Civ Pro I Final Flashcards
Timeline
!filing of complaint!–!answer!——–discovery———–!trial!—
Commencement of action: FRCP 3
done by filing a complaint with the court
Summons (due process): FRCP 4
erved along with a copy of the complaint; function is to inform the defendant of the action pending against him
if D does not waive service of summons, he gets…
just 20 d. to answer, and costs of service (inc. atty fees of any motion required to collect costs) will be imposed on D unless can show good cause for the failure
If D does waive service, he has…
until 60 d. after date on which request for waiver was sent to file answer to complaint (90 d. outside US)
Who effects service? 4c2
any person not a party and at least 18 y.o.; P may request service by US marshal, etc to be appointed by court
4e: where no waiver obtained, service can be effected by choice of two methods…
- Pursuant to law of state where DC is located OR law of state where service is effected
- By delivery to individual personally, or by leaving copies at individual’ s house with person of suitable age and discretion; or by delivering to authorized agent
Proof of Service 4l:
If service not waived, person effecting service should make proof of service. Affidavit if not a US marshal/dep. Marshal. Failure to make proof of service does not affect the validity of the service
Greene v. Lindsey (1982):
Service is not “reasonably calculated” under the circumstances to effect notice when it is posted on tenants’ doors in public housing project violates due process under 14th Amendment (the right to be heard).
Code Pleading:
“just the facts,” where just the facts includes articulation of: (1) duty one person owes another, (2) violation of that duty, (3) consequences associated with that violation (4) claim for relief.
four elements of Claim of negligence
●duty of reasonable care
●violation is negligence = unreasonable conduct
●accident is consequence
●damage
Gillispie v. Goodyear Service Stores
Application of Code pleading: Pleading not specific enough in facts (P states no facts, but “mere conclusions”) to allow either judge to understand whether there is a case, or to allow Defendant to prepare a case.
Pleading must include: FRCP 8a
- short, plain statement of the grounds on which court’s jurisdiction depends (unless court already has jurisdiction and no new grounds needed);
- short, plain statement showing the pleader is entitled to relief
- demand for judgment for the relief pleader seeks (inc. relief in alternative or multiple types of relief)
- signature 11aby at least one attorney or the party if not represented (+ name, address, phone number, if any) – unsigned paper will be stricken unless omission of the signature is promptly corrected
FRCP 8e1
Statements in pleading shall be simple, concise, direct; no technical forms required
Pleading in the alternative: Multiple claims or defenses, alternately or hypothetically, can be made: 8e2
- either in one count or in separate counts
- the insufficiency of one or more of an alternative statement does not affect the sufficiency of other statements in the pleading
- ok for claims/defenses to be inconsistent (inc. if based on legal, equitable, or maritime grounds
8f
Pleadings shall be construed so as to do substantial justice.
Rannals v. S. E. Nichols, Inc. (1979)
(jeans w/defective zipper/malicious prosecution) District court erred in finding that Rannals failed to make a good pleading because she does not allege sufficient facts; the goal of the rules is just that a short and plain statement showing that pleader is entitled to relief is set forth – there is no need to distinguish whether an item is fact, law, and evidence.
Supreme Court said all needed for pleading was…
notice pleading under rule 8
Amendment of pleading: FRCP 15a
leave to amend freely given by crts when justice so requires and Can amend pleadings to get them to conform to the evidence
Beeck v. Aquaslide‘ N’ Dive Corp. (1977)
8th Cir. App. court affirmed allowing amendment where it was discovered that slide was not manufactured by company being sued b/c leave to amend should be freely given; slide manufacturer obviously relevant to the litigation; and prejudicing of P – even though statute of limitations had run - was insufficient to bar amending.
“Relation back” doctrine 15c
llow amendment where it relates back to the original pleading (gets around Statute of Limitations):
How to get around Statute of Limitations:
i.according to the law that provides the applicable statute of limitations, or ii.where the claim asserted in amended pleading arouse out of same conduct, transaction, or occurrence set forth in the original pleading (the same nucleus of facts as first pleading depends on?), or negligence
Bonerb v. Richard J. Caron Foundation (1994):
Court held that where P sought to amend pleading with claim of counseling malpractice, it did “relate back” to the claim in the original pleading of injury due to negligence of rehab. program, and so allowed the amendment
Moore v. Baker (1993):
11th Circuit held that where P sought to amend pleading with claim of negligence in surgery and post-op care, where original pleading claimed violation of informed consent by failure to advise of alternative therapy, the amendment sought did not relate back because did not pertain to the same (pre-operation) transaction.
Supplemental pleadings can be made on motion 15d
court, with reasonable notice and on just terms, will allow party to serve supplemental pleading relating to transactions/ occurrences/ events that have taken place since the original pleading – even where the original pleading is defective in its claim for relief or defense.
Response to Pleading
Responds with answer or pre-answer motion (pre-answer only under 12b).
counterclaim
“back at you”– a complaint against first pleader
cross-claim
from one D against another D
12a
within 20 d. after service of summons/complaint, or if waived service, within 60 d. after date when request for waiver was sent
12a2
within 20 d. when answering cross-claim, counterclaim, and typically where reply is ordered by the court
Service of motion under rule 12: 12a4
- if court denies motion or postpones its disposition, responsive pleading must be served w/i 10 d. of notice of court’ s action, or
- if court grants motion for more definite statement, responsive pleading w/in 10 d. of service of more definite statement
Possible pre-answer motions 12b
Waived if not presented in first response (12(g),(h)(1))
NOT Waived if not presented in first response (12 (h)(2,3))
NOT Waived if not presented in first response (12 (h)(2,3))…
- lack of jurisdiction over subject matter
- lack of jurisdiction over person
- improper venue
- insufficiency of process
- insufficiency of service of process
- failure to state a claim upon which relief can be granted (demurrer)
- failure to join a party under Rule 19
where the pleading of P doesn’ t require a responsive pleading from D…
D can assert at trial any defense in law or fact to the claim.
Haddle v. Garrison (1998)
Success of 12(b)(6) depends on court interpretation of the law. District Court granted 12(b)(6) motion to dismiss for failure to state a claim; Supreme Court: in looking at the statute, found it was directed more at conspiracy to intimidate or retaliate against witnesses than protection of witness property Haddle had stated a claim on which relief could be granted under 42 USC § 1985(2).
12e
motion for more definite statement iv.can be made before making a responsive pleading where responsive pleading is permitted and the original pleading is so vague or ambiguous that party can’ t reasonably required to frame a response
12e conditions
- Motion must point out the defects complained of and the details desired
- If motion is granted and other party does not furnish more definite statement within 10 d. after notice of court order or w/I such other time as court fixes, court may strike down the original pleading or make an order as it sees fit
- Stops the clock
Motion to Strike 12f
v. court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter upon motion by party before its responsive pleading; or upon motion within 20 d. after service of original pleading where no responsive pleading is permitted; or when court initiates the motion.
vi. >fill in 12c motion for judgment
Form of denials 8b: defenses to each claim of the other party shall be made
- in plain terms
- by admitting or denying the averments of the other party
- where not enough information to admit or deny, state so = effect of denial
- only deny what is untrue, admit everything else
Zielinski v. Philadelphia Piers, Inc. (1956)
holding that where the P’ s pleading contains a mistake (owner of forklift involved in accident), D does not have a right to foster the mistaken belief by acts of omission (by denying a count of pleading that was essentially right, just wrong on the identity of owner of forklift)
Affirmative defenses 8c
a defense that admits allegations of Plaintiff but says there is some reason why the allegations still do not add up to sustain a legal action; in answering preceding pleading, party must set forth affirmative defenses (inc. arbitration, contributory negligence, duress, estoppel, illegality, laches, statute of limitations, waiver, qualified immunity, etc.)
Layman v. Southwestern Bell Telephone Co. (1977)
must be plead in answer to P’ s pleading (can’ t be brought up later if not plead) – holding that easement as affirmative defense could not be brought up where it had not be pleaded
FRCP 11
Representations to court / Sanctions
11b
By presenting pleading, motion, other paper to court, attorney or unrepresented party certifies that, to best of person’ s “knowledge, information and belief,” formed after reasonable inquiry
11b2
Claims, defenses, other legal contentions are warranted by existing law or by nonfrivolous argument for extension/modification/reversal of existing law or establishment of new law (~12(b)(6))
Religious Technology Center v. Gerbode (1994)
Plaintiff’ s RICO complaint does not pass muster under Rule 11: (b)(2), its claims not warranted by existing law, nor any nonfrivolous argument being made for the extension, modification, reversal of existing law (monetary sanctions then awarded; appropriate b/c case decided, no other way to shape the litigation)
11b3:
Allegations and other factual contentions have evidentiary support or are likely to after reasonable opportunity for further investigation/discovery
Business Guides v. Chromatic Communications Enterprises (1991):
BG alleged that Chromatic copied from its “seeded” directory, pointing out 10 instances of seeding; District Court clerk discovers 9 out of 10 seeds show no evidence of seeding after all; judge on own initiative uses Rule 11 to send to Magistrate, who sanctions both BG and its counsel for not investigating/having evidentiary support.
11c
If court determines 11b has been violated, sanctions may be imposed on attorneys, law firms, or parties who violated/are responsible for violation.
To initiate by motion, 11c1A party must
●move separately from other motions
●describe the specific conduct alleged to violate 11b
●[safe harbor provision] not file/present to court unless within 21 days after service of motion the challenged paper/claim/defense/contention /allegation/denial is not withdrawn or corrected
●(expenses and atty fees may be awarded to prevailing party; firm held jointly responsible for violations committed by its employees)
For court to initiate sanctions, 11c1B, it
●Enters order describing specific conduct that appears to violate 11b
●Directs attorney/firm/party to show cause why it has not violated 11b
Nature of Sanctions 11c2
Limited to what is sufficient to deter repetition of such conduct
May consist of/include
●nonmonetary directives
●order to pay penalty into court
●order directing payment to the movant of some or all atty fees and other expenses incurred as a result of the violation
Exceptions to 11c2: 11c2A
No monetary sanctions against represented party for violation of 11b2 (don’ t expect the represented party to know the law).
11c2B no monetary sanctions on court’ s initiative unless court issues order to show cause before vol. dismissal or settlement of claims made by/against party to be sanctioned
11c3
When court imposes sanctions, it should describe violating conduct, basis for sanctions.
scope:
is any matter not privileged that is relevant to the claim or defense; need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence
26b1
●court can order discovery of any matter relevant to the subject matter involved in the action
26b2
court can limit the number of depositions, interrogatories; length of depositions, etc and where discovery methods otherwise permitted result in requests that are
○unreasonably cumulative or duplicative, or obtainable from some other more convenient, less burdensome source
○party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought or
○burden/expense of proposed discovery outweighs likely benefit
26f
Parties confer on a discovery plan and submit it to the court for approval
26a: Automatic disclosure
of certain information to other parties is required (based on information then reasonably available to it, at or w/in 14 days of the discovery conference, unless..
- who has discoverable information likely to be used by party to support its claims or defenses
- copy or description of all docs/data comps./tangible things that party has and might use to support its claims/defenses
- computation of any category of damages, inc. docs on whichcomputation is based
- insurance agreements that might show liability of an insurance company
26a2A and 26a2B
Identity of expert who may be used at trial to present evidence must be disclosed 26a2A; expert’ s report shall be furnished to other parties, (court may say when), but at least 90 days before trial, or if evidence provided by expert is to be used solely to contradict other party’ s evidence on a matter, at least 30 days before trial.
Pre–trial disclosures: 26a3
Identity of witnesses and documents party expects to present at trial, and those that party may call/present must be provided to other parties and court before trial.
- inc. designation of witnesses whose testimony is expected to be by deposition + transcript of pertinent portions
- approximate identify of each doc./exhibit, separately identifying those which party expects to offer and those which party may offer
26a5 Methods for discovering other matter include…
depositions, interrogatories, production of documents/things, permission to enter property for inspection, physical and mental exams, requests for admission
26g
All disclosures and discovery requests must be signed by atty (or party) to certify that, to the best of the signer’ s knowledge the disclosure is correct and complete/the discovery requests are consistent with the rules, not done for improper purpose, and not unreasonable or unduly burdensome or expensive.
Facts of Interrogatories: FRCP 33
- crude tool, inexpensive
- often done early on in discovery
- problem of having to carefully craft questions
- good for getting names, sense of other party’ s legal theories
Facts of production of documents FRCP 34
biggest potential for abuse
Facts on depositions 30 (31,32)
- good information, opportunity for follow up on the spot
- very expensive (time, travel, stenographers)
- in some cases can use depositions in trial itself
facts on mental/physical exams 35
- most intrusive, requires court to sign off
10. usually when mental/physical health put at issue in trial
Facts on requests for admissions 36
“more like pleading” than discovery: once something is admitted, the admission is binding and that issue is considered resolved (though there is some room for judge discretion in allowing taking back of wrongly made admissions, as in Aquaslide).
26b3: trial preparation materials
documents and tangible things prepared in anticipation of litigation or for trial by/for another party or that party’ s attorney (work product) can’ t be discovered unless there is a showing by party seeking discovery that it has substantial need of the materials, and that it is unable without undue hardship to obtain the equivalent of the materials by other means
During discovery, court protects against disclosure of
the mental impressions, conclusions, opinions and legal theories of attorney
Hickman v. Taylor (1947)
Where P sought to discover notes from D’ s attorney’ s interviews of witnesses and substance of other interviews that were conducted but not written down, the Supreme Court held that the work product of an attorney cannot be discovered without showing of adequate reasons by the one who would invade the attorney’ s privacy.
Test for whether discoverable under 26b3: documents and tangible thing
i. is it otherwise discoverable (relevant and not privileged)? 1.Yes—discoverable
ii. produced in anticipation of litigation 1.yes – discoverable
iii. substantial need or undue hardship 1.yes – discoverable
iv. mental impressions, conclusions, legal theories of party and counsel 1.no – discoverable
Policy reasons for 26b3
i. Cumbersome to produce information about oral statements from memory
ii. Where there is no need for work product because could get information another way, shouldn’ t have to turn over
iii. attorney’ s work goes beyond the facts that are discoverable because includes ideas of attorney relating to legal theory, strategy
iv. Concern of two adversaries harassing each other
v. impeachment use when reports conflicts…potential for attorney having to take witness stand
vi. Discovery is about finding out the facts, not the synthesis/analysis/ interpretations/strategies of the facts as produced by the attorney
when party withholds materials as privileged under 26b5…
must describe what the materials are in a way that otherparties are able to assess the applicability of privilege protection
Protective Orders 26c
where justice requires protection of a party or person from annoyance, embarrassment, oppression, undue burden or expense, court where action is pending or, if matter relates to deposition, court in district where deposition is to be taken, can make a protective order.
Protective orders under 26c do what?
a. no discovery or disclosure of the matter
b. disclosure/discovery only on specified terms
c. discovery only by a method of discovery other than that used by seeking party
d. certain matters not be inquired into; or scope be limited
e. discovery conducted w/ no one present except persons designated by court
f. deposition be opened only by order of court (after sealed)
g. trade secret, etc. not be revealed, or only revealed in a specified way
h. parties simultaneously file specified documents enclosed in sealed envelopes
26b4
Concerning experts
26a2B
Whose opinions may be presented at trial: other party can depose (after a report if report required under
26b4B
Whose opinions are NOT expected to be presented at trial: party can’ t discover unless shows exceptional circumstances under which it is impracticable for party to get the facts or opinions by other means.
Thompson v. The Haskell Co. (1994)
held that where doctor examined P at the relevant time of the inquiry (10 days after P was fired), it was an exceptional circumstance where the D could not get the same facts or opinions by other means – could not get to the P’ s mental state at the time any other way than through that expert testimony
Chiquita International Ltd. V. M/V Bolero Reefer (1994):
Held that where P’ s maritime inspector-expert had examined the vessel and loading gear shortly after vessel arrived, there was no exceptional circumstance under which D could depose the inspector to get to his observations; reasoning that D could have had the vessel inspected then, too; but, any discoverable (factual) information conveyed to the inspector did have to be disclosed to D.
26b4C
Where not expected to be presented, court shall require that party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred in obtaining facts and opinions from the expert by the party whose expert it is
In both might be presented/not expected to be presented, party seeking discovery of the expert must pay the expert reasonable fee for time spent in responding to discovery (unless manifest injustice would occur).
Where a false certification is made in violation of 26g (complete, correct disclosure/proper, lawful requests), court must…
impose sanction, which may include order to pay amount of the reasonable expenses incurred because of the violation, including attorney fees. 26g3 (in contrast to Rule 11 where court has discretion to impose sanctions or not)
Motion for order compelling disclosure or discovery. 37a
Where party fails to make a disclosure or cooperate in discovery and the discovering party has made a good faith effort to secure the disclosure without court action, the discovering party may move for an order compelling disclosure or discovery
37a2A
Where party fails to make automatic disclosure under 26a, can move to compel disclosure and for sanctions.
37a2B
Where party fails to answer interrogatory or fails to respond to inspection request, or fails to permit inspection, discovering party may move for an order compelling answer, order compelling inspection
37a3
Evasive or incomplete disclosure, answer, response is treated as failure to disclose
37a4A
where motion to compel is granted or disclosure or requested discovery is provided after the motion was filed, court shall impose sanction on nonmovant of expenses incurred in making the motion, inc. atty. fees. (unless no good faith effort was made before motion; or opposing party’ s nondisclosure was justified, etc.)
37a4B
where motion to compel is denied court may enter protective order; and must require moving party to pay other side’ s expenses in opposing the motion (inc. atty. fees) unless court finds making of motion was substantially justified, etc.)
37a4C
where motion is granted in part, denied in part may get protective order; expenses can be apportioned among parties
37b1
if deponent fails to be sworn in or to answer a question, after being directed to do so by court where depo. Taken, can be considered contempt of court
37b2
failure to obey an order to provide or permit discovery court can make orders with big impact on out come of lit. including: A order that matters regarding which order was made be taken as established for purposes of the action; B order refusing to allow disobedient party to support/opposed designated claims or defenses, or prohibiting party from introducing certain matters into evidence; C order striking out pleading/parts of pleading or staying furtherproceedings until order is obeyed; D order treating as contempt of court the failure to obey an order (except order to submit physical/mental exam.)
failure to disclose; false/misleading disclosure; refusal to admit 37c1
party can’ t use information it didn’ t disclose as evidence; and court may impose other sanctions including expenses (inc. atty fees).; + court can impose sanctions under 37b2A, B, and C + can inform jury of failure to make disclosure
37c2
failure to admit the genuineness or truth of any document or matterif discovering party then proves the genuineness, can seek expenses, and court shall make the order requiring expenses unless (4 factors)
41a
Parties can dismiss by Plaintiff filing a stipulation of dismissal signed by all parties who have appeared in the action. The dismissal operates as an adjudication on the merits. (P can also dismiss by filing notice of dismissal before D’ s answer or D’ s summary judgment motion, whichever is first.)
Settlement offer can be made…
any time 10 or more d. before start of trial by the Defendant; if P accepts within 10 d., either party can file the offer and notice of acceptance, with proof of service, and the clerk shall enter judgment. 68
●if offer isn’ t accepted, it’ s considered withdrawn and isn’ t admissible except in determining costs
Cost shifting
if P doesn’t accept offer and then finally obtains a judgment which is less favorable than the offer was, P must pay his own costs + the D’ s costs incurred after the making of the offer. in certain types of litigation, cost shifting includes attorney fees (civil rights, some public interest)
Evans v. Jeff D. (1986)
statute grants attorneys fees to prevailing party in civil rights actions; attorney settles case for what he thinks is best possible outcome for class, but part of settlement is a waiver of the attorney fees; Supreme Court holds that waiver of fees should be allowed as it provides for bargaining power in civil rights violations cases.
Kalinauskas v. Wong (1993)
Held that where a prior confidential settlement agreement stipulated that the employee Thomas would not discuss any aspect of her employment other than dates/title of employment, current Plaintiff Kalinauskas could depose Thomas to discover facts relevant to K’ s case (though could not discover the terms of the confidential settlement agreement).
Vacatur of judgment?
a successful appeal has the effect of rendering the judgment appealed vacatur; vacated; set aside
Generally courts do not assess the merits of the settlement except…
class-action suit, lit. involving minor
Preliminary monetary relief 64
go by what the state law where district court is says
Fuentes v. Shevin (1972)
Supreme Court struck down as unconstitutional (14th Amendment due process) Florida and Pennsylvania laws allowing for replevin of personal property (stove and phonograph) where statute allowed for the clerk to issue the writ of replevin to seize personal property and for the execution of the writ by the sheriff – with no pre-seizure hearing
Preliminary injunctive relief 65
preliminary injunction is not issued without notice to the adverse party
65b:
exception to 65a. Temporary restraining order – can be granted w/o notice if
i. immediate and irreparable injury, loss or damage will result to applicant before adverse party can be heard, and
ii. applicant’ s atty certifies to court in writing the efforts, if any, made to give notice and the reasons supporting the claim that notice shouldn’ t be required
Temporary restraining orders:
where TRO granted w/o notice, motion for a preliminary injunction must be set down at earliest possible time and party shall proceed with application for a preliminary injunction (if not court dissolves TRO)
TRO expires after 10 days unless within that time court extends for good cause or party restrained consents to extension
65d
Order granting injunction/restraining shall set forth reasons for issuance, describe the act or acts sought to be restrained, binds only the parties to the action.
William Inglis & Sons Baking Co. v. ITT Continental Baking Co (1976)
Ninth Circuit court of appeals suggested an alternative (less stringent) test for determining whether preliminary injunction should be granted. The district court’ s test was 1.irreparable harm?; (2) likely to prevail? (3) balance of harms – harm to Plaintiff of denying > harm of Defendant granting? (4) is in the public interest?. 9th Circuit suggests “sufficiently serious test”: If harm that may occur to the Plaintiff is sufficiently serious, it is only necessary that there be a fair chance of success on the merits
65c
Party must pay a security in applying for restraining order/injunction to secure costs and damages that may be sustained by party who is wrongfully restrained
56
Summary Judgment
Motion for summary judgment
motion to show that there is no genuine issue as to any material fact and that moving party is entitled to a judgment as a matter of law (unlike 12(b)(6), looks at the proof)56c basically, need affirmative proof of what is in discovery record, have to point to the evidence in the discovery record (but don’t have to have an affidavit)
Notion of summary judgment
screen out cases that don’ t need a jury,
56a
Plaintiff can file sj motion beginning 20 d. after filing of complaint
○ Defendant can file sj motion any time
Form of affidavits 56e
○Made on personal knowledge
○Set forth such facts as would be admissible evidence in trial
○Show affirmatively that affiant is competent to testify to the matters stated
○Quantity of evidence doesn’ t matter – anything on the other side that is admissible and directly deals with material fact is sufficient to show genuine issue of fact.
56d
where granting of motion only partially adjudicates the case, judge shall set out facts that appear uncontroversial, deem them established, and direct the trial thereafter accordingly
56f
Court can opt to delay ruling on motion or order a continuance where party opposing the motion can’ t produce facts essential to justify opposition for a good reason
56g
Where affidavit made in bad faith party pays costs which the bad affidavit caused
Celotex Corp. v. Catrett (1986)
revolutionized summary judgment: (case involving exposure of deceased husband to asbestos) Supreme Court held that it is sufficient for Defendant moving for summary judgment to discharge the burden by showing that there is an absence of evidence to support the Plaintiff’ s case; D did not have to affirmatively show that there was no genuine issue of material fact
Seventh Amendment and FRCP 38a
Protects the right to a jury trial
Jury test:
If within jurisdiction of the common law courts in 1791, the parties have the right to a jury (If not, a court of equity would have heard claim, no right to a jury)
38b
party can demand jury trial by serving upon other parties the demand, by including it in a pleading or by putting it in writing any time not later than 10 d. after service of last pleading regarding the matter
38c
if party doesn’ t specify which issues it wants tried by jury, it’ s assumed that it wants all tried by jury; if party does specify only some issues it wants tried by jury, other parties can, within 10 d. of service of original demand, serve demand that other issues of fact also go before jury
38d
failure to serve and file a demand constitutes a waiver by the party of trial by jury; demand for jury trial cannot be withdrawn without the consent of the parties
39
Trial by jury or by the Court
39a
where jury trial has been demanded, trial shall be by jury except where parties consent for it not to be or where court finds that there is no right to the jury trial
39b
even if party fails to demand a jury in an action where it could’ ve done so, court can order trial by jury on any/all issues
39c
n actions NOT triable by jury, court can try an issue with an advisory jury or can order a trial with a jury whose verdict has the same effect as if trial by jury had been a right (not an option where action is against US and statute of US provides for trial w/o jury).
Selection of Jurors 47
(a) court can decide to examine potential jurors or to allow parties/attys to do so
(b) peremptory challenges – as allowed by 28 USC § 1870
(c) excuse– court can excuse juror from service during trial/deliberation for good cause
Voir dire
exclusion process can include questions to whole pool, to individual jurors; in federal system, it’ s generally judge-driven questions; in some state systems, heavily driven by the lawyers.After voir dire, judge exercises for cause exclusion.
Peremptory challenges
, ability to strike juror for any reason or no reason at all; get 3 each in federal context
48
Jury should be not less than 6, not more than 12 people. All jurors should participate in verdict unless excused pursuant to 47(c) Unless otherwise stipulated by parties, verdict should be unanimous and no verdict will be taken from jury reduced to fewer than 6 members.
8 USC § 1861
- juries will be selected at random from cross section of community in district where court convenes
- all citizens shall have opportunity to be considered for jury service and shall be obliged to serve when summoned for that purpose
8 USC § 1862
No citizen shall be excluded from serving on jury in district courts of the US/Court of Int’ l Trade on basis of race, color, religion, sex, national origin, or economic status
Peremptory Challenges 28 USC § 1870
in civil cases, each party gets 3 peremptory challenges; where there are several Defendants or Plaintiffs, court may allow additional peremptory challenges and allow them to be exercised jointly or separately Challenges for cause or favor shall be determined by the judge.
Edmonson v. Leesville Concrete Co. (1991)
Supreme Court found that use of peremptories to exclude jurors on the basis of race did amount to a Constitutional violation because the jury body/jury selection process is a state action in that the jury is a governmental body; held that a private litigant cannot use peremptory challenges to exclude jurors on basis of race in civil trials (and litigant can assert the 3rd party juror’ s rights on his behalf b/c juror unlikely to be able to do so himself)
J.E.B v Alabama (1994)
Supreme Court extended principle of Edmonson to include peremptory strikes based on gender; fifth vote in 5-4 decision was O’ Connor, who limited her concurrence to situation in which the state is a litigant
Special verdicts and interrogatories– 49
●court can submit to jury written questions of categorical or brief answer (where it omits some issue in doing this, parties waive right to trial by jury of omitted issue)
●can give jury interrogatories, ask them to both write answers to interoggs. and to render a verdict; then looks at consistency of answers internally, answers/verdict
objections 51
●party can file written requests to have court instruct jury on the law in a certain way
●party that doesn’ t object to the court’ s instructions to jury can’ t later assign as error the giving/failure to give an instruction to jury
pleading
is the least important because it’ s usually correctable, judge will usually allow amendment; same thing in Defendant’ s answer, generally. (persuasion and production mistakes are fatal, though)
persuasion
is showing preponderance of evidence supports the claim -comes into play where jury can’ t find preponderance either for P or D, it must find against the party with burden of persuasion (usually P)
production–
requires party to produce sufficient evidence such that a rational trier of fact could find it its favor (justifies case going to jury)
Burden of persuasion
defines the extent to which the trier of fact must be convinced of some proposition in order to render a verdict for the party who bears it = preponderance of evidence, more probably than not. This governs the jury’s decision
Reid v. San Pedro, Los Angeles & Salt Lake Railroad (1911)
There’ s a burden on plaintiff to show that it’ s more likely than not (to show liability by a preponderance of evidence) that the cow went through the fence hole, not the open gate. Without any evidence other than that the cow was so close to the open gate, there’ s no way a reasonable jury could find this burden had been met; the evidence pointed equally in opposite directions (liability and non-liability of Defendant) =no preponderance.
Burden of Production
= requires a party to produce, to find and present evidence, come forward with evidence from which a rational trier of fact could conclude some proposition of material fact. This is a question for the judge to determine whether the question goes before a jury at all
Judgment as a matter of law (JML) 50
Where there is no legally sufficient evidentiary basis for a reasonable jury to find for the party on an issue (no rational jury could find for party on an issue), court can determine the issue against that party and may grant a motion for JML (takes case away from the jury!)
favorable evidence
only look at what the Plaintiff has presented
qualified favorable evidence:
favorable evidence + uncontradicted, unimpeached (and disinterested) evidence including Defendant’ s evidence
a. seems to be the rule favored by federal courts.
b. Has power b/c accounts for what the examination of evidence is about in this context
all evidence standard
judge does some resolution of contradiction in evidence; judge looks at all the evidence - timing of motion 50a: before the case is submitted to jury (so, D can move at close of P’ s evidentiary case, or at close of all evidence; P can move at close of all evidence); first sentence of 50b (JNOV) suggests that the motion has to be at the close of all evidence in order for a JNOV motion to brought
Directed verdict
if court grants motion for JML at the point of submission (before jury gets the case), it issues a directed verdict
Courts shy away from directed verdict for good reason:
Courts prefer not to interfere with juries, so best is to let the case go to the jury first, then rule on jmol. This is preferred since (a) reversal of a directed verdict = whole new trial, but reversal of a jml = reinstate verdict; (b) if we have faith in juries, there’ s a good chance they’ ll get it right
Pennsylvania Railroad v. Chamberlain (1933)
brakeman in RR yard; falls off and is killed (crash?); only witness for P doesn’ t say much) Where no substantial support in the evidence for P’ s claim means a verdict in his favor would rest upon only speculation and conjecture (burden of production hasn’t been met), trial court was correct in issuing directed verdict for the Defendant).+ courts don’t consider witness credibility in directing JML
JNOV
the presiding judge in a civil jury trial may overrule the decision of a jury and reverse or amend their verdict. In literal terms, the judge enters a verdict notwithstanding the jury findings
Court ruling on renewed motion for JML
can allow judgment to stand; order new trial; or direct entry of JML = judgment notwithstanding verdict (JNOV)
59– case goes to a new jury
Standard: verdict is supportable, but against the clear weight of evidence> Where there is some amount of evidence that some reasonable jury could find either way, but weight of evidence favors one side, judge can order new trial by a new jury;
two instances when courts have traditionally granted new trials:
- Procedural errors●evidence admitted or excluded where shouldn’ t have been ●juror behavior ●> standard of review is de novo (b/c it’ s issues of law)
- Verdict itself reflects a problem– the result is wrong ●doesn’ t make sense ●is against the great weight of the evidence ●> standard of review has moved from unreviewable to abuse of discretion
On appeal, If the relief sought is same for both claim won on and other claim…
no appeal will lie
On appeal, If the rejected claim would have entitled party to more or different relief,
then appeal lies
apples and waivers
waiver (applies also to cross-appeals)
○party must present to the trial court the contentions on which it wants rulings.
○Failure to do so results in waiver of the contention (i.e., cannot bring it up in an appeal later on)
exceptions to waivers of appeals
■where there has been a change in the law, or a wide reaching decision
■“plain error” rule: where some error seriously affects the fairness, integrity or reputation of judicial proceedings (appellate courts assume some degree of responsibility for assuring the correctness of the outcome, not just the fairness to the parties)
■jurisdictional questions (one issue that court is required to raise on its own is subject matter jurisdiction, and that can happen at appeals court by either parties or court)
■issues entangled w/ other issues
Final Judgment Rule: 28 USC § 1291
appeals lie only from final decisions of the district courts; a final decision “is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment” Catlin v. US
Interlocutory decisions S1292
1.Where an injunction is granted or denied § 1292a (not discretionary) 2.Where the district court judge certifies that there is a controlling question of law§ 1292band that (discretionary)
54b
Judgment upon multiple claims/involving multiple parties. Where court directs entry of final judgment as to one or more but fewer than all of the claims or parties, only on express determination that there is no just reason for delay and upon an express direction for then entry of judgment.
Collateral Order Doctrine (court-made law)
treats the orders as final and separate from case on the merits (not discretionary but some flexibility in application)
4 requirements for Collateral Order Doctrine.
conclusively determines the collateral rights 2.an important question 3.decision is separate from merits 4.effectively unreviewable later on
Writ of Mandamus
in a separate original proceeding, Court of Appeals that issues the writ orders a public official (the. lower judge) to perform an act required by law - often available where judge has denied a jury trial, but used sparingly
De novo standard of review on appeal
he most straightforward: Court of Appeals starts fresh and asks what is the right answer? how do we apply the law? (but uses trial court’ s evidentiary record); notion that there is a right/wrong answer when court applies this standard
●judgment as a matter of law
●summary judgment
Abuse of discretion standard of review on appeal
trial court has discretion in its decision making. Appellate court asks if trial court’ s decision is within discretion.
●Review of discretionary standards – e.g. new trial
●an encouraging standard, gives some deference to trial court
Clearly erroneous standard of review on appeal
52a, Review of whether fact finding process was done correctly: judges fact-find even where there is a jury (challenge to peremptory; determination whether inquiry is reasonable under rule 11). (fact-finding of judges can be of all facts in case (where no jury), or a smaller subset of the facts)
61
Harmless error is not grounds for granting new trial, setting aside verdict, etc. unless court finds there is harm, i.e., that the error is likely to have changed the verdict.
Rule 8 (a): A pleading shall contain:
(1) short and plain statement of grounds for jurisdiction,
(2) a short and plain claim showing that plaintiff is entitled to relief, and
(3) demand for judgment pleader seeks.
Functions of notice pleading
i. Permit the other party to file a responsive answer, prepare a defense, and see if preclusion applies.
3ii. Sharpen the issues and confine discovery.
Form of Denial
i. A respondent must admit or deny each allegation in the complaint
Affirmative Defenses – Rule 8(c)
i. The answer must include affirmative defenses. Courts correctly construe mistakenly labeled defenses
Multiples Claims/Defenses – Rule 8(d)
i. Parties can plead as many claims and defenses as they want, regardless of consistency.
Pleading Deficiencies – Rule 8(e)
i. Pleadings are construed so as to do justice
Higher Pleading Standards – Rule 9
Exceptions to rule 8(a)
i. Higher pleading standards for complaints of fraud, mistake, securities fraud, libel, slander, and defamation.
Replies – Rule 7(a)
Plaintiff does not have to file a reply to an answer unless ordered by the court.
Pre-Answer Motions – Rule 12(b)
a. Allows defendant to make certain defenses by motion prior to filing and answer. No demurrer in federal law.
b. If the court grants the motion, P will usually be granted leave to amend.
c. Only one pre-answer motion is allowed.
Rule 12(g)-(h)
Waiving Pre-Answer Motions –
Rule 12 motions may be combined with…
other Rule 12 motions.
If the party makes omits one of the 12(b) defenses, then…
it is waived and can’t be raised later.
Motions not waived can be raised…
in pleadings, a motion for judgment on the pleading (Rule 12(c)), or at trial.
Courts normally give the nonmovant a chance to amend a defective pleading. True or false.
True
Lack of subject-matter jurisdiction can be raised at what time?
any time
Motion for Judgment on the Pleadings – Rule 12(c)…
a. Must be made early so as not to delay trial.
b. Assumes the truth of the pleadings.
Motion to Strike – Rule 12(f)
a. Motion by party or done by court, sua sponte.
b. Strikes redundant, immaterial, impertinent, or scandalous matters; also strikes insufficient defenses.
Counterclaims – Rule 13(a) & (b)
a. Answer must contain any counterclaims if they arise out of the same transaction.
b. Other counterclaims may be permitted regardless of relation to the initial claim or transaction.
Amendments – Rule 15
ndments – Rule 15 a. Leave to amend should be freely given
b. Amendment is allowed once as a matter of course 21 days after pleading, a responsive pleading, or Rule 12 motion
c. Other amendment may be allowed with the other party’s consent or with leave of court.
d. Relation back
ignature Certification – Rule 11
All representations to the court must be signed
Attorney certifies the representation to the best of their knowledge after a reasonable inquiry to be:
i. Not for any improper purpose (harassment, delay, increasing costs)
ii. Claims, defenses, and contentions are supported by law or are nonfrivolous arguments for extending the law
iii. Factual allegations are supported or likely to be supported by evidence after discovery, and
iv. Denials are warranted by evidence, a reasonable belief, or lack of information.
