This outline is for the spring semester of 2021

The professor was John Hill

The school is IU Robert McKinney School of Law

1
 Pleadings: The Complaint, Motions, Answer and Amendments

[1] Rule 11 -- Discussion of Rule 11:

 Application:
o Rule 11  Aimed at avoiding frivolous or baseless documents in litigation
 This applies to all documents except for discovery documents.

 Requirements:
o Require attorney to sign all of the documents
 When you sign you are certifying various things that you’ll find in Rule 11(b):
o When you sign your saying You made a reasonable inquiry that
 (1)  Document is not for an improper purpose,
 (2)  Your legal contentions are warranted,
 Existing law does support what you’re saying.
 (3)  your factual contentions will have evidentiary support or will likely have evidentiary support,
 (4)  that denials of factual contentions will also have evidentiary support.

 Three Procedural Points about Rule 11:

o (1)  Certification is effective every time you advocate a position from that document.
o (2) Sanctions for Rule 11 are discretionary; they are not required.
 If other party violates Rule 11 you are not entitled to sanctions.
 Purpose of sanction are not to punish but are to deter.
o (3)  Motion for sanctions cannot be filed right away.
 If the other side violates, you cannot file a motion for sanctions.
 (3.1)  You must draft a motion for sanctions
 (3.2)  Then serve it to the other party
 (3.3) Then you must give him 21-days in which to fix the problem
o Safe Harbor Rule – If problem is fixed within the 21-day period, then there can be no sanctions.
 (3.4) If problem is not fixed, then you are able to file motion for sanctions.

[2] The complaint  Rule 8, 9(b) and 9(g)

 What the complaint must have:

o Under Rule 8 (a) the complaint must have 3 things:
 (a)(1)  Statement of Subject matter jurisdiction.
 (a)(2)  A short and plain statement of the claim.
 A complaint must allege facts that plausibly add up to valid cause of action.
 (a)(3)  A demand for relief. [Telling court what you want.]

 Statement of the Claim:

o Now Scotus has changed ‘equation’ with two very famous cases, Twombly (2007) & Iqbal (2009).
 “Twiqbal” – abbreviation for combined name of cases – establishes that
 The P must plead facts supporting a plausible claim.
o Rule 8 (a)(2) which is supposed to set standard contains neither facts not plausible.

2
 How does Ct apply Twiqbal?
o In deciding whether a P states a claim under Rule 8 (a)(2) there are three rules the Ct is going to follow:
 (1)  Ct ignores conclusions of law and focuses only on alleged facts.
 (2)  Those facts must support a plausible claim, not just a possible claim.
  Complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face.  
 A claim has facial plausibility when the pleader has factual content that allows the court to draw the reasonable
inference that ∆ is liable for the misconduct alleged. 
  Standard is not akin to a “probability requirement” but it asks for more than sheer possibility that ∆ has acted
unlawfully. 
 (3)  To determine plausibility, the judge uses her own experience and common

 Swierkiewicz v. Sorema (2002)

o Facts:
 P alleging wrongful termination. TC dismissed compliant. On appeal, the TC decision affirmed on grounds that employment
discrimination complaint required employee to allege facts constituting prima facie discrimination.
 Discrimination cases pose a difficult problem for ct. because P has to show D fired P for improper reasons, not for
permissible reasons. It’s difficult to prove that. And it can be particularly difficult for a P to have sufficient facts
unless they’ve actually done discovery. In order to get to that discovery phase, P’s got to beat the 12(b)(6), the
dismissal motion.
o Issues/Results:
 Whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima facie case of
discriminations under the framework set forth by SCOTUS in McDonnell Douglas Corp. v. Green (1973). How much does a P
have to allege here?
 Motion Denied; Tare broad standards of Rule 8(a)(2) – short and plain standard – with the Conley v. Gibson
[backdrop]. The P has to show that there are grounds for the case to proceed. P doesn’t necessarily have to have
all the facts when complaint is filed. Thomas noted that the prima facie case operates as a flexible evidentiary
standard and not a pleading requirement for discrimination cases.
o Rules:
 Employment discrimination complaint need not include “such facts” and instead much contain only “a short and plain
statement of the claim showing that the pleader is entitled to relief.”

 Bell Atlantic Corp. v. Twombly (2007)

o Facts:
 P sued D for engaging in anti-competitive business activity. Complain did not include many background facts. D filed motion
to dismiss for failure to state a claim under 12(b)(6).
o Issues/Result:
 What must a P plead in order to state a claim under §1 of the Sherman Act?
 Motion Granted; According to SCOTUS, in order for a claim to defeat a 12(b)(6). Motion to dismiss, it must allege
“enough facts to raise a reasonable expectation that discovery will reveal evidence” to satisfy the claim.
o Rules:
 Plausibility Standard – A complaint must allege facts that plausibly add up to valid cause of action.
 Complaint must “contain either direct or inferential allegations respecting every material element” of a claim, a
complaint must contain either direct or inferential allegations.
 Ashcroft v. Iqbal (2009)
o Facts:
 P filed suit against D for alleging racial and religious discrimination during P’s times in prison.
o Issues/Results:

3
  Did respondent, as the P in the DC, plead factual matter that, if taken as true, states a claim that D deprived him of his
clearly established constitutional rights.
 Motion Granted; According to SCOTUS, the Twombley standard of “plausibility” applied to all cases, not just anti-
trust cases. Under the newer “plausible” standard, claims need to have a little more meat. **Post 9/11 case –
might come out different today in a different kind of case.
o Rules:
 For 12(b)(6) to be proper a pleading must allege facts that do not plausibly demonstrate a valid cause of action.

 Pleading in the Alternative:

o Rule 8(d)(2)  permits a plaintiff to plead alternative or inconsistent allegations.
 Thus, if a P has multiple but contradictory theories of his case or versions of the facts, these may all be contained within a
single complaint, keeping in mind counsel’s obligations under Rule 11.

o McCormick v. Kopmann 23 Ill. App. 2d 189, 161 N.E.2d 720 (1959).

 Facts:
 P, husband killed in automobile accident with D, two causes of action. P brings one action against D, owner of the
truck under wrongful death act. Theory is that the D went over the line and crashed into P. P brings other action
under Dram Shop act against tavern for serving alcohol to husband.
 Issues:
 Can a complaint contain contradictory allegations?
 Discussion and Rationale:
 Yes, P is allowed to proceed with inconsistent allegations.
o Ct. allows the complaint, for both judicial economy (hearing the action in one proceeding) and to prevent
injustice (both defendants could blame each other in a separate proceeding, and both walk away scot
free).
 Since the key witness is dead, alternative pleadings are the only way to determine the truth.
 Rules:
 Pleading in the Alternative – Under Rule 8(d)(2), the plaintiff may plead inconsistent facts or theories in a
complaint when the plaintiff has insufficient knowledge.
o FRCP 8(d)(2) – A party may state as many separate claims or defenses as it has, regardless of consistency.

o Rule 8(d)(3)  A party may state as many separate claims or defenses as it has, regardless of consistency.

 Where are we?

o Rule 8 requires claims to be spelled out in the pleadings.
o Rule 12(b)(6) allows a ct. to dismiss a claim if that pleading doesn’t “state a claim upon which relief can be granted.” That means
that if the cause of action is improperly plead then the ct. will dismiss it.

 Rules Requiring greater detail than Twiqbal:

o Rule 9(b) & Rule 9(g)
 These rules are heightened pleading requirements.
 You must give the details, the particulars, if your trying to allege:
o (1)  Fraud
 This is most classic one.
o (2)  Mistake
o (3)  Special Damages

[3] Pre-Answer Motions: Defendants Response  Rule 12

 When you get sued, how must you respond?
o Under Rule 12 you can respond either by
 (1)  Motion, or
 Motions are not pleadings.

4
  Motions are requests for a Ct order.
o Any time you ask Ct to order something you are making a motion.
 Rule 12 (e) – Motion for a More Definite Statement.
 (2)  Answer.
 Answers are pleadings.

 When must you respond?

o Rule 12(a), the D must respond no later than 21 days after you’re served process.
 Within 21 day you must respond by Motion, or by Answer or your risking default.
o Special Rule – However, if the D waived service of process under Rule 4(d), then you’re given 60 days to respond.
 The date from which the P mailed her the waiver form.

 Motions under Rule 12:

o Rule 12(e) & Rule 12(F) 
 Some are fairly specialized:
 12(e) – Motion for a More Definite Statement.
o D cannot respond because complaint is unintelligible.
 12(f) – Motion to strike.
o Asking Ct to strike things from the pleadings. Can be brought by either party.
o Rule 12(b)  
 The big deal in the Rule:
 12(b) give seven defenses.
o They may be asserted in motion to dismiss or the answer as affirmative defense.
 The Seven Defenses:
 (b)(1)  lack of subject matter jurisdiction,
 (b)(2)  lacks personal jurisdiction over the D,
 (b)(3) this particular Ct is not the proper location (improper venue) for the suit,
 (b)(4) & (b)(5) the circumstances or method for serving process were incorrect.
o (b)(4) something wrong with documents.
o (b)(5) the something wrong with the documents served.
 (b)(6)  failure to state a claim upon which relief can be granted – which challenges the legal sufficiency of the
allegations in the complaint.
 (b)(7) the suit should go forward without a required party
o Rule 12(g) & Rule 12(h) 
 Hugely important set of rules:
 12(g) (timing rules] & 12(h) [exceptions for timing rule].
 Three main rules to know for (g)&(h):
 (1)  12(b)(2), 12(b)(3), 12(b)(4), & 12(b)(5) must be put in your first Rule 12 response or else they are waived.
 (2)  12(b)(6) & 12(b)(7) can be raised for the first time any time through the trial; however, it cannot be raised
post trial.
 (3)  12(b)(1) is never waived.
o If motion is denied
 You must answer within 14 days after motion was denied
 Rule 12(e)  United States v. Bd. of Harbor Commissions 73 F.R.D. 460 (D. Del. 1977)
o Facts:
 Under Rule 12(e), D’s (Sico) & (Nasco) moved for more definite statement on grounds that complaint filed against is so
vague, D’s unable to frame responsive pleading as required – Rule 7.
o Issues:

5
  Was the complaint deceptively vague? [Can a party make a Motion for a More Definite Statement based on want of
detail?]
o Rationale and Discusoin:
 No, it was not deceptively vague. A complaint is sufficiently definite if the opposing party is fairly notified of the nature of
the claim.
 A motion for a more definite statement is granted if a pleading suffers from unintelligibility, rather than a want of
detail.
 Motion Denied; 12(e) motions require more ambiguous material.
 Using these motions as prelude to 12(b)(6) motion is improper.
o D is using the 12(e) motion to redraft their complaint to provide more facts – Tactical use.
 D is trying to get the govt to say more about where the oil may have been dumped, what date it may have been, it
occurred, etc. etc...
 Potentially guilty D who may really want to narrow the govt down.
o D may have a legal theory that will permit them if known more details – “what, when the oil was
dumped – that will give them some justification or defense.
 Example – Suppose there was a hurricane in August that caused a spillage of oil. D might have an Act of God type of defense.
o The point is the more you get the other side to narrow down there, complaint to specific dates or allegations. The more you can
either box them in or BOX yourself out in terms of the allegations.

 Classic Hypothetical Problem:

o (P) sues (D); (D) makes the first Rule 12 response and makes it a motion. (D) moves under Rule 12(b)(5).  Court denies the
motion, which means the case is moving on. (D) now files an answer, in the answer (D) says no PJ (12(b)(2)) and improper venue
(12(b)(3)).
 (D) has waived PJ and venue because they were not his first Rule 12 response.
o 12(b)(2), 12(b)(3), 12(b)(4), & 12(b)(5)  must be in your first Rule 12.

 What do we do in an Answer?
o There are two things we do in an answer:
 (1)   Under Rule 8(b), the D must respond to the complaint.
 D goes line by line on P’s complaint and respond to what P said.
 Only three responses humanly responsible
o 8(b)(1)(B)  Going to admit to stuff.
o 8(b)(1)(B)  Going to deny to some stuff.
 Failure to deny constitutes admission.
 This is true on any allegation except damages.
o 8(b)(5)  Going to say you don’t know about some stuff.
 I don’t know is treated as denial.
 For example, (P) alleges that (D) was intoxicated while driving his car. (D) filed answer: “(P) has no proof that I was
intoxicated.”
o Result  (D) has admitted intoxication, because he never denied it.
 If you are going to deny you must use word denial.
 (2)   Under Rule 8(c), defendant can raise affirmative defenses.
 Under Rule 8(c)(1), open ended list of defenses is available.
o Affirmative defenses are different than denials, in affirmative defense you are injecting a new fact.
 If you are right, you win.
 Rule – You must plead affirmative defenses. [Just means you have to put them in your answer or else they’re
waived.]

[4] Amended and Supplemental Pleadings  Rule 15

 Amendments to Pleadings:
o Liberal approach to amendments is reflected in Rule 15.

6
  David v. Crompton & Knowles Corp., 58 F.R.D. 444 (E.D. Pa. 1973).
o Facts
 In products liability action, D sought to amend answer to P’s complaint. Complaint alleged that D who designed,
manufactured and sold shredding machine to P, which D denied by stating “it was without sufficient knowledge or
information to admit or deny the allegation and demanded proof.” D moved to amend original answer by claiming it was
D’s predecessor-in-interest who was liable.
o Issues/Results:
 Should D be permitted to amend its answer to P’s complain?
o Discussion and Rationale:
 No, Ct does not allow them to amend their complaint, since their answer must be honest, especially since D had the
information to figure out who made the machine since they bought the company 9 years before suit started.
 Ct held that since statute of limitations had passed, it would prejudice P, since P could not go after anyone else.
 Running of the statute is the serious type of prejudice which may justify a denial of defendant’s motion to amend
his answer.
 Ct found prejudice justifying denial of the right to amend where the defendant’s incorrect answer gave the
plaintiff no reason to believe that it had sued the wrong defendant, and therefore that it needed to bring in the
right defendant before the statute of limitations had run.
o Rules:
 A Ct may deny a request to amend if it bases such denial upon valid ground.
 Among the reasons commonly cited for denying permission to amend are that the amendment will result in undue
prejudice to the other party, or that it has been unduly delayed.
 Permission to Amend
o Note 3: Futility of Amendment.
 Recall that ordinarily the Ct must allow the P at least one chance to amend if it grants a motion to dismiss.
 Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not
be saved by any amendment. But a ‘district court does not err in denying leave to amend where the amendment
would be futile.’
o An amendment is futile when no set of facts can be proved under the amendment to the pleadings that
would constitute a valid and sufficient claim or defense.’ Missouri ex rel. Koster v, Harris, 842 F.3d 658
(9th Cir. 2016).
o Note 6: The role of Discretion.
 Review of decisions whether to allow amendments is governed by an abuse of discretion standard; an appellate court
will reverse only if the trial court’s decision is outside the bounds of reason.
 Thus, there will be many cases in which the judge could, without risking reversal, decide to allow or deny
amendment.

 How to approach Amendments  3 possible possibilities:

o (1)  Whether Rule 15(a) applies.
 15(a) gives us three rules:
 (1)  (P) has a right to amend within 21 days after (D) serves first Rule 12 response.
o (P) has a right to amend during this period.
 (2)  Under 15(a)(1)(B), a party has a right to amend once within 21 days after serving her answer.
o Party makes mistake within that 21-day period she has the right to amend.
 (3)  If you no longer have the right to amend, then you just ask for the court’s permission.
o This is called a leave to amend. Courts are typically liberal about this unless you have delayed to long or it
will prejudice someone.
o (2)  15(b) concerns variance
 Variance is a term of art . . . Variance is where the evidence at trial does not match what was pleaded.
 Variance can only come up at trial.
 When there is variance, 1 of 2 things will happen, either
o (1) The other party will object to the variance, or
 If there is objection, the evidence is not admissible.
o (2) The other party will not object to the variance.
 If no objection, we just act as though it was pleaded.

7
  Under 15(b)(1), the party may ask to add the new evidence.
o (3) 15(c) Amendment after the statute of limitations has run.
 There are two ways that this can come up:
 (c) Amend to add a claim.
 (b)  Amend to change a defendant.
 Only way around the statute of limitation is the Relation back doctrine.
 If we get relation back then we treat the amendment as though it was filed when the original case was filed, and
therefore we can get around a statute of limitations problem.
o For example, P files case and serves process on July 1. Statute of limitations runs on July 10. In August, P
moves to amend to add a claim.
 Rule 15(c)(1)(B) says that we can get relation back if that new claim, arises from the same conduct,
transaction, or occurrence as the original claim.
 The other way relation back comes up is if we want to change the (D).
o Ruel 15(c)(1)(C)  Only way it works is if we sued the wrong D and the right D new about it.
 ‘Relation Back’ under 15(c)(1)(C) depends on what the party to be added knew or should have
known, not on the amending party’s knowledge or its timeliness in seeking to amend the pleading.
 15(c)(1)(C)(ii) – P must show that, within the Rule 4(m) period, the newly named D “knew
or should have known that the action would have been brought against it, but for a
mistake concerning the proper party’s identity.”

 Supplemental Pleading:
o Rule 15(d)  Adding something after filing:
 This is where you want to add something that happened after the case was filed.
o For example, P sues D for breach of K. After case has been filed, D sees P at a party. D proceeds to punch P in the face. P wants
to add that tort claim to the pending case. This is not amended pleading this is a supplemental pleading.
 This is not a right. You always have to ask for permission. However, court is typically liberal about allowing supplemental
pleadings.
o Rule 15(d) provides for “supplemental pleadings” for after-occurring transactions, occurrences, or events. An obvious use of
supplemental pleadings would be for injuries that become manifest after filing the complaint.
 Note that supplemental pleadings have been interpreted as intended to be in aid of the claim already made and not to
allege a new claim.
 See Giglio v. Konold, 214 N.E.2d 806, 808 (Ohio App.1965) (new action, rather than supplemental pleading,
should be used to allege D’s refusal to obey Ct order pending appeal).

 Krupski v. Costa Crociere S. p. A., 560 U.S. 538 (2010).

o Facts:
 P brought an action against Costa Cruise Lines N.V. (D) for injuries suffered while on a cruise and learned later that the
correct party was Costa Crociere. P amended complaint to correct mistake. Costa Crociere claimed P amended complaint
did not relate back to the original filing and was therefore untimely.
o Issues/Results:
 Does a complaint amended on the ground of mistake as to the identity of the proper party relate back to the date of the
original complaint?
o Discussion and Rationale:
 Yes, Ct held that, when a complaint is amended to correct a misidentified D, the amendment will “relate back” to the
date on which the complaint was originally filed if the “correct” D knew or should have known, within 120 days after the
complaint was filed, that it would have been named as the D but for the P’s error.
 ‘Relation back’ depends on what the party to be added knew or should have known, not on the amending party’s
knowledge or how promptly that party moved to amend.
o Rules:
 ‘Relation Back’ under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the
amending party’s knowledge or its timeliness in seeking to amend the pleading.
 Rule 15(c)(1)(C)(ii) – P must show that, within the Rule 4(m) period, the newly named D “knew or should have
known that the action would have been brought against it, but for a mistake concerning the proper party’s
identity.”

8
 o In light of these facts, Costa Cruciere should have known that P’s failure to name it as a D in her original complaint was due to a
mistake concerning the proper party’s identity.

Joinder

[1] Proper Joinder: Rule 20(a)

 Joinder Tools  Permissive joinder:

o Rule 20(a)(1)
 In federal courts, initial joinder of parties is governed by Rule 20(a)(1), which authorizes multiple Ps to sue together if
they assert claims arising out of the same transaction or occurrence and their claims against the D or Ds will involve a
common question of law.
o Rule 20(a)(2)
 Rule 20(a)(2) allows the P to sue multiple defendants in a single action if the same criteria are met.

 Kedra v. Philadelphia, 454 F. Supp. 652 (E.D. Pa. 1978).

o Facts:
 Series of events over the course of a year and a half, police officers employed by the Philly (D1). D1 committed various
unconstitutional acts against members of P. P sued D1, the officers (D2), the commissioner (D3) and others under 42
U.S.C. § 1983 for violations of civil rights. Named P’s were Kendra(P1) and adult children. In addition, Kendra sued for
minors. Ds’ moved to dismiss on: (1) P1 did not have standing to sue on behalf of her minor children and (2) the Ds’
were improperly joined.
o Issues:
 Was joinder of the several claims occurring over a one-and-one-half-year period improper?
o Discussion and Rationale:
 No, joinder of reasonably related claims for relief by or against different parties is allowed.
 The events here extended over a lengthy period of time, but they are reasonably related to one another as part
of a systematic deprivation of rights.
o Parties can be combined when their facts/claims are “reasonably related.”
o Notes:
 Rule 21  Allows for the severability of parties when separate suits is necessary

 Insolia v. Philip Morris, Inc., 186 F.R.D. 547 (E.D. Wis. 1999).
o Facts:
 Ps’ – three former smokers – brought a civil action against Philip Morris, and two other tobacco industry organizations.
Ds’ filed a motion to Sever the claims of the Ps’ into three separate actions.
o Issues/Results/Rules:

9
  Did Ps’ claims arise out of the same transaction or occurrence to be considered a single action?
o Discussion and Rationale:
 No – Motion Granted, Ds’ Motion to Sever the claims of the three Plaintiffs into three separate actions is granted.
 Ct observed that Rule 20 demands more than the bare allegation that Ps’ were all the victims of the same
conduct by one or more Ds’.
o Claims not logically related to one another must be divided into separate actions.
 Ps’ claims do not arise out of the same transaction or occurrence. Therefore, they are not similar enough to be
joined.
o Notes:
 We have encountered the “same transaction or occurrence” language in other federal rules:
 Rule 13(a) uses that standard to determine when a counterclaim is compulsory [see Wigglesworth v. Teamsters
Local Union],
o looks to whether the matters would make a convenient trial package.
 Rule 15(c) to determine when an amended pleading relates back for purposes of the statute of limitations [see
Krupsi v. Costa Crociere S.p.A].
o looks to whether there was adequate notice at the time of filing so that the defendant can be said to
have been aware that the suit included the amended matters.

[2] Necessary and Indispensable Joinder: Rule 19

 Joinder Tools  indispensable joinder:

o Rule 19 provides a three-step process for analyzing whether a person who was not sued originally must be added to the
lawsuit:

  Step 1 – Is the Absentee Necessary [Required]???

o (1)  Rule 19(a)(1)(A)
 A person should be added to the case if in the person’s absence, “the court cannot accord complete relief among
existing parties.
o (2)    Rule 19(a)(1)(B)(i)
 The absentee should be made a party if she has an interest in the subject matter of the action and her ability to protect
the interest will be impaired if she does not participate in the litigation.  
o (3)  Rule 19(a)(1)(B)(ii)
 Rule 19 counsels joinder of the absentee if she has an interest in the subject matter of the suit and adjudicating the case
without her might leave one of the existing parties exposed to multiple or inconsistent obligations.
 Hypothetical Problem for Rule 19:
o J owns 1k of stock in the XYZ corporation. R claims that J&R bought the stock jointly. R sues the corporation. R ask the court
for an order canceling J’s stock and reissuing it R & J joint name. J is the absentee . . . is J necessary?
 Yes, under Rule 19(a)(1)(A)  Because if you are not joined the court cannot accord complete relief.
 Yes, under Rule 19(a)(1)(B)(i)  Because your interest may be harmed if you’re no brought it.
 Yes, under Rule 19(a)(1)(B)(ii)  Because if your not brought in, the defendant, the corporation might be
subject to multiple or inconsistent obligations.
 Camacho v. Major League Baseball, 297 F.R.D. 457 (S.D. Cal. 2013).
o Facts:
 Ps’ commenced this tort action against multiple Ds’. This action arises from allegations that Major League Baseball
conspired with the Mexican Major Leagues to prevent P from playing baseball in USA. Ds’ motion to dismiss pursuant to
Rule 12(b)(7). Ps’ oppose the motion.
o Issues:
 Should the district court dismiss plaintiffs’ suit for failure to join a party under Rule 19?
o Discussion and Rationale:
 Yes, Motion Granted, Ct Granted Ds’ motion to dismiss under Rule 12(b)(7) and Dismisses this action in its entirety.

10
  Under Rule 19(a)(1)(B)(i) an absent party is necessary if “It has a legally protected interest in the suit,” “that
interests will be impaired or impeded by the suit.”
o Ps’ unequivocally seek judicial determination of their rights and duties under the alleged contracts
between Mr. Schirra and the red devils.
 Such that the contracts are essential to the case .
 Under Rule 19(a)(1)(B)(ii), an absent party is also necessary if there is a potential risk that adjudicated an action
without the absent party could leave an existing party open to “incurring double, multiple, or otherwise
“inconsistent obligations.”
o Thus, in present case, missing party, Red Devils could leave an existing party open to “incurring double,
multiple, or otherwise “inconsistent obligations.”

  Step 2 – Is joinder of the absentee feasible?

o Joinder is feasible if
 (1) There is personal jurisdiction over D
 (2) Bringing in D does not mess up Diversity jurisdiction.

  Step 3 – if joinder of absentee is not feasible:

o Court must proceed without absentee or Dismiss the entire case.
 Under Rule 19(b), if proceeding without the absentee does not pose any of the problems, there is no need to bring the
absentee into the case, and it will proceed without her.
o Rule 19(b) provides the factors that courts should consider in determining if an action should be dismissed because an absent
party is indispensable:
 (1) prejudice to any party or to the absent party,
 (2) whether relief can be shaped to lessen prejudice,
 (3) whether an adequate remedy, even if not complete, can be awarded without the absent party, and
 (4) whether there exists an alternative forum.

 Indispensable Party:
o If court decides to dismiss, we call the absentee indispensable.
 This is the basis for dismissal under Rule 12(b)(7).

[3] Claim Joinder of Parties: Rule 18(a)

 Joinder of claims under Rule 18(a):

o It provides that a party seeking relief from an opposing party may join with his original claim any additional claims he has
against that opposing party.
 The P can assert any claims she has.
 18(a) is the broadest of the basic joinder rules.
o Rule 18(a), like Rule 13, authorizes a pleader to assert as many claims as he has against an opponent.
 This applies not only to the original P, but also to any party seeking relief against another party, whether on a
counterclaim, a crossclaim, or a third-party claim.

[4.1] Claim Joinder of Defendants: Counter Claims.

 Counter Claims Rule 13:

o Authorizes a defending party in a suit to assert claims back against a party who has claimed against him.
 Such counter Claims come in two shapes, compulsory (Rule 13(a)) and permissive (Rule 13(b)).
 Compulsory (Rule 13(a)) and Permissive (Rule 13(b)):
o If the defending party’s counterclaim arises from the same transaction or occurrence as the claim against him, it is
compulsory, which essentially means that he must assert it in the original action or waive it.

11
  For example, if V sues E for his injuries arising out of the accident and E suffered injuries in the same accident, which
she attributes to V’s negligence, Rule 13(a)(1) requires E to assert her claim for these injuries in V’s action.
o Defending parties may also assert counterclaims that are completely unrelated, under Rule 13(b).
 This cannot be justified on efficiency grounds, since a permissive counterclaim will involve different events from the
main claim, and the court will almost certainly order separate trial of the permissive counterclaim. See Rule 42(b).

[4.2] Claim Joinder of Defendants: Cross Claims.

 Co-Party Claims Rule 13(g):

o Rule 13(g) provides that assertion of crossclaims must arise from the same transaction or occurrence of the main claim.
 This is a permissive cross claim.
o Hypothetical Problem:
 P-AZ, D1-NY, D2-NY were in a car crash. P sues D1 and D2. D1 counterclaims against P. D1 also files a claim against
D2. D1 does not have diversity of citizenship nor federal question. Thus, what does D1 have to do to bring
crossclaim.
 D1 tries supplemental jurisdiction  §1367, this allows federal court to hear a nonfederal and non-diversity
claim. To apply 1367:
o (1)  does 1367(a) grant supplemental jurisdiction over this claim?
 Yes, if it comes from a common nucleus of operative fact.
 This is always met if claim arises from same transaction or occurrence.
o (2)  Does 1367(b) take away supplemental jurisdiction?
 1367(b) applies only to diversity cases. Thus, it is relevant.
 1367(b) kills diversity claims only by the P.

[5] Impleader: Rule 14

 Impleading under Rule 14:

o Rule 14(a) gives a defendant a limited right to implead (bring into suit) new parties against whom she has claims related to
the main action.
 Under the rule D may bring in a person’s not yet a party to the suit who may be liable to her – the D – for all or party
of any recovery the P obtains on the main claim.

 There are two-way impleader arises:

o Indemnity
 That is to obtain a judgment that the third party is liable to pay the main defendant part of the damages she is order
to pay the P.
o Contribution
 That is to obtain a judgment that the third party is liable to pay the main defendant part of the damages she is order
to pay the P.

 Escaping Impleader:
o The impleaded party may escape liability by defeating either the P’s original claim or the D’s derivative claim against her.
 Consequently, the rule allows her to assert defenses to both. See Rule 14(a)(2)(A) (defense to third party claim) and
14(a)(2)(C) (defenses to the P’s claim against the original D).
 Impleader Parties:
o The impleader claim is treated like an original suit for pleading service and other purposes.
 The D, as “third party P” must file a third-party complaint against the impleaded third-party D.

12
  Complaint must comply with the pleading requirements for Rules 8 through 11 and must be served under
Rule 4.
o The third-party D must respond under Rule 12 and has the same options to answer or move to dismiss.
 The third-party D may also file counterclaims against the third-party P (Rule 14(a)(2)(B)) and may implead further
parties under Rule 14(a)(5).
 The rule also allows the P and the third-party D to assert claims against each other if they arise out of the
same transaction or occurrence as the main claims. See Rules 14 (a)(2)(D) =[TPDP], (a)(3).
o P can assert claim against third-party under Rule 14(a)(3).
 Impleader Timing:
o Under Rule 14(a)(1), the D may implead a third party within 14 days of answering the complaint without obtaining leave of
court.
 This automatic impleader provision suggests that the court must hear the third-party claim if it is filed within this
period.

[6] Intervention: Rule 24

 Intervene under Rule 24:

o Rule 24 authorizes an absent party who leans of an action to become a party to the litigation.

 Intervention as a right:
o Rule 24(a) specifies circumstances in which the absentee has a right to become a party to the case.
 Rule 24(a)(1) allows a person to intervene as of right if a statute authorizes the party to do so.
 Rule 24(a)(2) allows a person who if not a party to a case to intervene if three condition are met:
 (1)  person claims an interest relating to the property or transaction that is the subject matter of the action,
 (2)  interest may, as a practical matter, be impaired if the person is not allowed to participate in the case, and
 (3)  absentee’s interest is not adequately represented by those already parties to the action.
 Permissive Intervention:
o Rule 24(b) provides for “permissive intervention, that is situations in which the court may int its discretion allows an interested
person to become a party.
 Even if a party does not have a right to intervene under Rule 24(a), it may be permitted to intervene under the much
broader standard in Rule 24(b)(1)(B) .
 Rule 24(b)(1)(B) authorizes intervention of any person who has a claim or defense “that shares with the main action
a common question of law or fact.”
o While the standard in Rule 24(b)(1)(B) is broad, the liberality of the rule is tempered by two limitations.
 (1)  the request must be timely.
 Rule 24(b)(3) expressly requires the court to consider whether allowing intervention will “unduly delay or prejudice
the adjudication of the original parties’ rights.”
 (2)  even if the motion to intervene is timely, the court has discretion not to allow it. See Rule 24 (b)(1) (“the court may
permit” intervention).

[7] Class Action: Rule 23

 Representation for Litigation:

o Under Rule 23, a representative sues on behalf of a group.
 Prerequisites for Class action:
o Under 23(a), four prerequisites which must be met before any federal class action is allowed:
 (1) Size: The class must be so large that joinder of all members is impractical. Nearly all class actions involve a class of at
least 25 members, and most involve substantially more (potentially tens of thousands).

13
  (2)  Common questions: There must be “questions of law or fact common to the class.”
 (3)   Typical claims: The claims or defenses of the representatives must be “typical” of those of the class.
 (4)   Fair representation: Finally, the representatives must show that they can “fairly and adequately protect the
interests of the class.”
 Thus, the representatives must not have any conflict of interest with the absent class members, and they must
furnish competent legal counsel to fight the suit.
 Types of Class Action:
o Under 23(b), there are three types of class action:
 (1) 23(b)(1) actions: applies to situations similar to the circumstances requiring the joinder of necessary parties under
Rule 19.
 (2) 23(b)(2) actions: allows use of a class action if “the party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole.”
 In other words, if the suit is for an injunction or declaration that would affect all class members, (b)(2) is probably
the right category.
 (3) 23(b)(3) actions: Damages class action, you must show:
 (1) common question predominates over individual questions
 (2) Class action is the superior way to resolve the dispute.
 Needing of Court:
o Court certifies class actions.
 Subsequently under Rule 23(g) court will appoint class action counsel.
o (b)(1) or (b)(2) are mandatory class action.

Discovery

 Major Tools of discovery include:

o Interrogatories under Rule 33
o Requests for production of documents under Rule 34
o Oral deposition under Rule 30
o Automatic disclosure under Rule 26.

[1] Required [automatic] Disclosures  Rule 26(a)

 No request Needed:
o Under Rule 26(a), the required disclosure is limited to discoverable information – even though within the scope of discovery
under Rule26(b)(1) – if the party does not intend to present it at trial.

 Initial Discovery:
o Rule 26(a)(1) require parties to automatically disclose certain information to their adversaries as the outs set of the case,
without a discovery request.
 The logic for automatic disclosure is that certain basic information about the case will inevitable be requested.
o Under Rule 26(a)(1)(A) Without waiting for a discovery request, a party must provide to other parties (unless stipulation or
court order provides otherwise):

14
  (a)(1)(A)(i)  identify people with discoverable information that you may use to support you case,
 (a)(1)(A)(ii)  Copies or descriptions of documents of things you may use to support you case,
 (a)(1)(A)(iii)  a calculation of damages, and
 (a)(1)(A)(iv)  Copies of insurance agreements under which an insurer might be liable for all or part of any
judgment that might be entered.
o These disclosures must be made within 14 days after the meeting of the parties required by Rule 26(f) (discussed at I.1., infra,
unless a different time is set by court order or by stipulation).

 Expert Testimony:
o As trial approaches, under Rule 26(a)(2) parties must disclose the identity and reports of experts.
 Rule states that “a party must disclose to the other parties the identify of any witness it may use at trial to present
evidence.”
 Thus, whether someone is an “expert” turns on the rules of evidence, not the rules of civil procedure.
o If the expert witness has been specially retained to provide expert testimony, or if the expert’s duties as the party’s
employee regularly involve giving expert testimony, the disclosure must be accompanied by a report prepared and signed by
the expert witness stating
 (1) her qualifications,
 (2) the opinions to be expressed, and the basis for those opinions,
 (3) along with a list of cases in which he has testified in the past four years and
 (4) his compensation, among other items
o Otherwise, no report is required, and instead these disclosures are required:
 the identity of the expert,
 the subject matter on which the expert is expected to present evidence, and
 a summary of the facts and opinions to which the witness is expected to testify
o This disclosure must be made at the time directed by the court or, in the absence of any directions or any stipulations among
the parties, at least 90 days before trial; if the evidence is intended solely to rebut another party’s disclosure of expert
testimony, it must be made within 30 days after disclosure of the evidence being rebutted.

 Pretrial Disclosures Rule 26(a)(3):

o At least 30 days before trial, a party must disclose to the other parties and file with the court a list of
 (1) the witnesses she expects to call at trial, and the witnesses she will call if the need arises,
 Paragraph (i) requires preparing a witness list, categorizing the witnesses by whether the party expects that
it “may call” or “will call” that person to testify at trial.
 This is commonly referred to as a “witness list.”
 (2)  the witnesses whose testimony will be presented by means of a deposition and a transcript of pertinent
portions of the deposition, and
 Paragraph (ii) requires preparing a “deposition designations” or “depo degs” as they're commonly referred
to.
 To prepare this, lawyers must go through the depositions they have taken and decide which testimony they
expect to offer, and provide a written list designating it page by page and line by line.
 (3)  documents or exhibits she expects to offer or might offer if needed.
 Paragraph (iii) requires preparing an “exhibit list.”
 Each party must identify the documents and other physical evidence that it expects to, or may, offer at trial.
 Typically, a party will examine the documents that it used as exhibits at depositions and prepare a list
identifying those exhibits so that the parties can tell that the document is the same as the one used at the
deposition.

[2] Requested Disclosures  The 5 Discovery Tools

 (1)  Depositions:
15
 o Under Rule 30(c)(1), a deposition is the taking of testimony from a witness under oath.
 Deposition permits the questioner to compel the witness to answer questions fairly spontaneously and allows the
interrogating party to follow up on the answers, particularly unexpected revelations, with further questions.
 Deponent testifies live under oath in lawyer office.
o Answer questions that are proposed by lawyers of lawyers of various parties.
o Rule 30(a)(1) allows counsel to take the deposition of any person including a party.
 Thus, person who are not parties, such as witnesses to the events in suit, treating physicians, or the custodians of
relevant records, may be deposed.
 If the person to be deposed is not a party, she must also be subpoenaed for the deposition under Rule 45.
 Under Rule 30(b)(1), if the deponent is a party, counsel initiates the deposition by sending a notice of deposition to
all parties in the action, statin the time and place of the deposition.

 (2)  Interrogatories:
o Rule 33 permits any part to send written questions to another party that must be answered under oath.
 The responding party is usually required to make reasonable efforts to obtain the information sought, this discovery
tool may appear extremely valuable because it could allow a party to do much or all of its pretrial preparation fairly
inexpensively.
 Interrogatories are probably the most frequently used form of discovery.
 Although Rule 33(b)(3) requires the responding party to answer each interrogatory under oath, interrogatories are
seldom answered spontaneously by regular people – answers drafted by lawyers.
o Interrogatories may only be sent to parties!!

 (3)  Request to produce:

o Rule 34 authorizes a party to require an opponent to produce designated documents or things in its control for inspection
and copying.
 In essence the rule requires the opponent to open her files or at least cull through them for documents relevant to
the issues in suit and produce for the other side to review in preparing for trial.
 This is a written request for access to things.
o Rule 34(c) allows us to get information from non-parties.

 (4)  Physical and Mental Examinations:

o The rules authorize the physical or mental examination under Rule 35.
 Rule 35 authorizes physical or mental examination of parties whose condition is at issue in the case.
 Due to the intrusive nature of such examinations, parties must obtain a court order for a physical or mental
exam, which will only be granted “for good cause.” Fed. R. Civ. P. 35(a)(2)(A).
o Must show that the medical condition is in controversy.
o Can only get an examination of a party or someone in parties’ custody.
 Does not include employer employee.

 (5)  Admission:
o The rules authorize a request for admissions under Rule 36
 The request for admission under Rule 36 is not really a discovery device at all, but a means of narrowing the scope of
trial by eliminating uncontested issues.
 Rule 36 authorized a party seeking admission of certain facts to send a requested to an opponent to admit
those facts.
o This is only available to parties.
 Admission can be used to narrow the scope of proof at trial, since matters that are admitted are deemed established
for purposes of the case. Fed. R. Civ. P. 36(b).

[3] Scope of Discovery

16
  Three Things to Know:
o (1) What is thing standard:
 Rule 26(b)(1) we can discover material that is relevant to a claim or defense and proportion to the needs of the case.
 Would not be proportion if burden of producing outweighs the benefit.
o Rule 26(b)(1) establishes the presumptive scope of discovery – information relevant to “any party’s
claim or defense” in the action – and is quite broad.
o (2)  Privileged matter is not discoverable, even if it is relevant.
 Party you seek it from must object.
 Rule 26(b)(1) limits discovery to “any non-privileged matter” that is relevant to a claim or defense.
 While this sounds like a party has an obligation not to ask for privileged information, instead the Rules work
exactly in the opposite fashion: a party must object to disclosing privileged information, or the objection is
waived.
o (3)  Under Rule 26(b)(3), Work product is protected.
 It is work product if it is prepared in anticipation of litigation.
 This is protected from discovery.
 Work Product:
 Tangible material or its intangible equivalent—in unwritten or oral form—that was either prepared by or for
a lawyer or prepared for litigation, either planned or in progress.
 You can override this protection if you show two things:
 (1)  Substantial need, and
 (2)  The information is not otherwise easily available.
 Under Rule 26(b)(3) items that are absolutely protected no matter what are:
 Mental impression,
 Conclusions,
 Opinions, and
 Legal theories.
 Can be generated by the party or any representative of the party.
 It does not have to be a lawyer i.e. private investigator.
 Davis v. Ross 107 F.R.D. 326 (S.D.N.Y. 1985) [relevance and Privilege]
o Facts:
 Davis (P) sued Ross (D) for defamation and asked for information relating to Ross’s (D) income, the names of other
former employees, and fees paid to her attorney; in turn, Ross (D) requested disclosure of Davis’s (P) psychiatric
records.
o Black Letter Rule:
 Discovery will be allowed only of information relevant to a material issue in the case.
o Discussion and Rationale:
 [Ross] is not compelled to disclose private facts to anyone – even someone who has agreed to keep the information
confidential – until it is found that plaintiff is entitled to punitive damages.
 Attorney fees are not relevant to the issue of bias and creditability; the amount of fees earned, without more, is not
probative of a witness’ bias.
 The court is especially reluctant to pry into the details of the attorney-client relationship or to order
burdensome discovery.
 Whether [Ross] is a “good” or “bad” employer, popular or unpopular with employees, is not probative of whether
Davis’ personal or work habits were objectively satisfactory.
 The requested discovery is not relevant to the issue.
 Overall, the information sought by the plaintiff is irrelevant to any material issue and is not calculated to lead to any
admissible evidence.
 At the other end, documents merely tending to show the potential bias of a witness have been held sufficiently
relevant to be discoverable under Rule 34 and Rule 26(b)(1). See e.g., Davis v. Ross 107 F.R.D. 326 (S.D.N.Y. 1985)

17
  Kozlowski v. Sears, Roebuck & Co. [Issues of Proportionality]
o Instant Facts:
 Kozlowski (P) sued Sears (D) for injuries sustained when pajamas sold by the defendant caught fire and requested
production of records of other complaints of burn injuries.
o Black Letter Rule:
 A discovery request is not objectionable merely because it is costly or time-consuming if the requested material is
relevant and necessary to the discovery of evidence.
 Under Rule 34, the party from whom discovery is sought has the burden of showing some sufficient reason why
discovery should not be allowed, once it has been determined that the items sought are properly withing the scope
of Rule 26(b).
o Discussion and Rationale:
 Merely, because compliance with a “Request for Production” would be costly or time-consuming is not ordinarily
sufficient reason to grant a protective order where the requested material is relevant and necessary to the discovery
of evidence.
 To allow a defendant whose business generates massive records to frustrate discovery by creating an
inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery
rules.
 Burden is on Sears to find the document.
 Balance test – Proportionality weighed for Kozlowski.

 McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001) [Issues of Proportionality]

o Facts:
 McPeek (P) moved the court for an order requiring the Department of Justice (D) to search the backup systems of its
computer network in order to find documents that may have been deleted from the system.
o Black Letter Rule:
 Discovery requests must balance the likelihood that relevant information will be found with the cost of conducting a
search for that information.
o Discussion and Rationale:
 Discovery Motion request is granted in a limited form. Burden is not entirely put on the defendant.
 In this case, in order to determine how likely it is that there is discoverable information on the tapes, the D
is ordered to do a backup restoration of the tapes containing the emails of P’s immediate superior, covering
one year.
o The D will document the time and money spent doing the search and, when the search is
completed, it will file a sworn certification of the time and money spent and of the results of the
search.
 After the certification is filed, the parties may argue why the results and expense do or do not justify a
further search.
 Balance test – Proportionality weighed for both parties.

 Hickman v. Taylor 329 U.S. 495 (1947)

 In the landmark case of Hickman v. Taylor, the Supreme Court recognized a common law qualified immunity of work
product from discovery.
o Facts:
 Hickman (P) sought discovery of statements taken by Taylor’s (D) attorney shortly after a tugboat accident. Witness
statements taken in anticipation of litigation do not have to be turned over to the opposing party.
o Issue:
 Must witness statements taken in anticipation of litigation be turned over to the opposing party?
o Discussion and Rationale:
 (Murphy, J.) No. Discovery of attorney work product prepared in anticipation of litigation may be had only if the
material sought is not privileged and is essential to the preparation of the requesting party’s case.
18
  In order to represent a client properly, it is essential that an attorney be allowed to work without
unnecessary intrusion from the opposing party.
o (1) Black Letter Rule:
 Discovery of attorney work product prepared in anticipation of litigation may be had only if the material sought is
not privileged and is essential to the preparation of the requesting party’s case.
o (2) Black Letter Rule:
 When the discoverer goes beyond a bare demand and shows that production is “essential to the preparation” of his
case and that denial of discovery would cause hardship because “witnesses are no longer available or can be
reached only with difficulty,” production of “relevant and non-privileged facts . . . in an attorney's file” should be
allowed.

 Upjohn Co. v. United States 449 U.S. 383 (1981)

o Instant Facts:
 Upjohn (D) refused to produce documents that related to an internal investigation conducted by its general counsel,
claiming that the documents were protected by the attorney-client privilege.
o Black Letter Rule:
 A communication by a corporation’s employee to the corporation’s attorney is protected by the attorney-client
privilege if the communication is about matters within the scope of the employee’s employment and was obtained
for the purpose of providing legal advice to the corporation.
o Discussion and Rationale:
 Corporate employees’ responses to an investigative questionnaire from counsel ARE covered by the attorney-client
privilege.
 The attorney-client privilege is stronger than the protection against discovery afforded to attorney work-
product.
 The Rule 26(b)(1) specifically exempt privileged materials from discovery, while there is a possibility that work
product will be disclosed if there is a proper showing of necessity.
 There is no showing of necessity that will defeat the attorney-client privilege.
 The purpose of the privilege is to encourage full and frank communication between attorneys and their clients.
 The privilege exists not just to protect the professional advice given by an attorney to those who can act on
the advice, but also the giving of information to the attorney to enable him or her to give sound and
informed advice.
 In this case, there was no showing of necessity sufficient to compel disclosure of notes reflecting interviews by
counsel.
 There must be a far stronger showing of necessity than was made here before the notes must be disclosed.

 Expert Testimony – Rule 26(b)(4)

o Expert Witness: A witness qualified by knowledge, skill, experience, training, or education to provide a scientific, technical, or
other specialized opinion about the evidence or a fact issue.
 A party seeking discovery from a non-testifying expert carries a “heavy burden” of proving “exceptional
circumstances.”
 The party seeking the discovery must show it is unable to obtain equivalent information from other sources.
o The requisite “exceptional circumstances” are typically found under three fact patterns:
 (A)  the consulting expert observed an event, object, or condition that no longer is observable, but the event
relates to a material issue at trial, and the party seeking discovery could not reasonably have been expected to
observe it;
 (B)  the cost to replicate the event, object, or condition is prohibitively expensive; or
 (C)  there are no other available experts in the field.
o Rule 26(a)(2) requires disclosure of the identity and expected testimony of the testifying experts and Rule 26(b)(4)(A) permits
their depositions.

19
  Rule 26(a)(2)(D) requires that at least 90 days before trial, or as required by the scheduling order or the parties'
agreement, the parties must begin a process of disclosing certain information about experts and expert witnesses.
o Rule 26(b)(4) conditionally protects the non-testifying experts from discovery absent a special showing.
 Neither part of the rule, however, protects against discovery of an expert who acquires his information as an actor
or viewer in the transactions or occurrences that give rise to the lawsuit
o
 In re Shell Oil Refinery 132 F.R.D. 437 (E.D. La. 1990) [Cost to replicate is prohibitively expensive]
o Facts:
 Part of an oil refinery operated by Shell Oil (D) exploded. The litigation against Shell Oil (D) arising out of that
explosion was filed on the same day as the explosion. The plaintiffs requested disclosure of expert witnesses who
would not be called to testify at trial.
o Issue:
 Are expert reports prepared by regular employees, but in anticipation of litigation, discoverable?
o Black Letter Rule:
 Experts ordinarily employed by a party will be considered retained or specially employed if their employer assigns
them to work on a particular matter in anticipation of litigation or for trial.
o Discussion and Rationale:
 (Mentz, J.) No. Experts ordinarily employed by a party will be considered retained or specially employed if their
employer assigns them to work on a particular matter in anticipation of litigation or for trial.
 Nordstrom and Nelson investigated the explosion and prepared reports at the direction of Shell’s (D)
attorneys.
o There has been no showing of exceptional circumstances that would justify discovery.
 Courts generally have interpreted exceptional circumstances to mean that the
information sought is unavailable from other sources.
[4] Enforcement of Discovery:

 As a general rule there are three ways a Court may become involved in a discovery :
o (1)  Responding party asks for a protective order under Rule 26(c).
 You ask the court for protective order because the discovery requests subjects you to under burden or undue
expense or any of the other grounds you find in 26(c)(1).
 Rule 26(c)(1) allows the judge to make “an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense[.]”
 Order is limited to the case only; it may not go beyond this case.
o (2)  Discovering party makes a motion to compel, if one party refuses to cooperate in the other’s discovery attempts, the
aggrieved party may seek an order compelling discovery under Rule 37(a).
 Where the responding party responds incompletely.
 Answering some of the interrogatories but objects the others . . . etc.
o If party seeking discovery must make motion to compel.
 If you don’t comply to court order your will get hit with sanctions for Rule 37(b)(2).
o (3)  Where responding party fails completely to attend a deposition, respond to interrogatories, respond to requests
for production
 An order to compel discovery may be granted if the discoveree fails to:
 (1) answer a written or oral deposition question,
 (2) answer an interrogatory,
 (3) produce documents, or allow an inspection,
 (4) designate an officer to answer deposition questions, if the discoveree is a corporation.
 Discoverer goes directly to a motion for serious sanctions under Rule 37(d)(1)(A).
 Under Rule 37(d)(1)(A) you do not have to go through the motion to compel; you go to court asking for
sanctions.
o List of sanctions are in Rule 37(d)(3).
20
 Pre-Trial Adjudication

 The court decides who wins without going to trial :

o Could be forum selection:
 Rule 12(b)(1) – lack of Subject Matter Jurisdiction
 Rule 12(b)(2) – lack of Personal Jurisdiction
 Rule 12(b)(3) – Improper Venue
o Could have voluntary dismissal under Rule 41(a).
o Could be default under Rule 55:
 Maybe Defendant didn’t show up.
 Maybe Defendant didn’t show up.
 Two most important pre-trial adjudication decisions :
o (1)  Failure to state a claim under Rule 12(b)(6), and
o (2)  Summary judgment under Rule 56.

[1] Rule 12(b)(6) – Failure to state a claim.

 What is it:
o Question: Does this case belong in the litigation stream at all? No
 If the plaintiff cannot state a claim, then there is no sense having this case go forward.

21
 How court determines motion:
o No evidence:
 In the Rule 12(b)(6) motion, the court does not look at evidence.
o Under Rule 12(b)(6) the Court looks at the face of the complaint.
 The test that applies comes from Twombly (2017) and Iqbal (2009); Twiqbal gave us three rules, when we look at the
face of the complaint:
 (1)  The Court ignores conclusions of law and looks only at allegations of fact.
 (2)  The facts alleged must support a plausible claim.
 (3)  To determine plausibility, the judge uses her own experience and common sense.
o This Twiqbal test is a very subjective standard.
 Results will vary depending on the judge depending on the experience and the common sense.
 Second Chances:
o Typically, when court grants a Rule 12(b)(6) motion, it will give the plaintiff a second chance.
 Court will grant motion to dismiss with “leave to amend or without prejudice.”
 Meaning Plaintiff could come back and try again.

 Conclusion:
o Under a Rule 12(b)(6) motion we look only at the complaint and we are trying to figure out if the plaintiff stated enough facts to
back up a plausible claim.

[2] Rule 56 – Summary judgment

 Summary Judgment:
o Under the Rule 56 we weed out cases in which we do not need a trial.
 We have stated a claim, we’re in the litigation stream, but we do not need to go to trial.
 Unlike Rule 12(b)(6) the court does look at evidence.
o We only go to trial for one reason, that is to resolve disputes of fact.
 If a party shows that there is no dispute of fact, then we do not go to trial.
 The court can simply rule as a matter of law.

 What is the Standard:

o Standard under Rule 56(a) – Party moving for Summary judgment must show two things:
 (1)  There is no genuine dispute on a material fact.
 (2)  She’s is entitled to a judgment as a matter of law.
 Part two of standard is easy because if there is no dispute of fact, then the only question left is one of law.
o Under Rule 56, summary judgment we have stated a claim.
 We have gotten past Rule 12(b)(6); however, we do not need a trial because we don’t have any factual issues to resolve, so
the only issue left is one of law.
 Thus, court can resolve that without trial

 Looking to evidence:
o In a summary judgment, the court does look at evidence.
 If there is a pre-trial motion, and the court is looking at the evidence, it cannot be a Rule 12(b)(6) motion, it must be a
summary judgment.
o Where does evidence come from?
 Evidence is proffered by the parties.
 Parties are going to give the court evidence in written form, and the court will look at that evidence to determine
whether there is a genuine dispute on a material fact.
o If there is no dispute on a material fact, then the court can simply rule as a matter of law.
o Evidence is materials that are executed under oath. Basically, under penalty of perjury. Typically, 1 of 4 things:
 (1) Affidavits or (2) Declarations – Both are written statements under oath.
 (3) Deposition of testimony – That is under oath.
 (4) Answers to interrogatories – also executed under oath.
o Based on reading the written evidence provided by the party, the court will ask one question:
 Based on this evidence is there a dispute on material fact?
 If there is, summary judgment is denied.
 If there is not, we may grant summary judgment.
22
 Other Evidence:
o When pondering evidence, Court may also consider admissions.
 If a party has admitted something, then court can take that into account as well.

 Pleadings are not evidence:

o Pleadings are not executed under penalty of perjury.
 Pleadings are not even signed by parties; they are signed by lawyers under Rule 11.
 Exceptions are verified pleadings; however, they are made aware by party and they are exceptionally rare in federal
court.
o However, pleadings may contain admissions, to which this is applicable to be used.

 Courts Discretion:
o Even if you meet all the requirement of summary judgment, there is no right to have this granted. Summary judgment is always
discretionary with the court.
 If the standard is met, the court has the desecration to grant summary judgment.

 Dispute on material fact:

o If the defendant provides multiple credible witnesses for summary judgment, however, the Plaintiff provides one maybe credible
witness, then summary judgment must be denied.
 Plaintiff provided some evidence and Defendant provided some evidence, therefore there is a dispute on material fact.
 Dispute on material fact, is exactly the kind of case where we need a trial.
o Types of witnesses does not matter. Court cannot judge credibility.
 Credibility is a question of fact; thus, it must be taken to trial.

 Adickes v. S. H. Kress & Co. 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)
o Facts:
 (P), a white schoolteacher, sued (D) under 42 U.S.C. § 1983 after (D) refused to serve her lunch and she was subsequently
arrested. (P) was accompanied by six black students from school at which she was teaching. Relying on the deposition of
employee indicating that he had no prior communications with the police regarding (P), and affidavits from the arresting
officers stating that the employee had not requested (P) arrest, (D) moved for summary judgment. Ct granted summary
judgment because (P) failed to present any facts from which a conspiracy could be inferred.
o Procedural:
 Certiorari to review a decision of the Second Circuit Court of Appeals affirming the trial court’s summary judgment and
directed verdict for the defendant.
o Black Letter Rule:
 The moving party bears the burden of proving an absence of a genuine issue of material fact in order to sustain a motion
for summary judgment.
o Issues:
 Is summary judgment appropriate when the moving party fails to demonstrate that there are no genuine issues of material
fact?
o Rational & Discussion:
 (Harlan, J.) No. The party moving for summary judgment bears the burden of proving the absence of a genuine issue of
material fact in order to sustain the motion.
 As the moving party, the defendant had the burden of showing the absence of a genuine issue of material fact,
viewing the evidence in a light most favorable to the plaintiff.
o Here, the defendant failed to carry that burden, as it offered no evidence to foreclose the possibility that
the policeman was in the store when the plaintiff entered as a result of an agreement with the defendant.
 Because the inference of an agreement must be viewed in the light most favorable to
Adickes (P), summary judgment was inappropriate.
 The plaintiff need not produce an affidavit in response to the D) motion for summary judgment to establish the
existence of a material fact unless the defendant, upon whom the burden of proof initially lies, produces some
evidence that would bring the material fact into question.
o Rule 56(e) does not shift the burden of proof from the moving party to his or her opponent.
23
  Since the (D) offered no affidavit from the policeman or otherwise that the policeman was not in the store when (P)
entered, the (D) failed to meet its burden of proof.
o (P) need not provide any evidence in support of her position for purposes of the defendant’s summary
judgment motion. Reversed.
o Analysis:
 Adickes demonstrated the difficulty of obtaining summary judgment throughout the 1970s and early 1980s.
 In order to succeed on a motion for summary judgment, a party had to negate all possible material fact issues.
o Failure to bring forth evidence on a material fact alleged in a plaintiff’s complaint, such as the police
officer’s presence in Adickes, prohibited summary judgment in this case.
 The Adickes requirement, while still good law, was reshaped by the Supreme Court’s trilogy of summary judgment cases in
1986.

 Celotex Corp. v. Catrett 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)
o Instant Facts:
 (P) sued Celotex Corp. (D) for the wrongful death of her husband due to exposure to asbestos products. D moved for
summary judgment, arguing P had failed to identify any of the D’s products. In response, (P) offered transcript of deposition
of decedent, a letter from an official of the decedent’s former employers, and a letter from insurance company to her
attorney. District court granted the D’s motion for summary judgment because the P’s evidence failed to establish that any
(D) product was the proximate cause of the decedent’s death.
o Procedural:
 Certiorari to review a decision of the U.S. Circuit Court of Appeals for the District of Columbia, reversing summary judgment
entered on the behalf of the defendant.
o Black Letter Rule:
 Summary judgment will be granted when the moving party demonstrates the absence of a genuine issue of material fact and
that, as a matter of law, it is entitled to judgment in its favor, based on the pleadings, depositions, answers to interrogatories,
and admissions on file, with or without supporting affidavits.
o Issue:
 Must a party moving for summary judgment support its motion with evidence affirmatively proving the absence of a genuine
issue of material fact?
o Rational & Discussion:
 (Rehnquist, J.) No. Under Rule 56(c) of the rule, summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” indicate the absence of a genuine issue of
material fact and that the moving party is entitled to judgment in its favor as a matter of law.
 Rule 56(a) and (b) explicitly provide that summary judgment may be requested “with or without affidavits.”
o Analysis:
 The point: When a defendant moves for summary judgment that defendant needs only to prove that the plaintiff failed to
make out a prima facie case.


[2] Burden of Production

 Summary Judgment (RULE 56)

o 2 Qualifications:

 Burden of production – Adickes and Coletex

24
  Burden of persuasion – Ameloen and Dyer

 Your understanding of what “entitled to judgment as a matter of law” means starts with understanding this: How much evidence does
a party who has the burden of proof on an issue (a plaintiff on its claim; a defendant on an affirmative defense, for instance) have to
produce during trial for there to be something for the jury to decide?

o The answer to that question is measured, not just on a claim-by-claim basis, but on an element-by-element basis.

 (Likewise, affirmative defenses also have elements, and the same analysis applies to the amount of evidence the
defendant must produce on an element-by-element basis.)

 It may be helpful to think of a claim or defense as a series of boxes.

o Each element is represented by one box, and the party with the burden of proof must produce “enough” evidence in each
box for a reasonable jury to find for the party.

o Again, that doesn't mean the jury must find for that party, just that it can.

 In terms of Rule 50(a)(1) (the rule that governs “judgments as a matter of law,” and to which Rule 56(a) refers) puts the burden of
production in these terms: by the time a party with the burden of proof on an issue finishes putting on its evidence (so, by the time
the plaintiff rests), it must during trial have put into evidence a “legally sufficient evidentiary basis for a reasonable jury to find for that
party on that issue.”

o If not, then if the defendant moves for “judgment as a matter of law,” then the plaintiff should lose. To break this down
further, in terms of the example above, by the time the plaintiff rests at trial, there must be “legally sufficient” evidence in
each box.

 Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946)

o Witness credibility is weighed by the jury
o Facts:
 Arnstein (P) sued Cole Porter (D) for copyright infringement, claiming (D) had “stooges” who ransacked his
apartment and stole his copyrighted songs. In his deposition, (P) admitted that he did not know whether (D) was
involved, but he believed that he could have been involved. (D) denied ever seeing or hearing any of the plaintiff’s
songs or associating with anybody who may have stolen the songs. (D) moved for summary judgment, which motion
was granted by the trial court. (P) appealed.
o Black Letter:
 When a factual issue turns on the credibility of the witnesses, summary judgment is inappropriate. Credibility should
be left to the jury.
o Slightest Doubt Test:
 The rule of Arnstein is that summary judgment may not be rendered when there is the ‘slightest doubt as to the
facts no longer good law.
o Rational & Discussion:
 Although there are similarities between (P) copyright songs and (D) compositions, there is no evidence to
demonstrate that (D) copied the plaintiff’s songs.
 However, the similarities are sufficient to permit a jury to reasonably infer that if (D) had access to the
compositions, the songs were copied.
 Summary judgment is appropriate, then, only if there is no genuine issue of material fact concerning (D) access to (P)
copyrighted material.
 Here, Arnstein (P) offers that “stooges” ransacked his apartment and gave Porter (D) access to his songs.

25
 o Although the account appears “fantastic,” the truth of the account turns on the plaintiff’s
credibility, which is properly left for the jury’s consideration.
 Similarly, (D) denials require a judgment of his credibility. (D) recordings have sold more than a million copies. If the
jury questions (D) credibility and disbelieves his denial, there arises a reasonable inference of access to (P) songs.
 Because the credibility of the witnesses is at issue, (P) must be afforded his right of cross-examination
before the jury.
o Dissent:
 (Clark, J.) Court places too much emphasis on the ability to cross-examine. (P) has deposed the (D) and the only
evidence on which access may be established is the possibility that the (D) is untruthful in his denial.
 Court’s decision appears to rest on both its faith in the jury’s ability to resolve issues of plagiarism and the
court’s dislike of the summary judgment standards handed down by the Supreme Court.
o As to the first, the evidence offered, even if presented to the jury, would likely result in a proper
directed verdict.
o As to the second, the court’s reluctance to use the summary judgment procedures in a copyright
infringement case finds no support in the federal rules.
 In order to apply such a limitation, the court must inappropriately refashion the summary judgment rules.
 While it is inappropriate to grant summary judgment when there exist genuine issues of material fact, it is
equally inappropriate to allow trial to go forward when such factual issues are absent.

 Dyer v. McDougall, 201 F.2d 265 (2d Cir. 1952)

o Instant Facts: Dyer (P) sued MacDougall (D), alleging four counts of libel and slander. (D) moved for a summary dismissal of
counts two, three, and four, denying the slanderous comments. After (P) declined an opportunity to depose the witnesses,
the court summarily dismissed counts three and four, ruling that (P) could present no evidence at trial that the slanderous
utterances were made. (P) appealed.

o Black Letter: A party may not rely on mere speculation that a witness may change his testimony or that his demeanor may
convince the jury of his untruthfulness to escape summary judgment.

o Rational & Discussion:

Trial

[1] Phases of trial:

 (1) Jury Selection

o Jury selection is a two-step process.
 The first — assembling the venire (summoned group of people) from which the jury panel of twelve or fewer (plus
alternates) is selected — is performed by the clerk's office according to statutory criteria and procedures.
 The second — questioning (voir dire) of the potential jurors (veniremen) to select the panel — is performed by
counsel, or by the judge with the aid of voir dire questions suggested by counsel.
 The voir dire is intended to expose biases or interests of prospective jurors that would disqualify them for
cause.
 Usually, parties are given unlimited challenges for cause and a limited number of peremptory challenges.

 (2) Opening Statements

o Function of opening statement is to provide the roadmap of evidence for the jury, but what lawyers tell the jury is not itself
evidence

 (3) Presentation of Evidence

26
 o Heart of the Trial:
 (a) Sequence: The usual formulation is that the party with the burden of proof on an issue goes first. When that is
completed, the other side gets to present opposing evidence, to which the party with the burden of proof may
respond with rebuttal evidence which the other side my then rebut until there is no further evidence.
 (b) Manner of Presentation:
 (c) Exclusion of Evidence: Law of evidence allows the litigants to prevent their opponents from presenting certain
things to the jury. In general the FRE incline toward allowing the jury to hear all relevant evidence unless its
probative value is substantially outweighed by other factors.
 (4) Argument
 (5) Instructions
 (6) Jury Deliberation and Verdict
 (7) Post-Trial Motions and Judgment

[2] pre- and post-judgment as a matter of law:

 Right to a Jury trial

o We’re at trial for only one reason – to resolve disputes of fact.
 What happened? – Questions of Fact
 Credibility? – Questions of Fact
 Damages? – Questions of Fact
o Who decides Disputes of Facts?
 If we have a jury, the jury decides the facts. Jury never decides the law.
 Not all trials are jury trials. In those cases, judges decide facts. That is called bench trial.
o 7th amendment is the right to a jury trial for civil cases in federal court.
 “Preserves the right to a jury trial.”
 “Does so only cases at law not equity.”

[3] Judgment as Matter of Law

 Judgment as a Matter of Law (JMOL):
 JMOL is provided for in Rule 50(a). This was originally known as directed verdict.

 What is it?
o JMOL is when judge decides, while at trial, that the case does not need to be decided by jury because this is a JMOL.
 Rule 50(a)(1) – Once a plaintiff has been fully heard on an issue during a jury trial in federal court, the opposing party
may move for judgment as a matter of law on the theory that the plaintiff did not proffer sufficient evidence for a
reasonable jury to find for him on the issue.
 Rule 50(a)(2) – You can only move for this after the other side has been heard at trial any time before the case is
submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to
the judgment.
o JMOL is always discretionary.

 Renewed motion for Judgment as a Matter of Law (RJMOL) :

o This is exactly the same as JMOL except it comes up later.
 JMOL was originally denied; and judgment is returned by jury; and now the losing party makes an RJMOL motion.
 If the motion is granted, victory is removed from winning party at trial and enter victory for the other party.
o Rule 50(b) – Standard is same as JMOL, the jury reached a verdict that reasonable people could not have reached and
therefore we’re going to take the victory from that side and enter it for the other side.
 Will let trial go to the jury, thus P cannot complain that they were denied a trial by jury.
o Rule 50(b) – Must move for RJMOL within 28 days after entry of judgment. To move for RMJOL, you must have moved for
JMOL at a proper time at trial.

 If you did not move for JMOL, then RJMOL must be denied.

 In analyzing the scope of the motion for JMOL, two distinct issue must be considered :

27
 o (1) Whether the motion consistent with constitution dictates concerning the role of the jury, and
o (2) the method for determining whether there exists sufficient evidence for a “reasonable: jury to find for a particular party.

 Galloway v. United States 319 U.S. 372, 63 S.Ct. 1077 (1943).

 Directed verdicts do not violate the 7th amendment
o Facts:
 (P) made claim for disability under an insurance policy issued. (P) claimed he was disabled by f insanity. Veterans’
Bureau physicians diagnosed (P) as insane. Evidence was introduced regarding incidents of erratic behavior. (P) also
introduced evidence supported his claim tat he was insane after return from France, but there were large gaps in the
time. After close of (P) evidence, the DC granted the motion of the (D) for a directed verdict.
o Black Letter Rule:
 The 7th Amendment was intended to preserve the basic institution of the jury trial in its most fundamental elements,
not to preserve procedural forms and details.
o Issue:
 Was (P) deprived of his right to a trial by jury as a result of the directed verdict (JMOL)?
o Decision and Rationale:
 No, the 7th amendment was intended to preserve the basic institution of the jury trial in its most fundamental
elements, not to preserve procedural forms and details.
 In addition, the two challenges to evidence (P) says were recognized at common law were inconsistent in
their effect.
o The party making a demurrer to evidence essentially admitted having no case, which would deny
the party making the challenge the right to a jury trial.
 As for the motion for a new trial, there is no suggestion that the Constitution guarantees a new trial when a
challenge to the evidence is sustained.
o The conflicting consequences demonstrate that the 7th Amendment could not have been intended
to enshrine only these two challenges to the sufficiency of evidence.
 Amendment applies to this case only because Congress has chosen to grant the right to a
jury trial.
 There was no right to a jury trial in monetary claims against the United States (D)
in 1791.
 The lower courts were correct in holding that (P) did not introduce sufficient evidence to make his claim of
disability.
 There were too many gaps in the testimony to support his claim , and there is nothing to show the totality of his
disability or its permanence.
 The inference of total disability by reason of insanity cannot be drawn. Affirmed.
o Demurrer to Evidence:
 A party’s objection or exception that the evidence is legally insufficient to make a case. Its effect, upon joinder in the
demurrer by the opposite party, is that the jury is discharged and the demurrer is entered on the record and decided
by the court. A demurrer to evidence admits the truth of all the evidence and the legal deductions from that
evidence.
o Directed Verdict:
 A ruling by a trial judge taking a case from the jury because the evidence will permit only one reasonable verdict.

 Lavender v. Kurn 327 U.S. 645, 66 S.Ct. 740 (1946).

o Jury verdicts must be upheld if there is any evidence to support them.

o Facts: H(P), L(P) decedent, was employed in a railroad switchyard. One night he was found lying unconscious near some
railroad tracks. He was taken to a hospital but was dead on arrival. The medical evidence showed that he had been struck in
the back of the head. There were no witnesses). L(P) theory was that H(P) had been struck in the head by a mail-hook
protruding from train. (D) theory was H(P) had been mudered. One of the doctors who performed the autopsy concluded
that H(P) was struck in the head by a small object attached to a train. Doctor also admitted that injury could have been
caused by a blow from a pipe or club. (D) introduced evidence to show impossibility of accident. L(P) introduced evidence to
cast doubt on the theory. Jury returned verdict for L(P) and awarded $30k. On appeal, MO Scotus reversed judgment, holding
that there was no substantial evidence of negligence to support the submission of the case to the jury.

28
 o Issue: Given the conflicting evidence presented by both parties, was there sufficient evidence of negligence to submit the
case to the jury?

o Discussion and Rationale: Lower Court Reversed. (Murphy, J.) Yes. A jury’s verdict will be overturned on appeal only if there
is a complete lack of probative evidence to support the verdict.

 When there is an evidentiary basis, it is for the jury to discard or disbelieve whatever facts are inconsistent with its
conclusion. Evidence contrary to the verdict becomes irrelevant upon appeal.

 It would be an undue invasion of the jury’s function for an appellate court to weigh the conflicting evidence or judge
the credibility of witnesses. It is immaterial that the appellate court may draw a different inference from the
evidence presented.

o The conclusion reached by the jury in this case was not an unreasonable one in light of the evidence. Reversed and
remanded.

o Analysis: Reading the recitation of evidence in this case, there does not seem to be any particular reason to prefer L(P)
theory to the theory advance by (D).

o A jury is able to hear live testimony, however, and observe the demeanor of a witness while testifying, which is one way of
judging the credibility of a witness whose testimony is not inherently lacking in believability.

o Juries determine a witness’s credibility in many of the same ways people make such a judgment in ordinary conversations—
eye contact, fidgeting, inappropriate facial expressions, etc. These observations cannot be duplicated by reading the record of
the testimony.

 Guenther v. Armstrong Rubber Co. 406 F.2d 1315 (3d Cir. 1969).

o Discrepancies in evidence must be resolved by the jury.

o Facts: (P), an automobile mechanic, was injured when a tire he was mounting exploded. After accident, tire was removed
and kept in possession of the manager of garage. Tire was later examined by experts for both (P) and (D). At trial, (D)
admitted that it had manufactured tire. Tire was a 13in white wall tire. (P) testified that tire was a 15in tire. (D) objected to
introduction of the testimony of (P) expert based on the difficulty in identifying the tire examined as the one that injured (P).
TC granted (D) motion for a directed verdict. (P) motion for NT was denied, because (P) identification of a black wall tire as
one that injured him was in direct contradiction to the identification of the white wall tire that was examined and found
defective by (P) expert.

o Issue: Should a directed verdict have been entered when there was conflicting evidence as to which tire injured the plaintiff?

o Decision and Rationale: (McLaughlin, J.) No. It is not the function of the judge to resolve problems with the evidence
presented. The jury should be able to resolve the problem posed by the conflicting testimony.

 (P) case should not have gone to the jury, however, solely on the basis that the tire probably had been made by (D). A
verdict based on that probability would be at best a guess. Reversed.

o Analysis: The credibility of a party is to be evaluated in the same manner as the credibility of any other witness.

o Although (P) testimony regarding the tire that injured him probably would be given much weight by the jury, the alternate
testimony—that the tire introduced into evidence was in fact the one that injured him—is not inherently incredible.

o There is some justification for concluding that it truly was the tire, despite (P) testimony. In most cases, careful trial and
witness preparation helps litigants avoid surprise testimony, such as that presented in this case.

[4] New Trial

29
  Motion for New Trial:
o Rule 59(a)(1) is the motion for the trial.
 Same as timing for RMJOL. Must come up 28 days after judgment.
o Removes victory but doesn’t give it to loser.
 Less radical than RMJOL
o Why does it get granted:
 Judge decides that a mistake affected the trial.

 Motion to set aside judgment:

o Rule 60(b) allows the district judge that entered the judgment to set aside it for various grounds in 60(b)
 Things like:
 Mistake or
 Excusable neglect
 There are various basis
o Rule 60(c) sets out timing, which is under a reasonable time.
 Reasonable time can never be more than a year.

Res Judicata & Collateral Estoppel

[1] What law Applies

 Jurisdictional
o Every jurisdiction has ability to make up its own laws for preclusion.
 General Rule
o Preclusion rule that applies is from the jurisdiction that decided the original case 1
 Federal Court General Rule
o Federal preclusion law is

[2] Issue Preclusion  Res judicata:

 Three Mechanical Requirements for Claim Preclusion or Res judicata :
o (1)Case 1 and Case 2 must be brought by same claimant against the same D.
o (2) Case 1 ended in valid final judgment on the merits.
 On the merits
 Rule 41(b) says that all judgments are on the merits, unless they’re based on jurisdiction, venue or
indispensable parties.
o This is true even if we litigated nothing  default judgment
o (3) The claimant asserted the same claim in case 1 and case 2.
 What is a claim:
 Majority view is that the claim is the same transaction or occurrence.
 Minority view is the primary rights theory
o Different claim for each right invaded.

[3] Issue Preclusion  Collateral Estoppel:

 Five mechanical requirements for issue preclusion :
o (1) Show that case 1 ended in a valid final judgment on the merits.
o (2) Must show that the same issue was actually litigated and determined.
o (3) Must show that the issue was essential to the judgment in case one.
 That is the basis for the judgment.
o (4) Against whom is issue preclusion used.
 Same in every court; based in due process
 Issue preclusion can only be used against someone to whom was a party in case 1.
o (5) By whom is issue preclusion asserted.
30
  Differs
 Mutuality
o only assert if you were a party to case one.
 Nonmutual issue preclusion
o Not party to case one.
 Nonmutual defensive preclusion
o Not party he’s the D in case 2.
 Nonmutual offensive preclusion
o Not party is P in case 2
 Hypos:
o P owns car, P lends car to D. P is vicariously liable for D’s action. D wrecks into X. C#1  X sues D, D wins. C#2  X sues P. P
wants issue preclusion because the issue of X’s negligence was decided in C#1.
 #1 yes
 #2 yes negligence litigated and decided
 #3 yes negligence was essential to the judgment.
 #4 Yes, X was party to case one.
 #5 P using issue preclusion.
 Under mutual no; however clear majority view is that nonmutual defensive is okay as long as X has full
chance to litigate case.
o P owns car, P lends car to D. P is vicariously liable for D’s action. D wrecks into X. C#1  X sues D, D wins. C#2  P sues X. X
wants issue preclusion because the issue of X’s negligence was decided in C#1.
 #1 yes
 #2 yes negligence litigated and decided
 #3 yes negligence was essential to the judgment.
 #4 Yes, P was party to case one.
 #5 X using issue preclusion.
 Nonmutual offensive  most say no.
 However new trend says yes if it’s not unfair:
o Parklane . . .
 No one Knows how to weigh facts:
 Full chance to litigate issue.
 X Could foresee multiple suits.
 P could not have joined easily in case one.
 No inconsistent judgment.

[1] Same Claim or Cause of Action

 Manego v. Orleans Board of Trade 773 F.2d 1 (1st Cir. 1985). \
o A transactional approach determining whether the underlying facts are the same in two separate actions
o Facts:
 After Manego (P) lost his suit against the (D) for civil rights violations, he filed a subsequent action alleging antitrust
violations arising out of the same facts. *** Liquor license.

o Issue:
 After dismissal of a plaintiff’s cause of action, may the plaintiff bring a subsequent action on a different legal theory
based on the same transaction from which the first claim arose?
o Decision and Rationale
 (Bownes, J.) No. Under the Doctrine of Res Judicata, “a final judgment on the merits of an action precludes parties
or their privies from relitigating issues that were or could have been raised in that action.” Necessarily, the
subsequent action must involve the same cause of action or claim.
 Under Restatement (Second) of Judgments §24, which the court adopts, a transactional definition
establishes that “[w]hen a valid or final judgment rendered in an action extinguishes the plaintiff’s claim
pursuant to the rules of merger or bar …, the claim extinguished includes all rights of the plaintiff to
remedies against the defendant with respect to all or any part of the transaction, or series of connected
transactions, out of which the action arose.” Where the facts involved “are related in time, space, origin, or
31
 motivation, … form a convenient trial unit, and … their treatment as a unit conforms to the parties’
expectations or business understanding or usage,” a single transaction exists.
o Here, the fact that (P) alleged different legal theories in his two actions does not create separate
transactions. Nor is it material that different defendants were named in the two actions.
 Willard’s common involvement with both Ds indicates the facts involve the same
transaction.
 Similarly, the omission of the bank’s intent to offer live music and dancing at the rink does
not create a separate transaction.
o While res judicata will not generally apply where facts are unavailable through the discovery
process, (P) failed to reasonably take advantage of discovery to uncover the bank’s entertainment
intentions. This failure cannot be the basis for establishing separate transactions.
 While a failure to assert different facts that may be possible and convenient to assert in a single proceeding
does not bar a plaintiff from later asserting those facts in a subsequent action, a plaintiff must assert all
claims when the underlying facts are the same for all.
o Here, the two causes of action rely on the same underlying actions of the bank and Willard; only
their alleged motive differs.
o Whether (P) claims the action resulted in a restraint of trade or racial discrimination, the facts
giving rise to both actions are the same.
o Accordingly, (P) was required to litigate both claims in the same action and is barred by res judicata
from pursuing them separately.
 As for the (D), the court’s decision that res judicata does not apply but that (P) failed to demonstrate a
genuine issue of material fact to avoid application of a legal exception to the defendant’s liability was
appropriate. Affirmed.
o Analysis:
 The transactional approach of the Restatement (Second) of Judgments broadens the application of res judicata
beyond the specific cause of action asserted to reach all causes of action that could have been asserted under a
specific set of facts. This approach was brought on by the change in the Federal Rules of Civil Procedure to enable
plaintiffs to assert all claims arising out of common facts in a single action by original or supplemental jurisdiction.

 Rinehart v. Locke 454 F.2d 313 (7th Cir. 1971).

o On the Merits must know.
o Facts:
 In 1964, Locke (D) and other private detectives falsely reported Rinehart (P) for impersonating a police officer. (P)
was arrested without warrant and falsely charged with the unlawful use of a weapon and resisting arrest. He was
convicted and imprisoned, but the conviction was overturned in 1967. In 1969, the (P) filed a complaint in federal
court for damages resulting from the unconstitutional arrest. Court dismissed complaint for failure to state a claim
because (P) failed to allege an absence of probable cause, and court denied leave to amend the complaint. (P) did
not appeal the dismissal. Instead, (P) filed a subsequent complaint in 1970, alleging constitutional violations and an
absence of probable cause. (D) asserted that the issue was barred as res judicata by the 1969 dismissal order. DC
agreed and dismissed the complaint.
o Issue:
 Does the dismissal of the plaintiff’s complaint for failure to state a claim bar a subsequent complaint on similar
grounds that validly states the claim as amended?
o Discussion and Rationale:
 (Fairchild, J.) Yes. Under Rule 41(b), “[u]nless the court in its order for dismissal otherwise specifies, a dismissal …,
other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19,
operates as an adjudication on the merits.”
 The rule demonstrates that unless a DC specifically provides that a dismissal is without prejudice to the
plaintiff’s rights to refile the action, the order is an adjudication on the merits, which bars the plaintiff from
relitigating the action in a subsequent proceeding. (P) facing dismissal bears the burden of convincing the
judge to enter dismissal without prejudice to his rights. If unsuccessful, his available avenue of relief is a
direct appeal.
o Because the 1969 order did not indicate otherwise, it was an adjudication on the merits barring the
plaintiff’s 1970 complaint. Affirmed.
o Analysis:
 The preclusive effect of a 12(b)(6) dismissal as a judgment on the merits seems harsh under some circumstances. In
situations such as Rinehart, where the complaint was insufficient for failure to allege an element of the offense,

32
 dismissal seems more severe than when a complaint is correctly drafted but fails to state a claim. In many cases, the
court will grant the plaintiff leave to amend his or her complaint, but in this instance that avenue of relief was not
available.
o Merits:
 The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a
case, as opposed to extraneous or technical points, especially of procedure.

 Taylor v. Sturgell 553 U.S. 880 (2008).

 Nonparties are rarely bound by earlier judgments in similar cases
o Facts:
 (P), a vintage aircraft enthusiast, filed a lawsuit under the Freedom of Information Act, seeking documents vintage
airplane. Herrick, a friend of (P), had previously filed an unsuccessful suit seeking same documents. Court denied (P)
request, concluding that (P) interests had been virtually represented by Herrick, despite fact that there was no
evidence (P) controlled, financed, participated in, or even had notice of Herrick’s lawsuit. Different federal circuit
courts had applied different standards to determine whether a unity of interests existed such that a judgment in one
case had preclusive effect in another. The Court of Appeals for the District of Columbia rejected tests applied in
other circuits and devised its own five-factor test. Under the D.C. test, the first two factors—identity of interest and
adequacy of representation—were necessary, but not sufficient, for virtual representation. In addition, the court
concluded, one of three additional factors must be established: either a close relationship between the present party
and his or her putative representative, or substantial participation by the present party in the first case, or tactical
maneuvering on the part of the present party to avoid preclusion by the prior judgment. Applying that test to (P)
case, the court concluded that the necessary conditions for “virtual representation” were met. (P) appealed, and the
Supreme Court granted certiorari to resolve the disagreement among the circuits over the permissibility and scope
of preclusion based on so-called virtual representation.
o Issue:
 Did the District of Columbia Court of Appeals apply the correct test to determine whether Taylor’s (P) lawsuit was
precluded by the earlier judgment in his friend Herrick’s case?

o Decision and Rationale:

 (Ginsburg, J.) No. The rule against nonparty preclusion is subject only to certain recognized exceptions:
 (1) a nonparty may agree to be bound by a judgment,
 (2) certain substantive relationships may justify preclusion (e.g., privity),
 (3) a nonparty’s interests may have been adequately represented in the prior litigation (e.g., class actions
and suits by trustees or guardians),
 (4) a nonparty may have assumed control over the earlier lawsuit,
 (5) a nonparty may have colluded to avoid the preclusive effect of an earlier judgment by litigating through
a proxy, or
 (6) special statutory schemes (such as bankruptcy) may apply.

 Beyond these established exceptions, some courts recognize a “virtual representation” exception. We find none of
the reasons in support of such an exception persuasive.
 First, we must once again emphasize the importance of the general rule that a litigant is not bound by a
judgment to which he or she was not a party.
 Second, “adequate representation,” to suffice as “virtual representation,” requires that (1) the interests of
the nonparty and her representative are aligned; and (2) either the party understood herself to be acting in
a representative capacity, or the original court took care to protect the interest of the nonparty. Adequate
representation sometimes also requires actual notice of the original suit to the persons alleged to have
been represented.
 Third, a balancing approach to nonparty preclusion, like that applied by the appellate court, would create
more headaches than it relieves. Preclusion doctrine is intended to reduce the courts’ burden, not increase
it.

o The doctrine of stare decisis already allows courts to swiftly dispose of repetitive lawsuits. Human
tendency as well will generally prevent a litigant from bringing an identical claim to one that has
already proven to be fruitless.

o Application:

33
  Turning to (P) case, there is nothing in the record to suggest that (P) agreed to be bound by Herrick’s litigation, that
they have any legal relationship, that Taylor (P) controlled Herrick’s lawsuit, or that (P) was adequately represented
by Herrick. Nor did Herrick bring suit as a representative or agent of (P). As to the argument that Herrick and (P) have
colluded to avoid the preclusive effect of the first judgment (or that (P) was the agent of Herrick), we have never
enunciated a clear standard, but courts should be cautious before finding collusion. A remand is appropriate for
further determination as to whether (P) was acting as Herrick’s agent in bringing the second lawsuit—an issue on
which the defendant will bear the burden of proof. Vacated and remanded.

o Analysis:
 Virtual representation generally refers to the bringing of an action on behalf of an unnamed party or parties, as in a
class action, where a number of people have similar interests to the named party, and upon whom the court’s
judgment will be binding. It can also refer to representation by guardians ad litem or trustees, for instance, who
represent the interests of others more than themselves. In the present case, the defendants argued that once
Herrick’s claims proved unsuccessful, he engaged his friend to try again on his behalf, essentially tricking the court
into giving them another shot at the defendants. The court was unpersuaded that this case presented a proper
scenario for application of an exception to the rule against nonparty preclusion, but it gave the defendants one more
chance, on remand, to show that Taylor (P) and Herrick colluded to avoid the preclusive effect of the judgment in
Herrick’s case.

[2] Same issue litigated

 Little v. Blue Goose Motor Coach Co. 346 Ill. 266, 178 N.E. 496 (1931).
 A finding of negligence precludes relitigation of that issue in a subsequent action
o Facts:
 Blue Goose (D) initially sued Dr. Little before a justice of the peace for damages caused to its passenger bus as a
result of a collision between the bus and Dr. Little’s vehicle. Justice of the peace awarded judgment to (D) for the
amount of its property damage, which was appealed to the county court. While the case was pending, however, Dr.
Little filed suit against (D) in city court for personal injuries suffered in the collision. After Little died and his widow
(P) succeeded him, (D) claimed the suit was estopped by the earlier verdict, which resulted from a presentation of
witnesses and evidence to determine the plaintiff’s fault. The court rejected the defense and ultimately awarded (P)
judgment on her claim. The IL App Court reversed, finding that the earlier proceeding had determined that Dr. Little
was negligent in causing the collision.
o Issue:
 Is a finding of negligence in an earlier property damage suit binding upon the parties or those in privity with the
parties in a subsequent proceeding on a different cause of action?
o Decision and Rationale:
 (Per curiam) Yes. “Estoppel by verdict arises when a material fact in any litigation has been determined in a former
suit between the same parties or between parties with whom the parties to the subsequent suit are in privity, where
the fact was also material to the issue.”

 The Appellate Court determined that the justice of the peace had established Dr. Little’s negligence in the
collision, which was the same issue presented before the city court. When the decision of the justice of the
peace became final, it was binding not only on Dr. Little, but on his (P), who stood in privity with him.

 Since Dr. Little was estopped to relitigate the issue in the same or subsequent proceeding, so too is his widow (P),
whether the subsequent proceeding involved a different cause of action or not.

 The justice of the peace’s decision that Dr. Little’s negligence was the cause of the collision applies to both
the (P) wrongful death and claims and her willful and wanton conduct claims, each of which rely upon the
defendant’s negligence as a prerequisite for recovery. Affirmed.

o Analysis:
 This early case predates the adoption of the transactional approach to determining the scope of the litigation
suggested in the Restatement (Second) of Judgments. Yet, the court’s reasoning suggests a similar approach. It was
the issue of negligence arising from the action that guided the court’s decision, rather than the legal theories

34
 involved or the parties asserting them. Once the issue of negligence was determined in the first action, all other
claims of negligence are barred.

 Hardy v. Johns-Manville Sales Corp. 681 F.2d 334 (5th Cir. 1982).
 Not all asbestos makers are liable in every asbestos suit
o Facts:
 In a first suit, several (Ps) sued six asbestos manufacturers for personal injuries caused by the manufacturers’ breach
of the duty to warn of the health risks associated with asbestos exposure. The (Ps) obtained a judgment finding the
six defendants breached their duty to warn. In a subsequent suit, Hardy (P) and other (Ps) not involved in the earlier
suit sued the six manufacturers and thirteen others for similar damages, alleging negligence, breach of implied
warranty, and strict liability. The trial court concluded that the doctrine of issue preclusion barred all defendants
from denying the (Ps) claims.

o Issue:
 Does a prior judgment entered on related issues of fact and law collaterally estop a defendant in a subsequent suit
from asserting a defense when the prior judgment may have been based on different issues than those presented in
the subsequent action?

o Decision and Rationale:

 (Gee, Cir. J.) No. In the earlier suit, the jury determined that the (D) there had failed to sufficiently warn the (P) of the
dangers associated with its asbestos products, but issues of strict liability were never formally presented to the jury
in the court’s instructions.
 (D) claim that because the jury was never instructed on strict liability, the prior judgment has no preclusive
effect against the (D) in the instant suit.
o The jury’s verdict in the first suit does not preclude the (D) asserted defenses because it was
sufficiently ambiguous.
 Although the jury determined that the (D) had a duty to warn, it failed to establish when that duty arose.
o Moreover, the verdict is unclear whether any warnings given were appropriate and does not
address (Ps) exposed to asbestos well after the warnings were given. Strict liability for failure to
warn requires the question of the manufacturer’s reasonable knowledge of the dangers.
 Accordingly, failure to warn does not determine that the product was so unreasonably dangerous as to
require warnings. Furthermore, the (P) injuries in the instant matters occurred in different periods than
those suffered in the first suit.
o (D) knowledge may be different in each period and the hazardous materials at issue may be
different. Collateral estoppel applies only to those issues of fact or law necessarily decided by the
prior verdict.
 Since it is uncertain whether the first jury decided that case on the questions of fact and law presented in
the instant case, collateral estoppel is inapplicable. Reversed.
o Analysis:
 The court’s decision places the burdens on trial courts not only to determine what an earlier jury determined, but
why.
 However, jurors often weigh many considerations in reaching a verdict, some of which may not merit
mention in its ultimate verdict.
o While the primary issues of a case will often be established, the court faces a difficult burden when
attempting to decipher all of the nuances of an earlier suit.

[3] Mutuality of Estoppel

 Parklane Hosiery Co. v. Shore 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).
 Offensive collateral estoppel differs from defensive collateral estoppel.
o Facts:
 Shore (P) sued Parklane Hosiery (D) for issuing a materially false and misleading proxy statement in connection with
a merger, in violation of federal securities laws, praying for damages, rescission of the merger, and costs. Thereafter,
but before the plaintiff’s suit came to trial, the Securities and Exchange Commission (SEC) sued (D) in federal court
on essentially the same grounds, requesting injunctive relief. After trial in the SEC suit, the district court entered a
declaratory judgment against (D). (P) then moved for summary judgment, arguing the issue of liability had been
35
 decided in the SEC suit and that (D) was collaterally estopped to relitigate the issue. The district court denied the
motion, holding that collateral estoppel would violate (D) Seventh Amendment right to a jury trial. The Second
Circuit Court of Appeals reversed, holding that (D) had a full and fair opportunity to litigate the issues and was not
entitled to relitigation by jury trial.
o Issue:
 When the plaintiff could easily have joined in an earlier action, or when the application of offensive estoppel would
be unfair to a defendant, is it error to apply the doctrine of collateral estoppel?
o Decision and Rationale:
 (Stewart, J.) Yes. Collateral estoppel serves both to protect litigants from the burden of relitigating issues already
determined and promoting judicial economy. Generally, collateral estoppel required mutuality of parties such that a
nonparty could not offensively enforce an initial judgment in a separate proceeding.
 Over time, the mutuality requirement was abandoned when the party against whom enforcement of the
prior judgment is sought has had a full and fair opportunity to litigate the issue. Permitting the party to
relitigate the issue would waste both the court’s and the litigant’s time and money to determine an issue
previously established as a matter of law.
o However, defensive collateral estoppel, in which a defendant seeks to prevent a plaintiff from
relitigating an issue it previously litigated against a different defendant, is distinguishable from
offensive collateral estoppel, in which a plaintiff seeks to enforce a finding against a defendant
from an earlier suit brought by a different plaintiff. But both prevent the same demands on judicial
economy.

o While defensive collateral estoppel forbids a plaintiff from relitigating an adverse judgment against
other defendants, offensive collateral estoppel prevents a plaintiff from waiting for the outcome of
a related suit before enforcing his rights.

 Similarly, offensive collateral estoppel may be unfair to a defendant initially faced with a small nominal
claim and choosing not to allocate sufficient resources to its defense after a cost-benefit analysis. Also, a
defendant in a subsequent action may have different procedural opportunities that may lead to a different
result. These problems can be overcome, however, by permitting the court broad discretion in the
application of offensive collateral estoppel. “The general rule should be that in cases where a plaintiff could
easily have joined in the earlier action or where … the application of offensive estoppel would be unfair to a
defendant, a trial judge should not allow the use of offensive collateral estoppel.”
o Here, the plaintiff could not have easily joined the prior action, since it was brought by the SEC
under its regulatory authority. Further, the seriousness of the government investigation gave (D)
every incentive to fully litigate the issues. That determination is not inconsistent with any prior
decisions, and the defendant has no available procedural opportunities that may result in a
different outcome.
 Because (D) had a full and fair opportunity to litigate, offensive collateral estoppel bars it
from relitigating the issues. The Seventh Amendment is not violated in the absence of
mutuality of parties. Affirmed.
o Dissent:
 (Rehnquist, J.) Because the Seventh Amendment applies to those actions in which a jury trial was afforded at
common law at the time of its 1791 enactment, (D) was denied its Seventh Amendment right to a jury trial. In 1791,
application of collateral estoppel required mutuality of parties, which would require a jury trial in this case had it
occurred at that time. The changes in the law of collateral estoppel that developed because of the abandonment of
the mutuality requirement cannot deprive the defendant of its constitutional right to a jury trial. Even if the Seventh
Amendment is not violated, offensive collateral estoppel should not be permitted in this case. Collateral estoppel is
unfair to defendants who, like (D), have not had the opportunity to have their claims decided by a jury. There is a
strong federal policy in favor of jury trials, and the availability of a jury trial in a private action presents an important
procedural opportunity that may lead to a different result than in the SEC suit, in which no jury trial was available.
Furthermore, the benefit of estopping (D) from relitigating the issue decided in the SEC action is minimal, since a jury
must still be impaneled to determine to what extent the plaintiffs have been damaged.

o Analysis:
 The Court’s opinion deals with the traditional doctrine of mutuality. Under that doctrine, neither party to a suit could
use a prior judgment against the other unless both were parties in the initial suit. While the Court departs from the
doctrine of mutuality, it does so only after granting a trial court broad discretion to determine whether the plaintiff

36
 could have joined the prior suit and whether offensive collateral estoppel will prejudice the defendant and interfere
with judicial economy.

37