civ pro Flashcards
At issue is whether the engineer’s report was prepared in anticipation of litigation.
Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. Information within the scope of discovery need not be admissible in evidence to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense. In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
In this case, the engineer’s report is discoverable because it is relevant to the builder’s defense in the action. The customer cannot claim that the report is “work product” because it was not made in anticipation of litigation. The customer hired the engineer to evaluate the foundation as part of ongoing negotiations with the builder. When the engineer completed the report on June 30, the parties were merely trying to discover the reason for the flooding. There is no indication that either party was preparing for litigation at that time. Thus, the structural engineer’s report is discoverable and the court should order the customer to turn it over.
he issue is whether the destruction of the emails is excused when litigation was being contemplated by the builder.
A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information. Here, the emails are discoverable because they relate to the foundation and may be relevant to the litigation. A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation.
Although the builder hoped to avoid litigation, it clearly anticipated that litigation was possible when it hired an attorney on July 10. The builder knew the litigation involved the foundation and that the emails may be relevant to either the customer’s claim or its own defense. Nevertheless, the builder failed to preserve the emails when they were destroyed on August 2. Thus, the builder failed to preserve information that should have been preserved and may be subject to sanctions.
n determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.
If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order sanctions against the wrongful party. The court may: (i) upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice, or (ii) upon finding that the party acted with the intent to deprive another party of the information, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action or enter a default judgment.
In this case, the court is unlikely to impose severe sanctions because there is no prejudice to the customer and there is no evidence that the builder intended to deprive the customer of relevant evidence. The loss of the emails likely will not prejudice the customer’s case because the customer can present other evidence that the foundation of the house was poorly constructed. Further, it is not clear that the emails would be helpful to the customer’s case because their contents are unknown. Additionally, the emails were destroyed pursuant to the builder’s standard document retention plan. There is no evidence that the builder acted deliberately in preventing discovery. Under these circumstances, the court is not likely to impose severe sanctions such as presuming the emails were unfavorable to the builder or entering default judgment. However, the court may impose less severe sanctions such as requiring the builder to reimburse any expenses the customer incurs in collecting evidence to replace the lost emails.
Claim Preclusion
The issue is whether a judgment in a prior action preclude a nonparty from suing the same defendant on a closely related claim when the nonparty and the original plaintiff are in a family relationship.
The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. For claim preclusion to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action. Because application of claim preclusion is limited to the parties (or their privies), a similar action by a different party would not be precluded. Here, Mother was not a party to the Son v. Driver case. She and her son are both adults and there is no indication that Son was representing Mother’s interests in his case. He brought the claim for his personal injuries, and did not include Mother’s interests in recovering for the total loss of her car.
Therefore, because Mother was neither a party, nor privy to a party, in Son’s suit, she is not barred from bringing a subsequent action.
Issue Preclusion (35%)
The issue is whether a judgment rendered in an earlier action preclude a nonparty from litigating an issue that was actually decided in the first suit.
The doctrine of issue preclusion (collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action. Other elements necessary for issue preclusion to apply are that (i) the issue sought to be precluded must be the same as that involved in the prior action; (ii) the issue must have been actually litigated in the prior action; (iii) the issue must have been determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment.
Here, though several of the elements are present, not all are. Therefore, the judgment will not preclude Mother from relitigating the issue of her negligence. The issue of her negligence in failing to maintain the brake lights on her car was litigated in the first action and decided by the jury; that judgment was a final one. But, Mother was neither a party nor in privity with a party to the first action in which Son alleged that Driver had been negligent. Further, nothing in the facts suggests that determination of the issue of Mother’s negligence was essential to the prior judgment against Driver. Accordingly, Mother is not precluded from relitigating the issue of her negligence in her subsequent suit against Driver.
Collateral estoppel
The issue is whether a nonparty to an earlier action may invoke the judgment in that action to preclude a party to the prior action from relitigating an issue that the party had a full and fair opportunity to litigate in the earlier action.
Mother may seek to use collateral estoppel offensively and preclude Driver from relitigating the issue of Driver’s negligence, which had already been decided against Driver. As noted above, the basic elements of issue preclusion have been met: (1) Driver was a party to the first action, (2) Driver’s negligence is the same issue already actually litigated in the Son v. Driver action—nothing in the facts suggests that there was not a valid and binding final judgment there. Finally, (3) the determination of the issue was at the core of the action, essential to the judgment. Therefore, Mother’s offensive use of collateral estoppel would be applicable and Driver might be precluded from relitigating that issue.
However, trial courts have broad discretion to determine when issue preclusion should apply. If a plaintiff could easily have joined in the earlier action, a trial judge should not allow use of offensive collateral estoppel.
Here, Mother could easily have joined in the earlier action, as it was her son who was injured while driving her car. Both his claim for personal injury damages in excess of $75,000 and her claim for property damages to her luxury car in excess of $75,000 arose from the same transaction or occurrence and raised a common question of law or fact (Driver’s negligence). Mother and Son are both citizens of State A and Driver is a citizen of State B. Joinder of her claim would not have destroyed diversity. The federal district court would have diversity jurisdiction over these claims and their joinder in the first action would have promoted judicial efficiency and economy.
Accordingly, in its discretion, the court might choose to deny application of collateral estoppel here.
The state court in State X must enforce the federal judgment
Under the U.S. Constitution, state courts are required to give full faith and credit to the judgments of other states. State courts are likewise required to treat federal judgments as those judgments would be treated by the federal courts. A party against whom enforcement of a judgment is sought may collaterally challenge the original state judgment based on lack subject matter jurisdiction, only if the jurisdictional issues were not litigated or waived in the original action. Here, Executor raised lack of subject matter jurisdiction in the federal court action and the issue was heard and decided by the court. Even though, as explained above, the federal court’s decision on the issue was in error, no appeal was taken, so the court’s judgment became final. If executor had wanted to challenge jurisdiction, he should have filed an appeal. The state court should therefore enforce the federal judgment.
The issue is whether the case was properly removed from state court in State A to federal court in State A.
Generally, the defendant in any civil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed as long as the civil action is within the original jurisdiction of a U.S. district court. Federal courts may exercise original diversity jurisdiction over actions when (i) the parties to an action are citizens of different states and (ii) the amount in controversy in the action exceeds $75,000. Here, the facts indicate that Owner is a citizen of State A and Restorer is a citizen of State B. Owner is seeking a return of the $100,000 paid to Restorer and so the amount in controversy exceeds the $75,000 amount required for diversity jurisdiction. Generally, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient, unless it appears to a legal certainty that the plaintiff cannot recover the amount alleged. Here, the facts do not indicate that the alleged amount in controversy is being challenged. Therefore, in light of the above facts, the federal court in State A had removal jurisdiction over the case.
The issue is whether the court can properly grant a change of venue motion based on a forum selection clause that is not enforceable under the law of the state where the case was originally filed.
For the convenience of the parties and in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Venue is proper in a judicial district in which any defendant resides or in a judicial district in which a substantial part of the events or omissions on which the claim is based occurred. Here, the claim might have been originally brought in State B because that is where the defendant Restorer resides. In addition, a substantial part of the events took place in State B as the contract was drafted and signed in State B and the Restorer’s alleged performance occurred in State B. Therefore, the matter might originally have been brought in State B.
Moreover, when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court held that a forum selection clause should be given “controlling weight in all but the most exceptional cases,” even if the clause is unenforceable under applicable state law. Here, the contract, which was drafted and signed in State B, contained a forum selection clause. There are no facts to indicate fraud or any other exceptional circumstances that would cause a court to not adhere to the forum selection clause contained in the contract. Although there appear to be valid arguments on both sides of the convenience issue overall, the forum selection clause should be given controlling weight here. Accordingly, the court should grant the motion to transfer the case to the federal court in State B based on the forum selection clause.
The issue is whether change of venue to Court B would affect resolution of the rescission issue.
Generally, if the venue of an action is transferred when the original venue is proper (as discussed above), the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law. However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.
Here, the facts indicate that under State A’s conflict-of-laws rules, State A would apply its own law to resolve the rescission issue. If venue is transferred to State B pursuant to the forum selection clause, the district court there must apply State B’s law, including State B’s conflict-of-laws rules, as the parties have contractually agreed to be subject to the laws of State B. As a result, State B would apply its own law to resolve the rescission issue. Accordingly, change of venue would affect the law to be applied in resolution of the rescission issue.
Nonparty Intervention (50%)
At issue is whether the logging company should be allowed to intervene as a matter of right when it has an interest in the action.
Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.
First, the company has a strong interest in the subject of this action. The USFS accepted the company’s bid and has decided to issue a permit to the company. The nonprofit’s immediate purpose in this lawsuit is to prevent the issuance of that permit. Therefore, the company has a substantial interest in the subject matter of the lawsuit.
Second, the logging company’s interest in receiving the permit may be impaired by the outcome of the lawsuit. If the nonprofit wins the suit, the USFS will have to prepare an environmental impact statement, which might delay or even eliminate the company’s ability to receive the permit. Once the court has decided in favor of the nonprofit, the logging company will be at a clear disadvantage in protecting its interest in the logging permit.
Third, the USFS does not adequately represent the logging company’s interest. Although the interests of the USFS and the logging company might be parallel at present, those interests could easily diverge throughout the litigation. The USFS is ultimately concerned with proper management of national forests and the logging company is ultimately concerned with earning a profit.
Therefore, it is likely that this condition, and all the conditions for intervention have been met and the logging company must be allowed to join the lawsuit.
Temporary Restraining Order
A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO can be issued without notice to the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reason why notice should not be required. Additionally, the party seeking a TRO must post a bond to cover the costs in the event the TRO is issued wrongfully.
In this case, the nonprofit can show that the USFS and the logging company are both presently prepared to begin cutting down 5,000 acres of old-growth forest which would have an immediate and irreparable adverse impact on the highest concentration of wildlife in the western U.S. Therefore, the court is likely to grant the TRO preventing USFS from issuing the logging permit until there has been a hearing on the issue.
Preliminary Injunction
The issue is whether the nonprofit could obtain a preliminary injunction to stop the USFS from issuing a logging permit.
A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in his favor; and (4) the injunction is in the best interest of the public. Additionally, the party seeking the preliminary injunction must provide a bond to cover the costs in the event the preliminary injunction is issued wrongfully.
First, the nonprofit can show it is likely to succeed on the merits in its claim that USFS violated federal law. NEPA requires the USFS to prepare an environmental impact statement before proceeding with the logging project. In this case, USFS not only failed to prepare an impact statement, it failed to conduct any environmental evaluation whatsoever. Thus, the nonprofit is able to show it will likely succeed on the merits.
Second, this logging project has potential to cause significant and permanent harm to 5,000 acres of old-growth forest and the abundance of wildlife living in the logging area. This is a clear example of irreparable harm to the environment, so the nonprofit can show the need for relief.
Third, the nonprofit can show the balance of equities weighs in its favor. The harm to USFS is minimal because issuing the preliminary injunction would merely delay its development. Although the logging company could lose money during the delay, the company could be compensated for these economic losses. These harms are minimal compared with the irreparable harm to the environment.
Finally, the court must consider whether important public policy concerns are at issue. There is a strong public policy in preventing USFS from proceeding without first complying with a federal statute and environmental standards. Therefore, the nonprofit is likely to succeed in its request for a preliminary injunction.
The court did not err in allowing the amendment.
The issue is whether, under the Federal Rules, a defendant may amend its answer after the close of discovery to add a well-established affirmative defense.
As provided in the fact pattern, a well-established affirmative defense is available in cases of this sort if the defendant employer proves that (i) the plaintiff employee was not subject to any adverse job action, (ii) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (iii) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Here, Plaintiff admitted that she had not suffered any loss of pay or promotion opportunity, allowing Defendant to claim that Plaintiff was not subject to any adverse job action. Although Plaintiff stated that she had not seen any effort on the part of Defendant to enforce the policies and practices to prevent sex discrimination, Defendant may be able to provide proof of its enforcement. Finally, because Plaintiff stated that she was aware of company policies forbidding sex discrimination and sexual harassment, as well as the procedures that employees could use to complain about perceived discrimination, Defendant can assert that this reason was “unreasonable,” allowing Defendant to meet the final element to claim an affirmative defense.
Generally, the Defendant’s answer must state any avoidance or affirmative defense that the defendant has, or that is deemed waived. However, the Rules also provide that pleadings can and should be amended by leave of the court when justice requires it. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.
Defendant has a viable argument that justice requires permission to raise the affirmative defense, so the case can be judged on its merits. Defendant can offer that, as reason for its failure to include the affirmative defense in its answer, it was only able to determine such a defense conformed to the evidence after the deposition of Claimant. For example, particularly the third element needed to raise the affirmative defense, requiring the plaintiff employee to “unreasonably” fail to take advantage of preventive or corrective opportunities provided by the employer, could not be known before discovery. Further, allowing the affirmative defense would cause no undue prejudice to the plaintiff, because she had reason to know better than anyone the facts that would support viability of the affirmative defense. The facts do not provide any other reason that Plaintiff would be unduly prejudiced by the amendment.
Because Defendant did not have the information it needed to make this affirmative defense until after timely filing its answer, the court could validly find that justice requires permission to add the affirmative defense so that the case could best be judged on its merits and that Plaintiff would not be unduly prejudiced by the addition, the court properly granted Defendant’s motion to amend the answer by adding the affirmative defense.
The court erred in granting summary judgment.
The issue is whether summary judgment is appropriate when Plaintiff’s response to discovery supports Defendant’s affirmative defense but there might remain issues of material fact.
A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the non-moving party. In ruling on a motion for summary judgment, the court is to construe all evidence in the light most favorable to the non-moving party and resolve all doubts in favor of the non-moving party.
Here, Defendant relied on Plaintiff’s deposition testimony to support its affirmative defense. Plaintiff’s deposition testimony was that she suffered no loss of pay or promotion opportunity and was aware of company policy forbidding sex discrimination and harassment, as well as procedures for complaints about policy violations. That part of her testimony supports Defendant’s argument that it had not imposed any adverse job action, exercised reasonable care to prevent and correct sexually harassing behavior, and that plaintiff unreasonably failed to use the corrective measures available to her. However, Plaintiff also testified that she had seen no effort on Defendant’s part to enforce the policies and was afraid that she would suffer retaliation if she made use of the corrective opportunities. That part of her testimony, especially when viewed in the light most favorable to Plaintiff, the non-moving party, would allow a jury to find that Defendant had not exercised reasonable care to prevent and promptly correct any sexually harassing behavior when it relied on the Plaintiff or supervisors to report the behaviors. (Here, it would also be significant that the supervisor was a person allegedly doing a significant amount of harassing.) Further, when viewed in the light most favorable to the Plaintiff as non-moving party, a court could find that there was a genuine issue as to the reasonableness of Plaintiff’s failure to take advantage of the preventive and corrective opportunities because of her fear of retaliation.
Therefore, because there were genuine issues of material facts regarding the employer’s actions to prevent and correct any sexually harassing behavior Plaintiff’s failure to take advantage of those preventive measures, the trial court erred in granting summary judgment.
