I. Introduction

A. Theory of the adversarial system: with competent and prepared lawyers on both sides, we get the best result. Yet, according to Lushing, "being right is only half of it"

B. Process:

a. Who are the parties--want to sue the person with $

b. Has statute of limitations expired?

c. Can the suit be settled without litigation (can negotiate up to whenever, settlement negotiations not let into evidence.

d. What court?

1. Jurisdiction

2. Chance of winning

3. Venue

e. Professional Courtesy (sanctions, discovery, rule 11)

1. But think: Defendants want to delay, want P to be demoralized, run up hours, and will be ready for settlement if drawn out)

C. Sources of Civil Procedure

a. Constitution (due process extended to states with 14^th Amendment)

b. Statutes (USC Title 28) (also state legislation)

1. If word is vernacular in statute, then always question what it means.

c. Federal Rules of Civil Procedure

d. Individual Judges

D. Federal Courts

a. United States District Court

b. United States Court of Appeals

c. United States Supreme Court

A. Must petition for cert, and strong minority must grant (4/9) to hear.

B. Only takes cases involving federal law (from State or Federal Court)

C. President appoints justices

D. Only hears 2% of cases who apply

E. State Courts

a. "Trial" (NY: New York State Supreme Court)

b. "Appeals" (NY: Appellate Division, X Department)

c. "Supreme" (NY: New York Court of Appeals)

F. Judgements

a. Just a piece of paper if the D is judgement-proof (poor, runaway, etc.)

G. Notable Judges/Justices

a. Scalia--right wing asshole, original constructionist, don't look at legislative history unless major ambiguity'

b. Posener--Law and economics

H. Dicta and Precedent. Dicta not precedent because the facts were not tested. Only when something at stake (lawyers argue about it, actual situation)

a.. Precedential value low when justices arguing amongst themselves, blowing steam, pontificating, etc. When several concurring opinions, need to look at what they all agree upon.

I. Apply the procedural law of when the action is filed.

II. EQUITABLE REMEDIES--RIGHT TO ($) DAMAGES, BUT MUST ASK FOR EQUITABLE REMEDIES

A. Specific Performance

a. Generally: court cant order personal services.

b. You want "order to keep supplying" so use negative verbiage, "order not to stop supplying"

B. Injunctions

a. Weinberger v. Romero-Barcelo-Government dropping explosives on Viequs Island and people object. People say that an environmental statute requires that the court to issue an injunction against the Navy. Supreme Court says DC had discretion, and error only if there was abuse of discretion.

b. For an injunction, the Plaintiff must show that:

1. No adequate remedy at law for the claimed injury. (Duh, in civil court this means that $$ damages would not be enough)

2. Danger of irreparable harm if injunction not granted

3. Some likelihood of success on the merits by the moving party

4. Balanced Equities.

c. In equity, so judges decide (no jury)

d. No right to injunction, even if D is breaking the law.

e. Public policy considerations also taken in to account.

C. Quiet Title

D. Structural injunctions in public law litigation-

a. Popular in 1970's, (voting rights, schools, prisons)

E. Declatory Relief--binding court decision as to what rights each party has. If later lawsuit, then declatory judgement stands. Precedental value.

III. PROVISIONAL REMEDIES

A. Problem--no trial, no due process. How can the court tie up someone's property without a trial? Challenges to attachment begin in the late 60's.

B. What does Due Process Require?

C. Connecticut v. Doehr, (1991) Victim places attachment on assailant's property. Connecticut law allows prejudgment attachment of real estate w/o hearing, victim did not have to place bond, and no notice given. SC says unconstitutional.

1. Must be safeguards when property interest is at stake.

2. 'person may not be deprived of life, liberty, or property w/o due process.'

3. While not actual property...with attachment, there is cloud on title, disturbance of credit rating, problems with loans, etc.

4. Basically, "You punched me"­>not enough to take away D's property. Rather, look at interests.

a. What private interest affect

b. What is the risk of erroneous deprivation and value of additional safeguards

c. What is the government's interest and ease of other safeguards

D. Preliminary Injunction/Temporary Restraining Orders--

1. Rule #65

2. TRO's are Constitutional given the right conditions. Must satisfy conditions for injunction. (see above)

3. Is it fair to restrain someone w/o giving them the chance to respond? (you cant find them, but need to do something before the situation gets worse)

a. Must try to find them/their lawyer (must make reasonable attempts)

4. If granted,

a. TRO good for 10 days or so

b. Defendant must be notified or TRO probably ineffectual

c. During which period D files his own papers (Motion to Vacate)

d. Defendant comes into court for a hearing (no clash of facts) or bench trial (affidavits clash)

e. The judge may then extend the TRO, or grant prelim. injunction, etc.

f. Defendant can appeal

5. If Preliminary Injunction not granted,

a. Plaintiff can appeal (usually on abuse of discretion)

b. NOTE: TRO's not appeal-able

6. Litigation paperwork­strictly checked by clerk.

1. Affidavit with exhibits

a. This affidavit is...enjoining RS from performing...

b. (Summary) x did y (this is your best nugget) conclusion

c. Start from the beginning...in ....as attached, etc. and details

d. Sworn by.... (*note­P needs to see what he is signing off on and it is morally wrong to switch signature pages)

2. Summons

3. Complaint

4. Motion

a. (Page 1) Order to Show Cause ­motion to shorten time for Motion for preliminary injunction to be heard

b. ONLY FOR TRO: (Page 2) Temporary Restraining Order­ in the meantime, relief

5. Memorandum of Law

a. The law on this one is...

7. Lawson Products v. Avnet, Inc.­ Competitors in auto supply business relying on sales reps who deal directly with customers. Lawson wants preliminary injunction against Avnet to enjoin them from stealing their reps//business. District court used discretion in denying injunction and appeals court says ok.

A. Because DC may have better perspective in assessing credibility of witnesses and fact finding (no reversal except clear error--Rule 52)

B. Because past injury indicates limited threat of future harm during the pre-trial period

C. Because the record is ambivalent as to the merits of the dispute

IV. STATUTE OF LIMITATIONS

A. IMPORTANT: NO EXCUSES--it is malpractice for missing the statute. Rules do not allow excuses...think of the 1940's death penalty case­hand delivered papers came one day late and no appeal granted.

B. An action accrues at the time when the plaintiff could have first sued.

1. Statute can be tolled because of kid, illness, etc. or by agreement or otherwise.

2. Discovery rule, etc.

C. Notice of Claim requirement­may be really short, for suing the government (some states and federal)

D. Filing a complaint is the way to commence suit.

1 Filing b4 SOL has run will satisfy the SOL in federal question cases and in diversity cases where the state rule is similar.

E. SOL of the forum generally governs (but could be Erie issue)

1. SC held that if a state rule says that an action is commenced for purposes of the SOL only upon service, it must be applied in diversity cases (Walker)

V. ATTORNEY'S FEES­GENERALLY, EACH PARTY PAYS THEIR OWN ATTORNEY.

A. Exceptions­

1. Common fund theory­others benefit, should pay out of the fund created

2. Substantial benefit theory­shift cost burden

3. Private Attorney General theory­representation of people, public settlement (kind of like the attorney is really doing the work of legislature)

4. By contract

B. Serrano v. Priest­Public school financing system ruled unconstitutional. Public interest attorneys awarded fees. Court allows, for litigation vindicated a public policy interest with a constitutional basis­private attorney general theory

1. Policy to encourage meritorious constitutional claims affecting a large number of people

2. Only attorneys equipped to present such claims are those in public interst law firms and denial of benefits to these attorneys would be inconsistent with the rule itself;.

4. Award based on: strength or societal importance of the public policy, necessity for private enforcement and magnitude of burden on the plaintiff; and the number of people standing to benefit from the decision (see p. 154)

VI. CHOOSING THE PROPER COURT

-Court must have subject matter jurisdiction, personal/territorial jurisdiction, and D must receive notice. If not, each is a weapon for D.

1. Note, three types of jurisdiction

a. In personam jurisdiction, court has authority to determine the rights and duties of the parties and the power to bind the parties personally. Personal liability, injunctive relief, etc.

b. In rem jurisdiction, court may exercise jurisdiction over an item of property (a res) located within the state. When the subject of an action is the res, the court does not need in personam jurisdiction to act. Judgement can be claim of 'all the world' to the property, but not damages against the person.

c. Quasi in rem jurisdiction, court can determine the rights of particular persons in specific property within the courts control

2. Note, historic basis for jurisdiction: Based on a state's physical power to carry out the judgement, service, consent in state, domicile in state, etc.

A. NOTICE

1. Pennoyer v. Neff Michell sues Neff for money owed for legal services. Neff owns property in Oregon, but cannot be found, so Mitchell provides 'constructive notice' (by publication) and wins default judgement (wrongfully in personam) because Neff never shows. Mitchell sells the property to Pennoyer, and Neff sues Pennoyer and wins because he lost his property without due process. (Whole property attachment based on small judgement not valid)

a. Today, states can are limited to holding status proceedings (citizen v. non-resident) like divorce, quiet title, etc. without service, but not a judgement against property.

b. Today, proper notice must be given for all judgements, even those limited to the value of the property attached (quasi in rem)

2. Harris v. Balk--When a non-resident travels to another state B, his debt obligation follows and accompanies him, so that B's court has jurisdiction. Overruled in Shaffer

3. Hess v. Pawloski--Non-resident's use of highway in a state is equivalent to and is conditioned on "appointing" registrar as an agent for service. Fiction is that Defendant is receiving notice of service.

a. This case shows how consent can function as constructive service

b. Note, process may be bad, but the result good because the guy got notice

4. Due process issues

a. 5^th Ammendment--no disposal of life, liberty, or property without due process of law.

b. 14^th Ammendment extends 5^th to States

1. Judgement made without proper jurisdiction can be vacated

2. If judgement void in one state (because of due process) then cannot be enforced in other state because of 'full faith and credit' clause of Constitution

5. Service of Process--Rule 4

B. TERRITORIAL JURISDICTION

NOTE: The Pennoyer court required personal service within the forum state. Modern formulation based on contacts, consent, and fair play.

1. Corporations can be kept out of States or let in with conditions

a. Must submit to jurisdiction, must have certain benefits, must adhere to environ./discrim. laws, etc.

b. State can attach burdens on commerce that takes place within the state, even when the company also trades inter-state.

c. How are corporations ever 'present'? Business entities and corporations are not people, it is their activities which are carried out by their representatives

2. The Contacts approach--It's not a hard call when:

--a claim arises out of a contact D established in the state (Due process satisfied)

--claim arises out of a contact not in state, but D has lots and lots of contacts in the state (Due Process satisfied)

--when the claim arises out of a contact not in the state, and D has no contacts there. (Due process not satisfied)

3. Based on Defendant's contacts--if he doesn't want to be sued there, he doesn't have to go there. (arising from volitional act)

---so....what happens when there are some contacts in the state (ties, contacts, relations, activities, benefits received, etc.)but the claim not related to the contacts? Depend on number of contacts, type of contacts (fact finding by judge) and fairness....

A. The landmark case of International Shoe --Company incorporated in State A with headquarters in State B does business in a state C across the country and employs salesmen there, but doesn't pay the required state employment tax. Is company amenable to suit State C's jurisdiction? YES.

1. According to Shoe, due process requires:

--Defendant have some 'minimum contacts' with the forum state

--Exercise of jurisdiction not to violate 'traditional notions of fair play and substantial justice'

2. Supposedly, Shoe consolidates fictional 'presence' (Harris) and 'consent' (Hess) theories of jurisdiction with the 'minimum contacts' test

B. International Shoe re-hashed:

1. Minimum Contacts

-Court looks at the quality and nature of the contacts, their connection with the cause of action, the interest of the forum in protecting its citizens.

a. World Wide Volkswagon--Travelling through, accident occurs; but, one isolated accident not enough to subject WWV to Oklahoma jurisdiction. Thus, generally, amenability to suit does not travel with the goods one produces.

RULE: The mere unilateral activity of Plaintiff who claim some relationship with non-resident defendant cannot satisfy the requirement of contact with the forumn state.

b. However, forseeability alone not a benchmark--accidents happen, cars designed for mobility are all considerations, but court in WWV says so what

. c. To oppose or support jurisdiction, must file affidavit splitting, emphasizing, or negating contacts: property, tax-paying, advertising, media coverage, manufacture of parts, drive-thru, billboards, agent for service, salesmen, showrooms, headquarters, residence of employees.

d. Without systematic and continuous activity in the state or Cause of action arising from activity within the state, then jurisdiction is harder to obtain.

a. Kulko--Is it fair to compel Defendant-father to come defend a suit (not just status, but also child support) in California when ex-wife is the one who went out there to live with the kids, and he let the daughter live with her? NO Husband derived no benefit of the state, not fair, no contacts

b. Hustler--site of injury obviously her hometown?

c. Heliocoptres--Foreign corporation had few contacts with Texas, but court says that purchases, paying by check drawn from state bank, etc. not sufficient. Can't just drag them in.

2. Fairness/Reasonbleness

1. Must balance 'fair play and substantial justice' with minimum contacts (list from WWVolkswagon as mentioned in Burger King)

A. Burden on the Defendant

B. Forumn State's interest in adjudicating the dispute

C. Plaintiff's interest in obtaining convenient and effective relief

D. Interstate judicial system's interest in obtaining the most efficient resolution of controversies

E. Shared interest of the several states in furthering fundamental substantive social policies.

2. Purposeful availment..knows or reasonably anticipates that activities could give rise to cause of action there.

d. Burger King--Action by national franchise against franchisee in Florida, where national HQ is located. S.C. says FL jurisdiction over subject matter and persons does not violate due process, even though D did not step foot in florida, D wanted to business with national operation, knew they were dealing with Florida ll along, and agreed in contract to apply FL law.

1. Note David and Goliath considerations--unfair bargaining power/adhesion contract. Here BK franchisee not consumers but swank businessmen. (Reasonable expectation suit would be FL)

2. Note: Choice of laws clause not sufficient to satisfy due process on the jurisdiction issue, but relevant.

3. Commercial actor's efforts were purposefully directed, so absence of physical contacts means less

C. Basis for Jurisdiction, (p. 230)

1. Presence--being there

2. Domicile--you gain, so you contribute

3. Residence--living there, benefiting

4. Nationality or citizenship--obligations of citizenship

5. Consent--by contract

6. Doing business in the state (long-arm statutes)

7. Act done in a state--driving car (Hess)

8. Ownership, use, or possession of a thing in a state

9. Other relationships to the state which make the exercise of judicial jurisdiction reasonable

10. Causing an effect in the state by an act done elsewhere--situs of libel pain?

11. Appearance in an action--some response. Be careful, don't open your mouth until you've been paid, retained, etc. "I will appear" may count.

D. Long Arm Statutes and the Constitution

1. Give state resident forumn when out-of-state business screws them.

2. Legislature can attempt to give people more rights beyond Constitution (due process)

3. Stupid Texas/Jersey Story by Lushing

--Whether place of payment on the promissary note is sufficient to find jurisdiction. According to Texas court, due process satisfied by long arm statute (precedent in state), so there is jurisdiction and because he doesn't show--so default against him. When they come after him in Jersey, he lost his jurisdiction defense. IF HE HADN'T LOST IT ON THE MERITS THEN, HE COULD COLLATERALLY ATTACK JURISDICTION ON APPEAL. Hahaha, so it doesn't matter that the Texas Supreme Court finds the due process statute Unconstitutional because Jersey court is not bound.

4. State Long Arms concern activities within the State (corporations conducting activities--facilities, bank accounts) and then extend jurisdiction (varies by state how broad) sometimes as far as to any basis not inconsistent with the Constitution of the State or the US Constitution.

A. Definition of within is problematic

B. Issues to be addressed:

1. Does the state permit the exercise of jurisdiction? (Examine longarm to see whether the legislature has elected to have the courts exercise jurisdiction on the particular facts.)

2. If so, is the exercise of such jurisdiction Constitutional?

-Ex. Place where P lost business is the proper forum to sue Defendant. Not just remote or consequential injuries which occur in state only because P is living there.

C. New York State Rule for longarm jurisdiction--probably typical

1. D committed tortious act outside the state

2. The cause of action arises from that act

3. The act caused injury to persons or property within the state

4. D expected or should reasonably have expected the act to have consequences in the state

a. D need not foresee the specific event that produced injury. Need only reasonably foresee that its activity would have direct consequences within the state.

5. D derived substantial revenue from interstate or international commerce

a. Did D purposefully avail itself of the privilege of conducting activities within the forum state?

5. Federal Long Arms--contacts within the U.S.

A. Due Process; convenience of the defendant and sovereignty

B. Nationwide jurisdiction: Cases under Federal Interpleader Act, antitrust, securities, bankruptcy

C. Federal courts normally exercise in personam jurisdiction to the same extent as the courts of the state in which the particular federal court sits.

6. See Rule 4 (Service in State)??

a. Rule 4(k)2--any D who is not subject to jurisdiction of States can be brought into Federal Courts?

F. Putting it together again.

1. Shaffer v. Heitner--P sues person in Delaware because he owns stock in a Delaware corporation. The stock had nothing to do with the claim itself. Court says he can't do this there, because a jurisdictional interest in a thing is the SAME as saying a person's interest in the thing, so basis for jurisdiction must be the same.

A. Shaffer stands for the novel proposition that in rem jurisdiction should be treated the same as in personam.

B. Ex. You owe money and have a bank account in NY. Under Pennoyer P could attack the $ there and get jurisdiction there b/c the thing was there. International Shoe says must have fairness and contacts for in personam. Here, extended.

In Rem--going against the thing/STATUS. Whole world is bound. Ie, admiralty, quiet title. Unusual

Quasi In Rem--only person bound is D/PROPERTY.

In Personam--note again, once you get a good in personam judgement, you can exercise it anywhere quasi in rem to get the property somewhere else, because of full faith and credit clause.

2. NOTE: If the claim is about the thing in the state, then kosher. If NOT, then probably not enough.

A. If you have jurisdiction for in personam judgement but cannot exercise the judgement there, you can sue in another state to collect under quasi in rem. (Because the only thing they have in the state is the property, and the judgement is for the property)

B. compare to: Status cases--marriage. The status (res) is where either party actually is and is carried around with the person. So, you can get a status decision where you are, but need to have in personam jurisdiction to get a $ judgement.

3. Affect of service. Husband appeared voluntarily in the state (he knew they had it in for him and went anyway) Was personally served with process, so staute/ct?t says in personam jurisdiction okay. (Lushing says bad case, probably bad after Sheiffer)

4. Affect of Attachment: After Sheiffer, will provisional remedy of attachment guarantee jurisdiction? NO. Can always find the person when they have property so must give notice/attempt for due process.. Property is a persons interest in the property, so attachment is no substitute. Totally different things says Lushing. Don't get confused.

G. NOTICE AND TERRITORIAL JURISDICTION

1. Both are requirements; both can be used as defenses.

2. Note: Service can be anywhere, but if you serve within the jurisdiction, it's evidence that the Defendant was there to pick it up. May be basis for quasi in rem jurisdiction, but need to look at contacts and fairness too.

3. Mullane v. Central Hanover Bank and Trust--Mullane appointed to protect beneficiaries of trust and challenges ban's provision of notice by publication. Lazy bank. Beneficiaries are entitled to due process under the Constitution. Many of the addresses known and so notice should have been mailed to the known beneficiaries...at least!

A. Sounds like they had jurisdiction and blew it--State had interest in the trust. Paradox--due process to protect beneficiary but if beneficiary had no contacts-no proceeding, no proceeding-no trust.

4. Reasonable efforts to notify Defendant are required. Must ask the following and then exercise best "reasonable" efforts:

A. What are the chances this will reach people

a. Posting notice on door when it would be ripped down is not good (housing project)

B. What is the cost of better notice

C. What is their interest/size of their interest

D. How easy is it to find these people?

a. Due process doesn't require actualities, just probabilities.

b. Address should be checked (Mennonite Board)

c. Lehr--NY fuck up. Notice required for 'fathers' only if they are on the putative father registry, and kid is given away. (There is no registry of kids analogous to checking title on property)

5. Rule 4

A. Summons signed by clerk and served with complaint within 120 days. Must be served by non-party or Marshall

B. Waiver of service can be MAILED to D if waiver not returned within 60 days, then D must pay for service cost.

C. Must follow laws of the state within the Jurisdiction on delivery---leave with person of suitable age, person likely to pass it in accord with purpose of the rule/legislative intent.

D. Must comply with rule, if not subject to appeal. If the process server fucks up, then the attorney can be sued under respondant superior.

E. When suing the United States, must serve the US Attorney, AND send a copy to DOJ in Washington, D.C. (Note Lushing story--the US Attorney will probably call DOJ and let them know anyway, but they can screw you and file for Summary Judgement

6. Bad Service; Defense

A. When notice not proper in the first case, can collaterally attack the judgement (based on strict interpretation of rules)

B. Note however, it may not matter if you did get the notice after all. Even so, could be a good defense strategy to buy time or demoralize the other party.

7. Other Service Notes--

A. When you appoint agent for service is different from agent for jurisdiction, but easy to get around this says Lushing, under Rule K

B. Service cannot usually be by mail. Must personally deliver or place at dwelling or place of abode.

1. NY Rules Section 318(a) service by mail (exception?)

C. Misnamed Defendants: Can use "John Doe" to stop statute of limitations in some states. Cute, but not NY. Can amend pleadings later most places.

H. CONSENTING/OBJECTING TO JURISDICTION

1. Consenting

A. Appearance can be basis for jurisdiction (appearance can include meet for deposition schedule, speak to other attorney, etc.) even without other contacts

1. Federal Cts. and NY Cts. do not have Special Appearance (appear only to contest jurisdiction)

B. Consent Defects in territorial jurisdiction are waiveable by consent of the defendant.

1. Consent by Contract

a. Carnival­Guy wants to sue cruise line where they live. Back of ticket ("forumn selection clause") says purchase of tickets is consent to suit in Cruise Line's HQ state. While clause not product of negotiation and may be against public policy/adhesion contract, the guy has heavy burden of proof­must show no notice, bad faith, or fraud and so he looses.

2. Consent by failure to follow Ct's order

a. Insurance Corp. v. Compagnie des Bauxites de Guinee­CBG files suit against insurance companies. They challenge for lack of in personam jurisdiction.

1. Discovery allowed for procedural issues like jurisdiction

2. When Companies don't comply with order to bring in documents relating to jurisdiction issue, then court imposes sanction and threatens jurisdiction

3. Rule 37 Sanction ­follow our rules or we'll really get you in to our courtroom

4. Rule 37(b)(2) APPLICATION: Discovery order made to litigate on jurisdiction, thus, b/c no documents produced, ct. answers the question of jurisdiction in favor of the Plaintiff

3. Consent by inaction/waiver

a. Phillips v. Shutts­Guy brings class action against D. D says if they don't get out of the class, they win or loose with the group. (losers can't re-sue, so this is a due process problem?) If you don't opt out of class action, then you are in.

b. Failure to respond­>default

c. Rule 12(h)(1) Failure to enter a timely objection to personal jurisdiction constitutes a waiver of the objection.

I. RULE 12 AND JURISDICTION

-Here goes: Client comes in waving a summons and complaint. He's been sued. What are his options?

NOTE: You have 20 days to respond or else you've defaulted.. State long arm may be longer or can get extension to respond/answer Rule 6(B)

1. Default­

a. The odds are overwhelmingly against you or it's over small beans. Not worth the cost of litigation, or lots of $ involved, but the client has none.

b. You don't want to go to, say, Texas, and there's probably no jurisdiction anyway. Later you CAN raise jurisdiction/notice/due process, but cannot litigate on the merits

2. Settle

a. May be best option, and most cases settle anyway. Also, there is a possibility of ADR type mediation

3. Start the Paperwork! [Rule 12(b)]

++ Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading (answer, reply to counterclaim) thereto if one is required, except the following may at the option of the pleader be made by motion to (dismiss )

-IF denied, must serve answer w/in 10 days

-IF denied, could be basis for appeal

a. Lack of jurisdiction over the subject matter

b. Lack of jurisdiction over the person/territorial

1. Never there, never been there, no property, etc.

2. D Must support with affidavit and memorandum of law

3. P responds with own affidavit, and memorandum and if

affidavits clash then hearing

Some options:

1. Bluff with the motion: For example, if client can only afford to litigate on the motion you will be bluffing all along, but stalling is a great technique.

2. Don't litigate on the merits­take the default judgement when motion is denied, Can appeal and hope to win on JURISDICTION.

c. Improper venue (where within the state)

d. Insufficiency of process (way summons filled out, timeliness)

e. Insufficiency of service of process

f. Failure to state a claim upon which relief may be granted (demurrer, so what)

g. Failure to join a party under Rule 19

B. NEXT: [Rule 12(c)] If D pleads no jurisdiction and P denies (but has already spent all this money to get so far) can make motion for judgement on the pleadings.

C. ALTERNATIVELY, [Rule 12(d)] Defenses (a) - (g) and 12(c) motion for judgement can be heard and determined before trial as preliminary hearings

D. Rule 12(g) ONE MOTION ONLY. Consolidation of Defenses in Motion Can make motion on any or all of the grounds, but must be made at the same time. If you don't bring it up, can't go back.

E. Rule 12(h) Waiver or Preservation of certain defenses­if omitted from motion or not included in pleading, then defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process are waived 12(h)(1) Demurrer, Failure to Join, Failure to State Legal Defense may be made at any time­not waived under 12(h)(2)

F. Suggestion Whenever it appears by suggestion (Lushing story, this word is open to many interpretations­one MOTION, but can SUGGEST other things) of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the matter

-Lushing says can attempt to file what otherwise would be a MOTION as a "suggestion pursuant to 12(h)(3)" (indeterminate, not taking a position, not asking anything) You're not to delay by making frivolous motions, but allowed to 'use the book'

J. SUBJECT MATTER JURISDICTION

1. Article III of the Constitution creates the Judiciary, all they insisted on tho was the Supreme Court for appellate jurisdiction. Congress given authority to create the lower courts to interpret and apply federal law (the law that Congress itself enacted).

a. Congress cannot overrule Supreme Court decision. (§2, Paragraph 2) Congress can limit Court's jurisdiction, however this is rarely done.

2. Concurrent and Exclusive Jurisdiction

a. State (trial) Courts have concurrent subject matter jurisdiction in most cases involving federal or state law. Generally, State courts can hear everything unless stated under the federal statute (For example, Federal Courts have exclusive jurisdiction over Antitrust, Copyright claims)

1. MUST check statutes before choosing fed/state

b. When both courts have subject matter jurisdiction, the litigants have some choice­P gets to choose where to file suit but in some cases D may remove to federal court a case originally filed in state court §1441

1. Choice based on, among other things:

a. Judges (partisan, elected, or not or appointed for life, etc.)

b. Precedent­what worked before

c. Where jury is from

c. State courts have exclusive jurisdiction in cases where there is no federal grant of subject matter jurisdiction to the federal courts--typically those based solely on state law and no diversity of citizenship.

d. State actions can be removed and taken to federal court if that's where they are really supposed to be.

e. A case can start in State Court and still end up in Federal Court. Subject matter jurisdiction is generally only about ORIGINAL jurisdiction. So, if a case starts at the state level trial court and goes through appellate review, you can then petition for cert at the U.S. Supreme Court if the problem is that something is UNCONSTITUTIONAL or involves a substantial federal law question.

3 Well Pleaded Complaint Rule--Jurisdiction cannot depend on what defenses P thinks that D will raise. (RR case)

4. Raising subject matter jurisdiction­can raise any time!

a. Note, Plaintiff can raise­can complain after she loses, even (shows how much they care)

b. Can be raised by 'suggestion' under Rule 12, so that you don't have to remember it in your one and only motion.

5. GETTING INTO FEDERAL COURT (Federal Question, Diversity, Supplemental)

A. Federal Question

§1331 "Arising Under" -most litigation that hits fed courts comes from here. Note that the Constitutional 'arising under' may be broader than the statute­has this been litigated?

a. "Federal Question" The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. *No $$ requirement

b. Basically, think­what law are they suing under? If the suit is created by State law, i.e., negligence, then can't use Federal Court

1. Louisville and Nashville RR Co. v. Motley­Couple injured on railroad and gets free pass. Bill passed which cut free rides, and the railroad says no more pass for you. Court reverses for lack of jurisdiction, because P's original claim not based on federal law or Constitution and Circuit Court couldn't help them because they had no jurisdiction.

-Motley's claim was that D will argue the Federal Statute, but anticipating a (federal) defense is not ARISING under the constitution. Just think about it, the Fed. statute might not be brought up or may be anticipated wrongly­if allowed, would overrun fed courts with cases. ?Surplusage

2. Justice Holmes (p. 398) The cause of action test. "A suit arises under the law that creates the cause of action"`

3. Can bring a suit for declaratory judgement even if no law broken/created (not suing the violator, but the alleged wrongdoer asks the court what does this guy have on me? (Likely D becomes P for declaratory judgement suit)

a. Jurisdiction in this situation is determined by hypothesizing what a complaint would have looked like in

the suit that would have been filed against alleged wrongdoer.

4. Merrell Dow Pharmaceuticals v. Thompson­Drug caused birth defects. Drug was misbranded in violation of federal act. Yet, a violation of a federal statute as an element of the state cause of action (where there is no private cause of federal action) does NOT state a claim 'arising under the Constitution'

a. Congressional/Legislative intent issues:

1. Federal interest in seeing the federal statute get uniform interpretation.

2. Federal law at issue must either expressly provide for or imply a private cause of action

3. Statute must be enacted to benefit a special class of which P is a member

B. DIVERSITY

1. Theory--Diversity Jurisdiction is not in the Constitution, and academics say that its time is over. Congress, in its questionable wisdom, granted original (diversity) jurisdiction to federal district courts.

2. Jurisdiction MUST exist at the time of filing (thus, domiciled when filed)

A. Reasons for keeping diversity:

a. Historic

b. Avoid Prejudice of local juries, judges.

c. Lawyers want it---more options...judges not as smart in State court?

d. Shortage of State Judges

B. Why get rid of it?

a. States have expertise in substantive State law issues.

b. So as not to clog federal circuit.

c. Shortage of federal judges and bad presidents can appoint them..

2. Plaintiff has burden of pleading diversity and has burden of proof

3. §1332 Diversity of Citizenship; Amount in Controversy; Costs

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75K, exclusive of interest and costs, and is between--

1. Amount must be OVER $75K, and must be reasonable to think it is worth over $75K. (If injunction, then the amount is what was the qualified loss to P or cost to D)

-Opposing D must show that P cannot recover more than $75K (damages from either P or D's viewpoint)

2. P can aggregate all claims to $75K amount if same facts, but not for different theory. (Assault and battery can be combined, but not assault and contract)

3. Multiple P's CANNOT aggregate for class actions. Each must suffer $75K, (bad for little people)

-However, EVERY member of the class does NOT have to be from a different state than D. (Just named parties)

4. Amounts sought in permissive or compulsory counterclaims not considered part of the amount in controversy

(1) Citizens of different states

(2) Citizens of a state and citizens of or subjects of a foreign state

(3) Citizens of different States and in which citizens or subjects of a foreign state are additional parties; and,

(4) A foreign state, as plaintiff, and citizens of a State or of different States.

1. Natural Person: CITIZEN = someone domiciled within the state (at the time of filing) and a U.S. citizen.

a. A person can move even, because the statute says nothing about motive, however this is a relevant evidentiary matter and would likely come up during the discovery process.

2. DOMICILE--home you are born into unless you have intent to stay somewhere else permanently or indefinitely. Person has one domicile, but have several residences.

-Domicile may be defined differently for different purposes--voting, tuition, tax, Florida home. Can support domicile with evidence but affidavit depends on intent.

-Mas v. Perry, Grad students renting in Baton Rouge but are residents elsewhere. They're not sure where they are headed next. SC says that they can satisfy diversity jurisdiction.

3. Artificial person--corporation is citizen of state in which it is incorporated AND its principal place of business. Unincorporated association is citizen of all of the states in which its members are citizens.

4. Statute requires complete diversity, that is, every P must live in different state than every D.

-No improper or collusive assignment or joinder to invoke jurisdiction.

5. Probate and Domestic--statute says nothing, but SC interpretation says no, Kings Bench didn't do it so we're not either.

C. SUPPLEMENTAL JURISDICTION

1. Generally, if the Federal and State claims arise under the 'same facts' then federal court may take jurisdiction over both.

2. Common nucleus of operative facts = same facts

3. §1367. Supplemental jurisdiction

(a) Except as provided when district courts have original jurisdiction, they can have supplemental jurisdiction over ALL other claims that form part of the same case or controversy under Article III of the U.S. Constitution.

(b) When district courts have original jurisdiction founded on §1332 (diversity) then no supplemental jurisdiction for joinder, interpleader, intervener claims that are inconsistent with diversity (those folks are from same state as P)

(c) District courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if:

1. Novel or complex issue of State law

2. State law predominates

3. District court has already dismissed federal claims

4. Exceptional circumstances

(d) Statute of limitations for claims asserted under §1367 is tolled while pending plus 30 days after dismissal

--Lushing says if you are not sure, file anyway in both states or Fed/State to keep statute running

--Protection if you make a mistake

4. If Federal court had no jurisdiction to begin with, (dismissed for lack of SMJ) then no supplemental jurisdiction on the other claims

D. REMOVAL

1. If Diversity or Federal ?, then P can choose where to take the suit. However, D can remove (transfer State case to Federal Court)

--NO REMOVAL from Federal to State Court

--Even with removal to Fed Court, ct. Must still have Subject Matter Jurisdiction

2. §1441. Actions Removable Generally

(a) Except/...action in state court can be removed to Federal Court by D or D's (by agreement)

(b) If Federal Question, D can remove without regard to citizenship/residence; however, in Diversity actions-the local defendant cannot remove because no prejudice.

(C) independent claims >>joined. Claim may be added by D to get diversity

3. §1442. Federal officers or agencies sued or prosecuted

(a) Civil or criminal actions commenced in State court against US agency or officer may be removed by D to federal court

4. §1446 (a) Filing notice of removal

-From state-->Federal, do not need permission. Either there is jurisdiction to remove or not. If fed judge does not want it, can remand to state court.

-NOTE: If D tries to remove the suit to federal court, P can file a Motion to Dismiss for lack of jurisdiction.

(B) Notice of removal must be filed (in Fed ct.) within (shorter of) 30 days after D receives initial pleading or summons

E. VENUE

1. State court--by county

2. Federal court--by district

3. If brought in the wrong venue and D says nothing, then defense waived

4. D can move under Rule 12 to move venue

5. §1404 Change of Venue

a. District court may transfer to other district where it might have been brought.

b. D can make motion to transfer because of convenience/interest of justice.

6. In federal question cases, venue proper where defendant resides or claim arose

6. In diversity cases, venue proper in district where D resides or where cause of action arose, but not where P resides (unless D subject to personal juris. there too)

F. FORUM NON CONVENIENS

1. Discretionary

2. Motion to Dismiss on grounds of Forumn Non Conveniens only proper when alt. Forum is foreign country. (i.e. if proper venue is Sweden

G. CHOICE OF LAW/ERIE

(Becomes a problem with diversity jurisdiction-Federal court)

1. § 1652 State laws as rules of decision-The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the US, in cases where they apply.

2. Erie Just because a federal District court has subject matter jurisdiction to hear a case does not determine what law it should use in deciding the case.

-Historically, Swift v. Tyson--when the local state rule departed from a general rule of commercial law, the federal court must follow general rules or any controlling state statutes.

-Note the problem, is that federal courts would be able to declare rules of decision in the field of 'general law' which Congress did not have the power to enact as statutes. (Article I, Congress can only legislate in certain areas)

3. Generally, unless the case involves the Constitution, FRCP, or a federal statute, a federal court hearing a diversity case must follow STATE LAW (both common law and statutory). If the case involves federal common law, then there is an Erie issue.

-Hanna v. Plumber--use FRCP, as long as the rules are Constitutional. (FRCP enacted 1938, adopted by many states but not NY

4. It all boils down to the underlying policy of discouraging forumn-shopping.

5. Substanive/Procedural division

A. If the issue is procedural for the purposes of Erie, then apply Federal Rules of Civil Procedure

-if the rule is silent, D may argue state law.

B. If the issue affects the outcome, use State law, if not use FRCP (Guaranty Trust)

C. Byrd--"Balancing Test" Important to consider federal interest (in this case, a jury)

6. Reverse Erie--State court cannot throw out federal claims. State courts need to follow federal law

-Note, the NY court of Appeals can certify a question from federal court (2^nd Circ.) to find out if it is good law for NY.

X. PLEADINGS, MOTIONS, CLAIMS, ETC.

1. A lawsuit is started when the complaint is filed. (Note: Service does NOT start the suit) This is a pleading--a road map of where the case is going, giving D notice and preparation guidance.

2. R. 7. There shall be a complaint (P) and an answer (D). If and only if D counterclaims, then P files a reply.

3. R.8, General Rules of Pleading. Note (e)(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required

-A modern curiosity, Rule 8(e)2, A party can set forth two or more statements of a claim or defense alternately or hypothetically. All claims do not have to be sufficient, if they are separate from each other. Note however, Rule 11(b)(2) still exists so lawyers are obligated to refrain from going overboard with frivolous or otherwise improper claims

-Note, these statements may be read to the jury or cross-examined with it, so you need to be realistic. Still, the rule may give you a second bite.

-The forms in Rule 84/Appendix are sufficient--remember, we're going for simplicity here.

a. However, you can get away with putting in more. It may be a choice of strategy. If you don't know where you are going, be short, whereas if you want to scare the D, set a scene, ask for sympathy go long.

b. Form not so significant, but what substantive law is plugged in. P is master of what is in there. Formalities not so important.

4. Generally, for forms, go to books, files, friends

--Normally, whomever has the burden of proof has the burden of pleading.

5. Typically: (See Rule 8(a) and Rule 84)

COMPLAINT

1. Allegation of jurisdiction--subject matter and personal

2. Statement of claim

3. Demand for $ judgement

-Doesn't matter what you put down if not liquidated damages (i.e., emotional distress, other unquantifiable items) If it's obvious, --bounced check, then need to use that figure

6. Rule 9, exceptions to 'short and plain' rule

a. Capacity, fraud, conditions precedent, special damages, etc.

7. Process:

A. Client handed summons and complaint (this satisfies SOL) D HAS 20 DAYS TO RESPOND, MAYBE LONGER IF LONGARM. GOVT WOULD HAVE 60 DAYS

1. Can default--and pay judgement. Later can move to vacate on lack of personal jurisdiction, SMJ, or lack of due process/service.

2. Can try to settle--however, time to respond is running, and may have to get stipulation by judge to extend--need to get this in writing.

3. Client wants to go forward

-Every defense can be asserted in answer or in motion, with some exceptions, which may at the OPTION of the PLEADER be made by motion.

A. Answer/Pleading--frames issues and position of parties. Likely, the D (or P's reply to D's counterclaim) will just deny everything. Note, if motion not made and defenses not in answer, then they are waived (SMJ cannot be waived tho)

1. R. 8(e) Pleading to be concise and direct. R. 8(e)2, a party can set forth two or more statements of a claim or defense alternately or hypothetically.

-Note however, no crazy shit--there's always Rule 11 sanctions.

2. Defenses and Denials R. 8(b)

a. D's answer needs to show that she is not defaulting and to narrow the issues

b. While general denials are popular (esp. In NY), they should not be used, because you are obviously not denying some things, like your name and address. If you deny too much or are tricky, may be sanctioned.

c. Can Deny "xyz" but admits "abc" by quoting from the pleading.

d. Must either admit by silence, deny, or state insufficient knowledge sufficient to form a belief (denial in effect) IN SHORT AND PLAIN TERMS. D must respond to what the P is saying in his pleading--cannot make up his own version.

3. Affirmative Defenses--if D (or P on D's counterclaim) does not give affirmative defense, R. 8(c) then they are waived. So, in practice, might want to list all defenses possible.

a. Ex. Even if everything that she says I did is true, I have a reason for what I did because something

else happened, like contributory negligence, statute of frauds, laches, payment, release, fraud, etc.

4. Defendant can counterclaim.

a. R. 12(2), A party served with a pleading stating a counterclaim must serve an answer within 20 days after service.

-Ex. P serves complaint, D serves answer with counterclaim, P must serve reply w/in 20 days.

-Any party can then file--but note 'all at once' provision of Rule 12(g):

1. Motion for judgement on the pleadings under 12(c)

2. Motion to get rid of convenience defenses under 12(d) (to resolve defenses made in answer)

3. Motion for more definite statement under 12(e), but usually this motion is more a bad-faith delay tactic and is rarely granted. Even if unclear, you can always deny.

4. Motion to strike court can order insufficient defense, redundant, immaterial, impertinent, or scandalous matter stricken. R. 12(f). This is

important because Newspapers can publish ct. Documents. (Use filing to slam celeb?)

B. Rule 12 Motion, accompanied by a brief on the substantive law

1. Defendant has one motion to dismiss and must consolidate all possible defenses therein, R. 12(g); however, some defenses are preserved under R. 12(h)

a. Failure to state a claim (R. 12b Motion to dismiss for failure to state a claim not waived under 12(h)(2) but probably ineffective after discovery.)

b. Failure to join indispensable party under R. 19, (this protects the guy who wasn't joined-he's still protected even if you are lax.

c. Failure to state a legal defense to a claim.

*Note, if 12(b) motion is denied, either party can still file a 12(c) motion for judgement on the pleadings. (This would usually be Plaintiff, saying throw in the towel, honey)

2. Under R. 12(4) If the motion is denied or postponed, the responsive pleading shall be served within 10 days after notice of court's action

3. Grant or denial of Rule 12(b)(6) motions are great grounds for appeal

4. Note, R. 12 (b) that every defense to a claim for relief in any pleading shall be asserted in the responsive pleading thereto if one s required, except that 1-7 may at the option of the pleader be made by motion. YOU HAVE A CHOICE.

4. Dealing with Pleadings

A. Amended and supplemental pleadings

1. Something came up or you screwed up

A. Generally, you can amend without asking court before the answer is served OR ask the other party by motion/leave of court afterwards. (Adversary can move to oppose)

1. R. 15A Motion for Leave to Amend--may be granted by Judge on condition or flat out.

-Note also, amendments relate back to the date of original filing when same set of facts, changes name of party, or is permitted by SOL-R.15C.(Ex. Name John Doe as defendant to stop SOL. Even if it is too late under SOL, you can correct name by amending and it will be deemed to go back)

B. However, you might want to wait to file suit if you think that things may change (changes added are things that happened before the pleading was filed--not additional injuries)

C. 15B when issues not raised by the pleadings are tried by express/implied consent of the parties, they shall be treated as if they had been raised in the pleadings (to conform to the evidence) Also note, when pleadings are "amended" they are not actually rewritten--the judge just deems them so.

D. 15D, Supplemental pleadings--changes to the pleading bearing on things happening after the pleading was filed.

B. Rule 11 Sanctions--purpose is to stop lawyers from filing frivioulous claims/defenses. Note irony, the other guy could file a R.11 motion that your R.11 motion was frivoulous.

1. 11b May be a detterrent for institutional litigators (social justice, etc.) If their claims seen as frivoulous.

2. 11c Sanctions--initiated by motion by the other party or by the court itself. Party has opportunity to defend themself. Sanctions optional, up to judge to use discretion.

-Note safe harbor provision--P can withdraw the allegedly frivoulous papers before R.11 motion actually presented to court (P has 21 days after service to withdraw)

C. Counterclaims

1. R. 13a Compulsory counterclaims--Opposing party's answer can include counterclaim if it arises out of same set of facts.

2. R. 13b Permissive Counterclaims--answer states counterclaim against opposing party, not same set of facts (not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim). Court must still have subject matter jurisdiction.

3. R. 13d Counterclaims against the U.S.

4. R. 13e Counterclaims can be added as supplemental pleadings (acquired by pleader after pleading filed) with permission of court

5. R. 13f When pleader forgets counterclaim, can ask court to add--but don't depend on it.

6. R. 13g--Cross Claim against Co-Party. Must be same facts against a co-party. Ex. Contribution (torts)

-R. 13h Joinder of Additional Parties-Persons other than original P and D can be added for counterclaim/cross-claim, in accordance with R. 19, R.20. Note, they can be brought in by serving a summons to them.

D. Third Party Practice--Impleader

1. R. 14a. At any time after serving the original answer, the D has 10 days to bring in D2, who is or may be liable to D1 D1 becomes third-party plaintiff. After 10 days, D1 must obtain leave on motion upon notice to all parties to do this.

A. Ex. This guy owes me what I owe P. Add D2 and crossclaim against him. (AKA contribution, indemnification)

B. Once P and D2 become opposing parties, D2 can counterclaim freely against P

2. Plaintiff can bring in (14b) third party when counterclaim asserted against him.

3. Rule 42. Consolidation; Separate Trials.

A. When actions involving same set of facts/laws are pending, ct may order joint hearing or trial (consolidation) to avoid unnecessary costs or delay.

B. May be separate trials to expedite or avoid prejudice.

-Ex. If liability trial separate from damages, then may never need to get to damages (if not liable)

E. Parties

1. Rule 17-Parties Plaintiff and Defendant; Capacity

A. Real party in interest--every action should be in the name of the party suing. Note, assignee can sue in his own name without joining the assignor.

B. Capacity to sue--depending on law of the individual's domicile, or for a corporation will be determined by the law under which it was organized.

C. Infants/incompetents--guardian can sue, etc. 2. Rule 18--Joinder of Claims and Remedies

A. Optional to join all independent or alternate claims (including original, counterclaim, cross-claims, third-party claims)

3. Rule 19--Joinder of Persons Needed for Just Adjudication

A. Persons to be joined if feasible--if personal and SMJ okay, (and will not destroy diversity) then person SHALL be joined if in his absence complete relief cannot be accorded, or person claims an interest and needs to get it now, or if otherwise would be subject to double liability. If venue problem arises, joined party may be dismissed.

B. Determination by Court whenever joinder not feasible. If person described in (a) cannot be made party b/c jurisdiction, ct may dismiss case if absent person indispensable.

1. Here, the Defendant can make a motion to join a party and get to a point where the judge needs to dismiss the whole thang because the party can't be joined and D wins.

-Gives defendant an incentive to stick up for the other guys rights: get another P to sue him, say that if I'm gonna be sued--I don't want to be sued twice!

However, the interest of the Plaintiff that D wants to bring in must be a practical interest. (D should be suing Husband and wife at same time)

2. In some circumstances, court will exercise supplemental jurisdiction on a joined second claim that does not satisfy diversity requirements, if other claims do??? See also §1367(b).

3. The R.19(b) joinder situation presents a situation where the judge will need to balance dismissal (and hurting P) v. the interest of non-feasible-to-join party.

4. Rule 22--Interpleader (Same Steak)

A. When 2 parties claim the same steak controlled by X, X must force the second party to interplead as D's when their claims are such that the P is or may be exposed to multiple liability. Does not need to be identical claim.

B. Ex Guy dies, and widow entitled to life insurance. Then, another widow finds her way in to fight for the money. The insurance company will join the two parties and force the wives to fight each other over the same 'steak.'

C. Statutory Interpleader, §1335 -minimal diversity only and amount only needs to be $500 or more, P deposits the money or property to court for judgement.

5. Looking for the Action

A. Permissive Joinder and Rule 20---during slow period, lawyer can look out for suits to join. (a) All persons can join in one action as Plaintiffs if same set of facts. Does not need to be exact same relief. (b) Court may separate trials to prevent embarrassment/expense/delay, etc.

B. Intervention--rather than waiting for D to move for joinder of party, X can intervene to protect his interest, or when given statutory right to intervene.

1. Rule 24

-(a) Intervention as of Right--motion must be granted if statute confers unconditional right to intervene OR disposition of the action may impair or impede ability to protect that interest, UNLESS applicant's interest adequately already represented

-(b) Permissive Intervention--discretion when statute confers conditional right to intervene OR applicant's claim or defense and main action have a question of law or fact in common OR if about statute or executive order, the officer or agency may be permitted to intervene

2. Same standards as Rule 19 to get in

3. Person who wants to intervene must serve motion to intervene (accompanied by pleading stating claim or defense) on parties as provided in Rule 5.

4. If challenging federal statute, must notify AG. If you don't then not a waiver of rights

C. Class Actions and Rule 23

1. Ok, so the lawyer gets a bright idea and wants to make a lot of money. Finds a group of people who share something in common--have been wronged (class) Attorney knows he will get fee as a % of judgement, or $ from D in civil rights case.

A. Heavy paperwork, notice requirements, complex expert testimony etc., may make this a job for the big firms; but often, the little lawyer can still claim a stake.

2. Rule 23, CLASS ACTIONS

A. Prerequisites--one or members of a class can sue as representative if class so numerous that joinder of all members is impracticable, AND common questions of law or fact AND claims or defenses of representative parties are typical, AND the representative parties will fairly and adequately protect the interests of the class

B. Class actions maintainable if prereq's met and prosecution of separate actions would create a risk of inconsistency or would impair ability of non-parties to protect interest or opposing party has acted/refused to act or (3) discretionary--common questions and class action best resolution.

1. B(3) class actions often about tort liability and court may prefer this--better than 3000 whiny individuals (breast implants, nursing homes, asbestos, etc.)

C. Determination by order--after filing summons and complaint, court will determine whether it to grant certification. Order approving class may be conditional and may be altered .

1. For B(3) class actions, best notice practicable and opt out date. Judgement, whether or not favorable to the class, will affect all who do not request exclusion.

A. May opt out because you want to sue on your own or don't believe in it.

B. If you don't opt out, you will be precluded from suing on your own.

2. Class can be separated into subclasses with respect to particular issues

D. Management --Once class approved, must send out notices, and court will manage conduct. Agent Orange story--J Weinstein, E.D.N.Y. story to show how much management involved. Note also, courts have begun to limit expert testimony, b/c often you can find someone to say anything.

E. Dismissal or Compromise--for usual actions, judge does not have to approve settlement (exceptions--incompetent, minor) YET, for class actions, the judge MUST approve the settlement, because the persons in the class are at the mercy of the lawyers

1. A good settlement will make both parties unhappy, and is a prediction of what the court or jury would do..

2. Note that because class actions crowd the courtrooms and judge doesn't really know what is going on at every step, she is likely to approve--but does have discretion to do so or not. Will decide not on merits but on fairness--theoretically, judge is looking out for persons not there.

F. Appeals--do not have to wait until end of case to appeal. Can even appeal denial of class action certification.

F. PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT

1. Rule 16, Need to go to settlement (pretrial conference) with authority to settle--can't just sit in and waste time. Also, persons going to pretrial conferences, must have authority to enter into stipulations and to make admissions.

2. Conferences are an exception to adversary system--ct. Forces parties to get together to expedite disposition, control and management, discourage wasteful activities, improve trial quality, facilitate settlement

3. Pre-trial and Settlement conference is in front of judge, not jury so you need to be prepared and no fun stuff. Party can be sanctioned under R.16(f) for failure to obey scheduling or pretrial order.

G. DEPOSITIONS AND DISCOVERY

1. Discovery is the legal compulsion to give up information, whereas investigation (getting people to talk on their own/fishing around) can be whenever.

A. NOTE: DOES NOT HAVE TO BE ADMISSIBLE TO BE DISCOVERABLE (but still cannot discover privileged info)

B. If you don't complain, compel discovery, etc., then they will screw you.

2. What's good about discovery:

A. Get information from opponent so merits are improved, everyone gets equal information.

B. Discovery may lead to settlement, when you find out how good their case is.

C. Discovery sets up parties for MSJ--no disputed facts, so can dispose of on the merits without going to trial.

D. Fair trails, eliminates surprise, prevents perjury.

E. Runs up lawyer's fees--can use as weapon, so of course some abuse is likely.

3. Rule 26: GENERAL PROVISIONS CONCERNING DISCOVERY; DUTY OF DISCLOSURE

A. R.26(a) Required Disclosures--can no longer opt out

1. Must give over to the other party without being asked:

a. Names, addresses, phone of every individual likely to have information.

b. Copy of all things client has or description and location of all things relevant to disputed facts

c. Computation of damages and materials on which it is based.

d. Any insurance agreement...to indemnify or reimburse for payments made to satisfy judgement.

e. Some categories of proceedings exempt from initial disclosure.

--disclosures must be made at or within 14 days after the Rule 26 conference unless different time is set by court or unless party objects.

2. Disclosure of Expert testimony--do not pay witnesses, only experts.

a. Do not need to disclose names of witnesses you are not using, but need to include report with qualifications and what they are going to say and what they are going to be paid, etc., etc.

3. Other Pretrial Disclosures: IN addition, party must provide to others and file with court ...regarding evidence it may present at trial other than solely for impeachment.

a. Names and addresses of each witness, (sep--expects to present, and call if needed), designation of witness testimony by deposition, identification of documents as appropriate. Disclosures must be made at least 30 days before trial.

b. Objections also disclosed, and may be waived except for relevance/prejudice. See rule.

4. All disclosures (required, expert, other) shall be made in writing, signed, served, and promptly filed.

5. Methods to Discover Additional Matter: Depos, interrogatories, production of docs or things or permission to enter land for inspection and other purposes or physical and mental examinations and requests for admission. (FRE does not apply)

B. R. 26(b) Discovery scope and limits:

1. Generally, VERY BROAD: Parties may obtain discovery regarding any matter not privileged, which is relevant to the claim/defense of ANY party, including existence description, nature, custody, condition, and location of any books, docs, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Need not be discoverable at trial if info sought appears reasonably calculated to lead to discovery of admissible evidence.

2. Limits: Ct may alter limits, length, frequency, or extent of use of methods, if:

a. Unreasonably cumulative or duplicative or other source more convenient, less burdensome or less expensive, or

b. Party seeking had ample opportunity to obtain info, or

c. Burden or expense outweighs benefit--taking all into account.

3. Materials: Party may obtain discovery of materials prepared in anticipation of litigation only upon showing of substantial need, and can't get the material elsewhere. Without required showing, party can get statement concerning action or subject matter if statement previously made, i.e. transcription of prior oral statement.

4. Special rules for experts: party can disclose all experts whose opinions may be presented at trial. If expert retained but not expected to testify, party can discover facts known or opinions held ONLY as provided in 35(b) or exceptional circs where party can't get the stuff by other means. Party seeking discovery pays expert. If party says it's privileged info, then must describe in order for other parties to assess applicability of privilege.

C. R.26(c) Protective orders--Sanctions. Rule gives ct power to help--upon motion that says to court you tried to confer with other party in good faith and can't resolve on your own, court may impose order or sanction to protect party from annoyance, embarrassment, oppression or undue burden or expense.

D. R.26(d) Timing and sequence of discovery--no discovery until parties have met, as required by R.26(f).

1. Unless orders otherwise, methods of discovery may be used in any sequence.

2. Judge has some power to manage.

E. R. 26(e) Supplementation of Disclosures and Responses. Party under duty to supplement or correct the disclosure or response to include info thereafter acquired if ordered by court or learns that info disclosed incomplete or incorrect, etc.

1. Note, you can only take advantage of this if you know what he said before. Gotta be sharp.

F. R.26(f) Before scheduling conf (21 days at least) parties must confer to consider nature and basis of claims/defense and possibilities of settlement or resolution, to make or arrange for disclosures, and to develop discovery plan. Plan to be submitted to court within 14 days after conference.

G. R.26(g) Everything needs to be signed or it will be struck down. Maybe even sanctioned. Signature certifies that disclosure is complete and correct as of time made.

4. Rule 27: DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

5. Rule 28: PERSON BEFORE WHOM DEPOSITIONS MAY BE TAKEN

A. Within the U.S--before an officer authorized to administer oaths or before person appointed by the court. Usually, the stenographer is this person.

B. In depo room, there is no judge, so the scene could get crazy. You have:

1. Lawyer taking the depo

A. His client (party-witness)

2. Stenographer--will swear in and take notes.

3. Witness--can be supoena'd if not a party

A. His lawyer, if he has one

4. Opposing attorney(s)

A. His client. (Party-witness)

6. Rule 29: STIPULATIONS REGARDING DISCOVERY PROCEDURE

A. Need to find out what the ground rules are. Don't agree unless you know to what you are agreeing.

7. Rule 30: DEPOSITIONS UPON ORAL EXAMINATION

1. Purpose of Depos--freeze witness testimony, prepare strategy and gameplan, try to get info from the guy by being nice.

a. A party may take the testimony of any person--incl. a party--by deposition upon oral examination without leave of court unless proposed

depo puts person subject to 10+depos, person has already been deposed, or before parties meet.

b. Party who wants to depose other party must give notice

c. Objections and Cross-Examination--not a trail standard of admissibility, but lawyers can still go on the record with an objection. If your adversary keeps objecting, you can note that you will be moving later to compel answers. Opposing lawyer can cross-examine party being deposed

d. Schedule and duration: Depo limited to one day/7 hours unless court permission. If other person impedes or delays, then court may impose sanction

e. Review--witness allowed to review and correct depo transcript

f. Oath offer to certify that depo record true and correct

g. Failure to attend--

1. If you don't show up at your own depo, and the other party does pursuant to the notice you gave them, the court may order you to pay other party's expenses..

2. If you give other party notice of depo, and your witness does not attend (b/c you didn't supeona them) and other party shows, then you have to pay their expenses.

8. Rule 31: DEPOSITIONS UPON WRITTEN QUESTIONS

A. Problem--you can't modify your line of questioning depending on the response/objections you are getting.

B. These are good when witness is neutral--admin, clerk, etc. just getting information

C. Notice requirements

9. Rule 32: USE OF DEPOSITIONS IN COURT PROCEEDINGS

a. At trial or (evidentiary) hearing, any part or all of depo (if admissible as to FRE as if they were testifying) may be used against any party who was present or represented at the taking of the depo or had reasonable notice thereof.

1. Any depo may be used by any party to contradict or impeach testimony of deponent when he gets on the stand.

A. Depo will get past the hearsay problem, but some statements therein will not

B. Depo freezes the testimony­may impeach with it (limiting instruction­not for truth but for credibility)

2. Depo of person representing public or private corporation, partnership, governmental agency which is a party may be used by an adverse party for ANY PURPOSE

3. Depos can be used as evidence FOR ANY PURPOSE if witness dead, far away, unable to attend b/c age, illness, imprisonment, or if party offering the depo has been unable to procure the attendance of the witness by supeona, or by application and notice­exceptional circumstances catchall

4. If only part of a depo is offered in evidence, adverse party may require the offeror to introduce any other part­context­fairness, and ANY party may introduce any other parts

b. Objections­can be made­exclusions same as FRE

c. Form of Presentation­generally, nonstenographic form (typed) would make sense, especially in front of a jury

10. Rule 33: INTERROGATORIES TO PARTIES

a. Any PARTY may serve on any other party up to 25 interrogatories (including subparts)

1. Can ask permission to serve more.

2. Can only be served after parties meet (R. 26d)

3. Interrogatories are for the parties only­too much time and burden for nonparties. These written questions you can get written answers for items that need a lot of research, or where answers cannot be recalled at deposition. Also, you may want to strategize and ask questions by interrogatory before the depo so that you are more organized when you actually have the person in front of you.

b. Answers and Objections

1. Each shall be answered unless objected to (with reasons) and signed.

2. You have 30 days after service to respond

3. Failure to object is waiver unless excused by court for good cause.

c. Scope, Use at trial

1. FRE apply and may relate to any matters which can be inquired into under R.26(b)1­discovery

d. Option to produce business records­when anser can be found in records, and burden same for either party, it is sufficient to cite to the location of the records and give he person serving the interrogatory reasonable opportunity to inspect and copy.

11. Rule 34: PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES

a. Can serve on any other party a request to get documents or other things within the scope of R.26(b) discovery, and which are in their possession. Or can serve request to permit entry upon land in their control to inspect, etc.

b. Request should describe each item with reasonable particularity.

1. Party has 30 days in which to serve response after being served with the request.

2. A party who produces docs for inspection shall produce them as they are kept in usual course of business (dusty warehouse ok) or shall organize and label them.

c. Persons not parties­can be supeonad (Rule 45)

12. Rule 35: PHYSICAL AND MENTAL EXAMINATION OF PERSONS

a. When mental or physical condition of a person is in controversy, a court may order the party to submit to exam.

1. Order may be made only on motion for good cause and upon notice to party/parties

2. Supreme Court has upheld this rule.

13. Rule 36: REQUESTS FOR ADMISSION

A. A party can serve on other party a request for admission of the TRUTH of any matter within scope of discovery

1. Genuineness of any documents

2. Statements or opinions of fact or of the application of law to fact. (NOT FAULT)

B. If the other party should have admitted it, then they have to pay the cost of your investigation

C. Anything admitted is for the purpose of the pending action ONLY, and is not admission for any other purpose, nor may it be used against the party in any other proceeding.

D. Each matter of which an admission is requested...deemed admitted within 30 days after service or other time frame decided by the court. Answering party can object with reasons why they cannot admit or deny, but cannot give insufficient knowledge unless reasonable inquiry made.

1. Note: you cannot refuse to admit because it is a genuine issue at trial. Can deny or give reasons why party cannot answer.

14. Rule 37: FAILURE TO MAKE DISCLOSURE OR COOPERATE IN DISCOVERY: SANCTIONS

A. Party, after attempting to confer, or in good faith conferring, with any other party who is not disclosing, can (with reasonable notice) move to compel disclosure and for appropriate sanctions.

1. An evasive or incomplete disclosure, answer, or response is treated as failure.

2. If motion granted, the adversary party must pay costs of making motion and attorney's fees.

3. If motion denied, moving party might have to pay opposing party costs, etc. and court may enter protective order authorized under R.26(C)

B. If court grants motion, will order discovery.

C. Failure to obey order to provide or permit discovery; then can move for sanctions.

1. Court orders/sanctions (court goes for in terrum effect--fear/detterence)

A. Matters hidden will taken to be established

B. Disobedient party will lose claim or defense

C. Pleadings stricken, or action dismissed

D. Charged with Contempt of court (except for failure to submit to medical exam)

E. Ordered to pay costs caused by the failure, unless failure substantially justified

C. Failure to Disclose; False or Misleading Disclosures

1. When you fail to disclose something before trial, you cannot use it as evidence at trial or hearing. Other sanctions may also be imposed. (Cannot say you just found it, because you have a general duty to keep accurate and add materials as you find them.)

2. If you don't show up at your own deposition, or serve answers to interrogatories, or respond to request for inspection, after getting reasonable notice, the requesting party can move for sanctions:

a. Court may take any reasonable action authorized under 37(b)2(A)(B)(C)

B. Court will require the party failing to act to pay reasonable expenses and attorneys fees caused by the failure.

3. Party failing to act on the ground that the discovery sought is objectionable, may NOT be excused UNLESS the party has a pending motion for a protective order (R.26c).

4. If party or attorney fails to participate in good faith in development and submission of a 26f discovery plan, the court may require to pay other party expenses caused by the failure

H. TRIAL

1. Introduction

A. We have trials to "resolve disputes over facts."

2. Resolving the Case B4 Trial

A. Settlement (R. 68)

1. Once D settles, P's claim is terminated, and D is insulated from liability, including any liability for contribution.

2. Only party defending against a claim can offer settlement.

3. Court does not need to approve, unless minor, incompetent, class action. However, CLIENT must approve, and lawyer has responsibility to fight for client--not just take the $ and run.

4. Rule encourages settlement over trial--awards costs (incurred after making the offer against) P who receive a less satisfactory result at trial than they would have received under the settlement. (Here, P would have done better if he just took the offer)

5. D can offer settlement at any time more than 10 days b4 trial begins. Plaintiff has 10 days after service to notify D to accept. Then, either party may file offer/acceptance, proof of service to clerk who will enter judgement.

B. Motion for Summary Judgement

1. Supported by Paperwork:

A. motion,

B. memoranda of law (summary judgement law, substantive law), C. affidavits (from witnesses who would be able to testify, lawyers on procedural matters)

D. Discovery material (including depositions, interrogatories, discovery etc.)

1. Note, must be discoverable and able to use at trial (no hearsay, privileged stuff, etc.)

2. If there is no disputed issue of material fact, then the MSJ should be granted.

A. If there is a disputed issue of fact, then MSJ cannot be granted. Would be an issue for the jury who would be able to look at credibility, demeanor, live testimony, cross-examination, etc.

3. Non-moving party just has to say that there is an issue of fact, or confuse the judges so much they cannot decide the motion.

4. Generally, P has the burden of proof.

A. Addixes case puts the burden on the (moving) Defendant to show absence of genuine fact issue.

B. Celotex reverses Addixes. Says Non-moving Plaintiff has the burden to show that there is a disputed question of fact.

-Ex. P could show enough evidence to create a jury issue.

C. Only thing judge should care about is whether the Plaintiff has enough to win at trial.

-NO DISCRETION--either P has the stuff or not. Judge must grant or deny. On appeal, is de novo review no deference to trial judge.

5. Also look at standard for Judgement as a Matter of Law (at trial)

6. D can use MSJ as a discovery tactic, to fast-forward discovery. Make P put up or shut up. Easier for D to get MSJ.

7. Rule 56

A. P can serve MSJ 20 days after commencement/filing or 20 days after service of MSJ by Defendant.

B. D can move any time for SJ

C. Motion served at least 10 days before hearing---adverse party may serve affidavits. STANDARD: Does evidence show NO genuine issue as to any material fact, so that moving party is entitled to judgement as a matter of law.

D. Judge can decide part of it and send the rest to trial.

E. Form of Affidavits--personal knowledge, stuff which person could get on the stand and testify to. Evidence must be admissible. When D makes MSJ, P cannot just rely on the stuff in his pleadings, and must put up stuff that shows genuine issue for trial.

G. Affidavits made in bad faith-- If made in bad faith or for dely, the court will order maker to pay other party reasonable expenses caused. Could also hold party in contempt

C. Motion For Dismissal

1. Rule 12(b) For lack of jurisdiction, other 12(b) motions, but most wont totally destroy the case--may be moved, etc.

D. Preliminary Hearings

1. Get rid 12(b) baloney claims/defenses before trial

E. Default

1. If you don't respond to complaint within 20 days, judge will enter default judgement.

2. Once default judgement entered, can re-open with motion to vacate

3. Strategy: if P doesn't hear from D after 30 days, should take the default and D will be in a tougher position.

A. If liquidated damages, then SUM CERTAIN, will enter judgement for that amount (i.e., check bounced, bill, etc.)

B. If tort, antitrust, etc., may be in quest hearing to set damages

F. Dismissal

1. To save $ when you know you are going to lose anyway. Or, crucial witnesses out-of-town, etc. and you wnat to start over.

2. Dismissal w/ Prejudice or not?

A. Prejudice = dismissal operates as an adjudication upon the merits

B. Rule 41(a) Voluntary Dismissal

1. If P files notice of dismissal at any time b4 D serves answer or MSJ OR by stipulation then dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a P who has once dismissed in any US or State court an action based on or including the same claim.

2. If counterclaim has been pleaded by a D prior to the service upon the D of the P's motion to dismiss, action shall not be dismissed against D's objection unless counterclaim can remain pending for independent adjudication.

3. Otherwise, action shall not be dismissed at P's instance except upon order of the court and upon such terms and conditions as ct deems proper.

C. Involuntary Dismissal=discretionary

1. For failure of P to prosecute or comply w/rules/or ct.order, D may move for dismissal of claims--Judge has discretion to grant or not, but is hesitant, b/c it is the lawyer's fault for failure and client is getting hurt. BUT, D didn't as for lawsuit and P has control, so can get hurt.

2. Unless dismissal order otherwise specifies and not lack of jurisdiction, improper venue, failure to join party, dismissal is with prejudice (P can't sue again)

3. On appeal, TC decision to dismiss gets great deference. Must show abuse of discretion

4. R.41(b) Judge can dismiss for procedural noncompliance. Plaintiff can argue against:

A. I did comply--if not, I will

B. Good faith attempt to comply

C. Discretionary--not required to dismiss

D. If you do dismiss, do it w/o prejudice.

I. JURIES, JUDGEMENTS AND TRIAL PROCESS

1. Jury

A. Guaranteed by 7^th Amendment: In suits at common law, where the value in controversy shall exceed $20, the right to trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of Common Law."

1. Right to jury trial exists whenever in 1791 English Common Law, a corresponding right to jury trial would have existed.

A. No jury for cases in equity

1. If damages AND injunction, still have a jury to decide facts

B. Modern statutes that provide remedy may take away jury, if not substituting for common law action.

1. If purely a statutory claim, then if statute gives right to jury, then you get a jury

2. If the statute is silent, get a jury if common law of 1791 provided a jury

C. When enacting statutes, legislature cannot impair traditional right to jury (if common law provided in that action) but can ADD right to jury.

2. IN NY, Jury pools drawn from welfare roles, voting roles, and driver's licenses

3. If neither sides want jury then do not have to have one.

4. No complexity exception

B. Problems

1. Problem with Damages--jury doesn't know what to do, how much to award

2. Problem with Junk science--who to believe.

3. Most appeals over the instructions

4. Longer trials when with a jury

5. Rules of Evidence matter more

C. Benefits

1. Framers liked the way juries did it--methods of decision

2. Cross section of society better than professionals at determining credibility

3. Any bias, prejudice is counterbalanced

4. American system--separation of powers.

D. Jury Trial of Right. Rule 38

1. Constitutional right preserved

2. Any party can demand jury. Must be served in writing at any time after commencement of the action, and not later than 10 days after service of the last pleading. Should include right on the complaint/answer.

3. If no request for jury, then waived.(if no demand, rare that courts would impose a jury)

4. Advisory Jury-(R.39c)If no right to jury, court may try any issue with an advisory jury. Ct may add jury for actions against US, w/consent of both parties.

2. Order of Trial

A. Selection of Jurors

1. Called Voir dire process and in a sense, this is when lawyers make their case. While generally Federal judges do the questioning, in NY the lawyers do the questioning. Tactical--start with challenge for cause.

2. 2 Methods of Challenges

A. Challenge for cause--unlimited, Need a reason, but find the juror biased, related, informed, etc.

B. Preemptory challenge--limited, usually have 3. Do not need a reason.

B. Plaintiff's Opening Statement--roadmap of evidence

1. After P's statement, D can move for dismissal--no case. Even if what she says is true, so what. (May be strategic to let jury know you think no case.)

C. Defendant's Opening Statement

D. Plaintiff's Presentation of Evidence

E. Defendant's Presentation of Evidence

F. Plaintiff's Rebuttal--can only rebut new stuff added by D

G. Defendant's rebuttal

H. Summation to Jury--May only sum up on evidence that is relevant. Cannot make this shit up or make blatant appeals to prejudice. Basically, lawyer argues to the jury whey they should believe your witnesses.

1. Plaintiff's final argument

2. Defendant's final argument

3. Plaintiff's rebuttal argument

4. At ANY TIME before submission of the case to the jury, D can move for Judgement as a Matter of Law.

A. In order to avoid losing case w/o jury even hearing it, P needs evidence to meet each element (substantive law) of the case. If P meets the elements with enough evidence for a reasonable jury to believe him, then will survive motion.

B. Rule 50 Motion made after a party has been fully heard on an issue. If there is no legally sufficient basis for a reasonable jury to find for that party on that issue, the court may grant motion for JMOL against that party with respect to claim/defense that cannot be maintained.

1. Must specify judgement sought, law and facts, why movant entitled to judgement. Here, the D gets to point out deficiencies in P's case--P can then reopen and fix his case.

C. Should always make the motion, in order to preserve the issue for appeal.

D. After R.50 motion is made, judge looks at transcripts, (what people said) and asks, could a reasonable person (OBJECTIVE) find for the P on this evidence. Judge assumes the jury will believe witnesses (unless obviously unbelievable to reasonable person)

E. If your case does not make it to the jury, b/c judge grants JMOL, you can appeal. Review is De Novo. This is because motion was not discretionary, was not procedural--went to merits, so no deference to trial judge.

5. Note, P can also move for JMOL. Specifically, P can take advantage of D's evidence and can make a motion for JMOL after D rests.

K. Court's instructions to the Jury

1. Plaintiff has to prove his case by a preponderance of the evidence (just over 50%, more likely than not) If mixed, cannot figure it out, must find for the defendant

2. Instruction may cover substantive law, how to evaluate witnesses, not to base their decision on attorney's skill.

A. Before: Judge may call lawyers in to talk about instruction. You bring your version/request/hope/spin on the law, and support with authority. Judge reads, and court reporter takes down. Usually denies, but important to have on the record.

B. After: If you have any hope of appealing, you need to preserve error by taking "objection"/"exception" afterwards. (After announcing the instruction, the judge will call up lawyers for both sides. Court reporter should also be there) You need to ask for

what the judge should have said but didn't, or shouldn't have but did, etc. NOW is your time--must "make a record."

C. Typically, judges will want to say as little as possible to the jury, b/c it creates more potential for error. However, Judges supposed to explain/teach. Many now use "pattern jury book"

D. Federal judges have the power to comment to the jury on what to believe. Some states prohibit comment. Yet, modern movement--judge can tell jury to disregard/nullify the law.

L. Submission of the case to the Jury

M. Delivery of the Verdict by the Jury

1. Jury VERDICT may come as general (for or against P) or special (questions on points), sometimes accompanied by interrogatories

A. Rule 49

N. Entry of Judgement--COLLECTING JUDGEMENTS

NOTE: Rule 62, Judgements cannot be enforced until 10 days after entry (exceptions include injunctions)

1. Judgements enforceable during of pendency of post-trial motions, unless court otherwise says. On appeal, can post bond to stay judgement.

A. Any $ judgement for damages can be sold/assigned.

B. State law applies in enforcement

1. Allowed to depose judgement debtor to find assets

2. You find it, sherif enforces it

A. Info supeonas to bank--if person has account

B. Can sue transferee--whom judgement slipped it to

C. Creditors cannot destroy full marital estate?

D. Cannot take stove, sewing machine, domestic animals-60 days worth of food, one TV, or $ from trust, etc.

E.. In NY, wages are 90% exempt--however, you can make a motion and appeal to judges discretion to show judgement debtor is really making more than he needs (you want more than 10% bi-weekly)

3. If Guy tries to evade the judgement, you can get a judge to order him to turn over property, $, etc. If he disobeys order then he is in contempt--go to jail.

4. There is no requirement that you collect the judgement, although why wouldn't you?

5. If you pay the judgement, get a satisfaction note and file it with the court to prove that you paid already.

6. 10-20 year Statute of Limitations on collecting judgements, but may be able to get new judgement and another 20 years to collect

7. If an out of state judgement--give to local sheriff and get a new judgement to be enforced there.

O. Post trial Motions

NOTE: Court may stay the execution of any judgement collection pending the disposition of post trial motions. (R. 62)

1. Motion for new trial or to alter/amend judgement made

2. Motion for relief from judgement or order

3. Motion for judgement in accordance with JMOL

4. Motion for amendment to the findings/additional findings.

A. MOVANT MAY ALTERNATIVELY REQUEST MOTION FOR A NEW TRIAL AND JNOV (RENEWED JMOL)

A. Any error that would get you an error for appeal, can also get you a motion for new trial.

1. Motion NOT required for appeal, but must have preserved the error.

2. Must move within 10 days after entry of judgement

3. Can be condition : Judge can grant Motion for Judgement as a Matter of Law and then say that if he was wrong would not grant motion for new trial based on the weight of the evidence.

A. Opponent may suggest that if P wins JMOL, he i entitled to new trial.

B. Motion for a New Trial (R.59) is basically when you ask the judge to reverse himself and start over. Need to bring with evidence, i.e. Jury was drunk, newly discovered evidence, ineffective assistance of counsel

1. No guarantee that it will be heard, but puts it into the record.

2. Note: if the evidence is insufficient, you will want to ask for JMOL/JNOV. NOT a new trial

3. Judge can grant a new trial on the ground that the verdict was against the weight of the evidence. Basically, if he would have done something different as a juror-subjective. However, it's very rare that judge would grant this.

4. If verdict horrendously high (shocks the conscience) can grant NEW TRIAL (called remittur)

A. Note, Judge CANNOT grant JMOL if he subjectively disagrees, but can grant a new trial.

B. If judge denies Motion for new trial, cannot do much. HOWEVER, if judge wrongly grants, could be reversed on appeal b/c abuse of discretion.

C. Judgement as a Matter of Law: If a party made the motion before, party can renew motion for Judgement as a Matter of Law. Motion must be filed no later than 10 days after entry of judgement.

A. At this point, sometimes called JNOV

B. Can move in the alternative

1. Sioux City & Pacific RR case--RR doesn't want case to go to jury b/c it knows they will find for kid.

A. There is no issue of fact, and enough evidence for jury to find negligence. Court could have granted JMOL because any reasonable jury would have found for the kid.

B. Court could also reserve decision and let case go to the jury. If the jury finds for D/RR, Judge can still grant P's renewed motion for JMOL (AKA Judgement N.O.V.) and D can appeal.

B. RELIEF FROM JUDGEMENT OR ORDER

A. R. 60(a) Clerical error/mistake. No motion needed, ct. Can do

B. R. 60(b) Most of the time denied--not easy to vacate judgement

C. Exception: Default

1. If D defaults and has no lawyer judges probably will be liberal and may reopen the case.

2. If you defaulted, but there was no jurisdiction

A. Note, that after you default and you move to vacate on grounds that there was no jurisdiction, you are not appealing because there is nothing in the record to appeal.

3. See also R.55 Default Judgements (judge not involved--entered by clerk upon request of Plaintiff

D. R. 60 also provides for fraud, judgement void, when judgement has been satisfied, other.

1. Some grounds--reasonable time, other grounds--not more than one year after judgement/order

E. This motion made in the court where the judgement was rendered

F. Motion rarely granted b/c finality is so important.

J. RES JUDICATA AND COLLATERAL ESTOPPEL

A. Shouldn't be a problem for smart lawyers, because when you sue, you include all claims, pump it up and plead alternatively.

1. Sometimes, you may have to wait to see if other injuries arise to get the most bang for your buck. After you sue once, you're shot.

B. If different facts/claims, but same issue, can still sue--UNLESS THAT ISSUE HAS ALREADY BEEN LITIGATED

1. Claim Preclusion/Res Judicata

A. You cannot sue twice on the same claim, "set of facts"

B. When P wins his claim, the claim is merged in the judgement.

C. If P loses claim, then claim is barred in all future litigation.

2. Issue Preclusion/Collateral Estoppel

A. If judge or jury finds a fact (or says no issue of fact on MSJ) then the issue is decided, and cannot be re-litigated in another lawsuit..

B. Said that issue is precluded. If so, tell jury that the "light was red" (b/c already determined)

C. Res Judicata is a common law doctrine--best to examine by looking in the Restatement for policy, history, annotations, cases, etc.

D. How to determine whether it is res judicata

1. If trial judge dismisses With Prejudice (R.41) then is on the merits so is res judicata

2. If dismissal is without prejudice (i.e. lack of jurisdiction) then P can sue again

3. The narrower scope of the claim, the less res judicata will apply. Some states have narrower "transaction" requirements

4. Entire Controversy Doctrine (NJ)-- All claims against all parties MUST be brought in a single proceeding. Overruled in attorney and medical malpractice cases, but still the law in NJ

3. Restatement Second of Judgements:

1. A valid and final personal judgement is conclusive between the parties except on appeal or other direct review, to the following extent.

A. CLAIM PRECLUSION

1. If the judgement is in favor of the plaintiff, the claim is extinguished and merged into the judgement and a new claim may arise (only) on the judgement

2. If the judgement is in favor of the defendant, the claim is extinguished and the judgement bars a subsequent action on that claim

B. ISSUE PRECLUSION

1. A judgement in favor of either the P or the D is conclusive, in a subsequent action between them on the same or a different claim, with respect to any issue

-Look at complaint/answer--disputed facts

-must have been an issue

-If default judgement in NY, all issues precluded

Actually litigated and determined

-Cannot separate general jury verdict or know findings exactly, so all may be precluded

if the determination was essential to that judgement.

-Not dicta

-Whether determination would change judgement

-if finding appealable, then precluded for future suits

-Alternative findings: Alternative determination is not conclusive unless both alternatives are reviewed and decided on appeal. Basically, if the court would have reached the same result, then cannot be conclusive--is unessential dictum

A. Ex. Wouldn't matter that P was contributorily negligent if D was not found negligent. So if jury renders general verdict for D, decision will have no collateral estoppel effect in subsequent case involving P or D's negligence.

B. Ex. If jury specially finds neither negligent, (verdict for D) then finding that P was NOT negligent was NOT essential, and will have no collateral estoppel.

C. Res Judicata and Judgements

1. States must recognize each other's judgements, even if it is against their own public policy (i.e. gambling debt.); Full faith and Credit clause.

2. The law of the first ct. Should determine the preclusive effect of a judgement (choice of laws)

3. Fed. Courts must give the same preclusive effect to state court judgements that those judgements would be gien in the courts of the state from which the judgements emerged.

4. Res Judicata/Issue preclusion as applied to 3^rd Parties (policy: cut down on litigation)

1. IF 20 kids hurt in bus accident, first kids suit for injuries sustained does NOT bar 2^nd, 3^rd, etc. suits. (Due process, own day in court.)

A. Note, if 1^st kid wins, 2^nd kid may be able to win on MSJ.

2. Offensive Use of Estoppel by a Stranger--New P can use finding to make their own claim. Judicial discretion in allowing

A. Must be same issue: ie negligence, design fault, etc.

B. Parklane Hoisery--Can (nonparty to 1^st action) C use findings adverse to B decided in non-jury trial between A & B in a second jury trial (C.v. B) YES

3. Defensive Use of Estoppel by a Stranger--After A v. B, A sues C. C can use findings of first case defensively (still, judicial discretion) HOWEVER, if 2^nd case a lot more $/liability, or different burdens of proof, etc., may be barred

4. Little guy might be able to get a free ride. When you get involved with a client, you may be able to piggyback off of findings/result of investigation paid for by the blue chips or the government.

5. Requirements (party against preclusion is to be applied must have been fully represented)

A. Cannot bar someone who has not had their day in ct.

1. Exception--class action done right

B. Doesn't matter who wins

C. Relationships of partes. If in privity, then bound (trustee-beneficiary, executor-heir, insurance who controls previous litigation-owner)

D. Must have had fair opportunity to litigate

6. Cannot offensively use estoppel against the U.S. Government has too many cases, likely to litigate over same issues again and again, should not have to appeal every time, needs to keep debate going, etc.

5. Res Judicata and Compulsory Counterclaims

1. If winning the 2^nd lawsuit would undercut the rights of the first lawsuit, then barred by res judicata

A. Ex. A v. Tailor for clothing damages. A wins. Then, Tailor sues A to collect the bill. In this second suit, A has a defense of res judicata. Tailor should have sued on counterclaim before.

2. Rule: A defendant who may interpose a claim as a counterclaim in an action but fails to do so is precluded,, (after the rendition of judgement in that action) from maintaining an action on the claim if: The counterclaim is required to be imposed by a compulsory counterclaim statute or rule of court

K. APPEALS

1. Commencement

A. Must have SMJ

1. §1291, can appeal from final decisions broader than judgements--do not need judgement to appeal, but usually wait until judgement entered (even if the whole time things are going against you)

NOTE The meaning of final here is narrower than for purposes of issue preclusion

A. Some interlocutory decisions final within the meaning of §1291--collateral order rule (doesn't make sense to make D wait to appeal bond ruling. This kind of ruling WON'T merge into the merits

B. R.54(b) When there is one or more claim, or one or more P, if one or more claims adjudicated, can appeal on that final judgement without waiting for the rest

C. In Class Action, R.23(f) Can appeal granting or denial of certification of the action, within 10 days after entry of the order. Here, D can appeal grant of certification, before going through all kinds of crap. DISCRETIONARY

2. §1292. Interlocutory (Along the way) Appeals:

A. Motion for Preliminary injunction-can appeal as of right

1. TRO's not appealable

B. §1292(b) Any order appealable if first, you get permission from district court and judge signs off and then present papers to appeals court. IS TOTALLY DISCRETIONARY THO

C. Denial of MSJ probably not appealable.

3. NEW YORK--very different from Federal--any issue on which the judge decides..is appealable as of right (do not need permission)

A. Appeal does not stay proceedings in TC unless judge grants stay.

2. Scope of Review

A. Error of Law--there was an error of law that caused you harm. Trial court judge erred in his ruling on objection/exception/motion, etc.

B. Plain error--once in a blue moon, appellate judge will reverse even though no one objected. Must be big--innocent guy in prison, etc.

C. Generally, the appellate court will want to affirm, and can point out all kinds of reasons why: you didn't preserve the error, didn't object, didn't matter, wasn't plain error, was harmless error, etc.

D. Standard of Review

1. Most procedural rulings are reviewed on an abuse of discretion standard, must show:

A. Considered irrelevant factors

B. Bottom line decision was nuts

C. Did not consider relevant factors

D. Sanction for noncompliance with discovery

E. Whether to dismiss b/c failure to join

F. Denial of new trial-verdict against evidence

2. If there was error on a matter of law, the decision is reviewed on a clean slate, called de novo review

A. What a statute means

B. Personal jurisdiction

C. Whether evidence meets standard of proof

D. MSJ grant/denied

E. JMOL after verdict

3. Mechanics of the Appeal

A. Rules of Appellate Procedure

1. Must file NOTICE OF APPEAL in the District court within 30 days after judgement or order entered., and then apply in the Ct. Of A.

A. If you Appeal too late, you will lose out. Is jurisdictional, and will destroy appeal. Can extend, but should not have to get into that.

B. For criminal appeals, you have very little time (should bring notice of Appeal with you and then take it downstairs after judgement entered

C. In NY, time doesn't start until notice of entry of judgement is served. (But can appeal earlier)

2. Once in the C of A, need to follow their particular rules on schedules, briefs, record.

3. In order to stop execution of the judgement during the appeal process, you can post a bond. (Fed cts have discretion over whether to require it)

A. NOTE, if you lose the appeal, you will lose the bond.

B. Can also move (usually in District ct.) for stay of the judgement, or injunction while an appeal is pending.