Civil Procedure I – Outline

Callen, Fall 2010

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 Summary of Rules

Rule 7 – (p. 33) Pleadings and forms of Motions allowed

Rule 8 – (p. 34) Pleading – sets up standards for pleadings and defenses
Rule 9 – (p. 36) Special Claims – more specificity required for fraud claims, some others
Rule 11 – (p. 38) Sanctions – if party misrepresents to court part (b), can give sanctions
as court desires

Rule 12 – (p. 40) Defenses and Objections to Pleadings

a. When presented - within 20 days, generally, except denials respond in 10
days
b. How presented - every defense s/b asserted in a responsive pleading except
the following motions:
i. Lack of subject matter jurisdiction
ii. Lack of personal jurisdiction * <-- waived if not presented within the
20 days
iii. Improper venue *
iv. Insufficiency of process *
v. Insufficiency of service of process *
vi. Failure to state a claim - ripens to rule 56 summary judgment if
presenting matters outside the pleading and the court does not object
vii. Failure to join a party under rule 19
c. Motion for judgment on the pleadings - presented after pleadings close
d. Must be heard before trial
e. Motion for a more definite statement - must reply within 10 days or claim
may be struck by court
f. Motion to strike - may be made within 20 days or on the court's initiative

Rule 13 – (p. 43) Counterclaims and Cross-Claims

a. Compulsory Counter Claims
b. Permissive Counter Claims
g. Cross-claim against a third party

Rule 14 – (p. 44) Third-party practice, Impleader

a. Defendant may bring 3rd party -
• who is or may be liable for all of part of plaintiffs claims,
• rules apply between them as if P-D.
• 3rd party defendant may assert claims against 3rd party plaintiff or
original plaintiff arising out of the same transaction or occurrence.
• This can go on as many times as necessary.
• Any party may move to separate or sever.
b. Plaintiff may bring 3rd party - when a counter claim is asserted against him

Rule 15 – (p. 45) Amendment of Complaint or Answer

Rule 16 – (p. 47) Pretrial Schedule and Conference
Rule 17 - (p. 50) Parties, capacity to sue

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Rule 18 – (p. 52) Joinder of Claims - a party asserting a claim for relief as an original claim,
counterclaim, cross-claim, or third-party claim may join as many claims as the party has against
an opposing party

Rule 19 – (p. 52) DO NOT USE THIS ON THE EXAM- Compulsory joinder of parties
Rule 20 – (p. 53) Permissive Joinder of Parties
Rule 21 - (p. 54) Mis-joinder of parties
Rule 22 – (p. 54) Interpleader
Rule 23 – (p. 55) Class Actions
Rule 24 – (p. 61) Intervention - when a third party wants to intervene in a claim

Rule 26 – (p. 63) Discovery Procedures

a. Required disclosures
i. Initial disclosures - names, documents, damages, insurance (likely to
have discoverable info)
ii. Expert testimony -
a. anyone who may be used at trial for 702, 703, 705,
b. including a report of all opinions of the expert
iii. Pretrial disclosures, in addition to 26(a)(1) and (2)
a. Name of all those expected to or may call at trial
b. All witnesses who will be presented by deposition
c. Documentation that will or may be used at trial
v. Discovery may proceed by all the other rules
b. Discovery Scope and limits
i. Any matter not privileged, relevant to the claim or defense. Relevant
material does not need to be admissible at trial if discovery could lead to additional
information (ie. Hearsay witnesses?)
ii. Limitations
a. Limit number of depositions or interrogatories
b. Limit documents that will cause undue burden or cost, with good
cause
c. Duplicated or ample opportunity, also balanced burden / value
for costs
iii. Trial preparation - attorney work products may be non-discoverable.
Court can order discovery, but opinions and impressions of attorney or other
representative will be protected. Refusal would lead to a court order and costs
based on 37(a)(4)
iv. Expert -
a. If a witness, may be deposed after receipt of the report
b. May be deposed if not a witness only on good cause
c. Court may order fees paid for expert reposing to discovery
request
v. Privilege
a. Withheld information under limits m/b disclosed via claim that
asserts nature of items
c. Protective orders - party may file a motion to protect requested material
f. Conference of parties
g. Signing of disclosures

Rule 27 – (p. 72) Depositions before Action or Pending Appeal

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Rule 28 - (p. 74) Persons before whom depositions must be taken
Rule 29 - (p. 75) Stipulations about Discovery Procedure
Rule 30 – (p. 76) Oral Depositions
Rule 31 – (p. 80) Written Depositions
Rule 32 – (p. 82) Use of Depositions in Court
Rule 33 – (p. 84) Interrogatories
a. 1. No more than 25, including subparts
2. May be about any matter relating to 26(b). Not objectionable, but court
may determine it not need be answered until later on
b. 1. Must be answered (A) By party to whom they are directed
2. Within 30 days of being served, but maybe shorter or longer as Rule 29
orders
3. If not objected to, each must be answered separate and fully in writing
under oath
4. Objection must be stated with specificity
Rule 34 – (p. 86) Production of Documents Requests. Must comply to requests within
30 days or
state objections why. This is in compliance with Rule 26(b)
Rule 35 – (p. 87) Physical and Mental Examinations
Rule 36 – (p. 88) Requests for Admission
Rule 37 – (p. 90) Sanctions for Failure to Comply with Discovery
Rule 41 – (p. 95) Dismissal of Actions (a) Voluntary (b) Involuntary
Rule 42 – (p. 97) Separation or Consolidation of Trials
Rule 45 - (P. 99) Subpoena
Rule 46 – (p. 104) Objecting to a ruling or order. Failing to object does not bring
prejudice if a party had no opportunity to do so when the ruling or order was made
Rule 50 – (p. 106) JML, JNOV
a. Judgment as a matter of law
i. If a party has been fully heard on an issue during a jury trial, and the
court finds that a reasonable jury would NOT find for the party, the court may
resolve the issue or grant a motion for J as MoL
ii. Motion may be made at any time before the case is submitted to the
jury
b. Renewing the motion after trial
i. If motion not granted, it is assumed the matter is referred to a jury
with the court LATER deciding on the legal questions raised by the motion. Movant
may renew the motion for judgment no later than 10 days after jury verdict or
discharge, or may request a new trial.
a. If verdict was returned, court may let it stand, order a new trial,
direct the verdict
b. If no verdict, court may order new trial of direct judgment
c. Granting the renewed motion
i. If the renewed motion is granted, the court shall also rule on a new
trial by determining under what conditions it can be granted later (no, unless
appeals court orders, yes unless appeals court denies)
ii. If the renewed motion is not granted, the winning party may assert
right for new trial if the ruling is reversed by appeals court.

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Rule 52 – (p. 109) Clearly Erroneous Standard
Rule 54(b) – (p. 113) Final Judgment Rule Exception for Multiple Claims
Rule 54(d) – (p. 113) Fee Shifting – Costs assessed to the losing party, Fees depends
on statute
Rule 55 – (p. 114) Default Judgment

Rule 56 – (p. 115) Summary judgment -

• Motion may be made at any time > 20 days from start
• Judgment rendered after review of all pleadings, depositions, interrogatories,
admissions, plus affidavits (provided in response to motion for judgment) show that
there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law.
• Affidavits made shall set forth facts as would be admissible in evidence.
When a motion is made, the opposing party may not rest on mere allegations or denials
of the adverse party's pleading, but must show facts sufficient to show that there is a
genuine issue for trial.

Rule 57 – (p. 117) Declaratory Judgment – doesn’t preclude other remedies

Rule 60 – (p. 119) Relief from Judgment

Rule 65 – (p. 123) Preliminary Injunctions and TROs

a. Preliminary injunctions - requires notice to adverse party
b. TRO - may be issued ex parte if clearly shows irreparable immediate harm
will result from denial
d. Every order granting an injunction should be specific in terms, details, acts
being restrained or compelled, binding only on those parties related to the action

Rule 68 – (p. 126) Attorney’s Fees –

if D offers to settle and P refuses, but then P recovers less than the settlement offer, P
has to pay for costs incurred after the making of the offer (Marek v Chesney, 140 in
book, 10 in notes)

Form 11 - (p. 157) Complaint for Negligence

Form 30 – (p. 163) Answering with 12(b) defense
Form 41 - (p. 165) Motion to bring in third party defendant

1. Stages of Litigation –
o Pre-filing research, case development, and strategy
o Filing and service of process
o Answer by D and/or initial motion
o Judge’s first presence; Rule 26 order (judge’s initial entry, produces
timetable for litigation – exchange witness list, discovery end date, and trial
date)
o Discovery – interrogatories, document requests, depositions and
continued independent research
o Discovery motions – requests to get the ct to order the other side to do
s/t re: discovery
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 o Pretrial motions, especially summary judgment
o Pretrial conference and settlement negotiations
o Trial (maybe)
o Post-trial motions
o Appeals

The Process of Litigation

Incentives to Litigate – After the FRCP started, only 3-4% of cases go to trial. Most
litigation takes place in state courts (98%), of non-traffic cases 42% is civil. An
average time for lawsuits to end is almost 2 years. In contracts cases P wins 62% of
time, torts are evenly split.

o Remedies
• Substitutionary Remedies – damages, but they are hard to
calculate and you still have to pay for the court and lawyer’s fees, so don’t
really get fully compensated
• Specific Remedies – restoring to P what he lost, either specific
performance or injunctive relief. Courts tend to prefer substitutionary
remedies, you need to prove those are not adequate
• Declaratory Remedies – declaration of rights or obligations.
• 28 U.S.C. §§ 2201, 2202 – Rule 57

• Provisional Remedies – relief pending final adjudication, decision

made on incomplete info
 Preliminary Injunction – have significant effect on
settlement. Can appeal even though not a final judgment under 28 USC
§1291(a)(1). Only reversible on appeal if lower court abused discretion
or used erroneous legal premise.
 Standard: If relief sought by plaintiffs is injunctive in
nature, Court must consider:
• whether plaintiffs will suffer irreparable injury if the
injunction is denied,
• whether such injury outweighs any harm that injunctive
relief would cause the defendants,
• whether plaintiffs have a likelihood of succeeding on the
merits, and
• whether the public interest would not be harmed by a
preliminary injunction
 Result?
• Court directs the party to stop doing the action or to
perform a required action immediately, before the court reaches a
decision on the merits of the case.

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 • Those bound by injunctions: the parties named, those
parties’ officers, agents, servants, employees, and attorneys and
other persons who are in active concert or participation with
anyone described above (as given by Hall)
• American Hospital (NOT IN BOOK OR ASSIGNED READING)
• P says D guilty of breach of contract
• Posner has equation - P x Hp > (1-P) x Hd
• Only grant if
• plaintiff's odds of winning times the harm
to plaintiff if the injunction is denied (he is likely to
win and harm of D continuing the practice is very
great, or, will the P be irreparably harmed if the D
keeps doing whatever he is doing?)
• is greater than the
• odds of the defendant winning times the
harm caused to the defendant by granting the
injunction (will the D be more harmed by stopping
than the P will be by D not stopping?)
• District Court standard
• P will suffer irreparable injury (going out
of business)
• P will probably prevail on merits
• D will not be harmed more than P is hurt
• Injunction is in public interest
• Appellate Court standard
• Probable success and possibility of
irreparable injury or
• Balance of hardships tips sharply in P’s
favor

 TRO (Temporary Restraining Orders)

 Rule 65 – no notice required, but they expire after a short time
(10-14 days)
 No Consideration of "likelihood to prevail"
 Courts generally balance three factors in granting a TRO
• Whether monetary damages (at conclusion of trial) would
provide inadequate relief to the Plaintiff if he wins
• The likelihood that P will prevail at trial on the merits and
the scope and the irreparability of harm the D will suffer if
TRO is wrongly granted
• Extent to which the TRO would harm the public interest (at
least beyond the immediate parties)

• Constitutionality of Prejudgment Remedies PRE-

IMPLEMENTATION OF MATTHEWS TEST
Fuentes W.T. Grant North Georgia Doehr (1991)
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 (1972) (1974) (1975)
Constitutional No Yes No No
Judicial None Yes None Yes
Involvement
Showing on Assertion Details Assertion Assertion
Merits submitted to
judge
Risk of Not Shown Shown Not Shown Not Shown
Irreparable Harm
Prior Property Yes Yes No No
Interest (Title
Claim)

 Fuentes v Shevin (p. 96) - replevin restores prior to

trial/hearing unconstitutional
• This case represents the ABSOLUTE MINIMUM for pretrial
seizure
• State can provide more, not less
• Lady stopped paying for stove, Firestone took it back with
replevin
• Court – P requires notice, needs to be able to respond
before deprivation
• Based on 14th amendment protection
• Unless extraordinary situation (is lack of heat?)
• P should be protected from MISTAKEN deprivation of rights
 Mitchell v. W.T. Grant Co (p. 102 Note 5) - replevin prior to
hearing is ok
• Louisiana process protected the rights of those persons,
whereas FL and Penn did not
 North Georgia v. Di-Chem (p. 102 Note 5) – Pretrial Bank
acct freezing stopped
 Connecticut v. Doehr (p103 note6) - lien on property before
hearing unconstitutional
• Attachment of real estate w/o showing cause, posting
bond, and notice violates 14th

• Equitable Relief
 Final relief could be a permanent injunction if the monetary
damages insufficient
- In rem: Injunction against a thing rather than a person
- Mandatory injunction: an injunction that orders an
affirmative act or mandates a specified course of conduct

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 - Preventative injunction: injunction designed to prevent a
loss or injury in the future
- Prohibitory injunction: forbids or restrains an act, most
common
- Quasi-Timet Injunction: granted to prevent an action that
has been threatened but not has not yet violated the P’s
rights
- Reparative Injunction: Requiring the D to restore the P to
the position the P occupied before D committed the wrong
 Walgreen v. Sara Creek Property (p.114) - Can Sara creek
allow another drugstore?
• DC decided that costs of settlement justified a permanent
injunction
• Parties are encouraged to settle for monetary damages,
rather than injunction
• Walgreens claimed that damages were incalculable, so
injunction only relief
• Good solution because it let economics take over via
negotiations out of court
 Carey v. Piphus (pg. 122) - student suspended w/o hearing
• If there would have been a suspension with or without
hearing, only nominal damages can be awarded, unless
additional harm is shown
• What is the balance of harm for each party?
• Under §1983, must a plaintiff prove that he was injured by
deprivation before he may recover non-punitive damages?

Merits Harm
PSM BHTFP Max.

SQM PIH Min.

- PSM = probable success on the merits

- SQM = serious question on the merits
- BHTFP = balance of harm tips in favor of the plaintiffs
- PIH = possible irreparable harm
• You must be able to show, at the very least, a serious question on the merits
• If that's all you can show, you need to show a balance of harm tipping in
favor of the Ps
• The more you show on the merits, the less you have to show on irreparable
harm
• The more you can show on irreparable harm, the lower the standard is on
the merits
• Obviously if you top out on both, you are getting the injunction
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 • Equitable relief requires a balancing of
hardship and likelihood of success on the merits, not
simply a question of whether or not there's irreparable
harm.

Limits of Punitive Damages

1. How reprehensible the action was
2. The ratio of the punitive damages to the actual reward
3. The limit of damages of any concurrent criminal or civil actions
4. The assets of the individual or organization
5. You can't collect punitive damages for out of state injuries
o Power of the Court
• Criminal Contempt
 US v. Hall (p. 13) - Civil rights, Hall (non-party) violated
TRO
• Non party, acting independently
• Does Rule 65 protect him?
• Court held that District Courts have the authority to
preserve ability to render a binding judgment by
issuing in rem, ex parte orders against unidentified
classes and to hold violators in criminal contempt.
o Due Process
• Goldberg v. Kelly (p. 27) - Can a state terminate payments w/o
hearing?
 Does 14th require evidentiary hearings before terminating
benefits?
 Question - does termination deprive plaintiff of protected
rights (life, liberty, or property interest) that must be protected?
 This case has been isolated to its facts, Matthews holds
more generally

• Matthews v. Eldridge (p. 39) - Can SS disability benefits be

terminated without hearing?
 Does 5th require hearings before termination?
 Defined three tests for determining if procedures
need to change:
• Private interest that will be affected
• Risk of error w/o changes and value of appropriate
safeguards
• Govt's interests, including cost burdens for added
procedure and process
 Held that Matthews was not deprived, since his disability
ended, so term ok.
 Differs from Goldberg in state/federal and public assistance
/ disability
 Does a rigorous test ignore the 'softer side' of the issues?

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  Posner (p. 52) defines a calculus -

o Consent decrees
 Courts can demand consent decrees as part of equitable
relief
 Non-compliance is considered contempt of court

o Right to access
• Access to litigation based on four principals (Michelman, p. 36)
 Dignity Values - concern for persons not allowed to litigate
 Participation values - persons should have participation in
decisions they care about
 Deterrence values - litigation influences behavior
 Effectuation values - persons are assured of actually
getting what rights they have

• Hamdi v Rumsfeld (p 58)- Enemy combatant also US citizen

• You are entitled to some protection under Matthews
• This is currently precedent, followed by Iqbal
• Boddie v. Connecticut (p.60) - plaintiff class sued to right to free
access to divorce court
 Does the court have obligation to hear complaints? Absent
a state interest of overriding significance persons must be given an
opportunity to be heard.
 Does a state have the right to deny access based on ability
to pay? Not overriding interest.
 Dissent - This is a civil case, not criminal, so constitutional
guarantees do not apply, as there is no risk of deprivation of life,
liberty, or property interest.

• Lassiter v. NC (p. 74) - Lassiter was in prison for murder, her

child taken by social serv.
 Loss of liberty triggers due process. Is this fundamental
fairness?
 Test: Is personal liberty at stake? If yes, counsel must be
provided. If no, use the Matthews test (back a page). Unless the weight
in favor of using counsel is AT LEAST as high as the measure of liberty
that would be lost, then no counsel is required.
 Using the Eldridge test, court determined that 1) parental
interest is protected, 2) state interest in welfare of child is shared with
parent, and costs for civil proceedings far less than criminal ones, and
3) risk of error is low b/c NC has other processes in place.
 Balancing the factors, assuming best/worst cases, affirms
no counsel is appropriate.
 Dissent - how can the rights of the parent/child be
abrogated?? Why isn't right to counsel in Boddie applied here??

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 o Financing Litigation
• American Rule – each party pays their own fees
 Exceptions – liability insurance, contingent fees, statutes
and rules
Rule 54(d) – costs assessed to losing party (not fees)
• Rule 68 – if D offers to settle and then P recovers less than
offer, P pays fees
• 42 USC §1988(b) – for civil rights cases, one way shift, D
pays P if P wins, D pays D either way, unless P’s suit was in
bad faith, groundless.
• English Rule – loser pays fees for both sides, deters malicious
lawsuits

• Marek v. Chesney (p. 140)

 §1988(b) says court may give reasonable attorney’s fees to
prevailing party
 Respondent did not settle for $100K, eventual judgment
was $59K
 Settlement did not include attorney’s fees, later billed for
$171K
 SC said district court can refuse to award fees, § 1988
allows reasonable fees, and application of rule 68 is a disincentive to
continue past a proposed settlement
 Point is to help reduce court trials by punishing a party who
won't settle with both party's court fees.
 Dissent - Risk is that a low-ball estimate will be too
tempting for a P and that he will fear loss of options AND attorney fees
if he doesn't accept

• Riverside v. Rivera (p. 131) - what fees are reasonable?

 If attorney fees under 42 USC § 1988 exceed the damages,
is this reasonable?
 Not unreasonable
 Dissent - ludicrous to award $245K for $33K in damages, of
which only $13K to P

- Pleading
o Pleading – document submitted to the court, gives legal and factual
issues, along with prayer for relief. All matters which if not pleaded would likely
surprise adverse party must be pleaded.
• Objectives to give notice to the parties about what the other side
is going to do and screen out cases that do not belong in court
• Short and plain statement

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  Dioguardi v. Durning (p.177) - bottles of gin, in artfully
worded complaint still ok
Stubborn guy who didn’t speak much English
 Conley v. Gibson (p. 179) - class action by black ee's of
Railroad and seniority rules
• Federal Rules do NOT require facts to be set in specificity
• Test: claim must be a short plain statement that will give
the D fair notice of what the P’s claim is and the grounds on which
it rests
• Should not be dismissed unless it appears beyond doubt
that there is no set of facts that would entitle relief.
• Conley allows too much, prove beyond doubt that there is
a basis for a claim and give fair notice

 Bower v. Wiseman (p. 223) - case of fraud

• Well-pleaded claim of fraud normally includes time, place,
and content of false representations, facts represented, and nature
of detrimental reliance.
• 12(b)(6) - can the P state a claim, and can the D reply?
• Taking all allegations in favor of P, some are dismissed for
lack of specificity
• P failed to show how particular causes produced a specific
result
• SUMMARY: If complaint states a claim, you have no
business asking for a more definite statement!

 Swierkiewicz v. Sorema (handout) - the prima facie case is

an evidentiary standard, not a pleading requirement, so the P need not
plead all facts for each claim.
 Much fact finding will occur in discovery
 Again, only need fair notice of claim and on what grounds it
rests.
 Claim can include: jurisdiction, time, date, place, violation
alleged, damages, signatures, served

• DMII v Hosptial Corp (p 231) Partners trying to sue one another

• Under Rule 17 they’d have to vote to bring suit, but since each partner
has a real party interest, an individual partner can sue another

• Doe v United Services Insurance P had higher insurance b/c fit

homosexual profile
• Names can be changed (to protect the innocent) Rule 17
• RULE: Can only be done for safety and security reasons, not just for a
desire to remain anonymous

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 • Anti-Trust conspiracy through allegations of conscious
parallelism
 Bell Atlantic v. Twombley (p. 205)
• P cannot survive a motion to dismiss under 12(b)(6) when
there are only inferential facts presented
• TEST: If you strip out the conclusions and look at the
allegations if it is equally likely or more likely that the D is
right, P is wrong, the claim is insufficient.
• Overturns Conley’s “under no set of facts” which allowed
almost anything
• IN THIS CASE, the complaint is dismissed

o Burden of proof - When the burden shifts from P to D and back

• Discrimination cases
 Burdine (p. 169) - Female clerk not given directorship when
she was qualified
 When P proves the prima facie case by preponderance of
the evidence, the burden shifts to D to prove by preponderance of the
evidence the non-discriminatory reasons for the behavior alleged
• P proves the case with sufficient evidence
(preponderance) to demonstrate a cause of action, and that he
was qualified
• D proves non-discriminatory reasons for behavior
and that the persons hired were more qualified than P; clearly
set forth the reasons for P rejection
• P must prove actual discrimination by
• objective evidence that the persons hired were no more
qualified than he OR
• that the reason given by D is not credible
 Reeves v. Sanderson Plumbing (JNOV handout)
• Reeves alleges age discrimination
• It is not enough that the fact-finder disbelieve the employer … he
must BELIEVE the plaintiff's explanation of intentional
discrimination (burden of proof shifts back to the Plaintiff at third
step).
• Under rule 56, the court must review the record when taken as a
whole.
 Guenther v. Goodyear (handout)
• P testimony contradicts (adversely) his own teams
• Court overruled P testimony… taken as a whole, in light of all
evidence in favor of the non-moving party, including the
testimony of disinterested witnesses and discounting conflicting
or contradictory testimony.
o Motion – request made by the party asking the court to do something
• Motions cannot be amended, this would require too much judicial
action and would allow harassment of parties
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 • Objections to a Pleading
• Rule 12(b) Motions
(1) Lack of subject matter jurisdiction
(2) Lack of personal jurisdiction
(3) Improper Venue
(4) Insufficiency of Process
(5) Insufficiency of service of process
(6) Failure to state a claim on which relief can be granted
(7) Failure to join a party under Rule 19 (Rule 19 not used on
exam)

o Complaint – pleading by P to start lawsuit

• Rule 8 – short and plain statement of the jurisdiction, short and
plain statement of grounds for relief, and demand for judgment
• Rule 9 – claims for fraud need to be pleaded with more specificity
than Rule 8 requires

o Sanctions – to deter baseless filings in district court

• Rule 11 – Representation to court that pleading is not presented
for improper purpose, the claim is non-frivolous, allegations have
evidentiary support, and denials are reasonable.
• If court determines these have been violated, Sanctions
can be made including monetary damages, attorney’s fees, and
anything else the court decides is necessary
• If an Attorney was negligent, didn’t follow right procedure,
Sanctions would be appropriate, but Court doesn’t have to give
them
• Rule 11 is not meant as a fee shifting device, but to deter
improper conduct

Answers, Motions, and Affirmative Defenses

- Preliminary motions: You don’t want your client to lose by default

o 12(a)- how much time is remaining
o 6-computing time; extensions
- Motion to dismiss:
o 12(b)-seven permitted motions to dismiss-either raise in your answer or in a
preliminary motion
 Bad jurisdictions- 12(b)(1)(2)(3)
 Bad Process 12(b)(4)(5)
 Failure to state a claim 12(b)(6)
 Failure to join party under 19-12(b)(7)
o 15(a)-permits a party to amend her pleading
- General rules of pleading- Rule 8; Defenses and objections- Rule 12; Rule 7
o 8(b)-defenses; admissions and denials (no need to deny damages)
o 8(c)- affirmative defenses
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 o 8(d)- pleading to be concise and direct; alternative statements; inconsistency
o 12(g)- joining motions
o 12(h)- waiving and preserving certain defenses (if you have already filed a
responsive pleading 7(a)(2) and amended 15(a)(1) then you waived 12(b)(2-
5)
 You can waive the personal jurisdiction, venue, insufficient process and
service
 You can never waive lack of subject matter jurisdiction
o Rule 7(a)- pleadings allowed; form of motions; and other papers
- Answers:
o Potential material
 Admissions/denials
 12(b) defenses
 8(c) affirmative defenses (even if true I have a justification)
• Burden of proof on the defendant
• Comparative Negligence (example)
 13 counterclaims and crossclaims
o Considerations:
 Impleadings; 42 consolidation; 24 intervening party; jury trial; 21
misjoinder
 11(c)- sanctions (violations of 11(b))
 12(c)- motion on the pleadings (file this with your responsive pleading)
 12(f) motion to strike
 15(a)- amendments

Amendments- Rule 15

If other party fails to object- possible implied consent 15(a)(2)

- 15(a)(2)-(before) when justice does NOT so require
o Unreasonable delay and prejudice other side in prep
 Though court can grant continuance
o Raised in bad faith
o The new issue is futile
- 15(c) Relating Back: events occur since original pleading; could not have been
specifically pleaded at the time because they had not yet occurred(like harm) but
within Statute of limitations
o Tolling agreements- parties can agree to stop the running of the statute of
limitations
o Notice-within 120 days after complaint was filed
o Special notice required if you’re suing the US
- 15(b)- (during and after) when leave to amend should be granted
o If the party objects that the evidence is not within the issues raised in the
pleadings when it aids in presenting on the merits and an objecting party
fails to show prejudice

16
 o When an issue is not raised by the pleadings and is tried by the parties
express or implied consent it must be treated as if raised in the pleadings- a
party can amend their pleading to conform to the evidence and to raise an
unpleaded issue, but this has no bearing on the result

• Singletary v. Penn Department of Corrections (p. 250)

 Singletary committed suicide, widow sues for wrongful
death
 Widow wanted to amend complaint for 'relation back' to
consider evidence that was intended to cover a gap in time, but she
didn't have it entered in trial.
 Notice of 120 days, per rule 4 did not occur
 She did not make a mistake of identify as to the staff
psychologist

• Christopher v. Duffy - apartment to be de-leaded, improper job

 Complaint amended to add parties years after SOL had run
 “Tolling agreement” parties can agree to stop the statute
of limitation
 SOL is tolled if a party cannot determine the issue before
(example, a surgical mistake)

The Discovery Process

Rule 26 Overview
o (a) Required Disclosures
• Initial: w/out being asked; witnesses and documents (except for
impeachment) w/in10 days
• Expert Witnesses: name, report, publications, etc.
• Pretrial: potential witnesses, deposition transcripts, documents
• Methods: oral depositions, written interrogatories, physical or
mental examinations etc.;

o (b) Discovery Scope and Limit

• (1) In general: can obtain discovery on any matter, not
privileged, relevant to the claim or defense of any party; does not have to
be admissible at trial; may lead to admissible evidence indirectly; for good
cause, ct may order discovery of any matter relevant to subject matter of
action; need not be admissible, just reasonably calculated to lead to
admissible evidence
• (2) Limitations: Ct after notice may limit numbers or length of
depositions if : (i) discovery unreasonably cumulative or duplicative or
available at less cost or burden from alt source (ii) already had opportunity
to discover (iii) burden or expense outweighs likely benefit

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 • (3) Trial Prep: Materials (Work Product): Party may discover any
material prepared in prep for trial by attorney consultant, etc if can show
substantial need and undue hardship to get elsewhere; attorney’s work
product, i.e. impressions, conclusions, opinions or legal theories exempt
• (4) Trial Prep: Experts: Experts: can depose testifying witness
experts after report if filed, may only depose non-testifying experts retained
specially for trial if justice demands it per Rule 35b or impracticable to
opinions and facts elsewhere
• (5) Privilege: If party withholds information claiming it is
privileged, must describe the nature of the documents not produced so
adverse party can access applicability of the privilege.

o (c) Protective Orders – Upon motion, ct may issue protective order to

protect a party or person from annoyance, embarrassment, oppression or undue
burden or expense; duty to disclose newly acquired info; duty to hold discovery
conference before conference w/ judge;

Limits of Discovery
o Relevance
• Davis v Ross (Discovery handout)
 P alleged libel and asked for a number of sets of data
 Discovery of net worth only allowed if punitive damages
have been granted
 Discovery of legal fees is not probative of bias, so this
request was disallowed
 P cannot allege mental distress and then withhold D
request for mental examination (35)

• Coca-Cola Bottlers v. Coca-Cola (Discovery handout) -alleged

costs too high for similar formula
 Merchandise 7X is the secret formula
• Trade-secret cannot be divulged without D proof that data
wanted is a trade secret and that damage from release would
result.
• Then, burden shifts to P to prove that trade secret
knowledge is essential to the action
• Court then balances the need vs. the risk of harm
 Court reasoned that balance was fair, since bottlers would
be incentivized to keep the secret
 HOWEVER, parties must negotiate a protective order that
allows access and prevents disclosure before the court will allow
disclosure.

• Kozlowski v. Sears (Discovery handout) - requested disclosure of

details relevant to children's nightwear and fire hazard

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  P requested discovery of records, Sears filed motion to
'quash', P filed Rule 37 compell
 Sears could not find records because they were organized
to obfuscate, invited P to look
 P complained, and court would not shift burden from D to P
since it looked intentional

• Bendectin litigation (Discovery Handout)

 Can evidence from older cases be discovered? Not to
harass.
 No more 'fishing expeditions'

o Rule 37 – allows court to give sanctions for failure to comply with

discovery
o Privilege
• Butler v Rigby (notes)
• D asked for all documents of all patients since 1992
referred by attorney, current patients
• Court – Discovery is supposed to be liberal
1List of patients referred by PILC is discoverable – relevant
for expert testimony
2Computer printout of all current patients not discoverable –
privileged
• Hickman v Taylor (p. 296)
• Boat sank, D started gathering information immediately in
preparation for lawsuit
• P requested discovery of statements of crew, including all
attorney’s notes
1Court said attorney’s notes are not discoverable –
privileged
• Unless the information cannot be gotten any
other way
2Facts are always discoverable, can’t be secret
• Discovery was not intended to give access to wits derived
from the adversary
• Precise questions will yield answers
• Upjohn v. US (Discovery Handout) - Attorney work products
cannot be compelled
 Too much discovery of attorney - client communication will
cause upper management to be intentionally unaware … a "zone of
silence"
 A-C privilege is intended to allow litigants to seek qualified
legal advice
 HOWEVER, "a party cannot conceal a fact merely by
revealing it to his lawyer"
 Elements of the rule:

19
 1Confidential communication
2Between attorney and client
3For purpose of legal advice
4Regarding duties of the corporation

o Expert Information
• Thompson v The Haskell Co (notes)
• Non-testifying expert under Rule 26(b)(4)(b), psychologist
• Court allowed discovery – undue hardship because no one
else could have gotten info
• Chiquita International Ltd v M/V Bolero Reefer (notes)
• Maritime dispute about carrier, expert is a maritime
surveyor
• Court did not allow discovery – D could have easily gotten
information if he tried
1Even if they can’t get information now, still not
discoverable
Other types of discovery
o Depositions
• Rule 27 – Petition the court asking for deposition, notice, same
with pending appeal
• Rule 30 – Depositions upon Oral Examination
• Permission: Need leave: already deposed, or beyond time
limits & exiting US
• Notice: to each party stating time, place, method
• Exam and Cross examine: same as at trial. Note all
objections, but continue
• End or limit: instruct client not to answer only if privileged
or scope limited by court. If bad faith, annoy, embarrass or oppress
the deponent, officer can stop or limit (expenses); limited to one
day of 7 hours
• Review/Changes: can alter in form or substance w/in 30
days
• Certification and Delivery by Office
• Failure to attend: if call deposition and not show (and other
side does) or forget to subpoena witnesses, pay expenses
• Rule 31 – procedure for written question depositions
• Rule 32 – Use of Depositions
• Use: to contradict testimony of witness, in place of witness
if dead/too far/old/sick/not show despite subpoena/interests of
justice
• Objection to admissibility: object just as if witness were
present
1Can file a motion to stop the deposition and call the court
for a ruling

20
 2Witness continues to answer and then the detail may be
struck from record.
• Objection waivers: if not made right away, waive objections
to notice, officer, form of questions, written questions.
o Interrogatories
• Rule 33 – written questions sent to adverse party, may not give
valuable info, can’t ask follow-up
• No more than 25 questions, must answer within 30 days
• Not binding at trial, but is admissible

o Document Requests
• Rule 34
• Scope: can request anything w/in 26(b) relevance, need to
be as specific as possible
• Nonparties: w/subpoena, may be made to produce
documents/ inspection

o Mental/Physical Examinations
• Rule 35 – can get if show good cause and mental or physical
condition is genuinely in question

o Requests for Admission

• Rule 36 – putting into writing things parties agree won’t be
subject of dispute in lawsuit
• 30 day deadline, but won’t be binding on subsequent
litigation

Enforcing Discovery Rules

o Motion for Protective Order – Rule 26(c) – Have to certify you conferred
in good faith with other party
o Motion to Compel Discovery – Rule 37(a)
• ALWAYS requires certification
• Party seeks discovery, other party refuses to produce it, good
faith conference requirement
• Presumption that court will award winning party fees and costs
o Motion for Sanctions
• Rule 26(g) – like Rule 11 for discovery.
• Award fees and costs and maybe other sanctions
• No good faith requirement
• Rule 37(b)(c)(d) –
• (b) – Party violated discovery order by court
1No good faith requirement
• (c) – Failed to disclose something or was misleading
1Also covers requests for admission
2No good faith requirement

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 • (d) – Parties fail to respond to some aspect of discovery,
don’t show up
1Good faith requirement

Abuses of Discovery – Remedies

• Court will only get involved after parties have tried to
compromise in good faith
• Judges delegate practical problems, but if one side doesn’t act in
good faith, court will intervene

Rules of Evidence
• Direct evidence: Evidence that is precisely on point
• Circumstantial evidence: Evidence relating to a series of facts other than those
directly related. Could include expert witnesses. Don't call your own
evidence circumstantial!
• Inference: May come from combination of direct and circumstantial evidence
• Relevant evidence: According to RoE 401 "everything having any tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
evidence"
• Lay Testimony: Can give helpful information of circumstance, but not
conclusive
o Ok to say the roads were icy, can't say the road was bad
o Witness can only state opinion of conclusion if they have laid out
evidence to support it
 Road was icy, snowy, foggy so driving conditions were bad
• Hearsay is inadmissible because there is no opportunity to crossexamine
• Subrogation- Allows party to stand in P's shoes and make additional claims that
they would have been able to make
• Indemnification- Liability to third party?

5Resolution without Trial

o Judicial Management of Litigation – Rule 16
• Sanders v Union Pacific Railroad Co (notes)
• P attorney did not follow scheduling order, was busy from
another case
1Told at pretrial conference (law clerk presiding) that he
wasn’t prepared
• Court dismissed action with prejudice
1Would burden D to let P do his work after D had given
everything over
2Would burden others in the courts to push this back, no
public interest
• En Banc reversal of case because of law clerk, but usually
given high deference

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 o Default Judgments – Rule 55 – Court may enter default judgment when
a party fails to answer or defend
• Peralta v Heights Medical Center (notes)
• P sued D, D did not answer, so default judgment entered
against D
1D claims defective service, or no service at all
• Due process requires notice of suit, D not in bad faith, so
judgment set aside

o Dismissals – Rule 41
• Voluntary Dismissal – 41(a) – P can dismiss before D answers, or
if they all agree, may re-file
• Involuntary Dismissal – 41(b) – P can get dismissed for failure to
prosecute or to follow FRCP

o Negotiation/Settlement – Settlement relies principally on the law of

contract. Parties typically agree to various stipulations (not to file lawsuit,
voluntary dismissal of lawsuit, promise not to re-file) in exchange for money.
Court doesn’t have to approve except for class actions and cases with minors.
• Benefits – Faster, cheaper, control risk, more individualized
• Disadvantages – issues may involve public interest, bargaining
power issue

o Arbitration - has had huge support because litigation so contentious

(ruins relationships) and expensive; more likely to have accurate result because
arbitrator may be expert in industry (vs. jury). Objections: sign away day in
court; perhaps substantive rights too (may be bias or not so generous); hard to
ensure neutrality; no right to appeal
• Federal Arbitration Act – allows for enforcement of arbitration
agreements in Federal Court
• Floss v Ryan’s Family Steak Houses, Inc (p. 501)
• Court decides arbitration is usually good, but here
agreement not valid
1Because Employer gets to decide who the arbitrators are
and can change rules
2Makes contract an illusory promise
• Lyster v Ryan’s Family Steak Houses, Inc. (p. 504)
• Same contract as Floss case, but court upholds arbitration
agreement
• State contract law is different in regards to
unconscionability

o Summary Judgment – Rule 56 – SJ only granted if there are no

conflicting facts and moving party entitled to JML, after discovery. Courts may
use affidavits, deposition transcripts, and other documents.

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 • Motion to dismiss converts to summary judgment when materials
outside the pleadings are submitted to the court (ie., after the start of
discovery)
• If P moves for summary judgment, she must show overwhelming
evidence
• Generally, Decision based on considering all evidence in light
most favorable to non-moving party and giving non-mover benefit of all
reasonable inferences.

• Adickes v. Kress (p.422) -

• Movantonly needs to show that non-moving party has a genuine
issue as to any material fact. If that burden is not met, summary
judgment must be denied regardless of whether opposing party
establishes a genuine issue for trial.

• Celotex Corp. v Catrett (p. 432)

 P sued asbestos manufacturer, only evidence was letters,
not admissible at trial
 Court granted SJ – P failed to establish evidence of
essential element
• D not required to negate P’s claim, just show lack of
evidence
• Moving party must produce affirmative evidence to show
that non moving party does not have a genuine issue of material
fact.
• Shifts burden under 56(e) to non moving party requiring
them to go beyond their pleadings to show through evidence that
there is a genuine issue of material fact.
• There is a need to poke holes in non-moving party's case,
must show affirmative evidence themselves

• Anderson v. Liberty Lobby (notes, pg. 433)

 Summary judgment is proper if pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits (i.e., after discovery), show that there is no genuine issue with
regard to material fact and that the moving party is entitled to
summary judgment.
 Plaintiff's obligation to prove by clear and convincing
argument in TRIAL does not apply to the summary judgment decision
(after discovery, before trial). If they do look for 'evidence', then they
are taking the role of the jury away!!
 For public libel, there is a need for clear and convincing
evidence

• Matsushita v. Zenith (p. 440 and handout) - economic theory

presented did not hold up

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  Where the record as a whole could not lead a rational trier
of fact to conclude for the non-moving party, there is no genuine issue
for trial.

• Reeves v. Sanderson Plumbing (JNOV handout)

 Reeves alleges age discrimination
 It is not enough that the fact-finder disbelieve the
employer … he must BELIEVE the plaintiff's explanation of intentional
discrimination (burden of proof shifts back to the Plaintiff at third step).
 Under rule 56, the court must review the record when
taken as a whole.
 New rule
• The court should review the record as a whole, and must
disregard all evidence favorable to the moving party that the jury is
not required to believe
1And
• The court should give credence to evidence favoring the
non-movant as well as that evidence supporting the moving party
that is uncontradicted and unimpeached, at least to the extent that
that evidence comes from uninterested witnesses (like a weather
station).

o Judgment as a Matter of Law (Directed Verdict)

• Rule 50(a) –JML – judge directs verdict for one party only if there
is no rational basis for a jury to find in favor of the party against whom the
verdict is directed
• Decision based on considering all evidence in light most
favorable to non-moving party and giving non-mover benefit of all
reasonable inferences.

• Galloway v. US (p. 454) ex-Navy, ex-Army, asserts that he was

crazy due to WWII
 Was mentally challenged, was an Army person
 Is now totally incapacitated… was this a result of the time
spent in the Army?
 P burden was to prove total and permanent disability on or
before a specific date.
• He has to do this at more than mere speculation, and
• Prove that the condition has progressed.
• Inference can bridge gaps, but not one of 5 (or eight) years
which included marriage and no evidence at all of any 'crazy' or
debilitating intervening events.
• The one witness he had waffles
• Why didn't he put his wife on the stand? What evidence
would she have had?

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  Appeal affirms summary judgment (no evidence to use to
consider in the best light)

• Why make a motion for directed verdict?

 Insufficient evidence to permit reasonable people to find
that it is true.
 Facts are in a "fog". No one knows what happened.
 We know what happened, but reasonably prudent person
wouldn't agree that it meets the criteria for an element of the crime
 Evidence presented is not credible.
 Jury can only guess at two equal but competing theories
 The opposing party is personally unbelievable
 An RPP would not possibly disbelieve some fact that helps
the D.

o Judgment Not Withstanding the Verdict (JNOV)

• Rule 50(b) – JNOV –Happens after deliberation, parties asking the
judge to make a judgment notwithstanding the verdict (must preserve the
right to make this motion by asking for directed verdict midway through the
litigation), same standard applies as directed verdict
 Generally only if a reasonable juror could NOT find a
verdict for the moving party
 Move for a new trial if a reasonable juror could have
believed the evidence, but the weight of evidence makes the verdict
wrong
 In an ee discrimination suit, a P might survive a motion for
jnov w/ both prima facie case, AND evidence that D is false
• Rule 59 – New trial can be given for:
• Flawed procedures
1Lawyer made impermissible argument, judge erred in
admitting evidence, erroneous jury instructions, juror
misbehaving
• Flawed verdicts
1Verdict against the weight of evidence
• Judge or court can decide on its own (sua sponte) to grant a new
trial

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Complex Litigation

Simple Joinder
- When drafting a complaint must decide how many claims to join against the D and
how many P's and D's to include in one suit.
- If you don't bring all your potential causes of action and remedies that arise in the
from the same transaction at the same time, a final judgment will normally result
in your not being able to bring those other causes of action or remedies later.

- Rule 18: Joinder of Claims

 P can include as many claims against D as they want even if they're
unrelated.
- Rule 42b:
 Allows a judge to separate a claim for trial reasons of convenience, to
avoid prejudice, and economy.

- Rule 20: Permissive Joinder of Parties

 Permissive joinder of parties and requires that people joining or
joined in an action have rights "arising out of the same
transaction, occurrence or series of transactions or occurrences
AND if any question of law or fact common to all these people will arise
in the action."
• In determining what constitutes the 'same transaction or
occurrence', courts tend to look to whether there is a sufficient
overlap of facts or evidence, and to whether claims are logically
related to each other, whether they share common law or fact
• Must support with analysis of exactly which facts and which
evidence a re the same for distinct claims or distinct parties
Kedra v Philadelphia (p. 300)
• 28 USC 1867 State claims that arise out of the same event can be joined
with Federal claims
• D's found to be involved in the same series of events
- Then the question becomes whether you plead joint, severally, or in the alternative
in terms of recovery
- 20(b) permits the court to separate parties for purposes of trial or otherwise
- Problem is people want to sue this at start of action and it doesn’t apply. If you
want to join an additional party on a counter or cross claim, 13h allows it in
accordance with rules 19 and 20 (narrow use).
 People want to join without taking into account what they're doing.
Don't need 20, use 13 and 14 for these things, otherwise your ass is
grass.
- Only applies:
o At start of action, once action is started, utility of rule 20 is minimal.

27
 o Rare additional party to cross or counter claim (additional parties who can
not be liable to the original plaintiff for the party who is bringing the cross or
counter claim).
o Most useful when you're writing the complaint or when it's amended.

- Rule 21: Misjoinder and Nonjoinder of Parties

o Permits courts to drop or add any dispensable party on its own initiative or
as a result of a motion by any party
o Court can drop any non-necessary party at any stage in action on any terms
"as are just."
- May sever any claim against any party and proceed with the severed claim
separately

o Impleading (Joinder by D)
• Rule 14 – D may join 3rd party Ds if and only if
• Right to relief is asserted jointly/severally/alternatively
against them arising out of same transaction or occurrence, AND
• Question of law or fact common to all Ds will arise in the
action
• Also, the party may be impleaded only if they have a liability in
the claim dependant in some way on the outcome of the main claim.
 Example - Bank sues student for collection of federal
student loans. US added as impleader since they will be liable
depending on whether bank is successful or not on main claim.

o Compulsory Joinder of Claims

• Claims – Rule 13(b) – pleading shall state as a counterclaim any
claim if it arises out of the same transaction or occurrence that is the
subject matter of the opposing party’s claim. If you don’t bring the
counterclaim, you lose it.
• Martino v McDonald’s System (notes)
1Antitrust claim was present at time of pleading, should
have brought it
• But since Martino never filed an answer, Rule
13 doesn’t apply
2There was claim preclusion on bringing a new defense

o Intervention
• Rule 24 (a) – Intervention of Right
• When statute confers right OR when applicant claims
interest relating to property or transaction that is subject of action
so disposition may impair ability to protect interest
• Four criteria: Must be timely, must have interest in
property or subject of suit, interest must be at risk and parties in
suit must not be adequately representing interest
28
 • Rule 24 (b) – Permissive Intervention
• Statute gives conditional right OR when applicant’s claim
or defense has question of law or fact in common; reviewed only
for abuse of discretion

o Interpleader
• 28 USC §1335 – broadens circumstances where interpleader is
available, gives jurisdiction, allows nationwide service of process, allows
venue where any claimant resides.
• Rule 22 – uses normal rules of jurisdiction and venue. Party
facing multiple claims against it wants to make sure that
inconsistent/duplicative judgments aren’t rendered against it → bring in all
stakeholders at once and preclude future litigation

o Cross-Claims and Counter Claims (Rule 13)

• Counter-claim is a claim asserted against an opposing party,
usually defendant against plaintiff. Usually used to affirmative defenses, or
to assert contributory liability
 Compulsory Rule 13(a)- a claim which must be raised at
the time of pleadings due to the fact that, by definition, it relates to the
same transaction or occurrence.
• Not compulsory if there isn't subject matter
jurisdiction
• Is compulsory if out of same transaction or
occurrence
• This doesn't necessarily mean causally related
• Is compulsory if it does not add another party
 Permissive Rule 13(b) - a claim which may be raised
 They seeks affirmative relief, they are not a type of
affirmative defense
• Cross-claim Rule 13(g) is a claim against a co-party, usually
among defendants. It is often used to spread liability.
 Always permissive… a party will not be barred from making
a later claim if one is not raised during the trial in which they are co-
parties.

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 Tests:

Matthew’s Test: (due process requirement)

1. The private interests that will be affected by the official action
2. The risk of erroneous deprivation of such interest through the procedures used.
3. The government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail

Conditions for Seizure without a hearing

1. Security/public interest
2. Affidavit- whether the case has merit or not, there is a shot that there’s a risk of
loss if not taken without due process
3. Judges must ok the seizure, not just the clerk
4. Prompt post seizure hearing

TEST FOR TRO:

1. Could be issued after a short hearing, except here the order must be limited in
time- to ten days, with a possible further ten day extension
2. Can be issued in an emergency without prior notice or participation by the party to
be bound
3. Complaint clearly shows immediate and irreparable injury and damages and shows
why notification should not be required
(Irreparable harm is a risk that injury will occur during proceedings and could not
be compensated by money)

TEST FOR PRELIMINARY INJUNCTION:

1. Court directs a party to halt specific conduct or perform specific acts immediately,
before the court reaches the merits of the case.
2. Such an order can be issued after a short hearing, early in the proceedings
3. Set hearing at the earliest time
4. Questions to be asked/balance to apply
• Whether the money damages would prove inadequate as relief for the
plaintiff who wins at trial
• The likelihood that the plaintiff will prevail on the merits
• The scope and irreparability of harm the defendant will suffer if the relied is
wrongly granted
• The extent to which granting an injunction would harm the public interest

Supreme Court Test for excessive punitive damages:

1. Reprehensibility of D's conduct
30
 2. Ratio of award to actual harm or potential harm inflicted
3. Comparison of award to civil or criminal penalties that could be imposed for
comparable misconduct

Enforcement of Damages
If D refuses to pay money damages, P must
1. Obtain a judgment as per rule 58
2. Original judgment merely identifies the D's obligation to P; it doesn't order
payment (compared with an injunction, which directly orders conduct)
3. Rule 69 provides the process for enforcing a judgment for payment of money
a. Goes by the rule of the state
4. Hensley v. Eckerhart Test is the most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate (the "loadstar")

Conley v Gibson Test:

The claim must give a short and plain statement that will give the defendant fair notice
of what the plaintiff's claim is and the grounds upon which it rests

Kedra v. City of Philadelphia Test:

1. The claim must arise out of the same evidence
2. Whether rights to recovery are joint, several or in the alternative
3. Is it a common question of law or fact

Reeves Test:
1. The test: Although the court should review the record as a whole, it must disregard
all evidence favorable to the moving party that the jury is not required to believe.
A. If there are credibility questions, they have to be resolved in favor of the
nonmoving party.
B. Look at the evidence in the light most favorable to the nonmoving party.
C. Construe all inferences in the light most favorable to the nonmoving party.
D. Evidence in favor of moving party that the jury is required to believe.
(uncontroverted evidence of the moving party)
1. Something the parties stipulate to.
2. Facts testified to by an expert (possibly non-expert) that is not
controverted (like the weather report)
E. Given all of this, could the jury find in favor of the nonmoving party? If not, then
summary judgment should be granted.

Test in Coca-Cola for disclosure:

1. In order to resist discovery of a trade secret, a party must demonstrate by competent
evidence that info sought is a trade secret and that disclosure of the secret might be
harmful

31
 Access
To Court .............................................. 9
To Lawyers ........................................ 10
Admission
Admissible ......................................... Rule 26(b)(i), page 15; Rule 56
and denials ........................................ Rule 8(b)
Objection to, of depositions ....... Rule 32, page 17
of Interrogatories ........................... Rule 33
Request for ........................................ Rule 36, Rule 37(c)
of Evidence ......................................... Celotex 20
Affidavit ................................................................ Rule 56, 20, Anderson 20,
Amendment ......................................................... Rule 15, 14
Anonymity............................................................ Doe 11
Answer ................................................................... Rule 15, Rule 33, Form 30, 13, 17 (in disc.)
Failure to ............................................. Rule 55, Peralta 19
Arbitration ........................................................... 20
Burden
of Proof ................................................ 12, Reeves 21
of Production ..................................... Adickes 20, Celotex 20
of Persuasion....................................... Always on P
Certification .......................................................... Rule 30 17, Rule 26(c) 18, Rule 37(a)
Claim ........................................................................ Rules 9 & 24, Conley 11, Bower 11,
Swierkiewicz 11, Bell 11-12, Celotex 20
Cross....................................................... Rule 13(g)
Counter ................................................. Rule 13(a)(b), Martino 24, 25
Joinder of ............................................. Rule 18 23, 25
Complaint ..............................................................Rule 15, Dioguardi 11, Bower 11, Bell Atlantic 11-
12, 13, 14
Damages
Disclosure of ....................................... Rule 26(a)(1)
Excessive .............................................. Riverside 10
Nominal ................................................ Carey (p 122)
Punitive ................................................. 8
Defense
General ................................................... Rule 8 (standard), Rule 12, 13
Affirmative ........................................... 13
Denial ....................................................................... Rule 12(a), 13-14
Depositions ........................................................... Rules 27, 30, 31, 32 page 17
Directed Verdict ................................................... SEE Judgment, JML
Disclosures
Initial ...................................................... 26(a)(i) 3
Pretrial ................................................... 26(a)(ii) 3
Required ................................................ 26(a) 3, 15, Kozlowski 16
Discovery................................................................ Rule 26 3, 15
Abuses .................................................... 18
Compel ................................................... Rule 37(a), 18
Failure to comply with ................... Rule 37 4, 16
Interrogatories ................................... Rule 33 3, 17
Limitations ........................................... Rule 26(b)(2) 15 text and cases
Protective Orders .............................. Rule 25(c) 15
Sanctions .............................................. Rule 26(g) Rule 37(b)(c)(d)
Discrimination ..................................................... Rule 12
Dismissal
Involuntary ........................................... Rule 41(b), 19
Voluntary ............................................... Rule 41(a), 19
Insufficiency ....................................... Rule 12, 13
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 Evidence
Failure to Establish ......................... Bell Atlantic 11-12, Adickes, Celotex 20
Rules of ................................................. 18-19
Discovery of ....................................... Rule 26(b)(1) 15
Financing Litigation .......................................... 10
Harm
Balance of ............................................ 8
Irreparable .......................................... Rule 65(b) 5, 6-7, 8
Posner Equation ............................... 6
Hearsay .................................................................. 19
Impleader .............................................................. Rule 14 2, 24
Indemnification .................................................. 19
Injunction
Preliminary......................................... Rule 65 5, 6
Permanent ........................................... 7, Walgreen 8
Intervention.......................................................... Rule 24 3, 24
Joinder ..................................................................... Rules 20-21 2, 23
............................... by D of 3rd party is impleading (Rule 14)
of claims.................................................. Rule 13 24, Rule 18 23
Judgment
Declaratory ........................................... Rule 57 5-6
Default .................................................... Rule 55 4, 19
JML, Judgment as matter of law... Rule 50 4, 21
JNOV ........................................................ Rule 50 4, 22, Reeves 12 and 21
Summary............................................... Rule 56 2, 4, 20, Anderson 20, Galloway 21
Liberty, threat to ................................................. Goldberg 9, Lassiter 10
Mental Examination ........................................... Rule 35, 18
Motion ...................................................................... Rule 7, Rule 12, Rule 26(c), Rule 50, Rule
56
Negotiation.............................................................Walgreen 8, 19
New Trial ................................................................ Rule 50(b)(i)/(c) 4, 22
Objection ................................................................ Rule 12, Rule 33, Rule 32, Rule 34
Pleadings ................................................................ Rule 7, Rule 8, 13
Pre-trial Seizure .................................................. Fuentes 7
Protective Order ................................................. Rule 26(c), 15, Cocoa-Cola 15 , 18
Relief , Equitable and Final ............................ 7
Remedies
Declaratory........................................... Rule 57 5-6
Provisional ........................................... 6
Substitution .......................................... 5
Specific ................................................... 5
Request
Admission ............................................. Rule 36 18, Rule 37(c) 18
Document ............................................. Rule 34 18
Resolution without trial................................... 19
Sanctions ................................................................ Rule 11 13, Rule 37 16, Rule 26(g) 18
Settlement ............................................................. Rule 68, Walgreen 8, 19
Subrogation ......................................................... 19
Temporary Restraining Order..................... Rule 65(b) 5, 6
Testimony
Expert .................................................... Rule 26(a)(2)/(b)(iv) 15, 17, 18-19 RoE 702
Witness ................................................. 18-19 RoE 701
Time........................................................................ Rule 6

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