Civil Procedure Outline

I. The Complaint
A. Rule 8(a) Three required elements: 1. Short & Plain Statement of Jurisdiction 2. Short & Plain Statement of Claim a. Factually Sufficient i. Notice pleading the goal of the complaint is to put the other side on notice of the case. A claimant is not required to set out in detail the facts upon which he bases his claim. (Conley v. Gibson) ii. Heightened pleading requirements applies to cases specified in Rule 9 (a) Rule 9(a): Capacity to be sued (b) Rule 9(b): Allegations of fraud or mistake (c) Rule 9(c): Denial of performance of occurrence (d) Rule 9(g): Special damages iii. However, where discovery would be very expensive (such as in an anti-trust case), claimant may be required to show, with some specificity, the facts upon which his allegations rest. (Bell Atlantic Corp. v. Trombly) iv. Claimants should avoid pleading more than they are required to. They may end up exposing a flaw in their claim (making it unactionable) and plead themselves out of court. (American Nurses Assn. v. Illinois) v. Inconsistent facts may be pleaded where there is a genuine doubt as to what the facts are and what the evidence will show. b. Legally Sufficient (Rule 12(b)(6) motion to dismiss for legal insufficiency) i. Burden of pleading an allegation is required for each element of the claim ii. Each count in the complaint is judged independently and a claimant may plead conflicting legal theories. (McCormick v. Kopmann) iii. Burden of proof the party who pleads something has the burden of proving it 3. Demand for Relief

(Leatherman v. Tarrant County)

(Gomez v. Toledo)

II. Dismissals
A. Voluntary Dismissals Rule 41(a) 1. Rule 41(a)(1) Plaintiff can withdraw their claim before defendant has filed their answer (or a motion for summary judgment) [Notice of Dismissal]. Plaintiff may withdraw after defendant has answered with the approval of all parties who have appeared in the suit. [Stipulation of the Parties] a. Notice is allowed once without prejudice. i. If claim was previously dismissed, the second time is with prejudice. b. Stipulation is allowed once w/o prejudice (unless otherwise specified). 2. Rule 41(a)(2) Other than above, court permission is required. a. Without prejudice unless otherwise specified. b. If defendant has pleaded a counterclaim, the plaintiffs action may only be dismissed over defendants objection if the counterclaim can remain pending for independent adjudication. B. Involuntary Dismissals Rule 41(b) 1. Done with prejudice (unless dismissal order states otherwise) either at defendants request, or at courts judgment. (Link v. Wabash R. Co.)

III. Defendants Motions

A. Defenses 1. Defenses that must be filed before the answer is filed. Grouped under Rule 12(g). Once a motion or answer is filed, they are waived if not included, under Rule 12(h). a. b. c. d. Rule 12(b)(2): Lack of jurisdiction over the person Rule 12(b)(3): Improper venue Rule 12(b)(4): Insufficient process Rule 12(b)(5): Insufficient service of process

2. Defenses that can be filed in a motion, in the answer, or at trial (cannot be introduced on appeal) a. Rule 12(b)(6): Failure to state a claim on which relief can be granted b. Rule 12(b)(7): Failure to join a party under Rule 19 c. Rule 12(b)(1): Lack of subject matter jurisdiction B. Other Motions 1. Judgment on the Pleadings (Rule 12(c)) a. After pleadings are closed, but before trial 2. Hearings Before Trial (Rule 12(i)) a. Rule 12(b) defenses (whether stated in pleadings or a motion) and Rule 12(c) motions [motion for judgment on the pleadings] have hearings on the merits prior to trial. 3. Motion for More Definite Statement (Rule 12(e)) a. Filed prior to answering. Must be responded to within 10 days. 4. Motion to Strike (Rule 12(f)) a. Filed within 20 days of service of pleading, or at the courts discretion.

Motion Rule 12(b)(1) Lack of Subject Matter Jurisdiction. Rule 12(b)(2): Lack of Personal Jurisdiction; Rule 12(b)(3): Improper Venue; Rule 12(b)(4): Insufficient Process; Rule 12(b)(5): Service of Process Rule 12(b)(6): Failure to State a Claim; Rule 12(b)(7): Failure to Join a Party Rule 12(e): More Definite Statement Rule 12(f): Motion to Strike

PreAnswer Yes

Answer Yes

If Omitted from Motion?

If Omitted from Answer?

Raise at Trial?

Yes, because of Rule 12(h)(3)

Yes

Yes

No, because of Rule 12(h)(1)

No, unless amended under Rule 15(a)

No, as per Rule 12(h)(1); unless Rule 15(a) (amendments) apply

Yes

Yes

Yes, because of Rule 12(h)(2) No. (unless plaintiff files an amended pleading and this is in the answer to the amendment). No. (see Rule 12(c) answer).

Yes, under Rule 12(h)(2) N/A Already answered. Why would you now need a more definite statement? Yes

Yes, as per Rule 12(h)(2)

Yes

No

N/A

Yes

No

N/A

IV. Defendants Answers

A. Time Allowances when to answer a complaint/motion: 1. Answering complaints a. Within 20 days (Rule 12(a)(1)(A)); also applied to cross-claims (Rule 12(a)(1)(B)) b. Within 60 days (Rule 12(a)(1)(A)(ii)) or if the defendant is the US Govt (Rule 12(a)(2)) 2. Answering motions (Rule 12(a)(4)) clock stopped when court is deciding on motion. a. If motion to dismiss is denied or postponed until trial, the responsive pleading (answer) is due within 10 days of the courts decision (Rule 12(a)(4)(A)) b. If motion for more definite statement is granted, responsive pleading (answer) is due within 10 days after the more definite statement is served (Rule 12(a)(4)(B)) B. Admissions/Denials If you dont deny it, it is assumed to be true. (Rule 8(b)(6))

(Zielinski v. Philadelphia Piers)

1. Admissions if its true, you must admit it. 2. Denials a. General Denial: deny everything in the complaint (rare) b. Specific Denials: deny a specific allegation in the complaint c. Qualified General Denials: admit to some things, deny everything else 3. Lack Sufficient Information regarded as a denial (Rule 8(b)(5)) C. Affirmative Defenses (Rule 8(c)) 1. Any defense that injects new matter into the dispute. 2. Must be included in the defendants answer or they are waived. (Ingraham v.

U.S.)

a. Defenses that can be raised by motion before an answer is submitted or included in the answer: i. Lack of subject matter jurisdiction (may be raised at any time including after the answer and during the trial) (Rule 12(b)(1)) ii. Lack of personal jurisdiction (Rule 12(b)(2)) iii. Improper venue (Rule 12(b)(3)) iv. Insufficient process (Rule 12(b)(4)) v. Insufficient service (Rule 12(b)(5)) vi. Failure to state a claim on which relief can be granted (Rule 12(b)(6) vii. Failure to join a party under Rule 19 (Rule 12(b)(7))

V. Amended Pleadings
A. Rule 15(a) allows parties to amend their pleadings once: 1. Without the courts/other partys permission a. Before a responsive pleading is served b. Within 20 days, if the pleading is one where no responsive pleading is permitted and the action is not yet on the trial calendar 2. Otherwise a. With the permission of the court (liberally granted, unless the court finds a reason not to grant it); or b. With written consent of the other party 3. Responses to amended pleadings must be made within 10 days or within the original response time (whichever is longer) B. Rule 15(b) allows amendments to conform to the evidence (during the trial). Amendments are made unless the opposing party can show that admission of the evidence will prejudice them. C. Rule 15(c) Amendments are related back to the original date of the pleading (for statute of limitations purposes) 1. Original notice must still fall within the statute of limitation period (Rule 15(c)(1)(A)) 2. Rule 15(c)(1)(B) - The claim or defense in the amended pleading should arise out of the conduct, transaction, or occurrence set out in the original pleading. Amended claims cannot be based on conduct substantially different in kind and time from that set out in the original complaint (reasonably prudent person should expect that the amended claims may arise from the original claim (Barcume v. City of Flint)) 3. Rule 15(c)(1)(C) Changing parties in a suit through an amendment It is rare that you are really correcting the name rather than changing parties. The correct party should have had notice of the original suit in order to use a Rule 15(c)(1)(C) amendment. (but see Chalick v. Cooper Hospital permitted as sanction for Rule 12(a) violation) 4. Supplemental pleadings cover events occurring after a pleading is filed. (Rule 15(d)) The court must give permission to allow it in. a. Facts that took place before the pleading was filed, but are discovered after the pleadings, are filed as amendments not supplemental pleadings.

VI. Veracity in Pleadings

A. Rule 11 Covers the signing of pleadings, motions, and other papers; representations to the court; and sanctions. 1. Every written motion, pleading, and other paper presented to the court is signed by at least one attorney of record (or the party himself if he is unrepresented). Rule 11(a) a. Unsigned papers are stricken unless corrected. 2. Certification by the signing party that to the best of their knowledge (formed after a reasonable inquiry), that a. Not presenting for an improper purpose Rule 11(b)(1) b. Claims are warranted by existing law, or by non-frivolous argument to change existing law Rule 11(b)(2) c. Allegations have evidentiary support Rule 11(b)(3) d. Denials of factual contentions are based on evidence or lack of information Rule 11(b)(4) i. Reasonable Inquiry Under the Circumstances courts may impose sanctions for lack of reasonable inquiry and for pressing causes that are not supportable. (Business Guides, Inc. v. Chromatic Comm. Enters.; Kraemer v. Grant County) 3. Sanctions a. Rule 11(c)(2) Motion by a Party i. A motion for sanctions must be made separately from any other motion and describe the specific conduct that allegedly violates Rule 11(b). ii. 21-day Safe Harbor motion need not be filed with the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service of this motion. (or within another time the court sets) iii. The court may award to the prevailing party the reasonable fees, including attorneys fees, incurred for the motion. b. Rule 11(c)(1) i. After notice and a reasonable opportunity to respond are given, the court may impose appropriate sanctions on any attorney, law firm, or party in the case that violated the rule or is responsible for its violation. ii. Law firms must be held jointly responsible for a violation committed by its partner, associate, or employee. (absent exceptional circumstances) c. Rule 11(c)(3) On the Courts Initiative i. On its own initiative, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated 11(b). d. Sanctions are limited to what is sufficient to deter repetition of the behavior. i. Courts may impose nonmonetary directives; an order to pay a monetary penalty to the court; or an order to pay the prevailing partys expenses and attorneys fees that were caused by the violation (if imposed on a partys motion) Rule 11(c)(4)

ii. Monetary sanctions cannot be imposed on represented parties for Rule 11(b)(2) violations [not warranted under existing law]. Rule 11 (c)(5)(A) iii. Court cannot initiate monetary sanctions after voluntary dismissal or settlement of the claims. They must have issued a show-cause order under 11(c)(3) before voluntary dismissal or settlement. Rule 11(c)(5)(B) e. An order imposing sanctions must specifically describe the sanctioned conduct and explain the basis for the sanction. Rule 11(c)(6) f. Rule 11 is inapplicable to discovery. 4. Cases: a. Business Guides, Inc. v. Chromatic Comm. Enters. i. Business directory plants seeds to spot infringement. ii. Reasonable inquiry under the circumstances. iii. P filed baseless claim; attorney did not conduct any inquiry. b. Kraemer v. Grant County i. Sanctions (oppositions legal fees) imposed on attorney. ii. Attorney hired PI to investigate claims; was stonewalled by hostile defendants. iii. Discovery did not produce sufficient evidence for a victory. iv. Sanctions reversed because attorney conducted a reasonable investigation into the allegations of his clients case. c. Saltany v. Reagan i. Case brought for an improper purpose (political protest) ii. Lower court did not award sanctions because they wished to keep the doors open for similar plaintiffs. (What?!?) iii. Error prior to the 1993 version of Rule 11, the court must impose a sanction for a violation. d. Saltany v. Bush i. Upheld previous case. ii. Dissent Rule 11 violations are not based on the attorneys hope that a case will win. A case may be hopeless but still not be a violation of Rule 11 when plaintiff makes a good faith argument aimed at changing existing law. e. Frantz v. U.S. Powerlifting Federation i. The amount of work it took for D to prepare its motion to dismiss has no bearing on whether P violated Rule 11 with a frivolous suit. ii. Court found violation, awarded D fees, and then vacated after D claimed more hours than the court had originally expected. iii. Case was remanded for an award of reasonable attorneys fees (to be determined on remand) and expenses. f. Committee v. Dennis Reimer Co.

i. D moved for summary judgment based on lack of personal jurisdiction after not including it in a prior motion under Rule 12. ii. A reasonable inquiry into the Fed. R. Civ. P. and case law would have revealed that D had waived this defense, therefore, its later motion violated Rule 11. iii. Court did not award attorneys fees to a pro se plaintiff. Limited sanctions to an award of any expenses incurred by P. (a) However, it was said that an award of attorneys fees to pro se plaintiffs would not frustrate the purpose of Rule 11. g. Chambers v. NASCO, Inc. i. Inherent power to sanction de-emphasizing monetary sanctions. ii. Rule 11 does not displace a courts inherent power to sanction.

VII. Discovery
A. Rule 26(f) Pretrial Conferences 1. Parties are required to confer to develop a proposed discovery plan. a. This outline must be submitted to the court with 14 days of the 26(f) conference. b. Court may require conference to be in person. B. Five Devices for Discovery: 1. Mandatory Initial Disclosures (Rule 26(a)(1)) must be made within 14 days of the 26(f) conference. [unless party joined after 26(f); then 30 days from notice] a. Names, addresses, and phone #s of persons likely to have discoverable information that the disclosing party may use to support its claim or defense, along with the subject of that information. (Rule 26(a)(1)(A)(i)) b. Copy of or description by category of all documents, electronically stored information, and tangible things the disclosing party has in its control/possession and may use to support its claim. (Rule 26(a)(1)(A)(ii)) c. Computation of any damages claimed. (Rule 26(a)(1)(A)(iii)) d. Information on insurance carried by the party to settle claims. (Rule 26(a)(1)(A)(iv)) e. Certain types of proceedings are exempt from initial disclosure requirements. (see Rule 26(a)(1)(B)) 2. Depositions (Rule 30) anyone with discoverable information may be deposed, oaths are administered (see Rule 28) and there is no judge present. a. Party may depose any witness without court permission b. Party needs court permission when: i. The deposition would result in more than 10 depositions for the deposing party ii. The deponent has already been deposed iii. The deponent is in prison iv. Before the time specified in Rule 26(d) after the 26(f) conference and according to its agreed upon terms. c. If deponent is a non-party witness, the deposing party must get a subpoena (Rule 45) and cannot make them travel over 100 miles. d. Must send written notice to deponent and all other parties which includes the date and location of the deposition, and if possible, the deponents name and address. i. If identity is unknown, the requesting party may give a general description sufficient for the opposing party to identity the deponent and produce them. e. Can name an organization as the deponent and describe the matter(s) on which information is sought. The organization must then identify the appropriate person to be deposed. f. Notice may include a request for documents to be brought by the deponent under Rule 34. g. Notice must include the method of recording. (electronic, stenographic, etc.) h. May take place remotely by request of court order. (i.e., via telephone)

i.

j.

Objections to any aspect of the deposition must be noted on the record, but the examination continues and the testimony is subject to the objection. (Rule 30(c)(2)) i. However, Rule 30(d)(3)(A) permits an objecting party to file a motion to terminate or limit the deposition on the ground that it is being conducted in bad faith or in a manner that unreasonably embarrasses, annoys, or oppresses the deponent or party. If the objecting party demands, the deposition must be suspended for the time necessary to obtain an order. ii. The court may order that the deposition be terminated or limit its scope and manner. (as provided in Rule 26(c) protective orders) Court may impose a sanction on any party who impedes the fair examination of the deponent. [Note: Discovery not covered under Rule 11 sanctions]

3. Interrogatories (Rule 33) parties may send other party written questions that require a written response under oath. a. b. c. d. Limited to 25 for each party, unless changes by parties or court order. Can only serve on an opposing party. 30 days to respond. Party must do a reasonable search of their records to respond to the interrogatorys questions. e. Objections to questions are stated in writing (and filed with the court) with the reasons for objection and answers to the non-objectionable portions of the interrogatory. (Rule 33(b)(3)-(4)) f. If answer may be obtained by digging through business records, and that this task is equally burdensome for both parties, the responding party may answer by specifying the records to be reviewed and where they can be found (33(d)(1)) and giving the interrogating party reasonable access and opportunity to examine them. (33(d)(2)) 4. Production of Documents & Things (Rule 34) produce for inspection, copying, or testing all relevant documents or other tangible things. a. Any party may serve on any other party. (Rule 34(a)) b. 30 days to respond. c. Should draft the request as broadly as possible. The respondent will generally produce as little as allowed. d. Non-parties may be compelled to produce documents and things as well through a subpoena. (Rule 45) 5. Medical Examinations (Rule 35) a. The court may order a party to submit to a physical or mental examination (cannot order non-parties). This, unlike other discover advices, requires a court order. 6. Requests for Admission (Rule 36) a. Any party may request the other to admit the truth of any matter, for purposes of the pending action only, within the scope of Rule 26(b)(1).

i. Purpose is to identify which issues are not in dispute. b. If a party denies without good cause, they must pay the costs of proving it at trial. i. (i.e., P requests D to admit that he called in sick to work one 3/12. D denies without checking though he believes he might have been. P must subpoena Ds employer and/or interview co-workers. D must pay P the costs incurred by these efforts.) C. Experts (Rules 26(a)(2), (b)(4)) persons with specialized knowledge that is of assistance to the trier of fact. 1. Types of Experts: a. Testifying expert b. Non-testifying expert retained/specially informed c. Non-testifying expert informally consulted 2. Disclosure of Expert Witnesses used at Trial: a. In addition to the disclosure requirements under (Rule 26(a)(1)(A)), parties must disclose the identity of any witness they may use at trial to present evidence. (Rule 26(a)(2)(A)) b. Disclosure must be accompanied by a written report prepared and signed by the expert which contains: i. Complete statement of all opinions he will express and the basis and reasons for them; ii. The data or other information considered in forming these opinions; iii. Any exhibits that will be used; iv. The experts qualifications, including all publications authored in past 10 years; v. List of all other cases in which the expert testified at trial or by deposition in past 4 years; vi. Statement of compensation to be paid for the study and testimony in the case. c. These disclosures must be made by both parties at least 90 days before trial. (Rule 26(a)(2)(C)) i. 30 days after other partys disclosure if being used solely to rebut or contradict evidence on the same subject matter identified by the other partys disclosure. d. Opposing party may depose the expert only after the written report is filed. (Rule 26(b)(4)) 3. Experts not used at Trial: a. Experts retained/specially employed only for trial preparation. i. Reports, facts, and opinions can only be obtained under Rule 35(b) (medical reports) or upon a showing of exceptional circumstances (Rule 26(b)(4)(B)) (a) Coates v. AC&S, Inc. Found exceptional circumstances in the form of expert shopping and required disclosure. (i.e., parties could simply shop around for an expert who told them what they wanted to hear, and at trial it would appear as though expert testimony was evenly weighted.) (b) Cordy v. Sherwin-Williams Co. The court had the inherent power to disqualify an expert where there is: (a) a reasonable belief that a confidential

relationship existed, and (b) confidential information had been disclosed. (i) An expert may not switch sides within a claim under these circumstances. (ii) Court may appoint its own expert, paid for by the parties of course. b. Informally consulted experts opinions/reports not disclosed (even under exceptional circumstances). However, courts differ on whether the names must be disclosed. 4. ROADMAP: (expert witness disclosure) a. Is the expert testifying? i. Use Rule 26(a)(2) (a) Disclose identity (b) Include written report (opinion(s); basis for opinion(s); everything relied on in forming that opinion; compensation received for study and testimony) (c) Opposing counsel may depose after written report is given. b. Witness is not testifying? i. Use Rule 26(b)(4)(B) (a) Names and Addresses (i) Some courts have held that this is subject to mandatory disclosure. (ii) Some have held that this is not mentioned in the rule; therefore, the identity of a non-testifying witness is only discoverable under exceptional circumstances. (b) Facts, Opinions, Reports (i) Generally do not need to be disclosed when the witness is not testifying at trial unless exceptional circumstances are shown. (i.e., shopping) c. Was the expert informally consulted? i. Information is not subject to discovery. D. Scope & Privilege (Rule 26(b)) party may obtain information that is relevant to the subject matter. It does not have to be admissible at trial, provided that the discovery appears reasonably calculated to lead to admissible evidence. 1. Privileged Material discovery of privileged material is not allowed. a. Number of privileged relationships (doctor/patient, lawyer/client, husband/wife, etc.) b. Only the communication itself is privileged. i. If between attorney and client, the communication must be for the purposes of providing legal advice. ii. The factual substance of the communication is not privileged. c. The privilege must be expressly claimed (Rule 26(b)(5)), describing in detail the documents, communications, etc. not produced to allow the other parties to assess the applicability of protection. d. Failure to properly claim the privilege may be taken as a waiver by some courts. 2. Confidential Material discoverable, but may be afforded some degree of protection by issuing a protective order. (Rule 26(c))

3. Protective Orders (Rule 26(c)) allows motions to protect information revealed under discovery. Wide range of options, including: a. b. c. d. e. f. g. Denying disclosure (Rule 26(c)(1)(A)) Specifying terms, including time and place, for the disclosure or discovery ((1)(B)) Prescribing a discovery method other than the one selected (C) Limit disclosure to certain matters (D) Designating the person(s) who may be present during discovery (E) Requiring that a deposition be sealed and opened only on court order (F) Trade secrets/confidential research may not be revealed or may only be revealed in a certain way (G) h. Parties simultaneously file documents or information in sealed envelopes to be opened only as directed by the courts (H) 4. Work Product (Rule 26(b)(3)(A)) documents or other tangible things created in anticipation of litigation (and must have been created for the people in litigation) and assembled by a covered person (attorney, consultant, surety, insurer, agent, etc.) a. Privilege may be overcome by a showing of substantial need for the materials to prepare a case and cannot, without undue hardship, obtain its substantial equivalent by other means. b. Underlying facts that underpin the work product is discoverable. 5. Opinion Work Product (Rule 26(b)(3)(B)) the mental impressions, opinions, conclusion, and legal theories of a partys attorney (or other representative concerning the litigation). a. Most courts hold that this material should never be discoverable. On ordering discovery of work product, the court must protect against disclosure of opinion work product materials. (Hickman v. Taylor) b. Upjohn Co. v. United States opinion work product is not always undiscoverable, but requires a showing greater than substantial need and undue hardship. c. Holmgren v. State Farm i. In the 9th Circuit, opinion work product may be discoverable by the showing of a compelling need (beyond the substantial need/undue hardship showing). (a) Here, the very docs/things themselves were the pivotal issue in the case. E. ROADMAP: (Discovery) 1. Is the information/thing being sought through discovery relevant? 2. Is the information/thing privileged? 3. Is the information/thing privileged b/c it is work product? 4. Has the requesting party shown a substantial need for the materials to prepare their case and that they are unable to obtain them, or their substantial equivalent, without undue hardship? 5. Is the information/thing privileged b/c it is opinion work product? [Hickman] 6. Are you in the 9th Circuit?

7. Has requesting party shown a compelling need for the material sought? (i.e., the information/thing is the pivotal issue in the case?) [Holmgren] F. Sanctions for Discovery Abuses (Rule 26(g) & Rule 37) 1. Signing of Disclosures (26(g)) - requires parties to sign discovery requests, disclosures, responses, and objections. (Rule 11(a) for discovery) 2. Two basic methods: a. Motion to Compel used to compel disclosure of information. b. Motion for Sanctions used after a motion to compel is issued and not complied with. 3. Motions compelling disclosure or discovery (Rule 37(a)) a. Must work with other party in good faith to secure disclosure before seeking motion to compel. (37(a)(1)) i. Covers Rule 26(a) mandatory disclosures (Rule 37(a)(3)(A)) ii. Covers depositions and interrogatories (37(a)(3)(B), (C)) b. Evasive or incomplete answers are treated as failure to disclose, answer, or respond. (Rule 37(a)(4)) c. Losing party pays reasonable expenses in filing the motion unless withholding is justified or the circumstances would make the award unjust. (Rule 37(a)(5)(A)) i. If granted, party withholding information pays ii. If denied, party filing pays and a protective order may be issued iii. Part granted/part denied, court may apportion costs between the parties and may issue a protective order d. Which court? - Motion for an order to a party must be made in the court where the action in pending. (37(a)(2)) A motion for an order to a nonparty must be made in the court where the discovery is or will be taken. (37(a)(2)) 4. Failure to comply with the order (Rule 37(b)) a. May be regarded as contempt by the court where the deposition is taken. (37(b)(1)) b. Court where the action is pending may: i. Order that the disputed facts are established in favor of the party seeking disclosure. (37(b)(2)(A)(i)) ii. Prohibiting the non-disclosing party from supporting or opposing designated claims or defenses, or from introducing certain matters into evidence. ((ii)) iii. Striking pleading in whole or in part (iii) iv. Staying further proceedings until the order is obeyed (iv) v. Dismissing the action or proceeding in whole or in part (v) vi. Rendering a default judgment against the disobedient party (vi) vii. Treating as contempt of court the failure to obey any order (except an order to submit to a physical or mental examination) (vii) viii. Court may issue any of orders (i-vi) if a party fails to produce another person

for examination under Rule 35(a), unless the disobedient party shows it cannot produce the person. (Rule 37(b)(2)(B)) ix. Court must order disobedient party, attorney, or both to pay the reasonable expenses (including attorneys fees) caused by the failureunless the failure was substantially justified or other circumstances would make the award unjust. (37(b)(2)(C)) 5. Failure to disclose/false or misleading information/refusal to admit (Rule 37(c)) a. Parties failing to disclose information may not use as evidence at trial, any witness or information that was not disclosed. In addition, the court may require payment of reasonable expenses, issue any of the sanctions listed above and may inform the jury of the failure to make the disclosure. (Rule 37(c)(1)(B)) b. If a party fails to admit to the genuineness of a document, or the truth of any matter as requested under Rule 36, and the opposing party proves the genuineness of truth of the matter the court may require the other party to pay reasonable expenses incurred in making the proof unless: i. The request was held objectionable under Rule 36(a) ii. The admission sought was of no significant importance iii. The party failing to admit had a reasonable ground to believe that it might prevail on the matter iv. There was other good reason for the failure to admit. c. Failure to attend at deposition, serve answers to interrogatories, or respond to a request for inspection the court may issue any sanctions under Rule 37(b)(2)(A)(i)-(vi) and must require the party failing to act to pay the reasonable expenses of opposing party. (unless justified/award unjust) d. Failure to provide electronically stored information should not be sanctioned, absent exceptional circumstances, when such information was lost as a result of routine, good-faith operation of an electronic filing system.

VIII.

Right to a Jury

A. Constitutional History 1. 6th Amendment covers criminal trials (applicable to states) 2. 7th Amendment covers civil trials (Federal only) a. Right is based on a particular claim, not the entire case law claims are tried before a jury, equity claims are not. i. Law claims are tried first (before a jury) and the findings are binding on the adjudication of other claims. (Beacon Theaters v. Westover) B. Requesting a Jury 1. Written demand for a jury must be made no later than 10 days after the service of the last pleading. (Rule 38(b)) 2. The court may also order trial by jury. (Rule 39) C. Jury Size 1. Historically at common law, juries were 12 people and required to be unanimous. a. Juries smaller than 12 do not violate the Constitutional right to a jury. (Williams v. b. Juries of 6 people may be used in civil trials. (Colgrove v. Battin) 2. Rule 48 permits juries of not fewer then 6 and not more than 12 members. a. Generally, civil trials have 6 jurors. b. Unanimous verdict is required (unless parties stipulate otherwise) (Rule 48) D. Jury Selection & Peremptory Challenges 1. Pool of jurors is assembled, the venire pool (number of people selected from the overall pool) are examined under questioning (voir dire) to determine any possible bias among the jurors. (Rule 47(a)) a. Some are dismissed for cause/bias (unlimited and determined by judge) b. Each side is entitled to 3 peremptory challenges (Rule 47(b)) i. May not be on the basis of race. (Baston) ii. May not be on the basis of gender. (J.E.B. v. Alabama)

Florida)

IX. Summary Judgments/Judgments as a Matter of Law (JMOL)

A. Summary Judgments 1. Decision made on the basis of statements and evidence presented for the record without a trial where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Rule 56) 2. Timing motions must be filed at least 10 days before trial. (Rule 56(c)) a. The party opposing the motion may ask the court for a continuance to respond (time to gather affidavits, depositions, or conduct additional discovery) (Rule 56(f)) 3. Partial Summary Judgments are also allowable. (Rule 56(d)) 4. Summary Judgment should be granted when: a. Parties agree on all facts and the dispute is only about the law b. Parties disagree on the facts, but there is no genuine dispute only one side has evidence to support their claim. 5. There is no express requirement under Rule 56(c) that requires the moving party to support their motion with affidavits or other materials to negate the opponents claim. If the opposing party lacks proof in their claim summary judgment may be issued.

(Celotax v. Cartrett)

B. Judgments as a Matter of Law (a.k.a., directed verdicts) (Rule 50(a)) 1. Used if the court, after hearing the evidence at trial, concludes that no reasonable jury could find for one side, they can enter judgment without submitting the case to the jury. (Rule 50(a)(1)) 2. Either party may bring the motion, but the court cannot make it sua sponte. 3. Motion shall specify the judgment sought and facts on which the moving party is entitled to judgment. (Rule 50(a)(2)) 4. Motion may be made at any time before submission to the jury but after other side has presented its case. a. Plaintiff presents first after which defense may move. b. If denied, the defense presents their case after which the plaintiff may move. c. After all evidence is presented both plaintiff and defendant may move for JMOL. i. If 50(a) motion is not made at this time (before the case goes to the jury), the party waives their right to submit a Renewed JMOL (50(b)) motion after the jury verdict. d. If these motions are denied the case is submitted to the jury. C. Renewed Judgment as a Matter of Law (formerly Judgments Non-withstanding the Verdict; or JNOV) (Rule 50(b)) 1. Must be filed after the verdict, within 10 days after entry of judgment. a. ONLY if JMOL (50(a)) motion was made at close of evidence in the trial. b. May include an alternative or joint request for a new trial under Rule 59. c. The court may: i. Allow the judgment to stand (Rule 50(b)(1)) ii. Order a new trial (50(b)(2)), or

iii. Direct the entry of JMOL (50(b)(3)) D. Standards for JMOL and JNOV 1. Same as summary judgments if reasonable minds could differ to the import of evidence, the judgment should not be issued. (Anderson v. Liberty Lobby Inc.) 2. Only where there is a complete lack of facts to support the conclusion of the jury is there a reversible error. (Lavender v. Kurn) 3. Where there is no way to show a preference either way on which a jury can make a decision, the plaintiffs case should be dismissed. (Reid v. San Pedro, LA) a. This is because the plaintiff would have the burden of proof for their claim. E. Burden of Pleading, Production, and Persuasion 1. Burden of pleading legal and factual sufficiency required for pleading. 2. Burden of production obligation to come forward with evidence in support of your claim. 3. Burden of proof (also called persuasion) the degree of certainty a fact finder must have before it can find for one side. a. Preponderance of the evidence (standard for civil trials) more likely than not (51%). b. Clear & convincing highly probable from a preponderance of the evidence (used in some cases like libel). c. Beyond a reasonable doubt (standard for criminal trials)

X. New Trials
A. Rule 59 - Where evidence is sufficient to avoid a JMOL, but the court strongly disagrees with the jurys verdict as against the weight of the evidence they can issue a new trial. 1. The new trial takes place in the same court as the original one. 2. A party who did not file a Rule 50 JMOL motion may still file a Rule 59 motion for a new trial. 3. Grounds - (Rule 59(a)(1)): a. (After jury trial) For any reason for which a new trial has been granted in an action at law in federal court: i. Verdict against the weight of the evidence ii. Misconduct by counsel or other unfairness at trial iii. Jury instructions were wrong iv. New evidence is discovered v. Size of jury is contrary to the weight of the evidence b. (After a nonjury trial) For any reason for which a rehearing has been granted in a suit in equity in federal court. 4. Must be filed within 10 days of the judgment. (Rule 59(b)) 5. Court may issue new trials sua sponte. (Rule 59(d)) B. Interrelationship between JMOL motions & New Trial motions (Rule 50(c)) 1. To protect the option for a new trial, motions for renewed JMOL and new trials should be filed together. The two motions work together through Rule 50(c) a. When presented together, the court will rule on both motions b. Conditional granting of new trial may be made in the event that the JMOL motion is granted and vacated on appeal. (Rule 50(c)(1)) 2. If JMOL and new trial motions are denied, these may be appealed. On appeal, the appellate court may issue a JMOL or order a new trial. (Rule 50(e)) 3. Appellate courts cannot rule on anything not brought up at the trial level.

XI. Other Techniques for Controlling Juries

A. Trial judges act as the gatekeepers for expert evidence to ensure that an experts testimony lies on a reliable foundation. (Daubert v. Merril Dow Pharmaceuticals) B. Jury instructions often a basis for appeal. (Rule 51) C. Form of the Verdict alternatives to the general verdict 1. Special Verdicts (Rule 49(a)) written finding on each issue of fact without deciding who wins or loses. 2. General verdicts accompanied by answer to written questions. (Rule 49(b)) the jury returns a general verdict supplemented with one or more specific questions. Focuses the jury on a few important questions, but still requires a general verdict. 3. In both cases, a judge may set aside general verdicts and issue a judgment based on the answers to the questions, send the jury back for further deliberation where answers are inconsistent with the general verdict, or order a new trial. D. Judicial Comment court may provide comments on evidence or express opinions on factual issues but all matters of fact are submitted to the jury for their determination. E. Motions to set aside the judgment (Rule 60) 1. Motion for relief based on clerical mistakes that may be corrected by the court. (Rule 60(a)) 2. Grounds - Motion for relief from a final judgment order. (Rule 60(b)) a. Mistake, inadvertence, surprise, or excusable neglect; b. Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); c. Fraud or misconduct by other party; d. The judgment is void or has been satisfied; e. Other reasons justifying relief 3. Action must be brought within 1 year of the entry of judgment.

XII. Governing Law In a Diversity Case

A. Supremacy Clause (Art. IV) Makes federal law the supreme law of the land. If a federal statute is on point, it applies in both federal AND state court. B. Rules of Decision Act (28 USC 1652) The laws of the state are used as the rules of decision. 1. State law applies on substantive matters, but not on procedural ones. 2. Federal courts apply the law of the state in which they sit. 3. This act includes state statutes AND state common law (after Erie Railroad Co. v. Tomkins) C. Rules Enabling Act (28 USC 2072) The laws of the state are used as the rules of decision. 1. The US Supreme Court has the power to prescribe the general rules of practice & procedure and the rules of evidence for federal courts. a. However, these rules cannot abridge, enlarge, or modify any substantive right. D. Cases & History: 1. Erie R.R. Co. v. Tompkins (1938) Federal courts sitting in diversity cases must treat state court decisions as a source of law. (There is no federal common law for diversity cases) 2. Guaranty Trust Co. v. York (1945) Outcome Determining Test a. Cases tried in federal court should have the same substantial outcome of the same case tried in its corresponding state court. 3. Byrd v. Blue Ridge Rural Electrical Cooperative, Inc. (1958) Balanced the state interests, federal interests, and Yorks outcome determining test. a. State interest are considered first. If the state interest is so high that it is clearly substantive law (bound up in the states interests/obligations), then state law should be applied. If it isnt substantive law (a matter of form & mode), THEN b. Consider the outcome determination (from York). i. Would failing to apply the states rule be determinative of the outcome of the case? If so, THEN c. Apply state law UNLESS there is a countervailing federal interest that would preclude the application of state law. 4. Hanna v. Plumer (1965) a. If there is a federal rule on point, it can only be avoided if it is unconstitutional (which they arent) or it does not fall under the Rules Enabling Act (see above). b. To determine whether the federal rule should be applied, consider: i. Is it Constitutional? Procedural issues may be classified as constitutional issues if they fall under the Necessary & Proper clause of the US Constitution. ii. Is it covered under the Rules Enabling Act? If the rule is strictly procedural, it cannot alter a substantive state right; therefore, it falls under the act and it can be

used. c. If there is no federal rule on point i. Apply the Erie tests discourage forum shopping and encourage equal protection under the laws; ii. Apply the outcome determining test from York; and iii. Apply the balancing (of state interests/federal interests/outcome determining) test from Byrd. 5. Gasperini v. Center for Humanities (1986) Federal rules need to be interpreted with sensitivity to state interests. This places state interests higher in the hierarchy when considering whether or not the federal rule is on point. (this favored decisions under the Rules Decision Act [disfavored Rules Enabling Act]). a. Federal and state interests balanced by applying states statutory review standard to federal trial judge (state interest) and limiting the federal appellate courts review of the trial courts ruling to abuse of discretion (federal 7th Amendment interest). E. ROADMAP: Determining which Law to Apply (First ask, Is this a diversity case?) 1. Not a Diversity Case (federal issue) Apply federal rule & statute. 2. Diversity Case Is there a conflict between the federal & state law? a. No conflict Apply both the federal & state rule/statute. b. Conflict Is there a federal rule on point (and sufficiently broad to cover the issue before the court), considering the states interest (as per Gasperini)? i. Rule on point Apply the Rules Enabling Act 2072 (as per Hanna). (a) Is it Constitutional? (i.e., can it be reasonably classified as procedural?) (i) Not procedural Apply state rule/statute. (ii) Procedural Apply the Rules Enabling Act (only for rules, not statutes) Does it apply to procedure and not affect state substantive rights? Not substantive Apply federal rule. Substantive Apply state rule. ii. No Rule on Point Apply the Rules Decision Act 1652 (Erie, York, Byrd). (a) Is there a state substantive interest here? (as per Byrd) (i) Substantive state interest Apply state rule/statute. (ii) No substantive state interest Is the outcome determinative (Hannah; York) considering the two aims of Erie (would this impact which court you go to (forum shopping)? Does this effect the equal administration of laws (equal protection)?) Outcome determinative Is there a countervailing federal interest (Gasperini, Byrd)? Can the state and federal interests be balanced and both met (Gasperini)? No federal interest Apply the state rule/statute. Federal interest Apply the federal rule/statute. Not outcome determinative Apply the federal rule/statute.

F. Substantive or Procedural? Rule Standard of Care Conflict of Laws Statute of Limitations Burden of Proof Burden of Pleading Discovery Physical Exams Venue Transfers and Effect of Forum Selection Clause Agreement to Arbitrate Chks on Huge Jury Awards Caps on Jury Awards Allocation of Functions b/w Trial & Appellate Cts. Allocation of Fact-finding Power b/w Judge & Jury Choice of Law State State State State Federal Federal Federal State State State Federal Federal

Erie (1938) Klaxon (1941) York (1945) Dunlap (1939) Palmer (1943) Sibbach (1941) Stewart Org. (1988) Bernhardt (1956)

Authority

Gasperini (1986)