Disposition without Trial Rule 55(a)- Entry of 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 partys default y y y If the Def. does not appear, on the plaintiff's request, with an affidavit showing the amount due, the clerk must enter judgment for that amount and costs Limits judgment to amount in prayer If the Def. does appear, the plaintiff must apply to the court for entry of default, and the Def. must be served with written notice of the application at least 7 days before the hearing Even if Def. does not appear, plaintiff still must prove case by preponderance of evidence as the court generally disfavors default

Under Rule 55(c), a court will set aside an entry of default if the petitioner shows good cause. Courts have used three factors as part of this inquiry: y y y whether the default was willful or the result of the defendants culpable conduct, whether the set-aside will prejudice the plaintiff, and whether the defendant has a meritorious defense.

Must also meet one of the grounds under Rule 60(b), such as mistake, newly discovered evid., fraud Rule 41(b)- Involuntary Dismissals 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)operates as an adjudication on the merits Rule 41(a)- Voluntary Dismissals If a plaintiff decides that it is better to terminate the action rather than proceed, he proceeds under Rule 41(a) and takes a voluntary dismissal y y First dismissal is without prejudice, second dismissal is on the merits; also, if the claim is brought a second time, the court can order the payment of costs [T]he plaintiff may dismiss an action without a court order by filing: o (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or o (ii) a stipulation of dismissal signed by all parties who have appeared. Otherwise, the plaintiff must seek leave of court

Case Management, Settlement, and ADR Rule 16(a)- Pretrial conference In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as: y (1) expediting disposition of the action; y (5) facilitating settlement Can mandate attendance by party or representative, and impose sanctions for: (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 Court cant coerce settlement, but can impose a settlement deadline and sanction parties if they miss it and later settle Rule 68- Offers of Judgment 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. y Generally doesnt include attorneys fees Alternative Dispute Resolution (ADR) Sources of authority for nonbinding authority: local rules, statute, FRCP 16(c)(2)(i), inherent power Mediation The mediator on his or her own lacks any legal authority to decide who is right. Rather, his or her purpose is to create doubt in the parties minds about the validity of their positions and to suggest alternative approaches that may facilitate agreement y Has become court-annexed in many jurisdictions

Arbitration Arbitration resembles adjudication more closely than mediation because the third party, the arbitrator, has the authority to decide the dispute, not merely to try to get the parties to agree on a decision Rule 56- Summary Judgment If a party can show that there is no genuine issue of material fact in the suit and that he entitled to judgment as a matter of law, he can win the case without going to trial y Movant can show lack of genuine issue of material fact by o Affadavits  must state only matters that would be admissible at trial o Discovery Materials (despositions, interrogatory answers)

y y

y y

Movant bears the burden of production establishing there is no factual issue The Court has noted that where the responding party bears the burden of persuasion at trial, the movant can merely show that the existing record contains no evidence that the other side will be able to prove an essential element of their case o For TN, a moving party can affirmatively negate an essential element of the nonmoving partys claim, or o Conclusively establish an affirmative defense that defeats the nonmoving partys claim Cant rest on pleadings Court takes construction most favorable to non-movant

Trial By Jury Seventh Amendment y In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law

Rule 38 y The right of trial by jury as declared by the Seventh Amendment to the Constitution--or as provided by a federal statute--is preserved to the parties inviolate o Must demand jury

Trial judge must ordinarily try legal claims first In deciding whether a claim is legal or equitable, there is a two-part test: 1. Compare the statutory action to the 18th century actions brought in the courts of England prior to the merger of the courts of law and equity 2. Examine the remedy sought and determine whether it is legal or equitable Damages are usually legal y Except where they are restitutionary

Construction of Legal Documents Best done by judges, the court will consider the relative interpretive skills of judges and juries. Judges are the better decision maker when the construction of written instruments is at issue. Jury Selection

The prospective jury pool is usually chosen by sending notice to a randomly selected group of citizens. Jurors who appear for jury duty are assigned to groups of about fifty jurors each called venire panels, and directed to report to a specific courtroom. The jury and alternates are chosen from the venire panel through the voir dire process. During voir dire, jurors are asked questions about their background, knowledge of and exposure to the case, and knowledge of the parties. The court and the parties then strike jurors for cause, which generally means their ability to be fair and impartial is at risk. It could include extensive personal commitments that could distract them from their service. o The litigants themselves can strike a certain number of jurors without cause through peremptory challenges

Racial Discrimination violates the Constitution only when it may be attributable to a state action In determining what is a state action, look at two factors: y y [W]hether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority [W]hether the private party charged with the deprivation could be described in all fairness as a state actor o [T]he extent to which the actor relies on government assistance and benefits. o [W]hether the actor is performing a traditional governmental function. o [W]hether the injury caused is aggravated in a unique way by the incidents of governmental authority.

Phases of a Trial y y Opening Statements: A summary of the evidence to be presented. Argument is inappropriate and the parties cannot make inferences from the evidence. Plaintiffs Case-in-chief: When it concludes, the defendant may seek the entry of judgment as a matter of law, asserting that the plaintiff has failed to present evidence to carry its burden of proof. Defendants Case-in-chief: Both parties may move for judgment as a matter of law when this concludes. Plaintiffs Rebuttal Closing Arguments: Limited to the evidence presented at trial, but may draw inferences from it. Jury Instructions, Deliberations, and Verdict Judicial Control of the Verdict Rule 50(a)- Judgment as a Matter of Law (Directed Verdict) 1) 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: y (A) resolve the issue against the party; and

y y y y

y (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) 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. The court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontroverted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses. No later than 28 days after the entry of judgmentthe 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. Can only be made if there was a pre-verdict motion o 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. In the absence of a Rule 50(b) motion, an appellate court lacks the power to direct the district court to enter a judgment contrary to the one that it had permitted to stand or order a new trial under JMOL

Rule 51- Jury Instructions At the close of the evidence or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give Rule 51(b) states that [t]he court: y (1) must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments; y (2) must give the parties an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered; and y (3) may instruct the jury at any time before the jury is discharged. y Objections must be made in a timely manner and on the record Verdicts General Verdicts Special Verdicts- a special written finding on each issue of fact 49(a)(1) General Verdicts with Written Questions- a general verdict, together with written questions on one or more issues of fact that the jury must decide 49(b)(1) Rule 59- New Trials

y Rule 59(a)(1): The court may, on motion, grant a new trial on all or some of the issues--and to any party--as follows: y (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or y (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court. y A motion for a new trial must be filed no later than 28 days after the entry of judgment. Rule 59(b). y A court may order a new trial sua sponte within 28 days of entry of judgment for any reason that would justify granting one on a partys motion. Rule 59(c). y Great weight of the evidence is the standard y If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial . Rule 50(c)(1).

Remittitur and Additur Where the judge will order a new trial unless the plaintiff agrees to a reduction of the damages to a specified amount (Remittitur), or where the damages are inadequate, the new trial unless the defendant agrees to a raising of the damages (Additur) y Additur is not allowed y In deciding size of remittitur, a leading treatise says that the court should offer the maximum damages that a reasonable jury would award Rule 60(b)- Relief from the Judgment On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: y (1) mistake, inadvertence, surprise, or excusable neglect; y (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); y (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; y (4) the judgment is void; y (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or y (6) any other reason that justifies relief. A motion under Rule 60(b) must be made within a reasonable time[.] If the motion is made for reasons (1), (2), or (3), it must be made within one year. Rule 60(c)(1). Rule 60 relief is rare

Securing and Enforcing Judgments

Rule 64(a) At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies. Rule 64(b): 1) Arrest: Not practically available as a provisional remedy in private civil actions in federal courts today. 2) Attachment: The defendants real or personal property is seized to prevent the disposal of it during litigation. 3) Garnishment: The defendants assets in a third partys possession are turned over to the plaintiff. 4) Replevin: Wrongfully taken or held personal property is taken from the defendant and returned to the plaintiff pending resolution of an ownership dispute. 5) Sequestration: Property whose ownership is disputed is taken from the defendant and held by a neutral third party pending resolution of an ownership dispute. y If right to notice and a hearing is to serve its full purpose, then it is clear that it must be granted at a time when the deprivation can still be prevented. Any provisional remedies statute that requires a pre-deprivation hearing wont be viewed as constitutionally suspect. y There are extraordinary situations that justify postponing notice and opportunity for a hearing. These situations, however, must be truly unusual. Very Rare Three-pronged test, based upon the Mathews factors, to determine adequacy of state law. 1) [C]onsideration of the private interest that will be affected by the prejudgment measure; 2) [A]n examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and 3) [I]n contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections. Rule 65(b)(1)- Temporary Restraining Orders The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: y (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and y (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. y A TRO expires at the time set by the court, which is not to exceed 14 days. Rule 65(b)(2).

y If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time. Rule 65(b)(3). y The adverse party may appear and move to dissolve or modify the TRO on two days notice. Rule 65(b)(4). Rule 65(a)(1)- Preliminary Injunctions A preliminary injunction preserves the status quo for a much longer periodall the way up until trial. The court may issue a preliminary injunction only on notice to the adverse party. y There are four general requirements for obtaining one: 1) likelihood of success on the merits at trial; 2) likelihood of irreparable harm in absence of injunction; 3) inadequacy of remedies at law to prevent harm; and 4) balance of hardships facing parties favors injunction. Rule 69- Execution and Enforcing the Judgment (1) Money Judgment: Applicable Procedure. A money judgment is enforced by a writ of execution, unless the court directs otherwise - Must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies. (2) Obtaining Discovery: In aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person-including the judgment debtor--as provided in these rules or by the procedure of the state where the court is located. y Because state execution procedures only reach assets and property within the states jurisdiction, judgments must be executed in the state where the property to be levied is located. 28 U.S.C. 1963: Permits judgments from one district to be registered and enforced in another district. If the execution is against property (real or personal), the property will be levied and sold as necessary. If monetary assets are sought, the losing partys wages or bank accounts may be garnished. Most states have laws such as the homestead exemption that protect against persons, even judgment debtors, from being deprived of certain essential needs. Appellate Review 28 U.S.C. 1291- The Final Judgment Rule The courts of appealsshall have jurisdiction of appeals from all final decisions of the district courts of the United States.

y y y y

any trial court decision that conclusively resolves a case and brings it to a close

Rule 54(b) permits the district court to direct the entry of a final judgment as to one or more but fewer than all of the claims in a multi-claim or multi-party action 28 U.S.C. 1292(a) allows appeals of interlocutory orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions 28 U.S.C. 1292(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order Writs of Mandamus extraordinary writ that petitions the appeals court for an order directing the district court judge to withdraw the order that the moving party is contesting y usually only appropriate where the party seeking the writ can show that immediate review is necessary to avoid an irreparable harm that will result from the trial courts abuse of discretion, and that will not be remedied on appeal from final judgment

Rule 23(f) Allows appeals from orders allowing or denying class certification in class actions Contempt Approach Disobeying court orders and appealing the ensuing finding of contempt Collateral Order Doctrine Doctrine that permits immediate appeals of important orders that are distinct from the merits of the main action, but which would not be subject to effective and timely review if the parties had to await an appeal of the final judgment in the case y To be appealable, the order must: 1) conclusively determine the disputed question; 2) resolve an important issue completely separate from the merits of the action; and 3) be effectively unreviewable on appeal from a final judgment.

y y y y y y

In a civil casethe notice of appealmust be filed with the district clerk within 30 days after the judgmentappealed from is entered Post-trial motions (i.e., Rule 50(b), Rule 59) toll the running of the thirty-day period until they are ruled on. The thirty-day period for appealing final judgments is not jurisdictional Under section 1292(b), parties have ten days after the entry of an interlocut ory order of the trial court to appeal that decision. If a party prevailed on the final judgment, it cannot appeal adverse interlocutory rulings against it o De novo  This is no discretion at all; the appellate court is deciding the issue anew without regard for the trial court judgment.  Reserved for issues of law decided by the trial court. o Clear error  Reserved for factual determinations made by the judge. o Abuse of discretion  Permits trial courts decision to stand if there is a rational basis for it and the proper legal standard was used.  Mainly includes decisions related to conduct of the trial and pre-trial process (e.g., evidentiary decisions).

Claim Preclusion Res Judicata (Claim Preclusion) prohibition on relitigating a claim that has been litigated and gone to judgment Although the claim preclusion doctrine is a common-law doctrine that varies across jurisdictions, the basic contours are consistent and are set forth in Nestor: 1) The judgment in the prior action is final; 2) The judgment in the prior action was on the merits; 3) The claim or cause of action in the subsequent action was raised or could have been raised in the prior action; y Transactional Test- the claim that is extinguished includes all rights of plaintiff to remedies against def. w/ respect to all or any part of transaction or series of 4) The parties in the subsequent action are identical, or are in privity with, the parties in the first action. A nonparty is considered to be so close to the original party as to be in privity in three situations: y When bound by any prior judgment against that party y A nonparty who controlled the original suit y A nonparty whose rights were adequately represented by a party in the original suit

y y y y

Prohibition against splitting claims doesnt apply unless it was actually possible for the party to have raised it in the previous action It is an affirmative defense, it must be set forth in responsive pleadings or it is lost Court can do it sua sponte, but has no obligation Default judgments usually given claim preclusive effect

Collateral Estoppel (Issue Preclusion) prohibits the relitigation of issues that were actually litigated and necessarily decided by a court, In order to be precluded, the issue must 1. Be the same as an issue raised in the prior litigation that resulted in a valid final judgment; 2. Have been actually litigated and determined in the prior litigation; and 3. Have been necessary to the judgment in the first action o can apply when the second claim or cause of action is not the same as the first Mutuality of Estoppel y Offensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. y Where not unfair to plaintiff y Where the party could not have joined in earlier action y Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant. Law of the Case Doctrine o can apply when the second claim or cause of action is not the same as the first