Civ Pro 1 Outline

Savana Degroat
CIVIL PROCEDURE Outline 2020

Dr. Erik Girvin
Basic Joinder
Joinder of Claims-
 FRCP 18(a) – Allows a party already asserting a proper claim, counterclaim, crossclaim, or third-
party claim to “pile on” additional claims, even if unrelated. Permissive. Rule 18 does not have
“same transaction or occurrence test”.
 Counterclaims: FRCP 13 distinguishes between “compulsory” and “permissive” counterclaims.

Opposing party.
o Compulsory- FRCP 13(a) “same transaction or occurrence”
Use it or lose it. (Claim Preclusion)
Always satisfies SMJ.
o Permissive- FRCP 13(b) Defendant can make non-related claims against the opposing party
any claim that is not compulsory. Not required.
Determining if a counterclaim is compulsory or not-

 Transaction or occurrence test (as seen in Nasalok Coating Corp. v. Nylok Corp.).
o Three tests to determine whether the “transaction or occurrence” test of Rule 13(a) is met.
1- Whether legal and factual issues raised by the claim and counterclaim are largely the
same
2- Whether substantially the same evidence refutes or supports both the claim and
counterclaim
3- Whether there is a logical relationship between the claim and counterclaim.
 Crossclaims: FRCP 13(g) Against a co-party.
o Must arise from the same transaction or occurrence that is the subject matter of the
original action. Will later require 13(a) compulsory counterclaim to file any compulsory
counterclaims against cross-claiming party. (as seen in Rainbow v. Atlantis).
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Joinder of Parties –
 FRCP 20 Permissive joinder of parties- governs the joinder of both plaintiffs and defendants.
 FRCP 20(a)(1) – Plaintiffs
o Request for relief must arise from the same transaction or occurrence or series of
transactions or occurrences. AND any question of law or fact common to all plaintiffs
will arise in the action. (Nasalock T/O test, see above)
 FRCP 20(a)(2) – Defendants
o Persons (as well as vessel, cargo, property in rem jurisdiction) may be joined in one
action as defendants if -same transaction or occurrence and any question of law or fact
is common to all defendants. (Nasalock T/O test, see above)
o As held in the Liberty Media Holdings, LLC v. Bittorrent Swarm, not enough that the
defendants engaged in same violation in the same way. They did not act “in concert”
with another.
Personal Jurisdiction
PJ Analysis
1. Long Arm Statute (therefore the rule becomes Due Process of 14 th amendment)
2. Is the person a resident of the forum state? (Pennoyer v. Neff)
3. Was the person served within the forum state? (Burnham)
4. Did the person consent to jurisdiction? [via contract, appearing in court non specially, or failing to
contest]
If No to all above questions determine if GJ or SJ can be found.
General Jurisdiction
 Express consent?
 Physical Presence? Resident or served while in forum state?
 “At home”? (For individual it means their domicile. Current dwelling+ Intent to stay also a number of
other factors like drivers license, voting records, tax records, to determine domicile) (For corporation it
means state of incorporation or principal place of business. “Nerve Center Test”)(Lundquist v.
Precision Valley)
Nerve center test: where a corporation’s officer direct, control, and coordinate the corporation’s activities.
Where the headquarters are (provided that the HQ is the nerve of the business).
Specific Jurisdiction (non res defendant served outside the forum state)
 Minimum contacts with forum state that are systematic and continuous (Int. Shoe) and related to the
litigation (Shaffer) that evidence purposeful availment rather than merely isolated, fortuitous, or
unilateral acts of the plaintiff (Hanson, WWVW).
 Defendant reached into the forum, specifically targeted.
 AND the litigation arises from the contacts (NOT Shaffer).
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 Would finding jurisdiction offend traditional notions of fair play and substantial justice? If Plaintiff
satisfies minimum contacts Defendant can still argue fairness factors; burden on the defendant, burden
on the forum state, forum interest in the dispute. (Burgerking)
Five Factors of “Fair Play and Substantial Justice” – burden on defendant, plaintiff’s interest, forum
state interest, interstate judicial system interest in efficient resolution, common interest of the state in
promoting social policies.
PJ Cases-
 PENNOYER: Established General Jurisdiction – Physical Presence, Consent to Suit

 INTERNATIONAL SHOE: Established Specific Jurisdiction- Minimal Contacts. Contacts must be related
to the claim.
 MCGEE: D reached into forum; purposeful availment. Insurance company reaching out to renew
insurance policy counts.
 HANSON: Unilateral Act of Plaintiff or 3rd party not sufficient, if fortuitous. “Purposeful availment by
defendant”
 SHAFFER: Ds contact w/ forum not subject of litigation. Minimum contacts necessary for quasi in rem
(partially overrules Pennoyer).
 WWVW: Unilateral Act of 3rd Party or P; fortuitous. No marketing or direction at the state.
 BURGER KING: D reached into forum; purposeful; fairness factors
 J.MCINTYRE: Not purposeful. D did not target the forum. Regular flow of products.
 WALDEN: About purposeful contact between defendant and forum
 DAIMLER: At home (domiciled there) it is constitutional
 BURNHAM: upheld the constitutionality of in-state service of process as a basis for establishing
personal jurisdiction over an individual real person.
 ADVANCED TECHNICAL: Specifically target, not general
Venue
Federal analysis Federal Courts

General purpose is to protect the defendant from picking an unfair or inconvenient place location for trial.
Proper Venue: A venue is proper when…
 §1391(b)(1) - Do All D’s reside in the same state? If yes, any district within the forum state is proper. (A
business resides in ALL districts where it’s subject to PJ.)
OR
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 §1391(b)(2) - Where “substantial part of events or omissions giving rise to the claim occurred” or
where “substantial” portion of property subject to the action. (Astro-Med INC v. Nihon Kolden
American, INC)): entire sequence of events + holistic view (from both parties not just D as with PJ).
ONLY IF (b)(1) and (b)(2) cannot be met do you move to…
§1391(b)(3) - Any Venue is proper where the court has PJ over at least 1 D.
If the defendant does not like the venue…

§1404(a) – For convenience of parties, and in the interest of justice, the D/C court MAY transfer to another
court w/in the same judicial system where venue is proper. (Court’s Discretion).
Note- The Supreme Court has held that valid, mandatory forum-selection clauses should be enforced via the
federal transfer statute, 28 U.S.C. § 1404. (Atl. Marine Constr. Co)
Balancing Test: Motion to transfer only granted when clear showing by moving party that the balance of
convenience factors outweigh substantially P’s chosen venue.
Public Interests v. Private Interests

Private Factors: (articulated in Meteoro v. Six Flags)
Relative ease of access to evidence
Relative ease of access and cost to witnesses
Practical problems that make a trail easy, inexpensive, and expeditious.
Public Factors: (articulated in Piper Aircraft Co. v. Reyno)

Congestion of courts
Interest in local controversies decided at home
Law of forum
Jury duty burden
Court’s ability to administer
If the original venue is improper…

§1406(a)- Court has discretion to dismiss the case or if it be in the interest of justice, transfer to a proper
venue.
Motion for Foum Non Conveniens (FNC) (as articulated in Piper) dismissal is for situations where:
PJ and venue are both ok,
But there is a much better place to litigate, and
Transfer is not possible (because between State Court and another State or a District/State Court and a foreign
country).
Court looks at same Metoreo public and private interest factors.
For a court to dismiss the case, it is crucial that another court is Available & Adequate.
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More convenient laws in a particular forum is NOT a factor.
Subject Matter Jurisdiction
State Courts are of general jurisdiction they can hear most any case that is not exclusively under the
jurisdiction of the federal court. Federal Courts are of limited jurisdiction. You cannot contract around SMJ.
Does a federal court have subject matter jurisdiction?

 Constitution, Article III, §2  the judicial power of the US shall extend to all cases:
o Arising under the Constitution, laws of the US
o Between a state and citizens of another state
o Between citizens of different states
o Between a state, or citizens thereof, and foreign states, citizens, or subjects
 28 USC sec. 1330-1369 grants “original jurisdiction”

o 28 USC sec. 1331 Federal Question: “arising under”
o Well-pleaded complaint rule: (Mottl
o ey; CAT)  Federal issue must “arise” as part of plaintiff’s complaint (part of the
substantive claim). Anticipated defenses using federal law do not count.
o “Substantive/ substantial issue of the case” federal issue, “serious federal interest”,
Congressional intent and “disruptive portent”
o Exception to Well-Pleaded Complaint rule: Grable and Sons- even though plaintiff did
not raise federal law the claim required interp of federal law and gov had strong interest
in uniform interp. Also, if federal law completely preempts the state law, Beneficial
National Bank.
o Complete preemption (Beneficial National Bank- federal issue implicated)
o 28 USC sec. 1332 Diversity Jurisdiction: “75k AIC” and “citizens of different states”
 REQUIRES:
 Complete diversity between the parties (across the v)
 Complaint alleges amount in controversy exceeding $75,000
 Dollar amount must be met for each defendant.
 Plaintiff can aggregate money amounts from joined claims against a single defendant.
 Unincorporated business (LLC) residence is determined by the members residence. (Zambelli)
 Remember, corporations we use the nerve center test from Lundquist. (PPOB or incorp.)
 Multiple plaintiffs cannot aggregate claims together to meet AIC. – could use supplemental
for this though, but one plaintiff would need to qualify for DJ or FQ jurisdiction first.
 Exception for actions against Native American Defendants for reservation-based claims (Tribal
Sovereignty) (Sup. Oil)
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 Must apply the same substantive law as would the highest court of the state in which it is
sitting [Erie v. Tompkins].
o 28 USC sec. 1367 “supplemental jurisdiction”

 Must have two claims – 1 w/SMJD and 1 related state law claim.
 1367(a) – GIVETH
-Are the two claims related? (Gibbs test gave us the common nucleus of operative fact)
-The district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution.
-Includes claims that involve the joinder or intervention of additional parties.
 1367(b)- TAKETH
Only applies to claims that rely solely on DJ.
-Would application of SJ destroy diversity?
-Are persons made parties under FRCP 14,19,20, or 24
-By persons proposed to be joined at plaintiffs under FRCP 19
-By persons seeking to intervene under FRCP 24.
IF yes to these questions, NO SJ.
 1367(c)- Even if SJ proper, the court has discretion to not allow it.
-Novel or complex issue of state law
-State law claim predominates over federal claim
-DC dismissed original jurisdiction and case hasn’t progressed far.
-Always bring this up in a SUP jdx analysis.
Removal
The Analysis:
28 USC Sec. 1441
1. Is there SMJD under federal question (1331) or diversity (1332) jurisdiction? In other words, would the
federal court have original jurisdiction over the claim?
 If yes to federal question claim then, removal is permitted.
Caterpillar determined we use the well pleaded complaint rule for this.
Same exceptions with
2. If diversity jurisdiction only:
 Does the home state rule apply? (under 28 U.S.C sec. 1441(b)(2), is any defendant a citizen of the
state where the plaintiff filed the case?
If so, no removal.
 Fundamentally, if the plaintiff could have filed in the federal court but chose state court, the defendant
can remove as long as the home state rule does not apply.
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 Removal cases require diversity to be present both on the date the case was filed and on the date that
removal occurs.
 Time limit: defendant must remove within 30 days of from when D was served with process. For
diversity cases, defendant must remove within 1 year of the commencement of suit unless the plaintiff
acted in bad faith to try to make the case non-removable.
 28 USC Sec 1441(c)(1)(b)- allows defendant to include state related claims in the removal that will later
be dismissed to prevent the plaintiff from adding state claims to prevent removal. The district court has
discretion to hear the state claims or not.
If the plaintiff disagrees with removal can file a motion to remand under 28 USC sec. 1447
Exceptions to sec. 1441:

 Complete preemption as an exception – Article VI “Supremacy Clause”
Example: Beneficial National Bank
 Substantial Federal Interst / Essential Federal Element as an exception
o (1) The claim must raise a significant federal issue and implicate a substantial federal
interest AND,
o (2) Exercising federal jurisdiction is consistent with congressional judgement and would not
disrupt the sound division between state and federal courts
 Assessment of disruption: common or rare? Does it open the floodgates?
 Federalism – respect state sovereignty/power
Choice of Law
Horizontal Choice of Law

 Decides which of co-equal sovereigns (states) law to apply in Diversity Cases.
 Rule: Lex Loci- Created by judges. Apply the law from the state where the injury occurred.
 Paul v. National Life: creates a few exceptions to the rule of Lex Loci- 1- unless something about state
law conflicts with public policy and unless forum shopping – discretionary. difficult to predict.
 Public Policy: straightforward, east to apply, but also easy to game it is over and under inclusive,
seems unfair.
Vertical Choice of Law

 If the choice affects the outcome it is substantive and state law will govern b/c it changes the outcome.
 Erie Doctrine
 Relevant to Federal Court hearing a diversity SMJ or SUPJ jxn claim,
 Deciding whether to use Federal Law or State Law, when that choice is determinative of the outcome
(not an issue is not)
FIRST
 Is there a conflict of law?
 If no, apply federal law in federal court.
 If yes, apply two prong Hanna test:
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1. Is there a fed law/rule in the supplement that governs whatever is at issue?
If Yes, use it. If NO, move to Hanna part 2 (outcome determinative test)
2. If at the time of filing, applying state law or applying federal law would determine whether a
plaintiff will win or lose a claim, apply state law.
 If no one would care about it at time of filing then it is procedural= FED
 If you would care about it at time of filing it is substantive = State
Public Policy giving rise to this rule: federalism and forum shopping.
Class Actions (Advanced Joinder)
A few notes on class actions:

 A category where prior litigation can be expected to bind somebody’s rights who never actually had a
chance to participate in the original litigation.
 Exceptions to due process requirement: (not all req.’s just ways to satisfy due process)
o They were actually a party to the lititgation
o Common interest with the members of the parties in the original case
o Someone served as a legal representative in their place
o If they actually participated, even if their name wasn’t in the caption.
o Adequate representation of their interests.
 Constraint: people who are present must have adequately represented the interests of those who are
not present for those who are not present to have their right limited.
 If you want multiple parties in a case, you use rule 20. Class action is another rule for joining plaintiffs.
You do NOT have to satisfy 20 and 23.
Step 1: Certify the Class

 Rule: 23(a) – 4 prerequisites (ALL must be met)
 Due process requirement: P have to be fairly and adequately representing everyone who falls within
the class due to constraint issue above.
 At this stage, whatever the P claims this is about, is what the court is going assume the case is about.
 One or more members of a class may sue or be sued as representative of all members only if:
1. Numerosity: The class is so numerous that joinder of all member is impracticable. (Girvan says 40+)
2. Commonality: there are questions of law or fact common to the entire class. As long as you have 1
that is sufficient.
Use the Gibbs test of CNOF
PP around efficiency. Concerned with how a class action as a procedural mechanism can address
widespread issues.
Walmart v. Dukes: est. heightened standard for all class actions. The P did not offer significant
enough evidence. Makes a(2) req equal to that of b(3) that they must show common answer
(remedy) to a question that predominates all claims). The question is no longer “is there a common
question that can be answered” but “is that common question going to be so predominating that it
is common to the whole class.” Court didn’t think so in this case.
3. Typicality: Claims are typical of all claims of the class; the class has been impacted in a similar way.
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PP relates to fairness more than commonality does. Named P will actually represent the interest of
others, as is related to the harm they experienced.
Szabo: A claim is typical if it arises from the same event or practice or course of conduct that gives
risk to the claims of the other class members and based on same legal theory.
4. Adequate Representation: the representative parties will fairly and adequately protect the
interests of the class
Hansberry: A person whose interest is in having the K enforced cannot possibly adequately
represent the person whose interest is the opposite.
o General rule: one is not bound is he was not served of notice of the lawsuit- cant be bound
by the judgement of a case where they weren’t really there.
Step 2: Declare type of Class actions
 Rule 23(b) – 3 traditional types of class actions (one MUST be met)
A class action may be maintained if Rule 23(a) (prerequisites) is satisfied and if:
23(b)
1. If individual actions would create a risk of Inconsistent/Unworkable Outcomes
a) inconsistent adjudications would establish incompatible standards to opposing party (D
perspective) OR
b) individual adjudicaations would substantially impair or impede individual class members’
ability to protect their interest. (P perspective)
 FRCP 32(c)(2)(a) and (3)(a) – no opportunity for class members to opt out and no required
notice.
2. Injunctive/Declaratory Relief
o Applies only when a single injunction or declaratory judgement would provide relief to each
member of the class.
o One outcome will fix the problem for all Ps.
o Example: civil rights cases (school desegregation type of suits)
 FRCP 32(c)(2)(a) and (3)(a) – no opportunity for class members to opt out and no required
notice.
3. Monetary Damages
Rule 23(b)(3) has a Two Prong Test:
1. Common question predominates over individual Q./issued
AND
2. Class action is a superior method to other available methods for fairly and efficiently
adjudicating the controversy.
Superiority Factors:
o Members interest in individual control over the case
o Extent and nature of the litigation already underway
o Desirability of concentrating litigation in a particular forum
o Difficulties of judicial management over the class action
(FRCP 23 (C)(2)(B) and (3)(B)– Requires best notice practicable under the circumstances (reasonable
effort) and opportunity to opt out (ability to choose ahead of time to not be bound by decision).
Step 3 : Rule 23(c): Motion to Certify: this court’s decision will be binding on the class.
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Pleading
Rule 7- defines the pleadings- nothing else is pleadings and nothing will count as a pleading if you don’t label it
under the terms in this rule.
Modern pleading: not as precise or high stakes as the writ system, still narrows the scope.
Purpose: give notice to the opposing party (notice pleading) and constrain what the case is about.
 Fact Pleading (code pleading)
o Req that you provide all facts you’re going to use in support of that element
o Purpose was to move past formality and get to facts, very efficient for court
o Largely replaced by notice pleading but still used in some states.
o PP- reduces frivolous claims but higher threshold
 Notice Pleading
o Provides premade forms for a P complaints; the facts are not ample, the form provides draws
legal conclusions instead
o Idea is that you should not have to tell the D all of the facts about your case, just put them on
notice.
o Possibility Standard articulated in Swierkiewicz, “court shouldn’t dismiss unless “no set of facts”
could be consistent with pleading as to entitle P to relief- if true it is impossible for the P to
recover
o PP: low pleading threshold = easier for someone to get their day in court
Rule 8(a)- Claim for Relief: A pleading that states a claim for relief must contain:
1. A short and plain statement of the grounds for the court’s jurisdiction, unless the court already
has jxn and the claim needs no jurisdictional support
2. A short and plain statement of the claim showing that the pleader is entitled to relief aka just
enough to notify the D about what his claim is about (Do NOT have to establish a prima facie
case)
3. A demand for the relief sought, which may include relief in the alternative or different types of
relief.
 How to satisfy 8(a), “a short and plain statement” requirement
o Plausibility Standard (mix between fact and notice pleading)
 Plausibility Standard (Twombly) – 8 (a)(2) requires P to provide enough facts to state a claim
to relief that is plausible on its face; facts must trigger right to relief
 Twombly got rid of the “no set of facts” standard of Rule 8 and introduced plausibility
pleading which requires the claim to be plead a claim to relief that is plausible on its face.
 Previously, there was no set of facts test; merely conceivable
 Plausible pleading looks like: There must be a reasonable expectation that there will be facts
regarding the claim to be found in discovery. Nudge across the line from possible/conceivable
to plausible.
 Any allegation that is merely a legal conclusion can be ignored.
 Plausibility Test (as articulated in Iqbal)
o Step 1- strike all legal conclusions and assume all factual statements are true
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o Step 2- using judicial experience and common sense (flexible!!) court decides whether
using factual statements in pleading plausibly suggest an entitlement for relief
 Between possible and probable.
 Reasonable people will be able to differ.
 Cannot just claim facts that are consistent with D liability not probable without facts
o PP: Court wanting to stop frivolous claims that allow people to abuse the discovery
process, over and under inclusive.
Heightened Pleading Standard

Rule 9(b): For Fraud or Mistake
 “A party must state with particularity the circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person’s mind may be alleged generally”
 Wallace v. Tesoro Club: (employee suspected taxes being recorded as earnings)
Required allegations of the time, place, contents (manner) of fraud, who committed fraud, and what
the person obtained through the fraud.
 Heightened pleading standards do not apply to intent. Also, suspicion not accusation.
Rule 9(g): Special Damages
 The kind of injury you wouldn’t expect to result from underlying event (ex- lost business relationship)
 Any item of special damage must be specifically stated
1. Specifically stated means that P must allege actual damages with particularity
2. Actual damages with particularity is the what was the damage, time, place, manner, AND specify
facts showing that special damages were natural and direct result of D conduct (causation)
 Must notify D of unusual damages and logically connect damages with D behavior.
Browning v. Clinton: P had to prove actual pecuniary loss, particular customers whose business had
been lost, and causation, among others, which she could not prove.
 Note: If you satisfy rule 9, you will automatically satisfy rule 8. But there is a narrow space where
satisfying rule 8/plausibility also satisfies rule 9.
Initiating a lawsuit- summons and service

Rule 4: summons, the whole point is giving the person notice
Mullane: (newspaper ad notice, name/addresses unknown but some would have been able to be found)
 Notice is constitutionally required, and the notice must reasonably convey the required information
and must offer any interested parties a reasonable time to come forward.
 Names and Addresses known: mail or serve in person. Unconstitutional not to notify if their
addresses are known.
 Names known: reasonable due diligence to find them with a cost benefit analysis (look at the cost of
the case and do some balancing)
 Unknown: We hope they are represented by the people above (newspaper okay)
 Notice has to be reasonable under the circumstances
 Flexible, under the circumstances
 Notice cannot be a mere gesture or feint
 Notice of publication is the last resort
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Representations to the Court

Rule 11- Signings, pleadings, Motions, and other papers; Representations to the Court; Sanctions
 Prevents people from fabricating facts so they can meet rules 8/9
11(a): Signatures
 Must sign written representations to the court
11(b): Representations to the court
 By signing the attorney is certifying to the best of their knowledge, info and belief and after a
reasonable inquiry under the circumstances, the submitted, and signed materials are:
1- Not submitted for improper usage such as to harass, delay, or unnecessary cost (as articulated in
Christian-bad faith)
2- Warranted by existing law/ a non-frivolous argument (articulated in Christian and Walt Disney)
“reasonable under the circumstances and what was reasonable to believe at the time”
Walt Disney – “reasonable under the circumstances test”
Step 1- Whether the party’s claims are objectively frivolous
Step 2 – Whether the signer should have been aware
Christian- “non-frivolous argument test”
Step 1- Whether complaint is legally and factually baseless
Step 2- Attorney has conducted a reasonable and competent inquiry before signing and filing
3- Likely have evidentiary support AND
4- Any factual denial is likely warranted by evidence or lack of information
11(c): Sanctions – Court imposed sanctions are appropriate when signer files a pleasing in bad faith (Walt
Disney)
1- If after notice and reasonable opportunity to respond, court determines 11(b) violation, Court may
impose sanctions
2- Motion for Sanctions
o Must be made separately
o Must describe specific conduct
o Must be served according to Rule 5 standards (Rule 5 = how you do service to the attorney of
the defendant after the P has served the defendant.)
o Must not be presented to court if withdrawn within safe harbor – 21 days after service.
o If warranted, court may impose reasonable expenses
3- On Court’s initiative
4- Sanction limited to what suffices to deter – expenses directly resulting from the violation
*Rule 11(b) violation sanctions are appropriate against a party who files a pleading that:
o No reasonable basis in fact
o Is based on an unsupportable legal theory
o Is made in bad faith for an improper motive
o “reasonable under the circumstances test”
o Rule 11 meant to deter frivolous lawsuits and not novel legal arguments.
11(d): Rule 11 is inapplicable to discovery; Christian v Mattel. Sanctions do not apply outside of the pleadings.
o Sanctions proper for deliberate indifference to obvious facts but not simply weak evidence
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o Success on a summary judgement alone does not guarantee the parties costs should be paid
Final Note Pleading:

Failure to comply with these rules could lead to a Rule 11(c) sanction. The other parties could file a motion for
sanction under Rule 11(c)(2) if the rule violator is outside the 21 day safe harbor to correct or withdraw, and
continue to pursue a claim that is in violation of Rule 11(b) standards. The sanction is usually the reasonable
expenses incurred due to the violation.
Amending/Supplementing a Pleading
 Rule 15(a): Amendments before trial

Amendment allowed “when justice so requires” (very broad- Beeck v. Aquaslide)
“justice” is a similar concept to fairness- a decision on the merits. If facts are wrong, it compromises a
decision on the merits.
1(A): You can amend a complaint within 21 days of serving as a matter of right, no permissions needed.
1(B): 21 days after required response
1(c): OR 21 days after certain Rule 12 motions
(2): Amending with written consent of opposing party or amend with court’s permission which should
be freely given when justice so requires
“Justice Considerations”: Was the moving party acting in good faith? Did the party mess up when they
should have known better? Will it prejudice the other party?
Motions to amend granted unless: bad faith, undue delay, prejudice to non-moving party
 Rule 15(b): Amendments during and after trial
Allows you to change/add legal theories/factual allegations to the original complaint
(2) Issues tried by consent -issues not raised by the original pleadings shall be treated in all respects as
if they had not been raised
o When an issue not raised in the pleadings is tried by the parties’ express or implied consent, it
must be treated in all respects as if raised in the pleading. Otness (ship sunk by navigation aid)
o In Otness: Amendment by π to amend denied. Amendments must cause the pleadings to
conform to the evidence. This is to ensure that the pleadings support the judgement and to take
cognizance of the issues that were actually tried. Court said allowing this amendment would be
prejudicial.
o Implied consent:
Prejudicial to D if their evidence or defense would have been different and D cannot be said to
have had a fair opportunity to defend against the issues raised by the FRCP 15(b)(2) motion.
o A party may move at any time, even after judgement, to amend the pleading to the evidence and
to raise an unpleaded issue. Evidence and the defense would likely have to have been the same.
If defense would have been different then failure of notice, fairness issue, decide case on the
merits.
 Rule 15(c): amend the party/add a new party
3 different conditions for relation back:
1- Defending party knew or should have known action would be brought against it but for a mistake
concerning the correct identity
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2- Party is given notice w/I 120 days from when the original complaint was filed AND party wont be
prejudiced.
 Rule 15(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
(A) Applicable law allows – law that provides applicable statute of limitations allows relation back.
(B) The new claim or defense relies on the same transaction or occurrence set out in the original
pleading; extent – logical relationship.
(C) The amendment changes the opposing party or the name of the opposing party if
o Rule 15(c)(1)(B) ^ is satisfied and
o Within Rule 4(m) (90 days)
o AND the party to be brought in
o Received notice and will not be prejudiced in defending the merits
o Knew or should have known the action would have been brought against it, but for a
mistake concerning the property party’s identity. Erwin (Foxy Lady)
Supplementing a Complaint
 Rule 15(d): Supplemental Pleadings
On motion and reasonable notice, court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event that happened after the original claim was
filed.
o Scope- Supplementing your complaint is to add stuff about things that happened after filing.
(Amending is for adding things that happened before filing)
o Court may allow this even if the original pleading is defective
o “Just terms” factors:
Good faith by moving party/ bad faith of other?
How Prejudicial is it to the non-moving party?
Will it cause undue delay?
Would allow it require a lot of prep?
o PP: Rule designed to handle potential issues of fairness. Both fairness and efficiency promoted.
o Stewart v. Shelby Tissue: Generally allowed unless bad faith.
Court will grant motion if:
-Factual basis supp. arose after initial
-Just terms = supplement cannot impact the other party’s ability to argue the claim on its merits
-Reasonable notice= other party will not be prejudiced – no evidence of undue delay or bad
faith
Dispositive Motions – Dismissals
Motions exclusively before trial:

Dismissing with vs. without prejudice:
 With prejudice= cant refile; ex: can’t comply with R 8 or 9.
 Without prejudice= can refile, case was resolved on the merits
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Rule 41(a)(1) : Dismissal of Actions Voluntarily
 Voluntary dismissal of the case by the P without prejudice if the motion is filed (A)(i) before answer or
motion for summary judgement. (Marques, Hinfin Realty Corp.)
(A): Unless subject to class actions (Rule 23), the P may dismiss an action without a court order OR
(ii): With consent of all parties
(B): Dismissal is without prejudice unless the P has filed the same claim with previous dismissal
 (2): Voluntary dismissal by court (w/o prejudice)
In situations not outlined in 41(a)(1) Court can dismiss at the P request on terms that the court
considers proper. If there is a counterclaim, the action may be dismissed over the D objection but only
if the counterclaim could stand alone as a claim. Unless otherwise stated a dismissal under (2) is w/o
prejudice.
 Terms the court considers (Zagano factors) when determining whether a D will be prejudiced by a
voluntary dismissal:
1. Plaintiffs diligence in bringing the motion- IF there is a substantial change/triggering event, how
quickly after that event did you decide to dismiss the claim? (causing others waste?)
2. Extent to which the suit has progressed (What is the defendants expense?)
3. The duplicative expense of relitigating (Can you recycle a lot of the same material or will one party
need to pay substantially more fees?)
4. Undue vexatiousness (not based on the merits) on the plaintiffs part. Was the suit brought to
harass?
 Court has discretion to impose attorney fees.
With prejudice = WONT have to pay attorney fees
Without prejudice = WILL have to pay attorney fees
Rule 41(b): Involuntary Dismissals (w/prejudice)
 Defendant may move to dismiss if Plaintiff fails prosecute, to comply with rules, or to follow a court
order
 Plaintiff cannot file again - not determining the case on the merits but on procedural issues- a rule
violation so this is not done lightly (based on the frequency and magnitude of failure to comply)
 A judge can dismiss a case with prejudice on the merits for any violation of the rules.
o Standard of review for the rule: fundamentally wrong. Gives the district court judge a lot of
power.
 Aura Lamp v. International
Court must give an explicit warning
Court considerations for involuntary dismissals: failure to prosecute, failure to obey court orders, lack
of jurisdiction or venue, plaintiff’s failure to join an indispensable party
o Frequency and magnitude
o Apportionment of responsibility
o Effect of those failure
o The prejudice to the defendant
o Probable merits of the suit
o Consequences of dismissal
Rule 12: Dispositive Motions- alternative to filing an answer aka 12(a)(1)(A)(i-ii)
 Dispositive = case will end here if judge agrees
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 Due process rights for what moves to expect in a lawsuit:
o Complaint
o Answer to complaint
o Answer to counterclaim
o Third party complaint
o Answer to a third aprty complaint
o Reply to an answer
 12(a)(1)(a): When served a complaint you have (i) 21 days to answer OR (ii) 60 days if you waive
service.
Rule 12(b): 7 possible defenses
 2-5 may be waived if not brought up in the very first response
 6 & 7 not waivable
Rule 12(b)(6):
 Rule 8 requires a short, plain statement of the factual allegations
 The court is going to ask: does this state a plausible claim?
 If not, 12(b)(6) motion.
 Defense. Motion that plaintiff failed to state a claim upon which relief can be granted (NOT summary
judgement motion)
 Judgement on the merits
 Filing a 12(b)(6) motion requires you to consider all the facts of the complaint as true
 Granted even if all allegations were true, P would still not be entitled to relief – the wrong described in
the complaint is not recognized as violation of any legal rights,
o Benefit of the doubt given to the Plaintiff
o Usually, Plaintiff is given a chance to amend the complaint before dismissing
o You cannot add anything to the record on a 12b motion
o If you file a 12(b)(6) motion and you add facts to the motion: 12(d)
 12(d) if counsel messes up a 12(b)(6) motion, then the court can automatically rule under
rule 56 (summary judgement)
BUT it doesn’t switch to a motion for SJ UNTIL the judge looks at the motion and decides
whether or not to exclude the facts that were added (this will never happen on the day you file
it because judges are busy – that is why the P in Marques succeeded on a 41(a)(1) motion.)
Other Rule 12 Components:
 Rule 12(c)- Motion for judgement of the pleadings
o After the pleadings are closed (90 days), but early enough not to delay trial
o Court will examine pleading and answer
 Rule 12(d) – Results of presenting matters outside the pleadings
If a motion under 12(b)(6) or 12(c), relates to matters outside the pleadings then you must use Rule 56
– summary judgement. Treated as SJM or the court can ignore attachments and treat as 12(b)(6)
 Rule 12(f) – Motion to Strike
o A court may strike a defense or any redundant, immaterial, impertinent, or scandalous matter.
 Rule 12(h)(2) – When to raise others
“Failure to state a claim upon which relief can be granted to join a person required by Rule 19(b), or to
state a legal defense to a claim may be raised:”
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o In any pleading allowed under Rule 7(a)
o By motion under Rule 12(c)
o At trial
Answers
Back to Rule 8 (see above in pleadings)
A few notes on answers:

 The moves you use to respond to a notice are not that different from what you use in issue pleading.
 Rule 8 obligates the responder to respond to the substance of the allegation (trying to find every
loophole possible is not meeting your duty
 People mostly use specific (rule 8(b) permits a D to specifically deny designated allegations) or
qualified (generally deny allegations except those specifically admitted) admissions
 If you don’t know = denial
 8(b)(6): if you fail to deny an allegation, treated as admitted if response is required (as happened in
King Vision)
Rule 8(b): Defenses, Admissions, and Denials
(b)(1) In general, an answer must:
(A) State in short and plan (notice) terms its defenses to each claim asserted against it
AND
(B) Admit or deny the allegations
(b)(2) Denials: A denial must fairly respond to the substance of the allegation
(b)(3) General and specific denial
 General denial – deny all the allegations in good faith, jury to test all facts
Unlikely. Why? Rule 11 Sanctions governs your answer too- can’t just deny everything like your
address, name, etc. unless you are actually admitting that wasn’t your address. You could be
subject to sanctions if you do this, you’re under the same obligations that P have they assert
allegations
 Specific denial – focused jury trial
o Generally deny all except those specifically admitted
o Can plead more than one defense, doesn’t matter if its affirmative or not
(b)(4) Denying part of an allegation: Deny in part and admit in part in good faith
(b)(5) Lacking Knowledge/Info: Denial based on lack knowledge or info about allegation
(b)(6) Failing to Deny: (articulated in King Vision)
o In a responsive pleading failing to deny is deemed admitted
o In a nonresponsive pleading an allegation is considered denied or avoided
o In King Vision the judge demolishes their case for “neither admit nor deny” – not an option of
pleading under 7(a) so in this case they essentially said ALL of the facts are true.
o Simple Rule: you can (1) admit the allegations (2) deny the allegations (3) state a disclaimer
(yes we admit but here are the facts that make me not liable)
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Rule 8(c): Affirmative Defenses – Confess and Avoid: admit everything but claim a legally valid defense that
excuses conduct.
 This part of Rule 8 lists a number of affirmative defenses (but not all)
 If you fail to state a relevant affirmative defense, you lose it – Not so for regular defenses.
Therefore, it is important to know if something is an affirmative defense.
 There are no consequences for throwing out all the affirmative defenses. No one will actually file a R11
motion against you. Not worth it.
 Red Deer v. Cherokee County
o An affirmative defense must be stated in a response – avoidance of P allegation and gives P
notice of D’s intent to introduce new information as a defense
o 3 tests for determining if something is an affirmative defense:
1. The defendant has the burden of proof
2. Whether D is avoiding liability even if P allegations are true (yes, but)
General denial specific denial, demurrer, confession and avoidance (everything in the
complaint is right but I am still not liable because of these additional facts = AFFIRMATIVE
DEFENSE)
3. Whether there is a need for notice of new information-
Would the P be expected to understand that this would be part of it, or is it something
totally new?
Test whether a matter could be an affirmative defense:
Whether the matter is directly inconsistent or contrary to allegations (then not an AD)
Rule 7(a)(7) Pleading – Reply to an answer
 Reyes v. Sazan
o Trial courts ought to routinely require P’s to file a 7(a)(7) reply to qualified immunity defense
o Secondary stop after Iqbal still before discovery, another way to prevent holding gov officials
accountable
o A reply to counterclaim is voluntary
o A reply to affirmative defense is involuntary and requires a court order to reply
 If the affirmative defense answer is plead with particularity, then the court requires the
defendant’s reply be plead with particularity.
PP: If you have gotten all of the way through discovery and then bring some affirmative defense up on the eve
of trial, then that is probably prejudicial.
More likely, if you didn’t mess up in some way, and you made a good faith effort both before and after you
decided to add an affirmative defense, and there is time for the P to prep for the affirmative defense, the
court will allow you to amend and add affirmative defenses – interested in fairness BUT the judge can say you
messed up and waived this, and this you don’t get to make the amending.
Rule 55: Default Judgement

 A default is automatically entered if you don’t answer on time
 55(a): if party meets 55(b) standard, MUST enter default.
 A court may set aside default judgement for good cause (55(c))
55(b): Entering a Default Judgement
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 Rule 55(b)(1) If P claim is for a certain sum or a sum that can be made certain by computation, the
clerk on the P request w/ an affidavit showing amount due, must enter judgement for that amount
against a D who has been defaulted for not appearing and who is neither a minor or an incompetent
person (having a default judgement does not necessarily mean that we know the amount to be paid)
 55(b)(2): In all other cases, the party must apply to the court for a default judgement. A party must
apply to the court for a default judgement. When a deciding default judgement the court must:
 55(b)(2)(a): conduct an accounting; sum certain
 If the court enters a default judgement for damages there needs to be some sort of determination of
that amount -it must be sum certain
 TO BE SUM CERTAIN:
o court says there cant be any doubt in the amount of damages
o if there is anything that needs to be calculated, or a disagreement about any number, you need
to have a hearing to figure it out
 55(b)(2)(b): determine the amount of damages
 55(b)(2)c) : establish the truth of any allegation by evidence
 55(b)(2)(d): investigate any other matter
55(c): Setting aside a default judgement:
D then must file a motion to set aside the default. A court may set aside a default for good cause (see factors
below). Burden of the D to show default was improperly submitted or should be taken away.
KPS (stonewalling case) Good Cause Factors:
1. Whether the default was willful
2. Whether setting it aside would prejudice the adversary
3. Whether a meritorious defense is presented
4. Nature of the defendant’s explanation for the default
5. Good faith of the parties
6. Amount of money involved
7. Timing of the motion to set aside entry of default
Alternative Dispute Resolution
Alternative = not litigation (which is something you can be MADE to do)
Arbitration
 Rule: Federal Arbitration Act (FAA)
 Purpose: To reverse the longstanding hostility to arbitration agreements that has existed at English
common law and adopted by American courts, and to place arbitration agreements upon the same
footing as other Ks. The court will uphold agreement to arbitrated disputes even if it involves the
waiver of statutory rights.
o Gilmer: liberal application of enforcement of arbitration agreements
 Hire a neutral third party to act as a private judge to settle your case. Similar to a courtroom. The
decision making authority taken out of the hands of the parties themselves.
 Arbitration and litigation are the only ones where a third party decides the case.
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 The process and the arbitrator are selected by the agreement of the parties either before or after the
dispute arises.
 Arbitrator issues a binding decision and there is narrow opportunity for review.
 The decision is a K and is enforced by the court.
 Generally, K of adhesion to arbitrate are valid.
 Motion to compel arbitration- ex. K specifically says that disputes will be resolved through arbitration
Motion to compel is not a pleading- it puts a stay on the case, it will be adjudicated in arbitration and
then the court case will go away with the arbitration order
 AT&T case
FAA preempts state law b/c the discover bank rule would have a disproportionate impact on
arbitration agreements
 PP: The fed. gov. doesn’t want state gov. to be able to destroy the FAA by allowing people to get more
or less than what they bargained for simply by forum shopping.
Fair – get what you bargain for
Efficient –judiciary applies arbitration clauses liberally to promote judicial efficiency.
Mediation
 As opposed to negotiation, which relies on the ability of the parties themselves to find common ground,
mediation employs a neutral 3rd party.
 Third party helps facilitate but doesn’t decide.
Rule 16: Pretrial conferences
(a) In any action, the court may order the attorneys and any unrepresented parties to appear for one or
more pretrial conferences for such purposes as:
(1) Expediting disposition of the action
(2) Establishing early and continuing control so that the case will not be protracted because of lack of
management
(3) Discouraging wasteful pretrial activities
(4) Improving the quality of the trial through more thorough prep; and
(5) Facilitating settlement.
Discovery
Timeline
1. Rule 12 motion
2. Rule 26(f) – Pretrial discovery conference
a. Parties required to meet and plan what the case is going to look like- talk about settlement,
potential problems with discovery, etc.
b. Put together detailed discovery plan. If you miss deadlines there will be malpractice.
c. Produce required disclosures under Rule 26(a)(1)
3. 26(a)(1) Initial Disclosures
a. Have to get together with parties without being asked
b. Give name of all of the people and describe all of your documents
4. Rule 16(b) – Scheduling Order
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a. The court must provide a roadmap for how litigation will proceed (discovery, motions, etc)
5. Document Requests
a. Electronic material and physical documents
6. Interrogatories
a. Questions you ask and answer in writing, written by lawyers
7. Request of admissions
a. Asking for conclusive/ admitted facts
8. Depositions
a. Talk to someone under oath from client directed
9. Examinations
a. Needed to explain information
10. Experts
a. Needed to explain information
11. Summary judgement considered
12. 26(a)(3) – Pre-trial disclosures
a. Discuss what issues will be tried.
b. Pre-trial conference order: what will happen at trial (every witness listed, every contention, all the
evidence) If not listed, cannot put it on trial.
NO SURPRISES AT TRIAL
Scope of Discovery
 The standard: Rule 26(b)(1)- can discover materials that are relevant to claim or defense and
proportional to the needs of the case (a lot of discretion)
 Relevant is broader than admissible: ex- hearsay as long as it could lead to discoverable info (other
witnesses, etc)
 Privileged matter is not discoverable even if its relevant
 Privileged = legal privilege in various relationships. Most important relationship is attorney-client.
Protects confidential communications between lawyer and client.
 Work product does NOT equal privilege. Rule 26(b)(3)- trial prep materials prepared in anticipation of
litigation. Protected from discovery. Can be overridden (substantial need and info not available)
PP: Avoid giving advantage of litigation prep to opposing party who has not conducted the same
investigation.
 Some kinds of work product are absolutely protected: mental impression, conclusions, opinions, and
legal theories.
 Work product: can be generated by the party or ANY representative of a party ex- private investigator
(doesn’t have to be a lawyer)
Rule What Does it Requirement(s) Case / Interpretation

Cover?
26(a) Required 3 times during a case
Disclosures A party must produce certain info without a request by the other party.
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You have a duty to do this.
26(a)(1) Req’d Initial Very early in the case (first 3 months)
(most Disclosures
26(a)(1)(C): a party must make initial disclosures at or within 14 days of the 26(f)
important)
conference
 1) You must identify people with discoverable info that you may use to
support your case.
 2) You must give copies or descriptions of things you may use to support your
case e.g. documents, ESI, tangible things
 π must give a calculation of damages and ∆ must disclose insurance
 Only have to disclose if you’re going to use to SUPPORT your case, not all
discoverable info. DONT have to initially disclose things that will hurt your case.
26(a)(2) Disclosure of Much later, through discovery at this point. If going to have exp. test:
Expert A party must disclose to the other parties the identity of any witness it may use at trial
Testimony to present evidence; disclosure must be accompanied by a written report if the witness
is one retained or specially employed to provide expert testimony.
26(a)(3) Pretrial 26(a)(3)(B)- pretrial disclosures must be made at least 30 days before trial
Disclosures Very close to trial. Basically about what we are going to raise at trial.
A party must provide and promptly file: 1) contact info of each witness, 2) heads up of
deposition use for testimony, 3) identification of each document (including summaries
of other evidence)
26(b) Requests If you don’t plan on using in trial, must be requested and within scope.
26(b)(1) Discovery “A party may obtain through Thompson
Scope and discovery regarding 1) any non-
To determine proportionality, the court will
Limits privileged matter 2) that is relevant
consider:
aka: to claim or defense, 3) and
1) the importance of the issues at stake in the
proportional to needs of the case”
What is action,
discoverable? Proportional to needs to case = Are 2) the amount in controversy,
you asking to do all of this and charge 3) the parties’ relative access to relevant
a lot of money for something that is information,
going to provide minimal help to the 4) the parties’ resources,
case? 5) the importance of the discovery in resolving
the issues, AND
Is the request reasonably
6) whether the burden or expense of the
accessible? Or does it cause undue
proposed discovery outweighs its likely benefit
burden or costs? A lot of discretion
requests are subject to a cost/benefit
In this case, was going to be so
analysis. (In itself serves as a
burdensome, next to impossible, and too
limitation… see below)
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costly to do all of the discovery requested.
26(b)(3) Trial Ordinarily, a party may Spirit v. Pike: the party asserting work-product privilege
preparation: not discover things that has burden of establishing that the documents it seeks to
materials are prepared in protect were prepared in anticipation of litigation the
anticipation of litigation burden then shifts to the opposing party to demonstrate the
existence of exceptional circumstances.
or for trial e.g. mental
impressions, Product that serves a dual purpose (in preparation for
conclusions, opinions, litigation but also normal day-to-day material): The court
or legal theories says the benefit is given to the party asserting the
privilege.
(A) Party can petition the
court for non-discoverable Test for work-product privilege:
info if shows: intent (prepared in the ordinary course of business), timing
1) substantial need AND (Prepared after aware of litigation), type of business
2) cannot, without undue Gutshall: In order to overcome work-product doctrine,
hardship, get the there must be exceptional circumstances that would make
information another way. that work product not re-creatable e.g. a video that is time
specific
26(b)(4) Trial (A) a party may depose any person Spirit: Burden of proof to prove
preparation: identified as an expert whose opinions exceptional circumstances the same as
experts may be presented at trial for materials. (see above)
(D) Non-testifying experts not exempt
from discovery IF exceptional
Facts and opinions held by experts are
circumstances that make it impracticable
protected unless overcome by
to obtain facts/opinions on the subject by
exceptional circumstances (Gutshall)
other means
26(b)(5) Claiming Opposing parties Hickman: work product doctrine
Privilege or are not entitled prevents invading the privacy of an attorney’s course of
preparation (i.e., mental impressions, conclusions, opinions, legal
Protecting to information
theories) and the party requesting the materials must show that
Trial-Prep that is privileged substantial need for the materials and that they cannot obtain
Materials or subject to them without undue hardship
protection.
Claiming Attorney work product- has to show that the timing and purpose
privilege requires of the privilege was prepared in anticipation of litigation
1) You expressly Burden of showing that the product was produced in
make the claim; anticipation of litigation: on party asserting privilege
AND
Burden then switches to opposing party to show that fact is only
2) Describe the
available via the privileged info
nature of the
privilege in a log.
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26(c) Protective A person whom discovery is sought from may move for a protective order in the court
Orders where the action is pending. The motion must include a certification that the movant
has in good faith conferred or attempted to confer with other affected parties to
resolve the dispute without court action. The court may issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or
expense including: **see supplement
26(e) Supplementing Requires that a party who has made a Gutshall: A party must supplement in a
disclosures disclosure under 26(a)– or who has timely manner if the party learns that its
disclosures were incomplete or incorrect
and responses responded to an interrogatory, request
for production, or request for
admission– must supplement or correct Disclosure of surveillance videos in
its disclosure or response this case goes back to the judicial
(A) in a timely manner; or expectations that they don’t play
(B) as ordered by the court games, they just want to resolve issues
on the merits; Videos cannot be
recreated – they are time specific
26(f) Pretrial Parties must confer as soon as practicable (at least 21 days before scheduling
discovery conference) to discuss any issues and create a discovery plan. Unless otherwise
conference changed by consent by both parties, or approval by the judge, this is the schedule
26(g) Signing 26(g)(1): Every disclosure under 26(a)(1) or (a)(3) and every discovery request,
Discovery response, or objection must be signed by at least one attorney of record or by the party
personally. By signing, the signer certifies that to the best of their knowledge it is
complete and factual
26(g)(2): other parties have no duty to act on an unsigned disclosure, request,
response or objection until it is signed, and the court must strike it unless a signature is
promptly supplied
26(g)(3): if a certification violates this rule without substantial justification, the court
may impose appropriate sanctions either on motion or on their own–
This is the rule 11 of discovery!
Discovery Tools (5): Asking the other side, or a non-party for information
1. Depositions
 Rule 30 – oral examinations
o Rule 30(b)(6): Notice or subpoenas to an organization – if you don’t know the right
person to depose for a specific issue you can ask the opposing party to provide you with
the person or people with knowledge of a specific subject
o Alexander v. FBI
 Objections: 30(c)(2), Security National Bank
 Rule 31- Written Examinations (rare)
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Answers are always live, oral testimony under oath
 Rule 32- Use of Depositions
 Deponent testifies orally under oath and it is recorded, live, outside of the courtroom and
answer questions under oath
 Good for getting detailed information
 Good for preserving testimony, and possibly authenticating docs
 May depose non-party, but should subpoena non-party or else they don’t have to show up.
Serve notice of deposition and serve subpoena (court order requiring attendance)
Do not have to subpoena a party to the case.
2. Interrogatories – Rule 33
 CAN BE SENT ONLY TO PARTIES, NOT NON-PARTIES
 No more than 25 written questions unless stipulated or ordered by court
 Anything under R26 discovery is permitted
 Written questions answered in writing under oath
 33(b)(3)- allows people to respond with documents
 Answers are binding and under oath, but written by lawyers
 Bad for broad questions, good for background info, discrete facts ex- dates, location, and those
in attendance of any board meeting where employee X was discussed.
 33(b)(2)- answer within 30 days of service unless there is an objection
 Objections are typically that the request is too broad, vague, or ambiguous
 O’Connor v. Boeing
3. Document Requests – Rule 34
 30 days to respond
 Written request for access to things- includes electronically stored information, ESI (ex- emails
pictures)
 Requesting party must seek document/ESI individually or categorically and describe them “with
reasonable particularity” (be sure to request the format you want the material in -indexed)
 Responding party is required to produce all requested material within its “possession, control,
or custody” – includes both those that they have a legal right to claim from others (like from
accounting) and those they have in actual possession.
 Responding party can refuse to comply if material can be procured from another source
 Parties have a duty to preserve ESI and documents that may be the subject of discovery once
they reasonably anticipate litigation
 34(c) : can use to get info form non-party but should subpoena them.
4. Request for Admissions – Rule 36
 CAN BE SENT ONLY TO PARTIES, NOT NON-PARTIES
 Asks to admit or deny any discoverable matter
 No limit
 If a party doesn’t admit or deny w/i 30 days then the request is assumed admitted
 Helps to eliminate the need for producing witnesses and evidence to support the facts that are
not in controversy
 Also helps you determine where the disagreements really are—narrow the issues in the
dispute.
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 Asea v. Southern PAC (effect of not responding deemed admitted)
 Responses under FRCP 8(b) (admit, deny with specifity, deny must respond to the substance of
the claim, deny or admit in part, may assert lack of knowledge or information sufficient to deny
or admit, only if with reasonable inquiry)
5. Physical and Mental Examinations – Rule 35
 Requires motion and good cause to do so (Ali v. Wang Laboratories)
 The only tool where you MUST get a court order. Difficult to do so.
 35(a) – Must show medical condition is in controversy AND good cause.
 Examiner’s report must be in writing
 Can only examine a party OR someone in the part’s custody or legal control.
Ex- does not include the employee of an employer – DOES include parent-child)
 PP: otherwise could be to harass
Three Ways the Court might get involved/enforce discovery (don’t like doing this)
1. Rule 26(c)- ask the court for a protective order because the discovery request subjects you to undue
burden, endue expense, see(c)(1). Wide discretion. Can deny discovery altogether.
2. 37(a)(1)- When responding party responds incompletely by answering some q’s but objecting to
others. If the party seeking the discovery thinks the objections are bogus then Motion to Compel. If
granted, DO NOT VIOLATE- sanctions of rule 37(b)(2)
3. When responding party fails completely to attend depositions, responds to requests, etc.
Party seeking discovery does not need to motion to compel.
a. Ask the court directly for sanctions under rule 37(d)(1)(a) Huggins, Lee
Rule What Does it Requirement(s) Case / Interpretation
Cover?
30(a) Depositions by 30(a)(1): depositions can be taken without leave of a court
Oral 30(a)(2): default 10 depositions
Examination
30(b) Notice of A party that wants to depose a person by oral questions must give reasonable written
Depositions notice to every other party; this notice must include the time and place of the
deposition and if known, the deponent’s name and address
(if unknown it must include a general description sufficient to identify the person or
the class they belong)
30(b)(6) Notice Directed A party may name a public or Alexander v. F.B.I. 4 duties that serve as underlying
to an private corporation, purpose of 30(b)(6);
Organization partnership, government
1) Deponent has a duty of being knowledgeable on
agency, or other entity to
the subject matter
depose but in the notice that
2) the designating party is under the duty to
party must describe with
designate more than one deponent if necessary to
reasonable particularity the
respond to the relevant areas of inquiry
matters for examination
3) designating party has duty to prepare the witness
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The named organization must on matters not only known to the deponent but also
then designate one or more those that should be reasonably known by the
agents/officers who consent to designating party; and
testify on its behalf 4) the designating party has a duty to substitute an
appropriate deponent when it becomes apparent
that the previous deponent is unable to respond to
certain relevant areas of inquiry
30(c)(2) Deposition Objections must be noted on Security National Bank
the record but the deposition deposition related, meritless form objections,
Objections
is to proceed; objections improper witness coaching are not tolerated and
should be stated concisely in a will result in “appropriate sanctions of court
nonargumentative way and a discretion” under 30(d)(2) usually - the reasonable
person may instruct a expenses and attorney’s fees incurred by any party
deponent not to answer only for impeding, delaying, or frustrating the fair
when necessary to preserve a examination of the deponent
privilege
30(d)(1)-(2) Duration; (d)(1): A deposition is limited to 1 day of 7 Huggins
Sanction hours If you need more time, you should judge has discretion to come up with
say so in 26(f) conference. appropriate sanctions, even creative
solutions like CLE training or lunch with
(d)(2): The court may impose appropriate
opposing counsel
sanctions on a person who impedes
delays or frustrates the fair examination Lee public reprimand is worse than $
of the deponent (typically reasonable sanction
expenses & attorney fees)
30(e) Review Allows the witness to review the transcript and make any changes if they need
Transcript to 30 days after being notified by the officer that the transcript is available.
31 Written See above
Examinations
32 Use of Depos See above
33(a) Interrogatories Unless otherwise stipulated/ordered each Answers are binding and under oath
in general party may serve on any other parties no but written by attorneys; these are
more than 25 written interrogatories bad for broad questions but great for
specific topics like “give us the dates
when this truck was in service”
33(b) Answering and Each interrogatory is to be answered separately and fully in writing within 30
objections days of service unless there is an objection
Objections must be stated with specificity and any ground not stated in a timely
manner is waived. (Objections are typically that the request is too broad, vague, or
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Dr. Erik Girvin
ambitious)
33(d) Option to If the answer to an interrogatory may be O’Connor v. Boeing
Produce determined by examining, auditing, or if you don’t want a narrative
Business compiling a party’s business records and if the answer, ask an interrogatory
Records burden of ascertaining the answer will be narrowly
substantially the same for either party, the
When providing documents (it is
responding party may answer by: 1) specifying
okay to respond to an
the records to be reviewed in sufficient detail
interrogatory with documents),
to enable the interrogating party to locate and you cannot simply dump
identify them as easily as the responding party thousands of documents on
could; and 2) giving the interrogating party a someone, you should create an
reasonable opportunity to examine and audit index; the basic idea is that the
the answer should be constructive
records to make copies, compilations,
abstracts, or summaries
34 Document Includes electronically store info; Requesting party must seek document/ESI
Requests individually or categorically and the responding party is required to produce all
requested material in its possession, control, or custody but they can refuse to
comply if the material can be produced from another source
Parties have a duty to preserve ESI and documents that may be the subject of
discovery once they reasonably anticipate litigation
35 Physical and The court may order a party whose Ali v. Wang Laboratories
Mental mental or physical condition is in To get this order, there must be an
Examinations controversy to submit to a physical or affirmative showing that the mental or
mental examination by a suitably physical condition is “really and
licensed or certified examiner genuinely” in controversy and that
This is the only rule of discovery that good cause exists for each particular
requires a court order examination
To be in controversy, the injury must be
ongoing and long lasting
36(a) Requests for 36(a)(4): if a matter is not admitted, the Asea v. Southern PAC the rule doesn’t
Admissions answer must specifically deny it or state require you to make an inquiry, just that
in detail why the answering party cannot you state you have made an inquiry and
truthfully admit or deny it; the answering that it be done in good faith
party may assert lack of knowledge only if
Not responding = deemed admitted
the party states that it has made a
reasonable inquiry
37(a) Motion for an 37(a)(1): a party may move for an order compelling discovery if Lee v. Walters
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Order they have given notice to all other parties. Motion must “substantial
Compelling include a certification that the movant has in good faith justification”
Disclosure or conferred or attempted to confer with the person failing to required to justify
Discovery take action the failure
37(a)(5)(A): the court must require the party at fault for the  Genuine
motion to pay the movant’s reasonable expenses unless dispute
1) the movant filed before attempting to obtain the discovery  Reasonable
without court action,
people
2) the opposing party’s nondisclosure was substantially
could differ
justified; or
3) other circumstances that makes the award unjust Being too busy is
not substantially
justified
37(b) Disobeyed When someone has violated a court order to respond to discovery AND failure to
orders comply with a court order may result in sanctions for reasonable expenses all the way
to contempt of court.
37(c) Failure to 37(c)(2) Failure to admit what is required Asea the proper sanctions are usually
disclose, under 36 and if the requesting party later costs but the judge reserves the right to
supplement, or proves a document to be genuine, the exercise his discretion and impose
admit requesting party may move for the party reasonable sanctions – this rule does not
who failed to admit pay the reasonable mean that costs are the only sanctions
expenses, including attorney’s fees, appropriate
incurred in making that proof. The court
Judges must give good reason for
must so order unless: **see supplement
imposing nontraditional sanctions in
their opinion.
37(d) A party’s A court may order sanctions on motion if:
failure to A person designated under Rule 30(b)(6) or 31(a)(4) fails, after being served with
attend its own proper notice, to appear for that person’s deposition; OR A party after being properly
served with interrogatories under Rule 33 or request for inspection under Rule 34 fails
deposition,
to serve its answers, objections, or written response without court action
serve answers  A motion for sanctions for failing to answer or respond must include
to certification of good faith effort
interrogatories,  A failure to comply with above is not excused on the ground that the discovery
or respond to a sought was objectionable unless otherwise prescribed by protection under
request for 26(c)
inspection  Any sanctions listed under 37(b)(2)(A)(i)-(vi)
 The court must requires the party failing to act or attorney of that party to pay
the reasonable expenses including attorney fees caused by the failure unless
the circumstances make this unjust
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Rules Governing Conduct in Discovery:

26(g): 30(d)(2): 37(a): 37(b) 37(c) 37(d)
Relates to Relates to Motion to Relates to Failure to Failure to
responses and depositions compel– you failure to disclose or respond– separate
signed ask for comply with a supplement. set of sanctions.
certifications that Provides explicitly something they court order. There is a duty
have to do with for court's ability won't give you a to supplement
them. to place sanctions. response. Contempt of your answers as
court for the
Must have The purpose is Pre-requisite: failure to file investigation
actually responded trying to get the have conferred the court order goes on. You're
to discovery in information, not to with the other around in violation if
order to have stone wall. Allow side in good discovery. you don't.
violated this. for fair faith to try and (Something e?)
examination. resolve the Doesn't have
The substantive issue. to be an actual
provision around Objections are written order.
the accuracy of supposed to be 37(3)(A)-
discovery concise, non- motion to
responses. It is the argumentative, not compel
rule 11 for leading the disclosure and
discovery. witness… the court for appropriate
can rule on it later sanctions.
(g)(2)– you don't when they review
have a duty to the transcript. 37(3)(B)-
respond to compelling
something that There are some discovery
isn't' signed. objections that response
you waive if you
Proportionality don't raise them IF you seek a
requirement: If during the motion to
you serve deposition. These compel and it's
interrogatories and include: granted, you
you sign them you should get your
are also saying • If you think attorney’s fees
these are there's anything (unless they
proportional and wrong about the have a good
not to harass or way they notified excuse)
delay. you about the
deposition.
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You are also
certifying that • Don't like the
under person taking the
26(g)(1)(A) that deposition.
response is
complete and • Objection to an
correct as of that error or irregularity
time. (form objections)
26(g) Sanctions: 30(d)(2)Sanctions: 37(b) 37(c) 37(d)
monetary and imposed on person Sanctions: Sanctions: Sanctions: (d)(3)
nonmonetary. who impedes, include ending similar to those Same as 37(b)(2)
Fair amount of delays, or the case in the of 37(b)(2)(A). (A)
discretion but it frustrates the fair other party's Potentially Also pay
has to be examination of the favor, for case-ending reasonable
appropriate. deponent. Similar example. sanctions expenses
to rule 26 including
sanctions. attorneys fees to
the other party.
1. Form objections
2. Coach witness
3. Interrupt and
delay

Rule 56: Summary Judgement (SJ) – Usually made after all Discovery
 56(a) – Moving party must show:
o No genuine dispute as to the material fact AND
o Movant is entitled to judgement as a matter of law (based on the applicable law)
Celotex
When you file a SJ motion you have to actually show that there is no factual dispute as a matter
of law.
Burden of production is on the moving party (burden of proof = preponderance of the
evidence) AND all evidence must be viewed in the light most favorable to the non-moving party
 56(b) – Must file within 30 days after the close of all discovery
 Requires a non-moving party to prove a factual dispute so long as the non-moving party is the party
with the burden (key piece)
 Motioning for summary judgement without providing evidence can only be done by the party who
doesn’t have the burden of production and persuasion because the opposing party essentially has not
met the burden of production, so they cant win (Celotex)
 If the Plaintiff has satisfied the burden of production, then the burden would shift to the Defendant.
(Celotex)
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Dispositive Motions (also see R 12(b)(6) above)
Rule 56: Summary Judgement (SJ) – Usually made after all Discovery,
 Documents from discovery can be used for SJ
 Designed to allow early resolution of cases in which the P meets the minimal burden to plead the
elements of a compensable claim, but cannot prove one or more of the elements.
 Requires a non-moving party to prove a factual dispute so long as the non-moving party is the party
with the burden (key piece)
 SJ is appropriate only if the evidence before the court demonstrates that there is no disputed issue of
material fact to be tried AND that the moving party is entitled to judgement as a matter of law 56(a):
 56(a) – The court shall grant summary judgement if the movant shows that
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o There is no genuine dispute to any material fact AND
o The movant is entitled to judgement as a matter of law
o The court should state on the record the reasons for granting or denying the motion.
 Genuine- saying you didn’t do something when the other side has a recording is not a genuine dispute
 Material – will the disputed fact affect the outcome of the case? Has to relate to one of the elements
of the substantive claim
 If the Plaintiff has satisfied the burden of production, then the burden would shift to the Defendant
(Celotex)
 56(b) – Must file within 30 days after the close of all discovery.
 Timeline:
o Plaintiff files a complaint
o Defendant:
a. It’s appropriate for party to make a plain, short, conclusory, statement, of a legal standard
moving for SJ.
b. This party can file a bare bones motion alleging other party did not produce factual dispute.
o Plaintiff:
a. Must include facts on the record
1. If they can, no SJ
2. If they can’t, yes SJ
 Celotex (produced products containing asbestos)
o Burden on movant to demonstrate to the court why the motion should be granted.
o When you file a SJ motion you have to actually show that there is no factual dispute as to a
matter of law AND all evidence must be viewed in the light most favorable to the non-moving
party.
o Don’t need to have affidavits to support
o Non-moving party has to give affirmative defense for why the burden was not met
o To ensure SJ the D should have asserted their own facts showing they were entitled to win
instead of just short plain statement.
 Jorgensen (Song copyright – had to prove access and ownership)
o Direct evidence existed in copyright certificate
o Circumstantial evidence existed in the access
a. Through mail, companies, 2 authors into music
b. This was a pretty big inference and highly circumstantial
c. Court interprets inferences in favor of the non-moving party and this is an inference and
works in favor to vacate SJ.
Rule 50 – Judgement as a matter of law in a jury trial – all facts presented at trial for SJ
 (a)(1)(B): In federal courts, a party seeking to have the judge take the case from the jury on the ground
that the evidence is too weak to support a verdict makes a “motion for judgement as a matter of law”
 Judgement as a matter of law may be entered where “a reasonable jury would not have a legally
sufficient evidentiary basis to find for the nonmoving party”
 If the plaintiff has any evidence to support each element of her claim, she will get to the jury.
 Rule 50
o Fully heard
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o No reasonable jury
o Judgement as a matter of law
 Kinserlow (falling from a work bridge and the manufacture is between two comp)
o If there is a direct contradiction in the evidence, court have to believe the non-moving party
o Show why inferences can’t be true
Remember- if reasonable minds can differ as to the result, the case if for the jury, not the judge.
Claim Preclusion
What law applies?

 Every jurisdiction is free to make its own law about claim and issue preclusion. Varies.
 The answer: the court in C2 applies the preclusion law of the court in C1.
Claim Preclusion – “Res Judicata”

 Always applies to subsequent litigation – always about C2.
 If you have a claim, you only get one lawsuit to vindicate that claim. Can’t sue twice.
When will C2 invoke claim preclusion?
 Req 1: C1 and C2 are brought by the same claimant against the same D.
 Req 2: C1 ended in final judgement on the merits (all judgements are on the merits unless based on
jdx, venue, or indispensable parties)
 Req 3: The claimant asserted the same claim in C1 and C2 (claim = transaction or occurrence)
o Final judgement on the merits
o C2 involve legally same parties (doesn’t have to be the same parties it can be parties who are in
privity to one another)
 Scope of claim preclusion according to the court in Rodgers –
o Same Evidence Test
– Bars a second suit if the evidence needed to sustain the second suit would have
sustained the first suit, or if the facts were essential to both actions
o Transactional Approach
– Considers whether the two suits came out of the same transaction, incident, or factual
situation
 ex- same case or controversy Nasalock test
– Same common nucleus of operative facts (Gibbs)
 This should trigger the “extent of factual overlap” consideration question
 This is not a bright line rule
 PP: all about efficiency
 To raise a claim preclusion defense: use summary judgement motion – inject facts into the record and
the court can make a determination on those facts included
Claim Preclusion : Things that could have been litigated but were not
vs.
Issue Preclusion: Barring relitigating of things that were actually litigated the first time
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Dr. Erik Girvin
Issue Preclusion
 The same plaintiff cannot relitigate on issue that has already been decided even if it is an element of a
new claim
 Also about C2, but about issues no the whole claim.
 Something in C1 should have been litigated in C1 but wasn’t, so now it can’t in C2
 This is very similar to compulsory counterclaims
 Bars relitigation of issues that were decided in C1.
 Issues in C1 had to have been (Williams)
 Actually litigated
 Actually decided
 Decision was necessary to the outcome of the case
 Same party or privity
 Williams- Plaintiff’s issue was not precluded because a finding made in dicta that is conclusive and not
necessary to the decision does not preclude the issue because it was not actually decided, and it
wasn’t necessary to the decision
35

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Savana Degroat

CIVIL PROCEDURE Outline 2020

 Counterclaims: FRCP 13 distinguishes between “compulsory” and “permissive” counterclaims.

Determining if a counterclaim is compulsory or not-

 PENNOYER: Established General Jurisdiction – Physical Presence, Consent to Suit

Federal analysis Federal Courts

ONLY IF (b)(1) and (b)(2) cannot be met do you move to…

If the defendant does not like the venue…

Public Interests v. Private Interests

Public Factors: (articulated in Piper Aircraft Co. v. Reyno)

If the original venue is improper…

Court looks at same Metoreo public and private interest factors.

More convenient laws in a particular forum is NOT a factor.

Subject Matter Jurisdiction

Does a federal court have subject matter jurisdiction?

 28 USC sec. 1330-1369 grants “original jurisdiction”

o 28 USC sec. 1367 “supplemental jurisdiction”

Exceptions to sec. 1441:

Horizontal Choice of Law

Vertical Choice of Law

Class Actions (Advanced Joinder)

A few notes on class actions:

Step 1: Certify the Class

Heightened Pleading Standard

Initiating a lawsuit- summons and service

Representations to the Court

Final Note Pleading:

 Rule 15(a): Amendments before trial

Dispositive Motions – Dismissals

Motions exclusively before trial:

Back to Rule 8 (see above in pleadings)

A few notes on answers:

Rule 55: Default Judgement

Alternative Dispute Resolution

Alternative = not litigation (which is something you can be MADE to do)

Rule What Does it Requirement(s) Case / Interpretation

Rules Governing Conduct in Discovery:

Dispositive Motions (also see R 12(b)(6) above)

What law applies?

Claim Preclusion – “Res Judicata”

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