Civ Pro Outline

Professor Mann
Fall 2023 Midterm

C1: Introduction to Civil Procedure and Due Process

Rule 1- establishes 3 pillars (speedy, just, cheap)
CP important bc shapes claims, creates stability, fairness, and protects constitutional rights.
Advisory Committee -> Standing committee->Judicial Conference (SCOTUS Chief Justice,
District judges, chief circuit court judges, chief of international trade)->SCOTUS-> Congress
Process of making new rules comes from Title 28 of the US Code
-CP protected by 14th and 15th amendments, due process clause. 14th amendment says never
be deprived of life, liberty, property without due process.
-SCOTUS can prescribe rules if they don’t affect rights
-7th amendment provides power between judge and jury
Types of Relief
-declaratory (ruling unconstitutional), injunction (order to stop behavior)
-DP is triggered by possessing an interest, says no state will deprive person of life, liberty, or
property without due process of law.
-doesn’t matter chance of success
-contracts don’t waive legal rights
-state heavily involved
Stephen M. Subrin et al., An Introduction to Civil Procedure, in Civil Procedure: Doctrine,
Practice, and Context 1-17 (6th ed., Aspen 2020)
Matthews v. Eldridge, 424 U.S. 319 (1976) (excerpt): SCOTUS hearing disability benefits
case. Lower courts ruled for E. E didn’t receive hearing before benefits terminated. He argues
unconstitutional based on due process 14th amendment. SCOTUS rules no hearing required.
Appeal process is enough, hearing wouldn’t have changed medical records, would create more
admin work than the benefits bc it’s highly dependent on facts. Makes the argument that E can
get welfare instead and disability benefit isn’t a dire need.

Formed 3 factor test for DP cases:

Strength of interest and cost of being w/o it
Gov’t interest and admin process
Error risk (could it be reduced) and would the change make a difference?

Fuentes v. Shevin, 407 U.S. 67 (1972) (excerpt)

Plaintiff wants stove, money, declaratory injunctive relief (she wants to keep stove during the
proceedings), declaratory and injunctive relief against prejudgment replevin.
Issue: are replevin statutes constitutional under 14 amendment?
Ruling- SCOTUS ruled seizing property without hearing allowed for deprivation of property w/o
due process by being denied right to stake a claim. Issue isn’t value but just the fact it was
taken. Doesn’t have to be full ownership to trigger due process. The probabilty of winning
doesn’t matter. Contracts cannot waive constitutional rights. Constitutional rights are activated
by state action, not private.
*Qui Bono*
-Fuentes, plaintiffs, Just - yes. Speedy - no. Cheap - no.
Why weren’t procedures enough? Bond (self-interest was involved), counterbond (after
seizure and was 2x value of stove) 3 day wait (still taken without DP)
-Dissent: what about seller’s interest and property rights? creditor unlikely to bring false claims
as not in economic best interest. expensive decision. can easily be avoided by a change to the
contract
Optional Reading: Orin S. Kerr, How to Read a Judicial Opinion: A Guide for New Law
Students, Geo. Wash. U. L. Sch. (2005)
Class 2: Introduction and Due Process (cont.)
Lassiter v. Dept. of Soc. Servs., 452 U.S. 18 (1981) (excerpt)
Impact of Lassiter
-NC and many other states amended statute to make representation required for termination of
parental rights
-Some states cited their state constitution as requiring representation for parental termination
hearings
-State constitutions can provide more (but not less) protections than US Constitution
-SCOTUS has ruled there is no federal requirement for representation if being charged for
contempt for failure to pay child support (even if there is a significant barrier)

Fed. R. Civ. P. 3
States that the first step in action is filing a complaint
Rule 4(a)-(c)
Details contents of a summons: form that informs of a lawsuit and a date to appear in court.
Summons comes after filing a complaint. Clerk signs/seals. Plaintiff is responsible for having
complaint and summons delivered in speecfic time - MA it is 90 days after complaint filed or else
it will be dismissed.
Serving: plaintiff can request US marshal, deputy marshall, or someone from court to serve. If
someone doesn’t have resources to file summons, sometimes the court will if they are allowed.

, 8(a), (d)-(e)
Rule 8: Commencing an Action
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless
the court already has jurisdiction and the
claim needs no new jurisdictional support;
(2) a 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.
9(b)
Pleading special matters: burden falls on the plaintiff for proving fraud/mistake. Show time,
place, events for allegation. Narrow range for evidence in complaint.
Back up accusations of someone breaking law they are being accused of and courts are pretty
strict on 9b and will dismiss if can’t prove.tt
Jack H. Kane Friedenthal et al., A Survey of the Civil Action, in Civil Procedure: Cases and
Materials 1-4, 127 (13th ed., West Academic Publishing 2022)
Mock Complaint for Divorce
Complaint in William Twombly v. Bell Atlantic Corporation, No. 02 CIV 10220, U.S. District Court
S.D.N.Y, (2003) (Note to students: skim this- it is being assigned as it is illustrative of how long
complaints can be and still not be adequate).

Pleading Standards and Justice - Rule 12B6T A

Readings:
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (excerpt)
Bell Atlantic v Twombly
Procedural Posture
-Petitioner is Bell Atlantic Corporation et al. (and others, in this case other ILECS). -Respondent
is Twombly and Marcus, who represent a class action
-Relief sought: Twombly requested declaratory and injunctive relief under Section 1 of the
Sherman Act (unclear constitutional aspects of relief)
-In the District Court: the complaint was dismissed, in the Court of Appeals: reversed District
Court decision
-Petitioner wants court to affirm District Court decision to dismiss
Issue being appealed
-*Very Important* The court states: “We grant certiorari to address the proper standard for
pleading an antitrust conspiracy through allegations of parallel conduct”
Sherman Acts
-draws the line at conspiracy, contract, combination
Holding/Reasoning
-Narrow Holding: to state a complaint for a S1 Sherman Act you need to plead enough factual
matter, taken as true to suggest that an agreement was made
-Broader Holding: this rule applies to every civil action, not just antitrust cases. Includes
discussion about Conley “no set of facts” statement
-The Court is abandoning Conley “no set of facts” rule
-raises the bar from possibility to plausibility
-The Meaning of Plausible
-SCOTUS says in Twombly there aren’t enough facts in the complaint. Instead, there are legal
conclusions that are presented as facts. The Court is uncomfortable making the inference of
conspiracy because of discovery and possible other motivations between actions of ILECs.
Court says it’s possible and would pass under Conley “no set of facts” rule, but still isn’t
plausible. The Court is taking the authority to decide on plausibility.
-SCOTUS also rejects probability
-SCOTUS labels this as “judicial experience and common sense”
-SCOTUS brings up the expense and burden of discovery of facts, dissenting opinion counters
that discovery can be controlled to reduce expenses. SCOTUS says district judges should be
making decisions at the complaint stage, not the discovery stage
-*Suggests creating a chart for Iqbal and Twombly about what is needed in a complaint*
-do not need: detailed factual allegations
-do need more than: “label and conclusions”
Qui Bono (Who is winning or losing?)
-argument that Congress lost
-Conley case/precedence is a loser
-the Courts won
-potentially district court judges lost (seems like SCOTUS doesn’t trust district court judges to
control discovery)
Facts
-AT&T monopoly forced to break up into ILECs, one of which is Bell Atlantic
-ILECs had to facilitate smaller CLECs entry into regional market to promote competition, which
would be good for overall economy
–Twombly brought an action alleging conspiracy among the ILECs
Identifies parallel conduct: unfair agreements, inferior connections, and over-charging
ILECs avoiding competition with each other
From these actions, Twombly says you can infer there was an agreement between ILECs
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (excerpt)
Procedural Posture
-Petitioner is Mueller and Ashcroft et al.
-Respondent is Iqbal
-In SCOTUS
-District court dismissed qualified immunity defense and denied the 12b6 motion
-Second Circuit (Appeals) affirmed lower court
-Relief that was requested by A and M: the court will dismiss the motion
-Relief that Iqbal is seeking: judgment that the way he was treated was unconstitutional
Issue
-Did respondent plead factual matter that if taken as true states a claim that he was deprived of
constitutional rights?
Holding
-SCOTUS reversed and remanded Court of Appeals decision
-SCOTUS remanded to Court of Appeals to decide if it can be remanded
to District Court (can he amend his complaint)
-Iqbal ended up setting with the US
This was a Bivens Action **might get multiple choice question, no essay question**
-rare in civil litigation
-federal law that officers cannot violate constitutional rights
-implied that those wronged have right to action to get damages
-must prove that officials acted with discriminatory purpose. Means that they must have acted
because of, not
merely in spite of, adverse effects on an identifiable group (race, religion, ethnicity, etc.)
Takeaways
-Confirm the elements of the claim
-Determine the facts that warrant for a 12b6 the presumption of truth
-Examples (kind of preparation for exam):
-D drove negligently (not sufficient)
-D drove above the speed limit (is sufficient)
-D drove without paying due attention to the speed limit (not sufficient)
-Can you use “upon information and belief”? (unclear if you can use facts that you don’t have
confirmation of). Don’t want to allege things that you don’t know. Example of info and belief: The
quest quote says “this” and upon information and belief we think it means “this”
-Remember “judicial experience and common sense”
-There’s always state court
What factors emerged from Iqbal and Twombly for courts and litigants to consider under
FRCP8(a)(2)
Idea that in Twombly it appears that the holding applies to antitrust, but it is unclear. Is it all
antitrust, or all 8a2
Iqbal tells us that it falls under 8a2
Bar is raised from possible—> to plausible
Careful line drawing an analysis and application to new context that lawyers are expected to
determine and analyze
Shirin Sinnar, The Lost Story of Iqbal, 105 Geo. L.J. 379 (2017) (excerpt)
Note: Twombly and Iqbal discuss whether the complaint states a claim for which relief can be
granted under Rule 12(b)(6). You do not need to read Rule 12 before class (we will read it for
next class). It is sufficient for this class simply to know that a defendant can get a case
dismissed under FRCP 12(b)(6) if the complaint doesn’t state a claim upon which the court
thinks relief can be granted.
4. Defendant’s Pre-Answer Motions
Readings:
Fed. R. Civ. P. 8 (d), 12 (a)-(b), (e), (h)
Not a clear holding, more of a ‘these are the factors that you need to balance’
Process of legal reasoning is a process of determining how the facts are similar or different
from the case law that is out there
Cases that exactly replicate another tend to usually settle quickly because of precedent
FRCP: Rule 8(d)
If one claim or count is sufficient, then all can be allowed in brief
Rule says that there can be two or more alternative causes of action
D(3) can state as many claims or defenses regardless of consistency
United States v. Board of Harbor Comm’rs, 73 F.R.D 460 (D. Del. 1977) (excerpt)
Fed. R. Civ. P. 8 (d), 12 (a)-(b), (e), (h)
Not a clear holding, more of a ‘these are the factors that you need to balance’
Process of legal reasoning is a process of determining how the facts are similar or different
from the case law that is out there
Cases that exactly replicate another tend to usually settle quickly because of precedent
FRCP: Rule 8(d)
If one claim or count is sufficient, then all can be allowed in brief
Rule says that there can be two or more alternative causes of action
D(3) can state as many claims or defenses regardless of consistency
United States v. Board of Harbor Comm’rs, 73 F.R.D 460 (D. Del. 1977) (excerpt)
Plaintiff : U.S.
Defendant: Two companies
What relief plaintiff is seeking?Damages for Discharging oil is against the Federal Water
pollution Act
Relief defendant seeking? Wanted the federal government’s motion to be dismissed because
too vague and missing.Who specifically is responsible, the amount of oill, cost incurred, what
caused it
What court are we in?
Holding: motion to dismiss denied, Delaware notice of claim statute is inapplicable because
federal
Essentially saying that the complaint is enough as written
Different from other cases we have seen not required to be as specific as Iqbal as it this is a
closed scenario where there are only so many people that could have done this
More deference given because the federal government is the one that is complaining
Assuming also that the federal government stands for important public purpose
Qui Bono?
The government, public good, enviroment?
McCormick v. Kopmann, 161 N.E.2d 720 (Ill. App. Ct. 1959) (excerpt)
Rule 8a2
typical of the law in the sense that there is not a clear holding - balancing factors
Legal reasoning requires figuring out how the facts are similar different from the case law out
there.
Thinking about not only the holding but the reasoning behind the holding
Iqbal and Twombly:
what factors emerged for courts to consider in the future?
Twombly - it appears that holding is applicable to anti-trust cases - Iqbal - holding is applicable
to 8a2 more broadly
Pushed the bar from possible to plausible — is not a precise number/ line drawing
McCormick v. Kopmann
Rule 8d
Allegations have to be simple, concise and direct.
If one claim/ count is sufficient, then you can put them all in
How many alternative causes of actions you can have — you can have two or more — D3 —
you can state as many as you want regardless of consistency
No technical form is required
Plaintiff: Lucy Alice McCormick is filing individually on behalf of herself and additionally as an
executor of the estate.
- beneficiaries of the estate based on who’s behalf on which she is filing
- Plaintiff is seeking relief pecuniary relief for wrongful death against Kopmann and then against
the Halls for the decedent’s intoxication
- Count one - for wife and children
- Count 4 - just for minor children
- Appellate Court of Illinois, 3rd District - State Court
-Procedure of Count 1: taken to trial and verdict is rendered against him. He then appeals and
argues that his motion to dismiss
he filed an appeal and then a motion to dismiss at the trial court level.
He then answered and provided all the defenses played out in the initial motion to dismiss.
Motion for a directed verdict: based on the presented evidence in the light most favorable for the
plaintiff, there is still not enough evidence to hold the defendant liable as a matter of law.
Judgement not withstanding the verdict - saying the jury was wrong/ errors
Then he appeals
Issue over whether the evidence presented in count 4 should be presented to the jury
- over plaintiff’s objection, the evidence on count four could be admitted.
Halls: contend that he was not intoxicated but they are still in the case even though they do not
have a certain motion etc.
- even though they won at the trial court level, if the person/persons with whom you are joined
are in an appeal, you go along.
Jury instructions: Kopmann argued that they were deficient - Count four is an admission that
negates count 4.
When you do things in the alternative - Implying that the jury had to find either Kopmann or the
Halls liable and not that there is an option for neither to be liable.
Issue: what do we do with inconsistent complaints?
Cross appeal: plaintiffs are also not happy because she wanted more than $15.000. Court
largely dismissed this issue.
Facts Adduced at Trial:
Count 1
Who crossed the center line, Kopmann swerved and hit McCormick
Defendant said that he swerved to avoid hitting his car.
Thought that he had smelled alcohol
Count 4
Decedent got one drink at Annas and then another at the second shop
Conflicting detail about how many drinks he had
Facts in this case are inconsistent/ diametrically opposed. Additionally, Kopmann’s claims are
not entirely believable - Judge needs to communicate this.
Holding:
Defendant’s Pre-Answer Motions
Readings:
We hold that in the absence of a severance, P has the right to go to trial on both and adduce all
proof she had under both
Judgment of 15,000 is correct and affirmed.
You can allege inconsistent facts as long as they are actually in doubt
Jury instructions were sufficient
Upon cross examination of Mrs. McCormick, her testimony was inconsistent. Count ruled that
that ground for appeal was wrong because if there was inconsistency, then he should have
done something about it earlier
Offer of proof: Motion in limine - arguments made about what evidence could be introduced
happens outside of the jury’s earshot.
Trial judge: properly denied the motion for a new trial.
Can a party allege contradictory allegations? — Yes, many, though there has to be doubt about
what the facts actually are.
- Larger policy reason — prevents people from abusing this rule by purposefully obfuscating the
truth. This also makes the process faster and cheaper to claim everything at the same time and
including all facts helps the truth finding, even if some of them are not factual. But, the court
does not want people wasting the court’s time.
Court says they are protecting the role of the jury as the fact-finder
Plaintiff: Entitled to be uncertain, and entitled to let the jury decide the facts.
Why are admissions in one count not admissible in evidence against the pleader — plaintiff
genuinely does not know and they are mutually exclusive — allowing admissions as evidence
against the pleaser would cancel
out the counts. This would discourage people from doing what is more efficient.
- more timely to combine issues than to file two separate complaints
How does the fact finder handle inconsistent allegations?
- the well written instructions tell the jury that the allegations are separate and there is nothing
that says that they have to find one of the defendants responsible. Juries have common sense.
The jury sees what’s going on with additional allegations even if they are instructed to separate
them. This is not stacked unfairly in favor of plaintiffs because it is a risk to the plaintiffs as well.
How is this consistent with Twombly and Iqbal?
If one of the pleadings is sufficient to survive the motion to dismiss, then you can bring in the
other ones
Need conclusory claims - in order to get them, you need to be able to set out these things and
let the jury figure it out.
Almost overstating in the claim, but the two are inconsistent.
At minimum to get a verdict it has to be greater than 50% certain. - cannot exits for both
mutually exclusive claims
Alleging something that the plaintiff believes is plausible without knowing exactly what is going
on.
McCormick — has not been overruled and has become the standard.
Qui Bono?
plaintiffs - can get a lot closer to the truth than you would if you just had to pick one. Especially
because only one pleading has to meet the plausibility standard — you can plead claims that
wouldn’t survive on their own.
Judicial system: speed of the system
Defendants: multiple facts being presented that are presented to the jury. Encouraging plaintiffs
to plead facts that weaken their strongest case. They also save on litigation costs and get more
information than you would otherwise be attending the initial deposition etc.
Should there be a limit on the number of pleadings? There already is a good faith limit — you
have to genuinely not know which claims are true.
Imposed limitation when there is an attorney involved: Rule 11 — reference when there is an
attorney involved
attorney has to have a good faith basis for anything introduced in court.
Truth cannot be stated until known… until the trier of fact decides the case.
Just: increases the facts that get to the jury. Contrasts to Twombly and Iqbal which limits what
gets to the jury
8 - Twombly and Iqbal imposes the plausibility standard for pleadings
8d - liberal rules about pleading in the alternative
The inconsistency in these rules leads to increased cost and slows the process
Mitchell v. Archibald & Kendall Inc.
12(b)(6) Motion:
motion to dismiss when there is no claim/ set of facts upon which relief can be granted
Requires: being made before pleading
12(B):
how to present defenses
Defenses and objections, whether they are waived when joining together.
When there is a responsive pleading required, you have to assert it. Sometimes responsive
pleadings are not required.
Multiple defenses and objections can be asserted.
3 week timeline: Usually a short period of time in which to gather defenses and a good faith
basis for them:
- high bar on defendants (because it is quick) — because it is in the defendant’s interest to stall
and without a limit they have no reason not to.
- framing the case/ figuring out the contours of the claim before deciding the motion to dismiss.
Corporations: Fair because - corporations have significant resources for responding to claims
and can figure out who the claim is against and know who is responsible.
Individuals: not fair - fewer resources, don’t have a lawyer or databases of defenses etc.
by the time you get to legal services, you often only have a few days to file a response and want
to make sure it passes rule 11.
Mitchell v. Archibald & Kendall Inc.
Plaintiff: Lawrence and Alvery Mitchell.
Defendant: Archibald & Kendall Inc. company with warehouse
Seeking relief: negligence action, asking for damages on the grounds of the five duties of care
laid out by the plaintiffs.
As a procedural matter, the defendants filed a motion to dismiss 12b6 motion for failure to state
a claim. The district court (federal trial court) granted the motion to dismiss because it was not
entering or exiting the property (ingress/ egress)
Plaintiff: want to extend the definition of premises because they are invitees on their land.
they support this claim by saying that the court has to let what premises is needs to be
determined by the jury as a matter of fact.
Factual dispute about a material fact defeats a 12b6 motion (motion to dismiss)
Court says no, it is a matter of law because the plaintiff conceded in the complaint that they
were not on the premises.
They could have filed an amendment to the complaint after the motion to dismiss. They did not
and instead they appealed and because of that, they have to stand by the facts in the initial
claim. The court says that they would have ruled in favor of the motion to dismiss anyway. (This
prevents plaintiffs from filing additional claims to extend the definition of premises) (talking
directly to litigants — dicta)
Issues on appeal, holdings on both of them.
Facts Adduced at Trial:
but for me being told to go here, this would not have happened (proximate cause)
Motion to dismiss was correct — not a factual issue, and the defendants did not have a duty to
protect.
Only well pleaded facts must be accepted as true.
The issue here that is not well pleaded is (1) where the premises was (did not amend the
complaint)
Used Illinois law - choice
The reason they are in federal court: - jurisdiction, not statute — therefore Illinois law not federal
law.
Refusal to extend the law.
Dissent:
the duty to warn is different in this case because the defendants ordered the plaintiffs to the
road and may have known about the criminal activity on the street.
Qui Bono:
companies/ anyone who has a limited liability due to property lines not being extended.
Benefits land owners, detriment to workers, visitors, plaintiffs on someone else’s land
Just and speedy — dismisses many cases involving grey areas of property lines
RARE BRIGHT LINE RULE IN CIVIL PROCEDURE: where is property liability?
U.S. v. Board of Harbor Commissioners
Rule 12(E)
Motion: file after initial answer but before the other answer (same as 12B6)
immediate filing — if these are obvious, then they have to come quickly.
These pleadings frame the claim — have to make sense
If court gives a more definite statement, you have 14 days to refile
In district court:
Motion for More Definite Statement.
Gov alleges discharging oil is against the clean water act, one of you did this
Defendants - need more definite statements
Court: federally created right to clean water — state law would not apply.
- no, you need to wait to get this information in discovery.
Like Iqbal and Twombly: something bad happened but we’re not really sure who did it. Different
result — this information can come later on in the case and does not have to be presented in
the complaint. 12E v. 12B6
Clean water Act v. US action after 911
amorphous group of defendants (cell phone users) vs. a closed scenario of several companies
who have access to oil in that area.
Deference given to the federal government — assumption that the feral government acts on
behalf of the public for an important purpose.
Qui Bono: Government — pleadings make sense and more information will be given in
discovery. Speedy/Expensive
Plaintiff: Mitchell and Algerie
Defendant: A&K
US Court of Appeals 7th Circuit
Plaintiff is seeking: Negligence action asking for damages. Defendant had a duty to warn him of
dangers of street he had parked on because he had knowledge of dangers. Negligent because
of duty of care.
D is seeking: Defendant in procedural matter is seeking motion to dismiss for failure to state
claim-parking of truck was not on premises so they did not have a duty to warn of dangers.
Holding of District Court: grant 12(b)(6) motion.
Plaintiff on appeal is seeking: premise line was flexible and dismissal of claim was improper.
What can defeat 12b6 motion: factual dispute on material fact. But because claim distinguishes
between on premise and off so not matter of fact. This is a question of law.
Court said that plaintiff could have filed an amendment to their original complaint, but they didn’t
so they have to take the word of original.
Have the right to amend complaint after motion to dismiss under 12(b)(6). Instead, party chose
to appeal, so the court has to stand by the original factual statement that they were not on the
premises.
Issues on appeal? 1. Whether the motion to dismiss under 12(b)(6) was properly granted. 2.
Whether they had duty to protect.
The holding: 1. motion to dismiss under 12(b)(6) was correct. 2. No, they did not have a duty to
protect because he was not on premises and the court was not going to extend the premises for
the claim.
Dissent: Understand the ruling but defendant had ordered the plaintiff to stay in his truck in the
street. There probably was a duty to warn because of the knowledge of danger.
United States of America v. Board of Harbor Commissioners
Plaintiff: United States of America
Defendant: Board of Harbor Commissioners, SICO and NASCO
Defendant moved for a more definitive statement under Rule 12(E) due to vague pleading of the
USA. Defendants also filed a motion to dismiss.
Holding: Defendants motion for a more definitive statement was denied. Federal govt stands for
public good and they act on behalf of the public-if they file under the Clean Water Act, they are
doing it for a purpose. Therefore, a more definitive statement was unnecessary- defendants had
to wait for discovery to get more information on claim.
Rule 12(E): can file a motion for a more definitive statement if pleading is so vague that they
can't reasonably prepare a response. If court orders a more definitive statement, you have 14
days to respond. If you don’t, pleading goes away.
Procedural Posture
Plaintiff/ Appellee:McCormick, surviving widow
Defendant/ Appellant: Kopman and Huls
What relief is the plaintiff seeking?: wrongful death account against Kopman. Count 1 on behalf
of herself and all her children, for count 4 on behalf of herself and her minor children
What court are we in? Appellate Court of Illinois, Third District
What happened procedurally in respect to count 1 in the trial court ?
Complaint filed against primary defendant, taken to trial where he is found guilty for damages of
above 15,000.
Defendant filed a motion to dismiss at the trial court level.
MTD was denied, defendant filed an answer and argued that:
there is contention between count 1 and count 4.
At the close of the plaintiff's evidence they filed for a
Motion for directed verdict.
Based on all evidence presented, there is not enough evidence presented to prove what the
plaintiff is accusing the defendant of. As a matter of law, there is no case here. No need for a
jury.
MDV denied
Following jury decision finding him guilty, filed a motion for verdict notwithstanding the verdict
This motion was denied
Defendant appealed → court we are in now
Defendant argued about the jury instructions
Hulls argued that the defendant was not intoxicated making their issue irrelevant
No filing of Motion to dismiss etc, but still in the case.. Why?
The case was joint, actions are related so it is easier to connect the defendants together so that
one cause of action can resolve all the specific components.
Jury instructions: t if they were to find for count 4(contributory negligence) driver was
intoxicated, if true, than that contributory negligence would negate count 1 of wrongful death. (if
they were found to contribute in negligence in being drunk, Kopman could not have been found
guilty for wrongful death)
Defendant argued that the jury instructions were not adequate as both counts were mutually
exclusive. He claimed that the instruction made it seem that they had to find either Kopman or
the Hulls liable, they could not find neither of them possible
Court does not agree with this (Koppman’s) reasoning
Issues on Appeal
Whether the inconsistent allegations can be presented in a single complaint if they are mutually
exclusive
Plaintiff issue: thought that they should have gotten more than the $15,000 (cross appeal)
Count 1 (Kopman)
Defendant said they were in the correct lane and that McCormick was backed out across the
center line and encroaching upon his lane. Said that they had to ‘swerve’ to avoid them
Thought that they had smelled alcohol on McCormick’s breath
Count 4(Hulls)
Was said to have one drink at Anna’s shop, and one at John and Mary’s
Testimony saying only one drinks at former and non at latter
Why would a judge be so attentive to the facts here:
There are a lot of diametrically opposed facts, important to clarify for the jury, and so that
readers understand
Holding:
(broad)
We hold that in the absence of a severance, plaintiff had the right to go to trial on both counts
one and four and adduce all proof she had under both
Judgment of 15,000 is correct and affirmed
Anything else?
Jury instructions were sufficient
Upon cross-examination of Mrs. Mccormick the court said different things at different times, no
need for separate trial
Ruled that the trial judge properly denied the motion for new trial
Burden of this was on the defendant to do something at the time of the trial( when there is a
lawyer court are likely to say you(lawyer) should have done it)
Inconsistency occurs during an offer of proof: when you want to introduce something in trial, the
other side is opposed. Arguments about what can be entered in court are made outside of jury
as to not ruin results.
Offer of proof was that she was going to talk about him coming home at ten it- should have
cross-examined to make a prior statement
Can a party allege contradictory allegations?
yes , there needs to be actual doubt as to what the truth of the situation is (eg if you are a
plaintiff for tort saying in one count you can not walk and the other you can, you obviously know
which is true )
Helps proceedings be faster and cheaper if you are not sure which is true.
Want to prevent unnecessary claims in slowing down court, but when they are not knowable
combining saves time
Role of Jury: role of them to look at the evidence presented and determine which allegations are
actually the factual truth. They will determine which allegation is most supported, or if none of
them are supported form facts
Protecting role of jury in the system here
What if the proof of the counts is contradictory?
This is fine
When can a party allege contradictory allegations ?
When they are not sure if one is true
Why do the FRCP and Illinois allow?
To respect role of jury, plaintiff may not know( husband passed, no way to know)
Why are admissions in one count not admissible in evidence against the pleader?
The plaintiff has good reason to believe one of the two parties is responsible. Does not know
which, has some proof that it is one of you, not sure which but enough for a valid complaint
against one.
Can not use statements of one count as evidence against the other because they are not
certain the information is accurate, only one is.
How does the fact finder handle contradictory allegations ?
Jury was clear on the difference between count 1 and 4, (judge implying the jury is not stupid
and could understand these well-written instructions)
Instructions do not say jury has to find them for one or the other
What is the risk to the plaintiff?
The proof in support of one inconsistent count tends to negate the other, and have an impact on
the other. The jury is watching the whole proceeding even if they are instructed to keep the two
separate.
Not stacked unfairly for plaintiff, also a risk to them
How is this consistent with Twombly and Iqbal ?
Pleading in count 1 would be sufficient under the standard of Twombly or Iqbal to survive a
motion to dismiss, as would the pleading in count 4.
Either could survive on their own, but only one needs to as per rule 8
Qui Bonno?
Plaintiffs generally
Judicial system
Respondent benefits
Plaintiff has to prove both, the opportunity to weaken the strongest claim
Savings in litigation cost (especially if second defendant in this case, Hulls)
“Truth can not be stated until known, and for purposes of judicial administration, cannot be
known until the trier of facts decides the fact issues)
MCCORMICK and the Rules
Is the case just?
Does it assist with speediness?
Inexpensive? Does inconsistency lead to expensiveness?
FRCP: Rule 12(B)(6)
(b) how to present defenses. Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But a party may assert the following
defenses by motion:
(6) failure to state a claim upon which relief can be granted
Can file a Motion to Dismiss when there is no claim or set of facts upon which relief can be
granted
Requires a party to be made before pleading if a responsive pleading is allowed.
If not responsive pleading required, opposing party may assert at trial any defense to the claim,
no defense or objection is waived by joining it with one or more other defenses or objections
If multiple defenses or objections or defenses together either in a pleading or a motion, you can
assert multiple (similar to rule 8d)
Also a good faith basis here.
Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429 (7th Cir. 1978) (excerpt)
Procedural posture
plaintiff/appellee: Mitchell (truck driver)
Defendant: Archibald Company
Relief being sought by plaintiff: damages for negligence because of duty of care (5 listed here) .
Duty to tell them of dangerous conditions
Relief sought by the defendant: filed a motion to dismiss (12b6)
Court: U.S Court of Appeals
Holding of district court: grants the 12b6 motion because (at district court) because the injuries
were not while entering or exiting, it was on a public street so they did not have duties here.
Plaintiff saying that the dismissal was not proper because the premises issue
Under 12b6 the court had to treat the premises issue that the jury had to determine, the court
said that this was not a factual issue, this was near the premises not ON the premises. This is a
matter of material fact
What defeats a 12b6 motion is a factual dispute about material facts
Could result in the fact-finder making a different decision
Court said this is a question of law because the plaintiff said they were not on the premises
Plaintiffs could have filed an amendment to their original complaint, but because they failed to
do so they are standing by the exact wording of the original complaint
Said that the court would still have said it was public thoroughfare and not private premises
(dicta)
Prevents them from filing again by saying they would still have ruled that way
ISSUES on appeal:
Should the case have been dismissed
Does an owner have a duty of care to warn about land outside of the premises
Facts Adduced at Trial:
Mitchell was told to go wait outside the premises because loading was delayed. While they were
waiting to complete job, they were shot
But for me being told to go here this would not have happened
Holding:
It was proper to allow the 12b6
Could have been amended by plaintiff
Not a factual issue but a legal one
Rule 12(b)(6)
In reviewing the grant of a Motion to Dismiss.. All material facts well pleaded in the complaint
must be taken as true. However, the court is required to accept only well-pleaded facts as true
in deciding whether the motion to dismiss was properly granted”
An owner does not have a duty to warn invitees about dangers on land outside of their
premises.
When the reason you are in federal court is a diversity action, you apply state law.
Only had that duty if he was physically on their land
As he was off of it, they did not have a duty there
Refusing to extend law here
Dissent:
“The affirmative conduct of the defendant greatly increased the risk of harm to the plaintiff, thus
creating a duty on the defendant to warn the plaintiff of the danger or to direct the plaintiff to a
place of safety until the delivery could be made”
Qui Bono?
Archibald
Just- landowners are protected. Maybe a detriment to those working according to the terms of
those who own land
speedy/ efficient : helps because reduces trials with similar with similar fact patterns ( about
premices)
5. Answer (and Failure to Answer)
-if served summons or complaint, you have 21 days to answer
-SMJ, failure to state claim and join 3rd party - can be raised at any time
-will waive issues w/service procedures if send answer but not file a motion
*plausability standards apply to defense, counterclaim, 3rd party claims
-The Answer: answer must respond to all claims” “idk” is a denial
-affm defense = even if true, I have no liability
*Affm defense is use it or lose it as a matter of efficiency, justice, and limit strategical games
-counter claims and cross claims can be added to an answer.
*2 types of counter claims (compulsory and permissive)
*cross claim” claim against a co-party, transfers blame to another defendant
-KNOW RULE 8 B2 AND B3
*denial must be specific
-if you fail to address an allegation, it’s considered an admission (whether or not responsive
pleading required) except in regards to damages
Rule 8c - covers affm defenses
8c1 requires: must state all response
8c2: if you make error, if justice requires court will treat as correctly pleading if called (judge is in
control)
What do you have to do to all of the allegations in a complaint?
Admit, deny, or say that you lack information to admit or deny (court is supposed to construe
this as a denial)
You have to make any compulsory counterclaims
Make affirmative defenses
It’s saying that even if everything in the complaint is true, it negates liability
With this understanding of affirmative defenses, why is it important as a “use it or lose it”?
Matter of efficiency & justice. Part of what it’s trying to get at is the gamesmanship aspect of
litigation strategy.
What is required of a denial?
A denial must fairly respond to the substance of the allegation (b)(2)
You are allowed to do a general denial in good faith (b)(3)
You have to specifically designate what you’re not denying or specifically designate that you’re
denying all of the claims
What is the effect if you fail to deal with an allegation?
An allegation is admitted if it is not denied if a responsive pleading is required. If a responsive
pleading is not required, an allegation is considered denied or avoided. (b)(6)
One caveat if a responsive pleading is required - one the enumerates damages
8(c) - Affirmative Defenses
What is an affirmative defense?
An argument used to help reduce and even defeat allegations
What does 8(c)(1) require of avoidances or affirmative defenses?
You must affirmatively state it. However, in 8(c)(2) a safety valve - if justice requires, the court
will treat the pleading as though it were correctly designated, but there may be terms in doing
so.
David v. Crompton & Knowles Corp., 58 F.R.D. 444 (E.D. Pa. 1973) (excerpt)
Who are the defendants?
Crompton & Knowles, Crown Products, and George Young Co.
The case is mostly about Crompton & Knowles. Crown is involved because Crompton filed a
third party complaint against them - George Young is involved because Crompton filed a third
party complaint against them too.
What does the defendant want?
The defendant wants to amend their answer. They need the court’s permission to amend the
answer at this stage because the deadline to amend has already passed. Under the rules, you
have the ability to amend as a right under a certain period of time, after that you need the court
to do so.
In response, what is the plaintiff saying?
The plaintiff wants the court to treat what the defendant said in response to paragraph 5 as an
admission. They want to both deny the leave to amend & rule that the defendants misused the
What court are we in?
District Court of PA
What are the issues being decided by the court?
Whether Crompton & Knowles original answer should be deemed an admission Whether the
amendment should be accepted at all.
What is the holding?
Rules that the original answer should be deemed as an admissions
Rules that the amendment should not be accepted.
The court is suspicious of how “ran out the clock” of statute of limitations by refusing to give an
answer.
At some point, the burden has to be put on somebody. Either they let the amendment through
and the plaintiff is harmed or they don’t and the defendant is.
What is the general federal approach to amendments?
The court is saying “if you’re the one with superior knowledge, you’re the one who needs your
house in order”
Requirement of honesty in pleading in reference to rule 11.
Deeming it as admission because its fairer
Is there a broader holding?
The importance of deadlines - if you’re going to say you don’t have sufficient informations to
admit or deny you need to do it in good faith
What is the rationale behind the liberal approach to amendments under FRCP Rule 15(a)?
The pleadings are the proceeding’s “rules of engagement.” There is value of people being
allowed to bring claims that should be brought up
What is the rationale behind the liberal approach to amendments under FRCP Rule 8(b)(5)?
It is reasonable that people don’t know the answers to all the accusations. If you’re required to
respond to all the allegations, we don’t want people to be forced into a consequence that they
don’t know.
-in district court. Plaintiff injured by shredder. Cromptom filed 3rd party complaint against others
-defense needs permission to amend answer aka leave of court because allowable period of
time has passed
-Plaintiff is asking court to deny request to amend AND treat initial pleading as an admission
-Issues: *should first answer if D gave an admission * should Compton be able to amend?
-Court said answer can’t be amended and it was deemed admissable
-Reasoing: court is protecting plaintiff. General approach to amendments: fairly liberal. In this
case though, the company had to control over the info doc, court requires honesty

Party Joinders
Readings:
Fed. R. Civ. P. 18, 19, 20, 21, 42
-Rule 20: permissive joinder - same claims, same transaction, same facts. Sometimes case can
grow much bigger than intended
-Rule 21: misjoinder: not a reason to dismiss. Parties can be added/dropped at any time
-Rule 42: gives more discretion to the court. Allows court to join issue, actions or separate
issues
-Rule 18: umbrella rule for joinder, allowing parties to join claims from the same event.
Independent and alternative claims can be joined. No limit to # of claims if they are
contingent/dependent on each other
-Rule 19: Mandatory Joinder Test - first consider subject matter jurisdiction, ability to serve.
Can there be complete relief?
What interest does the party possess and what would happen if they weren’t there?
**Required joinder: court can order parties joined to 1) protect interests 2) re-litigation 3)can
plaintiffs interests be protected. If refuse to join, can be forced to be defendant or plaintiff
*If plaintiff objects to joinder, can file motion to sever joinder
*Plaintiff can dismiss their own complaints, but Defendant’s claims still exist
*new party must be dismissed if they make the venue improper
*If a required party cannot join, must give reasons why they aren’t joined and the court decides
if to proceed.
*court uses "inequity and good conscience” as guiding principle to decide joinder, consider if
judgment would be adequate, and if parties would have another avenue to remedy? (Among
other considerations)
Insolia v Phillip Morris
-Plaintiff = 3 former smokers and their spouses
-Defendant = 3 tobacco makers and 2 trade organizations
-trial court denied motion for class action, plaintiffs are trying to join together
-Defendant: wants to sever claims into 3 diff actions under Rule 20 bc no the same transactions.
Plaintiff wants damages and to stay together.
-District Court granted motion to sever bc plaintiffs couldn’t satisfy a1A = diff transactions
-Court says individual issues will be decided by fact specific decisions on case by case basis
-Court is defining “same transaction” very narrow.y
-Plaintiffs say same transaction bc it is the same principle and same information/ads
Pulitzer-Poster v. Pulitzer, 784 F.2d 1305 (5th Cir. 1986) (excerpt)
Original suit: niece, mom, and sister saying they want to
' recover individually and on behalf of the company bc Uncle was “mismanaging” and excluding
them from the benefits of the company
Federal court: niece files against D for breaching fiduciary duty to vote in best interest of
company.
District Court - dismisses under Rule 19 bc there is already an action in state court and they are
all mandatory parties. Niece is from CA and everyone else from LA, so diversity jurisdiction.
Court of Appeals: they need to decide if the cases should be joined and if the case should go
forward. They give deference to District Court because DC has more facts. They will answer:
did DC abuse discretion by dismissing? And do mom, niece, sis all need to be joined?
Court looks at R19 (19a1Bi), and sees that niece will be able to get complete relief from state
court. Rules mandate that joinder is a fact-based decision
-Court says other parties need to be here to protect their interests
-Plaintiff says her decision in court won’t affect other parties bc her mom and sis have damages
in state court
-says that having a state and a federal case is not duplicative because LA doesn’t recognize
collateral estoppel
-Court says under Rule 19 could create prejudice in case of Mom and sister. A1bi focuses on
absent parties’ interests
,m,m
-efficient but fairness is questionable bc state court takes too long, but that is not considered
under Rule 19
Qui Bono
D bc saves $ on litigation
Courts win bc they get to exercise discretion
Lower courts in bc they are respected to analyze the facts of the case
Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190 (6th Cir. 1986) (excerpt)
Plaintiff = Shepard Claims Service, Inc.
Defendant = William Darrah & Associates
Relief plaintiff is seeking
Seeking entry of the defendant’s default
Defendant’s attorney made an “honest” mistake and filed their answer late
Relief the defendant is seeking
Def wants court to set aside default and allow them to late-file an answer
Procedure
District Court denied Defendant’s motion to set aside default
Interlocutory appeal
You’re allowed to appeal an aspect of the case while the case is ongoing
Issue
When an entry of default is made, but the plaintiff isn’t prejudiced by the delay and the
defendant has a meritorious defense, should the entry of default be side aside if it was just a
result of carelessness?
Holding
Yes. An entry of default can be set aside for good cause shown.
Court reversed and denied motion to dismiss entry of default.
The court of appeals found that the district court abused its power of discretion.
Reasoning
Factors/rules they laid out
No Prejudice
Meritorious defense
Good cause (?)
To be treated as culpable, the conduct of a defendant must display either an intent to thwart
judicial proceedings or a reckless disregard for the effect of its conduct on those proceedings.
Discussion questions
Purpose of requiring a willful failure of the moving party to appear and plead when evaluating
a Rule 55(c) motion
Importance of plaintiff having their day and court
The client should not be punished for their attorney’s incompetence/legal malpractice
Rationale of the existence of default judgments
Pros
Incentive for parties to actually show up
Speedy and inexpensive
Cons
Harsh sanction for good faith accidents (ex: going to the wrong room in the the courthouse and
defaulting)
Plaintiff is Shepard; Def is Darrah Associates
Plaintiff seeking upholding of entry of default (reflects fact that def never showed up to court).
Def is hoping court will set aside the entry of default and allow late filing of answer w/ affirmative
defenses.
Def filed an interlocutory appeal (an appeal prior to a final judgment on all the issues of the
case).
Now in the U.S. Court of Appeals
District Court denied ability to late file an answer and declined to void the entry of default.
Reasoning: the attorney engaged in culpable conduct; didn’t review the letter from assistant.
Facts: Def is an independent insurance broker; plaintiff is claims adjuster and alleges Def did
not pay him. Def’s lawyer’s secretary asked for a 45-day extension, the beginning point of which
caused some confusion (a “misstatement”). There was no answer filed by the expiration of
extension (unknown to Def’s lawyer), and so the court made an entry of default.
Court’s holding: district court abused its discretion. Court considered 1) whether plaintiff will be
prejudiced, 2) does Def have a meritorious defense, and 3) did Def’s culpable conduct lead to
the default? First two factors aren’t an issue; outcome hinges on third factor. Held that negligent
failure isn’t the same as willful failure. Def wasn’t trying to thwart judicial proceedings and didn’t
act with bad faith. Court was a bit more lenient in considering the third factor because the first
two factors were very clear, and there wasn’t a clear disregard for judicial proceedings. Bright
line rule highlighted by Prof Mann: “Where the party in default satisfies the first two
requirements for relief and moves promptly to set aside the default before a judgment is
entered, the district court should grant the motion if the party offers a credible explanation for
the delay that does not exhibit disregard for the judicial proceedings.”
What is the purpose of requiring a willful failure of the moving party to appear and plead when
evaluating a Rule 55(c) motion? Try to help the clients in civil suits; can file sanctions on
attorney w/o punishing client.
Why do default judgments exist/how do courts benefit? How does this help the plaintiffs/any
downside of default judgments? Need to incentivize people to show up bc case would go on
forever otherwise (common in housing court, for example); advantage for courts bc it serves as
a speedy, inexpensive adjudication to many cases; disadvantages certain plaintiff groups more
than others (e.g., pro se and doesn’t know which courtroom to go to).
The Defendant wants court to set aside entry of default and allow me to late file an answer.
Interlocutory appeal (you’re allowed to appeal prior to judgment) from the district court’s denial
to set aside an entry of default
What was the district court’s decision
Denied motion to set aside and later denied defendant’s motion for reconsideration. They allow
interlocutory appeal.
Their reasoning was that the attorney engaged in culpatory conduct.
What is the holding?
The court of appeals rules that the district court abused its discretion.
The factors were that
1) whether P will be prejudiced, 2) whether D has a meritorious defense, and 3) whether the
culpable conduct of D led to a default.
They answer in the affirmative for the first two. The third is under question, they rule that there
wasn’t enough of an error by the attorney that the client should suffer.
The court is comfortable saying that there is a meritorious defense and that they plaintiff will be
prejudiced, therefore they’re
The court does not believe it was appropriate to attempt a precise definition of “culpable
conduct.” Where the party in default satisfies the first two requirements for relief and moves
promptly to set aside the default before a judgment is entered, the district court should grant the
motion if the party offers a credible explanation for the delay that does not exhibit disregard for
the judicial proceedings.
What is the purpose of requiring a willful failure of the moving party to appear and plead when
evaluating a Rule 55(c) motion?
It’s unfair to punish the client to hire a negligent attorney. Additionally there are values to punish
attorneys separately through malpractice bar complaints.
Why do default judgments exist?
You need to incentivize people to engage in the legal system.
It’s speedy and inexpensive.
However, downside is the punishment of people who aren’t in disregard of court rules, but due
to situations outside of your control, mistakes, or not knowing the procedure.
Marilyn J. Berger et al., Strategic Pleading, in Pretrial Advocacy: Planning, Analysis, and
Strategy 213-217 (6th ed., Aspen 2022)
Defenses and Counterclaims
Readings (cont.):
Wigglesworth v. Teamsters Loc. Union No. 592, 68 F.R.D. 609 (E.D. Va. 1975) (excerpt)
-P = Wiggle D = Teamster and Union President
-relief for plaintiff: dismiss counterclaim based on SMJ
-relief D: counterclaim libel and slander
-Holding: had to determine compulsory vs permissive.
Compulsory means can be solved w/ same evidence and related to same incident
The Rule: for a compulsory counterclaim = same transaction/occurence
Holding: decided claim was permissive and court does not have jurisdiction (same state and
state law cases)
-to be compulsory, connected cases (libel/slander occurred at meeting ex.)
-two types of claims for efficiency and speediness.
-Teamsters can file in state court
Fed. R. Civ. P. 8(b)-(c), 13, 15(a)

Discovery
Rule 26: Duty to Disclose; General Provisions Governing Discovery
Parties may obtain discovery regarding,
Any nonprivileged 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
Breakdown of the rule
Sets the scope for discovery
“Nonprivileged matter” and “relevant”
“Proportional”
Trying to prevent extraneous information, and “fishing” for a case
Trying to curb attorneys from doing discovery that is excessive
This can be overwhelming quantities of information, which leads to burying people
Ensure that the court is not given information that we don’t need,
Sense of balance that should govern the process
If we didn’t have proportionality, it would allow the plaintiff to have uncontrolled access to find
any issue to sue over, which would lead to abusive, overzealous litigation
Abusing the weaker litigant with less financial backing
“Within the scope”
Allows parties to object to the various elements of the rule
Rule 26(a)
A party must, without awaiting a discovery request, provide to the other parties:
(i) The names/addresses/phone numbers that parties may use to support its claims or defenses,
unless the use would be solely for impeachment
Individuals who have information
If you want to use it at some point, you need to disclose it
Impeach- impeachment of a witness/testimony (if there is a contradiction in party’s own
testimony, you don’t need to disclose that specific information)
Why would you use something you are going to impeach?
Can maybe use it to leverage a better deal in a settlement
Maximum exposure by showing that the other party has a negative piece of information
(ii) A copy of all documents it has in its possession, custody, or control and may use to support
its claims or defenses, unless the use would be solely for impeachment
(iii) A computation of each category of damages claimed by the disclosing party
(iv) Any insurance agreement
Discovery: ● Purpose of Discovery:
○ Gather sufficient evidence to…
■ Leverage a favorable settlement
■ Survive a summary judgment motion
● How do facts fit into discovery through summary judgment by way of affidavits, depositions,
etc.
● Key Considerations of Discovery:
○ The rules that govern discovery, which are the FRCP Rule 26 - Rule 37 ○ How do we discover
information and admissible evidence - look to the Federal/State Rules of Evidence
*For purposes of this class, we only look to the FRCP*
○ Persuasive evidence that is favorable to your client
○ Find weakness + strategic disclosures
Formal Discovery
Mandatory Initial Disclosures - phase of discovery where both parties must disclose, without any
specific instruction or request, certain information
These elements are listed in Rule 26(A)
Notes on Rule 26(A):
(i) Names and contact info of those likely to have information the disclosing party may use to
support its claims/defenses, with the exception of information that would be used solely for
impeachment
“Impeachment of a witness refers to the process of discrediting or undermining the credibility of
a witness during a trial, by presenting evidence or asking questions that contradict their
testimony or reveal a bias, inconsistency, or falsehood in their statements.” (Cornell Law
School, Legal Information Institute)
(ii) All documents, electronically and tangible things that the disclosing party may use to support
its claims/defenses, with the exception of information that would be used solely for
impeachment
(iii) Computation of damages claimed
(iv) Insurance agreement under which all or part of possible judgment etc. may be satisfied
Party-controlled Discovery
Tools:
Written interrogatories - written questions for parties, under oath, useful for details, low cost
Production of documents and things - paper documents requested from parties
Depositions/Subpoenas - oral interview of a non-party, recorded, transcript provided,
multidimensional
Request for admission
Talking
Discovery Plan Review
Sequencing is important
Who you ask in what order matters
The relevance standard is broad in discovery but narrow in court.
Readings:
Fed. R. Civ. P. 26 (a)(1)(A), (b)(1)
Rule 26a - lawyers must exchange core info without waiting for discovery request
Rule 261a - requires disclosure of witnesses/docs that disclosing party may use as support,
claimed damages, insurance
Rules of mandatory initial discovery meant to streamline discovery, reduce abuse, encourage
settlements by disclosing relief sought early in process
Mandatory disclosure because no reason to request, wait, or fight about key witnesses
Rule 26a1c: made within 14 days after serving or 60 days after D has appeared
Sequence: 26f1-discovery conference and mandatory disclosures, 16b addresses scheduled
conferences and order
If not disclosed, could be basis for barring use during trial
Rule 26a1b-exemptions of proceeding from mandatory initial disclosures
Rule26e-requires adding new info that would have been subject ot mandatory disclosure
Rule 26a2D-almost immediate sanctions for failing to disclose
*two more stages of mandatory disclosure - identification of documents and witness 30 days
before trial*
Deposition: question witnesses/parties under oath, usually orally recorded, thought of as most
important part of discovery process
Rules 27-32 - give specific conditions of depositions
Must be scheduled in writing
Noticing party schedules locations. Any party can attend. Counsel can object but only sustained
if question form is inappropriate or reveals privileged info
5 Advantages: chase to question in trial conditions (could help assess demeanor), questions will
have degree of spontaneity, opportunity to ask followup questions, anything recorded can be
used in trial, and non parties may be deposed
Disadvantages: costly, so usually limitations. Could reveal case theories.
Rule 33 - written questions can be submitted and must answer in writing in time period
3 advantages of written questions: most useful for obtaining detailed info, especially personal
contact info, it’s inexpensive, and you can use for trial as a statement from other party
Disadvantages: crafted to contain as little useful info as possible. Not spontaneous. No
opportunity for follow-up.
Avista Mgmt. v. Wausau Underwriters Ins. Co., No. 6:05-cv-1430-Orl-31JGG, 2006 WL
8439368 (M.D. Fla. Sept. 14, 2006) (excerpt)
Facts: The parties were trying to get depositions scheduled but were unable to come to an
agreement on the location for the depositions. (Motion to Designate Location)
■ The disagreement was very trivial, as the parties’ locations were in the same building but on
different floors.
■ Parties were constantly bickering throughout the discovery process.
● FRCP Rule 26:
○ Sets the scope of discovery and what we can discover
○ Parties may obtain discovery:
■ Any non-privileged matter
■ Relevant to any party’s claim or defense
■ Proportional to the needs of the case
● Balance that governs the process of discovery - if there were no
limitations then a party with more resources/financial backing
would be able to abuse the discovery process.
○ Information within the scope of discovery is not necessarily admissible in evidence.
○ Possible Objections: relevance standard (broad in discovery, narrow in court), _________,
_____________.
Judge was frustrated with the bickering between the attorneys over the location of the
deposition
The system is generally adversary
This case is perhaps an example of the judge encouraging a “rising above” of the
petty/adversary attitudes and behaviors of the attorneys involved
Outcome: the attorneys did decide on a location and moved to vacate this order
Subrin et al., Thinking Like a Trial Lawyer, Pleadings, and Joinder, in Civil Procedure: Doctrine,
Practice, and Context 421-27, 434-44
2 stages formal discovery: mandated initial disclosure and party-controlled disclosure.
7. Summary Judgment
Professor Madeline H. Meth will join us as a guest lecturer.
-Rule 56 a and c *anyone can move for SJ
*why move for SJ? Avoid trial costs, force non-moving party to show their cards and learn more
about the party
Readings:
Colotex Corp v Catrett
*Petitioner = defendant, respondent = widow of asbestos death
-Procedure: D moves for SJ bc P failed to prove evidence of causation
-plaintiff needs to show exposure happened in DC
-plaintiff had burden of proof @ trial, celotex had burden @ SJ stage bc they are the moving
party
Issue: does p have enough for SJ, or do they have to prove they did no cause injuries. Celotex
says it’s impossible to prove no exposure but they have burden of persuasion
Court reversed and SJ denied -D needs to show no evidence of a claim on part of the plaintiffs
Matsushita v Zenith
A key SJ point that’s not in the reading:
A court CAN grant a motion for SJ when there are disputed facts!
ONLY IF when viewing the facts in the light most favorable to the non-moving party (usually P),
the moving party (usually D) is STILL entitled to judgment as a matter of law
“Viewing the facts in the light most favorable to the non-moving party”
Assume the facts that the non-moving party (usually P) has supported with evidence are TRUE,
and draw reasonable inferences in the non-moving party’s favor
-M moved for SJ initially
-issue being appealed: is there a genuine dispute here? Z wants courts to infer normal behavior.
M wants courts to infer conspiracy
-court has to decide if conspiracy is plausible from the evidence
-Ruling: court says makes no “economic sense” and moving party needs to prove more
persuasive evidence.
-SJ first granted, Court of Appeals reversed, Supreme Court reversed and affmd the first
decision
-even if there is a dispute, the moving party may still be entitled to judgement as matter of law
-facts will be viewed in light most favorable for nonmoving party
Anderson v Liberty Lobby
-to avoid SJ, must be able to prove you COULD win @ trial
-standard for SJ and DV are same (Rules 56 and Rule 50)
Worksheet Questions
● Facts
○ Meghan wallace suing for sex discrimination title 7 of act
○ Part of her job she was hired as a helper on a construction site, helping crafts people (welders
etc), was another job which was lower on the pay scale, (ot typically working on elevation)
○ Moving party was construction company
● Legal Standard for Proving Sex Discrimination under title 7 of sex discrimination act ○
Understanding this legal standard is necessary for applying sum jud here
● Whether employer discriminating based on sex, facts material facts
○ 2 facts:
■ 1. Comment that supervisor made to female staying ground
■ 2. Crude language supervisor used
● Would it create issue of material fact if said crude language was to all "bc of her tits and her
ass she had to stay on the ground” if directed to all workers
○ would not create genuine dispute of facts, just discriminatory overall not targeted just to her in
this instance
● . What about if the employer presented evidence that Wallace generally was a liar/lacked
credibility? ○ With just her testimony if employer says she was a big liar, then there would be a
genuine dispute of material facts bc credibility determinations made by jury judge doesn't weigh
credibility
● Would it create a genuine dispute of material fact on the question of discrimination if the
employer pointed to evidence that it didn’t have harnesses that fit women and that is why
women could not work at elevation?
○ This would not create genuine dispute bc discrimination element is if employer treat her
differently if she is a women, doesn't matter if employer is sexist or misogynist, all that matters is
treating her differently bc she is a woman, this is just further admission to show sex
discrimination towards woman
○ statement abt reasoning does not dispute, this would just be a third reason that is sex based
● Would it create a genuine dispute of material fact on the question of discrimination if the
employer pointed to evidence that working at elevation is really dangerous and Wallace didn’t
have experience working at elevation? ,
○ It does dispute question of whether wallace had experience,
○ if wallace were moving for MSJ based on her lacking experience, argument employer makes
could be diminish claim relating to decision, could argue real reason is that she didn't have
experience working at high elevations, jury could find in company favor not wallace, bc this is
valid reason,
● If the construction company pointed to evidence that suggested it prohibited Wallace from
working at elevation because of her lack of experience and the dangers of doing so, would the
construction company be entitled to summary judgment on the issue of discrimination?
○ No, bc reasonable jury could find evidence of discrimination
● Turning to the next element of Wallace’s claim—whether the discrimination was with respect
to the terms, conditions, or privileges of her employment—what facts are material to this
element? ○ 1. Fact that she previously worked in elevation, and training happens on the job, she
wasnt able to do it, D didn't move for summary judgment on discrimination element, here
wallace cites her own testimony, to advance needs to have experience on the job, District court
says She provides no basis for this information other than “common knowledge” at the site and
no evidence relating to specific comparators who advanced as a result of their wider range of
skills or desired promotions that she was denied.1 , these allegations do not give rise to a claim
under Title VII.
○ Can argue that: she had prior experience and had done training before, at basic level, you
have sense of working someplace how to advance, way to advance is to learn on the job
● Did the district court properly apply the summary judgment standard assuming the employer
was the moving party?
○ They did not, bc section 4 of rule 56 talks about an affidavit, ,ust be made on personal
knowledge, she had prior knowledge and job experience for this, no reason why affidavit was
not enough ○ Wallace is non moving party, district court should be viewing facts in light most
favorable to her and making inferences in favor of her, which they did not do
● At the time that this case was being litigated in the Fifth Circuit, the circuit’s law required
plaintiffs bringing Title VII discrimination claims, not only to demonstrate that the discrimination
impacted the terms, conditions, or privileges of their employment, but also that they suffered a
so-called “adverse employment action.” The Court narrowly defined this phrase to include only
“ultimate employment decisions” such as “hiring, firing, demoting, promoting, granting leave,
and compensating.” In light of this (unjust) standard, what is the employer’s best argument for
why it is entitled to judgment as a matter of law? What is Wallace’s best argument for why
summary judgment should not be granted?
○ Employer argument: did hire her, never chose to not promote her, did not fire her for it, no
definitive decision that was made or not made based on her sex, they are entitled to judgment
bc
no ultimate employment decision, so dont worry abt facts not in dispute/ in dispute just entitled
to judgment, her job was limited and it was available to her, the and clause was that she was
hired, no opportunity to promote, so no satisfaction of the 2nd clause,
○ Wallace argument:
■ Sum jud should not be granted bc she was prevented from getting promotion bc wasn't
allowed to work on heights therefore could not ever work up to advance/ get a promotion ●
Case resolve
○ Wallance won in 5th circuit, reversed district court decision, this case reversed ultimate
employment decision precedent
8. Claim Preclusion / Issue Preclusion
Readings:
-res judicata includes both types of preclusion
-Focus either on transaction or on primary rights invaded:
-Restatement - considers all rights to relief with respect to all or any part of the transaction, or
series of transactions, out of which the action arose.
- Pragmatic approach - are facts connected closely in time, space, origin, motivation and form a
convenient unit for trial and if would be consistent with the expectations of parties and
businesses
-Primary rights theory j- claimant has a separate claim (and therefore can file a separate case)
for each right violated by defendant.
Subrin et al., Finality and Preclusion, in Civil Procedure: Doctrine, Practice, and Context 987-
1002
-claim preclusion (res judicata) = affirmative defense (entire case is dismissed)
-issue preclusion (collateral estoppel) - only one part of claim is dismissed
-claim preclusion prevents litigating more suits bc of same event/claim/transaction. It would be a
waste of money, unfair to defendant, would allow P to keep trying until they win, risk conflicting
judgements from the same claim. One benefit is interest of finality (issue is closed)
-claim preclusion require assert all matters from same event against the same parties in one
suit.
Not res judicata if: doesn’t involve same facts/evidence, wouldn’t cause unfair harassment
(successive suits), wouldn’t risk diff results fro same event
Broad definition of “claim” - more inclusion and less preclusion
-for CP, plaintiff must include all matters that might be part of the claim. Any future litigation
must pass the transaction test
-collateral estoppel: different breach and couldn’t be predicted earlier -> not res judicata
-issue preclusion: once issue judged, cannot be re-judged with the same parties
-claim preclusion -> prevents 2nd litigation by SJ
-issue preclusion -> partial SJ prevents trying only an issue
-Defense requirements for CP: prior suit w/final valid judgement. Present suit arises from same
claim. Parties are the same
*know difference between transactional test vs primary test*
-to determine, pay attention to the subsequent transactions (according to the restatement)
-some states have compulsory counterclaims. Must be made or rights to make counterclaim are
waived
-most states use transactional test
-Validity: SMJ and personal jurisdiction correct. Must be a final judgement. Includes summary
judgment, default judgment. Dismissal bc of jurisdiction is not a preclusioin.

Including Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589 (7th Cir. 1986)
-D wants to be out of court (dismissed)
-important to identify relief sought - has a federal claim and a state claim
-district court dismissed fed claims
-Case 1 was dismissed bc no legal basis found and affirmed
-District Court dismissed Case 2, now in Appeals court (creates transaction vs primary test)
-CofA affmd dismissal based on res judicata, based on transaction test it came from the same
core events/facts (page 997)
-Car Carriers says that diff events and use primary test, but court dismissed. They also say they
discovered new info, but court says it is not new info bc it was accessible at the time of the prior
suit)
*Qui Bono*
-Ford and courts win bc of efficiency
-CC
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394 (1981) (excerpt)
Relief sought - treble damages. The US was prosecuting at the same time, made plaintif
confident
Defendant wants motion dismissed
Case 1 - decision by District Court to except from res judicata. SCOTUS reversed bc they could
have appealed the original case. SCOTUS says there are exceptions, but this one is too broad
Dissent says court went too far. Another dissent says that it never should have been in federal
court.
Qui Bono: courts win, corporate defendants win
9. Claim and Issue Preclusion (cont.)
Readings:
Taylor v. Sturgell, 553 U.S. 880 (2008) (excerpt)
-Relief by P: seeking to have request ordered by court
-Relief by D: does not want to comply w/ request to provide documents
-(in Herrick) District court says about Herrick: no trade secret exemption and granted SJ to FAA,
10th Circuit affmd
-(in Taylor) District Court: says precluded bc T was represented in previous case. Circuit Court
affirms DC court, developed 5 factor test for claim preclusion of non-parties
-issue in front of SCOTUS: was expansion of virtual representation appropriate?
-SCOTUS reverses and remands, T was not represented. Decided that four out of 6 exceptions
did not apply.
Reason 1: emphasizing fundamental nature of the general rule person isn’t bound by judgment
if non-party
Reason 2: there are limitations regarding nonparty preclusion based on adequate
representation
Reason 3: expanding claim preclusion would cause more work for the courts up front deciding
on preclusions
*5 factor test of virtual representation*
Parties share interest
Adequate representation
And at least one of these
“a close relationship between the present party and his putative representative,” “substantial
participation by the present party in the first case,” or “tactical maneuvering on the part of the
present party to avoid preclusion by the prior judgment.”
Claim preclusion minimums: 1. Parties have aligned interests. 2. Involved party understands
they represent nonparty or the court takes extra care. 3. Notice of original suite to the nonparties
*in class action, rule 23 provides implementation of these rules
*Qui Bono*plaintiffs, small plaintiffs, and attorneys win
Parklane Hoisery, 439 U.S. 322 (1979) (excerpt)
Petitioner = original Ds, respondent = original P
P wants partial issue preclusion (offensive preclusion)
Prior litigation - Case 1 - Plaintiff was SEC v PL. Sought injunctive relief. Circuit Court affirmed.
Case 2 - District court said claim should be dismissed and denied a SJ. They say allowing case
would violate 7th amendment rights
Appeals Court sasys they deserve trial
SCOTUS - now appealing. Issue is if non-party can use issue precluision
Holding: affirm use of issue preclusion by nonparty.
-Shore couldn’t have joined case 1. It wouldn’t have be oppressive to use issue preclusion bc
PL got to defend themselves
*dissent says 7th amendment is violated* Majority says amendment issue resolved bc PL had
full fact finding process in Case 1. Majority says strict reading doesn’t apply.
Fairness and efficiency? Compare to day in court in Taylor v Sturgell
What would happen if parklane won the first case against SEC? What would plaintiffs do? A:
they’d drop the offensive issue
Identifying and Understanding Standards of Review, Writing Ctr. at Geo. L. Ctr. (2019)
10. Party Joinders
Readings:
Fed. R. Civ. P. 18, 19, 20, 21, 42
-Rule 20: permissive joinder - same claims, same transaction, same facts. Sometimes case can
grow much bigger than intended
-Rule 21: misjoinder: not a reason to dismiss. Parties can be added/dropped at any time
-Rule 42: gives more discretion to the court. Allows court to join issue, actions or separate
issues
-Rule 18: umbrella rule for joinder, allowing parties to join claims from the same event.
Independent and alternative claims can be joined. No limit to # of claims if they are
contingent/dependent on each other
-Rule 19: Mandatory Joinder Test - first consider subject matter jurisdiction, ability to serve.
Can there be complete relief?
What interest does the party possess and what would happen if they weren’t there?
**Required joinder: court can order parties joined to 1) protect interests 2) re-litigation 3)can
plaintiffs interests be protect. If refuse to join, can be forced to be defendant or plaintiff
*If plaintiff objects to joinder, can file motion to sever joinder
*Plaintiff can dismiss their own complaints, but Defendant’s claims still exist
*new party must be dismissed if they make the venue improper
*if required party cannot join, must give reasons why they aren’t joined and court decides if to
proceed.
*court uses "inequity and good conscience” as guiding principle to decide joinder, consider if
judgement would be adequate, and if parties would have another avenue to remedy? (Among
other considerations)
Insolia v Phillip Morris
-Plaintiff = 3 former smokers and their spouses
-Defendant = 3 tobacco makers and 2 trade organizations
-trial court denied motion for class action, plaintiffs are trying to join together
-Defendant: wants to sever claims into 3 diff actions under Rule 20 bc no the same transactions.
Plaintiff wants damages and to stay together.
-District Court granted motion to sever bc plaintiffs couldn’t satisfy a1A = diff transactions
-Court says individual issues will be decided by fact specific decisions on case by case basis
-Court is defining “same transaction” very narrow.y
-Plaintiffs say same transaction bc it is the same principle and same information/ads
Pulitzer-Poster v. Pulitzer, 784 F.2d 1305 (5th Cir. 1986) (excerpt)
Original suit: niece, mom, and sister saying they want to
' recover individually and on behalf of the company bc Uncle was “mismanaging” and excluding
them from the benefits of the company
Federal court: niece files against D for breaching fiduciary duty to vote in best interest of
company.
District Court - dismisses under Rule 19 bc there is already an action in state court and they are
all mandatory parties. Niece is from CA and everyone else from LA, so diversity jurisdiction.
Court of Appeals: they need to decide if the cases should be joined and if the case should go
forward. They give deference to District Court because DC has more facts. They will answer:
did DC abuse discretion by dismissing? And do mom, niece, sis all need to be joined?
Court looks at R19 (19a1Bi), sees that nice will be able to get complete relief from state court.
Rules mandate that joinder is a fact-based decision
-Court says other parties need to be here to protect their interests
-Plaintiff says her desicion in court won’t affect other parties bc her mom and sis have damages
in state court
-says that having a state and a federal case is not duplicative because LA doesn’t recognize
collateral estoppel
-Court says under Rule 19 could create prejudice in case of Mom and sister. A1bi focuses on
absent parties’ interests
,m,m
-efficient but fairness is questionable bc state court takes too long, but that is not considered
under Rule 19
Qui Bono
D bc saves $ on litigation
Courts win bc they get to exercise discretion
Lower courts in bc they are respected to analyze the facts of the case
ddfdE
Insolia v. Philip Morris Inc., 186 F.R.D. 547 (W.D. Wis. 1999) (excerpt)
11. Party Joinders (cont.): Party in Interest, Impleader, Intervention
-the court cannot force 3rd party claims. Rule 14 is the impleader rule.
-a cross claim is Defendant v Defendant
-D may file a claim against a 3rd party if more than 14 days after sending answer, must get
court’s permission
-3rd party Defendant can assert claims and counterclaims and answers Defendant 1’s
counterclaims. Plaintiff can make claims against the 3rd party.
Rule 24 - intervention: can decide if want to join as defendant or plaintiff. Can intervene if there
is a federal statue (ex. Department of Education)c
Readings:
Virginia Elec. & Power Co. v. Westinghouse Elec. Corp., 485 F.2d 78 (4th Cir. 1973) (excerpt)
Clark v. Assocs. Com. Corp., 149 F.R.D. 629 (D. Kan. 1993) (excerpt)
Procedural Posture: District (Trial) Court, on ℼ’s motion to strike [or in alternative, motion for
separate trial]
ℼ seeking damages for tractor/broken leg; Δ brings in Bob Howard/Clark/Lett as the 3rd party
agents who committed actions w/o Associates’ knowledge - indemnification ; 3rd party seeking
dismissal
Issue: is impleader proper? [impleader: dragging in 3rd party per Rule 14]
Court denies 3rd party’s motion to dismiss, denies ℼ’s relief:
Rationale: if 3rd party is or may be liable, impleader is proper - based on the same legal issue,
and agency theory does not apply here
Why would ℼ not want 3rd party Δ involvement? Extra cost, more complicated - just wants to
deal with the company that they interacted with
Why do the Rules not allow Δ to implead a party that is liable only to ℼ- methodology separates
joinder and impleading
Just/Speedy/Inexpensive? Positionality influences. From ℼ’s POV, more just for Δ, but less
speedy and more expensive - however, in broader context of Rule 14, more
just/speedy/inexpensive than multiple litigation. Also, issue preclusion complications with
multiple litigations
Qui Bono? Courts, Δ
Clark v. Associates Commercial Corp
Parties
Plaintiff: Clark
Seeking tractor bc it was damaged, leg broken
Opposed to 3rd party def., believes should all be on assoc., different legal issue
Files one motion asking for
Strike complaint (not dismiss) as if it didn’t happen, or in alternative
Grant separate trial (def v. 3rd party def)
Def: Associates
Brings in howard and unnamed individual, grouped together as 3rd party def, claims they are
responsible
indemnification
3rd party defs
No valid claim of indemnity from assoc,
Proc post.
Dist. ct
Issue: Is impleader (Rule 14, drag you in) proper
Holding: allowed 3rd party to join
Proper impleading
Liable
Agency theory argument (is or may be liable—should be brought in)
Def can only plead someone liable to self, not to plaintiff
Qui Bono
In isolation may not seem just, speedy and inexpensive but is in larger scope
Fair to def., they get picked bc they might have resources for payment, should be allowed to
exert right to bring 3rd parties in
Plaintiff: Clark got tractor towed for collateral for loan
Defendant: loan collection agency, taking tractor as collateral for loan, hired people to take the
tractor
Plaintiff Relief: Suing defendant for damages for the tractor + property + leg broken
Third Party Plaintiff: Associates Commercial Corp (og defendant)
Third Party Defendant: Bob Howard + some other people who were subcontracted to handle the
repossession job against the original plaintiff
Relief in 3rd party complaint: Associates are trying to push blame into the third party defendant
through indemnification (admitting that all this happened, but wants to make the 3p def pay for it
through indemnification)
Third Party Def Response: No valid claim of indemnity from the 3rd party plaintiff/def, wants 3p
complaint dismissed
Plaintiff Response: Doesn’t want the 3rd party complaint to go through (move to strike)
2 alternatives:
Contract theory (UCC): 3rd party defendants have no duty under contract between the plaintiff
and Associates
Wants two separate trials. Plaintiff wants to only be in the trial with the original defendant, not
the third party.
Court: Federal district (trial) court
Issue: Whether the impleader (Rule 14) by the defendants/3p plaintiff is proper.
Holding: The impleader is proper, so the third party defendants are in the case.
Reasoning:
Why is third party MTD denied?
Agency theory: defendants can hold alleged agents liable for any amounts that the defendants
are liable for plaintiff
Implied indemnity based on agency principles is still allowed in Kansas
Employer can seek indemnity vs their own employees for liability resulting from employee’s
actions
Why is Plaintiff’s relief denied?
If the third party is or may be liable, they can still be in the case, even if the legal theory is
different.
Agency theory and the actual tort are different legal theories, but the liability is the same.
They want anybody who might be liable for the case to be brought into the case.
Note: court can’t just bring third parties in with its own discretion, so in some cases, defendant
will plan to indemnify later and try less hard in the initial case.
Purpose of Rule 14:
Accomplish something that can be handled in one proceeding, rather than separating related
claims into multiple lawsuits
Large Questions:
Why wouldn’t plaintiff want 3rd party defendants in the case?
Would draw out a case unnecessarily in their POV, want to simplify the case and make it more
manageable
The 3rd party defendants likely have less money, which is less appealing for the plaintiff
Why do rules not allow defendant to implead a party that is liable ONLY to plaintiff?
This is to distinguish b/w joinder and impleader (procedural issue, different standard)
(this is hard on people on pro se) because they might not understand the proper standard for
the different procedures
Just, Speed, Inexpensive + Qui Bono
Just to defendant, gives them opportunity to get paid if somebody else might be responsible for
payment
Inconvenient/unjust to plaintiff b/c it draws out the trial
Complex picture b/c in isolation, can seem less just, speedy, or isolation, but the rules itself
might contribute to just, speedy, inexpensive
Not speedy, not inexpensive b/c adds more trial/procedure
Issue preclusion might lead to separate trials being a bad idea esp for the defendants
From Defendant’s POV, it might be worth it to try impleading if you think you have a chance just
in case since if you don’t do it early enough, you might be barred later by issue/claim preclusion
Nat. Res. Def. Council, Inc. v. U.S. Nuclear Regul. Comm’n, 578 F.2d 1341 (10th Cir. 1978)
(excerpt)
Kerr McGee and American Mining wish to intervene, claim that their interests are not adequately
represented by United Nuclear
District court’s decision being appealed: denied motion to intervene due to adequate
representation by United Nuclear
Holding: Kerr McGee and American Mining’s interest in case, licensing/future ability to renew
licenses at stake, is sufficient interest for intervention. The trial court’s interpretation (need for
direct interest) was too narrow an interpretation. Other company (United Nuclear) may be willing
to compromise on factors that Kerr McGee and American Mining may not, and therefore not
adequately represented.
Qui Bono? Corporations/general parties w/ private interest and sufficient resources.
Intervention is a better option for interested parties than amicus curiae (briefs which are easily
rejected from consideration on arbitrary requirements)

Plaintiff: Natural REsources Defense Council

Defendant: United States Nuclear Regulatory Commission (NRC), New Mexico Environmental
Improvement Agency (NMEIA)
Plaintiff Relief: wants environmental impact statement to be required even if it is a state act,
because there is heavy federal involvement
Defendant Relief: Doesn’t want environmental impact statement to be required
Who was allowed to intervene: United Nuclear Corporation, who got approved for licensing
already by NMEIA
Who wants to intervene: Kerr-McGee Nuclear Corporation, Anaconda Company, etc. because
they feel that their interests are also important in the case, and not sufficiently represented by
UNC.
What DCT decision being appealed: motion to intervene that was denied for second group
WHy did DCT deny?: because their interest are sufficiently represented by UNC
Holding: Kerr-McGee and American Mining Company should be allowed to intervene, case
reversed and remanded
Rule 24(a)(2): 3 requirements
Whether applicant claims an interest relating to the property/transaction which is subject of
action
Interveners have interest b/c their future ability to renew license is at stake → adequate interest
Whether claimants are situated at disposition of action as a practical matter might
impair/impeded ability to protect interest
The decision will have an impact at least by precedent even if they are not participants
Whether interest is not adequately represented by existing party
The interveners are positioned differently than United Nuclear because the latter already has a
license, so they’d be willing to compromise on things that the others might not be willing to
compromise
Question: Compare this analysis to the tobacco case?
Might be different because all of the tobacco companies have a clear identical interest
United Nuclear is situated differently b/c they already have a license, so they’d be willing to
compromise on things that companies without a valid licenses would not be willing to
compromise on
NRDC v. USNRC
Parties
P: national resources def council
Argues must provide impact statement for state agencies
D: US Nuclear Reg. Comm, N.M.
Must provide env. Impact Statement, can also but doesn’t have to give to state agencies
Want dismissal, don’t have to make statement if thru state agencies
Intervener: Kerr-McGee
Applied for and got thru nm state agency
Appeals, says interests not rep by united, should be there
Proc Post
DCT denied, adequate representation
Holding and reasoning
Kerr-McGee sufficiently proved interests not adequately represented under (a)(2), reversed and
remanded
Holding interveners – direct interest too narrow
licenses/ability to renew at stake, constitutes adequate interest
Qui bono
Corporations
Those with power and resources; exert influence
Individual layperson, given opportunity as opposed to amicus brief
Plaintiff–get all mining companies, eliminate need for subsequent litigation
Qui Bono?
The interveners win b/c they’re allowed to intervene in these cases that they’re not directly
related to, but have interest in
Parties w/ power/resources to actually intervene in multiple cases benefit since they have the
capacity to take advantage of the more opportunities to intervene
This is also a better opportunity to be heard than Amicus Briefs, especially for less sophisticated
parties b/c of how strict the brief requirements are
Plaintiffs might win because if they do win the case, it’s a decision made directly against the
defendants, who would be precluded from litigating
Hypo #3 (Wedding) Rule 20, Joinder
Wes and Dani hire Polly’s Cooking to cater their daughter’s small backyard wedding.
Polly hires a sous chef, Leo, from a temp. agency to help her. Leo has misrepresented his
cooking skills and starts a small grease fire while making deep-fried stuffed peppers. Leo tries to
put it out with water (big mistake) and the fire becomes enormous, spreading to a nearby tree,
onto their carport, and over into their neighbor’s gazebo.
Wes is injured defending the wedding cake from the flames, $10k worth of flower arrangements
are destroyed, Dani’s Tesla is ruined, and so is the neighbor’s gazebo. The catering is never
served and the guests go hungry. The couple is still married and they take wedding photos next
to the fire trucks. True love prevails.
Could Wes and Dani join as co-plaintiffs against Polly and Leo to recover damages for the
flowers Wes paid for and Dani’s charred Tesla?
Yes, same transaction (fire) Rule 20(a)(1) AND same question of law (same negligence) Rule
20(a)(2)
Could Wes, seeking damages for his burns, join with the neighbor seeking damages for his
destroyed Gazebo, but not physical injury?
Yes, same transaction (fire) Rule 20(a)(1) AND same question of law (same negligence)
Could Dani sue Polly for breach of contract (failure to provide guests food) and be joined by the
neighbor suing Polly for the gazebo property damage? Dani’s theory of the case would be
breach of contract while the neighbor’s theory of the case would be negligence.
Yes, same transaction (fire), AND same question of fact (same fire)
Not the same theory of legal liability (contract vs tort), but there is a common question of fact,
which is that the fire is the reason for both the contract breach and the tort. There are lots of
similar facts around the same fire.
Alternate argument: Breach is for failure to provide food, and it was possible to provide food in
another way, so it’s different facts. Would have to distance the facts as much as possible to
make this argument.
Polly’s Cooking owes Leo backpay from the last three weekends he worked at different
weddings. Polly is withholding his paycheck because she “can’t stand to look at him” after the
trouble he caused. Leo needs to pay rent! Can Leo join Dani and the neighbor’s suit with his
breach of contract claim?
No, because it’s a different contract, different transaction AND different question of fact and law
(payment). Enough nuance to show that there aren’t enough similar facts to permit joinder
Extra hypothetical: If Polly and Leo are co-defendants, #4 could also not be a crossclaim b/c
you also need it to be in the same transaction or series of transactions.
Rule 20(a)(1)(B): What is the same question of law or fact? Means ANY question of law or fact
(ex. Both are caused by the same act of negligence)
Questions of Fact: Did X do Y? It can be a disputed fact (ex. How the contract is worded is a
matter of fact)
Hypo: Pedicab
Strangers, Aneesa and Tori, leave Wang Theatre at around 10pm, after a performance of
Hamilton concludes. They agree to share a pedicab back to Brookline. The pedicab driver has
had too much to drink and bicycles the three of them into Frog Pond. Aneesa and Tori both
suffer personal injuries.
Under 20(a)(1), why can Aneesa and Tori join together in a suit against the pedicab driver?
Same transaction (pedicab accident), and same question of law/fact (negligence/recklessness
of driver)
Must Aneesa and Tori join together in a suit?
Yes, under Rule 19(a)(1)(B). Aneesa and Tori both have interest related to the action since they
are both injured in the same incident
Under i), the case being disposed without one of the parties could lead them to being precluded
due to issue preclusion (if there is a judgment made of whether the pedicab driver was
negligent, then there is issue preclusion), or issues with how much money the other party can
recover later if they decide to sue
Under ii), if the case goes through twice, then the defendant would be at risk of inconsistent
liability
NOT mandatory:
i) Either party can sue separately without any impediment to their ability to protect their interest
ii) Double obligations, but that is fine because he did injure two separate people, so he would
have double liability anyway
Hypothesize that people don’t HAVE to sue anyone. It wouldn’t harm the other party if they
decided not to join the case.
Sometimes there is NO right answer for the hypotheticals → it’s about your arguments and how valid
they are
12. Remedies: Equitable and Declaratory Relief
Readings:
Subrin et al., Remedies and Stakes, in Civil Procedure: Doctrine, Practice, and Context 105-08,
116, 129, 134-35
Prejudgment remedies happen before court actually makes decisions, so due process concerns
are heightened
Sometimes trying to secure assets for judgment
Sequester:taking property to neutral location
Lien, sequester, placement under receiver, TRO
3 types of preliminary injunction
Preventative
Repparitive
Structural - like a consent decree (a settlement negotiated by the party but approved of by court
(there are concerns about courts taking on this role (injunction against schools) + governing
how public funds are being used
Am. Mach. & Metals, Inc. v. De Bothezat Impeller Co., 166 F.2d 535 (2d Cir. 1948) (excerpt)
P relief: declare rights of being able to continue manufacturing
D relief: dismiss on basis of lack of controversy
District Court granted dismissal bc no actual controversy
Appellate Court now deciding if actual dispute exists
This is the reasoning used when considering preliminary injunction.
Winter/Navy v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (excerpt)
Original D = Winter/Navy Original P: NRDC
Relief wanted by D: wants order overturned
District court granted injunction on reasoing that they saw potential for damages and possibility
of irreparable damages. Appeals Court remanded so injunction could be narrowed
Holding: SCOTUS felt possibility is too lenient, analyzed public interest in favor of the Navy,
analyzed equity and put more weight on training than marine harm
Reversed decision and vacated injunction
Standard for preliminatry injunction: no to possibility test
4 things required - requires more proof than surviving a summary judgment
Substantial likelihood of success on the merits
Need to prove they are likely to win the case and that the D conduct entitles P to relief under
each claim
Irreparable harm
Harm that cannot be remedied by money damages or eventual judgment on the merits
Balancing the equities
Compare harm that will be caused to plaintiff if no injunction v harm caused to defendant if
injunction granted
Public interest
Why did lower courts rule differently?
Lower courts consider multiple people/animal/human risks and give that harm more weight than
SCOTUS
Note the weight of national security concerns
Qui Bono: Navy, national security wins, taxpayers win. Lower courts lose (lack of deference)
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (excerpt)
3 issues
Maritime law allowing punitive damages
Clean water act allow punitive damages?
Are the punitive damages excessive?
District court says damages are fine, Appeals court lowered punitive damages
Plaintiff asking for punitive damages to be reduced
Punitive is looked at in comparison to compensatory damages
Can involve judicial review (the judge can say too much mone)
Holding/Reasoning: set standard of 1:1 compensatory:punitive damages. Goal is consistency
and is achieved by using a ratio. Limited to maritime cases. Says courts created this problem by
having so many standards. Says predictability w/punitive damages will help people doing bad
things to understand risks of their behavior.
Qui Bono? Defendants, large corporations