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Table of Contents Civil Procedure Overview p. 2 Contempt p. 3 Due Process p. 4-5 Remedies: Provisional Relief p. 6-7 Remdies: Final Relief p. 8 Enforcing Judgment p. 8 Complaints/Pleadings p. 9 Amending the Pleading p. 12 Answers/Motions/Affirmative Defenses p. 14 Joinder p. 15 Intervention p. 17 Counterclaims/Crossclaims/Impleader/Interpleader p. 18 Discovery p. 20 Judge/Jury p. 22 Sanctions (Rule 11) p. 23 Summary Judgment p. 25 Controlling/Overruling Jury p. 28 Personal Jurisdiction p. 31-37 Venue p. 38 Removal p. 39 Forum Non Conveniens p. 40 Notice p. 41 Subject-Matter Jurisdiction p. 42 Supplemental Jurisdiction p. 43 Issue Preclusion p. 46 Claim Preclusion p. 48 Attorneys’ Fees & Marek p. 51 Policy: Rules & Standards p. 53 Policy: Judicial Management p. 54 1    PROCEDURAL RULES & JUDICIAL POWER Three philosophies governing procedure: (similar to debate about rules v. standards) “Justice is served by predictable procedure”: It’s a predictable system, regardless of how it impacts individuals VS. “Procedure is the servant of justice”: context of the rules should matter and take into context The distinction between procedure and substance is not meaningful Jurisdiction  most important What is the law that is applied in a federal court action? (Federalism) Pleading  There has been a movement away easy, liberal pleading standards All Forms of Joinder Discovery Pre-trial adjudication/Summary Judgment  how to get rid of cases before trial Trial and Jury Control Procedures Trilogy of Post-Trial Motions: New Trial, Directed Verdict/Judgment as Matter of Law, and JNOV or Renewed Judgment as Matter of Law 9. Appeal 10. Former Adjudication: Res Judicata/Claim Preclusion, Collateral Estoppel/Issue Preclusion 1. 2. 3. 4. 5. 6. 7. 8. Cognizability (whether law will give relief for actions complained of)  Cause of action: facts match up to elements of cause of action  Demand Letter (maybe)  either mediation or alternative dispute resolution (ADR)  Personal jurisdiction for defendant  Pick forum state  Which state has subject matter jurisdiction  Venue (which geographic section of the state to bring the case, typically either where alleged action took place or where D resides)  Notice to D of commencement of action (due process requires)  Check long-arm statute of the state to make sure that D can be sued for torts committed by D in another jurisdiction (p. 186)  Draft complaint in accordance with Rules of Civil Procedure for jurisdiction where complaint is being filed (if federal court, then Federal Rules)  Check statute of limitations  Ensure D receives service of process  Consider whether to file joinder of causes of actions (joinder of claims in federal court) to raise multiple causes of action and/or joinder of parties to name more than one D in complaint  D can file motion to dismiss for failure to state a cause of action  D can file an in answer, in which s/he states affirmative defenses (defenses Ds have to Ps’ causes of action)  D may file counterclaim against P for damages or relief  Impleader or third-party practice (complaint for indemnification against a third party responsible for D’s actions ; impleaders may have claims against each other, cross-claims  May be necessary parties, intervention, and class actions = more complex joinder issues  If pleadings survive initial motions, parties then engage in discovery Interrogatories, depositions, requests to inspect documents  Lawyers must be familiar with both federal rules, local rules, and standing orders of judges  Burden of production: party with burden of proof (usually P) must have sufficiency of evidence for each element of at least one cause of action  If D feels P has not sufficiently met his/her burden, can move for judgment as a matter of law, or directed verdict If P survives motion for judgment as matter of law, P must persuade factfinder by preponderance of evidence (burden of persuasion)  After discovery, can be motion for summary judgment by either side, but usually D  Renewed judgment as matter of law (or JNOV)  Trial  After trial, verdict becomes judgment  Remedies include monetary award, injunctive relief -- temporary restraining order (prior to trial), preliminary injunctive (prior to verdict), permanent injunction (after trial)  Appeal to intermediate, appellate court, and then supreme court  Party can file an interlocutory appeal, but not appeal the decision necessarily except as indicated below  Once final determination, res judicata applies, meaning the matter has already be adjudicated and decided, even if P wishes to bring another claim (say, negligence instead of battery) on the same facts; aka claim preclusion  If an issue resolved in prior proceeding and becomes relevant for subsequent proceeding, the prevailing party in prior case can collaterally estop losing party from denying resolution of prior issue; known as issue preclusion (p. 192) 2 CONTEMPT Enforcement of Court’s rulings. Demonstrates how procedure ultimately allocates power within system of law. WALKER V. CITY OF BIRMINGHAM (U.S. 1967) (p. 165): City obtained ex parte TRO to forbid civil rights leaders to participate in or encourage demonstrations of Birmingham’s racial segregation. King arrested during demonstrations, sentenced to 5 days in jail, and fined $50, along with other leaders. At contempt hearing, Ps challenged constitutionality of injunction because vague and overbroad, and restrained free speech. Ps also challenged Birmingham parade ordinance process because previously administered in arbitrary and discriminatory manner. Holding: The parade ordinance was not void on its face, and the injunction was not void on its face; therefore, the injunction and resulting contempt convictions are upheld. “No man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion.”  Collateral Bar Rule: Noting that MLK had not moved for injunction to be dissolved or taken further steps to apply for permit, the Court refused to consider the constitutional questions , invoking collateral bar rule: if an individual violates a court order, he or she is thereafter barred from challenging it Dissents (Warren, Brennan, Fortas, Douglas): 1. Ps not acting as judges in their own case; rather, violating injunction to challenge its constitutionality is akin to violating a statute for the same reason. a. In fact, some cases require Ps to violate the statute in question in order to establish their standing to sue 2. Birmingham parade ordinance unconstitutional on its face: different procedures for different applicants, namely applicants with whose views city commission disagree  amounts to censorship of free speech 3. Court should not place seal of approval on gross misuse of judicial process 4. Shows conflicting philosophies: Justice is Served by Predictable Procedure vs. Procedure should bend in the interests of justice. 3 DUE PROCESS, COST-BENEFIT ANALYSIS, AND JUSTICE The Values of Process and Elements of a Hearing Essence of due process = right to be heard in a meaningful manner at a meaningful time before being deprived of life, liberty or property, usually the latter –“a grievous harm” Rules/Features of Due Process: 1. Only government obligated to guarantee due process 2. Notice & Opportunity to be Heard: “At a meaningful time and in a meaningful manner” (Boddie) 3. Whether certain process is due will depend on circumstance, whether P will suffer “grievous harm” 4. Process due: a. Usually pre-deprivation hearing where party facing deprivation can challenge evidence against him/her b. Access to a lawyer will depend c. Whether filing costs, etc will be waived Analysis: 1. Deprivation: whether 5th Amendment or 14th Amendment implicated 1. Is the government actor? (Cannot bring due process action against private citizen) 2. State or federal government  federal govt is 5th amendment; state govt is 14th amendment 2. Is there a right at stake? – Life, liberty, or property 3. What process is due? 3-part Matthews test 1. What private interests are at stake? 2. What is countervailing government interest in curtailment? 3. The amount of error to be allowed - (could be similar to one of those cases) Due Process: Policy Debates  Process Values of Administrative Procedures (Mashaw, p. 46) o Individual dignity o Equality o Fairness  Value of Accuracy in Adjudication (Kaplow, p. 53) o Procedure has value but should be an ultimate cost-benefit analysis, there is an efficient amount of procedure (?) GOLDBERG V. KELLY, US 1970 (p. 68) Kelly alleged violations of Due Process (14th amendment) and Social Security Act requirement for ‘fair hearing’ because of welfare dept’s practice of cutting people off welfare benefits without notice or opportunity to appeal. Subsequent to filing of complaint, NY implemented procedures for notice & hearing – plaintiffs challenge these as unconstitutional because they allowed people to appeal only after benefits had been cut. Balancing Approach: seriousness of terminating someone’s aid with the potential gov’t interests in not paying someone who is undeserving and the additional costs of having a hearing.  depriving someone of their very means to live was not justified only to save some gov’t costs. However: no need for judicial setting in pre-termination hearing if there is also an opportunity to appeal BODDIE V. CONNECTICUT (US 1971) (p. 68) Plaintiffs are welfare recipients suing in class action because state of Connecticut’s requirements for payment of court fees and costs for service of process restrict their access to courts in effort to bring an action for divorce. Connecticut charges $60 - $95 to file action in court ($45) and then to serve other party ($10 to $50). 4 Holding: Due process does prohibit State from denying, solely because of inability to pay, access to courts to individuals who seek judicial dissolution of their marriages in good faith. MATHEWS V. ELDRIDGE (US 1976) (p.39): In determining whether deprivation of disability benefits requires pre-deprivation hearing, court balances: 1. the private interest that will be affected by the official action 2. the risk of erroneous deprivation of such interest through the procedures used and the probable value of additional or substitute procedural safeguards 3. the government’s interest, including the function involved and the fiscal and administrative burdens that additional procedural requirement would entail. The court rules that the risk of erroneous deprivation does not outweigh the value of additional procedure in reducing errors, an oral hearing in this case. The deprivation, while serious, is not as serious as a welfare deprivation. Defined govt interest very differently from Goldberg v. Kelly. LASSITER V. DEPT. OF SOCIAL SERVICES OF DURHAM COUNTY, NORTH CAROLINA (U.S. 1981) (p. 74) At hearing for termination of parental rights in NC, appellant not represented by counsel, while the state was, and hearing resulted in loss of her parental rights in 1978. Appellant’s child had been removed from her custody in 1975 after the District Court of Durham County, N.C. found him to be a neglected child and transferred him to custody of Durham County Dept. of Social Services. Appellant subsequently convicted of second-degree murder and began sentence of 25 to 40 years. State moved to remove her parental rights, in part because of her lack of contact with son during nearly two years of her imprisonment prior to hearing, the decision of which is under review here Allegation that grandmother complained that P did not care for children.  Holding: The trial court did not err in failing to appoint appellant with counsel during her hearing, which decided termination of her parental rights. Hamdi v. Rumsfeld (US 2004) (p. 58) Hamdi = US citizen held as an enemy combatant for training with Taliban in Afghanistan, alleges violation of 5th & 14th Amendment due process – held without access to legal counsel or notice of charges against him. Applies test of Mathews v. Eldridge – war does not preclude focus on risk of erroneous deprivation of liberty. Right to be heard in meaningful time & manner cannot be eroded no matter what. DP requires:  receive notice of the factual basis for the classification  fair opportunity to rebut before a neutral decision-maker However, limitations for enemy combatant situation may be permissible – hearsay, presumption in favor of govt, etc. to accommodate Govt interest. 5 REMEDIES Securing the Judgment Two Basic Types of Provisional Relief: 1. Temporary Restraining Order 2. Preliminary Injunction SEIZING A PERSON OR PROPERTY: RULE 64. To secure satisfaction of potential judgment Authorizes seizure of property to make sure damages are available in the event of judgment. Remedies: 1. Arrest 2. Attachment 3. Garnishments 4. Replevin 5. Sequestration FUENTES V. SHEVIN (U.S. 1972) (p.96) Creditor obtained a writ of replevin ordering the sheriff to seize goods Fuentes bought on installment. In accordance with Florida procedure, Firestone only had to fill in the blanks on a form and post a bond. Fuentes was denied notice and any opportunity to respond. State role in signing off on writ of replevin brought this under 14th Amendment.  Property: The Court reads the concept of property broadly to extend to “any significant property interest,” thereby circumventing the problem that Fuentes did not actually have title of the property in question.  Due Process requires notice & meaningful oppty to be heard before deprivation of property under color of law. Need for DP in seizure of property Cases in “Notes” ‐ Flagg Brothers ‐ North Georgia Finishing ‐ Connecticut v. Doehr (p. 103): defendant threatens to attach a $75,000 lien on the plaintiff’s home because of ‐ U.S. v. James Daniel Good Real Property (p. 103): some kinds of property 6 INJUNCTIONS & RESTRAINING ORDERS: RULE 65. Restrains D’s activity during litigation Preliminary Injunction – Rule 65(a) 1. For duration of litigation 2. Cannot be granted without notice to adverse party 3. Four (4) elements 1. Plaintiff needs to show that damages down the road will be insufficient and they will suffer irreparable harm if relief not given 2. Plaintiff has to show its irreparable harm will outweigh defendant’s irreparable harm 3. Plaintiff has to show that it has a likely chance of prevailing on the merits 4. Plaintiff has to show that injunction is in the public interest, in the interest of justice o In ACLU, Temporary Restraining Order -- Rule 65(b). “Quick and dirty solution” 1. Lasts 10 days and can be renewed 2. Can be issued ex parte only if moving party shows immediate and irreparable damage would result from affording other party opportunity for hearing. 3. TRO is for immediate action when things are going to change; cannot wait for other party and their lawyer (i.e. cutting down trees in the rainforest) 4. Two (2) elements: 1. Immediately irreparable harm (that damages would be insufficient relief down the road): i.e. cutting down rainforest would be irreparable harm 2. Explain and certify why is it that the other party is not there with a lawyer US V. HALL (5th Cir. 1972) (p.11) Court ordered ex parte injunction: “anyone having notice of this order who violates any of terms thereof shall be subject to arrest, prosecution and punishment.” Court ordered sheriff to serve copies on 7 named persons, including Hall, who received constructive, not actual, notice. The doctrinal issue is contempt power – the question of whether a court has power to hold a non-party to an action in contempt. Rule 65(d) and Injunctive Relief: Hall argues that FRCP 65(d) limits the binding effect of injunctive orders to “parties to the action, their officers, agents, servants, employees, and attorneys, and… those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” Holding: Judge Wisdom evades this language by suggesting that courts may act so as to protect their ability to render judgment. Wisdom suggests that Rule 65(d) was a “codification rather than a limitation of courts’ common-law powers, cannot be read to restrict the inherent power of a court to protect its ability to render and binding judgment” especially in a school desegregation case where nonparties have an interest in the outcome. Note also that Wisdom characterizes the injunction as a temporary restraining order rather than an injunction, since a preliminary injunction would have required notice and an opportunity to be heard. ASHCROFT V. ACLU (US 2004)(p. 105) 7 FINAL RELIEF: EQUITABLE REMEDIES, DECLARATORY JUDGMENT, DAMAGES Permanent Injunction = Equitable  Standard: no adequate remedy at law (v. preliminary injunction = “irreparable harm”) o Legal remedy is difficult to accurately calculate (ex: in Walgreen, 10 year lease is a long time to predict damages accurately) o Failure to grant injunction would result in non-quantifiable but important damages (like loss of reputation in Walgreen)  Other types of Equitable Remedies: o Consent decree: settlements negotiated by the parties but approved and enforced by the court, which retains jurisdiction over the dispute. o In an Ongoing Injunction, Court Maintains Jurisdiction: With a permanent injunction, the Court retains jurisdiction over the dispute. If a party fails to conform to an injunction, a party could ask the court to hold that party in contempt. Legal relief (as opposed to equitable):  Nominal damages – small amount to signify that P injured by not entitled to damages, usually $1  Compensatory damages – to make the plaintiff whole  Punitive damages – to punish/deter egregious behavior  Declaratory relief – to clarify the law (28 US 2201)  ENFORCING THE JUDGMENT Rule 58: obtaining a judgment Rule 70: Enforcing Judgment for Specific Act Rule 79a: entering into docket Rule 69: seek enforcement of judgment WALGREEN CO. V. SARA CREEK (pp. 114) Sara Creek mall wants to let in store w/ pharmacy, in violation of lease w/ Walgreens The court identifies the benefits of using an injunction instead of damages:  It shifts the burden of determining the cost of the defendant’s conduct from the court to the parties. Thus the effect of upholding the injunction would be to substitute for the costly processes of forensic fact determination the less costly process of private negotiation.  the prices and costs are more effectively determined by the market than by the courts. Posner thinks it’s more efficient for the parties to put a price on breach, rather than the courts. CAREY V. PIPHUS (US 1978) (p. 122): Nominal damages for due process violations Two students, one in high school (Piphus) and other in sixth grade (Brisco), are suspended for using marijuana and for wearing a small earring, respectively, without due process. Mothers’ informed of why suspension actions taken, but not afforded opportunity to refute. Both parents subsequently sue in federal court for their sons having been suspended without due process in violation of 14th Amendment. Holding: In the absence of proof of actual injury, the students are entitled to recover only nominal damages” because actual injury by the deprivation of due process is necessary prerequisite to recovery under § 1983 for the deprivation of procedural due process. Plaintiffs have burden of production to prove that they suffered damages that flowed from denial of due process rather than punishment for infraction. (ie Court will not presume damages) 8 BMW V. GORE (US 1996) (p. 130): Punitive damages – can’t be excessive Grossly Excessive Punitive Damages violate Due Process: Court struck down an award of $2 million in a case where BMW had been repainting, and selling as new, slightly damaged cars. Court identified 3 guideposts for unconstitutional excess in punitive damages awards:  How reprehensible is the conduct being punished?  What is ratio of the punitive award to the actual or potential harm inflicted?  What would the award be for comparable civil or criminal penalties for similar mischief? 9 COMPLAINTS / PLEADINGS Rule 6: Computing and Extending Time Rule 7: Types of Pleadings Rule 8: Rules of Pleadings Rule 9: Pleading Special Matters Rule 10(a): Rule 17: Real Party in Interest Pleading Standard 1. Rule 8(a)(2): “short and plain statement” of the claim showing that the pleader is entitled to relief 2. Twombley changes pleading standard to require more – “Must raise a right to relief about the speculative level, plausible and not merely conceivable.” a. Unclear what this means in light of Rule 9, which requires higher pleading standard than regular for accusations of fraud Rule 6. Computation of Time 1. Exclude day of the act/event 2. When period less than 11 days, exclude Sat, Sun, legal holidays a. Rule 6(a)(4): defines legal holidays 3. Include last day of period unless Sat, Sun, legal holiday, or if to be filed in court, do not include bad weather day in the period where access to court impossible 4. Can request extension of time if before end of period before time expires, or by motion afterwards if deadline missed because of excusable neglect Rule 7. Types of Pleadings PLAINTIFF 1. Complaint a. Basis for Court’s subject-matter jurisdiction – 8(a)(1) b. Statement of claim: “short plain statement of claim showing pleader entitled to relief – 8(a)(2) i. Legal sufficiency ii. Factual sufficiency c. Demand for judgment/prayer for relief – 8(a)(3) i. Damages, could be determined at trial, even for diversity case (8(a)(1) would have indicated you meet threshold amount) ii. Equitable relief: 1. Injunction 2. Declaratory judgment 2. Can plead in the alternative: Rule 8(d)(3) 3. Rule 3: civil action commenced by filing complaint with the court 4. Serve complaint on D within 120 days of filing with court – keep in mind computation of time Rule 9. Special Pleading Rules 10 DIOGUARDI V. DURNING (2nd Circ 1944)(p. 197). Liberal Pleading Reqs  Plaintiff wrote his own complaint (poorly worded & unclear), alleging Customs Collector sold his tonics to a lower bidder, and that two cases of his tonics disappeared before sale.  FRCP do not require “stating facts sufficient to constitute a cause of action” only that a “short & plain statement of the claim showing that pleader is entitled to relief.”  1st authoritative construction of Rule 8a. CONLEY V. GIBSON (US 1957)(p. 199): “No set of facts”  The Court held “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  In reviewing a motion to dismiss, a court will take all assertions in the light most favorable to the plaintiff. LEATHERMAN(US 1992) (p. 202) No heightened pleading standard for civil rights cases. BELL ATLANTIC CORP. V. TWOMBLY (p. 205) – Must raise a right to relief about the speculative level; must be plausible and not merely conceivable. Conscious parallelism versus conspiracy to fix prices. 11 AMENDING THE PLEADING Rule 15(a): Amendments as a Matter of Course (1) Party may amend its pleading once as matter of course (automatic): (A) Served with the responsive pleading; or (B) Within 20 days after serving pleading if responsive pleading not allowed and action not yet on calendar (2) In all other cases, party may amend its pleading only with opposing party’s written consent or the court’s leave. Court should freely give leave when justice so requires. Barriers to amending:  Unreasonable Delay: When opponent has unreasonably delayed in raising an issue he seeks to add by amendment. This argument usually fails without some additional element of prejudice.  Prejudice: The delay has caused a party to be prejudiced in his or her preparation of the case.  Bad Faith: The issue is raised in bad faith, such as for the purpose of confusing the factfinder.  Futility: The new issue is futile, having no chance of success Rule 15(b): Amendments During and After Trial (1) If, at trial, a party objects that evidence not within issues raised in pleading, court may permit pleadings to be amended. Court should freely permit an amendment when doing so will aid in presenting merits and objecting party fails to satisfy court that evidence would prejudice that party’s action or defense on merits. Court may grant a continuance to enable objecting party to meet evidence.  Occurs when evidence is presented at trial that is outside scope of the pleadings. (2) For Issues Tried by Consent. When an issue not raised by pleadings is tried by parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move – at any time, even after judgment – to amend the pleadings to conform them to the evidence and to raise unpleaded issue. But failure to amend does not affect the result of the trial of that issue. Rule 15(c): Relation Back: (1) Amendment to a pleading relates to date of original pleading when: (A) Permitted by the law that provides the statute of limitations, OR (B) Amendment asserts claim or defense that arose out of conduct, transaction, or occurrence set out – or attempted to be set out – in original pleading; OR (C) Amendment changes the party or the name of the party: if claim is based on same transaction and the party to be brought in, within 120 days of filing of complaint (Rule 4(m)), AND 1. Has received such notice, and Two theories of notice: i. Shared attorney: Attorney is likely to have communicated to party that he may be joined in the action. ii. Shared identity of interest: Parties so closely related in their business operations or other activities that institution of action against one serves to provide notice of litigation. 2. Must not be prejudiced in defending on the merits 3. Knew or should have known that but for a mistake concerning the identity, the action would have been brought against this party a. “But for a mistake”  Circuit split as to this whether or not knowing a parties name will constitute a mistake Note: Cannot add a claim that would have been time barred upon date of institution and cannot use relation back to revive the time-barred claim 12 Model Answer: Relation Back X…. occurred on X date and the statute of limitations expired X date – X days before…P received info of additional party. Therefore, P must amend his/her complaint and “relate back” the claim against UNNAMED PARTY under Rule 15(c)(1). First, P can show that the claim arose out of “the conduct . . . or occurrence set forth in the original pleading” (15(c)(1)(B)) because …. Second, P must show that UNNAMED PARTY received actual or constructive notice of the action within the 120 period following the service of the complaint (Rule 4m) on ORIGINAL D (15(C)(1)(c)(i)). This may be difficult. Although…Nevertheless, since SHARED IDENTITY/SHARED ATTORNEY, it is highly LIKELY/UNLIKELY that UNNAMED PARTY would have found out about the lawsuit. If P can meet this requirement, then he can probably also meet the third requirement: UNNAMED PARTY should have known that but for a mistake, the action would have been brought against HIM/HER (15(C)(1)(c)(ii)). INSERT FACTS. Once she knew of the suit, she should have known that but for P’s mistake in thinking that ORIGINAL D was the sole WRONGDOER, he would also have sued her. Finally, the court will consider whether “justice so requires” that UNNAMED PARTY be added (15(a)(2)). Here, because the passage of time HAS/HAS NOT significantly affected evidence or UNNAMED PARTY’S ability to defend herself, justice probably weighs in favor of amending to add UNNAMED PARTY. Despite the strong argument in favor of permitting a relation back amendment, it should be noted that the text of Rule 15 does not expressly permit the addition of a previously unnamed party through an amended complaint, as discussed in Sinlgetary v. Dept. Corrections. Rather, 15(c) allows an amendment that substitutes the proper name for a party that had been previously incorrectly named. Consequently, despite the analysis in the preceding paragraph, the judge may rule that Rule 15 cannot authorize the amendment that P seeks, depending on controlling case law of the circuit, which may or may not accept Rule 15(d): f Pleading: Court can allow party or events occurring since start of lawsuit SINGLETARY V. DEPT OF CORRECTIONS (3d Cir. 2001) (p. 250) – Relation Back Dorothy Singletary’s son, Edward, was prisoner who committed suicide. Prior to suicide, Robert Regan, a psychologist, met with and evaluated Singletary on a weekly basis and was last to assess him before he died. Procedural note: original complaint named the Department and “Unknown Corrections Officers.”  Court held that: notice requirements were not met. o Notice via shared atty, identity of interest are ok, but not applicable here o Circuit split on whether can use Rule 15(c) “but for a mistake” to name people who became known after discovery. Some circuits do not allow amendments to clarify identity of John Does. Christopher v. Duffy, Mass. App. Ct. 1990. p. 232: rule 15c and prejudice Christopher family lives in building with lead paint. Janette Christopher diagnosed with lead poisoning. Hire Duffy to “de-lead.” He does so negligently. Janette dies. Original complaint: Defendants James and Bettina Pyne, owners of apartment, Alfonse Trulli, former owner, and John Doe (subsequently replaced by John Duffy). Settled out of court except for Duffy. Mother moves to amend original complaint 6 years later by dropping all original plaintiffs except Duffy and add five companies which manufacture lead for use in lead paint, trade association on the basis that companies knew or should have known of dangerous qualities of products, negligently produced and marketed them. 13 ANSWERS, MOTIONS AND AFFIRMATIVE DEFENSES DEFENDANT Motions 1. First response – if Motion or Answer: a. 12(b)(2) - Lack of Personal Jurisdiction (waivable if not in answer or motion) b. 12(b)(3) - Improper venue (waivable) c. 12(b)(4) - Insufficient process (waivable) – defect in the actual process, ie missing complaint d. 12(b)(5) - Insufficient service of process (waivable) 2. Failure to state a claim – 12b6 – can raise through end of trial a. P fails to state a cognizable claim – i.e. the substantive law offers no relief for this type of injury b. P fails to plead sufficient facts—i.e. such a cause of action exists but P does not state even rudimentary information c. P alleges facts inconsistent with the cause of action alleged – i.e. the false imprisonment claim, p.p. 226-227 in Bower v. Weisman 3. Motion for judgment on the pleadings – 12(c) – if after D has answered 4. D’s Options for responding to a complaint  Motion for more definite statement—rule 12(e). If the complaint is too vague.  Motion to strike—rule 12(f). To strike from the complaint any redundant, immaterial, impertinent, or scandalous matter.  Motion to dismiss—rule 12(b).  Lack of Subject Matter jurisdiction (not waivable per 12(h)(3))  Lack of Personal Jurisdiction (waivable if not in answer or motion)  Improper venue (waivable)  Insufficient process (waivable)  Insufficient service of process (waivable)  Failure to state a claim (not waivable)  Failure to join indispensable party (not waivable)  File an answer—rule 8(b). w/in 20 days, otherwise motion for extension under 6b) 1. Can include affirmative defenses 8(c). Even if the facts are true, there are other facts which should lead the defendant to win. 2. must either admit or deny P’s allegations; or state “insufficient information to form a belief.”  Motion for judgment on the pleadings—rule 12(c).  Counter-claim against the plaintiff. Rule 13.  Not answer and have a default against you. Rule 55. 14 JOINDER ADDING PARTIES & CAUSES OF ACTION Joinder of Claims – Rule 18 Permissive Joinder of Parties – Rule 20 Compulsory Joinder of Parties – Rule 19 Counterclaim – Rule 13(a), 13(b) Crossclaim – Rule 13(g) Third-party Practice – Rule 14 Intervention – Rule 24 Interpleader – Rule 22 Rule 18. Permissive Joinder of Claims 1. P can file as many claims as s/he wants against D, even if unrelated, but must raise all claims arising from same transaction or occurrence (“T&O”) 2. “In federal practice, a plaintiff can join any claims s/he has against the D, so joinder is proper.” 3. “If a state X is a state that follows the federal rule on joinder, P can join any claims s/he has against D, so joinder is proper” 4. If state X follows the more traditional rule of demanding a transactional relationship, use fact analysis to show that all claims come from the same transaction….”joinder of claims appropriate” Rule 20. Permissive Joinder of Parties – 2 prong test Persons can be joined as plaintiffs or defendants if they assert a right to relief or any right to relief is asserted against them jointly, severally, or in the alternative if: 1. Claims or defenses stem from the same transaction or occurrence; AND 2. Common question or law or fact that ties the parties together. T&O + CQ = Permissive Party Joinder At most, a paragraph: state that question Rules of Thumb re: Necessary Parties (from Daynard v. Ness) 1. Joint tortfeasors are not necessary parties 2. Co-obligors to a contract may be necessary parties, but generally are not indispensable 3. An action to set aside a contract requires joinder of all parties to contract  indispensable parties Rule 19. Compulsory Joinder of Parties: Parties without whom the action cannot proceed. 1. Is the outsider necessary and should be joined if possible? a. If in that person’s absence, court cannot grant complete relief to existing parties, OR Example: need all of the parties to a contract to compel specific performance, rights to limited trust fund b. The absent party claims an interest to the subject of the action and is so situated that disposing of the action in the person’s absence may: o As a practical matter impair or impede the person’s ability to protect that interest, OR o Absent party leaves existing party subject to substantial risk of incurring double, multiple or otherwise inconsistent obligations because of that interest Example: one piece of land that can be conveyed to only one party 2. Can you join the outsider? If not, why not? a. May not be able to join because would destroy complete diversity, or cannot exercise PJ over the outsider Prof. may be testing on SMJ or PJ through back-door 3. Because of lack of SMJ or PJ, may not be able to join party. What then? a. Court can either dismiss under Rule 12(b)(7): failure to join a necessary party, OR o Courts do not like to determine outsider “indispensable” 15 b. Court can grant discretionary relief under Rule 19(b) by weighing several factors: o Extent to which a judgment rendered in the person’s absence might be prejudicial to the person or existing parties o Extent to which, by protective provisions in the judgment, shaping of relief, or other measures, the prejudice can be lessened or avoided 1. I.e. putting part of an insurance policy in escrow if indispensable o Whether a judgment rendered in person’s absence will be adequate o Whether P will have adequate remedy if action dismissed for nonjoinder c. Four corresponding interests (as highlighted in Daynard): o Interest of outsider whom it would have been desirable to join o D’s interest in avoiding multiple litigation, inconsistent relief or sole responsibility for liability it shares with another – “just, speedy, inexpensive resolution of disputes” o Interest of courts and public in complete, consistent, and efficient settlement of controversies o P’s interest in having a forum TEMPLE V. SYNTHES (US 1991) (p. 316): Joint & Several liability does not invoke Rule 19 Temple sued mfr of prosthesis in Fed Court, doctor & hospital in State court. Mfr filed rule 12(b)7 motion – failure to join necessary parties. Rejected:  Joint & Several Liability does not require all possibly liable parties. Mfr can be made to pay full damages and collect from other parties later.  19(a)2i – absence of doctor & hospital impairs their ability to defend their legal interest (empty chair defense). Answer: judgment isn’t binding on nonparties.  19(a)2ii – inconsistent obligations: inconsistent judgments are ok, as long as party isn’t order to do two exclusive duties. DAYNARD V. NESS, ET AL. (MA district 2001) (p. 320). Daynard sued MI and S.C. firms & attys for failing to compensate him for assistance in state tobacco litigation. MS firm got dismissed for lack of PJ. Then SC moved to dismiss because MS was necessary party.  Ds allege Daynard can’t get complete relief without MI defs on the hook. o Answer: joint and several liability assumed in this case (all assumptions in favor of nonmoving party) – not grounds for 12(b)7 dismissal  Ds can litigate between themselves later if they want o Even if SC pursues an “empty chair” defense, that MI defendants will not be bound by judgment  “persuasive precedent” not enough to satisfy the prejudice restriction 16 INTERVENTION RULE 24 RULE 24(a). Intervention of Right Intervenor can intervene AS A RIGHT if: 1. Timely application, AND o As soon as prospective intervenor knows or has reason to know his interest may be adversely affected by outcome of litigation  not absolute, b/c intervenor does not receive adequate notice o Motion must be accompanied by pleading which sets out claims/defenses for which intervention sought and served on the parties acc. to Rule 5 o Every step in procedure of main action is a strike against timeliness – i.e. hearing, trial etc. 2. Given unconditional right to intervene by federal statute, OR 3. Legal interest in the property or transaction that is subject of the lawsuit o Circuits not in agreement whether the right should be legally cognizable or not; whether interpreted liberally or more stringently o Court in U.S. v. NIPSCO defines “legal interest” as a direct, “significantly protectable interest” or a “legally protectable” interest  being a concerned private citizen not enough 4. Disposition of suit may impair or impede that interest 5. The interest is not adequately protected by a named party Rule 24(b). Permissive Intervention Court may allow anyone to intervene who: 1. Timely application, AND o As soon as prospective intervenor knows or has reason to know his interest may be adversely affected by outcome of litigation, must move for intervention – not absolute o Motion must be accompanied by pleading which sets out claims/defenses for which intervention sought and served on the parties acc. to Rule 5 2. Is given conditional right to intervene by federal statute, OR 3. Has claim/defense that shares with main action a common question of law or fact 4. Intervention will not unduly delay or prejudice the adjudication of original parties – Rule 24(b)(3) Intervention Notes: 1. No supplemental jurisdiction 2. How Rule 19 and Rule 24 interface? a. Rule 19: initiated by one of the parties in the litigation, vs. b.Rule 24: initiated by party that wants to be part of the case that is not one of the parties Both Rules require that party have an interest that may be impaired or impeded by the litigation U.S. V. NORTHERN INDIANA PUBLIC SERVICES CO., ET AL. (N.D. Indiana 1983) (p. 329) Intervenor (Save the Dunes Council) alleges it has an environmental interest in land being condemned by govt because has been a part of campaign to preserve Indiana Dunes for public use and enjoyment for past 30 years.  Holding: Council motion to intervene denied: potential intervenor has no legally protectable interest in the property and allowing intervention would unduly prejudice original parties’ interests – both of whose positions are contrary to the intervenor – would only prolong lengthy lawsuit, since 4 years had already elapsed. Procedural Notes:  U.S. files “Notice of Condemnation” in 1978 – commencement of action  First mention of settlement between parties was January 1982.  Council filed motion to intervene in April 1982, 3 months after mention of settlements (timely app)  Parties entered into stipulation and joint motion to dismiss on September 1983. 17 Counterclaims, Crossclaims, Impleaders Rule 13(a): Compulsory Counterclaim 1. A pleading must state as a counterclaim any claim that – at the time of service – the pleader has against an opposing party if the claim: a. Arises out of same transaction or occurrence that is subject matter of opposing party’s claim, AND Res judicata will apply if not raised Supplemental jurisdiction okay Rule 13(e): permits party to file supplemental pleading asserting counterclaim that arose after serving earlier pleading. b. Does not require adding another party over whom court cannot acquire jurisdiction, EXCEPT c. If, when the action was commenced, the claim was subject of another pleading action, OR d. The opposing party sued on its claim by attachment of other process that did not establish PJ over the pleader on that claim, and the pleader does not assert any counterclaim under this rule Rule 13(b): Permissive Counterclaim 1. Pleading may state as counterclaim against opposing party any claim that is not compulsory. 2. Need not be related to subject matter of original action 3. Res judicata does not apply 4. Supplemental jurisdiction not okay – not same common nucleus of operative fact Rule 13(g): Cross-claim (against co-defendant) must be related to original claim, or allege that co-defendant will be wholly or partly liable. But once you have a related cross-claim, you can join unrelated ones: now you are opposing parties. [Supp J ok over related claims.] Rule 13 (h): Adding parties A cross claim or counter claim (against parties already in the suit) may also bring in additional parties, if claim is part of same occurrence/transaction (under 19 or 20) Rule 21 – misjoinder: not grounds for dismissal. If court finds a party has been misjoined, simply order separate trials. Impleader – Rule 14: defendant can bring in new parties for indemnification  Allows the defendant to bring a claim against a third party if the third party is or may be liable to them for all or part of the plaintiff’s claim against the defendant. (at judge’s discretion after 10 days)  joint parties to contract, respondeat superior, indemnification, contribution, statute  Not same as blaming 3rd party independently for damage – that’s just a defense.  Third-party defendant, Plaintiff, OG Def can bring related cross-claims, counterclaims, and third party claims under rules 13(a), (b), (g) and 14(a). Then can add unrelated claims once they are opposing parties. [Supp J ok for related claims.] Rule 42 Consolidation/Separate Trials: Judge can separate claims into separate trials for economy, convenience, or to avoid prejudice. By motion or court’s own action. 18 Kedra v. City of Philadelphia, District Ct 1978 (p270): permissive joinder of parties Kedra family members alleged pattern of abuse & brutality, against various members of police force over long period. Defendants alleged misjoinder of defendants.  Common questions of law & fact join the defendants (20a) (systematic pattern is clear, despite 18 month court of events)  FRCP support entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties, and remedies is strongly encouraged. Gross v. Hanover Insurance (p281) Impleader P sued insurance after jewels stolen from store. Hanover seeks to implead Rizzos, whose negligence allowed theft.  Court must balance benefits of settling related matters in one suit against potential prejudice/delay to plaintiff and 3rd party defendants.  issue with 3rd party arises from same event as original claim (enough overlap in evidence to make it efficient) INTERPLEADER Rule 22. Interpleader An individual or corporation who is or may be exposed to double or multiple liability may also initiate joinder of parties who have asserted or could assert such claims (p. 328) Stakeholder interpleads adverse claimants, all of whom allege rights to the stake at issue Usually arises in insurance cases: Example: insurance company may be unsure which of two beneficiaries to pay out a policy and will interplead those alleging rights to proceeds Could be further complicated if stakeholder is also adverse claimant, i.e. if stakeholder alleges that neither adverse claimant has rights to the policy (in example above) because neither paid premiums 19 DISCOVERY Rules 26-37 Informal Discovery! (p. 384) RULE for Discovery 26(a)1 mandatory initial disclosures: must disclose without request info that supports your position (no longer anything related to claim)  Name & contact info of people “likely to have discoverable info the disclosing party may use to support claims/defenses.”  All documents, data, etc in possession of party, that party might use to support claims/defenses  Computations (and docs supporting them) of damages claimed by disclosing party  Insurance agreement if insurance company may be liable for damages. Must be disclosed w/in 2 weeks of 26(f) conference. Must supplement if information covered by 26(a)1 becomes available later. 26(a)2c mandatory disclosure of expert witness testimony 90 days before trial date. 26(a)3 mandatory disclosure of witnesses & documents to be used at trial – 30 days before trial date. 26(e) supplementation request – need to update if you find out new facts 26(b)3 – allows you to access opposing lawyer’s “work product” if you really need it and can’t get it by other means. 26(f) Discovery Planning Conference. Parties must meet as soon as practicable, and at least 21 days before a scheduling conference is held under rule 16(b) to discuss their claims and defenses and the possibilities for settlement and to arrange for the disclosures required by 26(a)(1) and to develop a proposed discovery plan. The attorneys must submit a written report outlining the discovery plan to the court within 14 days of the conference. Depositions: Rules 27 - 32 typically conducted orally. question potential witness under oath about their knowledge and participation in certain events or circumstances concerning the underlying action. advantages to an oral deposition: 1. Gives the attorney the change to question potential witnesses under oath, in a manner similar to trial. Helps in assessing the demeanor of the witness under a variety of questioning styles. 2. Responses to questions will have a degree of spontaneity unavailable under other discovery methods. 3. The attorney has the opportunity to follow up on information revealed in answers and to take the questioning in any new direction that may reveal itself. 4. Anything recorded in a deposition is available for trial (subject to the rules of evidence), and may be used to impeach a witness’s testimony at trial. 5. nonparties may be deposed and subpoenaed to bring in documents, thus otherwise undiscoverable evidence may be obtained through questioning regarding those documents or items. disadvantage = expense. Recording expenses, combined with legal fees mean that an eight hour deposition can easily cost the requesting party approximately $5,000. Corporations: 30(b)6 a corporation has to name a person to be deposed on its behalf. Rule 33 – Interrogatories: 25 per person Rule 34 – Document Productions Rule 35 – Physical / mental examinations Rule 36 – Requests for Admissions Rule 37 – Sanctions re: Discovery 20 Purposes:  Reduces “trial by ambush”  Helps focus on merits  Promotes settlement because parties assess merits of case before trial  Conserves court’s resources by narrowing issues  Preserves individual rights and promotes societal acceptance of legal system  “bulwark against government tyranny”  allows for private, individual law enforcement – needed because govt does not enforce laws much Discovery and its place in an adversarial system: pp 309-321  Brazil’s and Kieve’s critiques of discovery: monster out of control: millions of dollars, countless hours, way to rack up billable hours. Weapon to be used against adversary – bury them with costs in both money and time with broad discovery requests.  Landsman: greater acceptance of process by society & litigants than if we had a judge-driven system – we control process of own lawsuit. adversary system can counteract judge’s bias  Tension between adversarial litigation and sharing information: duty to zealously represent client – but discovery requires us to turn over info that might lead to client losing  Defense of discovery: Judges are more impartial because their only role is that of running the court, if discovery were not allowed, then more administrative oversight would be needed, particularly in cases involving large corporations.  Broad discovery supports the plaintiff. Plaintiffs going against a large corporation have a much better chance of making their case if there is discovery. Most cases use very little discovery. A large amount of discovery is concentrated in a handful of cases. Scope: (R26) anything that is  relevant to claim or defense of any party or may lead to discovery of relevant info  Not privileged matter: Can seek protective order to avoid disclosure of privileged information  not unreasonable cumulative or burdensome, or obtainable elsewhere. Parties can agree to waive rules. Hickman v. Taylor (p. 296) US 1947: atty work product P sought access to information from D’s atty’s interviews with survivor of boat that sunk. The appeals court held that these statements were attorney work-product and therefore privileged: atty’s opinions and views. The plaintiff in this case had access to the witnesses and could have interviewed them themselves. Burden on the plaintiff to show undue hardship to justify production Limits to broad discovery: do your own work! 21 JUDGE & JURY Rule 38 – preserves right to jury trial per 7 Amendment: for cases at common law, as of 1791  Must specify issues you want tried by a jury  Must demand by serving other parties within 10 days of service of last pleading on those issues, and file w/ court  Another party can demand jury trial for any other issues of fact not specified by 1st party, within 10 days (or less time as court may order) Rule 39 Trial by Jury or Court  After this filing, parties can stipulate & agree to trial by court instead  Court can find (by motion or on its own) that some of the issues don’t qualify for jury trial  If you fail to demand jury trial, court can grant it by motion Rule 47 Selection of Jurors  Court determines whether parties’ attys examine prospective jurors or Court does it  Court may permit parties to submit inquiries to jurors as it deems proper  Peremptory challenges allowed by 28 USC 1870 – Batson challenge  Court may excuse juror from deliberation or trial for good cause Rule 48 Number of Jurors  Seated jury must be between 6 and 12 members  Verdict shall be unanimous unless parties stipulate otherwise th Teamsters Local 391 v. Terry (US 1990) (p. 442): Right to Jury test Two-part test the majority applied to determine whether a particular action will resolve legal rights: 1. Compare the statutory action to 18th century actions brought in the courts of England prior to the merger of law and equity. 2. Examine the remedy sought and determine whether it is legal or equitable in nature. (if both legal & equitable remedy sought, and in equipoise, more weight to 1st prong) DFR case where union allowed employer to terminate them – seek pay from union. Court tries to analogize DFR to another cause of action that is either equitable or legal. Thinks its more like attorney-client malpractice than trustee breaching fiduciary trust. But basis of relief is legal: damages from union, not make whole order from employer. Brennan: focus on remedy not the right  more manageable for judges not expert in legal history. Statutory right to Jury Trial  public rights (civil rights, ex) usually no jury  private rights – jury Peremptory Challenges  Lawyers can challenge prospective jurors for cause, or peremptorily (no cause, limited #)  Batson challenge: Use of peremptory challenges to exclude jurors based on race violates 14th amendment rights defendant. 1. Prima facie showing of discrimination 2. Burden shifts to other party to give race-neutral explanation  very liberal 3. Party challenging the strike of the juror to prove to the court that use of the strike was motivated by purposeful discrimination 22 SANCTIONS Rule 11(b) Rule 37 (during Discovery) RULES/FEATURES OF SANCTIONS: 1. Rule 11 applies to pleadings, motions, oral representations re: a document, etc (Discovery Rule 37) 2. Rule 11(b): Lawyer signature required to certify that acc. to “best of knowledge, information & belief, formed after an inquiry under the circumstances” Violations: A. Not filed for improper purpose, needless delay or harassment B. Warranted by existing law/not frivolous (or nonfrivolous modification/reversal of existing law or for establishing new law) C. Have evidentiary support (or will after discovery) D. In a denial paper, the lawyer is certifying that there is evidence to support them and reasonably based on information of belief 3. Motion for Sanctions. Must: A. Be filed separately from other motions B. Describe the specific conduct that allegedly violates Rule 11(b) C. Be served under Rule 5(b)(2) – personal service or lawyer’s office – but must not be filed or presented to court if offensive document is withdrawn or appropriately corrected within 21 days after service  “safe harbor” provision 4. Court can initiate sanction and ask party to show why not warranted sua sponte – Rule 11(c)(3) 5. If court determines sanction warranted, can impose on any attorney, law firm, or party that violated rule or responsible for violation 6. Law firm held jointly responsible for violation committed by its partner, associate, employee 7. Sanction should be limited to deter conduct. 8. Possible penalties: a. Nonmonetary directives b. Penalty paid to court c. Payment to movant for reasonable attorney’s fees and other expenses directly resulting from violation 9. Limitations on Monetary Sanctions. Court may not impose sanction: a. Not against represented party b. On its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of claims made by or against party/lawyer to be sanctioned 10. Party need not file the pleadings in bad faith to be sanctioned 11. Party has to monitor continued viability of the filing, even if initially it filed the pleading properly Reasons for Sanctions 1. Purpose is to deter, not to punish. 2. Not financial remedy usually, to not encourage parties to move for sanctions Critiques of Rule 11 1. Justice Scalia’s letter: against safe harbor provision; if sanction found to be warranted, should be sanctioned, and not given time to withdraw the problematic document/motion/etc. 2. Too harsh on Ps, especially in civil rights cases  eased in 1993 CHAPLIN V. DUPONT ADVANCE FIBER SYSTEMS (p. 288). Sanctions upheld in part – no factual basis for discrimination based on religion and race, but denied for P’s attempt to expand civil rights law to cover national origin based on “Confederate Southern Americans”. Lawyer sanctioned $10K. D instituted a policy in 2000 banning the display of offensive symbols, including the Confederate flag. Ps, white, 23 Christian males, worked in D’s plant located in Richmond, VA. Ps allege discrimination based on their national origin (“Confederated Southern American”), religion, and race because of D’s ban of display of the flag. There were a series of incidents where D’s employees directed Ps to remove Confederated flag from clothing (belt), bumper sticker, t-shirt, etc. Ps also prohibited from forming a “Heritage Preservation Network” for Confederate Southern Americans, while similar networks existed for African-Americans, and other racial/cultural groups. 24 SUMMARY JUDGMENT Rule 56 Antidote to liberal pleading system “No genuine issue of material fact” Rule 56. Summary Judgment: Need trial to resolve disputes about facts, if not dispute, judge can resolve 1. Under Rule 56(a), moving party may file the motion after a. 20 days after commencement of action, or b. Opposing party serves motion for summary judgment 2. D may move for summary judgment at any time, with or without supporting affidavits, on all or part of claim 3. Motion must be served at least ten days before hearing date, and opposing party can serve opposing affidavits before hearing 4. Inferences from underlying facts contained in moving party’s materials must be viewed in the light most favorable to opposing party (Adickes) 5. Judgment should be rendered in favor of moving party if the pleadings, discovery and disclosure materials on file, and any affidavits show: a. No genuine issue as to any material fact, AND b. One party is entitled to judgment as a matter of law 6. In contrast to Adickes, the party seeking summary judgment need not make affirmative evidentiary showing (Celotex) if non-moving party has failed to show sufficient evidence to establish existence of an element essential to that party’s case, and on which that party will bear burden at trial a. “No express or implied requirement in Rule 56 that moving party support its motion with affidavits or other similar materials negating opponent’s claims” (Celotex) b. “The burden of moving party may be discharged by “showing” – that is, pointing out to the district court – that there is an absence of evidence to support nonmoving party’s case (Celotex)  By contrast: Adickes held that burden on moving party to show existence of no genuine issue of material fact, BEFORE burden shifts to nonmoving party to counteract this (Adickes) – if burden not met, summary judgment must be denied 7. Where the record taken as a whole could not lead a rational trier of fact to find for nonmoving party, there is no genuine issue for trial (Matsushita) – where dispute material but not genuine  SJ a. P failed to present evidence at summary judgment stage that “tends to exclude the possibility that the alleged conspirators (“5 company rule”) acted independently” 8. Standard similar to standard for directed verdict: court can apply the burden of proof to party that has burden as if at trial (Liberty Lobby) 9. Court can view facts in light depicted by videotape which captured events underlying excessive force claim (Scott v. Harris) 10. Once moving party meets burden, opposing party may not rely merely on allegations or denials of its own pleadings; rather, its response must – by affidavits or as otherwise provided in Rule 56 – set out specific facts showing genuine issue for trial (Rule 56(e)(2)) – seems contrary to Celotex holding a. If opposing party does not respond in this manner, then summary judgment should, if appropriate, by entered against that party. b. If opposing party shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, court may, under Rule 56(f):  Deny the motion;  Order continuance to enable affidavits to be obtained, depositions to be taken, or other discovery be undertaken, or  Issue any other just order Why move for summary judgment? 25  P has to reveal her evidence  Encourage settlement  Avoid a jury – emotions  Save money Why wouldn’t you move for SJ  End up signaling your case to the other side, reveal your theories  Sanctions Args in support of Summary Judgment 1. With advent of notice pleading, summary judgment should not be regarded as “disfavored procedural shortcut, but rather as integral part of Federal Rules as a whole” (Celotex) 2. Just, speedy, inexpensive resolution of disputes 3. In order to ensure that juries do not act irrationally, judges must be certain that before jury can decide a factual issue on behalf of party with burden of production, there is sufficient evidence to permit reasonable people to make such a finding  deemed a legal question, rather than factual question 4. Where underlying question to be resolved involves application of predominately legal standard to undisputed historical facts (i.e. whether a union breach its duty of fair representation) properly decided by the court in order for consistency, uniformity, and predictability are important for administration of (Schwarzer article) 5. For mixed questions of law and fact (i.e. conspiracy under antitrust laws) – requires combo of assessing intent (sphere of the jury) and whether as a matter of law and policy, should be treated as unlawful conspiracy (sphere of judge) – unclear where this falls, but similar to Scott v. Harris Args against Summary Judgment 1. Rule 56(e), by its terms, places on the nonmoving party the burden of coming forward with rebuttal affidavits or other specified kinds of materials, only in response to a motion for summary judgment “made and supported as provided in this rule” 2. Reasonable people can disagree over the evidence, as in Scott v. Harris, and so even where there are mixed questions of law and fact, best to give to the jury 3. At least with respect to burden-shifting, the movant must discharge of the burden the Rules place upon him: It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that P has no evidence (Celotex, concurring by Justice White) 4. Two components of establishing nonexistence of genuine issue of material fact has two distinct components (Celotex, dissent): a. Initial burden of production which shifts to nonmoving party if satisfied by moving party b. Ultimate burden of persuasion, which always remains with moving party 5. Judges’ weighing of evidence infringes upon province of the jury (Liberty Lobby dissent) 6. Majority’s disregard for expert’s proposed testimony a clear violation of judicial obligation not to weigh evidence and assess credibility when ruling on summary judgment (Matsushita dissent) a. Court’s rejection of expert proposed testimony and supplants it with their own 7. Where facts turn on examination and assessment of human behavior within common experience of jurors, better to have twelve people decide, rather than one 8. For mixed questions of law and fact (i.e. conspiracy under antitrust laws) – requires combo of assessing intent (sphere of the jury) and whether as a matter of law and policy, should be treated as unlawful conspiracy (sphere of judge) – unclear where this falls, but similar to Scott v. Harris 26 Rules/Features of Summary Judgment 1. Judge: not supposed to weigh evidence, but to discern whether there is issue of material issue of fact 2. Valuable, important procedure: make sure that it works 3. When a judge sits on summary judgment, judge is to conceptualize as if at trial and think “would I order a directed judgment”? 4. Same test as directed verdict motion, just occur at different moments: a. Judge looks at all of the evidence in favor of nonmoving party b. Judge only looks at admissible evidence – depositions, interrogatories, affidavits – some not admissible c. No reasonable jury standard = no genuine issue of material fact 5. Unlike 12(b)(6), supported by affidavits / discovery materials. Contexts for Summary Judgment  For exam 1. P’s case has no legal basis for the claim  “Fails to state cognizable claim” 2. No genuine issue of material fact  facts are consistent 3. Summary judgment may look very powerful for P but very compelling affirmative defense (i.e. statute of limitations or res judicata). Judge may exercise its discretion and deny motion: 1. Situation in which moving party in which depositions are strong against P but something fishy about the evidence 2. Issues of credibility  more likely to be subjected to summary judgment (eyewitness type) 3. Rarely granted in favor of moving party that has burden of persuasion at trial 4. When there is a gap in materials presented in the motion (i.e. only 2 of 3 witnesses to an accident) ADICKES V. KRESS (US 1970)(p. 466): Burden on moving party to show absence of dispute, before shifts to nonmoving party to counter. Addickes was white civil rights activist, arrested for vagrancy after leading march on library an