M7: Pretrial and Trial Management

Question 1

What is the purpose of a pretrial conference?

Answer 1

Try disputed facts. If the parties can agree to “stipulate” to undisputed facts, it leaves less to be tried and may shorten the trial.

If parties can agree to admission of evidence, that would also shorten the trial.

It’s all about streamlining the trial and making it more efficient.

Question 2

True or false: a court can use pretrial process as a club to force a party to settle its case

Answer 2

False. Rule 16 clearly identifies “facilitating settlement” as a purpose of the pretrial and even makes consideration of alternative dispute resolution (ADR) procedures proper in some cases. But it does not more, no party can be forced to settle rather than try its dispute.

Question 3

True or false: Rule 16(e) makes mention of the effects of a final pretrial order on attempts to litigate claims or defenses or to introduce witnesses or exhibits that were omitted from the order.

Answer 3

False. Rule 16(e) is silent about this.

But because Rule 16(d) states that any pretrial order “controls the course of the action unless the court modifies it” and rule 16(e) permits modification of the final pretrial order only to prevent manifest injustice, the effect of such omission is that the ommnited matter or witness can be excluded from the trial.

The final order “controls” the claims, defenses, and witnesses and exhibits that can be offered at trial and those omitted are waived.

Question 4

Why would a party attempt at trial to offer matter outside the final pretrial order?

Answer 4

1) Overlooked by lawyer, forgotten by lawyer. As the trial date approaches, even good lawyers overlook something.
2) If trial goes badly and party’s claim or defense fails, its lawyer may salvage the outcome by trying to substitute an omitted claim or defense that the trial record would support.
3) Trying to win by chance or surprise, lawyer gambles that the court will allow omitted witnesses to testify.

Question 5

Your client files a “creative” complaint against Defendant Danny Doo, which alleges fraud and conspiracy. You’re seeking damages for an investment gone wrong. Danny files a 12(b)(6) motion in a timely manner, saying that your complaint fails to state a claim.

You file a brief in opposition of Danny’s motion and then argue against the motion in hearing. The judge does not seem to agree with your arguments, making it no secret of her disdain for your complaint and legal theories… she’s signaling that she intends to grant Doo’s motion.

Is it too late to get another judge?

Answer 5

Not necessarily, under Rule 41(a). You could voluntarily dismiss the complaint without prejudice to suing on the same claim(s) att another time or in another court under some circumstances.

There are practical reasons to voluntarily dismiss, including forum shopping or judge shopping in certain circumstances.

Question 6

What are the differences/meanings of “with prejudice” and “without prejudice”?

Answer 6

Without prejudice: refers to the effect of a dismissal on the claimant’s ability to sue on the claim again. Generally, a claim that is dismissed without prejudice by a federal court can be sued on again without running afoul of the law of claim preclusion (res judicata)

With Prejudice: Claims that are dismissed with prejudice cannot be brought again in federal court.

Question 7

Which is the proper term: 1) move for a voluntary dismissal or 2) “noticed” a voluntary dismissal?

Answer 7

It depends on where you are in the trial.

2) Noticed for a voluntary dismissal.
Plaintiffs do not move for a voluntary dismissal because they don’t have to. They have a right to dismiss without a court order.

1) IF this is after the opposing party has submitted an answer or filed for SJ, then this would be move (by court order) for voluntary dismissal.

Question 8

What does it mean if a notice of voluntary dismissal is timely?

Answer 8

“Before the opposing party serves either an answer or a motion for summary judgment.”

When a notice is timely, it “invites no response from the district court and permits no interference by it.” The notice automatically closes the file on its own, depriving the court of jurisdiction and action is no longer pending.

Question 9

How does additional information brought to the court, accompanying a 12(b)(6) motion affect a plaintiff’s ability to file notice of voluntary dismissal?

Answer 9

Rule 12(d) When materials outside the pleading are presented, the 12(b)(6) motion must be treated as one for summary judgment. When defendant offers materials beyond the allegations in the complaint, the court considers whether these new pieces of information are generally undisputed (standard for summary judgment).

This affects the voluntary dismissal notice, since the point of no return has been reached.

Question 10

Can a court order a voluntary dismissal at the plaintiff’s request?

Answer 10

Yes! Rule 41(a)(2): P’s would no longer notice a voluntary dismissal but move for a voluntary dismissal instead - courts will grant these “on proper considerations”

Question 11

What does “plain legal prejudice” mean?

Answer 11

Unfairly causing prejudice to a plaintiff. Relating how much effort by the defendant will be wasted if the summary judgement is granted.

Question 12

True or false: If a voluntary dismissal without court order is noticed within the point of no return (without prejudice), this means the dismissing plaintiff will win or avoid some of the same defenses faced or would have faced in the dismissed lawsuit.

Answer 12

False. Voluntary dismissal without prejudice only means that the party can ordinarily file the claim again (assuming party refiles within SOL timeframe).

Question 13

How does the “two dismissal rule” work?

Answer 13

If a party who successfully noticed a voluntary dismissal without prejudice wants to file a second time and then voluntarily dismiss a second time, the second voluntary dismissal operates as a adjudication on the merits. The second voluntary dismissal precludes the dismissing party from filing a third time in the same court.

**Applies only when the second dismissal is by notice, without court order or stipulation.

Question 14

What are the grounds for which involuntary dismissal occurs?

Answer 14

1) Defendant’s 12(b) motion — does not require P’s consent
2) Rule 41(b): P’s failure to prosecute
3) Rule 41(b): A party’s failure to comply with the FRCP

Except for motions for lack of jurisdiction, improper venue, or failure to join a required party — defects that prevent adjudication of the merits.

Question 15

What is the logic behind summary judgment?

Answer 15

Determine from the record whether there is a genuine dispute material fact. And if not, is the moving party entitled to judgment as a matter of law on the undisputed facts

When facts are undisputed, all that remains is to apply the relevant law. If all the facts the judge needs to apply the law are undisputed, she can go ahead and apply the law without waiting for trial.

There is nothing to try if the facts are undisputed. Trial would be a waste of time and resources.

Question 16

What are the four general steps for a court to take in order to determine whether or not to grant a motion for summary judgement.

Answer 16

1) identify the applicable substantive law and identify what facts are material.
2) Examine whether the evidence offered by moving party shows no genuine dispute of material fact and entitled to judgement as a matter of law.
3) Non-moving party has the burden shifted to them: court considers whether non-moving party has identified specific facts in the record that would create a genuine dispute.
4) Court would grant or deny motion for summary judgment

Question 17

True or false: Under Rule 56(c)(1)(A), all discovery materials automatically qualify for consideration on summary judgment

Answer 17

False. They must be admissible under the rules of evidence before they are properly considered as part of the record for summary judgment.

It’s designed that way to avoid a trial that would be unnecessary. If courts could consider evidence that could not subsequently be admitted at trial, the purpose of the motion for summary judgment would be defeated.

Question 18

Are there any exceptions to Rule 56(c)(1)(A) re: discovery materials that qualify for consideration on summary judgment?

Answer 18

Yes! Rule 56(c)(4) has a narrow exception for affidavits and declarations (written witness statements). This expressly permits the presentation of such evidence by affidavit or declaration, even though it would not be admissible in that form at trial.

The rule requires that these written statements “must be made on personal knowledge and set out facts that would be admissible in evidence”

Question 19

Which of the following (if any) could the court properly consider as part of the record for deciding summary judgement in a case

A) An affidavit by plaintiff’s lawyer, describing what happened during the events of the case

B) A newspaper article about the case written by a journalist who collected her facts by telephone interviews with Plaintiff and several anonymous witnesses

C) Security footage at the date and time where the incident occured

E) Deposition testimony by a witness who had “heard around town” information about the plaintiff prior to the crime in question.

Answer 19

A) Nope, since affidavits must be be made based on personal knowledge according to Rule 56(c)(4) - either as an eye witness or a percipient witness.

B) Nope, since anonymous testimony doesn’t hold up in a court of law. We also don’t know if the reporter spoke directly to sources and the reporter’s info is hearsay.

C) If it could be authenticated, it could likely be considered

D) Same as C, if it can be authenticated, it could be considered

E) Nope, because deposition shouldn’t be based on hearsay

Question 20

What is the standard of proof for civil actions? In summary judgment?

Answer 20

Preponderance of the evidence. Plaintiff carries the burden of convincing the finder of fact at trial that the evidence on each element of the claim preponderates in his favor.

For Summary Judgment, trial judge’s inquiry is whether the evidence presented is such that a reasonable jury could not find by a preponderance of the evidence for the non-moving party.

Question 21

True or false: Rule 56 expressly looks to genuine disputes of material fact and law

Answer 21

False. Rule 56 looks to genuine disputes of material fact, not of law. The difficulty of a legal issue is not a reason to insist on a trial. Judges have to “bite the bullet” when the record is adequate and material facts are undisputed and decide the hard question of law.

Question 22

Is it acceptable for a judge to deny summary judgement and make the parties go to trial because she concludes that a fuller record may clarify the correct legal analysis?

Answer 22

Yes. SCOTUS has approved the deferral of decision in such circumstances. “It is good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings based on litigation or on a comprehensive statement of agreed facts.”

Question 23

What is the summary judgment standard?

Answer 23

Whether a reasonable jury could return a verdict for the nonmoving party. NOT whether a reasonable jury would find for the nonmoving party.

Question 24

Plaintiff Peterson sues police officer Dugan for killing her dog during a search pursuant to a search warrant. Peterson’s uncorroborated testimony is that after she locked her dog in a bathroom at Dugan’s request, Dugan opened the bathroom door and shot the dog once the dog got up. Dugan’s temsitomy is that the dog attacked her, a version corroborated by other officers.

Should a judge grant summary judgement to officer Dugan?

Answer 24

No, even with Peterson’s uncorroborated testimony, it’s obvious that the nature of P’s testimony had nothing at all to do with the question before the district court: Did Peterson present a genuine dispute of material fact as to whether the dog posed an imminent threat to Dugan’s safety?

Corroborated testimony is an issue of credibility for the jury to decide, not the district court. Thus, the district court should believe Peterson and not make credibility determinations.

Question 25

How are Rules 56 and 43(c) different?

Answer 25

Rule 56 authorizes summary judgment ONLY if the record shows that there is no genuine dispute… if there is such a dispute, summary judgment is denied. It is the existence of the genuine dispute (not its resolution) that is key to summary judgment.

Rule 43(c) authorizes judges to assist in fact finding in order to resolve disputes of fact (ex: motion to dismiss for lack of SMJ). In these situations, judges are empowered to decide factual disputes before trial and without a jury.

Question 26

How is a motion for summary judgment different than Rule 12(b)(6) motion for failure to state a claim?

Answer 26

12(b)(6) asks the court to make a decision as a matter of law on presumptively undisputed facts, like a motion for summary judgment. BUT the record for decision is different.

12(b)(6) is decided strictly on factual allegations contained in the complaint which are presumed true for purposes of the motion.

Summary judgment motion is decided on the record of facts contained in the supporting materials AND any opposing materials that would be admissible at trial.

Question 27

What is the difference between motion for summary judgment and motion for directed verdict as a matter of law?

Answer 27

Timing and the record for decision. SJ motions are usually made before trial and decided on documentary evidence. Directed verdict motions are made at trial and decided on the evidence that has been admitted.

Question 28

True or false: If a 12(c) motion for judgment on the pleadings (with the record for decision being the complaint and answer and reply) can be converted into a motion for SJ by movant’s presentation of material outside the compliant in support of the motion.

Answer 28

True, if the court allows such materials it must treat the motion as one for SJ under Rule 12(d).

Question 29

What is Proof-of-the-Elements Summary Judgment?

Answer 29

If the moving party would have the burden of proof on a claim or defense at trial, then her burden on summary judgment is to show that there is no genuine dispute of material facts about each and every element of her claim or defense.

Question 30

True or false: Plaintiffs are the only parties who may have a burden of proof at trial.

Answer 30

False: When a defendant pleads an affirmative defense, they usually have the burden of proving that defense at trial.

Question 31

True or false: A court may grant summary judgment as to one or fewer than all claims (or parties) even as to part of a claim and leaving the rest for trial.

Answer 31

Ture. Rule 56(a), where partial summary judgment does not decide the entire case.

Question 32

What is Disproof-of-an-Element Motion for Summary Judgment? Who can file one?

Answer 32

Usually defendants file this motion. Seeking SJ by disproving an element in the claim against him. Much easier for defendants to disprove an element.

Movant must provide real evidence to prove the nonexistence of the element in P’s claim that isn’t true (disprove it).

Ex: Slaven v. City of Salem where City of Salem moved for SJ because they were able to disprove an essential element of Slaven’s tort claim (that the city knew/should have known of the dead prisoner’s state of mind)

Question 33

In an Absence of Proof Motion for SJ, who has the burden of showing an absence of material fact?

Answer 33

The nonmoving party has the burden of establishing the nonexistence of a genuine issue

Question 34

What functions does a directed verdict/judgment as a matter of law serve?

Answer 34

1) Notify a non-moving party that they have failed to offer evidence concerning a key element of the case, giving them an opportunity to correct the omission. Helps to ensure a case turns on its merits and not on an inadvertent omission of trial testimony.
2) Saves moving party the time and expense of presenting his side of the case and avoiding the risk of a jury in the nonmoving party’s favor. Plus the judge and jury would not have to hear the rest of a case where the outcome is clear.

Question 35

If a judge denies a Rule 50(a) motion and the case goes to jury, rendering a verdict in favor of the nonmoving party… can the judge exercise any gatekeeping authority at this stage of the case?

Answer 35

Yes. Rule 50(b) authorizes judges to grant a “renewed” motion for judgement as a matter of law, assuming the original moving party renews his motion for judgment as a matter of law.

By granting this renewed motion, the judge has determined that a party has offered so little evidence that the facts can be determined as a matter of law.

Question 36

True or false: Judges grant Rule 50 motions for directed verdict quite frequently

Answer 36

False. Judges have an incentive to deny Rule 50 motions because the nonmoving party is likely to appeal and if the appellate court agrees with the nonmoving party, the court will remand the case for a retrial.

Retrials are time-consuming and expensive, so judges reserve directed verdicts for cases where the argument for doing so is strong and likelihood of reversal is low.

Question 37

Why would courts be less reluctant to grant a Rule 50(b) renewed motion versus a 50(a) directed verdict motion?

Answer 37

Under 50(b) there is no need for a retrial because the jury has already heard the case and rendered a verdict, that the judge renders unsupported.

Under 50(a) a retrial could be likely

Question 38

How are summary judgments and judgments as a matter of law different? How are they the same?

Answer 38

Different: Examination of different information
Similar: Standard applied to each type of judgment - judge tries to determine whether any reasonable jury could render a verdict in favor of the non-moving party

Question 39

How can a court determine whether evidence is “legally sufficient” in judgment as a matter of law?

Answer 39

“Without weighing the credibility of witnesses or otherwise considering the weight of the evidence, there could be but one conclusion as to the verdict as reasonable… persons could have reached”

Courts are not supposed to determine which side of the case is more credible. Instead, the court has to consider the strength of the non-moving party’s evidence relative to the moving party’s, at least to some degree.

This helps the court determine whether the evidence is “sufficient” to justify a verdict in the non-moving party’s favor.

Question 40

True or false: According to Rule 50, Plaintiffs can’t offer such overwhelming evidence in favor of liability that a court could enter judgment as a matter of law for the plaintiff.

Answer 40

False. Such cases in favor of plaintiff arise less frequently but are not precluded by Rule 50.

Question 41

What is the duty of the party with the burden of persuasion? What about the duty of the party with the burden of production

Answer 41

Burden of Persuasion: Must persuade the fact-finder, to the necessary degree of certainty (civil cases - by preponderance of the evidence), that it should prevail in the case.

Burden of Production: Burden to produce sufficient evidence to avoid an adverse judgment as a matter of law on a particular matter.

Question 42

True or false: In civil cases it is usually the plaintiff who has the burden of persuasion

Answer 42

True. The burden of persuasion is on the plaintiff (to convince the fact-finder that defendant is liable by a preponderance of the evidence)

Question 43

How does burden of production relate to summary judgment and judgment as a matter of law.

Answer 43

When a defendant moves for SJ on a particular matter, defendant has the initial burden of production and must demonstrate there is no genuine dispute of any material fact.

When a defendant moves for judgment as a matter of law, he has the initial burden of production.

If D fails to produce in either case, the motion is denied by the court.

Question 44

Explain the “scintilla” alternative to judgment as a matter of law

Answer 44

A court should only consider the non-moving party’s evidence. If there non-moving party (usually plaintiff) has a mere “scintilla” of evidence in support of its position, motion will be denied.

Question 45

A plaintiff presents her case at trial and fails to offer evidence proving that defendant caused the harm in her claim. After plaintiff rests her case, defendant’s lawyer leaps from her chair and says, “Your honor, we move for judgment as a matter of law under Rule 50(a)”

Is this sufficient?

Answer 45

No. Rule 50(a) doesn’t require a writing but does require moving party to specify the law and facts that entitle movant for judgment.

This exists so that cases are decided on their merits, not on an inadvertent omission during trial. Here, Plaintiff would be deprived of the opportunity to know why her case was deficient and present additional evidence to submit to factfinder or motion is granted.

Question 46

True or false: There are certain limitations to how many Rule 50(a) motions a party can make.

Answer 46

False. There are not limitations on the number of Rule 50(a) motions, however there is a limitation that the motion cannot be made until a party has been fully heard on an issue.

Question 47

True or false: A 50(a) motion can be made before the non-moving party presents her entire case

Answer 47

True, Rule 50(a)(1) says that a court can grant a judgment as a matter of law after a party has been fully heard on an issue… a party can make a motion after the non-moving party has an opportunity to present all of her evidence on the issue that is subject of the motion.

Even if it’s not the end of the nonmoving party’s entire case.

Question 48

True or false: Rule 50(a) motion can be brought after a jury finds in favor of the nonmoving party.

Answer 48

False. If a party fails to make a Rule 50(a) motion during trial, the party has waived the opportunity.

This is to prevent sandbagging and ensure that cases do not turn on inadvertent omissions of trial testimony. This gives adversaries time to fix the problem before going to a jury to make the decision.

Question 49

Can a losing party in a case appeal a denial of Rule 50 motion?

Answer 49

It depends. A party’s Rule 50(a) motion cannot be appealed unless the motion is renewed pursuant to Rule 50(b). If a party fails to ask the district judge to make that determination in a post-verdict motion, the party waives the issue on appeal.

Question 50

What standard if review do courts appellate courts apply in a review of question of law?

Answer 50

De novo. An appellate court decides legal issues without any presumption that the lower court resolved them correctly. Also, an appellate court gives substantial deference to a trial court’s factual findings, adopting them unless they are “clearly erroneous.”

Question 51

What are the advantages and disadvantages of using pattern jury instructions?

Answer 51

Advantages:

1) The statement must have been good enough to be used in a previous case
2) Using it again may be safer than “winging it” on your own

Disadvantages:

1) Not binding precedent (may be obsolete or not tailored to facts in your case)
2) May be erroneous, not good law anymore
3) If this is a new territory of law, no pattern may exist

Question 52

At what time in the trial would a party object to jury instructions in order to preserve for appeal?

Answer 52

Rule 51: At the party’s first opportunity, either when the judge informs the parties of the proposed instructions before giving them to the jury OR when the court actually instructed the jury.

Question 53

When would an objection re: jury instructions made in plain error that is not made in a timely manner be considered by a court?

Answer 53

Rule 51 also allows an “escape hatch” for plain error. Parties that do not make a timely objection will be considered IF the error in jury instructions “affects substantial rights”

Error must be obvious and clear under current law, affect substantial rights, threaten a miscarriage of justice = high stakes stuff

Question 54

How much can judges comment on evidence provided in a trial?

Answer 54

Though there’s no bright line rule, federal judges should not influence juries and usurp its function. Judges are not prohibited from commenting on evidence.

Question 55

What are the differences between a general, special, and blended verdict?

Answer 55

General: Ask jurors to answer a question, “Who won?” and whether or not the winning party is entitled to a monetary award. If so, how much?

Special: Rule 49(a) “special written finding upon each issue of fact”

Blended: Rule 49(b) allows the court to give the jury both the general verdict form and written interrogatories on particular issues of fact. Also directs the court on what to do when general verdict and answers to interrogatories are not harmonious.

Question 56

When can a new trial be granted?

Answer 56

NOT when plaintiff provided legally sufficient evidence, but when a judge realizes a jury’s verdict was wrong, jury instructions were improper, or even if jurors acted improperly.

Rule 59: “for any reason for which a new trial has heretofore been granted” in a jury case. A trial judge has the discretion to grant a new trial in a jury case if she finds that the verdict is “clearly erroneous” and would result in “manifest injustice” or leaves with a “definite and firm conviction of error.”

Question 57

What are the three categories in which a judge could order a new trial under Rule 59?

Answer 57

1) Verdict is wrong because it is not supported by “weight of the evidence” —jury made an erroneous finding or gave an erroneous answer, or its dollar verdict was too small or too large based on the evidence.
2) Process error: Error occurred in the conduct of trial or jury’s deliberations. Even if the verdict is supported by weight of the evidence, the error could affect the verdict.
3) Losing party finds new evidence after the trial that would materially have affected the outcome. VERY RARE.

Question 58

True or false: A party can “renew” a motion for a directed verdict (JMOL) that it has not previously made

Answer 58

False. Rule 50(a)(2): There is nothing to renew if the motion had not been previously made.

Question 59

True or false: There is no requirement that a marty move for a new trial before the case is submitted to the jury

Answer 59

True. Rule 59: does not speak of “renewed’ motion for trial, even authorizing a new trial on the court’s own initiative within 28 days after entry of judgment, for any reason for which a party could have sought new trial.

Question 60

Contrast the new trial standard with that of JMOL

Answer 60

JMOL motion: tests sufficiency of the evidence to support a jury verdict by reasonable jury standard. Court does NOT weigh the evidence, does NOT judge credibility of witnesses. Court construes all reasonable doubts against movant.

If a court grants a JMOL motion, it’s taking the case from the jury and deciding it “as a matter of law”.

New Trial Motion: assumes that was sufficient evidence to reach the jury and the jury verdict is reasonable, but tests whether the verdict is clearly erroneous. Either because the weight of the evidence is insufficient to support the verdict or there could have been a flawed trial process.

Courts weigh the evidence and assess credibility, but does not resolve doubts against movant. If a new trial motion is granted by the court, it’s rejecting the first jury’s verdict but does not decide the case as a matter of law.

Question 61

True or false: If a new trial is granted under Rule 59, this means there’s a winner and a loser by the court’s standards

Answer 61

False. A grant of new trial rejects the first jury’s verdict and affords the parties an opportunity to present the case to a new jury. The court does not decide as a matter of law.

Question 62

How would you role on a JMOL or for new trial if you had views on the evidence as follows?

A) I agree with the verdict
B) I would not have decided the case that way but I can’t say the verdict was wrong
C) I think the verdict was clearly wrong but can’t say the jury was unreasonable
D) I think the verdict was unreasonable; no reasonable jury could have reached this verdict

Answer 62

A) let the verdict stand, no basis for new trial or JMOL

B) Let it stand, if the court doesn’t think the verdict was wrong it can hardly think it’s unreasonable and there’s no basis for JMOL. And to substitute the judge’s decision for the jury verdict without any sort of justification for correcting an error would be a serious invasion of right to jury trial.

C) If the court thinks there’s a clearly erroneous issue with the verdict, in light of the complexity and length of trial, a new trial would promote the right to a jury trial from peers. If not definitive and firm conviction, let it stand.

D) Court could grant JMOL with a difference this wide between judge and jury, on the theory that the verdict winner failed to meet his burden to produce sufficient evidence for a reasonable jury to find for him.

Question 63

What is a remittitur option and does it violate the US Constitution?

Answer 63

Remittitur option: “blackmail” plaintiff that received an excessive amount award by asserting it would grant a new trial unless plaintiff agrees to to give back the excess verdict to defendant.

Plaintiffs do not have to accept that option, but if he does not, there will be a new trial and it’s unlikely he will get the same (excessive) award. He may get nothing.

This is Constitution, as the verdict after remittitur was “part” of the original jury verdict

Question 64

True or false: A federal judge can “blackmail” defendants to sweeten the pot or suffer a new trial

Answer 64

False. Additur: the amount by which the verdict would need to be increased to be supported by the weight of the evidence. This is not part of the jury’s original verdict, thus inconsistent with the right to jury trial.

However, some state courts have held that additur is available under state law.

Question 65

True or false: If a weight-of-evidence challenge to verdict succeeds on one of several claims or defenses, a new trial could be limited to that claim or defense.

Answer 65

True. Rule 59(a)(1): “new trial on all or some of the issues…”

Question 66

Can a party file motion for a new trial even before a final judgment is made?

Answer 66

Yes. Rule 59(b) requires only that a motion for a new trial be filed NO LATER THAN 29 days after entry of final judgment.

When a Rule 59 motion is timely, the motion tolls the usual 30-day time limit for filing a notice of appeal in federal courts. The time limit for appeal does not start running until the court rules on the motion for a new trial and enters final judgment.

Question 67

True or false: a party who fails to renew its motion for judgment as a matter of law cannot appeal and seek a new trial on the basis of insufficiency of the evidence.

Answer 67

True. To preserve your appellate options in a jury case, move for JMOL before the verdict. After the adverse verdict, renew the motion and move for a new trial in the alternative.

In a non-jury case, if you lose, move for a new trial.

Question 68

In reviewing questions of law in the trial process, what standard of review does an appellate court use?

Answer 68

Trial process decisions: de novo (independently without deference to the trial judge), because the appellate courts are deferential to the trial court’s determination of the harm the error caused.

Because the trial judge was present and often better able to appraise the harm vs. appellate judges who have only the record for review

Question 69

True or false: A losing party can motion for a JMOL and a new trial at the same time

Answer 69

True. Rule 50(b) expressly allows this. Parties will often file both, with the new trial motion as a “fallback” alternative”

Question 70

What is the dilemma for losing parties who motion for JMOL and new trial at the same time and then JMOL is granted?

Answer 70

If the trial court grants JMOL there’s no reason to decide the motion for a new trial. Still, the movant may be entitled to a new trial and the court of appeals would have to remand to the trial judge for a belated ruling on the new trial.

Rule 50(c): forces trial court to “conditionally rule on any motion for new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. If judgment is reversed, new trial proceeds. If it is denied, the movant can assert that error on its appeal.

Question 71

True or false: A court may disregard all errors and defects from the jury that do not affect a party’s substantial rights

Answer 71

True. A court will not order a new trial just because a juror committed an error, unless the error was prejudicial in the way it affected the verdict

Question 72

Which of the following may a judge take testimony on a motion for a new trail, deciding whether the jury has acted improperly:

A) Jury misunderstood the judge’s instructions on proximate causation where the foreman insisted it meant the same thing as direct causation

B) Jury consulted Webster’s Dictionary to decide what proximate causation meant

C) Jury speculated on whether awarding a large verdict would impact insurance rates

D) Juror read a passage from the Bible about money-lending to the jury in an action on a debt

Answer 72

A) Not extraneous, as it occurred during deliberation and it bears on the jurors’ processes. This would likely cause more problems than solve for the court, so this would not be brought up as improper jury actions.

B) Extraneous information, outside the record, is involved. However, the dictionary is often a common experience of a juror. A court would not likely find this to be prejudicial or improper behavior.

C) Speculation on the juror’s part can go either way, where some courts barr evidence of general speculation. Others may say that speculation is party of a jury’s common experience.

D) The Bible is still party of many people’s common experiences. It is not unusual for a juror to carry a Bible with them to court.

Question 73

A process error is grounds for a new trial only if it…

Answer 73

1) Was timely
2) Specifically called to the court’s attention
3) Prejudicial - affected substantial rights of the complaining party

Question 74

True or false: A Rule 60(b) is a substitute for appeal

Answer 74

False. Rule 60(b) is not a substitute for appeal. Finality should not be lightly disturbed. Those moving for relief from judgment must consider and protect good faith reliance. The movant must show it has a meritorious claim or defense.

Question 75

*Rosemary Thyme Restaurant, a nationwide chain, was sued in federal court by a former female server for sexual harassment under federal law. Mid-way through discovery, the court set a pre-trial conference for purposes of exploring settlement, as provided by Rule 16(a)(5). In its scheduling order for the conference, the court ordered the restaurant to bring a company representative with ultimate authority to settle the case.

On the day of the conference, the restaurant’s attorney brought a senior vice president. After meeting with both sides, the court strongly encouraged the restaurant to consider settling immediately. The senior vice president replied, “I don’t have the authority to consider that—only the CEO does.” When the court asked to get the CEO on the phone, the restaurant’s attorney responded that the CEO was out of the country and unreachable. The court then issued an order barring the restaurant from presenting evidence on its affirmative defense at trial. Which of the following is an accurate statement about this sanction?

Answer 75

The court’s sanction barring Rosemary Thyme’s affirmative defense is permissible but just one option within the court’s discretion.

Rule 16(c)(1) states that the court “may require that a party or its representative be present or reasonably available by other means to consider a possible settlement.” By bringing a senior vice president who had no authority to consider settling and failing to make available the CEO with such authority, Rosemary Thyme disobeyed the court’s scheduling order. Rule 16(f)(1) states that the court may, on its own, issue “any just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party …fails to obey a scheduling order.” Rule 37(b)(2)(A)(ii) authorizes the sanction of barring a defense.

Question 76

*Shareholders of Reinhart, Inc. sued the company in federal court for federal securities fraud. Reinhart filed a motion to dismiss the shareholders’ complaint under Rule 12(b)(6).

Sixty days after Reinhart filed its 12(b)(6) motion, the court granted the motion, but did so without prejudice, and gave the shareholders leave to amend.

In its initial scheduling order, issued before the court’s 12(b)(6) ruling, the court stated that the parties must file any amended pleading within 30 days following a ruling on a motion to dismiss or a motion to strike. The shareholders filed an amended complaint 28 days after the court’s 12(b)(6) ruling. Reinhart filed a motion to strike the amended complaint, contending that it failed to comply with Rule 15(a)(1)(B), which sets a 21-day deadline for amending a pleading as a matter of course following the service of a responsive pleading.

How should the court rule on Reinhart’s motion to strike?

Answer 76

The court should deny Reinhart’s motion, because the scheduling order’s 30-day deadline applies.

Rule 16(b)(3)(A) requires the court’s scheduling order to limit the time to amend pleadings. Here, the court’s order required amended pleadings to be filed within 30 days of the court’s ruling on a motion to dismiss or a motion to strike. Along with the court’s 12(b)(6) ruling, this order gave the shareholders automatic leave to file an amended complaint, provided that filing occurred within 30 days of the court’s 12(b)(6) ruling. Here, the shareholders met that deadline by amending within 28 days.

Question 77

*Plaintiff is a member of the City Council in Clearwater, California. Defendant is a newspaper editor who lives and works in Washington and covers west coast politics. During Plaintiff’s most recent electoral campaign, Defendant published an article about Plaintiff that stated, “Plaintiff’s campaign is built on a pack of lies. He says he graduated from law school, but he never made it through kindergarten.”

Plaintiff filed a lawsuit in federal district court in Washington alleging libel, where the burden at trial is on the Plaintiff to prove by clear and convincing evidence that, inter alia, Defendant acted with actual malice. The complaint survived a motion to dismiss and, after discovery, Defendant moved for summary judgment.

What standard will the district court use to determine whether there is a genuine dispute as to any material fact?

Answer 77

The court will determine whether there is sufficient evidence under the clear and convincing evidence standard to establish a genuine dispute that Defendant acted with actual malice.

Under the federal rule, a motion for summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” FRCP 56(a).

On such a motion, the question is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that the he did not.” Anderson v. Liberty Lobby, 477 U.S. 242, 254 (1986) (emphasis in original).

The evidentiary burden in libel cases is that of clear and convincing evidence, and a showing of actual malice is a material issue of fact. If Defendant shows by clear and convincing evidence that he did not act with actual malice, it follows that no rational finder of fact could find the inverse—that Defendant did act with actual malice by clear and convincing evidence and there would be no genuine dispute as to this material fact.

Question 78

*Plaintiff is a private gaming company. Defendant is a municipality that licenses gaming companies. Company is a competitor gaming company. Plaintiff sued Defendant and Company for federal antitrust violations alleging that the defendants conspired to monopolize trade in the gaming industry. Plaintiff’s complaint joined the federal antitrust claim with a state tort claim alleging intentional interference with prospective business advantage.

After the defendants answered the complaint, Plaintiff filed a notice of dismissal of the state tort claim against Defendant with prejudice. Plaintiff also filed a notice of dismissal of the state tort claim against Company, without stating whether the dismissal was with prejudice. The district court ordered both claims dismissed with prejudice.

On review, would an appeals court find that the district court abused its discretion when it dismissed the claim against Company with prejudice?

Answer 78

No, because the court had discretion to dismiss the claim with prejudice.

Under FRCP 41(a)(2), the dismissal of an action by order of the court can be with prejudice or without prejudice, and the decision is within the court’s discretion.

On the facts presented, Plaintiff failed to state whether the voluntary dismissal that she sought was with prejudice or not. Under these circumstances it has been held that it is not an abuse of discretion if the court orders dismissal with prejudice. Indeed, some courts hold that it is not an abuse of discretion if the court orders the dismissal with prejudice without giving notice of its intention to the plaintiff and without giving the plaintiff an opportunity to withdraw the request.

In considering whether a court has abused its discretion in dismissing without prejudice, some courts consider whether the defendant “would suffer some plain legal prejudice other than the mere prospect of a second lawsuit,” Other courts consider multiple factors “including (1) the plaintiff’s diligence in bringing the motion, (2) any undue vexatiousness on the plaintiff’s part, (3) the extent to which the suit has progressed, including the defendant’s efforts and expense in preparation for trial, (4) the duplicative expense of re-litigation, and (5) the adequacy of the plaintiff’s explanation for the need to dismiss.”

Question 79

Plaintiff brought a breach of contract action against Defendant in federal court on the basis of diversity jurisdiction. The case survived summary judgment, and was tried before a jury. At the close of Plaintiff’s case, Defendant proceeded to present three witnesses. The jury found in favor of Plaintiff. Sixty days after entry of judgment, Defendant moves for judgment as a matter of law under FRCP 50(b).

Can the trial judge grant Defendant’s motion?

Answer 79

The trial judge cannot grant the motion, because Defendant failed to make a motion for judgment as a matter of law before the case was submitted to the jury.

A motion for judgment as a matter of law [notwithstanding the verdict] (JNOV) under FRCP 50(b) is essentially a renewal of a motion for a judgment made pre-verdict and cannot be made unless the pre-verdict motion under FRCP 50(a) was made. Indeed, the motion JNOV generally may include only those issues included in the earlier motion. The rule provides that “[i]f the court does not grant a motion for judgment as a matter of law made under Rule 50(a) … the movant may file a renewed motion…”

On the facts presented Defendant failed to make a motion before the case was submitted to the jury and therefore cannot move for judgment notwithstanding the verdict.

Question 80

Plaintiff is a photographer. He lends 20 of his photographs to Defendant, the administrator of a museum, to be featured in an upcoming exhibit. Plaintiff’s contract with Defendant provides, “Museum agrees to return all photographs in a timely way and in the same condition in which they are received.” After the exhibit ends, Defendant packs up the photographs and mistakenly puts the boxed photographs in a recycling bin, where they are compressed beyond recognition. Plaintiff sues Defendant in federal court for breach of contract, based on diversity jurisdiction, and seeks to recover the market value of his photographs. The evidence presented to the jury shows that none of Plaintiff’s photographs has ever sold for more than $5,000 a print. The jury returns a verdict of $1 million. The judge agrees that Defendant ought to be held liable, but believes that the jury’s award reflects an arithmetic error and that the damages were intended to be $100,000.

After judgment is entered on the jury’s verdict for Plaintiff, Defendant moves for judgment as a matter of law. What is the best way for the judge to proceed?

Answer 80

The judge on her own initiative should conditionally order a new trial unless Plaintiff agrees to a reduction of the damages to an amount set by the court.

The district judge has discretion, on her own initiative, to order a new trial “for any reason that would justify granting one on a party’s motion,” FRCP 59(d), and these reasons include that the verdict was “against the weight of the evidence.” Moreover, the district judge may enter a conditional order of remittitur, “compelling a plaintiff to choose between reduction of an excessive verdict and a new trial.

Question 81

*Zelda Chen sued Abel Teferi for negligence in a federal diversity case after their cars collided and Chen suffered severe injuries. Instructing the jury at the close of the case, the judge stated: (1) “if you find that the defendant was a contributing cause of the plaintiff’s injuries, you must award full damages”; and (2) “if you find that the defendant was a contributing cause of the plaintiff’s injuries, but that plaintiff’s own negligence also contributed to her injuries, then you must reduce the damages in proportion to the plaintiff’s negligence.” The jury returned a $1 million verdict for Chen, but the verdict did not reveal which instruction the jury followed. Teferi did not raise any objections to the jury instructions at the jury charge conference held by the judge. If Teferi files a Rule 59 motion for a new trial challenging the jury instructions as internally inconsistent, how should the court rule?

Answer 81

The court should deny Teferi’s motion, because Teferi did not raise a timely objection to the instructions.

Rule 51(b) requires the court to give parties an opportunity to object to jury instructions on the record before the jury hears them, and Rule 51(c)(1) requires a party to lodge any objections at that time, “on the record, stating distinctly the matter objected to and the grounds for the objection.” Here, the court held a jury charge conference, giving the parties an opportunity to object to proposed instructions, but Teferi did not object at that time. Raising a jury instruction issue for the first time in a post-trial motion is too late.