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Notes Civil Procedure Law

(Anne Joseph OConnell)

Jun 16, 2009 Introduction, Due Process

Introduction to Course Overview: (a) federal rules and civil procedures only, no rules for states practices. Sitting all the time will be constitution, which we will also talk about; (b) Jury: when to you get and how does it work; (c) how the claim looks like and work, etc. (d) Topic covered: jurisdiction in venue, complaint, how to bring the claim into the court, discussion rule, trial. Overview of Litigation Process E.g., Assuming that you are an Africa-America teacher in South Carolina, you are told by the principle that the students should be taught by white. Some months later, you are fired and wish to sue the principle due the different treatment of race/religion. You are upset about the constitutional and statutory (public employment) rights being violated. You want: getting the job back or some compensation of what you have suffer, or a symbol that wrong things has been done.
(a) Choice of Court: State v.s. federal court, it is harder to get into the federal court (subject matter

jurisdiction); if you have a federal claim, you can choose to go to state or federal court. it is a broad strategic issue. State courts are appointed or elected, who are more pressed by people or conventional while federal court are for life. But things changes recently.. Even you chose the state court, defendant has particular right to pull the case back to federal court (Removal).
(b) Complaint: Assuming that the case is in federal court, how the process starts, a formal way to lay

out what happen, whats wrong complaint (Rules 8, also 9, 10 and 11). 3 things in the complaint: - what the court can hear the case (jurisdiction) - claims (what you are upset, what legal rights has been violated) / facts - relief (what you want) Claims to the court and you also have to notify the defendants (Rules 4), e.g., no delivery to minor, how to make the mail, etc. It is not technically required to site the rules or cases, but is recommended.
(c) Defendants motion to dismiss (Rule 12(b)): a strategic choice, by answering, either you contest

every facts and claims (answering the claim which is very intensive), or say that I am even getting in to the ring and will not contest your facts, this is still a not real legal dispute. E.g., southwests webpage cannot be read by blind, you, as a blind wising to buy air ticket, sue it by statuary law (re disability) to the federal court. You want southwest to change the website, money to organization those help blind. Southwest, I agree with you that our website cannot be used by blind, but you dont have a legal dispute as the American disability does not cover the internet and therefore you do not have a legal dispute. Thats you agree on the facts but point out that law rules out the suit (Rules (b)(4)). Rules 12(b)(1) in federal, but try to get to state.
(d) Defendants answer (Rule 8): assuming that you cannot get rid of the case based on (c) above,

answer will come up with as one for one item to the complaint. Admit 1st sentence, deny 2nd sentence, dont know 3rd sentence., reply to each item. by paragraph response to complaint, and also come up with his own claim. E.g., in the example case, the principal denies all the facts,

and says that the teacher was fired due to stealing computer and selling at ebay, which is called counter claims.
(e) Discovery (Rule 26-37): how the plaintiff and defendant get information from each other. Largely

takes place outside the courts supervision. Deposition on: send the request to the principal re the deposition, the court does not the copy. If you have a lawyer, the lawyer will be required to for the process of deposition. You have to answer all the questions unless it is self-incrimination or undue harassment, you can object but you still have to answer. The procedure causes big conflicts.

Summary Judgment (Rule 56): the way to resolve the case without going to trial. There is not enough facts during the discovery before the trial. Usually used by the defendant to get rid of part or all of the case. Partial summary judgment, for claims 1 to 3, you can say that what plaintiff claim is no dispute of the fact, then do not need to go to jury. chose to settle during any above-mentioned procedures.

(g) Pretrial Conference (Rule 16): settlement is formally put on the table, but the parties may also

(h) Trial: when you get a jury on the civil case, 6 people, parties can agree to make fewer. Super

majority vote. Due Process Governing the whole timeline, about whether the procedures are fair. Procedure mean 2 different things: (a) constitutional protection: what procedures are required; (b) internal commands: how the court process operate. Constitutional Protection: 5th and 14th amendment. - Apply to deprivations of life (criminal concept), liberty (usually also in criminal) and property - The deprivation has to involve the government, cannot just be a private actor. it could be government does the detailed action or help 3rd party to do (such as issuing certain notice or document to take away your property) - 5th amendment federal government; 14th state government Hamdi v Rumsfeld (2004)

Who is the plaintiff: Hamdis father sues on behalf of son, son is in prison. Legal claim, the inprison is in violation of due process cause. The son has not had the adequate opportunity to challenge the government re the reason he is arrested and put in prison. His father sues as next friend Hamdi junior is sitting in prison/naval brig, has no access to lawyer. What the father wants: Habeas petition, the liberty of the body. Habeas comes from English law, protecting people from arbitrary or wrongful prison by the government. Typically in criminal cases. Simpson case: trial court convictedappellate court affirmed CA supreme court affirmed, if a federal court, you can also to US supreme court, deny cert (direct appeal) (Writ of certiorari, 4, out of 9, justices, have to vote to hear the case). Once this course is used up, you can file HABEAS petition on statuary basis for constitutional protection to get out of the prison. Hamdi is a noncriminal cases, another example is mental institutions, if you find you are wrongly confined by

mental institution, you can also do so. Habeas is to get out if government custody. You are in US state illegally, you are being held before get out of the court, deportation. Habeas does not apply.

Who is the defendant: Rumsfeld, secretary of Defense. The Habeas petition being held illegally in custody, who is being suited is the head of the government. Procedural history of the case Habeas petition process: (1) file to district court first (one exception is the dispute between 2 states go to supreme court directly) sympathetic with Hamdi and orders counsel/attorney be provided to Hamdi (2) CA 4 no lawyer and tells the district court to be more deferential to government (there are 13 Appeals counts: 1st to 11th, DC Circuit - geographic jurisdiction; Federal Circuit subject jurisdiction, dealing with patent and others.) (3) A government files a motion to dismiss, based on Mobbs declaration District court says no, Mobbs is not enough to dismiss the Habeas petition, asking the government to submit to more evidence. in camera only the court will see the documents, and independently judge the intelligence Mobbs replies on. CA 4 reminders the district court to certify the issue to CA4 for resolution. The issue is IS the Mobbs Declaration sufficient to hold Hamdi?
(4) CA 4 decided that the Declaration is sufficient. (5) Hamdis father appeals to the Supreme Court. S Ct granted cert to hear the case. Cert votes are

secret (but the dissent can be published) but all the opinions re the judgment would be public. SOC, CJ (Chief Justice), AMK, SGB: a) government has the power to detain citizens (DHS RBG disagree with this one; Thomas agrees; AS and JPS also say no authority to detain) b) due process clause requires a meaningful opportunity to contest the factual basis for the detention (DHS RBG joins this point, Thomas disagrees)

Governments argument: (1) being arrested in the combat zone is sufficient (2) some evidence Hamdi argument: (1) I may be in the combat zone for other reason, geography is not enough. (2) There have to be some balancing and what the government offers is not, just cannot come down to the government interest. Balancing by referring to Mathews v. Eldridge (1976) - Due Process Doctrine private interest affected by official action Hamdis physical liberty risk of erroneous deprivation of such interest through procedures used and probably value, if any, of additional procedural safeguards Governments interest, including fiscal and administrative burdens that the additional

procedures would entail in the times of war, national security


Holding: (1) there has to be notice of factual basis for classification as enemy combatant, and (2) has to be fair opportunity to contest factual assertions by neutral decision-maker (not necessarily to be court, can be agencies) hearsay evidence (not based on someones own knowledge, but the knowledge from other one else) should be OK in this case (which is generally allowed under criminal and civil case) presumption rests with government (it is reputable, and such presumption also does not generally happen in criminal case) Counsel/attorney, postponed the question as Hamdi has attorney now

Procedures after Hamdi Due process CSRT (Combatant Status Review Tribunal) (1) personal representative-military officer with no confidentiality obligation (2) written statement of unclassified facts (3) attend hearing, except for deliberation of classified evidence (4) decision-makers are also military officer, totaling 3 and majority vote how about being given an attorney who can see the classified facts, it may be more sense. How much direction has been given to the government for rules promulgation, in other case, the court may work out the due process procedures directly. It is a case by case decision. Hamdi ends up with an agreement with government, Key Points:

due process protection from the US constitutional rights, 5th and 14th amendment, involving government deprivation of life, liberty and property and requiring government involvement in analyzing due process, trying balancing between the private interest and government rights re deprivation (Mathews v. Eldridge)

Jun 17, 2009 Due Process, Pleadings

Due Process Quite general question: Why will we set up procedures in the first place? - fairness, each side can be heard - rule of law - even if outcome is pre-determined value to process innocence - justice balancing - democratic/legitimacy to government - value of ACCURACY (benefits, costs) Accuracy - Bias - Precision E.g., there is a crash between a pedestrian and psycho-list, and caused $10,000 damages. Assuming that for each such damage, the law offers $15,000 compensation. So it is bias, but precise. Another situation, 1/2 chance to gets 0 and 1/2 chance to get $20k, it is unbiased but imprecise. So we care about whether the system is bias and/or precise. For the 1st example, pedestrian will be happy as he can get more than his expectation while psycholist needs to pay more. For the 2 nd example, for each case, it will be unpredictable for individual. Balancing test is based on . the but the overview of that is Accuracy ? Example for Due process

Termination of welfare benefit (Goldberg v. Kelly) The government believes that certain people cannot get welfare benefits, such rules have been set up regarding who could not receive the same, such as the person in drug, with jobs. What kind of process should be given to those persons before the action. (a) it is relating to property interest, great determined to your survival (b) notice (what and) why, and opportunity to challenge (c) so challenging before or after termination. Before: Survivalability/ trick; after: people will be OK/merit challenge, it is waste of governments money, while challenging they still get money but they actually do not entitled to that. Submit written materials, and they can arrange oral discussion after the termination. (d) Court says that there have to be a hearing before termination, but no lawyer will be provided. thats balancing issue. (When you give additional procedure, there will be cost too).


Termination of disability benefits Disability benefits do not depend on income or assets, totally based on the physical case. Mathews v. Eldndgem, back pain, which is less than welfare benefit but can still really matter.

Court: no pre-termination hearing, who has disability will probably be highly educated of their status and written materials can be submitted by them or doctor which is sufficient, the in-person does not help much. For the real poor person, they can go to welfare benefit.

Abandoned assets set in the safety deposit box, will go to state (CA practices). They will use this help balancing the state budget. They took out newspaper ads, web notices and saying that we will take it after 2 month. It is for property, valuable. - lease contract, rules has been set - longer notice/where published - personal notice Court says that is public notice is not enough, more notice will be required. Parking Ticket, Van Hakes v. Chicago Written submission, sometimes go for hearings. A private people will listen to parking ticket dispute. The plaintiff says that it should be state official, rather than general person. Course denies: Due process care about benefit and costs accuracy, a general people does not mean they will be bias. And in such case, it is a tiny deprivation, while for more process, the cost to the state will be large.


Attorney Fees Hourly fee: if you go to write a will, it will be governed by state, generally hourly rate. Contingency fees: Tort case, contingency fee if I win, the lawyer get 30%, if I lose, the lawyer get nothing. State funding: Criminal - state, rather than victim pays the lawyer for criminal prosecution and public defender for defendant. Either the state asks the official public defender organization or from a private lawyer in judges list (lawyer is not forced to take). Civil legal aid organization.

American rules: the successful party recovers costs from the losing party, but NOT attorney fees. (but contract can make different rule) English rule: loser pays most/all of the winners attorney fees and costs. 42 U.S.C. 1983 if you have a deprivation of life, liberty or property or other violation of federal law by the state governmental official, this provide you with a cause of action to sue for money. 1988 allows you to get attorney fees, you win the case with government and your attorney will be paid by the state, but it doesnt work in the other way unless the court finds your claim is extremely unreasonable, groundless. When does the due process require an attorney? for indigent or poor in criminal cases for jail time; civil cases Hamdi. For parking ticket, costs >> benefit, so not necessary for an attorney. Lassiter v. Dept of Social Services 1981, a mother in jail will lose her child, which the due process for attorney is not supported by the court. It is actually case-by-case issue, in practice, you can usually get a lawyer. But for a father who is claimed to pay for a child, he can get state fund for blood test to confirm you are the father. Pleadings Rule 7:

Pleadings - core documents that frame the dispute. Motion Other papers

Pleadings Complaint initial document filed by the plaintiff Answer to a complaint substance respond to the complain, it can contain the original complaint Answer to a counterclaim plaintiffs response to the defendants counterclaim Answer to cross-claim Third-party complaint Answer to 3rd party complaint If the courts orders one, rely to answer (generally plaintiff does not have chance to discuss defendants answer, but if court order, you can. The generally idea is that each side goes 1) First 2 are the most important pleadings. (P546) Plaintiff Complaint Defendant Answer response to claim 1 claim 2 counterclaim 1 2 Defendant 1 Defendant 2 defendant 1 has a claim-related against defendant 2 to cross-claim Defendant 3rd party complain answer to 3rd party complaint

Claim 1 Claim 2 Answer counterclaims Plaintiff Claim Plaintiff Claim


Focus on complaint Short and plain statement of jurisdiction Short and plain statement of claims showing plaintiff is entitled to relief Demand for relief Access Now (548) Geography FL (northern, southern, eastern, western.) CIV-Seize: Art III judge, appointed by president, confirmed by senate, serve for life; who give ultimate judgment Magistrate Bandstra: not Art III judge, serve for term, can give advice to the Art III judge, makes preliminary decision for the Art III judge but no ultimate judgment. 1) Jurisdiction (#2) Subject matter ADA as federal law (personal/territorial) southwest has operation (venue) plaintiff lives, in his home he cannot have access to webpage Paras for Facts between the jurisdiction and claims for relief.

2) Claims (#4) short and plain More complicated, lay out details to large settlement, educational function, cover points as much as possible you need to list all the facts and claims at the start, you cannot strategically hide. 3) Relief

declaration injunctive (make or stop people to do sth.) - not money, want the website to change attorney fee, litigation cost (12205)

In the end, asking for jury trial. You dont always get a jury, if you are qualified for jury, you HAVE TO ask for, otherwise you lose it. For this case, plaintiff fails in second requirement of the complaint. Fails rule 8(a)(2) = 12(b)(6) motion Fails rule 8(a)(1) = 12(b)(1)(2)(3) Why an amendment is not allowed in the complaint, - change of complaint could - it is within the discretion of the court For this case, probably the court thinks the plaintiff never try to sit down to work out with the defendant. There is still chance for other parties to bring the suit and set up the uniformity. Twombly This case changes Rule (8)(a), strengthening 2nd requirement. ILECs CLECs Constrain to restrain trade 1) charging too high price to CLELs 2) ILECs not competing with other other SDNY dismiss the claim under Rule 12(5)(6) CA2 reversed Sct Tip: for the name of the case, the appeal court doesnt change the case track from district court, but supreme court, it make the losing party before the other. Key issue: You needs allegation plausibly suggests illegal agreement to satisfy the Rule 8(a)(2). possible facts. Dissent quoting Conley v. Gibson (REMEMBER no longer cite this case): you cannot dismiss our claim unless you show no satisfactory facts. Rule 11: You cannot write things in the complaint unless you reasonably believe them to be true. Some one think the new rule will only apply to antitrust case, which the discovery will be really costly. But after Twombly case, there is an Erickson v. Paradus pro se prisoner, they use different rule. Iqbal 2009, Twombly applies to all complaints. Revised Doctrine: - notice pleading looks more like code pleading - court will not accept legal conclusion in complaint as true - complaint needs well-pleaded facts that state a plausible claim for relief to survive a 12(b)(6) motion

Jun 18, 2009 Pleadings, Subject Jurisdiction

Pleadings Complaint under Rule 8(a), seems simple but actually will be completed. The 3 requirements apply to any claims, namely, all the claims (i.e., counterclaim in answer to complaint, cross-claim, third party claim) under Rule 7. How extensive does such claims should be? Rule 8(a) and Form 11 (used to be Form 9 as mentioned in Twombly) Rule 84 mentioned that the forms in appendix meet the requirement under Rule 8(a) but seems odd after Twombly and Iqbal cases. Revised Doctrine - notice pleading looks more like code pleading - court will not accept legal conclusion in complaints (counterclaims/cross claims) as true - complaint needs well-pleaded facts that state a plausible claim for relief to survive a 12(b)(6) motion Background: Twonmbly is antitrust class action (for antitrust, it can be private suit first and another case involves government claim), there is really no facts to claim that it is plausible (smoking-gun documents). The evidence itself does not need to be attached, but when you sign the complaint, you must reasonably believe there is evidence as ethical obligation (not have to be certain). Ashcroft v. Iqbal: Iqbal has been detained and questioned by FBI, he sues the head of Justice Department, FBI and other lower level people. His constitutional rights have been violated due to his religion and on national ?. District court dismissed it while appeal court thinks that it meets the requirement of item 2. Supreme court reversed. The court may think the majority part is misleading for providing conclusion all the time. Test Steps: (a) The court will get rid of anything the court determines to be legal conclusion (e.g., plaintiff mention these 2 men knew the discriminatory policy, the court think the discriminatory is actually a legal not fact conclusion, but also have fact factor re he knew the policy.), (b) the court uses its judicial experience and common sense to fig out whether the remaining facts give a plausible claim (fact left this he is questioned, which is conducted by FBI; in Southwest, when you say Southwest website is a public accommodation, it is a legal conclusion). Step(a) is important to plaintiff, make sure of the factually while the defendant will try to figure out the legal conclusion from paragraphs. Courts has lots of discretion in Step(b) to decide plausible or not. Remember that if defendant does not claim against this issue, the court cannot decide diretly all by itself while for subject matter jurisdiction, the court can make decision directly without defendants motion of dismiss. In practice, not say that do not have legal conclusion. Try to separate the factual elements and legal conclusion carefully, e.g., one para: know, design the policy and then another para: they knew the discriminatory policy and have key role in the design of the rules. Note: - Rule 8(a) applies all the time when there is claims. - Rule 9(b) has other small satisfactory requirements. Heightened Pleading relating to fraud and mistake, require more details. - Sometimes there is statutes Congress also says to sue under this law (certain particular laws), you have to show more (e.g. private security fraud 1995)

Subject Matter Jurisdiction Initial question as where you decide to file with federal or state court. However, no matter where you file, 3 things: - subject matter jurisdiction can the court hear the content of the lawsuit/dispute - personal/territorial jurisdiction over the defendant - court is a proper venue For state courts, they can general jurisdiction, hearing any dispute involve state or federal law. But states sometimes have specific subjects, like probate, family, or small-claims court. Key: state court can hear federal matter. Federal court: What one district court can hear, typically another district court can also hear. Appellate level decides the scope, for patent, you need to go to Federal Circuit. Elements to consider when choosing between state or federal court: judges, location, jury, attorney, rules. Subject matter jurisdiction is super special, anyone at anytime can get rid of the court if the court is found not to have right to hear the subject (e.g., an audience can write a letter to the court). Four ways to get federal court jurisdiction: (1) Federal Question Constitution serves as out limit, which gets narrow by statute below 28 U.S.C.1331 (United States Code Rules) Federal courts have jurisdiction over any civil action arising under Constitution, laws or treaties of United States. Plaintiffs claim must arise under federal law, not anticipated defense or counterclaim (it has to be the claim in the very first document to involve such issue rather than those in the defendants document) No minimum amount requirement in controversy (before 1980, $10,000) - $75,000 is for diversity reason, under this course, small potato is also workable. This rules applies to original jurisdiction, not to Supreme Courts appellate jurisdiction (SCts special rule, if federal law could be important for the final ruling, the SCt have the depositive right) (e.g., Mottley case: P claim involve state law contract claim while the defendant also does not object, so the case is within state court system and appeal to state court, while the US Supreme Court can finally decide that the case is federal law related, it can hear)

(2) Diversity: also have constitutional background (Art III) and statute requirements (28 U.S.C. 1332)

diversity of parties Diversity complete: no plaintiff can be from the same state as any defendant. Different state citizens: US citizen (also reside in US) or permanent resident (not meaning immigration, but non US person but domicile in US) of other country. (Domicile be in the place and intend to stay, the days required will vary). Try Wright & Miller to resolve your question. E.g., A(CA) and B(NV) v. C(AZ) and D(NW) OK

A(CA) and B(NV) v. C(AZ) and D(NV) not OK For company, 2 possible states, (1) where incorporated (most of company - Delaware); (2) principal place of business headquarters or production facilities E.g., A(CA) and B(NV) v. C(AZ and DE) and D(NM and DE) - OK A(DE) and B(NV) v. C(AZ and DE) and D(NM and DE) not OK Determine at the time suit if filed (e.g., Dataflex (Mexican corp) v. Atla Partnership (TX, partnership involve the state both partner live) Exception: Air-crash and other similar case: as long as most of the plaintiffs are not from the same states, as it is a mass accident, the complete diversity is met. federal court is more sympathetic to defendant, so this helps the defendant to have chance to be heard under federal amount in controversy Greater than $75k, which is the plaintiffs good faith claim, not the final amount judged. E.g.-1 A(CA) v. B(VA): A has 3 separate claims against B, each is $30k, does this meet? Yes, you can sum up as $90K, the claims need not to be related. E.g.-2 NO, but be plaintiffs amount A(CA) v. B(VA) Claim 1 20K counter claim 1 20K Claim 2 20K Claim 3 20K E.g.-3 NO, at least one plaintiff needs to meet the $75k requirement A(CA), B(CA) v. C(VA) A claim 1 40K B claim 1 40K If they are 2 plaintiffs, their claim should be connected. One exception, if A and B has a joint common interest, you can sum up, like partnership, house and wife in their community property (do not have common interest in their child claim for childs damage in traffic accident) Domestic Relations action exception, like for devoice. If you file wrong court, the statue of limitation does not stop.
(3) Supplemental Jurisdiction (28 U.S.C. 1367)

It is a discretionary decision of federal court, to bring actions into federal court which is not subject to federal jurisdiction for purposes of efficiency. The court can allow but does not have to allow. Is there a claim that satisfies federal jurisdiction? Is there another claim that meets the standard for asserting this type of jurisdiction? In other words, is there a common nucleus of operative facts between jurisdictionally sufficient and insufficient claims? - Have to be linked to valid claims, same set of facts test Does taking the otherwise jurisdictionally insufficient claim foster judicial economy and is it fair to the parties? Efficiency and Fairness test E.g., A(CA), B(CA) v. C(AZ), in the same accident A claim 80k for car damages B claim 20k for physical damages

This is OK so long as one claim meets the controversy amount, you can involve another claim which is under controversy amount as long as it is the same fact. A v. B, C: A claim B 40k and claim C 40k, you cannot sum up. This is to be used if you failed in federal question or diversity.
(4) Removal (28 U.S.C.1441) case started out in state court and can the defendant move the case

into federal court. The above 3 is all about plaintiffs desiring to get to federal court, in other case, usually involve torts, the plaintiff will want to state law to get more damages while the defendant will think of federal court which is more preferable to it. 3 things has to be true before removal: - Federal court would have had jurisdiction if plaintiff filed there (based on complaint) (Plaintiff could have used supplemental jurisdiction for state law claims for which there is no independent basis of jurisdiction) - Only defendant can remove - In diversity cases, only non-resident defendants can remove A(VA) v. B(CA), A filed to CA state court with 80K claim; it can be under federal court jurisdiction but B cannot remove as B is from the same state. Federal government/official being sued in state court, it is allowed to remove to federal court. E.g., ALCU v. Various phone co, try to avoid all possibilities for federal court; the defendant claim that it is actually related to legitimacy of National Securitys rules.


Jun 19, 2009 Personal/Territorial Jurisdiction, Venue


Subject matter jurisdiction one of the 3 requirements, which is about the content of the claim State court: general jurisdiction Federal Court: Constitution/Statute 1) federal questions: US constitution, US laws, Treaties; should be the plaintiffs claim 2) diversity: state law question, complete diversity party (exception, accident more than 75 persons and damages more than 5m), 75K 3) Supplemental: are you have a valid claim bringing in other claims same, same dispute fair to party; under the judges discretion 4) removal

Personal/Territorial Jurisdiction This part is about the parties, and really about the defendant. The plaintiff by filing has already agreed with being bound by the court. Then, is it fair for the defendant to be bound? (Question is whether court has authority to issue a binding, enforceable judgment construing the rights and duties of the parties). Does the court have the power to make the decision and is it fair for court to drag the defendant in. Defendant in personam/personal It is also about authority on property/things in dispute in rem/quasi in rem jurisdiction Ask the 3 questions no matter what court you are in (state or federal). For subject matter, it is easy for state court as it has general jurisdiction while personal jurisdiction is no longer for state. Easy cases: 1) Domiciled: Defendant lives in Berkeley, CA court, federal court in CA (ND Cal) 2) Consent: defendant agree, often done by contract (forum selection courses) It can be highly inconvenient, you can choose state even does not have any relationship; but for this situation, you may not go through venue problem. If no consent, you have to meet the statutory and constitutional requirements Statutory

State court: Long-Arm statute (certain things to bring in non-state residence), motor vehicles (cause accident in the state) Federal court: Rule 4, when can you serve someone and make them appear in federal court (a) if state has a statute that covers defendant, federal court can rely on the same statute (the plaintiff to choose, no specific preference) (b) 100 miles from the court house, not for everyone but for certain parties (c) if federal questions and defendant is not in any state (i.e., abroad), federal court may have personal jurisdiction. - Rule 4(k), some will have direct statute

Constitutional (Generally, it is about whether the statute is constitutional or not) State/federal court: due process question, is it fair for the court to have authority over the

defendant? 2 part test (you need both of them): (a) contacts/fairness: this comes from International Shoe case, defendant must have minimum contacts with state; if so, whether the court would be a fair forum (Should the defendant have foreseen that it may be possible that they have to be caught into account in that state/full opportunity to be heard)? Range of contacts: - pervasive contacts: fair for the court to have jurisdiction over any claim whether or not claim is related to contacts themselves) general jurisdiction - bare minimum of contacts: jurisdiction is limited to claims based on those contacts. specific jurisdiction E.g., You live in AZ but come to CA for work everyday, if you have car accident in CA, CA court has jurisdiction based on pervasive contact as you are so active in CA, any claim can be heard in CA. If you are in AZ and come to CA twice a year, jurisdiction has to be tired to the specific contacts. Volkswagen case use the judgment rather than dissent part. Key issue: Are the contacts related to claim? (b) notice: in Volkswagen case, notice is not a problem, the NY dealer knows that he has been dragged into the case. You dont have to have actual notice, the court can even hear the case if the defendant never know about the lawsuit. If you have try reasonable enough efforts to find the defendant but still failed, you have do that. Jones v. Flowers case (before state can take property and sell for unpaid taxes, must provide notice and opportunity for hearing; if notice comes back as undelivered, government must take reasonable steps to provide notice beyond newspaper ads you know the mail doesnt work, you cannot simple post the ad in the newspaper) try pretty hard Foreign Defendant Where do you think foreign individual can be heard? Assuming that plaintiff sue in CA re individuals from VA v. China convenience, different legal regimes, notice procedures different. Discussion: the same test for individual from different states or international nations yes or no (sovereignty of other countries citizen, reciprocity, treaties, due process concern less able to understand the US law, may not be foreseeable or fair)? Treaties first; other than treaties, the court will generally go through the same test but apply the way to require more contacts, usually hesitate to drag foreign defendant in the case. Venue Subject matter and personal jurisdiction constitutional + statute Venue is solely based on statutes or rules, nothing relating to constitution. How to determine if the federal court is the proper venue (each state has their own rules which will not be discussed here).

Federal Venue: 28 U.S.C. 1391, 1391(a) diversity, 1391(b) federal question Venue is proper: either of the below (1) in any district where a defendant resides if all defendants reside in the same state (1 defendant in SF ND Cal, 1 defendant in LA, SD Cal, OK) (2) in a district where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated it is about the location of the dispute (1 from DC, 1 from CA, accident in CA, you can sue in CA but personal jurisdiction may be a problem; if accident in NY, you can sue in NY where the event happens) (3) in cases with multiple defendants, in a district where any of the defendants are subject to personal jurisdiction when suit is commenced, if there is no other district where action can be brought (1 from DC, 1 from CA, accident in Italy; cannot use (1) as 2 from different states, cannot use (2), as no federal court in Italy; we may try this if the person in DC has minimum contact in CA while the other is just from CA) (4) in any district if person is an alien (still have to meet personal jurisdiction)

If there are more than 1 venues, the plaintiff can chose (2 defendants from CA, accident in NY, to chose CA or NY) Proper venue but inconvenient court (for above, although you can sue CA, it may be inconvenient as all the witness are in NY), under this situation, the court can transfer to a more convenient court (1404 transfer motion, from US district court to another US district court) although it meets the subject, personal jurisdiction requirement. If you want to move from US district court to a court abroad, it is under forum non conveniens

Putting It All Together

subject matter not waivable personal jurisdiction can be waived by defendant venue can waive

Example (P162 and 163) Barnum ME attached by lion v. Ringling - incorporated in WI - principal place in NY (above 2 is only for diversity) - winter quarter in FL - permanent facilities for training in ND OH - performance in MI and other states.

Problem 1a. Subject matter: - Tort under state law, - then go to diversity (ME, WI and NY, complete), if >75k, then OK Personal jurisdiction: - defendant is not from Maine - minimum contact: performed in the MI, OK - fair: perform several times each year in MI, and the claim is related to contact, then OK

Venue: -

- notice: defendant resides in WI and SDNY (reside venue is broader than citizenship. So May be also MI) Accident happened in MI

1c. Subject matter: the same the answer to a Personal jurisdiction: - minimum contract is training, claim is not related to training - then whether the contacts are pervasive, if yes, do not need to be related Venue: reside in Ohio also for part of a year Even it can be heard in Ohio, you can use Section 1404 for transfer motion to move to Marine where the accident happen and most the witness are. Transient under personal jurisdiction if you can catch a person in the state and hand you the documents, even if it is not so fair. Apply only to people, not company. 4. Ringling v. Kelly Rice FL and ME VT and VT

Subject matter: - not federal law issue - diversity: yes for complete issue, so see whether >75k not Personal: - domicile not, consent not - minimum contact: Kelly has minimum contact and related to claim Rice has no minimum contract Venue: - not same state - substantial part yes in ME So, can hear the case for Kelly, not for Rice (sue in VT)


Jun 22, 2009 Pleadings, Ethical Requirement, Motion (Rule 12)

Question re UCC: One of the uniform laws, it is up to the state for adoption, UCC is well written and is adopted by 50 states plus DC. But it is still a state law, not subject to federal court, unless under diversity or some claims that get into federal courts and then involve as supplemental reason. Complaint exercise: filed in district court, to meet requirement of Rule 8(a) (jurisdiction subject matter, personal, venue; claims, relief) Inconsistent Pleadings Rule 8(d)(2)-(3) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency Rule 8(d) operates with Rule 11 Rule 8(d) inconsistency, sometimes you write a complaint but not quite sure what has happened. There are 2 or more than 2 theories which cannot both be true. This rule allows you to set out all the alternatives. It used to be that when you are filing, you have to choose first. You are allowed inconsistent claims (or defense) but subject to Rule 11, which means that you should have reasonable belief or facts backing it up. Claims 1 Fact A Claim 2 Fact B

Defendant in defending fact B will use Fact A to against Fact B, so it is required that defendant cannot use fact A to against fact B, vice versa. Rule 11 to make sure that people act appropriately Apply to pleadings (Rule 7 core documents that frame dispute) Apply to motions (to move the court to do something on the basis of some pleadings) Apply to other papers Does not apply to discovery (has its own separate sanctions regime under Rule 26 and 37) Element of Rules apply to the attorneys, represented parties separate from attorneys; or the unrepresented party (pro se, ). frivolous unfounded legal contentions, only to the attorney or the unrepresented party, the represented party does not need to. ethics rules: what you promise to do under this rule. By signing, your signature certify the followings: (1) Not file solely for improper purpose (to harass, delay or increase the cost of the litigation) There need to be certain legitimate and proper purpose, or say is it legally or factually OK. (2) Legal contentions have to be based on law/cases (legitimate reason for argument if it is new) non-frivolous extension of law (3) Facts some evidence behind them, or if you dont know (have evidential support), you can say tat the facts right now do not have support but are likely to have it later. (may be you rarely

wish to do so) (4) Denials have to based on facts, or you can deny if you lack information (if you actually which is consistent with what plaintiff says, you cannot deny)
(1) (4) (except (2)) apply to attorney, pro se and represented party.

Imaging that you obey all the requirements but several months later you find you are wrong, is Rule 11 a continuing requirement or only when you sign the paper? - The latter. Can you continue to press the head? No, you cannot continue to claim for certain specific facts. You have to go back to the court and recover yourself. If you find the facts completely against the client, you still have to correct it. You have obligation to both the client and the court, the latter will usually be more important. What the violations means: Do not have to be willful (intend to violate), intentional, negligence or carelessness. What the sanctions will be: Motion of sanction (Rule 11(c)(2)), dont file with the court, instead give it to the offending party 21-day (working days) safe harbor (withdraw the whole complain within 21 days, but you cannot get him to pay you for the filing of documents and others); after 21 days, filed with court. (someone, in practice as strategy, may file motion to plaintiff only and never go the court, then you can try to counterclaim against the defense). If court determines if there is a violation, sanctions have to relate to deterrence rather than punishment. non-monetary: extreme strike documents / dismiss case reprimand: basically like shaming to the lawyer, also require lawyer to attend legal class. Monetary penalty: pay to the court rather the other party, attorney fees of the other party. Separate tort case claimed by the other party, or the judge is so shocked and refer the case for criminal prosecution, or the other party can send letter to bar association and bar sanction; but generally happens is strike documents.

Sanctions are discretionary Court can impose sanctions without a Rule 11 motion District awards sanction, appellate court generally show deferential unless it is an abuse of discretion

Zuk Statute of limitations, doesnt investigate facts enough, 28 U.S.C.1927 willful bad faith NO District court comes up with $15k, CA appeal court thinks it is an abuse of discretion to ask $15k, which is really high? History and Policy Discussion Congress can do with and changes any rules Judicial Conference, made up of Chief Justice, all the chief judges of courts of appeals, 12 district court judges and few others they appoint standing committee on Rules (judicial conference + appointed) Advisory committee on Rules (appointed)

(5) If Congress gets them rules take effect, have to ACT to stop them (4) send to Supreme Court, either forward them to Congress or refuse to do so, but in either way, cannot change the content. (3) accept, reject or modify Judicial Conference (2) Accept, reject or modify Standing Committee on Rules (1) Drafts changes, take public comments Advisory committee on Rules 2 ways to changes the law, one is congress directly does that but rarely happen, the other is to follow administrative process. For Rule 11: 1938 - 1983 1983- 1993 1993 willful bad faith violation - rarely sanctions object standard, mandatory sanctions - more sanctions current version, 21 day safe harbor, sanction discretionary, objective standard

Safe-harbor: + outside the court abused Objective standard: + bad faith hard to prove If worried about pro se, you could correct this with sanctions. Discretionary sanctions: Judges - variance, table of sanction to constrain the judge Individual circumstances may need judges discretion, but could be set min and max Purpose deterrence + discretion egregious: Pragmatic / practicality Rule 11: H.R. 420 Eliminates safe-harbor provision Makes sanctions mandatory, not discretionary Increases sanctions, so for deterrence and compensation of parties Applies to state court proceedings if cases affecting interstate commerce Imposes 3 strikes rule: attorneys would be prevented from practicing for at least one year in district court where at least three violations occurred Rebuttable presumption () of violation when party tries to litigate in any forum an issue that party has already litigated and lost on 3 consecutive prior occasions Makes sanctions applicable to discovery Answers Complaint filed by plaintiff, defendant has 2 choices Rule 12 motion or Answer. Most defendants try Rule 12 motion first, then how successful you are, then you file the answer. Answers are governed by Rule 8(b)(c)(d), the first pleadings that respond to complaint (Rule 12 motion is NOT pleading), which looks similar (parallel) to complaint but usually short.

Complaint #1

#2 #3 *

Answer #1 Admit, Deny, Dont know (lack of information), maybe sentence by Sentence; be really careful, if deny, may also trick Rule 11, once admit, you can not take back anything and will go with you through the whole hearing. * #2 #3

(a) Parse it carefully (b) Dont skip anything, if forget to mention, it will be treated as admission. General denial is acceptable but not good thing to do, Rule 11 issue and other? And the court will even ask you change the answer para by para. (c) Dont have to play cards and explain why, your reason for the items.

(1) Answer paragraph by paragraph (2) Include affirmative defenses to allegations Rule 8(c), have to raise now rather than take hiding (Defense mitigates or takes away the claim made by the plaintiff) You can also raise Rule 12 Defenses lack of subject matter, proper venue. (3) Counterclaim/Cross claims Rule 12 Defense Complaint filed, you have 20 days (find a official service process) or 60 days (waive the in-person service; when you sue united states, always 60 days; usually 60 days in practice) to answer or file a Rule 12 motion. If file the Rule 12 motion, you have not lose the chance to answer. When the court rules on the motion, if you lose, you get 10 days to file your answer. The court can extend (not reduce) any of the time limitation. Unopposed motion for an extension of time to the court, the judge often time grants. Some judge has local rules and is strict. The motion is widely used in practice. Limited Set of Objections, Rule 12(b) (1) Lack of subject matter jurisdiction (2) Lack of personal jurisdiction (3) Improper venue (4) Insufficiency of process formal of the documents, e.g., typos in the service documents (20 days v.s. 25 days) (5) Insufficiency of service of process service of the documents, e.g., delivery to infant receipt (6) Failure to state a claim upon which relief can be granted (7) Failure to join a party under Rule 19 (1) to (3) are big, violation of Rule 8(a)(1) (4) and (5) are minor, usually do not see and such technical violation can be resolved by the parties directly. (6) is huge, violation of the 2nd requirement of the complaint, Rule 8(a)(2). Twombly, Iqabal (7), the party fails to sue an indispensable person. There is a person key to the case but you have sue him Some cannot get 2nd chance, some can. See Rules 12(g) and (h).

Jun 23, 2009 Defense, Amendments, Discovery

Rule 12 Rule 56 works with Rule 12, which are quite important to defendant. Rule 12 + Facts = Rule 56. Rule 12 is the way getting rid of complaint without getting into the facts. Rule 12(b), Limited Set of Objections: (1) Lack of subject matter jurisdiction (2) Lack of personal jurisdiction you can waive (3) Improper venue the court itself is the wrong court (4) Insufficiency of process (5) Insufficiency of service of process (6) Failure to state a claim upon which relief can be granted you forget to raise, you have lots of chance/time to raise (7) Failure to join a party under Rule 19 the plaintiff needs to sue someone else. (2)-(5), one shot to raise, if not, you lose them. In Southwest case, (1) is for whether it is a case about the federal rules, (6) relates whether the federal rules really cover the issue. 12(e): motion for more definite statement spell out more clearly, tell me what you want, usually happen in pro se case. Be careful when raise this motion as it actually says that it is too bad, especially to a represented plaintiff. When necessary, writing in a polite way and make the court not think it is assaulting. 12(f): motion to strike strike particular document(s) in the pleadings. Court also does not like this motion, if it is really irrelevant, just ignore it. 12(g): consolidation requirement if you make a pre-answer Rule12 motion, you have to combine/include/stick in all Rule 12 issues, assuming that all the defense are known at that time. Exception is that something is not available when you file the motion, for e.g., you are so confused and raised 12(e) motion first, then upon knowing the facts, you raise 12(b)(6) motion. 12(h): waiver regulation, for certain motion, if you dont raise in the first available time you do so (Rule 12 or Answer), you actually cannot raise the same in any other process you lose it forever. - Waive (b)(2), (b)(3), (b)(4), (b)(5) if not in first Rule 12 motion or answer (if no Rule 12 motion) - Can raise (b)(6), (b)(7) in 12(c) motion, answer, or at trial 12(c) motion is after the Answer, judgment on pleadings (you still take the facts that the plaintiff alleged); also in a summary judgment motion, or a trial (right before you go to the jury) - Can raise (b)(1) at anytime 20 or 60 days for motion/answer submission, since the time you receive the complaint. If you have amendments, you can go another around. Exercise: - Complaint; then 12(b)(6) motion; motion denied; then 12(b)(2) and 12(e) motion. NO, for 12(b)(2) should be raised in the first time; for 12(e) should follow 12(g) to be consolidated with other. - Complaint; then 12(b)(2) and 12(b)(5) motion; motion denied; then answer raising 12(b)(3). Result?

NO, should be raised in the first time. What if no original 12(b) motion, can you raise 12(b)(3) in answer? - YES - Complaint; then 12(b)(6) motion; motion denied; then answer raising 12(b)(1). Result? - YES, you can raise any time. Amendments Efficiency Correct defedants/correct mistakes More information dispute clearer Fairness/justice unfair to keep changing go on too long

Rule 15(a) - Amendment of Right - Can amend complaint once without court permission before opposing party has filed responsive pleading - Can amend answer within 20 days if the case is not on trial calendar (no responsive pleading after answer, reply has to be ordered) Rule 15(a) - Amendment by Permission - Can amend by leave of court or permission of parties: leave shall be freely given when justice requires The court in certain cases can give permission to amendment to further justice, but for certain reasons like Bad faith, multiple amendments, futile/useless, delay, the court can refuse (This is only for amendments for pleading, not motion, which you need to go to court separately and specifically for that, always subject to the courts discretion.) Complaint Claim 1 6/23/2009 the fact happen on 6/23/2007 Claim 2 6/23/2009 Amend Claim 3 7/23/2009 (usually amendments dated from the time you amended, but for such case, you require it date back to the original pleading, then see Rule 15(c)) Rule 15(c) - Relation Back of Amendments Amendment dates back to original pleading if: (A) Law that provides the applicable statute of limitations allows it (B) Amendment asserts a claim or defense that arose out of same conduct set out in original pleading (C) Amendment changes the party if (B) satisfied, if within period provided for service of complaint, and if party received notice so that it will not be prejudiced in defending the case and knew or should have known that action would have been brought against it but for a mistake concerning partys identity - About you change the party, 3 conditions need to be satisfied to date back the original date: (1) still to involve the same facts/events you talked about in the original pleading; (2) the new defendant has to have notice within 120 days of the filing of the complaint (a public notice or the one personally served to that party, notice need not to be formal); (3) the new defendant knew or should have know to be sued, but they are not just due to mistake (lack of knowledge does NOT equal mistake). Worthington

Rule 12(b)(6), facts as plaintiff alleges Deprivation/violation of federal right, or By state/local government. Arrest date of 2/25/1989, and bring the sue on 2/25/1991, just before the expiration of the statute of limitation. On 6/17/1991, change the complaint to include the names of the 2 policemen. The defendants claim that the date cannot relate back to the original complaint. The District Court grant the defendants dismiss and supported by the circuit court, with the reason that the mistake does not include the lack of knowledge.

Attorney to investigate How much time the statute of limitation will allow You may try to go to police, asking for the arrest report, if police refused to do so, you can claim its bad faith. stay/hold statute of limitation when you go to the police for report? How about the police make up 2 names, sanction under Rule 11.

Summary: Lack of knowledge is not mistake There is a real duty of the attorney to meet the statue of limitation requirement Practice: Imagine the following timeline: 1/1989: W injured by 3 officers: A, B, C 1/1990: W files suit against A (named) and 2 unknown named defendants 3/1990: Answer filed 1/1991: W moves to amend to change 2 unknowns to B and C Result?

Can W amend as a matter of right? NO, the plaintiff has submitted the answer; but W can ask for the courts permission, which should be reasonable as it is the first amendments. The relation back does not need to be worried, as the 2-year statute of limitation has not expired. Complaint; answer filed on January 15, 2003; defendant moves to amend answer to assert b(2), b(6), (b)(7). - Ok if amendment on 1/25/03? YES, within 10 days - Ok if amendment on 2/25/03? NO, you can only amend by permission; and only for b(6) and (7) you waive your disfavor offense if you do not raise in first time or within the allowed time for amendment of right (no permission)

Jun 24, 2009 Discovery

Discovery Need the information to get a fair outcome; Simple pleading; Settlement

Before 2000: could seek information that is relevant to subject matter of litigation so long as it is not privileged After 2000: broad scope limited to court-ordered discovery; party initiated requests (made without court authorization) are limited to information relevant to the claim or defense of any party so long as it is not privileged. -

Relevant Non-privileged Cant be too costly/too burdensome, the requester normally does not bear cost of discovery, Rule 26(b), limit the discovery if the party .; the party has opportunity to obtain it in an earlier stage; if the burden is so much greater than the likely benefit Relevant to a specific claim or defense so long as it is not privileged, outside the courts supervision. Zubulake ($ 29m, 9m compensation and 20m punitive) Complaint: - Job decision based on sex/gender - Retaliation Jurisdiction: Federal question + supplemental jurisdiction Discovery: 4 months after she files complaint, all communication (including emails) by and between UBS employees about her. Rowe Test a Balancing test: - Relevance of the information being sought, request tailored; is the information critical to resolve the case and whether the request specifically for this kind of information? - Benefit - Costs - Overall importance of litigation - Relative benefit The courts solution is that it cannot make an overall decision, and then arranges a test running. The plaintiff chooses 5 of the 94 tapes to be restored, UBS need to restore and go through whether it is privileged first. The court then comes up with a cost sharing plan, for the rest of 77 tapes, 25% cost of restoring will be assumed by the plaintiff but she does not have to pay for the lawyer to go through and review. In the end, UBS says that 5 crucial tapes covering the exact periods, but the tapes are lost. UBS employees and lawyer have deleted emails after they were told not to do so (spoliation). The court decides that UBS has breached its duty to produce the evidence, and because of the spoliation, the plaintiff can infer bad action to UBS. Right before the trial, UBS changes law firm, which files a Rule 15 motion to amend the answer (which needs a permission). UBS now claims that the plaintiff has lied on her working background. The court denies the permission of the amendments, UBS has the information 1 year before. 3 years after complaint filing, it goes to trial and the jury awarded $ 19m. Rule 26: Emails reasonably accessible (depending on the technology available) have to be produced. Emails not reasonably accessible - if the requestor can show good cause (your case entirely rest on the same, the key items), have to be produced, which might be cost sharing - if cant show good cause, wont have to be produced. The burden to show inaccessibility falls on the producing party. Safe harbor provision if you delete emails in the normal course of business, thats OK (no spoliation

issue). You have to go to test for backup tapes. You have to stop deleting as soon as you know you will be sued (tailored emails). A 3rd party to produce the emails will generally be hard. Sneak Peek approach: a new decided process to let the requesting party go through all the emails and pick up those he thinks appropriate. Then I will go through these emails to see whether they are privileged, if yes, the requesting party will not get turned over even thought he has seen it. This is for efficiency purpose. Stages of Discovery (1) Informal Discovery: you dont want writing too much down, talking to potential witness only if specially when talking something bad to your side. (2) Discovery Conference (Rule 26(f)): both side sit down and make a plan for how the discovery tools will be used. It happens early and outside the court. The plan will be submitted to the court. Lay out the timing, usually before the trial, the only exception is expert which will be right before trial as they are expensive. (3) Mandatory Discovery: There are 3 times when you have to hand over information without being requested - Initial disclosure, within 14 days after the discovery conference and 4 categories information, A. names/address which support the claims/defenses B. the documents themselves or information about the location of those documents C. Computation of damages, explaining where the money figure comes from D. insurance agreement relates to the payment of judgment (before 1993, there is no initial discovery, for 1993 to 2003, you have to submit all the information supporting or hurting your side; since 2003, just disclose the information favor your side) - Experts: - Trial: Basically there is no surprise, you have to turn over in advance all the exhibits, documents, list of witness. If you go to, you dont need to identify impeachment (question someones honest, truthfulness, creditability) witness. Tools of Discovery: to mix and to do in the order you want. - Deposition/Depos: Rule 30, major discovery tool. Parties or non-parties Cross examination of witness at trial, never want to depose your own client Opposing side/witness Not limited to parties, also cover non-parties under oath and recorded Pretty much negotiable, there is a limit which could be changed Audio, transcript, sometimes video tape which is more expensive and also really hurt your client. Normally not played at trial but can use them to impeach. Rule 30(b)(6), What happen when you sue a company: specific business practice or instance of a company, just dont who you want to talk, you send a requirement (notice of deposition) to the company/organization, describing your question, and the company/government agency will sent the right person to depose. When do you have to answer and when can you refuse: you have to answer every question, UNLESS it is privileged, protective order (cannot be discussed which is quite sensitive and irrelevant to the case, such as sexual history under Zubulake), or abusive question (incredibly personally, irrelevant). Except these 3, you even have to answer irrelevant questions. (in practice, tell the client to answer only the question that being asked, and before answering, repeat the question so that your lawyer may have time to object)

Interrogatories written questions To parties only Have to do reasonable research in order to answer the questions Typically one of the first discovery request Normally if you have a lawyer, interrogatory go to lawyer and prepared by lawyer - Documents and things, Rule 34 From parties, exception Rule 35, allows you see documents from 3rd party but you need to show why it is so important You can only get those relevant to claim/defense and non-privileged. - Physical and mental examinations, Rule 35 Parties only Only happen if there is any physical and mental aspect is at issue in the case, if Zubulake claims that she is quite distressed by the sex discrimination, physical injury. The court has to order/sign out a request, for which it need to determine the good cause. Protective order for confidentiality Any similar report she has to give up, asking for the opposing party doctors report - Request for admission, Rule 36 end of process, ask the other side to admit, deny or dont know (less sympathetic, have to explain why you dont know) only to party Always about non-privileged and relevant information

Attorney Client Privilege The term does not appear in the Rules anywhere, it comes from common law. Advantages Seek legal advice More disclosure Protect people presumption of innocence Within legal framework Disadvantage After client dies make less sense

If client dies, anything he says to the lawyer is still under privileged (Attorney-client survives death). Now, in certain jurisdiction, it is says that in extremely case, after the client died, when it relates to someone else liberty and life, you can raise the issue. If you want to use the privilege, you have to state that you rely on it. Upjohn The company discovery by its own, there is 4.4m problematic payment, and self report to SEC. The tax department wants all the communication between the company and its employee. The companys view is that any communication between the general counsel and employee are covered by the privilege. So it should between senior manage or anyone. The Supreme Court rejects the control group theory so long as these communications are about legal advice. When talking about a corporation, the client can be everyone in that corporation. But company can waive the privilege, the senior management can make such decision, which really hurt the lower level employees and have ethical problem. So now, it is required in current case that you need to talk, otherwise you may be fired, but you need to know that what you say we may disclose, and you may like to bring a lawyer So that the management may make the waive decision or not.

Coverage Communications relating to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing primarily either an opinion of law or legal service, or assistance in some legal proceeding, and not for the purpose of committing a crime or tort. - promote confidentiality (setting the environment) - involve legal opinion - for past crime is ok, but not for future crime - have to invoke privilege - the client can waive - does not cover facts themselves, just cover communication (did you talk about Window 97 with Anna? You have to respond; what do you talk with Anna re Window 97? No, under privilege) Work Product Doctrine Why litigants need it (why wont attorney-client privilege cover these materials?) Materials not communicated with the clients that are not covered by attorney-privilege Coverage: Material prepared in anticipation of litigation from witnesses, clients, document compilations, Not absolute: Can overcome by showing that there is no alternative way to obtain the information (or its substantial equivalent) Incorporated into 26(b)(3) Special protection for mental impressions Have to invoke

Difference between WP and AC: (1) WP is limited to items in anticipation of litigation. AC is for any communications between a clients attorney and client for any legal questions for legal advice (2) WP applies to non-clients witness, clients AC applies to clients attorney (3) WP - qualified, if you can show there is no other way for you get the information, the court can force you to hand over. Substantial/Extremely needed disclosed, except mental impressions/opinions of attorney, as they are nearly impossible to get AC - absolute. E.g., the lawyer took statement from 3 witnesses (the only 3 ones) in a train crash, who disappear after statements. The lawyer wrote a memo to evaluate how good witnesses are. So plaintiff can see the first statements, rather than the memo.


Jun 25, 2009 Discovery, Summary Judgment

Discovery Even it is relevant to claim/defense, if it is under AC privilege, you cannot get it. If under work product doctrine, there is a possibility to get those documents, as long as they can show there is a substantial need and cannot get the same in an alternative way. Hickman v. Taylor (one of the most famous civil law case in US) The lawyer interviewed the 4 survivors (also another witness) in private, preparing the materials in anticipation of the litigation. Jones Acts (something wrong with the water, then follow this Acts). The plaintiff wants the private interviews the lawyer did afterwards while they had had all the public materials. The lawyer said that the materials should not be turned over as they were privileged. A general policy, only final judgment can go to appeal. An intermediate decision, such as discovery decision does not decide the case while they might be important. So normally, you cannot appeal discovery decision, except that they show sufficiently important. The defendant refused to turn over the document and the district court order for a criminal jail, then the case can go to appeal court. The plaintiff agreed but later realized that they should not do so as this order made the lawyer seem sympathetic. So it finally went to Supreme Court, which use this to define the work-product doctrine. The main issue is that could the plaintiff and their lawyer get the information by their own, they can go to talk with them directly as the witnesses are still alive. Probably the lawyers report was better as he did that in the first time with the witness having fresh memory. Key: - Why litigants need it (why wont attorney-client privilege cover these materials? communication between lawyer and client about legal advice). - Coverage: Material prepared in anticipation of litigation from witnesses, clients, document compilations. - Not absolute: Can overcome by showing that there is no alternative way to obtain the information (or its substantial equivalent) - Incorporated into 26(b)(3) - Special protection for mental impressions - no lawyer opinion will be turned over. - Have to invoke; if the opposing party take statement from your client, you are entitled to any statement you make to the other side even if it is qualified under work-product doctrine. Experts Confusion, Strange each side their own experts that they pay for. Is the expert admissible? Rule 702. (mutifial?) test, coming from Dauber Case 1983, which says that it is a balancing issue (do not to have all of the followings): - falsitiability/testability? - Peer review - Error rate - Standards - Acceptance in the relevant community

American v. Continental System Special discovery rules for experts: - Why we have special rule: expert testimony is particularly key as they can decide the case. Also, experts are so expensive, we want to limit how much material/opinion they need to provide. Finally, experts are different from ordinary witnesses, generally quite attached to one party who pays them. - What must be turned over (Rule 26(a)(2)) mandatory disclosures Identity of witnesses who may be used at trial For experts retained or specially employed to provide testimony, a report Report must contain statement of all opinions and basis thereof; information considered; exhibits to be used; qualifications of witness (including publications of past ten years); compensation to be paid; listing of other cases in which witness has testified within preceding four years at trial or deposition After disclosures, deposition of expert generally is taken (side taking deposition pays expert for her time) it is NOT mandatory, when you take the experts deposition, you have to pay the expert, if justice requires, the court can ask for the other party to pay or settle with the expert with a reasonable fee. Very hard to get information about or from non-testifying experts Points: - How to do with the information you give to your expert to get the report. If you hand out privilege material, you just waive the privilege as everything handed over, can be obtained by/disclosed to the other party. Anything you show to the expert, even orally. Business secret may be different as it is not under privilege, but under protective order which is a different regime. - What happen if you consult expert but never plan to make them testify? Testifying v. non-testifying. Then you dont have to turn over information (above dont apply). One exception is that the other party show the substantial needs, you need to disclose. E.g., there are only 5 experts and one side hire all of them, the other side has no expert, the court then can order some of those expert to testify. Sanction Rule 11 does NOT apply to discovery, the main is Rule 26(g) and 37

Type of the sanction that available (Discussion: Cost/attorney fees Strike claims/defense dismiss the case, spoliation/adverse instructions Penalty/fine Disbar the attorney Pay plaintiff) Summary: Merit sanction: make case favor to the other party, etc. rarely happen Non-merit sanction: pay attorney fee, fine, disbar, shame the attorney (not before jury) normally use. Get merits sanctions (spoliation instruction) only if vary bad behavior If upset with discovery practices, Plaintiff send document request to the defendant, defendant does nothing:

First, must confer with opposing side (I am calling you to confer, to ask again for you

to give me the documents, a second chance) Then, can seek court order to compel (usually, ask the defendant to answer the request) (can get costs and attorney fees for motion if other side does not have substantial reason for holding out). If the defendant comes back saying that the materials you ask are privilege, you go to the court seeking the order of compel, if defendant has rational reason re the privilege, even if you are supported by the court, the plaintiff can NOT get the costs/attorney fees compensated. If court order disobeyed, can seek other sanctions (court can shame the attorney, disbar, dismiss the case., but generally non-merit basis sanction) Others: Deposition of a third party, who cancels while the party appointed does not tell the other party, the party needs to pay the other partys attorney fee. Disposition of cases before trial Complaint, Rule 12 motion Answers Discovery Disposing of cases before trial Default judgment or dismissal Settlement Summary judgment Trial Default judgment or dismissal - Dont have to wait after discovery, can do anytime - If you sue, follow through (only sometimes will you get a second chance and almost never will you get a third chance) the plaintiff does nothing, dismiss, Rule 41 - If you are sued, be sure to turn up (unless it is cheaper to just pay up) the defendant does not appear, default, Rule 55 Settlement - Can also occur at any stage, does not have to wait for discovery - The major strategy used in US, settlement is a possibility in the mind of every attorney from inception of case to its final disposition (most criminal cases end up in summon) - What is the line for the court to use this matter, ethical question, the judge involve in the settlement. The court has a rule, prohibiting the judge being the judge for trial while he involve in the settlement unless the parties agree. The judge cannot impose sanction if he requires settlement but there is no, but it may be OK if the court ask the parties go to mediation. Summary Judgment Rule 56 Can be brought by both parties, but normally by defendant Standard: The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show (1) that is no genuine issue as to any material fact ( ) and (2) that the movant is entitled to judgment as a matter of law. Both things have to be true, first one about facts and second about law.

Hoye v. City of Oakland Facts: protests are like the plaintiff has to show the protest is informative Law: Oakland law-protests violated 1st amendment Southwest Case Image no Rule 12 motion was filed, Southwest will file Rule 56 motion Fact: the website is not good for blind, even Southwest agrees Law: ADA doesnt apply to website For the purposes of Rule 56 motion, Southwest admits the facts; if the court disagrees, you may go back to facts in the trial. If both parties file summary judgment motions, the court can still go with trial if he thinks there is disputable fact. The court can go with partial summary judgment. Adickes v. Kress (1964) - Facts, as alleged by Complaint: Adickes, a white NY school teacher and volunteer teacher at a Freedom School, went with six of her African American students to public library in Hattiesburg, Mississippi in August 1964. Librarian refused to allow students to use the library. Adickes and her students refused to leave. Ordered by Chief of Police to leave. They then proceeded to Kress to eat lunch; they sat down at a table. Policeman came into store and saw Adickes with her students. Waitress then came to booth where Adickes was sitting; waitress took the orders of the students but refused to serve Adickes because she was white and was with African Americans. After the waitress refused to take Adickess order, the group left the store. On the sidewalk outside the store, the policeman who had previously entered the store arrested Adickes on groundless charge of vagrancy and took her into custody. - 42 U.S.C.1983 If the private person is conspiracy with state/city, you can get it in this kind of case lawsuit filed in SDNY (federal question for federal court, personal jurisdiction Kress Co. in NY) deprivation of federal right under color of state or territorial law Kress filed for summary judgment SDNY granted Second Circuit affirmed (there is no dispute of fact about conspiracy, the plaintiff has show no fact regarding there is a conspiracy) Supreme Court reversed - Key question: * whether there is a conspiracy: the Supreme Court narrows the question to was there a policeman in the diner? And is there any dispute of fact about this question? * The mover for summary judgment has the initial burden of production. Kress has the initial burden of production to show that there is no policeman in the store. The court thinks they failed to meet the requirement and dismiss denied. So there is actually a dispute of the fact, and the mover does not meet the initial burden (to show an affirmative evidence negating a key element of plaintiffs case) and the burden does not move to plaintiff to confirm there is no police in the diner. - Kresss Supporting Materials (1) store manager Powells affidavit that no conspiracy existed and that he had refused service to Adickes to prevent a riot (2) chief of polices affidavit that there was no conspiracy

(3) arresting officers affidavits that they did not make the arrest pursuant to any express request (4) Adickess own statement in deposition that she had no direct evidence of conspiracy Adickess Materials (1) statement in complaint that policeman who arrested her was in store (and SJ motion does not controvert that statement) (2) own statement in deposition that one of her students saw policeman in store (3) unsworn statement of store employee that arresting officer was previously in store (4) own affidavit that there was not an explosive situation in store, that things were not on brink of riot Affidavit is important for summary judgment Admissible evidence not hearsay, so for Adickes(2), it would be better an affidavit from the student When filing motion for SJ, you attach a brief and all evidences, the other side gets to respond and file an opposing brief and attach their own evidences (21 days). Mover then comes up with final words (5 days). The court can decide the motion on the paper, but generally will call attorney in as he may have specific question. The case did not go to trial as the parties settled, with money goes to a fund.

Celotex v. Catrett (1986) The bottom line is that it is easier for the defendant to get summary judgment. affirmative evidencing . is not the only way Tort suit After quite a bit of discovery, Celotex moved for SJ twice: Catrett not exposed to Celotex product: withdrew this motion Catrett not exposed within District of Columbia: goes to jurisdiction of court At that point, plaintiff had no admissible evidence on the material fact that her husband had actually used Celotex products (deposition from his husband before he died, a letter from the former employer that his father exposed to the products, a letter from insurance company suggesting the exposure; but nothing admissible) DDC granted second SJ motion DC Circuit reversed (sited Adickes affirmative evidence., have to show there is no way for Mr Catrett to be exposed to the products) Supreme Court reversed ((a) Adickes is one way to shift the burden, OR (b) plaintiff hasnt proved she will be able to provide evidence on a key claim point to failure of plaintiff in supporting key claim), Catrett still has the chance to show. Court rules that Celotex met the (b), but just the burden shift rather than grant summary judgment. So the case goes back to circuit court, Catrett just show that she has some letters, so it is enough to go to trial. The parties finally went to settlement. Key question: Party moving for SJ can meet its burden of proof by showing the absence in the record of any proof on a material fact on which the adverse party has the burden of proof at trial Moving party still has burden of persuasion on SJ motion: no genuine issue of material fact on which nonmovant has burden of proof at trial and entitled to judgment as matter of law


Jun 29, 2009 Summary Judgment, Trial/Jury

Discovery Question - Scope: what is relevant? - Privileged: yes or no? if yes, you have to invoke. Communication between lawyer and client. Rule 26(b)(3) covers some of work product, i.e., written documents. For the oral ones, there are still covered by work doctrine. Initial discovery are mandatory, which only supports your claim/defense. For certain documents, they actually hurts, but still relevant to the case. So the other party may ask to obtain. Sanctions Rules 26 and 37 no + Rule 11 Confer Order to compel request for information Sanctions if order to compel is violated Rule 26(b)(1) initial disclosures, mandatory, duty to supplement. Sanctions are within discretion of the court/judge. Summary Judgment Rule 56; The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (1) no factual dispute: it is actually a call of law could a reasonable juror see the fact either way? If yes, you then have a dispute fact. (2) law has to be on movers side - Moving party (the one seeking SJ) without ultimate burden of persuasion at trial (usually the defendant) has initial burden of production on SJ (which can then shift in certain circumstances to the non moving party) Moving party also has ultimate burden of persuasion on SJ motion (which means that moving party must persuade court that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law) For item (1): (a) To prove there is no factual dispute, Initial burden: - Mover can provide affirmative evidence negating an essential element of non-moving partys claim or defense (Adickes); OR - Mover can show after sufficient discovery that non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial (Celotex). The non-movers lacks sufficient evidence on a key element of case (her husband was exposed to the products). (b) If you do either of those, it does NOT mean you win the SJ. If the initial burden is met, it just shifts to the non-moving side, which needs to come up with counter-evidence and generally have to be admissible (cannot be hearsay, e.g., sworn statement rather that I hear one of my students says). If you think you can get admissible evidence but need more time, you can ask court for additional discovery (Rule 56(f)). - If initial burden is not satisfied, summary judgment will be denied and the other party has no evidence burden. In Adickes case, Supreme Court denies (1 )

For point 2, it will not strategic to do nothing, so no matter whether the burden has been shifted, you can still provide various documents. Step 3, ask for more additional discovery, to express that you think there is really a factual dispute.

What happen if there are no facts in dispute? Does the mover automatically win? No. For Kress, there is evidence that the police in store, which is the fact; but no relief/claim because private party involved. For Adickes side, there is police in store, relief/claim is possible for joint stake-private action. So there is actually no dispute of the fact whether police in store or not, this is a problem of law to decide when there is conspiracy. So how to decide that will be argued in the trial. Key issue: (1) Timing: when can you file SJ motion, Rule 56 - Defendant of claim can be filed anytime, can answer a complaint with the SJ motion. - Plaintiff (who brings the claim) can file a SJ motion within 20 days upon its filing of the complaint?. In practice, people just wait until some discovery has taken place. (2) Attached Evidence - The mover for SJ can attach admissible/non-admissible evidence or can attach no admissible evidence at all (Celetex sample), admissible - sworn affidavit, not hearsay; not-admissible letter, hearsay, non-sworn affidavit, think whether it is strong. - By contrast, the non-mover, if the burden has shifted, havs to attach admissible evidence. Possible exception exists: but is only a sentence in Celetex opinion, without good sample. The mover has lots more freedom in the evidence they submit. (3) Standard - no factual dispute - law has to be on movers side (4) Benefits and Costs of Summary Judgment Critics: plaintiff has to show hands and provide everything he has in an earlier stage while defendant does not need to. So many cases in US are resolved under summary judgment. The judge can raise SJ on his own even if the defendant does not raise. If only the defendant raises the SJ motion while the judge wishes to so favor for plaintiff, due process requires the judge to tell the defendant regarding the same. Practice Question (see PPT P14) 1. 2. 3. 4. (1) Has Lily ? No, not enough just to say it, do that until deposition and discovery is done. (2) Give more argument to point out that non-mover lacks sufficient evidence. Adickes affirmatively that Jones does NOT take pills? Nothing in her deposition clearly proves that .; Celotex she only hearsay, while needs thing more to show . Adickes Yes, affirmative that he never took Fomex, white v.s. red pill; Celotext he lacks sufficient evidence as he talks about red pill while the real one is white. The burden now shifts and does not mean that Lily can get SJ now. Deposition from Jones himself re Fomex, affidavit from doctor say either Fomex or Elavil, is consistent. But all from Jone is own affidavit (just changing red to white? Bad faith Rule 56(g) of mandatory sanction). Then, there will be dispute in fact whether it takes Fomex or not, so go to trial.

Trial (Jury)

Advantage Jury looks at facts more deeply Judges too technical Plaintiff likes money More to than the law Group decision made better

Disadvantage costly longer trial jurors time too much money for plaintiff Juries-not objective, nullification jury can be easily mislead unpredictable Group decision is worse

7th Amendment (1) it does not create a jury right in civil right, it preserves one, that existed in 1791 (a) Did the claim exist in 1791? Yes. - Breach of contract: if you ask for money, you will get a jury as in 1791, such a claim was heard by jury. - Wrongful occupation of black acre, claim to ejectment: you can get a jury as it is the practice in 1791. Almost always: if you ask for money, you get a jury; ask for equitable (injunction, restitution, specific perform, etc): no jury (b) If claim did NOT exist in 1791 - analogies to claim - examine remedy Legal remedy: money jury Equitable remedy non jury (c) If mix of claims, while some claims get you a jury but some dont. - if facts common to both jury on both - can split with some by jury and other by judge. (d) Complexity: could a case that is entitled to a jury be so complex that it would violate due process clause to let a jury decide? SCt: has not decided CA 3: Yes CA 9: No Actually it is DPC v. 7th (2) the 7th amendment applies to federal court, not to state (3) right can be waived (4) still take a case away from jury basically if there is no dispute in fact. SJ, judgment as a matter of law (Rule 50) New trial (Rule 59) Rules - Must demand a jury trial or waive right (Rule 38) - If you forget to include in the complaint for jury trial, you may still have chance to the court asking for permission, but the court does not have to give to you, it may decided - No fewer than 6, no more than 12 jurors (Rule 48) - No alternates; all jurors participate in decision (Rule 47/48) (in criminal case, you may have alternates) - Juror can be excused for cause (i.e., juror has certain bias and by keeping him, it will have unfair impact) at any time during trial or deliberation; no cause for mistrial unless number of jurors falls below 6 and parties dont agree to allow fewer than 6 jurors (Rule 47) if going to less than 6, parties have to agree, otherwise you will have a mistrial. - Unanimity rule for decisions unless parties stipulate otherwise (Rule 48)

What size should juries be for good decision-making?

Selecting a Jury (1) Array/Jury pool: constitutional constraints, equal protection - 28 U.S.C1861 - Fair cross section of the community and has to be drawn at random - Potential jury list Registered voters (there is a lot of debate about whether registered votes under fair cross section, young vs. old, black vs. white, poor vs. high income), CA state constitution supplement the vote list by moto pool, only for state case - limit: Citizen 18 years or more Resident in federal judicial district for at least 1 year Speaking English Physically/mentally able to serve No previous convictions No current charges (For disable persons to attend as jury, if you are blind or deaf, court should make accommodation) - Automatic exemption Armed forces Police officer Government officials - Discretional exemption Undue hardship (really busy job is not; taking care of 85 years old ill mother may be OK; earning loss vs. loss of most business opportunities) Inconvenience - The court does not pay you, your own employer pays you for your time. (2) Select actual jury


Jun 30, 2009 Trial

(Friday 3-5pm; 510-643-9393) (Civil Act) Summary Judgment: Rule 12(b)(6) + Facts = Rule 56 Trial Jury (1) Assembling the jury pool from which jury will be drawn - 1861 et scq, randomly choose, fair cross section of community (2) Selecting the jury in a particular case Actual Jury Challenge for cause Judge to get rid of undue hardship cases Take person who is left at random Voir Dire in federal court, the judge asks (Rule 47(a)); in state court, the lawyer asks Removal of prospective jurors who show some bias or prejudice that might impair their ability to fairly and impartially weigh the evidence and give a verdict e.g., have any business, personal or family relationship with anyone would involve in the trial; or have personal knowledge of the events of the case. Unlimited number; but, normally, the judge can constrain some challenge to ensure the enough jurors, i.e., the judge will not necessarily grand the challenge. Peremptory Challenges Traditionally, challenges allowed attorneys to excuse a juror without giving a reason 3 per side can be extended by the judge (state law often has higher number) Constitutional constraints Batson v. Kentucky 1986 Framework of how you challenge for the other partys peremptory challenges. The plaintiff thinks he is the one be harmed. Now it is the test for anyone. 3 Steps: (1) prima facie showing (initial showing; but in practice, this burden is pretty hard to meet, how to get a pattern of use 3 members or use comments/documents) exclusion of a particular group race, national origin, ethnicity, gender. (2) burden shifts to the other side (the one try to use peremptory) has to give a neutral reason, which does not have to be persuasive. (3) Judge decides whether it is persuasive or not. Initially, it is only for prosecutors use of peremptory, the white defendant could also use based on the reason that it is potential jurors (not his own) equal protection rights. It is strange as you use the same for the party even not on your side, it is a Third Party Standing a civil rights issue. Edmonson v. Leesville Does Batson apply in private case? DPC and EPC need to involve state action, private action can not trigger the same. District court: 1 judge, Batson does not apply as it is a private action CA 5: 3 judges, Batson applies CA 5 en banc: Batson does not apply

Sct: Batson applies For Batson to apply has to be state action, Sct opinion: (a) Does the constitutional violation result from the exercise of a right that has its source in state/federal law? YES (even those right exercised by private party, the right is come from state/federal law) (b) What is the connection between private party and state actor? the jury is a government body, the process to set up this body, you have tie with state action. Courtroom is supposed to against the discrimination, if you allow this happen, it will be severe and worse. If applying to private party, it also applies to criminal defendants peremptory challenge, which will really hurt the defendant. 1994 Batson applies to gender. Sct refused to heat a case whether Batson applies to religion. However, 1862- prohibits selection elimination on religion, race, sex, ethnicity, which is a statute base. Trial Process Selection of Jury Opening Statements you cannot argue in opening statement (plaintiff first, then defendant), just give an outline of what you will show (represent who, the case about what.) Plaintiffs Case (with cross-examination) call all the witnesses favorable to her case, asking question (direct examination); the defendant then come up with cross examination; who done, close on her case Defendants Motion for Judgment as Matter of Law Rule 50(a), there is no reasonable juror could find for plaintiff, the evidence the plaintiff put on is so weak (having evidence for claim A only but nothing for claim B; motion could be full or partial). Generally, it rarely happens while the judge will postpone until the defendant shows his evidence and the jury makes the decision. Defendants Case (with cross-examination) Plaintiffs Rebuttal Evidence witnesses directly rebut the defendant Plaintiff or Defendants Motion for Judgment as Matter of Law Jury Deliberation and Verdict Plaintiff or Defendants Motion for Judgment as Matter of Law or Motion for New Trial overturn the verdict to give it to other side, or just ask for a new trial directly Summary judgment (Rule 56) v. judgment as matter of law (Rule 50(a)): basically it is the same motion at different time. Taking Case Away from Jury Rule 12 and 56 (summary judgment) and then Rules 50 and 59, settlement also as an alternative way Introduction 3 trial-related motions that can take the case away from the jury after it is set up (1) Directed Verdict (JMOL judgment as a matter of law): before case goes to jury (Rule 50(a)) before jury deliberated, it is so clear that no reasonable juror could find for the specific side, so we direct the verdict against it. (2) JNOV (judgment notwithstanding the verdict, renewed JMOL): after verdict returned (Rule 50(b)), after the jury has deliberated, just delay ruling on the 1st motion.

(3) New Trial: after verdict returned (Rule 59): as a 2nd choice of Rule 50(b). A. To win on motion 2, you have to raise motion 1. If you comes up motion 1, denied; you can come up with motion 2 without provide a quite new package of documents, just title changes. B. If you are defendant, you can do Rule 50(a) motion TWICE, after plaintiff and defendant cases. Simblest v. Maynard Defendant for Rule 50(a) first, judgment denied. And moving again for Rule 50(a), the judge let the jury deliberated. The jury found favor for plaintiff, then defendant came up with Rule 50(b) motion, going for the judgment for defendant. The appeal courts affirm the judgment as matter of law. Standard: could the reasonable jury has found for the plaintiff the court has viewed the evidence the light most favorable to the plaintiff - Rule 50 is not about accessing credibility (the court is not to say I believe A, but not believe B); trust the jury to weigh the evidence. - Jury might think fire company should have more information to know the power outage and pay more attention, and then accountable for the accident. - JMOL only in CIVIL cases. Civil: Jury JMOL Plaintiff Defendant Defendant Plaintiff Criminal: Jury Judge Guilty can overturn acquit Not guilty NO

Purpose Standard Effect Appeal

Rule 50 - JMOL Substance, evidence sufficient

Evidence court consider Can judge Can do 50(a); due process should require Can do on her own do on her her let the losing side defense own Cannot do 50(b), but she can say to the lawyer to submit the motion Preference: a. b. c. judgment on you side new trial judgment for other side

Rule 59 - New Trial Substance; evidence sufficient Procedural error No rational juror could find for the other Verdict is against the great weight of evidence side (evidence in the light most favorable (no so strong as the Rule 50 ) to the other side) Judgment is entered for mover (if motion Just a new trial, which you may win or lose is granted) Immediately appeal as it is a final If granted on own it is not immediately judgment for particular side, standard is appealable, new tails then you can appeal. de novo (without deference its legal question but based on lots of fact, but Deferentially part of the questions are ultimately it is a legal decision) factual one, how weight and persuasive Cannot weigh conflicting evidence; Can weigh new evidence; can assess cannot assess credibility credibility because there is a different jury

Spurlin v. GM Negligence:

- Duty of care - Breach of duty - Damages - Breach causes damages Jury found 70k per plaintiff, defendant came up with 50(b) motion with the reason of causation, in the alternative, ask for you new trial. District court granted both of the motions. When 50 and 59 motions are granted together, you can immediately appeal (50(c)), so as a strategy choose, you may submit motion together. If 50 and 59 motions are denied together, you can also immediately appeal. Appeal court need to access, and in this case, it reversed both. But do 50 before 59, 59 is always treated conditionally. E.g., jury verdict of $ 1m, defendant submits 50 and 59 motions, which are both granted. Plaintiff appeal, defendant should argue at least 59 motion to be in favor of him. Damages (Rule 59 to deal with excessive and inadequate damages) Too high Defendant wants a new trail just on damages according to Rule 59 Remittitur: ask the plaintiff either to accept a lower amount or go with a new trial Constitutional constraints on punitive damages Too low Plaintiff bring Rule 59 motion just on damages. Additur: federal court CANNOT use (state courts including CA allow additur), just go with new trial. (when going with new trial, the original verdict amount will not bind)

A jury will never be reconvened (also have practical reason)


Jul 1, 2009 Rule 50 and 59, Preclusion

McDonald case: Unless the plaintiff wants a new trial, they will reduce the amount of punitive damages from $2.7m to $480k. Could judge raise race issue in peremptory by himself? The answer would probably be no. Rule 50 and 59 Additional device, usually used by the jury, to make sure that particular jury will not decide the case. 3 opportunities: - After plaintiff brings his case, defendant can raise 50(a) motion - After defendant brings his case, either plaintiff or defendant can bring 50(a) motion - Jury comes back with verdict, plaintiff/defendant brings 50(b) motion, which have to have raised 50(a) motion. For 59 motion relating to procedural problem, you have to have objection during the trial rather than a motion. For 50(b) motion, you have to have raised 50(a) motion based on the same ground. Standard Rule 50: No rational juror could find for other side (evidence viewed in light most favorable to non-moving party; cant assess credibility or weigh evidence) Although the standard is the same, it is courts discretion on 50(a) motion before verdict, which is efficient to avoid re-select jury and other whole process if it is reversed by appeal court. Rule 59: Trial verdict is against great weight of evidence (can assess credibility and weigh evidence) Can only bring once after the jurys verdict. Effect and Appeal Rule 50: Judgment entered, immediately appealable Rule 59: New trial, only immediately appealable if granted conditionally along with Rule 50 (otherwise, must wait until after new trial)

Preclusion How the judgment would constrain and litigate in the future? res judicata - broad sense: claim + issue (collateral estoppel) - narrow: claim Claim preclusion is about cause of action even if you didnt litigate them. Finality. Issue preclusion is about factual or legal determination about a specific claim within a claim. Completion through adjudication (some due process element, you actually had the chance to litigate). Claim Preclusion Affirmative Defense (Rule 8(c)) if the defendant wants to raise preclusion, you have to raise in the answer as affirmative defense.

Four Elements (applies for federal civil cases) (1) Parties in both prior and current suit must be identical 1st case: A v. B 2nd case: A v. B +C; B may claim based on preclusion and get out (2) Court of competent jurisdiction must have rendered prior judgment State court: A v. B Federal court: A v. B - Due Process Clause, neutral decisionmaker - So as agency or agency courts will be considered to be a court. (3) Prior judgment must have been final and on merits Federal court: A v. B dismissed for lack of jurisdiction State court: A v. B, can accept as the federal one is not on the merit - Is 12(b)(6) on merits? Yes (4) Plaintiff must raise same cause of action in both suits It does not mean for the same claim, but whether case 1 and case 2 involve the same transaction (same facts, same factual context, same parties..) - Do both suits involve the same transaction? Federated Department Store (Macys) v. Moitie Case 1: Moitie v. Macys state to federal court Brown v. Macys - federal court 5 others v. Macys - federal court Decided merits, no claim, no jury to business/property, case law consumers of retail purchases 5 appeal, but Moitie and Brown dont appeal final judgment On appeal, Supreme court decides retail purchaser can have a claim, actually reverse. Case 2: Moitie v. Macys Brown v. Macys - same party - federal court - on merit decision and final as they didnt appeal - involve the price of high women clothes CA 9 wants to created public policy exception to claim preclusion Supreme Court says no, claim preclusion is claim preclusion even if it hurts. (Dont stop appealing or ask for the court to stay if you think the law for the case may change.) Staats v. County of Sawyer When can you split claims between two lawsuits? Normally, you cannot split facts in your claims Facts: health, accommodations job, firing General Rule: Forum 1: Restricted subject matter jurisdiction; state claims Forum 2: Unrestricted subject matter jurisdiction; federal claims, state claims; even they are different claims (one claim based on state constitution and the other based on federal constitution), but if based on the same fact and involve same parties, you have to do together If go for Forum 1, typically cant later bring federal claim; must choose Forum 2 Exception: Forum 1: Restricted subject matter jurisdiction; state claims

Forum 2: Restricted subject matter jurisdiction; federal claims Can split claims Normally this is rare, as state court can hear all the cases; but for this one, it involve state agency, exclusive junior state claims Issue Preclusion Affirmative Defense (Rule 8(c)) Four Elements (normally assume same parties) (1) Issues in both proceedings must be identical (if one test is subsumed within another, might be ok) It could be the issue of fact or law (legal decision) Case 1: X is within Circle B? Case 2: Whether X is within Circular B? suppose A is big than B, not identical (2) Issue in prior proceeding must have been actually litigated and decided (if party concedes, fail this element) (3) There was a full and fair opportunity to litigate in prior proceeding for particular issue not solely on merit. (4) The issue previously litigated was necessary to support a valid and final judgment in first case (usually that judgment has to be on merits, but not always) If the same parties, 4 elements, if different parties non-mutual issue protection, 8 factors 1 2 3 4 Issue Preclusion Claim Preclusion Identical issue Same sets of facts, different claims Issued litigated and decided Issue not litigated, same facts no concessions Not only litigated but really litigated (mutual decision, cross-exam) Issue is necessary to final judgment

Facts A and B, judgment for the plaintiff if 1 fact is true, but jury does not say whether they find A or B or both of A and B. Special form to jury to ask A or B, if only verdict for plaintiff, you will not know which is necessary for judgment. If both true, you find for defendant; if jury finds for defendant, you will then know A and B will be precluded as they are necessary to find the final judgment. Levy v. Kosher Overseas of America (1997) OK Labs registered mark with PTO in 1965 KOA used their make since 1979, 1989 try to register mark with PTO, OK laws opposing. Case 1: Agency hearing - deny registration Issue: Does proposed mark resemble registered mark such that it is likely to cause confusion or mistake? Materials submitted, dont look at actual usage KOA continue to use the mark Case 2: OK Labs sues KOA for trademark infringement and ask for damages Issue: Is there trademark infringement? Polariod test: multi-factor text, confusion between marks/actual usage Four element test:

Issues in both proceedings must be identical (if one test is subsumed within another, might be ok) Really similar, but not identical as what evidence you can look at is different. So although 2-4 is passed, OK Labs have chance to have case hear. Issue in prior proceeding must have been actually litigated and decided (if party concedes, fail this element) agency court equals to Court for preclusion. There was a full and fair opportunity to litigate in prior proceeding The issue previously litigated was necessary to support a valid and final judgment in first case (usually that judgment has to be on merits, but not always)

CP is talking about big cause of action; IP is within smaller scope. (example for IP but not for CP) P v. D Contract A 2001 Contract B 2005 Whether a contract? Whether consequential damages allowed? If it is decided no consequential damages is allowed, then for contract B, it is a IP issue. Statute: appeal in federal court of an agency decision. When damage or not, it depends on the agency.


Jul 2, 2009 Preclusion, Class Claim

Exam Essay Question: Providing 2 arguments in favor and 2 opposing of the topic, and advising which is the more compelling. (20%) 25 Short Answer Questions: Is a disfavor motion which you have to raise in the first time; under Rule 12(b)(g), you .. (80%) Preclusion Claim Preclusion - Parties in both prior and current suit must be identical - Court of competent jurisdiction must have rendered prior judgment * Federal, state or agency court Due Process Clause, neutral decision-maker - Prior judgment must have been final and on merits * If case one is still on appeal, the judgment is not final Is 12(b)(6) on merits? Yes - Plaintiff must raise same cause of action in both suits * in federal court means both cases involve the same transaction, which is the biggest differences between federal (same transaction/ sets of facts) and CA law (do they involve same legal rights?) Do both suits involve the same transaction? Issue Preclusion (normally assume same parties) - Issues in both proceedings must be identical (if one test is subsumed within another, might be ok) * it could be an issue of fact or law - Issue in prior proceeding must have been actually litigated and decided (if party concedes, fail this element) - There was a full and fair opportunity to litigate in prior proceeding (how adversarial it is) * 2nd and 3rd usually go together - The issue previously litigated was necessary to support a valid and final judgment in first case (usually that judgment has to be on merits, but not always) Example Car accident: injury to car and person A by C Example #1: sue only claim on injury to car * Claim Preclusion for injury to person, but not Issue Preclusion (as it has never been litigated for injury to the person) Example #2: sue on both claims * Claim Preclusion and Issue Preclusion on both claims Example #3: 2 people in car, A and B, A brings against C and wins * When B brings suit against C, may have Issue Preclusion against C but do not have Claim Preclusion Parties in Privity When are parties sufficiently similar to be considered precluded? Tests

Consent Substantial Control: does one party substantially control the other that they seems as the same; in case 2, does the party have enough power to call the shots in case 1. the most important one. E.g., Company and employee, if the company completely controls the employees action in the 1st case, then in the 2nd, it is substantially similar. Or, insurance company and insured, as by contract, the insurance company is allowed to handle the litigation. Or, owner close corporation under partner/partnership, the way the ownership operates; parents and children. But, friends A and B, or A and B share the same attorneys. Husbands and wives, depends.

Statutory Scheme: if the statute specifically allows that and assuming that it passes the due process Virtual Representationbroad version rejected by Supreme Court in Taylor v. Sturgell (2008) 2 friends, one virtually represent the other, they have the same hobbies, the same interest in the case and share the same attorney, which is NOT accepted.

Non-Mutual Issue Preclusion When can there be issue preclusion, even though parties are not the same? Two types: - Offensive A v. B, B loses on issue C v. B, Can C use previous case offensively against B? - Defensive A v. B, A loses on issue A v. C, Can C use previous case defensively against A? Who is the personal try to use the IP, if the plaintiff, usually offensive, if the defendant, the defensive. We are less troubled by defensive about IP as the plaintiff chooses to where to sue. But in an offensive case, the defendant has no choice, and then 4 more factors + due process (so offensive has totally 8 factors). Parkland Hosiery v. Shore Case 1: SEC v. Parklane, sue for misleading profits upon merger, non-jury trial; Parklane lost in the misleading statement and has to re-issue. Case 2: Shareholders v. Parklane: was actually filed before case 1. The merger price is not good enough and also the misleading statement, asking for jury trial due to monetary damages. Could shareholders use case 1 as offensive non-mutual issue preclusion. 4 Factor Test (in addition to original 4 factors for IP) balance test: (1) Could plaintiff have easily joined in earlier action? - If YES, less likely that they can use IP now. The idea is that if they can easily join but now just wait to see, why should they benefit from the others resource put in. (2) Was second suit foreseeable (by defendant)? If NO, less likely that plaintiff can use IP. If defendant cannot foresee, it would be unfair as the defendant has not sense, otherwise they may try difference strategy in the first case. For this case, the defendant completely knew case 2, foreseeability is not a issue here. (3) Was previous judgment inconsistent with earlier judgments? If YES, less likely to use IP. E.g., 50 victims in a train accident, V1 v. railroad, V20 v. railroad, V1 wins, V2 wins (no IP here as V2 never has her issue heard/litigated in the court), V3 sue, RR wins. For V20, RR lose on the

fact. V21 comes and uses V20 as IP, and answer is no. As V20 is inconsistence with the others. For this case, no, as PH lost in case 1 and no earlier judgment. (4) Are there procedural opportunities available likely to cause a different result? Are the procedural opportunities that would maker a different that did not exist in previous case? in this case, it will be a big problem as in case 1, there is no jury trial. The majority says that the jury will NOT difference. E.g., imaging case 1 is in an agent court, it might be enough to say that case 2 under state or federal court, the procedural will be different. Final point: Person must have had day in court on issue before having IP used against them. unless you have some opportunity in court for you to raise your question, not for litigation. (11:20 ) Example: - A v. B, B wins on issue - C v. B, B cant use issue preclusion against C as C has not had day in court Joinder of Claims One Plaintiff v. One Defendant Rule 18: Plaintiff can bring unrelated claims; court must have jurisdiction to hear them, however Rule 13: Defendant can bring related (compulsory, same transaction) and unrelated (permissive) counterclaims so long as the jurisdiction is OK and has to bring related (For cross-claim, they can bring or not, but if bring, have to be related.) Totally unrelated is OK as long as that the court has jurisdiction, be care of compulsory or permissive claims when a defendant. Other Rules: Rule 13: Party can bring cross claims that are related, but such cross claims are not compulsory (once made, they may create compulsory counterclaims) Defendant must bring related counterclaims or will be claim precluded later (unless claim is already raised in another proceeding) Court must have jurisdiction over the claims Permissive Joinder (Rule 20(a), multiple plaintiffs) Plaintiffs must assert claims arising out of same transaction or occurrence (or series of transactions/occurrences), and Plaintiffs claims against the defendant(s) must all involve a common question of law or fact (does not have to dominant) E.g., train accident (common fact) but injuries differ; train co. concedes liability, then no common question as even victim has been injured in different way, then no necessity for join claim. Even if both factors met, in courts discretion whether to allow or not Compulsory Joinder (Rule 19) in Rule 12(b)(7) motion or in answer, motion of summary judgment If person is necessary, she must be joined if it is feasible to do so E.g., If they will destroy diversity jurisdiction, then not feasible. If it is not feasible, court must decide if person is indispensable (are they so necessary that you need to dismiss the case?) What make someone necessary: inconsistent obligation, interest being impeded, if not join, generally

about lack of fairness. What make someone indispensable: in addition to the above, cost to plaintiff if dismissed, generally about balancing and hardships Case: Plane crash, victim v. manufacturer of the plane in PA, but does not sue the company owns and operates the plane in Scotland. Manufacturer brings a 12(3) motion, are they necessary and feasible to join (no, as no personal jurisdiction). If not feasible, is it indispensable? Yes, they are so important and the plaintiff has no other form to relieve, you can sue in Scotland. So court dismissed the case. Kedra v. City of Philadelphia (1978) Kedia family several members, abuse occurred in different days - Is it the same transaction/nucleus of facts? Systematical related. - Court still has discretion to sever to prevent prejudice? Yes Difference: Joinder under 1920, you can actually count our and name each party, which is controllable. But for class claim. Class Actions Heart of problem: preclusion against absent members of the class Background assumptions: identifiable class, class rep member of class + 23(a) + 23(b) Main Requirements (Rule 23(a)) (identifiable class, class representative is part of class) - Numerosity: so many members in the class that joinder is unpractical (hundred to millions) - Commonality: common questions of law and fact, some have to dominant but some not (if in Walmart case, no standard wages, each employee has its own labor contract and negotiation process- no common) - Typicality: class rep has claims have claim/defense that is typical of the reset of the class - Fair and Adequate Protection of Interests in Class Types of Class Actions (Rule 23(b)) - Anti-prejudice (mandatory), 23(b)(1): once you are in the class, you cannot bring your own suit (inconsistency, competing obligation, limited resource) - Equitable relief, Declaratory/injunctive (mandatory), 23(b)(2): the same as above, limited way to get money (restitution) - Common question (can opt out): big money, the common question of fact/law has to dominate, you can bring own individual case, therefore the notice requirement is mandatory and you have to provide reasonably identifiable individuals (which cost money, group notice in magazine); for the above 2, notice is permitted but not mandatory, up to the courts discretion. Other Big Issues - Choosing an Attorney (Rule 23(g)) in practice, an auction - Settlements (Rule 23(e)) judge have to sign off the settlement, you provide the notice to individuals to ensure the settlement is fair Wal-mart case: 2 million women in the class 23(a) met, then decided as 23(b)(2) - lost pay (equitable relief), change of employee policy, injunctive relief These 2 dominate, if for punitive damages, it will be under 23(b)(3), which is opt-out and need individual notice.

Both side appealed, Wal-mart questioned the commonality and typicality. 2 years later, decision approved the class claim, there is pattern for sex discrimination.