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Civ Pro A: Table of Contents

I. Provisional Remedies...........................................................................................................................................2
II. Plaintiff’s Complaint / Respondent’s Response..................................................................................................4
FRCP Rule 8. General Rules of Pleading............................................................................................................................4
III. Specificity in Pleading.......................................................................................................................................6
FRCP 12. Defenses and Objections.....................................................................................................................................6
IV. Pleading in Special Cases and Ethical Limits on Pleadings..............................................................................8
V. Responding to the Complaint...........................................................................................................................10
VI. Amending the Pleadings..................................................................................................................................13
VII. Service of Process..........................................................................................................................................16
VIII. Subject-Matter Jurisdiction...........................................................................................................................18
Federal Question: Title 28 U.S.C. §1331..........................................................................................................................19
Diversity Jurisdiction: Title 28 U.S.C. §1332...................................................................................................................19
IX. Joinder of Additional Claims by Plaintiffs & Counterclaims by Defendants.................................................22
X. Joinder of Additional Parties............................................................................................................................24
XI. Compulsory Joinder.........................................................................................................................................28
XII. Intervention....................................................................................................................................................32
XIII. Range of Discovery Methods.......................................................................................................................35
FRCP 26. Duty to Disclose; General Provisions Governing Discovery...........................................................................35
XIV. Scope of Discovery – Relevance & Privilege..............................................................................................36
FRCP 26(b)(5). Claiming Privilege or Protecting Trial-Preparation Materials................................................................37
XV. Scope of Discovery – Work Product Rule and Expert Information..............................................................40
XVI. Electronic Discovery....................................................................................................................................42
XVII. Contracting for Arbitration (avoid trial)......................................................................................................44
XVIII. Arbitration Process.....................................................................................................................................47
XIX. International Arbitration...............................................................................................................................47
XX. Summary Judgment.......................................................................................................................................51
XXI. Right to a Civil Jury Trial.............................................................................................................................54
Challenges to Jurors for Cause..........................................................................................................................................56
Peremptory Challenges to Jurors.......................................................................................................................................57
Challenges to Judges..........................................................................................................................................................57
XXII. Controlling Findings of Fact – Procedures designed to prevent wrong verdicts........................................59
FRCP 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial…...........................................59
XXIII. Motion for a New Trial and Reexamination of a Jury Verdict..................................................................60
XXIV. Filing Appeals & Final Judgment Rule.....................................................................................................61
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XXV. Scope of Appellate Review.........................................................................................................................67

Start with rule assigned

In the student's guide after the rule is the context
The types of questions for final exam are fact strings, pattern
What procedural devices are available?
The questions are not about the law, more for an application of the law toward the fact pattern.
First and most basic is that civil rules of procedure are not criminal
Civil litigation almost always involves private parties that have some kind of disagreement regarding harm.
Civil rules of criminal procedure is the other for like rape, etc
When you have issues a litigator will use the rules, for making mistakes, it takes more time.
There are a number of procedural issues not covered in our book, but they do in civ procedure B

Issues left for Civ Pro B:

-subject matter jurisdiction and personal jurisdiction
-Erie Doctrine
-Removal to federal court
-federal common law
-fact or issue preclusion
Diversity jurisdiction

I. Provisional Remedies

“…relief pending final adjudication of the dispute – respond to this need.”

FRCP Rule 64 – Seizing a Person or Property (replevin)

Kinds of remedies:
 Arrest, Attachment, Garnishment, Replevin, Sequestration, corresponding/equivalent remedies

Fuentes v. Shevin, 407 U.S. 67 (1972). (354)- [Pre- Judgment Seizure of Property]
 Facts: Statues allowing for repossession of goods (replevin)
 Rule: SC found the repossession of the P’s goods without notice was not acceptable because it violated
due process clause (14th amendment)
o Due process involves notifying party and giving them a hearing when deprivation can still be
prevented- later hearing will not undue wrongful deprivation (has right to be heard before
property taken from possessor)
o Limited situations where repossession is allowed:
 a) seizure was directly necessary to secure important governmental or public interest
 b) special need for very prompt action
 c) state kept strict control over its monopoly of legitimate force

FRCP Rule 65 – Injunctions and Restraining Orders (Preliminary Injunctions / TROs)

**Move for TRO first
Preliminary Injunctions – on notice to adverse party (ex- parte)
 When would you WANT a preliminary Injunction?
o i.) To create security for the final judgment
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o ii.) Historical Landmark

o iii) Physical violence
o iv.) A financial transaction that would result in an irreparable economic harm.
o v.) Employment contracts prohibiting executives from working for a competitor and/or
share a company’s business with that competitor.

Temporary Restraining Order – without written or oral notice

 A court order preserving the status quo until a litigant’s application for a preliminary or
permanent injunction can be heard.
 “… Immediate and irreparable injury…”
 Last for 14 days
 65(b)
o Court may issue temporary restraining order without notice to adverse party
o 1) requirements of issuance:
 a. Facts clearly show immediate and irreparable injury, loss, damage will result to
the movant before the adverse party can be heard in opposition
 b. movants attorney certifies in writing any efforts to give notice and why it
shouldn’t be required
o 2) procedural requirements (contents/expiration)
 must state date/hour issues, injury and why it is irreparable, why the order was
issues without notice, and be filed promptly and entered onto record

Winter v. National Resources Defense Council, Inc., 555 U.S. 7 (2008). (346)- Preliminary Injunction
 FACTS: Plaintiff claims Navy's sonar technology (MFA sonar) harmed marine animals and wanted
injunction
 RULE: Plaintiff seeking preliminary injunction must establish that he is likely to:
 a) succeed on the merits
 b) likely to suffer irreparable harm in the absence of preliminary relief
o can not be compensated for in any other way; can not be repaired as it was before the
injury by any means; injury is LIKELY, not just POSSIBLE
 c) that the balance of equities tips in his favor; AND
o what would happen to the parties in terms of harm if the injunction was not issued
o balance of bad v good
o more harm caused in regards to Navy as MFA sonar training is essential to national
security
 d) that an injunction is in favor of public interest
o Even if plaintiffs have shown irreparable injury form Navy's training exercises, any such
injury is outweighed by public interest/Navy interest in effective and realistic training of
soldiers
The whole trajectory of the adversarial system is sequenced and rule following.
The whole trajectory of the civil system is unsequenced and far less structure. The case goes as far as the
judge wants it.
The commonlaw system evolves over time. It is dynamic.
In civil system, the system evolves through legislature.
Elements of a preliminary injunction
 Likelihood of success on the merits
 Irreparable harm
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 Balance off equities favor plaintiff

This means that the benefit to the protestors is less than the harm to the police.
 An injunction is in the public interest
for preliminary injunction
 Historic preservation
 NRDC vs Winter (Environmental harm)

When a court issues a provisional remedy its called an equitable order, traces back to early English
system.

Rule 65b Temporary restraining order ex parte (not notifying the party because of adverse reactions ie
spousal abuse, ie I'm suing you for $5M and on Tuesday your bank accounts frozen, ie move the
money)
Ideal outcome for P seeking TRO
 TRO granted for 14 days
 PI granted after adversarial hearing
 PI lasts until the end of the case - potentially verdict rendered by jury.

II. Plaintiff’s Complaint / Respondent’s Response

FRCP Rule 1. Scope and Purpose.

These rules govern the procedure in all civil actions and proceedings in the US district courts
FRCP Rule 2. One Form of Action.
There is one form of action – the civil action (division of law and equity abolished)
FRCP Rule 3. Commencing an Action.
A civil action is commenced by filing a complaint with the court.
FRCP Rule 7. Pleadings Allowed; Form of Motions and Other Papers.
Pleadings: 7(a)
1) Complaint
2) Answer to a complaint;
3) Answer to a counterclaim designated as a counterclaim;
4) Answer to a cross claim; Third-Party complaint;
5) Answer to a third-Party complaint; and
6) If the court orders one, a reply to an answer.

Motions 7(b)(1)
 A motion is a request for a court order. A motion must:
o (A) be in writing unless made during a hearing or trial;
o (B) state with particularity the grounds for seeking the order; and
o (C) state the relief sought

FRCP Rule 8. General Rules of Pleading. (pro-plaintiff)

Complaint Requirements- Notice Pleading 8(a)
1) Statement of subject matter jurisdiction
2) A “short and plain statement of the claim” showing that the pleader is entitled to relief; and
a. What happened and why law applies, put defendant on notice
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3) A demand for relief sought, which may include alternative or different types of relief
a. What do you want? - money, injunction, etc.

8(b)-Defense; Admission and Denials – short and plain statement of:

 party’s defenses to each claim admitting or denying the adverse parties assertions- be specific
 Admit
 (2) Deny
 (3) General Denial (4) Denying part of allegation
 (5) Lack of knowledge (has effect of denial)
 Admit or deny portion of the allegations – be specific

8(C): Affirmative Defenses – in answer, a party must affirmatively state affirmative defenses in a
simple, concise and direct manner; injects new facts in case:
 Accord and satisfaction  fraud
 arbitration and award  illegality
 assumption of risk  statute of limitations
 contributory negligence  laches
 duress  license
 estoppels  payment
 res judicata  statute of frauds
 failure of consideration  waiver

Haddle v. Garrison, S.D. Ga. 1996. (375)

 Facts: Haddle said he was fired as punishment for being willing to testify at trial against employer-
attempted 12(b)(6) for failure to state a claim upon which relief can be granted since at-will and “no
actual injury”
 RULE: “The fact that employment at will is not “property” for purposes of the Due Process Clause
(Fuentes v. Shevin), does not mean that loss of at-will employment may not “injur[e] [petitioner] in his
person or property” for purposes of 1985(2).” (p. 381)
o “We hold that the sort of harm alleged by petitioner here –essentially third-party interference
with at-will employment relationships—states a claim for relief under §1985(2).
Constitutional due process protections
 Fifth amendment: "No person shall be... deprived of life, liberty, or property without due process of
law."
 Fourteenth Amendment: "nor shall any state deprive any person of life, liberty or property without
due process of law."

Two points, the overall constitutional question is bigger than the case
Those sort of considerations, the balancing test, apply only to actions by state law as opposed to an order
from the federal courts
**Pleadings**
Pleadings are the basic architechure of a case
Then discovery
Then motions
Then trial

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Common law forms of action – The writ system

 Trespass- injury to real property

 Replevin – goods unlawfully withheld
 Assumpsit – breach of contract
 Ejectment – recover possession of land

New York Field Code 1865

 Writs abolished
 Law/equity distinction abolished for pleading purposes
 Full statement of facts
 Must state basis for cause of action

Federal Rules of Civil Procedure – 1938

 Process started by rules enabling act (1932)
 FRCP promulgated by Supreme Court and adopted by Congress
 Rejects overly technical forms of pleading
 Creates uniformity in pleading

To get into equity court you have to show that there is no remedy available
Federal rules abolished equity/law courts

FRCP 2 – One form of action – the civil action

FRCP 3 – a civil action is commenced by filing a complaint with the court.

Rule 8a

Claim for relief. A pleading that states a claim for relief must contain:
1. A short and plain statement of the grounds for the court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional support;
2. Short and plain statement of the claim showing that the pleader is entitled to relief; and
3. A demand for the relief sought, which may include relief in the alternative or different types of
relief.

Implead a 3rd party defendant (you are accusing me but this 3rd party is responsible)

FRCP 8e – pleadings must be construed as to do justice.

Notice pleading – a party only needs to a put a defendant on notice regarding the nature of the claim, it
doesn’t have to have every fact necessarily

FRCP created discovery – this replaced the notice pleading

Pleadings are about facts and need the legal basis needs to be there but it centers on the facts (see 262-
263 in CP casebook

III. Specificity in Pleading

FRCP 12. Defenses and Objections…

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(a)(1)(A) Answer: within 21 days after being served with the complaint (3: 60 if U.S. officer/employee)

(a)(1)(B) Counterclaim/Cross-claim: within 21 days after being served

(a)(1)(C) Reply to Answer: party must serve within 21 days after being served with an order to reply

(b) How to Present Defenses by motion:

1) Motion for lack of subject matter (law of the land)
o Can be raised anytime
2) Motion for lack of personal jurisdiction (over a party)
3) Motion for improper venue
4) Motion for insufficiency of process
5) Motion for insufficiency of service of process
6) Motion for failure to state a valid claim upon which relief can be granted
o “so what?”- assuming facts are true, no legal remedy; looks at face of complaint
o before granting, courts almost always give plaintiff chance to amend complaint
7) Motion for failure to join a party under rule 19
(g) Can join motions
(*) Once you have joined motions, you can not later bring 12b(2)-12b(5) motions, can do 1 and 6

Specificities in Pleading:
Possible – Old Rule
Conley v. Gibson, 355 U.S. 41 (1957). (387)
 RULE: A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt
that the P can prove no set of facts in support of her claim which would entitle her to relief.

Plausible – New Rule

Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007). (388)
 FACTS: Alleging that Bell Atlantic violated anti- trust laws after monopolizing own market (price
fixing)
 RULE: To survive a motion to dismiss, a claim must contain sufficient factual matter, accepted as true,
to state a claim for relief that is plausible on its face [applied in cases that would be expensive and time
consuming if advanced to discovery.]
o “[W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim
to relief that is plausible on its face.
o Because the plaintiffs here have not nudged their claims across the line from conceivable to
plausible, their complaint must be dismissed…”

Probable – Newest Rule

Ashcroft v. Iqbal, 556 U.S. 662 (2009). (p. 390)
 FACTS: Iqbal arrested in US in wake of 9/11 and claims was deprived of multiple rights while in federal
custody
 RULE: 2 working principles applied from Twombly:
o 1) Tenet that court must accept as true all allegations in a complaint is inapplicable to legal
conclusions
 Can not use mere conclusory statements
o 2) Only a complaint that states a plausible claim for relief survives a motion to dismiss
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 has to cross the line from conceivable to plausible (more than mere possibility)
 Iqbal complaint does not nudge claim from conceivable to plausible/fails to plead sufficient facts
o Iqbal had to show his case was more probable than Ashcroft
Requirements of a complaint 8(a)
1. Jurisdicution
2. Short and plain claim showing they are entitled for relief
3. A demand for relief sought

If (I) two or more persons (ii) in any state or territory (iii) conspire to deter, (iv) by force intimdation, or
threat (v) any party or witness in any court of the US from attending such court, or from testifying to any
matter pending therein, freely, fully, and thruthfully, (vi) or to injure such party or witness in his person
or property on account of his having so attended or testified. (3,4,5 or 6)
In Haddle, he has to determine that his job was property

Iqbal-
His claim is not about his initial arrest, it was that he was segregated out to this supermax section and
treated than other prisoners

IV. Pleading in Special Cases and Ethical Limits on Pleadings

FRCP 9. Pleading Special Matters

(b) Fraud of Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake (mutual mistake in making contract).
Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
 Why more specificity for Fraud?
 Fraud is an intentional tort that may get you punitive damages
 If complaint is specific you can find what it is that constitutes fraud in order to formulate
defense

Stradford v. Zurich Insurance Co., S.D.N.Y. 2002. (401)

 FACTS: Stradford is dentist who had policy with Northern Insurance. Defendants counterclaimed
saying plaintiff knowingly and willfully devised scheme to defraud defendants and obtain money by
false pretenses and representations seeking return of money already paid out (FRAUD)
 RULE: 9(b)- In alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may
be alleged generally. (Requires “time, place, and nature of the [alleged] misrepresentations”)
o Discovery will be unavailable if the complaint is dismissed for failure to plead with sufficient
specificity to comply with rule 9(b)

Jones v. Bock, 549 U.S. 199 (2007). (407)

 FACTS: Jones held in MI prison, claimed after he suffered injuries in prison the staff would not reassign
him to a new job that he could perform in light of his injuries
o Exhaustion provision of Prisoner Litigation Reform Act- prisoners complaining of prison
conditions must exhaust all available pathways of complaint before a trial will be rewarded

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 RULE: “…failure to exhaust is an affirmative defense under the PLRA, and that inmates are not
required to specially plead or demonstrate exhaustion in their complaints.” (p. 409)
o “…the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense.”
(p. 409)

FRCP 11. Signing Pleadings, Motions, and Other Papers; Representation to the Court; Sanctions
 Does not apply to discovery documents
(a) Signature- every paper must be signed by at least 1 attorney of record (w/ address, email, phone #)
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper,
an attorney certifies that to the best of the person’s knowledge, info, and belief, formed after an inquiry
reasonable under the circumstances:
1) not being presented for improper purpose (i.e. harass, cause unnecessary delay, etc.)
2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-
frivolous argument for extending, modifying, or reversing existing law or for establishing new
law;
3) factual contentions have evidentiary support, or will likely have support after further
investigation/discovery
4) denials of factual contentions are warranted
(c) Sanctions [discretionary with court- not required]
1) If court determines Rule 11(b) has been violated, court may impose sanctions
2) Motion for sanctions must be made separately from any other motion and describe conduct that
violates Rule 11(b). [can’t file right away- serve on other side and give them 21 days to fix]
3) On the Court’s Initiative.
4) Nature of a Sanction [aimed at deterring a repetition of the conduct, not for punishment]
5) Limitation on Monetary Sanctions. The court must not impose a monetary sanction:
a. against a represented party for violating Rule 11(b)(2); or
b. on its own, unless it issued the show-cause order under Rule 11(C)(3) before voluntary
dismissal of settlement of the claims…

Walker v. Norwest Corp., 108 F.3d 150 (8th Cir. 1996). (416) (cases that canvass the range of behavior
violating rule 11, procedural issues of enforcing it, and the sanctions available)
 FACTS: Attorney for plaintiff claimed complete diversity when in fact there was not complete diversity
o Norwest said if they did not dismiss complaint they will seek sanctions and attorney fees under
rule 11
 RULE: Rule 11 require the kind of “complicated, in-depth, and possibly impossible inquiry” that would
have been necessary to determine the defendant’s citizenship before filing a complaint based on
diversity of citizenship
o Court imposed sanctions on attorney who did not properly research case and did not discover
that the case lacked complete diversity.11(b)(2)

Christian v. Mattell, Inc., 286 F.3d 1118 (9th Cir. 2003). (421) (rule 11 violation involving the failure to
conduct adequate factual investigation)
 FACTS: Claim was Mattel copied off of his copyrighted (1996) doll and sought damages (a reasonable
investigation by Hicks would have revealed that there is no factual foundation for claim)

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 RULE: “While Rule 11 permits the district court to sanction an attorney for conduct (limited to papers
signed in violation of the rule) … it does not authorize sanctions for, professional misconduct, discovery
abuses or misstatements made to the court during an oral presentation…,” (p. 423) (violates 11b3)
o “Because we do not know for certain whether the district court granted Mattel’s Rule 11 motion
as a result of an impermissible intertwining of its conclusion about the complaint’s frivolity and
Hicks’ extrinsic misconduct, we must vacate the district court’s Rule 11 order.” (p. 423)

Dismissal with prejudice: claim cannot be refiled in federal court (and likely state court)
Dismissal without prejudice: claim can be refiled in federal court (and likely state court)

FRCP 11(a)

Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of
record in the attorney's name – or by a party personally if the party is unrepresented. The paper must
state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically
states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike
an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's
attention.

Rule 8 – Pleading
In Iqbal – higher standard
In Twombley – higher first

Move the claim to 51% - mere plausibility is not enough, you need to move it to probable
How do you show intent or what is in someone's mind?
Higher pleading standard in rule 9
Counterclaims are pleadings and subject to rule 8 and 9

FRCP 9 It is possible for fraud to have punitive damages which in contrast to most.
How do you figure out what the misrepresentation is whithout rule 9?

Ethical limits on pleadings

 You can not make up facts
 You can not misstate the law to fit your needs

Hicks v. Mattell
FRCP 11(b)
Hicks violated (3) because "Cool Blue Barbie" was copyrighted 6 years before.
FRCP 11(c)
Reasonable basis for belief that will come out in discovery. Page 263 #13
Courts have inherent authority to punish lawyers acting on bad faith. They can sanction lawyer
misconduct.

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V. Responding to the Complaint

1. Default judgment (failure to respond to the complaint)  Default judgment [FRCP 55]
2. Pre-Answer Motion (request for court action/motion) [FRCP 12(b)]
3. Answer (respond to allegations – admit, deny or plead insufficient info) [FRCP 8]
 Denials [FRCP 8(b)]
 Affirmative Defenses [FRCP 12(b)]
 Lack sufficient knowledge (has effect of denial) (8b5)
*if you want to bring (2) - (5), have to do it in first motion, or you waive defenses
4. Reply (if answer contains counterclaim)  Reply required [FRCP 7(a)(3)]
5. Amendments [FRCP 15]
*within 21 days of service, must answer or bring a motion, unless waiver, which gives you 60 days in US

Zielinski v. Philadelphia Piers, Inc. 139 F. Suppl 408 (E.D. Pa. 1956). (433) – Denials
 FACTS: Plaintiff alleged that one of the forklifts was owned, operated and controlled by the agents and
employees of the Philadelphia Piers, Inc. (Defendant). Defendant issued a general denial of the
complaint, but did not specifically deny that it controlled the forklift at the time of the accident.
 RULE: Compliance with Federal Rule of Civil Procedure 8(b) regarding denials may require that the
defendant file a more specific answer clearly identifying which aspects of the complaint they are
admitting and which aspects they are denying, rather than a mere general denial of all allegations in the
complaint.
o “Compliance with the above-mention rule [FRCP 8(b)] required that defendant file a more
specific answer than a general denial. A specific denial of parts of this paragraph and specific
admission of other parts would have warned plaintiff that he had sued the wrong defendant.” (p.
435)
o General denial like this may result in Rule 11 inquiry
Default judgements
FRCP 55

A) When a party against whom a judgement for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's
default.
(b) entering a default judgement
1) By the clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by
computation, the clerk – on the plaintiff's request, with an affidavit showing the amount due – must enter
judgement for that amount and costs against a defendant who has been defaulted for not appearing and
who is neither a minor or an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default judgement.

2. Settle
3. Pre-Answer Motion – there is something wrong with the complaint

7(b)(1)
(1) In General.

Possible motions to dismiss: 12(b)

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1. Lack of subject-matter jurisdiction

2. Lack of personal jurisdiction
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim upon which relief can be granted
7. Failure to join a party under rule 19

Joining motions and waiver

FRCP 12(g)
Joining motions
1) Right to join. A motion under this rule may be joined with any other motion allow by this rule.
2) limitation on further motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion
under this rule must not make another motion under this rule raising a defense or objection that was
available to the party by omitted from its earlier motion.

Don’t confuse motions and pleadings (the entire class kind of just did)
A motion is a request for a court to do *something* - a pleading is a party's factual statement

Pretty much anytime if a court determines that it lacks subject-matter jurisdiction it MUST dismiss.

4. Answer.
Admit, deny or I don't know (I lack knowledge to admit or deny)
Responding to allegations in a pleading
FRCP 8(b)
1) In General. In responding to a pleading, a party must:
a. State in short and plain terms its defenses to each claim asserted against it; and
b. Admit or deny the allegations asserted against it by an opposing party.
2) Denials – responding to the substance. A denial must fairly respond to the substance of the
allegation.
3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a
pleading – including the jurisdictional grounds – may do so by a general denial. A party that does not
intend to deny all the allegations must either specifically deny designated allegations or generally deny
all except those specifically admitted.
4) Denying part of an allegation. A party that intends in good faith to deny only part of an allegation
must admit the part that is true and deny the rest.
5) Lacking knowledge or information. A party that lacks knowledge or information sufficient to form a
belief about the truth of an allegation must so state, and the statement has the effect of a denial.
6) Effect of failying to deny. An allegation – other than one relating to the amount of damages – is
admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is
not required, an allegation is considered denied or avoided.

Reformulated answer to paragraph 5 of Zielinski complaint.

5. Defendant admits that it owned the forklift referred to in paragraph 5 of the Complaint. However,
Defendant specifically denies that on February 9, 1953 it operated or controlled that forklift. Further,
Defendant admits that Plaintiff was injured on February 9, 1953. Defendant is without information
necessary to admit or deny the remainder of the allegations in paragraph 5.

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Affirmative defenses
Introducing new facts, like Zeilinski was running at the forklift that injured him.

Defense:
Person is served with a complaint and summons served to them you have 4 ways to respond.
1. Don’t respond (default judgement)
2. Settle
3. Pre-Answer Motion
4. Answer

Rule 8 rules pleadings of all kinds.

VI. Amending the Pleadings

FRCP 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial. (1) Amending as a Matter of Course. Party may amend pleading within:
 21 days after serving it [plaintiff has 21 days to amend]
 if pleading requires a responsive pleading, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier [defendant
has 21 days after filing answer]
(b) Amendments During and After Trial. (1) Based on an Objection at Trial. Court should freely permit
amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the
court that the evidence would prejudice that party’s action or defense on the merits.
 Only comes up at trial and some party is trying to prove something they did not put in
pleadings (in b2, party does not object to variance and allows to come in)
(c) Relation Back of Amendments. [means we treat amended pleading as it was filed as original]
 Where someone is trying to amend after SOL has run
i. 15(c)(1)(b): want to add new claim after SOL; allowed if arises from same conduct,
transaction, occurrence as original
ii. 15(c)(1)(c): want to amend to add new party/defendant after SOL; allowed if show
same transaction/occurrence, person new about case, and new would be named
*Should allow leave to amend when justice so requires means that:
A. The would be amender should have a good reason for not getting the pleading right the 1st time AND
B. That allowing the change now shouldn’t hurt the other side too much

Beeck v. Aquaslide ‘N’ Dive Corp., 562 F.2d 537 (8th Cir. 1977). (444) – No Prejudice
 FACTS: D admitted it manufactured defective product but after the statute of limitations had run,
Defendant discovered that it had not manufactured the slide and sought leave to amend its answer,
which the District Court granted.
 RULE: Under Rule 15(a) of the Federal Rules of Civil Procedure, a party can amend its pleading only
with leave of court or consent of the other party. Leave shall be freely given. Leave to amend should
only be denied if the party opposing the amendment can show bad faith, undue delay, or prejudice
(prejudice must be shown)

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o Imagine that Beeck, after long investigation, finds the fake slide manufacturer and wants to
amend to add manufacturer and the only way he can get out is 15(C)(1)(C)
 Have to first satisfy 15c1b- claim has to arise out of same conduct
 Also have to satisfy, within period in rule 4(m) for serving, also have to show 15c1c
 Know the claim was brought against Aquaslide and that the action may have been
brought against them

Moore v. Baker, 989 F.2d 1129 (11th Cir. 1993). (450) – Statutes of Limitations and Relation Back DENIED
 FACTS: Plaintiff consulted Defendant Dr. Baker and sued for failure to advise her of an alternative
treatment- later filed to amend to add negligence
o The district court refused to allow Plaintiff to amend her complaint on groundsthat the statute of
limitations bars the claim asserted in Plaintiff’s proposed amended complaint unless the amended
complaint relates back to the date of the original complaint.
 RULES: The determination of whether an amended complaint may relate back to the date of the original
complaint is whether the original complaint gave sufficient notice or warning to the defendant of the
possibility of a suit involving the claim now being asserted.
o Relates back to the original filing whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading

Bonerb v. Richard J. Caron Foundation, 159 F.R.D. 16 (W.D.N.Y. 1994). (452) – SOL and Relation Back
GRANTED
 FACTS: Plaintiff slipped and fell on basketball court during mandatory rehab facility activity- first sued
for negligently maintaining court and later wanted to amend to add malpractice in counseling
 RULE: Same as above- Even an amendment which changes the legal theory of the case is appropriate if
the factual situation upon which the action depend remains the same and has been brought to the
defendant’s attention by the original pleading

Motion to dismiss.
Answers.

***Affirmative Defense***
Contributory negligence can only can be brought into the case through affirmative defense. The fact that Mr.
Zielinski had a grudge against the defendant and purposely drive the forklift to put himself in the section.

Rule 8(c) In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense,
including:
***Nonexclusive list***
 Accord and satisfaction
 Arbitration and award
 Assumption of risk
 Contributory negligence
 Duress
 Estoppel
 Failure of consideration
 Fraud
 Illegality
 Injury by fellow servant
 Laches
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 License
 Payment
 Release
 Res judicata
 Statute of frauds
 Statute of limitations
 Waiver
These affirmative defenses are substantive law.

Notice pleadings guarantee no surprises at trial. If you don’t make an affirmative defense, you can lose
that opportunity.
The rules are not rigid, they CAN be flexible but not necessarily.
"I forgot to put in my affirmative defense" - you have to amend the pleadings but the judge may not
allow you to do so. You have to have a good reason and be acting in good faith. If you just decide to add
something, it changes all the discovery and probably will be denied.
Discovery requests and research are structured around the pleadings.
"I need to prove this from the pleadings, etc"

***Amendments before trial***

FRCP 15(a)
1. Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
a. 21 days after serving it, or
b. If the pleading is one to which a responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f) whichever is
earlier.
2. Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's
written consent or the court's leave. The court should freely give leave when justice so requires.
3. Time to Respond. Unless the court orders otherwise, any required response to an amended pleading
must be made within the time remaining to respond to the original pleading or within 14 days after
service of the amended pleading, whichever is later.

(2) there has to be a balancing act, "After 6 months a plaintiff says I want to add a new claim" to the
defense the plaintiff says "you sat on this for 6 months", the court then does the balancing test, does the
new claim support the idea of justice and fairness.

Doctrine of equitable estoppel

A party who has acted unfairly, they cant unfairly benefit from that act. Because it was a knock off and
done well, that caused the statute of limitations to run out. Snyder (knock off person) wants summary
judgement, in their answer the plaintiff can ask the court to toll the statute of limitations because of the
unfairness...

A party could hide during the statuatory period, ie the Aquaslide was thought to be genuine until the
president saw it. Snyder should not benefit from hiding and pirating products. Snyder knew the
information that changed the suit from Aquaslide to Snyder.

***Relation Back of Amendments***

FRCP 15(c)(1)

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An amendment to a pleading relates back to the date of the original pleading when:
(a) the law that provides the applicable statute of limitations allows relation back;
(b) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set
out – or attempted to be set out - in the original pleadingl or
© the amendment changes the party or the nameing of the party against wom a claim is asserted, if Rule
15(c)(1)(b) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(I) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii)knew or should have known that the action would have been brought against it, but for a mistake
concerning the proper party's identity.

The words "relation back" refer to changing the date to the original complaint.
Mr. Meeks bringing Snyder into the case.
(a) it was sent within 120 days
(b) it is part of the same case
© they read it in newsletter (examples)

(I) is meant to prevent blindsiding

VII. Service of Process

FRCP 4. Summons (formal notice from court you are being sued)
(a)(1) Contents. A summons must include:
A. name the court and parties
B. be directed to the defendant
C. state the name and address of the plaintiff’s attorney
D. state the time within which the D must appear and defend
E. notify the D that failure to appear and defend will result in a default judgment against the D for
the relief demanded in the complaint
F. be signed by the clerk
G. bear the court’s seal

(a)(2) Amendments. The court may permit a summons to be amended.

o (C2) Service. Anyone who is 18 and not a party

o (1) In General. A summons must be served with a copy of the complaint. The plaintiff is
responsible for having the summons and complaint served within the time allowed by Rule 4(m)
and must furnish the necessary copies to the person who makes service. (120 days or dismissed
unless you can show good cause for delay- 4m)
o (D) Waiving Service. You get more time to answer complaint if you waive service (60 days in
US, 90 outside US) If you refuse to waive service without good cause you may have to pay a fee
 if not returned within 20 days, defendant will have to pay for formal service
 not waiving any defenses
o (E2) Serving within US- (a) to individual personally anywhere in state, (b) substituted service-
at person’s dwelling w/someone of suitable age/discretion who lives there (ex. Butler works; is
where defendant is spending time now), (c) or to authorized agent (defendant expressly appoints

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someone or appointed by operation of law- ex. Non- resident motorist act) *doing any of these
are constitutionally adequate, even if defendant never gets the documents
 4(e)(1) Can also follow state laws on serving process
o (h1) Serving Corporations/Partnership- same rules as 4(e)(1) or by delivering copy to an officer,
managing/general agent, or any other authorized agent
 does not include any employee of a business- will look for someone with sufficient job
responsibility that would be expected to transmit important papers

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). (156) [Notice]
 FACTS: Published notice in newspaper. Bank had names/contract info of most people and was more
reasonable way to contact
 RULE: “The fundamental requisite of due process of law (14th Amendment) is the opportunity to be
heard. This right to be heard has little reality or worth unless one is informed that the matter is pending
and can choose for himself whether to appear or default, acquiesce or contest.”
o “…the constitutional validity of any chosen method may be defended on the ground that it is in
itself reasonably certain to inform those affected of the proceeding, or, where conditions do no
reasonably permit such notice, that the form chosen is not substantially less likely to bring home
notice than other of the feasible and customary substitutes.”
o (must make good faith effort to inform; is not unconstitutional because in newspaper/public
format- if don’t have information/location of people this may be okay)
o if become aware of fact that notice has not been received (ex. Letter being returned), no service
Amendments before trial
FRCP 15(a)
"The court should freely give leave when justice so requires" only when there won't be prejudice to the
other side.

Relation back of Amendments 15(c)(1) (last class 9/21/23)

Bonerb v. Richard J. Caron Foundation

Bonerb has 2 claims, both involve the injury on the basketball court.
First claim – negligence to maintain mandatory basketball exercise
Second claim – counseling malpractice

Arises out of the conduct, transaction or appearance – two different lawsuit can stem from the same
transaction (see Bonerb)

Common nucleus of operative fact is demonstrated in Bonerb but not in case with lady that sued for
failure to inform the dangers then malpractice after.

A civil claim begins under FRCP 3

How does the complaint begin the litigation process.
Getting notice about a claim is the start of the adversarial process, it tells the defendant and his lawyer
what this case is about and how to respond.
Hypothetical: someone goes to a supermarket and they are shopping and pull a jar off a shelf, the shelf
collapses and the person is injured.
The person goes to lawyer, says I want to sue.
Lawyer takes the case, drafts a complaint and files it in federal court.
He has the summons and complaint.
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You cannot give it to the deli guy, it has to be a person that is authorized to receive a summons or legal
notice.
The means that the summons have to be delivered have to have a reasonable person to receive that
summons. Not the bagger, etc.
Notice is something is not simply measured by technicalities, its measured by whether its effective.

***Mullane v. Central Hanover Bank & Trust Co.***

NY law decided that some neutral party has to check the accounting. If someone did get notice and did
want to challenge it, they could go to the court that checks the accounting. Notice was given in a small
newspaper. Justice Jackson says the due process of the 14th Amendment is at odds with New York
Banking Law section 100-c(12).
If you have a way to directly communicating with someone, that is the way to do it.
The focus on the intent of the party giving notice. If you know someone's address, but you choose to put
it in a newspaper, that means that you really don’t want to give notice.
Fist Mullane is announcing constitutional law standards (federal constitutional standards).
The Supreme Court basically wrote Rule 4.
The Mullane standards continue for state statutes, the federal rules – was written by the SC and will
meet the constitutional standard.
Just because you can instantly communicate today, it still is not the preferred method.
***Baidoo v. Blood-Dzraku***

Rule 4
Lawyer sues the supermarket (from hypothetical) gets the summons then send a waiver of summons to
see if they want to play nice. Otherwise serve the person that can be served.
Rule 4(d)(1)
The defendant has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may
notify such a defendant that an action has been commenced and request that defendant waives service of
summons. The carrot (incentive) to waive summons is extra time to answer. The stick (penalty) if you
refuse to waive and force them to do the process of getting a process server, etc., you are responsible for
costs associated.
Service as opposed to waiver, either way they get the complaint and summons.
What constitutes "good cause" under FRCP 4(d)(2)?
"'Good cause' does not include a belief that the lawsuit is groundless, or that it has been brought to an
improper venue, or that the court has no jurisdiction over this matter or over the defendant or the
defendant's property."
Assume a party refuses to waive. Next step is you have to make actual service. The summons itself
FRCP4(b) - Issuance of Summons
(b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for
signature and seal. If the summons is properly completed, the clerk must sign, seal and issue it to the
plaintiff for service on the defendant. A summons- or a copy of the summons that is addressed to
multiple defendants – must be issued for each defendant to be served.
Any person who is at least 18 years old and not a party may serve a summons and complaint. A lawyer
is not a party to a summons or complaint. The only problem is proving that the person was served, that is
where a process server is good.
Summons and complaint both have to be served at same time.
***Healthmaster case***
He wants to effect service to Mr. Malloy.
FRCP 4(e)
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Or any Georgia law that dictates process serving

VIII. Subject-Matter Jurisdiction

Subject-Matter Jurisdiction: used to denote whether a court can hear a particular type of dispute
(Over the Land of the Law)
 Federal courts have limited subject matter jurisdiction
 Federal courts need to have subject matter and personal jurisdiction
 Failure of either causes dismissal

-General Jurisdiction: court can hear any claim between any persons unless there is a legal authority
saying it cannot hear a particular case (i.e. state courts)
-Limited Jurisdiction: court can only hear those cases that are specifically authorized by the statues that
set up the particular court.
i.e. Federal Court – limited jurisdiction: must have one or the other
 Federal Question – claims arising under the constitution, laws or treaties of the U.S.
Federal constitutional issue may arise when government employee has misused
constitutional process.
 Diversity – no two parties are from the same state AND the amount in controversy is
greater than $75K (claims can be aggregated to meet amount) exclusive of interest and
costs (interest that court refers to is that relating to what court would order); amount is at
time action is commenced (28 U.S.C.A. § 1332)
Exceptions:
 Statutory Impleader
 Claims covered by supplemental jurisdiction (i.e. brought by 3rd parties)
 Class Actions- in which only the citizenship of the representatives needs to be diverse

Federal Question: Title 28 U.S.C. §1331

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws,
or treaties of the United States (Article III)

Diversity Jurisdiction: Title 28 U.S.C. §1332

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, and is between –
 Citizens of different States (DOMICILE requirements – an individual has to prove that he has
physical presence AND intent to reside there)
 Citizens of a state and citizens or subject of a foreign state

(c) (1) a corporation shall be deemed to be a citizen of every state by which it has been incorporated and
where it has principal jurisdiction (this broadens the diversity jurisdiction)

(c) (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the
same State as the defendant, and the legal representative of an infant of incompetent shall be deemed to
be a citizen only of the same State as the infant of incompetent.

Title 28 U.S.C. §1367 (a) – Supplementary Jurisdiction

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D.C. shall have supplemental jurisdiction over all other claims so related to the claims in the action
within original jurisdiction (if D.C. had jurisdiction over original claim, they have supplemental
jurisdiction over all other claims brought to suit if related to original claims)- even if the court would not
have subject matter jurisdiction to hear those claims independently
 Arise from common nucleus of operative fact (same transaction/occurrence)

Title 28 U.S.C. §1367 (b) – identity of the part – P or D – seeking to invoke supplement jurisdiction
In any civil action of which the D.C. has original jurisdiction founded solely on Section 1332 (diversity),
D.C. shall NOT have supplemental jurisdiction over claims by P against persons joined under RULE 14
(third party practice), 19 (joinder of persons), 20 (permissive joinder), or 24 (intervention), or over
claims by persons proposed to be joined as P under Rule 19, or seeking or intervene as P under RULE
24.
 Only involves claims of PLAINTIFF

Title 28 U.S.C. §1367 (c) – Rule authorizing the joinder of the party or claim over whom supp. jurisdiction is
sought
Declining to exercise state law may occur if:
 The claim of state law is a novel or complex issue
 The claim would end up taking more than the original case
 The court dismissed all other claims over which it had original jurisdiction
 There may be other compelling reasons

FRCP 12(b)(1) – Motion for Lack of Subject Matter Jurisdiction (two forms):
A facial attack on the sufficiency of the complaint’s allegation as to subject matter jurisdiction (court
accepts P’s allegations as true); OR
A challenge to the actual facts upon which subject matter jurisdiction is based (court may not presume
that the P’s allegations are true)

Rule 11 – lawyers were sanctioned with trump in New York.

Crazy reiteration of frivolous points rejected twice can get these guys on the path to disbarment.

***Subject Matter Jurisdiction***

Joinder of claims and joinder of parties
A case that clearly meets subject matter jurisdiction can change if a new party or something happens.
The mechanics of joining parties.
Smith (MI) v. Jones (OH)
Amount in controversy - $150,000
Diversity is one part of subject matter jurisdiction
(has to be more than $75,000)
Federal court in MI or OH, the requirements are the same for every federal district court in the country.
This case could go to state courts, they can hear any kind of case even under federal law, state law,
Michigan court can hear a case about Alaska law.
The point to be made, if a case can't make it to federal court, there will be an option in state court.
The division of authority (federalism)

Areas of Exclusive Federal jurisdiction

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 Suits between states

 Cases involving ambassadors and other high-ranking public figures
 Federal crimes
 Bankruptcy
 Patent, copyright, and trademark cases
 Antitrust
 Securities and banking regulation

One reason behind this an exclusive federal interest and also uniformity, for antitrust, etc.

Constitution Art III, section I

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior
courts as the Congress may from time to time ordain and establish.
The design of the lower federal courts is completely up to congress.

Article III section II

Classes of cases properly in the federal courts
 All cases arising under this constitution, the laws of the United States, and treaties
 All cases affecting ambassadors, other public ministers and consuls
 All cases of admiralty and maritime jurisdiction
 Controversies to which the United States shall be a party
 Controversies between two or more states
 Controversies between citizens of different states
 Controversies between citizens of the same state claiming lands under grants of different states
 Controversies between a state, or the citizens thereof, and foreign states, citizens or subjects.

28 USC§1331
The district courts shall have original jurisdiction of all civil actions arising under the constitution, laws
or treaties of the United States.
Haddle 42 USC§1985 (civil rights act after the civil war) 42 USC§1983 gave subject matter jurisdiction
to federal courts for civil rights violations.
It must appear on the face of the complaint. Louisville & Nashville Railroad Co. v. Mottley 211 US 149
(1908).
Lockner (bakers hours)
Contracts clause is moot
The primary reason behind the well pleaded complaint rule is that federal courts need to know right
away if they are the right court to hear the case.
Things got complicated after Mottley, Federal Law has radically expanded since 1908, sometimes state
law is intermingled with federal law or referenced to.
The Supreme Court is come to say if there is embedded federal laws in a state law then the federal courts
should hear it.

***Diversity***
28 USC§1332(a)
Congress created a federal system so that people from the plaintiff's state do not favor the plaintiff or
dislike the defendant. Hometown advantage.
1332(a)(1) - citizens of different states.
Hawkins
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2 part test for citizenship

1. Where are they residing
2. Do they have an intent to move anywhere else. The second part is to avoid people abusing the
system to get into federal court.
It's an effort to weed out the people looking to abuse.
***Complete diversity rule***
MI v. OH & MI?
Not complete diversity
Strawbridge v. Curtiss, 7 U.S. 267 (1806) (explained the diversity statute as needing to be complete
diversity, not partial) (not constitutional diversity)
***Amount in controversy***
$75,000 is required. A single party can aggregate claims, but 2 or more is not ok. 1 plaintiff with 2
different parts @ $40,000 each is ok, 2 plaintiffs each with $40,000 not ok.
***Supplemental Jurisdiction***
It involves congress expanding the scope of cases that federal jurisdiction can hear.

Hypo – the only 2 things that can be considered for federal jurisdiction is diversity and federal claim.
Michigan citizen v. Michigan corporation, unfair firing.
One way is to take it Michigan court. Split the lawsuits. He was fired for being black.
IF you have a set of claims that come out of an operating nucleus of facts, and you have a federal claim,
supplemental jurisdiction allows those claims.
SS 1367

IX. Joinder of Additional Claims by Plaintiffs & Counterclaims by Defendants

FRCP 13. Counterclaim and Cross-claim

(a) Compulsory Counterclaim – Supplemental Jurisdiction
(1) Counterclaim must be brought if the claim: [by defendant against plaintiff]
(A) arises out of the transaction or occurrence that is the subject matter of the original
complaint
(B) does not require adding another party over whom the court cannot acquire
jurisdiction
*if you do not assert these claims, you waive them- ask if subject matter jurisdiction

(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any
claim that is not compulsory. (Claims do not arise out of the same nucleus of facts)
 Claim brought by a defendant against a plaintiff in the situation where the defendant's claim does
not arise from the same transaction or occurrence as the plaintiff's claim.
 13B allows defendant to bring as a permissive counterclaim any claim against a plaintiff
 Must have an independent jurisdictional basis- federal question/diversity jurisdiction

(g) Cross claim- must arise out of same transaction/occurrence (not compulsory); ex. D1 vs. D2

FRCP 18. Joinder of Claims (single plaintiff joining all claims against single defendant)
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(a) …as many claims as it has against an opposing party

(b) A party may join two claims even though one of them is contingent on the disposition of the other;
but the court may grant relief only in accordance with the parties’ relative substantive rights…

Plant v. Blazer Financial Services, 598 F.2d 1357 (5th Cir. 1979). (798)
 FACTS: Plant takes out loan from defendant and does not pay back any of it and then sues defendant for
violation of truth and lending act. Defendant counterclaims for full amount of loan/ breach of contract
 RULE: Test for compulsory counterclaim: (affirmative answer to any indicates the cc is compulsory)
o Are the issues of fact and law raised by the claim and counterclaim largely the same;
o Would res judicata bar a subsequent suit on D’s claim absent the compulsory counter claim rule;
o Will substantially the same evidence support or refute P’s claim as well as D’s counterclaim;
o Is there any logical relation between the claim and the counter? - same set of operative facts
 Holding: Compulsory counterclaim  supplemental jurisdiction

Subject Matter Jurisdiction (cont.)

28 USC SS1367 Supplemental Jurisdiction
Common nucleus of operative fact
Hypo: a person is discharged from a company because of race and files suit in district court, she can
supplement the assault claim along with it because of the common nucleus.
In 1331 and 1332 the narrowed the amount of claims to federal court, 1336 expanded it.

When a Federal Court may decline to exercise supplemental jurisdiction – 28 USC 1367(c)
The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-
1. The claim raises a novel or complex issue of State law,
2. The claim substantially predominates over the claim or claims over which the district court has
original jurisdiction,
3. The district court has dismissed all claims over which it has original jurisdiction, or
4. In exceptional circumstances, there are other compelling reasons for declining jurisdiction.

Federal courts must defer to state laws unless they are unconstitutional

***Joinder of Claims***
There are very liberal rules, basically they want you to join the claims together.
It's not unlimited though.
FRCP 18(a)
A party asserting a claim, counterclaim, cross-claim, or third-party claim may join, as independent or
alternative claims, as many claims as it has against the opposing party.
(still need to look at rule 15)
There may parties that are key to the case but absent because of jurisdictional issues.
2 potential issues that are not in 18 but influence it.
1. Res judicata - (Issue Preclusion) "A rule that a final judgement on the merits by a court having
jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that
could have been litigated in that suit." If you have a suit that has been decided you can't try again
with a different claim based on the same set of facts. Basically if you are going to sue someone, get
your claims out then, don’t lose then retry. 1st trial product liability in Michigan, you lose, then sue in
Ohio, you will be barred. No multiple bites of the apple. Don't keep coming back to the same claim.
Things that you could have litigated in the original suit cannot be brought up later.

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2. Subject Matter jurisdiction -

***Counterclaims by Defense***
Joinder of claims by defendants
Hypo: Person suing employer for breach of contract. Counterclaim for fraud, also you can do an
affirmative defense using the same
Why would fraud have to be an affirmative defense.
Affirmative defense adds allegations of fact to the contract, this allows you to sidestep admit, deny or I
don't know. Without affirmative defense, you cannot get fraud into the case. The counterclaim argues
that 1st the plaintiff defrauded the defendant, as a result there are damages that could be assessed.
Complaints and answers are in identical numbered paragraphs
1st affirmative defense – the employment or contract was achieved through fraud
2nd affirmative defense – the statute of limitations has expired
3rd affirmative defense – whatever

FRCP 13(a) - Compulsory Counter-claims

1. In General. A pleading must state as a counterclaim any claim that – at the time of its service – the
pleader has against an opposing party if the claim:
a. Arises out of the transaction or occurrence that is the subject matter of the opposing party's claim ;
and
b. Does not require adding another party over whom the court cannot acquire jurisdiction.
2. Exceptions. The pleader need not state the claim if:
a. When the action was commenced, the claim was the subject of another pending action; or
b. The opposing party sued on its claim by attachment or other process that did not establish personal
jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under
this rule

IF a claim is compulsory counter claim there is supplemental jurisdiction because the 2 tests are virtually
identical. 1367
FRCP 13(b) Permissive counter claims
A pleading that is not compulsory. Lol.
If its permissive, you don’t have to claim it at the time of the facts, the definition of a compulsory
counter claim has to be from the same nucleus of operative facts. If you could have brought the
compulsory counterclaim and don’t, the you lose it. If its permissive, you can bring it later.

X. Joinder of Additional Parties

FRCP 20. Permissive Joinder of Parties

(a) Persons Who May Join or Be Joined.

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(1) Plaintiffs. Persons may join in one action as if plaintiffs if:

(A) Single Transaction. They assert any right to relief jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and
(B) Common Question. Must be a common questions of law or fact that ties the parties together
(same fact of law)

Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974). (806) – Joinder by Plaintiffs
 FACTS: Mosley and 9 other plaintiffs jointly brought an action, alleging a broad range of unlawful
discriminatory employment practices by defendants (in violation of federal antidiscrimination law) (did
not take place in same facility)- GM files motion to separate all claims. The district court severed into 10
separate causes of action
 RULE: “Permissive joinder is not applicable in all cases. The rule imposes two specific requisites to the
joinder of parties: (RULE 20)
o (a) A right to relief must be asserted by, or against, each plaintiff or defendant relating to or
arising out of the same transaction or occurrence, or series of transaction or occurrences; and
 Clients did this- each alleges that he had been injured by same general policy of
discrimination on part of General Motors and Union
o (b) Some question of law or fact common to all the parties must arise in the action.” (p. 808)
 Does not require that ALL questions of law and fact raised by the dispute be common
 FRCP 23a- provides a framework for construction of commonality required by rule 20
 Discriminatory character of defendant's conduct is basic to class, and fact that individuals
have suffered different effects from alleged discrimination is immaterial

FRCP 14. Third Party Practice. (Impleader)

Defendant may assert a claim against anyone not a party to the original action if that third party’s
liability is in some way dependent upon the outcome of the original action.
14(a)(1): D may join someone new (3rd party defendant) only if they are/may be liable to
defendant for all/part of claim against defendant
*still have to access subj. matter juris. From D1 against 3rd party if only between them

When a counterclaim is asserted against P, P may cause a 3rd party to be brought in under the same
circumstances as D.

Right to impleader is limited to derivative liability

 Can’t shift liability and say “it was her, not me”
 3rd party’s liability is derivative of defendant’s liability
o “If I am liable to the plaintiff, then the 3rd party is liable to me.”

Implications.
 Gives defending party a way of bringing into the suit anyone else who might help them foot all
or part of the damage bill
 Also gives defendants a way of delaying the case and making litigation more expensive for the
plaintiff by adding another party

Price v. CTB, Inc., 168 F. Supp. 2d 1299 (M.D. Ala. 2001). (812) – Joinder by Defendants (i.e. Third Party
Claims)

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 FACTS: Farmer Price is suing Latco for breach of contract in the construction of a chicken house; Latco
moved to file a third-party complaint (impleads) against ITW, a nail manufacturer that allegedly
negligently designed the nails used to construct the chicken house. ITW moves for motion to dismiss
improper impleader.
o Derivative liability (814)- Whether a defendant can implead a third party defendant where the
third party will be liable only if the original defendant is first found liable
 RULE: A defendant may assert a claim against anyone not a party to the original action if that third
party’s liability is in some way dependent upon the outcome of the original action.
 Holding: The court allowed the impleading because Latco asserts that ITW can be found liable for the
warranty surrounding its products if Latco is first found liable for faulty construction. Motion denied.
o Derivative liability/contingent liability: Third party defendant is only liable if in the fact the
original D was liable (“if I’m liable, she’s liable”). If original D denies liability altogether, 3 rd
party may not be impleaded.

Kroger v. Omaha Public Power District, 523 F.2d 161 (8th Cir. 1975). (820) – More Complex Litigation

OPPD Impleads Owen

under Rule 14(a)(1)
Kroger (IA) Omaha Power (NB) & §1367(a)

Owen Equipment (IA)

Kroger brought suit based on diversity jurisdiction for damages resulting from decedent’s wrongful
death by electrocution. D then impleaded Owen, who owned the equipment, hoping to pass on any
liability. Omaha Power was dismissed from summary judgment and Kroger v. Owen remained which
ruined diversity jurisdiction claimed for federal courts.
“Yet under the reasoning of the Court of Appeals in this case, a P could defeat the statutory requirement
of complete diversity by the simple expedient of suing only those defendants who where of diverse
citizenship and waiting for them to implead non-diverse defendants.” (p. 824)

“A third party complaint depends at least in part upon the resolution of the primary lawsuit. Its relation
to the original complaint is thus not mere factual similarity but logical dependence.” (p. 824-825)

“…ancillary jurisdiction typically involves claims by a defending party haled into court against his will,
or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing
action in a federal court.” (p. 825) (ancillary= allows a federal court to hear a claim that would normally
be outside of its subject-matter jurisdiction if it is substantially related to a second claim that is within
the court's jurisdiction)

“To allow the requirement of complete diversity to be circumvent as it was in this case would simply
flout the congressional command. Accordingly, the judgment of the Court of Appeals is reversed”- case
dismissed.

FRCP 21. Misjoinder and Non-joinder of Parties.

Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at
any time, on just terms, add or drop a party. The court may also sever any claim against a party.
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FRCP 42. Consolidation; Separate Trials.

(a) If actions before the court involve a common question of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the action; or
(3) issue any other orders to avoid unnecessary cost or delay
(b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may
order a separate trial of one or more separate issues, claims, cross claims, counterclaims, or third-party
claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.
***Joinder of Claims***
Counter claims (rule 13) with subject matter jurisdiction.
FRCP 13(b)
Permissive counter claims
The test for a compulsory counterclaim is virtually the same as 28 USC sec.1367 for supplemental
jurisdiction.
MI plaintiff v OH defendant
Breach of contract on defendant $76,000 the defendant wants to counterclaim for tortuous interference
in the marketplace. Don't need supplemental/
Supplemental is when there isn't diversity jurisdiction or subject matter jurisdiction
Hypo:
MI v OH Federal anti-trust claim and OH wants to counterclaim for tortious interference.
Supplemental jurisdiction is a form of subject matter jurisdiction.
MI v MI same set of circumstances
1. No diversity
2. No Federal claim
3. Do these 2 sets of claims arise from the same set of facts? Yes

MI v MI federal anti-trust counterclaim defamation.

1. No diversity
2. No federal claim
3. Do these 2 sets of claims arise from the same set of facts? NO.
Removed in time and subject matter. This is not a compulsory counterclaim it does not meet 13(a).
Rule 13 says what compulsory counterclaim is not what a permissive counterclaim is.

When you move away from 1 plaintiff, 1 defendant, 1 claim you always have to ask if you need federal
jurisdiction to add the party. A federal court can only proceed if it has subject matter jurisdiction.
28 USC sec 1367 and 13(a) need to be satisfied
These are for counterclaims that are already in federal court.
***Cross-Claims***
FRCP 13(g)
A pleading may state as a crossclaim any claim by one party against a co-party if the claim arises out of the
transaction or occurrence.
A cross-claim is the only way for the car manufacturer to assert that it was not them, it was the dealer. You
can just say no but to shift blame or introduce evidence you need a cross-claim. See page 591
It’s a denial and a cross-claim.
The two purposes is a defensive action insulating the manufacturer, the cross claim is an offensive action.
a. crossclaim
b. No, not the same nucleus of operative fact.
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c. Counterclaim (permissive) arises out the same occurrence or transaction. This is not the same
transaction or occurrence, probably not.
d. Affirmative defense
***Joinder of Parties***
Modern litigation involves complex patterns with complex parties and claims.
Plaintiffs – Mosley v. General Motors Co.
Discrimination lawsuit.
Claims by Mr. Mosley and 9 others
Against GM and the Union
Claims related to employment.
 Discriminating against African-American employees in promotions and terms of employment
 Retaliating against African-American employees who protested unlawful actions.
 Failing to hire African-Americans
 Failing to hire females
 Discharging African-American employees on the basis of race
 Discriminating against African-American and female employees in granting relief time and
failing to pursue grievances.
Policy of judicial economy is how they all get together.
Rule 20(a) 1367 13(a) 18(a) all are similar
Hypo: on the way to law school, side swiped by a city bus, borrowed a friend's car and got rear ended by a
city garbage truck. You need to find something common like the training of drivers by the city to join the
claims.
Mosley
FRCP 21
FRCP 42 –
both could be used to separate during discovery for GM

***Joinder on defense***
FRCP 14(a) Third party practice/impleader
The liability of the third party defendant is dependant on second party claim
Bank --> Parent --> child
The child's liability is entirely derivative of the original defendant's liability to plaintiff.

XI. Compulsory Joinder

FRCP 19. Required Joinder of Parties. (for those already in the lawsuit)
(a)(1)(A): Requires a party to be joined if feasible if in that person’s absence, complete relief cannot be
given. [aimed at efficiency]

(a)(1)(B): The person claims an interest relating to the subject of the action and is so situated that the
disposition of the action in the person’s absence may:
(i) as a practical matter impair/impede/harm the person’s ability to protect that interest OR
(ii) leave an existing defendant subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of the claimed interest

(b) When Joinder is not Feasible. Proceeding without the party OR dismissing
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Who is a necessary party then?

 Cases involving an obligation on which more than 1 person is benefitted or burdened by the obligations
but not all joint obligees or joint obligors are parties
o Ex. Contract with 3 parties and only 2 parties are joined
 Cases involving interests in real or personal property in which a person claiming an interest (for example a
joint owner, lessee, mortgage) is not included as a party
o Ex. You jointly own a house with parents, there is a lawsuit against you, parents will probably be
necessary parties
 Cases involving representative parties in which either the representative or the party being represented is
not included
 Cases involving claims to a limited fund or pool of assets, such that a potential claimant not a party will
find the fund depleted by the time her case is heard
o Ex. Multiple parties to a will with money to be inherited (say 5 beneficiaries) 1 of them brings claim
for declaratory judgment asking court to determine who gets what but only 3 beneficiaries are joined
o If court apportions money with only these 3, there will be nothing left for other 2

FRCP 12(h)(2)
Absence of necessary party is so important that it is allowed to be brought up at anytime (general
exception to rule that all motions must be brought together are once).
FRCP 12(b)(7)
Motion to dismiss for failure to join a party under rule 19

Temple v. Synthes Corp., 498 U.S. 5, reh’g denied, 498 U.S. 1092 (1990). (829)
 FACTS: Temple underwent surgery during which a plate and screw device was implanted in his lower
spine and later the device’s screws broke off inside Petitioner’s back- Sued Synthes (federal ct.) and Dr.
(state ct.) in separate suit
o Synthes wanted action dismissed for failing to join all parties- claims that joining of doctor was
necessary because 2 separate finders of fact in 2 separate trials coming to own independent
conclusions; jury in federal case could find Synthes responsible and state court could decide was
doctors fault and then you have inconsistent verdicts (Synthes not allowed to implead anyways
because can’t say its their fault, not mine)
 RULE: (FRCP) Rule 19 does not require joining all potential joint tortfeasors to be named as defendants
in a single lawsuit (Dr. is permissive, not indispensable, party) JOINT TORTFEASORS NOT
NECESSARY PARTIES

Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center, 564 F.2d 816 (8th Cir. 1977). (833)
 FACTS: Helzberg signs lease with Valley West and writes in lease that no more than 2 full line jewelry
stores can be in mall. Helzberg sues Valley West. Valley West moves to dismiss for failure to join Lord's
as a party
 RULE: “In sum, it is generally recognized that a person does not become indispensable to an action to
determine rights under a contract simply because that person’s rights or obligations under an entirely
separate contract will be affected by the result of the action.” (p. 836)
o “…requires the court to look to the extent to which a judgment rendered in Lord’s absence might
be prejudicial…to consider ways in which prejudice to the absent party can be lessened or
avoided…”

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o A party not within the personal jurisdiction of the presiding federal district court can only be
joined as a third-party defendant under Federal Rule of Civil Procedure (FRCP) Rule 19(b) if it
is indispensable to the litigation, such that the party’s absence will be prejudicial either to that
party or the previously named defendant.

Joinder of Additional Parties by Defendants

FRCP 14 Third Party Practice
(a) When a Defendant May Bring in a Third Party.
(1) Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a
summons and complaint on a nonparty (impleader) who is or may be liable to it for all or part of the
claim against it.
● Right to impleader is limited to derivative liability (indemnity or contribution)
● Can’t shift liability and say “it was her, not me” it is a shift of liability
● “If I am liable to the plaintiff, then the 3rd party is liable to me.”
● Not about shifting fault from one party to another, but rather saying that there were pre-existing
obligations/contractual relations” that suggest the other party’s responsibility
(2) Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party
complaint--the “third-party defendant”:
(A) must assert any defense against the third-party plaintiff’s claim under Rule 12;
(B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any
counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-
party defendant under Rule 13(g);
(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim;
and
(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the
subject matter of the plaintiff's claim against the third-party plaintiff.
(3) Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party
defendant any claim arising out of the transaction or occurrence that is the subject matter of the
plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense
under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule
13(b) or any crossclaim under Rule 13(g).
(b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the
plaintiff may bring in a third party if this rule would allow a defendant to do so.
● Price v CYB Inc
○ Latco (construction company) impleads ITW (nail manufacturer) for faulty chicken coop.
○ Defendant may implead a third party under rule 14 if third party is liable to defendant when defendant
is liable to plaintiff. There was a pre-existing obligation and so the concept of derivative liability is met.
Compulsory Joinder
FRCP 19 Required Joinder of Parties - is done by the court (12 b 7 is done by a party)
Places a burden on P to identify potentially interested parties in the complaint
A party is called indispensable when the case is dismissed when they cannot be joined
(a) Persons Required to Be Joined if Feasible. 3 Tests: Party must be join if in their absence:
(1) Required Party. A person must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief among existing parties; test 1 or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of
the action in the person's absence may:
(i) as a practical matter impair or impede the person’s ability to protect the interest; test 2 - the absent
party’s interest may be harmed or
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(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest test 3 - the party’s absence may leave Defendant at risk
of multiple or inconsistent obligations. (joining a party cannot mess up diversity jurisdiction)
Once you determine a party is necessary, you must determine whether it is feasible to bring them into
action. Ask:
1. Is there personal jurisdiction over them?
2. Does brining them in mess up Diversity Jurisdiction?
(2) Joinder by Court Order. If a person has not been joined as required, the court must order that the
person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in
a proper case, an involuntary plaintiff.
(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must
dismiss that party.
(b) When Joinder Is Not Feasible. If a person who is required to be joined cannot be joined, the court
must determine whether the action should proceed among the existing parties or should be dismissed.
The factors for the court to consider include: They usually will not dismiss unless there is an alternative
court where the plaintiff can go to get justice
(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the
existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person's absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
FRCP 12(b)(7) - A party may assert one of the following defenses- failure to join a party under rule 19.
FRCP 12(h)(2) - Absence of necessary party is so important that it is allowed to be brought up at
anytime through trial (exception to gen rule that all motions must be brought together at first).
● Temple v. Synthes Corp.
○ As potential joint tortfeasors with Synthes, Dr LaRocca and the hospital were merely permissive
parties
○ Rule 19a does not require joining all potential tortfeasors to be named as defendants in a single lawsuit
(Dr. is permissive, not indispensable, party)
● Marvel Characters, Inc. v. Kirby.
○ Can this case move forward without all the children present?
○ Two Children (located in California) are necessary parties under Rule 19a but….
○ Court evaluates that they can move forward with only two present children despite their absence under
Rule 19b

***Intervention***
Familiar with how parties and claims inside a claim and outside.
3rd party under rule 14
Missing but necessary under rule 19
Outside – Intervention (parties want to join but may or may not be wanted by the respective parties)
The parties are happy with the way the case is, a new party wants to join (intervention).
Intervention as of Right
FRCP 24(a)
1. Is given an unconditional right to intervene by a federal statute; or

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2. Claims an interest relating to the property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair or impede the movant's ability
to protect its interest, unless existing parties adequate represent that interest.
U.S. v. City of Los Angeles
The Dept of Justice brought this case to seek structural change.
There was a consent decree decided between the parties prior to the case.
The consent decree was put before the court, if the special master is appointed and sees that the entity is
not complying (the police department) then the court needs to made aware.
The intervention was by the Police League and "the community interveners" (they of course want a
say)
FRCP 24(a)(2) is satisfied for the police league – they have an interest in the case (8600 officers), it may
impair or impede their ability to protect their interest, and they are adequately represented - (the third is
normally satisfied by the government naturally but in this case the rank and file of the police league have
different views than the brass of the police department looking to save money and avoid publicity).

US v. City of Los Angeles

Police League Community Intervenors
Do they have an interest Yes yes
Protect interest yes No (still could bring suit)
Adequately represented? yes no
***Martin v. Wilkes***
Regarding racist hiring and promotion policies. The original suit was brought by the NAACP and 7
African American firefighters, the instant case is 2 white officers claiming that they were discriminated
against and less qualified people were promoted and hired as a result of this practice.
With intervention there is a 2 choices to make, inside, should they bring the 3rd party in to make their
case stronger? Outside, would our case be stronger by filing our own case or by intervening in the
present case?
By statute, congress reversed in part this decision. Page 620 notes
Justice Steven's dissent is the meat and potatoes of the statute (Fox mentioned Title VII)
***Next class rules 27-37***
Student guide is awesome for this. Also rule 26 but that wont be for a while
Next 5 classes are on discovery

XII. Intervention

FRCP 24. Intervention (for those that are outside of the lawsuit)
(a) Intervention of Right. (designed to give to those with strong interests in the litigation the power to
insist on joinder) On timely motion, the court must permit anyone to intervene who: (echoes 19(a)(1)
(B))
 is given an unconditional right to intervene by a federal statute, or
 claims an interest relating to the property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair or impede the movant’s
ability to protect its interest, unless exciting parties adequately represent that interest.

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(b) Permissive Intervention. (weaker component – designed to capture those with weaker bases for
insisting on joinder)
(1) On timely motion, the court may permit anyone to intervene who:
 is given a conditional right to intervene by a federal statute; or
 has a claim or defense that shares with the main action a common question of law.

Natural Resources Defense Council v. United States Nuclear Regulatory Commission, (10th Cir.) (840)
 FACTS: Plaintiff sought declaratory and injunctive relief against the Defendants, the United States
Nuclear Regulatory Commission and the New Mexico Environmental Improvement Agency, prohibiting
these agencies from issuing licenses for the operation of uranium mills in New Mexico without first
preparing environmental impact statements.
o The Movants, American Mining Congress and Ker-McGee Nuclear Corporation (Movants), then
also filed a motion to intervene as a matter of right or on a permissive basis, pursuant to Federal
Rule of Civil Procedure (FRCP) 24(a)(2) and (b).
 RULE: Criteria to succeed under 24(a):
1. Must have an interest in the property/transaction that is the subject of the suit
2. Interest must be in strong way at risk (impaired/impeded)
3. Will be denied if those already in suit are adequately representing interest
4. Must be timely

Martin v. Wilks, 490 U.S. 755 (1989). (846)

 FACTS: White firefighters, nonparties to a consent decree, challenged a decree, which mandated
affirmative action in the hiring and promotion of blacks as firefighters.
o Did Wilks and other white firefighters have a constitutional right to challenge the previously
established decrees?
 ISSUE: Did Wilks and other white firefighters have a constitutional right to challenge the previously
established decrees? - Yes
 RULE: "a person cannot be deprived of his legal rights in a proceeding to which he is not a party," the
white firefighters were not precluded from challenging employment decisions taken pursuant to the
consent decrees.
o “The law does not impose upon any person absolutely entitled to a hearing the burden of
voluntary intervention in a suit to which he is a stranger…” (p. 847)
o “… a party seeking a judgment binding on another cannot obligate that person to intervene; he
must be joined...” (p. 847)
o The parties of the suit know more about the action than anyone else… “It make sense, therefore,
to place on them a burden of bringing in additional parties where such a step is indicated, rather
than placing on potential additional parties a duty to intervene when they acquire knowledge of
the lawsuit.” (p. 848)

***Discovery***
The devices available in discovery
Next 4 classes on cross-cutting discovery (discovery that happens no matter what)
Tactical devices to understand the other side's case and how weak/strong yours is.
The notice pleading system kicks the information gathering stage down the road a little bit.
Discovery is a good way to widdle down the information that is needed.

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Sometimes discovery can be used as a tactical weapon. If you have more money than them, bury them in
discovery.
Discovery can be intrusive. Things that you might not want to be made public are on the table.
Our system of discovery is so over the top that some EU countries have criminal penalties for some
discovery interrogatories.
Preserving evidence before the discovery process even starts
Zubulake is about as bad faith as it gets. Page 332
FRCP 37(e )
If electronically stored information that should have been preserved in the anticipation or conduct of
litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored
or replaced through additional discovery, the court:
1. Upon finding prejudice to another party from loss of the information, may order measures no
greater than necessary to cure the prejudice; or
2. Only upon finding that the party acted with the intent to deprive another party of the
information's use in the litigation may:
a. Presume that the lose information was unfavorable to the party;
b. Instruct the jury that it may or must presume the information was unfavorable to the party;
or
c. Dismiss the action or enter a default judgement

Spoilation - the destruction or significant alteration of the evidence, or the failure to f=preserve property
for another's use as evidence in pending or reasonably foreseeable litigation.

Initial Disclosures
FRCP 26(a)(1)(A)
Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must,
without awaiting a discovery request, provide to the other parties:
PAGE 370 of students FRCP
If you fail to disclose the initial disclosures under rule 37(c )(1) with limited exceptions, you have lost
your opportunity to introduce that evidence at trial.
In Haddle, if Garrison think they "might" have emails that express anger regarding Haddle and his
cooperation, the lawyer has an obligation to investigate that and turn it over in initial disclosures.

***Discovery devices***
Interrogatories
Duty to supplement required disclosures
FRCP 26(e )(1)(A) - THIS IS UNDER OATH
A party who has made a disclosure under Rule 26(a) - or who has responded to an interrogatory, request
for production, or request for admission - must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in writing.

A contention interrogatory is something like "Please explain in detail all the evidence you have to
support paragraph 10"
Make sure your terms are well defined and your questions specific. The lawyers job is to use the
vagueness to their client's advantage. This is why in some things you see "When the word 'employment'
is used, it means 'blah'"
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Example of interrogatory under FRCP 33

Identify each person who has any personal knowledge or information about, or who possesses or
controls any data, documents, evidence or other tangible items regarding, the allegations of the
complaint or Plaintiff's claims; and for each such person, state in detail all such facts, information, data,
documents, evidence, or tangible items.

What is a deposition? Basically an interview with attorneys of both parties, court reporter and
video/audio taped. Information gathering.

Objections to deposition questions

FRCP 30(c )(2)
An objection at the time of the examination - whether to evidence, to a party's conduct, to the officer's
qualifications, to the manner of taking the deposition, or to any other aspect of the deposition - must be
noted on the record, but the examination still proceeds; the testimony is taken subject to any objection.
An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may
instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation
ordered by the court, or to present a motion under rule 30(d)(3).
Deposition of an Organization
FRCP 30(b)(6)
IT its notice or subpoena, a party may name as the deponent a public or private corporation, a
partnership, an association, a governmental agency, or other entity and must describe with reasonable
particularity the matters for examination. The named organization must then designate one more
officers, directors, or managing agents, or designate other persons who consent to testify on its behalf;
and it may set out the matters on which each person designated will testify. A subpoena must advise a
nonparty organization of its duty to make this designation. The persons designated must testify about
information known or reasonable available to the organization.
Producing documents at a deposition
FRCP 30(b)(2)
If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as
set out in the subpoena, must be listed in the notice or in an attachment. The notice to a party deponent
may be accompanied by a request under rule 34 to produce documents and tangible things at deposition.

XIII. Range of Discovery Methods

XIII. Range of Discovery Methods

Ways of Obtaining Information
 Asking Questions (interrogatories [33] or depositions [27-32])
 Examining documents, physical objects, and persons [34 & 35]
 Asking one’s opponent to admit contentions [36]

FRCP 26. Duty to Disclose; General Provisions Governing Discovery

a) Required Disclosures
(1) Initial Disclosure. (...exchange categories of info “that the disclosing party may use to support its
claims or defenses”)
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(A) …party must provide to the other parties:

 name and, if known, the address and telephone number of each individual likely to have
discoverable information,
 copy/description of documents/ESI relevant to disputed facts
 computation of damages
 insurance policy

(a)(2) Expert Testimony

(B) Witnesses who must provide a Written Report.
Experts give opinions, normal witness can only give facts.
Experts have to be retained by lawyers, be approved by court, follow a specific procedure to be
allowed to give their expert opinion

(a)(3) Pretrial Disclosures- names of all people expecting to present & every exhibit/document

(A) .. a party must provide to the other parties and promptly file the following information about the
evidence that it may present at trial other than solely for impeachment.

FRCP 28. Persons Before Whom Depositions May Be Taken

FRCP 29. Stipulations Regarding Discovery Procedure

FRCP 30. Depositions upon Oral Examination

 Anyone, including a non party- may not exceed 10 people, no more than a day of 7 hours, and no second
time with same person without permission of court/other side 30(a)(2)(A)(i) (can subpoena non party)

FRCP 31. Depositions upon Written Questions (very rare)-same

FRCP 32. Use of Depositions in Court Proceedings

FRCP 33. Interrogatories to Parties

 (a)(1) Number. No more than 25 written interrogatories (ONLY TO PARTIES)
 (a)(2) Scope. may relate to any matter than may be inquired into under Rule 26(b)
 answer in writing, under oath

FRCP 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering into
Land, for Inspection and Other Purposes
 sent to a party, requesting specific documents sought
 for non-party-similar request but must serve it with subpoena issues under FRCP 45(a)(1)(a)(iii)
 no limits on # of documents requested
 34(b)(2)(E)(i)- party must produce documents as they are kept in usual course of business or
organize/label them to correspond with categories in request

FRCP 35. Physical and Mental Examinations. – have to get court order
 Requires special application and showing of good cause (balance of need against issue of privacy)

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FRCP 36. Requests for Admissions

 Functions best to eliminate essentially undisputed issues/take factual questions off table
 Statements which are followed by a request to party to admit, deny, or say lacking knowledge

FRCP 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (ENFORCEMENT - Motion to
Compel)

XIV. Scope of Discovery – Relevance & Privilege

FRCP 26. Duty to Disclose; General Provisions Governing Discovery

Allows parties, without court approval, to seek discovery “regarding any non-privileged matter that is
relevant to any parties claim or defense.” If a party shows “good cause” the court may grant even
broader discovery “of any matter relevant to the subject matter involved in the action.” [26(b)(1)]

Relevance- means that the information tends to prove or disprove something the governing substantive law says
matters
Davis v. Precoat Metals, 2002 WL 1759828 (N.D. Ill. 2002). (459)
 FACTS: African American and Latino plaintiffs wanted discovery to compel release of employee
complaints to show systemic uses of discrimination in work pace
 RULE: Discovery that is narrowly tailored to the allegations of a complaint is discoverable, even if it
involves the personnel files of employees other than the parties to the suit
o Certain time period, employee complaints from same plant, complaints of race/national origin
discrimination

Steffan v. Cheney, 920 F.2d 74 (D.C. Cir. 1990). (461)

 FACTS: Steffan refuses to answer deposition questions directed to whether he had engaged in
homosexual conduct during/after his tenure in the Navy, saying they were not relevant to the legality of
his separation, is this information relevant? – No (rule 37 warning/sanction dismissed)
 RULE: No sanction may be upheld if its imposition was based upon an error of law- information was
irrelevant
o Record is clear that he was dismissed based on admissions that he was gay, rather than any
evidence of misconduct

Privilege
 Not discoverable
 Information is kept protected from certain sources. This is based off of confidential relationships,
which in trial do not have to be discussed or disclosed. Federal courts use state privilege law.
 i.e. Attorney/Client; Husband/Wife; Self-incrimination (5th amendment); Doctor/patient;
Spiritual Leader/Person
 Can be waived

FRCP 26(b)(5). Claiming Privilege or Protecting Trial-Preparation Materials.

(A)When a party withholds info otherwise discoverable by claiming privilege, the party must:
(i) expressly make a claim; and

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ii) describe the nature of the documents, communications, etc. (privilege log)

Leibel v. General Motors Corporation (HANDOUT)

 FACTS: Issue over Toth Memo- where legal advice is discussed of what GM should do in potential
litigation involving seat backs (communication of strategies between attorney-client.
o Plaintiffs here claim they can introduce some or all of Toth Memo by waiver as it was used
in other prior cases; GM says this was a mistake
 RULE: “Because we hold that the Toth Memo is clearly covered by the attorney-client and work-
product privileges, and because we further hold that involuntary disclosure through inadvertence or
court orders in other jurisdictions does not constitute a voluntary waiver of the privilege, we reverse the
trial court’s holding to the contrary and remand to the trial court for it to determine whether GM
voluntarily disclosed the Toth Memo in connection with other litigation.” (p. 1)
o Privilege must be intentionally waived.

Rule 26(b)(1)
Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or
defense and proportional to the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
JUDGES DO NOT LIKE MEDIATING DISCOVERY
You can only get proportional, non-privileged information.
Proportionality is a cost/benefit analysis
All discovery is inherently burdensome

How assess proportionality of discovery requests?

Benefit of discovery to requesting party vs. burden to the party requested.

Limitations on Frequency and Extend of Discovery

FRCP 26(b)(2)( c)

General grounds for a protective order

FRCP 26(c )(1)

Diminishing returns argument - in this case of Cerrato, the court picked 5 years which makes sense.

Rule 37 for consequences of trying to rig your information to be less accessible.

Factor based analysis vs Element based analysis.

Attorney Work Product rule

On one hand it is supposed to be a cooperative process to find the truth.
On the other hand you want your client to win and have an adverserial process.

The documents are relevant, not privileged,

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The most important thing to know when asking if its privileged, attorney work product is different than
attorney client privilege, then can be the same but they can be different.

The evidentiary evidence may be tampered with the lawyers opinions which is another reason for work
product rule.

If work product becomes evidence, then the author of the work product could be called as a witness.
That would completely upend the litigation process. How can a lawyer represent his client while
simultaneously being a witness?

Discoverable work-product would include hidden and non-privileged documents where there is no other
possible way to get that information.

Narrow exception not met in Hickman.

FRCP 26(b)(3)(a)
Trial preparation materials
Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be
discovered f:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by other means.
FRCP 26(b)(3)(B)
Protection against disclosure. If the court orders discovery of those materials, it must protect against
disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or
other representative concerning the litigation.

***Expert Testimony***
Experts have specialized knowledge that the ordinary person does not possess. If you have heart surgery,
if you want to know if your surgery was done right, my opinion is irrelevant but a heart surgeon would
know more than I.

Fact witnesses are different than expert witnesses, fact witnesses cannot state opinion, expert testimony
is all opinion.

Federal Rule of Evidence 702

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in the issue;
(b) the testimony is based on sufficient facts or data;
(c ) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

FRCP 26(b)(4)(a)

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Some experts will not give their opinion in court called non-testifying experts who either direct a lawyer
to the right questions to ask or to depose on evidence no longer available.

Required disclosures on testifying experts

 Identity of testifying experts must be disclosed and they have to be able to be deposed. Rule
26(a)*2)(A)
 Report of expert must be disclosed. Rule 26(a)(2)(B)
 Experts may be deposed Rule 26(b)(4)(A)

XV. Scope of Discovery – Work Product Rule and Expert Information

Work Product/Trial-Preparation Rule

FRCP 26(b)(3).
Any work or discovery that is done in anticipation of litigation by a party is privileged / not discoverable
(reflected lawyer’s mental impression and memoranda)
(b)(3)(A) Documents and Tangible Things. A party may not discover documents and things that are
prepared in anticipation of litigation or for trial by or for another party or its representatives. But subject
to Rule 26(b)(4), those materials may be discovered if:
 they are otherwise discoverable under Rule 26(b)(1); (relevant to claim or defense) AND
 the party shows that it has substantial need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equivalent by other means.

Hickman v. Taylor, 329 U.S. 495 (1947). (490)

 FACTS: After tugboat sank, two tug owners (Defendants) fearing litigation, hired an attorney who
interviewed several of the surviving crew members of the tug accident. A year later, after filing suit
against the tug owner, a representative of one of the victims of the accident filed an interrogatory
requesting the content of the interviews conducted by the tug owners’ attorney with the survivors.
 RULE: The work product of an attorney, particularly opposing counsel’s thoughts and impressions of
witnesses or information relating to the claims, is not discoverable.
o IS NOT A privilege: is the work product rule
o “But the general policy against invading the privacy of an attorney’s course of preparation is
so well recognized and so essential to an ordinarily working of our system of legal procedure
that a burden rest on the one who would invade that privacy to establish adequate reason to
justify production through a subpoena or court order.” (p. 494)
 If the witnesses or information is available for the opposing side, then they are not
prejudiced and can not demand the work product of opposing counsel.

Expert Information

FRCP 26(a)(2)(A) – identity of testifying experts must be disclosed

 90 days before trial (or 30 days for rebuttal testimony)
FRCP 26(a)(2)(B) – report of expert must be disclosed
 Describing conclusions of case (facts/opinions)
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 Required by experts hired specially for the lawsuit (pg. 498)

o “Fact witnesses” do not need to

FRCP 26(b)(4)(A) – experts may be deposed (these are discoverable)

Thompson v. The Haskell Co., 65 Fair Empl. Prac. Cas. (BNA) 1088 (M.D. Fla. 1994). (500)
 FACTS: Thompson (Plaintiff), sought to shield from discovery documents related to her mental state
after being fired/alleging sexual discrimination- that were in the possession of her psychologist;
assuming Dr.’s report is covered under FRCP 26(b)(4), it would nevertheless be discoverable under
circumstances
 RULE: The results of physical or mental examinations of a party, prepared prior to litigation are
discoverable if there are exceptional circumstances favoring disclosure and comparable information
cannot be obtained by other means.
o “In a case almost on all fours with the instant one, the Court recognized that even
“independent examinations… pursuant to Rule 35 would not contain equivalent
information.” (p. 500)

Chiquita International v. M/V Bolero Reefer, 1994 U.S. Dist. LEXIS 5820 (S.D.N.Y. 1994). (501)
 FACTS: Plaintiff, Chiquita, a shipper, sued the Defendant, International Reefer, a carrier, for cargo loss
and damage onboard the M/V Bolero Reefer.
o Defendant submitted a letter in support of an application to compel discovery of Winer, a
marine surveyor who examined the vessel and loading gear at Plaintiff’s request shortly after
the vessel arrived in Germany.
 RULE: “He does not forfeit this status merely because he made a personal examination of the vessel and
therefore learned “facts,” rather than simply offering an opinion based on the observations of others.
Rule 26(b)(4)(d) generally precludes discovery of “facts known or opinions” held by non-testifying
expert…” (p. 501)
o “Thus, a non-testifying expert is generally immune from discovery.” (p. 501)
o “Mr. Winer qualifies as such an expert. He is a marine engineer who was specifically
engaged by Chiquita to examine the vessel in connection with the cargo loss claim.” (p. 501)
o “Thus, the relevant distinction is not between fact and opinion testimony but between those
witnesses whose information was obtained in the normal course of business and those who
were hired to make an evaluation in connection with expected litigation.” (p. 501)
 International Reefer could have gone themselves and checked the scene
o “Here, Mr. Winer falls into the latter category and Rule 26(b)(4)(D) therefore applies.” (p.
501).

Last class on discovery

FRCP 34(a)(1)(A)
Documents includes ESM
A party may serve on any other party a request within the scope of rules 26(b):
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the
following items in the responding party's possession, study, or control:

(A) any designated documents or electronically stored information - including writings, drawings,
graphs, charts, photographs, sound recordings images…

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FRCP 34(b)(1)(c )
The request may specify the medium that the discovery should be transmitted in.
34(b)(2)(e )(ii)
Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or
stored information….
FRCP 34(b)(2)(D)
The objection to the format

Discovery conference and plan must address ESM issues

FRCP 26(f)(3)(c )
A discovery plan must state the parties views and proposals on:
(C ) any issues about disclosure

FRCP 16(b)(3)(B)(iii)
Provide for disclosure discovery or …

Subpoenas
FRCP 45(a)(1)(A)(iii)
Includes ESM
***Zubulake v. UBS***
FRCP 45(a)(1)(C )
A command to produce documents, electronically stored information, or tangible things or to permit the
inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing,
or trial, or may be set out in a separate subpoena. A subpoena may specify the forms or forms in which
electronically stored information is to be produced.
FRCP 26(b)(2)(B)
When E-Discovery is too burdensome
A party need not provide discovery of electronically stored information from sources that the party
identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery
or for a protective order, the party from whom discovery is sought must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is made, the court may
nonetheless order discovery from such sources if the requesting party shows good cause, considering the
limitations of Rule 26(b)(2)(C ). The court maybe specify conditions for the discovery.

Possession is the word for physical possession, custody or control would be a legal definition.

2 contexts: if there is a parent/subsidiary relationship between 2 companies and the information is not in
the possession, custody or control of the parent. Can you get the parent company to produce the
subsidiary's discovery? It is a complicated question that corporation class will cover.
"Piercing the corporate veil"
A situation where data is stored with a 3rd party provider. (this is a super weak argument that pretty
much failed right off the bat)

***Kentucky Speedway v. NASCAR***

Questions of metadata

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XVI. Electronic Discovery

34(b)(2)(E)
FRCP 34(a)(1)(A). “Documents” includes Electronic Stored Medium? (ESI)
(1) to produce and permit the request party or its representative to inspect, copy, test, or sample the
following items in the responding party’s possession, custody, or control:
(A) any designated…

FRCP 34(b)(1)(c). Requesting Party May Specify Format

The request: (C) may specify the form or forms in which electronic stored information is to be produced

FRCP 34(b)(2)(E)(ii). What if Form not Specified? (MAIN ESI RULE)

Must produce in way it is ordinarily maintained (native format) or reasonably usable form

FRCP 34(b)(2)(D). Must Describe Form in which Produced

The response may state an objection to requested form for producing electronically store information. If
the responding party objects to a requested form 0 or if no form was specified in the request – the party
must state, the form or forms it intends to use.
Responding party must state the form it intends to use before it produces the information

FRCP 16(b)(3)(b)(iii)
The scheduling order must limit the time to join other parties, amend the pleadings, complete…
 Must make electronic discovery plan (2006 Amendments handout)

FRCP 37(e). No Sanctions for ESM Lost When Acting in Good Faith
(Mini rule 11 for discovery – rule 11 does not relate to discovery)

Zubulake v. UBS, 217 F.R.D. 309. (HANDOUT)

 FACTS: Plaintiff, Laura Zubulake, brought gender discrimination and wrongful termination suits
against Defendants, UBS Warburg LLC et al., and she sought access to emails that were stored and
archived by Defendants, who said it would cost $175,000 to recover
 RULE: A court will weigh the cost of accessing the electronic data using a comprehensive set of factors,
and will determine whether the data should be available for discovery, and which party to place the cost
of the discovery.
o “under the discovery rules, the presumption is that the responding party must bear the
expense of complying with discovery requires, but it may invoke the district court’s
discretion under Rule 26(b)(2)(b) to grant orders protecting it from ‘undue burden or
expense’ in doing so…” (p. 3)
o 26(b)(2)(c)(iii) burden of proposed discovery outweighs benefit need
o Rowe Test: (cost- shifting analysis)
 the specific of the discovery requites
 the likelihood of discovering critical information
 the availability of such information from other sources
 the purposes for which the responding party maintains the requested data
 the relative benefits to the parties of obtaining the information
 the total cost associated with production
 the relative ability of each party to control costs and its incentive to do so
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 the resources available to each party

Hatfill v. New York Time Company (HANDOUT)

 FACTS: Hatfill says article in NY times wrote that he was involved in anthrax attacks.
o Wants discovery to allow notes and interviews from flash drive, which is not in
defendants control and is protected by privilege
 RULE: “The U.S. Court of Appeals for the Fourth Circuit has not interpreted the phrase “possession,
custody or control.” … Western District found that in Rule 34, control is defined as:
o (1) actual possession of a document or
o (2) “the legal right to obtain the document on demand.” (p. 2)
 “The Court, therefore, finds that the D does not have possession, custody or control under the two-prong
definition of control under Rule 34(a); thus, this Court will not compel D to produce Mr. Broad’s notes.”
(p. 3)
 May be barred anyways by qualified reporters privilege

Kentucky Speedway v. NASCAR, 2006 U.S. Dist. LEXIS 92028. (HANDOUT)

 Facts: KY speedway sought metadata (information about a particular data set which describes how,
when, and by whom it was collected, created, accessed, or modified and how it was formatted)
 RULE: “In most cases and for most documents, metadata does not provide relevant information.” (p. 3)
o Plaintiff required to review documents they already have and specifically identify which ones it
continues to seek
o “To the extent that P seeks metadata for a specific document or documents where date and
authorship information is unknown but relevant, P should identify that document or documents
by Bates Number or by other reasonably identifying features.” (p. 3)

***Contracting for arbitration***

FAA Section 2 9 USC SS2
There are a lot of cases arise because arbitration clauses are really poorly drafted.
Any arbitration can be invalidated for the same legal reasons as a contract could be invalidated.
In this way contract=arbitration as far as enforceability.
Agreements to arbitrate are no different than any contract or clause in a contract.

In the law of contracts there is nothing special regarding enforcement of arbitration.

Overwhelmingly Contract law is state law
In an arbitration, you get the chance to select someone who would know more about a certain subject
than a judge would. Example, arbitration of an intellectual property agreement would better be served to
have an arbitrator that has expertise in that field rather than a judge.

Reasons for preference to arbitration

 Completely private
 Cheaper and faster
 You can pick your arbitrator
 If you are a large company that licenses software for example, you would write something
into the arbitration clause to say no punitive damages, or no class-action.
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*These are not arbitration clauses!*

 Choice of forum clause: "The parties agree that any and all disputes arising from or relating
to this agreement, including its formation and validity, shall be settled in the State of
Michigan."
 Choice of law clause: "This agreement shall be governed by and construed in accordance
with the laws of the state of Michigan."
These clauses take any kind of "race to the courthouse to file" advantage off the table.
California law makes a distinction between procedural unconscionability and substantive
unconscionability, in California, you need both.

XVII. Contracting for Arbitration (avoid trial)

Federal Arbitration Act – FAA 9 USC 1: (TWEN HANDOUT) (CB 557)

Section 2: consists of substantive law – declares agreements to arbitrate valid as a matter of federal law

Section 3: tells the courts what to do if a party, in spite of an arbitration agreement, instead files a
lawsuit…

Section 4: tells federal courts what to do if a party neither invokes arbitration nor files suit…

Section 10: only way to vacate an arbitration award: (1) awarded was procured by corruption, fraud, or
undue means (duress, unconscionability)

Unconscionability:
Procedural: the way the contract is negotiated, unequal nature of the parties.
o Oppression and surprise – oppression arises from an inequality of bargaining power which
results in no real negotiation and absence of meaningful choice. Surprise involves the extent to
which the supposedly agree0upon terms of the bargain are hidden in the prolix printed form
drafted by the part seeking to enforce the disputed terms. (560)

Substantive: Focuses on the terms of the agreement and whether those terms are so one-sided as to
“shock the consciences” (560)

Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d 778 (9th Cir. 2002). (559)
 FACTS: Ferguson filed a complaint against Defendant, her employer, alleging sexual harassment,
retaliation and hostile work environment.
o Defendant countered by filing a Petition to remove the action to Arbitration, based on an
arbitration that was signed upon Plaintiff’s employment with its firm.
o The District Court denied the Petition to Compel Arbitration, ruling that the agreement was
unconscionable.
 RULE: In determining whether a contract is unconscionable one must consider whether it is both
procedurally and substantively unconscionable and whether the agreement can stand without the
unconscionable terms, or whether it must be stuck down in entirety

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o Here, substantive unconscionability=one-sided (called for some arbitration fees by plaintiff and
allowed for more depositions of employees than of directors/supervisors along with undue
advantages to employer) and Procedurally= unfair bargaining power

AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011). (565)

 FACTS: Plaintiffs and members of a class (P) filed suit against AT&T for deceptive advertising. They
had contracted with AT&T (D) for the sale and servicing of cellular phones. The contract provided for
arbitration and AT&T (D) moved the court to compel arbitration. The motion was denied by the district
court, and the decision was affirmed by the Ninth Circuit Court of Appeals. AT&T (D) appealed to the
Supreme Court.
 RULES: Federal Arbitration Act preempts "state-law rules that stand as an obstacle to the
accomplishment of the FAA's objectives
o The FAA displaces state law that prohibits contracts which do not allow for class action arbitration.
o Having class actions in arbitrations would defeat the purpose of arbitration
o If we allow state law to destroy all efficiency of arbitration, it will swallow FAA
 Dissent: nonclass arbitration will sometimes deprive claimants of their claims

American Express v. Italian Colors (Slide Case)

o Retailers filed a class action suit against American Express for Antitrust claims
o Arbitration upheld, the Federal Arbitration Act trumps antitrust law

***Arbitration process***
All complaints for arbitration go back to contract law because an arbitration is a contract.

***Ferguson v. Writer's Guild***

The arbitrators would be better equipped to decide whether the credits were fairly done. A judge has
zero idea how it works or would be fair.
By being part of the collective bargaining and arbitration agreement automatically takes away the right
to court.
Absent extraordinary circumstances or unconscionability, the basic rule is the court will uphold the
contract.
For international contracts, the incentive for a mutually agreed upon arbitration are very high. If it's
between China and the US, the Chinese files in Chinese court and the American files in American court
and nothing happens.
The courts in a foreign country might not recognize the arbitration contract. The court in the foreign
country would need to sign garnishment, etc. orders.
If the award for arbitration is unenforceable, then you are screwed. 1958 - the New York convention
(most of the world).
Lack of legal status for a federal arbitration award, its enforceable through the New York convention.

New York Convention

Article 1(1)
This convention shall apply to the recognition and enforcement of arbitral awards made in the territory
of a State other than the State where the recognition and enforcement of such awards are sought, and
arising out of differences between persons, whether physical or legal. It shall also apply to arbitral

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awards not considered as domestic awards in the State where their recognition and enforcement are
sought.

Article 1(2)
The term "arbitral awards" shall include not only awards made by arbitrators appointed for each case but
also those made by permanent arbitral bodies to which the parties have submitted.

Article III
Each contracting State shall recognize arbitral awards as binding and enforce them in accordance with
the rules of procedure of the territory where the award is relied upon, under the conditions laid down in
the following articles. There shall not be imposed substantially more onerous conditions or higher fees
or charges on the recognition or enforcement of arbitral awards to which this Convention applies than
are imposed on the recognition or enforcement of domestic arbitral awards.

Article V(1) (TWEN)

1. Recognition and enforcement of the waare may be refused, at the request of the party against
whom it is invoked, only if that party furnishes to the competent authority where the
recognition and enforcement is sought, proof that:
(a)

Overseas is using Article V(2)(b) to try to not have to pay.

XVIII. Arbitration Process

General:
 No rules of evidence at all; everything gets in and the arbitrators determine what is relevant and
what is not
 Rules of procedure are completely different in every arbitration case because parties can choose
what the governing laws will be
 If a party wants to appeal an arbitration award they can take it to federal courts but it has to be
on the grounds of fraud, corruption, etc. [FAA 9 USC §10]

Ferguson v. Writers Guild of America, 226 Cal. App. 3d 1382. (576)

 “Judicial review of arbitration (the Writer Guild’s credits) determination is restricted to considering
whether the party challenging the determination has demonstrated a material and prejudicial departure
from the procedures specified in the credits manual. Applying this standard, we have determined that the
record sustains none of Ferguson’s seven procedural contentions.” (p. 579)
 The court does not review the merits of the arbitrator's decision; it examines only whether the parties in
fact agreed to arbitration, whether the procedures employed deprived the parties of a fair opportunity to
be heard, and whether the arbitrators exceeded their powers. [Section 10 of the FAA].

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XIX. International Arbitration

FAA 9 USC §201. Enforcement of Convention- Recognition and Enforcement of Foreign Arbitral Awards

FAA 9 USC §202. Agreement or award falling under the Convention

FAA 9 USC §207. Award of arbitrators; confirmation; jurisdiction; proceeding- Within three years after an
arbitral award falling under the Convention is made, any party to the arbitration may apply to any court having
jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration.

NY- United Nations Conference on International Commercial Arbitration (TWEN HANDOUT)

Article 1: Convention applies to the recognition and enforcement of arbitral awards made in the territory
of a State other than the State where the recognition and enforcement of such awards are sought, arising
out of differences between persons…
 Only applies to enforce an arbitration award in a different country than where the award was
render
 You cannot get enforcements on an award where no assets exist  if P has an award against D in
their state, they seek to enforce the award in a different country where the D has his or her assets
located.
 You want to enforce the homeland award so you have access to all of the levees necessary to
enforce the award on a domestic entity

Article II: Each contracting state shall recognize an agreement in writing to submit to arbitration all or
any difference which have arisen or which may arise between them in respect of a defined legal
relationship…

Article III: each contracting state shall recognize arbitral awards as binding and enforce them in
accordance with the rules of procedure of the territory where the award is relied upon, under the
conditions laid down in the flowing articles.

Article IV: Obtaining recognition and enforcement of award: 1) need a duly authenticated original award
or a duly certified copy; 2) the original agreement referred to in article II or a duly certified copy
thereof. (Needs to be translated if not in official language)

Article V: 1) Recognition of the award may be refused if: a) the agreement was made under incapacity,
or it was not valid under the law of the country to which it is being subjected, or fails under some way
under the law of the country where the award was made; or b) the party against whom the award is
invoked was not given proper notice of the arbitrator or proceedings or was unable to make case; or c)
the award is not within the terms originally submitted to the arbitrator; or d) the composition of the
arbitral authority or procedure was not in accordance with written agreement of the parties or
accordance with the law of the country where the arbitration took place; or e) The award has not yet
become binding on the parties or has been set aside or suspended by a competent authority of the
country in which that award was made.

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2) Recognition and enforcement can also be refused if the competent authority in the country where
enforcement is sought finds that: a) the subject matter is not capable of settlement by arbitration under
the law of that country; or b) the recognition or enforcement of that award would be contrary to public
policy.

Parsons & Whittemore v. RAKTA, 508 F.2d 969 (1974). (HANDOUT)

 FACTS: Plaintiffs, an American corporation, and RATKA, an Egyptian corporation, entered in a
contract for the construction and operation of a paper mill in Egypt.
o The contract provided for arbitration under the Rules of the International Chamber of Commerce
(“ICC Rules”). RACTA initiated arbitration proceedings claiming damages for breach of the
contract, and a final award was rendered in its favor. The award was confirmed by United States
federal district court.
 RULE: “…Convention’s public policy defense should be construed narrowly. Enforcement of foreign
arbitral awards may be denied on this basis only where enforcement would violate the forum state’s
most basic notions of morality and justice.” (p. 4)
o Failed to state a claim for several reasons:
 1) inability to produce one's witnesses before an arbitral tribunal is a risk inherent in an
agreement to submit to arbitration (By agreeing to submit disputes to arbitration, a party
relinquishes his courtroom rights)
 2) logistical problems of scheduling hearing dates convenient to parties, counsel and
arbitrators scattered about the globe argues against deviating from an initially mutually
agreeable time plan unless a scheduling change is truly unavoidable
 3) Finally, overseas cannot complain that the tribunal decided the case without
considering evidence critical to its defense and within only Mr. Nes' ability to produce. In
fact, the tribunal did have before it an affidavit by Mr. Nes

***Summary judgement***
Rule 56
After arbitration, it is the next way to escape trial. The argument that a party makes is that it is a waste of
time and money to go to trial. With everything that we know, that no reasonable jury would file a verdict
for a non-moving party.

Rule 56(b) - Time to file a summary judgement motion

Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for
summary judgement at any time until 30 days after the close of all discovery.

Standard for summary judgement

FRCP 56(a)
A party may move for summary judgement, identifying each claim or defense - or the party of each
claim or defense - on which summary judgement is sought. The court shall grant summary judgement if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgement as a matter of law. The court should state on the record the reasons for granting or denying
the motion.
Use the $500 loan example, genuine dispute to material fact could be a rebuttal to the check stub, then
returned for NSF.
Factual disputes go to the jury.
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Matter of law - IRAC analysis - take facts and apply a legal rule to those facts and analyze what the
outcome would be.

Rule 18 - you can enjoin every one of the claims.

A plaintiff can move for summary judgement on a defense if they want to take away an affirmative
defense.
Elements of a successful summary judgement motion
From Rule 56(a)
The moving party shows there is no genuine dispute as to any material facts, and
The moving party is entitled to judgement as a matter of law.

How factual positions supported on a motion for summary judgement

FRCP 56(c )
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the fact.

1. 12(b)(6) the adequacy of the claims

2. Pleadings are not proof
Plaintiff may win a 12(b)(6) motion buy lose a summary judgement motion
3. What can I use at trial to counter their affirmative defenses and defenses?

FRCP 56(c )(4)

Affidavits supporting summary judgement
An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
1. Personal knowledge (not 2nd hand)
2. Admissible in evidence
3. Affiant is competent to testify

The Supreme Court clarified the specific rules for summary judgement.

How can a defendant argue summary judgement is warranted?

1. Affirmatively showing through evidence that there is no dispute on material facts and that D
is entitled to judgement as a matter of law OR
2. Pointing out that P has failed to meet her burden of producing evidence supporting
allegations of material facts and that D is entitled to judgement as a matter of law.

If plaintiff moves for summary judgement, she would need to prove all her claims just like in trial and
have no dispute.

When in doubt, deny the summary judgement. There may or may not be factual information that the jury
needs to hear. What is dimly lit? what is on your knees or in a crouching posititon?
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***Summary judgement (cont.)***

FRCP 56(a) Standard for summary judgement
No disputed facts and there is no need for trial
FRCP 56(c )(4) - affidavits supporting summary judgement
Scott v. Harris
District and Appeals say that the facts alone should grant summary judgement, but there was a videotape
that disputed the drivers account. So there was a genuine dispute of facts.
Section 1983 - civil rights lawsuits
Police officers have qualified immunity. Was the officer's use of force reasonable or not? There are
disputed facts, so it's for a jury.
What is the difference between material fact and fact? Material fact is something that is relevant to the
case. A fact could be that his shoes are red, but that fact is irrelevant.

***The trier and the trial***

The judge is passive mostly before trial, responding mostly to motions, discovery, etc.

Most judges strive to be fair and impartial. Most times the cases judges hear are not hot button political
issues.
Pre-emptory challenge for judges

Mandatory recusal for federal judges

28 USC SS455(a)
Any justice…

Circumstances requiring recusal

28 USC SS455(b)

***Caperton***
Why is this a constitutional question? The US supreme court does not have the power to interpret the
West Virginia law which was decided by the final arbiter in West Virginia, you need to go with federal
law so the supreme court needs to hear it under due process.
DUE PROCESS VIOLATIONS
1. Direct financial benefit
2. Indirect financial benefit (towns benefit under his control)
3. The judge finds the lawyers in contempt then is the judge for the contempt, "no man can try
cases in which he has an interest in the outcome"

7th Amendment in suits at common law, where the vale in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and not fact tried by a jury, shall be otherwise reexamined in any
court of the United States, than according to the rules of the common law.
Not guaranteed, preserved. The right as it existed under the British common law in the 18th century.

XX. Summary Judgment

FRCP 56. Summary Judgment.

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(a) Motion for Summary Judgment or Partial Summary Judgment

 There is no genuine dispute as to the any material fact AND
 Movant is entitled to judgment as a matter of law
 (rule allows for summary judgment on particular claims or defenses when there are multiple
counts in the complaint OR can ask for all)

(e) Failing to Properly Support or Address a Fact.

What a party must show for summary judgment:

 show that the other party has not met their burden of production (after discovery)
 directly engage in the evidence – come forth with your own evidence to disprove the other
party’s claim

Burden of Production: requires a party to produce, to find and present evidence in the first place.
o A party with the burden of production can lose even before trial if she fails to
demonstrate, among the facts uncovered by investigation and discovery, sufficient
evidence to allow a rational trier of fact to find in her favor
 Where evidence is evenly divided, P has not met their obligation of burden of proof and so
directed verdict would be appropriate.
 IF PLAINTIFF is moving for summary judgment – P has burden of proof to show that through
undisputed evidence that there is enough evidence for a court to find that she should receive
judgment (D could dispute this by witnesses and other evidence)

Celotex Corp. v. Catrett, 477 U.S. 317 (1986). (585)

 FACTS: Respondent brought a negligence, breach of warranty, and strict liability lawsuit against 15
named companies including the Celotex Corp. (the Petitioner), claiming that the death of her husband
was due to his exposure to products containing asbestos manufactured or distributed by the companies.
o failed to make a showing of any evidence to support an issue of triable fact, of which he or she
has the burden of proving at trial (fail to identify any witnesses, etc.)
 RULES: A party moving for summary judgment does not necessarily bear the burden of supplying
evidence showing the absence of a genuine dispute regarding a material fact. The moving party merely
bears the burden of informing the court of the basis for its motion. The moving party may show the
absence of evidence supporting the nonmoving party’s case
o “The moving party is “entitled to judgment as a matter of law” because the nonmoving party has
failed to make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof.” (p. 585)

Bias v. Advantage International, Inc., 905 F.2d 1558 (1990). (591)

 FACTS: Basketball star Bias entered into a representation agreement with defendant, but died of a cocaine
overdose two days after being drafted by the Boston Celtics. Bias’s estate (plaintiff) sued Advantage.
 Claim was that Advantage had failed to obtain the one-million-dollar life insurance policy Bias
and his parents requested and that, relying on Advantage to obtain this policy, they had forgone
purchasing a policy themselves.
 RULE: Rule 56(c) provides for summary judgment where the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

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o Summary judgment is appropriate, no matter which party is the moving party, where a party fails
to make a showing sufficient to establish the existence of an element essential to that party’s case
and on which that party will bear the burden of proof at trial.
o Plaintiff did not present sufficient evidence to rebut Defendant’s proof that Bias was a cocaine
user

The word "preserved" does not mean guaranteed, it means that at the time the law (1791) that this was
enacted, those trials that are eligible for a jury are preserved as so.
Disgorging was part of equity court.
There was never a right to a jury trial for trump in New York, because he was what you would originally
classify as an equity court.

New causes of action occur all the time from judge's decisions, or just as frequently, the legislature
creates causes of action through the laws they make.

Page 450 Terry outlines a 2 step analysis

Situations that did not exist in 1791 (labor unions).
You have both equitable and legal courts.
1. Is the new cause of action close to an old one? Can you draw analogies?
2. Look at the remedy, what is the remedy that the plaintiff is seeking, if its money then it’s a
jury trial, if the plaintiff wants an equitable remedy then it's no jury.

The first thing that should happen is the claim at law should go to the jury, if the jury finds all the facts
necessary to satisfy the claim at law and the facts also support the equitable claim then the judge enters
it. If additional facts needed for the equitable claim, there will be a 2nd more brief trial to get the facts
out for the claim.
Equitable claims have to be decided by a judge.

***The Trial***
Findings of fact and conclusion of law in bench trials
FRCP 52(a)(1)
In an action tried on the facts without a jury or with an advisory jury, the court must find the facts
specially and state its conclusions of law separately. The findings and conclusions may be stated on the
record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by
the court.
(Specially - for a matter or purpose)

Through the rules of evidence, the judge tries to minimize prejudicial evidence
Secondly, the judge gives instructions to the jury that in theory cabinets the jury.

Jury Instructions
FRCP 51
The drafting of jury instructions is a collaborative process of the judge, the lawyers, and precedent
(instructions that have withstood appeal for general use). 3 panel Judge court to defend your jury
instructions for appeal.

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Judgements as a matter of law

FRCP Rule 50
Before summary judgement, there was directed verdict where the judge says to the jury you will vote
this way
***Conte v. Emmons***
Criminal investigation regarding the non-distributing of the magazines that were never delivered. Conte
was the media guy, he went bankrupt and then sued for tortious interference saying that the investigation
caused his business to fail.
How is this case in federal court
No diversity
No federal question
This was originally a claim under section 1983 (civil rights) state officials violated the plaintiffs rights
under the constitution.
Haddle.
It got to federal jurisdiction from supplemental jurisdiction. (the claim came from the same nucleases of
operative fact). Because it was a 1983 claim, it had other things that were satisfied but the state law
claim was all that remained.
1367 supplemental jurisdiction

Sue responded
Renewed motion for judgement as a matter of law
FRCP 50(b)
Are the arguments for 50(a) and 50(b) substantively different
50(a) is no reasonable jury would find this set of facts

50(b) this jury found for the plaintiff when all the evidence went to the defendant. The judge said no to
the 50(a) because it's better to give it to the jury if you are not sure because if you grant 50(a) then your
name is on the appeal, if you deny then the jury is on the appeal (harder to appeal). After saying no to
the 50(a), the jury gets it totally wrong then the judge can reverse them under 50(b).
No judge would grant a 50(b) motion unless they thought the jury seriously got it wildly and
ridiculously wrong.

50(a) & (b) deal with the facts and the application of the facts to the law.
Jury instructions would be a separate motion.
How is 50(a) different than summary judgement, summary happens before trial. Summary judgement is
everything from discovery, 50(a) is at trial. At trial you decide
Say the judge has a question of creditability and denies the summary judgement. At trial then the witness
creditability question is answered and you can use it for 50(b)
Some evidence that is there for summary judgement will not make it to trial.

***Conte***
Remember that a 50(a) motion has a jury there for the whole trial and you are asking the judge to not
give it to the jruy or direct them to the verdict.
What is the standard for ruling a 50(a)?
For a 50(a) or 50(b) motion the standard is "a complete absence of evidence supporting the verdict such
that they jury's finding could only have been the result of sheer surmise and conjecture."

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XXI. Right to a Civil Jury Trial

Seventh Amendment- In Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court
of the United States, than according to the rules of the common law.

FRCP 38. Right to a Jury Trial; Demand

(a) Right of trial by jury as declared by the Seventh Amendment to the Constitution

(b) Demand. A party may demand jury trial on any issue protected by the Constitution by:
(1) Serving written demand on other party
(2) AND, filing the demand in accordance with Rule 5(d)

(c) Specifying Issues. In its demand, a party may specify which issues it wants to be tried by jury,
otherwise assumed for all issues. If party specifics only some issues, any other party has 14 days to serve
demand for a jury trial on any other or all factual issues triable by jury.

(d) Waiver. A party waives a jury trial unless its demand is properly served and filed. Once demand is
made, it may only be withdrawn if both parties consent.

FRCP 39. Trial by Jury or by the Court

BY JURY: (a) When a Demand is Made. When a jury trial has been demanded under Rule 38, the action
must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury
unless:
(1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record;
or
(2) the court, on motion or on its own, finds that on some or all of those issues there is no federal
right to a jury trial.

BY COURT/JUDGE: (b) When No Demand Is Made. Issues on which a jury trial is not properly
demanded are to be tried by the court. Buy the court may, on motion, order a jury trial on any issue for
which a jury might have been demanded.

FRCP 16(b)- Scheduling Conference

FRCP 16(e)- Final Pretrial Conference/Pretrial Orders
o Clarify issues that will be in trial / formulate a trial plan; held as close to start of trial as possible
o Court may modify order issued after this only to prevent manifest injustice
FRCP 51- Propose jury instructions

Pre-Trial Conference
McKey v. Fairbairn, 345 F.2d 739 (D.D. Cir. 1965). (599)
 FACTS: After Agnes Littlejohn (Ms. Littlejohn) slipped on a wet spot on the floor of her apartment, she
sued the owner of the apartment.
o The district judge issued a directed verdict against Ms. Littlejohn rather than allow her to amend
the pretrial order, which would have changed her theory of the case after pretrial order (16e)

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 RULE: “…the trial judge in this case did not abuse his “justifiably large discretion” in refusing to permit
appellant to change her theory during the trial.” (p. 600)
o DISSENT: “FRCP 16 provides that the order controls the subsequent course of the action [and
that “the court may modify the order issued after a final pretrial conference only to prevent
manifest injustice”].” (p. 600) (i.e. court should have brought it up).

Divided Authority in Civil Litigation

Reid v. San Pedro, Los Angeles & Salt Lake Railroad, 39 Utah 617 (1911). (603)
 FACTS: Train hit cattle. Facts show cows could have gone through open gate right where by accident
occurred (plaintiff’s fault) or through a hole in fence, a mile away (defendant’s fault)
 RULE: “It is familiar rule that where the undisputed evidence of the plaintiff, from which the existence
of an essential fact is sought to be inferred, points with equal force to two things, one of which renders
the D liable and the other not, the plaintiff must fail.” (p. 605)
o “So in this case, in order to entitle respondent to recover, it was essential for her to show by a
preponderance of the evidence that the cow entered upon the right of way through the broken
down fence. R failed to do this.” (p. 605)
o “The plaintiff held the affirmative and the burden was on her to establish the liability of the
defendant by a preponderance of the evidence.” (p. 605)

Judge vs. Jury (examples on 611-612)

Law Courts Equities

Jury Judge
 Value exceeds $20 (seeking damages)  Remedies such as:
 Common law issues:  Injunctions
 Trespass  Specific performance
 Debt (money owed)  Rescission
 Covenant (breaches of contract)  Class actions
 Trover and replevin  Bills of peace
 Assumpsit (recover for informal  Bills of interpleader
contracts)  Reformation of contract
 Conversion (recovering value)  Ejecting from property
 Restoring property (from replevin)

Challenges to Jurors for Cause

 Lawyers required to explain their basis for thinking the juror is unsuitable for case
 No statute defines standards for this (but usually for prejudice or bias)- is self evident why we should
have challenge for cause
 28 USC section 1861
o No citizen shall be excluded from service as juror in district courts in US and international trade
courts on account of race, color, religion, sex, national origin, or economic status
 Section 1865(b)
o excuses certain groups from jury duty- not citizen of US 18 years-old who has resided for 1 year,
unable to read, write, speak English, mentally/physically infirm, convicted of crime punishable
by imprisonment for more than 1 year and civil rights not restored (judge also has discretion)

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Thompson v. Altheimer & Gray, 248 F.3d 621 (7th Cir. 2003). (619)
 FACTS: Plaintiff brought action against employer alleging racial discrimination
o While the prospective jurors were being interviewed, one of them named Leiter expressed doubts
as to her qualification, stating that as employer and owner of a business, she would find her
experience might cloud her judgment in the case, including her belief that some people sue their
employer just because they haven’t gotten a promotion or raise or some other benefit.
o Plaintiff says should have been struck for case
 RULES: “The question in this case was not whether Leiter’s belief that some claims against employers
are spurious was true or false (it was, as we have noted, true), but whether this belief would somehow
impede her in giving due weight to the evidence and following the judge’s instructions. That question
was not adequately explored…” (p. 621)
o “…should have followed up by asking her, as he later asked the jury en masse, whether she
would follow his instruction on the law and suspend judgment until she had heard all the
evidence...” (p. 621)
o “had the judge pushed Leiter and had she finally given unequivocal assurances that he deemed
credible, his ruling could not be disturbed. But he failed to do that.” (p. 621)
 DISSENT: “…unequivocal assurances of impartiality that are required to assure an unbiased trier of
fact… The one issue that I regard as more complex concerns a plaintiff who does not exhaust her
peremptory challenges. That is not Thompson’s situation, but it occasionally happens that not all
peremptories are used.” (p. 621-622

Peremptory Challenges to Jurors

 Lawyers need not supply a reason but should not be a discriminatory one (race, gender)
 Allows striking of juror for any reason or no reason at all
 Federal courts give 3 peremptory challenges to each side
 Challenges without cause- do not need to give particular reason
 In civil cases, each party gets 3 (28 USC 1870)
 Then came discriminatory grounds/cases
o Batson v. Kentucky- no racially-based challenges to jurors in criminal cases
o Edmonson v. Leesville Concrete Co- Batson rule extended to civil cases
o JEB v. Alabama- no gender based challenges in civil cases

Challenges to Judges
28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge
 (A) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned. (RECUSAL)
 (B) He shall also disqualify himself in the following circumstances:
o 1. personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
o 2. Served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law
served during such association as a lawyer concerning the matter, or the judge or such lawyer has
been a material witness concerning it;
o 3. Where he has served in governmental employment and in such capacity participated as counsel,
adviser or material witness concerning the proceeding or expressed an opinion concerning the merits
of the particular case in controversy;
o 4. Financial interest in proceeding, or any other interest that could be substantially affected by the
outcome;
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o 5. He or his spouse, or a person within the third degree of relationship to either of them, or the
spouse of such a person:
o i. Is a party to the proceeding, or an officer, director, or trustee of a party;
o ii. Is acting as a lawyer in the proceeding;
o iii. Is known by the judge to have an interest that could be substantially affected by the
outcome of the proceeding;
o iv. Is to the judge’s knowledge likely to be a material witness in the proceeding.

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). (628)
 FACTS: A judge in a state court was to hear a case in which the defendant had been ordered to pay $50
million. He refused to recuse himself from the bench though the person involved had backed his election
to the bench with a donation of $3 million. The plaintiff alleged a breach of justice.
 RULE: “In defining these standards the Court has asked whether, “under a realistic appraisal of
psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately
implemented.” (p. 634)
o Risk of bias exists where a judge has a "direct, personal, substantial, pecuniary interest," as
Justice Benjamin did

***Judgement as a matter of law***

FRCP Rule 50(a) and (b)
After discovery or after jury
Nonmoving party would ask for judgement.
The second clause of the second amendment - no findings of fact by a jury should be questioned unless
it’s a matter of law.

In Conte v. Emmons the appeals court reversed the fact finding of the trial court which is incredibly
rare.
"The movant should be able to show a complete lack of evidence"

The appellant is challenging the district court's ruling as a matter of law.

The supreme court says there is a jurisdictional problem, you have to renew the motion using 50(b).
Why don’t you just appeal the case rather than use 50(b)?
50(b) is necessary for jurisdiction for the appellate court.
If you file a 50(b) motion, the original judge is the one that makes the decision.

If there is no 50(a) or (b) and there is a jury, can you appeal the verdict on factual grounds? Yes but very
rarely. Discussed in next class.

***FRCP Rule 59***

(a) In General.
(1) Grounds for a new trial. The court may, on motion, grant a new trial on all or some of the issues -
and to any party - as follows:
(a) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law
in federal court; or
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(b) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in
equity in federal court.

(2) Further action after a nonjury trial. After a nonjury trial, the court may, on motion for a new trial,
open the judgement if one has been entered, take additional testimony, amend findings of fact and
conclusions of law or make new ones, and direct the entry of a new judgement.
(b) Time to file a motion for a new trial. A motion for a new trial must be filed no later than 28 days
after the entry of judgement.

***Lind v. Schenley Industries***

What is the standard for the district court to use to decide whether to grant a 50(a)?
No reasonable jury would come to that decision.
Standard for trial judge - Moore says that should view the verdict, the jury reached a seriously erroneous
result and thus it is the duty of the judge to order a new trial or reverse. Seriously erroneous is a high
standard.
Standard for appellate judge - to look at the law and see if there was a miscarriage of justice. If it’s a
very complicated part of the law then its easier for the judge to use the 50(b) - this case was not such a
case.

The district court granted the 50(b) and the motion for a new trial both because on appeal the appellate
court could deny the 50(b) but grant the motion for a new trial.

***Peterson v. Wilson***
The judge actually talked to the jury and asked their reasoning to justify his allowance for 50(b) and new
trial

If we decide to have juries, you have to take the good with the bad.

XXII. Controlling Findings of Fact – Procedures designed to prevent wrong verdicts

1. Instruction (FRCP 51) and Comment

2. Excluding Improper Influence

3. Size and Decision Rules

4.Judgement as a Matter of Law (JNOV)/ Directed Verdict

Burden of Persuasion: defines the extent to which a trier of fact must be convinced of some proposition
in order to render a verdict for the party who bears it. “Preponderance of evidence,” “more probable than
not,” or “more likely than not.” Level of proof.

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FRCP 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial…
 Have to wait until non-moving party has been fully heard to move for dismissal, before case submitted
to jury
 Has to do with burden of proof/persuasion

Pennsylvania Railroad v. Chamberlain, 288 U.S. 333 (1933). (649)

 FACTS: Man fell from train at work when trying to separate. The only witness for the man testified that
he did not actually see a collision. Three employees, riding the nine-car string, testified that no such
collision occurred
 RULE: A defendant is entitled to a directed verdict in a case where the proven facts give equal support
to each of two inconsistent inferences, where the plaintiff has the burden of proof.
o Where there is a direct conflict of testimony upon a matter of fact, the question must be left to
the jury to determine, without regard to the number of witnesses on either side.

XXIII. Motion for a New Trial and Reexamination of a Jury Verdict

Justification for New Trial

 Flawed Procedure –Lawyer makes impermissible argument to jury, error in admitting evidence or jury
instruction, juror misbehavior during trial
 Flawed Verdicts – Judge may conclude result of trial is unjustifiable; If jury misunderstood or ignored
instructions, if verdict is against great weight of evidence
o does not make a winner out of a loser; begins contest again

FRCP 59. New Trial; Altering or Amending a Judgment

(a) In General. (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of
the issues – and to any party – as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action
at law in federal court; or
(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a
suit in equity in federal court.
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.
Provisional new trial motion  if a judge grants a motion for JNOV (50b) and that is reversed on
appeal, without a new trial motion, that just reinstates the jury verdict BUT if judge has serious
doubts about the way the verdict was reached and wants to ensure that the verdict does not have
the final rule, the court can sustain motion for new trial.

Judge v. Jury Decision Making

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Lind v. Schenley Ind., 278 F/2d 79 (3d Cir. 1960). (658)

 FACTS: Plaintiff, a sales manager for Defendant, a liquor company, alleged that Defendant had orally
promised him an increase in pay and a share of commission, but then breached that promise (secretary was
witness for P)
o Defendant’s agents denied making the promises. The jury found a contract and awarded
damages.
o Defendant moved for judgment notwithstanding the verdict and a new trial, which the trial judge
granted evoking FRCP 59
 RULE: “…abstain from interfering with the verdict unless it is quite clear that the jury has reached a
seriously erroneous result.” (p. 659)
o “New trials granted because (1) a jury verdict is against the weight of the evidence may be
sharply distinguished from (2) new trials ordered for other reasons: for example, evidence
improperly admitted, prejudicial statements by counsel, an improper charge to the jury or newly
discovered evidence.” (p. 660)
 “We must conclude that the jury did believe this testimony and that the court below
substituted its judgment for that of the jury on this issue and thereby abused its legal
discretion.” (p. 661)- subject matter was simple and easily comprehended

Peterson v. Wilson, 141 F.3d 573 (5th Cir. 1998). (665)

 FACTS: Peterson (Plaintiff), filed suit in district court after he was fired as grant director at Texan
Southern University (TSU).
o The jury found for Plaintiff. Four months later, the district granted a new trial, not for
insufficient evidence, but instead based on comments the jurors made to the court after returning
the verdict
o The court concluded that the jury had “completely disregarded the Court’s instructions.”
 RULE: Courts cannot grant a new trial simply because the court would have come to a different
conclusion than the jury did. FRE Rule 606(b) tightly controls impeachment of jury verdicts.
o Receiving testimony from the jurors after they have returned their verdict, for the purpose of
ascertaining that the jury misunderstood its instructions, is absolutely prohibited by FRE Rule
606(b).

XXIV. Filing Appeals & Final Judgment Rule

Final Judgment

Once you have a final judgment, you can appeal on claims, no issues from district court.

Title 28 §1291. Final Decisions of District Courts (FINAL JUDGMENT RULE)

The Courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of
the U.S., except where a direct review may be had in the Supreme Court.

Title 28 §1292. Interlocutory Decisions. (EXCEPTIONS)

Appeals that occur before final judgment (very disfavored). The D.C. and appellate court must give
permission for interlocutory appeal. The appeal of an issue that does not resolve the depositions of the
case, but is essential to a determination of the parties’ legal rights.
 must be a controlling question of law
 must be substantial ground for difference of opinion
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 Immediate appeal may immediately advance the ultimate termination of litigation

FRCP 54. Judgment; Costs

(a) Definition; Form

(b) Judgment on Multiple Claims or Involving Multiple Parties

When an action presents more than one claim for relief, or when multiple parties are involved,
the court may direct entry of a final judgment as to one or more, but fewer than all, claims or
parties only if the court expressly determines that there is no just reason for delay. Otherwise,
any order or other decision, that adjudicates fewer than all the claims or the rights and liability of
fewer than all the parties does not end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment adjudicating all the claims and all the parties’
rights and liabilities.

(c) Demand for Judgment; Relief to Be Granted

(d) Costs; Attorney’s Fees

Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737 (1976). (685)
 FACTS: The Respondents claimed that the Petitioner’s employee insurance benefits and maternity leave
regulations discriminated against women in violation of the Act.
o The Respondents moved for partial summary judgment only on the issue of liability and the
United States District Court of Western Pennsylvania ruled in favor of the Respondents.
o Here was one claim and request for multiple remedies
 RULE: “…[D.C.] nonetheless left unresolved respondent’s requests for an injunction, for compensatory
and exemplary damages, and for attorneys’ fees. It finally disposed of none of respondents’ prayers for
relief.” (p. 686)
o “Rule 54(b) does not apply to a single claim action… it is limited expressly to multiple claims
actions in which ‘one or more but less than all’ of the multiple claims have been finally decided
and are found otherwise to be read for appeal.”
 “Here, however, respondents set forth but a single claim… They prayed for several
different types of relief, but their complaint advanced a single legal theory which was
applied to only one set of facts.” (p. 687)
o “If the D.C. had granted injunctive relief but had not ruled on respondent’s other requests for
relief, this interlocutory order would have been appealable under §1292(a)(1).” (p. 687)

Lauro Lines v. Chasser, 490 U.S. 495 (1989). (693) (exceptions to final judgment rule)
 FACTS: Chasser and others (Respondents), represent the estates of persons who were passengers aboard
the cruise ship owned by Petitioner when it was hijacked by terrorists.
o Petitioner moved to dismiss the action, citing a forum clause selection (to renounce right to sue
anywhere except Italy) printed on each passenger ticket.
o DC denied motion to dismiss, appellate ct. dismissed Petitioner’s appeal on the ground that the
district court’s order was interlocutory and therefore not appealable under Section:1291.
 Holding: An order denying a motion to dismiss a civil action on the ground that a contractual forum
selection clause requires that such suit be brought in another jurisdiction is not appealable under the final
judgment rule, because it is not a decision on the merits that ends the litigation.

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 RULE: “Narrow exception to the normal application of the final judgment rule [that] has come to be
known as the collateral order doctrine.
o That exception to the final judgment rule is for a “small class” of prejudgment order that “finally
determine claims of right separable from, and collateral to, rights asserted in the action, [and that
are] too important to be denied review and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is adjudicated.” (p. 694)
o Cohen exception, must satisfy at least three conditions:
 1) must conclusively determine the dispute question
 2) must resolve an important issue completely separate from the merits of the action
 3) must be effectively unreviewable on appeal from a final judgment.
 This only occurs where the order at issue involves an asserted right the legal and
practical value of which would be destroyed if it were not vindicated before trial
 *District courts order fails to satisfy this part, so don’t need to look at 1st 2
 (i.e. Immunity where on is arguing they shouldn’t be sued at all, this is
unreviewable because to appeal this after trial, there is no point,
government official has already been thru litigation).
*If you find yourself on the losing side of an order, and its not a final judgment, and you are trying to get court
to certify an interlocutory appeal and collateral doctrine does not apply, as a last resort, you can disobey, get
contempt, go to jail and automatically get appeal

House Keeping:

· Finishing the Lauro Lines Case from last class

· Review Session Next Thursday Dec. 7th at 6:00pm

· Outlines are allowed (open book exam). Make sure that your outline is user friendly. Don’t weight it down.
Make it easy to find information immediately. Every issue you come across can be put into IRAC format.
Outline can have bullet points and then an expansion after in case you need more detail. However, the bullets
may suffice.

· Prepare as if this is a closed exam will help you reference things quickly.

Finishing Appeals from Tuesday:

· The final judgment rule will cover most situations.

· Lauro Lines s.r.l. V. Chasser (Collateral Order Doc)

o P was a passenger on italian cruise ship that got hijacked. P was killed. P sued D. D moved to dismiss bc of a
forum selection clause on tickets saying all cases needed to be litigated in Italy. Lower ct denied motion. D
appealed

o Ct held that the claim that D need be only sued in Italy was reviewable at a later stage.
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Scope of Appellate Review FRCP 52 28 USC §2111

· Arguments before a ct appeal are review of what the dist ct did, not a review of the record

· An issue of law (motions, JMOL, etc) → De Novo Review (Ct of App can consider issue w/o deference to
trial ct findings)

· An issue of fact → Ct of App grant more deference to Trial Ct findings. Reversal only if decision was “clearly
erroneous.” [when although there is evidence to support it, the reviewing ct on the entire evidence, is left with a
definite and firm conviction that a mistake had been committed.]

o Where there are 2 permissible views of the evidence, the fact finder’s choice between them cannot be clearly
erroneous.

· FRCP 52 (a) Findings and Conclusions by the Court

o (1) In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the
facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the
record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the
court. Judgment must be entered under Rule 58.

o (2) For an Interlocutory Injunction. In granting or refusing an interlocutory injunction, the court must
similarly state the findings and conclusions that support its action.

o (3) For a Motion. The court is not required to state findings or conclusions when ruling on a motion under
Rule 12 or 56 or, unless these rules provide otherwise, on any other motion.

o (5) Questioning the Evidentiary Support. A party may later question the sufficiency of the evidence
supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or
moved for partial findings.

o (6) Setting Aside the Findings. Findings of fact, whether based on oral or other evidence, must not be set aside
unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge
the witnesses' credibility.

· Anderson v. Bessemer City

o P sued for discrimination and won below. Ct of App reversed bc it found the info to not weigh her way. SC
said it was wrong for ct of app to do that.

o The error of the Ct of App was it failed to give due regard to the ability of the Dist Ct to interpret and discern
the credibility of oral testimony. The Ct of App rested its rejection of Dist Ct’s findings on its own
interpretation of the testimony by a party/witness.

o Our task - and the task of Cts of App more generally - is to determine whether the trial judge’s conclusions are
clearly erroneous. (not whether the underlying facts on their own would merit a different conclusion)

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· Harmless Error

o 28 USC 2111. - “On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment
after an examination of the record without regard to errors or defects which do not affect the substantial rights
of the parties.”

o Fed cts ar forbidden to reverse for “errors or defects that do not affect the substantial rights of the parties.

o Think: would someone who had lost below lose anyways even if the dist ct acted in a way that the appellate
says the should have?

o If yes → harmless error → Ct of app grants no reversal

o If no → not a harmless error → Ct of app may grants reversal upon review

· Van Zee v. Hanson

o Boy who wanted to be enlisted in army argued against 12b6 being converted into summary judgment motion
bc he couldn’t present his case enough.

o In 12b6 you usually don't consider matters beyond the pleadings. P says ct didnt let him respond in the way he
would to a summary judgment motion. 8th circuit agrees that this was a mistake that the dist ct made (there
were materials outside the pleadings that the ct considers and the ct should have let him response). Yet circuit ct
still affirms dist cts dismissal bc the mistake that the dist ct made was a harmless error since he did not even
have any rights that were violated bc he signed a form allowing recruiter to obtain records and this waived his
right to privacy. Even if P responded to the motion, he would’ve lost.

House Keeping:

· Finishing the Lauro Lines Case from last class

· Review Session Next Thursday Dec. 7th at 6:00pm

· Outlines are allowed (open book exam). Make sure that your outline is user friendly. Don’t weight it down.
Make it easy to find information immediately. Every issue you come across can be put into IRAC format.
Outline can have bullet points and then an expansion after in case you need more detail. However, the bullets
may suffice.

· Prepare as if this is a closed exam will help you reference things quickly.

Finishing Appeals from Tuesday:

· The final judgment rule will cover most situations.

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· Lauro Lines s.r.l. V. Chasser (Collateral Order Doc)

o P was a passenger on italian cruise ship that got hijacked. P was killed. P sued D. D moved to dismiss bc of a
forum selection clause on tickets saying all cases needed to be litigated in Italy. Lower ct denied motion. D
appealed

o Ct held that the claim that D need be only sued in Italy was reviewable at a later stage.

Scope of Appellate Review FRCP 52 28 USC §2111

· Arguments before a ct appeal are review of what the dist ct did, not a review of the record

· An issue of law (motions, JMOL, etc) → De Novo Review (Ct of App can consider issue w/o deference to
trial ct findings)

· An issue of fact → Ct of App grant more deference to Trial Ct findings. Reversal only if decision was “clearly
erroneous.” [when although there is evidence to support it, the reviewing ct on the entire evidence, is left with a
definite and firm conviction that a mistake had been committed.]

o Where there are 2 permissible views of the evidence, the fact finder’s choice between them cannot be clearly
erroneous.

· FRCP 52 (a) Findings and Conclusions by the Court

o (1) In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the
facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the
record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the
court. Judgment must be entered under Rule 58.

o (2) For an Interlocutory Injunction. In granting or refusing an interlocutory injunction, the court must
similarly state the findings and conclusions that support its action.

o (3) For a Motion. The court is not required to state findings or conclusions when ruling on a motion under
Rule 12 or 56 or, unless these rules provide otherwise, on any other motion.

o (5) Questioning the Evidentiary Support. A party may later question the sufficiency of the evidence
supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or
moved for partial findings.

o (6) Setting Aside the Findings. Findings of fact, whether based on oral or other evidence, must not be set aside
unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge
the witnesses' credibility.

· Anderson v. Bessemer City

o P sued for discrimination and won below. Ct of App reversed bc it found the info to not weigh her way. SC
said it was wrong for ct of app to do that.

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o The error of the Ct of App was it failed to give due regard to the ability of the Dist Ct to interpret and discern
the credibility of oral testimony. The Ct of App rested its rejection of Dist Ct’s findings on its own
interpretation of the testimony by a party/witness.

o Our task - and the task of Cts of App more generally - is to determine whether the trial judge’s conclusions are
clearly erroneous. (not whether the underlying facts on their own would merit a different conclusion)

· Harmless Error

o 28 USC 2111. - “On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment
after an examination of the record without regard to errors or defects which do not affect the substantial rights
of the parties.”

o Fed cts ar forbidden to reverse for “errors or defects that do not affect the substantial rights of the parties.

o Think: would someone who had lost below lose anyways even if the dist ct acted in a way that the appellate
says the should have?

o If yes → harmless error → Ct of app grants no reversal

o If no → not a harmless error → Ct of app may grants reversal upon review

· Van Zee v. Hanson

o Boy who wanted to be enlisted in army argued against 12b6 being converted into summary judgment motion
bc he couldn’t present his case enough.

o In 12b6 you usually don't consider matters beyond the pleadings. P says ct didnt let him respond in the way he
would to a summary judgment motion. 8th circuit agrees that this was a mistake that the dist ct made (there
were materials outside the pleadings that the ct considers and the ct should have let him response). Yet circuit ct
still affirms dist cts dismissal bc the mistake that the dist ct made was a harmless error since he did not even
have any rights that were violated bc he signed a form allowing recruiter to obtain records and this waived his
right to privacy. Even if P responded to the motion, he would’ve lost.

XXV. Scope of Appellate Review

FRCP 52. Findings by the Court; Judgment on Partial Findings

Law and Fact (finding must be clearly erroneous to reverse)

Anderson v. Bessemer City, 470 U.S. 564 (1985). (703)

 FACTS: Petitioner filed an action under Title VII of Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et
seq., alleging that respondent had discriminated against her on the basis of gender.
o The lower appellate ct. reversed the district court's finding of discrimination on the ground that it
found three of the district court's findings were clearly erroneous
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 RULE: A district court’s finding of discriminatory intent in an action brought under the Act may be
overturned on appeal only if it is clearly erroneous.
o “…finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” (p. 705)
o “D.C. findings regarding the bias of the male committee members were not clearly erroneous
leads us to conclude that the court’s finding that petitioner was discriminated against on account
of her sex was also not clearly erroneous…” (p. 707)
o When there are two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.

28 USC 2111. Harmless Error

On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an
examination of the record without regard to errors or defects which do not affect the substantial rights of
parties.

Harmless Error
Harnden v. Jayco, Inc., 496 F.3d 579 (6th Cir. 2007). (710)
 FACTS: Plaintiff appeals the district court’s order granting summary judgment to defendant Jayco as to
Harnden’s claims based on alleged defects in a Jayco-manufactured RV
 A report that was not in the form of an affidavit or sworn statement as required under 56(e),
detailing a series of tests performed by Jayco employee was submitted along with Jayco’s motion
for Summary Judgment in which Zonker ultimately concluded that in his expert opinion, the RV
was fine except for minor leaks were not a substantial defect and relatively inexpensive
 RULE: Under Rule 61, such error may be considered harmless if it “do[es] not affect any party’s
substantial rights”]
 Sending case back down will just result in affidavit being re-submitted in admissible form and
the granting of summary judgment again

FRCP 56(a)(6)
o Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous

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