Civil Procedure Outline PDF

**Introduction** [Title 28: US Code § 2072; Rules of Procedure and Evidence] - FRCP: rules that inform litigants and the trial judge about various procedural issues that must be determined along the way. - Rules Enabling Act of 1934: Supreme Court to disseminate set of rules a...

**Introduction** [Title 28: US Code § 2072; Rules of Procedure and Evidence] - FRCP: rules that inform litigants and the trial judge about various procedural issues that must be determined along the way. - Rules Enabling Act of 1934: Supreme Court to disseminate set of rules about practice and procedure, Judges are bound to these rules and can't create new ones. [Rule 1:] governs the procedure in all civil actions and proceedings in US District courts...they should be construed, administered and employed by the court and parties to secure the just, speedy and inexpensive determination of every action and proceeding. [U.S. Constitution Amendments: ] - Amendment V: "No person shall be deprived of life, liberty or property, without due process of law" - Protects the individual - Amendment XIV: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of U.S. nor shall any state deprive any person of life, liberty or property, without due process of law" - Limits the states - Amendment X: "powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people." [Goals of Civil Procedure]: what procedure will get us to the result to advance these underlying goals? - Accuracy: want to get it "right" - Efficiency: difficult to achieve accuracy if cost is prohibitive, balance between safeguards in place to ensure accuracy with need for speedy/efficient resolution - Impartiality: disinterested arbiter, checks and balances to assure elimination of biases - Predictability: rules that help us evaluate what the outcome is given set of facts - Finality: desire to put cases to rest, result in final resolution, uphold/maintain predictability of the system **The Pleadings** [Code Pleading Era (1848-?)] A. Common Law Pleadings were Writ of Mandates aka forms of actions a. For pleading to be valid under C.L. Pleading had to use correct form and words B. Starting in 1848, States had individualized standards for code pleading that contained similar language to (eventually) Rule 8. b. Cal. Code of Civ. Pro § 425.10: "Statement of facts, constituting of cause of action in ordinary and concise language" i. shows a shift towards facts and ordinary language in pleadings. c. G.S. § 1-122: "Complaint must contain plain and concise statement of the facts constituting a cause of action." ii. *Gillespie v. Goodyear Service Stores (N.C. 1963):* Court uses the legal standard to say that a complaint must allege the material, essential, and ultimate facts upon which the plaintiff's right of action is based aka **"the facts required to establish each element of the cause of action."** 1. "Facts constituting a claim requires more than P's legal conclusions" need to provide who, what, where, when C. F.R.C.P. adopted in 1938 to standardize [(see Rule 8)] d. Specificity in Pleading: acts as 1) Notice to defendant (grounds for the claims) 2) notice to the court of the issues/facts to be resolved (evidence to be explored), and 3) merits screening (ID baseless claims and terminate them early) [Rule 3: Commencing an Action] [Rule 4: Summons ] [Rule 7: Pleadings Allowed] [Rule 8: ] 8(a)(2): Specificity Required in Pleading 1. A claim must contain: a. A **short and plain statement of the grounds** for the courts jurisdiction b. **Showing** that the pleader is entitled to relief. c. The demand for the relief sought, may include relief in the alternative or different types of relief. 2. Aims to give Defendant **fair notice of the grounds** on which a claim is brought to allow for discovery. d. *Conley v. Gibson (1957):* Rule doesn't require claimant to set out the facts in detail... just requires a short and plain statement that gives the D. fair notice of grounds on which the claim rests. e. *Swierkiewicz v.* *Sorema (2002):* complaint details the events leading up to termination, provided relevant dates, included ages/nationalities of at least some of persons involved with termination. 3. Requires "**showing**" entitlement to relief f. *Iqbal v. Ashcroft:* complaint has alleged but not shown. Claims of discrimintatory policy and alleging that Defendants "helped create" by being principal architect/instrumental are not tangible enough and connected to identifiable, verifiable events. i. Outcome: see 5) Two-Step Test 4. This **does not require more evidence** but rather asks for facts that state a **plausible claim for relief.** g. *Twombly v. Bell Atlantic:* claim requires more than labels and conclusions and a formulaic recitation of the elements. Factual allegations must raise relief above speculative and be plausible on its face. ii. Does not impose a heightened fact pleading of specifics, no need to set out facts in detail iii. Does not impose a probability requirement, "We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face" iv. Showing rather than blanket assertion 5. Iqbal Two-Step Test h. **Identify Conclusory Allegations:** legal conclusions that presuppose the truth of the claim by restating the legal cause of action. Court grants legal facts the presumption of truth v. [Mere Recitations of the Elements] 1. Allegations of the claim that do not provide information beyond the elements stated in the statute or act. 2. Do not provide factual material to connect the legal claim with the allegations vi. [Naked Assertions devoid of further factual enhancement] [] 3. Allegations that are too vague to be sufficiently tangible or verifiable. 4. Reflects on the grounds for the claim as threadbare assertions don't give the Defendant enough grounds or a good starting point for discovery. i. **Plausibility**: compare the conclusory allegations with the well-pleaded facts to determine if the plaintiff's desired conclusion is plausible. Not akin to a probability requirement but asks for more than a sheer possibility that D. acted unlawfully. vii. Outline the elements of the act or definitions of the statute. viii. Address each element of the cause of action is plausible. 5. Context specific task, drawing on courts experience ix. Address alternative explanations that must be so obvious as to foreclose the plausibility of the plaintiff's desired conclusion 8(b): The Answer 1. In responding to a pleading, a party must: A. state in short and plain terms its **defenses** to each claim asserted against it a. Negative Defenses: seek to disprove an element of P's claim b. Affirmative Defenses: bringing information outside, there are other reasons this occurred, injecting new facts amounting to new dispute i. "even if everything you say is true and your claim stands, I'm still right because of..." ii. see 8(c) B. **admit or deny** the allegations asserted against it by an opposing party. 2. Denial must **fairly respond to the substance** of the allegation 3. Party that intends in good faith to **deny all the allegations of a pleading. = general denial** 4. Party that intends in good faith to deny only part of an allegation **must admit the part that is true** and deny the rest. 5. **Lacking knowledge of information**: party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, **statement has effect of denial.** a. *David. v. Crompton & Knowles:* in answer, wants to amend its answer to deny. obviously one as to which D. has knowledge or information... a matter of record peculiarly within the control and knowledge of the D. 8(c): Affirmative Defenses 1. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense including: a. Seeks to avoid liability without necessarily negating a new element of P's claim instead, D injects new facts amounting to legal excuse or justification for conduct alleged. b. Ex. arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, failure of consideration, fraud, injury by fellow servant, res judicata, statute of frauds, statute of limitations, waiver etc. [What Remains of Notice Pleading] 1. *Erickson v. Pardus (2007):* pro se prisoner suit, alleges that his 8^th^ amendment rights are violated for withholding medication, SCOTUS upholds. a. Rule 8: only requires notice, not specific facts. "plausibly alleged that conduct, viewed in context, could be reasonably understood to convey a threat of adverse government action." 2. *NRA v. Vullo (2024):* DFS government employee violated First Amendment by threatening businesses with govt. regulation for doing business with NRA. b. Plausibility: could be considered that she was carrying out regulatory duties, but when taking the allegations holistically and together, it is plausible. The facts and press materials show reinforce plausibility (vs. Iqbal where they had no "paper trail") 3. *Palin v. NYT (2019):* Journalist's behavior is more plausibly consistent with making an unintended mistake than acting with actual malice. Test is plausible, not whether it is less plausible than alternative explanation. [Rule 9: Specificity Required in Pleading Fraud] Elements of Fraud: - False representation of a material fact - Intent to deceive/induce P to act in reliance - Made with knowledge of the falsity - Reasonable reliance by P - P suffered actual loss as a result of the reliance Pros/Cons of heightened standard: - Protect reputation -- mere filing of suit can damage reputations - Deter frivolous "strike suits" -- avoid incentive to quickly settle - P has equal access to evidence - Cons: hidden conduct (sophisticated defrauders), knowledge could be only within D's capacity (rigid structures of m can be relaxed) 9(b): 1. in alleging fraud or mistake, a party must **state with particularity the circumstances** constituting fraud or mistake. a. Higher degree of notice -- need specifics of who, what, where, when, how... i. *Bowyer v. Ducey:* alleging circumstances of fraud, but not specific and does not provide who, what, where. Much more likely a plausible explanation of lawful actions occurring. 2. Malice, **intent**, **knowledge**, and other conditions of a person's mind **may be alleged generally**. b. In light of surrounding facts -- is it plausible to infer that D knew statements were false and intended to deceive P? ii. similar to Rule 8(a)2 [Title 15 U.S. Code §78 U-4: PSLRA (Securities Fraud Actions)] 1. Misleading statements and omissions: complaint shall **specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading...** if an allegation... is made on information and belief, the complaint shall **state with particularity all facts on which that belief is formed.** a. Aka specifics of who/what/where/when/how. Just like 9(b)! 2. Required State of Mind: the complaint shall with respect to each act or omission alleged...**state with particularity facts giving rise to a strong inference that the defendant acted with required state of mind.** b. Strong inference v. plausible i. Strong inference: more than merely plausible, at least as compelling. ii. Plausible: whether the complaint is plausible, not whether it is less plausible than alt. explanation. c. Strong inference of intent is inherently comparative, must consider plausible, nonculpable explanations, need not be irrefutable or even the most plausible 3. *Tellabs v. Makor:* series of overstated revenue projections, demand was declining. Fraudulent intent is as compelling as any opposing inference of non-fraudulent intent. d. Strong inference means more than merely plausible, test is whether the complaint = plausible, not whether it is less plausible than the alternative explanation. e. Court is asking could a set of facts exist that would allow this to be determined as fraud f. Courts must accept all factual allegations as true. Must consider complaint in entirety, not individual allegations meet the standard and consider plausible opposing inferences. iii. Inference of scienter must be cogent and at least as compelling as any opposing inference one could draw from facts alleged. [Rule 10: Form of Pleadings] [Rule 11: Threat of Sanctions to deter Frivolous Pleading] 11(b): "Inquiry Reasonable under the Circumstances" 1. Facts alleged: you certify that you have evidence in hand or **will likely have evidentiary support** after a **reasonable opportunity for discovery**. a. Reasonableness depends on surrounding circumstances (statements are objectively reasonable, how much time for the investigation, sources of information available) i. *O'Rourke v. Dominion Voting Systems:* "Empty head but a pure heart is no justification for frivolous arguments or factual assertions...must be a substantial belief." Some effort of independent verification is required by the plaintiff's counsel. ii. *Clement v. PSE&G*: asserted different, incorrect legal claim but was a solo-practioner. "Attorneys who merely copy form complaints without conducting additional, deeper legal research" b. "Not a fishing expedition," pleading rules are not a license to make claims without any factual basis or justification. iii. *Zuk v. E.P.P.I:* allegation of renting Zuk's films in three years prior to commencing the suit were based "purely on beliefs" 2. Legal contentions: you certified that they are warranted by existing law or present a nonfrivolous argument for modifying, reversing, or creating new law. c. Novel legal argument is permitted as long as its nonfrivolous. iv. *Hunter v. Earthgrains Co. Bakery:* the legal argument that goes against court's precedence must have absolutely no chance of success. Hunter was entitled to bring an argument given competing precedent and "was entitled to contemplate seeking to have this court, correct the error." v. *Gaiardo v. Ethyl Corp:* employee handbooks don't constitute employment contracts. The goal of Rule 11 is not "wholesale fee shifting, but correction of litigation abuse... balance between need to curtail abuse and need to encourage creativity and vitality in the law." 11(c): Sanctions -- in general 1. If after notice and a reasonable opportunity to respond, if court determines that Rule 11(b) is violated, the court may impose appropriate sanction... 2. Party seeking sanctions must have a separate motion on other party, but may not file the motion if the challenged claim is withdrawn or appropriately corrected within 21 days after the service. Party must file motion for sanctions on the opposing party, not the court. If opposing party does not withdraw or correct the matter within 21 days, only then may the moving party file motion for sanctions. a. Aka Safe Harbor Period. 3. Sanction imposed must be limited to what suffices to deter repetition of the conduct, may include nonmonetary directions, paying a penalty, payment of attorney's fees etc. b. *Clement v. PSE&G:* failing to conduct a reasonable inquiry into the facts and applicable law before filing the complaint. [Rule 12: Defenses and Objections] 12(a): Time to Serve a Responsive Pleading 1. Defendant must serve an answer within **21 days after being served or within 60 days if service has been waived** 2. a(4) If court denies the motion or postpones its disposition until trial, the responsive pleading must be served within **14 days** after notice of court's action. 12(b): How to Present Defenses 1. Every defense to a claim for relief in any pleading **must be asserted in the responsive pleading.** 2. But a party may **assert the following defenses** by motion: 1. **Lack of subject matter jurisdiction** 2. **Lack of personal jurisdiction** 3. Improper venue 4. Insufficient process 5. Insufficient service of process 6. **Failure to state a claim upon which relief can be granted** i. Arguing that even if P could prove all allegations made in the complaint, still not entitled to relief, the wrong alleged in the complaint is not recognized as a violation, and there is **insufficient factual matter** to add up to legal wrong. 1. Making a rule 12(b)(6) motion is a **mechanism for seeing to dismiss a complaint** that **doesn't satisfy the applicable pleading standard** (Rule 8a2, Rule 9, or PSLRA) ii. Presume all factual allegations will be proven true, but not legal conclusions. Facts are taken in the light most favorable to P so that plausible inferences are drawn in P's favor. 7. Failure to join a party under Rule 19 12(b)(1) Lack of Subject Matter Jurisdiction 12(b)(6) Failure to State a Claim - Pre-Answer Motions - The Answer - Admitting or Denying allegations in the complaint - Affirmative Defenses - Relation to motion to dismiss under Rule 12 (b)(6) - Effect of failure to plead affirmative defense - Pleading standards for affirmative defenses - Preclusive effect of prior litigation **Amending the Pleadings** Scenarios where you might want to amend: - To cure a pleading problem with a previous complaint -- following **D's successful 12(b)(6) motion** to dismiss - To add new claims/legal theories after further investigation - To name additional defendants (or change naming of previously named D's) - D might want to amend its answer -- to deny an allegation it admitted or to add affirmative defenses. 15(a) 1. Amending as a Matter of Course: Party may amend its pleading **once** as a matter of course within a. **21 days** after serving it or, b. If the pleading is one to which a responsive pleading is required, 21 days after service of responsive pleading or **21 days after service of a motion under Rule 12(b)(e)** or (f) whichever is earlier i. Allows parties to amend once without having to make a motion and having it granted by the judge. 2. Other Amendments: In all other cases, party may amend its pleading only with the opposing party's written consent or the court's leave. **The court should freely give leave when justice so requires.** c. Written Consent d. Leave of Court: **The court should freely give leave when justice so requires** ii. **Delay alone is typically insufficient grounds to oppose motion, usually must show bad faith in delaying or actual prejudice to opposing party.** iii. *Gutierrez v. Johnson & Johnson:* court's discretion must be guided by strong federal policy of favoring cases on the merits and allowing amendments with **extreme liberality.** iv. *Foman v. Davis:* if underlying facts or circumstances may be proper subject of relief, he ought to be afforded **opportunity to test his claim on merits**. v. **Foman Factors**: scenarios where it may be appropriate to **deny leave** to amend... (Don't need all of the factors to determine leave to amend) 1. **Bad Faith** or dilatory motives. a. *David v. Crompton and Knowles:* statute of limitations has expired b. Beeck v. Aquaslide: P injured at company party, sues D. as manufacturer, admits in answer that it made slide. SOL expires, wants to amend its answer to denial. Both P & D are blamelessNo clear bad motives, so court looks to decide case on it's merits, not based on fictional recreation. c. *Carroll v. Trump:* parties engaged in discovery over next 3 years, after close of discovery, D. seeks to amend for presidential immunity defense. Amendment after lengthy discovery forces P. to expend significant additional resources. 2. Result of **inexcusable delay**: undue delay prejudices the nonmoving party or imposes unwarranted burdens on the court. d. Delay alone is typically insufficient grounds to oppose motion i. *David v. Crompton and Knowles:* D's failure to investigate at time of fiiling original answer was inexcusable (answer was ineffective and acted as an admission) ii. *Carroll v. Trump:* parties engaged in discovery over next 3 years, after close of discovery, D. seeks to amend for presidential immunity defense. Longer period of delay, less is required for nonmoving party in terms. 3. Delay causes **undue** **prejudice**: greatest weight among factors, consideration of prejudice to opposing party. e. Must show bad faith in delaying f. Statute of Limitations problems and Reasonable reliance on previous pleading to forgo opportunities iii. *David v. Crompton and Knowles:* P. was certainly lulled during period between filing complaint and the running of the statute. D. had lots of time to fix it, long before SOL expired. P wants to file with as much time before and if close to expiration of SOL, you are conducting due diligence prior. iv. *Jacobs v. McCloskey Co:* P filed suit only 9 days before expiration of SOL but no unfair prejudice because they weren't required to assert that they had wrong D until 21 days later. v. *Beeck v. Aquaslide:* P injured at company party, sues D. as manufacturer, admits in answer that it made slide. SOL expires, wants to amend its answer to denial. Difference between delay that causes prejudice and delay that is absent of bad faith. Undue prejudice = we're looking for fault. If no fault (like Beeck), default presumption is to decide case on it's merits. vi. *Carroll v. Trump:* requests to amend at late stage of litigation (after discovery closes) are prejudicial. vii. *Gutierrez v. Johnson & Johnson:* 4. Repeated **failure to cure deficiencies:** Court has wide discretion in granting or refusing leave to amend, guided by underlying purpose of Rule 15 (facilitate decision on it's merits) g. Going to be biggest hurdle for P to amend! h. *Gutierrez v. Johnson & Johnson:* court has wide discretion in granting or refusing to leave after the first amendment (as a matter of course). Court was guided by underlying purpose of Rule 15: facilitate decision on the merits, rather than on the pleadings or technicalities. 5. The amendment would be **futile or legally insufficient**: if it would be immediately subject to dismissal. Proper test to apply when determining legal sufficiency of amended complaint **is identical** to the one used when considering sufficiency of pleading standard i. Going to be biggest hurdle for P to amend! j. Factors in which it would be futile viii. Legal insufficiency 1. *Gutierrez v. Johnson & Johnson:* in determining legal sufficiency, identical when considering the sufficiency of a pleading under Rule 12(b)6 2. 12(b)6 test: examples include where amended complaint clearly **does not assert a recognized legal theory, would be time barred, where complaint still does not satisfy pleading standard!** a. Then determine pleading apply 8(a)(2) or 9(b)(2) rule ix. Statute of Limitations has expired 3. Then must determine if the amendment "relates back" see 15(c) rule. 15(c): **Relation Back** 1. When a statute of limitations has expired...allows an amendment to a pleading to **relate back** to the original pleading's date if the amendment asserts a claim or defense that **arose from same conduct, transaction, or occurrence as original pleading** 2. Goal is to provide notice to the Defendant. a. Courts take very narrow view on this typically. b. IF defendant, reading original complaint, would not be placed on notice of the essence of what will later be claimed in the amended complaint, then the two complaints do not involve same conduct/transaction/or occurrence. 3. D. is not prejudiced if their attention was timely directed to the facts that form the basis of the claim asserted against him. c. **15(c)1B: Arose out of the conduct, transaction or occurrence** i. Allegations arise from same events leading up to claim ii. Close connection in time and place iii. Similar in character and general subject matter. 1. *Porter v. Decatur:* second amended complaint added count against Dr. Cross for negligence and allegation to claim against Dr. Dold for failing to recognize spinal fracture. Granted relation back because both counts have the same cause of action and same ultimate injury. Hospital should have investigated actions by all actors during this period of discovery. d. **15(c)(1)(C): If changing a party or naming of a party** iv. **Claim arises under same conduct/occurrence (satisfies c(1)(B))** v. D had actual or constructive notice that lawsuit was filed vi. Looking for a sufficiently close transaction relationship so that it is likely defendant was on notice at the first claim. vii. All below must be satisfied for it to relate back: 2. Passes c(1)(b) test 3. IF notice or newly named D is made aware within 4(m) period = 90 days... a. Gives the P. 90 days after filing to find defendant and serve complaint. 4. D. received **such notice of the action** that it will not be prejudiced. (Difference between **sufficient** and **constructive** **notice**) AND b. Constructive notice: not formal, through informal means. c. Sufficient notice: defendant hears of commencement of litigation. d. *Krupski v. Costa Crociere:* P's filed original complaint against Costa Cruise lines which D owned, SOL expires 20 days after filing, but D makes several attempt to convince P she didn't have proper D. P had sufficient notice as it was owner of intended target. e. *Rogers v. Miller:* P has various confrontations with D., calls station to confirm who is D's partner -- claim Ho, files lawsuit month before SOL expires. After, seeks leave to amend substituting with Iovine. Complaint sufficiently alleges notice that arresting officer would be named D. 5. **Knew or should have known** D. was intended target AND f. *Krupski v. Costa Crociere:* D. was owner of subsidiary that had received litigation, likely that it would have had same representation. g. *Smith v. Westchester County Dep. Of Corrections:* D did not have reason to think he would be named as P. clearly identified Officer Rennalls. 6. Knew they would have been named but for a **mistake** h. *Rogers v. Miller:* P has various confrontations with D., calls station to confirm who is D's partner -- claim Ho, files lawsuit month before SOL expires. After, seeks leave to amend substituting with Iovine. i. *Smith v. Westchester County Dep. Of Corrections:* **Deliberate choice** to sue one party over another while fully understanding factual and legal differences **does not** constitute a mistake. Here it was not a mistake of identity, case where P wants to sub D to better conform to evidence. j. *Krupski v. Costa Crociere:* D. was aware that it was a mistake that they were named, repeatedly corrected P after filing period. Knowing of parties existence does not preclude P. from making a mistake. Diligence is not on the duty of the Plaintiff to bring to the situation but failure to conduct a reasonable inquiry into naming the client could lead to sanctions. "Question is not whether P. *knew or should have known* the identity of Costa Crociere as proper defendant but whether D. knew or should have known that it would have been named but for an error." a. **Circuit split: Majority** holds **mistake can't be lack of knowledge** (Rule 15c can't apply) 1. *Wasserman:* mistake of the defendant means affirmative misapprehension, misstatement or misunderstanding about identity. NOT ignorance or lack of knowledge. 2. *Rogers:* he does not know identity of one D, therefore choose not to name D or name by pseudonym, not lack of knowledge. 3. Herrera: naming **John doe ≠ mistake**, it's a deliberate choice and delay is not relevant 4. Soto: mistake of law by pro se plaintiff who named prison instead of individual guards is not a mistake because he misunderstood technicalities. b. **Minority** holds **mistake can be based on lack of knowledge**: 5. *Varlack:* knew the phrase unknown employee referred to him 6. *Arthur:* mistake is still mistake when it flows from lack of knowledge (no linguistic basis for when misnomer of existing party can constitute mistake for identity of proper party) 7. *Goodman:* focusing on what notice the party had, mistake is textually limited to describing the notice provided. 8. **John Doe situations here** 4. Why do we extend statute of limitations with relates back? e. Relation back has guiding element which is notice to Defendant (matter covered by amendment) f. D. is not prejudiced if his attention was timely directed to facts that form a basis against him. **Attacking the Pleadings** [Subject Matter Jurisdiction: ] Choosing the forum (state v. federal court), ex. Can I sue in federal court? A. FRCP 12(b)(1) B. **28 USC § 1332:** district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of \$75,000 and is between... citizens of different states OR citizens of a state and citizens or subjects of a foreign state. a. Diverse citizenship among adverse parties must be present when complaint is filed. b. *Mas v. Perry*: citizenship means **domicile**, residence in a state is not sufficient. Combination of two elements 1) taking up residence in different state 2) intention to remain there indefinitely fact specific exercise. c. Domicile: true, fixed, and permanent home to which you have intention of returning whenever absent therefrom i. Ex. my last domicile is Missouri until you take up residence in California. ii. Change of domicile may be effected only by combination of two elements; taking up residence in a different state, and having the intent to remain there indefinitely. Place where you intend to remain indefinitely (signaled by facts, ex. do they have a job, do they buy or rent, are they registered to vote, how permanent of job, where family is etc) d. Always assume that \$\$ AIC requirement has been met. C. *Strawbridge v. Curtiss:* there **must be complete diversity**, no P may be a citizen of same state as any D. Any overlap across the "v" destroys diversity. D. State courts typically can entertain almost any claim: e. Claims arising under common law or state statutory law f. Claims arising under some other state's laws g. Even if suing for violation of a federal, state can usually hear that h. Only if Congress specifies that you must bring that claim in federal court and only in federal court will there be an exclusive federal court SMJx E. Federal courts are courts of limited SMJx -- can hear only certain kinds of cases i. Advantages are uniformity of how law will be interpreted, expertise of federal judges, avoid state court hostility towards federal law j. **28 USC 1441 (Removal JX):** The district court shall have original jurisdiction of all civil actions arising under Constitution. k. *Louisville and Nashville Railroad Co v. Mottley:* Defendants were awarded free passes in exchange for injury liability, due to congressional actions, stop offering passes + D. sues for breach, no diversity JDX. iii. A suit arises under federal law only when the P's statement of his own cause of action shows that it is based upon those laws... it is not enough that the P alleges some anticipated defense to his cause of action and asserts that some provision invalidates the defense. iv. Well-pleaded complaint rule: Federal Q Jx is appropriate only if source of P's enforceable legal right against D is federal law. Look to the statement of P's own claim, only consider the elements P needs to prove to establish his claim. Ignore anticipated defenses. F. US Constitution, Article III § 2: judicial power shall extend to all cases arising under this constitution or the laws of the United States... **to controversies between Citizens of different states.** G. Supplemental JX Statute: **28 USC § 1367** l. In any civil action of which the district courts have original jx, the district courts have supplemental jx over all claims so related...that they form part of the same case or controversy under Article III, such supplemental jx shall include claims that involve the joinder or intervention parties. v. At least one anchor claim AND arise out of same transaction m. In any civil action of which the district courts have original jurisdiction founded solely on 1332... when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of 1332. vi. Adding a party whose joinder would break complete diversity is inconsistent with § 1332, no Supplemental Jx. H. When dealing with corporate entity: if a lawsuit involves corporate entity, it will be designated by a state name -- treat as if a citizen of that stake for diversity purposes. [Personal Jurisdiction:] Choosing the geographical location, ex. Can I sue here in California? A. Amendment X: powers not delegated to the US by the Constitution...are reserved to the states B. Amendment XIV: nor shall any State, deprive any person of life, liberty, or property without due process of law. C. Classical "power" approach to PJx a. Physical presence at time of service of process, subject to PDX of that state b. Domicile of that state, or incorporation in state for a corporation c. Consent or waiver (appointment of in state agent for service of process = consent; failure to timely object under 12(b)(6) motion = waiver) D. Minimum contacts test: d. "If he was not present within the territory of the form, he have certain **minimum contacts** with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." i. Provides alternative for personal JX when not permanent resident/domicile or physical presence at time of serving. e. *World-Wide VW v. Woodson:* sued in state court of OK, one of potential D's sued in OK, only World Wide VW and Seaway object to personal jurisdiction ii. Minimum contacts test: Robinsons car was taken from NY to OK and is sole connection. Neither party does business in OK but nature of product sold makes it far to require PDX in OK jurisdiction. iii. Foreseeability is not part of minimum contacts test. iv. Likelihood that product will find itself in forum state is insufficient to satisfy sovereignty, D's connection must be such that it can reasonably anticipate being hauled into court (having agents in that state or purposeful efforts to serve that market shows submission to the authority of that state. Here, there is no effort to serve OK customers, not selling/advertising business there. Mere unilateral activity of taking product to new state ≠ purposeful availment. f. Step 1: Are D's forum contacts sufficiently purposeful that it can reasonably anticipate being hauled into court in the forum? v. "Purposeful Availment:" need evidence of D's efforts to serve, directly or indirectly, the market for its product in that state 1. Directly: regular solitication and sales in the forum state (Connections with forum state) 2. Indirectly: by delivering its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. (more than mere likelihood) a. Component part maker in that state b. Contracting with in state distributor or realtor 3. Is the D's connection to the forum sufficiently purposeful? vi. *Burger King v. Rudzewicz:* D is objecting to personal jdx in FL, satisfies diversity jurisdiction (FL v. MI) 4. In contractual agreement, we need to evaluate entire course of dealing including prior negotations, future consequences which are object of contract. Here R has negotiated with FL corporations, realized power was in FL office, carefully structured 20 year contractual relationship that envisioned a continuing and wide reaching contacts with FL, act of negotiation increases the benefit of dealing with the state entity. g. Step 2: Would asserting PJx in the forum state be reasonable and fair? vii. Reasonableness/Fairness Inquiry: meant to protect against burdens of litigating in distant or inconvenient forum. Implicit in this emphasis Is understanding that burden on D, while always primary concerns, will be considered in light of all other relevant factors. 5. Forum state's interest in adjudicating the dispute 6. P's interest in obtaining a convenient and effective relief (amount of recovery sought v.s. relative cost of suing far away) 7. Shared interest of several in obtaining the most efficient resolution of controversies and in furthering the fundamental substantive social policies. viii. *Burger King v. Rudzewicz:* D is objecting to personal jdx in FL, satisfies diversity jurisdiction (FL v. MI) 8. D must present a compelling case that the potential inconvenience of defending in P's chosen forum is so substantial that it reaches "constitutional magnitude" [Claim Preclusion (Res Judicata):] Ways in which a prior judgment may have a binding effect on a later lawsuit Can be brought in as an affirmative defense under Rule 8(c) 1. Three Requirements: a. There must be a **final judgment on the merit**s in the earlier case i. Judgment is final when in writing & when it leaves nothing for the court to do but to execute the judgement ii. Cases that have been dismissed under Rule 12(b)(6) motion are voluntary dismissals iii. Cases that are involuntary dismissals are dismissed on the merits. b. Claim \#2 lawsuit asserts the **same claim** as the prior suit c. Both lawsuits involve the **same opposing parties** 2. Rule 41(b): Effect of Involuntary Dismissal d. If plaintiff fails to comply with these rules... defendant may move to dismiss the action or any claim against it. Unless dismissal order states otherwise...**a dismissal under this section and any dismissal [not] under this rule, [except] one for lack of jurisdiction** (improper venue, or failure to join a party under Rule 19) **operates as an adjudication on the merits**. 3. *Rinehart v. Locke:* P is arrested on report of impersonating a police officer. e. Suit \#1: claims that arrested violated constitutional rights -- dismissed under 12(b)(6) -- Seeks leave to amend under Rule 15 which court denies f. Suit \#2: files new lawsuit including no probable cause allegation. Now trying to erase facts in the original complaint. He didn't appeal on leave to amend the original suit. g. He didn't appeal the first judgment so original judgment was on the merits. 4. 2^nd^ Restatement of Judgements § 24(2): Preclusive effect of prior judgement extends to all rights P had with **respect to all or any part of the transaction, or series of connected transactions** out of which the action arose h. Determined pragmatically: are they related in CTO? Would they form a convenient trial unit? Consider parties expectations or business understandings? i. Development of new material facts might justify 2^nd^ suit (ex. events occur after Suit 1) iv. But a mere shift in the evidence (offered to support a ground held unproved in prior action) will not suffice to make a new claim. 5. Restatement 2^nd^ § 24: plaintiff must recover for all her damages in the original action including those suffered prior to trial and all future damages that are reasonably likely to ensue. 6. *Rush v. City of Maple Heights:* P is injured from fall from motorcycle. j. Suit \#1: sues city for damage to motorcycle alleging negligence in maintaining the street, P wins \$100 k. Suit \#2: sues city again for personal injuries in the same accident. Trial on personal injury damages, P wins \$12,000. **Barred** by Claim Preclusion -- should have be brought up in Claim 1 as it refers to the **same wrongful act** -- ultimately consider the underlying wrong. v. Injuries to person and property were several results and effects of one wrongful act: Single tort can be the basis of but one action. 7. *Manego v. Board of Trade:* P applied for permit to build a disco but is denied liquor & entertainment licenses l. Suit \#1: sues agencies and rink owner claiming discrimination, conspired to deny him license. Case dismissed on summary judgement but some claims under 12(b)(6) m. Suit \#2: files new lawsuit with new legal theory of antitrust violations. Barred by Claim Preclusion: focus is on whether the underlying facts of both transactions were the same or substantially similar. Factual basis for each claim must be essentially the same so that both claims not only could be brought but must be joined. [Issue Preclusion (collateral estoppel): ] Effect of foreclosing re-litigation of particular issues of law/fact previously litigated and decided in a prior lawsuit. Can be brought in as an affirmative defense under Rule 8(c) 1. Five Requirements a. **Same issue** was raised as in the prior case i. Restatement 2^nd^ § 27: factors to consider in determining "same issue" 1. Is there **substantial overlap between the evidence** or argument to be advanced in the second proceeding and the first? 2. Does the new evidence involve application of the **same rule of law?** 3. Could pretrial preparation relating to the matter presented **reasonably be expected** to have embraced the matter presented? 4. **How closely related** are the claims involved in the two proceedings? ii. *Holtman v. 4-G's Plumbing & Heating:* 5. Case \#1: Housing Association v. Holtman, seeks order requiring Holtman to permit completion of installing heating system. Files counterclaims 2 years later for prop. Damage and contamination. 6. Case \#2: Holtman vs. Housing association and 4-G's plumbing for property damage done during the installation a. Precluded from asserting this claim against Housing Association = same parties, same wrongful act and can't file a second suit asserting same claim. b. NOT precluded from suit against 4G = not same parties and issues are different as claim is for negligence in workmanship during installation. iii. *Carroll v. Trump* 7. Case \#1: Caroll sues for defamation, after Trump said he's never met Carroll and accuses her of making a false story for publicity. 8. Case \#2: Carroll sues for sexual assault and the 2022 defamation, in which Trump posted that she made up the story to promote her book. Caroll wins on both counts. Based on this outcome seeks SJ on establishing each element of defamation. c. Content of the 2019/2022 statements is substantially the same, determined that his 2022 statement was defamatory and that issue is common to the defamatory nature of his 2019 statement. Determination in 2022 is decisive determination on 2019 statements, precludes the issue that his statements were defamatory. b. Issue must have been **actually litigated** and submitted for determination in the first case iv. Restatement 2^nd^ § 27: issue is properly raised by the pleadings or otherwise and is submitted for determination 9. If disputed factual issue is fully tried and submitted to the jury OR was conclusively resolved on motion for summary judgement 10. Not actually litigated if issue is admitted/stipulated/conceded in an action, if litigation is withdrawn upon settlement, or if parties simply chose not to raise the issue v. Restatement 2^nd^ § 29: action may involve so small an amount that litigation of the issue may cost more than value of suit. Forum may be inconvenient to produce necessary evidence or result might discourage compromise. c. Issue necessarily must have **been determined in favor of the party invoking** the prior judgment vi. General verdict: states "we find for D" vii. FRCP 49(a): Special verdict: requires jury to make written findings on issues of fact and nothing more 11. judge then applies law to jury's written findings to determine prevailing party. viii. FRCP 49(b): general verdict accompanied by special interrogatories, answer specific Qs about key issues of fact 12. Provides means of guiding jury's deliberations and determining basis for decision while also leaving it to the jury to determine which party should prevail. ix. Steps to determine : 13. Can I tell which issues were decided? 14. Can I tell how they were decided? d. If Yes, Preclusive effect to all of them e. If No, not preclusive to any of them d. Prior **determination was essential to court's judgment** in the prior action x. Only a party who has had a full and fair opportunity to litigate a particular issue of fact and lost should be precluded from ligitating the same issue again -- ability to appeal an erroneous decision is fair opportunity. xi. *Malloy v. Trombley:* 15. Case \#1: Malloy + Trombley v. State of NY: failed to proved Tooper was negligent, both P's were found contributorily negligent. 16. Case \#2: T. asserts that M. was contributorily negligent. f. **Alternative Determination exception**: court's judgment was either M. was negligent or Trooper was not negligent. Thus, either determination may not have been as carefully or rigorously considered by the fact finder. i. If issue Y is sufficient to get them to resolution, issue x is not as easily resolved, but jury might find determinations for issue X*.* g. BUT M. had every inventive to vigorously litigate the contributory negligence issue in his case against State. so not an alternative determination exception e. Party against whom issue preclusion is now asserted (party who lost on that issue in the prior proceeding) **must have been a party to prior adjudication.** xii. **Defensive Non Mutual Issue Preclusion:** when repeated party whose judgement is favorable attempts to seek preclusion for matter previously litigated against new D. 17. under what circumstances can a person who was not a party to the prior litigation now seek to invoke issue preclusion to take advantage of a favorable ruling in that prior suit? 18. Effectively encourages you to name all D's in one suit as serial litigation does not have preclusive benefits xiii. Parklane FN 7: "It is a violation of due process for a judgement to be binding on a litigant who was not a party or privy, therefore has not had opportunity to be heard xiv. Most jurisdictions now permit defensive issue preclusion invoked by a person not a party against P who did litigate and lost that issue in case 1. xv. Exception: No full and fair opportunity to litigate in case 1 19. Restatement 2^nd^ § 28(3): New determination of issue is warranted by differences in quality or extensiveness of procedures followed in two courts. Argument will rarely be convincing where repeat litigant was the party who chose to institute suit \#1. 20. Consider are there procedural limits in that forum and are there meaningful differences between courts? Did D have full and fair opportunity to present crucial evidence on the issue? xvi. **Offensive Non Mutual Issue Preclusion:** when nonparty of first suit seeks to take advantage of ruling against repeated D in previous suit. 21. *Parklane Hoisery v. Shore:* h. Case \#1: SEC sues Parklane in fed. Court for false statement, court issues declaratory judgement to that effect. i. Case \#2: Shareholder class action lawsuit against Parklane based on same proxy statement (seeking monetary damages). P's seek preclusion from relitigating the falsity of the proxy statement. j. If D is repeated, use the Parklane Factors: ii. Would it encourage potential litigants to "wait and see"? iii. Would it be unfair to foreclose D from relitigating the issue now, since issue was previously litigated in a forum not of D's choosing? 1. Restrictive procedural rules? 2. Inconvenient venue? 3. No incentive to aggressively litigate? iv. Are there prior inconsistent judgements on the issue, which may suggest that it would be unfair to give conclusive effect to any one of them? **Discovery:** [Scope] 1. Purpose: make trial less of a game, fair contest with basic issues and facts disclosed. Provide mutual knowledge of all the relevant facts gathered to both parties. a. Trial is a genuine factual dispute = opportunity for the fact finder to determine which witnesses are credible, which story is more believable b. When it is a question as a matter of law, judge makes such a determination that can be resolved on summary judgement. 2. Liberal Approach: c. Preservation of evidence that might otherwise be lost before trial d. Provides a mechanism for narrowing the issues in dispute between the parties: learn about opponents version of the case e. Prevent surprise f. Improves ability to counsel the client, engage in settlement negotiations on her behalf, and seek to dispose of the case without a trial 3. Rule 26(a)(1): Mandatory Initial Disclosures g. Party must without awaiting discovery request provide i. Name of each individual likely to have discoverable information -- along with the subjects of that information -- the disclosing party may use to support its claims or defenses. ii. All documents, ESI, and tangible things that the disclosing party has in it's possession, custody, or control and may use to support its claims or defenses. 1. Also required to disclose calculation of damages and insurance coverage h. Only have to initially disclose what is helpful to your side, everything else or anything that's beneficial to other side must be requested. 4. Rule 26(b)(1): Discovery Scope (information within the scope need not be admissible in evidence) i. Parties may obtain discovery regarding any **non-privileged** matter that is **relevant** to any party's claim or defense and is **proportional to the needs of the case**... Information within this scope **need not be admissible** in evidence to be discoverable. iii. **"Non-privileged matter"** 2. Attorney-Client Privilege: a. Covers confidential communications between attorney and client i. Does not cover underlying facts b. Communication is privileged if made for the purpose of obtaining or providing legal advice to the client c. Client holds the privilege (only client can waive) d. Privilege is absolute (no assessment of how important the info sought might be) 3. In Corporate Context e. *Upjohn v. US:* Privilege exists to protect not only the giving of professional advice to those who can act on it, but also the giving of info to the L to enable counsel to give sound and informed advice ii. Middle and lower-level employees have relevant info needed by corporate counsel too f. Test iii. Communication concerned matters within the scope of the employee's corporate duties iv. Communication was needed to supply the basis for legal advice (and the employee knows that's the reason for the questioning); and v. It was treated as treated as confidential within the corporation g. *In re Kellogg Brown & Root, Inc:* in applying Upjohn, internal investigation was undertaken as part of compliance program per DoD regulations vi. As long as providing legal advice was one of the significant purposes, the attorney client privilege applies, even if there were other purposes for the investigation h. *In re Grand Jury:* adopting the "primary purpose" test, reasoning that focusing on the purpose of the communication is consistent with the policy goals vii. Privilege is not tied adversarial process, providing a sanctuary for candid communication about any legal matter. iv. **"Relevant:"** 4. Fed. R. Evid. 401: means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 5. Construed broadly to encompass any matter than bears on or could reasonably lead to other matter that could bear on any party's claim or defense. v. **"Proportional to the needs of the case"** 6. Default rule is the producing party should bear the costs of production 7. Factors: i. importance of the issues at stake j. the amount in controversy k. parties' relative access to relevant information l. parties' resources (Lawson: courts must apply in even handed manner that prevents use of discovery to wage a war of attrition or as a device to coerce a party) m. importance of discovery in resolving those issues n. whether the burden or the expense of proposed discovery outweighs likely benefit. (consider whether discovery production has reached a point of diminishing returns, material's marginal utility) 8. *Lawson v. Spirit Aerosystems:* Parties can shift expenses back to the requesting parties, the standard is still undue burden or expense. Court found that fee shifting is not appropriate because: o. importance of the issues at stake: case does not implicate broader social impact, public policy p. the amount in controversy: P. seeks millions does not give them license to conduct fishing expeditions that run up cost of discovery, monetary stakes are only one factor. q. parties' relative access to relevant information: no information asymmetry (burden of responding lies heavier on party who has more information), discovery is equally available. r. parties' resources: neutral factor here as Spirit has endured massive layoffs and Lawson has already recovered +\$30 million) s. importance of discovery in resolving those issues: seeks information on issues at very heart of the litigation, party can establish marginal relevance, courts are less likely to determine discovery sought is proportional. t. whether the burden or the expense of proposed discovery outweighs likely benefit: volume of data to be examined and the richness of the dataset with the unreasonable human review, all these factors increased the burdens of the TAR. 5. Rule 26(b)(2)(C): Limitations on Frequency and Extent: j. Discovery is unreasonably cumulative or duplicative, can be obtained from other source that is more convenient, less burdensome or less expensive k. Proposed discovery is outside the scope permitted by Rule 26(b)(1) ex. disproportional to the needs of the case. l. *Kozlowski v. Sears, Roebuck & Co:* Requested documents filed against Sears of previous customer complaints or similar issues with pajamas. vi. Requested documents are clearly within scope of Rule 26(b): plaintiff has demonstrable need for documents, defendant undisputedly has possession of them, and plaintiff has no other access to them. m. *LaBrier v. State Farm:* Discovery is needed to I.D. the potential class members and their damages, D. says data is not searchable and is not proportional to needs to the case, vii. P. does not have access to information she seeks other than through discovery. Consider Individual v. Corporation with national presence with sophisticated access to data. 6. Rule 26(b)(3): aka Hickman codified n. Documents and Tangible Things: party may not discover documents that are prepared in anticipation of litigation or for trial by or for another party... subject to rule 26(b)(4) those materials may be discovered if: viii. They are otherwise discoverable under 26(b)1 ix. Party shows that it has substantial need for amterials to prepare its case and cannot with undue hardship obtain their substantial equivalent by other means. o. Protection against disclosure: if court orders discovery of those materials, it must protect against disclosure of the mental impressions, opinions, legal theories. 7. Rule 26(c)(1): Protective Orders p. To protect it from annoyance, embarrassment, oppression or undue burden or expense, including one or more of the following x. Forbidding the disclosure xi. Specifying terms, including time and place or the allocation of expenses for disclosure xii. Prescribing a discovery method other than one selected by party seeking discovery xiii. Forbidding inquiry into certain matters or limiting the scope of disclosure or discovery to certain matters 8. Rule 33: Interrogatories to Parties: obligated to provide not only the info off the top of your head but also info within your control and are otherwise obtainable. q. Unless otherwise stipulated or ordered by the court, a party may serve on any other party **no more than 25 written interrogatories** r. An interrogatory may relate to any matter that may be inquired into under Rule 26(b) xiv. You have [30 days] to respond to interrogatory and you were obligated in responding to information that is otherwise in your control/otherwise obtainable. xv. Generally much cheaper than depositions xvi. Language that seeks to ID People and Tangible things, ex: "identify all persons known to have personal knowledge of any facts," "Whether you have within your possession or control...," or "identify each person who was present at any time." xvii. Or are designed to get factual information, ex: "provide a detailed account of the meeting," or "all actions you took or attempted to take." 9. Rule 34: Requests for Production (follow interrogatories, first I've asked you what documents exist, then ask to produce them.) s. Party may serve on any other party a request within the scope of Rule 26(b) xviii. To produce and permit the requesting party... to inspect, copy, test or sample the following items in the responding party's possession, custody or control 9. Any designated documents or EIS (electronically stored information)... if necessary after translation by the responding party **into a reasonably useful form.** 10. Any designated **tangible things**, or xix. **Permit entry on to designated land...** so that the requesting party may inspect, measure, survey etc t. **Procedure:** the request xx. must describe with reasonable particularity each item or category of items to be inspected; xxi. must specifiy a reasonable time, place, and manner for inspection and performing the related acts; and xxii. may specify the form or forms in which electronically stored information is to be produced. u. Examples: any and all employment manuals, handbooks, personnel policies, or personnel manuals relating to D's terms and conditions of employment including but not limited to hiring/termination etc. 10. Rule 36: Requests for Admission v. Scope: a party may serve on any other party a written request to admit for purposes of the pending action only, the **truth of any matters within the scope of Rule 26(b)(1)** relating to: xxiii. **Facts, the application of law to fact or opinions** about either; and xxiv. The **genuineness of any described documents** w. Answer: if a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A **denial must fairly respond to the substance of the matter.** xxv. If you deny something and other side is able to prove it other side can recover damages 11. Rule 30: Oral Depositions x. Whom you can depose: "any person including a party" (Rule 30(a)(1)) xxvi. Individual Party xxvii. Officer, director, employee of entity party xxviii. Non-party (subject to court's subpoena powers) y. Entity via "person(s) most knowledgeable" (Rule 30(b)(6)) z. Max of 10 depositions in an action (subject to leave of court) (Rule 30(a)(2)(A)(i)) a. Max length of 1 day of 7 hours per total witness, unless otherwise stipulated or ordered by the court (Rule 30(d)) b. Conduct is more informal but objections must be stated in nonargumentative and nonsuggestive manner. xxix. Rule 30(c)(2): You can instruct the deponent to not answer a question only in the following: 11. When necessary to preserve a privilege 12. To enforce a limitation ordered by the court ("protective order") 13. To present a motion to terminate/limit a depo being conducted in bad faith. c. Other particulars: typically informal, under oath, there is a court reporter/videographer, counsel defending the deposition. [Discovery Sanctions] 1. Rule 37(a)(3): Specific Motions a. To compel Disclosure: If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. b. To compel a discovery response: a party seeking discovery may move for an order compelling an answer, designation, production or inspection. 2. Rule 37(a)(5)(A): Payment of Expenses c. Court must require party to pay movant's reasonable expenses incurred in making the motion, but court must not order the payment if... i. Movant filed the motion before attempting in good faith to obtain disclosure ii. Opposing party's nondisclosure, response or objection, was substantially justified OR iii. Other circumstances make an award of expenses unjust. 3. Rule 37(b)(2): Failure to Comply with a court order d. Includes, directing that the matters embraced in the order or other designated facts to be taken as established for purposes of the action, as the prevailing party claims, iv. Striking pleadings in whole or in part v. Dismissing the action or proceeding in whole or in part vi. Rendering a default judgement vii. Treating as a contempt of court 4. Rule 37(c)(1): Failure to Disclose or Supplement e. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court may... viii. Order payment of the reasonable expenses including attorney fee's caused by the failure ix. May inform the jury of the party's failure and x. May impose other appropriate sanctions. 5. Rule 37(c)(2): Failure to Admit f. If a party fails to admit what is requested under Rule 36, if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses including attorney's fees, incurred in making that proof. **Judicial Control of the Result:** [7^th^ Amendment Jury Trial] 1. Functions of the Jury: to be sole and exclusive judges of the face. Determine the weight of the evidence, the credibility of each of the witnesses. a. No magic formula, jury might choose to discount testimony because of witness bias or prejudice, witness intentionally told a falsehood, witness did not accurately see or hear what she testified about, or their recollection is faulty b. IF there is a discrepancy -- its up to the Jury to determine which they believe 2. Resolving a case without a Jury: c. Rule 12(b)6: Even if P could prove every allegation in her Complaint, the facts alleged are insufficient as a matter of law d. Rule 56: Motion for Summary judgement, where no reasonable jury could find that the party with the burden of persuasion has uncovered (after discovery!) sufficient evidence to satisfy that burden. e. Rule 50: Judgement as a Matter of Law, where no reasonable jury could find that the party with the burden of persuasion has uncovered (after discovery!) sufficient evidence to satisfy that burden. i. Plaintiff has burden to prove prima facie case -- standard is "more likely than not" 3. Rule 38(a): Right to a Jury Trial f. The right of trial by jury as declared by the seventh amendment to the Constitution or as provided by a federal statute is preserved to the parties inviolate ii. 7^th^ Amendment: "right of jury shall be preserved, no fact tried by a jury, shall otherwise be reexamined..." g. Under common law, court of law generally could only offer damages (monetary relief) and declare rights (such as ownership of property) = Right to jury trial only applied to courts of law. h. *Dairy Queen v. Wood:* owner of Dairy Queen sued Wood (licensee), sought both monetary payments and injunctions to stop using trademark iii. Mixed question of legal and equitable relief: Honor right to jury trial by going to trial on the monetary claims damages first where jury will decided the common questions of fact. 7^th^ amendment says any legal issues for trial by jury is timely and properly demanded be submitted to jury. Whether or not DQ breached the contract, is determined by Jury then Judge makes determination if they breached \-\-- is injunction appropriate remedy. iv. Jury decides question of \$\$\$, Judge decides questions of equitable relief ex. specific performance, injunction. (Jury resolves common questions of fact, judge determines outcomes) i. *Curtis v. Loether:* if Title VII of the Civil Rights Act gave P a right to demand a jury trial. v. 7^th^ Amendment does apply if statute creates legal rights and remedies, its enforceable in an action for damages in the ordinary courts of law. vi. Two Part Inquiry for MPC 1. Is the claim analogous to one that would historically been brought in court of law or court of equity? 2. Does the P seek relief that was traditionally available in the court or law or court of equity? *Aka does statute include right to recover damages -- then jury trial!* [Summary Judgement] 1. Rule 56(a): party may move for summary judgement identifying each claim of their defense on which summary judgement is sought. The court **shall grant** summary judgement if the movant shows that there is **no genuine dispute** as to any **material fact** and the movant is entitled to judgement as a matter of law. a. At this point discovery has usually completed, Judge considers what the parties have discovered to predict what the evidence will be at trial and determine whether there are still disputed facts/issues to resolve at trial. b. Look beyond the pleadings: parties can ask judge to consider deposition testimony, responses to written discovery, documents produced during discovery, affidavits c. Defendant is always movant party on exams! 2. **Material Facts:** fact that might affect the outcome of the resolution of the claim or defense. Fact that if proven to be true, tends to prove or disprove a necessary element of the claim or defense. 3. **No Genuine dispute:** judge is drawing inferences in light most favorable to non moving party. d. Judge is not deciding which version of the facts are more likely to be accurate, court is not weighing the strength of the evidence to determine truth of the matter, **non-movant's evidence is taken as true.** e. When evidence leads to multiple inferences, judge isn't to decide what inferences they would draw, but instead should draw all **reasonable/plausible inferences** in the light most favorable to **non-moving party.** f. **No genuine dispute** when 1) no reasonable jury could draw nonmovant's desired inferences, 2) non movant can point to no evidence 3) non-movant has evidence, but no reasonable jury could believe it) i. *Matsushita Elect. Indus Co v. Zenith:* must do more than simply show that there is metaphysical doubt to the material facts ii. *Anderson v. Liberty Lobby:* SJ is appropriate if there can be but one reasonable conclusion to the verdict. (must be reasonable in light of competing inferences, context renders claim implausible) g. *Bias v. Advantage International:* no dispute that he was uninsurable but motion depended on if he was a drug user evidence of Teammates accounts/credibility vs. his past drug tests iii. Generalized evidence by the P was not enough to contradict specific testimony. If there is specific testimony generalized evidence isn't sufficient to rebut credibility of specific evidence to the contrary. iv. Must raise more than a metaphysical doubt about the credibility of their uncontested evidence. h. *Scott v. Harris:* Scott is immune from suit if Harris posed a sufficient threat of physical harm to others -- reasonable for Scott to use such potentially deadly force. v. When parties tell two blatantly different stories -- one which is blatantly contradicted by the record, so that no reasonable person could believe it. Court thought the video conveyed one, obvious, neutral meaning. i. *Tolan v. Cotton:* vi. Assessing what inferences may be reasonable must be done in the specific context of the case. In context, witnesses on both sides came to this case with their own perceptions, recollections and biases. 4. Rule 56(c): Procedure: need to cite to particular parts of the record, adverse party cannot produce admissible evidence to support it. Affidavits must be made on personal knowledge, set out facts that would be admissible in evidence. j. *Adickes v. SH Kress & Co:* Was the refusal to serve the Plaintiff the result of a conspiracy between store owner and the police? Could a jury reasonably infer from a presence of the cop in the store that there was an agreement between D and the Police? vii. Kress: offers police chief & officers affidavits saying there was no pre-arranged scheme, offers store manager's testimony that he was only there to prevent riot viii. Adickes: offer her own testimony that one of her students saw cop come into the store, offers employee's statement that officer was in the store. ix. Kress did not carry its burden because it failed to foreclose the possibility that there was a policeman in the store while petitioner was awaiting service and that policeman reached understanding that Kress not be served. x. D must **affirmatively produce undisputed evidence disproving material fact**, negating essential element of P's claim -- so that D has foreclosed possibility that jury could accept P's theory. k. *Cetlotex Corp v. Catrett:* Celotex moves for SJ on basis that there was no genuine dispute on question of whether any product was proximate cause of injuries alleged. D is entitled to SJ by showing that P does not have enough evidence to satisfy her burden of proof at trial on essential element of her claim. xi. How to show nonmoving party lacks sufficient evidence? 1. Party seeking SJ bears initial responsibility of identifying those portions of the pleadings, depositions etc which it believes demonstrate absence of genuine issue of material fact 2. Conclusory assertion that nonmoving party has no evidence is insufficient, must affirmatively show the absence of evidence in the record. 3. P can point to evidence already in the record which was overlooked or ignored by the moving party -- if considered, would make resolution of the fact, a genuine dispute. 4. Need to be presenting something that will be able to be admissible in trial. xii. Here, Celotex claimed that P's responses to interrogatories failed to identify witness who could testify about exposure VS. H had testified in workers comp hearing that he used Celotex products, letter from H's former ER saying that he had been exposed, letter from insurance agent stating that he had been exposed. 5. Methods to move for Summary Judgement: l. **Affirmatively** producing evidence to **disprove** material fact to negate essential element xiii. Adickes m. **Showing** that P **does not have enough evidence** to satisfy her burden of proof at trial xiv. Celotex [Phases of Trial] [Judgment as a Matter of Law] **Appellate Review** [Final Judgement Rule] [Exceptions]