CIVIL PROCEDURE| PRICE | FALL 2014

ADVERSARY SYSTEM ............................................................................................. 9

A. WHY ADVERSARY SYSTEM? ...................................................................................................... 9
B. JUDGE’S ROLE ............................................................................................................................ 9
Band's Refuse Removal, Inc. v. Borough of Fair Lawn (1960).................................................................... 9

SETTLEMENT AND ADR ...................................................................................... 10

A. JUDICIAL AUTHORITIES TO MANAGE CASES .......................................................................... 10
1. RULE 16: PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT ................................................ 10
a. Rule 16(a)-Pretrial Conferences ....................................................................................................................... 10
b. Rule 16(b)-Order Conferences ......................................................................................................................... 10
c. Rule 16(c)-Require Attendance........................................................................................................................ 10
d. Rule 16(f)-Parties Must Participate In Good Faith .......................................................................................... 10
e. Settlement Timing ............................................................................................................................................ 10
2. ENCOURAGING SETTLEMENT .................................................................................................................... 10
a. No Coercion To Settle ................................................................................................................................... 10
Kothe v. Smith (1985).................................................................................................................................... 10
b. Rule 16 is Liberally Interpreted .................................................................................................................... 11
G. Heileman Brewing Co. v. Joseph Oat Corp ............................................................................................ 11
3. RULE 68-OFFER OF JUDGMENT ................................................................................................................... 11
a. Rule 68(a)- Making an Offer......................................................................................................................... 11
b. Rule 68(d)- Paying Cost After Not Accepting An Offer .............................................................................. 11
B. EFFECTS OF SETTLEMENTS ...................................................................................................... 11
1. SETTLEMENT IS BINDING. ........................................................................................................................... 11
Facebook Case (Winklevosses v. Zuckerberg) ............................................................................................. 11
2. IMPACT LITIGATION- SOCIETAL MOVEMENT ........................................................................................ 12
The NFL Impact Settlement ......................................................................................................................... 12
C. ALTERNATIVE DISPUTE RESOLUTION (ADR) ......................................................................... 12
1. STAGES/ TYPES OF ADR (BINDING AND NON-BINDING) ..................................................................... 12

JURISDICTION, CHOICE OF LAW, AND DUE PROCESS ............................. 12

A. SUBJECT MATTER JURISDICTION ............................................................................................ 12
1. DEFINITION....................................................................................................................................................... 12
a. Constitutional Provisions For SMJ ............................................................................................................... 12
b. Statutory Provisions for SMJ ........................................................................................................................ 12
2. STANDING-ARTICLE III, SECTION 2 ........................................................................................................... 13
b. Standing Test ................................................................................................................................................ 13
Hollingsworth v. Perry .................................................................................................................................. 13
2. FEDERAL QUESTION ...................................................................................................................................... 13
a. 28 USC Section 1331 .................................................................................................................................... 13
b. Well-Pleaded Complaint Rule ...................................................................................................................... 13
Louisville & Nashville R.R. v. Mottley (1908) ............................................................................................. 14
c. Reasons For Federal Question Jurisdiction ................................................................................................... 14
3. DIVERSITY JURISDICTION ............................................................................................................................ 14
a. 28 USC Section 1332 .................................................................................................................................... 14

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 Mas v. Perry (1974) ....................................................................................................................................... 15
b. Reasons For Diversity Jurisdiction ............................................................................................................... 15
4. REMOVAL TO FEDERAL COURT.................................................................................................................. 15
a. USC § 1441 ................................................................................................................................................... 15
b. USC § 1446 ................................................................................................................................................... 15
c. USC §1447 .................................................................................................................................................... 15
5. DISMISSING FOR LACK OF SMJ ................................................................................................................... 15
a. Rule 12(b)(1)- Most Favored Defense .......................................................................................................... 15
b. Rule 12(h)(3) ................................................................................................................................................. 15
B. PERSONAL JURISDICTION ......................................................................................................... 16
1. DEFINITION ...................................................................................................................................................... 16
2. TRADITIONAL: IN STATE JURISDICTION.................................................................................................. 16
3. OUT OF STATE JURISDICTION ..................................................................................................................... 16
a. Due Process ................................................................................................................................................... 16
b. Long-Arm Statute ......................................................................................................................................... 16
c. Service of Process – Rule 4(k)(1)(A) ............................................................................................................ 16
d. Minimum Contacts........................................................................................................................................ 16
International Shoe v. Washington (1945) .................................................................................................... 17
4. GENERAL PERSONAL JURISDICTION ........................................................................................................ 17
Daimler v. Bauman ....................................................................................................................................... 17
5. SPECIFIC PERSONAL JURISDICTION .......................................................................................................... 17
a. Definition ...................................................................................................................................................... 17
b. Due Process: 2 Prong Test ............................................................................................................................ 17
c. Purposeful Availment.................................................................................................................................... 18
d. Reasonableness ............................................................................................................................................. 18
Burger King Corp v. Rudzewicz (1985) ........................................................................................................ 18
6. DISMISSING FOR LACK OF PJ ...................................................................................................................... 18
a. Rule 12(b)(2) ................................................................................................................................................. 18
C. CHOICE OF LAW ....................................................................................................................... 18
1. TRADITIONAL UNDERSTANDING .............................................................................................................. 18
Swift v. Tyson (Overruled by Erie) ............................................................................................................... 19
2. CURRENT/MODERN UNDERSTANDING .................................................................................................... 19
a. Positivist Views of The Law ......................................................................................................................... 19
b. Apply Substantive Law of The State ............................................................................................................ 19
Erie Railroad v. Tompkins ............................................................................................................................ 19
c. Erie Doctrine and Rules Enabling Act (1938) .............................................................................................. 19
Klaxon Co. v. Stentor Electric ...................................................................................................................... 19
d. Constitutional Argument ............................................................................................................................... 20

DUE PROCESS ......................................................................................................... 20

A. 5TH AMENDMENT-FEDERAL ...................................................................................................... 20
B. 14 AMENDMENT- STATE ........................................................................................................... 20
C. PRE-ATTACHMENT HEARINGS ................................................................................................ 20
1. DUE PROCESS CONSIDERATIONS .............................................................................................................. 20
a. 3 Part Test Under Mathews v. Eldridge ........................................................................................................ 20
Matthew v. Elridge ........................................................................................................................................ 20
Connecticut v. Doehr (1991) ......................................................................................................................... 21

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RULE 11 ..................................................................................................................... 21
A. REASONABLE INQUIRY AND HONESTY .................................................................................... 21
1. RULE 11(b) ........................................................................................................................................................ 21
2. RULE 11(d)- INAPPLICABILITY .................................................................................................................... 21
Zuk v. Medical College of Penn. (USCA, 1996) .......................................................................................... 21
B. SAFE HARBOR RULE................................................................................................................. 22
1. RULE 11(c)(2) .................................................................................................................................................... 22
C. SANCTIONS- RULE 11(C) .......................................................................................................... 22
1. PURPOSE ........................................................................................................................................................... 22
a. Rule 11(c)(4) ................................................................................................................................................. 22
b. Types of Sanction ......................................................................................................................................... 22
2. BY MOTION ...................................................................................................................................................... 22
a. Rule 11(c)(2) ................................................................................................................................................. 22
3. ON ITS OWN ..................................................................................................................................................... 22
a. Rule 11(c)(3) ................................................................................................................................................. 22
4. RULE 11(C)(5)- LIMITATION TO SANCTIONS ........................................................................................... 22

PLEADING ................................................................................................................ 22
A. STANDARDS OF PLEADING .......................................................................................................... 22
a. Rule 8(a)(2) ...................................................................................................................................................... 22
Conley v. Gibson ........................................................................................................................................... 23
Swierkiewicz v. Sorema, N.A. ....................................................................................................................... 23
Bell Atlantic v. Twombly ............................................................................................................................... 23
Ashcroft v. Iqbal ............................................................................................................................................ 23
b. Rule 9(b) .......................................................................................................................................................... 23
Tellabs, Inc v. Makor Issue and Rights, LTD .............................................................................................. 23
c. Rule 8(d)(2) ...................................................................................................................................................... 23
d. Rule 8(d)(3) ...................................................................................................................................................... 23
McCormick v. Kopman ................................................................................................................................. 23
B. DEFENSES TO PLEADING.............................................................................................................. 23
a. Rule 12(b)(6)-Motion to Dismiss ..................................................................................................................... 23
b. Rule 12(d) ........................................................................................................................................................ 24
c. Rule 12(e)- Motion For a More Definite Statement......................................................................................... 24
U.S. v. Harbor Board of Commissioners...................................................................................................... 24
c. Other Rule 12 Motions ..................................................................................................................................... 24
C. RESPONSES TO PLEADINGS ......................................................................................................... 24
1. NO RESPONSE ..................................................................................................................................................... 24
a. Rule 12(a)(1) .................................................................................................................................................... 24
b. Rule 55(a)- Default Judgment .......................................................................................................................... 24
Shepard Claims Service, Inc. v. William Darrah Associates ...................................................................... 24
2. ANSWER ............................................................................................................................................................... 24
a. 8(b)(1)(B) ......................................................................................................................................................... 24
b. 8(b)(3) .............................................................................................................................................................. 24
c. 8(b)(5) .............................................................................................................................................................. 24
3. AMENDMENTS AND RELATION BACK......................................................................................................... 24
a. Rule 15(a)(1)(A)- Amend as a Matter of Course ............................................................................................. 24
b. Rule 15(a)(2)- Amend with Court’s Leave ...................................................................................................... 24

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 David v. Crompton & Knowles (USDC PA) ................................................................................................. 25
c. Rule 15(a)(3)- Amendment Time Limit ........................................................................................................... 25
d. Rule 15(c)(1): Amendment Relation Back Doctrine ....................................................................................... 25
Krupski v. Costa Crociere SPA (SCOTUS) .................................................................................................. 25
4. SUPPLEMENTAL PLEADINGS ......................................................................................................................... 26
a. Rule 15(d)......................................................................................................................................................... 26

DISCOVERY ............................................................................................................. 26
A. TYPES OF DISCOVERY ................................................................................................................. 26
1. REQUIRED DISCLOSURES ............................................................................................................................... 26
a. Rule 26(a)(1)- Initial Disclosures..................................................................................................................... 26
b. Rule 26(b)- Documents Exempt ...................................................................................................................... 26
c. Rule 26(e)- Supplement Disclosures and Responses ....................................................................................... 26
d. Rule 26(d)-Timing And Sequence Of Discover .............................................................................................. 26
e. Rule 26(f)- Conferences of the Party-Planning for Discovery......................................................................... 26
f. Rule 16(b)- Pretrial Conference: Schedule Order ............................................................................................ 26
2. RULE 30-DEPOSITIONS ..................................................................................................................................... 27
3. RULE 33-INTERROGATORIES .......................................................................................................................... 27
4. RULE 34-REQUEST FOR PRODUCTION ......................................................................................................... 27
5. RULE 35-PHYSICAL/ MENTAL EXAMINATIONS ......................................................................................... 27
6. RULE 36-REQUEST FOR ADMISSION ............................................................................................................. 28
B. LIMITS TO DISCOVERY................................................................................................................ 28
1. RULE 26(b)(1)- RELEVANCY ............................................................................................................................ 28
Davis v. Diana Ross ...................................................................................................................................... 28
Phoenix v. East Resources, Inc. ................................................................................................................... 28
2. RULE 26(b)(2)(C)- PROPORTIONALITY .......................................................................................................... 29
a. Rule 26(b)(2)(C)(i)- Unreasonably Duplicative............................................................................................... 29
b. Rule 26(b)(2)(C)(ii)- Ample Opportunity ........................................................................................................ 29
c. Rule 26(b)(2)(C)(iii)-Undue Burden ................................................................................................................ 29
d. Seven Factor Test: Proportionality Limitation: Rule 26(b)(2)(iii) .................................................................. 29
Kozlowski v. Sears Roebuck & Co. ............................................................................................................... 29
e. Rule 26(b)(2)(B)- Limitation to E-Discovery .................................................................................................. 29
McPeek v. Ashcroft ....................................................................................................................................... 29
3. RULE 26(c)-PROTECTIVE ORDERS ................................................................................................................. 30
Coca-Cola Bottling Co. v. Coca-Cola Co. .................................................................................................... 30
C. PROTECTIONS AND PRIVILEGES TO DISCOVERY........................................................................ 30
1. RULE 26(b)(3)- WORK PRODUCT PROTECTION ........................................................................................... 30
a. Rule 26(b)(3)(A)(i-ii)- Exception to Work Product Protection ....................................................................... 30
b. Rule 26(b)(3)(B)- Protection Against Disclosures .......................................................................................... 30
Hickman v. Taylor......................................................................................................................................... 31
2. ATTORNEY-CLIENT PRIVILEGE ..................................................................................................................... 31
Upjohn Co. v. United States .......................................................................................................................... 31
D. EXPERT TESTIMONY PROTECTIONS AND DISCLOSURES ........................................................... 31
1. EXPERT DISCLOSURES AND REPORTS ........................................................................................................ 31
a. Rule 26(a)(2)- Expert Witness Disclosures...................................................................................................... 31
b. Rule 26(a)(2)(B)- Detailed Report ................................................................................................................... 31
c. Rule 26(a)(2)(C)- Basic Report ........................................................................................................................ 32
2. PROTECTION OF EXPERT OPINION ............................................................................................................... 32

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 a. Rule 26(b)(4)(D)- Protected Expert Opinion ................................................................................................... 32
b. Expert Testimony Flow Chart .......................................................................................................................... 32
In re Shell Oil Refinery ................................................................................................................................. 32
E. SANCTIONS AND ENFORCEMENT- RULE 37 ................................................................................ 33
1. ENFORCEMENT OF DISCOVERY .................................................................................................................... 33
a. Rule 37(a)(1)- Motion for an Order to Compel ............................................................................................... 33
b. Rule 37(a)(4)- Evasive or Incomplete Disclosure, Answer, or Response ....................................................... 33
c. Rule 37(a)(5)- Payment of Expenses for Motion to Compel ........................................................................... 33
d. Rule 37(c)(2)- Failure to Admit ....................................................................................................................... 33
e. Rule 37(d)-Failure to Attend its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request
for Inspection ....................................................................................................................................................... 33
f. Rule 37(e)- Failure to Provide Electronically Stored Information ................................................................... 34
g. Rule 37(f)- Failure to Participate in Framing a Discovery Plan ...................................................................... 34
2. SANCTIONS FOR FAILURE TO COMPLY ...................................................................................................... 34
a. Rule 37(b)- Failure to Comply with a Court Order.......................................................................................... 34
b. 37(b)(2)(C)- Payment of Expenses .................................................................................................................. 34
b. Rule 37(c)(1)- Failure to Disclose or Supplement ........................................................................................... 34
c. Sequence of Actions to Motion For Sanctions ................................................................................................. 34
Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp .................................................... 34

SUMMARY JUDGMENT: RULE 56...................................................................... 35

1. RULE 56(a) ............................................................................................................................................................ 35
a. Timing: Rule 56(b) ........................................................................................................................................... 35
b. Rule for Summary Judgment ........................................................................................................................... 35
2. BURDEN OF PROOF (2 COMPONENTS) ......................................................................................................... 35
a. Burden of Production ....................................................................................................................................... 35
b. Burden of Persuasion ....................................................................................................................................... 35
c. Rationale .......................................................................................................................................................... 35
Adickes v. S.H. Kress & Co. (1970) .............................................................................................................. 35
Celotex Corp. v. Catrett (1986) ..................................................................................................................... 36
d. Effects of Celotex Ruling................................................................................................................................. 36
3. NONMOVANT’S RESPONSE ............................................................................................................................. 36
a. Nonmovant’s Response .................................................................................................................................... 36
b. Credibility of Witness is a Genuine Issue ........................................................................................................ 36
Arnstein v. Porter (1946) .............................................................................................................................. 36
c. Demeanor Evidence is Insufficient .................................................................................................................. 37
Dyer v. MacDougall ...................................................................................................................................... 37
4. CELOTEX TRILOGY ........................................................................................................................................... 37
a. More Than Metaphysical Doubt/Scintilla of Evidence .................................................................................... 37
Matsushita Elec. Industrial Co. v. Epstein .................................................................................................. 37
b. Standard of Proof for SJ ................................................................................................................................... 37
Anderson v. Liberty Lobby, Inc. ................................................................................................................... 37
5. RULE 56(c): SHIFTING BURDEN OF PRODUCTION ..................................................................................... 38
a. Rule 56(c)(1): Procedure to Support Motion for SJ ......................................................................................... 38
b. If The Movant Has The Burden Of Proof At Trial .......................................................................................... 38
c. If The Movant Does Not Have The Burden Of Proof At Trial ........................................................................ 38
6. SHIFTING THE BURDEN OF PRODUCTION FLOW CHARTS ..................................................................... 38
Role of The Judge: SJ Examples ......................................................................................................................... 39
Simmons v. Rite of Passage .......................................................................................................................... 39
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 Scott v. Harris ................................................................................................................................................ 39
7. RULE 56(d) – WHEN FACTS ARE UNAVAILABLE TO NONMOVANT ...................................................... 39

TRIAL......................................................................................................................... 39
A. PHASES OF TRIAL ..................................................................................................................... 39
1. JURY SELECTION ............................................................................................................................................ 39
2. OPENING ARGUMENTS ................................................................................................................................. 39
3. PRESENTATION OF EVIDENCE .................................................................................................................... 39
4. CLOSING ARGUMENTS ................................................................................................................................. 40
5. JURY DELIBERATONS ................................................................................................................................... 40
B. RIGHT TO JURY TRIAL ............................................................................................................. 40
1. 7TH AMENDMENT ............................................................................................................................................... 40
a. Originalist Views .......................................................................................................................................... 40
b. Living Constitution ....................................................................................................................................... 40
2. MERGING LAW AND EQUITY ......................................................................................................................... 40
a. Traditional Division Of Law and Equity ...................................................................................................... 40
b. Modern Day: Law and Equity Are Merged .................................................................................................. 40
Dairy Queen v. Wood .................................................................................................................................... 41
Beacon Theatres, Inc. v. Westover (1959).................................................................................................... 41
3. WAIVING/ DEMANDING THE RIGHT TO JURY TRIAL ............................................................................... 41
a. Rule 38- Demand for Jury Trial .................................................................................................................... 41
b. Rule 39- Trial By Jury or By The Court ....................................................................................................... 41
• Rule 39(a): If demands, all issues will be tried by jury; unless, the court, on its own or by motion, finds that
there is no federal right to a jury trail .................................................................................................................. 41
c. Rule 39(c)-Advisory Jury & Jury Trial By Consent ..................................................................................... 41
d. Exceptions: Cases Against the U.S. .............................................................................................................. 41

JUDICIAL CONTROL OF THE VERDICT ......................................................... 42

A. JUDGMENT AS A MATTER OF LAW........................................................................................... 42
1. RULE 50: JUDGMENT AS A MATTER OF LAW IN A JURY TRIAL.......................................................... 42
a. Rule 50(a)- JML (Formally Directed Verdict) .............................................................................................. 42
b. Rule 50(b)- Renewed JML After Trial (Formally JNOV) or New Trial ...................................................... 42
c. Rule 50(c)- Granting JML; Conditioning New Trial .................................................................................... 42
2. CONSTITUTIONALLY OF JML....................................................................................................................... 42
a. JML Does Not Violate 7th Amendment ........................................................................................................... 42
Galloway v. United States (1943) .................................................................................................................. 43
b. JML After the Verdict Does Not Reexamine The Verdict .............................................................................. 43
3. VIEWING THE EVIDENCE FOR JML............................................................................................................. 43
a. Probabilistic Evidence ................................................................................................................................... 43
b. Authenticity of Evidence .............................................................................................................................. 43
Guenther v. Armstrong Rubber .................................................................................................................... 43
B. NEW TRIAL ............................................................................................................................... 44
1. RULE 59- MOTION FOR NEW TRIAL ............................................................................................................ 44
a. Rule 59(a) ...................................................................................................................................................... 44
b. Rule 59(b)- Timing ....................................................................................................................................... 44
c. Rule 59(d)- Court’s Initiative ........................................................................................................................ 44
d. When can the District Court Grant New Trial .............................................................................................. 44
e. When can the COA Grant New Trial ............................................................................................................ 44
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 f. Two Layers of Deference .............................................................................................................................. 44
Ahern v. Scholz ............................................................................................................................................. 44
2. DIFFERENCES BETWEEN NEW TRIAL AND JML...................................................................................... 45
a. Role of the Judge ........................................................................................................................................... 45
b. Weighing/Viewing The Evidence ................................................................................................................. 45
c. Standard To Grant Motion ............................................................................................................................ 45
3. CONDITIONING NEW TRIAL ......................................................................................................................... 45
a. Remittitur: Constitutional.............................................................................................................................. 45
b. Additur: Unconstitutional ............................................................................................................................. 45
Dimick v. Schiedt (1935) ............................................................................................................................... 45
C. VERDICTS ................................................................................................................................. 46
1. GENERAL VERDICTS ...................................................................................................................................... 46
a. “Black Box” Deliberation (Default Method) ................................................................................................ 46
2. SPECIAL VERDICTS ........................................................................................................................................ 46
a. Rule 49(a)- Special Verdict ........................................................................................................................... 46
b. Rue 49(b)- General Verdict with Interrogatories .......................................................................................... 46
c. Viewing the Answers and Verdict ................................................................................................................ 46
d. Mechanism If Answers And Verdicts Are Inconsistent (Rule 49(b) Only).................................................. 46
e. Choosing The Type of Verdict- Judge’s Discretion ..................................................................................... 46
f. Reasons For or Against Special Verdicts ...................................................................................................... 46
Whitlock v. Jackson (1991) ........................................................................................................................... 47
3. IMPEACHMENT OF THE VERDICT ............................................................................................................... 47
a. Using Juror’s Testimony To Impeach the Verdict ........................................................................................ 47
b. Mansfield Rule: Traditional View ................................................................................................................ 47
c. Iowa Rule: Intrinsic v. Extrinsic Evidence ................................................................................................... 47
d. Rule of Evidence 606(b): Mansfield Rule & 3 Exceptions .......................................................................... 47
Sopp v. Smith (1963) ..................................................................................................................................... 48
People v. Hutchinson (1969) ........................................................................................................................ 48
e. Voir Dire Error .............................................................................................................................................. 48
f. Policy considerations: .................................................................................................................................... 48
g. Other Examples Of Juror Impeachment ....................................................................................................... 48

APPEALS ................................................................................................................... 49
A. APPELLATE COURTS ................................................................................................................ 49
1. WHY ARE APPEALS IMPORTANT? .............................................................................................................. 49
2. STANDARD OF APPELLATE REVIEW ......................................................................................................... 49
a. De Novo Review ........................................................................................................................................... 49
b. Abuse of discretion ....................................................................................................................................... 49
c. Clear error ..................................................................................................................................................... 49
3. TIMELY NOTICE .............................................................................................................................................. 49
Bowles v. Russell (2007) ............................................................................................................................... 49
B. FINAL JUDGMENT/DECISION .................................................................................................... 50
1. 28 USC § 1291-FINAL JUDGMENT RULE ..................................................................................................... 50
2. EXCEPTIONS AND QUALIFICATIONS TO FINAL JUDGMENT RULE .................................................... 50
a. Pragmatic Understanding .............................................................................................................................. 50
Quackenbush v. Allstate Insurance Company ............................................................................................. 50
b. Collateral Order Doctrine ............................................................................................................................. 50
Cohen v. Beneficial Industrial Loan Corporation (1949) ........................................................................... 50
Mohawk Industries, Inc. v. Carpenter (2009) .............................................................................................. 51
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 c. 28 USC § 1292(b) - Certification for Interlocutory Appeal .......................................................................... 51
d. Writs Of Mandamus ...................................................................................................................................... 51

PRECLUSION ........................................................................................................... 51
A. CLAIM PRECLUSION- RES JUDICATA ......................................................................................... 52
1. DEFINITION ...................................................................................................................................................... 52
2. ELEMENTS OF CLAIM PRECLUSION .......................................................................................................... 52
a. Same Party .................................................................................................................................................... 52
b. Same Factual Transaction, Same Claim ....................................................................................................... 52
c. The Case Was Tried On Its Merits ................................................................................................................ 52
3. TRANSACTION TEST ...................................................................................................................................... 52
Manego v. Orleans Board of Trade .............................................................................................................. 52
Landrigan v. City of Warwick....................................................................................................................... 53
4. CLAIM PRECLUSION FOR DEFENDANTS .................................................................................................. 53
a. Rule 13(a)- Compulsory Counterclaims ....................................................................................................... 53
b. Common Law Rule: Nullification of First Judgment ................................................................................... 53
Martino v. McDonald’s Systems ................................................................................................................... 53
B. ISSUE PRECLUSION- COLLATERAL ESTOPPEL ........................................................................... 53
1. DEFINITION ...................................................................................................................................................... 53
2. ELEMENTS OF ISSUE PRECLUSION ............................................................................................................ 54
Little v. Blue Goose Motor Coach Co. (1931) .............................................................................................. 54
Hardy v. Johns-Manville Sales Corp. (SCOTUS) ....................................................................................... 54
3. OFFENSIVE AND DEFENSIVE PRECLUSION (NON-MUTUAL ISSUE PRECLUSION) ........................ 54
a. Defensive Preclusion ..................................................................................................................................... 54
Blonder Tongue v. University of Illinois ...................................................................................................... 55
b. Offensive Preclusion ..................................................................................................................................... 55
Parklane Hoisery v. Shore (1979) ................................................................................................................ 55
c. Fair Concerns About Offensive Preclusion................................................................................................... 55
C. NON-PARTY PRECLUSION (CLAIM & ISSUE) ............................................................................. 56
1. TRADITION PRECLUSION ............................................................................................................................. 56
2. EXTENDING PRIVITY ..................................................................................................................................... 56
a. Due Process Concerns ................................................................................................................................... 56
b. Applying Privies Preclusion ......................................................................................................................... 56
Taylor v. Sturgell ........................................................................................................................................... 56
3. APPLYING PRECLUSION IN TWO DIFFERENT COURT SYSTEMS ........................................................ 56
a. Effects of Federal Court Judgments .............................................................................................................. 56
b. USC Section 1738 ......................................................................................................................................... 57

THEMES OF THE CLASS ...................................................................................... 57

A. SOURCES OF LAW ..................................................................................................................... 57
B. DUE PROCESS ........................................................................................................................... 57
C. ADVERSARY SYSTEM ................................................................................................................ 57
D. PROCEDURAL VALUES ............................................................................................................. 57

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ADVERSARY SYSTEM
A. Why Adversary System?
• United States court system is an adversary court system: Two parties (adversaries) bring the evidence to the
court in front of a neutral decider (the judge). The judge or the jury decides the strongest case and who wins
in the court proceedings.
o Most of the word does not follow the same. In most places, the judges have a more active role.
• Parties may be more accepting of the decision if they had a say in the court proceedings
• Counter: The trial may have public interest and effects, so a person who thinks about the public good (i.e.
the judge) should be in charge of investigation.

B. Judge’s Role
• Adversary judicial system so judges must play a neutral decider. Judge is intended not to be too involved
with either party – should be impartial.
• Judges do have judicial authority and some autonomy, but there is line that can't be crossed.
• The parties control the argument and the litigation, and judge is a neutral referee. In cases of jury trial, the
judge is not even the fact finder.
• Adjudication criteria: The judge-
a. Acts on application of one of the party, not own initiative
b. Has no direct or indirect interest in outcome
c. Confines decision to the controversy before him
d. Case presented involves an existing controversy, not future disagreements
e. Decides case on evidence and arguments presented by the parties
f. Each disputant is given ample time and opportunity to present case

Band's Refuse Removal, Inc. v. Borough of Fair Lawn (1960)

• Facts: P is suing D alleging that the city ordinance 688 was arbitrary, discriminatory, and
unconstitutional. The Judge suspects there is secret agreements and D is involved in fraudulent
activity. The judge appointed an amicus curiae (friend of the court). He initiated his own
investigation. Out of 32 witnesses, the judge called on 27 on his own. D appealed after the verdict
was against them.
• Analysis: It is a denial of due process if a judge oversteps his/her judicial authority and crossed the
line of impartiality into advocacy.
o The trial judge claimed that he was trying to manage and controlling the proceedings of the
courts in a way he believe would serve the public
o A judge cannot conduct his own investigation. He must stay neutral and be impartial spectator
in a court
o Here, the trial judge essentially took on the role of the plaintiff by calling his own witnesses and
not allowing the plaintiff to drop a complaint against the defendant.
• Conclusion: The power of a judge to take an active role in the trial of a case must be exercised with
the greatest constraint. While the judge may do this to move the trial along, he may not assume the
role of advocate.
o Courts must both be impartial and give the appearance of impartially. The trial judge may not
act in way that would severely prejudice any party.

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SETTLEMENT AND ADR
A. Judicial Authorities To Manage Cases
1. RULE 16: PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT
a. Rule 16(a)-Pretrial Conferences
• In any action, the court may order the attorneys and any unrepresented parties to appear for one or more
pretrial conferences for such purposes as to:
o Expedite the disposition of the action
o Establish early controls
o Discourage wasteful pretrial activities
o Improve the quality of the trial
o Facilitate settlement of the case
b. Rule 16(b)-Order Conferences
• Judges may order conference, limited to:
o Join other parties and amend pleadings
o File motions
o Complete discovery
o Include dates for pretrial conferences and trial dates (optional)
o Include any other appropriate matters under the circumstances
c. Rule 16(c)-Require Attendance
• Judge may required attendance and authorizes parties to be prepared to talk about settlements and
participates in good faith.
• Judges can sanction if a party fails to appear when order to do so by the court.
d. Rule 16(f)-Parties Must Participate In Good Faith
• Judge may issue any just orders and use sanctions if the order is disobeyed. The following conduct can
be sanctioned:
o Party of attorney fails to obey scheduling or pretrial order
o Did not show up to meeting
o Either party is unprepared
o Lack of good faith
e. Settlement Timing
• Settlement can occur at any stage on the trial timeline even after the adjudication has begun.
2. ENCOURAGING SETTLEMENT
a. No Coercion To Settle
• A judge can encourage settlements and order parties to meet to discuss a possibility of settlements, but
they cannot coerce a party into settling or punishing them if they don’t settle.
Kothe v. Smith (1985)
• Facts: Judge estimated the value of case and made a suggested range for the parties to settle on. D did
not offer an amount within the range that the judge suggested. The trial started and the parties settle
for the amount within the range the judge suggested after one day. The judge sanctioned D for
refusing to settle in a timely manner. D appealed.
• Analysis: Although the law favors settlements for civil suits, the settlement must be voluntary and not
coerced. While judges have the power to bring the parties together to discuss settlement, judges may
not use such powers as a vehicle for clubbing a litigant into settlement.
• Conclusion: A court may not sanction a party for refusing to settle. Judges can schedule conferences
and encourage settlement, but the ultimate decision to settle or go to trial is rested in the parties, not
the courts.

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 b. Rule 16 is Liberally Interpreted
• The courts have inherent power to manage their affairs and docket to promote the speedy, just, and
inexpensive resolution of actions.
• When a court issues orders that are consistent with the purposes of managing their dockets and not
explicitly prohibited by the rules, then the inherent power of the courts authorizes the order.
G. Heileman Brewing Co. v. Joseph Oat Corp
• Facts: A Federal Magistrate judge order D to sent a “corporate rep. with authority to settle” to a
pretrial conference to discuss the issues and possibility of settlement. D sent an attorney as its
representative and the judge sanctioned D for not sending a representative with authority to settle.
• Analysis: D argued that the judge did not have the authority to order represented parties to appear for
conferences—Rule 16 said attorneys and unrepresented parties.
o Court rejected D’s argument and held that the spirit, intent, and purpose of Rule 16 is broadly
remedial, allowing courts to actively manage the preparation of cases for trial so DC judge has
the authority to order attendance
o Ordering a person with authority to settle is not forcing settlement, but for efficiency and save
the court’s time if the person with authority to accept an offer than they find acceptable.
o Courts have authority to sanction the party because there were no objections to the order before
hand and never objected to the court’s terms.
• Conclusion: A district court may order litigants represented by counsel to appear at a pretrial
conference to discuss settlement. There was no abuse of discretion because Rule 16 is applied
broadly.
• Dissent, Posner: Viewing Rule 16 liberally encourages judicial “power corrupts”. There is no
judicial power to coerce settlement
• Dissent, Easterbrook: There is no difference between CEO and an attorney as an agent of the
company. It’s unfair to companies who have their general counsel in law firms and not in house.

3. RULE 68-OFFER OF JUDGMENT

a. Rule 68(a)- Making an Offer
• At least 14 days before the beginning of trial, a party defending against a claim may serve on an
opposing party an offer to allow judgment on specified terms, with the costs then accrued.
• Provides Specific mechanism for settlings cases
• If the opposing party accepts, then the court must enter the judgment
b. Rule 68(d)- Paying Cost After Not Accepting An Offer
• If the judgment that opposing party finally obtains is less favorable than the unaccepted offer, the
opposing part must pay the costs incurred after the offer was made.
o Costs include court fees and attorney’s fees

B. Effects of Settlements
1. SETTLEMENT IS BINDING.
a. Settlement resolves the case like a final decision so the settle agreement is a binding contract. Parties can be
enforced to follow the terms of the settlement.
Facebook Case (Winklevosses v. Zuckerberg)
• Facts: After agreeing to a settlement, the Winklevosses sued Zuckerberg for fraud because the stocks
they agreed to in the settlement agreement were worth less than they thought.
• Analysis: Court disagree that the agreement was procured by fraud. The Winklevosses were aware of
the value of the stock. They brought in several lawyers and their father is a stock valuation expert so
they had the access to determine the value of the stocks. The settlement agreement is a binding
contract so the parties have to follow it.

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 • Conclusion: Court held that there is a time when all litigation must come to the end and the point has
come. Parties cannot reject a settlement after agreeing just because they no longer want the terms in
the settlement. The settlement agreement is enforceable and ends litigation.

2. IMPACT LITIGATION- SOCIETAL MOVEMENT

a. Some litigation’s focus is not just to get relief for the clients, but also to move for societal change and push
forward social causes.
The NFL Impact Settlement
• Facts: Former NFL players filed a class action lawsuit against NFL for injuries/illnesses that resulted
from or caused by their playing football.
• Conclusion: The settlements need to be approved by the court. If approved, then it a formal and
binding agreement. The terms of the settlement are:
o 65-year monetary compensation fund—recovery depends on player’s diagnosis
o 75 million for players to get medical exams
o Education Fund: $10 Mill
o NFL will pay attorney fees up to 112.5 mil
o No admission of fault or liability
• Views on the Settlement:
o Litigation is a public dispute resolution process and settlement does not really resolve a dispute
o Players can collect now, but future players at a loss
o Settlement attractive - confidentiality interests on both sides

C. Alternative Dispute Resolution (ADR)

1. STAGES/ TYPES OF ADR (BINDING AND NON-BINDING)
a. Mediation: 3rd party facilitates communication between parties to a dispute and help them find a solution
b. Early Neutral Evaluation (ENE): lawyer evaluate value of the case, identify common grounds and
disagreements
c. Court-Annexed Arbitration: Non-binding arbitration
d. Summary Jury Trial: Shortened trial with summarized testimonies (nonbinding)
e. Mini Trial: shortened trial to the person who has ultimate settlement authority (e.g. CEO)

JURISDICTION, CHOICE OF LAW, AND DUE PROCESS

A. Subject Matter Jurisdiction
1. DEFINITION
a. Constitutional Provisions For SMJ
• Article III of the Constitution
o Section 1-Federal Question: Federal courts have authority to hear cases about federal questions
o Section 2-Diversity Jurisdiction: Federal courts have authority to hear cases between citizens of
different states or between a citizen and the state.
b. Statutory Provisions for SMJ
• Define a more narrow and clearer meaning within the constitutional meaning of subject-matter
jurisdiction of what the federal courts actually have the authority to hear.
• There are requirements in the statutory provisions that are not constitutionally required—more narrow
application.
• 28 USC § 1331: Federal Question
• 28 USC § 1332: Diversity Jurisdiction

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 c. Courts must have authority of the subject matter in order to hear the case and the parties must have standing
to bring the case before the court— the court must have jurisdiction over substance of the lawsuit and the
parties must have standing for the court to have authority to decide
o Law carved out for state courts only and cannot be sued in federal courts:
§ Domestic relations (e.g. divorces)
§ Probate (e.g. wills)

2. STANDING-ARTICLE III, SECTION 2

a. Article 3, Section 2
• The judicial power extends to cases or controversies between the parties.
o Federal Courts can only decides cases that are actual controversies, not just general
disagreements— presence of disagreement is insufficient by itself to satisfy the requirement in
Article III
• The party must have standing to bring and maintain a case in front of the court.
b. Standing Test
• To have standing a party needs to have a direct stake in the outcome of the case. The party needs:
1) A concrete and particularized injury
2) That fairly traceable to the challenge conduct
3) Redressibility: party can get relief from the court

Hollingsworth v. Perry
• Facts: State Supreme Court held that CA constitution prohibits the limitation of marriage to being a
man and woman. Prop 8 passed in CA to amend the constitution to limit the definition of marriage to
be between a man and a woman. 2 same-sex couples sued the California government in federal
because Prop 8 conflicts with the UC Constitution Equal Protection Clause. DC courts found that the
Prop 8 was unconstitutional. CA government did not appeal, but the proponents/sponsors of Prop 8
intervene and appealed to COA that asked a certified question to CA Supreme Court if the petitioners
had standing to appeal. CA Supreme Court said the Prop 8 sponsor had standing. COA affirmed DC
decision. Petitioners appealed to the SCOTUS
• Analysis: Any person invoking the power of a federal count must demonstrate standing to do so. The
parties must have a stake in the case and there is actual controversy. Here, SCOTUS held that the
petitioner does not have a particularized injury, but maintaining the case based on a general
grievance. If the petitioners have to standing to bring the case, then the court does not have the
judicial power to hear the case.
• Conclusion: The petitioners failed to establish standing because there was no particularized or
concrete injury so they had no authority to appeal the judgment or bring it before the court. SCOTUS
dismisses the appeal and vacate the COA decision because they had no authority to hear the appeal in
the first place.

2. FEDERAL QUESTION
a. 28 USC Section 1331
• The district courts shall have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.
• If the plaintiff asserts a claim related to federal law, it can be tried in federal court
b. Well-Pleaded Complaint Rule
• The federal issue exists only if the federal issue is apparent on the face of the complaint.
• Court held that the federal question must directly arise from the complaint in order to have SMJ under
federal question.
o The cause of action must be a federal question. The plaintiff cannot allege SMJ because they
anticipate that the defense will include a federal question.
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 o An anticipated defense is not part of the plaintiff’s case and thus cannot be a basis for federal
question jurisdiction.
o The defendant cannot remove the case to federal court by raising a federal question in its defense
because it does not satisfy the well-pleaded complaint rule
o There are some statutes that allowed the federal question to be brought by defense and removed to
federal court
• Wrinkle between US Statute and Constitution: The statute does not allow for SMJ if federal question is
brought up by defense, but that is allowed in constitution.
• The rules narrows the interpretation of the federal question provision in Article III, section 2.

Louisville & Nashville R.R. v. Mottley (1908)

• Facts: Morley sued the RR for personal injuries. In their settlement, Morley received compensation
and a RR pass for life. Congress passed a statute that railroad companies cannot give out free passes
anymore so RR had to take it away. Morley sued for RR for breach of contract in federal court
because the RR will raise a federal question about the federal statute.
• Analysis: Federal question jurisdiction is determined from the complaint under the Well-Pleaded
Complaint Rule.
o P argues federal question is related to the case based on what P expects D to raise as his defense.
The federal question would come in the defense so it is not a part of the plaintiff’s complaint.
o The federal issue on the apparent on the face of the complaint. The plaintiff’s cause of action
was for breach of contract and that is not a federal question.
• Conclusion: Alleging an anticipated constitutional defense in the complaint does not give a federal
court jurisdiction if there is no diversity of citizenship between the litigants.

c. Reasons For Federal Question Jurisdiction

• Federal courts are natural experts on federal law, state court may not be experts with federal law
• Promote uniformity in resolving federal law questions across within the district or circuit
• No federal question jurisdiction statute until 1875
o Reconstruction Era: Congress tried to reform southern states and implement civil rights
o State might be hostile to federal law—trusted federal courts to interpret federal law faithfully

3. DIVERSITY JURISDICTION
a. 28 USC Section 1332
• The district courts shall have original jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000 and is between citizens of different States (One party may be
citizens or subjects of a foreign state)—Must satisfy both prong
o Complete Diversity: all citizens are must be from different states
§ No plaintiff is a citizen of the same state as any other plaintiff or defendant
§ The statute requires complete diversity, but Article III does not require complete diversity
• Exceptions: Congress may allow for incomplete diversity in some cases
§ Mass disaster: over 75 people injured in disaster, can go to federal court with
just one diverse party on each side
§ Class actions - federal court is a better forum for class actions, relaxed
diversity requirements (just need one party diverse from the other side)
§ Corporations are deemed the citizens of any state where it is incorporation and of the state
it has its principal place of business
• “Nerve center” determines principal place of business (Hertz)
§ Partnerships have its citizens counted by every member of the group
o Amount in Controversy: Must be more than $75,000
§ Amount is based on the amount pleaded, not the amount that was actually awarded

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 § The amount pleaded must be on good faith.
§ Multiple Plaintiffs and Defendants:
• If there are multiple plaintiffs, the amount in controversy must be more than $75,000
for each plaintiff
• If there is one plaintiff and multiple defendants, the damages alleged must be more
than $75,000 for each defendant
• If there is one plaintiff, one defendant, and multiple claims, the amount aggregated
must be more than $75,000
• Citizenship is based on domicile: the place where a person intends on living. Domicile is where party
is citizen from.
o Once you establish a domicile, it remains your domicile until you establish a new one.

Mas v. Perry (1974)

• Facts: A married couple rented an apartment in Louisiana where the landlord had a two-way mirror
and watching them for 3 months. They sued in for federal court and the jury awarded Mr. Mas $5000
and Mrs. Mas $10,000. D appealed for because the court didn’t have SMJ and the amount in
controversy was less than $10,000
• Analysis: There is complete diversity because the landlord is from Louisiana, the husband is a citizen
of Franc, and the wife is a citizen of Mississippi (where she was raised—still considered her domicile
because she get a new domicile by intending to live somewhere else)
o Amount in controversy is based on the amount pleaded in the complaint—the husband pleaded
for $75,000 even though he was only awarded $5,000
• Conclusion: There is complete diversity and the amount in controversy is over $10,000 so there is
SMJ under diversity jurisdiction.
b. Reasons For Diversity Jurisdiction
• Prejudice in state courts for out of state parties—federal court is a neutral forum for interstate dispute
• Prevent local bias when dealing with foreign citizens
• Uniform federal procedure promulgated by Rules Enabling Act
• Do not want out of state lawyers to be caught off guard by state procedures

4. REMOVAL TO FEDERAL COURT

a. USC § 1441
• The defendant has power to file for removal if federal district court would have jurisdiction had the
claim been filed in federal court
o The defendant can remove claiming diversity jurisdiction: More than $75,000 and complete
diversity
o EXCEPTION: D cannot remove if D is citizen of the state where the claim was filed
b. USC § 1446
• After D files notice of removal, D must notify other party and state court
c. USC §1447
• Federal Court will see if it has jurisdiction and remand it back to state court if removal was improper
• There is no mechanism to appeal the remand for lack of jurisdiction to promote judicial efficiency

5. DISMISSING FOR LACK OF SMJ

a. Rule 12(b)(1)- Most Favored Defense
• Motion to dismiss for lack of subject-matter jurisdiction
• The defense can be raised any time during the trail
b. Rule 12(h)(3)
• If the court determines at anytime that it lacks SMJ, the court must dismiss the action

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 c. Determinations of jurisdiction are not final judgment on merits—so the party can file the claim again in a
forum where there is jurisdiction. The claim will not be barred by claim preclusion
d. Dismissing for lack of SMJ would qualify for issue preclusion on issue of SMJ jurisdiction only

B. Personal Jurisdiction
1. DEFINITION
• Court has jurisdiction over person if person establishes a valid connection between defendant and the forum
state so the court can issue a judgment that is binding on the parties
• Court does not have right to decide a case if it does not have authority over the persons party to the case
o Personal right to protect the defendant against being sue in court that did not have jurisdiction to
issue a judgment
o PJ is not an issue for the plaintiff because they had a choice of where to file their claim so it is
assumed they consent to the court’s jurisdiction over them.
2. TRADITIONAL: IN STATE JURISDICTION
a. Courts have jurisdiction over anything within their border.
b. In Personam—Authority over the person: persons who are citizens/present
• People:
o Domicile – place intend to stay permanently (citizenship)
o Visiting without other contacts (present)
• Corporation:
o Place of incorporation
o Principal place of business
o Maintains enough activity to establish minimum contacts

c. In rem—authority over property or things

• Quasi in rem: Using property to resolve issues for people (absent landowners)

3. OUT OF STATE JURISDICTION

a. Due Process
• To establish out of state personal jurisdiction over D, there must be 1) a statute that give the court
jurisdiction over the defendant and 2) the statute does not violate due process
o Imposing jurisdiction does not violate due process if it meets minimum contacts
b. Long-Arm Statute
• Courts may extend personal jurisdiction beyond boundaries with these statutes so long as there are
1) Ties or minimum contacts with forum state
2) Claim arises from those contacts
3) Fair play and substantial justice: Burden to P or D, state’s
• California has the broadest statute—maximum extent permitted by the US constitution and state
constitutional
c. Service of Process – Rule 4(k)(1)(A)
• Generally provides that federal courts can exercise personal jurisdiction only if the highest court in
the state would be authorized to exercise personal jurisdiction
o Service establishes PJ over a defendant
Examples: If CA has PJ over D, then Northern District in CA has PJ over D
• Nationwide service of process: just need to have contacts with the U.S. as a whole
d. Minimum Contacts
• Standard of Presence: If D does not have presence in the state then needs to have minimum contact in
the forum state so the court will have personal jurisdiction over defendant
• He must have certain minimum contacts with it such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice
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 International Shoe v. Washington (1945)
• Facts: D was an out of state company (Missouri) that employed salesmen within the state of
Washington. Washington sued D to recover unpaid unemployment taxes and served Defendant in two
ways: (1) by mail and (2) by serving one of its salesmen within the state. D appealed from a verdict
for Washington, claiming that Washington had no personal jurisdiction over D.
• Analysis: SCOTUS does not use the test laid out in Pennoyer, but establishes the minimum contact
rule for personal jurisdiction.
o Minimum contacts considers if the contacts are:
§ Continuous and systematic activities
§ Nature and Quality of contacts –gives rise to claim
§ Degree of inconvenience for business to get sued there
§ Benefits from contacts in the state
§ State's regulatory interest
o Court said D had several salesmen in WA who were there for business so it had a continuous
presence and contact with the state. Even though D argued salesmen only displayed products,
the orders were approved and sold from the headquarters in Missouri. D benefited from
Washington transactions so the state can regulate.
• Conclusion: Washington did have personal jurisdiction over D because D had minimum contacts
with the forum state and there was not a violation of due process
• Concurrence: Black— Creates a due process limit on authority of the state. States should have
power to tax businesses as they see fit so this should have been left to the state

4. GENERAL PERSONAL JURISDICTION

a. General personal jurisdiction exists when the person is at home—place of citizenship, domicile
b. If there is general personal jurisdiction, it is fair to sue D for any claim because the contact is so
extensive—even if the events giving rise to claim took place outside of the state.
c. If there is no general person jurisdiction, then you have to have specific personal jurisdiction in order to
have personal jurisdiction.

Daimler v. Bauman
• Facts: Argentina citizens are suing a D, a German company, for events that happened in Argentina
during its dirty war. They are suing in California and they arguing that there is general PJ rather than
specific PJ over D because of the extensive contacts between D and the forum state.
• Analysis: In order to be sue for any claim even for events taking place outside of the state, there is
must be general jurisdiction. SCOTUS held that general personal jurisdiction is where one is at home.
Since D is not at home in CA, there must be specific PJ using there minimum contact threshold
• Conclusion: D does not have sufficient minimum contacts to avail D to PJ of the forum state. D’s US
counterpart is an independent company so D, itself, does not have purposeful availment so there is no
PJ.

5. SPECIFIC PERSONAL JURISDICTION

a. Definition
• The defendant can be sued in a forum state and bound to judgment for the only specific claims based
on the contacts with the forum state.
b. Due Process: 2 Prong Test
• In order to have personal jurisdiction, there must be purposeful availment by the defendant through
minimum contacts and the personal judgment must be reasonable so that there is fair play and justice
to have due process of the law

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 c. Purposeful Availment
• Defendant purposefully directed activities toward the forum state
• Applies the minimum contacts as started in International Shoe. Looks at the quality and nature of
contacts
o D understood conduct that will impact the state
o D must have anticipated activities may lead to controversies or lawsuits
o State has an interest to enforce orderly conduct
§ D benefited from conduct
§ D made contact by own activity
§ D solicits business
§ D signed waiver to allow to be sue in that state
d. Reasonableness
• D has the burden to make a compelling care that PJ is unreasonable
• Reasonableness can be inferred from the substantial contact
• Determine PJ is very facts intensive. Consider:
o Interest of forum state v. P’s interest in obtaining relief
§ Commerce or taxes
o Burden v. benefits (convenience)

Burger King Corp v. Rudzewicz (1985)

• Facts: D and his business partner entered into a franchise with Burger King, based in Florida, for set
up a burger king in Michigan. The contract was for $1 million over 20 years. D and his business
partner was falling behind in payments and BK said the contracts is breached and ordered them to
vacate the franchise, but D does not comply and continuing operations. D moved for dismissal
because Florida did not have personal jurisdiction over them.
• Analysis: This case is dealing with specific personal jurisdiction so SCOTUS applies the two-prong
test. To have PJ, there must be purposeful availment and reasonableness.
o A contract alone is not enough to establish minimum contact, but the D reached out to Florida
and benefitted from the law of Florida. The contract is for 20 years so there was substantial
connection to the forum and D purposefully availed itself to the forum
o D may go back and forth with the Michigan office, but the Florida HQ had all the authority to
make the decisions. It was reasonable because Florida had interest in holding D liable.
• Conclusion: Because there was purposeful availment and it was reasonable to have personal
jurisdiction, Florida has personal jurisdiction over D.

6. DISMISSING FOR LACK OF PJ

a. Rule 12(b)(2)
• Motion to dismiss for lack of personal jurisdiction
• Least favored defense, will be waived if not raised in an initial pre-answer motion or in responsive
pleading
• D can consent to personal jurisdiction and being subject to another state’s authority.

C. Choice of Law
1. TRADITIONAL UNDERSTANDING
a. If the case about a federal question, then the court will use federal law
b. If the case was between citizens from different states (diversity jurisdiction), federal court have common
law making power like state law.
c. Law is transcendental—view that the law exists independently of any government authority.
• Theory of common law being a process of discovering legal principles

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 d. Promotes vertical uniformity, but sacrifices horizontal uniformity—courts can still go law shopping and
pick what law to apply
Swift v. Tyson (Overruled by Erie)
• Facts: Tyson wants debt to be voided for fraud. Tyson would win under New York common law.
But the court applied federal common law—there is a uniform set of commercial rules in effect in
every state.
• Analysis: Court interpreted § 1652 (Rules Decision Act)—"The laws of the several states ... shall be
regarded as rules of decision in civil actions in the courts of the United States"
• Court held that “law of several states” to mean only statutory law, but judge-made law did not fit
under the concept of “law” under the act.
o Federal Court applied “general” common law about the issue. So common law was universal,
state and federal judges both use the same thought processes to decide issues.
o Court do not need to apply the common law of the state because it is just evidence of law, not
the law itself.

2. CURRENT/MODERN UNDERSTANDING
a. Positivist Views of The Law
• Law comes from some legitimate authority that determines it, not just “out there to be discovered”.
• No general common law exists without state authority. Constitutional authority rests on the states so
federal courts need to look to state law
• Legal realism: common law decision making is just policy making
b. Apply Substantive Law of The State
• Federal courts need to apply the substantive law of the state
• If no federal law covers the substance of the case, then you pick up the state law
• Erie is a modern statement about what judges do. It took away their autonomy to create federal
common law, except in constitutional cases
• Erie attempted to equalize things, so that in-state and out-of-state parties had the same choice of law

Erie Railroad v. Tompkins

• Facts: Defendant Tompkins, was injured by a freight car of Plaintiff Erie Railroad while in
Pennsylvania. Defendant brought suit in federal district court in New York, asking the judge to apply
“general law” regarding negligence, rather than Pennsylvania law, which required a greater degree of
negligence.
• Analysis: Federal Courts must apply the law of the state in which it sits, including state court
decisions. A federal court must look to highest state court decisions to see what it would do.
• Conclusion: Brandeis overruled Swift because law is not some transcendental notion of justice, it is
man-made, and therefore it differs from place to place so the federal courts must apply the substantive
law of the state in which the court is located.

c. Erie Doctrine and Rules Enabling Act (1938)

• Rules Enabling Act: Purpose to have uniform procedure law. Opposite of what was the same before:
now we have uniform law applied between federal and state courts (if there is no federal question) but
dis-uniform in state and federal procedure.
• U.S. district court applies the state substantive law of the state in which the court is located and must
also use federal rule of civil procedure

Klaxon Co. v. Stentor Electric

• District Court applies choice of law rules of the state where it sits, to determine which law to use for a
case

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 • Usually will be law of that state but not always since some states’ choice of law rules may say another
state’s laws are applied for particular cases
o No longer matters or gives a party an advantage by choosing to sue in either state or federal
court, other than jury bias—prevents forum shopping.

d. Constitutional Argument
• Who in the legal framework has the authority to decide the case?
o Congress has limited enumerated powers, state has the unlimited authority to create laws so long
as they don’t violate constitution
o Thus, since Congress has limited power, federal courts has no law making authority unless
Congress provided a statute
§ Federal Court has no business deciding or overriding state law if congress hasn't made the
move to do so
§ States have constitutional authority to create general common rules
o Practical reason: if you have different fed/state common law, Ps can pick which substantive law
§ Makes sense in terms of uniformity for state to be the substantive law so P won't forum shop

DUE PROCESS
A. 5th Amendment-Federal
• No person shall be…deprived of life, liberty, or property, without due process of law.
B. 14 Amendment- State
• No state shall make or enforce any law, which shall…deprive any person of life, liberty, or property,
without due process of law.
C. Pre-Attachment Hearings
1. DUE PROCESS CONSIDERATIONS
a. 3 Part Test Under Mathews v. Eldridge
1) The private interest (the defendant’s interest)
2) The risk error (will a hearing alter the nature of the decision?)
3) The government’s interest or other party’s interest (cost and burden of providing the hearing)
b. There is a no mathematical equation to determine whose interest is higher. The Matthew Due Process
Framework is an analytical tool.
c. When deciding if a case should heard or not, think about due process of the law

Matthew v. Elridge
• Facts: Matthew was receiving disability benefits. Social Security Agency terminated the benefits
away based on an administrative finding that the disability has ceased. P sued for violation of due
process.
• Analysis: P wanted a hearing before the benefits were terminated. The court set up the framework to
test if a hearing is necessary.
o There is a private interest is high for someone receiving benefits.
o Testimony and witnesses aren’t necessary and won't affect the determination if P still has
disability. There is a low risk of error without a hearing.
o 3. It is will be very costly for gov't to provide a hearing before cutting people benefits
• Conclusion: Based on the test, predetermination hearing is not required by the due process of the law
before disability benefits are cut. Hearing testimony from the other side won’t change the nature of
the case that can be decided on documentation.

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 Connecticut v. Doehr (1991)
• Facts: Judge allowed P to attach D’s house during prejudgment after writing an affidavit stating
probable cause of winning claim. D was notified of the attachment after the house was already
attached. D sued the state on the ground that allowing prejudgment attachment with a prior hearing or
notice was against due process under the 14th amendment
• Analysis: Court modified the test in Mathews v. Elridge and applied it where both sides are private
parties.
o There is a significant burden to the party when there is an attachment. They can't get a loan,
credit is reduced, current mortgage may be at risk, etc.
o Risk of error is very high. The conclusion can't be inferred by looking at documentary evidence.
There are two sides so adversary process is needed to find out the truth.
o There is no extraordinary interest for other party—no facts indicate that the party would not
comply with court’s judgment.
• Conclusion: Pre-attachment hearing is necessary because of the defendant’s high interest and high
risk. Testimony is required since there are two sides in this case. Defendant had a high burden and
adverse effects because of the pre-attachment. Hearing is required to provide due process for parties
before burdening them with attachment.

RULE 11
A. Reasonable Inquiry and Honesty
1. RULE 11(b)
a. Requirement of honesty and due diligence for attorneys regarding inquires and certifying of documents
b. Duty on counsel to make an reasonable inquiry into both the facts and law
• Facts have evidentiary support or likely will have evidentiary support after discovery
• Claims, defenses, and other legal contentions be warranted by existing law or by non-frivolous
argument for extension, modification, or reversal of existing law or the establishment of the new law
c. Under Rule 11, sanctions are proper if the attorney did not conduct a reasonable inquiry to ensure truthful
allegations or if the attorney was not honest.
• Rule 11(b)(1): The document is not being presented for any improper purpose such as to harass, cause
unnecessary delay or needlessly increase the cost of litigation
• Rule 11(b)(2): The claims, defenses, or other legal contentions are warranted by existing law or by a
non-frivolous agreement.
• Rule 11(b)(3): The factual contentions have evidentiary support or will likely have evidentiary
support after a reasonable opportunity got further investigation or discovery.
• Rule 11(b)(4): The denials of factual contentions are warranted on the evidence of, it specifically so
identified, are reasonably based on belief or a lack of information.

2. RULE 11(d)- INAPPLICABILITY

a. Rule 11 does not apply to disclosures and discovery requests, responses, objection, and motions under
Rules 26 through 37.

Zuk v. Medical College of Penn. (USCA, 1996)

• Facts: P’s attorney did not make a reasonable inquiry into the facts and the applicable copyright law.
Trial court had dismissed the case on 12(b)(6) b/c copyright on book did not apply to movies
• Analysis: Attorneys are required to perform adequate factual and legal investigation. P claimed that
he did not get the 21day notice, but while testifying, he told court he would not have withdrawn case
even if given 21 days.

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 • Conclusion: The court remanded the case because the attorney was sanctioned under another rule that
required a finding bad faith. Those sanctions were not separated from Rule 11 even though under
Rule 11, sanction would have been proper for the attorney’s conduct.
• Effect: Rule 11 sanctions are proper when counsel fails to make an adequate inquiry into both the
facts and the law, which is reasonable under the circumstances.

B. Safe Harbor Rule

1. RULE 11(c)(2)
a. Safe Harbor- 21 days to fix mistake or withdraw before sanction can happen if motioned by other party.
b. Some judges say that this policy allows attorneys to be sloppy and not be careful with their work.
c. Does not apply when the court orders the party to show cause to why they did not violate Rule 11, only
applies when the party is being served by the opposing party

C. Sanctions- Rule 11(c)

1. PURPOSE
a. Rule 11(c)(4)
• A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct
or comparable conduct by others similarly situated.
• The purpose of the sanctions is for deterrence, not punishment.
• Court can sanction the parties to pay to the court. Opposing parties can motion for court to sanction
parties to pay attorney fees.
b. Types of Sanction
• Nonmonetary Directives
• Order to pay a penalty into court
• Order to pay reasonable attorney’s fees and other expense directly resulting from violation.
2. BY MOTION
a. Rule 11(c)(2)
• After serving the Rule 11 motion and the 21 days has past, the party can motion for additional
sanctions if the party did not fix mistakes or withdraw claim
• There must be a motion to have the court order the opposing party to pay for attorney fees and other
reasonable related expenses.
3. ON ITS OWN
a. Rule 11(c)(3)
• On its own, the court may order an attorney, law firm, or party to show cause why conduct
specifically described in the order has not violated Rule 11(b).
• Cannot order the offending party to pay attorney fees without a motion
4. RULE 11(C)(5)- LIMITATION TO SANCTIONS
a. The court cannot impose monetary sanctions against a represented party for violating Rule 11(b)(2) or on
its own.
• Exception: Unless the court issued the show-cause order under Rule 11(c)(3) before voluntary
dismissal or settlement of the claim—penalty to the court, but does not shift litigation cost to the
offending party

PLEADING
A. Standards of Pleading
a. Rule 8(a)(2)
A short and plain statement of the claim showing that the pleader is entitled to relief.

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 Conley v. Gibson
• A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff cannot prove no set of facts to support this claim to entitle him to relief.
Swierkiewicz v. Sorema, N.A.
• Not necessary to establish prima facie because it would require you to prove more during the pleading
than during the trial. Extension of Conley v. Gibson
Bell Atlantic v. Twombly
• Pleadings must be facially plausible. Plaintiff must present facts that the nudges the claim from possible
to plausible.
• A plaintiff must allege sufficient facts to support the a claim for relief that is plausible on its face.
Ashcroft v. Iqbal
Retired the Conley v. Gibson pleading standard. Plaintiff must plead sufficient factual matter to support
claim.
b. Rule 9(b)
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
PSLRA 21D(b)(2)- intent must be made with “ strong inference”
Tellabs, Inc v. Makor Issue and Rights, LTD
• “strong inference” is a inference that is cogent and at least as strong as any competing inferences
c. Rule 8(d)(2)
• A party may set out two or more statements of a claim of defense alternatively or hypothetically, either
in a single court or defense of in separates ones.
d. Rule 8(d)(3)
• A party may state as many separate claims or defense as it has, regardless of consistency.
McCormick v. Kopman
• Alternative pleading is not permitted when the pleader must know which one of the alternative is true,
but in this case, the widow did not know the truth of the situation so pleading alternative sets of facts is
Disfavored Favored Most Favored
Rules 12(b)(2-5) -Failure to state a claim -Subject matter jurisdiction
-No personal jurisdiction: limits on court’s authority to bring 12(b)(6) 12(B)(1): does court have
someone in, from far away. You can choose if you want to -Failure to state a defense power to hold this case?
-Improper venue: ex: wrong district court -Failure to join required party Standing is an aspect of this.
-Insufficient process: court summons is deficient. If no standing, the court can’t
-Insufficient Service: has to be delivered in an appropriate decide question.
manner (ex: summons is left with a neighbor)

Usually need to bring these up Asap Rule 12(h)(2) says 12(b) Can be raised post trial
(6) can raised in any pleading.
Can be raised by motion,
pleading, or at trial
often the only feasible way to proceed.

B. Defenses to pleading
a. Rule 12(b)(6)-Motion to Dismiss
• A 12(b)(6) motion is a motion to dismiss for failure to state a claim upon which relief can be granted.
Plaintiff needs to fulfill the pleading standard in Rule 8(a) to survive 12(b)(6) motion. Under
Twombly/Iqbal, a plaintiff must allege sufficient facts to support a claim for relief that is plausible on its
face.

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 b. Rule 12(d)
• If a 12(b)(6) motion or a 12(c) motion present facts or allegations outside of the pleadings, the motion is
treated like a motion to dismiss under Rule 56.
c. Rule 12(e)- Motion For a More Definite Statement.
• A party may move for a more definite statement of a pleading to which a responsive pleading is allowed
but is so vague or ambiguous that the party cannot reasonably prepare a response.
U.S. v. Harbor Board of Commissioners
• The defendant’s motion is an attempt to “flesh out” the government’s case so it's a misuse of rule 12(e).
• If Rule 8 is satisfied and the defendant is fairly notified of the claim, a rule 12(e) motion is inappropriate.
c. Other Rule 12 Motions

C. Responses to Pleadings
1. NO RESPONSE
a. Rule 12(a)(1)
• Defendant has 21 days to respond to complaint after being served.
b. Rule 55(a)- Default Judgment
• Plaintiff can file for default if defendant fails to responds within 21 days.
• Rule 55(b)--Default does not become final until it becomes a default judgment
• Rule 55(c)-- Defendant can motion for the court to set aside the default judgment for good cause
Shepard Claims Service, Inc. v. William Darrah Associates
• Rule 55(c): Default judgment was set aside because it met the 3-prong test to find good cause (reasonable
excuse):
1) Did delay prejudice plaintiff
2) Possibility of meritorious defense
3) Lawyer’s actions were culpable conduct.
• Facts: An answer was filed late due to legal secretary error while attorney was in Hawaii. The plaintiff
asked for default judgment because there was no answer.
• Holding: Mere negligence is sufficient “good cause” to set aside default since the party’s conduct was
not willful; other party was not prejudiced; and the party had a meritorious defense regardless of
likelihood of success)
• Policy argument: Rule on the merits of the case, not on the technicality. The lawyer’s mistake was not
reckless disregard of the rules so client should not be punished.
2. ANSWER
a. 8(b)(1)(B)
• Defendant can admit or deny the allegations asserted by opposing party
b. 8(b)(3)
• Defendant can deny all allegations general or go through, deny some of them or deny all except some.
c. 8(b)(5)
• If the defendant lacks info or knowledge, defendant can say you don't know, but has an effect of a denial.

3. AMENDMENTS AND RELATION BACK

a. Rule 15(a)(1)(A)- Amend as a Matter of Course
• A party can amend its pleading once as “a matter of course” 21 days after serving, OR
15(a)(1)(B) A party can amend its pleading, if it is one that requires a responsive pleading, 21 days after
service of a responsive leading or 21 days after service of a motion under 12(b), (e), or (f).
b. Rule 15(a)(2)- Amend with Court’s Leave
• In all other cases, a party can amend its pleading with the opposing parties written consent or on the
courts leave when justice so requires.

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 • Balances moving the case forward with fairness and allowing the amendment against prejudice towards
moving party.
• Questions to consider if “justice so requires”
o Would allowing the amendment prejudice the party?
o What was nature of the delay?
o Would it disrupt the beginning of trial?

David v. Crompton & Knowles (USDC PA)

• Facts: Defendant, their original answer to the complaint, claimed they did not have adequate information
to admit or deny to allegation. Defendant now alleges they have sufficient information to deny the claim.
Defendant motions to amend their answer to a denial.
• Analysis: The court says that the defendant had time to discover and allege the amendment appropriately.
Now, the plaintiff’s are discriminated against (time barred by statute of limitations) and cannot bring suit
against the other defendants. As such, defendants here assume liability.
• Holding: The court did not allow the amendment because it would prejudice the plaintiffs since they
would have no one to sue because the statue of limitations ran out.

c. Rule 15(a)(3)- Amendment Time Limit

• The party must respond to the amended pleading either 14 days after the service of the amended pleading
OR within the remaining time frame of the original pleading (whichever is later).
d. Rule 15(c)(1): Amendment Relation Back Doctrine
• An amendment relates back when:
o 15(c)(1)(A): The law of the statute of limitations allows relations back
o 15(c)(1)(B): The amendment asserts a claim/defense that arose out of the same transaction or
occurrence in the original pleading;
o 15(c)(1)(C): The amendment changes the name of the party to be asserted
o 15(c)(2): Notice to the United States
• According to Rule 15(c), a party’s amendment can relate back to original date if (1) the claim/defense
arose out of the same transactions/facts, (2) new party will not be prejudiced, and (3) the party knew or
should have known it would be named as defendant but for mistake.

Does amendment relate back?

Krupski v. Costa Crociere SPA (SCOTUS)

• Facts: Plaintiff suffered injury while on a cruise ship overseas. P filed suit against Costa Cruise Lines.
Costa Cruise Lines brought up that the right defendant’s to sue were Costa Crociere three times within
several months. Costa Cruise Lines filed a motion for summary judgment. District Court denied summary
judgment and allowed P to amend her complaint. Costa Crociere Lines then filed motion to dismiss
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 claiming the complaint did not relate back to the original complaint (statute of limitations had expired at
this point).
• Rule: For an amendment to relate back when it involves changing the name of a defendant on the original
complaint, the party must show The amendment asserts a claim that arose out of the same
transaction/occurrence of the original complaint, 2) the new defendant wont be prejudiced in defending
on the merits AND knew or should have known that action would have been brought against them.
• Holding: Court says defendants knew or should have known complaint would have been brought against
them.

4. SUPPLEMENTAL PLEADINGS
a. Rule 15(d)
• At the discretion of the court, the judge may allow the part yto make a motion to add assertions of things
that occurred after the pleading was filed.
• This motion applies to either party.
• Court uses same guidelines in balancing rights of parties when allowing a supplement pleading.
DISCOVERY
A. Types of Discovery
1. REQUIRED DISCLOSURES
a. Rule 26(a)(1)- Initial Disclosures
• Under Rule 26(a)(1)(A), the party must identify a list of witnesses and documents that party may use
support its claims or defenses 14 days after the 26(f) conference.
• 26(a)(2)- Expert disclosures; 26(a)(3)- Pretrial disclosures
• 26(a)(1)(A)(iii)- Parties must disclose a computation of each category of damages claimed by the
disclosing party, unless the material is privileged or protected from disclosures.
b. Rule 26(b)- Documents Exempt
• Any information that is solely used for impeachment need not be disclosed.
c. Rule 26(e)- Supplement Disclosures and Responses
• A party must supplement or correct its disclosure or response in a “timely manner” if the party learns that
the disclosure or response was inaccurate or incomplete.
• Applies to disclosure, interrogatories, document requests, expert reports and expert depositions.
• Requires the party to be self-policing to be sure that previous responses do not become misleading as
discovery unfolds.
• Exception: Unless the information has been revealed to the other party in an informal manner through the
discovery process.
d. Rule 26(d)-Timing And Sequence Of Discover
• 26(d)(1): A party may not seek discovery from any source before the parties have conferred as required
by Rule 26(f), except in a proceeding exempted from initial disclosure under 26(a)(1)(B), or when
otherwise authorized.
• 26(d)(2): Parties can decide the order of discovery unless judge wants a certain order in the interest of
justice.
e. Rule 26(f)- Conferences of the Party-Planning for Discovery
• Parties must schedule a conference to determine various parts of discovery and a plan for discovery.
• Parties must confer as soon as practicable---in any event at least 21 days before a scheduling conference
or scheduling order is due under Rule 16(b)
f. Rule 16(b)- Pretrial Conference: Schedule Order
• After 26(f) conference, judge must set out a schedule order and its can only be modified for good cause
and with the judge’s consent.
• The scheduling order must limit time to join other parties, amend the pleadings, complete discovery, and
file motions.
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2. RULE 30-DEPOSITIONS
a. Purpose: Either party can depose anyone with discoverable information upon giving written notice to the
party or serving a subpoena to a nonparty which identifies the party, the time, and place of the deposition;
taken under oath and generally orally questioning by both parties lawyers which is transcribed or video
taped.
• Rule 30(b)(6)- can serve and organization or entity
b. Utility:
• Limited to 10 depositions per case and maximum of 7 hours each
• Allow the lawyer to “pursue” certain answers based on the deponent’s response
• Can supplement notice with a subpoena duces tecum to require the nonparty to bring with her certain
documents or tangible things.
• Rule 30(c)(2)-Objection are limited in deposition
o Can object but deponent will be required to answer unless privileged; to enforce a limitation ordered
by the court; or to present motion to limit or terminate due to bad faith or unreasonable manner.
3. RULE 33-INTERROGATORIES
a. Purpose: A written too/questions posed to the other side that must be responded to in writing and under oath.
• Seems simple but not as effective a tool as deposition because the opposing counsel usually answers the
questions even though the rule required otherwise.
• Party must give information reasonably; must investigate answer and can not respond with a general
denial or “I don’t know”
• Limited to 25 questions per party.
b. Utility:
• Rarely uncover the “smoking gun”
• Very useful in obtaining facts
• Can for the other party to take a position (contention interrogatory)
• Can be useful to prepare for deposition
c. Parties cannot serve interrogatories to non-parties
• Exception: Rule 33(d)- option to produce business records

4. RULE 34-REQUEST FOR PRODUCTION

a. Purpose: Permits one party to request that another party produce documents; electronically stored
information; other tangible things; entry on land for inspection or other reasons (i.e. testing).
b. Rule 34(b)(1)- Request for production must be described with “reasonably particularity” each item or
category of items to be inspected.
c. Rule 34(a)(1)- This applies to all things that the party already has in “the responding party’s possession,
custody or control”
d. Rule 34(b)(2)(E)- Information must be provided in the manner kept in the usual course of business or
organized by categories in the request so as to prevent the burying of relevant information in a pole of
unimportant documents.
e. The party must make a reasonable and often considerable effort to find the things requested.

5. RULE 35-PHYSICAL/ MENTAL EXAMINATIONS

a. Purpose: Court can order a physical or mental medical examination when the party must make an
affirmative showing that the “physical or mental condition” is in controversy and must demonstrate a good
cause for such exam.
• This is the only discovery tool that must be court-ordered.
• Rule 35(b)(4)-Party may obtain a copy of this report but in doing so waived all privilege to any medical
reports concerning the same condition. (Doctor-patient rule is waived)

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6. RULE 36-REQUEST FOR ADMISSION
a. Purpose: Parties can motion for the other party to admit or deny allegations in details. It narrows the scope
of admission and denial.
• This is a way to nail down points by getting opposing counsel to admit claims in the complaint. Parties
can request authentication of documents or admission of basic elemental facts.

B. Limits to Discovery
1. RULE 26(b)(1)- RELEVANCY
a. “The court may order discovery of any matter relevant to the subject matter involved in the action.”
b. Parties may obtain discovery regarding any matter that is relevant to any party’s claim or defense as long as
it is not privileged or limited by the court.
c. Furthermore, the discovery does not need to be admissible as long as the discovery appears to reasonably
lead to discovery of admissible evidence.
d. Fed. Rule Evidence 401: Relevant evidence means evidence having any tendency to make the existence of a
fact necessary for the claim/defense more probable or less probable that it would be without the evidence.

Davis v. Diana Ross

• Facts: Davis was Ross’ employee and leaves Ross. Ross issued a letter about ex-employees and if they
are no longer employed, it’s because their work/personal habits are not acceptable. Davis sues for
defamation. She makes 3 requests for production during discovery, 1) net worth 2) law firm bills 3)
names of complaining employees. Ross requested information about her psychiatric treatment.
• Analysis: 1) Davis’ request for Ross’ net worth is not relevant because it was necessary to know net
worth for punitive damages until the end of the trial.
o 2) Law firm bills are not relevant— it is not necessary to know exactly how much money lawyers
gets to prove bias. (Weak inferences)
o 3) P’s says this is relevant because it shows Ross’ credibility and show that there is basis for Davis’
claim. Court says not relevant—other people complaining about Ross is relevant to whether Ross is
a good boss, but not relevant to whether Davis is a bad employee.
o Davis’ psychiatric treatment is materially relevant because Davis is suing for mental pain and
anguish. Physician-patient privilege is waived. It is relevant to know Davis’ mental state because
she put her mental condition at issue.
• Holding: Mental evaluation is discoverable because Davis made “emotional distress” an issue in the
case. Physician-Patient Privilege is waived so the information is no longer privilege. Within scope and
relevant under Rule 26(b)(1) so it’s discoverable.

Phoenix v. East Resources, Inc.

• Facts: P is suing D for potential fraud and served two interrogatories about every lawsuit within the last
10 years and about executive compensation and request for production about every complaint made
against D alleging fraud. D took a long time to respond and responded with generic answers to the
discovery request being overly broad, unduly burdensome, irrelevant, and won’t lead to admissible
evidence and objected to the requests. P moved to compel discovery.
• Analysis: General Rule: Any non-privileged matter that it is relevant to any party’s claim or defense is
discoverable. Even if privileged, for good cause—anything relevant to the subject matter.
o Court hold that discovery rules are to be accorded a broad and liberal treatment, but the requested
discovery must be relevant.
o DC has an unfettered discretion in determining the timing and scope of discovery and sanctions if
party failed to comply with discovery orders.
o D’s untimeliness to response to the interrogatories is reason along to grant. Generic and general
objections to discovery motions are disfavored.
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 o Relevant information need not be admissible at trial if the discovery appears reasonably calculated
to lead to discovery of admissible evidence.
• Conclusion: Courts hold that the discovery requests are relevant to case so motion to compel discovery is
granted. The court limits the time period to 7 years.

2. RULE 26(b)(2)(C)- PROPORTIONALITY

The court can on its own or by motion limit the frequency of extent of discovery it find any of the following:
a. Rule 26(b)(2)(C)(i)- Unreasonably Duplicative
• The discovery sought is unreasonable duplicative or can be obtained by some other source that is more
convenient, less expensive, or less burdensome.
b. Rule 26(b)(2)(C)(ii)- Ample Opportunity
• The party has ample opportunity to obtain the information.
c. Rule 26(b)(2)(C)(iii)-Undue Burden
• The burden or expense of the proposed discovery outweighs its likely benefit.
• Balancing inquiry about the benefit and burden of the discovery.
d. Seven Factor Test: Proportionality Limitation: Rule 26(b)(2)(iii)
1.Is the information relevant?
2.Availability of such info from other sources
3.Total cost of production vs. amount in controversy
4.Total cost of production vs. resources available to each party
5.Party's ability to control costs and incentive to do so
6.Importance of issues at stake
7.Relative benefits to the parties of obtaining info

Kozlowski v. Sears Roebuck & Co.

• Facts: Plaintiff was burned when his pajamas caught on fire. Plaintiff is suing defendant. Plaintiff
requested all records of complaints and communications regarding injuries or fatalities caused by burning
children’s nightgowns manufactured by the defendant under Rule 34. Defendant does not produce the
information, but offers to let plaintiff come to the warehouse and find the information himself.
• Issue: Does the fact that the burden on the defendant would be great to produce such information count in
discovery?
• Analysis: As a general rule, each party bears their own cost of discovery. In this instance, Sears
designed their own system and plaintiff should not be required to bear the burden of a design deficiency
on behalf of the defendant. Court intimates that Defendant set up the system this way with the purpose
that it would be difficult for Plaintiff to find the information.
o Cost or time-consuming burdens are not sufficient reasons to grant protective order where the
requested material is relevant and necessary to discovery evidence
• Holding: The defendants cannot shift the cost of production to the plaintiff by making them find the
information requested. The cost is not too burdensome so defendants are ordered to produce the
information.

e. Rule 26(b)(2)(B)- Limitation to E-Discovery

• A party does not need to provide discovery of electronically stored information (ESI) form sources that
the party identifies as not reasonably accessible due to undue burden or cost, but on motion, the
responding party must prove unreasonableness/cost.
• The court can still order discovery is the requesting party shows good cause.

McPeek v. Ashcroft
• Facts: McPeek sued for sexual harassment and there is suppose to be a confidentially agreement. After
the case, McPeek is facing retaliation for his lawsuit. He is requesting discovery of backup of the e-files
29
 (emails) to see what emails were deleted regarding the lawsuit. D said backup tapes are not complete and
are not meant for discovery.
• Analysis: The court’s weighed the cost of production to the defendants and came up with a case
management plan where the government would be required to produce a limited set of material (1 year)
from the back up tapes to see if it produces anything beneficial.
• Holding: If that limited material was found relevant, the parties could return for further discovery. The
management plan was made to limit D’s burden, but also allow P to obtain possible necessary
information.

3. RULE 26(c)-PROTECTIVE ORDERS

a. The court may for good cause issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.
b. The motion must include certification that movant has in good faith conferred or attempted to confer with
other affected parties in an effort to resolve the dispute without court action.
c. Protective orders are used for sensitive information like trade secrets, confidential research, diaries, etc.
d. The court can still order discovery through another method other than the one selected by the party.
e. The court can place limitations on discovery by specifying time and place for the disclosure.

Coca-Cola Bottling Co. v. Coca-Cola Co.

• Facts: Plaintiff requested discovery on the formula for Coca-Cola. The defendant motion for a protective
order.
• Analysis: The judge decided that the info was special, but allowed discovery because the recipe was
relevant to the case. The formula was disclosed to one party so plaintiff could determine if it was the
same as Diet Coke and determine breach of contract. The other party was a bottling company so it was
likely that they would keep the secret since it is to their benefit as well.
• Holding: Trade secrets are discoverable and protective order can limit the manner of revealing the
information.

C. Protections and Privileges to Discovery

1. RULE 26(b)(3)- WORK PRODUCT PROTECTION
• Rule 26(b)(3)(A): Ordinarily, a party may not discover documents or tangible things that are prepared in
anticipation of litigation or for a trial by or for another party or representative
o The W/P Protection is not limited to documents prepared by the other party’s attorney, but also
consultant, surety, indemnitor, insurer, or agent.
• Not in anticipation of litigation if prepared for internal investigations or attorney consultation as ordinary
course of business.
• Protection under work product is not absolute.
o Ordinary Work Product: Discoverable upon showing substantial need and can’t obtain substantial
equivalent
o Opinion Work Product: Not discoverable
o Witness Statement: Party can obtain their own statement and can’t get it as a matter of course
a. Rule 26(b)(3)(A)(i-ii)- Exception to Work Product Protection
• Materials may be discovered if:
o Otherwise discoverable under Rule 26(b)(1)- scope of relevancy
o The party shows that it has substantial need for the materials to make its case, and cannot, with undue
hardship, obtain their substantial equivalent by other means.
b. Rule 26(b)(3)(B)- Protection Against Disclosures
• If the court finds the material discoverable, it must protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the
litigation.
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 • Documents can be redacted to preserve this information

Hickman v. Taylor
• Facts: After a tugboat sank, D (tugboat owner)’s attorney interviewed survivors before any lawsuits
were filed, but for possible litigation. P requested D’s attorney interview notes. D claimed the materials
were protected by attorney-client privilege so objected to request.
• Analysis: Because the survivors are not clients, the material is not privileged by attorney-client
privilege. The interviews were conducted in anticipation of litigation so it is protected under work-
product doctrine.
o Attorney work product is not absolute protection. Relevant and nonprivileged facts in work product
are discoverable, but not without showing substantial need (inability to obtain equivalent without
undue hardship)
• Conclusion: The facts in the interview are discoverable, but P failed to show substantial need. The
survivors’ identities and whereabouts are known so P can interview them on their own.

2. ATTORNEY-CLIENT PRIVILEGE
• Attorney-client privilege is a doctrine that precludes the admission into evidence of confidential
communications between an attorney and his client made in the course of obtaining professional assistance.
• Substantial need and undue burden is not material to attorney-client privilege
• The privilege does not protect the disclosure of the underlying facts by those who communicated with the
attorney; the other party can still obtain the facts through other means of discovery like depositions of
interrogatories.

Upjohn Co. v. United States

• Facts: Independent accountants discovered foreign bribes in D’s foreign subsidiaries. D’s General
Counsel discussed with chairman and began conducting own investigation with own questionnaires sent
to employees. IRS issued summons to demand production of questionnaires, and information obtained
in the investigation. D objected the production under attorney-client privilege.
• Issue: If the client is a company, may the privilege be applied to communications between all
employees and corporate counsel?
• Analysis: Privilege exists to protect not only the giving of profession advice to those who can act on it
but also the giving of the information to the lawyer to enable him to give sound and informed advice.
(Extends to middle and lower level employee) It is necessary to protect the communication because
otherwise it would discourage the communication of relevant information by employees of client to
attorneys seeking to render legal advice to the client corporation.
• Conclusion: Attorney-client privilege applied broadly to employees as well. Point of privilege is to
enable attorney to investigate facts of problems; make sense to protect the communications with
employees. Nevertheless, nonprivileged and relevant facts are still discoverable.

D. Expert Testimony Protections And Disclosures

1. EXPERT DISCLOSURES AND REPORTS
a. Rule 26(a)(2)- Expert Witness Disclosures
• Anyone who is going to testify on opinions based on expertise to support or to defend a claim must be
identified. If not identified as providing expert testimony, the party make risk Rule 37(c)(1) sanctions.
b. Rule 26(a)(2)(B)- Detailed Report
• Experts who will testify and specially retained must provide a detail report and include the following
information.
o A complete statement of all opinions the witness will express and the basis and reasons them;
o The facts or data considered by the witness in forming them;

31
 o Any exhibits that will be used to summarize or support them;
o The witness’s qualification, including a list of all publications authored in the previous 10 years;
o A list of all other cases in which, during the previous 4 years, the witness testified as an expert at
trial or by deposition; and
o A statement of the compensation to be paid for the study and testimony in the case
c. Rule 26(a)(2)(C)- Basic Report
• Other experts will need to submit a basic report that includes 1) the subject matter on which the expert is
expected to present evidence and 2) a summary of the facts and opinions to which the expert is expected
to testify.
2. PROTECTION OF EXPERT OPINION
a. Rule 26(b)(4)(D)- Protected Expert Opinion
• Ordinarily, facts or opinions by an expert retained for trial or anticipation of a trial are non-discoverable
unless:
o As provided by Rule 35(b); OR
o On showing exception circumstances where it would be impractical for a party to discover this in
any other way.
§ Exceptional circumstance: Inability to obtain equivalent information from other sources
• If experts are not specially employed or retained, their opinions are treated like work product and
discoverable under exceptions to work product.

b. Expert Testimony Flow Chart

Expert Type of Expert Report Discovery Cost-Shifting

Ret./SE/RU(regular Detailed: Yes, but not drafts or any

use) à R. 26(a)(2)(B) à attorney communication
Will Testifyà (similar to work product) Yes—expert fee R.
à 26(b)(4)(E)
Othersà Basic:
R. 26(a)(2)(C) à R. 26(b)(4)(B-C)

No unless showing of Yes—shared cost

Ret./SEà NO à exception circumstance à R. 26(b)(4)(E)(ii)
Won’t Rule 26(b)(4)(D).
Testifyà
Othersà NOà Yes, unless work product NO
or A/C privilegeà

In re Shell Oil Refinery

• Facts: In preparation for litigation, Shell (D) conducts certain tests after an explosion occurred at the oil
refinery. P wanted to depose two Shell’s in-house experts and sought the results from their tests because
P did not want to pay over 300k to conduct own tests.
• Rule: 26(b)(4)(A): Testifying Experts and 26(b)(4)(D): Non-testifying Experts
o Retained or specially employed experts preparing facts/ opinions in anticipation of litigation or
preparation for trial are subject to discovery only in exceptional circumstances--> applies to in-
house experts
o Retained or specially employed --> Includes Outside experts and in-house people (incentive for
company not to go outside: economic waste)
§ Some courts: something more than simply the assignment of a current employee to a
particular problem raised by current litigation
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 § Other courts: regular employee can be specially employed if designated to apply expertise to
a particular matter in anticipation of litigation or trial
• Holding: Experts were employees of Shell Oil refinery that were assigned to investigate the explosion in
preparation and since they had not yet been identified as testifying as trial, P’s discovery attempt is
premature and since the experts’ usual job was not to testify, then their investigation and prepared reports
were not discoverable.
o The facts known and opinions held by non-testifying experts who are retained or specially
employed in anticipation of litigation or preparation for trial are subject to discovery only in
exceptional circumstances—P failed to show exceptional circumstances.
E. Sanctions And Enforcement- Rule 37
1. ENFORCEMENT OF DISCOVERY
a. Rule 37(a)(1)- Motion for an Order to Compel
• In general, a party can move to compel disclosure or discovery after movant has certified they have
attempted to confer with the opposing party.
• Movant can motion for an order if the non-moving party fails to or in does not completely disclose,
produce, response to interrogatories, or did not show up for deposition.
• Rule 37(a)(5)-Who is responsible for the expenses?
o If the motion is granted, the court must require the party to pay the movants expenses unless:
i. The movant filed the motion before attempting to obtain disclosure/discovery without court
action
ii. The opposing party’s non-disclosure was justified
iii. Other circumstances make award of expenses unjust.
o If the motion is denied, the court may require the movant pay the non-movant’s expenses.
b. Rule 37(a)(4)- Evasive or Incomplete Disclosure, Answer, or Response
• An evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer,
or respond.
c. Rule 37(a)(5)- Payment of Expenses for Motion to Compel
• If the requesting party’s motion to compel is granted the can required the party whose conduct
necessitated the motion to pay the movant’s reasonable expenses incurred in making motion, including
attorney fees.
• However, the court must take into consideration whether the opposing party’s nondisclosure, response, or
objection was substantially justified according to Rule 37(a)(5)(A)(ii).
d. Rule 37(c)(2)- Failure to Admit
• If a party fails to admit what is requested and if the requesting party later proves a document to be
genuine or the matter true, the requesting party may move that the party who failed to admit pay the
reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order
unless:
o The request was held objectionable under Rule 36(a)
o The admission sought was of no substantial importance;
o The party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
o There was other good reason for the failure to admit.
e. Rule 37(d)-Failure to Attend its Own Deposition, Serve Answers to Interrogatories, or Respond to a
Request for Inspection
• The court may order sanction if the party fails to appear for a person’s deposition, fails to serve its
answers, objections, or written response.
• Rule 37(d)(3)- Sanctions may include any list in Rule 37(2)(A). Instead of or in addition to these
sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay
the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.

33
 f. Rule 37(e)- Failure to Provide Electronically Stored Information
• Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for
failing to provide electronically stored information lost as a result of the routine, good-faith operation of
an electronic information system
g. Rule 37(f)- Failure to Participate in Framing a Discovery Plan
• If a party fails to participate in good faith in developing and submitting a proposed discovery plan as
required by Rule 26(f), the court may require that party or attorney to pay to any other party the
reasonable expenses, including attorney's fees, caused by the failure.
2. SANCTIONS FOR FAILURE TO COMPLY
a. Rule 37(b)- Failure to Comply with a Court Order
• If a party fails to comply with a court order, the failure may be treated as contempt of court and sanctions
can be properly imposed. A grossly negligent failure to obey an order-compelling discovery is sufficient
to justify the severest discipline measures available under Rule 37.
• Rule 37(b)(2)(A)-For not obeying a discovery order, the court may issue the following orders.
o Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from
introducing designated matters in evidence;
o Striking pleadings in whole or in part;
o Staying further proceedings until the order is obeyed;
o Dismissing the action or proceeding in whole or in part; or
o Rendering a default judgment against the disobedient party
• Rule 37(b)(2)(B)- For not Producing Persons for Examination
o If a party fails to comply with an order under requiring it to produce another person for examination,
the court may issue any of the orders listed for failure to obey a discovery order, unless the
disobedient party shows that it cannot produce the other person.
b. 37(b)(2)(C)- Payment of Expenses
• In addition to the above orders, the court MUST order the disobedient party, the attorney advising that
party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the
failure was substantially justified or other circumstances make an award of expenses unjust.
b. Rule 37(c)(1)- Failure to Disclose or Supplement
• If a party fails to provide information, identify a witness, or supplement disclosures (Rule 26(a), 26(e)),
then the party cannot use this information at hearing, or trial, unless failure to disclose was harmless or
justified.
c. Sequence of Actions to Motion For Sanctions
• Step 1: Motion to Compel- Rule 37(a)(1)
o Here the party asks the court to order discovery or disclosure and the respondent can brief why it
should be denied (protected)
o Moving party must certify that it has tried in good faith to get the information
• Step 2: Judge’s Order
o If the court grants the motion, then the party is allowed to provide the information and at worst
could be assessed costs on the other party for filing the motion
• Step 3: Motion for Sanction: Rule 37(b)
o If the party refuses to comply with the judge’s order then the party must make this motion to seek
sanctions
o Other side will counter this by claiming that he did what the court asked him to do

Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp

• Facts: Plaintiff filed a complaint against defendant citing abuse of the city agency process and entering a
conspiracy to cut off plaintiff’s access to movies. Defendant served plaintiff with a set of interrogatory
request. Plaintiff’s answers were continually late, deficient, bare, and incomplete. Magistrate court
recommended sanctions under Rule 37(a).

34
 • Analysis: Court says Cine’ failure to answer may not rise to the level of “willfulness” or “bad faith”. But
gross negligence amounting to a “total dereliction of professional responsibility” rather than conscious
disregard is enough to establish fault.
• Holding: Gross negligence on behalf of counsel to not comply with an order is enough to justify the
severest disciplinary measures/sanctions under Rule 37, unless the party has made a good faith effort to
comply but couldn’t for some extenuating circumstance.
SUMMARY JUDGMENT: RULE 56
1. RULE 56(a)
a. Timing: Rule 56(b)
• Motion for SJ can be filed any time after lawsuit is filed up to 30 days after close of discovery.
b. Rule for Summary Judgment
• The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to relief as a matter of law.
c. Parties (P and D) may move for summary judgment (all or in part).
d. Summary judgment can pierce the pleadings and look at evidence about what really happened; does not
weigh the evidence.
f. Evidence is viewed in the light most favorable to the non-moving party (when the evidence conflicts).
Evidence can include depositions, affidavits, declarations, and interrogatories.
g.Policy: Summary Judgment is this “put up or shut up” moment in trial and a mechanism to screen out
frivolous lawsuits from burdening the court dockets.

2. BURDEN OF PROOF (2 COMPONENTS)

a. Burden of Production
• Asks the questions to the judge if there is enough evidence that a rational fact finder could possibility rule
in that party’s favor.
• Preliminary inquiry to assess if the evidence is sufficient to go to the jury.
o If the plaintiff is the non-moving party and did not meet the burden of production at the end of
discovery, then summary judgment will most likely be granted.
• The burden shifts between the parties. If the plaintiff does not meet this
b. Burden of Persuasion
• Must convince fact finder what they are saying is the truth and the reasonable fact finder should find in
the party’s favor.
• The standard of proof during trial is usually the preponderance of evidence. For some cases, it is “clear
and convincing evidence”.
• Usually, the plaintiff has the burden of production.
c. Rationale
• Juries are less predictable than a judge
• Trial is costly and unpredictable
o There is no point in going to trial if there is not even enough evidence that a reasonable could
possible rule in favor of that party.
• Jury is plaintiff friendly
• Encourages settlement if the process is too long

Adickes v. S.H. Kress & Co. (1970)

• Facts: P, a white teacher, goes to a lunchroom at Kress’s store in Mississippi with 6 black students.
They refuse to serve her and she arrested for vagrancy. She sued Kress alleging conspiracy between
Kress and the police to arrest her because she was in company of African Americans.
• Rule: Summary judgment may not be granted unless a defendant can show that a required element of
the plaintiff’s claim does not exist.
35
 • Analysis: To prove conspiracy: Kress’ employer and policemen reached an understanding that caused
her to be arrested because she was a white person accompanying African Americans.
o D moved for SJ because the plaintiff could not show that there was a police officer in the store.
o Police affidavit did not specify there wasn’t communication between store and them or that they
weren’t there already, P did not have to provide evidence to show police were there since D did
not establish absence of police
• Conclusion: The court held that D did not meet the standard for summary judgment because the
defendant did not meet burden of presenting evidence to show P’s claim was merit-less To win, D
needed to present evidence and show that there was not a policeman in the store at the time.

Celotex Corp. v. Catrett (1986)

• Facts: Catrett sued Celotex for wrongful death, alleging that her husband dies from asbestos exposure
because of celotex products. Celotex moved for SJ because P did not have enough evidence that could
prove exposure to asbestos was because of Celotex products. DC grants, COA reverses, and SCOTUS
grants review.
• Rule: D is entitled to SJ if the discovery shows that P did not meet their burden of production of does
not have any evidence that carry their burden of proof.
• Analysis: COA reversed DJ because D made no effort to support SJ motion with evidence. However,
SCOTUS said D has no obligation to present evidence if there not an issue, it’s enough to show that P
did not meet its burden of production by bringing it to the attention of the court.
• Conclusion: SJ was proper because D did not need to who that the products that killed P’s husband
belonged to D. D is entitled to SJ if D shows P cannot prove that it was D’s products that exposed her
husband to asbestos.
• Concurrence: SJ should be granted when moving party 1) present evidence showing P’s evidence is
illegitimate or 2) say evidence is insufficient
• Dissent, Black: SJ is based case on “sterile bareness” of paper rather than on the proceeding of the
trial. D, as the moving party failed to satisfy the initial burden of productions, SJ should be denied like
in Adickes.

d. Effects of Celotex Ruling

• It was easier to satisfying the rule to grant SJ and it became much more defendant friendly
• The ruling did not overrule Adickes, but says the Adickes should not be construed to place the burden of
producing evidence on the movant.
• SJ is a good and necessary mechanism—screens out frivolous lawsuits.
• Side Note: SJ may have to do with substantive law: Adickes was about conspiracy so lenient
interpretation, Celotex was about business so harder substantive standard.

3. NONMOVANT’S RESPONSE
a. Nonmovant’s Response
• The non-movant party must respond with sufficient evidence that a reasonable finder of fact could find
for him/her.
b. Credibility of Witness is a Genuine Issue
• Where credibility of the parties is crucial, summary judgment is improper and the issue should go to trail
for the jury to decide and make inferences from the evidence.

Arnstein v. Porter (1946)

• Facts: P sued D for copyright infringement on his songs. P alleged that D has stooges follow and steal
from him. In the deposition, P said doesn’t know how D was involved. D said he has never heard any of
P’s songs.
36
 • Analysis: Court said that D could have copied songs. D could have had access since P sold millions of
records. Even if the theory was fantastic, the songs sound similar. P may persuade the jury during trial.
Circumstantial evidence may have been enough for jury to infer copyright.
• Conclusion: If the question is about credibility, then it should go to jury. “Truth is sometimes stranger
than fiction.”
• Dissent: SJ should be used when it’s fairly clear what outcome of a case will be. The majority has too
much faith in the jury to be able to decide if there is plagiarism.
o SJ is essential to screen out cases since the pleading standard is low (*Not the case now with
Twombly/Iqbal)

c. Demeanor Evidence is Insufficient

• The witnesses’ demeanor evidence does not satisfy the burden of production because it does not support
the plaintiff’s claim.
Dyer v. MacDougall
• Facts: Dyer suing MacDougall for libel and slander. P did not depose defendants or request any other
forms of discovery. DC granted SJ because P did not have any evidence since all D’s and witness
denied P’s accusations.
• Analysis: P’s evidence was based on the demeanor of the witnesses will convince a jury of his
untruthfulness. Court cannot review such evidence so there is no evidence to support P’s claim. P could
have deposed the witnesses a second time to get more information, but he chose not to.
• Conclusion: Demeanor and credibility are important for jury to consider, but a claim based on
demeanor evidence alone is insufficient to survive SJ.

4. CELOTEX TRILOGY
a. More Than Metaphysical Doubt/Scintilla of Evidence
• Mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to meet
the burden of production.
• The plaintiff must present sufficient evidence (more than a mere scintilla of evidence) on which the jury
could reasonably find for the plaintiff.
• The Opposing party must do more than simply show that there is some metaphysical doubt as to the
material facts.
Matsushita Elec. Industrial Co. v. Epstein
• Facts: Antitrust claim-price fixing for televisions.
• Conclusion: When the moving party had carried its burden, the opposing party must do more than
simply show that there is some metaphysical doubt as to the material facts.
o Effectively puts an end to “slightest doubt” test
o Need more than a scintilla of evidence for case to proceed (increases the standard).
b. Standard of Proof for SJ
• A court must use the standard of proof that will be used in deciding a case at the trial on it merits when
deciding a motion for summary judgment.
Anderson v. Liberty Lobby, Inc.
• Facts: D's (Anderson's) magazine published articles about P's organization that portrayed them as Nazi
and Fascist. P alleged that the information in the articles was false and derogatory and sued D for libel.
• Conclusion: Here, defamation case involves constitutional right so the standard to prove actual malice is
“clear and convincing evidence.” The judge would need to apply the same standard of proof in
reviewing the evidencing for summary judgment. Need to consider this elevated burden of proof for S.J.
o The inquiry involved in a ruling on a motion for summary judgment necessarily implicates the
substantive evidentiary standard of proof that would apply at the trial on the merits.

37
5. RULE 56(c): SHIFTING BURDEN OF PRODUCTION
a. Rule 56(c)(1): Procedure to Support Motion for SJ
• A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
o Citing to a particular part of materials in the record
o Showing that the materials cited do not establish the absence or presence of a genuine dispute or
that an adverse party cannot produce admissible evidence to support the fact.
• Rule 56(c)(2)- A party may object to material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.
o Affidavits are acceptable for SJ even though it is admissible in trial because the testimony can be
presented in an admissible form (i.e. deposition or witness testimony)
• Rule 56(c)(3)-The court need only considers cited materials--specifically excludes pleadings as part of
the evidence to the considered since they are not written under oath
o Exception: unless “verified pleadings” or considered for the purpose of an admission of fact
b. If The Movant Has The Burden Of Proof At Trial
• Movant need to show that a reasonable finder of fact must find for him (no dispute of material facts) to
shift the burden of production to the non-movant.
• If the burden of production shifts, then the non-moving party must respond with sufficient evidence that a
reasonable finder of fact could find for him/her
c. If The Movant Does Not Have The Burden Of Proof At Trial
• Movant can shift burden of production in two ways:
1. Affirmative evidence negating essential element of a claim (Adickes)
• Burden shifts to nonmovant when the moving party provides affirmative evidence that negates an
essential element of the plaintiff’s claim.
2. "Showing" materials that are cited are insufficient to establish an essential element (Celotex)
• Under Rule 56(c)(1)(B), the defendants can motion for SJ by showing that the cited
materials/evidence are insufficient to establish an essential element or establish the presence of a
genuine issue of material fact. (Point to the record)
• Showing does not mean prove—“tell, demonstrate, point out” is sufficient.
• P can use SJ to knock out possible defenses by saying that D has no evidence to back up their
defense and it should not be allowed in trial.
• If the burden shifts, then the non-moving party must respond with
• Sufficient evidence that a reasonable finder of fact could find for him/her
• More than metaphysical doubt/ mere scintilla as to the material facts (Matshushita)

6. SHIFTING THE BURDEN OF PRODUCTION FLOW CHARTS

Scenario 1: P moves, P has burden/ D does not have burden

Moving Party Moving Party Non-Moving Party Responds

Summary P show no dispute of Non-moving party

judgment material facts and a must respond with
(screen to reasonable fact finder sufficient evidence
prevent burden MUST/SHOULD find that a reasonable
of trial) for P finder of fact could
find for him

Scenario 2: D moves, D does not have burden/ P has burden

38
Moving Party Moving Party Non-Moving Party Responds
Adickes: affirmative
evidence negating the
claim
Summary Ex: the light is green Matshushita: non-
judgment moving party responds
(screen to with more than a
prevent burden Celotex: just metaphysical doubt,
of trial) demonstrate that non- not mere scintilla
moving party did not
meet the burden of
production
Role of The Judge: SJ Examples Ex: No proof the light
Simmons v. Rite of Passage was red
• D sued for disability and discrimination but did not exhaust administrative remedies (jurisdiction
prerequisite). Moving party granted summary judgment. D moved for SJ, satisfied Celotex standard, P
couldn’t respond with more than metaphysical doubt so SJ granted.

Scott v. Harris
• Car chase police that ended with the police ramming P off the road. P sued the police department for
using excessive force. Application of summary judgment standard: record (video) blatantly contradicts
P’s version of events to that no reasonable jury could believe it. Because there is no genuine issue of
material fact, summary judgment is appropriate.

7. RULE 56(d) – WHEN FACTS ARE UNAVAILABLE TO NONMOVANT

• If nonmovant shows that it cannot present facts essential to justify its opposition, the court may:
o Defer to consider motion or deny it
o Allow time for discovery
o Issue other appropriate orders
• Allowable under Rule 11(b)(3)—Party does not have the evidence now, but can reasonably expect to obtain
it with further discovery
o Moving party would response by claiming that there was enough time for the party to get the
necessary evidence for their case.

TRIAL
A. Phases of Trial
1. JURY SELECTION
• Voir Dire: Questioning the Witnesses
o See and speak to figure out the truth
o Basic inquiry and strike someone from the random jury pool for “cause” (bias)
• Preemptory strikes—each side can strike out two people for whatever reason and without explanation
• Not allowed to strike jurors because of race and gender because it’s unconstitutional
2. OPENING ARGUMENTS
• Give jury a road map of what is happening and what the party is arguing.
• Framing the sequence of events
3. PRESENTATION OF EVIDENCE
• Live witnesses—Q&A format to regulate the evidence input that will go to the jury
39
 • Screen out prejudicial evidence that may not be probative (i.e. hearsay)
• Rules about when you can use character/ prior bad act as evidence
• Usually the party with the burden of persuasion goes first
4. CLOSING ARGUMENTS
• Synthesize evidence and frame it to persuade jury to find in your favor
• Tries to persuade the jury that the party has met their burden of proof and the other side did not.
5. JURY DELIBERATONS
• Judge decides on the jury instructions and what the jury should consider.
• Black Box: The deliberations are confidential and there is no control over the jury’s deliberation so the
Court tries to control the verdict by regulating the evidence and instructions that are allowed in
deliberations.
• General verdict: guilty/ not guilty and award of damages
• Special verdict: ask specific questions about verdict

B. Right to Jury Trial

1. 7TH AMENDMENT
• In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of 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 the common law.
• Parties have a constitutional right to a jury trial in law—jury trial is a constraint on the power of the
judges.
a. Originalist Views
• The constitution should be understood in the same way the people who adopted it understood it.
• Freezes basic rules and principles
b. Living Constitution
• There are societal changes so the constitutional interpretation needs to adapt
• Understanding constitution needs to fit with current society.

2. MERGING LAW AND EQUITY

a. Traditional Division Of Law and Equity
• Common Law Issues:
o Right to jury trial
o Like the writ system before
o Usually monetary damages
• Equity Issues: No Remedy at Common Law
o No right to jury trial
o Declaratory relief—statement of what are someone’s legal obligations
o Injunctions—parties are forced to do something, not just pay money
b. Modern Day: Law and Equity Are Merged
• Law and equity is merged now so its difficult to differentiate when there is a right to jury
o There are remedies at law now for issues that would be considered equity in the past.
• If the claim has both common law and equity claims, a jury must resolve common law issues of fact
first before the equitable claims to preserve the party’s right to jury trial.
• Legal issues are decided BEFORE equitable issues even if the legal issue is a counterclaim and filed
after the equity claim to preserve the right to a jury trial
o If the judge decides the equity issue first, the jury verdict would have to follow the judge’s
decision so it would not be a fair trial.
o Instead, the equitable decisions will be based on the jury decision on the legal issue.

40
 Dairy Queen v. Wood
• Facts: D bought the use of P’s DQ trademark. D stopped paying licensing fee and P sued on three
causes of actions that included equitable issues (asked for injunction against D using trademark and D
collecting money using the trademark) and legal issue (asked for the money owed).
• Analysis: Current system requires same court to hear both claims but to preserve right to jury trial for
common law claim, need to adjudicate the factual claims first by having a jury find the common law
issues first, then the court could decide equity claims
• Conclusion: Historically account claim would have been an equitable, but in this case, the court held
that the essence of the claim is legal damages from breaching a contract. There is a remedy at law so
it’s a legal issue and it must be decided before the equity claim.

Beacon Theatres, Inc. v. Westover (1959)

• Facts: Fox sued BT for declarative and injunctive relief (equitable) after BT threatened them with
lawsuit. BT had to counterclaim with antitrust damages and demanded jury trial. DC held that the
case should be held without a jury trial because Fox’s claims were equitable. BT petitioned for
SCOTUS review because their counter claim was a legal issue and they wanted jury trial.
• Analysis: Historically, equitable claims could be decided before legal claims because there were
chances there are no remedy at law. SCOTUS rejects this historical interpretation because BT had to
bring up the counterclaim in this case or they would lose the chance to bring it up again.
o Only equitable if there is no remedy at law.
o Since law and equity are merged, the jury must decide legal issues before the judge can decide
equitable claims.
• Conclusion: To preserve the right to jury trial, court has to hear common law claims first so the
issues of fact are resolved by a jury. The equitable claims would be decided by on the jury’s findings.
o Deciding equitable claims first (judge decide) will go against policy favoring jury trial.

3. WAIVING/ DEMANDING THE RIGHT TO JURY TRIAL

a. Rule 38- Demand for Jury Trial
• Rule 38(a): The right of trial by jury as declared by the Seventh Amendment to the Constitution—or
as provided by a federal statute—is preserved to the parties inviolate.
• Rule 38(b)(1): A party may demand a jury trial if the party has a right to jury trial by serving the other
parties with a written demand no later than 14 days after the last pleading.
• Rule 38(c): A party may demand a jury trial for every issue or just certain issues.
• Rule 38(d): A party waives a jury trial unless its demand is properly served and filed according to 38b
or both parties consented or stipulated.
b. Rule 39- Trial By Jury or By The Court
• Rule 39(a): If demands, all issues will be tried by jury; unless, the court, on its own or by motion,
finds that there is no federal right to a jury trail
• Rule 39(b): If no demand, the court will decide the case.
o Upon motion, court has discretion to grant jury trial later on any issue for which a jury trial
might have been demanded.
c. Rule 39(c)-Advisory Jury & Jury Trial By Consent
• For cases that does not have right to jury trial, court, on its own or by motion, try the case with an
advisory jury
• The court may, with consent of parties, try the issue with a jury whose verdict has the same effect as
if the jury trial was a matter of right.
d. Exceptions: Cases Against the U.S.
• There is no right to a jury trial in cases against the United States.

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JUDICIAL CONTROL OF THE VERDICT
A. Judgment as a Matter of Law
1. RULE 50: JUDGMENT AS A MATTER OF LAW IN A JURY TRIAL
a. Rule 50(a)- JML (Formally Directed Verdict)
• In general, if a party has been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue,
the court may resolve the issue against the party and grant a motion for judgment as a matter of law
against the party.
• The evidence must be viewed in the light most favorable to the nonmoving party. The court should
make all reasonable inferences in favor of the nonmovant.
• The judge does not act as the 13th member of the jury by weighing the evidence to see who has the
stronger case. The court is determining if there is a dispute as to a material issue of fact so that the
case should even go to the jury to decide.
• Timing- Rule 50(a)(2): A motion for JML may be made at any time before the case is submitted to
the jury.
b. Rule 50(b)- Renewed JML After Trial (Formally JNOV) or New Trial
• If the court does not grant JML under Rule 50(a), the moving party may file a renewed motion after
the verdict for JML under Rule 50(b) no later than 28 days after the judgment.
• JML must be filed before the case is submitted to jury in order reserve the right to renewed the
motion for JML under Rule 50(b).
• In ruling on the renewed motion, the court may:
o Allow the judgment/verdict
o Order the new trial (Rule 59)
o Direct the entry as judgment as a matter of law
• Court can grant JML after the verdict is issued if the court finds that a reasonable jury would not have
the legally sufficient evidentiary basis to rule the way they did.
o A way to control the verdict if the court thought that the jury made an unreasonable verdict—
literally undoes what the jury concluded and enters judgment for the other side.
c. Rule 50(c)- Granting JML; Conditioning New Trial
• If the court grants a renewed motion for JML, it must also conditionally rule on any motion for a new
trial by determining if a new trial should be granted if the JML is reversed or vacated on appeal.
o The court must state the grounds for granting or denying the motion for new trial
• Conditioning the ruling on new trial does not affect the finality of the ruling on JML. If the JMl is
reversed, the new trial must proceed unless COA orders otherwise
• Rationale: The District Court was present for the trail proceedings so they would be more
knowledgeable about the witnesses and the evidence and would be better equip than the COA to
rule on whether a new trial is warranted.

2. CONSTITUTIONALLY OF JML
a. JML Does Not Violate 7th Amendment
• The court is not taking the power away from the jury—only seeing if there is enough to go to the jury.
• Having a screen to jury deliberation is only testing the burden of production instead of violating
constitutional civil rights.
• If there is not enough evidence for a reasonable jury to rule in favor of a party, then the court should not
leave it up to the jury in the event that the jury makes an unreasonable decision.
• There is no constitutional right to a jury trial against the United States.
• Contradiction: Why have jury as the fact-finder, but not trust them to make a reasonable decision when
there is not sufficient evidentiary basis to rule for one party.

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 Galloway v. United States (1943)
• Facts: P filed a suit in 1938 against the US government for denying disability benefits. P argued
mental disability was total and permanent before the insurance policy expired in 1919. P needs to
prove that there is continuous and permanent insanity so he has to show that his insanity was back as
far as 1918.
• Analysis: Court said burden of production was not satisfied because P had burden of presenting
enough evidence to find in his favor and had an 8-year gap without no evidence between 1918 and
1938. P’s witnesses’ testimony was insufficient.
o P had the burden of proof that entails the burden of production to prove that he was
continuously insane.
o The point of going jury trial is to allowed the jury to make reasonable inferences from evidence
presented in the trial, but the court does not require the jury to make decisions based on
insufficient information.
• Conclusion: JML is appropriate because there is a large gap time where there is no information so the
jury cannot make a plausible inference that there was continuous and permanent insanity. P did not
meet his burden of product so the court held that a reasonable jury would not have a legally sufficient
evidentiary basis to find for P on the issue.
• Dissent: The court is close to weighing the credibility of a witness and rejecting his testimony, which
is the jury’s job.

b. JML After the Verdict Does Not Reexamine The Verdict

• JML after the verdict is not unconstitutional because the verdict shouldn’t have happen in the first
place—postponement of the JML decision.
o The renewal of the motion allowed the court to “reach back in time” and decide the JML motion
as if the verdict was not issued.
• Historically, it was permissible to toss cases out or take decisions away from the jury—not just a
demurrer, but also JML (directed verdict and judgment notwithstanding verdict)
• JML after the verdict is only constitutional when it is a renewed motion—JML was motioned before
submitting the case to the jury.
o Slocum: JNOV is not constitutional
o Redman: JNOV is constitutional because it is a renewed directed verdict

3. VIEWING THE EVIDENCE FOR JML

a. Probabilistic Evidence
• Probability evidence is not sufficient to satisfy the burden of production.
• Ex: Blue Bus Hypo: D owns 80% blue buses, and a blue bus hits P. If court accepts this probabilistic
evidence, then D will unjustly pay for 100% of damages even though D has 80% of the market.
b. Authenticity of Evidence
• Whether or not a crucial piece of evidence is authentic is a jury issue. The court cannot decide the
issue by granting JML.
Guenther v. Armstrong Rubber
• Facts: P was hurt because tire explosion. P and his expert witness disagree about the identity of the
exploding tire and whether he belonged to the defendant.
• Analysis: P’s evidence noted that D’s company manufactured 80-85% of the tires sold at the store.
Court rejects this as a basis for concluding that the tire belonged to D, but also held that the DC
cannot conclude on the authenticity of the evidence by granting JML because it is for the jury to infer
about the authenticity of the evidence.

43
 • Conclusion: JML is not appropriate because there is disagreement between one party and his
witnesses concerning an essential element of a case. The authenticity of the element is for the jury to
decide so the case should to the jury.

B. New Trial
1. RULE 59- MOTION FOR NEW TRIAL
a. Rule 59(a)
• Court may grant the motion if:
o After jury trial, for any reason which a new trial has been previously been granted, OR
o After non-jury trial, for any reason which a rehearing has previously been granted in equity
§ Equity - nonmonetary damages, about someone's rights (injunction)
b. Rule 59(b)- Timing
• A motion for NT must be filed no later than 28 days after the entry of judgment
c. Rule 59(d)- Court’s Initiative
• The court, on its own, may order a NT for any reason that would justify granting one on a party’s
motion.
• The court must specify the reasons for granting NT in its order.
o For example: the damages are excessive or insufficient (against the clear weight of the
evidence)
d. When can the District Court Grant New Trial
• Court may on motion grant a new trial on all or some issues if:
1) There is a prejudicial error
§ Jury misconduct
§ New evidence
§ Verdict was based on evidence that was false and could result in miscarriage of justice
2) The verdict is against clear weight of evidence
e. When can the COA Grant New Trial
• On appeal, the Court of Appeals may grant a new trial if there is a clear abuse of discretion by district
court.
o Deference to the jury’s verdict is not abuse of discretion
f. Two Layers of Deference
• The COA defers to the DC’s decision, and the district judge defers to the jury’s decision
• Rationale:
o The district judge is in good position to make judgment much like the jury would, in a better
position to judge
o COA is reviewing the case from a paper record because it did not witness the case and trial
proceedings like the jury and the district judge.

Ahern v. Scholz
• Facts: Contractual dispute with manager and rock star where there claims on both sides against the
other. The DC ruled in favor of the manager and the rock star moved for new trial because he
disagreed with verdict. The motion for new trial was denied and the rock start appealed.
• Analysis: The standard of review for new trial is abuse of discretion. Jury could have decided either
way and there’s no reason to say it made a mistake by deciding how it did.
o The DC judge did not abuse his discretion by denying a new trial because the Jury’s verdict
was not against the clear weight of the evidence.
o Disagreeing with the verdict or the judge’s decision is not a sufficient to grant new trial
• Conclusion: A DC’s decision not to grant a motion for a new trail may only be overturned upon a
finding that the Dc’s decision constituted a clear abuse of discretion in determining the jury verdict
was not against the great weight of the evidence.
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2. DIFFERENCES BETWEEN NEW TRIAL AND JML
a. Role of the Judge
• NT: The court can grant new trial on its own for its own reasons
• JML: The court can only grant JML if its motioned by the party under Rule 50
b. Weighing/Viewing The Evidence
• NT: The judge can weigh the evidence to see if the verdict against the clear weight of the evidence.
The evidence does not need to be viewed in the light most favorable to the nonmovant. Factual
judgment rather than a legal judgment.
• JML: The judge cannot weigh the evidence. The evidence and reasonable inference are view in the
light most favorable to the moving party.
c. Standard To Grant Motion
• NT: Verdict is against the clear weight of the evidence
• JML: Impossible for a reasonable jury to decide for that party
o Is the burden of production met? Legal determination
d. New trial is easier to grant because the judge can consider and weigh the evidence. Harder to grant a JML
before/after - because taking decision away from jury.

3. CONDITIONING NEW TRIAL

a. Remittitur: Constitutional
• The procedure by which a trial judge gives a plaintiff who has received an excessively favorable jury
verdict the option of accepting a specified reduction in the jury verdict or submitting to a new trail
• Parties can voluntarily agree to a new amount after a judge says a new trial will be ordered but the
judge cannot order for a new trial to compel parties to settle or force the party to accept the remit.
• Remittitur is constitutional because it does not re-examine the jury’s verdict (7th amendment). The
reduced award is still the jury verdict; the court just lopped off the excrescence.
b. Additur: Unconstitutional
• Court cannot give the defendant the condition to accept a specified increase in the jury verdict or a
new trial would be granted.
• Addittur is no in the court’s discretion. It is considered re-examining the jury’s verdict because it is
above what the jury decided.
• The judge can still order a new trial if the judge thinks the verdict is insufficient and against the
weight of the evidence, but cannot new trial on the defendant consenting to a increased verdict.

Dimick v. Schiedt (1935)

• Facts: P sues D for personal injury and the jury returned a verdict for P for $500. P moved for new
trial because the damages were inadequate. Judge ordered a new trial unless D consent to increase the
damages to $1, 500
• Analysis: Based on English common law, the practice of remitting excessive damages was mildly
disapproved, but increasing the damages was expressly prohibited. The court may not agree that there
is a constitutional difference between increasing and decreasing the jury’s verdict for damages, but
there is historical support for remittiturs so the court will allow it.
• Conclusion: Although the damages awarded by the jury may be deemed inadequate, the court has no
power to increase them even though the defendants consent to such an increase because the increase
goes beyond what they jury authorized.

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C. Verdicts
1. GENERAL VERDICTS
a. “Black Box” Deliberation (Default Method)
• Jury simply decides who prevailed and if applicable what were the damages
• Jury returns the verdict without any explanations.
2. SPECIAL VERDICTS
a. Rule 49(a)- Special Verdict
• The jury returns a special verdict by answering to a series of questions posed by the judge and
submits in written form their special findings. The judge applies the law based on the jury’s fact-
finder answers and enters the verdict.
o Usually a list of yes or no questions about the elements of the issue
• The court must give the instructions and explanations necessary to enable the jury to make its findings
on each submitted issue.
b. Rue 49(b)- General Verdict with Interrogatories
• The jury returns a general verdict with written answers to specific questions (interrogatories).
• Rule 49(b)(2)- When the general verdict and the answers are consistent, the court must approve an
appropriate judgment on the verdict and answers under Rule 58.
c. Viewing the Answers and Verdict
• The court must find a reasonable way to read the answers and the verdict to express a coherent view
of the case.
• The court must find a way to reconcile the answers and verdict to make them consistent—very
deferential to the jury.
d. Mechanism If Answers And Verdicts Are Inconsistent (Rule 49(b) Only)
• Rule 49(b)(3)- Answers Inconsistent with the Verdict
o When the answers are inconsistent with the verdict, the court may:
§ Approve an appropriate judgment according to the answers notwithstanding with the
jury’s general verdict
§ Direct the jury to further consider its answers and verdict
§ Order a new trial
• Rule 49(b)(4)
o When the answers are inconsistent with each other and the verdict, the court must not enter the
judgment. The Court must:
§ Direct the jury to further consider its answers and verdict; or
§ Order a new trial
• Any objections under these rules must be made before the jury is dismissed or the objection is
waived.
o There is no mechanism for a special verdict under Rule 49(a), so the objection is not waived if
on objected before the jury is dismissed.
e. Choosing The Type of Verdict- Judge’s Discretion
• Deciding between special verdicts or general verdicts is within the court’s decision—a party may ask
for a certain type if it is more advantageous.
• Cagey trial lawyers will request special verdicts when they sense they are losing so there is
opportunity to object to any potential inconsistency
• If the party winning, a general verdict is better because the other party cannot object to any
inconsistencies since the jury does not provide any explanations or answers.
o General verdicts are harder to challenge
f. Reasons For or Against Special Verdicts
• Support for Special Verdicts
o Increases transparency so the jury deliberation is no longer a black box
o May help for more complex cases- give directions for deliberation
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 o Prevents the jurors from deliberating just based on their opinions and not the law
o Court’s perspective: Court would want to prevent gamesmanship and challenges to jury verdicts
in subsequent litigation
• Opposition Against Special Verdicts
o It is better not have a checklist—a more holistic deliberation rather than a scientific process.
o In some cases, jury is right to ignore law and just deem what is justice.
o Protects the jury deliberations and verdicts from objections

Whitlock v. Jackson (1991)

• Facts: P sued the police for wrongful death, battery, and use of excessive force during a search and
seizure (4th amendment). Jury awarded P punitive damages but found that police did not violate
constitutional of using excessive force. P appealed claiming that there are inconsistencies in awarding
punitive damages (malice), but no excessive force.
• Analysis: The special verdict under 49(a) does not have the same mechanism to object to
inconsistencies like in 49(b) so P did not waive the right to object after the jury is dismissed. The
court held that the legal standard for malice and excessive force are different so it is not inconsistent
for the jury to find for one, but not the other.
o The court must find a way for answer to match with jury’s verdict to give deference to the
verdict.
o There is evidence to support to jury’s verdict so alleged inconsistencies can still be harmonized.
• Conclusion: The court must search for a reasonable way to read the verdicts as expressing a coherent
view of the case, and if it possible to make the jury’s answer to the special interrogatories consistent,
they must be resolved that way even if strained.
o Jury’s answers to interrogatories are not inconsistent or a sufficient basis to grant new trial if the
there is a way of reconciling to the answers.

3. IMPEACHMENT OF THE VERDICT

a. Using Juror’s Testimony To Impeach the Verdict
• Individual jurors provide evidence of what happened in juror deliberations and whether they
deliberated according to the instructions.
• The juror’s testimony can be used as basis to argue for a new trial, but jury verdicts are seldom
overturned for misconduct (juror’s passions and prejudices)
• If someone else has evidence on what jury did that was improper, it is accepted if it is within the
scope of the rules.
b. Mansfield Rule: Traditional View
• Juror’s affidavits are not accepted—no witness should be hear to allege his own turpitude
c. Iowa Rule: Intrinsic v. Extrinsic Evidence
• Juror’s testimony about extrinsic evidence, but not intrinsic evidence about the jury verdict can be
used to impeach the jury verdict.
o Extrinsic Evidence: Overt actions and outside factors that are proven objectively are allowed
o Intrinsic Evidence: Evidence about juror’s subjective mindset or mental thought process are not
allowed
d. Rule of Evidence 606(b): Mansfield Rule & 3 Exceptions
• A juror may not testify as to any matter or statement occurring during the course of they jury’s
deliberations or any other juror’s mind or emotions as influencing the juror to assent or dissent from
the verdict. (Essentially Mansfield Rule)
• Exceptions:
1) Mistake in filling out the verdict form
2) Extraneous prejudicial information
§ Considering outside information that was improperly brought to the attention of the jury

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 3) Improper outside Influence
§ Someone outside the jury room influencing the jurors

Sopp v. Smith (1963)

• Facts: Juror drove the scene of the accident and tested the claims of the witnesses. P sought a new
trial based on this testimony. TC denied the motion because the evidence was inadmissible. P
appealed.
• Conclusion: COA applied the Iowa Rule, not the Mansfield rule—extrinsic evidence is admissible.
The fact that the juror went to crime scene and tested the claims is extrinsic evidence because it can
be objectively proven. The TC erred in denying the consideration of the evidence.

People v. Hutchinson (1969)

• Facts: D produced a juror’s affidavit that alleged the bailiff had made remarks tending to pressure the
jury into a guilty verdict and hurry deliberation. TC refused to consider the evidence, ruling that a
juror cannot impeach the verdict. (Mansfield Rule)
• Conclusion: SCOTUS held that jurors should be able to impeach a verdict when the grounds for
impeachment for objectively verifiable. The alleged remarks of the bailiff are verifiable. Under the
federal rule, the bailiff would be improper outside influence that affected the jury’s verdict. The TC
erred in denying the affidavit.

e. Voir Dire Error

• When there was a
i. Whenever an error in voir dire exists, verdict should be impeached
ii. Jurors need to disclose info asked of them

f. Policy considerations:
• Intrusion vs. privacy of jury
o Secrecy of jury deliberation legitimizes the jury system, which settles issues in inscrutable way
o Shield jury from public scrutiny and harassment by parties, so the process is more honest and
reasonable
o The court does not always accept juror’s testimony because it does not want to create an
incentive for the losing party to question and interrogate the jurors to obtain evidence to the
impeach the verdict.
g. Other Examples Of Juror Impeachment
Scenario IOWA FEDERAL
Drinking juror Overt act Not outside influence
Tanner v United States
The verdict was upheld despite evidence of
several jurors’ heavy alcohol and drug use
during the trial
Juror uses Google maps to look at Overt act Extraneous prejudicial information
scene of accident
Juror instructed not to award punitive Intrinsic to the verdict – Exceptions do not apply – jurors’ method
damages so they increased part of the reasoning to reached their decision
compensatory award to include a
punitive component
One juror is a boss, who threatens Overt act Not an outside influence (internal to jury
another juror Not intrinsic to verdict deliberation)
reasoning

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APPEALS
A. Appellate Courts
1. WHY ARE APPEALS IMPORTANT?
• Second look at issues with more objectivity.
o Trial courts proceed in a fast pace and make decision quickly because of docket pressure, but COA
have more time so they can have deliberate focus on the case.
• Promotes fairness and just resolution of cases
• Promotes uniformity and consistency when interpreting the law for the entire region/district
• More than one judge on the bench—usually 3 judges in COA
o Parties can request en blanc review—all the COA judges sit together to review the judgment of the
3-panel judges
2. STANDARD OF APPELLATE REVIEW
a. De Novo Review
• New/ Fresh look at the evidence to answer legal questions
• No deference to the district court’s decision and findings
b. Abuse of discretion
• Looks at the evidence to see if the judge acted within the realm of judicial discretion.
• There is some deference to the lower court when reviewing if the judge was correct in making the
ruling or interpretation.
o Overturn discretion ruling only if there is abuse
o Not abuse as long as stay in range of things permissible
c. Clear error
• COA is looking at the fact to see if there are factual errors or obviously wrong findings by the
district court
• COA gives a high level of deference to the lower courts.
3. TIMELY NOTICE
• Appeals are not automatic and need to be filed within a specified time period.
• Appellate courts have limited jurisdiction depending on the time period. If the appeal is filed after the
period ended, then the court will no longer have the jurisdiction to hear the case.

Bowles v. Russell (2007)

• Facts: Bowles was convicted of murder. He has 30 days to file an appeal, but failed to do so. Under
the federal statute, the court could grant a 14-day extension to file an appeal. The district court
granted him 17 days to file. Bowles filed his notice of appeal within the court’s 17 days extension,
but after the 14 days. The COA held that the notice was untimely filed and did not have the
jurisdiction to hear the case
• Analysis: SCOTUS held that failure to file a notice of appeal within the statutory time period
deprived the appellate court of jurisdiction to hear the appeal. Congress decides the constitutional
bounds of whether federal courts can hear cases. Congress limited the time period to file an appeal so
it must be dismissed for want of jurisdiction.
o SCOTUS rejected Bowles’ contention that he relied on the district court’s extension of 17 days
because the DC had not authority to extend the days longer that what was set out in the statute.
o It is up to the party’s to make sure that the deadlines are met.
• Conclusion: Filing a timely notice of appeal is “mandatory and jurisdictional” so if the time limited
expired, then the appellate court no longer has the jurisdictional authority to hear the case.

49
B. Final Judgment/Decision
1. 28 USC § 1291-FINAL JUDGMENT RULE
a. General Rule: A party is entitled to appeal when there is a final judgment. COA has jurisdiction over DC’s
final judgment.
b. A final judgment is one that ends litigation on the merits and leaves nothing for the trial courts to do but
execute the judgment.
c. When a party loses a ruling on an interlocutory order, the party can appeal if it qualifies as an exception to
this rule, otherwise, the party had to wait until final judgment.
d. Rationale: The final judgment rule prevents the parties from appealing every decision and bouncing
between the DC and COA
• Piecemeal appeals build in many delays and make case difficult to manage
e. Post-trail Motions
• If the trial court grants a timely motion for new trial, the judgment is no longer final and is not
appealable
• If the trial court grants or denies a renewed motion of judgment as a matter of law, then the judgment
is final because either ruling will end litigation.
• Side Note: The 30 day time for appeal start to run upon the ruling on the motion, not the initial entry
of the judgment

2. EXCEPTIONS AND QUALIFICATIONS TO FINAL JUDGMENT RULE

• There are occasions when the court will allow for an appeal in the middle of the case when there is not a
final decision/judgment. This is a called an interlocutory appeal.
a. Pragmatic Understanding
Quackenbush v. Allstate Insurance Company
• Facts: P filed a suit in state court and D tried to remove to federal court on diversity grounds. The
district court applied the Burford abstention and remanded the case back to state court. D appealed the
abstention.
• Analysis: P argued that the litigation is still going in state court so it's not final decision and under 28
U.S.C Section 1447(d), remanding orders back to state court is not reviewable on appeal.
o SCOTUS held that 28 U.S.C Section 1447(d) did not apply to abstentions. The DC’s abstention
is final judgment because it terminates the federal court proceedings.
o D is not appealing the remand, but the abstention, which are reviewable in appeal because the
party’s litigation was put out of federal court.
• Conclusion: It doesn’t matter that litigation would continue in state court. Abstention is an
appealable final decision because the party was “effectively put out” of federal court and ended
proceedings in federal court.
b. Collateral Order Doctrine
• Judicial interpretation of the statute that allows interlocutory appeal of an important issue that is
“collateral” to the merits of the underlying dispute so review will not disrupt the case by the trial
court.
• Collateral Order Decision Test- The issue must be:
1) Conclusive—fully decided by the trial court,
2) Resolves an important question separate from the merits, and
3) Effectively unreviewable on appeal after a final judgment

Cohen v. Beneficial Industrial Loan Corporation (1949)

• Facts: Shareholders sued company for breach of contract. New Jersey has a statute that says party
had to post a bond to ensure that he could pay attorney fees if he lost the case. Shareholders appealed
the order to post the bond.

50
 • Analysis: SCOTUS articulated collateral order doctrine allowing interlocutory appeals before a final
judgment on issue that is separate and effectively unreviewable after a final judgment.
o Interlocutory appeal will determine whether bond requirement is necessary (separate issue than
issues in claim)
o Immediate appeal is needed to prevent further unnecessary, frivolous suits
• Conclusion: The bond order was appealable because the bond question could be treated as a final
decision. It is a final disposition of a claimed right, which is not an element of the cause of action and
separate from the merits of the case.

Mohawk Industries, Inc. v. Carpenter (2009)

• Facts: DC ordered Mohawk to disclose info usually protected by attorney client privilege because the
info had been disclosed in another suit. P appealed the order under the collateral order doctrine.
• Analysis: SCOTUS applied the 3-prong test for collateral orders and held that the order is not a
collateral because it failed the 3rd prong: effectively unreviewable after the final judgment.
o P argued that it was a collateral order and therefore appealable because once the information is
disclosed, the harm is done and it is effectively unreviewable.
o SCOTUS rejects this argument—it is possible to review the order to disclose after the final
judgment. If on appeal after the final judgment, COA finds that the DC made an erroneous
decision to allow access to privilege info, then they reverse the whole decision and strike the
evidence from the record.
o Balancing inquiry: SCOTUS focuses on the entire category to which a claim belongs—ruling on
whether order of waiving attorney-client privilege is appealable in any case, not just this specific
case.
§ SCOTUS wants to protect A/C privilege, but also does not want the court order to be
appealable in every case.
• Conclusion: The order to disclose is not a collateral order because it is not ineffectively
unreviewable. If there is a need for immediate review, a party could ask for a writ of mandamus, ask
for certification for interlocutory appeal, or defy order and incur penalties for contempt.
o The way to create more types of collateral orders is through the rule-making process instead of
making the court map out exceptions through interpreting 28 USC section 1291.

c. 28 USC § 1292(b) - Certification for Interlocutory Appeal

• Permits the interlocutory review when both the trail judge and the appellate court agree that the order
must involve a controlling question of law.
• The controlling question must be one as to which there is a substantial ground for difference in
opinion; and the order may materially advance the ultimate termination of litigation
• The DC has the discretion to grant interlocutory appeal and certification of the issue to the COA
d. Writs Of Mandamus
• COA may issue a writ in very limited to extraordinary circumstance in which the DC has done
something it has no power to do or has do abused its discretion as to have usurped power

PRECLUSION
• Preclusion determines the degree of legal peace a defendant is entitled to after completing litigation on
issue.
• Preserves integrity of the judgment and judicial efficiency because the same claim or issues do not need to
be re-litigated.

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A. Claim Preclusion- Res Judicata
1. DEFINITION
• Under the doctrine of res judicata, a final judgment on the merits of an action precluded the parties or their
privies from relitigating issues that were or could have been raised in that action
• Claim preclusion prevents P litigating the same claim/action that was resolve on the merits in a prior
judgment with the same defendants
2. ELEMENTS OF CLAIM PRECLUSION
• Claim preclusion always involves at least two cases
• Claim preclusion prevents P from retrying an issue when it involves the:
a. Same Party
b. Same Factual Transaction, Same Claim
c. The Case Was Tried On Its Merits
• In most cases,
3. TRANSACTION TEST
• If the claim arises from the same transaction as a previous case, it is barred by claim preclusion even if the
legal theory is different.
• 2nd Restatement: What factual grouping constitutes a “transaction, “ and what groupings constitute a
“series”, are to be determined pragmatically, giving weight to such consideration as whether the facts are
related in time, space, origin, or motivation, where they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expectations or business understandings or usage.
• The plaintiff needs to bring all possible legal theories for the claim in the same case or the claim is lost and
barred by claim preclusion.
• Prevents a plaintiff from refilling the same cases numerous times under a new legal theory because a final
judgment extinguishes the plaintiff’s claim. Plaintiffs must be diligent in the first case because he won’t
have another opportunity to retry the same case under another theory.

Manego v. Orleans Board of Trade

• Facts: Manego applied for a license for liquor and the license for a disco with the board of trade.
There is a skating rink (owned by the bank) nearby. The man (Willard) who is managing the rink is
also the president of the Board. Manego’s application is denied. The skating rink is sold and they
have reapply for license. They plan to open the disco and ballroom and they were approved for the
license.
• Procedural History: 1st Case--Manego sued Board of Selectman, the Bank, and Willard for racial
discrimination conspiracy. 2nd Case—Manego sued the Board of Trade, the Bank, and Willard for
anti-trust conspiracy based on the same facts.
• Analysis: P’s argument: The claims are different and not from the same transaction—nature of the
conspiracy is different, the parties are different (some common), and different allegations.
o Court denies the argument because both claims arose from the same transaction. They have
different legal theories, but both the same result from keeping him from getting a disco.
o Court also rejected that P did not have access to all the facts in the first case. COA held that P
could have discovered this information if he was more diligent in his efforts. Also, different
facts didn’t matter because the transactions were still same.
• Conclusion: Manego needs to raise all legal theories the first time or he will lose the chance to try the
theory forever. A different legal theory will not create a new claim so it is still barred by claim
preclusion.
o Court of appeals did not bar Manego’s claim against the Board of Trade under claim preclusion
because it was not a defendant to the first suit.
o But SJ is still proper because Manego does not allege facts sufficient to over come the
protection provided by Noerr-Pennington Doctrine.

52
 Landrigan v. City of Warwick
• Facts: 1st case: P sued for excessive force by the police. 2nd Case: P sued for police cover up.
• Analysis: The suit of alleged excessive force does not bar another suit on alleged cover-up because
they are based on different factual transactions.
o The suit of alleged excessive force does preclude a separate suit on assault and battery because
it’s from the same transactions.
• Conclusion: Excessive force cause of action and cover up cause of action are two different claims
because the factual bases for cover up is different. Claim preclusion does not bar the second suit.
o Excessive force and cover up are two different claims because the factual bases for cover up is
different
§ Facts are related, but different set of facts are used to prove the claims

4. CLAIM PRECLUSION FOR DEFENDANTS

a. Rule 13(a)- Compulsory Counterclaims
• In general, a pleading must state as a counterclaim any claim that—at the time of its service—the
pleader has against an opposing party if the claim:
o Arises out of the transaction or occurrence that is the subject matter of the opposing party’s
claim; and
o Does not require adding another party over whom the court cannot acquire jurisdiction.
• D must state the counterclaim in their answer.
• If D fails to raise counterclaim available, D is barred from bringing up the counterclaim as a separate
case after the 1st case is tried.
• Rule 13(b)- Permissive Counterclaim: A pleading may state as a counterclaim against as opposing
party any claim that is compulsory.
• *This is a federal law, but some states don’t have compulsory counterclaim rules
b. Common Law Rule: Nullification of First Judgment
• A defendant is barred from bringing up a claim that challenges the final judgment of the 1st case.
• Must bring all the claims if from the same factual transaction at once to prevent the separate suits
from the same transaction to result in inconsistent judgment.
• Claim preclusion applies to settlements as well—settlements are final decisions so the case is viewed
as being tried on its merits. Bars new lawsuits challenging judgment that resulted from that
settlement

Martino v. McDonald’s Systems

• Facts: D entered into a McD’s franchise. In the agreement, D and his family cannot buy a competing
restaurant. His son buys a burger Chef. McD’s sues for breach of contract. They settle this case and
D sells his franchise back to McD. After settlement, D sues McD’s for anti-trust violation because
they are stopping competition. McD argues claim preclusion.
• Analysis: Rule 13(a) doesn’t apply here because Martino never filed an answer, but the case is still
barred because it is impossible to interpret the case as anything as a direct challenge to the outcome of
the first case.
• Conclusion: Common Law application of claim preclusion—must provide legal conclusion/defenses
in the first lawsuit or it is lost. Claim preclusion applies to settlements. Martino should have raised the
argument that the settlement with McDonald’s violated antitrust law from the beginning

B. Issue Preclusion- Collateral Estoppel

1. DEFINITION
a. Collateral estoppel prevents re-litigation of same issues that were already tried and necessarily decided in a
prior case even if in the 2nd case, you're raising a different claim or cause of action.
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 b. Issue preclusion prevents re-litigation even if it is different parties, different claims, and different facts.
c. It is easier to determine if an issue is decided when there is a special verdict rather than a general verdict
because there are answers to specific questions. For a general verdict, the courts have to logically work
through trial to see if an issue was answered.
d. If the issue is not raised the first case, then it is not precluded. The fact that a party could have asserted an
issue in the first care is irrelevant to issue preclusion.

2. ELEMENTS OF ISSUE PRECLUSION

a. Same issue actually litigated and necessarily decided
• Fully and Fairly litigated: voluntary dismissal with prejudice and default judgment will have claim
preclusion, but not issue preclusion since no issue was litigated for the dismissal
• If case went to trial and evidence was presented, even if the evidence did not meet the burden of
proof, it is still considered “fully and fairly” litigated for issue preclusion
b. As to party against whom preclusion asserted
c. Then, issue is barred.

Little v. Blue Goose Motor Coach Co. (1931)

• Facts: Facts: Driver and Blue Goose were involved a car accident. Case 1: BG sues Driver—verdict
for BG for $139.35. Case 2: Driver dies and his widow, Little sues BG for simple negligence and for
wanton and willful negligence—verdict for Little for $5, 000.
• Analysis: The verdict in the first lawsuit finds that Little was negligent and BG was not negligent so
Little’s first claim for simple negligence is barred by issue preclusion.
• Conclusion: The 1st case already decided the issue brought up again in the 2nd case so the issue of
negligence is barred by issue preclusion. The 1st case already decided who was negligent.

Hardy v. Johns-Manville Sales Corp. (SCOTUS)

• Facts: P is asserting causes of action including negligence, breach of implied warranty, and strict
liability for an asbestos case. P alleges that the court already decided that manufacturers should have
warned about harm from asbestos.
• Analysis: The decision in Borel about failure to warn about asbestos does not bar under issue
preclusion about other asbestos cases. Estoppel applies only to issues of fact or law decided by a prior
court.
o It may be the same claim, but there are different facts and different parties.
o The ruling in previous cases is still precedent (stare decisis), but it does not necessarily bar
litigation based on issue preclusion.
• Conclusion: The prior case was ambiguous and the duty to warn about asbestos product is not
decided for all cases. The issue is not barred by issue preclusion.

3. OFFENSIVE AND DEFENSIVE PRECLUSION (NON-MUTUAL ISSUE PRECLUSION)

a. Defensive Preclusion
• Preclusion is used as a shield
o Same plaintiff, new defendant
o Issue already litigated so there’s not need to litigate again
• Defendant uses the preclusion argument to say that the issue was already litigated between the
plaintiff and another defendant so a plaintiff cannot bring up the issue again with the new defendant
• Defensive preclusion is considered less controversial than offensive preclusion because it prevents
plaintiff from bringing up the same issue with multiple defendants until the plaintiff is successful.

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 Blonder Tongue v. University of Illinois
• Facts: Case 1=Patent holder sued for patent infringement against first defendant and court concluded
that the patent was invalid. Case 2: Patent holds sue again for patent infringement against second
defendant. D moves for dismissal because the issue was already decided so it’s precluded
• Analysis: Issue preclusion is applicable because the issue already decided in the first case. Non-
mutual preclusion is proper as long as there was full and fair opportunity to litigate the prior case.
b. Offensive Preclusion
• Preclusion is used as a sword
o New plaintiff and same defendant
o The issue was already litigated and D lost so can’t bring up again in new suit.
§ The plaintiff seeks to enforce a finding against a defendant from an earlier suit brought by
a different plaintiff
o More controversial than defensive preclusion, usually under the discretion of the district court
• General Rule: In cases where the plaintiff could have easily joined the earlier action or where the
application of non-mutual offensive issue preclusion would be unfair to the defendant, a trail judge
should not allow the use of offensive issue preclusion.

Parklane Hoisery v. Shore (1979)

• Facts: Case 1- SEC (government) sues Parklane seeking an injunction (equity case) Concurrently,
Shore filed a fraud lawsuit against Parklane. In the equity case, the court held that D’s statement was
materially false and fraudulent. Shore want to preclude Parklane from litigating the falsity of the
statement since there were already decided in the first case.
• Analysis: There are concerns regarding offensive preclusion: 1) Plaintiffs will delay filing a lawsuit
to wait and see what happens in the first case so they use issue preclusion, 2) defendant may not
understand the gravity of the first lawsuit, but it would affect any subsequent law suits.
o Here, SCOTUS decided that the issues were not relevant because the plaintiffs could not join
the first case if they wanted to since the first plaintiff was the government and the defendant
should have understood the gravity of the lawsuit.
o Left the decision to the discretion of the DC judges.
• Conclusion: Offensive issue preclusion is appropriate in this case because the concerns are not
relevant to this case. But left the application of offensive preclusion to the discretion of the district
court.
• Dissent: The application of collateral estoppel in this action violated Parklane’s 7th amendment of the
right to trial by jury because the other case was a equity claim. The jury might have concluded
differently.

c. Fair Concerns About Offensive Preclusion

• Procedural Opportunities: Encourages the “wait and see” plaintiffs
o Creates a bad incentive for plaintiffs to hang back to see if the D would lose or win. If D loses,
then the new P can use issue preclusion to bar D’s defense or force the finding against D.
• D may not know what is at stake—may not have incentive to put up a good defense in 1st case
o Defendant may not understand the gravity of the lawsuit and realize that the result in one case
may affect the results of other cases if they are sued again.
o The defendant may choose to not put a good defense in the first case because the damages
allegations are small, but would not be able to put a better defense in the second case even the
allegations are $1 million because of issue preclusion
• Inconsistent Standard
o SCOTUS brought up some issues, but left the decision to allow offensive preclusion to the
district judge so its application is inconsistent.
o There is no rule/standard/threshold across the board.

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 • Not all jurisdictions allow offensive preclusion because of fairness concerns.

C. Non-Party Preclusion (Claim & Issue)

1. TRADITION PRECLUSION
a. History, preclusion only applied to parties that were in privity to each other, so if parties were non-mutual
then preclusion did not apply.
b. Currently, broader understanding of when preclusion applies when parties are not in privity to each other.
2. EXTENDING PRIVITY
a. Due Process Concerns
• Due process inquiry questions against whom may preclusion be applied
• Applied in both claim and issue preclusion
• Due process ensures that one can be bound by a judgment from a case only if she has full and fair
opportunity to litigate the issue/claim in the first case.
b. Applying Privies Preclusion
• Non-Parties are bound by the decision of case even if they are not a party if the party is so identified
with another that he represents the same legal right
• Non-Parties are bound by privies to the party under 6 categories:
1) Nonparty agree to be bound by the judgment: express or implied agreement or conduct inducing
reliance
2) Nonparty is bound by a pre-existing substantial legal relationship with a party: assignor/bailee,
succeeding property owners
3) Nonparty is bound because she was adequately represented by one who was party in the first
case: representation by someone who has same legal interest as non-party
4) Nonparty controlled litigation in the 1st case
5) Nonparty litigates through a proxy
6) Nonparty may be bound by litigation under special statutory authority

Taylor v. Sturgell
• Facts: 1st plaintiff, Herrick, requested for copies of technical documents related to a vintage airplane.
He was denied because of FOIA’s exemption for trade secrets. His lawsuit was dismissed on
summary judgment. Afterwards, Taylor (Herrick’s friend) made the same requests and filed the same
suit. The court held that Taylor was not a party to the 1st case, but a non-party may be bound by a
judgment if she was “virtually represented”. Because of their close relationship and identical interest,
there was enough to establish virtually representation.
• Analysis: SCOTUS held that that a claim cannot be precluded under a doctrine of “virtual
representation”. Non-parties can be bound to a judgment if there is privity under the 6 categories
established by the court. The court rejected the doctrine of “virtual representation” all together,
instead relying on well-established principles of due process and claim preclusion.
• Conclusion: A claim may not be precluded under a doctrine of “virtual representation” where a
second claimant brings a suit identical to the first claimant and, although the claimants know each
other, there is no legal relationship between them and there is no evidence that the second claimant
controlled, financed, participated in, or even had notice of the earlier suit

3. APPLYING PRECLUSION IN TWO DIFFERENT COURT SYSTEMS

a. Effects of Federal Court Judgments
• Article IV: Every state give full faith credit for every other state
o Final judgment from one state means that other courts in other states have to give final judgment
full faith and credit
o States will give another state’s final judgment that same preclusive effect as the original state
o Policy: People can’t run away from being bound to a judgment by moving to another state.
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 b. USC Section 1738
• Judicial proceedings shall have the same full faith and credit in every court
• Final judgment has the same effect it would have in the original jurisdiction
o Federal judgment: 2nd case in state court, apply federal preclusion rules even if state preclusion
rules are different
o Judgment in another territory: full faith and credit it would have gotten in the original
jurisdiction

THEMES OF THE CLASS

A. Sources of Law
• Constitution
• Statutes
• Rules
• Cases
B. Due Process
• D needs minimum contacts with a forum to be bound by that forum
o Personal Jurisdiction: Purposeful availment and reasonableness
o Standing: Subject matter jurisdiction
o 7th Amend: verdict, new trial, JML
C. Adversary System
• Bands Refuse (COA held that Judge violated due process by taking control from parties)
o Most of world gives judicial authority power to control factual info
o Discovery process: judge has power to tailor it, managerial power
o Settlement: managerial power
o Party needs to decide if filing JML, SJ, MTD, etc. so they get power
o But heavily lawyer dependent system
D. Procedural Values
• System wants to decide cases on merits not procedural technicalities
• Original pleading standard under 8a very loose to allow P to get through the door
• Discovery allows parties a lot of power to gather info
• But increasing case dockets have led to courts reducing
• Celotex trilogy encouraged use of SJ
• Scott: shows what’s at stake if authority is shifted to court, not jury trial
• Maybe creating more regular enforcement
• May end up making it harder for P to reach jury trial which is where a more holistic judgment may be given
• Are the courts becoming too defendant-friendly?

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