RULE 7(a): Reply. Usually, pleadings end with the Answer. Rule 7(a), however, requires P to file a responsive pleading, which the rule calls a "reply," to a counterclaim. In addition to this mandatory reply, the rule allows the court to order other replies.

RULE 8(a): A complaint must state 1) jurisdiction, 2) short and plain statement of the claim, 3) showing pleader is entitled to relief demanded. The "notice pleading" eliminates the need to distinguish "ultim. facts" from "conclusions of law" and "evid. facts" because any general statement of a claim is valid if D is notified of the nature of P's legal theory. Really designed for only one purpose: provide D with fair notice of P's claim.

Stating a Claim. (Lady attempts to return blue jeans with broken zipper, then cancels check, and is maliciously prosecuted for passing a bad check. After winning the criminal action, P filed malicious prosecution charge.) P met requirements for stating a claim of malicious prosecution in federal court because it gave D fair notice of the claim. The complaint alleged (i) "P won the criminal action," attempted to allege (ii) "criminal action lacked probable cause" by stating that D knew the reason payment was stopped on the check (viz, defective merchandise) and that D knew P did not attempt to perpetrate a fraud on D, and attempted to allege (iii) "D's conduct in bringing the criminal action was malicious" by stating D's president "supported the malicious prosecution." (that is enough) RANNELS v. S.E. NICHOLS, INC

Do not want claims dismissed due to unartful statement of the claim. Specific allegations not required. Only dismiss if P cannot prevail under any interpretation of the facts.

RULE 8(b): ANSWER. The answer may contain any of the 12(b) motions, general of specific denials (any allegation not denied is deemed admitted [RULE 8(d)], affirmative defenses, counterclaims, cross-claims, or third party claims.

a. General denials. A denial of the truth of a C's allegations has the effect of requiring P to prove the truth of the denied allegations at trial. A general denial is a denial of "each and every allegation" in the C. RULE 8(b) requires the general denials be made in "good faith." Must specify portion that is true and deny only the remainder. If you cannot determine if an allegation in a complaint is true, then state this and it becomes a denial.

b. The "good faith requirement" of RULE 8(b): A vague general denial of liability, where a specific denial of ownership was required, constitutes bad faith pleading and gives rise to an admission of D's ownership where P, in reliance on D's misleading pleading, is precluded by the statute of limitations from suing the right owner. D, therefore, was equitably estopped from denying ownership of FORK LIFTS after expiration of the statute of limitations. D failed to inform P of the mistake in ownership within a reasonable time after its discovery. D abused rules through improper pleading. Zielinski v. Philadelphia

c. Parties should admit any allegation that they know they cannot controvert. If uncertain, they should state so and it has the effect of denial.

d. Specific denials and the negative pregnant problem. Careless pleading of a specific denial can amount to an admission of an allegation D wishes to deny. An ambiguous pleading (one that permits two readings) is called a "negative pregnant." One of the readings could be an admission of a fact that D was attempting to deny. "It is averred that no agents, servants, or employees of the D acted carelessly and negligently in treating the said minor" permits two readings: (1) although all the people performing the operation were D's employees, none of them were negligent; or (2) that the people performing the operation were not D's employees. Under the common law, the immaterial part of the negative pregnant is denied. Thus the court held that negligence (the first reading) was denied and agency (the second reading) was admitted.

RULE 8(c) and Form 9 provide some answers to questions concerning the division of the burden of pleading. Outside of areas covered by Rule 8(c) and Form 9, the general rule is that the party with the burden of proving a particular element at trial also has the burden of proof and, hence, the burden of pleading on the basis of a number of factors. One factor is public policy (e.g., if P is favored in a particular kind of litigation, D may be given the burden of proving the more difficult elements of the claim). Determines who prevails on equipoise. Another factor is fairness (e.g., the burden of proof concerning an element may be placed on the party who has control of the evidence relating to that element).

Affirmative Defenses: burden of pleading, evidence, and persuasion on the D. Example: statute of limitations. Affirmative defenses. An affirmative defense is the modern counterpart to the common law confession and avoidance. It may be defined as a defense in which D, rather than denying the complaint's allegations, as in the case of a general or specific denial, confesses the truth of the complaint's allegations but avers that P's theory of liability, even though sustained by the evidence, does not apply to it because of additional facts that place D is a position to avoid any legal responsibility for his action. An affirmative defense must be presented in the answer. Otherwise, it is waived and cannot be introduced at trial. RULE 8(c) lists only some of the affirmative defenses and the clause "and any other matter constituting an avoidance or affirmative defense."

Case example: A defense not expressly listed in RULE 8(c) as an affirmative defense. Right of entry by easement is an affirmative defense to an action for trespass. Although Rule 8(c) does not include an easement as an affirmative defense, it significantly does include a license, which is another form of authority to go upon land. Clearly, the defense of easement was used in this case as an attempt to avoid liability without denying any allegations in the complaint. THAT IS EXACTLY WHAT AN AFFIRMATIVE DEFENSE IS. Layman v. Southwestern Bell

Notice problem - must write into Answer. Courts look unfavorably on vague or pleadings that omit material facts. If D fails to state an affirmative defense, court would not allow evidence to be admitted.

RULE 8(e)(2) - Alternative Theories of Recovery. Permits party to advance alternative and conflicting theories in complaint and answer. Pre-trial conference may eliminate one of the theories. P may allege inconsistent legal theories as well as inconsistent versions of an incident so long as the allegations are made in good faith and are based on genuine doubt as to which version is true. Rationale: rather than having separate trials on each alternative count, controversies should be resolved in a single action.

RULE 9(b) - FRAUD, MISTAKE, Duress, Condition of the mind

Federal Rule 9(b) requires Ps to state "with particularity" any "circumstances constituting fraud." Although scienter may be pleaded generally, the circumstances of the fraud must be pleaded in detail. This means the who, what, when, where, and how: the first paragraph of any newspaper story. P's complaint fails to do so. There is no showing as to how D's (accounting firm) certification of Continental Bank's financial statements constitutes fraud. DiLeo v. Ernst & Young.

Comment: In federal court, P must plead a claim of fraud similar to the manner in which any claim is presented in state court. This means that, in a sense, it can be said that the "ultimate facts" rule applies to a claim of fraud made in federal court.

Plenary Review - full and complete rehearing. On questions of law, no reason for deference to trial court. Appellate review is de novo. On review of facts, appellate review is very deferential, will only disturb result if clearly erroneous.

For a churning account brokerage case, allege trades without knowledge or approval of customer, improper purpose of account. Rule 10b-5 of the Securities Exchange Act makes it unlawful "to employ any device, scheme, or artifice to defraud, to make an untrue statement of a material fact or to omit a statement of a material fact ....to engage in any act, practice (that amounts to a fraud.)

RULE 9(g) - In most cases, the law presumes damages arise from the injuries sustained; these damages need not be specially alleged in the complaint (called general damages). Rule 9(g) requires P state special damages. Special damages are usually damages that are unusual or anomalous (e.g., unforeseeable damages in tort cases and unusual damages not contemplated by the parties in a breach of contract action) or damages P claims in connection with disfavored claims (e.g., damages in defamation and some malicious prosecution actions).

RULE 11 - SANCTIONS

a) Signing a pleading represents that inquiry into facts and law conducted, and reasonably lead to cause of action.

b) Now if pleading must be filed urgently to avoid statute of limitations, use Rule 11(b)(3) reservation to protect counsel and advise court that the claim is not fully investigated. Allege facts "are likely to have evidentiary support after a reasonable opportunity for further investigation and discovery." Requires "reasonableness under the circumstances"

c) The standard of conduct under Rule 11 that applies to a represented party is objective reasonableness rather than subjective GOOD FAITH. LeClerq says does not apply to petitioners pro se.

d) Aimed at limiting cases that lack merit. Example: Highest court in jurisdiction has recently ruled on a matter and you file a complaint contradictory to that position. Might not violate if 5-4 decision.

e) No longer impose monetary sanctions on the parties if represented for frivolous contentions of law. Can also impose non-monetary sanctions (like go to seminar).

f) can impose sanction on attorney or law firm, individually or jointly. 11(c)

g) Sanctions are discretionary by court or by motion by other side, but attorney fees can only be moved by other side. Court cannot issue sanctions after matter no longer before it.

h) SAFE HARBOR RULE. RULE 11(c)(1). Must give other side 21 days notice to withdraw or amend pleading. Sanctions motion must be sent to counsel first, then 21 days later to the court.

i) Once a pleading no longer has merit, a continued oral advocacy is subject to sanctions.

j) Rule 11 is not, as P argues, a true fee-shifting provision because, most importantly, its sanctions are not tied to the outcome of a lawsuit. The relevant inquiry is whether a specific filing was, if not successful, at least well founded. Also, Rule 11 calls for "an appropriate sanction." Attorney fees are not mandated. BUSINESS GUIDES

ASIDE: award of attorney fees: 1) by statute, e.g., Civil Rights Act; 2) frivolous pleading; 3) common pool of funds.

The certification standard for a party is the same as that for an attorney. One who fails to act reasonably under the circumstances in investigating the merits of the case is subject to sanctions even though he may have acted with the best of intentions. Business GUIDES

Quite often it is the client, not the attorney, who is better positioned to investigate the facts supporting a paper or pleading. This case is a perfect example. P, a sophisticated corporate entity, brought the matter to its attorneys to obtain an immediate injunction against D. BUSINESS GUIDES

Dissent: Federalism - in effect a federal law of malicious prosecution is created, even though the states have malicious prosecution law. Separation of powers -only Congress has the power of fee shifting.

RULE 11. Verification by party generally not required. Rule 11 requires an attorney to make "reasonable inquiry" into the accuracy of the allegations in the complaint. Some federal actions expressly call for party verification (e.g., shareholder derivative suits (FRCP 23.1), injunctions (FRCP 65), and appointment of a receiver (FRCP 66)).

Effect of no verification. If pleadings requiring verification are not verified, they may be stricken. If pleadings are verified with the intent of defeating the purpose of verification, they may be stricken and the attorney involved may be disciplined.

RULE 12(b)(6) tests only legal sufficiency of complaint. Summary Judgment (Rule 56) -tests facts and decision on the merits. Rule 12(b)(6) - assumes "pleading" in light most favorable to the opposing party; assumes facts are true in complaint. If 12(b)(6) motion + consideration of evidence = Rule 56 Summary Judgment = on the merits.

Preanswer Motion. A motion is "an application to the court for an order." [FRCP 7(b)(1)]. Rule 12(b) sets forth seven types of motions that D may make. P must receive a notice of motion [Form 19] so that he will have an opportunity to be heard on the motion.

a. First appearance rule. If D makes a preanswer motion on one or more of the seven Rule 12(b) defenses, most such defenses available to D must be consolidated in the preanswer motion, or else they are waived. This is the "first appearance rule." [FRCP 12(g), h]. These motion TOLL time required for ANSWER. D waives objection if he does not raise it in his first motion. These include lack of personal jurisdiction, venue, suff. process, suff. service of process.

b. Exceptions. the Rule 12(b)(1) motion (lack of SUBJECT MATTER JURIS.) can be raised at any time, even on appeal for the first time. Also, the Rule 12(b)(6) (failure to STATE A CLAIM) and 12(b)(7) (failure to JOIN A PARTY under Rule 19) motions may be included in a subsequent answer or a postanswer motion, or even presented at trial.

RULE 12(c)(3) - allows for mistake in pleadings. If mistake is reasonable, the court will usually allow for amendments to be made.

RULE 12(e) - Motion for a More Definite Statement. D may seek dismissal of the action under Rule 12(e) when the complaint is so vague as to reasonably prevent D from framing an appropriate response. As a general rule, motions for a more definite statement are highly disfavored, and they only apply to pleadings that require a response.

RULE 12(f) - Motion to Strike. within 20 days after service of the pleading

RULE 13 - COMPLAINTS, CROSS COMPLAINTS, 3RD PARTY COMPLAINTS

1. A counterclaim that is delineated as such requires P to reply.

2. Otherwise, allegations in an Answer are deemed denied.

4. Compulsory counterclaim - on same transaction or occurrence as Complaint are compulsory. Based on ancillary jurisdiction. Must be asserted. Claim preclusion/res judicata otherwise.

5. Permissive counterclaim - has nothing to do with subject matter of Complaint. Must have independent basis for federal jurisdiction.

6. Paragraph 1 - states subject matter juris. For example, 28 USC 1331 and relief is sought pursuant to 48 USC 1983. If diversity action, paragraph 2 lists D's residence.

7. If federal question, do not need to specify amount of damages sought. For diversity action, must ask for amount > $50,000 in damages.

8. Cross complaint - Two Ps sue each other or two Ds, must be on the same side of the "v."; also rests on ancillary jurisdiction.

9. 28 USC 2201 - basis for declaratory judgments.

RULES 13(A) AND (B) - JOINDER OF CLAIMS BY D - govern the assertion of counterclaims by D in federal court. The same considerations of res judicata and jurisdiction that related to permissive joinder of claims under RULE 18 also relate to the assertion of counterclaims under RULES 13(a) and (b).

Compulsory counterclaims, but not permissive counterclaims, are barred by res judicata if not asserted in the first lawsuit. If D fails to assert a permissive counterclaim in his Answer, he may file the counterclaim in a subsequent lawsuit against P.

Compulsory counterclaims supplemental jurisdiction. Section 1367 places a permissive counterclaim supple. juris., if the counterclaim is so related to the jurisdiction-conferring claim that both claims "form part of the same case or controversy under Article III."

2. Logical Relationship test. In an action brought under the Truth-in-Lending Act, D's counterclaim that P defaulted on the underlying debt is a compulsory counterclaim within the meaning of Rule 13(a). A "logical relationship" exists when the counterclaim arises from the same aggregate of operative facts, in that the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the D. The test is satisfied in this case because a single aggregate of operative facts, the loan transaction, gave rise to both P's and D's claims. Plant v. Blazer Financial.

Reasons for holding compulsory: 1) same set of operative facts, 2) judicial economy - one court involved instead of two.

Reasons court might have held permissive: 1) infringe on power of states to adjudicate state law claims, 2) undermines purpose of federal statute if party is likely to be slapped with a counterclaim that exceeds his claim, 3) maybe debt claims belong to the jury, but federal statute decided by judge. 4) DIFF. EVIDENCE - one shows nondisclosure, the other is a whole different line of proof on debt paid. Effect: a permissive counterclaim would have to have a separate basis for juris, which in this case is lacking (state claim with nondiverse parties).

Cross-claims (RULE 13(g)) AMCO CONSTR. CO No part remains from original construction contract complaint. Only 3PD1 v. 3PD2 - which lacks diversity. Court dismisses action reasoning the main action arose out of a surety bond between a subcontractor of the general contractor and the surety of the general contractor. The cross-claim arose out of an entirely different transaction - namely, a contract between the general contractor and its client, both of whom were brought into the original action as 3PDs of the general contractor's surety. The proposed cross could not have been determined without a substantially distinct effort at fact finding - LECLERQ disagrees. Thinks this is bad decision / same facts.

1367(b) would not require a separate basis, because not "Plaintiff's claim."

Given the fact that the cross-P and the cross-D were impleaded into the main action by the original D as indemnifiers, it seems likely that the original claim and the cross-claim arose from the basic general transaction and raises the same basic question - who is responsible for the problems that arose at the construction site. The fact that the main claim was not dismissed on jurisdictional grounds leaves the court with residual authority to entertain the cross-claim based on ancillary jurisdiction.

The cross-claim was not compulsory, and lacked jurisdiction to be permissive.

RULE 14 - THIRD PARTY COMPLAINT - requires Answer. Based on ancillary jurisdiction of court; therefore, does not require independent basis for federal jurisdiction.

Rule 14(a) permits a D (called the "third party plaintiff") to "implead" (i.e., join) a nonparty to the action (called the "third party D") who is or may be liable to him for all or part of the P's claim against him. Requires Derivative liability. A third party complaint is only appropriate where the 3rd party D would be secondarily or derivatively liable to the original D in the event of a judgment against him. Classic situation is indemnity or insurance.

1. Example: Condo association sued real estate management firm for bad design of condominium balconies. D tried to implead building contractor who repaired balconies. Ps were happy with contractors work. No allegation of negligence in the original complaint. The acts involved in the main claim are separate and distinct from the acts alleged in the 3rd party complaint. We do not have any type of indemnity claim here. Contractor was not even hired by D. In this case, D is simply trying to select P's defendants: anyone but D. Result: D may bring separate action against contractor or amend their 3rd party complaint; this 3P complaint one is dismissed. WATERGATE CONDO ASSOCIATION v. WISS

2. LANDMARK supplemental jurisdiction in a diversity case. OWEN EQUIPMENT v. KROGER Kroger sued Omaha Power, which impleaded Owen. Owen and Kroger were citizens of Iowa. Original P v. D case dismissed, leaving court with P v. 3PD, and lack of COMPLETE DIVERSITY for § 1332 juris. claim. It would be unfair to use ancillary jurisdiction in a case such as this because a P could defeat the statutory requirement of complete diversity by the simple expedient of suing only those Ds who were of diverse citizenship and waiting for them to implead nondiverse Ds. Dissent would have allowed this claim, because they found no evidence of collusion between these parties. Section 1359 prevents collusion that adds tot he court's jurisdiction. The court's parsimonious, narrow construction of the jurisdiction statute § 1332 is reflected in § 1367(b), which maintains COMPLETE DIVERSITY.

3. Contrast KROGER with result in REVEERE. P v. D, D v. 3PD, and 3PD v. P. The difference between this case and Kroger is that here the 3rd party D goes against the P, but not vice versa. P becomes a 3rd party def. in this suit involuntarily. Therefore, there is no reason to worry about collusion. (P amended complaint to go after 3PD in Kroger). Court has jurisdiction in Reveere but not in Kroger. The rules don't give jurisdic. Must also ask if there is jurisdiction. NOTE: § 1367(b) does not speak to issue of 3PD v. P. DEFENSIVELY, P v. 3PD would be permitted.

RULE 15: AMENDMENTS. Rule 15(a) allows a party to amend his pleadings one time as a matter or course (i.e., without permission from the court) (i) before a responsive pleading (e.g., an answer) is served, or (ii) within 20 days after service of a pleading to which no responsive pleading is permitted (e.g., service of an answer containing a denial of affirmative defense), provided that the lawsuit has not been set for trial. At all other times, a party must obtain permission from the court before it can amend its pleadings. Such permission "shall be freely given when justice so requires," which means that as a practical matter it is incumbent on the party opposing amendment to show good cause why the amendment should not be allowed. This seems consistent with the Federal Rules' liberal attitude toward pleading. THE CLOSER TO TRIAL, THE LESS LIKELY COURT WILL BE WILLING TO GRANT LEAVE TO AMEND.

a. No doctrine of variance. The doctrine that an action must be dismissed when new evidence is introduced that is outside the pleadings has virtually been abolished with Rule 15(b). This rule has two prongs: (1) court grants leave to amend if opposing party does not object to a party's attempt to amend, and (2) if objection to attempt to amend, must prove to court that amending would prejudice him in maintaining his action or defense upon the merits, or leave will be granted. If the objecting party shows prejudice, the "court may grant a continuance to enable the objecting party to meet such evidence." Again, in keeping with the spirit of liberality, leave to amend the pleadings is normally granted.

b. Before Trial. D moved for leave to amend its answer, to withdraw its admission of ownership of the water slide, and to have a separate trial on the manufacture issue. Granting of both motions was affirmed. The record indicates no evidence of bad faith, prejudice, or undue delay. D's admission was in reliance upon independent investigations by three different insurance companies. (probably justify attorney reliance for no Rule 11 sanctions) No prejudice to P resulted from the expiration of the (personal injury) statute of limitations, because P can still maintain actions in contract or fraud. (these statutes of limitations have not expired). Allowance of the amendment does not preclude P from proceeding against other parties. BEECK v. AQUASLIDE

Rule 42(b) gives a court authority to order separate trials in the interest of judicial economy or convenience, or to avoid prejudice. Advantage of separate trial - removes sympathy/prejudice for injured P from D's claim of nonmanufacture; Efficiency - may eliminate need for trial on injuries/negligence.

ARGUMENTS for and against Court tolling the statute of limitations: 1) P detrimentally relied on admission of ownership. 2) D has property interest or liberty interest in state's statute of limitations - equal protection question, right of freedom from suit is liberty interest. 3) doctrine of equitable estoppel might allow Ps to sue other culpable Ds even though 2-year statute of limitations had run - "counterfeit" slide is some kind of fraud in K.

SEQUEL: Beecks win state lawsuit for misrepresentation in federal pleadings, given that Aquaslide had received other suits where counterfeiters had manufactured the slides.

RULE 12(c)(3) - allows for mistake in pleadings. If mistake is reasonable, the court will usually allow for amendments to be made.

c. Statute of limitations and relation back. The Federal Rules permit P or D to amend their pleadings to add a new legal theory, a new party, or a new defense, whether or not such new matter arises out of the same factual pattern that forms the basis for the original complaint. This raises a question concerning the status of new matter in relation to any applicable statute of limitations. For example, should P's new claim be barred when the applicable statute of limitations has expired at the time of its addition by amendment? The general rule is that new matter is saved from the statute of limitations if it relates back to the time of the original complaint's filing. If it does not relate back, it is barred. RULE 15(c) indicates when new matter relates back. The rule has two prongs. The first deals with amendments that assert new legal theories. Here, the rule provides that the amendment relates back to the original date of filing if it "arose out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." [RULE 15(c)(2)], or when "relation back is permitted by the law that provides the statute of limitations applicable to the action" [RULE 15(c)(1)]. The second prong deals with amendments adding new parties; here, the rule is more complex.

1) Adding new legal theories. BARNES V. CALLAGHAN Barnes was fired from her job, sued former employer, alleged separate counts of breach of contract and employment discrimination. P sought permission to amend complaint to add a defamation claim. Even though P's slander claims were filed after the one-year statute of limit., the trial court ruled it was not barred because it related back to the original complaint. The gravamen of the original complaint was clearly the injury to P's reputation and employment opportunity occasioned by the alleged malicious conduct of the D. A reasonable D should have been put on notice of possible defamation action with words "reputation" in the original complaint.

U.S. Court of Appeals reversed judgment by maintaining that to the extent the original complaint related to injury to P's reputation, it was simply a byproduct of the contract claim, which P later dropped. The trial court provides a more faithful reading of the FRCP and Rule 15(c).

The Court of Appeals is wrong when it suggests that an amendment relates back under Rule 15(c) only if it and the original complaint are part of the same cause of action. Rule 15(c) only requires that the amendment and original complaint relate to the same "conduct, transaction, or occurrence." It seems reasonable to conclude that this requirement is satisfied by the fact that P's sex discrimination and slander claims arose out of D's dissatisfaction with P's work and P's subsequent discharge. ALSO, the court seems to have misread RULE 15(c)(3) by suggesting that this provision required D to receive notice of the new claim. The Rule at the time stated it applied only to changes in parties, not to amended legal theories. FINALLY, the court's reliance on Illinois law seems irrelevant at best and wrong at worst because, under ERIE, Rule 15(c) rather than state law governs this procedural issue.

2) Adding new parties. An amendment to change or add the name of a party against whom a claim is asserted is permitted (i.e., "relates back") when the amendment arises out of the same conduct, transaction, or occurrence giving rise to the original claim, and the party brought in by the amendment has either (i) received fair notice of the action and (ii) knew or should have known that, but for the mistake in naming the proper party in the original complaint, the action would have been brought against that party. [RULE 15(c)(2), (3)]. The new party must have received this notice within the period allowed for service of process by RULE 4(j); i.e., (in general) 120 days plus extensions granted by the court. This provision expressly overrules the much-criticized case of Schiavone v. Fortune (US 1986), which held that the changed or new party must technically receive notice of the action within the limitations period. (Time, Inc. received complaint captioned with Fortune, their subsidiary, as D). As in the case of amendments that assert new legal theories, amendments that change or add new parties can relate back to the original filing date in another way -- namely, when relation back is permitted under any applicable limitations law. [RULE 15(c)(1)].

RULE 15(d) - Supplemental Pleadings

Court may grant permission to file supplemental pleadings. In the interest of liberality, these requests are usually granted. A supplemental pleading is not supposed to alter or modify the original pleading; it merely adds to it. If a supplemental pleading would modify an original pleading, the federal courts have discretion to allow it.

RULE 15 vs. RULE 16: Amending pleadings vs. Pre-trial Hearing Order

Normally leave to amend is freely given as justice requires, but after pre-trial order, it becomes very difficult to get in new facts, issues, or legal theories.

RULE 16(a) - court can set as many pretrial conferences as it pleases. Set deadlines on discovery, set of final pretrial conference, estimate trial length, accelerate proceedings, more preparation - fill out all the forms, facilitate settlement. Parties obligated to appear, but not obligated to settle. Can schedule conference either by mail, telephone, or in person.

Rule 16(b) - scheduling order - joinder, file motions, complete discovery.

Rule 16(c) - pretrial considerations: list of exhibits, opposing party must record objection, timing summary judgment, list of witnesses, bifurcated or separate trials.

Lockhard v. Patel

Advisory opinion (?) rendered after case settled - inconsistent with Art. III "case or controversy" requirement. RULE 16(c) gives the trial judge authority to order attendance of all parties "necessary" to hold a "productive" settlement conference, and to impose sanctions for disregard of the court's order. (Who would appeal such a case? Why couldn't insurance company just be available by phone?) Judge can give order requiring both parties to send representatives other than attorneys with authority to settle. D ignored this order and had default judgment entered against it.

Rule 16(e) - pretrial order supersedes the pleadings, e.g., narrows the legal theories and issues, only those will be litigated at trial. "shall control the subsequent course of action." and modified "only to prevent manifest injustice."

McKey v. Fairbairn

Attorney failed to raise negligence per se theory of recovery for violation of city housing ordinance (leaking roof). Trial judge would not allow him to raise theory at trial, after the pretrial conference order had been entered. Example of pretrial order rule applied with a vengence.

RULE 17. Real Party in Interest. RULE 17(a) adopts the position that a lawsuit may be prosecuted only by the real party in interest, who has possesses the right sought to be enforced, and not necessarily the person who will ultimately benefit from the recovery. The RULE eliminated the old common law requirement that actions be brought only in the names of person having legal title to the right of action, and thus precluded suit by persons who only had equitable or beneficial interests. RULE 17(a) expressly allows an "executor, administrator, guardian, bailee, trustee" and other representatives to sue in their own names. A violation of the "real party of interest rule" is subject to a Rule 12(b)(6) motion to dismiss for failure to state a claim.

Capacity to Sue of Be Sued. RULE 17(b). One must have the legal ability or competence to sue or be sued. An objection to a party's capacity must be raised in the answer. (RULE 9(a)).

Individuals - determined by law of her domicile; Representatives, Partnerships, unincorporated associations - determined by law of the state in which the district court sits; Corporations -

determined by the law of its state of incorporation.

RULE 18: JOINDER OF CLAIMS BY P

RULE 18(a) provides for PERMISSIVE JOINDER of claims; provides no limit to claims against a single defendant. Although Rule 18 suggests that P is not compelled to join every claim she has against D, res judicata in effect acts as a compulsory joinder device, requiring P to assert all related claims against D in a single proceeding.

2. A federal court must have subject matter jurisdiction to hear the additional claims. Consequently, P does not have as much freedom as RULE 18 suggests to join claims.

Supplemental jurisdiction. Allows P to join certain claims lacking an independent basis for federal subject matter jurisdiction. Thus, P can join a state claim to his federal claim provided that both claims arise out of a common nucleus of operative facts.

RULE 19

NECESSARY and INDISPENSABLE Parties: Compulsory Joinder - RULE 19

Provides that any nonparty who is "necessary" and "indispensable" to a fair and complete resolution of a lawsuit must be joined as a party. (As seen from the perspective of parties to current action). A "necessary party" is defined in Rule 19(a) as an nonparty with an interest in the lawsuit and (i) whose presence is needed to provide complete relief to the parties; (ii) to proceed without the nonparty would substantially prejudice either his ability to protect his interests in a future proceeding or expose a party to the risk of double liability or inconsistent obligations. (LeClerq: necessary - like to have, indispensable - cannot proceed without)

Must have complete diversity.

Notwithstanding this flexible definition of "necessary parties," the law has deemed some parties to be "necessary" (e.g., joint owners of property).

Dismissal if party is indispensable. If a "necessary party" cannot be joined (e.g., he is not within the court's personal jurisdiction) or if joinder would destroy the court's diversity jurisdiction (e.g., where both P and the "necessary party" are citizens of the same state), the action must be dismissed. Rule 19(b) lists several factors relevant to this determination:

(i) The extent to which a judgment rendered in the nonparty's absence would prejudice the interests of the parties and the nonparty.

(ii) The extent to which the court is able to order action that could lessen or avoid such prejudice.

(iii) Whether a judgment rendered in the nonparty's absence would be adequate; and

(iv) Whether an adequate remedy is available to P if the action is dismissed for nonjoinder.

Each of the above factors addresses whether it is fair to all concerned to dismiss the action. Rule 19 does not apply to class actions.

Case of the competing jewelry store lessees. The nonparty, Lord's, will not be prejudiced by a judgment rendered in its absence, because it will not be bound by such a judgment. Each person has a right to his day in court. Any prejudice D suffers from a judgment in Lord's absence will result from D's voluntary execution of two lease agreements that impose inconsistent obligations on the number of jewelry stores allowed in the mall. The district court took action to lessen or avoid any prejudice to Lord's by affording Lord's an opportunity to intervene, which Lord's declined to do. Lord's is not an indispensable party. No need to subordinate P's choice of forum.

RULE 20(a): Joinder permitted if two requirements are met: 1) Each P must assert right to relief jointly, severally, or in the alternative relating to or arising out of the same transaction or occurrence. 2) Question of law or fact in common in some, not all, issues or facts among all the Ps. Similar two requirements for joining a D.

There must be complete diversity.

20(b) and 42(b) - court may order separate trials. Multifariousness -actions too dissimilar to proceed. Give the district court to make orders to prevent either delay or prejudice.

MOSLEY v. GENERAL MOTORS Claims for sex and race discrimination. Joinder of additional 10 Ps is permitted under Rule 20(a). Company-wide policy of discrimination. Consolidate trials. Promote trial convenience and judicial economy by avoiding multiple lawsuits. This case is based on an interlocutory appeal, 28 USC 1292(b).

RULE 21 - MISJOINDER - not grounds for dismissal. Rather, Ps' claims can be severed for trial. Is severance under Rule 21 the same as separate trials under Rule 20(b) and 42(b)? NO. Separate trials proceed as one until trial with same complaint and discovery, but only one judgement. Severance causes the cases to become 10 separate cases with 10 separate judgments.

RULE 22: INTERPLEADER

Interpleader is a procedural device that allows a party against whom two or more mutually exclusive claims relating to the same property or fund have been asserted, to join the claimants in the same proceeding and require them to litigate among themselves their rights, if any, to the property or fund. For example, decedent's estranged wife claims to be the rightful owner of the proceeds of an insurance policy written on decedent's life. Decedent's daughter claims that decedent was not married at the time of his death and that, as the secondary beneficiary of the insurance policy, she is the rightful owner of the proceeds. Interpleader allows the insurance company, which claims no interest in the proceeds, to join the wife and daughter in a single proceeding to determine the rightful owner of the proceeds. Designed to prevent the party from being forced to pay the same claim twice.

1. Federal Statutory Interpleader. The federal interpleader statute, which is found at 28 USC §§ 1335, 1397-venue in residence of one or more of the claimants, and 2361-nationwide service of process and personal jurisdiction, permits nationwide service of process, requires "minimal diversity" (i.e., diversity of citizenship between two or more claimants), requires adverse claims of at least $500, and requires P to deposit the fund into court or give bond therefor (can be surety). § 1335(b) does away with the four common law requirements of interpleader.

Statutory interpleader requires that claimants must be of diverse citizenship: THIS WILL WORK: A(TN) v. B(NC) and C(TN). This will NOT work: A(NC) v. B(TN) and C(TN).

2. Federal Rule 22 interpleader. The (personal) jurisdictional - service under Rule 4, venue § 1391, and procedural requirements of an ordinary federal civil action apply to Rule 22 interpleader: there must be complete diversity between the P (or "stakeholder") and all adverse claimants, or there must be a federal question involved; the jurisdictional amount must be $50,000; and process may be served under Rule 4.

Rule 22 interpleader without federal question requires complete diversity. THIS WILL NOT WORK: A(TN) v. B(NC) and C(TN). This will work: A(NC) v. B(TN) and C(TN).

3. Limitations. A greyhound bus collided with a pickup truck in California. The insurer of the truck brought a statutory interpleader action in Oregon federal court. The purpose of the interpleader was to force all those injured to file their claims in a single proceeding. (1) an insurance company does not have to wait until the persons asserting claims against the insured have reduced their claims to judgment before seeking to invoke the benefits of statutory impleader. STATE FARM v. TASHIRE

(2) Statutory interpleader is not a "bill of peace" capable of sweeping dozens of lawsuits out of the various state and federal courts in which they were brought and into a single interpleader proceeding. The interpleader statute did not authorize the injunction entered in the present case. The court may restrain claimants from seeking to enforce against the insurance company any judgment obtained against its insured, except in the interpleader proceeding itself. To the extent that the district court sought to control the claimant's lawsuits against the insured and the other alleged tortfeasors, the district court would have the tail wag the dog and, as a result, it exceeded its powers. STATE FARM v. TASHIRE

Subject matter jurisdiction in this interpleader action can be based on either the general diversity statute, because P's citizenship is diverse from that of all Ds, or "minimal diversity" under § 1335. Since some Ds would not be amenable to process in Oregon, P properly used § 2361, which provides for nationwide service of process. Since some Ds reside in Oregon, venue is proper in that state.

State Farm acts as an interested stakeholder, because it has posted its insurance policy payment with the court. It hopes it has no liability and wants to get its money back. A disinterested stakeholder would post money knowing that it had to pay someone, but it doesn't know who and is asking the court to decide. They have no interest in the money, because they have to pay someone.

Supreme Court said trial court's injunction was too broad, because it defeated P's right to choose a forum. To compromise, P could get the judgment, but he could only enforce it through the Oregon forum.

RULE 23: CLASS ACTIONS

A class action is a procedural device in which one or more persons (called the class representatives) may sue or be sued on behalf of numerous other persons similarly situated. The prerequisites to a class action set forth in Rule 23(a) are: (1) numerosity - the proposed class is so numerous that joinder would be impracticable. (2) Commonality - questions of law and fact common to all. (3) typicality - representative's claims are typical of the claims of other proposed class members. (4) adequacy of representation - the named Ps must fairly and adequately represent the interests of the proposed class members.

Assuming the claim satisfies all of the Rule 23(a) prerequisites, Ps must further meet the requirements of at least one of the THREE subdivisions of RULE 23(b).

Rule 23(b)(1) - no opting out 23(c)(3).

1. Separate actions by class members would create a risk of inconsistent results/ judgements 23(b)(1)(a).

2. Impairment of interests (like limited pot - see Dalkon Shield [did not establish limited fund]) 23(b)(1)(b).

3. Mass torts usually allowed if limited fund.

4. Notice to class members is discretionary with the court.

Rule 23(b)(2) - no opting out 23(c)(3).

1. Generally for civil rights cases.

2. Injunctive or declaratory relief is appropriate for the class as a whole (no money damages period).

3. Notice to class members is discretionary with the court.

Rule 23(b)(3) class action entails the cost of mandatory notice to the class members of the nature of the suit and of their option to exclude themselves from the class, a cost that is not incurred in a (b)(1) or (b)(2) class action. For a class action under (b)(3), (1) the court must find that questions of law and fact common to the class as a whole predominate over questions affecting only subgroups or individuals within the class. Subsection (b)(3) only requires that the common questions outweigh the individual questions; they need not be dispositive of the entire litigation.

2. Superiority: the class action is the best forum to decide the controversy, e.g., better than the panel on multidistrict litigation.

3. Mass tort action usually not allowed, because no one issue predominates.

4. Either federal question (like Sherman Anti-Trust Act in Eisen) or each individual class member must meet the $50,000 threshold for diversity jurisdiction.

5. Any settlement proposals must be approved by the court to protect unnamed class members.

Consideration in Treating Case as a Class Action

The court should determine at the outset whether the action may be maintained as a class action, but may determine at any time thereafter that the action is not an appropriate one for class action treatment. The court will consider these factors: (i) interest of individual control, (ii) the extent and nature of litigation elsewhere on the same subject, (iii) the desirability of having the whole package in this court, (iv) the difficulties in managing the class action.

Effect of Judgment

All members of a class will be bound by the judgment rendered in a class action except those in a "common question" class action [23(b)(3)] who notify the court they wish to "opt out." Note: if the substantive claim of the individual representing the class is mooted, this does not render the class action moot.

1. The Constitutional Due Process Requirements

Due process prevents a court from holding Ps in a prior action who sought to enforce a racially restrictive covenant and D in the present action, who seeks to resist the covenant's enforcement, are members of the same class such that D in the present action is bound by the judgment rendered in the prior action. It cannot be said that Ps in the prior action

adequately represented the interest of D in the present action; each belongs to a different class because they have opposing interests. Finally, although Ps in the prior action viewed themselves as representing a class, they did not designate a defendant class nor did the judgment in that case purport to bind a class. HANSBERRY v. LEE

2. Commonality and Typicality -- IN RE N.D. OF CAL. DALKON SHIELD PRODUCTS LIAB. LIT Rule 23 precludes certification of the nationwide punitive damages and the California liability classes. As to the nationwide punitive damages class: (1) typicality is lacking, because no single P or group of Ps could be typical of the numerous persons who might have claims. (2) adequate representation is lacking, because none of Ps' attorneys is willing to serve as class counsel. (3) Rule 23(b)(1)(B) requirements are lacking because the district court did not give out-of-state Ps an opportunity to participate in prior briefings or hearings, there is no showing that earlier claims will have a detrimental effect upon later claims, and the district court did not establish that D's assets were too limited to permit nonclass litigation.

As to the Cal. liability class: mass accidents are generally not suitable for class actions because signif. questions of liability, damages, and defenses (e.g., failure to follow directions, assumption of risk, contrib. negligence, and the statute of limitations) are present, affecting Ps in different, individualistic ways. Hence, commonality and typicality requirements are lacking. Adequate counsel again lacking because no one is willing to serve as class counsel. Also, the class action is not superior in terms of fairness and efficiency to individual lawsuits, because the predominance of the individual questions of law and fact indicate that the time saved by a class action may be relatively insignificant. A California judge would not know the laws of the other 50 states to apply to the various Ps.

Reasons class might have been upheld: 1) judicial economy, 2) limited pool of funds, possible bankruptcy, 3) consistency, 4) damages so substantial that would be economic to pursue individually - preserve P's choice of forum and attorney.

3. Subject matter jurisdiction problems.

a. Diversity. Only the citizenship of the class representative is considered for purposes of establishing federal diversity jurisdiction. Thus, the class representative's citizenship must be diverse from that of the defendant's, or, if a defendant class, that of the representative of the defendant class.

b. Amount in Controversy. In any class action in which the individual members seek separate rather than common recoveries, each class member must have a claim or claims in excess of the jurisdictional minimum of $50,000, except in general federal question cases, which have no amount in controversy requirement. However, aggregation of individual class claims to satisfy the amount in controversy requirement has been permitted where (i) a single P seeks to aggregate two or more of his own claims against a single D or (ii) two or more Ps unite to enforce a single title or right in which they have a common and undivided interest.

4. Problems of Notice.

a. Notice requirements. Because the judgment in a class action is binding on all present and nonpresent members of the class (unless they request exclusion), notice and an opportunity to be heard are considered important. Rule 23(c)(2) requires that in a Rule 23(b)(3) class action (i.e., a class action in which questions of law or fact common to the class predominate over questions affecting only individual members), all members of the class must be given "the best notice practicable under the circumstances, including notice to all members who can be identified through reasonable effort." - resembles wording of Mullane.

1) Cost of notice. The named P must pay the cost of notifying all members of the class, though her expenses are recoverable if she wins the lawsuit.

2) Contents of notice. The notice must advise class members of the existence of the action, the nature of the claim, and the relief requested. It must identify and describe the representative and, if under Rule 23(b)(3), it must also advise that class members will be bound by the judgment unless they request exclusion from the class. The notice should be neutral and objective and not amount to a claim solicitation. Must identify right to opt out as per RULE 23(c)(2).

EISEN v. CARLISLE & JACQUELIN Even in a federal antitrust case with a class size of 6 million members, who were odd-lot stock traders, P was still required to send out and pay the costs of a notice to all identifiable class members. Since P maintained he would not bear the cost of notice, the class action should have been dismissed. Given an individual recovery of $70, the court displayed judicial hostility toward class actions that serve to benefit no but the lawyers who represent the class. Note: since federal issue, no $50,000 minimum.

OTHER reasons not to uphold class: 1) class is not manageable, cannot identify all class members. 2) do not want to encourage frivolous strike suits, where cheaper to payoff P than litigate.

Use of preliminary hearing in this case to weigh likelihood of chances for success is analogous to hearing for preliminary injunction. The Supreme Court said this type of hearing cannot be done for deciding who has to pay for notice; Rule 23 explicitly says P has to pay.

PHILLIPS PETROLEUM v. SHUTTS In class action brought in Kansas state court for royalties against Phillips Petroleum, the forum state may exercise jurisdiction over the claims of absent class action Ps. The Due Process Clause need not and does not afford as much protection to absent class Ps (as does the minimum contacts requirement for out-of-state Ds, INT'L SHOE), because fewer burdens are placed on them. An absent class P is not required to do anything. The court and the named Ps protect the absent Ps' interests. The class action is an exception to the rule that one cannot be bound by a judgment in personam unless one is fully made a party in the traditional sense. To bind an absent P, the forum state must provide minimal procedural due process protection. The P must receive notice (the best practicable to apprise parties of the action) plus an opportunity to be heard and participate in the litigation. The P must have an opportunity to "opt out." The named P must at all times adequately represent the interests of absent class members.

The state court may not, however, apply its own law to every claim. The Due Process and Full Faith and Credit Clause require that the forum state have a significant contact or aggregation of contacts to the claims of the P class that create state interests in order to ensure that the choice of forum law is not arbitrary or unfair. There are material conflicts between the forum law and other law that could apply. There is no indication that the parties intended the forum law to apply. Ps' failure to "opt out" of the class did not constitute a consent tot he application of forum law. Ps' desire for forum law is rarely, if ever, controlling. There is no identifiable res in the forum. Over 99% of the leases and 97% of Ps had no apparent connection to the forum except for the lawsuit. Given the forum's lack of interest in claims unrelated to the forum and the substantive conflict with the law of other jurisdictions, the application of forum law to every claim is sufficiently arbitrary and unfair as to exceed constitutional limits. Therefore, left with Kansas judge trying to apply the substantive law of each P's individual state.

COMMENT: D argues that absentee members of a plaintiff class are in the same boat as (and hence should be treated like) absentee defendants in an ordinary long-arm jurisdiction case. The Supreme Court rejects this analogy but, as in EISEN, recognizes that absentee class members have constitutional rights and that Kansas procedural law - which requires notice and an opportunity to opt out - satisfies the constitutional standards.

5. Attorneys' Fees. Counsel for the prevailing class is normally awarded an attorneys' fee paid out of the fund obtained for the class. This is called the "common-fund doctrine" and is an exception to the general American rule that requires each litigant to bear her own attorneys' fees. The common-fund doctrine is derived from equity and rests on the perception that persons who benefit from a lawsuit without contributing to its costs are unjustly enriched at the successful litigant's expense. The common-fund doctrine rectifies this inequity by requiring every member of the class to share attorneys' fees to the extent that she can share the recovery. In some cases, the common-fund doctrine is consistent with, rather than an exception to, the American rule.

ASIDE: award of attorney fees: 1) by statute, e.g., Civil Rights Act; 2) frivolous pleading; 3) common pool of funds.

6. Damages and Injunctive Relief. Some class members are unaware of class litigation and subsequent recovery; consequently, they do not come forward to claim damages. This creates the problem of what to do with the unclaimed portion of the damages. The fluid class recovery, applied by the district court in EISEN but rejected by the court of appeals, is one proposed solution to this problem. The court used a fluid class idea to resolve taxicab overcharges in New York city in one case. If the class consists of past customers of D, this device would distribute the recovery to the "next best class," namely, to future customers of D through price reductions lasting long enough to exhaust the recovery. Since at least some of the beneficiaries were not harmed by D's wrongdoing, the fluid class recovery fails to promote the normal purpose of litigation - namely, compensation to the injured party. Thus, to some extent the fluid class recovery is punitive to the D rather than compensatory for the P. This recovery problem does not arise where P seeks only declaratory or injunctive relief. However, other problems (e.g., faithful compliance with the court's injunction) may arise here.

7. Settlement and Dismissal. Unlike individual lawsuits in which litigants are free to terminate or settle or dismiss a lawsuit as they see fit, Rule 23(e) provides that "a class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such a manner as the court directs." This rule results from the fiduciary nature of the class action.

RULE 24: INTERVENTION - from the perspective of the nonparty

1. Intervention of Right, Rule 24(a). A nonparty shall be permitted to intervene if a federal statute confers an unconditional right to intervene or if he can satisfy three criteria + timely application:

(1) Interest criterion. The nonparty must show an interest in the main action's subject matter.

(2) Impairment criterion. The nonparty must show that his interest, "as a practical matter," may be impaired or his ability to protect it may be impeded if intervention is denied.

(3) Adequate representation. The nonparty must show that his interest is not adequately protected by any of the existing parties.

2. Permissive Intervention, Rule 24(b). The court has broad discretion to permit intervention where (1) a federal statute provides a conditional right to intervene or where (2) the nonparty's claim or defense has a question of law or fact in common with the main action + timely application.

3. § 1367(b) prevents intervention from violating complete diversity. Congress decided to limit federal courts power. Under Article III, courts would have jurisdiction to hear minimal diversity suits.

4. Rule 24(c): when challenging the constitutionality of U.S./state statute, must serve notice on attorney general for U.S./state.

5. Intervention of Right: criteria satisfied. An interest (in getting licenses for the operation of uranium facilities in New Mexico) is impaired not only if res judicata would bind a nonparty to a judgment in the main action, but also if the doctrine of stare decisis would in effect make futile any attempt to relitigate the subject matter of the main action. Accordingly, movants have satisfied the impairment criterion, because any attempt on their part to litigate the environmental impact statement/licensing question relative to this state will likely take place in this jurisdiction. Thus, a decision in the main action will have the effect of stare decisis.

The adequate representation criterion is met if the world-be intervenor shows that representation "may be" inadequate. Movants have satisfied this criterion because of the possibility, remote though it may be, that since United Nuclear has already received its license, it might be willing to agree to a compromise that requires environmental impact statements only from future uranium mill operators. NATURAL RESOURCES DEFENSE COUNCIL v. NRC A denial of intervention of right is appealable immediately; the would-be intervenors do not have to wait until final judgment.

6. Sideline sitting. In case brought by group of white firefighters in Birmingham, court faces conflict between right to a hearing vs. stability of judgment: an impermissible collateral attack. The 1991 Civil Rights Act reverses the holding in WILKS. A person who had (1) actual notice of a proposed judgment and a reasonable opportunity to present objections to such judgment, or (2) whose interest is adequately represented in the first lawsuit, cannot collaterally attack the judgment. Congress effectively requires intervention for a particular class of lawsuits: consent decrees in Title VII civil rights discrimination cases dealing with employment contracts.

Dissent in WILKS: Although the court is right that Ps could not be deprived of their legal rights in the prior Title VII lawsuit, because they were not parties or intervenors in that action, there is no reason why the consent decrees might not produce changes in conditions at Ps' place of employment that, as a practical matter, may have a serious effect on their employment and promotion opportunities - even though they are not bound by the decrees in a legal sense. Moreover, if, after the rendition of a judgment by a court of competent jurisdiction, and after the period has elapsed when it becomes irreversible for error, another court may in another suit inquire into the irregularities or errors in such judgment, there would be no end to litigation and no fixed established rights. In addition, such collateral attacks can lead to the extraordinary situation of a trial court reviewing a judgment entered by a court of greater authority. The impermissible collateral attack doctrine should, therefore, apply in this case.

RULES 26 - 35: DISCOVERY

Types of discovery: 1) depositions, 2) interrogatories, 3) requests to inspect documents or

property, 4) requests for admission of facts, 5) requests for physical or mental examination.

RULE 26(a) - NEW - Automatic pre-discovery disclosure. Under this rule counsel shall, without awaiting a discovery request, provide to opposing counsel only those facts which were

a. alleged with particularity in the pleadings - problem, what is the level of particularity required?

b. Not privileged or protected.

i. irrelevant matters.

ii. confidential matters (trade secrets).

iii. Attorney-client communication (absolute)

iv. Mental impressions, opinions, theories (absolute).

v. Work product (qualified) FRCP 26(b)(3) may obtain upon showing substantial need and unable to get elsewhere without undue hardship.

c. must be relevant to the subject matter.

d. FRCP 26(b)(5) - if you claim privilege or protection of trial preparation materials, you must do so expressly and describe the nature of the information without revealing the information itself privileged or protected so as to enable other parties to assess the applicability of the privilege or protection. A privilege log. (????)

e. Anything can be changed in discovery by order of court or local rule.

2. Information that must be disclosed. RULE 26(a)(1):

a. Name and address of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings.

b. A copy or description by category and location of all documents, data compilations, and tangible things in the possession or control of the party that are relevant to disputed facts alleged with particularity.

c. A computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure.

d. anything from an insurance agreement that may be liable to satisfy part or all of a judgment. 26(a)(1)(D)

3. Timing - all information must be disclosed 10 days after the discovery meeting required under FRCP 26(f). This conference must occur 90 days after filing of answers of Rule 12 motions. Requires SUPPLEMENTATION - 26(a)(2)(c).

4. RULE 26(a)(2) is designed to disclose written report with complete statement of opinions to be expressed - reduce the need for opposing side to depose the witness. Also give adequate notice so that opposing side can frame a deposition if necessary.

5. For the recent discovery changes as of 1993, there has not been time for much appellate comment. Furthermore, most issues are mooted out at the trial court level.

RULE 26(b)(1) provides that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." STANDARD: RELEVANCY to subject matter

Policy Concerns

Purpose: prevent trial by surprise; factual development and issue clarification; being conducted without judicial intervention.

Opposing: ought not be compelled to build adversary's case; operating in an adversarial environment, and counsel wants to disclose as little as possible.

Recent Concern: Parties trying to wear down opponent with discovery - Limit the # of interrogatories and # of times deposed without court order.

BLANK v. SULLIVAN & CROMWELL

Ps claimed D's hiring practices discriminated against females and sought discovery relating to lawyers who made and failed to make partner. Court held evidence of sex discrimination at the partnership level might indicate a pattern or practice of sex discrimination extending throughout all levels of the law firm's operations, including its hiring practices. Expect the animus to permeate the firm. Rule 26(b)(1) indicates discovery request must relate to the subject matter, not necessarily the claim.

COMMENT: Rule 26(b)(1) states that privileged matters, even though they are "relevant," are not discoverable. These are matters that are recognized as "privileged" in the law of evidence - e.g., attorney-client or physician-patient communications. Hostility in the law to naming privileges - exclude information that might resolve a case.

(Conversely, may obtain from discovery nonprivileged information). Confidential matters (e.g., trade secrets or undisclosed financial information about a company) are not privileged information within the law of evidence, and hence are discoverable if relevant. However, a party may be able to shield confidential matters from discovery by obtaining a protective order pursuant to Rule 26(c).

STEFFAN v. CHENEY

P was separated from the service based on his statement that he was a homosexual. He was not separated on the basis of alleged homosexual conduct. Therefore, questions concerning his homosexual conduct are irrelevant to the action pending before the trial court. That P seeks reinstatement as a form of relief for an allegedly invalid separation does not put into issue the question whether he engaged in potentially disqualifying conduct unless such was a basis for P's separation.

RULE 26(b)(3)

Whereas an absolute privilege exists for recognized evidentiary privileges, a qualified privilege exists for an attorney's work product.

Landmark case. HICKMAN v. TAYLOR. All relevant and nonprivileged materials prepared by an attorney "with an eye toward litigation" are free from discovery unless the party seeking discovery can show (i) a substantial need for the materials (e.g., for impeachment or corroboration purposes) and (ii) an inability to obtain equivalent materials by other means, e.g., by showing a witness had died.

The written statements and private memoranda contained information that is readily available to P because the witnesses to the sinking are available and not difficult to reach. Although oral statements made by witnesses to D's attorney may not be readily available to P, a showing of necessity cannot be made with respect to them in this case, because forcing D's attorney to write down his mental impressions of the witness's remarks gives rise to the dangers of inaccuracy and untrustworthiness and would not qualify as admissible evidence.

This case reached the court without a final order or injunction. Contempt proceedings are separable, and considered final for immediate appeal under 28 U.S.C. § 1291. Not an evidentiary privilege. Attorney has property interest in his papers.

Fortenbaugh would certainly have to release the names of the witnesses.

RULE 26(b)(3) expands the Hickman work product doctrine by (i) giving the qualified privilege to a party or his "representative," which includes not only his attorney but investigators or others who might work for the party, and (ii) giving an absolute privilege of discovery to the mental impressions, conclusions, or opinions of a party's attorney or other representative.

Two arguments for getting around work product: 1) freshness of statement, and 2) impossibility.

Attorney risks putting statement out of work product when he uses it to refresh a witness's recollection.

Get at statements by party even to a claims adjuster - Rule 26(b)(3). Same provision also permits a nonparty to obtain his own statement (which he can then give to the party). A party may obtain his own statements without any showing of need or hardship.

Pictures of party who claims a disability doing normal activities - should be disclosed to avoid trial by ambush. The filming company may claim the film as a Rule 26(b)(5) privilege for trial preparation material or an attorney work product under 26(b)(3).

RULE 26(b)(4) contains special provisions for discovery of experts. The rule attempts to balance two competing procedural policies: a policy against freeloading and laziness by one party who seeks to develop his case through the efforts of the other party, and the basic policy that underpins all discovery - namely, that both parties should have access to all vital information prior to trial.

TWO TYPES of EXPERTS:

a. Experts that will testify at trial

1. must disclose automatically what he will testify about, basis and reasons for his opinions, data used, exhibit to be used, qualifications, compensation to be paid and were paid in other cases, other cases where testified, and publications.

2. file interrogatories about his testimony - open question. Rule 26(b)(4)(A) only states that a party may depose an expert who will be called to testify. By negative implication, one would assume that interrogatories may not be propounded. However, Moore's treatise on federal practice indicates interrogatories may be used to lay the framework for a deposition of any expert witness - presumably even one who will testify at trial.

3. can be deposed automatically by right by the opposing side. Previously a party had to show good cause why an expert should be deposed. No court order required now.

4. must pay expert for time spent responding to discovery and costs of being there for trial. 26(b)(4)

b. Experts that will NOT testify at trial

1. Party must NOT automatically disclose information about these experts.

2. Upon showing of exceptional circumstances that it is impracticable for party to seek discovery or obtain facts by other means or as provided under Rule 35(b)(Report on physical or mental examination), a party may discover facts or opinions held by such experts through depositions or interrogatories. 26(b)(4)

Expert not retained in anticipation of litigation is treated as ordinary witness. BUNZL PULP v. GOLDER Rule 26(b)(4) does not address an expert whose information was not acquired in preparation for litigation or for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness. Don't have to pay fee for a fact witness. D was able to depose P's witness and ask him about his inspection of the property before the corporate land acquisition occurred. Ds may depose Baggett as to any known facts or opinions held that were not acquired or developed in anticipation of litigation or for trial.

State PRIVILEGE with PARTICULARITY - RULE 26(b)(5). If a party claims a privilege or protection of trial preparation materials or some other privilege, he must do expressly and describe the nature of the information without revealing the information itself so as to enable other parties to assess the applicability of the privilege or protection.

P has not identified any particular item that it believes is protected by the work product and attorney-client privileges P claims apply to this case. A claim of privilege must be made and sustained on a question-by-question or document-by-document basis; a blanket claim of privilege is unacceptable. BUNZLE PULP & PAPER v. GOLDER

Discovery allowed in order to minimize "expert shopping." The court finds that "exceptional circumstances" exist in this case because of the real possibility that P or Ds may "shop around" for an expert who will provide a favorable opinion on the tissue samples. The reality of the situation is that if a number of other experts have been consulted, and these experts are not called as witnesses, then the jury could be misled regarding the truth of P's condition. Considering the difficulty in diagnosing mesothelioma, the fact finder is entitled to know the extent of any disagreement of those whom a P or D employed, unless we adopt the theory that a party has a right to suppress the truth. COATES v. AC&S Inc.

Even though P's experts could develop the same medical information as Ds' experts, P had no other way to establish that D was "shopping around" for a favorable medical opinion other than by discovery of D's experts. The same could apply to P. Thus, the court goes beyond P's motion to compel and order that "when any party sends a tissue sample to any expert for review, then any other party may discover the results of that review." COATES

RULE 26(c): PROTECTIVE ORDERS

1. Must make motion to court for protective order.

2. Must certify that in good faith tried to resolve without court action.

3. Used to stop, limit number, make discovery take a particular form, limit scope, only specific people be present during depo, to seal a depo, and protect trade secret.

DUTY TO SUPPLEMENT - RULE 26(e)

New rules require supplementation of automatically disclosed materials as opposed to old rules. Also must supplement interrogatory answers or documents that are produced.

MEET AND CONFER REQUIREMENT - RULE 26(f)

This conference must occur within 90 days after filing Answer or Rule 12 motions. In this conference, must discuss a discovery plan.

SIGNING OF DISCOVERY & DISCLOSURE PLEADINGS; SANCTIONS - RULE 26(g)

Any pleading you send must be signed. Sanctioned for frivolous pleading. Certification after reasonable inquiry, stop and think before you sign. Good intentions not enough. Counterpart of Rule 11 Sanctions. Parties must attempt good faith resolution before applying to court for sanctions.

RULE 30 - DEPOSITIONS

A deposition is a device by which one party may require another party or witness to appear before a court reporter and answer oral questions put to him by the opposing lawyer. Now depositions are allowed on audio or video tape. Deponent does not have to answer questions that are too broad, misleading, poorly framed, or required "research in a medical library." Rule 30(c) suggests the proper way to handle this type of problem is for deponents to answer the questions subject to any objections counsel may make at the time. A party may not take more than 10 depositions, nor may she depsoe the same person more than once, without leave of court or stipulation of the parties.

In Haviland & Co. v. Montgomery Ward & Co., D attempted to take the deposition of P's 80-year old chairman, a resident of Limoges, France. The district court held that ordinarily P's deposition should be taken in the district that P has selected for the litigation, an exception due to age and claim of ill health should be made. The deposition may be taken, at Mr. Haviland's option, "at his residence or some other convenient place at Limoges, France, conditioned upon payment by P to Ds of first class air travel for its counsel" and other incidental expenses. "Otherwise the deposition shall be taken at this courthouse." The court also ruled that the taking of testimony be limited daily consistent with Mr. Haviland's health, and shall continue day to day until completed.

RULE 31 - DEPOSITIONS UPON WRITTEN QUESTIONS Deisgned to facilitate the depositions of witnesses living a great distance from the parties.

RULE 33 - INTERROGATORIES are written questions to a party.

RULE 34 - PRODUCTION OF DOCUMENTS; Go onto Property and Inspect. Document requests may be made to parties or "persons not parties." Rule 34(c).

RULE 35 - Physical and Mental Examination of Persons

Rule 35(a) provides that the court may order a party or a person in custody of or under the legal control of a party to submit to a physical or mental examination if (i) the physical or mental condition of the person to be examined is "in controversy"; (ii) "good cause" for the examination is shown; (iii) notice is given to the person to be examined and to all parties; and (iv) the court order specifies "the time, place, manner, conditions, and scope of examination" and the person(s) who shall conduct the examination. UNLIKE other DISCOVERY rules, Rule 35(a) requires COURT PERMISSION before a party can proceed.

1. Only the party examined can request a copy of the report. However, once this is done, he must, upon request, furnish copies of all written reports made by his physicians.

2. Only requires that the person to be examined is a party to the action. Applies to Ps and Ds.

3. Rule 35(b) requires each side to share with the other side a pracie of evidence to be presented.

Schlagenhouf v. Holder requires: 1) good cause; 2) in controversy; 3) must be a party or someone under legal control of a party; 4) must have an order from the court, does not operate extra-judicially. Since D bus driver did not assert his mental or physical condition either in support or in defense of a claim, it cannot be said that the pleadings alone are sufficient to meet Rule 35(a)'s in controversy and good cause requirements. Rule 35 requires an affirmative showing by petitioners that D's condition was in controversy and that there was good cause for the examination requested.

RULE 36 - REQUEST FOR ADMISSIONS. Facts not denied within 30 days after service are deemed admitted. May ask party to admit combined statement of fact and law. May ask for admissions of law as well, so long as not the penultimate question of the suit.

RULE 37

If after a motion to compel, and a good faith attempt to solve without the court, the court can impose sanctions, attorney fees, throw out a pleading, enter default judgment, or facts may be deemed admitted and case remanded for trial only on damages phase.

1. Disobey motion for discovery.

2. If give evasive or incomplete answers.

3. False or misleading documents or refusal to admit.

4. Failure to attend deposition or serve answers.

5. Failure to participate in discovery planning.

Scope of Review: Abuse of Discretion.

REFAC INT'L v. HITACHI (patent infringement case - some Ds where licensees)

P acted with willfulness, bad faith, and fault, and violated a direct court order to answer interrogatories. P's noncompliance with the magistrate's discovery order was clear. P responded with admittedly erroneous assertions and with generalized information when the order called for a particularized response. This violated both the letter and the spirit of the order. Champertous - P bought interest in patents and then sued on behalf of original patent owner -- basically buying litigation.

As to Rule 11 sanctions, while the court has discretion to determine whether Rule 11 is an appropriate sanction, once a violation of Rule 11 is found, the imposition of Rule 11 sanctions is mandatory. (p.629 note 19 shows a split among the circuits as to whether Rule 11 sanctions are mandatory, but 1983 revision seems to imply they are).

PRESSEY v. PATTERSON (Houston cop runs along side of truck and shoots driver in the head)

While D did act evasive and delayed in answering interrogatories, it did not act with willful or bad faith abuse of the discovery process. A finding of bad faith or willful misconduct must be made to support the severest remedies under Rule 37(b) - striking pleadings or dismissal of a case: STANDARD OF PROPORTIONALITY. Here the clearly erroneous standard is met w/r/t trial court's findings of fact of bad faith.

There is little evidence to support the trial court's apparent finding of bad faith or willful misconduct concerning the destruction of the Reiser tape. Reiser did not destroy the tapes to prevent P from using them as evidence against the City. For example, the reporter who conducted the interview of Reiser retained an identical copy of the tapes. (These were unavailable to P due to First Amendment privilege; P could have preserved this issue on appeal.) It is difficult for the App. Ct. to see what Reiser hoped to gain by destroying the tapes.

Nothing in the record persuaded the App. Ct. that the City's counsel intentionally misinformed the trial court about the tapes' destruction so as to hide the fact that Reiser had burned the tape.

Appellate court sustains finding of $6.7 million damages, but remands case to determine city's liability. Footnote 1 Issue Preclusion - convicted of civil rights crime beyond a reasonable doubt > preponderance of the evidence.

RULE 41 - Voluntary Dismissal by P w/o prejudice

Under Rule 41(a)(1), P may voluntarily dismiss his case (1) by filing notice of dismissal before the adverse party has served an answer or motion for summary judgment; (2) by filing stipulation for dismissal signed by all parties, sometime stipulation will include the settlement contract. Rule 41(a)(1) attempts to safeguard P's right to terminate the proceedings while at the same time preventing arbitrary dismissals (and a waste of court time) after an advanced stage of the proceedings has been reached.

Rule 41(a)(2): P may dismiss her lawsuit beyond the early stages of litigation only with the court's permission. Normally, will be dismissed WITHOUT Prejudice. Court will grant if D will not be prejudiced.

Judicial approval need for dismissal beyond early stages of litigation.MANSHACK v. SOUTHWESTERN ELEC. POWER CO.

P moved to dismiss personal injury case filed in TX federal district court, after court ruled Louisiana law would govern the claim. (Louisiana law would have limited remedy to worker's compensation.) The District Ct. did not abuse its discretion in granting P's motion or in granting it in violation of its own local rules: HARMLESS ERROR. The courts have generally followed the principle that dismissal should be allowed unless the D will suffer some plain legal prejudice other than the mere prospect of a second lawsuit. It is not a bar to dismissal that P may obtain some tactical advantage thereby.

D suffers no "legal prejudice" because: no extensive discovery has taken place, causing excessive litigation costs; the district court's choice of law ruling is not as "definitive" as a ruling granting a motion for summary judgment or the expiration of the statute of limitations; and D is governed by the same choice of law principles whether the case is litigated in federal or state court.

The district court eventually explained its reasons for granting the motion when it denied D's motion for reconsideration. The district court was in a position to know and hence take into account D's arguments against the motion when it entertained it ex parte.

Rule 41(b) - INVOLUNTARY Disimissal WITH Prejudice, acts as adjudication ON THE MERITS, for failure to prosecute a case or comply with the FRCP. Exceptions to this rule are for lack of jurisdiction, improper venue, and for failure to join a party under Rule 19.

In FEDERAL COURTS, after two voluntary dismissals (either federal or state), then dismissal becomes a final adjudication on the merits.

Involuntary dismissals and default judgments are disfavored, because judges believe that cases should be decided on the merits whenever it is reasonably possible or that the parties should at least have the opportunity to settle the case.

RULE 41(d) - court may order party to pay costs in previously dismissed action before proceeding with newly-filed claim.

RULE 42(b) gives a court authority to order separate trials in the interest of judicial economy or convenience, or to avoid prejudice. Advantage of separate trial - removes sympathy/prejudice for injured P from D's claim of nonmanufacture; Efficiency - may eliminate need for trial on injuries/negligence.

RULE 49

General verdict. In most cases, a jury will return a general verdict. Here, the judge instructs the jury in the normal manner (i.e., instructs the jury as to the applicable rules of law and the burden of persuasion) and then asks the jury to return its verdict "generally." This means that the jury is to announce in open court no more than its decision on the ultimate question of the case (e.g., "we find for the P in the amount of $50 K" or "we find for the D.").

General verdict with interrogatories - RULE 49(b). The judge instructs the jury in the normal manner and then asks the jury to respond to a series of specific questions relating to a proper resolution of the case. If the jury's answers to the interrogatories are inconsistent with its general verdict (or with each other), the court will order a new trial on the ground that the jury exercised its fact-finding function improperly. The purpose of this type of verdict is to enable the judge to check the jury's understanding of and adherence to its instructions.

Special verdict - RULE 49(a). In the special verdict, the judge instructs the jury to answer a series of specific questions concerning the necessary elements of proof. Here, the jury does not return a verdict in any party's favor; rather, the judge will enter judgment in accordance with the jury's answers. The major advantage of a special verdict is that it relieves the judge of instructing the jury on the applicable law (a task that often takes hours) and it relieves the jury of having to understand the law. The major problem with a special verdict is that it increases the chance of jury error because of the difficulty of framing accurate questions.

RULE 50

Must make a motion for directed verdict before asking for Judgment n.o.v. It is harder to overturn a jury verdict than a directed verdict or J n.o.v. To defeat a motion for a directed verdict, the P must have substantial or material evidence on a triable issue.

RULE 50(a)(2) - submit motion for judgment as matter of law prior to submitting case to the jury, and it will be deemed reserved for later consideration if not granted.

RULE 50(b) - Judgment as matter of law, replaces Judgment Non Ostande Verdicto. Judge can reconsider previously made motion before jury deliberated. 10 day limitation.

If no way trier of fact could reasonably find for P either (1) evidence is not sufficient, or (2) absence of evidence; then mover must establish deficiency and he should prevail on motion.

Appellate court may grant judgment n.o.v. NEELY v. EBY CONSTRUCTION P at appellate level did not ask for new trial, based on deficiencies in jury charge, e.g., "we would have won more decisively..." Supreme Court held: As far as the Seventh Amendment's right to a jury trial is concerned, there is no greater restriction on the province of the jury when an appellate court enters judgment n.o.v. than when a trial court does; consequently, there is no constitutional bar to an appellate court granting judgment n.o.v. Can be tendered for the first time at the appellate level.

Rule 50(b) makes express and adequate provision for P's opportunity to seek a new trial. P could have made the request in her brief in opposition to the granting of judgment n.o.v. or in a motion for rehearing. (Size of record means appellate court would probably grant P's motion for rehearing, since they have already seen the record to hear motion for J.n.o.v.) Even if trial judge lets case go to the jury, must be prepared to argue for new trial at appellate level. (Concurrent jurisdiction on new trial motion - probably remand).

RULE 50(c) - Court grants judgment as a matter of law to D, but in the alternative grants a new trial - does not deprive order of finality.

RULE 51 - party must object to jury instruction or waive right to appeal on this issue.

RULE 52 - Court must enter findings of fact and rules of law separately in nonjury trials. RULE 52(a) provides standard of review for nonjury trials is "clearly erroneous" standard. The trial judge is given less freedom in fact-finding than the jury is given. The appellate court is far less likely to reverse a jury verdict (because of Seventh Amendment strictures) than it is to reverse a trial judge's fact-finding.

Case brought under admiralty law is w/o jury. TITTLE v. ALDACOSTA Woman slips on transom to dock; no towel down on damp transom. 5th Cir. held D was negligent as a matter of law because of the undisputed evidence that the transom was slightly damp and that D failed to follow his own established procedure by not having the towel in place. Dissent is BETTER: Since the evidence does not shwo that the transom was slippery (it only shows that it was damp) nor that P slipped, proximate cause was not established.

RULE 52(c) - Partial summary judgment.

RULE 55. Default Judgment. (intended for substantial malingering, where D fails to file a timely answer to a properly served complaint and summons)

Rule 55(a) - Entry of Default - Party files application for default judgment with clerk to be entered as a judgment. This application may be defeated by showing of good cause (Rule 55(c)).

Default Judgment Obtained Two ways: (1) Rule 55(b)(1) - by CLERK. If the amount of the judgment is sum certain or readily ascertainable, then the clerk may enter default judgment himself. (2) Rule 55(b)(2) - by the COURT. Application for default judgment must be served on opposing party at least 3 days prior to the hearing. If infant or incompetent, court will appoint a guardian ad litem. Plaintiff has to "prove up" his damage claim at time of hearing. If damage amount is uncertain, then judge must hold hearing or order jury trial on damages for the amount to be determined. The issue of liability has been decided by default judgment.

RULE 55(c) - setting aside default judgment must be done according to Rule 60(b).

PERALTA v. HEIGHTS MEDICAL CENTER

Heights sued Peralta to recover money due Heights for treating one of Peralta's employees. A judgment entered without proper service of process is void. Even though D may lack a meritorious defense on the merits, the default judgment prejudices D because if D had notice of the lawsuit he could have done a number of things to protect his property from the constable's sale (e.g., pay the debt) or to otherwise avoid default judgement (e.g., implead the employee whose debt he had guaranteed or work out a settlement). Due process requires that P be given proper notice, and it is no defense that P would have lost on the merits.

Texas courts: efficiency > notice; U.S. Supreme Ct: notice > efficiency. P has possible malpractice claim.

RULE 56 - SUMMARY JUDGMENT

Summary judgment is a procedural device that applies in an action with undisputed facts, and the movant is entitled to judgment as a matter of law. A motion for summary judgment can be granted only if two requirements are met: (i) The admissible evidence before the court must show that there is no genuine issue of material fact; and (ii) The movant must be entitled to judgment as a matter of law on those undisputed facts. Get at the facts in RULE 56.

Summary judgment functinos to bypass the plenary trial on the merits, whose special function it is to expose and evaluate factual disputes and ultimately to resolve them. Summary judgment is thus reserved for those relatively few instances where the fact resolving abilities of the fact finder are not necessary.

ANDERSON v. LIBERTY LOBBY, INC.

Ps filed a diversity libel action against certain individuals and a publishing co. for a series of articles that defamed Ps. Ds moved for summary judgment stating NY Times standard applies and their articles were thoroughly researched. Ps counter that sources were unreliable. Issue: May judge decide summary judgment motion based on "preponderance of the evidence" when the evidentiary standard at trial is "clear and convincing evidence" of actual malice?

At the summary judgment stage, the judge's function is not to weigh the evidence and determine the truth of the matter but to determine whether the evidence presents a sufficient disagreement to require submission to a jury or wther it is so one-sided that one party must prevail as a matter of law.

The standard for summary judgment mirrors the standard for a directed verdict: under the governing law, there can be be one reasonable conclusion as to the verdict.

Since the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the P on the evidence presented, the inquiry involved in a ruling on a motion for summary judgment necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.

A factual issue is "genuine" or "triable" if a jury could find for the nonmoving party, assuming that the moving party has discharged her initial burden under Rule 56(c).

1. Rule 56(a) - claimants seeking to recover upon any type of claim must wait 20 days from commencement of the action or after service of a motion for summary judgment.

2. Rule 56(b) - defending party may ask for summary judgment at any time.

3. Rule 56(c) - mandates entry of summary judgment when after adequate time for discovery, against a party who fails to make a showing of sufficiency to establish the existence of an essential element to that party's case. Party moving for summary judgment under 56(c) has the burden of demonstrating the absence of a genuine issue of material fact.

Standards governing burden of production (quantity of evidence)CELOTEX CORP v. CATRETT

P never gave any evidence that her deceased husband had been exposed to D's brand of asbestos. There can be no genuine issue of material fact when, after an adequate discovery period, the party opposing summary judgment fails to make a showing sufficient to establish the existence of an essential element in that party's case, and on which that party will bear the burden of proof at trial.

The burden is not on the party moving for summary judgement to produce evidence showing the absence of a genuine issue of material fact with respect to an issue on which the nonmoving party bears the burden of proof. Rather, in this situation, the movant need only show - that is, point out to the district court - that there is an absence of evidence to support the nonmoving party's case. And this burden may be discharged by relying on depositions, answers to interrogatories, and the like, as Rule 56(c) clearly provides.

The standard governing the burden of production for summary judgment mirrors the standard for a directed verdict under Federal Rule 50(a), in which D would not be required to support its motion with affidavits or other similar materials negating P's claim. The burden is on P, not D, to go forward with evidence as to P's claim.

Standard for determining summary judgment: no genuine issue of material fact. P must show that there is some material evidence to support his case. If nonmoving party produces evidence that contradicts this, then goes to jury.

LUJAN v. NAT'L WILDLIFE FEDERATION

Wildlife enthusiasts must state with particularity how they were adversely affected by burden of land management, not merely state legal conclusions about loss of "recretaional and aesthetic enjoyment" of park land.

4. Rule 56(e) - Affidavits - must be based on personal knowledge and must be of admissable evidence at trial. Cannot rest on mere allegatoins or denials, but specific facts. The party opposing summary judgment must come forward with "specific facts showing that there is a genuine issue for trial.

Cases in Which Credibility Is at Issue. VISSER v. PACKER ENGINGEERING ASSOCIATES P was fired for his refusal to pledge his loyalty to Packer. This was wrong and perhaps unethical (because loyalty to Packer would have meant disloyalty to P's employer, D) but it is not an illegal reason under the Age Discrim. in Employment Act. The fact that Packer may be a "bad man" does not mean he is concealing a discriminatory reason for his actions. Affidavits offered by witnesses, who are not expert witnesses, that seek to establish Packer's illegal motivation were properly excluded by the trial court because such witnesses testified about matter outside their personal knowledge, but are permitted to testify only from their personal knowledge. [FRCP 56(e)] Affidavits did not raise material fact, only broad generalizations. Must put fact in issue.

Once prima facie discrimination case is established, the burden of persuasion shifts to D. Generally, a field day for defense counsel - unless there is a paper trail.

5. Rule 56(f) - Court can rule that additional discovery is needed to fight summary judgment. Conflicting sworn testimony must go to the jury to determine questions of fact.

6. Prima facie case - in age discrimination (like Visser) or race discrimination cases,

a. Once P has established a prima facie case,

b. then burden shifts to D to give reasons other than discrimination for the action taken.

c. One these reasons are given, then P must prove they are pretextual.

RULE 59 - A federal trial judge may grant a motion for new trial or order one on his own initiative (Rule 59(d)) "for any reasons for which new trials have heretofore been granted in actions at law in the courts of the U.S." This rule incorporates the common law tradition for grounds in jury trials. A trial judge will grant a motion for new trial to correct any error of law or legal process that is deemed prejudicial to one of the parties' right to a fair trial. For example, a new trial is granted when the jury's verdict goes against th weight of the evidence, or when there has been serious misconduct on the part of the trial judge, jury, counsel, parties, or witnesses. The standard of review used by an appellate court to pass on the legality of a trial judge's decision to order a new trial is abuse of discretion.

Inconsistent interrogatory answers. GALLICK v. BALTIMORE & OHIO RR Jury response to interrogatory that P's injury was "reasonably foreseeable" contradicted another interrogatory response that D could not foresee that the stagnant pool would set off a chain reaction leading to P's condition or that D had no reason to foresee that maintenance of the pool might result in "mishap or injury." Supreme Court held that courts have a duty to attempt to harmonize answers to special verdicts in order to avoid fatal inconsistencies. Both interrogatories might mean simply that while an insect bite was foreseeable, there was no reason to anticipate a mishap or injury from such a bite. The jury findings here do not create a fatal inconsistency.

Verdicts against the (great) weight of evidence. LIND v. SCHENLEY INDUSTRIES Lind sued employer for breach of K concerning salary and sales commissions. Jury returned verdict for Lind. Judge then granted motion for judgment as matter of law and the alternative motion for a new trial on the ground that the verdict went against the evidence. (Stndard: prevent a miscarriage of justice). Both motions granted under RULE 50(b). (CONFLICT OF EVIDENCE - gets to the jury). Standard of Review for new trial based on weight of evidence: abuse of discretion with closer scrutiny (Judge should not sit as a 13th juror).

The subject matter of the case was simple and easil understood by an intelligent jury. The critical issue at trial was the credibility of the witnesses. P had an overwhelming case if the jury deemed credible the testimony of P and Kaufman's secretary. The jury believed this testimony. Under this circumstance, the trial court simply substituted its judgment for that of the jury on this issue, and that was an abuse of discretion.

Remittitur - judge tells P he will reduce award or new trial. P must choose, but question open on whether he can appeal. (p. 813 et seq)

Additur - adds to jury award.

RULE 60(b): Motion to VACATE default judgment, or trial court's judgment. Not intended as a substitute for appeal.

Court may order a new trial or RELIEVE A PARTY FROM JUDGMENT if (1) mistake, inadvertence, surprise, or excusable neglect. (2) newly discovered evidence that could not have been found at trial. (3) fraud, misrepresentation, or other misconduct. ***first three must be filed within one year of judgment. (4) the judgment is void. (5) the judgment has been satisfied by a prior judgment. (6) any other reason justifying new trial. ***these must be raised in a reasonable time.

Mrs. Rozier brought a wrongful death action against Ford Motor Co. for the death of her husband, which was caused by the explosion of the fuel tank when the car was struck from behind. Jury returned verdict for D. Approximately 10 months later, P moved for a new trial under Rule 60(b)(3) upon learning that D failed to disclose a document (the trend cost estimate) allegedly covered in P's interrogatories. Based on P's evidence and litigation strategy, the document might have been able to help P make a convincing argument as to D's negligence; it might have been the catalyst for an entirely different approach to the case. The case should be retried, because the nondisclosed document probably would have led to a different outcome. ROZIER v. FORD MOTOR CO.

P asked for "any written reports of analyses." Ford's counsel did not disclose the document, nor ask the court for an in camera hearing. If Ford had a duty to supplement its answers, then its action is sanctionable. Standard of review: clear and convincing evidence. Prejudicial error.

Grounds for disqualifying a judge. LILJEBERG v. HELATH SERV. ACQUIS. CORP. Health Services sued Liljeberg (D) in federal court seeking a declaration of ownership over a hospital. Judge Collins, sitting without a jury, tried the case and ruled in favor of D. Ten months after the court of appeals affirmed the judgment, Health Services learned that Judge Collins was a trustee of Loyola University, while D was negotiating to purchase land on which to build the hospital. Loyola's benefit turned in large part upon the litigation before Judge Collins. Collins claimed he was unaware of Loyola's interest until 12 days after the entry of judgment. P moved to vacate the judgment under RULE 60(b)(6) to vacate the judgment on the ground that Judge Collins was disqualified under 28 USC § 455(a). US SUPREME COURT HELD: Disqualification under § 455(a) can be based on the mere appearance of partiality, even though the judge was not conscious of the circumstances creating the appearance of impropriety. Congress did not intend to require knowledge under § 455(a). If an objective observor would have questioned a judge's impartiality based on information that the observor might reasonably believe the judge has in her possession, then there is a violation of § 455(a). A judge must be above suspicion at all times.

An objective observor would have reason to question Judge Collins's impartiality. It is remarkable that the judge, who had regularly attended the trustee meetings isnce 1977, completely forgot about Loyola's interest in constructing a hospital on its property, given the importance of the project to Loyola.

Relief is available under RULE 60(b) when a violation of § 455(a) is not discovered until after the judgment has become final. Although P's Rule 60(b)(6) motion was not filed until after P appealed to the court of appeals, in this case the entire delay is attributable to Judge Collins's inexcusable failure to disqualify himself when he learned about Loyola's involvement.

Prejudicial error defined: one that is so substantial as to cause an appellate court to set aside a judgment.

Plain Error - clear on its face that it is harmful to the system of justice, (bring justice system into disrepute). Normally must object to preserve the right to subsequent objection, unless it is plain error.

RULE 61 - HARMLESS ERROR; does not affect the "substantial rights of parties" or is not "inconsistent with substantial justice."

RULE 65. Temporary Restraining Order, INJUNCTIONS

a) Rarely granted ex parte

b) only available when party verifies allegations in complaint. Verification can occur by party swearing out an affidavit that the allegations are true to the affiant's knowledge, information, or belief.

7TH AMENDMENT: Right to jury trial for civil actions at law (as opposed to equity). Right to jury trial in all civil cases not guaranteed by the Federal constitution. Some state constitutions do guarantee.

Two Prong "general prudential" rest as seen in CHAUFFEURS, TEAMSTERS, AND HELPERS v. TERRY: (1) Whether or not in 1791 this particular type of case would have been a case at law or a case at equity. Threshold, nondispositive inquiry. (2) Type of relief sought: either equitable or legal. (Legal includes money damages, replevin, and ejectment). Second inquiry is more important.

As to the first inquiry, Ps' duty of fair representation claim is analogous to a claim against a trustee for breach of fiduciary duty (only 4 person plurality, Stevens thinks like attorney malpractice - law), which is an equitable claim, but Ps' collective bargaining agreement claim is comparable to a breach of contract claim, which is a legal claim. The first part of the 7th Amend inquiry, then, leaves us in equipoise as to whether Ps are entitled to a jury trial.

As to the second inquiry, the only remedy Ps seek is back pay. This is a legal remedy because Ps do not seek money wrongfully held by D, but wages and benefits they would have received from their employer had D processed their grievance properly. Such relief is not restitutionary (equitable relief). While Congress specifically characterized back pay under Title VII as a form of equitable relief (but 1991 Amendment guaranteed right to jury trial), Congress made no similar pronouncement regarding the duty of fair representation.

Brennan's concurrence correctly states we don't know much about the writ system.

In close cases, judge may have a different view from 12 randomly drawn people. Judge is more protective of vested interests.

A. ARTICLE III vs. ARTICLE I COURTS

Right to jury trial guaranteed by 7th Amendment only in Art. III courts.

1. Article I judges are those that Congress has created to hear specialized areas of the law, but are inferior to the Supreme Court: administrative law judges, Magistrates, and various quasi-judicial agencies to handle labor relations, environment, securities, etc. Congress generally has the power to deny the right to a jury trial in fact-finding settings. PUBLIC RIGHTS - if rights are closely intertwined with a federal regulatory program, then these trials can be held without a jury.

ATLAS ROOFING v. OSHA REVIEW COMMISSION

Secretary of Labor issued citation to Atlas Roofing for OSHA violation and a $600 penalty. D argues for right to jury trial - penalty, fine by the sovereign. When Congress creates new statutory "public rights," it may assign their adjudication to an administrative agency with which a jury trial would be incompatible. Public rights usually involve the government "in its sovereign capacity."

1. Court of Appeals will not overturn findings unless arbitrary and capricious, or exceeding its powers.

2. If Congress assigns some matter to Art. III courts, then court has right to grant jury trial. Congress cannot assign matter to Arti. III court and restrict the right to trial. If Congress chooses to use the Art. III courts, then right to jury trial attaches.

Congress does not have the authority to deny a jury trial in an administrative proceeding involving "private rights": wholly private tort, contract, and property cases, and many other cases that do not involve the feds are private = right to jury.

GRANFINANCIERA v. NORDBERG

A bankruptcy trustee's right to recover a fraudulent conveyance against one who is not a creditor of the bankrupt debtor is deemed "private," and hence entitled to a jury trial. Fraudulent conveyance actions are quintessentially suits at common law that more nearly resemble state-law contract claims brought by a bankrupt corporation to augment the bankruptcy estate than they do creditors' hierarchically ordered claims to a pro rata share of the bankruptcy res.

"If statutory right is not closely intertwined with a federal regulatory program Congress has power to enact, and if the right neither belongs to nor exists against the federal government, then it must be adjudicated in an Art. III court."

GREY AREA - public v. private rights.

B. MIX OF EQUITABLE AND LEGAL CLAIMS

BEACON THEATERS v. WESTOVER

Underlying issue: What is a reasonable time to wait for feature films to come to nonindustry-owned theaters. Case where P sought declaratory relief (equitable claim) preventing D from filing suit, and D filed anti-trust legal counterclaim asking for damages. Race to the courthouse.

GENERAL RULE: legal claims must always be tried to a jury before equitable claims are heard by the judge. EXCEPTION: only if there will be irreparable harm to one of the parties if the equitable claim is not heard first.

The Declaratory Judgments Act specifically preserves the right to a jury trial for both parties. It follows that if D had been entitled to a jury trial in its antitrust action against P, D cannot be deprived of that right merely because P took advantage of the availability of declaratory relief to sue D first.

CLEANUP DOCTRINE - permitted a chancellor in a predominantly equitable action but with some legal issues/remedies to decide issues that ordinarily would have been decided by a jury in an action at law. This doctrine is still alive in state courts.

NO CLEAN-UP DOCTRINE IN FEDERAL COURTS. If mixed law and equity cases, law questions must be decided first so no issue preclusion and no effective denial of right to jury trial. In mixed cases, legal claims are tried to jury in priority. The jury decision will preclude the court's issue decision.

CURTIS v. LOETHER

Black woman brought Civil Rights Action under Fair Housing provisions claiming that apartment owner violated § 804(a) of 42 USC § 3604(a). That section permits a court to award P an injunction as well as "actual damages and not more than $1000 in punitive damages."

If action for violation of fair housing provisions of the Civil Rights Act is properly viewedas one for damages, then it is obviously a legal claim requiring a jury trial on demand. If the legal claim is joined with an equitable claim, the right to jury trial on the legal claim, including all issues common to both claims, remains intact.

Supreme Court will first ascertain whether construction of a statute is fairly possible by which constitutional question may be avoided.

Action for damages under the fair housing provisions of the Civil Rights Act was an action to enforce "legal rights" within the meaning of the Seventh Amendment decisions, and either party on demand was entitled to a jury trial. Curtis v. Lother

DAIRY QUEEN v. WOOD

Dairy Queen franchisee/licensor renegs on agreement. Dairy Queen asks for "an accounting" - styled as equitable relief, but Supreme Court says P actually wants damages. D has a right to jury trial due to damages request. D would want a jury to obtain local biases for it and possibly against a national corporation.

ROSS v. BERNHARD, 396 U.S. 531 (1970)

Shareholder derivative action suit in form like asking trustee for accounting - equitable. But Supreme Court holds right to bring suit is equitable, but claims against corporation in this case are legal claims. Therefore, either party may request a jury.

C. INCIDENTS OF JURY TRIAL / JURY SIZE

1. Federal juries - almost always composed of 12 people.

2. Although the common law required both 12 jurors and unanimity, the Supreme Court has permitted six-person juries but still required unanimity in federal courts. The rationale is that the Seventh Amendment requires only jury trials, not all the incidents of common law jury trials. See Colgrove v. Battin 413 U.S. 149 (1973).

3. The Supeme has allowed states to has permitted 12-man juries to have nonunimous verdicts and permitted 6-person juries. However, in Burch v. Louisiana, 441 U.S. 130 (1979), the Supreme Court held that it is unconstitutional for a six-person jury to render a nonunanimous verdict in STATE COURTS.

4. The use of less than a six-person jury in state criminal cases is unconstitutional. Ballew v. Georgia, 435 U.S. 223 (1978). The Court's reasoning (e.g., smaller juries are less likely to engage in accurate fact finding or to foster effective group deliberation, smaller juries have less diversity) would seem to apply to civil cases.

5. Excluding all daily wage-earners is improper. Theil.

28 U.S.C. § 1861 - provides juries shall comprise a "fair cross section" in federal courts. (Applies to grand and petit juries)

§ 1862 - discrimination is prohibited.

§ 1863(b)(5)(6) - can't have policemen, firemen, or state or federal employees.

§ 1865 - Qualifications: citizens of the U.S., age 18, speak and read English.

§ 1870 - each party has 3 peremptory challenges in civil cases. Discretion of court if multiple parties involved.

D. JURY SELECTION - THE VENIRE, VOIR DIRE

First Stage - Assembling a pool of jurors for the particular case (the venire). Normally a pool of jurors is selected from the voting lists or city directories. Individuals from this list are presented to eliminate persons exempt from service by statute - e.g., lawyers, doctors, teachers, persons caring for small children, and the like. Nonexempted person who are called to serve can establish an individual basis for exclusion from jury duty - e.g., personal or financial hardship, or an important occupation not within the statutory exceptions.</