CIVIL PROCEDURE II
COOPER
1/12: Introduction
Two Approaches
1. Top-Down: SMJ, PJ
2. Bottom-Up: lawsuit from beginning to end
Drafting the Rules
 Speed vs. Quality
o We want lawsuits to go fast, but we want to reach the correct resolution
o In drafting rules, constantly making decisions about how the rule should go and
what the policy consequences would be
 Could require every case to go to trial (only 3% of cases go to trial)
Folklore of LitigationUS litigation is out of control
 Growing number of filings
 Growing awards, especially in torts
 “Junk lawsuits”
Court filings:
 Are evenly divided between civil and criminal
 Have increased over the last few decades
 Have grown faster than population
 Do NOT consist primarily of tort claims
US Civil Filings
 91 million cases a year (1 for every 3 persons; 3/5th of those lawsuits are traffic and other
ordinance violations)
 As compared to world litigation rates, US isn’t too high
o BUT…Japan has 1 lawyer per 9000 pop; 1 judge per 80,000
o US has 1 lawyer per 300, 1 judge per 27,000
o Germany has 1 lawyer per 1000, 1 judge per 3500
 Overwhelmingly, cases are resolved by settlement
How do the other 97% of cases that don’t go to trial get resolved?
1. Default
2. Pretrial motions
3. Settlement
Litigation Rates
 Increase in litigation (24% increase but trending down in recent years)
 More lawyers
 Three stories:
o Litigation explosion
1
o Economic growth
o New industry: market alternative to regulation
Overwhelming number of cases take place in state courts as opposed to federal courts. Why?
Federal courts have limited jurisdiction. Need a federal question or diversity jurisdiction.
Most plaintiffs who win at trial recover between less than $50,0000. Why?
Contract vs. Tort Filings
 More contract filings than tort
 Contract: 60% of filing but only a 1/3 of trials. Why? They settle.
o Plaintiffs mostly win: 65% of K trials
o Median award: $45K
 11% of plaintiffs recovered $1M +
 Punitives in 6% of K cases
o Average date from filing to resolution: 8 months
 Tort: 40% of filings but account for most (65%) of trials
o Plaintiff’s lawyers are paid contingency fees
o Plaintiffs mostly lose (win 48% of cases)really about 50/50
o Median award: $27,000
 7% recovered more than $1M
 Punitives in 5% of cases
o Average date from filing to resolution: 14 months
Explain how the statistics mean it’s probably wrong to think--- That streamlining jury selection would bring many cases to a swifter conclusion
o Answer: only 3% go to trial
 That eliminating federal diversity jurisdiction would swamp state courts
o Answer: state courts already account for the majority of filings
 Problem 1(e) on page 266: settle high-stakes cases (almost never go to trial)
Financing Litigation
 Who pays the costs of lawsuits in the US?
o Attorneys’ fees
o Borne by society: courtroom, judge
 Who pays for attorneys’ fees?
o American Rule: each side bears their own costs of litigation
 Plaintiffs can bring lawsuits without the fear of paying for defense’s legal
fees
 What does not get brought? A case with a good claim but low damages
o English Rule: the loser pays both sides attorneys’ fees
 Encourages strong but low-damage cases
 Discourages high-cost litigation
o Problem 1 on p. 293:
 (a) Andy won’t bother bringing the lawsuit
 (b) Irma will settle
2

How are fees calculated?
o Hourly rate
 Retainer fee
o Contingency
 Certain percentage of recovery
 Only get paid if you win
 Standard agreement:
 20% before filing
 25% if filed but settles before trial
 33% if it goes to trial
 50% if it goes to appeal
o Flat rate
 Usually used in wills & estate cases; divorce; etc.
Imagine a case: Bruce, injured in auto accident consults lawyer. What does lawyer want to
know? Why will lawyer want to know about damages and liability in detail—early in the
interview?
 Who typically pays for this lawyer?
o Possibly insurance (mainly only defense)
o If not, he will pay by contingency fee (Why? He doesn’t have the $ to pay on an
hourly basis)
Civil Litigation Financing--a hybrid system
 Fee-for-service (with variations): prevalent in commercial litigation
 Fee-spreading: insurance & contingent fees: prevalent in p.i. & tort litigation
 Fee-shifting statutes: prevalent in civil rights and “public” litigation
o Rule 11 motions
 What about the rest: some private philanthropy, some public subsidy, some mixtures
o Legal aid, pro bono work: what categories of cases?
What cases get left out?
1. Damage claims for amounts too small to justify legal work involved
2. Non-monetary relief in non-fee-shift cases
a. Divorce, child custody
3. Defendants
a. Judgment proof parties won’t be sued
What cases will get brought?
 Plaintiffs bring strong cases with high damages
 Defendants will defend weak cases where lots of money is involved
Review:
 Amount of litigation
o Fear of litigation drives settlement
 Cost of legal services
o Affect what kind of cases are brought
3
o Drives procedural decisions
1/19: Pleading
Pleading is about telling stories:
1. 16th Century Complaint
a. What is going on here?
i. Plea is to the jurisdiction of Nottingham (“to the Sheriff of Nottingham”)
ii. John Smith had a horse that he took to Richard of Nottingham who put the
nail in the wrong part of the foot to make horse lame. Smith wants
damages.
b. Heavy emphasis on procedure
i. What happens next after this complaint? Sheriff summons them to the date
given in the complaint (“octave of St. Michael”) to have a trial
c. Damages: we don’t have an explanation of what makes up 100 shillings
2. Modern Complaint
a. Some of the story. What is going on here/why is he entitled to relief?
i. Defendant ran over plaintiff with his car on specific date (July 1, 2008)
b. Jurisdictional statement
c. Specific damages: defendant gets much more info about damages (list of things
that make up amount of damages)
d. Less emphasis on procedure
Eras of Pleading:
1. Common law: the writs and all that (1200-1850)
o Technical forms
o Court had to acknowledge complaint was appropriate
o Criticisms:
 Had to fit claim into some sort of formula (often times, what was in the
complaint didn’t bear any relationship to what actually happen)
 Almost no discovery
2. Code Pleading: just the facts (1850-1938)
o Shift from formulas to putting a lot of facts in the complaint
o Requiring pleading a lot of facts isn’t fair to plaintiff because they may not know
exactly what happened/all the facts
3. Notice Pleading: just give me a hint, please? (1938– 2007???)
o 1938: FRCP were promulgated
o See Rule 8(a)broad discovery
o Won’t kick out a lot of cases at this stage; easy to pass the complaint phase
o A lot of pressure of discovery system and a lot of unmeritorious cases survive
longer than they should
4. Post-Twiqbal Era: ??? (2007- )
o Two major Supreme Court cases (see below)
o Seemingly moving us away from notice pleadings
Rule 8(a):
A pleading must contain:
1. a short and plain statement of the grounds for the court’s jurisdiction…
4
2. a short and plain statement of the claim showing that the pleader is entitled to relief; and
3. a demand for the relief sought….
Problems of Pleading:
 Incompatible goals:
o 1. Learn as much as we can at the start of the case so we can screen out weak
cases cheaply
o 2. Eliminate technical barriers to cases that will be meritorious if they can get to
discovery
 Notice pleading does well at #2, less well at #1.
o Only cases which it screens are those where pleader lacks legal basis for claim
o Facts get screened later
Example of a Modern Complaint: Michael Haddle’s Story
 What happened to Michael Haddle that caused him to want to bring a lawsuit?
o He claims he was wrongfully fired because he was going to testify about his
boss’s indictment on several counts of fraud
 How was that story transformed to get it into federal court?
o Brings the claim under 42 USC § 1985(2)--this was passed to protect newly freed
slaves
o But his lawyer fits it in because Haddle was injured “on account of his having so
attended or testified”
 Why did he do this?
o Cannot bring a CL claim for wrongful discharge in GA
o May be a reason he wants to be in federal court (usually defendants want to be in
federal court)
o This statute has a fee-shifting provision--here, if plaintiff wins, he can collect
attorneys fees
Who do you write a complaint for?
 Judge
 Defendant
Drafting a Complaint:
 Form 11 & 12; Model complaint on TWEN
 Remember to include a civil action #
 Would see girls in the car, the corporation as owner of the car (would not sue insurance
companies)
 Headings are something that lawyers put in to make complaint more clear and organized
 Rule 8(a)(1): jurisdictional statement (needs to include: “The amount in controversy,
without interest and costs, exceeds the sum or value specified…thus jurisdiction is proper
under 28 USC § 1332”)
 Statement of venue: venue is proper if substantial part of events of claim occur in said
district
 Rule 8: pleading in the alternative (reason why we can say “defendant Dolt or defendant
Drip willfully or recklessly or negligently…”
5


Defense must accept or deny each statement
Prayer for relief: include “such other damages that may come up in trial”
1/24: Jones v. Clinton, Ch. 1: The Complaint
Case Planning:
1. Investigation begins immediately. It does not wait for discovery to begin.
a. What questions would you ask her? Who? What? Where? When? Develop
sources of proof.
i. Ex. Who she talked to immediately following--gives it some sort of
credibility (included in the complaint)
b. What kind of relief does she want--initially, she just wants to clear her name
2. Develop “theory of the case”
a. “Case theory … has been defined as the ‘basic underlying idea that explains not
only the legal theory and factual background, but also ties as much of the
evidence as possible into a coherent and credible whole.’ The theory of the case
should be expressed in simple declarative sentences that combine the legal theory
with central factual assertions…. Once a case theory is selected, it serves as the
centerpiece for all strategic and tactical decisions in the case….”
b. Plaintiff’s theory: “that Governor Clinton abused the power of public office, using
it to discriminate against Jones, a woman government employee, by treating her in
a way that a male employee would not have been treated and by engaging in acts
that were tortious as well as discriminatory”
3. Translation of sexual harassment claim into a constitutional claim:
a. § 1983 claim so that a private actor can bring a claim against Governor Clinton,
who acting under the color of law as an actor of the state
b. To get a longer statute of limitations because Title VII has expired
Color of Law Claim:
 Paragraphs 9 to 14 (facts showing that Clinton and trooper were acting under color of
law…as an actor of the state)
 Corresponds with element 1 of Count I
Strategic Decisions:
1. Graphic details
a. Pro: shock value, puts pressure on Clinton immediately, lends some credibility
(very detailed)
b. Con: blame the victim, may offend some people
c. Pro/Con: plaintiff must prove all details. If defense can prove that one was
inaccurate, lose credibility
2. Jury trial demanded
a. Pro: want to make sure that they avoid the politics of it (federal court, judge
appointed by a Democrat/Clinton; jury has more sympathy and emotion than
judgebigger award, plaintiff-friendly
b. Con:
3. Filed in federal court (could have filed in state court)
a. Pro: broad discovery provisions in FRCP, make up of jury pool
6
b. Con:
4. Didn’t sue magazine for libel
a. Burden of proving libel is much harder
5. Prayer for relief—separated each count under relief to make it clear by four counts (a, b,
c, d) because some were against Clinton and some were against both Clinton and
Ferguson. Wanted to make it clear to the opposition.
a. Pros = clarity, emphasis, shows makes it sound worse because there are a number
of claims. Repetition hurts harder.
b. Cons = not many, pros outweigh any miniscule cons there may be. Longer, more
to read, more convoluted, may look like she is trying to find more problems than
there are.
6. Included a lot more facts than they needed to. They wrote it like a chapter in a book-written like you could put it in a magazine article rather than a more legal document. Cite
paragraph 39. Offend the sensibilities of the court because of this and the length. Maybe
some of it is a bit speculative. No facts as to how her rep was damages. (π 44) “Clinton
knows...” (paragraph 51) and answer “denied.”
a. Pros = more info because so public – may have been good since it became so
public.
b. Cons = offend the sensibilities of the court. Only reason allowed is because so
public. Judicial system flooded with so much litigation. Clogs the system; didn’t
include elements of each claim (hard to tell which elements were met)
7. Incorporate by reference—the other facts
a. Pro = Better because don’t repeat...
b. Con = have to flip back so that you have to see which facts correspond with each
count so that elements are met.
8. Sexual Harassment count before due process
a. Pro = gets attention, plays up the media aspect
b. Con = may not be the most legally sound claim
9. Sheer number of claims brought
a. Impressive, make defense work harder
10. Had to include Trooper as defendant though main actor is Clinton
a. Could turn on Clinton, needed the conspiracy part he brings
11. Asking for punitive damages (setting up for discovery)
a. Opens up for discovery an inquiry if this is his first time to commit harassment
(higher punitive damages if he is repeat offender)
12. Introductory paragraph (though not required, it is a nice intro…summarizing underlying
facts)
Four Counts Alleged:
--Weaknesses of damages claim
1. Deprivation of constitutional rights
a. Quid pro quo sexual harassment--tangible job detriment
i. Not clear/shown in complaint
b. Hostile work environment sexual harassment--severe conditions/impact on
conditions of employment
c. False imprisonment
7
2. Conspiracy
3. Defamation--damage to reputation
4. Intentional infliction of emotional distress--severe distress
But what are her damages? She hasn’t had medical or psychological treatments.
1/26: Challenging the Complaint
Two major way to challenge complaint:
1. Challenge it on the law
a. Defense would rather have a legal defense
2. Challenge the facts (law is right, but facts are not true)
Problem 4 (p. 346)
a. Plaintiff alleges that defendant insulted him in public; defendant believes that the law
does not permit recovery for verbal insults unaccompanied by violence. LEGAL--Rule
12(b)(6)--demurrer
b. Plaintiff alleges that defendant struck her; defendant says he was not present at the time
and place alleged. FACT--denial in answer
c. Plaintiff alleges that defendant and plaintiff signed a contract, whose terms defendant
then violated. Defendant contends that she refused to honor the agreement because the
plaintiff forced her to sign at gunpoint. LEGAL--plead affirmative defense
Defense’s Response in Haddle v. Garrison
 No legally cognizable injury--not a factual dispute…
 Classic demurrer--“so what?”
 Even if all this facts are taken as true
 At will employee has no property interest, so taking away his property did not deprive
him of a constitutionally protected interest under the Due Process Clause
Suppose defendants had moved to dismiss on the ground that Haddle had quit his job and had not
been fired, and defendants had submitted a letter signed by Haddle admitting this in support of
the motion.
 Even if he signed letter in which Haddle admits he was at-will employee, cannot be
looked at by court in Rule 12(b)(6) because judge only looks at facts alleged in plaintiff’s
complaint
 If evidence is presented, a Rule 12(b)(6) motion was presented to court with signed letter,
court will either treated as Rule 56 Summary Judgment motion or will say no, can’t look
at this
Supreme Court in Haddle v. Garrison
 Didn’t not question 12(b)(6); just legal analysis of the 11th Circuit precedent
 How the court defines that particular element of the claim; all about legal issue
 “Fact that employment at will is not “property” for the purposes of DPC does not mean
that loss of at-will employment may not injure petitioner in his person or property”
 Interference with at-will employment is a species of intentional interference with
contractual relations
8

Rules in Plaintiff’s favor. Next step? Defendant answers complaint. But will still be a
really long legal battle over factual issues once remanded
Mechanics of Rule 12(b)(6)
 Motion itself is very short. Brief is longer
Jones v. Clinton Motion to Dismiss
 Rule 12(c)
 Not a legal response--Clinton argues that Jones has not adequately plead all elements of
their claims
o Attack on adequacy of pleading, not on the legal claims
o This is more factual
Differences between Haddle and Jones
 Both are “so what?” Arguments.
 Haddle: legal definition of particular element
 Jones: pleading is insufficient (so what if all that were true, she didn’t suffer any injury)
1/31: Pleading
Motion to Dismiss (12(b)(6))
 Pre-Answer
 “So what?”
 12(b)(6) vs. 12(c)
o Difference in the timing
 Two kinds
o Plaintiff hasn’t pled a legally cognizable claim. (Haddle)
o Plaintiff hasn’t adequately pled one or more elements of claim. (Jones)
 Claim-by-claim, element-by-element analysis
o Lawyer as technician
Rule 8: General Rules of Pleading
 “[A] short and plain statement of the claim showing that the pleader is entitled to relief.”
Before Twombly and Iqbal: Liberal Notice Pleading
 “[A] complaint should not be dismissed … unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.” Conley v. Gibson*
 “[A]ll the rules require is ‘a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.”
 “The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading
system.”
THEN….
9
Bell Atlantic v. Twombly
 What was plaintiffs’ claim in Twombly?
o Telecommunications companies conspired to violate anti-trust laws
 Under the antitrust laws, what did plaintiffs have to prove?
o Showed that there was a conspiracy (intentionally and together)
o Parallel conduct: policies were so similar/the same
 What did plaintiffs plead in their complaint?
o Plaintiff: plead parallel conduct; allegation of conspiracy (mouth language of the
statute)
o Defense: no facts to back up complaint
 What issue did the Supreme Court have to decide?
o Whether the complaint satisfies Rule 8
 Is this case more like Haddle or more like Jones v. Clinton? Jones
 What was the court’s holding?
o Facts are not sufficient to satisfy Rule 8 because “plaintiffs have not nudged their
claims across the line from conceivable to plausible…”
o Showing that there is parallel conduct is not in and of itself illegal…must show
conspiracy too
 Only alleged parallel conduct; didn’t not plead conspiracy because did not
plead any facts to infer conspiracy
 Policy considerations?
o Prevent speculative lawsuits
o Expensive discovery
Ashcroft v. Iqbal
 What was the plaintiff’s claim?
o Iqbal claims he was discriminated against because he was imprisoned after 9/11
based on his race, religion, etc.
 What did plaintiff plead in his complaint?
o Arrested and detained thousands of Arab Muslim men…as part of its
investigation of 9/11
o Ashcroft and Mueller each knew of, condoned, and willfully and maliciously
agreed to subject respondent to harsh conditions of confinement based on national
origin, religion, and/or race
 What was the court’s holding?
o Dismissed complaint under 12(b)(6) b/c complaint didn’t satisfy Rule 8
o Standard in Twombly applies outside anti-trust
 Why did this complaint fail?
o Did not nudge the claims from conceivable to plausible
o See below for RULES.
 So what did court want? More evidence of Ashcroft and Mueller’s intent
Iqbal’s Complaint:
1. “[T]he [FBI], under the direction of Mueller, arrested and detained thousands of Arab
Muslim men … as part of its investigation of the events of September 11.” (Court says
that this is not plausible; alternative explanation: good law enforcement)
10

Claim that this is discriminatory is not plausible…it is good law
enforcement
2. “The policy of holding post-September-11th detainees in highly restrictive conditions of
confinement until they were ‘cleared’ by the FBI was approved by Defendants Ashcroft
and Muller in discussions in the weeks after September 11, 2001.” (Court says that this
is not plausible; alternative explanation: good law enforcement)
3. “[Ashcroft and Mueller] knew of, condoned and willfully and maliciously agreed to
subject” Iqbal to harsh conditions of confinement “as a matter of policy, solely on
account of [his] religion, race and/or national origin and for no legitimate penological
interest.” (Court says conclusory…not part of plausibility analysis)
4. Ashcroft was the “principal architect” of this policy and Mueller was “instrumental” in
adopting and executing it. (Court says conclusory…not part of plausibility analysis,
even though this is factually conclusory)
Iqbal and the Future of Pleading:
 Complaint must state “sufficient factual matter … to ‘state a claim that is plausible on its
face.’” Iqbal/Twombly
–Two-step analysis:
1. Disregard legal AND factual conclusions and conclusory allegations
2. Evaluate the factual allegations to determine whether “they plausibly suggest an
entitlement to relief” (using judicial experience and common sense)
–What does plausibility mean?
o Complaint must “nudge claims … across the line from conceivable to plausible.”
o “More than sheer possibility” but less than “probability”
o Not conclusory facts or mere recitation of elements on claim
 Twombly/Iqbal did not overrule Rule 8(a), Conley v. or any other precedent, though it did
“retire” Conley’s most famous sentence
 Forms SHOULD still suffice (Rule 84)
 Practical consequences?
o Defendants bring more 12(b)(6) motions
o If Plaintiff pleads more, plaintiff is pigeon-holed in those claims
o More Rule 12 motions have been filed…whether they are granted is open for
discussion
 State of mind poses a special problem now…
o “Defendant knew that what there were doing was wrong…”
o If that is all you plead, court will throw this out because it is conclusory. This is
info you would find in discovery (depositions, etc.)
 Congress has introduced bills to repeal Iqbal
o The Notice Pleading Restoration Act (S. 1504): goes back to Conley v. Gibson:
 Except as otherwise expressly provided by an Act of Congress or by an
amendment to the Federal Rules of Civil Procedure which takes effect
after the date of enactment of this Act, a Federal court shall not dismiss a
complaint under rule 12(b)(6) or (c) of the Federal Rules of Civil
Procedure, except under the standards set forth by the Supreme Court of
the United States in Conley v. Gibson, 355 U.S. 41 (1957).
o The Open Access to Courts Act (HR 4115): uses Conley language
11

A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of
Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of the claim,
which would entitle the plaintiff to relief. A court shall not dismiss a
complaint under one of those subdivisions on the basis of a determination
by the judge that the factual contents of the complaint do not show the
plaintiff’s claim to be plausible or are insufficient to warrant a reasonable
inference that the defendant is liable for the misconduct alleged.
o Rules usually do not get made this way…usually go through Federal Rules
Committee, SC, and then back to Congress
Stradford v. Zurich Insurance
 What led to this litigation? Dentist’s insurance policy lapsed but resumed payments
eventually. Allegedly, while his policy was lapsed, a flood occurred, causing lots of
damaged. He claimed that it happened when he resumed his coverage
 Dentist sues to recover from a breach on his insurance policy
 Insurance counterclaims alleging fraud alleging compensatory & punitive damages
o Also another path to take: Zurich could have just asserted affirmative defense of
fraud and therefore no obligation on K
o Why do they choose that path? Insurance companies are usually seen in negative
light by a jury, but by doing this, it puts the dentist in a bad light (best defense is a
good offense)
 If we accept Zurich’s allegations as true, did Stradford commit fraud?
o It is enough to satisfy Rule 8 (probably, but maybe not now with Iqbal--could be
conclusory), but does not satisfy Rule 9(b)
o Rule 9(b): “a party must state with particularity the circumstances constituting
fraud or mistake”--needed to allege that the flood occurred while his policy lapsed
and that he lied about when it occurred
 Why should parties have to plead fraud with specificity?
o What effect on fraud claim? Higher burden
o Why is it harder? Fraud opens up the door to punitive damages; put other party on
notice; harder on plaintiffs to plead fraud because they may not have access to
specific info at this point
“Special” Claims, Special Pleadings
 If legislature identifies “disfavored” claims, one tool is to create special pleading regimes.
o E.g. Private Securities Litigation Reform Act of 1995: extra specificity
requirements
o E.g. some medical malpractice claims, which require that allegations pass through
approval of board of physicians
2/2: Allocating Elements & Rule 11
Allocating Elements:
 Standard car accident: plaintiff says defendant ran red light; defendant says plaintiff was
drunk.
o What are the elements at issue? DBCD
12




o Who does the work to establish those elements?
Burdens
o Burden of pleading--complaint/answer
o Burden of production--evidence
o Burden of persuasion--jury
If complaint alleges simply that plaintiff was driving his car, that defendant and plaintiff
collided and that plaintiff was injured, what should defendant do?
o Plaintiff has failed to satisfy burden of pleading those elements so motion to
dismiss would be granted
What if, following amendment of the complaint, defendant files a motion to dismiss
because plaintiff failed to allege that he was not contributorily negligent?
o Doesn’t matter because the burden of pleading contributory negligence is on the
defendant
Hypothetical Statutes:
o (1) “Persons shall be liable for injuries to others caused by failure to take
reasonable care; provided, however, that no person shall be liable if the plaintiff’s
own negligence was the primary cause of injury.”
 Prima Facie case: “failure to state reasonable care”
o (2) “A person who is not himself negligent but who is injured by the negligence
of another, has a cause of action against the insurer.”
 Prima Facie case: “who himself is not negligent”
 Burden of pleading contributory negligence IS on the plaintiff
Jones v. Block
 What is the substantive claim at stake? Prisoner claimed he was injured but forced to
work
 What is the issue before the court? Who must plead exhaustion under the PLRA…the
plaintiff or the defendant
o Court is not dealing with whether he exhausted all proceedings at the prison
before filing the claim in court (as required by statute)
 Holding: prison’s obligation to plead it as an affirmative defense
 Why? Specific pleading requirements are mandated by the Federal Rules of Civil
Procedure and not as a general rule, through case-by-case determinations of the federal
courts
o Also doesn’t say that plaintiff must plead that he exhausted all remedies in
statutes
o Exhaustion in other areas of law is treated as an affirmative defense (Rule 8(c)-its not listed, but this list is non-exhaustive)
 Act of judicial restraint; this is not up to us to change pleading
requirements
 Hard to square this with Twombly and Iqbal where court did change pleading
requirements
Ethical Obligations in Pleading: Rule 11
 What was the factual defect in Haddle’s complaint? Why didn’t Haddle just fix it?
o Didn’t say if he was an at-will employee he was. He didn’t just amend it to say
13





that he had a contract saying he was an at-will employee. But this contract didn’t
exist
P. 376, Problem 1 (a): Party calls Opponent on the telephone threatening her with a
lawsuit that Party knows to be groundless. Sanctionable under Rule 11? What if Lawyer
makes call?
o Not actionable because Rule 11 only applies to a “pleading, written motion, or
other paper”
o A phone call is not a Rule 11
Problem 1(c): Lawyer files groundless interrogatory. Sanctionable under R. 11?
o Yes, because this is “other paper”
Problem 2:
o Every document submitted must be signed (11(a)) by the attorney
o Either lawyer or the party can be sanctioned under Rule 11, but lawyer is
independently responsible
o Lawyer would have been on firmer ground here if he had evidence (like
photographs, etc.). But the plaintiff’s statement is evidence too.
o Lawyer must perform “an investigation reasonable under the circumstances”
 If the statute of limitations is about to run, you are on firmer ground
 But if you aren’t up against it, you should do something more than rely on
the client
Problem 3:
o (a) No, certain procedural requirements in place--Rule 11 must be a separate
motion
o Safe Harbor Rule: must serve motion on the other side (not with the court) and
then wait for them to correct it (they have 21 days). If they don’t correct it, can
file with court
Problem 4:
o (a) Affirmative obligation to correct it
o (b) Yes, don’t have to fix it but you can’t advocate it later knowing that it is not
true
2/7: Responding to the Complaint: Pre-Answer Motions
Rule 11 Recap:
 Sanctions are supposed to be deterrent, not punitive
Walker v. Norwest Corp.
 What did plaintiff’s lawyer do wrong? He alleged diversity of citizenship but did not
specifically allege that there was complete diversity. He said: “Plaintiff and some of the
Defendants are citizens of different states.” He stated that some of the defendants were
South Dakota residents (which the plaintiff was too)
 What portion of Rule 11 was violated? Rule 11(b)(2)-(3)
o Did not allege complete diversity
o Also problems with factual contentions because he didn’t bother to allege exact
citizenship of the defendants
 Did the district court have to impose a sanction?
o No, court “may” impose sanctions; discretionary
14


o Court could have said that defendant’s lawyer had learned his lesson
Any errors in the court’s opinion?
o Not clear that 21 day rule was followed in this case before motion was presented
to court
Against whom was sanction awarded? Lawyer
o Could it have been awarded against the plaintiff? No, because it is not the plaintiff
himself who is responsible for allegations relating to the law of diversity of
citizenship
Christian v. Mattell, Inc.
 What is the underlying substantive dispute? Copyright infringement of Mattell with Cool
Blue Barbie of Claudene doll
 What did Hicks do wrong? Mattell’s Barbie came out in 1991. Claudene came out in
1996. He refused to inspect the doll and refused to amend/do away with his complaint
 Why did district court sanction him?
o Failed to appear at oral argument
o His behavior tossing Barbie off the table
o Failure to file memo in support of motion to dismiss
o Yelling at his client on videotape
o Misrepresentations during oral argument
o Misstatement of law in summary judgment opposition brief about the circuit’s
holding…
 What portion of Rule 11 was violated? Rule 11(b)(1), (3)
 Why did the Ninth Circuit reverse? Rule 11 is limited to written submissions to court; it
does not cover discovery abuses, misstatements made during oral argument, and conduct
in litigation (also not covered because occurred during discovery period)
 Why did opposing party seek a sanction even after winning on summary judgment?
o One argument is that they were possibly thinking attorneys fees
o Another is that they wanted to make a point…defendant will think it “won” the
Rule 11 motion even if it never collected a dime from plaintiff’s counsel
 Now district court will fix its opinion to only include Rule 11 sanctions
Responding to the Complaint:
1. Do nothing -- default
2. Pre-Answer Motion
a. Forces plaintiff to show more of their hand [12(b)(6)]
b. Efficient and cheap way to get rid of case
c. Tolls running for how long you have to answer
3. Answer (see 2/9)
How long do you have to respond to a complaint? 20 days, unless defendant has waived service.
If they do, they have 60 days. In addition, lawyers can usually get an extension from the other
side.

What is a motion? Request for a court order; asking the court to do something. See Rule
7(a) &(b)
15

Rule 12(h) & (g): a trap for the unwary!
Rule 12(g)
 (1) Multiple Rule 12 motions may be brought at once
 (2) Generally, ALL rule 12 motions MUST be brought at once. Why? Would take years
of litigation over rule 12 motions; this makes it more efficient
o Exception: if motion is unavailable to you (ex. if defense not apparent from
reading complaint)
o “Favored defenses” receive special treatment (see 12(h))
Rule 12(h)
 “Disfavored defenses” -- 12(b)(2)-(5) -- waived if not made in first response whether a
pre-answer motion or an answer
o Lack of PJ
o Improper venue
o Insufficient process
o Insufficient service of process
 These are all things that defendant will know immediately
 “Favored defenses” -- 12(b)(1), (6), &(7) -- these cannot be waived
o Lack of SMJ
o Failure to state a claim upon which relief can be granted
o Failure to join a party under Rule 19
 Still may not be raised via second pre-answer motion, but they are not waived. They are
preserved.
 BUT failure to state a claim (12b6) and failure to join an indispensable party (12b7) may
be raised in any pleading (incl. answer), 12(c) motion, or at trial
 12(b)(1) (SMJ) may be raised at any time, by either party or by the court
Other Rule 12 motions: 12(e), 12(f), & 12(c)
12(e): motion for a more definite statement
 Disfavored by courts
12(f): motion to strike
 Usually try to argue prejudice
 Again, not favored by courts
12(c): motion for judgment on the pleadings
 Plaintiff/Defendant says even if all in complaint/answer is true, I still win
 Can come later than 12(b)(6)
Problems, p.390
1. Problem 1
a. 12(b)(6)
b. 12(b)(2)
c. Yes, 12(g)(1)
d. No & No, 12(h)(1)(a)
e. She cannot raise it in a pretrial motion, but she can include it in her answer, 12(c),
or bring it at trial
16
2. Problem 2
a. Yes, 12(h); 12(b)(6) is a favored defense
b. Yes, 12(h); 12(b)(1) can be raised at any time
c. The defense is not waived; SMJ can be raised at any time, including by the court
(12(h)(3))--“court must dismiss the action”
PoP Ch. 3: Pre-Answer Motions
 What did Clinton ask the court to do? Filed a Motion to Set Briefing Service
o Do the rules permit this?
o What is his argument?
o Jones’ lawyers:
 President is not subject to
 Dispositive motion: this would end the case so it’s a Rule 12(b)(6) motion
o District court: can file successive rule 12 motions; discovery can proceed; but trial
will be stayed
o 8th Circuit: discovery AND trial must go on; no grant of temporary immunity
o Supreme Court affirms the 8th Circuit: President is not immune
 Will be burdensome on President’s lawyers but not on President himself
o What does Clinton do next? Files rule 12(c) motion--felt like he needed respond
politically and files an answer
Fanning’s notes from above:
What did Clint on ask the court to do?
 Wants the court to rule on the Presidential Immunity issue first. Still wants to be able to
file motions at a later time, after the immunity issue is resolved.
 Wants delayed until after the election – want to not have to admit or deny anything before
the election. Lawyers says: “the win is getting past the 1996 election.”
 Do the rules permit this?
o § No motion to set briefing schedule in the rules. List is non-exhaustive.
o § Does not mean that can disallow it à non-exhaustive list.
o § You can bring almost any kind of motion within reason (within R. 11 confines)
under R. 7.
o § Court here has to deal with filling in a gap in the rules.
 What is his argument?
o § He is the president and tries to get presidential immunity so he doesn’t have to
deal with this suit until he is out of office. Takes up a lot of his time, distracts
from important presidential duties—interrupts the execution of his office.
o § Says that presidential immunity applies to immunity from civil suit while in
office. Which is why he thinks immunity makes time stand still.
What arguments did Jones’ lawyers make in response?
 Why is winning this issue important to Jones?
 Jones’ lawyers say he cannot get “multiple bites at the apple.” He doesn’t get to file
multiple motions—has to file them altogether just as everyone else does.
 Rule talks about dispositive motionsàtitled inoccuously, but this is a motion that will end
the case, it is an argument for immunity. Therefore, the case should either be dismissed
17


(dispositive) or should wait the rest of his presidency (another 5-6 years if he got another
term). So therefore he should only get “one bite at the apple.”
Jones’ good faith basis for going forward à lose witneses, media attention, evidence lost,
etc. becomes old case.
Bad faith – political motives, right before the election and they want this to be some way
of muckraking. Him to have to admit something before the election. These can embarrass
him and make him lose the election.
How did the court rule on the procedural issue?
 First judge in district court allows the motion to be filed. Then denies the motion.
 She says that the procedural issue is a 12(b)(6) motion – failure to state a claim upon
which relief can be granted; but, not a precise analysis by the court here.
 Judge says that rule 12 allows successive r. 12 motions, but doesn’t allow to bring
successive motions, though you can bring it later—in answer, etc.
 Practical ruling on procedural issue—pretty narrow issue. President doesn’t get sued very
often. Her analysis is slightly off.
 Agrees with Clinton—going to allow time to stand still.
How did the court rule on the immunity argument?
 Immunity issueà judge wright says that president responsibilities makes her want to
exercise judicial restraint. But allows discovery to go forward. She says immunity from
trial, but not immunity from the legal process.
 Eighth circuit reverses and says no immunity at all. SC agrees. No immunity.
o § They say discovery process not burdensome on president himself, but
burdensome on the lawyers of the president.
Who won this round of maneuvering?
 Clinton got more time,
 P got discovery, etc.
2/9: The Answer
 Inclination is deny everything. Permissible?
 Options:
o General denial only if you mean to deny everything; including jurisdiction, basic
facts. Rule 8(b)(3)
o Specific denial in whole or in part; must make clear what are you are denying.
Rule 8(b)(3)&(4)
 Ex. PoP Ch. 4
 Page 52: specific denial in whole
 Paragraph 47: specific denial in part
o Lack of knowledge or information. 8(b)(5)
 Paragraph 13: referring to allegations about trooper
o Failure to deny = admission. (8)(b)(6)
 Clinton admits a few things: that he is a resident of Arkansas, that there was conference
on such date, etc.
18



Inconsistency is permitted, just as with complaints. 8(d)(3)
Don’t be too cute:
o “Denial must fairly respond to the substance of the allegations”
o Rule 11 applies because it is a written document
o King Vision (page 397, note 5)
What do you do about legal paragraphs? See Paragraph 1 of Clinton answer
o Clinton says: “states legal conclusions as to which no response is required.”
 Nothing in Rule 8 says this is allowed, but this is how lawyers do
generally respond to a complaint
Zielinski v. Philadelphia Piers, Inc.
 Facts: Zielinski was injured on the job by a forklift. PPI owned the forklift. Sued PPI
under the agency theory because one of PPI’s employees negligently operated the
forklift, causing injury to Zielinski.
 But, CCC was leasing the forklift and employed the employee accused of negligently
using the forklift.
 Complaint stated: 5. . . . [A] motor-driven vehicle known as a fork lift or chisel, owned,
operated and controlled by the defendant, its agents, servants and employees, was so
negligently and carelessly managed . . . that the same . . . did come into contact with
the plaintiff causing him to sustain the injuries more fully hereinafter set forth.
 Answer: general denial
 Plaintiff understands response to be a denial of negligence
 How should have PPI answered?
o Defendant:
 Admits ownership of the forklift;
 Denies operation and control of the forklift;
 Admits an accident on the date alleged; and
 Denies the remaining allegations of ¶ 5. . . .
 Plaintiff wants to proceed with lawsuit against PPI, even though PPI is not liable under
agency
 Court allows this because if plaintiff is not allowed to proceed he will not be allowed to
recover because S/L has run
o But says there has been no bad faith
 Whose fault?
o Plaintiff should have investigated more; pleaded better
o Defendant could have pointed the finger at CCC, and Plaintiff then could have
amended his complaint
 Alternative complaint:
o 5. Defendant, its agents, servants and employees, owned, operated and controlled
a motor-driven vehicle known as a fork lift or chisel on the premises referred to in
¶ [x].
o 6. The forklift was so negligently and carelessly managed…that it…came into
contact with the plaintiff, causing him to sustain the injuries more fully
hereinafter set forth.
 Court does not like surprises…the point of these rules is to avoid surprise.
19
Problem 6 (p.398)
 A, a jogger, is injured when B’s car swerves off the road and hits A. A sues B. How
should B respond to the following allegations:
o “B has not had his car serviced for the past two years.” B knows this is true but
knows it will be impossible for A to prove.
 B must admit
o “A was running north.” B does not doubt that this is true but did not actually see
A running.
 Lack of information
o What if X, a friend of A, has told B that he was standing 20 feet away and saw A
running north?
 Lack of information (?)
 A could be biased. Maybe X is directionally challenged, it was foggy out,
etc.
Affirmative Defenses
 Rule 8(c)(1): In responding to a pleading, a party must affirmatively state any avoidance
of affirmative defense, including:
o Assert in answer or waive!!!
o If it is not listed in the rule, how do we know what constitutes an affirmative
defense???
 Check case law; look at statutes
 Paradigm: even if what plaintiff says is true, I win because of this reason,
excuse
 Plaintiff does not have to respond to a pleading asserting an affirmative defense. Rule
7(a) (listing only permissible pleadings)
o Preserve it as an issue to be litigated
o Look at Rule 7(a)…complaint, answer to complaint, answer to counterclaim
designated as a counterclaim
 Burden of pleading, production and persuasion generally on party raising the affirmative
defense
 Problems 401-402 (didn’t do them in class but you should understand them)
Amendments
Suppose you filed a complaint or an answer…
 And then decided you wanted to change it:
o Because new information came to light suggesting a new claim or defense.
o Because more research suggested a different way to pitch the case.
 Can you just present the new information without changing the pleading?
o NO: see Zielinski
o Why not? Pleadings set parameters of the case
 Rule 15
o Can amend the complaint within 21 days as a matter of course (i.e. do not need
permission)
o In all other cases, may amend with other party’s consent or with the court’s
permission (court should always give leave to amend if justice requires)
20
Beeck v. Aquaslide
 Plaintiff was injured sliding down a waterslide. They sued Aquaslide because thought
slide was manufactured by them. Defendant’s insurance companies’ investigators thought
it was manufactured by Aquaslide
 Defendant first admits that it was their slide in the answer
 Defendant now wants to amend their answer after President inspects slide and determines
it wasn’t manufactured by Aquaslide
 Plaintiff does not want them to be able to amend because S/L has run out on tort claim
 Trial court allows them to amend their answer and will allow a bifurcated trial to decide
whether Aquaslide manufactured the slide
 Appeals Court: Aquaslide should be allowed to amend because justice so requires that
Aquaslide not be sued for something they didn’t manufacture
o What will a case look like if Aquaslide has to defend a negligently manufactured
slide that they didn’t make? Reason court sided with defendant
o What about justice for the plaintiff?
 Test: in the absence of any apparent or declared reason--such as undue delay, bad faith,
or dilatory motive on part of movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to opposing party by virtue of allowance, futility of
amendment, etc. -- the leave sought should be freely given
o Default is favored to movant absent some reason listed above
JOINDER
Missed Class: Notes from Caroline
2/14:
PoP - Chapter 5
Amendments [Rule 15]
 Jones seeks to amend complaint to dismiss claim for defamation.
 Purported Purpose: The defamation claim would make discovery claims really expensive.
o Cooper says although Jones argues this to the court, this is not true.
 Real Reason (according to Cooper): The claim would bring out Jones actual character
and whether it was truly damaged.
o Clinton could drag out her character, which might prove damaging. By dropping
the defamation claim, Clinton won't be able to attack her character in the same
way.
 Claims added: Jones wants to clarify her E/P claims concerning disparate treatment as a
state employee.
o Wants to argue: Women who succumbed to Clinton's advances were promoted/got
better jobs; while those (like Jones) who did not succumb, were not.
o So, there would be depositions of other women who'd had relationships with
Clinton.
 New Theory of the Case: Clinton repeatedly violated the rights of women by abusing his
authority.
o Jones argues she should be allowed to amend her complaint b/c the court set a
schedule with deadlines and the date had not passed. Also, argues that the
amendments don't radically change the case.
21







o Clinton says the 3rd party favoritism doctrine does not set forth a cause of action;
therefore, it would be futile to allow this amendment.
 Cooper: Clinton's best argument is “futility”
Court allows Jones to amend.
o But, this does not mean that the judge thinks that 3rd party favoritism is enough to
establish a constitutional claim.
o The court says that allowing amendment does not provide for a new cause of
action.
o Battle: Jones will now be arguing to bring in Clinton's relationship with other
women, and he will be arguing that it's not relevant.
 The amendment gives Jones a step forward with her claim; she can
potentially expand the scope of discovery into these areas.
The fact that the amendments are very early in the case (there's been no discovery at this
point) is part of why the court is more inclined to grant the amendment.
Rule 15(c): In original complaint, Ferguson was only a co-defendant as to certain counts.
o Jones sought to amend so that Ferguson wold be a co-defendant to more of the
original counts that in the complaint were only against Clinton.
 Argument for Ferguson against amendment: “undue delay” - the case has
been going on for a long time; Jones waited too long.
 Jones will argue that discovery has not begun, and the deadline set by the
court in the schedule has not passed. Also, amendments “relate back” to
original complaint [15(c)]. There was no prejudice b/c Ferguson was put
on notice [15(a)].
 Cooper says Jones has the better argument.
o The intentional infliction of emotional distress count that Jones wants to bring
against Ferguson in amendment has a better a for Ferguson than the other counts.
 There could be some argument that this claim is different and doesn't
relate back.
Notes from Text
Amendment will matter in 2 situations (i.e. be an issue):
o Statute of limitations and “relation back”
o “Prejudice”
Timing: You can amend once as a matter of course; court and other side cannot say NO.
o One “free shot.”
o Must be within 21 days of filing OR
o within 21 days of receiving an answer or 12(b), (e), or (f) motion.
Otherwise, you can only amend by consent (of other party) OR by leave of court.
o Supreme Court: The court should freely give leave to amend (when justice so
requires).
o UNLESS there are certain circumstances: undue delay, bad faith or dilatory
motive, undue prejudice, futility.
Rule 15(c): standard = whether the amendment contains a claim or defense that arose out
of the conduct, transaction, or occurrence set out – or attempted to be set out – in the
original pleading.
o The rule encourages broad pleading in the original claim, though this is not
22





purpose of the rule. The broader the claim is to start with (in the complaint), the
easier is to argue that new claim or defense (in the amendment) “relates back.”
o Theory of “relation back”: Idea that if something relates back to the original case,
that new claim/defense is part of the same case. Not dredging up something old
that was never a part of the case. Moore
o Original claim: informed consent was insufficient; doctor did not provide adequate
information to patient when being counseled on the surgery.
o New claim: negligence during surgery.
o Court denies the amendment b/c the original complain did not contain anything
that would have given the doctor notice of a negligence claim.
 First claim dealt with conversations before the surgery.
 Second claim dealt with performance during the surgery.
o If the Moore complaint had been pled more generally (was more broad), might
have had a better chance to amend.
o
Bonerb
o P says he was injured while playing basketball and claims negligent maintenance
of basketball court.
 New Claim: different negligence claim.
o Court allows amendment because second claim is similar enough to first claim to
put D on notice of second complaint.
 Cooper says this seems like the same situation as in Moore; yet, the court
here allowed it. Why?
 This amendment filing was earlier in the case than in Moore.
 In Bonerb, there had not been a lot of discovery.
 The difference in the timing b/w these cases is a key reason why
they were decided differently.
 Another difference is that the allegations in Bonerb were similar
(b/w the original complaint and the amendment). They were
clearly distinct in Moore. Joinder
Broad discovery
Broad joinder
o Goal – decide the whole controversy in one lawsuit.
Rule 18
o A party may bring any claim, counterclaim, cross-claim, or 3rd party claim that
you have against any party in the lawsuit.
 Counterclaim – brought by D against P
 Cross-claim – brought by one D against another D
 3rd – P sues D; D brings in a 3rd party to the lawsuit.
o Which joinder rule applies?
 Also, there needs to be PJ over joined party.
 (On exam, don't have to do minimum contacts analysis.)
 And there needs to be SMJ.
 This will be an issue that needs to be analyzed on the exam.
o So, although, you “may” under Rule 18 brings claims; PJ and SMJ could prohibit
23

joinder of certain parties.
Problems (p. 739)
o A v. B (federal claim). A wants to add a state law claim, which is permitted under
Rule 18. PJ exists. What about SMJ? Look to §1367 (a) federal cause of action.
Issue: Is this the same case or controversy? Yes. So, there is SMJ.
Notes from Michael:
Amendments ***Rule 15 has changed***
Rule 15. Amended and Supplemental Pleadings
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend the party's pleading once as a matter
of course:
(A) 21 days after serving it, or
(B) If the pleading is one to which a responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion under rule 12(b), (e), or (f), whichever is
earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.

Pg. 402 Problem 1
o a) A party may amend within the first 21 days as a matter of course; i.e. P doesn’t
need permission to amend the complaint
o b) If you not under 15(a)(1), then you must have permission from the opposing party
or with the court’s leave. The court should freely give leave to amend when justice so
requires.
When will it matter if you can change (“amend”) the original pleading?
 General proposition: amendment will matter in two situations:
o When some legally relevant time period has expired.
 Statute of limitations and “relation back”
o When the other side argues that, although no explicit time period has expired, it
has relied on your original statement of the case.
 “Prejudice”
Amendments so Far
 Mechanics: Motion plus proposed amendment
 Timing:
o Once as a matter of course within 21 days of filing OR within 21 days of receiving an
answer or 12(b), (e) or (f) motion. 15(a)(1)
• Only get one free shot. So if you file an amendment within 21 days of filing,
then you can’t freely amend the complaint if the defense later files a 12(b) or
some other motion.
24

o Otherwise by consent or leave of court. 15(a)(2)
“The court should freely give leave when justice so requires.” 15(a)(2).
o Absent “undue delay, bad faith or dilatory motive on the part of the movant,
undue prejudice to the opposing party by virtue of allowance of the
amdendment, futility of amendment, etc…” leave should be freely given.
Beeck.
o Tension between flexibility and finality
o More careful pleading by either or both parties in Beeck would have prevented
this mess.
Rule 15(c)
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of
the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation back, or
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction,
or occurrence set forth or attempted to be set out – or attempted to be set out – in the original
pleading . . . .
Relation Back
 Why do we have SOL?
o Finality
o The defendant was made aware of the claim in reasonable amount of time
 What’s the theory of relation back?
o Why would we allow plaintiffs to state one claim, wait until the statute of limitations
had run, and then change their claims?
o Isn’t that unfair to the defendant?
o What justifies such a rule?
Moore, Bonerb: Distinguishable?
Moore
 Moore’s original claim was informed consent
 She sought to amend the complaint to say that that the doctor was also negligent
 Why denied?
o The first claim was that the doctor failed to inform her that she had alternatives before
the surgery
o The SOL for negligence had expired. The second negligence claim dealt with the
doctor doing something wrong in the operating room.
 Holding
o The court said that the negligence claim was not related back to the informed
consent claim because it did not give the doctor notice that he would be sued for
something that happened during the actual surgery.
25
***The main way to distinguish the cases is that discovery was already completed in Moore
and discovery was only partly completed in Bonerb.
JOINDER
Rule 18 Overview
 Rule 18 permits you to join any claim that you have against an opposing party
 What is a …
o Claim?
o Counterclaim?
 A defendant sues the P
o Cross-claim?
 A defendant sues a fellow defendant
o Third-Party Claim?
 A defendant brings a claim against a new party
 Permissive not mandatory
Rule 18 is misleadingly simple and broad
Joinder and Jurisdiction
 Which joinder rule applies?
o Candidates: Rules 13,14,18,19,20,21,22,23,34
 Does rule allow joinder of a claim or party?
 If so--Is there personal jurisdiction over joined party?
o There needs to be PJ
 If so– is there Federal subject matter jurisdiction over joined party or added claim?
o You may not be able to bring all claims because you don’t have federal SMJ
Problem 1 (p.739): Yes. Ann has a federal claim against Barbara. Ann wants to join a state
claim.
 R. 18 permits it
 There is PJ
 § 1367(a) permits it because it arises out of the same case or controversy.
2/16: Joinder Continued
Amendment Recap:
Can you amend?
–Once as a matter of course within 21 days of serving it or within 21 days of receiving
answer or Rule 12 motion. 15(a)(1).
–Otherwise, need consent or leave of court. Leave to be “freely given when justice so
requires.” 15(a)(2)
26
•Vague!
•Presumption in favor of amendment.
•Any bad faith, prejudice, undue delay, futility, etc.?
•Timing matters (i.e. if its early in discovery, they will generally allow because
there is no harm yet)
Relation Back (Rule 15(c)): Can party get benefit of original filing date?
 Must get over 15(a) first before you get to 15(c)
–Does the amendment “assert a claim or defense that arose out of the conduct,
transaction, or occurrence set out – or attempted to be set out – in the original pleading?”
(This happens if the S/L has run)
•Does the other side have a fair notice that this issue could come up (i.e. there has
been some discovery on the issue)? Will they be taken by surprise?
•Timing matters
Joinder & Strategy: The Three-Ring Version
 Π: Will I win? Against whom? Will they win more against me than I do against them?
Should I settle with one to get funds to litigate against the other? Which?
 Δ: Will I win? Will I win more against him than he does against me? Should I settle so I’m
not left holding the bag? Can I do a deal with the other Δ? Can I do deal with the Π so other
Δ is left holding the bag?
Joinder So Far
 Step 1: Does the applicable Rule allow joinder of this claim (or the addition of this party)
under these circumstances?
o If not—stop right there
o [“May” might not really mean “may.”]
 Collateral estoppel: if you have any claims that arise out of single
transaction, he has to bring all claims the once or otherwise lose them…so
not really “may”
 Step 2: If so—are there jurisdictional issues?
o Federal jurisdiction over additional claim or party
 Original
 Supplemental
 [And, in real life, don’t forget personal jurisdiction over an additional party and venue!]
§ 1367: Supplemental Jurisdiction
(a) District court will have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case or
controversy
(b) If district courts have original jurisdiction founded solely on diversity (§1332), then those
courts will not have supplemental jurisdiction made under Rules 14, 19, 20, or 24
(c) District courts may decline to exercise jurisdiction if:
o Claim rises a novel or complex issue
o Claim substantially predominates over the claim or claims over which the district
court has jurisdiction
27
o District court has dismissed all claims over which it has original jurisdiction
o Other compelling reasons, in exceptional circumstances
Problem 2 (p. 739)
 Is there a rule that allows it? Yes, Rule 18 permits it
 Is there supplemental jurisdiction?
o Probably not because it does not arise out of the same case or controversy (§ 1367)
Problem 3
 Yes, supplemental jurisdiction under §1367
 Joinder includes jurisdiction under new, additional parties
 Arises from same case or controversy because it all arises out the one harassment incident
Problem 4
 No jurisdiction because this original jurisdiction is founded solely on diversity and cannot
have supplemental if brought under Rule 20 (as this was…permissive joinder)
 This would mess up complete diversity
Rule 13: Counterclaims
a. Compulsory Counterclaims
1. A pleading must state as a counterclaim any claim. .
(A) Aris[ing] out of the transaction or occurrence that is the subject matter
of the opposing party's claim; and
(B) Does not require adding another party over whom the court cannot
acquire jurisdiction.
b. Permissive Counterclaim
 A pleading may state as a counterclaim against an opposing party any claim that is
not compulsory
Plant v. Blazer
 Underlying claim: Truth in Lending Act (lenders must make certain disclosures)
 Defendants want to bring a counterclaim for her default on the debt that she owed
 Why did they wait? Probably because she had no money and wouldn’t be worth it
to go to court
 Why bring it now? Plaintiff is now creating assets that lender can now recover
from (damages, attorneys fees)
 Issue: is this a compulsory counterclaim under 13(a)?
 Why does it matter?
 This is defendant’s only real chance to collect their money
 Premise: if it is, there is supplemental jurisdiction. See 28 USC 1367.
 Compulsory counterclaim exists when it arises out of same transaction or
occurrence…there is a jurisdictional basis now under 1367
 If we have it under Rule 13, then we have it under 1367
 If we don’t satisfy Rule 13, then there needs to be an independent basis for jurisdiction.
There is not so court could not hear this case if this is not compulsory counterclaim
 Court’s Holding: this is a compulsory counterclaim
28

 Logical Reasoning Test: is counterclaim logically related to claim
 But really is a balancing of policy options
(A) Broad joinder: want to have controversies decided together in one court
as a matter of efficiency; VERSUS…
(B) Truth in Lending: Congress has set up statute that allows private citizens
to bring lawsuits by offering attorneys fees to make sure that lenders
comply with certain disclosures
How are these two claims related?
 Defense says both over the same loan
 Plaintiff says that there were not proper disclosures while counterclaim is how I
didn’t perform on the contract
Counterclaims Recapitulated
 Failure to assert compulsory counterclaim results in waiver: defendant barred from
bringing it in separate suit…so attorney should always bring all possible claims in case
they are compulsory claims
 If it’s a compulsory counterclaim, supplementary jurisdiction will attach:
o Explain why: how does this fit into structure of §1367?
o “Same transaction or occurrence” will be part of “same case or controversy”
Rule 13(g): Cross-Claims Against Co-Party
A pleading may state as a cross-claim any claim by one party against a co-party arising out of
the transaction or occurrence that is the subject matter either of the original action or of a
counterclaim therein or relating to any property that is the subject matter of the original action.
Such cross-claim may include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted in the action against the crossclaimant
 Permissive cross-claims are not permitted; must be related
But what about Rule 18(a)? Does 13(g) make 18(a) entirely ineffective? Must read Rule 18 in
connection with 13(g)
 Can only be cross-claim if it’s a related claim (under 13(g))
 Once there is a proper 13(g) claim, then the floodgates open under Rule 18
 Still have to have a jurisdictional basis
Problem 9 (p.748)
1. What if M wants to assert that Dealer is responsible for any fault?
a. Deny complaint; no cross claim proper
2. What if M wants to sue D for amount owed on delivered cars?
a. Not possible: cross-claim doesn’t arise from same t/o
b. Rule 13(g)
3. Dealer wants to assert claim against P for unpaid repair bill on different car. Possible?
a. Yes, permissive counterclaim--but requires jurisdictional basis
1. Dealer and Manufacturer both want to assert that there was no defect in the vehicle and that
the accident was solely the result of plaintiff’s negligence. What pleading?
a. Deny plaintiff’s allegation that it was defective (this is not an affirmative defense)
29
2/21: Joinder of Parties II
Rule 20: Permissive Joinder of Parties
a. Persons Who May Join or Be Joined.
1. Plaintiffs: Persons may join in one action as plaintiffs if:
A. They assert any right to relief . . . arising out of the same transaction, occurrence,
or series of transactions or occurrences; and
B. Any question of law or fact common to all these plaintiffs will arise in the action.
Plaintiff is the master of his claim….We don’t force plaintiffs to bring claims together! But we
do give them the option if they meet the test under Rule 20.
Mosley v. General Motors Corp.
 Who sued GM? 10 employees as individuals and as class representatives
o Variety of different alleged discriminatory acts:
o Discrimination on basis of ___ in _____:
 A>>>Race--promotions>>>>
 B>>>Race--firing>>>>>>>>>
 C>>>Race--hiring>>>>>>>>>
 D>>>Gender--hiring>>>>>>>
 E>>>Race & gender--relief time>>
 Why did plaintiffs want to join in single suit? Looks better to a jury to have a large group
and the cumulative evidence will look more compelling against GM
 Why didn’t GM? At an individual trial, GM will make the defense that he wasn’t fired
because he was black but because he was a bad employee…easier to make this case with
one person rather than with a whole group of them
 What did the Court say and why?
o District court tried to separate actions; 8th Circuit said this was abuse
o Asked: do these claims “arise[] out of the same transaction?” Same general policy
of discrimination…by all of them bringing claims together (alleged in their
complaint)
o Logical relationship test
 Is there a “common issue of law or fact?”
o By concluding that cases should be joined together, they are taking a stand on
substantive issue (procedural have impact on substantive merits of the case)
Another Example: pulling out of your driveway on the way to school, you are sideswiped by a
garbage truck. You leave the car at the curb and get a ride with a friend. But as she turns into
the campus, a bus runs a red light and hits her car. It turns out that the City of Oxford operates
both the garbage truck and the bus. Can you and your friend join your two claims for damage to
your respective vehicles?
 Is this the same or different than Mosley?
o Different than Mosley. Do not happen out of same occurrence or transaction.
o Not like City of Oxford had a general policy of negligence (to go around hitting
people)
o Plaintiff’s lawyers: City hasn’t been training employees properly (or doesn’t have
a good safety policy) and so these accidents occur
30
More on Rule 20
 What are the consequences of misjoinder? You won’t have your case dismissed, but
claim could be divided up
 Procedural dance:
o Plaintiff may attempt to join under Rule 20
 Local rule re: identification of related claims (?)…Designate it as related
according to local rules
o Defendant can then challenge joinder (plaintiffs usually want to join)
o REGARDLESS of Rule 20 decision, judge exercises independent power under
Rule 42
 Under 42(a): Court may consolidate all or portions of cases that “involve a
common question of law or fact”
 Under 42(b), Court may order “separate trial of one or more” issues,
claims, etc. “to avoid prejudice, or to expedite and economize.”
 Even if Defense lose under Rule 20, they can argue to separate
under Rule 42…then will be up to the judge
 What are the consequences of a broad joinder rule for future litigants against GM?
Pitfalls of Broad Joinder: An Imaginary Mosley Sequence
o Mosley goes to judgment.
o Next lawsuit:
o 12 Women employees
v.
GM
o >>Discrimination on basis of Pregnancy>>
 Same time period as Mosley
 Some plaintiffs also plaintiffs in Mosley
o What’s GM’s winning defense to this suit? Res judicata. These are precluded, and
the women should have had to bring these claims with the original Mosley
plaintiffs
 Broad joinder = broad preclusion
o What remedy will the women employees be left with?
JOINDER SO FAR (in words…see slide #8 for a picture)
 Rule 8
o Allows alternative claims
 Rule 18
o Allows joining of unrelated claims, once you have one
 Rule 20
o Allows joining more plaintiffs & defendants from same t/o and common question
of law or fact
 Rule 13(a)&(b)
o Allows counterclaims
 Rule 13(g)
o Allows cross-claims among co-parties
But, in addition to Rules, we have to have a jurisdictional basis (i.e. PJ and SMJ)
31
Rule 14: Third-Party Practice
(a) When a Defending Party May Bring in a Third Party.
A defending party may, as a third-party plaintiff, serve a summons and complaint on a non-party
who is or may be liable to it for all or part of the plaintiff's claim against it.


“If it is me, then it is him.” NOT: “It’s not me; it’s him.”
Rule 14 doesn’t create substantive liability--would go to contribution (tort law) or express
or implied indemnity (contract law)
Example:
Jill consumer -------- Hardware Store
Injury from defective product



Store sold product in original carton.
State law makes store liable if product defective
What should store do? Look at contract to see if manufacturer would indemnify
(expressly or impliedly) the store
o Under tort law, any judgment against store could get contribution from
manufacturer
What if…
#1. Consumer v. Store
–Defective product
–Judgment for plaintiff
#2. Store v. Manufacturer
–Indemnity for defective product
–Manufacturer precluded from contending that the product was not defective because they were
precluded from first lawsuit and didn’t have an opportunity to raise it
 So you could wind up with differing jury verdicts
Impleader as Solution
If Retailer can implead Manufacturer---1. There may be some minor cost savings to system from having one rather than two
proceedings involving the same injury.
2. Because Manufacturer is a party, it will be bound by the determination of the
defectiveness of the product.
In our consumer, retailer, manufacturer case, suppose…
 Store counterclaims against Consumer for unpaid bill
o Compulsory or permissive counterclaim? Would want to know what it is an unpaid
bill for (compulsory--if it is for the saw that injured her)
o Permissive will have to have independent basis for jurisdiction
 Consumer has turned financial affairs over to financial consultant, to whom bills are
supposed to go and who is supposed to pay them.
o What should Consumer do when served with counterclaim? Double impleader. If
32
Store am liable for unpaid bill, then so is the service I use to pay my bills, and Jill
(consumer) can implead a third party (Rule 14(b)). Store can implead
manufacturer.
Impleader in Action: Farmer sues Contract
Price v. CTB, Inc.
 Court allows Latco to bring in ITW
 There MUST BE a substantive basis under Alabama law for allowing the impleader
(which the court finds this doctrine of implied indemnification)
Conditions for Impleader
 “if third party’s liability is in some way dependent on outcome of original action.”
o “third party liability must in some way be derivative of the original claim.”
o “third party may be impleaded only when the original defendant is trying to pass
all or part of the liability onto that third party”
 But not—
o If third party “solely liable to the plaintiff”
o “A third party claim is not appropriate where defendant . . . says, in effect, ‘It was
him, not me.’”
 Impleader creates no substantive liability.
o If Court had decided that Alabama law did not allow “implied contractual
indemnity” then no “may be liable” theory and no impleader?
 If there’s a right to indemnity or contribution in the substantive law, impleader allows the
suit for indemnity to be combined with the suit that creates the conditions for
indemnification.
Variations:
 Once impleaded, could ITW assert a claim against Latco for an unpaid bill?
o Yes, 14(a)(2)
 Could Price assert a claim against ITW?
o Yes, 14(a)(3)
 Can ITW assert that the houses weren’t defective at all, but instead Price’s poor
maintenance led to their failure?
o No, this is a defense you would make at trial/motion for SJ based on facts
 If Latco believes that the houses were in fact destroyed by Farmer Jones, a rival chicken
farmer, can Latco implead Jones?
o No
Problem 6 (p.759)
 (a) Yes
 (b) Yes, 14(a)(5)
o But Nails waited 6 months to bring in Metal Co.
o 14(a)(1) deals with timing: third party plaintiff must obtain courts leave after 14
days after serving its original answer
o Two objections: not a proper impleader (not “is or may be liable”) and timeliness
33
Impleader & Supplemental Jurisdiction
Problems (p.761)
1. #1
a. Possible cross-claim (13(g))
i. We have a rule, but we need jurisdiction (1367): arises out of the same
transaction
ii. 1367(b): because this is founded on diversity only under 1332, must look
here, but none rules of these apply
iii. So federal court will have supplemental jurisdiction over a state law claim
b. Wouldn’t file a pleading (not asserting a claim against anyone…)
i. All they are saying “it wasn’t me, it was him”
ii. So they would just answer and assert this
c. Does not satisfy 13(g) because it is not arising out of the same transaction
i. But if this was related, under Rule 18, the manufacturer can assert other
unrelated claims
d. D wants to assert counterclaim against plaintiff
i. Allowed under 13(b)--permissive counterclaim
ii. Jurisdiction? Yes.
e. Can assert contributory negligence
2. #2
a. Defendant wants to sue plaintiff and competitor
b. 13(a) counterclaim against plaintiff
c. 20 claim against competitor
*See note-cards for other problems
Kroger v. Omaha Public Power District and Owen Equipment v. Kroger
 Kroger brought a wrongful death suit against OPPD based on diversity
 Possible defendants:
o OPPD
o Paxton (employer)
 Limited recovery because of Workers Comp.
o Owen Equipment (owner of crane)
 Kroger originally just sues OPPD
 Kroger wants to now assert a claim against Owen--14(a) permits it, but does court have
jurisdiction?
 District court dismisses OPPD…so we are left with Kroger and Owen
 Owen wanted to claim that there wasn’t SMJ because they are from the same state
o Owen moved to dismiss under Rule 12(h)(3)--do not waive SMJ…can even be
raised at trial
 US SC: since there is no complete diversity of citizenship, there can be no jurisdiction
 In original matter, Kroger could not have sued Owen and OOPD. Cannot sue later either.
 1367(b) codifies Kroger
 Rules would be useless if you could get around them, as Kroger tried to do once they got
into federal court
34
2/28: Compulsory Joinder & Intervention
First, ask if there is a rule that allows joinder. Then…
Jurisdiction Review:
 Is there federal question jurisdiction?
o Joined claim arises under federal law
 Is there diversity jurisdiction?
o Complete diversity of citizenship AND
o Claim is for more than $75,000
 Is there supplemental jurisdiction under 1367?
o Is original claim founded on federal question?
 If so, then there is supplemental jurisdiction over the joined claim if the joined claim
arises out of the same case or controversy. 1367(a)
o Is original claim founded on diversity jurisdiction?
 If so, then there is still supplemental jurisdiction over the joined claim if it arises out of
the same case or controversy UNLESS it is a claim by the plaintiff against a party joined
under Rule 14, 19, 20, or 24 AND exercising supplemental jurisdiction destroys complete
diversity. 1367(b).
Rules 19 & 24 Overview
 Rule 19: Parties arguing that justice will not be served if court proceeds without some
non-party.
 Rule 24: Non-party arguing that justice will not be served if court does not allow
intervention of that non-party.
Compulsory Joinder--Rule 19(a)
(a) Persons Required to be Joined if Feasible
(1) Required Party. A person who is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) In that person’s absence, the court cannot accord complete relief among
existing parties; or
(B) That person claims an interest relating to the subject of the action and is so
situated that disposing of the action in the person’s absence may:
(i) As a practical matter impair or impede the person’s ability to protect
the interest; or
(ii) Leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of the
interest.
Overview of Rule 19
 19(a): is non-party important enough to case that it should be joined if possible?
o Explored in Temple
o If not, no 19(b) analysis necessary
 19(b): is non-party “indispensable” such that court cannot proceed without it?
o Explored in Helzberg’s
Note 6: most frequent cases for joinder under Rule 19
35


Joint obligees or obligors, but not all joint obligees or obligors are joined as parties
Ownership of real or personal property in which some persons claiming an interest are
not included as parties
 Representative parties in which either the representative or some of the parties being
represented are not included
 Limited fund or pool of assets, such that potential claimants who are not parties will find
the funds depleted when their cases are heard
Temple v. Synthes Corp.
 Temple is injured when a “plate and screw” was implanted in his lower spine. He sued
the manufacturer of the device (Synthes) for products liability in federal court.
 Temple also sued the doctor and hospital for negligence/malpractice in state court
 Synthes’ argument under Rule 19: two cases going on that involve the same plaintiff and
controversy (efficiency argument)
 US SC: district court “abused its discretion”
o Not necessary for all joint tortfeasors to be named as defendants in a single lawsuit
o A tortfeasor with the usual joint and several liability is merely a permissive party
to action against another with like liability
o No inquiry into Rule 19(b) is necessary because the threshold requirement of Rule
19(a) has not been satisfied
 In that person’s absence, the court cannot accord complete relief among
parties
 Doesn’t meet this because complete relief will be given in two
court hearings (federal and state proceedings)
 That person clams an interest relating to the subject of the action and is so
situated that disposing of the action in the person’s absence may
 Impair or impede the person’s ability to protect his interest:
o Doctor/Hospital can still argue in state court that they did
not do anything wrong because they were not parties to
federal litigation so their interests were not impeded
 Inconsistent judgments:
o Possibility of inconsistent judgments but not enough of a
substantial risk
o Other reason: party autonomy…it was the plaintiff’s decision to bring two separate
lawsuits…they chose to allow the opposing parties to point the finger at the empty
chair
Rule 19(b) When Joinder is Not Feasible
If a person who is required to be joined if feasible cannot be joined, the court must determine
whether, in equity and good conscience, the action should proceed among the existing parties or
should be dismissed. The factors for the court to consider include:
(1) The extent to which a judgment rendered in the person’s absence might
prejudice that person or the existing parties;
(2) The extent to which any prejudice could be lessened or avoided by:
(A) Protective provisions in the judgment;
(B) Shaping the relief; or
(C) Other measures;
36
(3) Whether a judgment rendered in the person’s absence would be adequate; and
(4) Whether the plaintiff would have an adequate remedy if the action were
dismissed for non-joinder.
Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center
 Helzberg sued Valley West Mall for breach of lease agreement when Valley West
allowed Lord’s (another jewelry store) to sign their own lease in the mall
 Helzberg wants an injunction against VW to stop its lease with Lord’s
 Most likely outcome: court will issue injunction against VW and then Lord’s will sue
them saying that they are breaching the lease
o Strong, strong risk of inconsistent judgments…satisfies 19(a)!
 Why can’t they just join Lord’s? No PJ over Lord’s
 Question for Court: should we proceed without Lord’s? What should we do because we
don’t have PJ?
 Court says no prejudice without Lord’s
o Prejudice to Helzberg? No
o Prejudice to VW? VW did this to themselves by executing a bad lease with
Lord’s…if they are subject to inconsistent judgments, it’s their fault.
 Now look at 19(b)…Lord’s is not an indispensible party
Rule 24(a): Intervention of Right
On [1] timely motion, the court must permit anyone who:
(1) Is given an unconditional right to intervene by a federal statute; or
(2) Claims an [2] interest relating to the property or transaction that is the subject
matter of the action, and is [3] so situated that disposing of the action may as a
practical matter impair or impede the movant’s ability to protect its interest [4]
unless existing parties adequately represent that interest.
NRDC v. US Nuclear Regulatory Commission
 Public interest group is suing a federal agency for injunctive relief to prohibit those
agencies from issuing licenses for the operation of uranium mills in NM without first
preparing environmental impact statements
 Intervenors: Kerr-McGee, United Nuclear
o Motion for United to intervene was granted because the parties did not oppose
 Assuming in this case that this motion is timely
 Impair or impede its ability to protect its interest: litigation will determine whether Kerr
can operate their mills or not
 But doesn’t United properly represent their interests?
o United has a defense of laches that is not available to Kerr
o United may be ready to compromise the case by obtaining a mere declaration that
while environmental impact statements should be issued, this requirement would
be prospective only and would therefore not affect them because they already
have a license issued
 Whereas Kerr does not have a license yet
 As a technical matter, the judgment does not apply to them…BUT…though Kerr could
re-litigate the issue, the doctrine of stare decisis would apply
37

What about American Mining Congress? Represents a number of companies having a
wide variety of interests
o Interests are a little different that Kerr
o More of an indirect, representative interest
o 10th Circuit allows them in
DISCOVERY
3/2: Relevance & Duty to Preserve Evidence
Pros & Cons of Broad Discovery
 Pros:
o No surprises
o More settlements, summary judgments
o More cases decided on merits???
o Less trials???
 Cons
o Expense
o Time consuming
o Problem of over- and under-discovery
o Less cases decided on merits???
o Less trials???
Structure of Discovery
 General characteristics:
o Initiated by parties; judge intervenes only in case of dispute.
o Judge has broad discretion.
o Generally confined to information that is a) “relevant” to a claim or defense and
b) not “privileged.”
 Other exceptions – stay tuned
 Stages of discovery
o “Mandatory disclosure” – matters that parties may use to support their own claim
or defense (Rule 26(a)) (i.e. initial disclosure--parties voluntarily give information
to each other without any court order that supports their claim or defense)
o Each party requests further information from other as to other matters “relevant to
claims and defenses” through various methods (Rule 26(b)) —
 More detail about disclosures that have already occurred
 Disclosure of information that one party doesn’t want to use but the other
does
 By leave of court for good cause shown
 Discovery of info “relevant to subject matter involved in the
action”
Rule 26(b): Who, What, and When?
(1) Scope in General “Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense. . . . For good cause, the court may order discovery of
38
any matter relevant to the subject matter involved in the action. Relevant information need not
be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery
of admissible evidence.”
(2) Limitations on Frequency and Extent.
… (C) “On motion or on its own, the court must limit” discovery for several enumerated reasons.
 A court can limit discovery if it determines that the discovery is unreasonably cumulative
or duplicative, obtainable from another source that is more convenient, less burdensome,
or less expensive, or the burden or expense of the proposed discovery outweighs its likely
benefit
Davis v. Precoat Metals
 Facts: plaintiffs bring claims against Precoat Metals on the basis of Title VII & hostile
work environment (race & national origin)
 Discovery requests at issue: plaintiffs limited their requests to: (i) the 1998-to-February
2002 time period; (ii) complaints by employees who worked at the same Chicago plant
where plaintiffs worked; & (iii) complaint of race & national origin discrimination
 Precoat’s arguments: too broad
o Not legally relevant: just because there are other claims doesn’t tend to prove this
claim
 Court: no, these are narrowly tailored discovery requests; it does tend to
prove or disprove (as long as they are narrowly tailored)
o Too burdensome
 Court: no, these are narrowly tailored because ask for a certain time
period, same plant, same type of claim
Steffan v. Cheney
 Facts: plaintiff resigned from naval academy, but he claims that he was constructively
discharged because he made statements proclaiming that he is a homosexual
 Issue: plaintiff refuses to answer in discovery if he engaged in homosexual acts (not
relevant to his claim in this case because he was not discharged for engaging in
homosexual acts but for proclaiming himself as a homosexual)
 In an administrative proceeding, court is only able to review record…if this conduct is
outside of the record (which it is…there is no mention of acts of homosexuality in the
record), then it is not relevant
o Judicial review of an administrative action is confined to "the grounds…upon
which the record discloses that [the] action was based." SEC v. Chenery Corp.,
318 U.S. 80, 87 (1943). This rule applies with equal force to judicial review of
administrative actions by the military.
 GREAT EXAMPLE OF FOCUSING IN ON WHAT THE CLAIM IS
How do you reconcile these cases?
 Both cases focus on the narrow relevance of the claim at issue
Procedural Issues:
 What led to the district court rulings in these cases?
 Could defendant in Davis have sought an appeal?
39
o Court has broad discretion
 How did Steffan reach an appellate court?
o He wouldn’t answer so district court sanctioned him (dismissal of the case…which
is immediately appealable)
o So that is how we get to D.C. Circuit
 What does this tell us about the power of district courts in discovery matters?
o Very, very strong
Discovery the “irrelevant”
 Albert and Barbara are involved in an automobile collision. Albert sues Barbara; Barbara
denies liability.
o Can plaintiff discover the size of defendant’s bank account? Not relevant to
damages element of claim because she must show damages resulting from her
injuries (has nothing to do with amount in his bank acct.)
 But if it is a claim for punitive damages, bank acct may be relevant
because purpose is to punish
o Can plaintiff discover whether defendant has an insurance policy?
 Is the existence of defendant’s auto insurance policy relevant to proving
claim? Not relevant to DBCD; but relevant to the system because
ultimately if there is a policy, the insurance company will be involved
 Is it discoverable? Yes, under Rule 26(a)(1)(A)(iv)
 To promote settlement
 One exception to discovery rules
Discovery Plan in Jones v. Clinton
You are associates working with Clinton’s lawyer Robert Bennett. Judge Wright has decided
Clinton’s 12(c) motion and allowed Jones’ amended complaint. What are your major discovery
objectives? What constraints must you consider?
 Discredit Jones (information to embarrass her)--esp. because she is claiming damage to
reputation
o Employment records
 Review sheets, other employment data
 No adverse job actions (no opportunities for advancement that she was
passed over for)
 Prior complaints of sexual harassment
 Goes to show that she has no damages
o Medical records
 Emotional instabilityto show if she is actually distressed
o Names of “witnesses” people she says will corroborate her case
o Who is paying?
 Politically motivated?
o Depose any documents regarding fraudulent insurance claims, credit history (to
show that she is a liar)
o Hotel records
o Criminal record
 Call up Jones’ lawyer (Ferguson) and talk it out…establish a good repertoire
 Clinton’s past
40


Credibility
Detailed info from White House to show Clinton’s whereabouts
3/7: Initial Disclosures, Asking Questions in Writing
Discovery Thus Far:
 Discovery generally permitted as to non-privileged matters “relevant to claims and
defenses.”
o “Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.”
o Need to analyze claims and defenses carefully!
 Broad discretion of district courts.
 Insurance policy is technically irrelevant but nevertheless discoverable.
Spoliation of Evidence:
 “Spoliation refers to the destruction or material alteration of evidence or to the failure to
preserve property for another’s use in pending or reasonably foreseeable litigation.”
o Where does the duty to preserve evidence derive from? Discovery is party-driven.
We don’t want parties destroying evidence. This comes from the court’s inherent
power to ensure fair litigation
 Had accident. Hired a lawyer who hired an expert to examine car. He came to the
conclusion that the airbag had not been deployed. Couple of years pass before the lawsuit
is filed, and there is no car to be found.
 Why did Silvestri lose?
o It wasn’t even his car! It was his landlady’s, but the court says too bad…you had
access to the car. You had a duty to preserve evidence.
o Was sanction overly harsh?
o This was Silvestri’s lawyer’s fault; is it fair to punish Silvestri? Yes, for the
adversary system to work, we have to punish the client for the misdeeds of the
lawyer
 Silvestri could have a claim against his lawyer…but would have to prove
that he would have won underlying case (but there is no evidence!)
Stages/ Methods of Discovery
1. Initial Meeting of Parties and Initial Disclosures
2. Scheduling Conference With Judge; Scheduling Order
3. Party-Initiated Discovery – ORDER IS UP TO PARTIES!
a. Interrogatories
b. Basic questions: Who’s in charge of what, where are records kept, what documents
do you have?
c. Requests for Admission
i. Another stage of pleading???
d. Requests for Production of Documents and Things
i. “Give us X and Y”
e. Depositions
i. Function is elicit and “freeze” story.
41
Timeline:
 Complaint
 Answer (Rule 12)--21, 60, 90 days
 Conference of Parties (Rule 26f)--minus 21 days from 4 months
 Report to Conference/Initial Disclosures--minus 7 days from 4 months
 Scheduling Order (Rule 16b)--4 months
 Trial
Initial Disclosures
 Mainly just giving descriptions…not actual production yet (very expensive)
 Innovation in the 2000 Amendments to the Rules.
 Information that the “disclosing party may use to support its claims or defenses”
(26(a)(1)) including:
o Names and locations of witnesses
o Copies of documents OR a description by category and location of documents
o Computation of damages
o Insurance Policy
 26(a)(1)(B) exempts a small category of cases.
***A few categories of information (e.g. privileged, work-product) do not need to be disclosed
here or elsewhere in the discovery process – MORE LATER!
Problem 1 (p.427): what initial disclosures?
 For Albert?
o Names & location of witnesses
 Just name of witness at intersection
 Does he have to give the boss? No, because does not support his claims or
defenses
o Medical records (can just give a description)
o Piece of paper with computation of damages
 For Barbara?
o Witnesses
 Probably doesn’t need to turn over boss’s name now
 Mechanic? Probably. Could go toward her defense that she did not
maintain her vehicle
 Vagrant?
 All parties must disclose a medical expert (26a2)…at the latest, 90 days before trial
o Name, CV, written expert report
 What if he makes his disclosures and then receives a new medical bill? Must reveal any
information that you receive later (supplement is ongoing)
Rule 37(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit
(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a
witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.
 NOTE THAT COURT MAY ALSO IMPOSE OTHER SANCTIONS!
42
Rule 33. Interrogatories to Parties
(a) In General.
(1) Number. Unless otherwise stipulated or ordered by the court, any party may serve on
any other party no more than 25 written interrogatories…
(2) Scope. An interrogatory may relate to any matter that may be inquired into under rule
26(b). An interrogatory is not objectionable merely because it asks for an opinion or
contention that relates to fact or the application of law to fact, but the court may order
that the interrogatory need not be answered until designated discovery is complete….
(b) Answers and Objections …
(2) Time to Respond. The responding party must serve its answers and any objections
within 30 days after being served with the interrogatories…
Pro: cheap and easy; good for getting small pieces of information
Con: not always effective






p. 429-30
Problem 1(a): store does not have to answer because they are not a party…cannot induce
interrogatories
Problem 1(b): manufacturer does not have to answer because there are too many (25 is
limit)…can ask for the court’s leave
Problem 2:
o (a) Objection to privilege/work product; parties can also seek a protect order that
doesn’t allow the particular discovery
o (b) No, objection must be timely under 33(b)(4); if not, you waive it
o (c) Write a letter saying that she doesn’t understand what he means…she can move
to compel if she doesn’t get any clarity
Problem 3: Is listing records ok?
o Rule 33(d): “if burden is substantially the same for either party;” and can give the
interrogating party a reasonable opportunity to examine and audit the records and
to make copies, etc.
Clinton’s interrogatory (PoP p.79) = contention interrogatory (“that you contend was
taken as a result…”)
o Usually can be answered at the end of the discovery period
Admissions: Rule 36
 When? After 26(f) conference
 What subject? Anything relevant under Rule 26.
 Another stage of pleading? Other party must admit or deny.
o An admission is deemed conclusively established (unless court permits withdrawal
or amendment)
o Purpose is to lock in facts.
o Unlike pleadings, defendant gets equal opportunity to have plaintiff admit or deny
facts.
 Problem 4 (p. 431): if a witness told them something, do not have to make an admission
because it is not conclusive
43
o But, if it said: admit that a witness told you X, then they would have to respond to
that
o Compare admission to—e.g., interrogatory
 If Π served Δ with interrogatory asking for names of any witnesses who
had seen anyone trip on tent wire—would Δ have to supply boys’ names?
 Does that mean Δ has to admit prior “trips”?
 Why?
 Could boys be wrong, lying, mistaken?
 Interrogatories, depositions are evidence about contested events;
admission removes event from list of contested events
 Admission in one case cannot be used for any other purpose
3//9: Discovery III: Requests for Production of Documents and Things, Depositions
Rule 34: Request for Production of Documents
o When? After initial disclosure and after 26(f) conference
o What subject? Anything relevant under Rule 26.
o Very broad document requests are the norm.
o But what’s good for the goose is good for the gander!
o “Document” = very broad. See 34(a)(1)(A)
o Response/Objections in 30 days. See 34(b)(2).
o Documents must be produced according to category OR as kept in ordinary course of
business. See 34(b)(2)(E)(i)
o Can be sent to non-parties via Rule 45. See 34(c).
Problem 1 p. 433:
1. Photograph
a. Not if it will be used solely for impeachment
b. Not being able to use it; under Rule 37
c. Yes, a photograph counts as a document
d. Turns on whether failure to produce was harmless or not
2. Can subpoena a third party under Rule 45
3. Defendant can object as overly broad; not relevant under 26(c)
Rule 35: Physical Examinations
(a) Order for an Examination
(1) In General. The Court may order a party whose mental or physical condition is in
controversy to submit to a physical or mental examination
(2) Motion and Notice; Contents of Order. The Order. (A) may be made only on motion for
good cause
Problem 4
o (a) Depends if he is still injured…but if its only for past medical bills, then probably not
o (b) Yes, if Pat requests one
o (c) Yes, by request
Depositions (Rule 27-32)
44
*Rule 30
o Pros and cons?
o (Most?) effective way to get information but very expensive.
o Goals?
o Gain information, get admissions
o How do you get a deposition?
o For a party, issue a “Notice of Deposition pursuant to Rule 30.” See 30(b)(1).
o For a non-party, use a subpoena. 30(a)(1).
o Limit of 10 depositions, 7 hours per dep.
o Common issues:
o Can you depose a company? Rule 30(b)(6)
 Managing directors, agents, officer etc.--company will pick who it wants
to answer the questions
 I.e. if the questions are financial, CFO can answer, etc.
o In a deposition, what questions can lawyer direct witness not to answer? What
questions must witness answer even if “improper”?
 Cannot instruct your client not to answer unless, under 30(c)(2), it
preserves a privilege
o What’s the theory behind requiring witness to answer an objectionable question?
 There is not judge there to rule on the objection
o What do you do if a witness refuses to answer a question?
 Problem 1(c) (p.435): try to work out with the lawyer
 Under 30(d)(1), can allow additional time if lawyer needs extra time to
fairly examine deponent
 Rule 31: to compel
Rule 31: Deposition by Written Question
 Cooper has never seen this used
 Very limiting
3/21: Limitations on Discovery in an Adversary System I: Privilege; Trial Preparation Material;
and Expert Information
Overview:
Some information is relevant, but the rules nevertheless place that information outside of the
reach of discovery.
 Privileged information. See 26(b)(1)
 Trial preparation material. See 26(b)(3)
 (Non-testifying) Expert information. See 26(b)(4)
 Overly burdensome discovery. See 26(b)(2)
 Overriding privacy concerns (next class)
Why? Some other public policy reason that we think is important than open discovery.
Relevance v. Privilege
Relevance:
 Relevance ties discovery and evidence to substantive law.
o A matter of inference and common sense, not technical law
45

“Irrelevant” means that substantive law denies significance of this information.
o E.g. motive for breach of contract.
Privilege:
 Privilege trumps relevance.
o Not intuitive; technical, detailed.
 “Privileged” means that we think something more im-portant than “correct” outcome of
case.
o E.g., relational privileges (doctor-client, spousal, lawyer-client)
Problem 1 (p.440)
Albert sues Barbara alleging that she intentionally drove her car into Albert’s. At deposition, he
asks if:
 Did you intentionally collide with Albert?
o Relevant? Yes
o Privilege? Barbara’s lawyer can make the objection under privilege against selfincrimination (even though this is a civil case; could then face criminal charges)
 However, this can be commented on in a civil case
Albert sues Barbara for intentional infliction of emotional distress. Barbara seeks to discover
existence and contents of Albert’s psychiatric records.
 Relevant? Yes
 Privileged (what privilege?) Doctor-patient
 Can Barbara get them? Yes
 Why? Because it goes to the basis of the claim. Albert put this in issue. Privilege
would be overcome because he raised it.
Attorney-Client Privilege
 Communications among privileged persons in confidence for the purpose of
obtaining legal advice
o Communications are privileged; facts are not.
 Not privileged: “where were you that night?”
 Privileged: “what did you tell your lawyer about where you
were that night?”
 In the corporate setting, communications between the lawyer and the
corporation’s employees are generally privileged. Upjohn.
o Old rule: “control group”
o New rule:
 Documents removed from privilege must be listed on a “privilege log.” See
26(b)(5).
 The problem of waiver
See chart on slide #6
Trial Preparation Material:
Hickman v. Taylor
 Defense attorney had interview other persons believed to have some information relating
to accident and in some cases he made memoranda of what they told him
46




Plaintiff wants this information…its relevant
Privileged? Case was decided before Upjohn so these conversations with company
employees were not privileged (at the time)
Court says they are not discoverable--it would destroy the adversary system…can’t have
one attorney doing all the work for the other
If relevant & unprivileged, why not discoverable?
o “Discovery was hardly intended to enable a learned profession to perform its
functions either without wits or on wits borrowed from the adversary.”
Hickman Today
 Hickman codified in Rule 26(b)(3): “Ordinarily, a party may not discover documents and
tangible things that are prepared in anticipation of litigation or for trial by or for another
party or its representative….”
 Qualified Immunity: Discoverable if “party shows it has substantial need for the material
to prepare its case and cannot, without undue hardship, obtain the substantial equivelent
by other means.” 26(b)(3)(A)(ii).
o BUT “opinion work product” remains immune from discovery. 26(b)(3)(B).
 In your memo: “This memo contains my opinions and impressions…”
 WORK PRODUCT IS NOT AN ABSOLUTE IMMUNITY…QUALIFIED
Scope and Limits of Work Product Doctrine
 Doctrine applies to nonlawyers: party’s representatives “including consultant, surety,
indemnitor, insurer, agent.”
 Example: Fortenbaugh spends hours and thousands of client’s dollars combing the
riverside and discovers a witness who saw everything. Fortenbaugh interviews him and
drafts a memo about the interview. What can other side discover and how?
o Initial disclosure: must disclose the names of potential witness that has
information that Fortenbaugh intends to rely on
o Then Plaintiff can depose the witness
 Party or witness may obtain copy of own written or recorded verbatim statement.
26(b)(3).
Privilege v. Work Product
A-C Privilege:
 “Communications among privileged persons in confidence for the purpose of obtaining
legal advice.”
 Source: law of evidence.
 Absolute immunity
 Narrower: communications only
 Broader: A-C communications seeking legal advice about any subject.
 Facts themselves are never privileged!
Work Product:
 “Documents and tangible things that are prepared in anticipation of litigation or trial by
or for another party or its representative.”
 Source: Rule 26(b)(3).
47




Qualified Immunity
Broader: All tangible and intangible material
Narrower: Material must be created in anticipation of litigation.
Facts themselves are never work product!
Discovery with Experts:
 What is an expert? See Fed. R. Evid. 702
o If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to
the facts of the case.
 Problems of Expert Testimony in the conduct of litigation
o How will parties find out that experts are involved?
o How will the parties be able to probe expert’s qualifications & scientific validity
of methods?
o How will parties find out what the experts have concluded?
o How will the parties probe experts’ opinions?
 The Rules’ Answers:
o Identities of experts?
 26(a)(2)(A)--Disclose identities of potentially testifying experts
 Parties know this involves experts from beginning
o Qualifications & contents of opinions?
 26(a)(2)(B)--testifying experts must submit bio & report
 26(b)(4)--non-testifying experts
o Probing expert testimony?
 26(b)(4)--routine deposition of testifying expert; special showing for
nontestifying expert
 Materials created by experts – the rule is changing.
 Work product protection for early drafts of experts…and
protection between conversations between expert and lawyer
 Problem 1 (p.450)
o (a)(1) Dr. House is a fact witness and must be disclosed under 26(a)(1)…not an
expert for the purposes of the rules
o (a)(2) Dr. Welby is an expert…if he is a testifying expert, he must be disclosed
under 26(a)(2). If he is a non-testifying expert, then no disclosure necessary
o (a)(3) No, Dr. House is not required to submit a report because he is just an
ordinary fact witness.
o (a)(4) Yes, Dr. Welby can be deposed if he is going to be a testifying expert
o (b) Must make a special showing to depose a non-testifying witness
Non-testifying Expert:
An expert hired in anticipation of litigation isn’t testifying because. . . .
1) Conclusion didn’t match theory of the case
48
2) Good science, bad witness
3) Good conclusions but flunked Daubert
4) Fee dispute, unavailability, better witness, etc?
5) Or party wants to be able to have frank, non-discoverable conversations with expert.
And other side wants this info. . .
–Hopes it’s reason #1
Thompson v. Haskell
 Plaintiff was suing her employer for sexual harassment
 Defendant wants to depose Dr. Lucas, a non-testifying expert psychologist
 Court says that he can because her mental state (10 days after the alleged incident) is
highly relevant--Dr. Lucas is the one who examined her closest to the alleged incident
 Is it privileged? No but it could be but she brings her mental state up
Chiquita International Ltd. V. Bolero Reefer
 Bananas sues shipper after 43,000 bananas were lost as sea because of faulty loading
cranes
 Bananas has a marine surveryor to meet the vessel and examine it…expert prepares a
report, which the defendant wants
 Report is relevant and not privileged
 Court does not allow discovery because Reefer had its own chance to get the
expert…hints back to the work product doctrine (lawyers should do their own work)
3/23: Discovery & Privacy
Rule 26(c): Protective Order:
(1) In General… “The court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense, including one or more
of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to
certain matters….”
Stalnaker v. K-Mart
 Depose these four women who also work at the same office to question them about the
culture at K-Mart and concerning voluntary romantic conduct or their sexually related
activities
 Even if relevant, court can order a protective order to hide embarrassing information
 Court: inquiry into voluntary romantic or sexual activities with Mr. Graves to the extent
they show any conduct on his part to encourage, solicit, or influence any employee of the
defendant to engage or continue in such activities
o Also, cannot harass or embarrass…must use only for the purposes of litigation
Privacy Issues in Jones v. Clinton
 Clinton’s Motion For Protective Order (page 102)
49



o What is Clinton asking for? Limit scope of discovery to purported incidents of
nonconsensual conduct by him occurring close in time, and in the same work
place--the AIDC--as the events alleged in the complaint
o What are Clinton’s arguments?
 Overly broad
 Asking for 20 years bank of consensual relationships
 Anything outside of him being governor is irrelevant
o What are Jones’ arguments?
 Could lead to the discovery to admissible evidence
 Testimony of other women goes to give credibility of Jones’ claim
 Consensual relationships can still be sexual harassment…consented
because of the possibility of advancement…who decides what is
consensual?
o How does Judge Wright rule?
 He limits discovery to 5 years before and 5 years after…allows discovery
to employees who had sex with Clinton where state troopers were
involved
o This is not attorney-client privilege…then it would be wholly outside of discovery
o Also, this is not work product. Then, it would also be outside of discovery unless
a substantial need was demonstrated.
Clinton’s lawyers are pre-judging the evidence…judge has no idea what the evidence
would show
“Power of procedure”led to Clinton’s impeachment
Rights of nonparties (Judge Wright’s Order of Jan. 9, 1988)
o By what mechanism can a nonparty protect itself from discovery? Motion for
protective order under Rule 26 (party usually makes on behalf on nonparty)
3/28: Discovery VI: Ensuring Compliance and Controlling Abuse of Discovery
Anatomy of Discovery Abuses:
1. Too little discovery: “stonewalling”
2. Too much discovery: “scorched earth”
3. Mismatched discovery
a. Generally a result of significantly unequal resources
Tools for Managing Discovery:
 Limits on discovery
o See Rules 26(b)(1), 26(c), 26(g).
o Signature requirement…swearing that discovery is for a proper purpose
 Sanctions for bad behavior.
o See Rules 26(g) and 37.
 Judicial supervision
o See Rule 16.
Problem 1 (p.462)
 “Meet & Confer”: First, send a letter to the other side, trying to work it out (at least one,
if not two)
50


o Plus, an attempt to confer over the telephone
Then, you file a motion to compel the other side to answer interrogatories
Rule 37(a)(5): If the motion is granted, the court must require the other party to pay
mandatory expenses, including attorney’s fees, of making the motion
o However, if the other side has a good faith argument and position was
substantially justified, then the court cannot order payment of expenses
Rule 37:
 Typical discovery dispute: Party issues discovery request and receives inadequate (or no)
response. What can responding party do?
–Step 1: Try to work it out! See 37(a)(1).
–Step 2: Obtain an order compelling disclosure. See 37(a)(3)(a)
o No monetary sanctions if “nondisclosure, response, or objection was substantially
justified.” 37(a)(5)(A)(ii).
–Step 3: Obtain sanctions for failing to comply with order. See 37(b)(2)(A).
Theory of “Meet & Confer”
 Parties will either—
–Realize they can solve this on their own;
–Narrow the range of what they disagree about
 Result: raises “cost” of making motion; also raises cost of Rambo tactics
–Have to document efforts to resolve in good faith
–Refusal to discuss will have consequences
Problem 2 (p.462): failure to do something in response to discovery request
 Make a motion for sanctions under 37(d)
 Possible sanctions: reasonable attorneys fees, any of the ones in 37(b)(2)
Zubulake v. UBS Warburg LLP
 What was Zubulake’s claim? Gender discrimination
 What discovery did she seek? Email exchanges found on certain back-up tapes
 Why didn’t UBS produce the requested information? Certain back-up tapes were
missing…even though they delete every three years, this was still within the three years
 What discovery rule did UBS violate? No discovery rule was violated (all they can say is
“Your Honor, I can only produce what I have.”)
 Parties’ duty: duty to preserve relevant evidence
o When does it arise: when the party has notice that the evidence is relevant to
future litigation (usually arises earlier than when the law suit is filed--when
litigation is reasonably foreseeable)
 Remedy:
o Reconsideration of cost-shifting order (court says no)
o Adverse inference on jury instruction
 Duty to preserve
 Culpable state of mind (intentional or at a minimum, grossly negligent)
 Relevance of information (she does not meet her burden at this element)
o UBS must pay the costs of additional depositions (court allows this)
51

Problem is that the lawyers for UBS do not understand their client’s information
management system
Discovery Today
 How much has the explosion of electronic information changed discovery?
o Changes in the rules?
o Parties’ discovery plan must consider “any issues about disclosure of
electronically stored information, including the form or forms in which it should
be produced.” 26(f)(3)(C).
o Specific limitations on discovery of electronically stored information.
26(b)(2)(B)
o “Clawback” provision for privileged material. 26(b)(5)(B).
o Changes in practice?
 Increased expenses and complexity
 Advent of e-discovery consultants
 Hysteria
Sanctions in Jones v. Clinton
 What was Clinton sanctioned for?
 Did Judge Wright have authority to sanction Clinton?
o Rule 37(b)(2): “If a party … fails to obey an order to provide or permit
discovery…The court where the action is pending may issue further just
orders….”
o Policy arguments for/against?
 How did Judge Wright calculate the sanction?
 Agrees to be disciplined by the Arkansas bar…but will not admit guilt under provision
that involves dishonesty
Resolution Without Trial
3//30: Default Judgment, Involuntary, & Voluntary Dismissal
How Suits End Without Adjudication
 Abandonment by plaintiff
o May represent judgment on merits
o May represent inadequate financing of suit.
 Contractual resolution:
o Another forum: arbitration
o Settlement
 Arrived at by parties alone
 Assisted by mediation, or similar third-party
 Should judge do this?
The Pressure to Choose Adjudication or an Alternative
 Adversary system constructed to drive cases forward:
o Defendants who fail to defend themselves face default judgment under Rule 55.
o Plaintiffs who fail to prosecute case face dismissal under Rule 41.
52

Although these are strong remedies, courts are ambivalent about deploying them…
Default
Peralta v. Heights Medical Center
 Defective service: service was effected over 90 days after it was filed (too late under
Texas law)
 Defendant does not show up in court (though he had actual notice)…Hospital gets a
default judgment
 Defendant comes back, appeals, and says that he didn’t have service (and therefore, no
due process) so he wants the default judgment set aside
 Texas law says that it must be shown that the petitioner had a meritorious defense to the
action in which judgment had been entered, that the petitioner was prevented from
proving his defense by the fraud, accident, or wrongful act of the opposing party, and that
there had been no fault or negligence on petitioner’s part
 Court: this is unconstitutional and violates Due Process
o Court wants the case to start from the beginning because improper service boxed
the defendant in…Even if he didn’t have a meritorious defense, could have
impleaded the employee who debt, settled, or paid the debt
o Even people that will be total losers on the merits, have the right to be in court
and control their own destiny in terms of the way the case goes
FRP: Rule 55: Default, Default Judgment
***Federal rules say court may set aside default “for good cause” or under Rule 60(b)…broad
discretion
Real-life Problem
 Your client has been served with complaint. You’re working frantically on an answer,
but need more time.
o You call Π’s lawyer & request extension of time to answer; she says yes. You
sigh and go back to work.
o Any problem?
 Yes, oral agreementneed to put it in writing
 Must go to court--only court can extend the time (need a court order)
More on Default Judgments
 In real world, most default judgments occur because-o 1) Δ knows he has no defense (and no assets) so has rationally concluded that
hiring a lawyer & contesting case is foolish.
o 2) Δ’s lawyer has forgotten about a deadline
o 3) Δ’s lawyer has effectively abandoned the client, often as a result of substance
abuse or a personal crisis.
 So what to do if Δ tries to get default set aside?
o Unlikely in situation #1
o What about 2 & 3? What should court do?
 Easy cases: Π has contributed to problem (as in Peralta): set aside default
and start again
53

Hard cases: Π innocent
 Can stay with default and sue lawyer for malpractice
 Can set aside default—but why?
Legal System & the Neglected Client
 Default judgment may represent an abandoned client.
 What responsibility does bar have for lawyers who abandon clients?
o Malpractice insurance not required
 Compare car insurance and health insurance!
o Some states (including CA) have “client protection” fund
 But it typically covers only a limited amount ($50K) and covers theft from
client, not negligence.
 Defensible situation?
Default in Jones v. Clinton
 If Clinton took a default, then how would have Jones proceeded? See Rule 55(b).
o Enter a judgment by the court (by the clerk will not work because she did not ask
for a “sum certain”)
 Asked for a certain amount, plus attorney’s fees, nominal damages, and
other damages that the court deems so
o Court hearing (must give party notice for this)
o So there still would have been a public hearing! No avoidance of embarrassment
Rule 41: Involuntary Dismissal
 Flip side of default judgment – forces plaintiffs to move the lawsuit forward.
o Analogy: extension of statute of limitations???
 Why do defendants care if plaintiffs don’t pursue the case?
o Don’t want cloud of litigation hanging over you
 Difference between default and involuntary dismissal:
o Rule 41 makes involuntary dismissal discretionary
 Rule 55 makes default mandatory
o Can be raised by the court OR by the adversary
 Adversary in default is the only one who can raise it
 What constitutes “failure to prosecute?”
o Fairly fuzzy standard
Voluntary Dismissal
 When (if ever) should we permit plaintiff to simply drop his case?
 Two stages under Rule 41
o Before answer (or motion for SJ), plaintiff has right to voluntarily dismiss.
41(a)(1)(A)(i).
o After answer, need defendant’s permission or court order. 41(a)(1)(A)(ii);
41(a)(2).
 41(a)(2) grants court discretion.
 Why wouldn’t defendant be happy about voluntary dismissal?
o Voluntary dismissal without prejudice allows them to re-file
54

o Want resolution b/c you’ve spent all this money
o Defendant will want it filed “with prejudice” and/or a portion of their attorneys
fees
o Default route is without prejudice, unless with prejudice is asked for
What is effect of voluntary dismissal? Can plaintiff re-file?
4/1: Missed Class; Notes from Michael
I.
AVOIDING ADJUDICATION 4/1
A. Negotiation & Settlement: Why & How?
i. See slide on numbers
ii. Settlement: Ks reached through negotiation
1. Ex: iR prefers to settle for certain sum rather than go through uncertainty of a
trial
2. Simplest form is a release, whereby parties agree that Π will drop lawsuit in
exchange for $ or specific performance by Δ; Δ typically gets stipulation that
settlement is not confession of liability
iii. Two Versions of Settlement
1. Good
a. Both parties, mostly through counsel, aided by discovery, assess
value of claim, risk of trial
b. Converging estimates save both sides cost, risk, and time of trial.
2. Bad
a. Badly counseled Π ground down by Δ with greater resources
b. Δ, scared by small chance of very big jdmt, pays to settle meritless
claim.
iv. Pros
1. Faster and cheaper than trials
2. Settlement involves getting something, which may be better than getting
nothing
3. Settlements control risk, e.g. trials are risky b/c they…
a. Are significantly unpredictable; AND
b. Tend to be all-or-nothing
v. Parties do not need approval from judges when they settle their claims.
1. However, the judge must grant Π’s request to dismiss the case if that is part
of the deal.
2. Exceptions to no approval from judges for settlements arises in class actions
and minors.
vi. Ex: Jane v. Grow Co.
1. Pros of Settling
a. Jane
i) Money
ii) May be damaging to her reputation, could cause problems
finding new job; if have trial, all comes out
iii) More speedy resolution
iv) May be a weak case, this is way to control risk
b. Grow Co.
i) Avoid bad press as new company
ii) Claim may not be strong, but always a risk going to trial
iii) If Jane was doing something illegal, it was under Grow Co’s
watch
55
iv) Public trial could lead to new cases
v) Discovery is expensive and distracting
vi) Want to keep trade secrets / intellectual property private
2. Cons of Settling
a. Jane
i) May be more important than $ if wants to vindicate rights
ii) Settling may be implicit admission of case’s lack of merit
b. Grow Co.
i) She doesn’t have very strong claim; don’t want to set
precedent of settling frivolous cases
ii) May still have to disclose settlement to investors
3. What does settlement do for lawyers?
a. Π likely operating on contingency fees. Case is all or nothing, so
much safer to go ahead and settle.
b. Δ lawyer being paid by the hour; will likely not want to settle. Also
have reputational concern, e.g. will efficiently reach best outcome.
4. What about courts?
a. Helps them in that decreases their case load
b. Court often only knows that case settled, but not necessarily the
subject matter of the settlement
5. Should NOT just shake hands. Need a written doc.
6. What issues need to be addressed in settlement?
a. Money
b. Release
c. Dismissal of case (if filed)
d. Confidentiality
7. What form?
a. P agrees not to file lawsuit.
b. P voluntarily dismisses and agrees not to refile.
c. P agrees to dismiss with prejudice and agrees not to refile.
d. D agrees to a judgment against him.
B. 3rd Party Participation in Settlement: Facilitation, Encouragement, & Coercion 35 min
i. Why do settlement talks sometimes break down?
1. Parties have wildly divergent views about the value of their case and/or
2. Parties have problems communicating
ii. Mediation v. Arbitration
1. Mediation = assisted negotiation
2. Arbitration = trial by arbitrator
a. Binding v. non-binding
iii. Mediation
1. Assisted negotiation with 3rd party trying to reach settlement
a. Arbitration = trial by arbitrator
2. Non-binding, confidential, and can’t be used in litigation
a. Keep in mind that even though it is confidential you may be
revealing weaknesses in your case to the opposite side
3. 28 U.S.C. 651 provides that DCs must adopt local rules that “require litigants
in all civil cases to consider” ADR
4. Parties agree to terms
a. Non-binding
b. Confidential
c. Selection of mediator (increasing number of full-time pros)
56
d. Others?
5. Is there some non-monetary goal, e.g. Jane?
a. Any good lawyer / mediator thinking a/b settlement thinks beyond
dollars.
6. Should judges serve as mediators? 45 min
7. Disadvantages
a. Lacks power to coerce agreement b/t the parties or to rule on the
rights and obligations of the parties
b. Works best where parties have had a long term relationship, e.g.
labor or domestic relations
iv. Confidentiality
1. Businesses particularly interested in keeping not only the details of the
settlement but the existence of the lawsuit itself from public disclosure
a. Being sued is negative advertising
b. Don’t want seed of litigation planted in minds of other potential Πs
2. Usually in Πs besti interest to have settlement made part of public record
a. If ongoing litigation settled, automatically happens
C. Contracting for Private Adjudication: Arbitration 48 min
i. Introduction:
1. Can be binding or non-binding (non-binding is a complete waste of time)
2. Tried by an arbitrator instead of judge/jury
3. Parties can design own procedures, control substantive law
4. May be cheaper than litigation
5. Arbitrators tend to “split the baby”
6. Arbitration more private than ordinary adjudication.
a. The public, including the press, normally has a right to attend
judicial proceedings.
b. Docs filed in court and transcripts of judicial proceedings are
normally public records.
c. Arbitration is normally not open to the public and the parties can
agree that the outcome remain private
7. Arbitration awards are not subject to judicial review except for extreme
reasons
8. See slides
ii. Ferguson v. Countrywide Credit Industries, Inc. (9th Cir. 2002) 58 min
1. Facts:
a. Ferguson worked for Countrywide, but b/f here employment, she
was required to sign a K stating any claims would go to arbitration.
b. Subsequently, Ferguson filed a complaint a/g Countrywide and her
supervisor, alleging sexual harassment, retaliation, and hostile work
environment.
i) Countrywide, in turn, filed a petition for a court order
compelling arbitration.
ii) The court denied Countrywide’s petition based on the
doctrine of unconscionability.
2. Rule:
a. Sec. 2 of the Federal Arbitration Act provides that arbitration
agreements shall be valid, irrevocable, and enforceable, save upon
such grounds that exist at law or in equity for the revocation of any
K
57
b. Generally applicable defenses, such as unconscionability, may be
applied to invalidate arbitration agreements w/out contravening the
FAA
c. SCOTUS has held that federal cts determining the validity of an
arbitration agreement should apply state law principles that govern
the formation of Ks
3. Holding:
a. Court finds procedural and substantive unconscionability
b. Procedural
i) Manner in which K was negotiated and circum of the parties
at the time
ii) Agreement here is prerequisite to employment and thus a
take it or leave it K, and procedurally unconscionable
c. Substantive
i) Focuses on terms of agreement and whether the terms are
one-sided so as to shock the conscience
ii) Countrywide’s agreement compels arbitration in some cases,
but allows Countrywide to not bring arbitration for other
cases they might not want to have done under arbitration,
thus substantively unconscionable
d. Court also states fees are unconscionable
iii. Carter v. Countrywide Credit Ind. (5th Cir. 2004)
1. Facts:
a. Several current and former e’ees brought suit a/g Countrywide
alleging compensation due under the provisions of the Fair Labor
Standards Act.
b. Countrywide moved to compel the Πs to submit claims to arbitration,
as required in the K signed by all e’ees as a condition of their
employment.
c. Πs asserted that the arbitration agreement was invalid for four
reasons.
i) DC found for Δ on all but one of issues raised, holding that
the arbitration’s fee-splitting provision imposed high costs
on Πs.
2. Rule:
a. SCOTUS has noted that purpose of FAA is to reverse the longstanding judicial hostility to arbitration agreements and to place them
upon the same footing as other Ks
b. Accordingly, there is a strong presumption in favor of arbitration and
a party seeking to invalidate an arbitration agreement bears the
burden of establishing its invalidity.
3. Analysis:
a. In determining K-ual validity of an arbitration agreement, courts
apply ordinary state-law principles that govern the formation of Ks
i) Accordingly, look at TX state law
b. B/c TX law is different than CA’s (see Ferguson above), the
appellants lose. Court finds NOT unconscionable.
Issues with Arbitration:
 Fees (more to go to arbitration than to go to court)
 One-sided subject matter of arbitration agreement
58
Ferguson v. Writer’s Guild of America
 What is at stake in this dispute? Why does Ferguson care?
o Two people getting credit for the screenplay, and Ferguson wants it to just be
him to get the royalties
 In the absence of an arbitration agreement, what would he have done?
o He would have filed a complaint in federal court
 What is the arbitration process?
o Submits everything that he has to show that he wrote it
o Its not trial by arbitrations (as is in Carter)…each of the “arbitrators” reviews
it separately and then gives their opinion. Don’t know who other arbs are,
and parties don’t know either
o What if parties think there has been a deviation of policy? Review board
convenes to detect any substantial deviation from the policy of the Writers
Guild…this is not an appeal. They do not review the script or any other
evidence. All of this is just in writing.
 What does the court say?
o Once you become a member of the Guild, you submit yourself to this process
Ferguson v. Writer’s Guild of America
 What’s best reason for enforcing the arbitration agreement here?
o Defer to the Guild’s expertise…one reason in favor of arbitration (expert can
decide instead of a judge who may not be very well versed)
o This is a union--collective bargaining representative of the writers
 Is there an argument it shouldn’t be enforced?
o People who decide these cases are veteran writers, not newcomers like Ferguson
o Pool of arbitrators is skewed
 What if the clause had specified that in case of a dispute over credit between two writers,
the president of the Guild would flip a coin?
 If you think this is unlawful, what is the smallest change that would make it lawful?
 More hostile to plaintiff’s rights…more protection for arbitration
Challenges to Arbitration Process
Two basic routes of attack:
 Contractual —
o Fundamentally unfair (unconscionability) (Carter.)
 E.g. Fees, one-sided provisions concerning discovery, arbitrability of
claims.
 BUT Ferguson v. Writers Guild suggests almost anything goes where
there is real bargaining and durable relationships
o Fraud, duress, and other contract defenses
 Or (less likely) — one can resist arbitration on the basis of special nature of claims in
question: should some claims not be arbitrable, or only under some conditions?
 CA (Armendariz): civil rights claims arbitrable only if arb. procedures as
favorable to Π as litigation would be.
59

Proposed Arbitration Fairness Act would render pre-dispute agreements
requiring arbitration of employment, consumer, franchise, and civil rights
disputes unenforceable.
4/4: Summary Judgment
The Basics:
 Who? Either party may move for summary judgment (though usually a tool for
defendants). See 56(a).
 Timing: At “any time until 30 days after the close of discovery” (56(b)), though typically
at end of (or after significant) discovery.
o Under 56(d), nonmoving party can argue motion is premature…will say there has
not been enough discovery (usually at the close of discovery)
 Standard: “The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” 56(a).
 Format: Motion, brief, statement of undisputed facts, supporting materials (affidavits,
deposition excerpts, etc.), proposed order.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Summary judgment: What it is--& What it isn’t
 Four related stages of procedure: 12(b)(6) motion; motion for judgment on pleadings;
motion for summary judgment; motion for directed verdict.
 What’s the difference?
o Partly a matter of timing
o Mostly a matter of different functions
o First two motions test only legal framework; latter two test facts as well as law
12(b)(6) v. Summary Judgment
 12(b)(6)
o Would facts, if true, state a claim?
o Does not test truth of allegations or whether there is evidence behind them.
 Summary Judgment
o Are material facts disputed?
 “No genuine dispute as to any material fact”
o And
o Do undisputed facts state a claim?
 “Entitled to judgment as a matter of law”
60

Example: Defendant’s affidavit: “I didn’t shoot P with ray gun or otherwise injure him.”
Un-opposed
o What ruling on 12(b)(6)?
 Denied because accept as true facts alleged in complaint. Judgment on the
law.
o What ruling on motion for summary judgment?
 Granted. Because there is a factual record.
Example from Plaintiff’s Perspective: Complaint: Defendant signed promissory note and did
not pay when due.
1. D files a 12(b)(6) motion. What result?
a. Court will deny the motion. Must take plaintiff’s allegation as true.
2. D answers and denies. What are D’s possible bases for denying liability?
a. I already paid it; someone else is supposed to pay it; duress; forgery; etc.
3. Assume discovery yields the note itself, and the defendant’s answer to an interrogatory in
which he does not claim to have repaid the note. What should P do? File a motion for
SJ because there is no factual dispute.
 What does this motion look like? What supporting evidence?
o Attaches the interrogatory; the signed note, etc.
o But Defendant’s lawyer will submit an affidavit saying that he didn’t sign the
note
 What if P’s lawyer submits affidavit that says: “Plaintiff told me he watched the
defendant personally sign the promissory note?”
 What if P submits affidavit that says: “I know that defendant signed the promissory
note.”
o P’s Objection: hearsay; lack of foundation
 What must D now do to defeat motion?
o Submit an affidavit saying that he didn’t sign the note
o  Court must deny the motion because now there is a genuine issue of
material fact
o Jury will then decide who is lying
Celotex Corp. v. Catrett
 What was plaintiff’s claim?
o Alleged that her husband died of exposure to asbestos produced by Celotex
 What is Celotex’s defense?
o It wasn’t from their product
 What did pleadings look like?
o Complaint
 1. P manufactured asbestos
 2. P’s asbestos dangerous
 3. Mr. C. exposed to D’s asbestos
 4. D’s asbestos caused his death
 5. Damages
o Answer
 1. Admit ¶ 1
61



 2. Deny ¶ 2
 3. Deny ¶ 3
 4. Deny.
 5. Affirmative defense: S/L has run.
How can Celotex establish its defense at trial?
Celotex challenged plaintiff’s ability to show exposure to its asbestos.
o On motion for summary judgment, how did Celotex attempt to show no
exposure?
o How did plaintiff respond?
What is the legal dispute in this case???
o Who has the burden of proof at SJ stage? Plaintiff
o Because plaintiff has not brought forth any evidence of exposure
Celotex: The Alignment of Burdens
 Adickes v. S.H. Kress
o At trial, plaintiff has burden of production on critical issue.
o On summary judgment, defendant has burden of production on that issue.
o Defendant: “I can show I didn’t do it.”
 Celotex v. Catrett
o At trial, plaintiff has burden of production on critical issue.
o *On summary judgment, plaintiff has burden of production on that issue.
o Defendant: “Plaintiff can’t show I did it.”


Under the regime preceding Celotex the party bringing the motion for summary judgment
had the burden of production.
Celotex changed that rule and aligns the burdens:
o “In our view, the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate discovery. . . against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.”
o What are the consequences of this change?
 More defendants bring SJ motions
4/6: SJ & Judicial Management of Litigation
Summary Judgment So Far
 Comparison to 12(b)(6) motion
o 12(b)(6): Would allegations, if true, state a claim?
o 56(a): Looking at discovery record, is there a “genuine dispute as to any material
fact?”
 Mechanics
o Motion, brief, statement of undisputed facts, and supporting materials (discovery
excerpts, affidavits)
 Citation to “particular parts of materials in the record” 56(c).
 Only materials that “would be admissible in evidence” 56(c).
 Celotex
o From “I can prove it wasn’t me” to “Plaintiff can’t show it was me.”
62
Bias v. Advantage International, Inc.
 What does the plaintiff have to do to survive a motion for summary judgment?
 Complaint:
o 1.Δ told Πs he would insure Bias’s life. (Admit)
o 2. Δ failed to secure insurance. (Admit)
o 3. Bias died. (Admit)
o 4. Δ’s statements- Constituted a K, which Δ breached. (Admit? Deny?)
 Were a fraudulent representation, on which Πs relied. (Deny)
o 5. Πs therefore suffered loss. (Deny)
 What was the defense?
o Conceded failure to obtain policy but- - - o No damages from breach because no insurer would have written a policy
 All would have inquired about or detected cocaine use
 Δ: insurance company would either have refused to issue policy (if B were
truthful or if drug test were administered) or would have issued but
refused to pay on grounds that B had made fraudulent misrepresentations
on application.
 What will each side say? See slide 8.
o Agent: facts
 Cocaine, habitual user
 Teammates’ testimony
 Died of cocaine overdose
 Tests were announced
 Inference: can’t obtain insurance policy
 Death
 Supplied cocaine to teammates, friends
 Inference: maybe insurance company would have given the policy, but
it wouldn’t have been paid out when he died of a drug overdose
o Bias: facts
 Used drugs one time
 Inference: multi-factor test for insurability
 Passed numerous drug tests
 Random?
 Inference: credibility of teammates (also drug users?)
 Testimony of parents and coach
 Defense in support of their motion provide specific instances of testimonyplaintiff only
rebuts with generalized testimony (this is why court grants SJ motion)
 What should plaintiff’s lawyer have done?
o Found one teammate who had not seen Len do drugs
o Depose the teammates Gregg & Long
PoP Ch. 10: Summary Judgment in Jones v. Clinton
Why does Clinton win summary judgment on each of Jones’ three claims (quid pro quo, hostile
work environment, intentional infliction of emotional distress)?
63
–What does “no genuine dispute as to any material fact” mean?
 Quid Pro Quo
o Clinton: no tangible job detriment (detailed citation to employment records, to
testimony of her superiors, to Jones’ own deposition)
o Jones: tangible detriment (effectively put into a position that had a very low
ceiling for advancement)
o Court: no tangible job detriment (and did not even look at Clinton’s other
argument: no causation)
o Clinton pretty much conclusively and affirmatively proved that Jones did not
suffer a tangible job detriment (may not even need Celotex)
 Hostile Work Environment
o 12(c) ruling: “Although the President’s argument regarding the inadequacy of
plaintiff’s hostile work environment claim is not without some force, the question
of whether alleged harassment is sufficiently severe or persuasive for purposes of
establishing hostile work environment is ‘quintessentially a question of fact,’ and
one the Court simply cannot resolve on this record. Plaintiff’s allegations as they
now stand state a hostile work environment claim.”
o Standard: totality of the circumstances
o Court: no
 Intentional Infliction of Emotional Distress
o 12(c) ruling: “Suffice it to say that such conduct [as is alleged in the complaint], if
true, could well be regarded as atrocious and utterly intolerable for purposes of
establishing a claim for the tort of intentional infliction of emotional distress.”
o Summary Judgment: “[P]laintiff’s allegations fall far short of the rigorous
standards for establishing a claim of outrage under Arkansas law.”
 Never went to a doctor
o Court probably should have granted Rule 12 motions
Pretrial Orders
 Often boilerplate orders because judges don’t have time to narrowly tailor them
 Nevertheless, they need to be followed; otherwise, you can face sanctions
Sanders v. Union Pacific Railroad
 Court wanted all these things done within a certain time according to the scheduling order
o Plaintiff’s attorney did not turn anything in on time nor did he ask for a
continuance
o Purpose of scheduling order: to get ready for trial and to narrow the issues
 As a sanction for failing to follow the scheduling order, the court dismissed the case with
prejudice
o Dismissing the case is a possible sanction, but it is extreme
 En banc 9th Circuit: dismissal can be proper but only under extenuating circumstances
McKey v. Fairbairn
 What events led to this opinion?
o Landlord tenant case. Tenant is suing landlord because of injuries sustained from a
leaky roof
64



What was the purpose of the pretrial conference?
o Court asked if plaintiff’s lawyer was only going to rely on a negligence theory--he
said that he would
o At trial, he tried to introduce in the DC Housing Code. Court rejected it because he
did not include it in his theories at the pretrial conference
What did the court do and why?
o Rule 16(e): “The court may modify the order issued after a final pretrial
conference only to prevent manifest injustice.”
 What is the purpose of Rule 16(e)?
Should judge have helped plaintiff’s lawyer?
o Lawyer’s job to push the case forward--judge relies on the adversary system
4/11: Trier & Trial (Directed Verdict)
Role of Jury
 Factfinder
 Apply law to facts/make law(?) – was conduct “reasonable?”
o Juries sometimes get cases even where the facts are undisputed. See Pages 608-9,
note 4(a), i.e. what is reasonable?
 Voice of community
 Political role
o Tension between trying to make jury decisions rational/predictable and giving
juries leeway to exercise their important political role
Limits on Juries
 Summary Judgment
 Excluding Improper Influence
o Jury selection (voir dire)
o The laws of evidence (e.g. no hearsay)
o Juries may not talk to non-jurors about case or do own research
 Judge instructs jury on law.
 Judges also control the use juries make of the information they receive via Rules 50
(JML) and 59 (New Trial)…
Rule 50: Judgment as a Matter of Law
 Terminology: directed verdict = judgment as a matter of law
 Standard: “a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue.” 50(a)(1)
o Jury could not rationally decide that way.
o Party has not met burden of persuasion
o Connection to 56(c): “no genuine dispute as to any material fact”
 Timing of motion: “any time before the case is submitted to the jury.” 50(a)(2);
o Motion can be renewed after trial (50(b)) but only if made before the case was
submitted to the jury.
o Form: oral motion following plaintiff/defense case in chief
 BE CAREFUL!!! Don’t forget to make your motion before the case goes to the jury!
65
Directed Verdict v. Summary Judgment
DV:
 Comes—by definition—at trial
o –So case has likely survived summary judgment
o Else it wouldn’t be a trial.
 Comes after full evidentiary presentation by party opposing the motion.
SJ:


Comes—by definition—before trial.
o Question is whether the case should go to trial.
Comes—by definition—before full evidentiary presentation
o Purpose is to decide whether such a presentation is necessary
Why no SJ, but DV?
 Safer not to grant SJ…let the case proceed to trial and see what happens
 Too busy/lazy to decide cases on SJ
 Evidence has changed
Review of Burdens:
 Burden of Production:
o P must produce evidence from which a rational trier of fact could rule in P’s favor.
o D has burden of production on affirmative defense.
 Burden of Persuasion: “preponderance of the evidence”
o Jury issue!
Reid v. San Pedro, LA & Salt Lake Railroad
 What happened to the poor cow?
o Cow got onto the tracks and was hit by a train and died. So the owner of the cow
sued the railroad company
o Fence is the railroad’s company responsibility & gate is the owner’s
o Owner says that cow got out through the broken fence (which was a mile away)
 What happened in the trial court?
o Verdict for the plaintiff, and defendant appealed from the judgment entered on the
verdict
 Why doesn’t the appellate court let the jury verdict stand?
o Says that the plaintiff has not met burden by preponderance of the evidence
o Evidence is insufficient to support the verdict
o Where are we on the chart? Before the “x” because court does not let the verdict
stand
o “Evidence of the plaintiff points with equal force to two things, one of which
renders the defendant liable and the other not, the plaintiff must fail”
 Plaintiff’s evidence is really between “x” and “z”
 And court will not let jury have verdict on that basis
 We demand jury inferences to be rational
Pennsylvania Railroad v. Chamberlain
66




What happened to Chamberlain?
o What was plaintiff’s evidence?
 Railroad was negligent
 One employee testified
 Far away
 Didn’t see an actual collision
 Bainbridge:
 2nd string moving faster than 1st.
 Loud crash
 Then two strings moving together.
o What was defendant’s evidence?
 Several employees who saw that the trains didn’t crash
 Co-Workers: “There was no collision.”
 Inference: Chamberlain must have fallen; therefore no
negligence.
What motion did defendant make? Directed verdict
What does Supreme Court decide and why?
o “It, of course, is true, generally, that where there is a direct conflict of testimony
upon a matter of fact, the question must be left to the jury to determine, without
regard to the number of witnesses upon either side.”
o Supreme Court agrees with district court--should have granted DV
o Why, then, shouldn’t the case have gone to the jury?
 WASN’T THERE A CONFLICT IN TESTIMONY???
 Court talks about how unreasonable Bainbridge’s testimony is
 Where are we on the chart? Between “x” and “z”? Past “z”?
 Doesn’t have to be past 50% for court to deny JML
 Defendant’s evidence bumps us back to before the “x”…so JML
was appropriate
Kind of like Bias case…general testimony vs. very specific testimony (where motion for
SJ was granted)
4/13: New Trial & Claim Preclusion
Judgment as a Matter of Law so far…
 One of a variety of limits on juries
 Timing: “any time before the case is submitted to the jury.” 50(a)(2)
o BE CAREFUL!!!
 Standard: “reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue….”
o JML = SJ
o Reid: No irrational jury inferences
o Chamberlain: Plaintiff has not crossed X
 What evidence should court consider?
JML After the Jury Verdict
 Terminology: JML = jnov
67


Timing: within 28 days of entry of judgment
o Must be a RENEWED Motion
Standard: Same as before the verdict
o Why would judge grant it now?
 Judge may have had an instinct before case goes to jury…but he’d rather
have the jury decide and do the right thing
Rule 59. New Trials; Altering or Amending A Judgment •
 Timing: within 28 days of entry of judgment
 Standard: “any reason for which a new trial has heretofore been granted….”
1. Flawed Procedures
2. Flawed Verdict
Flawed Procedures:
 Judge gives wrong instruction.
 Judge allowed impermissible closing argument
 Judge erroneously admits (or excludes) evidence. See failed argument (3) in Lind.
 This is a chance for Judge to fix a legal error and permit a “do-over”
Flawed Verdict:
 Illogical Verdict
 “Soft form” of JML
o Verdict is “against the great weight of the evidence.”
o Contrast JML: “a reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue”
JML v. New Trial
 JML:
o Focuses on adequacy of evidence
 Assumes process o.k.
o Replaces jury’s verdict with judge’s judgment
o Results in final judgment
 And therefore immediately appealable
o Party must make a motion
 New Trial:
o Looks either at evidentiary adequacy or process
o Sends case to new jury
o Does not result in final judgment if granted
 And therefore unappealable (unless conditional as part of a j.n.o.v order)
o Can be done sua sponte
Lind v. Schenley Industries
 Oral testimony between Lind, his secretary, and Schenley’s agents (defendant liquor
store): difference in testimony
o Jury found that a contract existed & awarded damagesSchenley moved for
JNOV and a new a trial…Judge granted this motion
68




Why did the trial court grant a new trial?
o Because he thought the verdict was against the great weight of the evidence
Why did the appellate court reverse?
o A prime example of subject matter lying well within the comprehension of jurors
is presented by the circumstances at bar (wasn’t complicated--just a “he said/she
said”
Is this a case about a flawed procedure or a flawed verdict? Flawed verdict
What is the proper standard for deciding a motion for a new trial and how should that
standard be applied here?
o Actual standard: abuse of discretionrarely find that the trial court abused its
discretion
 Trial court’s job is to avoid a miscarriage of justice
 Trial judge is not supposed to be the 13th juror…not supposed to substitute
his own judgment for that of the jury
 Trial court did not believe plaintiff’s testimony (“substituted his judgment
of the facts and the credibility of the witnesses for that of the jury”)
Court agrees with jury on liability but not on damages. What can judge do?
1. New trial limited to damages
2. Remittitur
3. Additur
Respect for Judgments I: Claim Preclusion
Claim Preclusion v. Issue Preclusion
 Claim:
o aka res judicata
o Basic scenario:
 1. P v. D for negligence. D wins.
 2. Can P sue D again for negligence from same accident? No.
o WHY NOT?
o Source of Law? Common law
 Issue:
o aka collateral estoppel
o Basic scenario:
 1. P v. D re: first accident.
 2. P and D have second accident; can parties avoid re-litigation of any
issues?
Claim Preclusion Elements
1. Final judgment
2. Judgment must be “on the merits.”
3. Same claims
4. Same parties
 Deceptively simple
 How far afield does the doctrine go from our basic scenario?
69
Frier v. City Vandalia
#1 Frier v. City (State court)substantive (on the merits)
 Replevin
 Judgment for City
#2 Frier v. City (Federal Ct.)procedural
 42 U.S.C.§1983
 Judgment for City
______________________________________________________________
 What was trial court’s decision in Frier #2? Judgment for city
 What was appellate court’s decision in Frier #2? Claim preclusion on #2
o How did it reach that conclusion?
 Majority?
 Arose from the same operative facts in replevin & § 1983 actions
are therefore the same
 Divergence does not mean that the two legal theories require a
different core of operative facts (even though he didn’t bring the §
1983 action originally in #1)
 Elements of claims are different but would apply the same facts to
both
 Concurrence? Claim preclusion doesn’t apply here…I would have granted
SJ on the merits
o Different tests:
 Majority “Transactional” approach: All claims arising out of the same
transaction or occurrence precluded from re-litigation.
 Minority (Illinois?): “same cause of action” i.e. “evidence necessary to
sustain a second verdict would sustain the first”
 Result of claim preclusion:
o Plaintiffs will bring every possible claim
Frier Variations:
1. First action brought under expedited replevin statute; only question that could be litigated is
who has superior right to possession.
 Is the due process claim precluded under these facts? No, because he did not
get to have his day in court. Didn’t have opportunity to bring the claims
together
 Rule 18: plaintiff may join together any claims it has against one party (claim
preclusion makes it so that it MUST bring together all claims it has arising out
of same facts)
70
2.
3.
4.
5.
First action brought in a municipal court with a jurisdictional limit of $15K.
Frier brings third suit alleging that city overcharged him on a recent tax bill.
Frier brings third suit alleging officer vandalized his car.
What if Frier were married and one of the towed cars belonged to his wife?
4/20: Respesct for Judgment II
Claim Preclusion Elements:
1. Final judgment
2. Judgment must be “on the merits.”
3. Same claims
4. Same parties
Frier
 Appellate Court affirms dismissal.
o Majority: Precluded under “same transaction or occurrence” test
o Concurrence: No preclusion under “same cause of action” test (but would grant SJ
on merits)
 How is Frier different from the simple claim preclusion situation?
o “Same Claims” includes any claims that could have been raised in first case (not
just those that were)
 Why do we allow this?
o Finality--defendants should have some piece of mind
o At that first chance, plaintiff gets a really good one
“Compulsory Claims”
 Compulsory Counterclaims
o Must be brought if they arise out of the “same transaction or occurrence.” Rule
13(a).
 “Compulsory Claims”
o No rule BUT claim preclusion flows from common law
o Rule 18 says “may” but common law says “must”
 Same t/o for claim preclusion (majority test) = Same t/o for supplemental jurisdiction***
o Suit 1: P brings federal claim for wrongful termination that goes to judgment. Can
P bring second lawsuit asserting a state law claim arising out of the wrongful
termination?
Frier Variations:
i. First action brought in a municipal court with a jurisdictional limit of $15K.
 Was asking for $100K in due process damages
 Restatement says that there is preclusion so long as the plaintiff had a real choice as to
where to bring the action
ii. Frier brings third suit alleging that city overcharged him on a recent tax bill
 Not precluded because this is completely different (doesn’t arise out of same
transaction)
71
iii. Frier brings third suit alleging officer vandalized his car.
 Probably precluded
 Argument will be whether it is “same transaction or occurrence”
iv. What if Frier were married and one of the towed cars belonged to his wife?
 Wife is not the same party, and she is not precluded from bringing her own claims
#1 Vandalia v. Frier
 For Public Nuisance
o (Cars in alley)
 Frier answers, denying nuisance
 Settlement with Frier agreeing that he won’t park cars in the alley (or judgment for
City)
#2 Frier v. Vandalia
o Seeking DJ that public nuisance statute is unconstitutional.
Precluded? Yes, this is essentially Martino v. McDonalds. Rule 13(a) said he must have brought
it as a compulsory counterclaim.
How is this different than Martino? Because Martino didn’t answer in a pleading so Rule 13(a)
cannot apply. Consent judgment was given before this happened.
 Martino wants to sue for anti-trust.
 Court says that this is precluded because he already agreed in the consent agreement. He
cannot attack the very provision that he consented to in the first lawsuit
 Another policy consideration--consistency in judgments
Searle Brothers v. Searle and the “Same Parties” Element
 Edlean & Woody get a divorce. Edlean gets awarded the house (in Woody’s name but
MP)
 Partnership brings suit against her for the house, claiming that they have a ½ interest
 Definition of privity: a person so identified in interest with another that he represents the
same legal right
o Includes a mutual or successive relationship to rights in property
o Easement owner takes subject to former owner--why? KNOWLEDGE.
 Searle is a divorce proceeding--partnership couldn’t have been a party to the suit
 Dissent: partnership (sons) knew about litigation & were actively involved, even
testifying at trial
Opportunity Hypothesis and a Corollary:
o Transactional preclusion permissible because plaintiff has an opportunity to bring all
claims in first suit.
o Maybe even desirable to require plaintiffs to package related claims efficiently.
o So it’s fair to preclude only if the precluded party has had a fair opportunity to litigate the
claim.
o On rare occasions non-party so closely controls first action we treat her as a party.
72
The Path So Far: What’s the “same claim?” Who are the “same parties?”
o “Same Claims:
o Claims and defenses that could have been raised are barred by former adjudication
even if not previously litigated (Frier, Martino)
 Same transaction /occurrence (majority rule)
 Same cause of action (minority rule)
 Converts 18(a) from “may join” into “must join.”
o “Same Parties”
o Generally, separate individuals have separate claims even when they do arise from
same t/o as prior litigation (Searle):
o Exception: is person “so identified with another that he represents the same legal
right?” Searle. (“privity”; “virtual representation”)
 Examples: joint ownership, successive ownership of property,
administrator of estate/deceased, trustee/beneficiary, heirs/executor,
control of prior litigation, express agreements to be bound, instances of
“procedural representation”
o Due process marks outer boundaries of preclusion: can’t bar one who’s not had
opportunity to litigate claim.
What’s a judgment on the merits?
o Trial & judgment? Yes.
o Directed verdict? Yes.
o Summary judgment? Yes.
o Dismissal after 12(b)(6) motion? Yes.
o Plaintiff has probably had an opportunity to amend
o Dismissal for failure to prosecute? Yes.
o Court hasn’t dealt with the merits at all
o Dismissal on Rule 12(b)(1) or (2) motion? No.
o Dismissal for discovery violation. See Gargallo. Yes.
o
Rule 41. Dismissal of Actions
(b) Involuntary Dismissal: Effect.
o If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the dismissal
order states otherwise, a dismissal under this section (b) and any dismissal not under this
rule – except one for lack of jurisdiction, improper venue, or failure to join a party under
Rule 19 – operates as an adjudication upon the merits.
o Why these exceptions?
o Court shouldn’t have even heard lawsuit in the first place…plaintiff has not had an
opportunity to develop its lawsuit
Gargallo v. Merrill Lynch
#1: Broker v. Client (state court)
o Claim for unpaid margin loans
o Counterclaim for federal securities fraud
o Counterclaims dismissed “with prejudice” for failure to comply with discovery
73
orders
#2: Client v. Broker (federal court)
o Federal securities claims
o District court: precluded
o 6th Circuit: not precluded--why? Because the state court did not have jurisdiction
to begin with over the federal claim
Changing the facts…
Suppose that in the state court (case #1), G’s counterclaim had been for state common law fraud,
not federal securities fraud, and it were dismissed under the same circumstances (for failure to
comply with discovery).
o What would happen if he filed the second case in state court?
o What if in federal court?
o Why?
REVIEW: When ML received Gargallo’s complaint, how did it respond, and how did it tee up
the preclusion issue?
o Rule 8--res judicata (a.k.a. claim preclusion) is an affirmative defense
o Bring in your answer
o Must prove to the court on motion for SJ that:
o Final judgment
o Judgment on the merits
o Same claims
o Same parties
o Court will want evidence from the previous lawsuit (complaint, court’s order)
4/25: Issue Preclusion
 When….
o An issue of fact or law is
o Actually litigated and determined by
o A valid and final judgment, and
o The determination is essential to the judgment …
 … the determination is conclusive in a subsequent action between the parties*, whether
on the same or different claims.
o *Issue preclusion can be non-mutual
 Example: P & D have a car accident. One issue in case 1 is whether defendant needs to
wear glasses while driving. Verdict is that he does. In a second accident and subsequent
lawsuit, plaintiff can say that defendant needs to where glasses (don’t have to re-litigate)
 Issue preclusion is narrower than claim preclusion; like a scalpel
What is the same issue?
Joe’s “citizenship”
 Joe, enrolled at State College, is involved in three legal proceedings:
o Joe v. College: is Joe a “citizen” of State entitled to lower tuition rate?
 Will need to be defined at trial: “here for a year with intent to remain”
74






o Joe v. X: is Joe a “citizen” of State who can invoke federal diversity jurisdiction?
 Don’t have to be here a year (as long as you move here with intent to stay)
o Joe v. Registrar of voters: is Joe a “citizen” of State who can vote in upcoming
state primary elections?
 Must have been living in the state for 30 days
Suppose Joe wins first case?
o What implications for other proceedings?
o Not the same issue for purposes of issue preclusion
#1 US v. Defendant (criminal charge: theft of gov’t property)
o Acquittal
o It was determined that he was not guilty beyond a reasonable doubt
#2 US v. Defendant (civil: conversion of same assets)
o Preclusion?
o Government will say that it’s not the same issue because all that is required in civil
case is preponderance of the evidence
****************************
#1 US v. Defendant (civil: conversion)
o Judgment for plaintiff
#2 US v. Defendant (criminal: theft)
o Preclusion?
“Same Issue” in Issue Preclusion
 Proposition: an “issue” consists of:
o The legal and factual proposition (e.g., negligence, breach, theft, etc)
 The same term—e.g., “citizenship” – can differ according to the context
o The procedural setting in which that proposition is decided (e.g. burdens of proof)
“Actually litigated and determined”
Illinois Central Gulf Railroad v. Parks
 First lawsuit: husband and wife sued IL Central…wife sues for compensation for injuries,
and husband sought damages for loss of wife’s consortium
 Second lawsuit: husband sues for his own personal injuries
 Why is he not barred by claim preclusion? He is asserting a different cause of action
o Applying the minority rule (not using “same transaction or occurrence” test
 #2: Jessie v. RR
 –Personal Injuries
o What effect does RR think the first judgment should have?
 Husband was the driver and the jury didn’t award him anything in the first
because he was contributorily negligent
o What effect does Jessie think the first judgment should have?
 Wants the railroad to be estopped from denying negligence
 Jury could have found against Jessie because he had failed his burden of
proving compensable damages for his loss of consortium claim
 What if railroad had failed to raise contributory negligence in the first action? Would it
be precluded from doing so now?
o No. Actual litigation generally required!
75
o But see In re Sammy Daily (p. 699)
An Issue “Essential to the Judgment”
o What if we know why Jessie Parks lost?
o Bench trial: judge rules that Jessie was contributorily negligent and that he failed
to prove damages for loss of consortium.
o Second suit: Jessie v. RR
 RR asserts Jessie’s contributory negligence as a defense.
 Precluded? Depends….
What if a judgment rests on several grounds?
o Restatement of Judgments I
o All litigated and decided issues precluded from re-litigation.
o What theory? Efficiency, finality, confidence in first judgment
o Restatement of Judgments II
o No issues precluded if judgment rests on alternative grounds
o Ex.: Hypo above (if Jessie wasn’t found to be contributorily negligent but that he had
failed to prove damages)
o Theory? What we worry about that if there are multiple issues, the party didn’t fight as
hard on one of the issues
An Issue “Essential to the Judgment”
1. Suppose a federal lawsuit is dismissed for lack of subject matter jurisdiction and then
refiled in state court?
a. Not precluded
2. What if a federal lawsuit is dismissed for lack of personal jurisdiction and then refiled in
state court?
a. Plaintiff will be precluded form arguing PJ in state court
3. What if federal court dismisses on both grounds and then case is refiled in state court?
a. No issue preclusion under newer restatement because we have alternative grounds
because neither decision was essential to judgment
b. We would make him relitigate the issue of PJ
4. What if plaintiff had appealed (3)…
a. And appellate court affirms on SMJ but does not discuss PJ
i. Re-litigate PJ in second lawsuit
b. And appellate court affirms on PJ but does not discuss SMJ?
i. Briefing on issue of PJ and an appellate court has affirmed on PJ…that is
enough to rely on first lawsuit’s finding
c. And appellate court affirms on both grounds?
i. Restatement says it’s a close call
Between Which Parties?
Parklane Hosiery Co.v. Shore
 #1: SEC v. Parklane
o Proxy statement was false and misleading
76

#2: Shareholders v. Parklane
o Want to say they same thing
o Says that proxy statement determination is precluded because there is already a
statement from the court saying its false and misleading
 Question before the court: whether a litigant who was not a party to a prior judgment may
nevertheless use that judgment “offensively” to prevent a defendant from re-litigating
issue resolved in the earlier proceeding
 What does Parklane court say?
o Trial courts have “broad discretion” to permit offensive nonmutual issue
preclusion. But…
 “The general rule should be that in cases where a plaintiff could easily
have joined in the earlier action or where, either for the reasons discussed
above or for other reasons, the application of offensive estoppel would be
unfair to a defendant, a trial judge should not allow [it].”
Variation:
 #1: Bertha v. RR
o Bertha wins: RR negligent
o NB: Jessie not a party to the suit.
 #2: Jessie v. RR
o Suit for negligent injuries.
 REVIEW: Can RR argue claim preclusion based on husband’s failure to join? No.
 Can Jessie argue issue preclusion on negligence? Yes.
o Problem with issue preclusion: Jessie could have joined in originally (however, in
Parklane because shareholders could not have joined in SEC lawsuit)
Parks:
#1: Bertha v. RR
–Bertha wins: RR negligent
#2: Jessie v. RR
–RR’s negligence precluded
V.
Parklane:
#1: SEC v. Parklane
–Ruled: proxy misleading
#2 Shore v. Parklane
–Issue: Proxy misleading?
–Precluded
Another Variation:
#1. Bertha v. RR
–Negligent injury
–RR wins: not negligent
#2. Jessie v. RR (same accident)
77
–Can RR preclude Jessie from litigating its negligence as a result of #1? No
–Why? Just because it was not negligent against Bertha, doesn’t mean it wasn’t negligent against
Jessie (Jessie hasn’t had his day in court)
Why do we allow this?
o To ensure that we don’t have inconsistent judgments
o Couldn’t have joined in the 1st lawsuit
o Parklane had a strong incentive to fight as hard as they could against the first lawsuit with
the SEC
A Theory on Non-Mutual Issue Preclusion
o The Opportunity Principle Again:
o Has party to be burdened with preclusion had adequate opportunity and incentive
to litigate that issue?
 If so (and if other conditions for preclusion met)--preclusion appropriate.
 If not--no preclusion
Yet another variation…
Mr. and Mrs. Rush, riding on a motorcycle are thrown off when the cycle hits a pothole.
#1: Mrs. Rush, the owner of the cycle, sues the city in municipal court, which has an abbreviated
system of discovery and has a $5000 jurisdictional limit, for $1000 in damages to the cycle
o City loses
#2: Mr. Rush v. City for $1.5 million for disabling spinal injuries.
o Issue: can Rush preclude city on issue of negligence?
o City won’t have tried really hard to defend itself from the first lawsuit
Issue Preclusion Summary
o Parklane (and similar state cases) opened door to non-mutual issue preclusion
o Under proper conditions, party who had litigated issue, could be burdened with
determination of that issue in later case involving a new party.
 Broad discretion for district court as long as application is not “unfair” to
defendant.
 See exceptions in Notes 2 and 3 (page 708) and Restatement Section 29
(page 714).
o How should that principle apply in a case with multiple parties? Century Home
Components
4/27: Review
Issue Preclusion:
 An issue of fact or law
o Same definition and procedural setting???
o If the question is something different than what was answered in the first…there
will not be issue preclusion
 Actually litigated and determined;
o With jury verdict we may not know what was decided (Illinois Central Railroad v.
Parks because it was a general verdict)
78



Valid and final judgment;
o For purposes of this class, this is assumed
Determination is essential to the judgment
o With alternative findings (by judge or special verdict), we don’t know if
determination was essential.
 If a trial judge gives alternative findings, neither are precluded in next
lawsuit
 Effect of Appellate Review: this changes the above & we will apply issue
preclusion
Non-mutual issue preclusion permitted. (Parklane)
o Broad discretion for district court as long as application is not “unfair” to
defendant.
o How far does non-mutual issue preclusion go???
Century Home Components
Fire in strip mall; several suits.
 #1. NWBell v. CHC:
o CHC wins; reversed on appeal.
 #2: Sylwester v. CHC: CHC wins
 #3 Hesse v. CHC: P wins
 #4 NWBell v. CHC (retrial) P wins
 #5 State Farm v. CHC: preclusion on negligence and causation because they have these
determinations against this defendant?
 Suppose the first case had resulted in a plaintiff’s verdict that was not reversed.
o Would it have been appropriate to apply issue preclusion to the second suit?
o If so, does that make the result in CHC a result of chance--that the first case was a
defense verdict?
 Multiple plaintiff anomaly: if we had a situation where defendant wins 25 times and then
the plaintiff wins the 26th? We shouldn’t allow case #27 rely on #26.
o If we rely on case #1, aren’t we worried that THAT is the an anomaly
o This is not the way the courts wentnon-mutual issue preclusion
 Court says no preclusion (not going to allow a new plaintiff to argue non-mutual issue
preclusion when defendant has one
Preliminary Injunctions & TROs (Rule 65)
 What if Constance McMillen had simply filed a normal lawsuit? She needed immediate
help because she wanted to go the prom
 Preliminary Injunction elements:
1. Substantial likelihood of success on the merits
2. Irreparable injury
3. Balancing the equities
4. Public interest
i. This is the factor she failed on
PRACTICE EXAM:
 Best answer would sight paragraph in mock complaint
79
80