Rule 1: Scope of Rules: To administer just, speedy, and inexpensive determination of

every action.

Rule 3: Commencement: A civil action is commenced when a complaint is filed.

-Begins the time for things to be done, such as answer and amemdment

Rule 6: Time

(a): The day of the act will not be included in the time computation. The last day

of the period is included, unless it is a Saturday or Sunday, or legal holiday.

When the period allowed is less than eleven days, sat, sun and legal holidays are

excluded from the computation.

I. Power and Limits to the Court’s power

A. Relevant Sources of Law:

1. Rule 65(d): Intended to embody, rather than limit the court’s common law

powers. It cannot be read to restrict the inherent power of a court to

protect its ability to render a binding judgment.

B. U.S. v. Hall: This case interprets 65(d):

1. A court has the power to punish with criminal contempt a person who is not a

party to the action, but who has notice and then violates the court’s order granting

injunctive relief.

2. This case is an example of how the law limits courts’ power. Certain elements

must be satisfied such as Hall actually having notice of the injunction before the

court has the power to hold a person in contempt. Analysis must be

grounded in law, the judge cannot just do what he thinks is right.

II. Elements and History of Due Process

A. Relevant Sources of Law:

1. 14th amendment, 5th amendment: due process clause.

a. It’s most basic form refers to a right to be heard before being deprived

of something.

B. Goldberg v. Kelly: Interpretation of Due Process Clause right to be heard in relation

to welfare benefits

1. The amount of due process that should be given should be determined by:

a. The private interest; The grievousness of the loss to the beneficiary;

(are there other means of getting basic human necessities?) and

b. The governmental interest; The administrative burden, gov is also

benefited by uninterrupted provision of welfare benefits.

2. Due process protections that should always be there in order to not violate:

a. Timely pre-termination notice

b. An opportunity to respond to the reasons for termination in advance

c. The right to an impartial decision-maker

d. An opportunity to appeal the termination

e. Other protections which may include these when the factors above

show a need for strong protections

i. A right to an oral hearing before termination,

ii. The opportunity to cross examine witnesses

iii. Representation by counsel

iv. Written record of testimony

C. Mathews v. Eldridge: This case takes Goldberg and adds another factor: The risk of

erroneous deprivation

1. The determination as to how far the due process clause extends, have to look at

these factors:

a. Private interest

i. Grievousness of the loss to the individual

b. Governmental Interest

ii. The function involved and fiscal and administrative burdens

that additional substitute safeguards would entail

c. The risk of erroneous deprivation

i. How likely it would be that the government would make a

mistake according to the current process involved.

D. Access to courts

1. Boddie v. Connecticut: Indigent plaintiff’s could not get access to the courts

for divorce without paying a fee

a. Common law requires

1. People be given an opportunity to be heard in the absence of an

overwhelming State interest against the opportunity

2. Due Process requires that an opportunity to be given a hearing

appropriate to the circumstances of the case

b. Due process protects the right of an indigent, who cannot afford to pay

court fees, to access the court when the court is the only means available
 for obtaining an adjustment of a fundamental human relationship,

such as marriage or divorce.

c. Very narrow rule, not likely to be applied outside of a marriage or

divorce or other fundamental human relationship.

E. Access to counsel

1. Lassiter: Plaintiff lost her parental rights in a hearing. Court did not appoint

her counsel, she says 14th amendment rights were violated

a. 6th amendment says that you only have a right to counsel when your

physical liberty is at stake; this is the initial presumption against

counsel in a parental rights case.

b. The Mathews factors must then be weighed.

c. The Mathews factors must outweigh the 6th amendment presumption

against counsel in order for counsel to be afforded under the 14th

amendment.

d. This analysis should be done on a case-by-case basis.

III. Remedies and Stakes

A. Sources of law:

1. 65(b): Temporary restraining orders; notice; hearing; duration.

B. Provisional Relief: Relief before the disposition of the case.

1. Temporary Restraining orders: The purpose is an emergency, short term

preservation of the status quo. The plaintiff must show that there will be an

immediate and irreparable injury, and that the loss or damage will result before
 the adverse party can be heard in opposition. Very short term relief, lasts 10 days

with an allowed 10 day extension.

2. Preliminary Injunction: A temporary preservation of the status quo that lasts

until the end of the case. The plaintiff has to show that there will be no adequate

remedy at law, and will suffer irreparable harm if relief is not granted, that the

harm to the plaintiff will outweigh the harm to the defendant if injunction is not

granted, the likelihood that the plaintiff will prevail at trial, and how the public

will be affected.

a. American Hospital Supply: Four prong test to determine whether a P.I.

should be granted:

i. Whether the harm to the plaintiff if denied will exceed

ii. The harm to the defendant if it is granted

iii. Whether the plaintiff is likely to prevail at trial

iv. Whether the public will be harmed.

C. Final Relief: Relief as a result of the disposition of a case.

1. Declaratory judgment.

a. Purpose: a preliminary assessment of the possible damages, rights and

obligations of the parties

b. Showing: There is an actual controversy; Constitution will not allow

judgments without a controversy

2. Punitive damages

a. Purpose: Deter future conduct, punish, express public disapproval

b. Showing: Malicious intent

 3. Compensatory Damages

a. Purpose: Make harmed person whole again

b. Showing: Actual injury arising out of violation of rights.

4. Equitable relief; Permanent Injunction

a. Purpose: Make the defendant do something, stop them from doing

something.

b. Showing: Monetary damages are not sufficient; risk of future harm if

status quo is not changed.

c. Courts also have to look at public interest for equitable relief

5. Nominal Damage

a. Purpose: A token damage to show that harm has been done; a legal

right has been violated.

b. Showing: Actual damage does not need to be shown, only that the

plaintiff was wronged.

c. This type of relief can also trigger shifting of attorney fees.

6. Attorney fees: Generally, the losing party does not pay the prevailing party’s

attorney’s fees

a. Exception: there are fee-shifting statutes covering many different

federal statutory rights. The shifting only goes from defendant to

plaintiff, the plaintiff never has to pay the defendant’s fees.

7. Carey v. Piphus: Plaintiff was suspended without a hearing. This violated due

process, thus, a 1983 claim. Plaintiff could not show damages, there was no
 malicious intent to violate due process, thus, only nominal damages are awarded

to show that a constitutional right was violated.

IV. Burden of Production vs. Persuasion

A. General requirements of winning a civil case:

1. Must state a claim for which they are entitled to relief

2. Must meet the production burden by presenting enough evidence that a

reasonable person could find each element of the claim to be met.

3. Must persuade the trier of fact that each element is true

B. Burdine: This was a Title VII employee discrimination case. The following is the

basic order of proof from McDonnel Douglas v. Green.

1. Plaintiff has the burden of producing the prima facie case by:

a. Showing she is in a class to be protected (sex, racial minority, etc.)

b. She applied and was qualified for a job for which the employer was

seeking applicants

c. That despite her qualifications she was rejected

d. After rejection, the position remained open and the employer continued

to seek applicants from persons of complainant’s qualification.

2. Defendant must then produce a legitimate nondiscriminatory reason for the

employment rejection.

3. Plaintiff then must persuade by a preponderance of the evidence that the

defendant’s reasons were a pretext for discrimination; This is the burden of

persuasion that ultimately lies with the plaintiff.

V. Pleading Stage
 A. Sources of law:

Rule 7: Pleadings Allowed; Forms of Motions

(a) Complaint and answer, and answers to all types of claims. No

other pleadings are allowed except those given in this rule.

B. Complaint Requirements:

1. Sources of Law:

Rule 8: General Rules of Pleading

(a) All pleadings need to have:

1. A statement of jurisdiction, unless one is already specified

2. A short and plain statement showing the pleader is entitled to

relief.

3. Demand for judgment

(e)

(1) No technical forms of pleading are required

(2) A party may state as many separate claims or defenses it has,

regardless of consistency

(f): All pleadings should do substantial justice.

Rule 9:

(b): Fraud or mistake claims require a higher burden of pleadings.

Probably has to do with 8(f). Well plead fraud claims usually

include: time, place, and content of false representations, facts

misrepresented, and the nature of the detrimental reliance.

 (g): Items of special detail must be plead in detail. If plaintiff suffers

nerve damage resulting in a permanent erection, probably have to

plead in detail.

2. Dioguardi v Durning: 8(a) and 12(b)(6): Plaintiff’s are not required to plead

facts. As long as the liberal pleading requirements of 8(a) are satisfied, a

12(b)(6) motion can be defeated. We have notice pleading now, not fact pleading.

3. Conley v. Gibson: 8(a) and 12(b)(6): The complaint must give the defendant

fair notice of what the plaintiff’s claim is, and upon what ground the claim rests.

If it does, a 12(b)(6) motion should be defeated.

a. 1. This case also held that a 12(b)(6) motion should only be granted if

it is clear that the plaintiff can prove no set of facts in support of

his claim. This requirement, however, is rebutted in Twombley.

4. Twombley: 8(a) and 12(b)(6): The case should be dismissed if the plaintiff

does not allege enough facts to make it a plausible claim.

a. This is a stark retreat from the liberal pleading requirements of the

Rules.

5. Leatherman: 8(a) and 9(b) and 12(b)(6): Federal courts required heightened

pleading in 1983 claims. Court said that all is required is a short and plain

statement.

a. Rule of Construction: Expressio unius est exclusion alterius: When

one thing is specifically mentioned, all other things are considered

excluded.
 i. 9(b) tells you where there is a heightened pleading requirement,

thus, since 1983 claims are not mentioned, it is fair to say

there should not be a heightened pleading requirement for those

claims.

6. Henry v. Daytop Village: Rule 8(e)(2): Trial court granted summary

judgment because of inconsistent claims. But, 8(e)(2) rebuts and court reverses.

C. Answering a Complaint

1. Sources of Law:

Rule 8:

(b) Must state defenses in the answer, and admit or deny all averments. If

a pleader is without knowledge or information sufficient to form a belief, a

party needs to state that, and it has the effect of a denial.

(c) Lists the affirmative defenses that the pleader must set forth in an

answer to a preceding pleading. It has a catch-all provision

meaning that more defenses exist than is listed. If these are not set forth

in the pleading, the pleader runs the risk of waiving them, subject to Rule

15.

(d) If you do not deny, then you have admitted

Rule 12: Defenses and Objections

(a)

(1)
 (A) Answer must be served within 20 days after service of

the complaint, or 60 days of date request if a waiver

is sent per Rule 4(d)

(b) Gives the possible objections to a complaint. A motion made under

12(b)(6) should be treated as a summary judgment motion under

56 if other materials other than the pleadings are used.

(1): Lack of subject matter jurisdiction

(2): Lack of personal jurisdiction

(3): Improper Venue

(4): Insufficiency of process

(5): Insufficiency of service of process

(6): Motion to dismiss for failure to state a claim upon which

relief can be granted: Court looks only at the complaint. If

everything the plaintiff pleads is true, would the

plaintiff win. If yes, then deny the motion to

dismiss, assuming there is a plausible claim (Twombley)

1. Three theories:

a. Plaintiff feel harmed, but no legally recognized

harm.

b. The cause of action exists, but the plaintiff does

not even state rudimentary information to

suggest that the plaintiff may conceivably

have that cause of action, or

 c. The cause of action exists, but the plaintiff states

the facts with sufficient specificity to

demonstrate that the facts alleged, even if true, do

not correspond with the cause of action

that the plaintiff evidently had in

mind.

(7): Improper joinder under Rule 19

(c): Judgment only on the pleadings. If a motion is made with other

matters outside the pleadings, should be treated like summary

judgment in 56.

(d): Defenses in (b)(1-7), or a summary judgment in (c) shall be heard

before trial

(e): Motion for a more definite statement: Only granted if a pleading is so

vague and ambiguous that a party cannot reasonably be required to frame

a responsive pleading. Needs to be very vague and ambiguous.

(f) Party may move to strike any redundant, immaterial, impertinent, or

scandalous matter

(g): If a party does not make one of the motions listed in (b) the first time

it responds to a pleading, it loses the motions described in this rule,

except as provided in (h) (2) and (3).

(h)

(1): If, the first time a party responds to a pleading, he does not

assert defenses of personal jurisdiction, improper venue,

 insufficiency of process or service of process, then

he waives those motions. These are the disfavored motions.

(2): A 12(b)(6) motion, defense of failure to join an indispensable

party, and an objection of failure to state a legal defense

may be made at any time. These are the favored motions.

(3): Subject matter jurisdiction is the most favored motion. Can

be made at any time.

2. Bower v. Weisman: The 12(e) motion for a more definite statement shouldn’t

be granted unless the complaint is so excessively vague and ambiguous as to be

unintelligible and as to prejudice the defendant seriously in attempting to answer.

3. Greenbaum: 8(b): Defendant tried to make a motion to dismiss based on lack

of subject matter jurisdiction. Court denied the motion because the defendant had

the information for almost four years. The court decided to treat it’s answer to the

jurisdictional question to a yes from a lack of information response since it had

not sufficiently investigated and the answer was in its own files. This disposition

is rare, and was basically done because the defendant had abused both the plaintiff

and the court.

4. Controlled Environment: Rule 8(b) and 8(d): Cannot answer that you don’t

have the information. You have to answer that “you are without knowledge or

information sufficient to form a belief as to the truth of the allegations as to

paragraph x.” Anything short of this is deemed an admission per Rule 8(d).

5. Gomez v. Toledo: The plaintiff in a 1983 case is not required to plead bad

faith in the complaint. Qualified immunity is an affirmative defense, thus, it is up

 to the defendant to plead good faith for that defense. This is because the

knowledge of the standard is in the realm of knowledge known only to the

defendant.

a. This requirement may have changed after Harlow, however, that case

said that bad faith is a violation of clearly established statutory

duties. So the plaintiff may actually know now whether or not the

official charged has violated those duties, thus, he may be required

to plead that bad faith.

D. Amendments

1. Sources of law

Rule 15

(a) Amendments may be made once as a matter of course before a

responsive pleading is served, or, if no responsive pleading is

expected, then 20 days after the pleading is served. Otherwise, the

party must obtain leave of court or consent of the adverse party. Leave shall

be freely given by the court when justice so requires.

(b) At trial, if claims or defenses are not raised by the pleadings, it is up to

the adverse party to object. If the party does not object, leave shall be

freely given and it is up to the adverse party to argue that the

amendment would prejudice him

(c) Relation back to the date of the original complaint.

(1): relation back is permitted by the relevant statute of limitations

for the action

 (2): If a claim or defense is to be related back, it must arise out of

the same conduct, transaction or occurrence as asserted in

the original pleading. Always allowed if justice so requires.

The adverse party has the obligation to object and show

prejudice.

(3): To add a party

1. First, (2) has to be satisfied, has to be out of the same

transaction or occurrence

2. Within 120 days (per Rule 4(m))of the filing of the

complaint, the person seeking to be added must

have both:

a. Received notice of the institution of the action

AND

b. Know or should have known they would be a

party but for a mistake of identity

2. Singletary: Wanted to add a party under Rule 15(c)(3). Court found it was

same to or o, but plaintiff did not show that the proposed defendant had been

notified of the action within 120 days, or that he knew or should have known but

for a mistake he would have been made a party. Thus, amendment not allowed.

a. Two theories of notice

1. Shared attorney: Parties shared attorney, thus, he had to have

known, but, did not share attorney within 120 period so

may not have known

 2. Party was an employee, thus, had to have known. But proposed

defendant was not high ranking so he may not have known

b. But for a mistake: For ex.: Proposed defendant saw the complaint, and

knew that he was the one that the plaintiff was looking for, instead of Doe

or someone else.

3. Christopher v. Duffy: Lapse of years would obscure the facts necessary for the

proposed defendants to defend their case. A key witness was dead, had been eight

years. This shows prejudice.

E. Sanctions

1. Source of Law:

Rule 11

(a): All papers presented to the court shall be signed by the attorney,

along with other information such as address. An unsigned paper

is stricken unless promptly taken care of.

(b): When you present something to the court, you are certifying to the

best of your knowledge after an inquiry reasonable under the

circumstances that

(1) No improper purpose

(2): Claims are warranted by existing law or a nonfrivolous

argument for an extension or modification of the law

(3): Have factual support for the allegations, or likely to have

support after a reasonable opportunity for further

investigation.
 (4): Denials are warranted on the evidence or reasonably based on

a lack of information

(c): Sanctions: If (b) is violated, the court May impose sanctions upon

attorneys, parties, or law firms. A party cannot be sanctioned

under (b)(2) because he is not expected to know the law.

(1)

(A): If it is an attorney made motion for sanctions, the

attorney must serve the motion to the other party,

wait 21 days, then file for sanctions with the court.

This is the safe harbor. The fees incurred in making

the motion may be awarded.

(B): Court may also initiate the motion. No safe harbor.

Opposing party must show why (b) is not violated.

(2) Wide variety of sanctions. Limited to what will deter

repetition of conduct.

2. Progress Fed Savings Bank: Safe harbor provision does not allow for

sanctions beyond the disposition of the case. A party shouldn’t have to fix a

pleading if the case is disposed of.

F. Counter and Cross Claims

1. Sources of law

Rule 18: Joinder of claims

(a) A party who asserts any claim can also add any other claim

that the party has against the other party (efficiency). Once
a party makes a valid claim against someone, whether under Rule

8, 13, 14, or 20, any other claims can be made at the same time.

Rule 20: Joinder of parties

(a): All parties may join in one action as plaintiffs if their claims

arise out of the same transaction or occurrence, or series of

transactions or occurrences AND if there is a

question of law or fact common to all persons. All persons

may also be joined as defendants on the same conditions.

(b): Courts can order separate trials to prevent delay or prejudice.

Rule 21: Misjoinder:

Courts may drop or add parties on its own initiative on terms that

are just. Any claim can be dealt with separately.

Rule 13:

(a): Compulsory Counterclaims: A claim against an opposing

party (across the v) is compulsory if it arises out of the

same transaction or occurrence. If not made, then the claim is

lost to res judicata.

(b): Any claim against an opposing party not arising out of the

same transaction or occurrence. If not made, it is not lost to

res judicata.

(f): Counterclaim may be set up by amendment.

 (g): Cross claim: Can be made against a co-party (same side of v.)

if the claim arises out of the same transaction or occurrence as the

plaintiff’s claim against them.

(h): Subject to rules 19 and 20, other parties may be made parties

to counter or cross-claims.

2. Kedra: There is a lot of overlap between the claims against multiple

defendants by multiple plaintiffs, thus, according to Rule 20, all claims are valid

in one action

3. Banque Indosuez: Courts have to look to four factors to determine whether a

claim is compulsory or permissive. These are factors. It is unlikely that number 4

alone is enough, but one of the other ones may be enough.

a. Are the issues of fact and law raised by the claim and the counterclaim

largely the same?

b. Would res judicata bar a subsequent suit on defendants’ claims absent a

compulsory counterclaim?

c. Will substantially the same evidence support or refute plaintiff’s claim

as well as the defendant’s counterclaim?

d. Is there a logical relationship between the claim and the counterclaim?

G. Third party practice

1. Source of law

Rule 14

(a):
 1. Defendant can assert a claim against a person not a party to the

action only if that claim is in some way dependant upon the

outcome of the main claim (indemnity, contribution,

subrogation, warranty.

2. Third party defendant may also assert any claim against the

plaintiff arising out of the same transaction or occurrence.

3. The plaintiff may claim against the third party defendant if the

claim arises out of the same transaction or occurrence

a. The third party defendant may then make counter and

cross claims as provided in Rule 13.

4. All claims in this rule are subject to pleading requirements in

8(a) and 12.

5. Third party defendants may also make a Rule 14 motion to join

anyone else who is or may be liable for the claims against

him.

6. Any party may move to sever any claim.

2. Gross v. Hanover: Court must balance the benefits derived from the impleader

against the potential prejudice to the plaintiff and the third party defendants.

Purpose of the rule is to promote judicial efficiency. Court has considerable

discretion to allow or not allow a third party complaint.

3. U.S. v. Olavarietta: Impleader is not allowed because while the defendant had

a claim for relief, it was not for all or part of the plaintiff’s claim against the

defendant.
VI. Discovery

A. Sources of Law

Rule 26: Discovery

(a) Required to produce, even if no one asks

(1): Gives the requirements that each side must disclose initially

without a request. Must make the disclosures based on

information reasonably available. Not excused if

you have not completed an investigation.

(B): Must disclose everything that the party will use to

support its own claims. Not expected to produce

what the other side may want to use.

(2): Experts

(3): Pre-trial: Just before trial you must produce everything that is

going to be used at trial.

(b) Limits to Discovery

(1): May obtain any non-privileged material that is relevant to the

claim. The adverse party may, therefore, argue that the

information you are requesting is not relevant to the

claim. The information need not be admissible at trial if it is

reasonable that the discovery will lead to admissible

information.

a. Relevance: reasonably calculated to lead to admissible

evidence
 b. Electronically stored data can be discovered.

(2): Provides limits to the extent of discovery. These limitations

are to be argued in a motion to compel under Rule 37. It is

risky to wait until then to argue for these items because if you lose,

you may have to pay costs associated with the motion to

compel.

(A) E-discovery need not be provided if the party shows

that it imposes an undue burden or cost. The court

may still compel the discovery.

(C): The court may limit the discovery if it discovers that:

(i): The discovery is unreasonably cumulative or

duplicative or obtainable from some other

source that is more convenient

Hawthorne: Outside the timeframe was

relevant but discovery pertaining to

other violations not on plaintiff’s property

was not relevant.

(ii): The discovery could be had by other methods

the requesting party has not utilized.

(iii): The burden or expense outweighs the probable

benefit.

(3): Trial prep materials. This rule was made due to the Hickman

case. There are two types of Work Product:

 1. Regular work product: Material generated in

anticipation of litigation

a. Only discoverable if the adverse party shows:

i. Substantial need AND

ii. Not available from any other source.

2. Opinion work product: mental impressions,

conclusions, opinions or legal theories. This material is never

discoverable.

(5)

(A): If a party claims privilege, he cannot just do nothing.

He must disclose some kind of document which

shows the nature of the documents and enough

information that another party can make a

determination of whether or not it is privileged.

(B): Allows a party to get back information he disclosed

which he now claims privilege over. Not smart if

you have to use this.

(c): Protective orders: As opposed to waiting for a motion to compel, a

party can claim a protective order over items that it feels should

not be discovered. First, the party must certify to the court that it has

tried to resolve the issue with the other party. The party must then

show the court that it is annoyed, embarrassed, oppressed, or

unduly burdened in having to make certain discoveries

 a. Irrelevant material qualifies as undue burden.

(d): Parties may not seek discovery before the 26(f) conference

(e): Supplemental Discovery. Certain things must continue to be

disclosed without a motion or request.

(f): Scheduling conference must be had at least 21 days before the

scheduling conference in 16(b). Certain things need to be

discussed.

(g): All discovery must be signed certifying that the discovery is complete

and accurate to the best of the attorney’s knowledge.

(3): The court can sanction a party who does not comply with the

rules and certifies that he does.

Rule 30 and 31

Deponent is sworn and testifies under oath. All parties get to ask

questions. Can depose parties or non-parties, but a non-party must

be subpoenaed or else does not have to show up.

Rule 33

Written questions answered in writing under oath (30 days to answer);

Only sent to parties.

Rule 34

(a): Within the scope of 26(b), a party can request any information from

the other party.

(b): Procedure: This rule gives the way that a request is made.
 1. It must describe items or categories of items with particularity.

2. An adverse party can object to the request. The

objection shall state with particularity what he is objecting

to, or, the party can make a motion for a protective order.

3. The other party can then make a motion to compel under 37(a).

4. For e-discovery, unless parties agree or the court orders

otherwise:

(i): Must produce the discovery in the forms that they are

kept for business use and categorized to correspond

to the request.

(ii) If a form is not specified, this rule requires that the

party produce the material in the form if is usually

maintained in or a reasonably usable format.

(iii): The same info need not be produced in more than one

form.

c. Non-parties must be subpoenaed or she doesn’t have to produce the

information.

Rule 35: Medical Examinations

Must have a court order. Applies to parties or someone in party’s custody

or control.

Rule 36:

(a). Requests for admission: A party can request that the other party

make admissions. The request has to state what the admission will
 constitute. The adverse party must answer the request to the best

of its knowledge. A non-answer will be treated as an admission. The

party may also object and the court can compel them to answer. The party

cannot say that they lack the information necessary unless it also states

that they made a reasonable inquiry.

(b): Any matter is conclusively established unless the court permits its

withdrawal.

c. Must admit or deny within 30 days of the request.

Rule 37: Failure to make disclosures or cooperate

(a)

(2): The requesting party may make a motion to compel. For any

of the discovery rules, the party must certify to the court

that it made an attempt to resolve the issue before filing the

motion. This rule applies to initial discovery in 26(a) and for requests

made pursuant to Rule 34, or for depositions and interrogatories

(3): Evasiveness is treated as failing to comply

(4)

(A): Expenses and sanctions: unless the discovery was

justified, the court shall make the party pay the

other side’s costs associated with making the motion to

compel.

(B): If the party loses, the court may make a protective

order and shall make the moving party pay the

expenses of the other party, unless the motion was

justified.

VII. Right to Jury Trial

A. Source of Law

1. Seventh Amendment: In suits at common law, where the value in controversy

shall exceed twenty dollars, the right to a jury trial shall be preserved.

B. Two part test to determine if there should be a jury trial:

1. Look at the issue, and decide what a comparable issue was in 1791 when the

amendment was ratified because there is no more separation of common and

equity courts.

2. Look at the type of remedy sought to determine whether it is legal or equitable.

This is the most important part and more or less decides the issue.

a. If seeking compensation, then legal and therefore right to jury.

b. If seeking injunctive relief or restitution, that is equitable relief and

therefore no right to jury.

C. Chauffeurs: Illustration of B. Back-pay is legal, so right to jury.

D. If both law and equity issues at hand

1. determine right to jury issue by issue

2. if issue of fact underlies both law and equity, must get a jury

3. try jury issues first.

VIII. Summary Judgment

A. Source of law

Rule 56
 (a): A claimant can make a summary judgment motion after 20 days after

commencement or after service of a motion for summary judgment

by the adverse party. Can move with or without supporting affidavits.

(b): Defending party can move for summary judgment at any time with or

without affidavits.

(c): 2 part test:

1. Moving party must show in the pleadings, depositions, answers

to interrogatories, and admissions, and with affidavits, if

any, that there is no genuine issue of material fact AND

2. That the moving party is entitled to judgment as a matter of law.

(e): Supporting and opposing affidavits need to show facts that would be

admissible in court according to the evidence rules. An adverse

party cannot rest upon the pleadings but must set forth facts with

affidavits or otherwise that there is a genuine issue of material fact.

(f): The court may issue a continuance as is just.

B. Adikes: movant is expected for his initial burden to show that there is no genuine

issue. Court required that the moving party had to “foreclose the possibility” that

there was no genuine issue. Basically reversed by Celotex.

C. Celotex: Moving party can fulfill it’s initial burden by pointing to the place in the

record that shows there is no genuine issue of material fact. Foreclosing the possibility is

unnecessary to satisfy this burden.

1. It is possible for Adickes to survive with Celotex: If there is an empty spot in

the record, then foreclosing the possibility is unnecessary, but, if one has to
 produce evidence to show no genuine issue, then one has to foreclose the

possibility.

D. Courts cannot resolve issues of fact at summary judgment.

E. Application of Summary Judgment

1. Look at all evidence. If there is a dispute on a material issue of fact, then the

case moves forward.

2. If no genuine issue, and entitled to judgment as a matter of law, then granted

summary judgment

F. Strategy:

1. Summary judgment can be used to force a plaintiff to show his cards

IX. Dismissal

A. Rule 41: Voluntary Dismissal

(a)

(1):

(i): Plaintiff may file for dismissal when neither answer received

or motion for summary judgment served.

(ii) Can also be done by a signed stipulation by all parties (usually

in a settlement)

(2): Except as in (1), dismissal by order of court and with terms and

conditions that court might deem necessary. If the case has gone

too far such that significant resources have been expended, then the court

will likely dismiss with prejudice

(b) Involuntary dismissal

 1. Failure of plaintiff to prosecute or comply with the rules of the court

2. If dismissed under this rule, this is an adjudication on he merits (res

judicata applies)

(d): If the plaintiff commences an action the second time, the court can order the

plaintiff to pay the costs of the first dismissal

X. Judgment as a Matter of Law

A. Source of law:

Rule 50

(a): A party may move for JMOL at any time after the adverse party has

been fully heard on the issue. The judge deciding a JMOL is

obligated to consider the evidence of the nonmoving party in the light

most favorable to that party. Judge should grant JMOL if a

reasonable jury would not have a legally sufficient evidentiary basis to

find for the party.

(b): This is the old JNOV motion. It is a JMOL motion renewed. You

cannot make this motion after a jury’s verdict if you have not made

the motion before the verdict. Thus, renewed.

B. Standard of finding: If reasonable people could not disagree as to the result, then

grant JMOL.

C. Take facts in light most favorable to non-movant, including reasonable inferences

that the jury could find

D. Galloway: Inference speculation cannot substitute for actual evidence.

XI. Motion for a New Trial

 A. Source of Law

Rule 59

(a): After there has been judgment. Says that there was some problem or

error that was serious enough that we ought to have a new trial.

This is at the discretion of the trial judge. (Judge could have made a

mistake, or juror misconduct, Anything that makes the judge nervous

enough about the result that she wants to start over)

i. Jury error: against weight of evidence, based on false evidence,

miscarriage of justice.

(c): The court needs to conditionally rule on the motion for a new trial at

time he grants a renewed JMOL. This is to determine whether it

should be granted if the judgment is thereafter reversed or vacated on

appeal.

(d): Court can make a new trial within 10 days after entry of judgment on

its own initiative for any reason he would do so on a motion from a

party

XII. Motion to Vacate Judgment

A. Source of Law

Rule 60

(a) For clerical mistakes in judgments, orders or other party’s of the

record only. Very strict.

(b): Gives the rest of the plausible reasons to vacate.

(1)-(3) have to be made within one year of entry of judgment.

 (6) is a catch-all.

B. Brandon: A motion made under 1-3 cannot be made under 6 to get around the one

year limitation.

C. Not compulsory if 1-6 are satisfied.

XIII. Types of Instructions / Verdicts

A. There are general and specific verdicts that can be given

1. General: Whether or not the party is liable, and an amount of damages

2. Specific

a. Either a structured series of answers to interrogatories; or

b. A general verdict with answers to interrogatories.

XIV. Bifurcation and Trifurcation.

A. Bifurcation typically separates a case into two potential trials, usually liability and

damages.

B. Rule 42(b): A judge can try parties separately or separate out different causes of

action for trial

C. Campolongo: Additional reasons for separating out portions of trial are:

1. Simplification of fact finding process

2. Lack of confusion

3. Judicial economy

4. Fundamental fairness

XV. Remittitur / Additur

A. Remittitur: There was a trial, jury has awarded damages, defendant and judge both

agree that the damages were excessive. Judge says that the plaintiff will
 voluntarily reduce the damages they receive, or the judge will order a new trial.

Three choices for the judge to require.

1. Least amount possible to bring the verdict into the range that the judge

believes is ok

2. Remit to the amount that the judge believes as reasonable jury would have

awarded.

3. Remit the greatest amount to bring the award to the smallest amount a judge

believes is rational.

B. Judge is saying: The verdict was too low and you should add damages or grant a

new trial.

1. Additurs are not allowed in federal courts but is allowed in some state courts.

XVI. ADR

A. Source of law

Rule 16

(a): Allows the court to hold pretrial conferences with a lot of different

objectives. Can have as many of these conferences as the judge

deems necessary.

(b): After the Rule 26(f) conference between the parties, the court needs

to enter a scheduling order that limits the time to join other parties,

make amendments, file motions, and complete discovery.

(c): At least one person for each party shall be able to make decisions at

the conference
 (d): Final pre-trial conference. Formulation of plan for trial. Used to be

the only one. As settlements happened a lot in these sessions, so

they decided to expand.

(f): Sanctions are available non-compliance.

XVII. Personal Jurisdiction

A. In Personam Jurisdiction:

1. General: Defendant can be sued in the forum state on a claim that arose

anywhere. Established when:

a. Person is domiciled there

b. A corporations principle place of business or its state of incorporation.

c. Personal service is made upon the defendant

i. Burnham: Personal service in the state upon defendant is

sufficient to establish personal jurisdiction, unless the

defendant is in the state because of fraud, force, or another

unrelated judicial proceeding. Should always do minimum

contacts analysis because of the following split in this case.

A. Scalia sticks to historical pedigree to establish personal

service jurisdiction. All 50 states do it so stick with

the historical system. Does not conform to rule in

Shaffer. Also says that if minimum contacts were

used, physical presense in and of itself is likely not enough

to satisfy minimum contacts.

 B. Brennan sticks with Shaffer in saying that all forms of

pj need to go through minimum contacts and says

that minimum contacts are almost always satisfied

because if the person was physically present in the

state, he was enjoying the fruits of the state.

d. Sufficient contacts to establish what Shoe called continuous and

systematic contacts.

i. Helicopteros: A lot of contacts in this case, including drawing

from bank accounts, training of pilots, and contract

negotiations were not enough to establish continuous and

systematic contacts with the state, thus, no general jurisdiction.

e. The reasonableness factors in Burger King can overrule general

jurisdiction as well, it is not as easy to show the compelling case.

2. Specific: Defendant can only be sued on a claim that has some connection

with the forum. Boundaries are set by the Due Process Clause. Note:

Defendant must fit within the framework of the state’s long-arm statute to even begin

the following constitutional analysis.

a. Pennoyer: State has power over people and things present within the

state. Property cannot establish personal jurisdiction unless it is

attached at the outset of litigation (Quasi in rem). The court was

focused on the state sovereignty.

b. Minimum Contacts: In Personam jurisdiction is established if the

person has minimum contacts within the state which is a substitute

for the presence requirement set in Pennoyer. This analysis shifts the

basis for jurisdiction from the state to the person (the likely

defendant)

i. International Shoe: If the defendant is not present in the forum

state when served, personal jurisdiction is proper if the

defendant has sufficient contacts related to the cause of action

with the forum that exerise of jurisdiction does not offend

traditional notions of fair play and substantial justice. Can be

served with process outside the forum state (Look to Rule 4 for

proper service).

ii. McGee: Texas Corporation only had one contact with

California. Court held him with personal jurisdiction

because:

A. Corp solicited the contract from CA (reached out and

touched CA) purposely availed.

B. The claim arose directly from the defendant’s contact in

CA.

C. State had an interest in adjudication in CA.

iii. Hanson: Personal jurisdiction is not upheld because the person

had unilaterally moved to Florida. The Delaware company did not

purposely avail itself to doing business in Florida.

iv. Volkswagon: Personal Jurisdiction is not upheld. The plaintiff

had unilaterally taken the car to OK. Defendant was not able to
 reasonably foresee that he would be haled into court in OK

because the defendant did not purposely avail itself

to doing business in OK, the stream of commerce ends with

the consumer. The car was “consumed” in New York, not OK.

v. Calder: Personal jurisdiction was upheld because although the

National Enquirer editor and reporter did not purposely

avail themselves of doing business in CA, they intended the

effects to occur in CA. Intentional targeted effects is

another way to establish that the person could reasonably

foresee being haled into court in the forum state.

vi. Burger King: Personal jurisdiction was upheld. The defendant

had purposely availed itself to doing business in FL. This case

also looks at the possibility of other factors overriding

minimum contacts if they are established and make a

compelling case against personal jurisdiction in that forum.

This is a very tough standard to meet. Those factors are:

A. Burden on the defendant

B. Forum State’s interest in adjudication

C. Plaintiff’s interest (availability of witnesses)

D. Legal System’s interest in efficiency

E. Shared interest of the several states.

vii. Asahi: Jurisdiction was not upheld. The reasonableness

factors in Burger King outweighed any minimum contact

analysis that could possibly have been made. Would hade

been a huge burden on defendant to travel to U.S. to adjudicate.

Forum state had no interest because CA resident plaintiff had

settled out. Plaintiff was also foreign. Legal system doesn’t

even have an interest.

A. Two views on the minimum contacts analysis in this

case over the stream of commerce. This was not a

turning factor in the case, so the court did not ultimately

decide this issue.

1. O’Connor takes the position that the defendant

must have known that their product would

reach the forum state AND purposely availed

themselves to that product reaching the forum state.

Asahi had known that the product would have

reached CA, but did not purposely avail themselves of

doing so, thus personal jurisdiction is not met.

2. Brennan says that all Asahi had to do was know

that its product was being marketed and sold

in CA in order for it to reasonably foresee that they

would be haled into court. Volkswagen view.

c. If minimum contacts are met, the claim that is presented must be

related to the claim, or arise out of the claim. Argue both. The
original language comes from Shoe which says the claim needs to

be related, but in Helicopteros, it is argued that the claim may have to arise.

B. Quasi In Rem Jurisdiction / In Rem jurisdiction

1. Pennoyer: Quasi in rem jurisdiction is proper because the property can

establish personal jurisdiction.

2. Shaffer: Says that all forms of personal jurisdiction must go through the

minimum contacts analysis. Property is a basis for jusisdiction only when the

property is the object of the litigation, or the claim is related to the property

(which means the property was in fact the contact). Just having property in the

state is not enough to establish personal jurisdiction (this would establish an in

rem action). There is no more quasi in rem jurisdiction.

a. Real property (as oppossed to stocks in Shaffer) may be enough to

establish quasi in rem jurisdiction, according to concurring

opinion, but it still may not be enough.

C. Rules

1. Rule 4(k)(1)(A) says that the federal court’s jurisdiction relies upon the

jurisdiction of the state that it is in.

D. Consent

1. Carnival Cruise Lines: A forum selection clause was enforced by the court

because there was no bad-faith motive, no fraud of overreaching, and the

passengers were notified of the clause.

 a. Need a really good reason for the court to not enforce the clause:

Physical disabilities, economic disabilities, and important civil

rights.

E. Personal Jurisdiction in the internet age

1. ALS Scan:

a. Personal jurisdiction in the internet context may be proper only if

1. An out of state person directs internet activity at the forum

state.

2. With the manifested intent of engaging in business or other

intereactions within the State.

3. That activity creates, in a person within the State, a potential

cause of action cognizable in the State’s courts.

B. Notice

1. Source of Law: Rule 4

1. 4(c): Provides for what needs to be served, and who can make the

service.

2. 4(d): Waiver. Defendant has incentive because he gets more time to

answer the complaint.

3. 4(e): Service on Individuals

a. (1): pursuant to the laws of the state; or

b. (2): delivering to the usual place of abode

2. Constitutional standard: Mullane: The notice must be reasonably calculated

under all circumstances to give the party of the suit.

 1. If individual parties can be identified, individual notice is required.

2. Notice by publication is usually not constitutional, but if the party

cannot reasonably be found or identified, then it is proper.

XVIII. Subject Matter Jurisdiction

A. Federal Question Jurisdiction

1. Source of Law: Article III § 2 AND § 1331: Judicial power extends to all

cases arising under the constitution and the laws of the u.s.

a. Citizenship is irrelevant.

b. Mottley: The original claim MUST ARISE OUT OF FEDERAL LAW.

i. Cannot get to fed court by anticipating a constitutional defense

ii. Look only to the claim itself; Well-Pleaded complaint rule

iii. A defendant cannot get to federal court just on a couterclaim

that has a federal question.

B. Diversity Jurisdiction

1. Source of Law: Article III § 2: Judicial power extends to citizens of different

states

a. 1332: Restricts Article III, provides that the amount in controversy

must exceed 75,000.

b. Complete Diversity is required: once there are citizens from the same

state on opposite sides, the reasons for diversity have been

eliminated.

i. Citizens for individuals: Place where the person is domiciled, or

where they intend to remain indefinitley.

 ii. Citizenship for corporations: State of incorporation and the

principle place of business.

c. A plaintiff may aggregate claims against a single defendant, but

multiple plaintiff’s cannot aggregate claims to meet the minimum.

C. Supplemental Jurisdiction

1. If the plaintiff’s original claim has a federal claim

a. Pendant claim: Gibbs and 1367(a): If the federal and state claims are

so related as to have a common nucleus of operative fact (same t or

o), then the federal court can hear the state claim.

i. The federal claim must not have been dismissed before trial

ii. The federal claim must be the dominant claim.

iii. Other exceptions listed in 1367(c) (same exceptions as are in

Gibbs).

b. Pendant party claim: § 1367(a): Same conditions as in pendant claim.

Overrules Finley.

2. If the plaintiff’s original claim is a diversity claim.

a. 1367(b): Codifies Kroger: Diversity is destroyed when the plaintiff

claims against someone who was made a party by 14, 19, 20, or 24

and is non-diverse.

b. If the claims are not barred by 1367(b), then look to (a) to see if they

can be added.
 b. Alpattah: If one claim has the jurisdictional minimum of 75,000, then

all other plaintiff’s joining can assert the claim if the claim

conforms to 1367(a).

3. Removal: § 1441(a): If the plaintiff has the option of filing in either federal or

state court, and opts for state court, the defendant has the option of removal if he

so chooses.

a. 1441(b): If one of the parties is a citizen of the State in which such

action is brought, then the case cannot be removed (eliminates the

prejudice problem)

b. 1441(c): The district court may, in its discretion (use 1367(c)), remand

all matters in which state law predominates.

c. 1446(b): The notice of removal has to be filed within 30 days.

d. 1447: Process for remand. Motion for remand has to be filed within

30 days after filing of the notice of removal under 1446(a)

e. All defendants must want to remove in order to remove.

f. 1446(b): case may not be removed 1 year after commencement (only

applies to amended complaints.)

g. 1441(c) seems to allow removal of an unrelated state law claim against

a non-diverse party but the constitution only allows jurisdiction on federal

question or diversity issues, thus, 1441(c) does not allow for

removal of a non-subject matter claim.

XVIII. Venue

A. § 1391(a): For diversity purposes

 B. § 1391(b): For Federal question purposes

C. Transfer of venue: Under both the following statutes, the transferee must be a

proper venue and must have personal jurisdiction over the defendant.

1. § 1404(a): Transferor is proper venue: The court can transfer any action to

another district or division in which it might be brought.

2. § 1406: Transferor is not proper venue: Court can dismiss or transfer to where

proper venue would be.

D. Forum Non Conveniens: Court dismisses case in an appropriate forum because

there is another forum which is far more appropriate.

1. Piper: There must be an adequate alternate forum for the court to grant fnc. A

substantive law change is ok as long as it is not so unsatisfactory as to offer no

remedy to the plaintiff.

a. Forum convenience must override plaintiff’s choice of forum. The

following factors for this determination are the same as for 1404,

but fnc must make a more compelling case:

i. Private factors:

A. Relative ease of access to sources of proof

B. Availability of compulsory process for attendance of

unwilling witnesses, and the cost thereof

C. Possibility of view of premises, if appropriate to the

action

D. Other practical problems that make a trial easy,

expeditious, and inexpensive.

 ii. Public factors:

A. Court congestion

B. Local interest in having localized controversies decided

at home.

C. Interest in having the trial of a diversity case in a forum

that is at home with the law that must govern the

action.

D. Avoidance of unnecessary problems of conflict of laws

or application of foreign law.

E. Unfairness of burdening citizens in an unrelated forum

with jury duty.

XIV. Erie and its Progeny

A. § 1652 Rules of Decision Act. Says that Federal courts sitting in Diversity must

apply state law.

1. Swift v. Tyson: State law as described in 1652 applies to statutes only (written

law)

2. Erie: State law as described in 1652 applies to common law as well as

statutory law for substantive law issues.

a. Easy to determine if it is obviously substantive, like negligence.

b. To determine if something is substantive or procedural, two tests:

i. York v. Guaranty Trust: If the outcome would be substantially

different if the federal law was applied as oppossed to state

law, the state law should be applied.

 ii. Byrd: If something is part of the essential character of being in

federal court, then use the federal court. Such as a judge or

jury issue. Federal says that having a jury is an essential part of

the federal court, and the difference does not make a

substantial difference on the outcome, thus, the federal rule

should apply. Also have to look at the state’s interest in applying

its own law. If no good reason, then it cannot trump the

federal law.

3. Hanna v. Plumer: Easy Hanna: If there is a Federal Rule of Civil Procedure

on point, then it is used in Federal court. The rules have gone through the

Enabling Act and codified the court’s power to approve the rules. Thus, unless

the rule is found to abridge, enlarge, or modify any substantive right, it should be

followed when there is a conflict.

4. Not so easy Hanna: If there is no Rule on point, then look to the following for

guidance on whether the Federal, or the State law should apply.

a. Outcome determinitive test: See above

b. Integral part of federal system: See above

c. Encouragement of Forum shopping?

d. Is there an inequitable administration of laws?

e. Does the state court have a good reason for the rule, such as trying to

make the court accessible for all, or it helps a lot with settlement.