CIV PRO Outline PDF

CIV PRO OUTLINE *state purpose/goal for rule in outline FRCP - The federal rules of civil procedure (FRCP): rules that inform the litigants and the trial judge about the various procedural issues that must be determined along the way Stage 1: The pleadings Historical functions of pl...

CIV PRO OUTLINE *state purpose/goal for rule in outline FRCP - The federal rules of civil procedure (FRCP): rules that inform the litigants and the trial judge about the various procedural issues that must be determined along the way Stage 1: The pleadings Historical functions of pleading: 1. Notice to defendant: prove notice to the D of what P is upset about and the grounds for their claim a. Rule 8 focuses on this. 2. Notice to the court of the issues/facts to be resolved: ID the evidence to be used at trial, frame the issues to be resolved at trial 3. Merits Screening: Helps court ID baseless claims and terminate them at an early stage Code pleading era - Need factual specificity in code pleading - For each element of a claim, P most disclosed what occurred, when , where, who did what, the relationship between parties and factual data that may describe the circumstances of alleged wrongful conduct - Pleading the facts continuing a cause of action requires more than more legal conclusions - Case: Gillespie Rule 8(a)(2) - Umbrella rule: - Fed. R. Civ. P. 8(a)(2) requires a “short and plain statement” of the claim “showing” that the pleader is entitled to relief. Rule 8 requires enough factual matter to give the defendant fair notice upon the grounds that the claim rests on. To show entitlement of relief and provide notice, the plaintiff's complaint must contain factual matter sufficient to state a claim that is plausible on its face. To determine this, a two-prong step emerged from Twombly/Iqbal. This test identifies the factual allegations that are conclusory and takes the remaining well-pleading facts to assess whether the legal claims made by the plaintiff are plausible. - Analysis - 1) ID factual and conclusory allegations - (A) mere recitations of the elements - If allegations use wording from the statue = kill it - (B) Threadbare assertions - Allegations that don’t have enough facts to give notice to D - No need for heightened pleading of specified detail facts need to be verifiable, tangible and identifiable to not be conclusory - Heightened specific details not needed but required pleading facts to state a claim to relief that is “plausible on its face” - 2) Consider the remaining well-pleaded facts to assess whether the complaint states a plausible claim of relief - Not a probability requirement; but asks for “more than a sheer possibility” that a D has acted unlawfully. P must plead factual content from which P’s desired inferences are “reasonable” - Facts alleged must be enough to raise a right to relief about speculative level but not a probability requirement - Need enough factual matter to suggest that the alleged unlawful conduct occurred, to raise a reasonable expectation that discovery will reveal evidence of alleged conduct - The test is whether the complaint is plausible, not whether it is less plausible than an alternate explanation. - Determining plausibility is a “context specific task that requires the reviewing court to draw on its judicial experience and common sense” Trying to ID what is conclusory with case examples: What is considered threadbare/conclusory? - Twombly: alleging that telecommunication giants didn’t try to compete with each other is not enough to show conspiracy (would need to show they actually agreed not to compete, show meeting of the minds) - The pleadings mentioned no specific time, place, or person involved in the alleged conspiracies which would give D no notice on where to begin - Would be unfair to force D’s to costly discovery based on the complaint - Iqbal: (high threshold for plausibility cuz gov agents*) - To hold Ashcroft & Mueller personally accountable, it will NOT be sufficient to prove merely that subordinates acted w/ discriminatory purpose - P has not show that Ashcroft and Mueller decided to adopt detention policies for discriminatory person and they can’t do this from just actions of subordinates - Hard to prove that someone KNEW of something and acted cause of that - Świerkiewicz: - Sorema terminated Swierkiewicz on account of his age and/or national origin. - Sassy sentiments (class case): - Radley was “aware” that Harris had an ongoing relationship with Blink through sassy sentiments - Radley “intentionally interfered” with Harri’s business relationship with Blink - Radley had “improper motive” - Radley “caused” Harris to suffer both economic loss and damage to her business relationship with blink What factual allegations are taken as true? - Świerkiewicz: - His complaint detailed events leading to termination, provided relevant dates and includes ages and nationalities of at least some of the relevant ppl involved - Iqbal: - In the months after 9/11, under Mueller’s direction, FBI arrested and detained thousands of Arab Muslim men - Erickson: - We can verify his meds were discontinued before his prescription was done, who can verify who stole the needle - In general - Reputation of establishments can be verified - “Notorious for drunk fans” - from assignment What is plausible? - Threshold: - Iqbal - Their intent to discriminate is not plausible compared to the alternate explanation of nation trying to keep suspected terrorists after detained after a terrorist attack - Twombly - Parallel behavior isn’t enough for these telecommunication giants because each company was doing what was natural in their field. - Context specific - Erickson:  - Pro se complaints are “to be liberally construed,” i.e., a pro se complaint “must be held to less stringent standards than formal pleadings drafted by lawyers. - Fact that he was taken off his meds when it was prescribed for a year is enough to make his claim plausible - Świerkiewicz: - Is it plausible to infer that his age motivated his termination? - Alternative explanations for sure (bad employee, his means etc) - But none of these stand out as the ONLY OBVIOUS reason - Vullo: - To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech - Ex: she threatened LLoyd, “think about your reputation” - Palin: - Just because Bennet’s behavior is much more plausible (according to 2nd circuit court) does not mean that P’s inference became mere speculation. Bennet’s inference was not so plausible to render P’s not. Not a test of winning arguments. - - - Rule 9(b) 1. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake a. Rule 9(b) demands that the “circumstances constituting fraud” be pleaded with particularity.  i. That means the plaintiff is obligated to plead what specific representations were made, how precisely they were false, what specific actions the plaintiff took in reliance on those representations, and what specific losses are attributable thereto. ii. Higher degree of notice (similar to code pleading, not to rule 8) 1. Specificity= We need a what, when, who, where and how 2. Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally a. You do not need specifics for state of mind. b. In light of surrounding specific facts alleged, is it plausible to infer that the defendant knew that the statements were false and intended to deceive the plaintiff? (Like rule 8(a)(2). Why is there a higher pleading standard? - Protect reputation - Mere fact that you get sued for fraud has the potential to harm defendant’s reputation because it includes morally arguments - Aka can just destroy reputation - Deter frivolous strike suits - Fraud can easily be charged and so D’s who are fearful for their reputation have an incentive to settle quick - Assumption that P has equal access to evidence about what statement(s) Defendant mad ethat induced reliance Downsides of heightened standard - What if the claim involves conduct that has been concealed by D? How is P supposed to specify the particulars of hidden conduct? - Rockefeller: courts should be sensitive to situations in which sophisticated defrauders may successfully conceal the details of their fraud - What if evidence of the truth concerning D’s deceptive conduct is peculiarly within D’s knowledge? - Rockefeller center properties: In such scenario, the rigid requirements of rule 9(b) may be relaxed Under Rule 9(B), what is conclusory and plausible? - STEP 1: - Taken as true - Spike in biden votes at 8:46 (but later deemed not plausible to show fraud) - Troublesome errors involving unreturned mail-in ballots as purportedly indicative of voter fraud (but not plausible because data presented was so unreliable and would not add up to fraud) - Conclusory? - “Experts witnessed statements that absentee ballots could have been filled out by anyone or could have been destroyed and replaced with Biden votes” – has no specificity. (no what, when, who, what and where)  - Process of matching signatures on absentee ballots, process for settling unresolved disputes, and apparent irregularities with voting machines on voting day - This doesn’t even declare fraud since elections always have irregularities - Step 2: - Plausible? - Spike in biden votes is not plausible for P’s inference of fraud - There is a much more likely plausible explanation: because AZ begins processing early ballots before the election, the spike represented the normal accounting of the early ballot totals which were reported shortly after in person voting closed PSLRA 15 U.S. Code 78U-4(b) PSLRA Securities Fraud Actions 1. (1) specify each misleading statements/omissions and explain why it was misleading a. Specify who/what/where/when/how (same as rule 9b) 2. (2) state with particularity facts that create a strong inference of the defendant's scienter, or intent to deceive. a. Strong inference vs plausible? i. Strong inference: an inference of fraudulent intent may be plausible, yet less cogent that other non culpable explanations for the D’s conduct. An inference of intent to mislead must be more than merely plausible or reasonable-it must be cogent and at least as compelling as any opposing inference of non fraudulent intent (Tellabs) 1. Has to compete with other inferences (higher than rule 8 standard) ii. Inquiry is inherently comparative – “a court must consider plausible non culpable explanations for D’s conduct as well as inferences favoring the P(Tellabs) 1. We need intent to decieve to be as strong as other explanations (Tellabs) iii. Inference does not need to be the most plausible and need not be irrefutable of competing inferences (Tellabs) Why a stronger pleading standard for PSLRA? - Law firms pushing the class actions lawsuits - Usually take a big part of the settlement - Lots of reputational harm so companies will just write settlement checks out of fear - Balance between curbing litigation abuse by lawyers and protect investors rights to recover - Can lawyers sue when a stock just drops in hopes that discovery might reveal something? Especially when it's lawyer driven? - No!! Rule 11 - FRCP Rule 11 describes one’s obligation with respect to making factual and legal contentions in a civil proceeding federal court (can happen at anytime) - Basically that you know this pleading is responsible, it has evidence that actually supports it, it's not to harass and increase litigation costs, the denials are warranted etc - Rule 11: representations to the court; sanctions - (b) before filing a lawsuit, you must conduct an “inquiry reasonable under the circumstances” such that: - 1. Facts Alleged: you certify that you either have evidence in hand, or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery - 2. Legal contentions: you certify that they are warranted by existing law or by a non frivolous argument for extending, modifying, or reversing existing law or for establishing new law - (2) The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; - (3) The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and - Filing a lawsuit is not a fishing expedition Goals and values of rule 11 - Efficiency – eliminate baseless claims before the court/opponent have expended needless resources - Fundamental fairness – deter against making frivolous claims to extort a settlement EXTRA stuff to incorporate - The party seeking sanctions must serve a separate motion on the other party but may not file the motion if the challenge paper, claim or defense is withdrawn or appropriately corrected within 21 days after the service (safe harbor period) - Pleadings must be non frivolous and not issued to harass or delay. Rule 11 imposes this requirement and provides the lawyer who fails in the studio may be fined or otherwise sanctioned - the pleader herself does not need to swear to the pleading in most instances but the lawyer must sign the pleading and is responsible for its contents in some important ways  - - Under FRCP rule 11(c)(2): party seeking sanctions must serve a separate motion on the other party, but may not file that motion if the challenge paper, claim or defense is withdrawn or corrected within 21 days after the service (safe harbour period) RULE 15. AMENDED AND SUPPLEMENTAL PLEADINGS (this can happen at any stages*) - (a) AMENDMENTS BEFORE TRIAL. - (1) Amending as a Matter of Course. A 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 a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. - (2) Other Amendments. In all other cases, a 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. - The court should freely give leave when justice so requires: - Foman: If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the emirates - Scenarios where it may be appropriate to deny leave to amend (FOMAN) - Bad faith - Where failure to amend sooner is result of inexcusable delay  - Delay in seeking to amend cause undue prejudice to opposing party - Where the proposed amendment would be futile or legally insufficient - Repeated failure to cure deficiencies by amendments previously allowed - Gutierrez: - (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later. - (b) AMENDMENTS DURING AND AFTER TRIAL. - (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the ​defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence. - (c) RELATION BACK OF AMENDMENTS. - (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: - (A) the law that provides the applicable statute of limitations allows relation back; - (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or - We must be able to show that the claim agsinst new defendant arise out of the conduct, transaction or occurrence of the D’s OG complaint - What are the factors to determine this? - Sufficiently close relationship both in temporal proximity and in the general character of the sets of factual allegations, 2) does amendment refer to the same injuries 3) realice on at least some of the same evidence, same witnesses testing about the same events/subject matter leading up to that same injury (PORTER) - (C) the amendment changes the party or the naming of the party against whom a claim is asserted, - if Rule 15(c)(1)(B) is satisfied and - if, within the [90-day] period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: - (i) received such notice of the action that it will not be prejudiced in defending on the merits; and - (Krupski) Rule 15(c)(1)(c)(i) simply requires that the prospective D has received sufficient ‘notice of action’ within the rule 4(m) period that he will not be prejudice……  - (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity. - Aka you should have known that the lawsuit would of been brought against you if not for the mistake of proper parties identity.. Rule 15 leave to amend: - Leave to amend should be freely granted when justice so requires. In considering whether to grant leave to amend, courts look to whether the nonmoving party would suffer prejudice and whether the amended pleading would be futile. - Under Rule 15(a), a district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party. Amendment may be prejudicial when, among other things, it would require the opponent to expend significant additional resources to conduct discovery and prepare for trial or significantly delay the resolution of the dispute. Futility is assessed using the same standard applicable to motions to dismiss, namely, whether a plaintiff has pleaded enough facts to ‘state a claim to relief that is plausible on its face.’ - Amendments are favored because they tend to facilitate a proper decision on the merits - courts should grant leave to amend freely given when justice so requires, particularly in the case of a pro se civil rights plaintiff who has not yet had the benefit of discovery. - Opposing party has burden to prove that amendment would be prejudicial or futile Terms Dismissals Dismissal with prejudice= try again Dismissal without prejudice= you’re done Extra cue cards to make - Factual assertions in the complaint are called allegations - motion to dismiss ( a request for the court to take action, either by entering an order or by guaranteeing specified relief - memorandum of law (Comprehensive and organized written document that summarizes and analyzes relevant laws based on legal research to support a conclusion on a particular legal issue) - Discovery: the procedure through which each side, with aid of the court, investigates its own claims and those of its opponents EXAM approach - Identify what issues are really at play - If exam pattern talks about SOL, look to see if complaint is time barred because of it MIND MAP ORGANIZATION The pleadings (overview of mind map) 1. Responding to the pleadings 2. 3. 4. 5. a. Party responding to pleading must state in short plain terms its defenses to each claim i. “Negative defense” – seek to disprove an element of P’s claim 1. Narrow issues to be resolved at trial 2. Ex: failure of consideration to breach of contract 3. Ex Świerkiewicz: neither his age nor origin was a factor in firing him ii. “Affirmative defense” [talked in (C)]– bring out info from outside 1. Even if everything you said is true, and that would entitled you to relief, there are OTHER reasons. 2. Legal justification and excuse 3. Ex: SOL, having legit reason to fire someone, gov immunity etc b. Admit or deny the allegations i. Denials– go through each allegations and either admit or dispute ii. A party may generally deny all allegations in good faith. (Ex: if they sued the wrong person and we are not who this complaint should go to) c. Respond and say you lack knowledge of information i. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must state so, and the statement has the effect of a denial. ii. Ex: From a case we’ve done  1. [¶3]. Swierkiewicz was initially employed as senior VP and chief underwriting officer (CUO). Despite Plaintiff’s stellar performance for nearly six years, in February 1995 Mr. Chavel demoted him from his CUO position to a marketing position and transferred the bulk of his underwriting responsibilities to Nicholas Papadopoulo, a French national who was 32 years old at the time (and 16 years younger than Plaintiff). 2. Must respond to each of these allegations a. *Characteristics in the complaint can always be disputed* i. Ex: he was a “stellar” performer 3. Ex of D answer to his complaint: a. D admits he was demoted b. D admits that the records show he was 32 c. D is without knowledge or info sufficient to form a belief as to whether Mr.P was a french national and denies that allegation. d. D specifically denies that P’s performance was “stellar” e. (even tho the complaint does note explicitly say it) To the extent that P implicitly alleges that his demotion was motivated by either hisn national origin or age, D denies that allegation as well 6. Honesty in the pleadings a. Before filing a lawsuit, you must conduct an “inquiry reasonable under the circumstances,” such that: i. 1. Facts alleged (reasonable inquiry part): You certify that you either have evidence in hand, or will “likely” have evidentiary support after a “reasonable opportunity for further investigation or discovery” 1. What if you make an honest mistake about the law? Sanctionable? a. Yes: Incomplete understanding of existing law (clement) b. Yes: Empty head, pure heart isn’t a defense (Zuk) i. Weak grasp of copyright law, and misunderstood whether there was any copyright interest in films that were transcribed in a book c. Yes: Attorneys thought they could sue other state officials in other jurisdictions… (O’rourke) 2. 3. ii. 2. Legal contentions: You certify that they are warranted by existing law or by a “nonfrivolous” argument for extending, modifying, or reversing existing law or for establishing new law 1. How well must the attorney understand the contours of existing law? a. Must conduct more than a cursory reading of the applicable law (zuk) i. Ex: give the example from the case and how it played out b. Understand at least those “elementary principles” readily available through standard research techniques such as practice guides and treatises (Zuk, Dominion, Clement) [called ethical duty of competence]  i. Ex: give the example from the case and how it played out c. Can’t rely on a “strained analysis of what appears to be an inapposite case” (Zuk) i. Ex: give the example from the case and how it played out 2. What qualifies as a non frivolous argument for extending/modifying/reversing existing law? a. Losing legal arguments alone do not warrant sanctions [aren’t considered frivolous] (Hunter v Earthgrains) i. The legal argument must have “absolutely no chance of success under the existing precedent” ii. Sanctionable only when, in ‘applying a standard of objective reasonableness, it can be said that a reasonable attorney in like circumstances could not have believed his actions to be legally justified” 1. Facts: Hunter filed a class action discrimination suit for employees who were subject to a collective bargaining agreement (CBA). The court was concerned with her argument but would be reaching to say there was no chance of success. There was a circuit court split, decisions were in flux so she could make a case and did have a chance of success. iii. Ex: of losing arguments: 1. Asserting a claim contrary to basic copyright law (zuk: attorney tried to argue that registering a copyright in a book somehow also protected films) 2. Scenario where it was painfully obvious that the attorney’s client was not covered by the statue (Clement: Filing a civil rights claim which required the P to be an employee, which he was NOT) 3. “Empty head” but “pure heart” is no justification ofr frivolous arguments. Belief must be substantial b. A strong dissent opinion can help support that you were making a non frivolous argument (Gairado v Ethyl) i. If there's judicial discussion and decisions in flux, you can argue it to your favor. ii. Even in diff jurisdictions and especially in higher courts iii. Facts: Gairdo (P) relied on a supreme court dissent opinion in Geary regarding public policy of at-will  employment, which was determined as reasonable in supporting a non frivolous claim. Court determined that finding a violation would run contrary to the rule’s intent (deter litigation abuse). 3. Attorneys who merely copy form complaints and file them in this court without conducting independent legal research and examining the facts giving rise to a potential claim do so at their own peril [aka simply copying a form complaint isn’t enough] (Clement v. PSE&G Co) a. Facts: Attorney Harris filed a complaint against PSGE claiming violation of Title VII. Plaintiff was not even an employee so that doesn’t apply to him. Harris also tried to do civil rights claims but PSE&G are NOT state actors. He copied a form complaint. Court claimed it was “painfully obvious” that filing this complaint was legally unreasonable and attorneys are required to do research 4. GOAL OF RULE: Rule 11 is designed to strike a balance between deterring an attorney from abusing the system by filing patently frivolous claims and the need to encourage creativity and vitality in the law (gaiardo) 5. 1. Facts Alleged: you certify that you either have evidence in hand, or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery a. “Discovery is not a fishing expedition” 6. 2. Legal contentions: you certify that they are warranted by existing law or by a non frivolous argument for extending, modifying, or reversing existing law or for establishing new law a. Non frivolous arguments: i. iii. Reasonableness of inquiry depends upon the surrounding circumstances: 1. Whether client’s statements are objectively reasonable? a. Whether a reasonable attorney would file such a docuement 2. How much time for the investigation was available? 3. Whether attorney necessarily had to rely solely on the client for information as to the facts underlying the pleading? b. Sanctions i. FRCP Rule 11 describes one’s obligation with respect to making factual and legal contentions in a civil proceeding federal court (can happen at anytime) 1. Basically that you know this pleading is responsible, it has evidence that actually supports it, it's not to harass and increase litigation costs, the denials are warranted etc ii. iii. 7. Specificity in pleading a. PSLRA: 15 U.S. Code 78U-4(b) PSLRA Securities Fraud Actions i. (1) specify each misleading statements/omissions and explain why it was misleading 1. Specify who/what/where/when/how (same as rule 9b) ii. (2) state with particularity facts that create a strong inference of the defendant's scienter, or intent to deceive. 1. Strong inference vs plausible? a. Strong inference: an inference of fraudulent intent may be plausible, yet less cogent that other non culpable explanations for the D’s conduct. An inference of intent to mislead must be more than merely plausible or reasonable-it must be cogent and at least as compelling as any opposing inference of non fraudulent intent (Tellabs) i. Has to compete with other inferences (higher than rule 8 standard) b. Inquiry is inherently comparative – “a court must consider plausible non culpable explanations for D’s conduct as well as inferences favoring the P(Tellabs) i. We need intent to decieve to be as strong as other explanations (Tellabs) c. Inference does not need to be the most plausible and need not be irrefutable of competing inferences (Tellabs) b. Fraud pleading (rule 9(b)) i. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake 1. Rule 9(b) demands that the “circumstances constituting fraud” be pleaded with particularity. a. That means the plaintiff is obligated to plead what specific representations were made, how precisely they were false, what specific actions the plaintiff took in reliance on those representations, and what specific losses are attributable thereto. b. Higher degree of notice (similar to code pleading, not to rule 8) i. Specificity= We need a what, when, who, where and how ii. Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally 1. You do not need specifics for state of mind. 2. In light of surrounding specific facts alleged, is it plausible to infer that the defendant knew that the iii. Why the higher pleading standard for fraud? 1. Protect reputation a. Mere fact that you get sued for fraud has the potential to harm defendant’s reputation because it includes morally arguments b. Aka can just destroy reputation  2. Deter frivolous strike suits a. Fraud can easily be charged and so D’s who are fearful for their reputation have an incentive to settle quick 3. Assumption that P has equal access to evidence about what statement(s) Defendant made that induced reliance iv. Downsides of higher standard 1. What if the claim involves conduct that has been concealed by D? How is P supposed to specify the particulars of hidden conduct? a. Rockefeller: courts should be sensitive to situations in which sophisticated defrauders may successfully conceal the details of their fraud 2. What if evidence of the truth concerning D’s deceptive conduct is peculiarly within D’s knowledge? a. Rockefeller center properties: In such scenario, the rigid requirements of rule 9(b) may be relaxed c. (Pleading in general)Rule 8(a)(2): Fed. R. Civ. P. 8(a)(2) requires a “short and plain statement” of the claim “showing” that the pleader is entitled to relief. Rule 8 requires enough factual matter to give the defendant fair notice upon the grounds that the claim rests on. To show entitlement of relief and provide notice, the plaintiff's complaint must contain factual matter sufficient to state a claim that is plausible on its face. To determine this, a two-prong step emerged from Twombly/iqbal. This test identifies the factual allegations that are conclusory and takes the remaining well-pleading facts to assess whether the legal claims made by the plaintiff are plausible. i. 1) ID factual and conclusory allegations 1. Mere citation of elements a. If allegations use wording from the statue = kill it 2. Threadbare/naked assertions a. Allegations that don’t have enough facts to give notice to D b. No need for heightened pleading of specified detail facts need to be verifiable, tangible and identifiable to not be conclusory c. Heightened specific details not needed but required pleading facts to state a claim to relief that is “plausible on its face” ii. 2) Consider the remaining well-pleaded facts to assess whether the complaint states a plausible claim of relief 1. Not a probability requirement; but asks for “more than a sheer possibility” that a D has acted unlawfully. P must plead factual content from which P’s desired inferences are “reasonable” a. Facts alleged must be enough to raise a right to relief about speculative level but not a probability requirement b. Need enough factual matter to suggest that the alleged unlawful conduct occurred, to raise a reasonable expectation that discovery will reveal evidence of alleged conduct c. The test is whether the complaint is plausible, not whether it is less plausible than an alternate explanation.  2. Determining plausibility is a “context specific task that requires the reviewing court to draw on its judicial experience and common sense 8. Amending the pleadings a. As a matter of course (don’ care) b. Other amendments i. Written consent (don’t care) ii. Leave of court FRCP 15(a)(2)--(leave of court in depth) 1. Court will freely give leave when justice so requires. Factors to include (foman) a. Significant, inexcusable delay i. Undue delay is a delay that prejudices the nonmoving party or imposes unwarranted burdens on the court. In gauging whether the amendment would prejudice a party, these unwarranted burdens would include expending significant additional resources to conduct discovery and prepare for trial or significantly delaying the resolution of the dispute. Mere delay is not enough to deny amendment but the longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of showing prejudice. Amendments at late stages of litigation are more likely to be prejudicial (like after discovery is closed and motion for summary judgment is filed) ii. Delay alone is typically insufficient grounds to oppose motion for leave to amend 1. Must show bad faith in delaying and/or actual prejudice to the opposing party a. SOL problems b. Reasonable reliance iii. David: wanted to amend answer and now deny 1. If D’s failure to investigate at the time it originally filed its answer was inexcusable, similarly there can be no excuse for its delay thereafter 2. In the 6 months it took for them to amend the answer, the statute of limitations expired iv. Carroll v trump 1. “A three-year delay is more than enough, under our precedents, to qualify as ‘undue.’” a. In sum, three years passed before D raised the defense of presidential immunity, significant additional resources to conduct discovery would be required were D to amend his answer, and the request arose at a late stage of litigation—after discovery closed and D moved for summary judgment. 2. Had Trump raised presidential immunity before discovery closed, P would have engaged in discovery on whether Trump’s actions fell within his official duties 3. b. Undue prejudice to opposing parties i. Situations where it is prejudice 1. David: wanted to amend answer and now deny a. “P was certainly lulled by D during the period between the filing of the complaint and the running of the statute, and it is unquestionable that he has been prejudiced by the delay” 2. Beecke (waterslide case) a. To not allow D the opportunity to contest that the waterslide was not manufactured by them after new info would be comparable prejudice ii. Situations where it's not undue prejudice 1. Jacobs v. McCloskey & Co.: Where P filed suit only 9 days before expiration of SOL, no unfair prejudice b/c D wasn’t even required to answer (and assert that P sued the wrong D) until 21 days later. 2. Guiterrez: a. Granting 5th amendment would not change the procedural posture of the case anyways and required to repeat any action they would otherwise not have taken b. Only prejudice here is having to expend more time reviewing and responding to proposed amended complaint (so not a big deal) c. Bad faith i. Refers to situations where the party that is seeking the amendment acts with a dilatory motive which can include delays, birding opposing party with litigation costs. Basically when they seek to amend without a legitimate reason that is appropriate ii. Doesn’t show bad faith: 1. Guiterrez a. P sought leave to file this new amended complaint only in response to D’s own suggestion about the sufficiency of the previous iteration (D explained how it still fails to plead fraud with sufficient particularity) 2. Beecke (waterslide case) a. Court concludes that they do not think D is responsible for creating the situation of alleged misidentification. 3 insurance companies satisfied themselves as to who they believed the manufacturer was i. D has not acted in bad faith ii. It's hard to determine who the manufacturer was iii. Delay was not bad faith (both p and d blameless) b. iii. Shows bad faith 1. David a. Given that Crompton should have been aware of these terms when it made its initial response, claiming lack of knowledge was inappropriate.  i. Court then sanctioned them for it, stating that if you improperly say you do not know, we are going to admit it (even if it's not true b. P could have gone after real party for liability but since D took to long and waited for SOL to end before saying anything, court is punishing them and saying that the admittance to making the product will be admitted to court (even if it wasn’t true) 2. Other class examples a. P sought to add a D against who P had no colorable claim as a ploy to destroy the court’s jurisdiction d. Repeated failure to cure i. Rule statement: 1. Refers to situations where the P has previously attempted to amend their complaint but has failed to address the deficiencies identified by the court. A history of failed amendments can suggest that P cannot adequately address the issue, signaling that it may be futile (immediately dismissed) ii. Commonly accepted principle that a plaintiff whose original complaint has been dismissed after a Rule 12(b)(6) motion should be given at least one opportunity to try to amend it before the entire action is terminated 1. But then there's a limit 2. Why the presumption that we should give P at least one opportunity to amend following a successful 12(b)(6) motion? a. Even if the district judge has doubts about the plaintiff's ability to fix the issues in their initial pleading, it is generally wise to allow at least one amendment. This approach is commonly followed because, unless there are unusual circumstances, it’s difficult for the court to determine just from a flawed pleading whether the plaintiff can actually state a valid claim for relief. iii. Guiterrez: 1. After granting 5 leaves to amend, they said that that was the limit for the P and then granted D’s motion to dismiss 2. Seems unlikely that P can’t rectify deficiencies in their complaints. They had notice of their deficiencies from D since the second amendment and still haven’t gotten it right. Court also has given clear guidance. e. Futility i. A proposed amended complaint is futile if it would be immediately subject to dismissal. Accordingly, the proper test to apply when determining the legal sufficiency of a proposed amended complaint is identical to the one used when considering the sufficiency of a pleading challenged under Rule 12(b)(6) ii. Legal insufficient (fails to meet pleading standard) 1. Go to 12(b)(6) test iii. SOL (relation back cases) SOL relation back in depth 1. Applicable SOL explicitly allows relation back (leave off of outline - prof) 2. Arose out of the conduct, transaction or occurrence set out in the original pleading (FRCP 15 (c)(1)(B) [relation back test] a. Temporal proximity and general character, same injuries i. realice on at least some of the same evidence, same witnesses testing about the same events/subject matter leading up to that same injury (PORTER) ii. Ex: A negligence claim around the physicians performance during surgery and surgeon failing to obtain informed consent or not arising out of the same event! b. Guiding Principle is always notice (was D already sufficiently on notice) 3. If changing a party or naming of a new party (4 things need to be present for it to be successful) a. Arose out of the conduct, transaction or occurrence set out in the original pleading (FRCP 15 (c)(1)(B) i. Temporal proximity and general character, same injuries ii. Guiding Principle is always notice (was D already sufficiently on notice) b. Notice needs to be within 90 days (4(m)) of original filing i. Did they receive such notice that won’t be prejudice in defending on merits (constructive or actual notice here) 1. Krupski a. Sufficient notice should be deemed to have occurred “where a party who has some reason to expect his potential involvement as a defendant hears of the commencement of the litigation through some informal means 2. Porter: a. Has sufficient notice to add a new claim against the doc who read his CT scan because everyone involved in the original event would have had notice. Hospital would of already talked to him to get the facts 3. Class examples: a. Same lawyer is a slam dunk for having notice ii. Knew/should have known they are intended target of the suit 1. Krupski – focus on prospective D’s knowledge, NOT P’s a. The question under Rule 15(c)(1)(C)(ii) is not whether Krupski knew or should have known the identity of Costa Crociere as the proper D, but whether Costa Crociere knew or should have known that it would have been named as a D but for an error. b. 2. Rogers a. Iovine knew it was intended for him because the P stated in his OG complaint that he was suing “officer miller’s partner” and Iovine knew that was him.  b. He sued the NYPD who has one lawyer representing everyone. So the lawyer had sufficient knowledge and probably did take steps already to prepare iovine’s defense 3. (no notice) Smith – no reason to expect switcheroo a. Because Smith clearly and emphatically identified Officer Rennalls, defendants’ attorney * * * had no reason to expect that Smith would name a different defendant nearly five years later. b. Given Officer Holmes’ denial of the factual underpinning of P’s suit, Officer Holmes had no reason to suspect that he would be named as a defendant. c. In Smith, Holmes can argue that he was not the one who twisted his leg, it's easier to deny this than an arresting officer arresting someone (like in rogers) 4. iii. Knew/should have know they would be named but for a mistake 1. Not a case of mistaken identity a. Smith i. Was not a case of mistaken identity because P wants to sub a D to better conform the evidence to how he now understands it b. Kurpski rule: i. Deliberate choice to sue one party instead of another while fullying understanding the factual and legal differences between the two parties is not a mistake 2. A case of mistaken identity a. Rogers i. Officer Iovine should have known that he would of been named D if P didn’t make a mistake. ii. He asked the precinct and they gave him not Iovine's name (since he wasn’t officer rennalls partner) iii. Iovine had constructive notice from NYPD and their lawyer getting notice and conducting an investigation b. Krupski i. The complaint clearly indicated that Krupski intended to sue the entity that “owned, operated, managed, supervised, and controlled” the ship where she was injured, and it mistakenly attributed those roles to Costa Cruise. (aka did not understand 1. Therefore, Costa Crociere should have recognized that its omission from the complaint was due to Krupski’s misunderstanding of which “Costa” entity was responsible for the ship—demonstrating a “mistake concerning the proper party’s identity.”  ii. Knowledge of newly named D existence does not preclude you from making a mistake about their identity iii. P’s diligence in correcting a mistake is not a factor in 15(c)(1)(c) 1. Amending parties diligence is not a requirement in establishing relation back cases c. Wasserman article + cases cited: i. mistake vs lack of knowledge ii. Nearly every fed court of appeals has concluded that (A) mistake as to the identity of the proper D means an affirmative misapprehension, misstatement, or misunderstanding about the identity of the proper D; mistake does not mean ignorance or lack of knowledge a's to D’s identity d. 3. There is a circuit split in naming a john doe a. Overwhelming majority has held that lack of knowledge in naming a john doe is not a mistake b. Minority viewpoint says there it can be a mistake because it focuses on notice element i. Stage 2: Attacking the Pleadings Motion to dismiss [12(b)(6)] - Subject Matter Jurisdiction [12(b)(1)] Decision to sue - Choosing state vs federal court? (subject-matter jurisdiction) - Choosing geographical location (Personal Jurisdiction) - *we are only doing a basic intro to these principles Subject matter jurisdiction [can be raised at any point, you do not waive the right to bring up subject matter jurisdiction] - Rule statement: - A court has subject matter jurisdiction if it is authorized to hear the type of case brought before it, based on either federal question jurisdiction (involving federal law) or diversity jurisdiction (involving parties from different states with an amount in controversy exceeding $75,000). Subject matter jurisdiction can be raised at any point of the proceedings and a party does not waive the right to challenge subject matter if they did not raise it initially. - 1) Diversity jurisdiction - Requirements: - Complete diversity across the v. - Over 75,000 - Domicile means citizenship (mere residence n the state is not sufficient) - Domicile = “true, fixed, and permanent home and principal establishment,” to which you have the “intention of returning whenever * * * absent therefrom - Change of domicile requires: - 1) Taking up residence in a different state - 2) the intention to remain there indefinitely - Domicile decided at the time the complaint is filed - Case: Mas v Perry - - 2) “Arising under” a federal law - Well-pleaded complaint rule - Case: Mottley - F: Settlement contract cuz railroad settled passengers (mottley) claims with lifetime pass for transportation. Had those for around 35 years. An act of congress prohibited lifetime passes and so the railroad stopped.  - I: Whether the federal statute applies (making it unlawful for the PR to continue to abide by the settlement agreement)? - R: “[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 the defense is invalidated by some provision of [federal law].” - For a case to qualify for federal jurisdiction, the plaintiff (P) must directly base their claims on federal law. This means the plaintiff's complaint must explicitly invoke federal statutes or constitutional provisions. - The plaintiff cannot simply claim that a defense the defendant might raise is invalid under federal law. The focus is on the plaintiff's claims, not potential defenses. - The mere existence of a defense that references federal law does not automatically grant federal jurisdiction. The claims themselves must originate from federal law - H: In order for federal question jurisdiction to be granted, a plaintiff's statement must show that her original cause of action arises under the Constitution or a federal law. It is not sufficient that the plaintiff anticipates that the defendant will raise a federal statute in defense. Instead, the plaintiff's "well pleaded complaint" must state that the defendant directly violated some provision of the Constitution, laws or treaties of the United States. - The well pleaded complaint rule itself: - Rule: The well-pleaded complaint rule states that a federal court has jurisdiction only if the plaintiff’s complaint itself, as filed, raises a federal question. This means that the federal issue must be presented in the plaintiff's initial statement of their claim, not as a defense or in any other context. - 1) What is the source of the enforceable legal right against D is federal law? - In this case, source is a common law breach of contact (contract law not federal law) - So there is no federal question arising here. - If the source is some act of congress then thats valid (copyright, civil rights, discrimination etc) - 2) Look to the statement of P’s own claims; only consider the elements P needs to prove to establish his claim - What elements need to be proven? - Ex: In here, its elements of the contract (meeting of minds, etc) - 3) Ignore anticipated defenses - Ex: trademark  - No amount needed for this one - 3) Supplemental Jx - Typically when you have a second claim - One that does come into federal court and the other does not - Piggybacks on an anchor claim Why do we have federal Q jx? (advantage of federal forum?) - Uniformity in how the law is interpreted - Expertise of fed judges (hear lots of these cases) - Much more experience than state court judges - If there is diff between federal and state law - Internal conflict they can resolve - Bias against the feds - State judges might be hostile towards federal law - Especially if state courts do not wanna protect something that federal court does. - They may be annoyed and show state court bias to be re-elected Recap: Lawsuits that Fed courts are empowered to preside over: - (1) Controversies between citizens of diff states - Citizenship is defined as domicile - (2) Cases arising under the US constitution or a fed statue - Federal right of action must appear on the face of the “well-pleaded complaint” - Insert test from louisville - (3) Either party can choose a federal forum (because D usually can remove to federal court if lawsuit could have been filed there - (4) If the case includes at least one claim that is jusridicitonally proper then the court can exercise supplemental Jx over the claims that are sufficiently related to the anchor claims - Exception - If the parties diversity is the only basis for exercising federal SMJx, the court will not have supplemental jx over claims against additional Ds if that would destroy complete diversity Personal Jurisdiction [12(b)(2) *choosing geographical location Classical power approach to PJX [traditional PJx, geographical boundaries] - Physical presence at the time of service of process - Ex: if you are physically present in the state where they serve you, you are subject to the power of that state - In-state citizenship (domicile for an individual, incorporation in the state for a corp) - Consent or Waiver - I can consent to being sued wherever, even if the above or not satisfied - Like agreeing to defend themselves (showing up to court) or consent by advance (by appointment on in-state agent for service of process or contract)  - Ex: Arizona corp has an in-state agent in Cali and you appoint them as your agent for service of process (you are consenting) - Ex: singing a contract that says any lawsuit from the contract will be resolved in Cali - You can waive in PJx NOT SJx - Failure to timely object (under Rule 12(b)(2) motion) you will waive your right to consent International shoe: Minimum contacts test [for those who do not fit into the classical approach above] - Rule statement: “minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” - Requirement that a defendant must have certain connections or interactions with the forum state for the court to exercise jurisdiction over them. - include things like conducting business in the state, owning property, or having other substantial connections. - This is a standard that ensures that exercising jurisdiction over a defendant is reasonable and just. It takes into account factors like the defendant's relationship to the forum and the implications of requiring them to defend themselves in that location. - Must satisfy both steps! - Step 1) Purposeful availability: Are d’s forum contacts sufficiently purposeful that they can reasonably anticipate being haled into the forum court? - The mere likelihood that a product will find itself in the forum state is insufficient - Where a corporation “purposefully avails itself of the privilege of conducting activities within the forum state, it has clear notice that it is subject to suit there” - Purposeful availment requires evidence of D’s efforts to serve, directly or indirectly the market for its product in that state - Indirect: - By delivering its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state - Component part manufacturer - Contracting with an in-state distributor/retailer - Direct: - Regular solicitation and sales in the forum state - Step 2) Would asserting PJx in the forum state be reasonable and fair? - The minimum contacts test also serves to protect D against the burden of litigating in a distance or inconvenient forum - Relevant factors? - Forum state’s interest in adjudicating the dispute (what law will govern, interest in protecting its citizens, etc) - P’s interest in obtaining convenient and effective relief (amount of recovery sought vs. relative cost of suing far away, location of witnesses/evidence, etc)  - Shared interest of the several states in obtaining the most efficient resolution of controversies and in furthering fundamental substantive social policies - Cost-benefit analysis for determining whether to market product beyond the palace of officially doing business - The test isn’t “what is the best forum” - 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” Preclusion [judge made doctrines] *these are also affirmative defenses under FRCP 8(c) Claim preclusion [Res Judicata] *ways in which a prior judgment may have binding effect on a later lawsuit Three requirements for claim preclusion: 1) There must be a final judgment on the merits in case #1 a) When we decide that you have failed to satisfy rule 8, we are taking a peak at the merits i) We are saying that even if everything you have alleged (based on your mere allegations), we assume is true, your suit will still fail on the merits [plausibility test determines this] ii) Whereas a dismissal for lack of subject matter/ personal jurisdiction is merely alerting the P that they have to file it somewhere else. So that does not say anything about the merits of the case. b) Exceptions where a dismissal has no decision on the merits i) Subject matter or personal JDX ii) Improper venue iii) Failure to join a party 2) Case #2 arises out of the “same claim” as the prior suit a) Claims that come out of “one wrongful act” must be litigated at the same time or else the court will bar them by claim preclusion in further lawsuits b) Case: Rush v city of maple heights i) F: motorcycle accident and she sues city. Wins in first trial for bike repairs and proves that the city was negligent to notify its citizens of its streets condition. She sues again for personal injuries, claiming that the first lawsuit established their negligence already. ii) H: she is barred by claim preclusion to bring another action from the same wrongful act. She should've raised it in the first lawsuit. c) This is necessary to prevent multiplicity of suits, burdensome expense, and delays to Ps, and vexatious litigation against Ds d) What is the “same wrongful act”?  i) Restatement 24 {fed courts use this} (1) Preclusive effect of prior judgment 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” (2) Which is to be determined pragmatically: (factors not requirements) (a) Are the facts retained in time, space, origin or motivation (b) Would they form a convenient trial unit (c) Consider parties expectations or business understanding or usage (d) Lack of asserting a claim should not be subject to separate lawsuit ii) ? iii) What is not arising out of the same act? (1) Warwick case: (a) Suit 1 for excessive force vs suit 2 claimed police cover up (b) Court says these 2 are different so no claim preclusion (c) New factual basis (happened at different times), diff witness/evidence– sufficiently distinct (d) Court beating up vs police station covering up those actions = 2 different wrongs, 2 different torts (i) Obviously there is a relationship between them because underlying event is excessive force (2) Development of new material facts may justify new lawsuit (a) “Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first” iv) What is arising out of the same act [aka will be barred by issue preclusion] (1) Different legal theories (manego) (a) #1 was bc of his race, #2 was because of antitrust laws (b) “Proper focus on same wrongful act test is not on whether P is asserting a diff legal theory but rather on weather the underlying facts of both transactions were the same or substantially similar) (c) The defendant (D) must demonstrate that the factual basis for each claim is essentially the same, not just that it would have been convenient for the plaintiff to join them. This reinforces that mere convenience in litigation does not justify separate claims; they must be factually intertwined. (d) If the claims are based on the same underlying facts, they must be brought together; otherwise, the plaintiff may be barred from bringing the second claim due to res judicata. This aims to prevent piecemeal litigation and ensure finality in judgments. (e) (2) “A mere shift in the evidence offered to support a ground held unproved in a prior action will not suffice to make a new claim avoiding the preclusive effect of the judgment”  (a) If a particular claim or ground was found to be unproven in the earlier action, merely presenting new evidence for that same claim does not create a new claim or avoid preclusion. e) f) 3) Both lawsuits involve the SAME opposing parties a) Needs the same parties for claim preclusion! b) If a party (or parties) in a subsequent case was not involved in the first case, they cannot be barred by the prior judgment. This is crucial because claim preclusion only applies to those who had a chance to litigate the issue in the earlier case. Rule statement: - Could be argued that because they did not make it past the pleading stage and therefore there has been no discovery, the case was not decided on the merits but, when a court grants a 12(b)(6) motion, there are taking a peak at the merits and stating that even if everything you have alleged (based on your mere allegations), we assume is true, your suit will still fail on the merits. Issue preclusion *Effect of foreclosing re-litigation of particular issues of law/fact previously litigated and decided in a prior lawsuit Intro - The policy underlying issue preclusion is that a party who has had a full and fair opportunity to litigate a particular issue of fact or law—and lost—should be precluded from relitigating the same issue again in a subsequent action. - To determine whether issue preclusion applies, a primary consideration is whether the issue disputed in current litigation is the same issue that the party against whom issue preclusion has been invoked already litigated (and lost) in earlier proceeding - Only looking at issues that have been previously litigated - We don’t need the same underlying wrongful act  - We don’t need same parties (only person who lost on the issue in prior proceeding) Each injured person has a separate right, even if her injuries arises from same incident litigated in Suit #1 Due Process principle that everyone is entitled to their day in court – Arthur has already had his day in court, but not Passenger Paula 5 Requirements for issue preclusion 1) The same issue was raised in the prior case a) Factors to consider in deciding whether an “issue” in the two proceedings are the same. [restatement factors] i) Is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? ii) Does the new evidence or argument involve application of the same rule of law as that involved in the prior proceeding? iii) Could pretrial preparation and discovery relating to the matter presented in the 1st action reasonably be expected to have embraced the matter sought to be presented in the second? iv) How closely related are the claims involved in the two proceedings (1) Perhaps determining whether or not issue preclusion applies depends on how narrowly or generally we consider the previous issue to have been. [caroll] (a) Ex: contract enforceable with respect only to statute of frauds vs contract is enforceable are narrow and broad. b) Case: Holtman i) F: Case #1, housing association seeks order to require Holtman to permit completion of installation. 2 years later Holtman filed a counterclaim for property damage. Case #2 Holtman sues both housing associations. And 4-g plumbing ii) H: holtman's case against housing assn is barred by claim preclusion but not his case against 4-G since they were not a party in case 1 AND their negligent workmanship was not an issue in the previous case. c) Case: carroll v trump i) F: Caroll #1 happens in 2019 and Caroll #2 happens in 2022 and caroll #2 gets decided first and she wins on both counts. Caroll now seeks partial summary judgment arguing judgment in Caroll #2 conclusive establishes each element for her 2019 defamation case in Caroll #1 ii) H: The findings from Carroll #2 (that Trump acted with actual malice and that Carroll was truthful about the assault) can be used to establish the falsity of Trump’s 2019 statements in Carroll #1. 2) The issue must have been actually litigated and submitted for determination in the first case a) Actually litigated means that the issue is properly raised, by pleadings or otherwise, and submitted for determination  i) Easy check to see if this is satisfied = if there is a finding from the court (1) If there are facts that the merits of a dispute have been submitted for determination, then you know it's been litigated (2) If resolved on summary judgment ii) NOT LITIGATED (1) If in our answer, we admit something is true (2) If issue is admitted, stipulated or conceded in an action, if the litigation is voluntarily withdrawn upon settlement, or if parties simply chose not to raise an issue = that is not actually litigated 3) The issue must have been determine in favor of the party invoking the prior judgment a) General verdict: “we find for D” b) Special verdict: requires jury to make a written finding on specific issues of fact and nothing more i) The judge then applies the law to jury’s written findings to determine the prevailing party ii) Ex: “Did you find that the light was red when they entered the intersection?” c) General verdict accompanies by special interrogatories (hybrid) i) Jury asked to answer specific Qs of key issues of facts and theme ender a general verdict (1) Provides means of guiding jury's deliberations and determining the basis for its decisions, while also leaving it to the jury to determine which party should prevail d) If we have special, then we know exactly what they decided cause they tell us e) If we just have a general verdict, it might be more difficult to find out the issue decided 4) That determination was essential to the court’s judgment in the prior action a) A determination is essential when its finding would change the outcome of the case. b) Exception: i) There will be no preclusive effect where “as a matter of law could not have obtained review” (1) Because winning party has no right to appeal to sort out errors (2) Only a party who has had a full and fair opportunity to litigate a particular issue of fact or law–and lost– should be precluded from relitigating the same issue in another action. (a) The ability to appeal an erroneous decision is part and parcel of this “full and fair” opportunity bundle of rights c) Insert peacock hypo d) Case: Trombley [alternative determination exception] i) Case #1: Malloy and Trombley vs state of NY (via the trooper britt) (1) Court finds: (a) Ps failed to prove that officer britt was negligence (b) Both malloy and Rrombley were contributorily negligent (which under NY law barred recovery against the state) ii) Case #2: Malloy vs trombley (1) Tromblery asserts as affirmative defense that Malloy was negligent (which would bar recovery); may malloy re-litigate this issue?  (2) Did malloy have a full and fair opportunity to litigate the issue in case #1? (a) Malloy could have appealed first case since he lost but was discouraged from appealing (b) Alternative determination exception: [rule] (i) R: If a judgment of a court of first instance is based on the determination of two issues, either of which standing independently would have been sufficient to support the result. (ii) Judgment may not be conclusive in respect to either issues (iii) Because either “malloy was negligent” or “officer brit was not negligent” would have been enough to support judgment for state in Issue #1, it’s a worry that either determination was not carefully or rigorously as considered by the fact finder (3) Outcome? (a) BUT, as applied, the court holds that in this case the issue was fully litigated. Judge made full blown findings and Malloy had ever incentive to vigorously mitigate the contributory negligence issue in his case against state, so alternative determination exception should not apply here (4) Dissent outcome [effectively there is no point in appealing a case that you are destined to lose] (a) Uness we have reason to believe that Malloy has a strong basis for appealing an error that leads to the conclusion of trooper not bring negligent, then he would have a full right to appeal. But from the case, the evidence in favor of trooper brit was so strong and correctly determined, that sure, he could appeal in his finding of contributory negligence, but he would of lost anyways and it would be a waste of time e) Exam approach i) 1) Do we have alternative determinations? ii) If so, should we be considered with this carefully and rigorously determined piece (1) Bench trial= full blown facts (a) Not so worried about if the issues were fully and carefully determined (2) jury= secret so we won’t know how carefully and rigorously they discussed one issue iii) Talk about potential problems under the facts of your problem with respect to “do we have a real right to appeal” (1) Aka did we have a full and fair opportunity and see it all the way through in light of alternate determinations 5) The party against whom issue preclusion is now asserted (i.e. the party who lost on that issue in the prior proceeding must be a repeat player) must have been a party to the prior adjudication a) Under what circumstances can somebody who wasn't a party at all to that prior litigation take advantage of that prior lawsuit? b) Winning party raising issue preclusion:  i) Winner can’t raise issue preclusion on an issue they won in a previous court if it's a new defendant on the other side of the v. (1) Everyone gets their day in court and would be a violation of other parties due process for a judgment to be binding on a litigation who is not a party and therefore had no opportunity to be heard. c) Defensive non-mutual issue preclusion i) It would be unjust to permit one who has had their day in court to reopen identical issues by merely switching adversaries ii) misallocation of resources to allow repeated litigation of the same issue as long as the supply of unrelated defendants holds out iii) R: If you are not a part of the first lawsuit and you are a defendant in the second lawsuit, you are permitted to invoke issue preclusion, where an issue in the prior lawsuit that was decided favorably to you, against a P who did litigate and lost in that issue in the first case (1) Efficient and fundamental fairness d) Exceptions: i) No full/fair opportunity to litigate the issue in case #1 (1) Exception to general rule of issue preclusion where a “new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts” (a) I.e. no issue preclusion it can show that suit #1 failed to provide them with a full and fair opportunity to pursue their claim ii) Differences in forum (1) It will be difficult for P (who is repeat player) to win on such an argument because the P typically chooses the forum (2) But consider mandatory arbitration, low $ claim that must be tried in a limited jurisdiction court (a) Consider the procedural limits in that forum: How limited was the right to discovery? Was witness testimony taken? Right to cross-examine opponents witnesses? Right to call experts? (3) ONLY USE WHEN: Only use this exception where there are meaningful differences between forum in case #1 and case #1 (a) If fact pattern tells you that case #1 and #2 in the same forum, DO NOT USE IT e) Offensive nonmutual issue preclusion i) Offensive is when a new plaintiff seeks to take advantage of a ruling made against the D in a prior suit. (1) they can since the repeat player has had a full and fair opportunity in court to litigate that issue. (2) ii) Parklane factors (1) The factors: [any one might do but consider all] (a) 1) Would it encourage potential litigants to wait and see (rather than joining in the 1st suit) if we permit them to invoke the prior  judgment when resolution of the issue goes favorably for them in the prior suit (b) 2) Would it be unfair to foreclose D from litigating the issue now, since the issue was previously litigated in a forum not of D’s choosing? (i) Restrictive procedural rules? (ii) Inconvenient venue? 1. Far away, little access to evidence/witnesses (iii) No incentive to aggressively litigate? 1. Were the issue in first case small enough to not aggressively litigate it (c) 3) Are there prior inconsistent judgments on the issue, which may suggest that it would be unfair to give conclusive effect to any one of them (i) Multiple courts that have decided differently (ii) if there are prior inconsistent judgments on this issue, it would be unfair to give conclusive effect to any one of them (2) Case: parklane (a) F: (i) Case #1: SEC sues parklan in fed court for issuing materially false proxy statement; court issues declaratory judgment to that effect (ii) Case #2: shareholder class action lawsuit against parklane based on same proxy statement (seeking monetary damages) (iii) Shareholders, P were not a party in the SEC action, and argue that Parklane should be precluded from re-litigating the issue already resolved against parklane in previous suit (material falsity of the proxy statement) (b) H: Discovery Discovery scope Why do we have discovery? - Liberal approach: The discovery rules were intended to make a trial a less of a game of blindsman's bluff and more of a fair contest with basic issues and facts disclosed to the fullest practical extent - to reach the merits of a case, we won't full access to all the evidence - Mutual knowledge of the relevant facts by both parties is essential to proper litigation  - Reasons for discovery: - 1) Preservation of the evidence before trial - 2) Narrowing the issues in disputes between the parties - there might be some things that both parties are on the same page about - 3) Preventing surprise - Ensure that we all know exactly what we're dealing with, what the bad evidence is and how we can deal with that Rule 26(b)(1): Discovery scope - Rule statement: Unless otherwise limited by court order, the scope of discovery includes any nonprivileged matter that is (1) relevant to any party's claim or defense, and (2) proportional to the needs of the case, taking into account factors such as the importance of the issues, the amount in controversy, the parties' relative access to information, their resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. - 3 factors: - Nonprivileged - (discussed below) - Relevant - Relevant evidence 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. Relevances to be construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on any party's claim or defense. - “Of consequence”: means that it can disprove / prove a claim - any fact that impacts the plausibility of any inferences that you might need in order to prove or disprove an element - “ More probable or less probable than”: Does the existence of that fact make it more probable or less probable than without it? - What’s considered relevant? examples. - Case example: Sears - Info concerning previous accidents and complaints is clearly relevant to weather the product was unreasonably dangerous and D’s knowledge thereof - More customer complaints = more understanding sears would have that this is an issue - Case example: State farm - No access other through discovery (if its a companies database) - Proportionality [Regarding