Preclusion

-PreclusionRefers to the extent to which a judgment prevents parties to the action that resulted in the judgmentor other partiesfrom relitigating claims, defenses, or issues raised in the prior action. -Preclusion Doctrinesee footnote #5 on p.933 -Claim Preclusion (Res Jusicata)the effect of a judgment in foreclosing litigation of a matter that was never litigated -Issue Preclusion (Collateral Estoppel)the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided **ALWAYS THE STORY OF TWO CASEScase #1 went to judgment and case #2 is pending -does the judgment in case 1 preclude us from us litigating anything in case 2? A. Claim Preclusion -You get one case to vindicate one claim (one bite at the apple) -Prevents the relitigation of claims that have been conclusively resolved b/t the same partiesIf you dont do certain things in the first litigation, you may not have the opportunity to revisit them later -Why CP? (just, speedy, inexpensive) efficiency, established finality, Elements 1. Same claim that was raised or should have been raised 2. Same Parties(or those in privity w/themare the parties synonymous?)same claimant against the same defendant 3. A valid, final judgment (adjudication) on the merits -Gen Rule=41(b)every judgment is on the merits, unless its based on jurisdiction, venue, or indispensable parties. ** Same Claimlegal theories as the ct has defined 1. Same Claimbased on the common nucleus of operative fact (Transactional Test)(look @ the event that led to the legal action) a. Majority viewsame transaction of occurrence b. Minority viewPrimary rights=you get a different claim for each right invaded (body and property=2 claims) *Exceptionp.936 If was unable to obtain a certain remedy or form of relief **Could the claim have been brought in the original litigation?...if no, then above exception applies B. Issue Preclusion -Refers to the preclusive effect that prior judicial determinations have on the relitigation of certain issues rather than claims. **Purpose is to protect litigants from the burden of relitigating an identical issue with the same party or privity and promoting judicial efficiency -Issue Preclusion (Collateral Estoppel (narrower)) 1. Same issue was actually litigated and decided in case 1 2. Actually litigated and determined 3. Necessary to the decision (essential to the judgment in case 1) 4. Case 1 ended on a valid final judgment on the merits 5. Same Parties (or privity)

-Mutualitycan only be used by somebody who was a party to case 1same parties bound by the previous litigation**under mutuality, you cannot do it! BUTmaybe under non-mutuality -Later began to recognize non-mutuality(its being used by somebody in case 2 who was not a party in case 1) -*Notealways get a full and fair opportunity to litigate a claim so cannot bring in a new -Can only be asserted against parties who were in the first and second litigation -*First question=was it the same party in the first and second litigation Offensive, Non-mutual collateral estoppel () 1 v 1 2 v 1 Defensive non-mutual collateral estoppel () 1 v 1 1 v 2 -Arguments against Offensive 1. Does not promote judicial economy 2. Fairness to the a. Promotes a wait and see attitudeMultiple s are effected and offensive would allow s to wait to for a favorable decision, then preclude the to that decision (not an issue in Parklane b/c you cant join the SEC) b. $ p.977 c. *Look for whether there is anything that would make it unfair to assert to -Most often defensive non-mutual collateral estoppel is ok **The party against whom estoppel is being asserted has to have a fair chance at a trial. Issue Preclusioncont 1. 1 v 1 2 v 1 1a. 1 v 1 Offensive non-mutual collateral estoppel 2 v 1 2. 1 v 1 Defensive non-mutual collateral estoppel 1 v 2 3. 1 v 1 does have the ability to assert collateral estoppel if it is fair to the 2 v 1 *everybody gets one full and fair opportunity to litigate *not mandated to join a litigation (unless indispensible party) *have to know on what basis the decision was made **Offensive non-mutual collateral estoppel is left to the discretion of the trial judge Parklane Hosiery -Non-mutual offensive is ok, as long as it is fair -Fairness factors: 1. Full chance to litigate in case 1 2. Opponent could foresee multiple suits 3. Person using offensive non-mutual collateral estoppel could not have joined easily in case 1 4. There are no inconsistent judgments 2

Class Actions
-Joinder of partiesFRCP Rules 14,19,20,23, 24 -Joinder of claimsFRCP Rules 18, -Generally think of class actions as people joined as s, but there can be a class of s as well. -Policy Reasons (seem to be oriented) -Judicial Efficiency -Shows patterns of bad conduct -Limits the potential of inconsistent judgmentsconduct -Negative Value claimsnot worth the $30 to sue Netflix (individually small amounts can add up on a large scale) -CAFA (Class Action Fairness Act of 2005) -Makes it easier for class action suits to be filed/moved to federal court -One of the lobbies was business and tort reformists -Wanted access to the federal court because s would seek the friendly state (avoid forum shopping) -Increased review of coupon settlements where the attorneys get huge fees, but each individuals amount is relatively small *In Class Actions, only one needs to seek removal and it doesnt matter if one of the s is from the same state -FRCP Rule 23(a)***MUST PASS THIS FIRST Must pass each of the following: Numeracyso numerous that joinder of all is impossible Commonalityquestions of law or fact that are common to the all of the class Typicalityclaims/defenses of the representative parties are typical to the class Adequate Representationto the representation of all the class o Competent Attorney o Representative of class (no conflict) -FRCP Rule 23(b) Need only pass one of the following: 23(b)(1)-o 23(b)(1)(A)Incompatible Standards Class (differing conduct) o 23(b)(1)(B)The Limited Fund Class 23(b)(2)The Injunctive Relief Class 23(b)(3)The Damages Class o common questions predominate over individual questions o class action is the superior way to resolve the case o Rep has to provide individual notice **In an injunctive class action you dont get to opt out **Issue and claim preclusion come into play - 1332 (d)special for class actions -Amt in Cont = $5mill -@ Least 100ppl 3

Discovery
-Discoverythe process of compelled information exchange that occurs among the parties before trial A. The Scope of Discovery(Broad) 1. Relevance: 26 (b) Scope and Limitation -non-privileged -Relevant a. FRCP 26 (b)(1): Discovery scope and limits: Scope in General (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter (limitation) that is relevant (limitation) to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). i. Limitationsnonprivlidged and relevant ii. *must be relevant to claims and defenses iii. Relevant to the subject matter of the dispute? 2. Limitations a. Rule 45 is the basis for non-partiesmust get a subpoena b. FRCP 26(b)(2)(C): Discovery Scope and Limits: When Required (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. -Enables the ct to limit discovery if the ct finds that the discovery is too burdensome in relation to its utility in the litigation c. FRCP 26 (c) i. *There is a requirement in Rule 26 that you meet and confer with the requesting party and make a good faith effort to resolve the dispute w/o ct action d. Google i. Relevance26 (b)(1): ii. Undue Burden26(b)(2)(C) iii. Trade Secret45 (c)(3)(B) e. B. Discovery Devices (Tools) Request to produce Interrogatories Depositions Medical exam Request for admission Rule 16 Scheduling conference 5

Rule 26(f) Rule 26(g)Rule 11 of Discovery 1. Initial Disclosures a. FRCP 26(a)(1) Duty to Disclose:**Mandatory Discovery (a) Required Disclosures. (1) Initial Disclosure. (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. -Requires the parties to disclose certain info on the other at the beginig of the action w/o awaiting specific requests for the material 2. Production of Documents, ESI, and Things (Requests to Produce) a. FRCP 34(a) Producing Documents, ESI, and Tangible Things: In General (a) In General. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information--including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations--stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or b. FRCP 34 (b)(2)(E)(ii) Producing Documents, ESI, and Tangible Things: Procedure (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms*** **on receipt, parties must produce or object c. 34(c)can get form a nonparty, but have to subopena 3. Interrogatorieswritten questions that the receiving party must answer under oath a. FRCP 33(d) Interrogatories to Parties: Option to Produce Business Records (d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and

(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. *Not an option for nonparties -Usually limited to 25 unless otherwise granted by the ct 4. Oral DepositionsQuestions under oath of any person thought to have testimony relevant to their dispute a. FRCP 30 Depositions by Oral Examination b. Any person, including a party or nonparty (a nonparty should be subpoenaed) c. Limited to one day, 7 hrs d. Do you have to answer?see (c) 5. Physical or medical Examination a. FRCP 35 Physical or medical Examination b. (a) Order for an Examination. (1) In General. The court where the action is pending may order a party whose mental or physical condition--including blood group--is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control. (2) Motion and Notice; Contents of the Order. The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and -Only for good cause -Only for a party or custody or legal control of a party (children) -Must get a court order 6. Request for Admission a. FRCP 36 -Can only be sent to a party -require to admit or deny any discoverable matter (if fail to deny, you have admitted) 7. Discovery Offenses and Sanctions -Sanctions: a. FRCP 37 Failure to Make Disclosures or to Cooperate in Discovery: Sanctions (a) Motion for an Order Compelling Disclosure or Discovery. (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.*** Rule 37 Motion to compel (3) Specific Motions. (A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: (i) a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4); (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails to respond that inspection will be permitted--or fails to permit inspection--as requested under Rule 34. -If disregard the court orderyou can get Rule 37 (b) sanctions 7

-Sanctions can be difficult to get **American Rule; Litigants are responsible for their own expenses, including the costs of producing info in response to discovery requests b. FRCP 26 (C) Protective Orders (c) Protective Orders. (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending--or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery;*** (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; c. 8. Limitations -Limits on Electronic Discovery (or ESI)Undue Burden and Costs a. Rule 26 (b) (2) (B) (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. b. 9. Attorney-Client confidentiality/Privilegenot permitted in discovery a. Confidentiality=BroadA lawyer shall not reveal information relating to the representation of a client i. **Confidentiality is relieved if you get a court order b. Privilege..**p.653 (Client owns the privilege) i. Elements of Attorney Client Privilege the asserted holder of the priv. is or sought to become a client the person to whom the communication was made (a) is a member of the bar of a court, or his or her subordinate, and (b) in connection with this communication is acting as a lawyer. the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding and (d) not for the purpose of committing a crime or tort; and the privilege has been (a) claimed and (b) not waived by a client. Examples: Did you ever contact an attorney about the accident?Factual, so not privileged What did you say to the attorney?Privileged Were you driving on South Street on December 22, 2002?Just asking for factual info Did your attorney tell you to contact the police?Privileged 10. Work Product Privilege 26(b)(3)material prepared in anticipation for litigationprotected from discovery 8

a. Upjohn***p.654TEST i. Conversation made to secure legal advice ii. Purpose was to provide basis for legal advice iii. Communications concerned matters w/in the scope of employees duties iv. Communications were considered confidential b. Experts26(a)(2) and 26(b)(4) c. Can get passed WPD if show (1) substantial need and (2) info is not otherwise available d. Can never get mental impressions, conclusions, opinions and legal theories e. *simply work productdoes not have to be an attorney

Disposition Without Trial A. Default and Default Judgment a. FRCP 55: Default; Default Judgment (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default. (Failed to plead or otherwise defend-12(b)usually 21 days, but if waved 60, or overseas 90)after this, you can file default. But, dont jump on this b/c ct prefers a final judgment on the merits. (b) Entering a Default Judgment. (Must get a first!) (1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation (ex. back pay, contract, property damage), the clerk--on the plaintiff's request, with an affidavit showing the amount due--must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing.***(if no appearance, then judge can make judgment, but if appears or representative appears, then they must be served notice) (c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause**((1) whether the default was willful or the result of the s culpable conduct, (2) whether the set-aside will prejudice the , and (3) whether the had a meritorious defense. P.741) b. *2 Step processhave to get through a before you get through b c. Remember that a failure to answer serves as an admission. d. FRCP 54(c) (c) Demand for Judgment; Relief to Be Granted. A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.

B. Involuntary & Voluntary Dismissals a. FRCP 41:Dismissal of Actions (a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. (we live to fight another dayeg. Twombly dismissed to gather sufficient facts and submit another complaint). But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. (one bite at the apple) (2) By Court Order; Effect. (Involuntary). Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for

10

independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. (b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule (ex.12(b)(6))--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits. (c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant's voluntary dismissal under Rule 41(a)(1)(A)(i) must be made: (1) before a responsive pleading is served; or (2) if there is no responsive pleading, before evidence is introduced at a hearing or trial. (d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied. b. Voluntary a. Why? i. Worried that case will be dismissed or there is a valid defense. ii. Cost of litigation iii. New legislation iv. Settlement c. Involuntary a. Think about counterclaims and SMJ b. Rule 41(2)(b) C. Case Management/Settlement a. FRCP 16(c) (c) Attendance and Matters for Consideration at a Pretrial Conference. (1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement. (2) Matters for Consideration. At any pretrial conference, the court may consider and take appropriate action on the following matters: (A) formulating and simplifying the issues, and eliminating frivolous claims or defenses; (B) amending the pleadings if necessary or desirable; (C) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence; (D) avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony under Federal Rule of Evidence 702; (E) determining the appropriateness and timing of summary adjudication under Rule 56; (F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37; (G) identifying witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial; (H) referring matters to a magistrate judge or a master; (I) **Settlement settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule;ADR 11

b. c.

a. b. c.

(J) determining the form and content of the pretrial order; (K) disposing of pending motions; (L) adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; (M) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue; (N) ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c); (O) establishing a reasonable limit on the time allowed to present evidence; and (P) facilitating in other ways the just, speedy, and inexpensive disposition of the action. Nothing discourages judges from encouraging settlement, in fact, it promotes it FRCP 68: Offer of Judgment (a) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment. (b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. (c) Offer After Liability is Determined. When one party's liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time--but at least 14 days--before the date set for a hearing to determine the extent of liability. (d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. (not used often) Diff then settlement b/c you are admitting to liability and move on. FRCP 16(f)Sanctions (1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate--or does not participate in good faith--in the conference; or (C) fails to obey a scheduling or other pretrial order. (2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses--including attorney's fees--incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.

D. Summary Judgment FRCP 56 (Is there a genuine issue of material fact in dispute? If not, then no reason for a jury trial and we can make a judgment now) -StandardAll inferences made in favor of the nonmoving partyno credibility determinations and no weighing of evidence -Ways to get SJ 1. Submit evidence that negates an essential elements of nonmoving partys case 2. Demonstrate that moving partys evidence is sufficient to establish and essential element of the claim -Principle purpose of SJ is to isolate and dispose of factually unsupported claims or defenses. a. FRCP Rule 56:Summary Judgment 12

b. c. d. e. f. g. h. i.

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that (1) there is no genuine dispute as to any material fact and (2) the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. (b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. (c) Procedures. (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The main purpose of a trial is to resolve factsif there is no genuine dispute as to material facts, then a trial is pointless. Responding party has the burden of showing that there is no genuine dispute as to material fact Viewed in a light most favorable to the opposing party No credibility determinations No weighing of evidence **If there is he said/she said, then there is no SJ Doesnt make cleartype of showing FRCP 56(e) (e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or (4) issue any other appropriate order.

(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. Celotexwe can grant SJ even if the does not provide evidencea can move for SJ by showing that the lacks evidence E. Motion to Dismiss for Failure to State a Claim 12(b)(6) -Ct cannot look @ evidence -Look only @ the face of the complaint -If everything the said were true, would she win? -if no, then it makes no sense to go forward

13

-Under Twikbalthe must allege facts supporting a plausible claim, and its up to the judges common sense and experience to make a decision *** Phases of trial -Trial is to resolve disputes of fact -Opening statementjury cant rely on it, - presents their case - can cross-examine - can reexamine -Either party can Object -Once there case is presented, either party can move for JMOL -If motion is rejected, or not made, can make their case, -Once the rests, they can move for JMOL F. Judgment as a Matter of Law (Directed Verdict) (Is there a legally sufficient evidentiary basis for a finding in favor of the partyquestion of law, not fact) -Judge takes the case away from the jury b/c reasonable people could not disagree on the result (so clear that it could only come out one way) -Must be a motion by the partiesct cannot grant it on its own (sua sponte) -can only make motion after the other party has been heard at trial -StandardCourt should take evidence as a whole and ct should give credence to the evidence favoring the nonmoving party) -Either party is permitted to seek JOML if they believe their adversary has failed to present sufficient evidence to meet its burden of proof a. FRCP 50(a): JMOL in a Jury Trial (a) Judgment as a Matter of Law. (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. b. FRCP 50(b): JMOL in a Jury Trial(7th amendment) RENEWED JMOL (b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment--or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged--the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law. -Standard is exactly the same, but it happens after the jury has reached a conclusion that reasonable people could not have reached -Must be made w/in 28 days after the entry of judgment -Must have moved for JMOL @ a proper time at trial 14