Civil Procedure II, 1

I. Rule 11 The Lawyers Responsibility A. 11(a) Every document filed with the court must be signed, either by the representing attorney or the pro se litigant. B. 11(b) Every filing implicitly represents that there is a reason for it. That is: 1. The filing is not to harass or rack up lawyers fees for the other party 2. The party has completed competent legal research a. Attorneys have a duty to engage in competent legal research 3. All allegations have evidentiary support a. Attorneys have a duty to engage in fact-finding investigations to provide reasonable factual assertions i. However, the investigation does not need to be exhaustive, as that is the role of discovery 4. If denies any of s allegations, those denials must also be based on reasonable facts, or lack thereof C. 11(c) sanctions for violations of 11(b) representations 1. The court may sanction the attorney or other party for the violation a. Sanctions are imposed at the courts discretion 2. Safe Harbor Rule a. The moving party must serve the Rule 11 motion on the offending party before filing the motion with the court b. The offending party has 21 days to withdraw or modify the offending document c. If no action has been taken at the end of 21 days, the moving party then has the opportunity to file the Rule 11 motion with the court 3. The purpose of sanctions is deterrence from the repetition of the fault, not punishment for the violation a. The sanction may be monetary (i.e., a fine) or not (e.g., mandatory CLE regarding the topic of the violation) Pleadings A. Complaint 1. s pleading that initiates the lawsuit 2. Requirements a. Legal allegations i. How is entitled to remedy/damages b. Factual allegations i. Notice pleading standard A. Federal standard B. Requires fewer facts, a generalized factual allegation is sufficient for factual sufficiency 1. When pleadings are simplified, there are fewer 12(b)(6) motions (to dismiss for failure to state a claim) because pleaders usually get it right C. Rule 8 A short and plain statement of the claim showing that the pleader is entitled to relief. 1. Twiqbal (Twombly-Iqbal) Test: plausibility standard a. A bare allegation is insufficient for FRCP 8; only needs to make a plain and short statement of the claim, but still needs some factual sufficiency.

II.

Civil Procedure II, 2

Conclusory allegations are disregarded and the court determines whether factual allegations plausibly support s entitlement to remedy c. Potentially the federal system shifting to code pleading d. Applies to virtually all federal cases that are complex, or rather, that dont have FRCP forms D. See forms in Appendix of the FRCP for the minimal base requirements for notice pleading Code pleading A. Requires greater factual specificity B. Pleader required to provide ultimate facts regarding each element of the claim b.

ii.

B.

Answer 1. has 21 days after service of a complaint, or 60 days when service is waived, to file answer a. An answer must include i. A response to each allegation that made ii. Any affirmative defenses (e.g., those included in the non-exhaustive list in Rule 8(c)) A. Any applicable affirmative defenses that are not included in the answer may be deemed waived iii. Any counter-claims from the same transaction or occurrence that satisfy factual and legal sufficiency 2. may also not file an answer, or default, which is treated as having admitted all facts in court 3. may also file a pre-answer motion (a Rule 12 motion) a. Filing a pre-answer motion stays the 21 (or 60) day period (puts it on hold) b. may only file one pre-answer motion c. 12(b)(1-5) are about procedural deficiencies i. 12(b)(2-5) are considered waived if not raised in the pre-answer motion. 12(b)(1) (lack of subject matter jurisdiction) may never be waived, and 12(b)(6) may also later be raised as an affirmative defense in the answer. d. 12(b)(6) is about a substantive deficiency. i. In Cal, the equivalent of 12(b)(6) is a demurrer e. 12(e) is a fossil. The request for more details is disfavored, as the allegations are insufficient (warranting a 12(b)(6) motion,) or the requested info will come out during discovery i. If a 12(b) motion is denied, the answer must be filed within 14 days 4. How the factual allegations (provided in the complaint) will be treated at trial depends on how responds. a. An allegation is accepted as fact if admit or fails to deny it b. An allegation becomes a question of fact when denies it c. Rule 8(b)(2) a denial must fairly respond to the substance of an allegation i. Read with Rule 8(b)(4) a party that intends in good faith to deny only part of an allegation must admit any part that is true and deny the rest 5. must raise any applicable affirmative defenses in the answer. a. Any affirmative defenses not raised in the answer may be considered waived, and cannot raise them at trial. i. Rule 8(c) has a non-exhaustive list of affirmative defenses

Civil Procedure II, 3

C. Post-answer Rule 12 motions 1. 12(c) motion for judgment on the pleadings a. E.g., when admits all allegations without raising a valid affirmative defense OR has raised an airtight affirmative defense (e.g., statute of limitations) 2. 12(f) motion to strike a. Can also be raised by prior to filing answer b. On substantive gorounds (e.g., striking a request for punitive damages on a negligence claim) c. Because the contentious clause/allegation is unduly prejudicial (e.g., in products liability case, calling s cars death traps) Amendments 1. Rule 15 a change to the pleading a. Rule 15(a)(1) amendments as a matter of course (as a right) i. A party may amend their pleading once within 21 days A. After that partys filing of a pleading that does not require a responsive pleading (e.g., the typical answer) B. After the opposing party has filed a responsive pleading or a preanswer motion (e.g., the typical complaint) b. Rule 15(a)(2) If a party seeks to amend after the grace period, they may do so with: i. The opposing counsels written consent (which is unlikely) ii. The courts leave, which should be freely given when justice requires A. Foman test for when justice requires 1. Blameworthiness a. Is the moving party blameworthy for not having raised this issue earlier? E.g., i. Undue delay, no reason for waiting ii. Bad faith, filing to amend with no good reason iii. Futility of amendment, party has tried amending several times and cant seem to get their pleading right 2. Prejudice a. What unfair litigation disadvantage (not mere litigation disadvantage) will the non-moving party face as a result of this amendment? 2. Relation back Rule 15(c) a. A party may amend their pleading after the statute of limitations has expired when: i. 15(c)(1)(A) the law allows relation back ii. 15(c)(1)(B) the amendment arises out of the same transaction or occurrence as the original allegations iii. 15(c)(1)(C) changing the s name A. A may change the name of the if: 1. Rule 4(m) is satisfied, i.e., was served within 120 days 2. was put on notice about the lawsuit and will not be prejudiced 3. knew or should have known that there was a mistake about the name, and that was the true party a. Misnomer or scriveners error

D.

Civil Procedure II, 4

III. Joinder A. Rule 18 a party with claims against another party may consolidate and bring as many claims as it has 1. But just because the party may join a 3rd party doesnt mean the court has power (jurisdiction) to hear it 2. Not all the claims need to be related a. If the claims are related, then they can be consolidated into one trial, per Rule 42(a) b. If the claims are not related, then the court can order separate trials per Rule 42(b) B. Counter-claims 1. A claim a party () has against the opposing party () 2. Rule 13(a) Compulsory counter-claim a. Arises out of the same transaction or occurrence as original claim b. Court has supplemental jurisdiction if the counter-claim does not have an independent basis of subject matter jurisdiction c. If not raised during initial pleadings, the claim is considered waived 3. Rule 13(b) permissive counter-claim a. A claim has against that does not arise from the same transaction or occurrence b. Must have an independent basis of subject matter jurisdiction because cannot have supplemental jurisdiction C. Multiple s and s 1. Rule 20(a)(2) A may bring in multiple s in one lawsuit arising from the same transaction or occurrence AND involving a common question of law or fact, but a is not required to do so 2. Rule 20(a)(1) Cross-claims (the joinder of s) a. E.g., so and 1 can be co-s against 2 b. s can file separate lawsuits, though it is inefficient and is disincentivized by res judicata/claim preclusion 3. Rule 14: 3rd party practice a. Derivative liability only, not secondary liability i. i.e., If 1 is liable to , then 3rd party is liable to 1, but not It was 3rd party , not 1 b. Rule 14(a)(1) allows 1 to implead 3rd party without the courts permission if done within 14 days of serving the original answer c. Rule 14(b) allows counter-claimed to implead 3rd party s, following same rules/guidelines as 14(a) D. Rule 19: Required joinder 1. When there is an absent 3rd party 2. Rule 19(a)(1) Is the absent party necessary? a. An absent party is necessary if there is prejudice to either an existing party or the absent party, e.g., i. If could not get complete relief without joining the absent party ii. If could be subject to inconsistent obligations if the absent party were not joined iii. If absent party would be precluded from beginning a later suit b. Rule 19 is not about efficiency, but prejudice 3. Rule 19(a) If the absent party is necessary, is it feasible to join them? a. Rule 19 states that joinder of a necessary absent party does not interfere with subject matter jurisdiction b. But the court must have personal jurisdiction over the required party

Civil Procedure II, 5

Rule 19(b) if the absent party is necessary but may not feasibly be joined, is the absent party indispensable? a. How prejudicial would non-joinder be for either existing parties or the absent parties? (see above) b. Would have an adequate remedy if the action were dismissed for lack of joinder, i.e., is there an alternative forum where could file and all parties could be joined? 5. Rule 12(b)(7) motion to dismiss for failure to properly join a party under Rule 19 Class action Rule 23 1. A single lawsuit that resolves the claims of not just one person or just the class representatives, but of many other people similarly situated. Has the advantage of efficiency 2. Procedurally, begins with a suit filed by a class representative, followed by a motion for class certification 3. Requirements a. Implicit requirements i. Identifiability A. A description or definition of the class which is sufficiently unambiguous that class members may be identified with reasonable effort ii. Membership A. The class representative must be a member of the class b. Explicit requirements i. Numerosity A. The absent class must be too numerous for practical joinder of individuals 1. If the class has more than 40 members, numerosity is presumptively satisfied 2. If a class has 21 or fewer members, numerosity is presumptively unsatisfied B. Geographic diversity of a class may also be a factor C. Ability of individual class members to bring separate suits 1. Based on the size of the claim. Individual claims might be too small to justify pursuing, but together make a justifiable claim D. Question of practicability ii. Commonality A. All class members must share a common question of law or fact iii. Typicality A. The class representatives claim must be fairly typical of the c laims of the whole class 1. The class representatives claim cannot be significantly more than the typical claim 2. The class representative should have the same incentive to litigate compared to the rest of the class iv. Adequacy A. Of the class representative 1. The class representative must have a straightforward relationship with the class attorney a. I.e., there is no [appearance of] a conflict of interest 4.

E.

Civil Procedure II, 6

Class representative must be representing not only their own claims, but the claims of all class members 3. Adequacy of representation is a constitutional due process issue 4. Important not only during certification but through entire class action litigation process B. Of the class attorney See Rule 23(g) 1. The court must approve the class counsel 2. Counsel must fairly and adequately represent the class a. There should be no conflict of interest that would cloud representation 3. The attorney should be sufficiently skillful to make decisions on behalf of absent class members a. The attorney should have experience in complex litigation b. The attorney should be knowledgeable in the substantial law being litigated 4. Class counsel should have financial and administrative resources to handle the case 5. This is especially important in 23(b)(3) class actions because the absent class members need reasonable individualized notice of the suit Once all the requirements are satisfied, class action must be classified as one of the following a. Rule 23(b)(1) prejudice class action i. Proceeding without class action could prejudice against a group A. A party could be subject to inconsistent obligations without a class action B. OR could prejudice against individuals within a group 1. E.g., limited funds 2. Later claimants get no relief because prior claimants depleted the funds. By creating a class, later claimants are not prejudiced against and all claimants have an opportunity for relief, as in pro-rata distribution of the fund b. Rule 23(b)(2) injunctive class action i. Requesting the court require a party to do or stop doing something ii. Needs to seek indivisible relief to satisfy A. An injunctive class may also seek damages, provided they neither 1. Predominate over injunctive relief 2. Require individual calculations c. Rule 23(b)(3) damages class action i. Seeking monetary relief for s A. Small claims 1. Class actions make these otherwise infeasible claims viable B. Mass torts 1. Each claim may be individually viable, but a class action increases individuals bargaining power, and allows to engage in a single resolution of the issue ii. Requires satisfaction of 2 elements 2.

4.

Civil Procedure II, 7

Predominance (super-commonality) 1. Common questions of law and fact that both a. Bind claims together b. Predominate over individual claims B. Superiority 1. A class action should be superior to pursuing individual suits 2. 4 factors a. Class members interest in individually controlling separate actions i. As individual damages sought rise, class action becomes less likely, as individuals want to better control how much they receive in damages b. Current litigation about the incident i. If individual lawsuits are already underway a class action may not be superior, as claims are showing to be independently viable c. Desirability of litigating in this forum i. Whether this forum is procedurally efficient or near witnesses and other evidence d. The catch-all factor i. Likely difficulties in managing a class action ii. Practical problems in proceeding as a class action versus individual claims iii. See Wal-Marts hyper-numerosity iii. Damages class actions also require individualized notice to all absent class members identifiable through reasonable effort, per Rule 23(c)(2)(B) A. This notice must be the best practicable form of notice B. This notice must also give absent class members instructions on how to opt out and therefore not be bound by the resolution 1. If a class member chooses not to opt out, then they are bound by the resolution and cannot pursue individual litigation Rule 23(f) allows for appeal, possibly immediately, of class certification Personal jurisdiction a. Individualized notice with information on how to opt-out is sufficient to satisfy due process concerns for 12(b)(3) clauses i. Personal jurisdiction is more important for s, since they have the burden of securing counsel, they are subject to discovery, they must travel to the location of litigation, and they stand to lose in the judgment. Class s dont need to be involved in the litigation process, dont pay costs, and arent liable for losing; their only burden is that theyre bound by the resolution. Subject matter jurisdiction a. Federal question jurisdiction when the action is brought under a federal claim b. Diversity jurisdiction i. Traditional A.

5. 6.

7.

Civil Procedure II, 8

A. Diversity of citizenship 1. Determined by class representative(s) and a. Dont need to look at absent class members B. Amount in controversy 1. Satisfied when class representatives claim satisfies amount in controversy (>$75k) a. Exxon rule: absent class members whose claims fall below the amount in controversy are still involved in the claim through supplemental jurisdiction Class Act Fairness Act (CAFA) A. Legislative intent to federalize nation-wide class action suits, and avoid forum shopping B. 28 USC 1332(d) 1. Minimal diversity for diversity of citizenship a. Any class member has to be diverse from any 2. Damages in all claims, once aggregated, must exceed $5m C. To qualify under CAFA, a class must also consist of at least 100 members

ii.

c.

8.

9.

Removal i. Any may remove, no unanimity required ii. Local rule doesnt apply A. A may remove even if a citizen of the forum state iii. No statute of limitations on removal A. CAFA eliminates the general 1-year statute of limitations for diversity d. 28 USC 1332(d)(4) the court must decline jurisdiction when the class has very strong ties to the forum where filed i. 2/3 or more of the class members are citizens of the forum state; ii. At least 1 is a citizen of the forum state; AND iii. The principal injury or injuries occurred in the forum state Settlement Rule 23(e) a. Court must approve a class action settlement to confirm that absent class members are sufficiently protected b. The class must be notified, but the court has discretion as to the type. Individual notice is not required c. Settlement also requires a fairness hearing which brings in interested parties to present the settlement proposal to the court i. The court may also use this opportunity to give 23(b)(3) class members another chance to opt-out Attorney fees Rule 23(h) a. Court may award reasonable attorneys fees to class counsel i. This may be after a hearing on fees ii. Fairness hearings for settlements are also to allow the court to confirm that attorneys fees are fair b. For 23(b)(3) classes, damages are usually distributed from a common fund, which also pays attorneys fees i. Lodestar method A. Attorneys typical hourly rate * number of hours worked on case

Civil Procedure II, 9

Rough approximately of class counsels earned fees, not accounting for other factors like risk or difficulty C. More precise but can be most of the common fund ii. Percentage of recovery A. Attorneys fees are determined by a set percentage of the common fund. B. Far more imprecise because does not reflect the amount of work that class counsel put in, but is more fair to class members American rule i. Each party pays its own costs and fees A. Unless an applicable statute or contract provides for fee shifting B.

c.

IV.

Discovery A. Rule 26(f) 1. After pleadings, parties attend a 26(f) conference where the parties meet to a. Discuss the case b. Discuss the nature or basis of claims and defenses c. Plan for discovery d. Discuss possibilities for resolutions and of settlement e. Make or arrange for initial required disclosures 2. Within 14 days after the 26(f) conference, a report summarizing the conference must be submitted to the court B. Rule 16(d) 1. After the 26(f) conference, the parties appear in a Rule 16(d) conference before the court to a. Approximately how long the process will take b. Set a discovery cut-off date c. Set a trial date C. Required disclosures 1. Rule 26(a)(1) initial required disclosures a. Names and contact information for people who can provide testimony that is favorable to the disclosing party and who the disclosing party may use at trial b. Documents that a party may use to support their claim or defense c. The claimant must provide a computation of damages with supporting documentation d. The defendant must provide information about insurance that may provide coverage in this particular lawsuit 2. Rule 26(e) supplementing discovery a. A party must supplement within a timely manner when i. The initial disclosure was incomplete or incorrect ii. This disclosure was initially unknown 3. Failure to make a required disclosure a. No meet and confer requirement as parties already met and conferred, but something was not disclosed b. The other party can move to either i. Compel the party to disclose ii. Sanction the non-disclosing party D. Formal discovery 1. Rule 26(b)(1) Parties may obtain discovery regarding any non-privileged material that is relevant to any partys claim or defense.

Civil Procedure II, 10

a. Relevance or materiality i. The evidence sought must relate to a disputed issue ii. The evidence sought must be of a probative value A. There is a low threshold for determining whether evidence is probative whether it wiggles the mind in one direction of the other Privilege i. Privilege protects sources from giving away the privileged information, but doesnt necessarily protect the information from being discovered ii. E.g., doctor-patient privilege iii. E.g, 5th amendment privilege against self-incrimination iv. E.g., attorney-client privilege A. Protection of communications which are 1. Confidentially made a. Reasonably confidential, i.e., in the attorneys office but not in a bar 2. For a legitimate purpose a. Relating to the professional relationship between attorney and client, e.g., i. Legal advice ii. Disclosure of facts about this particular case or transaction iii. Discussions with potential clients to determine whether the attorney will take the case iv. Crime-fraud exception: seeking an attorneys advice to commit a crime or fraud is NOT a legitimate purpose 3. From or to the attorney OR from or to the client 4. Not waived a. The client, not the attorney, holds the privilege, which protects the client, not the attorney i. But the attorney must claim the privilege on behalf of the client b. The client waives the privilege by discussing the protected subject matter with a third party c. For corporate clients i. Attorney-client privilege protects communications made between the attorney and the client corporation, including low-to-mid-level employees (Upjohn) v. Rule 26(b)(3) Trial preparation material or work product A. A document or other tangible thing prepared for or in anticipation of litigation by a party or a partys representative B. 26(b)(3)(A)(ii) Ordinary work product 1. Qualified immunity. There is a presumption against disclosure unless there is BOTH a. A substantial need

b.

Civil Procedure II, 11

Undue delay that leads to a substantial hardship does not waive ordinary work products qualified immunity. b. Undue hardship to get substantially equivalent material by other means 26(b)(3)(B) opinion work product 1. Absolute immunity for an attorney or other party representatives a. Legal theories b. Mental impressions c. Conclusions d. Opinions i.

C.

2.

Discovery devices a. Interrogatories Rule 33 i. Written questions sent by one party to the other A. Parties must answer, non-parties have no obligation to do so ii. A party may submit up to 25 interrogatories A. Unless there is a court order or an agreement between parties iii. Answers to interrogatories are considered to be under oath, and so must be answered truthfully and in good faith, under penalty of perjury iv. Responses must be submitted within 30 days v. A party may object on the basis of relevance or privilege b. Rule 36 requests for admission i. Not to uncover information, but to eliminate undisputed issues that dont need to be established at trial ii. The responding party may admit, deny, or object iii. The responding party must respond within 30 days A. Failure to respond has the same effect as admission iv. A partys admission does not affect other or subsequent proceedings v. There may be sanctions on a party that refuses to admit something which is later found to be true, per Rule 37(c)(2) A. But a party doesnt need to admit something just because there is some evidence, like witness testimony c. Depositions i. Rule 31 written deposition A. Written questions are delivered to the deposition officer, read to the deponent, whose answers are transcribed 1. A party may object to any written question 2. Not the preferred method, because there can be no follow-up questions ii. Oral depositions A. Attended by the deponent, counsel for both parties, and a reporter or transcriber B. Allows a party to pin down a deponents story, as depositions are taken under oath. C. Allows for spontaneous follow-up questions iii. Rule 30(a) Limits on depositions A. Each party only gets 10 depositions

Civil Procedure II, 12

Any combination of written or oral Unless otherwise ordered by the court or agreed upon by the parties B. A deponent can only be deposed once C. A deposition may only last 7 hours on one day Requesting documents i. From parties A. Rule 34 a party can request from the opposing party: 1. Documents a. Rule 34(a), either i. Paper documents ii. Any medium used for capturing information 2. Property inspection ii. From non-parties A. Rule 45 a party can subpoena a non-party for documents iii. No limits to requesting documents iv. Scope of requests A. A party may make a broad request for documents, as the requesting party doesnt have all the details, and needs that document to get that information B. If the responding party thinks the request is too broad, the parties will meet and confer to see if the request for production of documents can be more narrowly drawn or specific in scope v. Costs A. The requesting party pays the price of making copies of documents B. The responding party absorbs costs of gathering and reviewing documents vi. There is no required disclosure of adverse evidence unless the other party requests it Court-ordered examinations Rule 35 i. On behalf of the other party when the examined partys physical or mental condition is in controversy, with good reason A. The court can only order an exam that is directly related to the specific injury or condition in controversy B. The court can only order an examination of a current condition 1. I.e., no court-ordered exam if there was a condition which has been healed or cured C. The party seeking the exam must designate a suitably licensed, certified, or otherwise qualified examiner ii. Rule 35(b) exchange of information A. When is successful in getting a court-ordered examination, can obtain the exam report by asking for it 1. By requesting that report, waives medical privilege on that condition and can therefore request whatever records has on it Witness statements i. When witness is otherwise unavailable for trial, e.g., 1. 2.

d.

e.

f.

Civil Procedure II, 13

A. B. C. D. g. Witness has died Delay means memory has faded Witnesss whereabouts are unknown Witness is far away from where the suit was filed

h.

Experts i. Expert witness A. Somebody with specialized knowledge about an uncontested issue, whose testimony would be helpful to the trier of fact (i.e., the jury) B. Rule 26(a)(2) 1. A party who has retained an expert to give expert testimony has to disclose the experts name tot eh other party 2. The expert must provide an elaborate written report with: a. The experts opinion b. The basis for that opinion c. The experts qualifications 3. They must disclose the compensation given to the expert 4. These disclosures must occur at least 90 days before trial, UNLESS a. Court order b. Parties agree otherwise C. Rule 26(b)(4) the other party cant depose the expert until after the disclosure of the name and report D. Rule 26(b)(4)(B) previous drafts of the experts report are protected as work product. Only the final, disclosed report is available Ensuring compliance i. Rule 26(g) discovery analog of Rule 11s signature requirement A. Considered certification of both 1. Good faith 2. Reasonableness of requests and responses ii. Rule 37 the mechanics of handling discovery disputes iii. 37(a) motions to compel disclosure A. First parties must meet and confer B. 37(a)(3) initial disclosures and discovery responses may be compelled C. 37(a)(4) evasive or incomplete disclosures are deemed failure to respond iv. Sanctions A. 37(b) for failure to comply with court order 1. Unless failure was a. Substantially justified b. Otherwise harmless B. 37(c) for failure to either 1. Disclose per 26(a) 2. Supplement per 26(e) 3. Sanctions determined by what is appropriate for that failure

V.

Resolution without trial A. Default Rule 55

Civil Procedure II, 14

never answers the complaint and never shows up to defend in the lawsuit a. Rule 20 has 21 days to respond when personally served with complaint. Default when no response at the end of 21 days 2. Entry of default a. Court must accept written request to enter default when i. Presented to court clerk ii. With affidavit stating A. was served on [date] with complaint and summons B. Time allowed for responding expired C. failed to appear D. is neither 1. Minor, nor 2. Incompetent b. Entry into default cuts off s right to appeal, though can still seek courts permission to be allowed to respond 3. Entry of default judgments a. Default judgments are final judgments b. Must specify the amount of damages owes i. Entry of default judgments by court clerk A. Rule 55(b)(1) when damages are for a sum certain ii. Entry of default judgments by the court A. In all other situations 1. Prove up hearing a. has to present proof of damages b. Subject to proof, court can then calculate the amount of damages owed c. can show up to the prove up hearing to rebut the damages sought 4. Setting aside a default judgment Rule 55(c) a. The court may set aside an entry of default judgment for good cause i. Mistake ii. Excusable neglect iii. Fraud b. Though the longer it takes to request the court set aside the default judgment, the less likely the court is to do so Dismissal 1. Rule 41(b) Involuntary dismissal a. The foot dragging i. Repeated delay with no justification ii. Delays are prejudicial to iii. Considered a dismissal on the merits, so cannot re-file b. For procedural reasons i. Lack of jurisdiction either Rule 12(a) or Rule 12(b) ii. Failure to join a Rule 19 party iii. can re-file when the procedural defect is remedied c. As a sanction i. For violating a court order 1.

B.

Civil Procedure II, 15

ii. Considered adjudication on the merits 2. Voluntary dismissal a. 3 situations for voluntary dismissal i. Rule 41(a)(1)(A) voluntary dismissal as a matter of right A. Filing before answer or motion for summary judgment, whichever comes first ii. With s consent A. Usually because parties have settled iii. Upon court order A. If has already filed an answer, can file a motion to voluntarily dismiss the case 1. Court has wide discretion in granting the motion b. Voluntary dismissal is without prejudice i. Subject to the 2 dismissal rule A. The second time a voluntarily dismisses, it is considered a dismissal on the merits Summary judgment Rule 56 1. To determine whether the case should go to trial at the end of discovery a. I.e., to determine whether there is a genuine issue of material fact for a jury to decide b. The moving party must also show that they are entitled to judgment as a matter of law 2. s 3 burdens a. Pleading i. Sufficient allegations to maintain a claim b. Production i. Sufficient evidence as to each element of the claim c. Persuasion i. In criminal cases A. Beyond a reasonable doubt ii. In most civil cases A. Preponderance of the evidence, more likely than not 3. So to succeed in summary judgment, must show that lacks proof as to one or more elements of the claim a. Approaches to show lack of proof i. Affirmative A. produces evidence that negates an element of s claim 1. Not enough to say a witness might not be credible a. But can point to specific doubts as to witness or party credibility B. Can only be used by s seeking summary judgment against s claim ii. Reactive A. Moving party examines record, and can point to the absence of evidence from the record that would support the non-moving partys claim Judgment as a matter of law Rule 50(a) 1. When no reasonable jury could find for the non-moving party

C.

VI.

Trial A.

Civil Procedure II, 16

As opposed to summary judgment, which is whether there is even a question of fact which would require a jury b. Because the moving party did not satisfy their burdens of i. Pleading ii. Production iii. Persuasion A. Equipoise 1. The burdened party failed its burden of persuasion when there are two equally plausible interpretations with no way to further determine what happened 2. Rule 50(b) renewed motion for judgment as a matter of law a. Only allowed when the moving party moved for judgment as a matter of law BEFORE the matter went before a jury b. Only succeeds when the evidence as presented to the jury would not allow a reasonable jury to find for the non-moving party 3. Judgment as a matter of law results in a final judgment in favor of the moving party a. Not likely, because judges would rather allow a jury to hear and weight the evidence instead of having an appellate court remand a judgment as a matter of law i. I.e., judges would rather have the jury be wrong than be wrong themselves Rule 59 Motion for a new trial 1. 2 categories of justifications for granting new trial a. Flawed proceedings i. Garbage in, garbage out ii. Error occurred during trial, e.g., A. Court admitted evidence it should not have B. Court did not admit evidence it should have C. Impermissible closing argument D. Jury member(s) conducted independent investigation iii. If the court decides error was not harmless, then there is a new trial b. Flawed verdict i. Garbage out ii. The verdict goes against the great weight of the evidence A. Scrutiny for jury verdict 1. Less scrutiny/greater respect when the case involves simpler issue 2. Greater scrutiny when the case involves complex issues 2. Limited to damages Rule 59 a. Remittitur i. Jury has awarded excessive damages A. Damages so excessive they shock the conscience B. Damages that go against the great weight of the evidence ii. Court must give the choice between A. A new trial on damages B. Accepting a smaller, specified award iii. The can only be awarded the highest reasonable amount iv. Available in both federal and state courts b. Additur a.

B.

Civil Procedure II, 17

i. Jury has awarded inadequate damages A. Damages so inadequate they shock the conscience B. Damages that are clearly unsupported by the evidence Available in some state courts, but not in federal courts

ii. VII.

Respect for judgments A. Claim preclusion (res judicata) 1. Policy a. Finality i. Allowing parties to put litigation to repose, avoiding hauntings by the same litigation b. Efficiency i. More efficient to litigate claims together than separately c. Consistency i. Avoid inconsistent judgments that would undermine the judicial process 2. Same claim a. Based on test that first court would have applied b. Same transaction or occurrence i. Whether facts A. Are related in time B. Are related in space C. Are related in origin D. Are related in motivation E. Form a convenient trial unit F. Were understood by parties as a convenient trial unit c. Same evidence i. Whether the evidence required to prove the first and second claims is substantially the same d. Primary rights i. Whether the same primary right is at issue in both lawsuits 3. Valid final judgment a. If court had jurisdiction 4. Final judgment on the merits 5. Same parties or their privies a. Privity i. Substantive legal relationship A. Successive property owners 1. Buying land means buying the rights and obligations of that land B. Trustee-beneficiary C. Executor of estate heirs ii. Procedural representation A. Class action: class representative and absent class members are in privity iii. Being joinable does not itself establish privity A. Unless the joinable party exercised control over the litigation process 6. Consistency

Civil Procedure II, 18

a. b. VIII. If does not raise a compulsory counter -claim, it is considered waived If waives a compulsory counter-claim, is precluded from subsequently litigating that [counter-]claim

Respect for judgments A. Claim preclusion (res judicata) 1. Same claim 2. Valid final judgment a. Valid i. Issued by a court with A. Subject matter jurisdiction B. Personal jurisdiction C. Authority to have heard the case b. Final i. Judgment rendered by a court or court clerk ii. Split on whether an appeal maintains finality 3. Judgment on the merits a. As determined by a trier of fact i. Judgment based on a jury verdict b. As determined by the judge i. Judgment as a matter of law ii. Summary judgment c. By s failure to prosecute i. Presumably because of lack of merits d. Sometimes on the merits 12(b)(6) i. On the merits when dismissed with prejudice ii. Not on the merits when dismissed without prejudice e. Dismissals for procedural defects are not judgments on the merits, i.e., i. 12(b)(2) lack of personal jurisdiction ii. Failure to join f. Dismissal as Rule 11 or Rule 37 sanction i. Technically not a judgment on the merits, but treated as such to give the sanction teeth 4. By the same parties or their privies a. Parties that are considered in privity i. Pre-existing substantive legal relationships A. E.g., successive owners of property ii. Agreement to be in privity iii. Adequate representation A. Trustees B. Guardians C. Fiduciaries iv. A party who assumed control over the prior litigation v. A party who lost as an individual and then returned as the class representative in a class action vi. Special statutory schemes b. Parties that are not considered in privity

Civil Procedure II, 19

i. Parties that are close enough A. Close enough isnt good enough B. Because every party deserves its day in court

B.

Issue preclusion 1. Same issue a. So if chops down s tree, sues for trespass and wins, then does it again i. No claim preclusion, because different transaction or occurrence ii. Issue preclusion because same issue of trespass b. Includes evidentiary issues i. and in civil and criminal courts for same claim A. Civil court requires preponderance of the evidence but criminal court requires proof beyond a reasonable doubt 1. So if wins in criminal court, the issue may be precluded in civil court 2. If wins in civil court, the issue is not precluded in criminal court 2. Issue was actually litigated and determined in action #1 a. That is, the issue or claim was not dismissed for a procedural defect 3. Determination of issue was essential to the judgment a. Generally not in contention when 1st won against for same issue b. But an issue when wins in general verdict is in contention because i. Alternative bases for judgment A. could have won because either 1. did not provide sufficient proof 2. had successful affirmative defense B. Approaches 1. Old, less common rule a. But alternative determinations are essential to the judgment 2. New, majority rule a. Neither alternative is essential to the judgment C. On appeal 1. Only the grounds that are upheld are deemed essential to the judgment 4. Valid final judgment a. Same rules as claim preclusion 5. Between same parties and their privies a. Same rules as claim preclusion b. Plus requirement with a split of authority i. Mutuality A. Issue preclusion is only available to parties or their privies ii. Non-mutuality A. Issue preclusion may be available to 3rd parties who were not privy to the first action 1. Though not for offensive issue preclusion against the U.S. government for policy reasons B. Factors against non-mutual offensive issue preclusion

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1. Easy joinder a. Parties in action #2 could have been joined in action #1 i. Though courts wont force joinder on somebody, as when parties live in different states 2. Procedural differences a. I.e., if lacked significant procedural opportunities in action #1 that were available in action #2 3. Prior inconsistent judgments Factors for non-mutual offensive issue preclusion 1. Incentive to litigate a. s incentive to defend itself in the first lawsuit b. Foreseeability of future lawsuits arising from the same transaction or occurrence, or issue

C.

6.

Types of issue preclusion a. Offensive i. When issue has previously been decided in s favor and wants that same result b. Defensive i. When issue has previously been decided in s favor and wants that same result