they asked for judicial notices.
What was the decision of the District Court?

All of the evasive responses (30 of 35) were deemed admissions and the case proceeded on that basis
(p. 463). See p. 463;
What was the rationale of the court in support of its holding?

the judge thought that the ∆ was totally misleading and that the π should not lose his day in court b/c of
their shenanigans.
Zielinski’s Logic:
1. PPI’s denial of p 5 violated Rule 8(b);
2. Because the denial was improper, it was “ineffective”;
3. Because the denial was “ineffective,” it is as if the denial didn’t exist;
4. Because there was no “effective denial” of p 5, ∆ PPI should be viewed as having admitted p 5;
5. Because ∆ admitted p 5, the jury may be read those facts
Why didn’t π’s lawyer figure out that the denial signaled a problem and that he needed to send
more specific interrogatories?
PRACTICE TIP: Be careful about use of conjunctives; not using short, simple clear lnaguage in
pleadings and discover. Be diligent in following up. Don’t forget to follow rule 8(b).
Please review the hypotheticals contained in note 5 on page 463 of the casebook.
5a. – cannot lie; otherwise you pay the price.
Page 95 of 240
5b. – 11b3 – allege subject to further evidence gathering.
5c. – no problem b/c eyewitness evidence.
What is an affirmative defense? How do you determine whether a defense constitutes an

affirmative defense?
A defendant's assertion raising new facts and arguments that, if true, will defeat the plaintiff's or
prosecution's claim, even if all allegations in the complaint are true. * Examples of affirmative defenses
include duress and contributory negligence (in a civil case) and insanity and self-defense (in a criminal
case).
What rule of the Federal Rules of Civil Procedure addresses affirmative defenses?
Rule 8(c); The rule sets forth some things that are clearly affirmative defenses and then the general
provision: "Any other matter constituting an avoidance or an affirmative defense."
Layman v. Southwestern Bell Telephone Co., (1977) p. 463 Affirmative Defenses - (Ancient
Easement Case)
Facts
a) Plaintiff claimed trespass by the phone company;
b) Defendant denied;
c) At trial, defendant proved that it had acquired an assignment of an easement originally granted to
another utility by owners prior in title to the plaintiff;
d) Court found this to be an affirmative defense by looking at what would have to be shown;
e) p 465--the evidence would be in addition to the plaintiff's evidence and would be in the nature of
a statement that despite the plaintiff's claim, there were other facts–that was–an easement right
by joint agreement-- that showed that the plaintiff's facts should not have their ordinary effect;
i) This is a silly case and should never have arisen;
ii) Look at Rule 8(e)(2) to see what the defense in Layman should have done to avoid the
possibility that what it alleged as a defense would be viewed by the court as an
affirmative defense;
a) Under Rule 8(e)(2) defenses can be set forth alternatively;
b) The fact that statements are made alternatively does not render any alternative of
them insufficient;
Who was suing whom in Layman, for what, and in which court?
Page 96 of 240
Eileen Layman sued the phone company for digging a huge ditch and wrecking trees in her yard.
What was the result in the trial court? What was the argument on appeal?
Summary judgment for the ∆ . Argument on appeal was that the introduction of the easement and
assignment documents constituted affirmative defense and that as an affirmative defense it was not
properly set out as required in their equivalent of rule 8(c). Instead, ∆ pleaded a general defense.
What was the holding of the Missouri Court of Appeals?

They agreed with the π and reversed and for a new trial.
What analysis did the Court of Appeals employ to determine whether the easement was an
affirmative defense? Do you agree with the court’s reasoning? Why or why not?
p. 465 – “the test applied is whether the defendant intends to rest his defense upon some fact not
included in the allegations necessary to support the π’s case.” What was the nature of the surprise?
Was it the existence of the easement? Or the fact that ∆ planned to use the easement as an defense to
the trespass charge.
Please review the hypotheticals contained in note 4 on pages 467-68 of the casebook.
a. no – saying that the dam break was “act of God” isn’t affirmative. Surprise as to the fact or surprise as
to the theory of defense? This is the core of the “surprise” issue in 8(c). 107(b)(1) of CIRCLA (superfund
case), “act of God” is an affirmative defense. If the surprise addresses the underlying facts of the case,
it’s probably not an affirmative defense. But if the focus is on whether it is a reasonably anticipated
defense, then it’s probably an affirmative defense.
b. yes – added fact of child in the way makes it an affirmative defense. If you say “I just exercised
reasonable care” by swerving to avoid the child, then it’s not really an affirmative defense.
c. ?
d. sounds like a general denial
e. probably would need some documents to prove that, so I think it’s affirmative
f. Well, this is a K interpretation issue, so I think maybe it’s affirmative b/c you’d need supporting
evidence?
Affirmative Defense Considerations
NO BRIGHT LINE TEST FOR 8C. READ THE NOTE FROM THE NY COURT. IF YOU PUT IT IN AS
AN AFFIRMTIVE DEFENSE, YOU WON’T LOSE IT BUT YOU MIGHT HAVE TO PROVE IT. See p. 467,
N.Y. Note.
Why would a defendant decide against including an affirmative defense and instead rely on a
denial?
Page 97 of 240
Which one adds your burden of persuasion? If you put it in the defense, you have a burden to prove it.
You have to prove your affirmative defenses. But, in a denial, you don’t have to add facts.
The Power of Procedure: Chapter Four -- The Answer 2/2/04
Why do you think that Clinton included the “general denial” preliminary statement to his answer?
Do you think that including such a statement is a good idea? Why or why not?
Nothing in rule 8 provides for such a general denial. This was included more as a political statement for
the media who would be reading the court papers and reporting on them to the general public.
Rule 8(d) says if there is no pleading or response that you can use to rebut an assertion, it is deemed
denied. So, what authority is there for Clinton to say “sates legal conclusions as to which no response is
required?” There is none. This may be a tactical or media related strategy that leads you to make such a
response. But, the effect might be that you have admitted that assertion in the complaint. The rules say
you should admit or deny assertions in the complaint. There is no provision for such response as given.
See paragraph 58 of Clinton’s answer (p. 57 in Power of Procedure). These paragraphs re-incorporate
previous paragraphs by reference. You need to be sure to respond to these type paragraphs because
they are the equivalent of repeating the denials or statements they refer to.
What is the relationship between admissions in an answer and the scope of discovery? See note
4, page 60.
If you admit a fact in your answer, you can later argue that the other side has no right to discovery related
to that fact. Sometimes parties will admit a relatively minor fact just to cut off inquiry into related matters.
Please review Exercise 4 and be prepared to discuss the exercise in class.

All affirmative defenses share a common element: they all introduce new facts not included in the
complaint. There are basically 3 tests for affirmative defense.
1) Confession & Avoidance – “Yes, but” logic;
2) Surprise – would a well-prepared π’s lawyer be surprised by its improbability;
3) Control of Information – does the defense turn on information uniquely iwthing the control of the
defendant.
Please review Problem 9 on pages 61 and 62 and be prepared to discuss the problem in class.
What would have been the effect if granted of the presidential immunity motion brought by
Clinton?
Page 98 of 240
What was the basis of Jones’ argument that the Clinton proposal would violate Rule 12(g)?
Why did Judge Wright permit Clinton to file two Rule 12 pre-answer motions if he lost on
immunity?
Do you agree with the criticism described at note 1, page 46-47, that the Supreme Court’s decision
on presidential immunity reflected an unrealistic perspective on the demands and potential
abuses of the civil litigation system? Why or why not?
Jones’ Amendment in Clinton v. Jones
Jones’ proposed Amendment 2/4/04. She dropped the defamation claim so that she would not be subject
to wide-ranging discovery regarding her own character and sexual history. She wanted to add some
constitutional claims regarding third-party favoritism – those who slept w/ Clinton were promoted. This
was one way to respond to Judge Wright’s comments regarding the other side’s 12(c) motion. That is,
here sexual harrassment claim was viewed as weak; and this amendment would put the Court on notice
that there really was a triable issue there. By re-framing her argument as a due-process claim, Jones
hoped to widen her discovery and chances of winning a judgment against Clinton. Judge Wright said that
she would not entertain any new theories but that she would allow the Amendment so that she could use
evidence to support her existing claims. Before the Amendment, Jones’ theory was that she was
defamed and sexually harrassed under color of law. Post-amendment, her claim was that Clinton
discriminated against her on the basis of gender and Clinton also discriminated and abused his office as a
matter of course, which third-party discrimination affected me. But for that Amendment, we would never
have heard of Monica Lewinsky and Clinton would never have been impeached. The power of FRE 15(a)
affected the entire nation.
Page 99 of 240
XII. AMENDMENTS
Rule 15. Amended and Supplemental Pleadings

(a) AMENDMENTS. A party may amend the party’s pleading once as a matter of course at any time
before a responsive pleading is served or, if the pleading is one to which no responsive pleading is
permitted and the action has not been placed upon the trial calendar, the party may so amend it
at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading
only by leave of court or by written consent of the adverse party; and leave shall be freely given
when justice so requires. A party shall plead in response to an amended pleading within the time
remaining for response to the original pleading or within 10 days after service of the amended
pleading, whichever period may be the longer, unless the court otherwise orders.
(b) AMENDMENTS TO CONFORM TO THE EVIDENCE. When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon motion of any party at any
time, even after judgment; but failure so to amend does not affect the result of the trial of these
issues. If evidence is objected to at the trial on the ground that it is not within the issues made by
the pleadings, the court may allow the pleadings to be amended and shall do so freely when the
presentation of the merits of the action will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would prejudice the party in maintaining the
party’s action or defense upon the merits. The court may grant a continuance to enable the
objecting party to meet such evidence.
(c) RELATION BACK OF AMENDMENTS. An amendment of a pleading relates back to the date of the
original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the
action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is
asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m)
for service of the summons and complaint, the party to be brought in by amendment (A) has
received such notice of the institution of the action that the party will not be prejudiced in
maintaining a defense on the merits, and (B) knew or should have known that, but for a
mistake concerning the identity of the proper party, the action would have been brought
against the party.
The delivery or mailing of process to the United States Attorney, or United States Attorney’s
designee, or the Attorney General of the United States, or an agency or officer who would have
been a proper defendant if named, satisfies the requirement of subparagraphs (A) and (B) of
Page 100 of 240

this paragraph (3) with respect to the United States or any agency or officer thereof to be
brought into the action as a defendant.
(d) SUPPLEMENTAL PLEADINGS. Upon motion of a party the court may, upon reasonable notice and
upon such terms as are just, permit the party to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened since the date of the pleading sought
to be supplemented. Permission may be granted even though the original pleading is defective in
its statement of a claim for relief or defense. If the court deems it advisable that the adverse party
plead to the supplemental pleading, it shall so order, specifying the time therefor.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 1991, eff. Dec. 1, 1991; Dec. 9, 1991; Apr. 22, 1993, eff. Dec. 1, 1993.)
Prejudice and Relation Back are the two issues we will deal with under rule 15. If a futile claim or a claim
inconsistent w/ Rule 8(b) or if the added claim will be time-barred, then an amended claim may not be
appropriate
Beeck v. Aquaslide ‘N’ Dive Corp., (1977) p. 470 Amendments (Pool Pres Poo-Poos Pleading)
Leave to amend under Rule 15 shall be freely given unless one side will be unfairly prejudiced.
Beeck was severely injured from a fall on a waterslide maintained at a condominium complex;
Condominium association ordered an "Aquaslide" from a local distributor; Distributor forwarded order to
distributor; Distributor sent slide; Installed by homeowners' association employees. Beeck was on a social
outing sponsored by his employer when injured; Following accident, investigation were conducted by
insurance representatives of employer and homeowners' association; These insurers notified defendant
Aquaslide of accident; Aquaslide's own insurance investigator did investigation and concluded that slide
had been manufactured by them; As a result, Aquaslide answered Plaintiff's suit by admitting that it
manufactured the slide; Before being deposed, president of Defendant stopped by site and concluded
that the slide was not an "Aquaslide;" Thereafter, defendant sought to amend its answer to deny
manufacturer;
Simplified Example of What the Pleadings Probably Looked Like

Π’s Complaint ∆ ’s Answer
1. Court has jurisdiction. (Don’t allege PJ; it’s up 1. Insufficient Knowledge [Rule 8(b)]
Page 101 of 240

to ∆ to declare “no PJ”; a declaration of

jursdiction is simply a declaration of SMJ.
2. Π was injured on July xx, 1972 2. Insufficient Knowledge [Rule 8(b)]
3. Deny that the slide was defective; insufficient
3. Π fell off of a defective water slide.
knowledge as to all other facts.
4. ∆ manufactured the defective slide. 4. Deny manufacture of slide.
5. Wherefore, ∆ should pay $2.25mm 5. Deny that relief s/b granted.
Rule 15 Highlights
1. Rule 15 recognizes that parties won't always get it right the first time;
2. As a result, Amendment of pleading is often necessary--this may arise from additional fact
investigation--or may arise from discovery;
a. Rule 15(a) permits a party to amend once, without permission of the court, at any time before a
response is served to the pleading being amended or within 20 days after receipt of a pleading to
which no response is required;
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answer that contains no counterclaim--20 days after receipt;
b. Following this period, the pleading can only be amended upon leave of court--which the rule says
is to be freely granted in the interest of justice; and as we know from Beeck v. Aquaslide,
interest of justice really means without substantial prejudice to the other side;
Statute of Limitations and Rule 15
The difficult issues in dealing with Rule 15 Amendments relate to the running of the Statute of Limitations:
Federal vs. California – No DOE ∆ in Federal
No Doe defendants allowed in Federal Court. Must add additional parties under Rule 15(c)(3) and Relate
Back under Rule 15(c).
Page 102 of 240

What is a Statute of Limitations?

A decision by the Legislature that a particular cause of action must be filed in court within a certain period
of time.
If a pleading is not filed within that time, is the cause of action lost?
No--the cause of action continues, but will not be subject to relief if the defendant chooses to raise the
statute of limitations; in that regard, the statute of limitations is an affirmative defense.
• Every state has discovery periods--tolling provisions and the like;
• But, basically, the statute of limitations requires that cases be filed within a reasonable time;
o This preserves evidence;
o Prevents collusion
o Discourages stale claims;
In Beeck, what time limits were placed on defendant's ability to amend?

(1) Rule 15;
(2) There was no responsive pleading required;
(3) Thus, had to be done by leave of court
What standard for ruling?

(1) The rule says: "shall be granted freely when justice so requires;"
(2) What does court say about that?
(a) P 472--a party should be allowed to test their case on the merits of the action; not on
procedural trickery;
(b) Thus, the party alleging prejudice (the party opposing the amendment) must prove it;
(c) And, the ability to amend is dependent on the trial court's discretion;
i) In exercising that discretion, trial court can search the record for
a) bad faith;
b) undue delay;
c) prejudice;
ii) Is there any question that plaintiff will be prejudiced by this ruling;
a) p 473 plaintiff indicates it will sound the "death knell" to the litigation;
Page 103 of 240

b) district court said it was not sure, although since there were no other parties and statute of
limitations had run, things look bad;
c) How did court answer that;
d) footnote 7, bottom of 474--there was some evidence of fraud in the delivery since plaintiffs
had ordered an "Aquaslide;"
e) maybe others could be prevented from arguing that plaintiff received the correct slide;
iii) The fact that there is prejudice to the plaintiff cannot, however, stand alone;
iv) It must be balanced against what? prejudice to the defendant;
v) When weighed with the defendant's actions, the prejudice to defendant of having to
defend an action with which it had no association is greater than that to the plaintiff;
a) Isn't this how this case differs from Zielinski v. Philadelphia Piers, p 457;
b) There, the prejudice to the defendant was not as great, because the defendant was
represented by an insurer, who also wrote the insurance on the correct defendant;
(3) What is the issue surrounding separate trials, p 474;
(a) Defendant sought a separate trial on the issue of manufacturer;
(b) plaintiff wanted to try the entire case? Why? to put on the plaintiff's injuries, hoping to convince
the jury not to throw out the case because of the severity of the injuries to the plaintiff;
(c) Rule 42(b) permits separate trial when court wants to avoid prejudice or expedite litigation;
(d) Case talks only of expediting--of avoiding the need to put on medical
(e) but that also involves prejudice to defendant--in that plaintiff hope to get weak liability overridden
by extensive injuries;
Both decisions in this case, to permit amendment and to order separate trials, are said to be
decisions within the trial court's discretion; recall what that means to an appellate court?
(1) Doesn't the decision read that the appellate court will presume the correctness of the trial court
and it will be incumbent on the party challenging the trial court to prove it wrong;
(2) In that regard, the appellate court is not looking at the issue independently--it is looking at the
issue assuming that the trial court was correct;
(3) Suppose the judges on the appellate court might have reached a different decision if they had
been deciding it?
(a) They should allow the decision to stand--merely disagreeing with the decision is not enough;
Page 104 of 240

(b) To overturn, the appellate court must find that the trial court abused its discretion;
(c) In that regard then, the decision is not strictly a legal one wherein the appellate court can
substitute its judgment for the judgment of the trial court; if the judgment of the trial court is
permitted under the law, it should be allowed to stand;
The notes following Beeck do not discuss amendment so much as the result in the case;
(1) Note that the extent of Aquaslide's knowledge was probably greater; as it was already aware of
attempts to copy its slides;
(2) But the bottom line is as suggested in note 3, p 476, to require Aquaslide to defend and pay
would require a party which had nothing to do with this loss to make good on it--and in that regard
the case is different from Zielinski, with its common insurance carrier;
Here we had a discussion over which of the cases was correct, Zilenski or Beeck, and what we
actually meant by “correct;”
Relation Back - 15(c) p. 478
An amendment will relate back to the original filing whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading.
The relation back doctrine is based upon the principle that one who has been given notice of litigation
concerning a given transaction or occurrence has been provided with all the protection that the statutes of
limitation are designed to afford.
Thus, if the litigant has been advised at the outset of the general facts from which the belatedly asserted
claim arises, the amendment will relate back even though the statute of limitations may have run in the
interim.
Rule 15(c) Relation Back in Jones v. Clinton

15(a) and 15(c) relationship
Judge Wright in Jones v. Clinton: no amendment allowed for a few reasons (futile, time barred, undue
delay, dilatory, bad faith, Foman, etc.)
Factors to consider when NOT allowing a claim.
Judge Wright allowed Jones’ Amendment for 3rd party favoritism for evidentiary purposes only but it led to
Monica Lewinsky and to Clinton’s impeachment.
a. Why is relation back important?
Page 105 of 240

So that if the statute of limitations runs out while the case is pending, an amendment will relate back
to the filing of the complaint and thus fall within the applicable period of limitations;
b. When will amendments relate back?

(1) it is permitted by the substantive law of the state; why is this provision here? so that rules don't
change substantive state law;
(2) it arises from same conduct, transaction or occurrence set forth or attempted to be set forth in
original pleading;
(3) if new parties are added, the provisions of paragraph (c)(3) are followed;
(4) Both cases, Moore v. Baker, p 477 and Bonerb v. Richard J. Caron Foundation, p 479 deal
with whether the amendment arises from the same conduct, occurrence, or transaction;
(5) Why is it that they reach different results?
(a) One (Moore v. Baker) says that the amended cause of action did not arise from the same
occurrence, while the other says it does;
(b) What does the complaint allege in Moore?
i) P. 477--that Dr. Baker had violated the informed consent law;
ii) presumably and that, as a result, Moore consented to something to which she would not
otherwise have consented;
(c) What does the complaint allege in Bonerb?
i) p 479--that plaintiff was injured while participating in a mandatory exercise program as a

result of the negligence of the defendant in maintaining the basketball court;
(d) In Moore, the court held that Dr. Baker would not be on notice of the amended claim of
medical malpractice merely because he was on notice of the claim of failure to give informed
consent;
(e) In Bonerb, the court held that the Foundation would be on notice of a counseling malpractice
claim because it was aware of the claim that plaintiff was injured by the negligence of
defendant in maintaining the basketball court for plaintiff's mandatory exercise program while
at the clinic;
(6) What is the difference? The Bonerb complaint is less specific in alleging negligence causing the
fall then the Moore complaint in alleging a violation of informed consent;
(a) As the two courts view these complaints--the negligence complaint covers most any act of
legal negligence arising out of the mandatory participation in the basketball game;
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i) The court makes the facts of playing basketball at the clinic at a required program the
operative facts for testing the relation back doctrine;
ii) In Moore, however, the complaint alleged only that the pre-operative procedures were
improperly performed--there was nothing in the complaint alleging any error in the actual
operation or the post-operative care;
(b) What does this tell you?
i) First, cover the entire transaction when your client goes into the transaction well and
comes out harmed; because it may take awhile to find out the actual cause of harm;
ii) Plead FACTS; not the legal conclusions from those facts, because it is the pleading of
the entire transaction--the basketball game--that provides the requisite notice;
a) In Moore, the plaintiff pled failure to give informed consent; thus pleading facts by
legal conclusion;
b) If the plaintiff had pleaded that defendant doctor had told plaintiff nothing more than:
"This is a routine operation that should go well--you have nothing to worry about;"
there would be a lack of informed consent--but maybe--the court would say that the
subject matter of the lawsuit was the entire operation--which the court could not say
as the case was pleaded;
c) Think back to Aquaslide--if plaintiff had pleaded more generally--by including all
those in the chain of events--plaintiff would have been better off;
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CIVIL PROCEDURE OUTLINE Section 3 – Pre-Trial Procedure
3. PRE-TRIAL PROCEDURE

a) Discovery: Pretrial discovery is based upon a set of procedures-- depositions, interrogatories,
requests for admission, requests for production or inspection, motions for mental or physical exams, and
subpoenas--that require the opposing party (and nonparties) to turn over documents, things and
information relevant to the claims and defenses alleged in the case. (Kitty’s note: seeking information
which is likely to lead to admissible evidence) (so there)
b) Initial Disclosure: Disclosure is a process by which the parties are automatically required to reveal
to each other certain basic information about the lawsuit at the outset without having been specifically
requested to do so. [FRCP 26(a)(1)-(3)
c) Interrogatory: An interrogatory is a written question propounded by one party to another party, who
must answer under oath (i.e. verified) and in writing. The question may relate to anything within the
permissible scope of discovery (FRCP 26(b), ¶ 11:610) and the answers are admissible to the extent
permitted by the rules of evidence. [See FRCP 33(a)-(b)]
d) Request For Production of Documents: A party may serve on any other party a request to produce
and permit inspection, copying, testing, etc., of relevant documents and tangible things; or to permit entry
upon land for purpose of inspecting an object or operation thereon. [FRCP 34] Rule 34 requests may be
served on any party to the action. (This includes coparties as well as adverse parties.) [FRCP 34(a)]
e) Requests for Admissions: A request for admission ('RFA') is the procedure whereby one party can
force another party to admit or deny the truth of any relevant fact or the genuineness of any relevant
document. The procedures for propounding and responding to RFAs are set forth in FRCP 36.
f) Depositions: A deposition is testimony taken before trial, under oath, subject to cross examination
and preserved in writing. Under certain circumstances, deposition testimony may be admissible at trial.
[FRCP 30-32]
1. Oral vs. written depositions: The Federal Rules provide for two kinds of depositions: oral
and upon written interrogatories (questions). Oral depositions are far more common.
g) Subpoena: FRCP 45 authorizes issuance of a subpoena commanding the person to whom it is
directed to attend and give testimony or to produce and permit inspection of designated records. [FRCP
45(a)(1)(C)].
A Rule 45 subpoena is the only discovery method by which information may be obtained from a nonparty.
Rule 45 subpoenas permit discovery from nonparties equivalent to discovery from parties under Rule 34.
[See Adv. Comm. Note on 1991 Amendment to FRCP 45]
1. Deposition Subpoena: (Blacks says, “ a writ [the court’s written order] commanding a
person to appear before the court.. . ). (Kitty’s note: a subpoena or subpoena is a writing
from the Court telling an a person to do something or suffer the consequences). A
subpoena is necessary to obtain testimony from anyone who is not a party to the action. The
attendance and testimony of nonparty witnesses at deposition may be compelled by service of a
subpoena. [FRCP 30(a), 45]
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2. Effect of failure to subpoena nonparty witness: The party noticing the deposition of a
nonparty witness is responsible for compelling the witness' attendance. If an unsubpoenaed
witness fails to attend, the court may order the party noticing the deposition to reimburse other
parties for their expenses (including reasonable attorney fees) incurred in appearing for the
deposition. [FRCP 30(g); Greenwood v. Dittmer (8th Cir. 1985) 776 F2d 785, 790-791]
3. Subpoena Duces Tecum: A Subpoena issued by the Court ordering a person/witness
to appear and to being specified documents or records. Aka Subpoena for Production of
Books and Records: The subpoena may command the nonparty to produce books and records
for inspection and copying. (Indeed, in federal practice, this is the only method by which
document inspection may be obtained from nonparties.) [FRCP 45(a)(1)(C)]
h) Summary Judgment: A motion for summary judgment provides a procedure for terminating without
trial actions in which 'there is no genuine issue as to any material fact and ... the moving party is entitled
to judgment as a matter of law.' [FRCP 56(c) (emphasis added)] Liberal pleading rules allow the assertion
of claims and defenses that may have no evidentiary support. A motion for summary judgment 'pierces'
the pleadings and puts the opponent to the test of affirmatively coming forward with sufficient evidence for
its claims or defenses to create a genuine issue for trial. [Celotex Corp. v. Catrett (1986) 477 US 317,
325, 106 S.Ct. 2548, 2554; see also Schwarzer, Hirsch, & Barrans, The Analysis and Decision of
Summary Judgment Motions (1992) 139 FRD 441] . Does the existence or non-existence of a fact change
any element or material issue of the case? Would the outcome of the case change? Clinton v Jones was full of
immaterial facts that could not change the outcome of the case. Moving party still has to show that based on
the facts they are entitled to judgment as a matter of law.
So, if there is no genuine issue of material fact, you don’t automatically get summary judgment. You still have
to show how you win as a matter of law. Here we are dealing with whether there is grounds for summary
judgment. So, in Anatomy, if Roger Graham stipulates that he owned the car, etc. he must still argue that he is
entitled to judgment as a matter of law. Both sides might stipulate that there is no material issue of fact, BUT
they could both interpret the legal ramifications differently. “I think the statute says I win.” “No, you are using
the wrong rule of statutory construction. It really means I win.”
Would a rational trier of fact find that there is enough evidence to conclude that each element has been
proven? There are different burdens for summary judgment – you can produce all kinds of evidence; but at trial
you can only render verdict on the facts adduced at trial. If π meets her burden – that is that a rational jury
could find in her favor based on the evidence. Now the other side has to show that the evidence is not
overwhelming enough to show that it would only be decided in her favor. A rational jury could go either way.
The party with the burden of persuasion must demonstrate to the jury that its version of the facts is more likely
than not true. The burden of production and the burden of persuasion usually go hand-in-hand. You can meet
the burden of production but still lose the case on the burden of persuasion. Tie goes to the party without the
burden.
Rule 56(e) – can’t base motion on personal knowledge. Affadavits must show that the evidence will be
admissible. Also, don’t forget to bring motion for summary adjudication of particular points in addition to your
Page 109 of 240

motion for summary judgment. That way if the case isn’t dismissed, at least you can have some of your points
decided before trial. 56(f) – if you genuinely and properly need more time to prove it, the court can
accommodate you.
Remember, ethical violations are referred to State Bar for discipline.
P. 529, 5(a) – 56(e) requires personal knowledge; so this is inadequate.
b. Too conclusory; affidavit is insufficient on its face doesn’t state basis of knowledge
c. Identification of the defendant; tell how you know the signer is who they say they are. Authenticate and
describe the document and attach a copy. Also state how much the note is for even though it will be in the
facde of the note. Finally, state that there has been no payment on the note.
d. It’s hearsay, but you have an exception. (admission by party opponent).
Reid v San Pedro, cow case. Was it more likely than not that the cow came through one gate or the other.
Coin-toss goes to the ddd.
i) Pre-Trial Conference – There’s lots of stuff, so, pick whichever applies, also FRCP 16 which is
attached:
1. General Considerations: Federal judges may hold scheduling conferences and pretrial
conferences in any action not exempt under local rules. The court must issue orders controlling
the litigation from the outset and after any pretrial conferences. [See FRCP 16(a),(b) & (e)]
2. Purposes: Pretrial conferences and orders may serve several purposes:
i. Expediting The Action;
ii. Establishing Judicial Control Of The Action;
iii. Discouraging Wasteful Pretrial Activities;
iv. Identifying And Narrowing The Issues;
v. Preparing The Action For Trial; And
vi. Facilitating Settlement. [Frcp 16(A)]
3. Case management: Rule 16 empowers the judge to whom the case is assigned to
supervise each stage of the action, including pleadings, discovery and pretrial motions. Thus, the
pace of litigation is set by the court, not by the attorneys.
4. Scheduling orders: Except in categories of actions exempted by local rule, the court is
required to issue a scheduling order, setting time limits on pleadings, pretrial motions and
discovery. [FRCP 16(b)]
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5. Pretrial conferences: Rule 16 also permits the court to hold one or more pretrial
conferences. The lawyers are required to attend, and the court may consider and take action on a
wide variety of pretrial and trial issues. [FRCP 16(a)]
6. Final pretrial conference: If a final pretrial conference is held, it must be scheduled as

close to the time of trial as possible. [FRCP 16(d)] Purpose: The final pretrial conference usually
focuses on two subjects: (1) possible settlement and (2) preparation for trial of the action. [See
Sampson Fire Sales, Inc. v. Oaks (MD PA 2001) 201 FRD 351, 353]; The participants at the final
pretrial conference are expected to formulate a plan for trial, 'including a program for facilitating
the admission of evidence.' [FRCP 16(d)]; Thus, issues regarding foundation and admissibility of
documentary evidence and depositions are normally resolved at the final pretrial conference. This
greatly speeds up the process of introducing exhibits and deposition testimony at trial.
7. Power of Procedure: Chapter Five -- Amendments
a. What was the status of the litigation at the time Jones sought to amend her complaint?
b. What was Jones’ argument in support of her motion for leave to amend?
c. How did the amended complaint differ from the original complaint?
d. Why do you think that Jones wanted to drop her defamation and reputation claims?
e. Why do you think that Jones wanted to add detail to “clarify” her pre-existing equal protection
claim?
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II. Discovery
A Applicable Rules
Discovery can be used to gather informatino about the merits of a suit and to make informed judgments;
or it can be used to run up the other side’s legal bills and wear them down. (“If only he had used his
genius for good instead of evil …”)
Rule 26. General Provisions Governing Discovery; Duty of Disclosure

(a) REQUIRED DISCLOSURES; METHODS TO DISCOVER ADDITIONAL MATTER.
(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the
extent otherwise stipulated or directed by order, a party must, without awaiting a discovery
request, provide to other parties:
(A) the name and, if known, the address and telephone number of each individual likely to
have discoverable information that the disclosing party may use to support its claims or
defenses, unless solely for impeachment, identifying the subjects of the information;
(B) a copy of, or a description by category and location of, all documents, data compilations,
and tangible things that are in the possession, custody, or control of the party and that the
disclosing party may use to support its claims or defenses, unless solely for impeachment;
(C) a computation of any category of damages claimed by the disclosing party, making
available for inspection and copying as under Rule 34 the documents or other evidentiary
material, not privileged or protected from disclosure, on which such computation is based,
including materials bearing on the nature and extent of injuries suffered; and
(D) for inspection and copying as under Rule 34 any insurance agreement under which any
person carrying on an insurance business may be liable to satisfy part or all of a judgment
which may be entered in the action or to indemnify or reimburse for payments made to
satisfy the judgment.
(E) The following categories of proceedings are exempt from initial disclosure under Rule 26(a)
(1):
(i) an action for review on an administrative record;
(ii) a petition for habeas corpus or other proceeding to challenge a criminal conviction or
sentence;
(iii) an action brought without counsel by a person in custody of the United States, a state,
or a state subdivision;
(iv) an action to enforce or quash an administrative summons or subpoena;
(v) an action by the United States to recover benefit payments;
(vi) an action by the United States to collect on a student loan guaranteed by the United
States;
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(vii) a proceeding ancillary to proceedings in other courts; and

(viii) an action to enforce an arbitration award. These disclosures must be made at
or within 14 days after the Rule 26(f) conference unless a different time is set by
stipulation or court order, or unless a party objects during the conference that initial
disclosures are not appropriate in the circumstances of the action and states the
objection in the Rule 26(f) discovery plan. In ruling on the objection, the court must
determine what disclosures—if any—are to be made, and set the time for disclosure.
Any party first served or otherwise joined after the Rule 26(f) conference must make
these disclosures within 30 days after being served or joined unless a different time is
set by stipulation or court order. A party must make its initial disclosures based on the
information then reasonably available to it and is not excused from making its
disclosures because it has not fully completed its investigation of the case or because
it challenges the sufficiency of another party’s disclosures or because another party
has not made its disclosures.
(2) Disclosure of Expert Testimony.
(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other
parties the identity of any person who may be used at trial to present evidence under
Rules 702, 703, or 705 of the Federal Rules of Evidence.
(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect
to a witness who is retained or specially employed to provide expert testimony in the case
or whose duties as an employee of the party regularly involve giving expert testimony, be
accompanied by a written report prepared and signed by the witness. The report shall
contain a complete statement of all opinions to be expressed and the basis and reasons
therefor; the data or other information considered by the witness in forming the opinions;
any exhibits to be used as a summary of or support for the opinions; the qualifications of
the witness, including a list of all publications authored by the witness within the preceding
ten years; the compensation to be paid for the study and testimony; and a listing of any
other cases in which the witness has testified as an expert at trial or by deposition within
the preceding four years.
(C) These disclosures shall be made at the times and in the sequence directed by the court. In
the absence of other directions from the court or stipulation by the parties, the disclosures
shall be made at least 90 days before the trial date or the date the case is to be ready for
trial or, if the evidence is intended solely to contradict or rebut evidence on the same
subject matter identified by another party under paragraph (2)(B), within 30 days after the
disclosure made by the other party. The parties shall supplement these disclosures when
required under subdivision (e)(1).
(3) Pretrial Disclosures. In addition to the disclosures required by Rule 26(a)(1) and (2), a party
must provide to other parties and promptly file with the court the following information
regarding the evidence that it may present at trial other than solely for impeachment:
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(A) the name and, if not previously provided, the address and telephone number of each
witness, separately identifying those whom the party expects to present and those whom
the party may call if the need arises;
(B) the designation of those witnesses whose testimony is expected to be presented by means
of a deposition and, if not taken stenographically, a transcript of the pertinent portions of
the deposition testimony; and
(C) an appropriate identification of each document or other exhibit, including summaries of
other evidence, separately identifying those which the party expects to offer and those
which the party may offer if the need arises. Unless otherwise directed by the court, these
disclosures must be made at least 30 days before trial. Within 14 days thereafter, unless a
different time is specified by the court, a party may serve and promptly file a list disclosing
(i) any objections to the use under Rule 32(a) of a deposition designated by another party
under Rule 26(a)(3)(B), and (ii) any objection, together with the grounds therefor, that may
be made to the admissibility of materials identified under Rule 26(a)(3)(C). Objections not
so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of
Evidence, are waived unless excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rules 26(a)(1)
through (3) must be made in writing, signed, and served.
(5) Methods to Discover Additional Matter. Parties may obtain discovery by one or more of the
following methods: depositions upon oral examination or written questions; written
interrogatories; production of documents or things or permission to enter upon land or other
property under Rule 34 or 45(a)(1)(C), for inspection and other purposes; physical and mental
examinations; and requests for admission.
(b) DISCOVERY SCOPE AND LIMITS. Unless otherwise limited by order of the court in accordance with
these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant
to the claim or defense of any party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible things and the identity and
location of persons having knowledge of any discoverable matter. For good cause, the court
may order discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).
(2) Limitations. By order, the court may alter the limits in these rules on the number of
depositions and interrogatories or the length of depositions under Rule 30. By order or local
rule, the court may also limit the number of requests under Rule 36. The frequency or extent
of use of the discovery methods otherwise permitted under these rules and by any local rule
shall be limited by the court if it determines that: (i) the discovery sought is unreasonably
cumulative or duplicative, or is obtainable from some other source that is more convenient,
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less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity
by discovery in the action to obtain the information sought; or (iii) the burden or expense of
the proposed discovery outweighs its likely benefit, taking into account the needs of the case,
the amount in controversy, the parties’ resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in resolving the issues. The court may
act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).
(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a
party may obtain discovery of documents and tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for
another party or by or for that other party’s representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party
seeking discovery has substantial need of the materials in the preparation of the party’s
case and that the party is unable without undue hardship to obtain the substantial equivalent
of the materials by other means. In ordering discovery of such materials when the required
showing has been made, the court shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative of a party
concerning the litigation. A party may obtain without the required showing a statement
concerning the action or its subject matter previously made by that party. Upon request, a
person not a party may obtain without the required showing a statement concerning the action
or its subject matter previously made by that person. If the request is refused, the person may
move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion. For purposes of this paragraph, a statement previously
made is (A) a written statement signed or otherwise adopted or approved by the person
making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral statement by the person making it
and contemporaneously recorded.
(4) Trial Preparation: Experts.
(A) A party may depose any person who has been identified as an expert whose opinions may
be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the
deposition shall not be conducted until after the report is provided.
(B) A party may, through interrogatories or by deposition, discover facts known or opinions
held by an expert who has been retained or specially employed by another party in
anticipation of litigation or preparation for trial and who is not expected to be called as a
witness at trial only as provided in Rule 35(b) or upon a showing of exceptional
circumstances under which it is impracticable for the party seeking discovery to obtain
facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall require that the party seeking
discovery pay the expert a reasonable fee for time spent in responding to discovery under
this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of
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this rule the court shall require the party seeking discovery to pay the other party a fair
portion of the fees and expenses reasonably incurred by the latter party in obtaining facts
and opinions from the expert.
(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds
information otherwise discoverable under these rules by claiming that it is privileged or subject
to protection as trial preparation material, the party shall make the claim expressly and shall
describe the nature of the documents, communications, or things not produced or disclosed in
a manner that, without revealing information itself privileged or protected, will enable other
parties to assess the applicability of the privilege or protection.
(c) PROTECTIVE ORDERS. Upon motion by a party or by the person from whom discovery is sought,
accompanied by a certification that the movant has in good faith conferred or attempted to confer
with other affected parties in an effort to resolve the dispute without court action, and for good
cause shown, the court in which the action is pending or alternatively, on matters relating to a
deposition, the court in the district where the deposition is to be taken may make any order which
justice requires to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the following:
(1) that the disclosure or discovery not be had;
(2) that the disclosure or discovery may be had only on specified terms and conditions, including a
designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the
party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be
limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the court;
(6) that a deposition, after being sealed, be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial information not
be revealed or be revealed only in a designated way; and
(8) that the parties simultaneously file specified documents or information enclosed in sealed
envelopes to be opened as directed by the court. If the motion for a protective order is denied
in whole or in part, the court may, on such terms and conditions as are just, order that any
party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the
award of expenses incurred in relation to the motion.
(d) TIMING AND SEQUENCE OF DISCOVERY. Except in categories of proceedings exempted from initial
disclosure under Rule 26(a)(1)(E), or when authorized under these rules or by order or agreement
of the parties, a party may not seek discovery from any source before the parties have conferred
as required by Rule 26(f). Unless the court upon motion, for the convenience of parties and
witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in
any sequence, and the fact that a party is conducting discovery, whether by deposition or
otherwise, does not operate to delay any other party’s discovery.
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(e) SUPPLEMENTATION OF DISCLOSURES AND RESPONSES. A party who has made a disclosure under
subdivision (a) or responded to a request for discovery with a disclosure or response is under a
duty to supplement or correct the disclosure or response to include information thereafter
acquired if ordered by the court or in the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals (objectively reasonable based
on context) its disclosures under subdivision (a) if the party learns that in some material
respect the information disclosed is incomplete or incorrect and if the additional or corrective
information has not otherwise been made known to the other parties during the discovery
process or in writing. With respect to testimony of an expert from whom a report is required
under subdivision (a)(2)(B) the duty extends both to information contained in the report and to
information provided through a deposition of the expert, and any additions or other changes to
this information shall be disclosed by the time the party’s disclosures under Rule 26(a)(3) are
due.
(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for
production, or request for admission if the party learns that the response is in some material
respect incomplete or incorrect and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing.
(f) CONFERENCE OF PARTIES; PLANNING FOR DISCOVERY. Except in categories of proceedings
exempted from initial disclosure under Rule 26(a)(1)(E) or when otherwise ordered, the parties
must, as soon as practicable and in any event at least 21 days before a scheduling conference is
held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their
claims and defenses and the possibilities for a prompt settlement or resolution of the case, to
make or arrange for the disclosures required by Rule 26(a)(1), and to develop a proposed
discovery plan that indicates the parties’ views and proposals concerning:
(1) what changes should be made in the timing, form, or requirement for disclosures under Rule
26(a), including a statement as to when disclosures under Rule 26(a)(1) were made or will be
made;
(2) the subjects on which discovery may be needed, when discovery should be completed, and
whether discovery should be conducted in phases or be limited to or focused upon particular
issues;
(3) what changes should be made in the limitations on discovery imposed under these rules or by
local rule, and what other limitations should be imposed; and
(4) any other orders that should be entered by the court under Rule 26(c) or under Rule 16(b) and
(c). The attorneys of record and all unrepresented parties that have appeared in the case are
jointly responsible for arranging the conference, for attempting in good faith to agree on the
proposed discovery plan, and for submitting to the court within 14 days after the conference a
written report outlining the plan. A court may order that the parties or attorneys attend the
conference in person. If necessary to comply with its expedited schedule for Rule 16(b)
conferences, a court may by local rule (i) require that the conference between the parties
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occur fewer than 21 days before the scheduling conference is held or a scheduling order is due
under Rule 16(b), and (ii) require that the written report outlining the discovery plan be filed
fewer than 14 days after the conference between the parties, or excuse the parties from
submitting a written report and permit them to report orally on their discovery plan at the Rule
16(b) conference.
(g) SIGNING OF DISCLOSURES, DISCOVERY REQUESTS, RESPONSES, AND OBJECTIONS.
(1) Every disclosure made pursuant to subdivision (a)(1) or subdivision (a)(3) shall be signed by at
least one attorney of record in the attorney’s individual name, whose address shall be stated.
An unrepresented party shall sign the disclosure and state the party’s address. The signature
of the attorney or party constitutes a certification that to the best of the signer’s knowledge,
information, and belief, formed after a reasonable inquiry, the disclosure is complete and
correct as of the time it is made.
(2) Every discovery request, response, or objection made by a party represented by an attorney
shall be signed by at least one attorney of record in the attorney’s individual name, whose
address shall be stated. An unrepresented party shall sign the request, response, or objection
and state the party’s address. The signature of the attorney or party constitutes a certification
that to the best of the signer’s knowledge, information, and belief, formed after a reasonable
inquiry, the request, response, or objection is:
(A) consistent with these rules and warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law;
(B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation; and
(C) not unreasonable or unduly burdensome or expensive, given the needs of the case, the
discovery already had in the case, the amount in controversy, and the importance of the
issues at stake in the litigation. If a request, response, or objection is not signed, it shall be
stricken unless it is signed promptly after the omission is called to the attention of the
party making the request, response, or objection, and a party shall not be obligated to take
any action with respect to it until it is signed.
(3) If without substantial justification a certification is made in violation of the rule, the court,
upon motion or upon its own initiative, shall impose upon the person who made the
certification, the party on whose behalf the disclosure, request, response, or objection is
made, or both, an appropriate sanction, which may include an order to pay the amount of
the reasonable expenses incurred because of the violation, including a reasonable
attorney’s fee.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July
1, 1966; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff. Aug. 1,
1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1,
2000.)
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Privilege – Rule 26(b)(1) & 26(f) Meeting
See p. 493-495. Privileged information not discoverable. Upjohn v. U.S. – corporate privilege expanded
beyond “control group”. Required disclosures per 26(a)(1) – exchange of preliminary witness lists within
10 days of the 26(f) meeting.
Rule 30. Depositions Upon Oral Examination

(a) WHEN DEPOSITIONS MAY BE TAKEN; WHEN LEAVE REQUIRED.
(1) A party may take the testimony of any person, including a party, by deposition upon oral
examination without leave of court except as provided in paragraph (2). The attendance of
witnesses may be compelled by subpoena as provided in Rule 45.
(2) A party must obtain leave of court, which shall be granted to the extent consistent with the
principles stated in Rule 26(b)(2), if the person to be examined is confined in prison or if, without
the written stipulation of the parties,
(A) a proposed deposition would result in more than ten depositions being taken under this rule or
Rule 31 by the plaintiffs, or by the defendants, or by third-party defendants;
(B) the person to be examined already has been deposed in the case; or
(C) a party seeks to take a deposition before the time specified in Rule 26(d) unless the notice
contains a certification, with supporting facts, that the person to be examined is expected to
leave the United States and be unavailable for examination in this country unless deposed
before that time.
(b) NOTICE OF EXAMINATION: GENERAL REQUIREMENTS; METHOD OF RECORDING; PRODUCTION OF
DOCUMENTS AND THINGS; DEPOSITION OF ORGANIZATION; DEPOSITION BY TELEPHONE.
(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable
notice in writing to every other party to the action. The notice shall state the time and place for
taking the deposition and the name and address of each person to be examined, if known, and, if
the name is not known, a general description sufficient to identify the person or the particular class
or group to which the person belongs. If a subpoena duces tecum is to be served on the person to
be examined, the designation of the materials to be produced as set forth in the subpoena shall be
attached to, or included in, the notice.
(2) The party taking the deposition shall state in the notice the method by which the testimony shall
be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or
stenographic means, and the party taking the deposition shall bear the cost of the recording. Any
party may arrange for a transcription to be made from the recording of a deposition taken by
nonstenographic means.
(3) With prior notice to the deponent and other parties, any party may designate another method to
record the deponent’s testimony in addition to the method specified by the person taking the
deposition. The additional record or transcript shall be made at that party’s expense unless the
court otherwise orders.
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(4) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer
appointed or designated under Rule 28 and shall begin with a statement on the record by the
officer that includes (A) the officer’s name and business address; (B) the date, time, and place of
the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to
the deponent; and (E) an identification of all persons present. If the deposition is recorded other
than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of
recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys
shall not be distorted through camera or sound-recording techniques. At the end of the deposition,
the officer shall state on the record that the deposition is complete and shall set forth any
stipulations made by counsel concerning the custody of the transcript or recording and the
exhibits, or concerning other pertinent matters.
(5) The notice to a party deponent may be accompanied by a request made in compliance with Rule
34 for the production of documents and tangible things at the taking of the deposition. The
procedure of Rule 34 shall apply to the request.
(6) A party may in the party’s notice and in a subpoena name as the deponent a public or private
corporation or a partnership or association or governmental agency and describe with reasonable
particularity the matters on which examination is requested. In that event, the organization so
named shall designate one or more officers, directors, or managing agents, or other persons who
consent to testify on its behalf, and may set forth, for each person designated, the matters on
which the person will testify. A subpoena shall advise a non-party organization of its duty to make
such a designation. The persons so designated shall testify as to matters known or reasonably
available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any
other procedure authorized in these rules.
(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken
by telephone or other remote electronic means. For the purposes of this rule and Rules 28(a),
37(a)(1), and 37(b)(1), a deposition taken by such means is taken in the district and at the place
where the deponent is to answer questions.
(c) EXAMINATION AND CROSS-EXAMINATION; RECORD OF EXAMINATION; OATH; OBJECTIONS.
Examination and cross-examination of witnesses may proceed as permitted at the trial under the
provisions of the Federal Rules of Evidence except Rules 103 and 615. The officer before whom the
deposition is to be taken shall put the witness on oath or affirmation and shall personally, or by
someone acting under the officer’s direction and in the officer’s presence, record the testimony of the
witness. The testimony shall be taken stenographically or recorded by any other method authorized by
subdivision (b)(2) of this rule. All objections made at the time of the examination to the
qualifications of the officer taking the deposition, to the manner of taking it, to the evidence
presented, to the conduct of any party, or to any other aspect of the proceedings shall be noted by the
officer upon the record of the deposition; but the examination shall proceed, with the testimony being
taken subject to the objections. In lieu of participating in the oral examination, parties may serve
written questions in a sealed envelope on the party taking the deposition and the party taking the
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deposition shall transmit them to the officer, who shall propound them to the witness and record the
answers verbatim.
(d) SCHEDULE AND DURATION; MOTION TO TERMINATE OR LIMIT EXAMINATION.
(1) Any objection during a deposition must be stated concisely and in a non-argumentative and non-
suggestive manner. A person may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation directed by the court, or to present a motion under
Rule 30(d)(4).
(2) Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one
day of seven hours. The court must allow additional time consistent with Rule 26(b)(2) if
needed for a fair examination of the deponent or if the deponent or another person, or other
circumstance, impedes or delays the examination.
(3) If the court finds that any impediment, delay, or other conduct has frustrated the fair examination
of the deponent, it may impose upon the persons responsible an appropriate sanction, including
the reasonable costs and attorney’s fees incurred by any parties as a result thereof.
(4) At any time during a deposition, on motion of a party or of the deponent and upon a showing that
the examination is being conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party, the court in which the action is pending or the court
in the district where the deposition is being taken may order the officer conducting the
examination to cease forthwith from taking the deposition, or may limit the scope and manner of
the taking of the deposition as provided in Rule 26(c). If the order made terminates the
examination, it may be resumed thereafter only upon the order of the court in which the action is
pending. Upon demand of the objecting party or deponent, the taking of the deposition must be
suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4)
apply to the award of expenses incurred in relation to the motion.
(e) REVIEW BY WITNESS; CHANGES; SIGNING.
If requested by the deponent or a party before completion of the deposition, the deponent shall have
30 days after being notified by the officer that the transcript or recording is available in which to
review the transcript or recording and, if there are changes in form or substance, to sign a statement
reciting such changes and the reasons given by the deponent for making them. The officer shall
indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so,
shall append any changes made by the deponent during the period allowed.
(f) CERTIFICATION AND DELIVERY BY OFFICER; EXHIBITS; COPIES.
(1) The officer must certify that the witness was duly sworn by the officer and that the deposition is a
true record of the testimony given by the witness. This certificate must be in writing and
accompany the record of the deposition. Unless otherwise ordered by the court, the officer must
securely seal the deposition in an envelope or package indorsed with the title of the action and
marked ‘‘Deposition of [here insert name of witness]’’ and must promptly send it to the attorney
who arranged for the transcript or recording, who must store it under conditions that will protect it
against loss, destruction, tampering, or deterioration. Documents and things produced for
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inspection during the examination of the witness, must, upon the request of a party, be marked for
identification and annexed to the deposition and may be inspected and copied by any party,
except that if the person producing the materials desires to retain them the person may (A) offer
copies to be marked for identification and annexed to the deposition and to serve thereafter as
originals if the person affords to all parties fair opportunity to verify the copies by comparison with
the originals, or (B) offer the originals to be marked for identification, after giving to each party an
opportunity to inspect and copy them, in which event the materials may then be used in the same
manner as if annexed to the deposition. Any party may move for an order that the original be
annexed to and returned with the deposition to the court, pending final disposition of the case.
(2) Unless otherwise ordered by the court or agreed by the parties, the officer shall retain
stenographic notes of any deposition taken stenographically or a copy of the recording of any
deposition taken by another method. Upon payment of reasonable charges therefor, the officer
shall furnish a copy of the transcript or other recording of the deposition to any party or to the
deponent.
(3) The party taking the deposition shall give prompt notice of its filing to all other parties.
(g) FAILURE TO ATTEND OR TO SERVE SUBPOENA; EXPENSES.
(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and
another party attends in person or by attorney pursuant to the notice, the court may order the
party giving the notice to pay to such other party the reasonable expenses incurred by that party
and that party’s attorney in attending, including reasonable attorney’s fees.
(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena
upon the witness and the witness because of such failure does not attend, and if another party
attends in person or by attorney because that party expects the deposition of that witness to be
taken, the court may order the party giving the notice to pay to such other party the reasonable
expenses incurred by that party and that party’s attorney in attending, including reasonable
attorney’s fees.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July 1, 1970; Mar. 1, 1971, eff. July 1,
1971; Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000.)
Rule 31. Depositions Upon Written Questions

(a) SERVING QUESTIONS; NOTICE.
(1) A party may take the testimony of any person, including a party, by deposition upon written
questions without leave of court except as provided in paragraph (2). The attendance of witnesses
may be compelled by the use of subpoena as provided in Rule 45.
(2) A party must obtain leave of court, which shall be granted to the extent consistent with the
principles stated in Rule 26(b)(2), if the person to be examined is confined in prison or if, without
the written stipulation of the parties,
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(A) a proposed deposition would result in more than ten depositions being taken under this rule or
Rule 30 by the plaintiffs, or by the defendants, or by third-party defendants;
(B) the person to be examined has already been deposed in the case; or
(C) a party seeks to take a deposition before the time specified in Rule 26(d).
(3) A party desiring to take a deposition upon written questions shall serve them upon every other
party with a notice stating (1) the name and address of the person who is to answer them, if
known, and if the name is not known, a general description sufficient to identify the person or the
particular class or group to which the person belongs, and (2) the name or descriptive title
and address of the officer before whom the deposition is to be taken. A deposition upon written
questions may be taken of a public or private corporation or a partnership or association or
governmental agency in accordance with the provisions of Rule 30(b)(6).
(4) Within 14 days after the notice and written questions are served, a party may serve cross
questions upon all other parties. Within 7 days after being served with cross questions, a party
may serve redirect questions upon all other parties. Within 7 days after being served with redirect
questions, a party may serve recross questions upon all other parties. The court may for cause
shown enlarge or shorten the time.
(b) OFFICER TO TAKE RESPONSES AND PREPARE RECORD. A copy of the notice and copies of all questions
served shall be delivered by the party taking the deposition to the officer designated in the notice, who
shall proceed promptly, in the manner provided by Rule 30(c), (e), and (f), to take the testimony of the
witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching
thereto the copy of the notice and the questions received by the officer.
(c) NOTICE OF FILING. When the deposition is filed the party taking it shall promptly give notice thereof to
all other parties.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1,
1993.)
Rule 32. Use of Depositions in Court Proceedings

(a) USE OF DEPOSITIONS. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part
or all of a deposition, so far as admissible under the rules of evidence applied as though the witness
were then present and testifying, may be used against any party who was present or represented at
the taking of the deposition or who had reasonable notice thereof, in accordance with any of the
following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the
testimony of deponent as a witness, or for any other purpose permitted by the Federal Rules of
Evidence.
(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer,
director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to
testify on behalf of a public or private corporation, partnership or association or governmental
agency which is a party may be used by an adverse party for any purpose.
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(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if
the court finds:
(A) that the witness is dead; or
(B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out
of the United States, unless it appears that the absence of the witness was procured by the party
offering the deposition; or
(C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or
(D) that the party offering the deposition has been unable to procure the attendance of the witness by
subpoena; or
(E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance of presenting the testimony of
witnesses orally in open court, to allow the deposition to be used.
A deposition taken without leave of court pursuant to a notice under Rule 30(a)(2)(C) shall
not be used against a party who demonstrates that, when served with the notice, it was unable
through the exercise of diligence to obtain counsel to represent it at the taking of the deposition;
nor shall a deposition be used against a party who, having received less than 11 days notice of a
deposition, has promptly upon receiving such notice filed a motion for a protective order under
Rule 26(c)(2) requesting that the deposition not be held or be held at a different time or
place and such motion is pending at the time the deposition is held.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require the
offeror to introduce any other part which ought in fairness to be considered with the part
introduced, and any party may introduce any other parts.
Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously
taken; and, when an action has been brought in any court of the United States or of any State and
another action involving the same subject matter is afterward brought between the same parties
or their representatives or successors in interest, all depositions lawfully taken and duly filed in the
former action may be used in the latter as if originally taken therefor. A deposition previously
taken may also be used as permitted by the Federal Rules of Evidence.
(b) OBJECTIONS TO ADMISSIBILITY. Subject to the provisions of Rule 28(b) and subdivision (d)(3)
of this rule, objection may be made at the trial or hearing to receiving in evidence any
deposition or part thereof for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.
(c) FORM OF PRESENTATION. Except as otherwise directed by the court, a party offering deposition
testimony pursuant to this rule may offer it in stenographic or nonstenographic form, but, if in
nonstenographic form, the party shall also provide the court with a transcript of the portions so
offered. On request of any party in a case tried before a jury, deposition testimony offered other
than for impeachment purposes shall be presented in nonstenographic form, if available, unless
the court for good cause orders otherwise.
(d) EFFECT OF ERRORS AND IRREGULARITIES IN DEPOSITIONS.
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(1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless
written objection is promptly served upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the
officer before whom it is to be taken is waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or could be discovered with
reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of
testimony are not waived by failure to make them before or during the taking of the deposition,
unless the ground of the objection is one which might have been obviated or removed if presented
at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition,
in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and
errors of any kind which might be obviated, removed, or cured if promptly presented, are waived
unless seasonable objection thereto is made at the taking of the deposition.
(C) Objections to the form of written questions submitted under Rule 31 are waived unless served in
writing upon the party propounding them within the time allowed for serving the succeeding cross
or other questions and within 5 days after service of the last questions authorized.
(4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the
testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a
motion to suppress the deposition or some part thereof is made with reasonable promptness after
such defect is, or with due diligence might have been, ascertained.
(As amended Mar. 30, 1970, eff. July 1, 1970; Nov. 20, 1972, eff. July 1, 1975; Apr. 29, 1980, eff. Aug.
1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 33. Interrogatories to Parties

(a) AVAILABILITY. Without leave of court or written stipulation, any party may serve upon any other
party written interrogatories, not exceeding 25 in number including all discrete subparts, to be
answered by the party served or, if the party served is a public or private corporation or a
partnership or association or governmental agency, by any officer or agent, who shall furnish such
information as is available to the party. Leave to serve additional interrogatories shall be granted
to the extent consistent with the principles of Rule 26(b)(2). Without leave of court or written
stipulation, interrogatories may not be served before the time specified in Rule 26(d).
(b) ANSWERS AND OBJECTIONS.
(1) Each interrogatory shall be answered separately and fully in writing under oath, unless it is
objected to, in which event the objecting party shall state the reasons for objection and shall
answer to the extent the interrogatory is not objectionable.
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(2) The answers are to be signed by the person making them, and the objections signed by the
attorney making them.
(3) The party upon whom the interrogatories have been served shall serve a copy of the answers,
and objections if any, within 30 days after the service of the interrogatories. A shorter or longer
time may be directed by the court or, in the absence of such an order, agreed to in writing by
the parties subject to Rule 29.
(4) All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not
stated in a timely objection is waived unless the party’s failure to object is excused by the
court for good cause shown.
(5) The party submitting the interrogatories may move for an order under Rule 37(a) with respect
to any objection to or other failure to answer an interrogatory.
(c) SCOPE; USE AT TRIAL. Interrogatories may relate to any matters which can be inquired into under
Rule 26(b)(1), and the answers may be used to the extent permitted by the rules of evidence. An
interrogatory otherwise proper is not necessarily objectionable merely because an answer to the
interrogatory involves an opinion or contention that relates to fact or the application of law to fact,
but the court may order that such an interrogatory need not be answered until after designated
discovery has been completed or until a pre-trial conference or other later time.
(d) OPTION TO PRODUCE BUSINESS RECORDS. Where the answer to an interrogatory may be derived or
ascertained from the business records of the party upon whom the interrogatory has been served
or from an examination, audit or inspection of such business records, including a compilation,
abstract or summary thereof, and the burden of deriving or ascertaining the answer is
substantially the same for the party serving the interrogatory as for the party served, it is a
sufficient answer to such interrogatory to specify the records from which the answer may be
derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity
to examine, audit or inspect such records and to make copies, compilations, abstracts or
summaries. A specification shall be in sufficient detail to permit the interrogating party to locate
and to identify, as readily as can the party served, the records from which the answer may be
ascertained.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff.
Aug. 1, 1980; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 34. Production of Documents and Things and Entry Upon Land for Inspection and Other
Purposes
(a) SCOPE. Any party may serve on any other party a request (1) to produce and permit the party
making the request, or someone acting on the requestor’s behalf, to inspect and copy, any
designated documents (including writings, drawings, graphs, charts, photographs, phonorecords,
and other data compilations from which information can be obtained, translated, if necessary, by
the respondent through detection devices into reasonably usable form), or to inspect and copy,
test, or sample any tangible things which constitute or contain matters within the scope of Rule
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26(b) and which are in the possession, custody or control of the party upon whom the request is
served; or (2) to permit entry upon designated land or other property in the possession or control
of the party upon whom the request is served for the purpose of inspection and measuring,
surveying, photographing, testing, or sampling the property or any designated object or operation
thereon, within the scope of Rule 26(b).
(b) PROCEDURE. The request shall set forth, either by individual item or by category, the items to be
inspected, and describe each with reasonable particularity. The request shall specify a reasonable
time, place, and manner of making the inspection and performing the related acts. Without leave
of court or written stipulation, a request may not be served before the time specified in Rule 26(d).
The party upon whom the request is served shall serve a written response within 30 days after the
service of the request. A shorter or longer time may be directed by the court or, in the absence of
such an order, agreed to in writing by the parties, subject to Rule 29. The response shall state,
with respect to each item or category, that inspection and related activities will be permitted as
requested, unless the request is objected to, in which event the reasons for the objection shall be
stated. If objection is made to part of an item or category, the part shall be specified and
inspection permitted of the remaining parts. The party submitting the request may move for an
order under Rule 37(a) with respect to any objection to or other failure to respond to the request or
any part thereof, or any failure to permit inspection as requested. A party who produces
documents for inspection shall produce them as they are kept in the usual course of business or
shall organize and label them to correspond with the categories in the request.
(c) PERSONS NOT PARTIES. A person not a party to the action may be compelled to produce
documents and things or to submit to an inspection as provided in Rule 45.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff.
Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec.
1, 1993.)
Rule 35. Physical and Mental Examinations of Persons

(a) ORDER FOR EXAMINATION. When the mental or physical condition (including the blood group) of a
party or of a person in the custody or under the legal control of a party, is in controversy, the court
in which the action is pending may order the party to submit to a physical or mental examination
by a suitably licensed or certified examiner or to produce for examination the person in the party’s
custody or legal control. The order may be made only on motion for good cause shown and upon
notice to the person to be examined and to all parties and shall specify the time, place, manner,
conditions, and scope of the examination and the person or persons by whom it is to be made.
(b) REPORT OF EXAMINER.
(1) If requested by the party against whom an order is made under Rule 35(a) or the person
examined, the party causing the examination to be made shall deliver to the requesting party
a copy of the detailed written report of the examiner setting out the examiner’s findings,
including results of all tests made, diagnoses and conclusions, together with like reports of all
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earlier examinations of the same condition. After delivery the party causing the examination
shall be entitled upon request to receive from the party against whom the order is made a like
report of any examination, previously or thereafter made, of the same condition, unless, in the
case of a report of examination of a person not a party, the party shows that the party is
unable to obtain it. The court on motion may make an order against a party requiring delivery
of a report on such terms as are just, and if an examiner fails or refuses to make a report the
court may exclude the examiner’s testimony if offered at trial.
(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition
of the examiner, the party examined waives any privilege the party may have in that action or
any other involving the same controversy, regarding the testimony of every other person who
has examined or may thereafter examine the party in respect of the same mental or physical
condition.
(3) This subdivision applies to examinations made by agreement of the parties, unless the
agreement expressly provides otherwise. This subdivision does not preclude discovery of a
report of an examiner or the taking of a deposition of the examiner in accordance with the
provisions of any other rule.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Nov. 18, 1988; Apr. 30,
1991, eff. Dec. 1, 1991.)
Rule 36. Requests for Admission

(a) REQUEST FOR ADMISSION. A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any matters within the scope of
Rule 26(b)(1) set forth in the request that relate to statements or opinions of fact or of the
application of law to fact, including the genuineness of any documents described in the request.
Copies of documents shall be served with the request unless they have been or are otherwise
furnished or made available for inspection and copying. Without leave of court or written
stipulation, requests for admission may not be served before the time specified in Rule 26(d).
Each matter of which an admission is requested shall be separately set forth. The matter is
admitted unless, within 30 days after service of the request, or within such shorter or longer time
as the court may allow or as the parties may agree to in writing, subject to Rule 29, the party to
whom the request is directed serves upon the party requesting the admission a written answer or
objection addressed to the matter, signed by the party or by the party’s attorney. If objection is
made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set
forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A
denial shall fairly meet the substance of the requested admission, and when good faith requires
that a party qualify an answer or deny only a part of the matter of which an admission is
requested, the party shall specify so much of it as is true and qualify or deny the remainder. An
answering party may not give lack of information or knowledge as a reason for failure to admit or
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deny unless the party states that the party has made reasonable inquiry and that the information
known or readily obtainable by the party is insufficient to enable the party to admit or deny. A
party who considers that a matter of which an admission has been requested presents a genuine
issue for trial may not, on that ground alone, object to the request; the party may, subject to the
provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny
it.
The party who has requested the admissions may move to determine the sufficiency of the
answers or objections. Unless the court determines that an objection is justified, it shall order that
an answer be served. If the court determines that an answer does not comply with the
requirements of this rule, it may order either that the matter is admitted or that an amended
answer be served. The court may, in lieu of these orders, determine that final disposition of the
request be made at a pre-trial conference or at a designated time prior to trial. The provisions of
Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
(b) EFFECT OF ADMISSION. Any matter admitted under this rule is conclusively established unless the
court on motion permits withdrawal or amendment of the admission. Subject to the provision of
Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment
when the presentation of the merits of the action will be subserved thereby and the party who
obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that
party in maintaining the action or defense on the merits. Any admission made by a party under
this rule is for the purpose of the pending action only and is not an admission for any other
purpose nor may it be used against the party in any other proceeding.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 37. Failure to Make Disclosure or Cooperate in Discovery; Sanctions

(a) MOTION FOR ORDER COMPELLING DISCLOSURE OR DISCOVERY. A party, upon reasonable notice to
other parties and all persons affected thereby, may apply for an order compelling disclosure or
discovery as follows:
(1) Appropriate Court. An application for an order to a party shall be made to the court in which
the action is pending. An application for an order to a person who is not a party shall be made
to the court in the district where the discovery is being, or is to be, taken.
(2) Motion.
(A) If a party fails to make a disclosure required by Rule 26(a), any other party may move to
compel disclosure and for appropriate sanctions. The motion must include a certification
that the movant has in good faith conferred or attempted to confer with the party not
making the disclosure in an effort to secure the disclosure without court action.
(B) If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or
a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a
party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to
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a request for inspection submitted under Rule 34, fails to respond that inspection will be
permitted as requested or fails to permit inspection as requested, the discovering party
may move for an order compelling an answer, or a designation, or an order compelling
inspection in accordance with the request. The motion must include a certification that the
movant has in good faith conferred or attempted to confer with the person or party failing
to make the discovery in an effort to secure the information or material without court
action. When taking a deposition on oral examination, the proponent of the question may
complete or adjourn the examination before applying for an order.
(3) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision an
evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose,
answer, or respond.
(4) Expenses and Sanctions.
(A) If the motion is granted or if the disclosure or requested discovery is provided after the
motion was filed, the court shall, after affording an opportunity to be heard, require the
party or deponent whose conduct necessitated the motion or the party or attorney
advising such conduct or both of them to pay to the moving party the reasonable expenses
incurred in making the motion, including attorney’s fees, unless the court finds that the
motion was filed without the movant’s first making a good faith effort to obtain the
disclosure or discovery without court action, or that the opposing party’s nondisclosure,
response, or objection was substantially justified, or that other circumstances make an
award of expenses unjust.
(B) If the motion is denied, the court may enter any protective order authorized under Rule
26(c) and shall, after affording an opportunity to be heard, require the moving party or the
attorney filing the motion or both of them to pay to the party or deponent who opposed
the motion the reasonable expenses incurred in opposing the motion, including attorney’s
fees, unless the court finds that the making of the motion was substantially justified or that
other circumstances make an award of expenses unjust.
(C) If the motion is granted in part and denied in part, the court may enter any protective
order authorized under Rule 26(c) and may, after affording an opportunity to be heard,
apportion the reasonable expenses incurred in relation to the motion among the parties
and persons in a just manner.
(b) FAILURE TO COMPLY WITH ORDER.
(1) Sanctions by Court in District Where Deposition Is Taken. If a deponent fails to be sworn or to
answer a question after being directed to do so by the court in the district in which the
deposition is being taken, the failure may be considered a contempt of that court.
(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing
agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a
party fails to obey an order to provide or permit discovery, including an order made under
subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule
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26(f), the court in which the action is pending may make such orders in regard to the failure as
are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated
facts shall be taken to be established for the purposes of the action in accordance with the
claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or
defenses, or prohibiting that party from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt
of court the failure to obey any orders except an order to submit to a physical or mental
examination;
(E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to
produce another for examination, such orders as are listed in paragraphs (A), (B), and (C)
of this subdivision, unless the party failing to comply shows that that party is unable to
produce such person for examination. In lieu of any of the foregoing orders or in addition
thereto, the court shall require the party failing to obey the order or the attorney advising
that party or both to pay the reasonable expenses, including attorney’s fees, caused by
the failure, unless the court finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.
(c) FAILURE TO DISCLOSE; FALSE OR MISLEADING DISCLOSURE; REFUSAL TO ADMIT.
(1) A party that without substantial justification fails to disclose information required by Rule 26(a)
or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not,
unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a
motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the
court, on motion and after affording an opportunity to be heard, may impose other appropriate
sanctions. In addition to requiring payment of reasonable expenses, including attorney’s fees,
caused by the failure, these sanctions may include any of the actions authorized under Rule
37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the
disclosure.
(2) If a party fails to admit the genuineness of any document or the truth of any matter as
requested under Rule 36, and if the party requesting the admissions thereafter proves the
genuineness of the document or the truth of the matter, the requesting party may apply to the
court for an order requiring the other party to pay the reasonable expenses incurred in making
that proof, including reasonable attorney’s fees. The court shall make the order unless it finds
that (A) the request was held objectionable pursuant to Rule 36(a), or (B) the admission sought
was of no substantial importance, or (C) the party failing to admit had reasonable ground to
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believe that the party might prevail on the matter, or (D) there was other good reason for the
failure to admit.
(d) FAILURE OF PARTY TO ATTEND AT OWN DEPOSITION OR SERVE ANSWERS TO INTERROGATORIES OR
RESPOND TO REQUEST FOR INSPECTION.
If a party or an officer, director, or managing agent of a party or a person designated under
Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to
take the deposition, after being served with a proper notice, or (2) to serve answers or objections
to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to
serve a written response to a request for inspection submitted under Rule 34, after proper service
of the request, the court in which the action is pending on motion may make such orders in regard
to the failure as are just, and among others it may take any action authorized under
subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule. Any motion specifying a failure
under clause (2) or (3) of this subdivision shall include a certification that the movant has in good
faith conferred or attempted to confer with the party failing to answer or respond in an effort to
obtain such answer or response without court action. In lieu of any order or in addition thereto, the
court shall require the party failing to act or the attorney advising that party or both to pay the
reasonable expenses, including attorney’s fees, caused by the failure unless the court finds that
the failure was substantially justified or that other circumstances make an award of expenses
unjust.
The failure to act described in this subdivision may not be excused on the ground that the
discovery sought is objectionable unless the party failing to act has a pending motion for a
protective order as provided by Rule 26(c).
[(e) SUBPOENA OF PERSON IN FOREIGN COUNTRY.] (Abrogated Apr. 29, 1980, eff. Aug. 1, 1980)
[(f) EXPENSES AGAINST UNITED STATES.] (Repealed Oct. 21, 1980, eff. Oct. 1, 1981)
(g) FAILURE TO PARTICIPATE IN THE FRAMING OF A DISCOVERY PLAN.
If a party or a party’s attorney fails to participate in good faith in the development and submission
of a proposed discovery plan as required by Rule 26(f), the court may, after opportunity for
hearing, require such party or attorney to pay to any other party the reasonable expenses,
including attorney’s fees, caused by the failure.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug.
1, 1980; Oct. 21, 1980, eff. Oct. 1, 1981; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 17, 2000, eff. Dec. 1, 2000.)
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B DISCOVERY OVERVIEW
Scope of Discovery – FRCP 26(a)
Discovery Techniques and Methods
Automatic Disclosures – FRCP 26(a)
Party Initiated Discovery
INSERT PROF. A’S SLIDE HERE
Privilege and Relevance – go to federal law first, then state law. You cannot get any evidence unless it
relates to a claim or privilege. Sometimes the best evidence is privileged. The policy considerations
underlying the privilege trump the substantive value of the evidence. Privilege focuses on
communication, not underlying facts. So, the issue is whether the discovery request seeks information
about a communication or about facts which may have been communicated in a privileged
communication.
Assume that there is a claim of privilege. The party that wants the discovery is not satisfied with your
claim of discovery. Burden is on party asserting privilege. Under 26(b)(5), the party claiming the privilege
shall make the claim expressly and shall describe the nature of the documents ….Common term =
privilege log.
Document Review: What if you get a document in response to discovery that containts legal advice? Is
a memo documenting conversations with counsel privileged? Example memo handed out in class is from
the CFO to the CEO of a manufacturing company referencing conversations with the company’s lawyer.
So, it seems that at least that part of the memo would be privileged. One approach to discovery request
would be to put this on your privilege log. But, the other side would see “memo from one non-lawyer to
another.” They would probably want to discuss this at a meet-and-confer.
Redacting – use when a portion of a document may be exempt from discovery for one reason or another
(e.g., privilege, confidientiality). The portion regarding communication from a lawyer to a client could
probably be redacted. So, be sure to read the whole document.
See Rule 26(b) – you can discover information, even if it will not be admissible at trial.
C WORKSHEET: DISCOVERY SCOPE AND DEVICES
I. Scope of Discovery
A. What is the test for the scope of discovery under Rule 26(b)(1)?
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FRCP 26(b)(1): Anything relevant to the the claims and defenses of a party, unless
privileged … “need not be admissible at trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence” – very broad scope, but does not
mean limitless.
Not Privileged
Relevant to Claims & Defenses [Pre-2000: subject matter of the action]
Reasonably calculated to lead to admissible evidence.
B. What must a party do if it seeks to withhold information from discovery pursuant to a

claim of privilege?
FRCP 26(b)(1)(5): Claims of Privilege or Protection of Trial Preparation Materials. When a party
withholds information otherwise discoverable under these rules by claiming that it is privileged or
subject to protection as trial preparation material, the party shall make the claim expressly and
shall describe the nature of the documents, communications, or things not produced or disclosed
in a manner that, without revealing information itself privileged or protected, will enable other
parties to assess the applicability of the privilege or protection.
C. What objections to discovery are potentially available under Rule 26(b)(2) to a party
receiving a discovery request?
FRCP 26(b)(2): Limits:
1) Unreasonably cumulative or duplicative, or obtainable from another source that is more
convenient, less burdensome, or less expensive,
2) Material the party seeking discovery has already had ample opportunity to discover
3) If the burden or expense of discovery outweighs the likely benefit
D. What is a protective order? Under what circumstances would a party seek a protective
order? What are the grounds on which a party may seek to obtain a protective order?
Moving party must show good faith effort to resolve issue with other side first.
A protective order is any order from the court designed to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one or more of
the following:
(1) that the disclosure or discovery not be had;
(2) that the disclosure or discovery may be had only on specified terms and conditions, including
a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the
party seeking discovery;
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(4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be
limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the court;
(6) that a deposition, after being sealed, be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial information not
be revealed or be revealed only in a designated way; and
(8) that the parties simultaneously file specified documents or information enclosed in sealed
envelopes to be opened as directed by the court. If the motion for a protective order is denied
in whole or in part, the court may, on such terms and conditions as are just, order that any
party or other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the
award of expenses incurred in relation to the motion.
E. What is the purpose of Rule 26(e)? Under what circumstances must a party supplement
its disclosures or discovery responses? What are the potential consequences for failing
to comply with Rule 26(e)?
Purpose is to ensure that mistakes in discovery submissions are corrected in a timely fashion. A
party is under a duty to provide clarification or updates if:
(a) if the party learns that in some material respect the information disclosed is incomplete or
incorrect
and
(b) if the additional or corrective information has not otherwise been made known to the other
parties during the discovery process or in writing.
(c) With respect to testimony of an expert the duty extends both to information contained in the
report and to information provided through a deposition of the expert,
Penalties
FRCP 37: Motions to compel; sanctions: when a party does not cooperate with discovery,
the court may get involved. Getting another party penalized takes 2 steps: must get court
to compel production, and then move for sanctions if the compelled party does not
comply.
FRCP 37(a): Motion to compel – party moves for a court order requiring another party to hand
over info … other party may reply with 26(c), a protective order against disclosure of
certain information
FRCP 37(b): Sanctions – if the 37(a) motion is granted and the other party refuses to comply,
the court may impose sanctions – court has much discretion.
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F. What was the discovery requested in Blank v. Sullivan & Cromwell. What discovery was
used to seek the information? What was the Court’s analysis regarding the relevance of
the requested discovery.
HR data (number hired, names, length of employment, number offered partnership positions, etc.)
for all female and male employees prior to 8/30/1970. The court finally granted the discovery
request, reasoning that under 26(b)(1), it was not too far of a stretch to see how that information
might lead to information useful in a suit on behalf of associates (as opposed to partners). The
information requested was relevant, if not determinative. Sullivan & Cromwell filed a written
objection and then the π filed a motion to compel under rule (37?). Π must show entitlement. If
so, then ∆ must show privilege or other reason to withhold.
G. What is the significance of the 2000 amendment to Rule 26(b) changing the scope of
discovery from relevance to the SUBJECT MATTER of the lawsuit to relevance to a CLAIM
OR DEFENSE asserted by any party? Why should the 2000 amendment be kept in mind
when reading pre-2000 discovery cases regarding relevance?
Obviously, this change vastly broadened the potential amount of information available through
discovery. Rather than demonstrating a need for the information, a party may now simply
demonstrate that some other party in the action could reasonably use that information.
H. What was the basis for the court’s decision denying plaintiff’s motion for reconsideration
in Johnson Matthey, Inc. v. Research Corp.?
The amended rules require a good faith cause for allowing discovery of anything not related to a
claim or defense. JM wanted to know if MSU was unjustly enriched by the chemical research.
Lawsuit w/ Michigan State Univ. is an unjust enrichment case and the π wanted to discover all the
documents related to another, similar pending action against MSU.
I. Steffan v. Cheney (1990) (The Gay Midshipman Case)

Midshipman thrown out of Naval Academy for stating publicly that he was a homosexual. He
sues for constructive termination and challenges the constitutionality of the rule barring
homosexuals from the Academy. Relevance is relative. See Casebook 490. The government
could have made an argument that there were other reasons to discharge him. But, in this
administrative hearing, the only issue for review is the reason at issue for discharge, not any
other possible reasons for terminating Steffan. Discovery rulings not appealable until final
judgment.
II. Discovery Conference
A. What is a discovery conference? What subjects must be discussed at a discovery

conference?
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FRCP 26(f): The parties must, as soon as practicable and in any event at least 21 days before a
scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider
the nature and basis of their claims and defenses and the possibilities for a prompt
settlement or resolution of the case, to make or arrange for the disclosures required by Rule
26(a)(1), and to develop a proposed discovery plan that indicates the parties’ views and
proposals concerning: The conference is to get together 21 days before seeing the judge so that
the parties can talk and try to work some things out so it’s not a huge waste of time when you are
both before the judge. Don’t want to be in front of the judge and just meeting the other side for
the first time. Early settlement is the goal.
(1) what changes should be made in the timing, form, or requirement for disclosures under
Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1) were made or will
be made;
(2) the subjects on which discovery may be needed, when discovery should be completed,
and whether discovery should be conducted in phases or be limited to or focused upon particular
issues; Forces the sides to think about what discovery they will need to make their case. Vet the
case: How many issues are there? How many witnesses? Where are they? .
(3) what changes should be made in the limitations on discovery imposed under these rules
or by local rule, and what other limitations should be imposed; and Once you understand the
nature of the claims, you can get an idea of how much discovery will be required
(4) any other orders that should be entered by the court under Rule 26(c) or under Rule
16(b) and (c).
B. What report must the parties make to the court regarding the discovery conference?
The attorneys of record and all unrepresented parties that have appeared in the case are jointly
responsible for arranging the conference, for attempting in good faith to agree on the proposed
discovery plan, and for submitting to the court within 14 days after the conference a written report
outlining the plan.
C. What are the potential consequences for failure to participate in a Rule 26(f) conference?
Motion to compel or order sanctions under 37(a)1&2.
D. When may a party begin to conduct discovery?

FRCP 26(d):Discovery cannot normally begin until the 26(f) conference
III. Required Disclosures
A. What are the subjects of required disclosures under Rule 26(a)(1)?
26(a) REQUIRED DISCLOSURES; METHODS TO DISCOVER ADDITIONAL MATTER.
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(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the
extent otherwise stipulated or directed by order, a party must, without awaiting a discovery
request, provide to other parties:
(A) the name and, if known, the address and telephone number of each individual likely to
have discoverable information that the disclosing party may use to support its claims or
defenses, unless solely for impeachment, identifying the subjects of the information;
(B) a copy of, or a description by category and location of, all documents, data compilations,
and tangible things that are in the possession, custody, or control of the party and
that the disclosing party may use to support its claims or defenses, unless solely for
impeachment; This will be the biggest discovery burden b/c you will have to track down all
the documents and list them. If it’s a complex case, such as product liability regarding
faulty design of a car. You might have designers, suppliers, and manufacturers spread out
across the globe. It can be objects as well. Also, email, spreadsheets, final versions, drafts
of documents. Exfoliation of evidence. At latest, when you get notice of a claim, you and
your client fall under an obligation to preserve materials. Failure to comply could result in
a range of penalties, from adverse inference by the trier of fact to tort liability in some
jurisdictions.
You need to take a look at who owns and controls files generated by your client’s
accountants, consultants, and other professional services firms.
(C) a computation of any category of damages claimed by the disclosing party, making
available for inspection and copying as under Rule 34 the documents or other evidentiary
material, not privileged or protected from disclosure, on which such computation is based,
including materials bearing on the nature and extent of injuries suffered; and
(D) for inspection and copying as under Rule 34 any insurance agreement under which any
person carrying on an insurance business may be liable to satisfy part or all of a judgment
which may be entered in the action or to indemnify or reimburse for payments made to
satisfy the judgment. What if the building where the slip and fall took place was recently
purchased and the seller agreed to indemnify for any slip-n-falls for 5 years. That
indemnity agreement is the type of document that you must disclose under this rule. FRE
411 says you can’t disclose this to the jury b/c you can’t consider insurance in determining
guilt or innocence. But, apparently, you can use it to assess your prospects of collecting
the judgment and your legal fees.
(E) The following categories of proceedings are exempt from initial disclosure under Rule 26(a)
(1):
(i) an action for review on an administrative record;
(ii) a petition for habeas corpus or other proceeding to challenge a criminal conviction or
sentence;
(iii) an action brought without counsel by a person in custody of the United States, a state,
or a state subdivision;
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(iv) an action to enforce or quash an administrative summons or subpoena;

(v) an action by the United States to recover benefit payments;
(vi) an action by the United States to collect on a student loan guaranteed by the United
States;
(vii) a proceeding ancillary to proceedings in other courts; and
(viii) an action to enforce an arbitration award. These disclosures must be made at or within
14 days after the Rule 26(f) conference unless a different time is set by stipulation or
court order, or unless a party objects during the conference that initial disclosures are not
appropriate in the circumstances of the action and states the objection in the Rule 26(f)
discovery plan. In ruling on the objection, the court must determine what disclosures—if
any—are to be made, and set the time for disclosure. Any party first served or otherwise
joined after the Rule 26(f) conference must make these disclosures within 30 days after
being served or joined unless a different time is set by stipulation or court order. A party
must make its initial disclosures based on the information then reasonably available to it
and is not excused from making its disclosures because it has not fully completed its
investigation of the case or because it challenges the sufficiency of another party’s
disclosures or because another party has not made its disclosures.
B. What are the subjects of required disclosures under Rule 26(a)(2)?

(2) Disclosure of Expert Testimony.
(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other
parties the identity of any person who may be used at trial to present evidence under
Rules 702, 703, or 705 of the Federal Rules of Evidence.
(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect
to a witness who is retained or specially employed to provide expert testimony in the case
or whose duties as an employee of the party regularly involve giving expert testimony, be
accompanied by a written report prepared and signed by the witness. The report shall
contain a complete statement of all opinions to be expressed and the basis and reasons
therefor; the data or other information considered by the witness in forming the opinions;
any exhibits to be used as a summary of or support for the opinions; the qualifications of
the witness, including a list of all publications authored by the witness within the preceding
ten years; the compensation to be paid for the study and testimony; and a listing of any
other cases in which the witness has testified as an expert at trial or by deposition within
the preceding four years.
(C) These disclosures shall be made at the times and in the sequence directed by the court. In
the absence of other directions from the court or stipulation by the parties, the disclosures
shall be made at least 90 days before the trial date or the date the case is to be ready for
trial or, if the evidence is intended solely to contradict or rebut evidence on the same
subject matter identified by another party under paragraph (2)(B), within 30 days after the
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disclosure made by the other party. The parties shall supplement these disclosures when
required under subdivision (e)(1).
C. What are the subjects of required disclosures under Rule 26(a)(3)?

(3) Pretrial Disclosures. In addition to the disclosures required by Rule 26(a)(1) and (2), a party
must provide to other parties and promptly file with the court the following information
regarding the evidence that it may present at trial other than solely for impeachment:
(A) the name and, if not previously provided, the address and telephone number of each
witness, separately identifying those whom the party expects to present and those whom
the party may call if the need arises;
(B) the designation of those witnesses whose testimony is expected to be presented by means
of a deposition and, if not taken stenographically, a transcript of the pertinent portions of
the deposition testimony; and
(C) an appropriate identification of each document or other exhibit, including summaries of
other evidence, separately identifying those which the party expects to offer and those
which the party may offer if the need arises. Unless otherwise directed by the court, these
disclosures must be made at least 30 days before trial. Within 14 days thereafter, unless a
different time is specified by the court, a party may serve and promptly file a list disclosing
(i) any objections to the use under Rule 32(a) of a deposition designated by another party
under Rule 26(a)(3)(B), and (ii) any objection, together with the grounds therefor, that may
be made to the admissibility of materials identified under Rule 26(a)(3)(C). Objections not
so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of
Evidence, are waived unless excused by the court for good cause.
D. What are the potential consequences for failing to disclose information required by Rule
26(a)?
Sanctions or order to produce under 26(g) or rule 37.
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IV. Oral Depositions – Rules 30, 45
A. What is an oral deposition? What strategic considerations might affect the decision
whether and when to take the oral deposition of a witness?
See p. 499. Live deposition is expensive. Other choice is deposition w/ written questions;
cheaper but you have to give them a list of questions so it yields less information. Party or Non-
party (rule 45 subpoena).
1) Limitations Absent Court Order:
a. 10 depostiions by each party

b. Deposition – One day / seven hours
c. No multiple depositions of witness
2) Reasonable Notice of Deposition
3) Location of Deposition: Party v. Non-Party
4) Document Production at Depostion: Rule 34 / Rule 45
5) Limited Bases for Instruction or Termination Rule 30(d)(1)
a. To preserve a privilege
b. To enforce a limitation (as to relevancy, for example) directed by the court
c. To present a motion asserting bad faith
6) Witness Review and Changes
Watch out for objections to your questions b/c if the objection is well taken by the court, you may wind
up losing the right to use that portion of the deposition.
B. Can you take the oral deposition of a non-party witness? If so, how do you get the witness
to appear at the deposition.
Rule 45 subpoena.
C. What can a witness do if she discovers after her deposition that her testimony contained
errors?
30 days to review and make changes. Rule 30(e)
D. Are there any limitations on where a deposition can take place?
Rule 30(a)(2) says that you need court permission to take the deposition of someone confined in
prison. Rule 30(b)(7) says you can take a deposition by phone or other electronic means and
that the location is considered “in the district” in such cases. Must get supboena from home
district if distance to deposition location >100 miles.
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E. Can a lawyer ever instruct a witness not to answer a question during a deposition? Under
what circumstances? .
Rule 30(d)(1): Any objection during a deposition must be stated concisely and in a non-
argumentative and non-suggestive manner. A person may instruct a deponent not to answer only
when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present
a motion under Rule 30(d)(4).
F. What limitations exist on the duration or number of depositions? Can they be changed?
Rule 30(a)(2)(A) says limit is 10 unless permission is granted by the Court. Does not include
expert depositions.
V. Interrogatories – Rule 33
A. To whom may written interrogatories be directed?

1) Only parties may be served with interrogatories; non-parties can be accessed via Rule 45
subpoena only.
2) Limited to 25, including all discrete subparts.
3) Furnish “such information as is available” to the party
B. Are there any limits on the number of interrogatories that can be served?
25, including all discrete subparts.
C. What are the strategic benefits that can be gained from serving written interrogatories?
Force other side to nail down their story. They are inexpensive. Can get witness names and
locations. Can be used for contention. Contention interrogatories help you understand the
other side’s theory of the case. Example: state each and every fact supporting your contention
that your client isn’t a jerk.
D. What are the disadvantages of written interrogatories as a discovery tool?

All in writing, no opportunity for direct confrontation.
E. How and when must a party respond to Rule 33 interrogatories?

1) Written response due within 30 days of service.
2) Answers under oath, signed by party.
3) Objections must be stated; untimely objections waived
4) Must answer to extent interrogatory not objectionable
5) Option to produce business records if substantially same burden
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F. Who must sign interrogatory responses and in what form? What is the significance of the
form of execution of interrogatory answers under Rule 33?
The answers are to be signed by the person making them, and the objections signed by the
attorney making them.
G. What options does a responding party have if the answer to an interrogatory may be
gleaned from documents produced in discovery? .
Rule 33(d) says you can just provide a list describing the business records that will provide the
answers. You then have to make those records reasonable available to the other side for
examination.
H. What are the potential consequences for failing to answer an interrogatory?

Rule 33(b)(4) All grounds for an objection to an interrogatory shall be stated with specificity. Any
ground not stated in a timely objection is waived unless the party’s failure to object is excused by
the court for good cause shown.
VI. Requests for Production and Inspection of Documents and Things – Rule 34
A. To whom may a Rule 34 request for inspection be directed?

Any party.
B. Are there any limits on the number of Rule 34 requests that may be served?
No.
C. Can anything besides paper documents be the subject of a Rule 34 request? If so, what
types of things may be within the scope of such a request?
You can ask for things. Aranovsky once inspected a 35 ton vapor degreaser.
D. How may a party respond to a Rule 34 request?

Written response w/in 30 days.
E. What are the potential consequences for failing to produce documents in response to a
Rule 34 request?
The party submitting the request may move for an order under Rule 37(a) with respect to any
objection to or other failure to respond to the request or any part thereof, or any failure to permit
inspection as requested
F. How may documents be obtained from a non-party witness? What can a non-party
witness do if she objects to the request for documents?
Under Rule 45(c)(2)(B) you can object to the Court within 14 days of receiving a subpoena.
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VII. Request for Physical Examination – Rule 35
A. How may a party seek a physical examination of another party?

Only discovery device that requires court order for good cause shown (unless other side agrees).
But, beware of other side agreeing and then backing out. Always best to have a court order in
your back pocket.
B. Under what circumstances may the examined party received a copy of the examination
report?
You can request it under Rule 35. By requesting the report, you (the examinee) waive your right
to privilege to similar examinations that you’ve had done on yourself. In-other-words, both sides
are privileged or neither side is privileged. But, you can always depose their expert w/o
requesting a copy of the report.
C. May a party seek a Rule 35 examination of a non-party witness?

Only a party or a person in the custody our under the legal control of a party.
VIII. Requests for Admissions – Rule 36
A. What is the purpose of a Rule 36 request?

Written request for admission of truth of any matter within 26(b)(1).
B. What is the effect of a Rule 36 admission?

The court can give you permission (leave) to withdraw your admission. Otherwise, it is
considered fact for this case only.
C. How may a party respond to a Rule 36 request? .

30 days to serve a written response or objection to each request. Must certify that you made
reasonable inquiry into each request for admission.
D. What are the potential consequences for failing to admit matters in response to a Rule 36
request absent a good faith basis for doing so?
It is deemed admitted. Also, you can be held accountable for the other side’s cost of proof.
IX. Failure to Make or Cooperate in Discovery, Sanctions – Rule 37
A. What must a party do before filing a motion to compel discovery?

Rule 37(a) says you can file a motion to comply “upon reasonable notice to other parties and all
persons affected thereby.”
B. For purposes of Rule 37 sanctions, does it matter whether a party completely refuses to
provide discovery as opposed to providing an incomplete or evasive response?
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No. Rule 37(a)(3) says “For purposes of this subdivision an evasive or incomplete disclosure,
answer, or response is to be treated as a failure to disclose, answer, or respond.”
C. What may a court order if it finds that a party failed to make discovery or a disclosure?
The Court may compel disclosure or impose sanctions, or both. 2/23/04 – Jones v Clinton
question: Can a Court levy discovery sanctions after the case is over? The underlying policy is
to ensure that attorneys and their clients follow the rules. Rule 11 talks about the purpose of
sanctions. But, that type of background information does not accompany Rule 37. So, we need
to try and interpret the purpose of sanctions under this rule. In favor of sanctions after a case
ends, you could cite the need to enforce the rules and prevent future bad behavior by parties and
attorneys. Also, some discovery misbehavior won’t come to light until the passage of time. On
the other side, you could say that if they wanted sanctions, they should not have settled the case.
And, usually when a settlement is reached, both parties waive any future damages known or
unknown. Otherwise, why would anyone settle if their liabiltiy was going to continue? Also, if the
attorney fees issue has not yet been addressed and the parties settle, isn’t it incumbent upon
them to address that issue (and all other material issues) in their settlement negotiations. Isn’t it
up to the Court? Can the Court impose discovery sanctions sua sponte? Don’t forget, Clinton’s
deposition took place in DC but the trial was in Arkansas. Rule 37(b)(1) says that the Court
taking the deposition can sanction for failure to show up or failure to answer a question; not for
lying. Misleading discovery may constitute fraud in the inducement which is actionable AND
grounds for trying to unwind the settlement deal. Clinton ended up paying $90k for Jones’ lawyer
and $1200 for court costs. There were no more coercive sanctions available, but the matter was
referred to the State Bar and Clinton’s license was suspended for lying in discovery. “Self help is
not permitted.” Didn’t matter that the lawsuit was a political vendetta. That still doesn’t give you
the right to violate the rules. So, the Court concluded that it did have the right to impose
discovery sanctions after case end. Continuing jurisdiction to address policy considerations of
discovery sanctions.
D. What sanctions may a court issue in the event a party fails to comply with an order to
provide or permit discovery?
Rule 37(g) “require such party or attorney to pay to any other party the reasonable expenses,
including attorney’s fees, caused by the failure.”
D WORKSHEET: DISCOVERY AND PRIVACY

1. Please review Rule 26(g). What is an attorney certifying when she signs a discovery
request? What is the significance of the qualifying “given the needs...” language of Rule
26(g)(2)(C)?
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By signing, the attorney certifies that he made a reasonable inquiry and concluded that the
request, response, or objection is:
1) Consistent with the rules

2) Not entered for any improper purpose
3) Won’t cause undue burden on the other party given the needs of the case and the
discovery already entered …
Basically, the rule says that by signing, you are attesting that you are not being a jerk about
discovery and trying to bury the other side in minutiae.
2. How would a party use Rule 26(g) to prevent discovery? What are the risks of such an
approach?
You can use it as a basis to object to unduly burdensome and overbroad discovery requests.
The risk is that the judge will rule against you and order disclosure and possibly order you to pay
fo the other side’s cost of fighting you on that motion.
3. Please review Rule 26(c). What is a “protective order?” Who can bring a motion for a
protective order?
An party served with a discovery request may seek a protective order from the Court. Protective
orders are Court orders specifiying how a discovery issue is to be handled, usually to prevent
undue embarrassment to a party. See Rule 26(c) supra. Court can mandate no disclosure,
limited disclosure, disclosure by particular means, disclosure in the presence of only certain
Court-designated personnel, etc.
4. What is the significance of the good cause requirement of Rule 26(c)?

Keeps everyone on the up-and-up and avoids time-wasting frivolous motions.
5. Which federal court may issue a protective order?

the court in which the action is pending or alternatively, on matters relating to a
deposition, the court in the district where the deposition is to be taken may make
any order which justice requires
6. What are the possible grounds for issuance of a protective order? What forms of
protection can the court provide by such an order? In what kinds of cases might
protective orders be sought?
Protection of trade secrets, undue embarrasment such as sexual history or medical records. The
Court can mandate no disclosure, limited disclosure, disclosure by particular means, disclosure in
the presence of only certain Court-designated personnel, etc.
7. Stalnaker v. K-Mart Corp., (1996) p. 508 (Sexual Harrassment Case)
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Rule 26(b) broad discovery request will not be limited to prevent embarrassment by Rule
26(c) where such embarrassing disclosure is central to the requesting party’s case and
information is not otherwise available.
In a hostile-work environment sexual harrassment claim, π, a former Kmart employee, noticed

depositions of non-party witnesses Rozenberg, Hyde, Olivares, and Casaert. Employer and ∆
Kmart sought protective order concerning voluntary romantic or sexual conduct. Court granted
Kmart’s motion to the extent that any such encounters were consentual but approved discovery
regarding any information related to unwanted harrassment or hostile work environment. Court
agreed with ∆ that voluntary relationships were irrelevant to the action at bar. Kmart asked for a
Rule 26(c) protective order to protect non-party witnesses involved in voluntary romantic conduct.
a. What are the relevant facts of the case?

b. What discovery was at issue in the case? Why did plaintiff want this discovery?
c. How did K-Mart respond to the notices of deposition and subpoenas? What was the exact
form of protective order sought by K-Mart? Why did defendant claim that the discovery
should not be made?
d. How did the court rule on the motion?
e. Why do you think that the court crafted the order as it did?
f. What reasoning did the court employ in reaching this decision?

The Court reasoned the FRE 412 only applied to victims of sexual misconduct. Any Kmart
employee with information regarding the supervisor accused of misconduct should be compelled
to testify. P. 510: “Any sexual harassment by Graves is relevant, however, whether of plaintiff or
of others. Consequently, the court will not preclude inquiry about any voluntary romantic or
sexual activities with Mr. Graves to the extent they show any conduct on his part to encourage,
solicity, or influence any employee of defendant to engage or continue insuch activities.”
g. What standard did the court employ for the showing of good cause?
p. 509. To establish good cause, that party must submit a particular and specific demonstration
of fact, as distinguished from stereotyped and conclusiory statements.” Gulf Oil Co. v. Bernard
(1981).
h. Why did the court limit the use of the discovery regarding Mr. Graves to litigation
purposes only?
To protect the privacy of those involved. See p. 510.
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i. Where do you think that the court’s ruling leaves the parties and the non-party witnesses?
If you are the plaintiff’s lawyer, what questions can you ask? What questions can you not
ask?
You can ask about any relationships with Mr. Graves, what their perceptions were, what their
employment status was before and after (were they rewarded for sex?).
j. What if deponent Rozenberg call you as her lawyer and says she does not want to be
deposed about any affairs with Graves? What can she do? What would happen if
Rozenberg simply refused to show up at her deposition?
She can make herself unavailable but might face civil contempt charges under Rule 45. She
could also claim that she was a victim and seek protection under FRE 412. Could ask to her
deposition and testimony taken in camera under seal.
k. Please review the hypothetical contained in note 6, page 512. Should the requested
discovery be permitted? Why or why not?
I would say no because the π is only guessing that such a connection may exist. Without
substantive proof that such prior incidents occurred and that they are relevant to the π’s case, I
would not allow it. Π could look for similar lawsuits and find out how they were resolved.
l. Please review note 10(a) on page 515. Should the rules or legislation prohibit confidential
settlements? If not, why not? If so, under what circumstances?
Confidential settlements should be allowed because they encourage settlement of claims and
reduce litigation. In instances where keeping information confidential could pose a risk to public
safety or health, then the Courts should have authority to lift confidentiality protection (or not grant
it in the first place).
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8. Schlagenhauf v. Holder, (1964) p. 516 (Greyhound Bus Case) Physical or Mental Exams
“Good Cause” requirement of Rule 35 requires a higher showing of need before a party who has
not placed their physical or mental condition in controversy may be ordered to submit to medical
or physical examination.
Greyhound Bus, driven by Schlagenhauf, drives into back of tractor trailer, injuring passengers.
Passengers sue Greyhound, Schlagenhauf, and the owners of the tractor and trailer for personal injuries
suffered in the accident. Pursuant to a series of cross-complaints, the owners of the tractor and trailer
allege that Schlagenhauf was mentally and physically incapable of driving on the day of the accident.
They petition the District Court to order physical and mental examinations of Schlagenhauf. District Court
agrees and the Circuit Court of Appeals denies Schlagenhauf’s petition for writ of mandamus. U.S.
Supreme Court grants certiorari to review Rule 35 contruction and validity.
Majority: Not enough substance to the accusations against Schlagenhauf. Request for examinations
does not rise to the level of “good faith.”
Black & Clark: We agree that examinations should only be granted on “good cause” but we think there
was good cause. To wit, witnesses saw Schlagenhauf drive down a 4 lane highway in good weather
straight into the back of a semi whose lights could be seen half a mile away and it was not the first time
he did exactly that.
Douglass: No examinations should be allowed or it will subject the examinee to a fishing expedition into
his private medical history searching for any possible ailment upon which to affix causation of the accident
in controversy.
Name Position Π in these actions: ∆ in these actions:

Robert Schlagenhauf Bus Driver 1. Application for writ of mandamus 1. Negligence suit by passengers.
ordering trial judge to deny petition for 2. Cross-cross complaint by
medical and pyschological National Lead for
examinations of Schlagenhauf. NEGLIGENCE.
3.
Contract Carriers Owned Tractor 1. Petition for medical and 1. Negligence suit by passengers.
pyschological examinations of 2. Cross-cross complaint by
Schlagenhauf. Greyhound Corp. for
NEGLIGENCE.
Joseph McCorkhill Tractor driver 1. Negligence suit by passengers.

National Lead Owned Trailer 1. Petition for medical and 1. Negligence suit by passengers.
pyschological examinations of 2. Cross-cross complaint by
Schlagenhauf. Greyhound Corp. for
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Name Position Π in these actions: ∆ in these actions:

NEGLIGENCE.
Greyhound Corp. Owned Bus Cross complaint against Contract 1. Negligence suit by passengers.
Carriers and National lead FOR 2. Cross-cross complaint by
NEGLIGENCE in damage to its bus National Lead for
claiming: driving too slow , not NEGLIGENCE.
staying in its lane, and improper rear
lights.
Various Passengers Passengers on Schlagenhauf, Contract Carriers, -
Greyhound McCorkhill, National Lead. FOR
Bus NEGLIGENCE related to
PERSONAL INJURIES.
a. What are the relevant facts of the case? Who was suing whom, and why?
b. What discovery was at issue? How did the District Court rule on the request to conduct
the examination?
c. What was the holding of the Supreme Court? What reasoning did the Court employ in
support of its holding?
d. What was the state of the district court record regarding whether good cause existed for
the requested examinations? What sort of record should be made on remand for the
requested examinations?
The DC just granted the motion for examination without comment.
e. What was the basis for Justice Black’s separate opinion concurring in part and dissenting
in part? Do you agree with Justice Black? Why or why not?
f. What was the basis for Justice Douglas’ dissenting opinion? Do you agree with Justice
Douglas? Why or why not?
g. Please review note 1, page 524: What do you think it means for a condition to be “in
controversy?” If a physical or mental condition is in controversy, what is the point of
requiring the requesting party to show “good cause?”
The Court will not allow a party merely allege a physical ailment or need for examination. They
will likely require the party to be examined to be the one placing their health in controversy before
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allowing an examination. Even then, “good cause” must be shown, probably in the form of expert
testimony planned, etc.
h. Please review note 3 on page 524. Can a party insist that a particular doctor conduct a
requested examination, based on religious or other principles? What would happen if a
party agrees that good cause exists for an examination but objects to the form of
examination on the grounds that it would too stressful because of a heart condition?
Hell if I know!!!
E WORKSHEET: WORK PRODUCT AND EXPERTS
I. Hickman v. Taylor, 1947 p. 525 (Lawyer Files on Sunken Tugboat) Privilege & Trial Prep.
5 crewmembers drowned when a tug sank. In anticipation of a possible lawsuit, Fortenbaugh (D/Taylor’s
atty) interviewed survivors. P/Hickman brought action and sought to compel Fortenbaugh’s interviews,
and to also have his recollections of any interviews where no notes were taken.
Note: since Fortenbaugh is not a party, limited discovery devices available to get the interview notes –
pretty much restricted to deposition with subpoena duces tecum. P used the wrong rule (interrogatory) to
obtain the info.
Held: although the interview memos are relevant, and not privileged (under the attorney-client privilege –
because interviewees were not his clients), they were prepared in anticipation and were thus protected
from discovery. In this case, maybe substantial need, but no undue hardship because P would have
interviewed the survivors themselves.
Bottom Line: facts are discoverable, not strategy. An attorney’s strategy is important – so important
that this doctrine was made up out of thin air and codified as FRCP 26(b)(3) – because it preserves the
adversary nature of the system. If all the facts are known, sometimes the only thing that will win the case
is the strategy of the lawyers.
Covered in class on 2/9/04. Work product is important in guiding you on how to prepare a case. You
must always consider whether your work may be discoverable by the other side. You are acting on behalf
of a client. Who you are speaking with, what you are writing down, all may have an impact on your client.
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A. What was the underlying lawsuit about?

B. Identify specifically the discovery sought by plaintiff from defendant that was the subject
of the Supreme Court’s opinion.
38th interrogatory on p. 526 seeking “statements of the members of the crew of the Tugs …”.
They wanted the lawyer Fortenbaugh’s interviews and they wanted him to create a record of
conversations he had which were not documented.
C. What information did the District Court order attorney Fortenbaugh to provide in
discovery, and in what form.
P. 527 – the DC ruled that the information was not privileged and ordered Fortenbaugh to turn
over all his interview notes and to create a record of interviews conducted but not supported by
notes.
D. What was the trial court’s rationale for ordering discovery?

That the interviews between a lawyer and witnesses was not privileged.
E. How did Fortenbaugh respond to the trial court order, and what was the consequence of
that response?
Fortenbaugh informed the Court that he refused to comply with its order. The DC ordered him
imprisoned for contempt.
F. What was the Third Circuit Court of Appeals’ decision? What was the Court’s rationale
regarding its decision concerning the requested discovery.
The 3rd Circuit, sitting en banc reversed, holding that the interviews were “attorney work product.”
II. Hickman v. Taylor – the Supreme Court’s Decision

A. What was the Supreme Court’s decision?
Facts: In February 1943, tug “J.M. Taylor” sank in an unusual accident of unknown cause. In
March, attorney Fortenbaugh privately interviewed survivors. One survivor sued, naming as
defendants the tug owners. One year later, the plaintiff filed an interrogatory requesting that the
defendants attach copies of any written statements taken from the crews, while oral statements
were to be set forth in detail. Through Fortenbaugh, the defendants declined on the ground that
such matter was “privileged” as “thoughts of counsel.” District Court, en banc, held that the
matters were not privileged. Upon further refusal to disclose, the trial judge adjudged them in
contempt and ordered them imprisoned. The 3rd Circuit, also en banc, reversed judgment and
held that the information was the “work product of the lawyer” and hence privileged by the
Federal Rules of Civil Procedure. The Supreme Court granted the plaintiff certiorari.
Key Issue: Are the mental impressions and legal theories of an attorney discoverable?
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Plaintiff’s claim: The attorney-client privilege must be strictly confined to confidential

communications made by a client to his attorney, thus not protecting statements made from third
persons to the attorney. Big companies could send out an army of lawyers to talk with witnesses
so as to cloak all evidence in privilege.
Holding (Murphy): Judgment affirmed, because petitioner did not show that denial of such
production would unduly prejudice his case or cause him any hardship or injustice.
Reasoning: The information in question is neither privileged nor irrelevant, but discovery is
unwarranted when it probes the files and mental impressions that represent the “work product” of
a lawyer. Exceptions are made when production of relevant and non-privileged facts, not legal
theories, are “essential to the preparation of one’s case” or where a witnesses can be reached
only with difficulty.
Notes: The court held that “it is essential that a lawyer work with a certain degree of privacy, free
from unnecessary intrusion by opposing parties and their counsel.” This is the essence of the
adversarial system. The court also concluded that, were such materials open to opposing counsel
on mere demand, much of what lawyers put down in writing would remain unwritten. This fear of
encouraging bad lawyering was a key reason for not allowing this type of discovery.
-- There was no rule prior to the Hickman decision, which became the leading discovery
case. Why was it such a big case? This was the real test-case ten years after the Rules. The
Supreme Court had to ask what the rules really meant and how far they were willing to let this
discovery issue go. Also, not that many discovery cases go all the way to the Supreme Court
because certiorari is typically granted only after a final resolution, which is absent in discovery
cases. This case led to the formulation of 26(b)(3), which stated that “the court shall protect
against disclosure of the mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.”
-- To what extent does the law protect private information, such as whether innocent third
parties in the Jones case had to be deposed about having sex with the President, or whether an
attorney had to reveal professionally private information in the Hickman case? In the Jones case,
there was some screening by the judge; Jones claimed it might show a pattern of behavior, but
the judge was very cautious not to overemphasize its relevance. The judge basically said that it
was relevant enough based on the broad scope of discovery; however, she also retained the right
to disallow the testimony at trial.
-- Hickman involved relevant information, that was not privileged because it was between
the attorney and a third party—thus, no attorney-client privilege). So why did the Supreme
Court impede this discovery? The plaintiff could have gotten this information other ways, and
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was just trying to get backup information to cover their bases. But why would that be a problem?
For one thing, discovery is about the facts and they already knew the facts. For the other, there
are notes and other things intermixed with their facts that have strategy and should not be turned
over. Strategy and theories should be protected. Interrogatories to get factual information is OK;
the mental processes are privileged but not the underlying facts.
Work-product protection is not absolute. Fact questions have to be answered by an

attorney. What the Hickman court was most concerned about, though, were oral statements of
third parties to an attorney. They did not, under any circumstance, want to see an attorney end up
serving as a witness because they make bad witnesses and because it would encourage bad
lawyering.
Hickman went beyond what was later articulated in 26(b)(3) by protecting an attorney’s
ideas or oral statements made to the attorney, whereas 26(b)(3) restricted itself to documents
and tangible things. So, if someone requests these ideas or oral statements, an adversary can
cite Hickman as common-law precedent rather than merely relying upon the Rules.
B. What arguments did plaintiff make supporting its discovery request? How did the
Supreme Court respond to those arguments?
C. What was the Supreme Court’s rationale for recognizing an attorney work product
objection to discovery? What policy arguments did the Court rely on?
D. How did the Supreme Court define a lawyer’s work product?
E. What discovery requested in Hickman did the Court find constituted work product? Why
did the Court find the information protected from discovery?
F. Did the Supreme Court leave open the possibility that work product could ever be
discoverable? If so, under what circumstances?
G. Did the Supreme Court identify any type of work product that could not be subject to
discovery? If so, what type of work product falls into this protected category?
III. Rule 26(b)(3)

(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a
party may obtain discovery of documents and tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for
another party or by or for that other party’s representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party
seeking discovery has substantial need of the materials in the preparation of the party’s
case and that the party is unable without undue hardship to obtain the substantial equivalent
of the materials by other means. In ordering discovery of such materials when the required
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showing has been made, the court shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative of a party
concerning the litigation. A party may obtain without the required showing a statement
concerning the action or its subject matter previously made by that party. Upon request, a
person not a party may obtain without the required showing a statement concerning the action
or its subject matter previously made by that person. If the request is refused, the person may
move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion. For purposes of this paragraph, a statement previously
made is (A) a written statement signed or otherwise adopted or approved by the person
making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral statement by the person making it
and contemporaneously recorded.
A. Did Hickman interpret the provisions of Rule 26(b)(3)? Why or why not?
If Hickman being handled today, you would raise these issues:
1) Availability of witnesses
2) Attorney – client privilege has been expanded by this rule.
3) Undue burden, you might not be allowed to talk w/ witnesses but you could probably
depose them
B. Under what circumstances may a party refuse to provide discovery on the grounds of the
Rule 26(b)(3) trial preparation material/work product objection? In other words, what is the
test for a work product objection under Rule 26(b)(3)?
Cannot concern mental impressions, conclusions, opinions, or legal theories of an attorney or
other representative of a party concerning the litigation.
C. Under what circumstances under Rule 26(b)(3) can a party seeking discovery overcome a
work product objection?
If the party previously disclosed the information or if it can demonstrate substantial need and
inability to obtain the information elsewhere without substantial hardship.
D. What work product will a court not order produced even in the face of a showing by a
requesting party that might otherwise overcome a work product objection?
Mental impressions, conclusions, opinions, or legal theories of an attorney or other representative
of a party concerning the litigation
E. How does the scope of work product protection from discovery provided under Rule 26(b)
(3) compare with the scope of work product that the Supreme Court recognized in
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Hickman v. Taylor? Is it identical? If not, in what way is Rule 26(b)(3) broader and/or in
what way is it more restrictive than Hickman?
Hickman went beyond what was later articulated in 26(b)(3) by protecting an attorney’s
ideas or oral statements made to the attorney, whereas 26(b)(3) restricted itself to documents
and tangible things. So, if someone requests these ideas or oral statements, an adversary can
cite Hickman as common-law precedent rather than merely relying upon the Rules.
F. Some cases refer to “qualified” work product and “absolute” work product. What do you
think would be difference between them?
The Supreme Court initially recognized this privilege in Hickman v. Taylor, 329 U.S. 495, 510-11
(1947), which declared that all work-product of an attorney enjoys at least qualified immunity from
civil discovery, i.e., such material was held discoverable only upon a showing of necessity and
justification. The Court further held that any portion of work-product material reflecting the mental
impressions, opinions or strategy of an attorney is entitled to absolute immunity from discovery.
See id. at 511.
Rule 26(b)(3) of the Federal Rules of Civil Procedure codifies this two-tiered privilege. It provides
for the discovery of "documents and tangible things" prepared in anticipation of litigation "only
upon a showing that the party seeking discovery has substantial need" of the materials to prepare
his case and that he cannot obtain the materials elsewhere without "undue hardship;" it further
provides that the "mental impressions, conclusions, opinions, or legal theories" of the attorney
shall never be disclosed. Thus, all documents prepared in anticipation of litigation--not merely
those which contain legal strategy or opinions--are protected by at least a qualified privilege
under the civil discovery rules and need be produced in civil discovery only upon a substantial
showing of need.
Seek Resist
Show that it is discoverable Claim Work Product
Show “Qualified” Work Product Show “Absolute” Work Product
IV. Experts
A. What are the requirements of Rules 26(a)(2) and 26(a)(4) regarding disclosure and
discovery of expert witness information?
1) Identity of experts or employees testifying as experts.
2) Report regarding what they will testify to including appropriate exhibits, their
qualifications, publications, and previous expert testimony.
3) Compensation of expert.
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4) At least 90 days before trial or within 30 days of disclosure if being offered as rebuttal of
that disclosure..
5) In writing, signed & served.
B. What is the purpose served by requiring an expert report under Rule 26(a)(2)?
To avoid surprises at trial and to allow the other side to prepare its rebuttal.
EXPERT TESTIMONY ACCORDING TO MY COUSIN VINNY
Vinny: I object to this witness being called at this time. We've been given no prior notice he'd testify. No
discovery of any tests he's conducted or reports he's prepared. And as the court is aware, the defense is
entitled to advance notice of any witness who will testify; particularly those who will give scientific
evidence, so that we may properly prepare for cross-examination as well as give the defense an
opportunity to have the witness’s reports reviewed by a defense expert, who might then be in a position to
contradict the veracity of his conclusions.
Judge: Mr. Gambini?
Vinny: Yes sir?
Judge: That is a lucid, intelligent, well-thought out objection.
Vinny: Thank you, your honor
Judge: Overruled.
C. Why would a party retain an expert in connection with litigation without intending to use
the expert as a witness at trial?
To analyze the matter. Anything you’ve said to the expert or given to the expert is discoverable.
So, if you reviewed any drafts of his report, made any suggestions, commented on the work of
other experts, all of it will be discoverable.
D. May an expert who is retained for litigation but is not expected to be called as a witness
nevertheless be the target of discovery? See Rule 26(b)(4)(B).
26(b)(4)(B) A party may, through interrogatories or by deposition, discover facts known or
opinions held by an expert who has been retained or specially employed by another party in
anticipation of litigation or preparation for trial and who is not expected to be called as a
witness at trial only as provided in Rule 35(b) (if you asked for a copy of the report you waive
work product privilege) or upon a showing of exceptional circumstances under which it is
impracticable for the party seeking discovery to obtain facts or opinions on the same subject
by other means.
E. Why did the Court order discovery of a non-testifying expert in Thompson?
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Thompson v. The Haskell Co. (1994) p. 539 (Discovery of Non-Testifying Expert)
Magistrate judge in Florida
Facts: Plaintiff Thompson was fired from her position with defendant Haskell Co., on June 5,
1992. Ten days later, she was examined by Dr. Lucas, a psychologist. In September 1993,
plaintiff filed a complaint alleging that, as a result of sexual harassment by a supervisor in the
employ of the defendant, she was “reduced to a severely depressed emotional state” and then
terminated. Defendant sought discovery of documents, particularly a report on the mental state of
the plaintiff ten days after the firing. The report was in the possession of Dr. Lucas. Plaintiff filed a
Motion for Protective Order.
Key Issue: Given that the plaintiff chose not to call Dr. Lucas as an expert, is the report
discoverable?
Rule: Facts or opinions of an expert who was retained in anticipation of litigation and who is not
expected to be called at trial, may be discovered “upon a showing of exceptional circumstances
under which it is impracticable for the party seeking discovery to obtain facts or opinions on the
same subject by other means.”1
Holding (Snyder): Protective order denied, because it appears there are exceptional
circumstances favoring disclosure of Dr. Lucas’ report.
Reasoning: The information in the report was crucial to the trial outcome and unique since no
comparable report was prepared during the weeks after the firing (i.e. special circumstances). Dr.
Lucas’ report was the only authoritative source on the plaintiff’s state of mind at that time of the
firing.
Notes: Why not tell the defendant they should have done their own investigation and they lose out
for not doing it? Because they had no idea at the time of the firing that they should have expected
a lawsuit based on the claim of mental distress.
Chiquita v. M/V Bolero (1994) p. 541 (The “Yes, We Have No Bananas” Case) Experts
Magistrate judge in New York district court
Facts: Chiquita engaged International Reefer to transport 154,000 boxes of bananas from
Ecuador to Germany aboard the M/V/ Bolero Reefer. Because of alleged malfunctions of the
vessel’s loading cranes and side-ports, 43,000 boxes were left on the wharf and later disposed of,
while the cargo that did arrive in Germany was allegedly in poor condition. Shortly after it docked,
marine surveyor Joseph Winer examined the vessel and loading gear at Chiquita’s request.
Chiquita later sued for cargo loss and damage, and International Reefer applied to compel
1
Federal Rules of Civil Procedure 26(b)(4)(B).
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discovery of Mr. Winer. Chiquita objected on the grounds that he was a non-testifying expert to
whom discovery is closely circumscribed by 26(b)(4)(B).
Key Issue: Are the findings of Mr. Winer, a non-testifying expert, discoverable?
Rule: Facts or opinions of an expert who was retained in anticipation of litigation and who is
not expected to be called at trial, may be discovered “upon a showing of exceptional
circumstances under which it is impracticable for the party seeking discovery to obtain facts or
opinions on the same subject by other means.”2
Holding (Francis): Application denied, though Chiquita shall produce from Mr. Winer’s files those
documents that do not reflect his observations and opinions or are other otherwise privileged.
Reasoning: Mr. Winer was hired to make an evaluation in connection with expected litigation, and
26(b)(4)(B) therefore applies. Furthermore, no exceptional circumstances existed; International
Reefer had the exclusive opportunity to examine the vessel during the trip, and its failure to
engage its own marine surveyor in a timely manner should not be rewarded by permitting
discovery of Chiquita’s expert.
Notes: This seemed like a similar case to Thompson; Chiquita’s defense was International Reefer
had an opportunity to make their own investigation and chose not to. Unlike in Thompson, where
they had no way to know that they needed to make this type of investigation, the magistrate
concluded that International Reefer had access to this information because it was their vessel.
Also, it was not in the vein of delicate or personal information like someone’s mental state.
-- The court allowed the expert to produce documents that were given to him that would
otherwise have been discoverable, such as documents produced by laypersons; those
documents do not become less discoverable by virtue of being in possession of the expert.
However, the court refused anything that Winer himself produced or concluded.
-- 26(b)4(C) requires a party to pay some amount for the value they got from the expert.
There are exceptional circumstances that compel discovery of a non-testifying expert; in such an
event, like the situation in Thompson, the commandeering of the expert by the party seeking
discovery requires that, in return for the facts and opinions of the expert, they share the cost of
the initial finding.
-- Was the very existence of Winer absolute work product privilege? You could make that
argument. This was all based on the lawyer’s request for the expert to test the lawyer’s
impressions. Thus, it should all be privileged. Start big, then get detailed. You avoid getting lost
in the details that way.
2
Federal Rules of Civil Procedure 26(b)(4)(B).
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-- HYPO – what if Winer took photos of the ship, then it was repaired or changed?
F. Why did the Court decline to order discovery of a non-testifying expert in Chiquita?
G. Are Thompson and Chiquita distinguishable? If so, how?
F WORKSHEET: POWER OF PROCEDURE

1. Please review Exercise 7 on page 78. If you were an associate working for the law firm
representing President Clinton, how would you structure a discovery plan? What are your
most important objectives? What constraints would you consider? Which documents would
you consult in developing such a plan? In what sequence or order should your discovery
proceed?
You would want to know who her witnesses were going to be. What were the consequences of
Clinton’s alleged actions? How does she know that her own employment was affected by Clinton and
not by her own actions? Think about the costs to Clinton; he does not have unlimited resources.
Also, what about public perception? A few years ago, in a suit regarding the public schools,
depositions were taken from several students. The publicity was very negative.
We need to look at 26(b)(1) and also the rules regarding discovery devices 30-36 & 45. Also, look at
the Court rulings thusfar to see what the Court believes the weak points of the case are.
I would try to discover all of her personnel files from all her jobs to try and build a case that her
promotions or lack of promotions were reflective of her job performance.
Could ask for depositions of the head of AIDC and others who had influence over Jones at her work
site. The deposition process will let you know if this is a friendly witness and what they have to say.
Also, if you take a deposition, at least you’ve preserved their testimony in case they are not available
at trial or if they become unfriendly.
Contention interrogatories – identify all documents and evidence specific to the allegations of the
complaint.
2. Please review Exercise 8 on page 83. What interrogatories would you draft from Jones to
Clinton assuming that the court had ruled out any discovery into past sexual activity of either
party?
I would want to know what she thinks is the basis of her claim. I would want to know who was
funding her lawsuit.
3. Please review note 2 on page 83: What options would be available to Clinton’s lawyers
regarding responsive information contained in Clinton’s files? Production
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Protective order under Rule 26(c) or could try to claim absolute privilege and just list what the
documents are but not disclose them.
4. Please review note 1 on page 89: What is to stop a party faced with requests from potentially
damaging admissions from simply denying everything?
They will be liable for the other side’s costs in fighting them on that admission.
5. Why do you think that the President wanted the Judge present at his deposition?
To obtain timely rulings on any objections so that the proceeding would not be continued and the
president would waste more time coming back again and endure more negative publicity.
6. How would you compare the Jones deposition excerpt from pp. 91-92 to her interrogatory
response on pp. 79-80?
The response to the rogs on pp. 79-80 were far more detailed, clearly written by a lawyer. Her
deposition was quite vague. It was the “duck and cover” or “rope-a-dope” defense. Raises the
question of whether she can adduce sufficient evidence to meet her burden of production. Also, it
gave a pretty clear picture that Paula wouldn’t’ be a very sympathetic witness. You might want to
videotape her deposition to use for impeachment purposes at trial.
7. What was the purpose of Clinton’s lawyer objecting that Ms. Jones answer that “they would
never say that if they did know about it” was “not responsive?”
Because she’s not talking about personal knowledge; she is speculating about other people’s
motives. He has now preserved the record so that the judge can strike the answer from the trial
transcript.
8. Please review note 1 on page 92. What protection is available to a non-party witness who
believes that compliance with a subpoena would be unduly burdensome or expensive?
Rule 45(c)(2)(B) says you can object to the subpoena within 14 days of receipt; judge can quash.
9. What is the significance for purposes of objecting to disclosure of a communication with

counsel or writing by a witness whether the witness was an agent of the client or an agent of
the lawyer?
Attorney-client privilege attaches to parties working as agents of the client b/c it’s the same as the
lawyer talking to the client.
10. Please review Exercise 9 on page 100. What arguments would you make regarding whether
the PJLF was a consultant of the lawyers and within the scope of Rule 26(b)(3) attorney work
product? PR department consulting with counsel about the effect of communications on a
lawsuit?
Who are they working for? If they are working for Jones, then communications between Jones’ agent
and her lawyer are privileged b/c it’s same as talking to her. But, if they are agents of the lawyer, it is
Page 161 of 240

at best work product and qualified privilege. Also, is the work being done in preparation for trial? Or
are they looking at the effect of litigation on Jones’ reputation, not on how to win at trial. If it was just
a public relations function, it’s probably not privileged. An in-house PR department dealing with its
legal department might get privilege. But an outside PR agency might not. So, use or misuse of the
press in litigation is an issue and the assertion of privilege might not hold up. How do you structure
the relationship from the outset so as to protect them from discovery.
11. The following questions use variations on the facts in Jones v. Clinton but they are not based
on the discovery conducted in the actual case. Answer these questions based on the current
Federal Rules of Civil Procedure rather than the material in the Jones case.
a. The Complaint: Assume that Jones sues Clinton only for intentional infliction of emotional
distress, claiming $100,000 in damages. The basic factual allegations are the same: she
and a co-worker are staffing a table at a conference being held at a hotel; a state trooper
asks her to come to Clinton’s room; she meets with Clinton, who allegedly behaves as
claimed in the actual complaint; she flees and returns to the conference. Jones sues after
“The American Spectator” publishes an article asserting that a woman named “Paula” had
sex with the Governor during the conference.
b. The Answer: Assume that Clinton admits having spoken at the conference on the day in
question but denies meeting Jones. Assume there is no second defendant.
c. Please answer the following questions based on these and the following hypothetical
facts, identifying the rules on which you base your answer:
i. What disclosures will plaintiff Jones be required to make initially?

Witness list, which should include her co-worker and any others she may have spoken with.
Anyone from her office who may have witnessed harrassment. Document list. Could ask for
a Rule 35 examination. Damage calculations and insurance coverage as well. Because she
is claiming
ii. What disclosures will defendant Clinton be required to make initially?

Witness list, insurance coverage, damages, document list
iii. After the initial required disclosures have been completed, Jones serves
interrogatories on the editor of “The American Spectator” asking a series of questions
about how the magazine learned of any interaction between her and Clinton on the
date in question. Are these interrogatories proper?
NO, need a Rule 45 subpoena. Rogs are for parties only under Rule 33.
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iv. Instead of serving interrogatories, Jones lawyer decides to depose the editor. Is that
proper?
Yes, Rule 45
v. The editorial offices of “The American Spectator” are in Richmond, Virginia. The
Jones v. Clinton case was filed in Little Rock, Arkansas. Can the editor be forced to
give a deposition if Jones’ lawyers want to take it in Richmond?
Need a subpoena from that district Court. Rule 45.
vi. Can Jones later use the editor’s deposition at trial?

Rule 32 says yes, if unavailable.
vii. Jones also serves interrogatories on Clinton. One interrogatory asks whether Clinton
used a room at the hotel during part of the day that he attended the conference.
Clinton tells his lawyer that he does not remember. Can Clinton answer the
interrogatory by simply stating “I do not remember?”
Must use information available and make a reasonable inquiry. Rule 33.
viii. If Clinton refuses to answer a question during his deposition, what procedure should
Jones’ lawyer use to seek to force an answer?
Three times you can refuse to answer a question in a deposition:
1. Privilege
2. Court Order (Protective Order)
3. Stop deposition before it is answered, demand to call the Court for a ruling.
4. Other side can use Rule 37 and move to compel.
ix. Can Jones use a request for production of documents to obtain from the hotel
manager a copy of the diagram of the room that Clinton used?
No, it would need to be a subpoena (SDT) under Rule 45. Rule 34 (production of documents)
is only for parties.
x. Is there another method by which Jones could obtain the diagram from the hotel
manager?
SDT under Rule 45.
xi. Can Clinton force Jones to undergo a psychological evaluation?

Rule 35 says if the mental state is “in controversy” you can make the motion.
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xii. Soon after the discovery phase of the case begins, Jones’ lawyers consult a professor
of psychology at the University of Westmoreland who specializes in the impact of
trauma. They ask Prof. Sykee her opinion as an expert in the field as the possibility of
severe trauma resulting of a single incident of the kind Jones alleges. Prof. Sykee
responds that while not impossible, it is extremely unlikely that a significant trauma
would ensue. The lawyers decide that they will not use the professor as a witness.
Must they inform Clinton’s lawyers?
Work product. Expert specially retained who will not be called. 26(b)(4)(B). No, it’s absolute
work product.
Always think about what you are asking for. Couldn’t get the Linda Tripp tapes b/c asked for
“documents” and not “tapes.” Don’t allow other side to evade answer. Think about how
many ways you can ask the question so that the other side can’t worm their way out.
G WORKSHEET: POWER OF PROCEDURE DISCOVER,

RELEVANCE, PRIVACY
See Rule 26(g); lawyer must sign discovery request certifiying good faith reasonable
investigation. Language is similar to Rule 11.
1. How did Jones’ new lawyers attempt to obtain discovery about Clinton’s past sexual
encounters? What rules did they employ?
2. On what grounds did Clinton seek a protective order in response to the discovery strategy of
Jones’ new lawyers? What specifically did he want the court to order?
3. What arguments did Jones make in opposition to the motion?
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4. What additional arguments did Clinton make in his opposition to motion to compel
interrogatory responses?
5. How did the court rule on the motion to compel?
6. Please review note 1, page 111: Do you think that a confidentiality order reflects an
adequately compromise between discovery and privacy interests? Do you think that Judge
Wright erred in apparently relying on the confidentiality order? Why or why not?
7. Should the court have revisited the issue once the leaking began? What enforcement
problems are present with a confidentiality order?
8. Please see Exercise 10. Do you agree with Judge Wright’s decision on the motion to
compel? How would you have decided the question? Be prepared to describe fully your
analysis with regard to the interrogatories and proposed depositions.
9. Should it make any difference in weighing the right to discovery against privacy interests
whether the affected individual is a non-party? Why or why not?
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10. What grounds were asserted by the “Jane Doe”witnesses as a basis for a protective order?
11. What was the basis for the court’s January 9, 1998 ruling denying the motions for protective
order?
12. Please review note 1, page 116: Should Judge Wright have taken into account the non-party
status of the witnesses? Should the court have taken a different approach to balancing the
interests of the plaintiff and the non-party witnesses? If not, why not? If so, what should the
court have done differently?
13. Please review Exercise 11. Should public policy interests be taken into consideration when
fashioning discovery orders? If not, why not? If so, what types of interests should be
considered and how should the court conduct the balancing?
14. What was the basis for Clinton’s assertion that first amendment considerations did not
imposition of a protective order?
15. Do you agree with Judge Wright’s November 25, 1997 order that the names of individual
contributors should remain confidential? Why or why not?
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16. On what basis did Clinton contend that information about the PJLF was relevant to Jones v.
Clinton?
17. Did the court’s November 25, 1997 decision permitting discovery about the number of
contributors, the amounts raised, communications with Jones and information about
organization and finances of the organization strike a satisfactory balance? Why or why not?
18. Please review note 1, page 121. Do you think the court would have reached the same
decision about individual identification if the defendant had been a corporate CEO? Why or
why not?
H RULE 56: SUMMARY JUDGMENT
Summary Judgment: A motion for summary judgment provides a procedure for terminating without trial
actions in which 'there is no genuine issue as to any material fact and ... the moving party is entitled to
judgment as a matter of law.' [FRCP 56(c) (emphasis added)] Liberal pleading rules allow the assertion of
claims and defenses that may have no evidentiary support. A motion for summary judgment 'pierces' the
pleadings and puts the opponent to the test of affirmatively coming forward with sufficient evidence for its
claims or defenses to create a genuine issue for trial. [Celotex Corp. v. Catrett (1986) 477 US 317, 325,
106 S.Ct. 2548, 2554; see also Schwarzer, Hirsch, & Barrans, The Analysis and Decision of Summary
Judgment Motions (1992) 139 FRD 441] .
Does the existence or non-existence of a fact change any element or material issue of the case? Would the
outcome of the case change? Clinton v Jones was full of immaterial facts that could not change the outcome of
the case. Moving party still has to show that based on the facts they are entitled to judgment as a matter of
law.
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So, if there is no genuine issue of material fact, you don’t automatically get summary judgment. You still have
to show how you win as a matter of law. Here we are dealing with whether there is grounds for summary
judgment. So, in Anatomy, if Roger Graham stipulates that he owned the car, etc. he must still argue that he is
entitled to judgment as a matter of law. Both sides might stipulate that there is no material issue of fact, BUT
they could both interpret the legal ramifications differently. “I think the statute says I win.” “No, you are using
the wrong rule of statutory construction. It really means I win.”
Would a rational trier of fact find that there is enough evidence to conclude that each element has been
proven? There are different burdens for summary judgment – you can produce all kinds of evidence; but at trial
you can only render verdict on the facts adduced at trial. If π meets her burden – that is that a rational jury
could find in her favor based on the evidence. Now the other side has to show that the evidence is not
overwhelming enough to show that it would only be decided in her favor. A rational jury could go either way.
The party with the burden of persuasion must demonstrate to the jury that its version of the facts is more likely
than not true. The burden of production and the burden of persuasion usually go hand-in-hand. You can meet
the burden of production but still lose the case on the burden of persuasion. Tie goes to the party without the
burden.
Rule 56(e) – can’t base motion on personal knowledge. Affadavits must show that the evidence will be
admissible. Also, don’t forget to bring motion for summary adjudication of particular points in addition to your
motion for summary judgment. That way if the case isn’t dismissed, at least you can have some of your points
decided before trial. 56(f) – if you genuinely and properly need more time to prove it, the court can
accommodate you.
Remember, ethical violations are referred to State Bar for discipline.
P. 529, 5(a) – 56(e) requires personal knowledge; so this is inadequate.
b. Too conclusory; affadavit is insufficient on its face doesn’t state basis of knowledge
c. Identification of the defendant; tell how you know the signer is who they say they are. Authenticate and
describe the document and attach a copy. Also state how much the note is for even though it will be in the
facde of the note. Finally, state that there has been no payment on the note.
d. It’s hearsay, but you have an exception. (admission by party opponent).
Rule 56. Summary Judgment

(a) FOR CLAIMANT. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a
declaratory judgment may, at any time after the expiration of 20 days from the commencement of
the action or after service of a motion for summary judgment by the adverse party, move with or
without supporting affidavits for a summary judgment in the party’s favor upon all or any part
thereof.
(b) FOR DEFENDING PARTY. A party against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory judgment is sought may, at any time, move with or without supporting affidavits for a
summary judgment in the party’s favor as to all or any part thereof.
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(c) MOTION AND PROCEEDINGS THEREON. The motion shall be served at least 10 days before the time
fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of
liability alone although there is a genuine issue as to the amount of damages.
(d) CASE NOT FULLY ADJUDICATED ON MOTION. If on motion under this rule judgment is not rendered
upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of
the motion, by examining the pleadings and the evidence before it and by interrogating counsel,
shall if practicable ascertain what material facts exist without substantial controversy and what
material facts are actually and in good faith controverted. It shall thereupon make an order
specifying the facts that appear without substantial controversy, including the extent to which the
amount of damages or other relief is not in controversy, and directing such further proceedings in
the action as are just. Upon the trial of the action the facts so specified shall be deemed
established, and the trial shall be conducted accordingly.
(e) FORM OF AFFIDAVITS; FURTHER TESTIMONY; DEFENSE REQUIRED. Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit
shall be attached thereto or served therewith. The court may permit affidavits to be supplemented
or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for
summary judgment is made and supported as provided in this rule, an adverse party may not rest
upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s
response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If the adverse party does not so respond, summary
judgment, if appropriate, shall be entered against the adverse party.
(f) WHEN AFFIDAVITS ARE UNAVAILABLE. Should it appear from the affidavits of a party opposing the
motion that the party cannot for reasons stated present by affidavit facts essential to justify the
party’s opposition, the court may refuse the application for judgment or may order a continuance
to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make
such other order as is just.
(g) AFFIDAVITS MADE IN BAD FAITH. Should it appear to the satisfaction of the court at any time that
any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the
purpose of delay, the court shall forthwith order the party employing them to pay to the other
party the amount of the reasonable expenses which the filing of the affidavits caused the other
party to incur, including reasonable attorney’s fees, and any offending party or attorney may be
adjudged guilty of contempt.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug.
1, 1987.)
Adickes v. S.H. Kress & Co., 1970 (886): White teacher of black children accompanied her students to a
restaurant and was denied service – and arrested for “vagrancy.”. She sued for denial of her civil
rights and conspiracy to violate her EP rights (cop’s presence in store). D/Kress moved for SJ,
denying a pre-arranged scheme; P responded by pressing her initial case. TC granted and AC
affirmed, but SC reversed, holding that D failed to fulfill its initial burden of proving that there was no
factual dispute (i.e., that there was no cop in the store). In other words, the initial burden is on the
moving party to prove there is no genuine issue of material fact, rather than requiring the non-moving
party to prove that there is such an issue.
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If D had met its initial burden, only then would FRCP 56(e) require P to do more than simply reiterate
her original complaint; she would have had to present (1) an affidavit tending to show that officer
was present, or (2) an affidavit under FRCP 56(f) explaining why it was impractical to do so …
even though not essential for defeat D’s motion this would have been preferable.
Where evidence in support of a motion does not establish the absence of a genuine issue, summary
judgment must be denied even if no opposing evidentiary matter is presented.
This case represented the Warren court’s broader, pro-P attitude towards SJ: harder for Ds to get rid
of a case on motion for SJ. In Celotex, infra, the Rehnquist court tipped the scale and set forth a
more pro-D standard.
Celotex Corp. v. Catrett, p. 630 (Evidentiary Burden in Summary Judgment)
A party moving for SJ does not necessarily bear the burden of supplying evidence or affidavits
showing the absence of a genuine dispute about a material fact.
What does it mean to show that there is no triable issue of fact? In Adickes v. S. H. Kress & Co. (1970),
the moving party was required to show evidence that the π did not have a case. In this case, the Court of
Appeals told Celotex that if they wanted a summary judgment against Catrett (who was suing Celotex for
asbestos-related injuries which she alleged killed her husband) they would have to prove that Catrett’s
husband had never been exposed to Celotex asbestos. In-other-words, the Court of Appeals was
requiring Celotex to prove the negative. But, the District Court felt that summary judgment is required
when the π, after adequate discovery time, does not provide substantive proof of a key element of their
cause-of-action. Ultimately, the Supreme Court agreed with the District and Celotex got their summary
judgment.
The Role of Burden – at trial the π will have to prove that the deceased was exposed to Celotex
asbestos. The Court is saying here that the evidentiary burden at Summary Judgment corresponds to the
evidentiary burden of production at trial. So, if Catrett needs this evidence to win at trial (for a rational
trier of fact to reasonably conclude that their case was correct), then Catrett needs to show at Summary
Judgment that they actually have the evidence to put on at trial.
Celotex Corp. v. Catrett, 1986 (630): P/Catrett, husband of deceased, sued several asbestos
manufacturers for wrongful death. D/Celotex moved for SJ on basis that P had no evidence. She
produced three documents that D argued were hearsay. TC dismissed. AC reversed, construing
Adickes to mean that D was required to bring forth evidence (in the form of affidavits or otherwise) in
support of its motion for SJ. SC reversed.
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Held: A party moving for SJ does not necessarily bear the burden of supplying evidence or
affidavits showing the absence of a genuine dispute about a material fact. A moving party
does bear the burden of persuasion, but it may meet its burden of persuasion simply by
demonstrating that the nonmoving party failed to supply sufficient evidence of a genuine dispute
of material fact. The moving D still can’t just make a conclusory assertion that P has no case –
but D can shift the burden back to the P by showing the court evidence from the record  P must
them show there are facts in dispute.
This holding seriously loosened up the rigid standard set in Adickes – seems almost to overrule it,
but SC explicitly says it’s not.
Appellate Review – the Appellate Court will review the entire trial record and all supporting motions to
determine whether there is evidence to support the decision regarding the summary judgment motion.
This case says that a plaintiff can lose on SJ if
1) they’re wrong on the facts or
2) if they can’t prove it—you can’t let the case get to the jury because the plaintiff won’t be able to meet
the burden of proof. The court granted SJ because the plaintiff’s evidence wasn’t admissible. This
broadened standard will allow more summary judgments.
1. Under Rule 50(a), the standard for summary judgment mirrors the standard for a directed verdict.
2. The moving party doesn’t have to negate their opponent’s claim; they only have to show that the
opponent can’t prove it.
3. Notice pleading has put more pressure on SJ in a gatekeeping role.
4. In Celotex look at White’s concurrence on p. 633. He believes the movant has to pinpoint the
lack of evidence (a mere statement of “they can’t prove it” will not do.) There is no disagreement on the
test between the majority, concurrence, and dissent, just a disagreement about the application to this
case. You can’t just say “they have no case.”
5. This new broadened standard puts the burden on the parties to develop evidence through discovery.
The moving party has the burden of persuasion.
Addickes “I can prove it wasn’t me” Negate the party with the burden’s case.
Celotex: “She can’t prove it wasn’t me.”
How to Defeat Summary Judgment
Must show at least one fact that could rationally prove your claim.
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Visser v. Packer Engineering Associates, (636) (Posner Ruling on SJ Affadavits)
Supporting Affadavits supporting a Summary Judgment Motion must be from personal

knowledge.
This case shows a Celotex motion used by a very aggressive judge (Posner). The judge says that the
evidence plaintiff produced wasn’t good enough because the affidavits weren’t from personal knowledge.
Most judges would let this go to the jury.
1. Facts: P allegedly fired for disloyalty; P claims he was fired for age discrimination b/c his pension
was about to vest; SJ granted for D
2. Rule: SJ should be granted if, on the evidence, presented during the summary judgment
proceeding, no rational jury could find for the party opposing SJ.
3. Dissent: Courts should be more hesitant to grant SJ, as P’s have a right to a jury trial; Here P did
allege enough facts for a rational jury to find for him
4. SJ should be denied if a party can state even one fact that can support his claim if true;
This is true even if moving party has a lot more evidence to defend
5. Rationale: Visser's (P) allegations supported the conclusion that he was fired for refusing to
pledge loyalty to Packer or for opposing Packer, but not for age discrimination. Packer could have
had more than one motive, but Visser (P) failed to allege facts to show that age discrimination
was a substantial factor in the discharge. Visser (P) presented no direct evidence of age
discrimination, for example, that Packer was contemptuous of the work of 64-year-olds. Nor did
circumstantial evidence support Visser's (P) claim. Packer's firing of Visser (P) was precipitated
by the immediately-preceding anonymous letter and argument, not by a pension vesting date nine
months away. Packer knew Visser's (P) pension status. However, that knowledge alone was not
enough from which to draw an inference of age discrimination without an allegation such as that
Packer was concerned with the expense of the pension. The affidavits also were insufficient. The
statements as to why Visser (P) was fired were not based on personal knowledge. The affidavits
merely portrayed Packer as a vengeful monster who wanted to get Visser (P). Visser (P) has
failed to allege facts to support a prima facie case that he was fired due to age or pension status.
There is probably enough here for a rational trier of fact to conclude that the π is correct. Look at 56(e)
and FRE 404.
P. 643 Hypos - #2
a. Yes
b. Close call, but probably no.
c. Yes, reasonable inference.
d. Yes, probably. As long as competent
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What if they both move for sumary judgment? What if all the evidence is admissible? Packer claims he
fired for disloyalty and Visser says age. Two reasonable inferences so it must go to the jury. As long as
Packer submits one declaration to the contrary then it has to go to the jury.
Sanctions for Bad Faith
See Rule 56(g)
Jones v Clinton
Addickes approach – we can disprove everything in their complaint.

Celotex approach – we’ve reviewed the discovery record and there is nothing that would lead a ratinonal
trier of fact to rule in their favor.
Don’t forget that expert testimony must be disclosed in a timely manner per Rule 26 & 37? Judge can
discount such testimony if not made on time.
ReCap of Summary Judgment
Thought process for SJ

1. Are there uncontested facts? (a) consider it fact by fact, (b) not only no contradiction between
evidence, but also no contradiction between evidence that would be admissible at trial (i.e.
no hearsay)
2. Given those uncontested facts, is the moving party entitled to judgment? (a) assume the facts in
favor of non-moving party, (b) contested legal issues are appropriate for judge to decide
I. SJ can be granted partially, on some counts but not others (same with partial dismissal allowed)
Adickes v. S.H. Kress & Co. – White teacher filed suit against a restaurant owner for refusing to serve
her because she was with a group of black children. Her claim was based on a violation of civil rights
stating that the owner was involved in a state-enforced practice because she was arrested for vagrancy.
Defendant moved for summary judgment but failed to show that there were no policemen in the
restaurant at the time of the refusal. Rule: Where the evidentiary matter in support of the motion
does not establish the absence of a genuine issue, summary judgment must be denied even if no
opposing evidentiary matter is presented. Held: Defendant did not meet the burden required of him
under Rule 56(e).
Celotex Corp. v. Catrett – Plaintiff filed suit against 15 corporations, including Celotex, seeking damages
based on negligence because of her husband’s death from exposure to asbestos. Defendant filed a
motion for summary judgment because plaintiff failed to provide any information in her answers to
interrogatories that would have supported her claim as to defendant’s liability. Plaintiff responded to the
motion with three documents that tended to suggest a witness. Plaintiff also said that defendant failed to
support its motion with sufficient evidence pursuant to rule 56(e). Plaintiff used Adickes as support for the
Page 173 of 240

proposition that moving party had to affirmatively disprove opposing party’s claim. Rule: Moving party
need only show that the party with the burden of proof cannot establish the proof (i.e., can be
about plaintiff’s evidence – do not need to prove or disprove plaintiff’s claim). The court basically
aligned the moving party’s burden with the party’s burden at trial – cannot be proven now, will not be
proven at trial. Held: Supreme Court reversed and remanded, leaving open the question as to how much
support is necessary to shift the burden from the moving party to the non-moving party. Justice White
simply said in his concurring opinion that cannot offer a bald assertion, but must have some sort of
evidence.
Note: Two ways of establishing support for motion for summary judgment (i.e., fact cannot be
established – no genuine issue of fact): 1) Proof of contrary (negating) fact/claim - Adickes; or 2)
demonstrate that plaintiff cannot prove his/her claim because of a lack of evidence - Celotex.
General Rule – A party cannot create an issue of fact by submitting an affidavit of a witness in
direct conflict with that witness’s prior sworn testimony. (Kalis v. Colgate-Palmolive Co.)
Standard of Analysis for Review of Summary Judgment: Scintilla vs. Totality
Scintilla of Evidence – Just one little scintilla of evidence is enough to go to trial.

Totality of Circumstances – Current standard – gives the reviewing judge a great deal of leeway and
broad discretion. Supreme Court said that Summary Judgment is an essential element of the gatekeeper
function.
IMPORTANCE OF CELOTEX RULE: Isolate one issue that cannot be proven and you can avoid trial.
TOTALITY OF CIRCUMSTANCES – Very flexible standard.
ROLE OF SUMMARY JUDGMENT – What is the role of the Court in adjudicating such disputes? Should
it go to the trier of fact? General question of judicial management.
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CIVIL PROCEDURE OUTLINE Section 4 – Trial and Post-Trial Procedure
4. TRIAL AND POST-TRIAL PROCEDURE
A DEFINITIONS
(a) Motion in Limine: 'any motion, whether made before or during trial, to exclude anticipated prejudicial
evidence before the evidence is actually offered.' [Luce v. United States (1984) 469 US 38, 40, 105 S.Ct.
460, 462, fn. 2]. Its purpose is to avoid the obviously futile attempt to 'unring the bell' when highly
prejudicial evidence is offered and then stricken at trial. [See McEwen v. City of Norman, Okla. (10th Cir.
1991) 926 F2d 1539, 1548]
Motions in limine serve other purposes as well: They may be used to obtain an advance ruling on
the admission of certain evidence. They permit more careful consideration of evidentiary issues than
would take place in the heat of battle during trial. They minimize conferences and disruptions during trial.
Finally, by resolving critical evidentiary issues at the outset, they enhance efficiency of the trial process
and promote settlements. [
(b) Voir Dire: The process by which prospective jurors are questioned to determine their competency to
serve. Literally translated from Norman French, 'voir dire' means 'to speak the truth' (see Black's Law
Dictionary (7th ed. 1999).
(c) Opening Statement: Opening statement allows counsel to outline the facts he or she intends to
prove at trial. Its purpose is 'to state what evidence will be presented, to make it easier for the jurors to
understand what is to follow, and to relate parts of the evidence and testimony to the whole.' [Testa v.
Village of Mundelein, Ill. (7th Cir. 1996) 89 F3d 443, 446; Morrissey v. Welsh Co. (8th Cir. 1987) 821 F2d
1294, 1303-1304]; Not evidence: An opening statement is not evidence and jurors may not accept it as
proof of the matters stated. [Morfeld v. Kehm (8th Cir. 1986) 803 F2d 1452, 1455, fn. 3] ; Jury
instruction: In fact, the judge will almost certainly instruct the jury that counsels' opening statements are
not evidence. [See Federal Judiciary Benchbook for U.S. Dist. Judges, § 6.05; Ch. 7 Appendix; and
Wilson v. Johns-Manville Sales Corp. (5th Cir. 1987) 810 F2d 1358, 1362]; Not argument: Opening
statements are intended to be an outline of the factual issues and prospective evidence (see ¶ 6:25). An
opening statement may not be used to argue the case to the jury (see ¶ 6:105 ff.).
(d) Direct Examination: Direct examination' is the first examination of a witness upon a matter not
within the scope of a previous examination of the witness. It is the process by which a party first elicits
testimony from witnesses in support of the party's own claims or defenses.
Purpose: The purpose of direct examination is two-fold:
• to elicit evidence that will persuade the factfinder (judge or jury) of the accuracy and
truthfulness of the evidence supporting the party's claims or defenses; and
• to create an evidentiary record supporting the party's legal claims or defenses to win at trial
and preserve that victory on appeal.
(e) Cross-Examination:' The questioning by a party other than the one who called the witness to elicit
testimony on matters within the scope of the witness' testimony on direct examination or on matters
affecting the witness' credibility. [See FRE 611(b); United States v. Ellis (3rd Cir. 1998) 156 F3d 493,
498;]
Right of Cross-Examination: Cross-examination is the most reliable and effective way of testing
witness credibility. It is a fundamental right that a court may abridge only to curb abuse. [Alford v. United
States (1931) 282 US 687, 691-692, 51 S.Ct. 218, 219; Deitchman v. E.R. Squibb & Sons, Inc. (7th Cir.
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1984) 740 F2d 556, 562; Treharne v. Callahan (3rd Cir. 1970) 426 F2d 58, 62--'Wisely employed it is
perhaps the most powerful weapon in the arsenal of the lawyer in pursuit of the whole truth']
(f) Motion For Judgment As A Matter Of Law: Motion for judgment as a matter of law (jmol) tests the
sufficiency of the evidence offered in support of the other party's claim or defense.
[FRCP 50(a)(1)] If during a trial by jury a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may
determine the issue against that party and may grant a motion for judgment as a matter of law against
that party with respect to a claim or defense that cannot under the controlling law be maintained or
defeated without a favorable finding on that issue.
(g) Closing Argument: Attorney’s final statement to the trier of fact (judge or jury) before deliberations
begin, in which attorney requests the trier of fact to consider the evidence and to apply the law in his/her
client’s favor.
Scope of Permissible Argument: The right to argue a case to the jury is very broad. Counsel
may state his or her views as to what the evidence shows and the conclusions to be drawn therefrom.
[Chicago & N.W. Ry. Co. v. Kelly (8th Cir. 1936) 84 F2d 569, 576]
(h) Jury Instructions: Jury instructions are designed to clarify issues for the jury and to educate the
jurors about what factors are probative on those issues. [Spesco, Inc. v. General Elec. Co. (7th Cir. 1983)
719 F2d 233, 239]; Jury instructions should help the jurors understand fairly and adequately how to apply
the law to the facts and thus to arrive at a verdict. [Casey v. Seas Shipping Co., Inc. (2nd Cir. 1949) 178
F2d 360, 362]; The jury is bound to accept and apply the law as instructed to the facts in arriving at a
verdict.
(i) General and Special Jury Verdicts
Kitty’s note: Juries render verdicts; Judges issue Judgments; but once the jury reaches its
verdict, then a judgment is entered—this a ministerial procedural
General verdict: A general verdict is a verdict whereby the jury simply renders a decision in favor
of one party or the other. 'General verdicts simply ask the jury to answer the question 'who won,' and if
the winning party is entitled to a monetary award, to answer the question 'how much.' ' [Turyna v. Martam
Const. Co., Inc. (7th Cir. 1996) 83 F3d 178, 181; Simmons v. City of Philadelphia (3rd Cir. 1991) 947 F2d
1042, 1057]; Standard verdict form: Most federal cases are resolved by a general verdict, where the
jury either finds for the plaintiff or the defendant. [See Portage II v. Bryant Petroleum Corp. (6th Cir. 1990)
899 F2d 1514, 1519]
Special verdict: A special verdict is one where the jury makes a special written finding on each
issue of fact from which the court draws legal conclusions and renders judgment. [FRCP 49(a); Turyna v.
Martam Const. Co., Inc. (7th Cir. 1996) 83 F3d 178, 181; see Winarto v. Toshiba America Electronics
Components, Inc. (9th Cir. 2001) 274 F3d 1276, 1282-1284--special verdict answered 26 questions];
Purpose: The special verdict is a useful device for clarification of jury verdicts and for focusing the jurors'
attention on the disputed facts without the confusion that often results from a lengthy charge. [Guidry v.
KEM Mfg. Co. (5th Cir. 1979) 598 F2d 402, 406]
(j) Judgment: A Court’s final determination of the rights and obligations of the parties in a case.
(k) Renewed Motion For Judgment as a Matter of Law: Before a case is submitted to the jury, a
party may move for judgment as a matter of law on the ground that there is no legally sufficient evidence
to support the opposing party's claim or defense. [FRCP 50(a)] (This was formerly known as a motion for
directed verdict.); If the motion is denied, and the jury verdict is adverse to the moving party, that party
may renew its request for judgment as a matter of law after entry of judgment. [FRCP 50(b)]; Former
JNOV: Reflecting earlier practice, some courts still describe this motion as a motion for judgment
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notwithstanding the verdict (JNOV). However, the proper terminology is a renewed motion for judgment
as a matter of law (JMOL).
(l) Motion for New Trial: The district court is empowered to grant a new trial to all or any of the parties
on all or part of the issues, after either a jury or nonjury trial. [FRCP 59(a)]; Rule 59 does not enumerate
grounds on which the court may order a new trial. It simply states that, after a jury trial, a new trial may be
granted 'for any of the reasons for which new trials have heretofore been granted in actions at law'; and,
after a nonjury trial, for any reasons for which courts of equity granted rehearings. [FRCP 59(a)]
(m) Appeal: When you don’t like what the trial court or jury has decided, so you seek another opinion –
you go to a higher court (muni/limited jurisdiction court to superior court to Court of Appeals to Supreme
Court).
(n) Writ of Certiorari: A writ of certiorari (or 'writ of review in California) lies to review completed
judicial acts without or in excess of jurisdiction. Essentially, therefore, certiorari is the counterpart to
prohibition when prohibition may not issue because the jurisdictional error under attack has already
occurred. The writ commands the respondent lower court or administrative agency to certify its record to
the reviewing court, in order to enable a decision on the merits of the petition. (The petitioner is
responsible for securing preparation of the record and paying any costs involved.) Because it is
procedurally awkward, the use of certiorari is limited. Reaches jurisdictional errors only: Like
prohibition, certiorari is available only to redress jurisdictional errors; but again, within the writ context, that
term encompasses any action that exceeds the court's power to act in a particular manner (see ¶ 15:57).
B JUDGE OR JURY: THE RIGHT TO A CIVIL JURY TRIAL
Review – History of Common Law Pleadings: Chancery vs Common Law
Suits at common law. What does this mean? Court of common law vs. court of equity. 7A PRESERVES
rights. Whatever rights existed in 1791 are preserved by 7A. 3 Goals for this section:
1) Distinguish between legal and equitable claims.
2) What do you do about claims for a jury trial where those actions didn’t exist in 1791.
3) Finally, what about claims that contain both legal and equitable factors.
General Rule
$ damages = common law = right to jury trial
Specific Performance = chancery = no right to jury trial
LOOK FOR EXCEPTIONS SUCH AS REPLEVIN
Hypos p 669
1.
a. Breach of K was common law so yes, right to jury.
b. Specific performance was a chancery issue so no jury trial.
c. Reformation of K’s was chancery so no right to jury trial.
d. Rescind K is a chancery issue so no jury trial.
2.
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a. Nuisance suit for $ damages = common law = jury trial.

b. Injunction = chancery = no right to jury trial.
3.
a. Trover = common law = right to jury trial
b. Replevin = common law = right to jury trial
4.
a. Rent = common law = right to jury trial
b. Ejectment = common law exception = right to jury trial
Exam Update
3 Hours
2 Essays – 1 hr each
1 Hour of Multiple Choise (≈ 30)
E. Juries
Rule 38. Jury Trial of Right
(a) The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a
statute of the United States shall be preserved to the parties inviolate.
(b) Any party may demand a trial by jury of any issue triable of right by a jury not later than 10 days
after the service of the last pleading.
(d) The failure of a party to serve and file a demand constitutes a waiver by the party of trial by jury. A
demand for trial by jury may not be withdrawn without the consent of the parties. Because you can’t
waive the other party’s right to a jury trial which they would have asserted but for your assertion.
Rule 38 Hypo
Facts
1. Seller brings action against buyer for breach of K to pay for goods on a certain shipment.
2. D also responds that there was a prior breach by π becasuse of failure to ship goods on
predetermined date.
3. also asserts counterclaim for damages resulting from the tardy delivery of several past
shipments.
4. Π replies that the tardy deliveries were excusable.
5. demands jury trial later than 10 days after the answwer but within 10 days of the reply.
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Issue
1) Is there a right to a jury trial?
Analysis and Conclusion
1. Look to see if it would qualify for a jury in 1791. Assume yes for all these actions.
2. Demand is inneffective as to issues concerning shipment in original complaint and answer

because no demand made within 10 days.
3. Demand is effective to preserve jury trial on issues involving other shipments that are the subject
of the counterclaim because the demand was made within 10 days of the last pleading which was
the reply.
Public Rights Issues
How do yo deal with p. 693 – 696 Public Rights issues; administrative agency issues. Administrative
Agencies is the government acting in sovereign not proprietary function. In such cases there is no right to
jury trial in matters related to government action in its sovereign capacity. Example: OSHA claim where
investigators find a violation of Health & Safety Code. ALJ hears case and levies fine. Government acts
as a sovereign acting in public interest, not as a proprietary party. But, if the government sued the
violator for being late on a government contract as a result of not following the Health Code, then the
government is acting in its own proprietary interests and there is no exception to the right to a jury trial.
Rule 39. Trial by Jury or by the Court
(b) Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but,
notwithstanding the failure of a party to demand a jury in an action in which such a demand might have
been made of right, the court in its discretion upon motion may order a trial by a jury or any or all issues.
[If the right to a jury existed on the issue back in 1791 in England, back when the Seventh Amendment
was passed, then the amendment preserves that right under the Constitution. A development over time
has taken us away from juries being experts to a system where juries know almost nothing about the
issue—this was not the original conception at all. Juries have died out in most places, while they still exist
in England in a very limited set of cases. At the time of the Constitution, there was a big battle over the
right to a jury and it was eventually compromised through the Seventh Amendment. It was not turned into
a sweeping right like other Bill of Rights, but rather one that was preserved if it already existed under
English common law and the dispute was over $20. Thus, there was no expansion or contraction of the
right, which was a nice compromise between those who abhorred juries and those who viewed them as
crucial.
What are the benefits and detriments of juries?
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-- Benefits: We want decision-making by the people and for the people. Juries draw common
citizens into the system of justice and make them feel involved. The scope of what society believes is
broad, and thus we are more likely to sift toward truth if we take all these people’s views into account.
-- Detriments: There is no expertise at all. They are not always impartial, especially when a
person has suffered harm and the defendant is a big corporation. They are not representative of a whole
society, but still just a subsection. They are not predictable and are very susceptible to groupthink.
Rule 47. Selection of Jurors
(a) The court may permit the parties or their attorneys to conduct the examination of prospective jurors or
may itself conduct the examination.
(b) The court shall allow the number of peremptory challenges provided by 28 U.S.C. § 1870.
(c) The court may for good cause excuse a juror from service during trial or deliberation.
[First, the court or the attorneys conduct examination of the jurors, and then the court strikes when
necessary for cause as permitted by (c). Then, the attorney can strike for any reason as provided by (b).]
Rule 48. Number of Jurors—Participation in Verdict
The court shall seat a jury of not fewer than six and not more than twelve jurors. Unless the parties
otherwise stipulate, (1) the verdict shall be unanimous and (2) no verdict shall be taken away from a jury
reduced in size to fewer than six members.
Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, p. 670 (1990)
To determine whether a jury right is preserved when there was no such cause of action back in
18th century England, 2 prong test:
1. you compare the statutory action to actions brought in the English courts of law and
equity, and then
2. you determine whether the remedy sought is legal or equitable in nature. Greater weight
goes to remedy.
Facts: The 27 respondents were all employed as truckdrivers by McLean, and all were members of the
Union. In 1982, McLean implemented a change in operations; as a result of layoffs and the ensuing loss
of seniority, worked filed grievances with the union. The Union prosecuted two grievances, but refused to
prosecute a third. The workers sued both the trucking company and the Union, alleging that the company
violated the collective bargaining agreement and that the Union violated the duty of fair representation.
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The plaintiffs voluntarily dismissed the case against the company after it filed for bankruptcy, but pursued
its case against the Union. The Court of Appeals held that the employees were entitled to a jury trial
under the Seventh Amendment, and the Union appealed.
Key Issue: Does Terry, an employee, have a right to trial by jury when he seeks relief in the form of back
pay for a union’s alleged breach of its duty of fair representation?
Rule: To determine whether a jury right is preserved when there was no such cause of action back in
18th century England, you compare the statutory action to actions brought in the English courts of law
and equity, and then you determine whether the remedy sought is legal or equitable in nature.
Holding (Marshall): Judgment affirmed, because the remedy of backpay sought in this duty of fair
representation action is legal in nature and a jury trial is thus applicable under the Seventh Amendment.
Reasoning: In order to recover from the union, the respondents had to prove that McLean breached the
collective bargaining agreement and that the union breached its duty of fair representation. Admittedly,
the duty of fair representation issue is an analog to a claim against a trustee for breach of fiduciary duty—
a claim settled in courts of equity by bench trial. However, the other claim against the trucking company
was comparable to a breach of contract claim—a legal issue settled by jury trials. Since the remedy
sought was restitutionary and therefore legal in nature, the issue as a whole was more legal than
equitable.
Concurrence (Brennan): Rights to jury trials turn on the nature of remedy, and there is little purpose to
looking through ancient writs to find an analog to the action. “The time has come to borrow William of
Occam’s razor and sever this portion of our analysis.”
Dissent (Kennedy): Having decided that the trust action was a model for modern duty of fair
representation, our inquiry should have ended with the conclusion that it was an equitable action.
Notes: Collective bargaining was not a legal action back in 1791, so, according to common law, this case
required the Court to determine whether the right was “preserved” by choosing the best analog possible.
In this case, the Court chose trustee relationship as being the most appropriate in terms of its analog to
the violation of a collective bargaining agreement. This would have taken away a jury, which was what the
Union wanted because they were big business versus little guy. But the Court did not stop there, which
upset the dissent. The Court instead went onto say that the damages were not restitutionary, and thus
in the legal realm (juries) rather than equity.
-- The two parts examined by the Court were claim and relief. In terms of the claim, the plaintiffs
did not directly control the action of the Union. Rather, the Union acted on their behalf, which would not be
as direct as working with a lawyer—this made it like a trustee relationship, and thus equity. But Marshall
then split the claim by saying it looked like a trustee-relationship, but also had the issue of breach of
contract, which was very much a common-law issue. The right to trial attaches to issues. There was
Page 181 of 240

no direct fit. So the claim end of it, to Marshall, was kind of in equipoise. In terms of the relief, he
concluded that the damages were not restitutionary, but just basic compensation for back pay and
benefits to which they were entitled. He saw this as common-law territory, making it 2-1 in favor of law
and a jury.
-- Marshall further said that even without the breach of contract, it was still 1-1, which meant he
still favored a jury because relief was more significant than the claim. This was why Brennan argued in
the concurrence that the whole charade with an analog for the claim should be dropped. He argued that,
barring an exact match, courts waste time picking an analog since it will hinge on whether the relief
entitled the plaintiff to a jury.
-- The dissent disagreed that courts should ditch analyzing the analog. They felt that, unlike the
majority opinion that relief trumps claim, once agreement was reached that the claim was analogous to
trustee and a court of equity, it did not matter what type of damages were sought. At that point, the
damages would still have to be sought in a court of equity. Thus, under this very holistic approach, it
should have stopped there and gone to a trial court.
-- Another approach might be to just get rid of the analog and say that any time a claim did not
exist in 1791, there would be no jury trial because the right could not be said to be “preserved.” If
Congress wanted to enact a law saying that these types of actions get juries, then they can do that, but
why create a fiction that the right is being preserved when it is really being created?
-- Yet another approach would be to abandon preservation and focus on what is functionally most
appropriate, meaning a jury in every case unless everything depended on an interpretation of law.
Why did the Supreme Court reject the suggestion that the complexity of a case should influence the right
to a trial by jury? Predicatbility, fairness. The purpose of 7A is to preserve rights. In 1791 there was no
distinction between complex and simple cases. There is nothing that says you only get a jury if it’s an
easy case. So, constitutinoal interpretation  what was the intent? Another is  do we really want to
make distinctions between who is better suited to be a trier of fact – jury or judge? This is a policy matter.
Notes p. 677
a. a suit to vacate an arbitration award – in 1791 these would have been brought in Chancery and as
such no right to jury. Court said this was not an accurate analog because there had been no aribtration
board.
b. Breach of fiduciary duty would not have been heard in a court of law
c. Π’s claim it was like malpractice which was like a suit for damages which would have been under
Common Law and would rate a jury.
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Beacon Theatres, Inc. v. Westover, 1959 (921): In underlying action, Fox sought (1) DJ that Fox was
not in violation of antitrust law, and (2) injunction to prevent Beacon from filing threatened antitrust
suit. Beacon counterclaimed that there was not substantial relationship between the two, so
clearances to show films was unreasonable; alleged that Fox was violating antitrust laws, and sought
damages. Beacon demanded jury trial.
Judge wanted to decide DJ (equity) issue first and then send damages (legal) issue to jury, but doing
it this way may preclude the legal remedy for Beacon – and yet Beacon has a constitutional right
to get a jury on the damages claim.
Held: the constitutional right to jury supersedes any rights in equity to avoid trial by jury, so while
courts retain the discretion to bifurcate the separate determinations, in a suit involving both
equity and legal claims, the legal claims are tried by jury first, with the judge deciding an
equitable claims after the factual matters have been resolved.
Essentially, this case and Dairy Queen, 1962 (927) set forth three rules:
Jury right is determined issue by issue, rather than looking at the entire case holistically
If an issue underlies both law and equity, it goes to the jury
The legal issues are always tried first.
Amoco Oil Co. v. Torcomian. (1983) (p. 685)
An equitable main claim cannot preclude a jury trial on a legal compulsory counterclaim.
Whichever trier of fact goes first will bind the subsequent trier; where there are overlapping legal
and equitable claims, respect for the jury requires that the jury try its claim first)
Facts: Torcomian (D) took over a service station and sought to become a franchisee of Amoco (D). While
the negotiations proceeded, Torcomian (D) ran the station, but never executed the agreement due to a
dispute. Subsequently, Amoco (P) brought a suit requesting ejectment of Torcomian (D) from the service
station and lost profits as a result of alleged wrongful possession. At the beginning of trial, Amoco (P)
attempted to orally amend its complaint to delete the portions that sought money damages to foreclose
Torcomian's (D) right to a jury trial. Torcomian (D) filed a counterclaim for a breach of contract and sought
damages. The trial court refused to order a jury trial and ruled for Amoco (P).
Torcomian (D) appealed.
Issue: Can an equitable main claim preclude a jury trial on a legal compulsory counterclaim?
Holding And Decision: (Becker, J.) No. An equitable main claim cannot preclude a jury trial on a legal
compulsory counterclaim. It has long been settled that joinder of an equitable claim to a legal claim does
not defeat the Seventh Amendment's requirement of a jury trial. Therefore, if there were any legal claims
present in the instant case, the district court erred in not allowing a jury trial. On the surface, Amoco's (P)
complaint appears to present a number of legal claims. Ejectment has long been regarded as a legal
claim and damages were sought as a form of relief. Federal law unequivocally holds actions seeking
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ejectment as legal, not equitable. Furthermore, Torcomian's (D) counterclaim seeking damages for
breach of contract is plainly a legal claim. Therefore, it was error the trial court to refuse a jury trial. This
error would be harmless if Amoco (P) would have been entitled to a directed verdict anyway. However, in
the present case, the disposition of the claims rested largely on issues of credibility. Thus, a directed
verdict could not have been properly granted by the district court. Accordingly, the judgment must be
vacated and the case remanded for a new trial.
Analysis: Amoco (P) had tried to argue that two Pennsylvania cases had found that ejectment type cases
were - equitable injunctions against continued use of property. The court found Amoco's (P) interpretation
of these cases to be both dubious and beside the point. The characterization of a claim as legal or
equitable must be made by recourse to federal law.
Definitions and Rules

Ejectment - An action to oust someone in possession of real property unlawfully end to restore
possession to the party lawfully entitled toit.
Seventh Amendment - Provides that no fact, tried by a jury shall be otherwise re-examined in any court of
the United States, other than according to the rules of the common law.
Equitable Action (Action In Equity) - Lawsuit in which a plaintiff seeks equitable remedies.
Π Complaint ∆ Cross Complaint
Ejectment - right to jury Yes, but it’s equitable Specific Performance - no right to jury
under Pennsylvania law. But it was a federal trial.
Injunction - no right to jury Damages - right to jury
Damages - right to jury
What if the agent had no authority to bind Amoco and there was no right to be on the property? You still
have the trademark attorney fees issues. So, the court is bound by the fact that this is a jury trial.
28 U.S.C. § 1861. Declaration of Policy
It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the
right to jurors selected at random from a fair cross section of the community. It is further the policy that all
citizens shall have the opportunity to be considered for service.
28 U.S.C. § 1862. Discrimination Prohibited
No citizen shall be excluded from service on account of race, color, religion, sex, national origin, or
economic status.
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28 U.S.C. § 1870. Challenges
1) Peremptory Challenges: In civil cases, each party shall be entitled to three peremptory
challenges.
2) For Cause Challenges: All challenges for cause or favor, whether to the array or panel or to
individual jurors, shall be determined by the court.
[Who is on the jury? Section § 1861 demands a cross-section of the community, while § 1862 specifically
forbade discrimination. The system wants to get range of opinions from within a community. However, it
does not matter if there is a blue-eyed juror; it only matters for race, sex, religion, nationality, and
economic status (it has become much harder for professionals to exclude themselves). Obviously, this
means more expertise, but it can come at a price. Do professionals exert undue influence, and do they
become more than one of twelve? Also, will there be resentment and will they feel that their time is being
wasted, making them inclined to rush to get it over with?
Judges, though cautious, will sometimes dismiss for cause if the person’s life experiences match too
closely or if there is some other glaring problem. The judge controls the questioning here and makes the
decision; it is all in his hands and this type of exclusion is very rare. Peremptory challenge, by contrast,
works for three prospective jurors. But why, if there is already a good cross-sectional pool, let peremptory
challenges take away the representativeness of the pool? This has nothing to do with the merits, so why
is it legitimate?]
Rule 47. Selection of Jurors

(a) EXAMINATION OF JURORS. The court may permit the parties or their attorneys to conduct the
examination of prospective jurors or may itself conduct the examination. In the latter event, the
court shall permit the parties or their attorneys to supplement the examination by such further
inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions
of the parties or their attorneys as it deems proper.
(b) PEREMPTORY CHALLENGES. The court shall allow the number of peremptory challenges provided by 28
U.S.C. § 1870.
(c) EXCUSE. The court may for good cause excuse a juror from service during trial or deliberation.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1991, eff. Dec. 1, 1991.)
Edmonson v. Leesville Concrete Co. (1991) (p. 703)
No racially motivated peremptory challenges. WHAT IS THE 3 PART TEST?
Facts: Edmonson, a black construction worker, was injured in a job-site accident. Edmonson sued
Leesville Concrete Company for negligence, and then invoked his Seventh Amendment right to a jury
trial. During voir dire, Leesville used two peremptory challenges to remove blacks from the prospective
jury. Edmonson requested that the District Court require Leesville to articulate a race-neutral explanation
for striking the two jurors. The District Court denied the request, and the jury ended up with 11 whites and
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1 black. The jury attributed 80% of the fault to Edmonson’s contributory negligence, awarding him only
$18,000 of the $90,000 it found he suffered in damages. Edmonson assigned error and appealed.
Key Issue: Can a private litigant in a civil case use peremptory challenges to exclude jurors on account of
their race?
Rule: Racial discrimination violates the Fifth Amendment Due Process clause only when it may be
attributed to state action.
Holding (Kennedy): Judgment reversed, and the case is remanded to consider whether a prima facie
case of racial discrimination has been established. This is to be done by requiring Leesville to offer race-
neutral explanations for its peremptory challenges.
Reasoning: Jury selection, though delegated by the government to private litigants, has a definitively
governmental character since its objective is to determine representation on a governmental body and
since it occurs within the courthouse itself.
Dissent (O’Connor): “A trial, particularly a civil trial, is by design largely a stage on which private parties
may act…. The government erects the platform; it does not thereby become responsible for all that occurs
upon it.”
Dissent (Scalia): This opinion, aside from being wrong in principle as O’Connor noted, will produce
unfortunate consequences because the minority defendant will no longer be able to seat as many jurors
of his own race as possible.
Notes: The Court also had to wrestle with the fact that the equal protection being violated was that of the
prospective jurors, as opposed to Edmonson. In dealing with this idea of third-party standing, the majority
noted that “a litigant may raise a claim on behalf of a third party if the litigant can demonstrate that he or
she has suffered a concrete, redressable injury, that he or she has a close relationship with the third
party, and that there exists some hindrance to the third party’s ability to protect his or her own interests.”
The court held that, given that they previously held these three requirements to be satisfied in the criminal
context, they had to be satisfied in the civil context as well. What are the possible reasons for this? First of
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all, the juror might not even know that their dismissal was racially motivated; and, even so, they might be
thrilled not to have jury duty.
-- Why was Edmonson a separate case when in past criminal cases it had already been decided
that exclusions based on race violated equal protection? It was different because it was a civil case,
which distinguished it from a criminal setting in which state action obviously occurs when the state files
charges. In civil settings, it had to be indirectly inferred since private litigants bring the action.
-- What arguments are there for this being a government body? Because nobody would volunteer
to do this, but they do so out of civic duty to help form a representative governmental body. That makes it
indirect state action since the jury is working on behalf of the state.
-- Batson v. Kentucky previously held that race-based strikes by the prosecution violated the right
to equal protection; it also said that the moving party must convince the court that there was a prima facie
case of race-based discrimination. If successful, the other side then had to show that there was a non-
race-based reason. Thus, before giving the other side a chance to explain, the court had to see whether it
looked like race-based exclusion. After that, the question becomes, what answer by the attorney is
sufficient?
-- If the response is, “People of this race are more prone to give out large judgments,” then that is
not good enough. It cannot be gut-based when it looks like it is race-based. There better be more, like the
person’s type of employment is likely to be problematic for the one side.
-- The next logical issue involved gender. Can a lawyer strike a juror simply for their gender? In
J.E.B. v. Alabama, the vote was 4-4 and the concurrence went along with the majority only because the
State was one of the litigants. Thus, it is unconstitutional for the state, but not a private civil litigant,
to strike a juror based solely on gender. [One justification is that if three blacks are struck, there is
probably none left. However, with gender, the number of women is probably half so it is highly unlikely
that a party will be able to strike many of the women. Also, proving whether a lawyer was motivated by
gender would be very difficult even if all three were women because naturally it should be 2 men and 1
woman or 2 women and 1 man, so if it was 3 women and 0 men it would not be shocking.]
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-- Was this a prima facie case? Two of the three peremptory challenges were used against black
jurors, and it ended up being 11 white and 1 black.
-- The dissent by Scalia hammered the sideshow issue, saying that it would be way too hard to
show a pattern when there is no way of knowing what is good enough. This will merely drain judicial
resources as those who lose judgments will be able to appeal by alleging discrimination in the use of the
peremptory challenges, even if they did not share the race of the juror(s) who were discriminated against.
Three Part Test for Third-Party Challenge
A litigant may raise a claim on behalf of a third party if the litigant can demonstrate that:
1) He or she has suffered a concrete, redressable injury;
2) That he or she has a close relationship with the third party; and
3) That there exists some hindrance to the third party’s ability to protect his or her own interests.”
C TRIAL
Rational Decision Making: 5 devices to ensure that trial verdict is rational.
1. Rules of Evidence
2. Jury Instructions
3. Procedural Devices
i. Judgment as a Matter of Law
ii. JNOV – Renewed Motion for Judgment as a Matter of Law
iii. Motion for a New Trial
Basic Test
Could a rational trier of fact look at this evidence and draw two different conclusions? If yes, question for
the jury.
Reid v. San Pedro, Los Angeles & Salt Lake Railroad (1911) p. 713 (“Moo” ve It on Over Case)
Where the undisputed evidence of the plaintiff points with equal force to two inferences, one of
which renders the defendant liable and the other not, the plaintiff must fail.
Facts: The fence inclosing the defendant’s right of way was down and out of repair one mile west of
where its railroad ran over and killed a three-year-old heifer of the plaintiff. The evidence also showed that
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there were two gates opening into the right of way in the immediate vicinity of where the accident
occurred, and that the defendant was not responsible for the gates being left open. In the complaint, the
plaintiff alleged that the defendant carelessly and negligently permitted the fence along its line of railroad
to be broken and in poor repair, and that the heifer was killed as a result of this negligence and the
careless and negligent operation of the train. The jury entered a verdict for the plaintiff, and the defendant
appealed the judgment.
Key Issue: Did the preponderance of the evidence support the verdict entered in favor of the plaintiff?
Rule: Where the undisputed evidence of the plaintiff points with equal force to two inferences, one of
which renders the defendant liable and the other not, the plaintiff must fail.
Holding (McCarty): Judgment reversed, because the trial court should have directed a verdict for the
defendant on that cause of action.
Reasoning: It was essential for the plaintiff to show by a preponderance of the evidence that the cow
entered upon the right of way through the broken down fence, and not through the open gate. However,
the inference was just as strong or stronger that the heifer entered through the open gate as it was that
she entered through the fence at the point where it was out of repair.
Notes: If the cow went through the broken down fence, the railroad was liable. If the cow went through
the open gate, which the railroad had to maintain but not make sure it was at all times kept closed, then
the railroad was not liable. The jury found for plaintiff, but the appellate court held that the judge should
have directed a verdict for the defendant. Why? It certainly was possible that the cow went through the
broken down fence.
-- The burden of proof was on the plaintiff, meaning it had to show it was more likely that the cow
went through the broken down fence. The court was looking at whether the preponderance of the
evidence showed that the cow entered through the broken down fence, or whether a reasonable jury
could find that it was more likely than not that it went through the broken down fence. The cow was found
near the open gate, about a mile from the broken down fence. If anything, based on location, it was more
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likely that it entered through the open gate. However, it certainly was not more likely that it entered by the
broken down fence and the jury thus should not have been allowed to decide the matter.
-- As soon as the cow was an inch to the fence side, since this hinged solely on distance, then a
reasonable jury could find that it was more likely that the cow went through the broken fence.
The stages of litigation take us from pleading to discovery, and if there is no summary judgment or
preliminary relief, to jury selection and then a trial. Once the trial has occurred, the judge must decide
whether there is enough to go to a jury and, if so, if an improper jury verdict can be corrected.
Summers v. Tice, (1948);
Facts: π was shot in the face while flushing quail for ∆'s during a hunting trip. There were two shots that
hit him, one in the eye, and one in the lip. Although the one shot that hit π in the eye could not have come
from both guns, there was no evidence which it did come from. π was not negligent in any way.
Procedural Posture: The trial court held that the π could bring action against both ∆'s as joint tortfeasors.
∆ appealed claiming that the π could not prove that his shot caused the injury.
Judge's Rule: When two persons both shoot in the direction of a person who is injured by one of the
shots, both persons are jointly liable even though they did not act in concert to cause the injury.
Classical Holding: When several ∆'s are similarly negligent, and a π's injury is actually caused by only a
subset of the ∆'s, and it is not possible for the π to show which ∆'s actions were the proximate cause of
his injuries, the π may bring an action against each ∆ under joint and several liability, even though the ∆'s
may not have been acting in concert, and the burden of proof shifts to the ∆ to show his innocence.
Reasoning: To hold otherwise would be to make the π internalize the injury that he did not cause.
Hypo p. 716 #5
a. I don’t think so. But maybe yes if no defense put on.
b. Maybe
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D JUDGMENT AS A MATTER OF LAW
1. Controlling Juries Before the Verdict
1a. Judgment as a Matter of Law (Directed Verdict)
Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional
Rulings
(a) JUDGMENT AS A MATTER OF LAW.
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court
may determine the issue against that party and may grant a motion for judgment as a matter
of law against that party with respect to a claim or defense that cannot under the controlling
law be maintained or defeated without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before submission of the
case to the jury. Such a motion shall specify the judgment sought and the law and the facts on
which the moving party is entitled to the judgment.
(b) RENEWING MOTION FOR JUDGMENT AFTER TRIAL; ALTERNATIVE MOTION FOR NEW TRIAL.
If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close
of all the evidence, the court is considered to have submitted the action to the jury subject to the
court’s later deciding the legal questions raised by the motion. The movant may renew its request for
judgment as a matter of law by filing a motion no later than 10 days after entry of judgment—and may
alternatively request a new trial or join a motion for a new trial under Rule 59.
In ruling on a renewed motion, the court may:
(1) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a matter of law; or
(2) if no verdict was returned:
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
(c) GRANTING RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW; CONDITIONAL RULINGS; NEW
TRIAL MOTION.
(1) If the renewed motion for judgment as a matter of law is granted, the court shall also rule on
the motion for a new trial, if any, by determining whether it should be granted if the judgment
is thereafter vacated or reversed, and shall specify the grounds for granting or denying the
motion for the new trial. If the motion for a new trial is thus conditionally granted, the order
thereon does not affect the finality of the judgment. In case the motion for a new trial has been
conditionally granted and the judgment is reversed on appeal, the new trial shall proceed
unless the appellate court has otherwise ordered. In case the motion for a new trial has been
conditionally denied, the appellee on appeal may assert error in that denial; and if the
judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order
of the appellate court.
(2) Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law
is rendered shall be filed no later than 10 days after entry of the judgment.
(d) SAME: DENIAL OF MOTION FOR JUDGMENT AS A MATTER OF LAW.
If the motion for judgment as a matter of law is denied, the party who prevailed on that motion
may, as appellee, assert grounds entitling the party to a new trial in the event the appellate court
concludes that the trial court erred in denying the motion for judgment. If the appellate court
reverses the judgment, nothing in this rule precludes it from determining that the appellee is
entitled to a new trial, or from directing the trial court to determine whether a new trial shall be
granted.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995.)
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Rule 50. JMOL Summary
(a)(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue, the court may
determine the issue against that party and may grant a motion for judgment as a matter of law.
(a)(2) Motions for judgment as a matter of law may be made at any time before submission of the case
to the jury.
(b) The movant may renew its request for judgment as a matter of law by filing a motion no later than
10 days after entry of judgment by the jury—and may alternatively request a new trial. In ruling
on a new motion: (1) after a verdict was returned, the court may (A) allow the judgment to stand;
(B) order a new trial; (C) direct entry of judgment as a matter of law. In ruling on a new motion (2)
after no verdict was returned, the court may (A) order a new trial or (B) direct entry of judgment as
a matter of law.
(c)(1) If judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if
any, by determining whether it should be granted if the judgment is thereafter vacated or
reversed.
[The standard for a judge directing a verdict is that a reasonable jury could not possibly conclude for one
of the sides. The burden of pleading, from Gomez v. Toledo, is the least important burden because
generally there will be opportunity to amend, unless there is an offsetting harm or bias to the other side.
On the other end of the spectrum, a failure to meet the burdens of either production or persuasion will
be fatal. In the civil context, some say that the burden of persuasion does not matter unless the
evidence is 50/50. If it is a tad bit to one side or the other, the burden does not matter and that side wins.
However, others are skeptical since this burden can distort the way jurors approach evidence. If they hold
one side to a higher standard, even if it is not by much, it would be too much according to the law. The
burden of production, on the other hand, is called the most important by some and serves functional
burden to provide the evidence. There is a relationship between the burdens of production and
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persuasion, because what the judge is asking is has the party with these burdens produced enough
evidence to justify a jury verdict on their behalf. Non-movant must be fully heard.
What Evidence Must The Court Consider in Ruling on a JMOL Motion?
Boeing v. Shipman (p. 729), when ruling on a JMOL motion, the Court must review evidence presented
by both sides. It is more than the mere scintilla standard. There must be a conflict in substantial
evidence; could reasonable people disagree? If it comes down to credibility, it goes to the jury. Some
states just look at the non-moving party’s pleadings and evidence. But in federal court you must look at
all evidence, not just the non-movant’s.
HYPO P. 720, note 1 Burden of Proof
a. Burden of Persuasion will not make any difference because the outcome only hangs on the burden of
persuasion if the jury finds the evidence in equipoise. If it’s 50/50 then the π will lose because π has
burden of persuasion and production.
b. Burden of proof is beyond a reasonable doubt so it doesn’t matter here.
***See Glannon, p. 411. Burden of Production
Pennsylvania Railroad v. Chamberlain (1933) p. 724 (All Evidence Rule Version of JMOL)
MINORITY RULE: All Evidence Rule: Where evidence is so insubstantial that if a verdict is
rendered for one of the parties, the other would be entitled to a new trial, it is up to the judge to
direct a verdict according to the court's view of all the evidence. Usually, the Court Only Looks at
the Evidence Presented by the Side Against Whom the JMOL is Requested.
Facts: The complaint brought on behalf of the decedent alleged that while he rode a cut of railcars, fellow
employees negligently caused another set of cars to collide violently with his cars, thereby throwing him
onto the railroad track to be run over and killed. Three employees, riding the second string of cars,
testified that there was no such collision, and they were corroborated by every other employee in a
position to see. One man, a witness named Bainbridge, testified that he heard a “loud crash,” and that
shortly thereafter he turned and saw the two strings of cars moving together with the deceased no longer
in sight. Bainbridge was at a very sharp angle, near dusk of a misty evening, and he did not testify that a
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collision had taken place; rather, he inferred it from the loud noise. The trial court directed the jury to find
a verdict in favor of the railroad; the appellate court reversed and ordered a new trial, finding that there
was an issue of material fact for the jury to decide based on the credibility of the witnesses. The railroad
appealed.
Issue: Did the trial court err in directing a verdict, or was there a material fact for the jury to discern that
depended upon the credibility of the witnesses?
Rule: “When the evidence tends equally to sustain either of two inconsistent propositions, … [a] verdict in
favor of the party bound to maintain one of those propositions against the other is necessarily wrong.”3
Holding (Sutherland): Judgment of the Circuit Court of Appeals is reversed, and that of the District Court
is affirmed, because a verdict in favor of the decedent would rest upon mere speculation and conjecture.
Reasoning: There really was no conflict in the testimony as to the facts, because Bainbridge never said
that he saw a collision. All of the witnesses who were in a position to see, as Bainbridge was not,
positively testified that there was no collision, and none of them were ever impeached. Given this, and the
fact that the burden of persuasion was on the plaintiff, there would be no way a reasonable jury could find
that the preponderance of evidence weighed in favor of the plaintiff.
Notes: The only question was whether a collision threw him out, or whether he was somewhere he
should not have been. The judge was not permitted to do a simple weighing and say that the evidence
was heavier on one side. That would be the job of the jury. Even if it was heavily swayed to one side, the
mere conflict on the key issue would force it to a jury. However, the reason he directed a verdict was that
Bainbridge could have been totally right about his representation of the facts and still there was no
conflict on this issue of the collision.
-- What if focus was limited to the plaintiff’s side through the testimony of Bainbridge? Would the
judge need to direct a verdict; in other words, would there be two equally inferable options? See the
Court’s reference to Smith v. First National Bank in Westfield: “When the evidence tends equally to
sustain either of two inconsistent propositions, … [a] verdict in favor of the party bound to maintain one of
3
Smith v. First National Bank in Westfield.
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those propositions against the other is necessarily wrong.” If you agree with this interpretation, then you
think it should be directed for the defendant even without the positive testimony from the witnesses. But
what if you feel this would not be enough, and that this testimony more easily would sustain the collision
than the other inference? Then you would not direct the verdict. Would this still be the case when you add
the other uncontradicted testimony of the witnesses who said there was no collision?
-- The problem with the path outlined above would be that maybe Bainbridge alone would have
led to a jury verdict for the plaintiff. The conclusion drawn from that would be that, by directing a verdict,
the judge weighed the other testimony against his, thus taking a critical role away from the jury. This was
especially suspect by the Court due to the possibility of impeachment that was raised over people who
were all employees. The jury should have been allowed to decide who they believed.
-- In general, Pennsylvania Railroad notwithstanding, judges hesitate to take a case away from
the jury with a directed verdict. One reason is that they have done their civic duty and should not have it
totally usurped at the last second. Plus, if the judge has his directed verdict overturned on appeal, the jury
has already been dissolved and the parties must completely start over with a new trial.
-- As long as there is something on one side, a jury could logically find for that party. It does not
take a lot to avoid judgment as a matter of law because it is supposed to be a jury decision. The judge
merely has to think it possible for a jury to logically find for the non-moving party. What evidence should
he consider when deciding if it is appropriate to enter a judgment as a matter of law?
Favorable Evidence Rule, where he looks only at the non-moving party’s case (only Bainbridge); if that
is enough to side for the non-moving party, then judgment as matter of law is denied.
Qualified Favorable Evidence Rule, where he looks only at the moving party’s uncontradicted evidence
as against all of the non-moving party’s evidence to determine if there is enough to grant a judgment as
matter of law.
All Evidence Standard, where by definition the judge weighs evidence and tries to resolve contradictions
in order to determine if the evidence weighs very heavily in one direction and judgment as a matter of law
is thus appropriate.
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-- CLASS: Is Bainbridge’s testimony enough? Is this just like the dead cow case? So, the
defendant’s unimpeached testimony made Bainbridge’s not believable and so we got a JMOL. The
defense never explained the “extra loud crash” described by Bainbridge. So, we see how a story may be
woven from little snippets of fact; how we could draw an inference from same in order to avoid a Rule 50
motion.
2. Controlling Juries After the Verdict
2a. Judgment as a Matter of Law (JNOV aka Renewed JMOL Rule 50b)
The judge can rescue a case by granting a judgment notwithstanding the verdict (j.n.o.v.)—essentially a
later ruling on the earlier motion for judgment as a matter of law. The grounds for granting a j.n.o.v. are
exactly the same, according to Rule 50(a): There must be “no legally sufficient evidentiary basis for a
reasonable jury to find for the party.”
2b. New trial

Justification for ordering a new trial includes either a procedural problem, such as juries conducting their
own tests or attorneys saying inappropriate things or evidence inappropriately being included or excluded,
or a substantive issue of the jury verdict simply being against the great weight of the evidence.
Lind v. Schenley Industries (3rd Cir. 1960) p. 736
A judge may grant a new trial when the jury verdict was contrary to the great weight of the
evidence. Appellate review is on abuse-of-discretion standard.
Facts: Lind, a sales manager for the defendant liquor company, alleged an oral promise to increase his
pay and give him a share of commissions. Agents denied making the promises, which would have more
than quadrupled plaintiff’s salary and made him much higher paid than any other company executive,
except the president. No other employee received any commission, and months went by with no payment
of the 1% commission or indication of any step to fulfill such an obligation. Plaintiff’s suit for breach of
contract was rewarded by the jury, and a damage award followed. The trial judge granted a judgment
notwithstanding the verdict (j.n.o.v.) and, in the alternative, a new trial, finding the jury’s verdict (1)
Page 196 of 240

contrary to the weight of the evidence, (2) contrary to law, and (3) as a result of error in the admission of
evidence. Plaintiff appealed the order for new trial. [Only part (1) was examined in detail.]
Key Issue: Did the trial court abuse its discretion by ordering a new trial?
Rule: A judge may grant a new trial when the jury verdict was contrary to the great weight of the
evidence.
Holding (Biggs): Judgment reversed and the case remanded with the direction to the court below to
reinstate the verdict and judgment in favor of Lind.
Reasoning: If Lind and the secretary were deemed credible, then he “presented a convincing, indeed an
overwhelming case. We must conclude that the jury did believe this testimony and that the court below
substituted its judgment for that of the jury on this issue and thereby abused its legal discretion.”
Dissent (Hastie): Once the trial court has ordered a new trial, a reviewing court is to see whether there
was any basis in reason for the trial judge’s conclusion as to the weight of the evidence and the injustice
of the verdict. In this case, we have impinged “upon the function and discretion of the trial judge in a way
that is serious, regrettable and without precedent in this court.”
Notes: How did the majority get around the fact that appellate courts rarely find an abuse of discretion?
By distinguishing between two types of orders to grant new trials:
1. First,Flawed Verdict:
a. When a jury verdict was against the clear/great/overwhelming
weight of evidence; and
b. Necessary to prevent injustice
2. Second, when evidence was improperly admitted, or prejudiced
statements were made by counsel.
In the second instance, the trial judge must be allowed wide discretion for delivering “the jury from a
possibly erroneous verdict arising from circumstances over which the jury had no control.” In the first
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instance, however, there must be a “closer degree of scrutiny” because the judge denigrated the jury
process by substituting his interpretation of the facts and credibility of the witnesses.
-- What is against the great weight of the evidence? That means there had to be a serious
injustice done by the jury. Obviously the appellate court was not convinced. It did seem preposterous,
based on his salary increase, but the court of appeals was not satisfied by that. The majority said the
judge was doing too much of the weighing of evidence by himself. This was a case of credibility
assessments, meaning that this was precisely the type of case that should be decided by a jury.
Rule 49. Special Verdicts and Interrogatories
(a) The court shall give to the jury such explanation and instruction as may be necessary to enable the
jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the
pleadings or by the evidence, each party waives the right to a trial by jury of the issue unless he demands
its submission before the jury retires.
(b) The court may also submit to the jury written interrogatories upon one or more issues of fact the
decision of which is necessary to a verdict. The court shall direct the jury to make both written answers
and to render a general verdict. When the answers are inconsistent with each other and one or more is
likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the
jury for further consideration of its answers and verdict or shall order a new trial.
Rule 51. Instructions to Jury: Objection
No party may assign as error the giving or the failure to give an instruction unless that party objects
thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the
grounds of the objection.
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E NEW TRIAL
Rule 59. New Trials; Amendment of Judgments

(a) GROUNDS. A new trial may be granted to all or any of the parties and on all or part of the issues (1)
in an action in which there has been a trial by jury, for any of the reasons for which new trials have
heretofore been granted in actions at law in the courts of the United States; and (2) in an action
tried without a jury, for any of the reasons for which rehearings have heretofore been granted in
suits in equity in the courts of the United States. On a motion for a new trial in an action tried
without a jury, the court may open the judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of law or make new findings and conclusions,
and direct the entry of a new judgment.
(b) TIME FOR MOTION. Any motion for a new trial shall be filed no later than 10 days after entry of the
judgment.
(c) TIME FOR SERVING AFFIDAVITS. When a motion for new trial is based on affidavits, they shall be
filed with the motion. The opposing party has 10 days after service to file opposing affidavits, but
that period may be extended for up to 20 days, either by the court for good cause or by the
parties’ written stipulation. The court may permit reply affidavits.
(d) ON COURT’S INITIATIVE; NOTICE; SPECIFYING GROUNDS. No later than 10 days after entry of
judgment the court, on its own, may order a new trial for any reason that would justify granting
one on a party’s motion. After giving the parties notice and an opportunity to be heard, the court
may grant a timely motion for a new trial for a reason not stated in the motion. When granting a
new trial on its own initiative or for a reason not stated in a motion, the court shall specify the
grounds in its order.
(e) MOTION TO ALTER OR AMEND JUDGMENT. Any motion to alter or amend a judgment shall be filed no
later than 10 days after entry of the judgment.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966; Apr. 27, 1995, eff.
Dec. 1, 1995.)
[If a jury verdict is very different from what the judge thinks, the judge can order a new trial and thereby
hand it over to a new jury. This standard is abuse of discretion because, unlike a judgment as a matter of
law where it takes it out of the hands of a jury, the jury process is still preserved, albeit with an entirely
new jury in an entirely new trial. A judgment as a matter of law is part of a final judgment, whereas a new
trial order is not part of a final judgment and thus cannot be immediately appealed. The new trial order
can only be appealed once the new trial has taken place and the new verdict has come through.]
The Limits of The Law’s Control: The Jury as a Black Box
Peterson v. Wilson, (5th Cir. 1998) p. 745 ()
The admission of juror testimony to impeach a jury verdict is prohibited.
Facts: Peterson (P) filed suit in district court after he was fired as grant director at Texas Southern
University (D). After a trial, a jury awarded Peterson (P) $187,000. The defendants moved for a new tria\.
Four months \ater , the district court granted the new trial, but its order revealed that it did so because
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comments made by the jurors after the verdict indicated that they had disregarded the court's instructions.
The case was re-tried and Peterson's (P) claims were rejected by the second jury. Peterson (P) appealed
the grant of a new trial.
Issue: Is the admission of juror testimony to impeach a jury verdict prohibited?
Holding And Decision: (Wiener, J.) Yes. The admission of juror testimony to impeach a jury verdict is
prohibited. A juryk verdict can be disregarded if it is against the great weight of the evidence. However, in
the present case, the district court clearly granted the new trial due to its meeting with jurors following the
verdict and the comments made at that time. This post verdict, ex parte meeting was impermissible. FRE
606(b) provides that jurors may not testify as to statements made in deliberations or concerning the
mental process of decision making. The only exception is for extraneous and outside influences on the
jury. This reflects a conscious decision to disallow juror testimony as to their fidelity to the court's
instructions. Given this rule, the court's granting of a new trial in the present case was clearly erroneous.
The only reason given for granting the new trial was the comments made by the jurors after the verdict.
Therefore, the judgment in the second trial must be vacated and the results of the first trial reinstated.
Analysis: The court also awarded Peterson (P) his costs and attorney's fees incurred in both trials and on
appeal. The decision also found that the original verdict was not against the weight of the evidence, even
if the district court had used this legal reason for granting the new trial. The exception to the rule in this
case is a situation where the jurors are influenced by evidence that is brought illegally into the jury room.
2c. Conditional New Trials
What about judgments ordering new trial specifically for damages? In a case of remittitur (reduced
judgment), the judge orders a new trial unless the plaintiff agrees to accept reduced damages. Its
damage-increasing analog is additur. The premise of these orders are that the jury not unreasonably
determined liability, but was either too high or too low on damages. One obvious problem, though, is
when the damages seem too low because the jury just chose middle-ground, choosing to neither give the
plaintiffs the damages they requested nor to give nothing. If their judgment was clouded during a
valuation of damages, why should a judge assume their judgment was sound when they determined
liability? This is controversial for precisely this reason.
Page 200 of 240

F APPEAL
Appeal is a right, and it is a growing industry. However, judgments are generally not reversed. And even
though appeal is a right in all cases, it is extremely limited in the circumstances. Why recognize appeal as
a right on the one hand and then so circumscribe the situations in which they can occur?
1. Requirement of Adversity
Appeal is much scarcer and much more limited than one might expect. The main constraint to a party’s
ability to appeal is the fact that they must be adverse to the judgment. Thus, if they win on one ground
and lose on another—and damages would be the same on either ground—appeal would not be granted
even if the ground they lost on was really important to them.
Aetna Casualty & Surety Co. v. Cunningham (1955)
Facts: Plaintiff Aetna sued Cunningham for $32,000 and interest since December 23, 1949, to make good
the failure of Cunningham to complete a building contract. The complaint presented two separate claims
of the right to recover the same amount: first, that Cunningham induced Aetna to execute the bond by
making a materially false statement in writing; and second, that in the application for the bond,
Cunningham agreed to indemnify Aetna for all losses sustained. The second claim based on the
indemnity contract was conceded, and the issue litigated was the first claim. The district court found
Cunningham liable under the indemnity agreement but not guilty of fraud. Aetna’s attorney insisted on the
tort claim for fraud and deceit because a straight contract judgment was dischargeable in bankruptcy.
Key Issue: Can Aetna appeal from the judgment which was in its favor in the amount prayed?
Rule: In order to appeal, a party must be adverse to the judgment.
Holding (Rives): Aetna had a right to be heard on appeal because it was an aggrieved party [the court
went on to affirm the holding of the district court on the fraud issue].
Reasoning: The question was not moot, as counsel claimed, because the judgment remained unpaid and
had the potential to stay that way if Aetna was not allowed to pursue the fraud claim. Even though the two
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claims were similar in the amount prayed for, they had different qualities and legal consequences, with
the possibility that the judgment could be discharged through bankruptcy.
2. Waiver of rights
Generally, even if a claim was perfectly appealable, the right to appeal is waived if the party failed to
make it at the trial level. This rule was generated by a desire to improve the quality of trial by having it first
raised before the judge closest to the evidentiary record. The trial court can only be the main event if they
assess the whole context by having every claim before them. Appellate courts should not be tackling an
issue for the first time; they should be the final review, not the starting point. Also, this rule upholds the
concept of fair warning both for the court and the adversary so as to avoid undue prejudice.
But there are exceptions, like for plain error. The system does not approve such miscarriages of justice,
and this argument holds special sway in criminal court. Other exceptions include issues within issues
(general notice, much like relation back); change in the law (Carson); and jurisdictional objections.
Carson Products Co. v. Califano (1979)
Facts: Section 5(c)(3)(B) of the Fair Packaging and Labeling Act requires that the label on each package
of a cosmetic product declare each ingredient in descending order of predominance. Carson Products
tried to exempt an ingredient in “Gold Magic Shaving Powder” from the federal disclosure requirements as
a trade secret. Carson invested five years of research and $350,000 to develop the ingredient, but the
Food and Drug administration determined that the ingredient was not a trade secret. Carson filed suit and,
on cross-motions for summary judgment, the district court found against Carson. While the case was
already pending appeal, another case (Zotos International, Inc. v. Kennedy) held that the FDA’s
procedural regulations for handling trade secret claims fell below the minimum constitutional requirements
of the due process clause. On appeal, Carson challenged the district court’s judgment on the merits, and
raised for the first time a due process attack on the procedures followed by the FDA.
Key Issue: Can Carson raise the new issue of due process in appellate court?
Rule: A court of appeals has discretion to hear an issue not raised before the district court in exceptional
circumstances where injustice might otherwise result.
Page 202 of 240

Holding (Clark): We find the circumstances of Carson’s case sufficiently exceptional to warrant a decision
on its due process challenge on this appeal. [The judgment was still affirmed, as the court held that, even
when measured against the standard of Zotos, the FDA hearings were adequate.]
Reasoning: “In light of the great deference which the FDA itself has shown Zotos, it would be manifestly
unfair not to allow Carson an opportunity to invoke Zotos on this appeal.”
Notes: The court made an exception even though it was a new claim. Why? Zotos had a sweeping impact
on the FDA’s management of trade secret claims. The agency chose not to appeal the Zotos decision, but
rather to bring its procedures in compliance with the principles set forth in that decision. Also, this was a
purely legal decision, with no fact-finding. The appellate courts exist to decide legal issues. But then why
not have a rule that bends for all purely legal claims? Because this was an exceptional situation where the
FDA was not even in opposition to the legal issue, only to whether it should be applied to someone whose
case had already been decided and was merely pending appeal.
Massachusetts Mutual Life Insurance Co. v. Ludwig (1976)
Facts: Mass. Mutual issued a life insurance policy in Michigan to Dean Cane with a double indemnity
provision. Cane was killed in Illinois, and the administrator of his estate sued in Illinois district court to
recover double indemnity. District court held that the Illinois conflict-of-laws rules required an application
of Michigan law apply, which dictated that the insurer was liable only for ordinary benefits. The
administrator appealed, arguing that Michigan law clearly provided for double indemnity. The insurer
argued that there should have been an application of Illinois substantive law, which would hold it liable
only for ordinary benefits. The Court of Appeals reversed, holding that the insurer was precluded from
arguing on appeal the applicability of Illinois substantive law, because it had not cross-appealed from the
district court’s ruling that Michigan law applied. The insurer petitioned for certiorari.
Key Issue: Did the insurer, by failing to file a cross-appeal, waive his right to argue on appeal for an
application of Illinois state law?
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Rule: “The appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing
in the record, although his argument may involve an attack upon the reasoning of the lower court or an
insistence upon matter overlooked or ignored by it.”4
Holding (per curiam): Certiorari granted, the judgment of the Court of Appeals is vacated, and the case
is remanded.
Reasoning: The argument of the insurer before the Court of Appeals that Illinois, not Michigan,
substantive law applied was no more than “an attack upon the reasoning of the lower court,” and as such
required no cross-appeal.
Notes: The death occurred in Illinois and the contract was formed in Michigan; both sides agreed that the
Illinois insurance law favored ordinary benefits, while the Michigan estate law favored double indemnity.
Incredibly, the district court chose Michigan law and nonetheless decided upon ordinary benefits.
-- The 7th Circuit concluded, based on the lower court’s choice of Michigan law, in favor of double
indemnity because the defendant did not cross-appeal and argue error in not choosing Illinois law. The
court held that they lost the right to make this claim, and thus all that could be decided as a matter of law
was what Michigan law entitled in terms of relief. Per curiam, the Supreme Court held that the Circuit
Court got the waiver rule completely backwards because the insurer was actually unable to appeal since
they were not adverse to the judgment. This was so despite the adverse ruling on which substantive law
to use, because they got the judgment they wanted.
G FINAL JUDGMENT RULE – 28 U.S.C. § 1291

Final decision ends the litigation on the merits and leaves nothing for the court to do but execute the
judgment. What is the justification for an incredibly powerful rule that prevents appeal until there has
been final judgment? If everything was done piecemeal, there would be a number of risks: too much
authority and docket-load would be shifted to the appellate court; less continuity to the trial; micro-
managing of the district court when they should be the authority; and an abuse/waste of resources.
4
United States v. American Ry. Exp. Co.
Page 204 of 240

The ideas behind the final judgment rule demonstrate a funny continuation of history, though, because it
was perfectly sensible in all cases when the rule was implemented during common law. Back then, trials
were very fast. Now, however, the adoption of the more deliberate discovery process of the court of equity
conflicts with the fact that this rule presupposes that everything moves fast and no harm will be done if
interlocutory appeal is not granted.
28 U.S.C. § 1292. Interlocutory Decisions
(b) When a district judge, in making in a civil action an order not otherwise appealable under this
section, is of the opinion that such order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its
discretion, permit an appeal to be taken from such order, if application is made to it within ten days after
the entry of the order.
Liberty Mutual Insurance Co. v. Wetzel (1976), p. 764 (Final Judgment Rule)
According to § 1291, appeals lie only from final judgments of the district court, whereby a final
judgment “is one which ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment.”
Facts: Plaintiffs’ complaint asserted that defendant’s employee insurance benefits and maternity leave
regulations discriminated against women in violation of Title VII of the Civil Right Act. After discovery,
plaintiffs moved for partial summary judgment as to liability. The district court found no issues of material
fact in dispute; its order stated: “[I]t is directed that final judgment be entered in favor of Plaintiffs … [and]
it is expressly directed that Judgment be entered for the Plaintiffs upon these claims of Plaintiffs’
Complaint; there being no just reason for delay.” Liberty Mutual’s motion to have it reconsidered was
denied; the order was then appealed and, pursuant to 28 U.S.C. § 1291, the 3rd Circuit affirmed. Neither
party questioned the jurisdiction of the Court of Appeals to entertain the appeal, an issue that was first
raised by the Supreme Court after it had granted certiorari to hear arguments on the merits.
Key Issue: Was the order directing summary judgment on the issue of liability immediately appealable?
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Rule: According to § 1291, appeals lie only from final judgments of the district court, whereby a final
judgment “is one which ends the litigation on the merits and leaves nothing for the court to do but execute
the judgment.”5
Holding (Rehnquist): Judgment of the Court of Appeals is vacated, and the case is remanded with
instructions to dismiss the appeal.
Reasoning: “We would twist the fabric of the statute more than it will bear if we were to agree that the
District Court’s order … was appealable to the Court of Appeals.”
Notes: Why did the Supreme Court raise the issue of final judgment when the parties did not seem to
care? The Court took the case on the merits, but then, in preparation for oral arguments, they realized
there was a final judgment problem. Thus, they tried to see if any of the following approaches would
sustain the appeal.
-- First, they looked to the issue of whether declaratory relief would satisfy the requirement that
it be a final judgment. However, they noted that, notwithstanding the fact that the plaintiffs received a
favorable ruling, no relief was granted. “They requested an injunction, but did not get one; they requested
damages, but were not awarded any; they requested attorneys’ fees, but received none.”
-- Next, the Court tried to see if they could apply 54(b), a rule “limited expressly to multiple claims
in which ‘one or more but less than all’ of the multiple claims have been finally decided and are found
otherwise ready for appeal.” Even though the district court pretty clearly tried to make its language comply
with 54(b) [“final judgment be entered …there being no just reason for delay”], the Supreme Court
nevertheless held that it did not fit the language of 54(b) because the plaintiff was making a single claim
under Title VII. Note, there was historical purpose for 54(b), by trying to give incentive for multiple parties
to bring all their claims together in a clearer, more efficient way. The incentive was in the fact that pieces
of the action could still go up on appeal, but the Court said this was irrelevant to this case.
-- Third, they looked at whether it fit one of the exceptions under § 1292(a) for injunctions. The
Court admitted that if the district court had granted some sort of injunctive relief but had not ruled on the
5
Caitlin v. United States (1945).
Page 206 of 240

plaintiffs’ other requests, the order would have been an interlocutory exception appealable under §
1292(a)(1). However, no injunction was ordered, so this type of interlocutory relief could not work. And,
even if this order was somehow construed as a denial of the injunction (which would be final), it could not
be appealed by the defendants because they would not be adverse.
-- Fourth, the Court inquired as to whether it was appealable under § 1292(b), a statute of the
annotated judicial code that deals with certification for interlocutory appeal. However, this was shot down
because it was not filed within ten days; also, it did not meet certification requirements whereby the trial
court must request help on “a controlling question of law” by certifying “that an immediate appeal from the
order may materially advance the ultimate termination of the litigation.” The appellate court must then say,
“We want to rule on this question of law.” This legal issue would have met this test, but the certification
clearly never happened since the appellate court thought its jurisdiction was pursuant to § 1291.
-- § 1292(b) certifications are rarely used by the trial courts, and even more rarely invoked by the
appellate levels. Why? Appellate courts are very eager to keep their dockets down, and have no desire to
reach out for cases they do not have to take. So should the trial courts be using this more, and not take a
stab at legal issues that are too tough to call, and should appellate courts be more apt to heed their calls
when they are made?
*******
4. Exceptions to Final Judgment
4a. Collateral Order Doctrine
Lauro Lines s.r.l. v. Chasser (1989), p. 773 (Achille Lauro Case – Collateral Order Doctrine)
To fall within the Cohen articulation of the collateral order doctrine, an order must:
1. CONCLUSIVELY DETERMINE the disputed question;
2. Resolve a SIGNIFICANTLY IMPORTANT issue;
3. COMPLETELY SEPARATE from the merits of the action; and
4. Be EFFECTIVELY UNREVIEWABLE on appeal from a final judgment.
Facts: Respondents were, or represent the estates of, passengers aboard the cruse ship Achille Lauro
when it was hijacked by terrorists in the Mediterranean in October 1985. A forum-selection clause printed
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on each passenger ticket obligated any suits to occur in Naples, Italy, and it provided that the right to sue
elsewhere was renounced. Respondents filed suit against Lauro Lines in New York district court to
recover damages for injuries sustained as a result of the hijacking, and for a wrongful death. District court
denied Lauro Lines’ motion to dismiss, holding that the ticket did not give reasonable notice to
passengers that they were waiving the opportunity to sue in a domestic forum. Lauro Lines appealed, but
it was dismissed by the 2nd Circuit on the ground that it was interlocutory and thus not appealable under §
1291. Lauro Lines obtained certiorari so that the Supreme Court could resolve disagreement among the
Court of Appeals.
Key Issue: Was Lauro Lines able to appeal under the narrow exception to the final judgment rule known
as the collateral order doctrine?
Rule: To fall within the Cohen articulation of the collateral order doctrine, an order must: conclusively
determine the disputed question; resolve an important issue completely separate from the merits of the
action; and be effectively unreviewable on appeal from a final judgment.
Holding (Brennan): Judgment of the Court of Appeals is affirmed, because the court properly dismissed
petitioner’s appeal on the ground that the district court’s orders failed to satisfy the third requirement of
the collateral order test.
Concurrence (Scalia): Even though the right to be sued only in Naples was positively destroyed, the
right was not sufficiently important to overcome the policies mitigating against interlocutory appeals.
Notes: The court noted that, in order to satisfy this third requirement, postponement until completion of
trial must essentially destroy the right that was asserted. It then noted that motions to dismiss upon a
claim of absolute immunity from suit would be immediately appealable because the right of not having to
answer in civil court would be completely destroyed by trial. However, it contrasted that to a defendant
who was sued in an improper jurisdiction. It then determined that Lauro Lines was more like a party who
was sued in the wrong jurisdiction, as opposed to a party with a right to be completely free from trial.
-- Why did Lauro Lines put the provision into the contract? They wanted it to be done in their own
country where they knew the laws, not somewhere that might have been unfamiliar. The trial court in New
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York denied the forum-selection argument, and thus it was set to proceed in New York until Lauro Lines
invoked the court-made collateral order doctrine from Cohen.
-- The collateral order doctrine is very trick to apply. How does it work? The factors are whether
the order was: 1) conclusively determined, meaning that the trial court was done and the issue would
not come up again in the course of litigation; 2) significantly important; 3) separate from the merits; 4)
and effectively unreviewable, meaning the right will be destroyed by the time of final judgment.
The general aim is to consolidate decision-making at the trial level and make it as authoritative as
possible. There is no reason to think the appellate level would be more accurate anyway.
5. Scope of Review
5a. Abuse of Discretion
Did the trial judge abuse the very broad discretion it is afforded? This is a very narrow scope of review,
since the trial court is considered to be the main event. It must be clear that there was an abuse of
discretion on the trial judge’s part. In reviewing for abuse of discretion, however, questions will often tilt in
one direction because things like amendment and the such are to be “freely given.” Thus, the range is
often tilted in such a way that a denial will be seen as more of an abuse, whereas the granting of
something will often be approached very deferentially.
2. De Novo Review
De novo review means no discretion to the trial court, and it is used to review the legal conclusions of the
lower court; the appellate court asks itself what it would have done. Abuse of discretion, on the other
hand, is not what they would have done, and not would they have reached the same conclusion. The
rationale is that, while facts should be determined by the trial court, the appellate courts specialize in
interpreting the law. It takes none of the main event feel away from the trial court because the appellate
courts do not reexamine the factual findings. They take those to be as the trial court found and then
determine what the legal conclusion should be based on those facts. Unfortunately, there is rarely a neat
distinction between facts and law, because lots of legal questions involve facts.
Page 209 of 240

3. Clearly Erroneous
This third standard seems very much like abuse of discretion. However, the difference in the inquiry is
that with clearly erroneous the court looks to see if they found the facts right, rather than whether the
discretion of the judge was abused on a particular order. Yet, the approach of deference is the same.
Anderson v. Bessemer City (1985)
Facts: Ms. Anderson was the only woman of eight applicants to apply for Recreation Director at
Bessemer City. After a two-day trial, the trial judge made a number of subsidiary findings: 1) that Ms.
Anderson had been better qualified than their male hiring; 2) that male committee members had been
biased against hiring a woman (“it would have been ‘real hard’ for a woman to handle the job”); 3) that
Ms. Anderson was the only one asked whether her spouse would approve; 4) that the reasons offered for
hiring Mr. Kincaid were pretextual (since the committee valued experience over education, his degree in
physical education was not as significant as her experience). The court then issued a brief memorandum
decision finding that Anderson had been denied the position on account of her sex. On appeal, the Fourth
Circuit reversed, holding that the first three findings were clearly erroneous.
Key Issue: Did the Fourth Circuit err in reversing the factual findings and judgment of the district court?
Rule: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of the witnesses.”6
Holding (White): Judgment of the Court of Appeals is reversed, because the only task of appellate courts
is to determine whether the trial judge’s factual conclusions are clearly erroneous. On the record before
us, we cannot say that they are.
Reasoning: “Where there are two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” The Fourth Circuit improperly conducted a de novo weighing of the
evidence and concluded that Mr. Kincaid was in fact better qualified, in contrast to the district court’s
finding that Ms. Anderson was better qualified. We cannot say that either interpretation of the facts is
illogical or implausible, and thus the trial judge should be given the discretion to which he is entitled.
6
Federal Rule of Civil Procedure 52(a).
Page 210 of 240

Notes: The Court articulated a number of policy reasons for its decision. First, that trial judges develop
expertise in determining facts because that is their major role. Second, that duplication of that effort at
appellate levels would lead to a huge cost in judicial resources with negligible gain as to the accuracy of
the determination. Third, the trial on the merits should be the “main event.”
-- The Court of Appeals held that the findings were clearly erroneous. They applied the right
standard, but the Supreme Court objected that they improperly applied the standard. The Court of
Appeals asked whether they would have found the facts in the same way, and they should have seen
whether the facts that were determined were a clearly erroneous version of the facts. [This process is
reminiscent of judges reviewing jury verdicts, in that it has to be absolutely wrong and produce a
miscarriage of justice, as opposed to whether the reviewer would have reached a different conclusion.]
-- In this case, the trial judge did all of the fact-finding, and there was no jury. Originally, all cases
where there was no jury were reviewed de novo. This was because equity cases were originally
considered only on a written record and the appellate court was able to read the entire record just as aptly
as the trial judge. That standard was applied to all decisions by a judge sitting without a jury, but then
Rule 52(a) overruled it by articulating that “[f]indings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous.” Anderson reiterated this rule, clearing up
an important issue that the clearly erroneous standard of review applied to all fact-finding of the trial
judge, not just the assessment of witness credibility.
6. Harmless Error Rule 28 U.S.C. § 2111
Rule 61. Harmless Error
The court at every stage of the proceeding must disregard any error or defect in the proceeding which
does not affect the substantial rights of the parties.
[Even if the trial court made a mistake, was the error harmless? If so, then no appeal. The court is doing
guess-work to see if this one mistake would have caused the jury to reach a different verdict? Who really
knows? Basically a lot of it is going to revolve around whether the appellate court felt the end result was
correct. Then they will probably say the error was harmless.]
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H. Alternative Dispute Resolution
1. Arbitration
Arbitrators are like judges in that they make binding decisions. Arbitration is usually chosen in the event of
a future dispute, often by employers and employees.
Ferguson v. Writers Guild of America, West (1991)
California
Facts: Ferguson, a screenwriter, was hired to write a screenplay for “Beverly Hills Cop II.” The Writers
Guild determined the credits as: Screenplay by Larry Ferguson and Warren Skaaren; Story by Eddie
Murphy & Robert Wachs. All three members of the arbitration panel had at least three screenplay credits
or past credit arbitration experience; working individually without knowing who the others were, they
notified the secretary that they agreed with the credits. Ferguson requested the convening of a policy
review board, a final check that detected no substantial deviation from the policy of the Guild or from the
procedure of the credits manual. Superior court then denied Ferguson’s petition for a writ of mandate
requiring the Writers Guild to give him sole screenplay and story credit. Ferguson appealed, asking for a
de novo review of the credit determination, or, in the alternative, a finding that the Writers Guild’s credit
determination process was infected by procedural improprieties and irregularities.
Key Issue: Should Ferguson receive de novo review of the determination of credits by the judiciary?
Rule: The Federal Arbitration Act demands courts enforce arbitration agreements according to their
terms.
Holding (Klein): Ferguson’s request is denied, and the judgment is affirmed.
Reasoning: The professional writers who constitute the Writers Guild have decided, quite appropriately,
that the credit-determination process can be handled more skillfully, more expeditiously, and more
economically by Writers Guild arbitration committees than by courts.
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Notes: Ferguson asked both for a substantive review of the credit determination, and for a procedural
review of the Writers Guild’s method of determination. In denying the substantive review, the court
determined that it was the domain of the arbitration panel to decide because Ferguson, as a member of
the Guild, had consented to have it resolved in arbitration. If he had gone to the courts from the
beginning, the prior commitment in his agreement would have served the Guild would as a classic
affirmative defense. In denying the procedural issue, the court noted that Ferguson did not exhaust
administrative remedy because, in order to preserve his seven objections to the procedure, he would
have had to present them to the policy review board.
-- Finally, the court noted that even if there was an exhaustion of administrative remedy and it
were to decide the merits of the seven objections, Ferguson failed to demonstrate that there was a
material and prejudicial departure from the procedures specified in the credits manual. What was going
on with the procedure? First, each side got a reasonable number of peremptory challenges. Then the
remaining pool was boiled down based on specific experience. Finally, they did not even know the
identities of the other two, and it was three completely isolated opinions rather than a collective
agreement. The whole thing happened within eighteen days, so it was swift decision-making and thus
attractive to the industry. The only acceptable method of review was, within twenty-four hours, to appeal
to a policy board to look for procedural errors—not to reconsider the matter, just to look for impropriety.
2. Mediation
In mediation, parties are still making the decisions, but they bring in a non-binding authority to get a bit of
a reality-check to help them come to a solution. The mediator is not an authority. Mediation is utilized only
after the dispute has arisen.
Professor Tina Grillo and Professor David Luban both provided critiques of mediation. Luban argued that
litigation creates a valuable civic discourse and is thus beneficial to society as a whole. Grillo, on the other
hand, argued that mediation oppresses the powerless. She conceded that litigation has the same
potential, but that mediation is no better and that we therefore should not impose it on people. In any
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case, it should not be required, especially in instances of divorce when the powerless are even more
likely to be oppressed.
*******
The ideal notion of mediation is that the parties are deciding and the mediator is helping them reach a
compromise, and it is generally post-dispute. If a party is not happy with what is proposed, then they still
have the option to go to court. In arbitration, on the other hand, they lose the opportunity to go to court
and the decision is final. It is arranged by contract of the parties, agreeing to arbitrate before the dispute
even arises. What we are concerned about is that the agreement is not real, that it was coerced in order
to get employment. In those cases, the courts might not enforce the agreement to arbitrate.
I. American Procedure in Comparative Perspective
1. The German System
a. Pleadings
What is different about the pleadings? Some proof is included by the Germans, whereas there is no proof
included in the American system, though automatic disclosure does not look so far off from this type of
proof. The American system is clearly designed to keep a case alive when it states a claim even if it does
not immediately offer proof, whereas it is not so clear that this case would survive an early hearing in
Germany. What are the consequences of not including proof? In America, there are no consequences
because proof is not required. In Germany, the case will likely be dismissed.
b. Fact-finding/Discovery
In Germany, fact-finding is directed by the judge, who has a very broad brush of control. It is segmented,
and the investigation is done without a transcript of the witness’s exact testimony. Instead, everything is
summarized into a dossier. The scope of discovery is also quite different, in that it is anti-fishing and much
more is privileged (there are considerable provisions about what is privileged and therefore protected
from being brought into the whole investigation). The bigger philosophical piece is the opposition to
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fishing; they want it to be as narrow as possible to answer the question of the case (private business
information is the most protected by them). The true question is whether we feel that fact-finding should
be judge-driven or lawyer-driven.
c. Trial
The German trial is incredibly segmented, and during trial the judge is saying that if there is one thing that
will decide the case, that is what he will go for. He is trying to figure out what is the kind of thing that will
shed the most light and make this as efficient as possible. How many segments will there be? It
completely depends on how many is necessary. In America, we have summary judgment which is sort of
segmented, but the critical distinction is summary judgment only dismisses a case when there is no
material issue of fact (in Germany, on the other hand, the judge can dismiss if there is a dispute of facts
because he agrees with one version of the facts). Of course, going along with this system means no more
juries, a choice which has its own pros and cons.
d. Witnesses
Witness examination, in Germany, occurs once and there is no preparation. In America, we have trial
prep and multiple instances of questioning, starting with the deposition. There is the argument that this
leads to distortion; however, the other side is that witnesses are often daunted or do not remember clearly
on the first go-round, and this would be exacerbated by the judge asking questions. So there is a side of
witness preparation that is cutting out the bad sides of answering on the first go-round.
e. Experts
In Germany, the judge selects the expert, and there is only one unless it is truly necessary to bring in
another. Also there is an issue of control in America, in that 26b4B puts the control of you going out and
spending the money and doing the effort so you get some property right to the expert (and if the other
side gets to use it, you get fee-shifting). Which is better? Property right and adversarial approach to the
expert or judge controlling the expert.
f. Appeal
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Review in Germany is de novo. However, the review that is done is of the summaries of the very judge
you are supposed to be reviewing. On the flip side, if necessary, the appellate court can recall witnesses
or call its own witnesses if it feels it is absolutely necessary. Two things then, de novo on facts versus the
discretion of the American system, and then review of summaries versus a review of exact transcripts
(need to be thorough versus likelihood of finding a needle in the haystack).
Exam is three hours, open book, in classroom. One long question with multiple issues. Short question or
questions which can be answered well in a handful of sentences. Bring your rules, and not much more.
Questions tend to be fictional, although they are often based on something real or will include a chunk of
real text.
******
Page 216 of 240

CIVIL PROCEDURE OUTLINE Section 5 – Rule 16: Pre-Trial Conferences
5. RULE 16. PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT
A TEXT OF RULE AND OVERVIEW

(a) Pretrial Conferences; Objectives. In any action, the court may in its discretion direct the attorneys
for the parties and any unrepresented parties to appear before it for a conference or conferences
before trial for such purposes as
1) expediting the disposition of the action;
2) establishing early and continuing control so that the case will not be protracted because
of lack of management;
3) discouraging wasteful pretrial activities;
4) improving the quality of the trial through more thorough preparation, and;
5) facilitating the settlement of the case.
(b) Scheduling and Planning. Except in categories of actions exempted by district court rule as
inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall,
after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for
the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other
suitable means, enter a scheduling order that limits the time
1) to join other parties and to amend the pleadings;
2) to file motions; and
3) to complete discovery.
The scheduling order may also include
4) modifications of the times for disclosures under Rules 26(a) and 26(e)(1) and of the
extent of discovery to be permitted;
5) the date or dates for conferences before trial, a final pretrial conference, and trial; and
6) any other matters appropriate in the circumstances of the case.
The order shall issue as soon as practicable but in any event within 90 days after the appearance of a
defendant and within 120 days after the complaint has been served on a defendant. A schedule shall
not be modified except upon a showing of good cause and by leave of the district judge or, when
authorized by local rule, by a magistrate judge.
(c) Subjects for Consideration at Pretrial Conferences. At any conference under this rule
consideration may be given, and the court may take appropriate action, with respect to
1) the formulation and simplification of the issues, including the elimination of frivolous
claims or defenses;
2) the necessity or desirability of amendments to the pleadings;
3) the possibility of obtaining admissions of fact and of documents which will avoid
unnecessary proof, stipulations regarding the authenticity of documents, and advance
rulings from the court on the admissibility of evidence;
4) the avoidance of unnecessary proof and of cumulative evidence, and limitations or
restrictions on the use of testimony under Rule 702 of the Federal Rules of Evidence;
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5) the appropriateness and timing of summary adjudication under Rule 56;

6) the control and scheduling of discovery, including orders affecting disclosures and
discovery pursuant to Rule 26 and Rules 29 through 37;
7) the identification of witnesses and documents, the need and schedule for filing and
exchanging pretrial briefs, and the date or dates for further conferences and for trial;
8) the advisability of referring matters to a magistrate judge or master;
9) settlement and the use of special procedures to assist in resolving the dispute when
authorized by statute or local rule;
10) the form and substance of the pretrial order;
11) the disposition of pending motions;
12) the need for adopting special procedures for managing potentially difficult or protracted
actions that may involve complex issues, multiple parties, difficult legal questions, or
unusual proof problems;
13) an order for a separate trial pursuant to Rule 42(b) with respect to a claim, counterclaim,
cross-claim, or third-party claim, or with respect to any particular issue in the case;
14) an order directing a party or parties to present evidence early in the trial with respect to a
manageable issue that could, on the evidence, be the basis for a judgment as a matter of
law under Rule 50(a) or a judgment on partial findings under Rule 52(c);
15) an order establishing a reasonable limit on the time allowed for presenting evidence; and
16) such other matters as may facilitate the just, speedy, and inexpensive disposition of the
action. At least one of the attorneys for each party participating in any conference before
trial shall have authority to enter into stipulations and to make admissions regarding all
matters that the participants may reasonably anticipate may be discussed. If appropriate,
the court may require that a party or its representative be present or reasonably available
by telephone in order to consider possible settlement of the dispute.
(d) Final Pretrial Conference. Any final pretrial conference shall be held as close to the time of trial as
reasonable under the circumstances. The participants at any such conference shall formulate a plan
for trial, including a program for facilitating the admission of evidence. The conference shall be
attended by at least one of the attorneys who will conduct the trial for each of the parties and by any
unrepresented parties.
(e) Pretrial Orders. After any conference held pursuant to this rule, an order shall be entered reciting the
action taken. This order shall control the subsequent course of the action unless modified by a
subsequent order. The order following a final pretrial conference shall be modified only to prevent
manifest injustice.
(f) Sanctions. If a party or party's attorney fails to obey a scheduling or pretrial order, or if no
appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's
attorney is substantially unprepared to participate in the conference, or if a party or party's attorney
fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such
orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)
(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the
attorney representing the party or both to pay the reasonable expenses incurred because of any
noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance
was substantially justified or that other circumstances make an award of expenses unjust.
Page 218 of 240

B JUDICIAL MANAGEMENT OF LITIGATION

Evolution of courts from triers of cases to managers of cases. Typical judge today has 400 active civil
cases on their docket at any given time. The average Eastern District (of California) judge has 700 cases.
Types of cases, complexity of litigation; growth of discovery and discovery disputes all combine to
overwhelm the courts. Courts do not have the time to deal individually with cases. So, judges have
resorted to new devices to keep the whole system from collapsing.
Increased use of ADR and Rule 16 pre-trial conferences.
Sanders v. Union Pacific Railroad, p. 645
A case may be dismissed for failure to comply with a court order if there is prejudice to the other
party and lesser sanctions are unavailable.
Facts: P’s action dismissed b/c attorney failed to comply w/pre-trial order
Rule: A case can be dismissed for failure to comply w/ a court order if there is prejudice to the other
party and lesser sanctions are unavailable.
Dissent: Dismissal here was too harsh and extreme, given that no repeated instances of dilatory behavior
was involved and no inordinate delay resulted.
Facts: In 1995, Sanders (P) sued his employer, Union Pacific (D), following a work-related back injury. A
trial date was set for November 19, 1996. A pretrial conference was scheduled for November 8, and an
order was issued requiring that various motions be completed by then. The order indicated that failure to
comply could result in sanctions. Some of the requirements demanded joint participation between the
parties. However, Sanders's (P) attorney failed to comply with nearly all of the requirements, apparently
because of his responsibilities in another case, but did not alert the court or Union Pacific (D). Following
the pretrial conference, the court dismissed Sanders's (P) action with prejudice as a sanction for failure to
comply with the pretrial order. Sanders (P) appealed.
Issue: Maya case be dismissed for failure to comply with a court order if there is prejudice to the other
party and lesser sanctions are unavailable?
Holding And Decision: (Per Curiam) Yes. A case may be dismissed for failure to comply with a court
order if there is prejudice to the other party and lesser sanctions are unavailable. In the present case,
Sanders's (P) attorney had multiple failures with regard to the pretrial order of the court. This undoubtedly
impaired Union Pacific's (D) efforts to prepare for trial. Furthermore, by neglecting to inform the court of
the impending failures, Sanders's (P) counsel deprived the court of a chance to impose lesser sanctions.
The attorney's conduct completely disrupted the trial calendar. In order to achieve justice for individual
litigants, flagrant disobedience of orders cannot be tolerated. Sanders (P) was on notice, from the warning
in the order, that dismissal could result from failure to comply. Thus, the court did not abuse its discretion
in ordering dismissal with prejudice. Affirmed.
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Dissent: (Canby, J.) Dismissal in this case was too harsh and extreme given the fact that no repeated
instances of dilatory behavior was involved and no inordinate delay resulted.
Analysis: The court seemed most concerned that the failure to comply with the order inconvenienced the
court. It particularly pointed out that crowded calendars can overwhelm courts. However, the dismissal of
this case almost certainly added another case to the docket: Sanders' (P) malpractice suit against his
former attorney.
McKey v. Fairbairn, p. 650
A trial judge has broad discretion to exclude evidence supporting a theory of recovery not raised
in the complaint.
Facts: P’s decedent slipped on water which had leaked through the roof and her attorney told judge it
was a negligence case; judge denied motion to amend complaint to include housing regulations.
Rule: A judge has broad discretion to exclude evidence supporting a theory of recovery not raised in
the complaint.
Facts: Fairbairn (D) was acting as the agent of Haynes in renting a dwelling house to McKey (P).
McKey's (P) decedent was occupying a room of the house where some wetness was discovered by
Fairbairn's (D) inspectors, and before Fairbairn (D) eliminated the wetness as agreed, an all-night rain
caused more leaking in the room. McKey's (P) decedent mopped up some of the wetness, but on
returning to the room toget a coat, sheslipped and fell, sustaining injuries (which were unrelated to her
later I death). McKey (P) brought this action for damages, and at trial ' her counsel agreed with the trial
judge's assessment of the case as one in negligence. Thereafter, McKey (P) moved to amend her
complaint to include citations to certain allegedly relevant housing regulations, but the judge denied the
motion and directed a verdict for Fairbairn (D). McKey (P) appealed.
Issue: Has a trial judge broad discretion to exclude evidence supporting a theory of recovery not raised in
the complaint?
Holding And Decision: (Miller, J.) Yes. The questions on appeal are whether a directed verdict was error
where evidence of a leak and a promise to repair it was offered and whether denial of the motion to
amend to include housing regulations was error. The landlord dd not have a duty to make the repairs
alleged, so that a directed verdict on the issue of negligence liability was proper. Similarly, it was not error
to refuse to allow McKey (P) to change her theory of recovery after the complaint was filed and answered.
The trial court has broad discretion in the conduct of a trial, and this discretion was not abused in this
case. A trial judge has broad discretion to exclude evidence supporting a theory of recovery not raised in
the complaint, as a part of the conduct of the trial. Furthermore, since McKey's (P) decedent entered a
room where she knew there was a slippery wet spot, her own negligence contributed to the accident.
Affirmed.
Dissent: (Fahy, J.) Modification at trial is to be permitted to prevent manifest injustice. We have
previously held that a landlord's duty to a tenant is covered in some part by the housing regulations.
Modification should be permitted to allow McKey (P) to include the regulations in the complaint as a basis
for recovery. Furthermore, the issue of contributory negligence should be initially considered and
answered by the district court, not by this court on appeal.
Page 220 of 240

Analysis: Under Federal Rule of Civil Procedure 15, amendment of pleadings after responsive pleadings
are served is permitted only by leave of the court or written consent of the adverse party. A party may
proceed to trial of issues not raised by pleadings and later amend the pleadings to conform to the
evidence, but trial of those unraised issues must be by "express or implied consent of the parties." McKey
(P) was outside of all these possibilities in this case.
Class: Rule 16(e) says that an order following a final pretrial conference shall be modified only to prevent
manifest injustice. The Court doesn’t want to go to trial and then start changing the issues. Amending
the pleadings or relation back? No need for relation back b/c no SOL issue. Rule 15(b) on amending
pleadings to conform prior to trial. What is the interrelationship between the general rule of 15(b) and the
specific rule of 16(e)? 16(e) within the context of a pre-trial order will trump 15(b).
C EASTERN DISTRICT LOCAL RULES

Review class handout and see the amount of work required before trial. A lot of busy work. See also the
Mazda case. Update outline.
Page 221 of 240

CIVIL PROCEDURE OUTLINE Section 6 – Litigation Remedies and Financing
6. LITIGATION REMEDIES AND FINANCING
I. Incentives to Litigate
What is the goal? Remedies vs. Access to Justice. (what the court can do vs. barriers to litigation).
(a) Statistics
99% of all litigation occurs in state court.
Court Activity in 1995 (actions in millions)

Type Number % Per Person
Traffic Court Cases 51 60% 5.4
Serious Civil Cases 15 18% 18.3
Domestic Civil 4 5% 68.8
Serious Criminal Cases 13 15% 21.2
Juvenile 2 2% 137.5
Total 85 100% 3.2
U.S. Population 275
II Remedies
Is there a remedy appropriate for your client’s claim. Or is there an alternative to litigation.
(a) Substitutionary Remedy.
A remedy for breach of contract intended to give the promisee something as a replacement for the
promised performance, as when the court orders a defaulting seller of goods to pay the buyer damages
(as opposed to delivering the goods). Most common type of relief b/c credit economy results in many debt
related suits successful recovery of which results in money damages; also b/c specific remedies often not
possible – e.g., for a broken arm.
(b) Compensatory Damages
Primarily money damages. To make the π whole or to put π where he would have been but for the ∆ ’s
actions. THE FUNDAMENTAL PRINCIPLE OF DAMAGES IS TO RESTORE THE INJURED PARTY, AS NEARLY AS POSSIBLE, TO THE
POSITION HE WOULD HAVE BEEN IN HAD IT NOT BEEN FOR THE WRONG OF THE OTHER PARTY.The three important rules of
compensatory damages are:
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(1) The open market value rule (an objective measure),
(2) The mitigation principle (you can’t sit around and pile up losses), and
(3) individualized measures of pain and suffering (you can’t hand out money with a cookie
cutter).
(c) Legal Remedy
A remedy available in a court of law, as distinguished from a remedy available only in equity. * After the
merger of law and equity, this distinction became no longer legally relevant.
(d) Equitable Remedy
A nonmonetary remedy, such as an injunction or specific performance, obtained when monetary

damages cannot adequately redress the injury. See IRREPARABLE-INJURY RULE. Used to be you
couldn’t get here unless legal remedy was inadequate.
(e) Replevin
replevin (ri-plev-in), n. 1. An action for the repossession of personal property wrongfully taken or
detained by the defendant, whereby the plaintiff gives security for and holds the property until the court
decides who owns it. 2. A writ obtained from a court authorizing the retaking of personal property
wrongfully taken or detained. -- Also termed (in sense 2) writ of replevin. Cf. DETINUE; TROVER.
"Replevin is a remedy ground and granted upon a distress, being a re- deliverance of the thing distrained
to remain with the first possessor, on security or pledges given by him to try the right with the distrainer,
and to answer him in a course of law." The Pocket Lawyer and Family Conveyancer 105 (3d ed. 1833).
"The action of replevin lies, where specific personal property has been wrongfully taken and is wrongfully
detained, to recover possession of the property, together with damages for its detention. To support the
action it is necessary: (a) That the property shall be personal. (b) That the plaintiff, at the time of suit, shall
be entitled to the immediate possession. (c) That (at common law) the defendant shall have wrongfully
taken the property (replevin in the cepit). But, by statute in most states, the action will now also lie where
the property is wrongfully detained, though it was lawfully obtained in the first instance (replevin in the
detinet). (d) That the property shall be wrongfully detained by the defendant at the time of suit." Benjamin
J. Shipman, Handbook of Common-Law Pleading § 49, at 120 (Henry Winthrop Ballantine ed., 3d ed.
1923).
(f) Ejectment
ejectment. 1. The ejection of an owner or occupier from property. 2. A legal action by which a person
wrongfully ejected from property seeks to recover possession and damages. * The essential allegations in
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an action for ejectment are that (1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully
dispossessed or ousted, and (3) the plaintiff has suffered damages. -- Also termed action for the recovery
of land. See FORCIBLE ENTRY AND DETAINER. Cf. EVICTION; OUSTER.
"The evolution of the action of ejectment from its primitive form as a mere action of trespass, enabling a
lessee of lands to recover damages when ousted of his possession, through a series of most ingenious
fictions, which were afterwards added to enable him to recover possession as well, until its final
establishment as the proper method of trying all disputed titles to real property, presents to the student of
legal science one of the most interesting studies that the history of the law affords. Few remedies have
passed through so many changes of form, both in pleading and practice, and yet retained the same
distinctive character that marked their origin." George W. Warvelle, A Treatise on the Principles and
Practice of the Action of Ejectment § 4, at 4-5 (1905).
"Any person wrongfully dispossessed of land may sue for the specific restitution of it in an action of
ejectment. Originally this action was a special variety of trespass and available only to leaseholders. But
in time and by the aid of the most elaborate fictions it came to be used by freeholders also. All these
fictions have now been swept away; in theory even the term ejectment has been replaced by the term
action for the recovery of land. The older term is, however, replaced in practice." R.F.V. Heuston,
Salmond on the Law of Torts 41 (17th ed. 1977).
equitable ejectment. A proceeding brought to enforce specific performance of a contract for the sale of
land and for other purposes. * Though in the form of an ejectment action, this proceeding is in reality a
substitute for a bill in equity.
justice ejectment. A statutory proceeding to evict a tenant who has held over after termination of the
lease or breach of its conditions.
(g) Liquidated Damages
liquidated damages. An amount contractually stipulated as a reasonable estimation of actual damages to

be recovered by one party if the other party breaches. * If the parties to a contract have agreed on
liquidated damages, the sum fixed is the measure of damages for a breach, whether it exceeds or falls
short of the actual damages. -- Also termed stipulated damages; estimated damages. See LIQUIDATED-
DAMAGES CLAUSE. Cf. unliquidated damages; PENALTY CLAUSE.
"Where the terms of a contract specify a sum payable for non-performance, it is a question of construction
whether this sum is to be treated as a penalty or as liquidated damages. The difference in effect is this:
The amount recoverable in case of a penalty is not the sum named, but the damage actually incurred.
The amount recoverable as liquidated damages is the sum named as such. In construing these terms a
judge will not accept the phraseology of the parties; they may call the sum specified "liquidated damages,'
but if the judge finds it to be a penalty, he will treat it as such." William R. Anson, Principles of the Law of
Contract 470 (Arthur L. Corbin ed., 3d Am. ed. 1919).
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"The distinction between a penalty and genuine liquidated damages, as they are called, is not always
easy to apply, but the Courts have made the task simpler by laying down certain guiding principles. In the
first place, if the sum payable is so large as to be far in excess of the probable damage on breach, it is
almost certainly a penalty. Secondly, if the same sum is expressed to be payable on any one of a
number of different breaches of varying importance, it is again probably a penalty, because it is extremely
unlikely that the same damage would be caused by these varying breaches. Thirdly, where a sum is
expressed to be payable on a certain date, and a further sum in the event of default being made, this
latter sum is prima facie a penalty, because mere delay in payment is unlikely to cause damage. Finally,
it is to be noted that the mere use of the words "liquidated damages' is not decisive, for it is the task of the
Court and not of the parties to decide the true nature of the sum payable." P.S. Atiyah, An Introduction to
the Law of Contract 316-17 (3d ed. 1981).
(h) Statutory Damages
statutory damages. Damages provided by statute (such as a wrongful death and survival statute), as
distinguished from damages provided under the common law. Example: $x per statutory violation.
(i) Punitive Damages
punitive damages. Damages awarded in addition to actual damages when the defendant acted with
recklessness, malice, or deceit. * Punitive damages, which are intended to punish and thereby deter
blameworthy conduct, are generally not recoverable for breach of contract. Standard for proving punitive
damages is often higher – clear & convincing evidence as opposed to mere preponderance. Relative
wealth of the ∆ can still be introduced although this is being limited by recent rulings. Usually punitive
damages are awarded for intentional malicious conduct – such as an intentional tort. Insurance does not
normally cover intentional torts. The Supreme Court has held that three guidelines help determine
whether a punitive-damages award violates constitutional due process:
(1) the reprehensibility of the conduct being punished;
(2) the reasonableness of the relationship between the harm and the award; and
(3) the difference between the award and the civil penalties authorized in comparable cases. BMW of
North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996). -- Also termed exemplary damages;
vindictive damages; punitory damages; presumptive damages; added damages; aggravated damages;
speculative damages; imaginary damages; smart money; punies.
(j) Specific Relief
Also termed specific performance. A court-ordered remedy that requires precise fulfillment of a legal or
contractual obligation when monetary damages are inappropriate or inadequate, as when the sale of real
estate or a rare article is involved. * Specific performance is an equitable remedy that lies within the
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court's discretion to award whenever the common-law remedy is insufficient, either because damages
would be inadequate or because the damages could not possibly be established. 7th Amendment
preserves (not guarantees) the right to a jury trial. Whatever types of claims that had a right to jury trial in
1789, those are protected by the U.S. Constitution. This is where the difference between law and equity
becomes important.
"In essence, the remedy of specific performance enforces the execution of a contract according to its
terms, and it may therefore be contrasted with the remedy of damages, which is compensation for non-
execution. In specific performance, execution of the contract is enforced by the power of the Court to treat
disobedience of its decree as contempt, for which the offender may be imprisoned until he is prepared to
comply with the decree. Actually, ... it is not strictly accurate to say that the Court enforces execution of
the contract according to its terms, for the Court will not usually intervene until default upon the contract
has occurred, so that enforcement by the Court is later in time than performance carried out by the person
bound, without the intervention of the Court." G.W. Keeton, An Introduction to Equity 304 (5th ed. 1961).
(k) Injunction
injunction (in-j<<schwa>>ngk-sh<<schwa>>n), n. A court order commanding or preventing an action. *

To get an injunction, the complainant must show that there is no plain, adequate, and complete remedy at
law and that an irreparable injury will result unless the relief is granted. See IRREPARABLE- INJURY
RULE. -- Also termed writ of injunction. Mandatory vs. Prohibitory. Mandatory requires compliance by
specific action; prohibitory proscribes the specified activity or behavior.
"In a general sense, every order of a court which commands or forbids is an injunction; but in its accepted
legal sense, an injunction is a judicial process or mandate operating in personam by which, upon certain
established principles of equity, a party is required to do or refrain from doing a particular thing. An
injunction has also been defined as a writ framed according to the circumstances of the case,
commanding an act which the court regards as essential to justice, or restraining an act which it esteems
contrary to equity and good conscience; as a remedial writ which courts issue for the purpose of enforcing
their equity jurisdiction; and as a writ issuing by the order and under the seal of a court of equity." 1
Howard C. Joyce, A Treatise on the Law Relating to Injunctions § 1, at 2-3 (1909).
Is there a danger that by waiting until final judgment of the controversy there will be irreparable harm?
Dissapation of assets? Waiting for specific or substitutionary remedies at the end of trial might not be
good enough. Can get a temporary restraining order which is a type of injunction. Permanent injunctive
relief may come after final judgment.
(l) Declaratory Relief
declaratory judgment. A binding adjudication that establishes the rights and other legal relations of the
parties without providing for or ordering enforcement. R.A. says enforcement is not necessarily excluded
Page 226 of 240

from a declaratory judgment. 28 USC § 2201; FRCP 57. * Declaratory judgments are often sought, for
example, by insurance companies in determining whether a policy covers a given insured or peril. -- Also
termed declaratory decree; declaration. Unlike equitable relief which is available only in the absence of
adequate legal remedies, declaratory relief may be chosen by a party even though other avenues are
open. A court may order a speedy hearing of an action for declaratory judgment and may advance it on
the calendar. A jury trial is possible under FRCP 38 & 39. Problem questions will involve jurisdiction
and the burden of court costs. See p. 340. Issues of burden of proof, counterclaims and jurisdiction
come up because you’ve sometimes made the ∆ into the π for purposes of this issue or motion.
(m) Prayer for Relief
What you are asking the Court to do. After you go through all the issues in your complaint, you state what
you want the court to do. Example: ejectment, replevin, attorneys’ fees, interest, out-of-pocket litigation
expenses.
(n) Garnishment
A lien on wages or payroll.
(o) Attachment
Direction to sherrif to seize certain pieces of property. Due Process issues must be addressed.
(p) Alternative Dispute Resolution
Benefits / Disadvantages
1. Lower transaction costs
2. Less Confrontational forum for resolving disputes, especially in an ongoing relationship such
as a business and a key vendor.
3. But, you cannot force the parties to ADR.
4. Treaty of Versailles – sometimes you can win too big. What does your client really want?
Methods of ADR
Governed by Fed. R. Evid. 408 – confidentiality of settlement negotiations.
1. Negotiation
2. Judicial Settlement Conference
3. Mediation
This is a form of facilitated negotiation. The mediator makes no decisions. He is strictly a
facilatator of communication between the parties. Confidential. Can fashion a relief or
Page 227 of 240

settlement tailored specifically for the parties to the action; not a cookie cutter settlement. Not
a binary settlement as in a court order. There is some give-and-take to the process.
4. Arbitration
Private adjudication with a third party neutral. There must be a relationship or agreement
giving rise to the dispute. The parties must agree in writing to the arbitration in order for it to
bind. Non-binding arbitration could be used to get a sense of what trial might result or to
expedite the settlement process by showing what might happen at trial. Much more informal.
Rules of Procedure can be crafted by the parties. No right to discovery. Rules of evidence
can be negotiated. Can be more efficient. See rule 16.
5. Mini-Trials
Dispute resolution is not moving forward because we disagree on the facts of the law. This is
especially true of large party cases where it is difficult to attract the attention of the key
decision makers. A retired judge can be hired to run a quick one day “reality check” trial so
that the key decision makers can see what the real issues are. Having a picture of what the
real trial may look like, they can move to settle by one of the other ADR methods. No
subpoena power; this is a private, for-hire process.
6. Summary Jury Trials

Done in jurisdictions where statutorily permitted. Actual jurors and practicing judges hear the
case and render an advisory jury verdict. Quasi-public activity. But, it cannot be used in the
real trial; it’s kept confidential.
7. Early Neutral Evaluation

Some courts require this step. Short summaries from each side go to the pro-bono neutral
advisor to the court. The lawyer then prepares a written evaluation of the case based upon
the preliminary snapshot of the case. He offers you the option of either hearing the
evaluation or of having him serve as a mediator. The evaluator can help streamline the
process.
III. U. S. v. Hatahley, Compensatory Damages (The Navajo Burro

Case)
Compensatory damages are designed to make the π whole – to restore π to point prior to
wrongdoing. In calculation compensatory damages must use fair market values, π must try to
mitigate losses, and must calculate pain & suffering individually.
Page 228 of 240

(a) Summary
p. 315. Navajo tribe involved in dispute with U.S. Government regarding grazing rights on public land. In
midst of litigation, U.S. agents resorted to self-help and seized the disputed burros and sold them to a
glue factory. The trial judge was outraged and threw the book at the U.S., granting top dollar damages
and a flat-rate for pain & suffering to each π. 10th Circuit reversed for a re-calculation of damages and
asked judge to recuse himself. Main point: Damages are to restore a party to where they were prior
to the incident. The Navajos could not get specific performance because the animals were gone; so
they sought a substitutionary remedy in the form of compensatory (money) damages.
(b) Questions
What facts were of particular significance to the holding in this case?
Improper calculation of damages; improper application of law in providing remedy.
What was the result in the District Court? How did the District Court calculate damages?
Verdict for π. Court calculated amount of damage for loss of burros w/o consideration for availability of
like animals and market value in that area. Loss of use damages s/b loss of profit on the animals seized,
not some arbitrary number which failed to account for productivity of the animals lost. Pain and sufferring
calculated as flat amount per person; s/b individualized calculation. Loss of profits s/b calculated as
pecuniary loss inflicted by seizure of animals for period reasonable person would take to replace lost
animal; not a perpetuity.
Why did the Court of Appeal reverse the District Court’s damages award?
Improper calculation of damages; improper remedy for damages. THE FUNDAMENTAL PRINCIPLE OF DAMAGES IS
TO RESTORE THE INJURED PARTY, AS NEARLY AS POSSIBLE, TO THE POSITION HE WOULD HAVE BEEN IN HAD IT NOT BEEN FOR THE
WRONG OF THE OTHER PARTY. WAS THE DAMAGE AWARD APPROPRIATELY CALCULATED? THE INJURED PARTY NEEDS TO BE PUT IN
THE POSITION IT WOULD HAVE BEEN IN ABSENT THE WRONG OF THE INJURER. DOES A MARKET EXIST FOR THESE ANIMALS? CAN
WE DETERMINE VALUE OF THE LOST ANIMALS IN THAT MARKET? We cannot tell from the Appellate opinion whether or
not the government raised the “open market” issue at trial.
The Court here just said that there was a broader market; no analysis of how to identify and access a
market or how to compare the relevance of a narrow market (the Navajo barter system) versus a broader
market (the animal exchange in the nearest town?). As noted in the book, there is a question as to what
the impact would be if the Navajo could produce a verifiable bid for the animals at $395 apiece. The
Appellate Court would probably have preferred data from the local livestock auction house as being more
reliable and representative of the true market value. The Appellate Court never states whether mitigation
was possible for the Navajos; just that it was missing and required.
Page 229 of 240

Compensatory Damages Rule
The Three Important Rules Of COMPENSATORY DAMAGES That We Learn From This Case Are
(Mimm):
(1) The Open Market Value Rule (An Objective Measure),
(2) The Mitigation Principle (You Can’t Sit Around And Pile Up Losses), And
(3) Individualized Measures Of Pain And Suffering (You Can’t Hand Out Money With A Cookie Cutter).
What could be done during the re-trial of the damages case in Hatahley to address the concerns of the
Court of Appeals, i.e., how could the damages evidence be changed to satisfy the appellate court?
Comparison of inventory levels and productivity during normal period to period during and immediately
after seizure. Treat analysis as a business interruption claim. Show period and cost for return to normal
operating income levels. Medical or clergy testimony on pain and suffering. Dr. Marvin Monroe. Book
says (p. 320) Beagle v. Vasold, 65 Cal.2d 166 (1966) it’s OK to just ask jury to figure one day’s pain and
then multiply by expected duration of pain. MUST CALCULATE DAMAGES SPECIFICALLY BY INDIVIDUAL; CANNOT USE
BLANKET ESTIMATE. This probably means that on retrial, each π will take the stand to explain their pain and
suffering.
Would the plaintiffs in Hatahley will be adequately compensated for their losses by a damages award
based on the Court of Appeals’ decision?
Maybe, depending on the cost of proving individual damages for each of the injured parties. Were π’s
made whole? Don’t forget time value of money! Maybe you can get pre-trial interest. If yes, does that
make you whole? Compare stated interest rate to your individualized hurdle rate. If the ∆ is required to
pay you a stated interest rate of 2% but he is earning15%, he will drag out the litigation.
What statute and/or rule tells you about seeking declaratory relief in federal court?
Declaratory judgment actions: The Declaratory Judgment Act (28 USC §§ 2201-2202) 'does not by
itself provide statutory authority' to award attorney fees. [Utica Lloyd's of Tex. v. Mitchell (5th Cir. 1998)
138 F3d 208, 210; Houston Cas. Co. v. Certain Underwriters at Lloyd's London (DC TX 1999) 51
F.Supp.2d 789, 806]
Thus, attorney fee awards in declaratory judgment actions are confined to the following situations:
Where attorney fees are otherwise allowed pursuant to an exception to the 'American Rule'; or
In diversity actions, where controlling substantive law permits recovery. [Public Service Co. of Colo. v.
Continental Cas. Co. (10th Cir. 1994) 26 F3d 1508, 1520; Utica Lloyd's of Tex. v. Mitchell, supra, 138 F3d
at 210-- attorney fee provision of Texas Declaratory Judgment Act did not authorize attorney fees in
federal court since Act was procedural rather than substantive in nature]
Page 230 of 240

IV. State Farm v. Campbell Substitutionary Remedy (The $145mm

Utah Case)
Punitive damages are to punish and deter. Must be based on 3 factors:
1. The Reprehensibility Of The Conduct Being Punished,
2. The Reasonableness Of The Relationship Between The Harm And The Award
3. The Difference Between The Award And The Civil Penalties Authorized In Comparable
Cases.
Must also use the following guidelines:

4. Ratio of punitive to compensatory damages should be single digit (e.g., 9:1 or lower).
5. Cannot be used to punish bad acts unrelated to current litigation.
6. Cannot deter a ∆ based on wealth.
(a) Summary
(Supplement, p. 404) Campbell tried to pass six vans on a two lane highway and had a head-on with a
guy coming the other way. The other guy hit a third guy and was killed and the thrid guy was severly
injured. State Farm, representing Campbell, lied to him about their chances of success at trial and the
extent of his coverage for legal fees. They refused a settlement offer at policy limits, played hardball,
forced the case to trial, lost, and then refused to pay the exces damages. Campbell teamed with the π’s
and sued State Farm for bad faith. Jury award $145mm but the Supreme Court was on crack and
substituted their judgment for that of the Utah Supreme Court. How often do you see Scalia and Thomas
on the same page as Ginsburg? Anyway, the main point is that punitive damages must be specially
calculated using the BMW guidelines:
Page 231 of 240

Punitive Damages Rule
The Rule For PUNITIVE DAMAGES Emphasized In This Case:
(1) The Reprehensibility Of The Conduct Being Punished,
(2) The Reasonableness Of The Relationship Between The Harm And The Award
(3) The Difference Between The Award And The Civil Penalties Authorized In Comparable Cases.
(4) Ratio of punitive to compensatory damages should be single digit (e.g., 9:1 or lower).
(5) Cannot be used to punish bad acts unrelated to current litigation.
(6) Cannot deter a ∆ based on wealth.
(b) Questions
What facts were of particular significance to the Supreme Court’s decision? What behavior provided the
basis for the punitive damages award?
Bad faith by State Farm in assuring Campbell that”theire assets were safe, that they had no liability for the
accident, that State Farm would represent their interests and that they did not need to procure separate
counsel.” State Farm ingnored their own investigator, destroyed internal documents, refused to settle for
the policy limits, and went to trial on a shaky case. When they lost, they refused to pay the damages in
excess of the policy limits and told the Campbells to sell their house.
What was the holding of the Supreme Court?
Reversed and remanded for re-calculation of damages
What are the three Gore “guideposts” applied by the Court to measure the reasonableness and
proportionality of the punitives award against State Farm? How did the Court apply each factor?
(1) the reprehensibility of the conduct being punished;
While we do not suggest there was error in awarding punitive damages based upon State Farm’s
conduct toward the Campbells, a more modest punishment for this reprehensible conduct could
have satisfied the State’s legitimate objectives and Utah courts should have gone no further.
This case, instead, was used as a platform to expose , and punish, the perceived deficiencies of
State Farm’s operations throughout the country. Territoriality of jurisdictional issues. What
conduct can be addressed to award punitive damages? Here, the Court said that the Utah
Supreme Court cast too wide a net both geographically and substantively.
(2) the reasonableness of the relationship between the harm and the award; and
Page 232 of 240

No rigid benchmarks or bright line. But single digit ratios are more likely to avoid due process
conflicts. Compensatory damages are to make π whole and punitive damages are to punish and
deter.
(3) the difference between the award and the civil penalties authorized in comparable cases.
Huge difference as Utah law only allows a maximum penalty of $10k vs. jury award of $145mm.
Please review Note 1 on page 409 of the Supplement. How many lawsuits are involved in the State Farm
case? The original wrongful death. Who were the parties and what claims were asserted in each case?
Campbell v. State Farm, appeal of judgment in favor of ∆ motion for summary judgment
Trial bifurcated – one trial found State Farm guilty of being unreasonable in forcing matter to trial; The
second phase addressed State Farm's liability for fraud and intentional infliction of emotional distress, as
well as compensatory and punitive damages.
Slusher v. Ospital – Campbell objected to “Mary Carter” Settlement between
U.S. Supreme Court Review
Please review Note 2 on page 409 of the Supplement. What should happen on remand to the Utah
courts? Do you think that the Supreme Court would uphold a $9,000,000 punitive damage award? Why
or why not?
Utah can probably cut the award and still send a very strong message. If they want to assert states’
rights, they already have a Yes b/c they don’t want a bright line test. It was a 6-3 opinion but you have to
wonder where Rhenquist was? I don’t the the Supreme Court would have the nerve to strike down a
$15mm or $25mm award. I’ll be watching this one!
V. William Inglis & Sons Baking Co. V. ITT Continental Baking Co.
Preliminary Injunction (The Predatory Pricing Case) p. 364
Minimum threshold of proof for a preliminary injunction is probable success and possibility of
irreparable harm OR balance of hardships sharply tilted toward movant. Always look at the
reasonableness of the available remedies – if the movant will suffer irreparable harm without the
injunction, post-trial remedies probably will not be sufficient. On an exam don’t forget to address
impact of injunction on the ∆ .
Summary
Little baker sues big bakers for predatory pricing and price fixing with private-labe baked goods; seeks
preliminary injunction before trial. Judge says no and issues rule for preliminary injunctions.
Page 233 of 240

Preliminary Injunction Rules
The 9th Circuit Burden Of Proof For PRELIMINARY INJUNCTION Emphasized In This Case:
(1) Π will suffer irreparable injury if injunctive relief is not granted;
(2) Π will probably prevail on the merits
(3) ∆ will not be harmed more that π is helped by the injunction
(4) Granting the injunction is in the public interest
The 2nd Circuit Burden Of Proof For PRELIMINARY INJUNCTION Emphasized In This Case:
(1) A combination of probable success and the possibility of irreparable injury; - OR -
(2) Serious questions are raised and the balance of hardships tips sharply in his favor
What was the alleged basis for the plaintiff’s lawsuit?
Anti trust – predatory pricing.
What is a preliminary injunction? Why would a party want to seek such an order?
A temporary injunction issued before or during trial to prevent an irreparable injury from occurring before
the court has a chance to decide the case. * A preliminary injunction will be issued only after the
defendant receives notice and an opportunity to be heard. -- Also termed interlocutory injunction;
temporary injunction; provisional injunction.
Why did Inglis want an preliminary injunction?
To prevent his economic losses and give his company some breathing room while the anti-trust issues
are litigated.
What was the decision of the District Court? What rule did the court apply?
The District Court overruled the motion for preliminary injunction under the following test:
1. Π will suffer irreparable injury if injunctive relief is not granted;
2. Π will probably prevail on the merits
3. ∆ will not be harmed more that π is helped by the injunction
4. Granting the injunction is in the public interest.
The District Court “had serious reservations as to the probability of success on the merits.”
Page 234 of 240

Why did the Ninth Circuit reverse the decision of the District Court? What is the difference between the
tests applied by each court?
They said that the District Court should have also used the 2nd Circuit test:
Parting moving for preliminary injunction must demonstrate either:
1. a combination of probable success and the possibility of irreparable injury; OR
2. serious questions are raised and the balance of hardships tips sharply in his favor
This is a much easier test because it does not require proof that the ∆ will not be harmed more that the π
is helped; proof for irreparable harm is less stringent.
1. What do you think are the incentives that a contractual damages clause provides to contracting
parties in a dispute, i.e., what effect, if any, would such a clause have on the decision whether to
litigate a dispute? What effect may such a clause have when the amount in dispute is relatively
small?
CDC would fix the litigation cost component of the lawsuit. Asymmetrical = if ∆ pays cost of π’s lawyer
for bad check litigation. Symmetrical = loser pays. Such contract makes possible the pursuit of legally
viably but economically unattractive suits.
Garnishment – a lien on wages or earnings.
Attachment – direction to sherrif to seize certain pieces of property. Due Process issues must be
addressed.
VI. Financing Litigation – How to Pay for a Lawsuit
a) Cost of Litigation as a Prelminary Consideration
The cost of bringing or defending a suit should be addressed up front. The client must know that the
litigation is likely to be quite expensive. Who is making the decisions? Insurance company? Is there an
indemnity agreement?
b) American Rule
'American Rule'--Attorney Fees Generally Not Recoverable: Attorney fees ordinarily are not taxable
as costs against the losing party; nor are they directly recoverable as an element of damages (this is the
so-called 'American Rule'). [See Hensley v. Eckerhart (1983) 461 US 424, 429, 103 S.Ct. 1933, 1937;
and Fogerty v. Fantasy, Inc. (1994) 510 US 517, 533, 114 S.Ct. 1023, 1033]
(a) Exceptions to American Rule
Page 235 of 240

(1) Federal courts may, however, award attorney fees under the following narrowly-
circumscribed exceptions:
(2) When a valid contract provides for the recovery of attorney fees (¶ 19:252 ff.);
(3) When the court awards fees pursuant to its inherent equitable power in the interests of justice
(¶ 19:260 ff.); or
(4) When the fee award is made pursuant to a statute or rule providing for the shifting of fees to
the losing party (¶ 19:300 ff.). [See United States v. Standard Oil Co. of Calif. (9th Cir. 1979)
603 F2d 100, 103; Jackson v. Chater (7th Cir. 1996) 94 F3d 274, 277]
(5) Public Interest
(6) Civil Rights
c) English Rule
Winner gets damages and attorney fees and costs.
d) Contingent Fee
contingent fee. A fee charged for a lawyer's services only if the lawsuit is successful or is favorably settled
out of court. * Contingent fees are usu. calculated as a percentage of the client's net recovery (such as
25% of the recovery if the case is settled, and 33% if the case is won at trial). -- Also termed contingency
fee; contingency.
reverse contingent fee. A fee in which a defense lawyer's compensation depends in whole or in part on
how much money the lawyer saves the client, given the client's potential liability -- so that the lower the
settlement or judgment, the higher the lawyer's fee. * For example, if a client might be liable for up to $2
million, and agrees to pay the lawyer 40% of the difference between $1 million and the amount of the
settlement or judgment, then a settlement of $800,000 would result in a fee of $80,000 (40% of the
$200,000 under the threshold amount of $1 million). -- Also termed negative contingent fee; defense
contingent fee; reverse bonus.
e) Common Fund
common-fund doctrine. The principle that if a plaintiff or his or her attorney creates, discovers, increases,
or preserves a fund to which others also have a claim, then the plaintiff is entitled to recover from the fund
the litigation costs and attorney's fees. -- Also termed equitable-fund doctrine. Example: bondholder
successfully sues issuer of bonds demanding payment on bonds; many other bondholders also benefit
from this litigation. In that case the cout held that the original π could recover part of his attorney’s fee
from the fund that his efforts had created – the sum from which the other bondholders would be paid.
Page 236 of 240

Trustees v. Greenough, 105 U.S. 527 (1881). Key point here is that they SHARE the cost of
litigation amongst the parties.
f) Fee Shifting Statute
'Substantial benefit'/'common fund' doctrine: Under the exercise of its equitable power, a federal court
may award attorney fees to successful litigants who confer a common benefit upon a class of individuals
not participating in the litigation (so-called 'common fund' or 'substantial benefit' doctrine). [Boeing Co. v.
Van Gemert (1980) 444 US 472, 478-479, 100 S.Ct. 745, 749; Polonski v. Trump Taj Mahal Assocs. (3rd
Cir. 1998) 137 F3d 139, 145; Staton v. Boeing Co. (9th Cir. 2003) 327 F3d 938, 967--lawyer or litigant
who recovers common fund for benefit of persons other than self or client is entitled to reasonable fees
from fund]
(1) [19:272] Application: An attorney fee award under this exception is proper only when:
the classes of persons benefited by the lawsuit are small in number and easily identifiable;
the benefits can be traced with reasonable accuracy; and
the costs of litigation can be shifted with some exactitude to those benefiting. [Boeing Co. v. Van Gemert,
supra, 444 US at 478-479, 100 S.Ct. at 749; Polonski v. Trump Taj Mahal Assocs., supra, 137 F3d at
145]
[19:273-274] Reserved.
g) Contractual Damages Clause
Parties to K’s may provide that if litigation over the contract arises, the loser will pay the winner’s legal
fees. Such agreements may in theory be asymmetrical (if ∆ pays cost of π’s lawyer for bad check
litigation) or symmetrical (loser pays). Such contract makes possible the pursuit of legally viably but
economically unattractive suits.
h) By Common Law
Courts possess common law power to shift costs to a party who has acted in bad faith, such as a party
who maliciously prosecuted a groundless case. A common example is environmental groups suing to
preserve the environment; the Supreme Court has said that it is OK to shift the costs of such public
interest suits to the ∆ if the legislature passes a statute authorizing it.
i) By Statute
Numerous exceptions written into statutes make the “American Rule” almost meaningless.
Page 237 of 240

j) Human Cost of Litigation
Be sure client understands the implications of engaging in civil litigation. Your life will be affected.
Litigation, at bottom, is about people. It’s not just paper. Every act a lawyer takes affects peoples’ lives.
VII Fee Shifting and Settlement
(a) Rule 68
Consequences for a π who refuses what turns out to have been a good offer. If a π rejects a settlement
offer from ∆ , and later recovers less than the offered amount: (1) π cannot collect his own costs incurred
after the offer, and (2) π must pay ∆ ’s costs incurred after the offer. Costs do not ordinarily include
attorneys’ fees unless π’s attorneys’ fees are supported by a fee shifting statute. ∆ can make offer of
settlement; if rejected, it starts the clock for recovery of costs. If π doesn’t do better than the settlement
offer, he cannot collect fees beyond the date of the offer and may be liable for ∆ lawyers’ fees.
(b) Separating Lawyer and Client
Settlement offers contingent on waiver of right to recover attorneys’ fees can be used to drive a wedge
between lawyer and client.
VIII Evans v. Jeff D Separating Lawyer & Client (The Honest Lawyer
Case)
∆ ’s can use fee waiver agreements to drive a wedge between π and π’s lawyers. ∆ offers to
settle for more $ if π waives his right to reimbursement of attorneys fees. This is legal, even when
recovery of attorneys’ fees is statutorily mandated.
(a) Summary
p. 358A class action was filed against Idaho on behalf of handicapped children. The class was
represented by Idaho Legal Aid. The state offered a settlement which included a waiver by the class of
any claim to attorney’s fees. The attorney for the class felt that he should accept because the settlement
would give them a better deal than they could have gotten at trial. However, Idaho Legal Aid didn’t want
the attorney to accept the offer, because it meant that the organization wouldn’t get any money. The
class argued that the offer including the fee waiver was coercive and shouldn’t be upheld by the court.
The district court, however, approved the settlement and denied attorney’s fees and costs.
The Court of Appeals reversed the district court’s ruling, saying that “a stipulated waiver of all attorney's
fees obtained solely as a condition for obtaining relief for the class should not be accepted by the court.”
The state of Idaho appealed to the Supreme Court. Issue: Do federal district courts have the power to
approve the waiver of attorney’s fees? Rule: Rule 23(e) requires court approval of settlements of class
Page 238 of 240

actions. Holding: The Fees Act doesn’t prohibit all settlements conditioned on the waiver of fees.
Analysis: The Court finds that the district court did not go over the line in approving the fee waiver in the
context of a settlement favorable to the plaintiffs.
Page 239 of 240

CIVIL PROCEDURE OUTLINE INDEX
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CIVIL PROCEDURE OUTLINE

Text: Civil Procedure 5th Edition by Yeazell

I. Definitions and Fundamentals......................................................................................................19

II. Subject Matter Jurisdiction (Where Can Suit Be Brought?)......................................................20

Peters Hypo, p. 3 (SMJ, PJ, Venue).................................................................................................20

28 U.S.C. §1391(a) Venue...............................................................................................................21

Gordon v. Steele, (W.D. Pa. 1974) p. 7 (SMJ).................................................................................22

Wednesday, April 21, 2004.................................................................................................................22

28 U.S.C. §1332: Diversity of parties...............................................................................................24

41414678.doc CivPro – Prof. Aronovsky, Jan-Jun 2004 Page 1 of 240

1. Requirements; Constitutional/Statutory Basis..............................................................................27

2. Time to determine diversity..........................................................................................................27

4. Corporations §1332 (c)(1)............................................................................................................27

6. Issue of Domicile – ......................................................................................................................27

7. Presence of foreigner §1332 (a)(2,3,4, add.)................................................................................28

8. Amount in Controversy ................................................................................................................29

D. Supplemental Jurisdiction (§1367)...............................................................................................30

1. Traditionally, pendent and ancillary jx from common law.............................................................30

2. Merged doctrine required three part analysis: .............................................................................30

3. Statute 28 USC §1367.................................................................................................................30

6. “Common Nucleus of Operative Facts” Test (Gibbs)....................................................................31

7. Once there is a common nucleus – factors in discretion (§1367c)...............................................32

8. Fed question claims.....................................................................................................................32

9. Does not affect the need for personal jurisdiction.........................................................................32

VI. Removal §1441 (vertical from state to fed)......................................................................................32

B. Can only go from State to Fed......................................................................................................33

C. Only where it could have originally been brought......................................................................33

D. Procedure For Removal.................................................................................................................33

41414678.doc More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net Page 2 of 240

F. Complete Diversity May Not Be Required at time of Removal...................................................34

1. Steel Co. v. Citizens for a Better Environment supp.....................................................................34

2. Ruhrgas AG v. Marathon Oil Co. supp.........................................................................................34

VII. Choice Of Law – Erie and its Progeny............................................................................................34

A. The Rules of Decision Act 28 USC §1652....................................................................................35

B. Rules Enabling Act 28 USC §2072................................................................................................35

C. The Old Approach (Swift v. Tyson)...............................................................................................35

D. Erie v. Tompkins (p. 265) ..............................................................................................................36

3. There is no federal common law; State Law governs...................................................................36

6. The Three Prongs of Erie:............................................................................................................37

7. What does Erie actually do?.........................................................................................................37

8. Preventing Forum Shopping.........................................................................................................38

9. State does substance, Fed does procedure.................................................................................38

10. Only applicable where there is no federal statute.......................................................................38

1. The Outcome Determinative Test (York)......................................................................................38

2. Byrd Balancing Test (Retreat from Outcome Determinative Test)................................................40

3. Hanna Test – Twin Aims – Removed FRCP from Erie.................................................................41

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F. The Two Tracks of Analysis..........................................................................................................43

G. Statutes – Fed Wins, Choice of Law – State Wins......................................................................44

1. Where there is a direct conflict, federal rule wins (Burlington)......................................................44

3. Gasperini v. Center for Humanities p. 297...................................................................................46

III. Personal Jurisdiction...................................................................................................................47

Pennoyer v. Neff (1877); (Who Bought the Farm?)..........................................................................48

Tuesday, April 13, 2004......................................................................................................................53

Monday, April 19, 2004.......................................................................................................................59

IV. Venue (Which Courthouse?)........................................................................................................59

I. Definitions and Fundamentals......................................................................................................60

b) Code Pleading (i.e. CA, FL)..........................................................................................................60

Who was suing whom, and why?......................................................................................................63

What form of complaint did the plaintiffs use?................................................................................63

II. WORKSHEET: DEVELOPMENT OF PLEADING SYSTEMS........................................................65

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