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154 Cards in this Set
- Front
- Back
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What are the Four Goals of Common Law Pleading?
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"Provide notice of a party’s claim or defense, Identify baseless claims, Set out each party’s view of the facts, Narrow the issues for trial—boil the case down to one claim between two parties."
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What is the standard for determining whether a pleading is sufficient under California Code Pleading?
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"Must contain proper facts sufficient to state a c/a: Ultimate facts > Not evidentiary facts or conclusion of law! Facts should stated generically rather than specifically, needs to be enough information to give the adversary and court reasonable notice of the nature of the claim or defense. Exception: CA allows pleading of negligence even though it is a conclusion of law."
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What is a cause of action under California law?
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California defines a cause of action as a primary right of the plaintiff a corresponding duty on the defendant and a harm done by the defendant that breaches the duty - P may bring suit only once on a given cause of action.
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Gillespie v. Goodyear
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"Court strikes P’s complaint because it contains only conclusions of law, and not enough “facts.” What kind of facts? Who did what to whom and where did it occur. Ultimate facts are generalized statements that have been shorn of their detail. Avoid too much detail."
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Bay Cities Paving v. Liberty Mutual Ins. Co.
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"Under CA law, each invasion of one primary right gives rise to a single cause of action. (1 primary right = 1 cause of action , 2 primary rights = 2 causes of action) "
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What is the difference between Causes of action and Counts?
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"The Cause of action is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. Counts are the legal theories: could be negligence or an intentional tort. (Two separate counts). Counts could also be split up by what was damaged. (Overalls/Tractor)."
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What are the Primary rights?
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"CPRRB – “Civil Procedure Really Really Bites” C – free to insist that your binding Contracts are performed, P - Freedom from personal property damage, R - Freedom from having real property harmed (trespass/nuisance), R - Freedom from having reputation harmed, B – Freedom from Bodily injury."
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What are the requirements of Modern Notice Pleading under the Federal Rules?
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"A pleading must contain: A short and plain statement of the grounds for the court’s jurisdiction, A short and plain statement of the claim showing that the pleader is entitled to relief and, Demand for the relief sought (can include alternative options). Compliance with federal forms is sufficient to meet the pleading threshold."
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How is modern pleading different from code pleading?
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A lower pleading threshold – the sole purpose of the rules is to put the defendant on notice.
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What motion would you bring under the federal rules if a pleading lacks adequate detail?
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Rule 12(b)(6) - A claim can be dismissed for “failure to state a claim upon which relief can be granted”.
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What are the technical requirements for pleading?
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"Rule 11: Every pleading must be signed and if not signed the court may strike. By filing pleading you are certifying: a) Pleading is not being presented for any improper purpose (harassment, delay, increase cost of litigation.) b) Claims and defenses are warranted by existing law or by a non-frivolous argument changing law. c) Factual contentions have or will likely have evidentiary support after discovery d) Denials of factual contentions are warranted or reasonably based on belief or a lack of information. – You can be sanctioned if court determines you have violated these."
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Dioguardi v. Durning
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This is the case that sets the pleading threshold the lowest. The FRCP does not require a claimant to set out in detail facts upon which he bases his claim. A complaint must state enough facts (short & plain statement) to sufficiently notify ? of the claim & allow him to prepare a defense. Don’t overread Dioguardi.
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When is there a higher pleading threshold?
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"9(b) Fraud or Mistake; Condition of Mind. 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. FRCP 9(b) is satisfied when a pleading adequately identifies the circumstances of a fraud in a manner that allows a defendant to answer - more specific than vague allegations"
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What are the policies for having a higher pleading requirement in fraud cases?
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"Protection of reputation, Deterrence of frivolous suits, Defense of completed transactions, Providing adequate notice."
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"Other than Fraud cases, under what circumstances might a heightened pleading be required?"
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"When there is conduct that is potentially consistent with P’s allegations, but is also susceptible to benign explanations. Enough allegations to render the claim plausible. (More than possible, less than probably) Twombly – actions could have been independent actions or a violation of anti-trust laws. Iqbal – actions could have been normal detainment of illegal aliens or discriminatory. However, In Swierkiewicz, SC - no heightened pleading requirements in employment discrimination cases. In Leatherman, SC no heightened pleading standards in civil right cases."
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Who has the burden of pleading?
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"Burden of Pleading is usually assigned to the party who has the burden of producing evidence on that issue at trial. P pleads his elements, D pleads affirmative defenses, P doesn’t have to negate all possible affirmative defenses. "
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Can a pleading be inconsistent?
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"Rule 8(d)(2) allows for alternative statements. The pleading is sufficient if any one of them is sufficient. Courts generally permit alternative factual allegations, if done in good faith. However, verified pleadings cannot have inconsistent allegations. "
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Ziervogal
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"Rule 9(g) - If an item of special damages (something that the defendant wouldn’t be on notice for) is claimed, it must be specifically stated. "
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What is the purpose of the Prayer for Relief (ad damnum clause)?
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"Determines whether requirements of diversity are met, May set a ceiling on P’s recovery in the event of default. Rule 54(c) says default must not differ in kind from or exceed in amount what is demanded in the pleadings. It doesn’t limit recovery at trial, pleading can be amended if P is awarded more. (Bail v. Cunningham Bros)"
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How long does a defendant have to answer a complaint?
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"FRCP 12-A Defendant must serve an answer – Within 21 days after being served. Or If it has timely waived service under Rule 4(d), within 60 days after the request for waiver was sent, or within 90 days if sent outside of the judicial district of the U.S."
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What are the potential responses to a pleading?
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"Plea in abatement, failure to state a claim, more definite statement, motion to strike, denial, affirmative defense, impleader, counterclaim, cross-claim"
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Plea in Abatement
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"Not Here - 12b 1-5,7 (SMJ, PJ, venue, insufficiency of process, insufficiency of S/P), FRCP 12b7: Failure to join a Rule 19a party"
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Failure to State a Claim
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"12b6 - So What? GARCIA: Complaint must be construed in the light most favorable to plaintiff with all doubts resolved in his favor and the allegation taken as true, Ct held a complaint sufficiently pleads right to relief when it states enough facts to reasonably assume that essential elements of the claim can be proven at trial."
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More definite statement
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What??? - 12e - P may move for more definitive statement before responding to pleading that is so vague or ambiguous that a responsive pleading cannot be reasonably framed. - 10 days to respond. Ct can strike for failure to respond
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Motion to strike
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You can’t say that! 12f – scandalous and immaterial matters.
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Demurrer
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"California - Code Pleading: allows ? to object to the sufficiency of a complaint by demurrer. Assumptions: The court accepts the allegations as true. The court assumes the P has substantial admissible evidence to prove each material allegation. Two types of demurrer’s in California: Each look only to the “face” of the complaint: General demurrer: raises the failure to state a c/a or lack of SMJ over a c/a or has alleged a fact that creates a complete defense (ie SoL). Special demurrer: all other defects such as uncertainty of allegations, lack of party’s capacity, misjoinder of parties. Dismissals: if the court sustains a demurrer, the case can be dismissed w/ or w/o leave to amend."
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What must be contained in an answer?
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"Admissions and denials or why you lack specific information of plaintiffs allegations – 8b, affirmative defenses, including additional allegations necessary to support defenses. (short an plain statement) – 8c"
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Ingram
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"(statutory malpractice cap is affirmative defense) if you don’t raise the affirmative defense, you waive it. Cannot be raised for the first time on appeal. (unfair surprise)"
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Taylor
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a mere denial in an answer does not open the door to assert an affirmative defense at trial. You must assert the affirmative defense in the pleadings.
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General Denials: Denying whole claim
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"Allowed in state courts, fed cts only if entire complaint can legitimately be denied. Zelinski ? A man who was hit by a forklift claims that it was owned by a large company which denies owning it at the time of the accident. Ct held a general denial is invalid (treated as admission) if any of the allegations being denied have previously been admitted by both parties as true."
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Denials that violate FRCP 8
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"Never, Never Feed White People Getting Freaky – 1) Neither Admit or Deny is treated as admittance 2) Negative Pregnant Deny owe ? $89,000 (construed as ? owes $88,999.99). Must deny that you owe them “any sum.” 3) Failure to deny constitutes an admission 4) Without Knowledge/information sufficient to form belief, statement constitutes a denial 5) Partial denial: If you intend to deny only part of an allegation must admit the part that is true and deny the rest. 6) General denial: Can generally deny if done in good faith, if not you should specifically deny or generally deny all those except those specifically admitted 7) Fairly respond: Must fairly respond to the substance of the allegation (Ex: Evasive aka Conjunctive denial – “owned, operated and controlled” – denied all – when they in fact owned it.)"
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When is a reply required?
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FRCP 7a: Reply by P required only when D’s answer contains counterclaim within 20 days. Otherwise a reply is in the discretion of the court. D’s allegations to which a reply is not permitted or required are deemed denied by the plaintiff
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Shultea
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"NOT RULED ON BY THE SC - Case regarding the reply: If D pleads qualified immunity (acted in good faith even though I’ve violated the law) as a defense, P must file reply. Here is how Schultea would work. Complaint - D violated my civil rights (short and plain), Answer – I acted in good faith, Reply – no you didn’t (P must show no good faith with particularity.)"
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Motion for judgment on the pleadings
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"FRCP 12c1 – also in CA under common law. May be made after the pleadings if it does not delay the trial. If matters outside the pleadings are presented and accepted by the court, this becomes a rule 56 motion for summary judgment (and all parties shall be given a reasonable opportunity to present all material pertinent to such a motion.)"
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Attack Outline for Pleading Amendments
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"1.) Can party amend as a right? If not, Did the party obtain consent by the opposing party? Can they get leave from the court? 2.) If S/L has run after party filed suit, can party invoke relation back of claims or parties? 3.) Can party amend during or after trial? Yes. See 15b"
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What are the two types of pleading amendments?
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"1) Amendments as a matter of right (15a) Any party may amend their pleadings any time before answers are served or within 21 days of the service of the original pleading if no response is required and 2) Amendments requiring the court’s permission. 15a2 - Can amend only with either consent of opposing party or the court. Standard: The court should freely give leave when justice requires. Should be given unless there is undue delay, bad faith, or repeated failure to cure deficiency. Burden is on party opposing the motion to prove that they will be prejudiced by granting the ruling."
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Beeck v. Aquaslide and Dive
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A defendant may amend its answer to deny a fact which it had previously admitted if done so in good faith.
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Amendments to conform to proof
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"FRCP 15b: May be amended during or after trial or even after judgment to conform to the evidence, reflect an issue actually tried by the express or implied consent of the parties, or permit raising new issues at trial. However, P may not raise a new claim or defense for which the opposing P had no opportunity to prepare & would result in prejudice. Implied consent includes failure to object. Test: Check if opposing party received actual/implied notice & opportunity to litigate."
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Moore case
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"custody battle, child support awarded, not originally requested. Wife amends pleadings post trial to include child support. Implied consent b/c Mr. Moore didn’t object to it in the proceedings."
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Relation Back of Amendments
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Look for a fact pattern where the SoL has run. (FRCP 15c3) If a new party is to be named after the SoL has run it must arise out of the STO contained in the original complaint and must be misidentified party.
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What is a misidentified party?
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"A party is misidentified party if D has received notice of the action (that the action exists) within 120 days of the complaint and will not be prejudiced in maintaining a defense on the merits. AND The party knew or should have known that the action would have been taken against her, but for the fact there was a mistake as to her actual identity. Example: You sue X, believing X’s true name is X, but later find out the name is X inc. "
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Worthington
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Facts: P was arrested by two unnamed officers who broke his arm. He then sued the city and unnamed defendants for civil rights violation. Later amended his complaint with the actual name of the officers and dropped the city from the amended complaint. Holding: Ct stated that the amended complaint was not entitled to relation back to original date because it was not mistaken identity it was merely ignorance of name.
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Fictitious party pleading
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"(doe practice)Not allowed under FRCP as it is not “mistaken identity.” Allowed under CA law as long as ? has put sufficiently named “Does/Roes” he has 3 years to amend with. In practice, ~15 months from the filing of the suit, because of accelerated Doe practice."
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Verified pleadings under California law.
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" A verified pleading is signed under penalty of perjury. If the complaint is verified, the answer must also be verified– Three advantages: 1) This helps to ensure that the defendant takes the accusations seriously; if the D pleads falsely, subject to impeachment and even perjury. 2) If the complaint is verified, defendant can’t use a general denial; and 3) The complaint used as a substitute for a necessary affidavit to support a preliminary injunction or temporary restraining order. Disadvantages are 1) that there is less judicial tolerance of inconsistent factual allegations and 2) Plaintiff risks impeachment or even perjury, if trial testimony contradicts sworn allegations of the complaint 3) Plaintiff may waive attorney/client privilege on matters alleged in pleading - Definite verifications include: unlawful detainer, quiet title, marriage dissolution."
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How can sanctions be brought against an attorney for improper pleadings?
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"Three step process. 1.) Under Rule 11: The attorney by presenting to the court a pleading, certifies the info is good to the best of his/her knowledge. Signature implies it is made with proper purpose (not to harass), warranted by existing law or non-frivolous argument to change law, well grounded in fact, and based on evidence. 2.) Safe-harbor provision: Other attorney should inform pleading attorney about alleged mistake & wait 21 days before moving for sanctions. 3.) If the attorney doesn’t fix the problem the other attorney may go to the court for sanctions. The attorney, the party, and the attorney’s law firm may be sanctioned."
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Attack outline for Joinder Problems
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"1) Do the FRCPs [or state equivalents] permit the joinder of this claim by this party against that party? 2) Jurisdiction: Even if the “rules” permit the joinder, is there jurisdiction over the claim against the party? Subject Jurisdiction? Personal JN (If a new party)? 3) Severance: Even if the claim is within the court’s power to hear in this particular lawsuit, should the court sever the claim for separate trial? FRCP 42(b). Sever for convenience, judicial economy, avoid prejudice."
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Claim Joinder Under State Law
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"Modern code pleading: Allow P to join multiple c/a, if within same subject. CA allows joint any c/a against D. CA Rule: CCP § 427.10 allows a plaintiff to join to any one cause of action “any other causes which he [or she] has… against any of [the] defendants”"
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Joinder under FRCP
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"18a: Party asserting claim to relief can join as many claims as party has against opposing party, subject only to subject-matter jurisdiction requirements. (allows piling on). Federal procedure permits the broadest claim joinder possible and does not require P to join all of its claims against a defendant. However, the principles of res judicata may require joinder."
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Counterclaim
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A retaliatory claim by a defendant against a plaintiff in a lawsuit included in the defendant's answer Can be compulsory or permissive depending on transaction.
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Compulsory Counterclaim
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"Requires parties to bring counterclaims (1) if they arise out of the same transaction or occurrence (STO) that is subject matter of opposing party’s claim, and (2) if they do not require presence of a 3rd party over which the court lacks JN. Failure to counterclaim revokes right to bring later federal claim. Determining STO: Is there logical relationship between claims? (degree of overlap of law, facts, and evidence between two claims) and Is public policy served by broad joinder? (enough overlap that benefits overweigh drawbacks?)"
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Exceptions to Compulsory Counterclaim
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13a exceptions: Need not join if (1) at time action was commenced claim was subject of another pending action; or (2) did not acquire JN.
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Heyward-Robinson:
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"Facts: ? brought action against ? to recover payment alleged to be due on one project. ? counterclaimed for over costs on two different projects which ? worked on. Holding: Ct found STO on second project because single insurance policy covered both. ? manned both projects together and treated as one. Controversy affected both jobs, so a compulsory counterclaim. A logical and immediate relationship between the two."
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Permissive Counterclaim
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Rule 13b - Any claim against an opposing party not arising out of STO that is subject matter of opposing party’s claim. Failure to counterclaim does not revoke right to bring later federal claim. 1) Analyze independent JN (diversity or FQ) – no supp JN because no STO. 2) Sever claim? Since these claims may not be efficient (different from main claim) courts can sever these counterclaims under Rule 42.
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Cross-Claim
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"Claim between co-parties (ex: one ? cross-claiming another ?). Cross claims are permissive (don’t want to compel ?’s in a forum not of their choosing). Co party: Parties brought to suit at same time by same pleading device. Some ct’s hold co-?’s cannot cross-claim each other against a common complaint against a ?. Note: If cross claim is not transactionally related, try bringing it under 18a (IND. JN for Ps.) RULE 13(g): Allows for cross-claiming if the cross-claim: 1) Arises out of the STO that is the subject matter of original action or counterclaim. 2) Relates to any property that is subject matter of the original action or 3) Is brought for indemnity against a co party."
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LASA
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"Facts: ? subcontractor S1 sued contractor S2 and his contractor and original builders for breach of K. The contractor’s then cross-claimed against each other. Holding: Ct held the cross-claims were valid as they had a logical relationship (same project, arising out of the same marble requirement). Since permissive, district ct was free to sever. Dissent: First claim was breach of K, while cross-claim was a tort-action, so no logical relationship."
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Permissive Joinder of Parties
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"20a - All persons may join in one action as ?s or ?s if the claims arise from the STO and raise at least one common question. 20b: Court may order separate trials to prevent party from being embarrassed, delayed, or put to expense, or to prevent delay or prejudice. Traditional code pleading (narrow view): Allowed joinder of parties only where claims were united."
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Joinder of Required/Indispensable Parties
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"FRCP 19: Raised through 12b7 – failure to join an indispensable party. The question here is who MUST be joined. Three step analysis – 1) is the absentee necessary? 2) If she is necessary, is joinder feasible? 3) If joinder is not feasible can the case proceed anyway?"
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Three tests for whether absentee is “necessary”
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"1) Without the absentee, can the court accord complete relief? 2) Will the absentee’s interests be harmed if she is not joined? 3) Will the absentee’s interest subject the defendant to multiple or inconsistent obligations? Joint tort-feasors are not necessary."
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Analyzing whether joinder is feasible
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Personal JN? Subject matter JN? Venue?
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"If joinder is not feasible, can the case proceed anyway?"
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"19b factors 1) Will judgment prejudice the absent party? 2) Can relief be shaped to avoid prejudice? 3) Will a judgment in the absence of the party be adequate? 4) Is there another forum for the P? Provident Tradesmen’s Factors (Car lender) 1) ?’s interest in suing in the forum 2) ?’s interest in getting a joinder 3) Outsider’s interest in joining litigation 4) Court and public’s interest in complete, consistent, and efficient ease disposition."
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For what reasons may a court sever claims?
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"42 b – To avoid prejudice, To further convenience, To expedite and increase economic efficiency"
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For what reasons may a court consolidate claims?
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"If cases involve a common question of law or fact, a court may: 1) Order a joint hearing or complete consolidation. and 2) Make orders regarding the proceedings to avoid costs/delay. The policies that support broad claim joinder efficiency, convenience, fairness, and avoidance of inconsistent judgments."
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Attack sequence for impleader
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1) is impleader proper under rule 14? 2) are there any reasons the court should not allow impleader under the facts? 3) Is jurisdiction proper?
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Impleader
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RULE 14 – (dragging someone in.) - allowed if it will avoid circuitry of action and eliminate duplication of suits based on closely related matters. Applies when a third party defendant may be liable to the D for all or part of the claim or when Plaintiff impleads a third party defendant following a counterclaim. Critical point to remember there must be a claim for indemnification or contribution not enough to just blame 3rd party.
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Factors the court considers in deciding whether or not to allow an impleader action.
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Factors to determining whether to grant leave to implead a third party defendant 1.) whether the movant deliberately delayed or was derelict in filing the motion 2) whether the impleading would unduly delay or complicate the trial. 3.) whether impleading would prejudice the third party defendant 4.) whether the third-party complaint states a claim upon which relief can be granted. -The court balances the benefits of settling matters in one suit against the potential prejudice to the plaintiff and third party defendants.
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Jurisdiction in an impleader case.
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"After you enact impleader, examine jurisdiction – supplemental JN. Claims should be of the same case or controversy over which ct has original JN. 3rd party D’s citizenship does not destroy diversity of original claim. 3rd party D is not considered in venue determination"
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Special rules Re: Impleader
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1) If claim is founded on diversity P can only claim or counterclaim against 3rd party defendant if it does not destroy complete diversity. Owen case. 2) 3rd D can assert any defenses against ? that the original defendant may have been able to bring. (14a2c). 3) 3rd D can raise claims against ? arising STO and is subject matter of P’s original claim (14a2d) 4) 3rd D can raise counterclaims against original defendant. 5) ? can assert any claim against 3rd D that is STO of original claim 6) 3rd D can bring in another third party for indemnification
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What is an interpleader action and in what ways can it be brought?
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Allows a party who might be exposed to multiple (liability for) claims to money or property under his control to settle the controversy in a single proceeding. “Enter into the court with the disputed property.” Can be rule based or statute based interpleader.
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What does it mean to say that a party in an interpleader is interested or disinterested?
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Disinterested party knows they owe something and is not a claimant to the stake. An interested party is both stakeholder and a claimant.
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What are the elements of statutory interpleader?
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"INTERPLEADER ACT: (28 USC § 1335) 1) Minimal diversity (1335) – at least two adverse claimants must be diverse, otherwise use state action. (if the stakeholder is interested they qualify as a claimant.) 2) At least $500 in controversy 3) PJ – Federal Long Arm statute that authorizes nationwide Service of Process (Pure 5th amendment analysis, contact with the US?) 4) Venue – 1397 – Judicial district in which one or more of the claimants reside. 5) Bond: Complete deposit required. PROCEED UNDER STATUE UNLESS YOU DON’T TO PAY THE STAKE (BOND)."
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What are the elements of rule based interpleader?
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FRCP 22: 1) Complete diversity is required: the stakeholder can’t be from the same state as any of the claimants. (Strawbridge v. Curtis) 2) typical amount in controversy required 3)Normal rules for PJ 4) Normal rules for venue 5) Bond: Deposit is optional.
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Anti-Injunction Provisions:
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"In general, federal courts are not allowed to issue an injunction to cease state proceedings. However, congress has made an exception here to authorize statutory interpleader actions to issue injunctions on other proceedings."
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What is intervention and what types of intervention are there?
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Allows third parties who might be affected by a lawsuit to join in the lawsuit if certain conditions are met. (They want in). There is both intervention as of right which gives the absolute power to intervene and permissive intervention.
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Attack outline for intervention
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"1) Intervention as of right and permissive intervention 2) subject matter JN – if original suit is based on diversity, absolute diversity must be maintained (1367b bars non-diverse parties to intervene.) 3) PJ and Venue are waived since intervener voluntarily seeks inclusion."
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Intervention as of Right
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"FRCP 24a – Gives absolute right to intervene, subject to four conditions 1) Is the intervention timely? (on appeal in some cases) 2) Is the interest part of the STO? 3) Is the interest one that would be impaired if the person is not allowed to participate? 4) Is the petitioner adequately represented by existing parties? (Having same motive as existing party does not necessarily mean adequate.) Can file interlocutory appeal (appeal decision immediately)."
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Smuck
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Smuck and parents sought to intervene in appeal. Court finds smuck is adequately represented by school board. Parent’s protected interest is their right to protect the welfare of their children (non monetary interest.)
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Permissive Intervention
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FRCP 24b – Permissive: Anyone may be permitted to intervene in an action 1) If statute confers a conditional right to intervene; or when applicant’s claim/defense and main action have question of law/fact in common.
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What is a Real Party in Interest?
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"Real party: Party who will benefit from the judgment. 17A: Action must be brought in their name. However, a trustee or bailee can sue on behalf of the beneficiary. CA: Allows insurance companies to use the name of the injured insured when they’ve paid the claim. Jurisdictional implications – diversity is judged by the citizenship of the real party in interest."
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Six-step approach to discovery problems
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"1) Is the matter for which discovery is sought relevant to the matters put into issue by the pleadings [fed: claim/defense]; or [State of CA: subject matter of the case]? 2) Is it likely to lead to the discovery of admissible evidence? (You can use “inadmissible evidence” to discover “admissible evidence.”) 3)Is it privileged? - Stops discovery cold. 4) Is it covered by the work product protection? 5) Is the appropriate device being used to get the discovery? 6) Is it otherwise unduly burdensome or oppressive, such that a protective order is appropriate?"
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Disclosure Requirements – Rule 26
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"Happens prior to discovery. 1) Rule 26 requires parties to disclose certain information to other parties without waiting for a discovery request. It includes initial disclosures, disclosure of experts, and pretrial disclosures. 2) Supplementation of disclosures & responses: Duty to submit new or corrected information at appropriate intervals if parties learn that information previously provided was incorrect or new information is now available. 3) Signed Disclosures: Each certification must be signed by an attorney attesting to the best of his knowledge, information, and belief, the disclosure is complete and correct. Must be in good faith, with a proper purpose, and not unduly burdensome. 4) Can be subject to sanctions for noncompliance."
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Initial disclosures
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"Relevant info about witnesses, documents, unprivileged and unprotected computational materials, and insurance agreements. Not required under CA law."
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Pretrial Disclosure
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"At least 30 days before trial, to other parties and ct, potential list of witnesses, documents, and exhibits."
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Disclosure of Expert testimony
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"Identities of expert witnesses used at trial (to be accompanied by signed report by expert stating qualifications, opinions to be expressed, and basis for such opinions)"
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Elements of a Deposition
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"1.) Under oath/penalty of perjury 2) Nonparties must be compelled by subpoena 3) can be used at trial in extenuating circumstances 4) must be taken by officer of the court or court appointed person who is not interested in the litigation 5) must be reasonable notice to all parties – 10 days 6.) can be recorded by sound, video or stenographic 7) limited to one day of 7 hours 8) 30 days to review and make changes 9) can be terminated for bad faith 10) if corp. is subpoenaed, they will send person most knowledgeable of the issue 11) parties can stipulate to modifications from the federal rules."
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Objections at depositions
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"Can object over formal grounds (deposition notice, officer qualification, or form/content of questions) à objection noted, but witness has to still answer over objection. Privileged information however does not have to be divulged."
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Interrogatories
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"1)Limit of 25 for each party, however can exceed based on need. 2) responses due within 30 days of service 3) Responder should answer separately each section/subset of interrogatory (unless objects) 4) Objections must be timely, specific, and detailed. Must be point-by-point objections, not blanket! 5) Not objectionable merely because answer involves opinion related to application of law to fact (contention interrogatories allowed) 6) Sufficient answer to specify records from which answers can be derived/ascertained. 7) Can just produce records to answer questions about the records. 8) Duty to investigate: To respond not only on the basis of her own knowledge but also with regard to the knowledge of others that can be reasonably be attained through investigation. (also attorney) - California allows 35 and unlimited form interrogatories."
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Production and Inspection
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"The party can inspect, measure, survey, photograph, test, copy or sample the property 2) Request must describe the items to be discovered with “reasonable particularity”. 3) Request must specify reasonable time, place, & manner for inspection 4) Must respond to request within 30 days. 5) The production must be organized in the manner of the ordinary course of business 6) Responding p pays cost of finding & bringing files, but copies charged to propounding p 7) If objection made to a part, it should be specified, and inspection allowed for rest of prop 8) court can balance unduly burdensome requests. - CA has a “deposition subpoena” that seeks only the production of business records for copying. See CCP § 2020.410"
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Discovering e-data
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"Three-Step Analysis - Data kept in an accessible format demands the usual rules of discovery. Cost shifting should only occur when e-data is relatively inaccessible. 2.) Because cost-shifting is fact intensive, it is necessary to determine what data may be found on the inaccessible media. This may require a small part of restoration. 3.) In conducting the cost shifting analysis - weigh 7 factors BAR-IS-CA B) Relative benefits to the parties of obtaining the information A) Amount in controversy compared to cost of production R) Resources of the party compared to cost of production I) Importance of Issues at stake in the litigation S.) Specificity of the request C.) Controlling costs – ability and incentive of each party to do so. A.) Availability from other sources"
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Medical Examinations
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"1) Only discovery device that requires ct approval absent stipulation by parties. (CA allows personal injury case to demand a routine examination of ? under specified conditions) 2) The person’s physical or mental condition must be in controversy and the movant must show good cause 3) Good cause shown: Weighing the pain, danger, intrusiveness of the examination against the need for or usefulness of, the information to be gained 4) The request must state the time, manner, place, and scope of the examination 5) After delivery, D entitled to all past/future medical records related to same condition 6) P waives any privilege reg. testimony of past/future examiners only for that condition"
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Admission Requests
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"1) Admissions are binding, no longer triable issues of fact. 2) The responder can admit or deny, explain why you can’t admit or deny, or object to the request. 3.) Receiving p must respond under oath and timely 4) Deemed admitted unless the party responds with an answer or objection in 30 days. Can stipulate to a longer time period or the court may order a longer period. 5) Cost of Proof- If responding p denies an admission, and you later prove them at trial, you can recover costs for establishing admission. Responding p can defeat by showing good cause 6) FRCP - No limits on admission requests, CA – 35 limit. No limit for doc authentication. 7) In CA, lack of response is not admitted by default, have to move to have it admitted. A party can move to correct the admission request before trial."
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Trial Preparation Materials – 26b3 “work product”
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"Under federal rules 1) party and agents are protected 2) to overcome protection must show substantial need and undue hardship 3) you can request a copy of your own statement 4) the protection begins with work done in anticipation of litigation 5) If disclosure is ordered the courts “shall” protect the mental impressions, conclusions, opinions and legal theories."
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Work Product Doctrine in CA
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"Ccp 2018 - 1) The rule protects only the attorney however, cases have extended that protection 2) to overcome protection must show unfair prejudice or injustice 3) to get a copy of your own statement you must show need – such I forgot – pretty easy to meet 4) the protection exists over any attorney’s work whether or not in preparation for litigation. 5) materials are absolutely protected – no disclosure!"
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What are the four levels of protection?
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"Unprotected, ordinary, exceptional, absolute"
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Unprotected
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"existence & location of docs, witness identities, facts underlying contentions, applications of law to fact, facts disclosed to attorney don’t become suddenly protected."
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Ordinary
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"Substantial need and inability to get it without undue hardship. Witness statements, charts & maps, accident scene photos, lab test results, trial witness identities"
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Hickman
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"Facts: Tugboat sinks, defendant deposes sailors, plaintiff seeks copies of depositions. Holding: USSC held it was protected because: (1) witness identity known; (2) P did not put any showing of prejudice; (3) witnesses still available; (4) public deposition available. "
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Overcoming the ordinary standard
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Demonstrate undue hardship - 1) Contemporaneous statements needed? 2) Inequality of investigative opportunity? 3) Recalcitrant witness? 4) Unavailable witness? 5) Improperly obtained statements? (eg: hidden microphones)
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Exceptional
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"Applies to consulted but non-testifying experts. When available? Changed conditions, inequality of investigative opportunity, no other expert available, use of report by trial expert."
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Absolute Protection
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"Attorney’s thoughts (drafts/opinions, memos-to-file, outlines of legal strategies, summaries of meetings etc). To be protected the thoughts must be in writing. Exceptions: lawyer discipline, attorney malpractice"
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When experts are discoverable
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1. Opinions formed independently of pre-trial consultation are freely discoverable. 2. Consulted experts who may be trial experts – postponed until trial is imminent (can be deposed by other party at their expense) 3. Consulted experts not at trial – only in exceptional circumstances 4. Experts who are conduits of the attorney – discovery is denied
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What does an expert disclosure include?
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"1) Identity of the witness 2) report signed by witness that includes opinions, support, pay history, witness history 3) must be disclosed 90 days before trial"
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What is the sequence of events to impose discovery sanctions.
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"Sequence: Meet & confer (gives the non complying party an opportunity to cure)àFails to complyàMotion to compel(can result in costs of motion awardable) àFails to complyàMotion to sanctions (evidentiary sanctions, issue preclusion sanctions, terminating sanctions."
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What are the different methods for knocking out a complaint?
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"Motion to dismiss, judgment on the pleadings, summary judgment."
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Dismissals
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"Court does not consider evidence in support of such a motion, the court considers the allegations in the complaint as true. But if the complaint contains a patent defect the motion can be granted."
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Judgment on the Pleadings
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"Must be after the pleadings are closed, but early enough not to delay trial. Like a dismissal, the court does not consider any evidence in support of this motion. If D attaches affidavits or other documentary evidence in support of such a motion Rule 12 automatically converts that motion into a motion for summary judgment. A successful motion for judgment on the pleadings will end the legal controversy b/t the two parties and successful party receives a biding judgment. Both Ps and Ds can move for judgment on the pleadings. This is a way to decide a case when all of the parties agree on the basic facts of a case and the only thing for the Court to rule on is a question of law."
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"Summary judgment, in general"
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"Unlike any of the rule 12 motions, motion for SJ is not limited to face of the complaint. Parties are expected to support motion or its opposition with admissible evidence. Motion screens out cases that don’t require a full courtroom trial. Standard (FRCP 56): If there is no genuine issue of material fact, i.e. there is no “triable issue”; moving party is entitled to judgment as a matter of law. "
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What is an issue of material fact?
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"A material fact is one which will affect the outcome of the case, and a material fact raises a genuine issue of a reasonable jury could reach different conclusions concerning that fact. "
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Meeting the Summary Judgment standard with the celotex framework (if the movant has the burden of proof at trial)
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"1) Has movant (typically P) identified evidence, if not contradicted, that would compel a jury to rule in his favor on each element of the claim? If No, Deny SJ motion. If yes don’t stop, shift the burden. 2) Has nonmovant (typically D) identified evidence that would allow a reasonable jury to find in his favor? Yes. Deny SJ motion, No. Grant SJ motion. "
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Meeting the Summary Judgment standard with the celotex framework (if the movant does not have burden of proof at trial)
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"1) Has movant (typically D) identified evidence, if not contradicted, that would compel a jury to rule in his favor (such as an affirmative defense) or has the movant shown that the other side lacks necessary evidence from which a reasonable jury could find in their favor (not met their burden)? If No, Deny SJ motion. If Yes, shift the burden to the party with the Burden of Proof (Typically P). 2) Has nonmovant identified evidence that would allow a reasonable jury to find in his favor? If Yes, Deny SJ motion. If no. Grant SJ motion. "
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Brennan’s dissent in Celotex
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"Brennan requires a moving party to make an affirmative showing that the nonmoving party who bears the burden of proof has not established their case. This is done through interrogatories, affidavits, etc."
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Adickes
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"Facts: Adickes, a white teacher was denied service in Kress’s restaurant, and was arrested for vagrancy. ? sued Kress and the police dept. that they conspired since cop was in restaurant when ? was denied service. ? moved for SJ. Defendant had affidavits alleging no conspiracy. Made no response to the presence of the officer. Rule: Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied. The Defendant failed to meet it’s initial burden of an absence of a material fact. The fact that a policeman was in the store was enough for a jury to find a possibility of conspiracy. The affidavits are not enough to dispel the possibility of a conspiracy."
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Lundeen
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Facts: Ex wife (w/kids) brought suit against life ins. co. for payment on dec’s policy. Current wife intervened presenting evidence that dec. had changed his beneficiaries and all that remained was a ministerial act. Current wife moves for SJ. Ex wife states she want to cx witness. Motion for SJ is granted. Ct said ex wife did not show factual evidence upon which to show she could impeach witness. Rule: a mere desire to cross examine a party is not sufficient to defeat a motion for SJ. The opposing party must demonstrate that a factual issue DOES exist - not enough that it may exist.
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Cross
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"Facts: Cross challenges US non allowance of certain educational deductions taken by Cross on tax return. District court grants SJ for Cross. US appeals. Rule: When there is a question/evidence as to the credibility of a witness, NMP should have opportunity to cross examine and thus SJ should be denied. MP failed to meet burden (did not show wife and poodle were part of education expenses!)"
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Anderson
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"Facts: ? sued ? for libel for publishing about him in their magazine. ? moved for SJ on ground that ? did not prove actual malice. Judged by clear and convincing standard. Is evidence such that a reasonable jury would return verdict for NMP? (The determination of whether a factual dispute must go to a jury should be guided in light of the substantive evidentiary standards that apply to the claims at issue). Yes à SJ denied, No à SJ allowed. (Not binding on CA. Depends on the local rules.)"
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Purists vs. Pragmatists
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"Purists – everyone should have their day in court –jury should fact find, Pragmatist – realistic approach – would a reasonable juror believe this?"
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Partial Summary Judgment
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Federal Approach: 56 a and b allow judgment on “all of any part” of a claim. It is an open question whether an individual can get an adjudication of a single issue within a claim. CA Approach - CCP 437 – can have partial summary judgment on claims and counts.
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VOLUNTARY AND INVOLUNTARY DISMISSALS
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"(FRCP 41) Voluntary Dismissals: A plaintiff can dismiss with/without an order of the court. If it waits until after adverse party has answered or moved for SJ, it needs to get all parties to the action to agree to dismissal., Under 41a, a P can voluntarily dismiss a case once without prejudice., If a ? files a counterclaim, ? cannot dismiss if the counterclaim can remain as independent action. Involuntary Dismissals: A defendant can move for dismissal of any claim if the plaintiff fails to 1) prosecute; 2) comply with FRCP; or 3) comply with a court order."
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DEFAULT JUDGEMENT
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FRCP 55: A default judgment may be entered against a party who has failed to plead or otherwise defend an action. The default judgment’s type and amount is limited to that demanded in the pleadings. Two step process: Entry of default: A non-judicial ministerial act. Clerk simply check a box to see if ? has submitted proper papers in response to complaint. Judgment of default: ? must then take affirmative action to convert it to fully enforceable judgment of default.
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Setting aside default:
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"1) If good cause is shown. 2) Easier to cure an entry of default, than a judgment of default 3) FED - A defaulted party can participate in the prove up hearing to set the amount of damages. CA –A Def in default may not participate any further in the case unless it can first obtain relief from default. "
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Coulas
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A party who answers a complaint is not in default. Failure to show up for your trial does not constitute a default.
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7th Amendment
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"Preserves the right to jury trial that existed at common law. Only applies to federal cases. So, if the case would have been brought for a legal remedy at CL, there is a jury trial, if under equity at CL, no jury trial is required. "
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Methods for controlling the jury
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"Pretrial: motion to dismiss, judgment on pleadings, or MSJ. Trial controls: Voir dire, jury instructions, verdict form, JMOL. Post trial controls: JNOV, Motion for New trial, Appeal (must be based on questions of law)."
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Challenging Jury Instructions
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Before a party can complain to an appellate court that the court erroneously gave a jury instruction it must 1) have pointed out the error to the trial court before the instruction was given 2) provided the trial court with a correct instruction 3) the error must have been prejudicial.
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Judgment as a matter of Law
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"AKA: Directed Verdict 1) Can be made at any time after the opposing party has had its full opportunity to present evidence at trial in its case. 2) Most commonly made by a def after the close of the plaintiff’s case in chief. - If P has failed to put forth enough evidence on all the elements of the claim, there is no need for the defendant to put on its case and nothing for the jury to consider. However, the D may also wait until after it has put on its own case and the P has had a chance to rebut the D’s showing of an affirmative defense. 3) P can move for judgment as a matter of law after the close of the D’s case. NOTE: A directed verdict does not unconstitutionally deny a party his 7th amendment right."
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When is it proper for a judge to grant a directed verdict?
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"Scintilla Rule – Old Rule: Judge many not interfere if there is any evidence—even just a scintilla—supporting a verdict against the moving party. New Rule: Substantial Evidence Test: Allows a judge to direct a verdict unless there is substantial evidence suggesting that the jury might decide for the non-movant, subject to three different approaches."
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Galloway case
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Directed verdict for the government was proper. (injured veteran). Insufficient evidence to show he was permanently disabled for the entire period of time. Mere speculation cannot substitute for probative facts.
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Explain the three Different Approaches for determining if there is substantial evidence warranting a denial of directed verdict?
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"1) Favorable Evidence Only: Court ignores all evidence in favor of the moving party and considers only evidence that favors the nonmoving party. Resolves all Credibility questions in favor of the nonmoving party. If the nonmoving party has introduced more than a scintilla of potential credible evidence the directed verdict should be denied. 2) Qualified Favorable Evidence: In addition to considering the evidence that favors the nonmoving party, the trial court may consider uncontradicted evidence in favor of the moving party. 3) All the Evidence: The court looks at the entire record. Then the court can draw all reasonable inferences in favor of the non moving party."
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How do the JMOL and the JNOV work together?
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Twin Motions: Contemporary JNOV practice requires that a party first moved for a JMOL (judgment as a matter of law) under rule 50a in order to preserve the right to move after a verdict for a JNOV.
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When may a new trial be granted?
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"1) Can be granted when it is consistent with substantial justice 2) Error that made the trial unfair 3) serious enough for the court to throw out the verdict and empanel a new jury 4) it is usually made as an alternative motion to the JNOV. Applications include IMPAC – Incoherent Verdict, Misconduct by Jury, Partial, Against the weight of evidence, Conditional"
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Verdict Incoherent
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Allows for a new trial where a jury verdict is incoherent or not sufficiently detailed. Ex: Magnani case – Jury returned one verdict for several accounts. Court couldn’t apportion the award based on the two claims.
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Jury Misconduct
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"Some JN won’t allow any affidavits by jurors to challenge a verdict, Modern JN will allow affidavits of an outside influence on the jury."
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Verdict Against the Clear weight of the Evidence
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"Can overlap with the JNOV – may be made alternatively, duty of judge to set aside the verdict and grant a new trial if he is of the opinion that the verdict is against the clear weight of the evidence, Not allowed in some JN."
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Conditional
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"1) Remitter—Involves a court’s conditional grant of a D’s new trial motion unless the P agrees to a reduced award. Judgment reduced to amount asked for. If P disputes, judge can order a new trial. Only allowed in federal courts. Additure— Court will conditionally grant a Plaintiff’s new trial motion unless D adds more money. Unconstitutional in the federal system."
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Partial
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New trial on one issue.
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What is Claim Preclusion?
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"When a valid and final judgment on the merits has been rendered, the principle of res judicata precludes a subsequent action between the same parties or their privies on the same cause of action, even as to matters that might have been, but were not raised or litigated in the former case. "
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What are the elements of Claim Preclusion
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"1) Same Claim—Based on the same cause of action as the one asserted in the second action (Federal uses Transactional test, CA Uses primary rights) 2) Same Parties or those in Privity 3) Must be a Final valid judgment on the merits (no further issues remain after the judgment, must relate to the validity of the cause of action rather than technical questions, no claim preclusion when A-1 judgment is obtained by fraud or lack of PJ. Note: defaults are typically based on the merits. Also a motion to dismiss, unless w/out prejudice is also on the merits."
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Defenses Preclusion
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"If you bring a claim as a defense in case 1, you can’t use it to assert an affirmative claim in case 2 - claim preclusion, but you could argue: these claims are different."
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"In General, what is issue preclusion"
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"AKA: Collateral estoppel. When an issue or fact or law actually is litigated and necessarily determined, the parties to the action, as well as certain non-parties are barred from relitigating the same issue in any subsequent lawsuit, even if the second proceeding is based on an entirely different cause of action."
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What are the Elements of Issue preclusion?
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"JAMIN – J- Judgment must be valid, final and on the merits, A – Actually Litigated, M – Mutuality, I – Identical Issue, N – Necessarily Decided."
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Determining whether an issue was actually litigated
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look to the pleadings (this is why we ) amend them to conform to the proof. Can be difficult to show if judgment isn’t clear what the award was for.
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Necessarily Decided
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"Necessary to the outcome of the lawsuit. Does not apply to incidental or irrelevant issues, even if they are actually litigated and decided. Ex: Different burdens of proof: ex OJ, Consent Judgments: was the issue decided by the parties."
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Interpreting Consent Judgments
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"A consent judgment is a final, binding judgment in a case in which both parties agree, by stipulation, to a particular outcome. A consent judgment is both an agreement between the parties settling the underlying claim and an entry of judgment on the pending claim or action. This encourages settlements, allows the parties to settle some issues and litigate others. To determine if an issue was actually decided, consider did the parties intend it to be the final judgment on that issue?"
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"Judgment must be valid, final and on the merits."
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"1) Is it Full and Fair? i.e. Is there reason to doubt the quality, extensiveness, or fairness of the procedures followed in the prior litigation. Examples: Administrative proceedings/Tribunals: was it sufficiently judicial like? "
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Three approaches to Mutuality
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"Mutuality Required, Defensive Non-mutual collateral estoppel, offensive non-mutual collateral estoppel"
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Traditional Rule: Mutuality Required
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"If you seek to benefit, you must be bound. To be bound you must be a party to the first judgment or you must be in privity with those parties. "
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Why was mutuality relaxed?
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b/c Strict adherence to privity requirements have led to unnecessary litigation. Courts have relaxed the requirement of privity.
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Defensive Non-mutual Collateral Estoppel
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"Most common situation in which mutuality has been abandoned is one in which someone who was not a party to the first action and has been sued in a second action by the person who was the unsuccessful plaintiff in the first action attempts to assert collateral estoppel against that plaintiff. In this situation as long as the plaintiff had a fair and full opportunity to litigate in the former action, he will be subject to collateral estoppel defense in the second action. "
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Bernhard
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P sues executor of estate for misappropriation of funds but loses when the transfer is held to be a gift to the executor. P subsequently sues the bank that permitted the withdrawal. The bank is allowed to invoke collateral estoppel against the relitigation of the legality of the transfer to the executor.
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Offensive Non-mutual collateral estoppel
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(only some JNs) The Supreme Court has sanctioned the use of collateral estoppel by a stranger to the original action in an offensive manner against the defendant of that action in limited circumstances in the Parklane Case. The general problem with offensive non mutual collateral estoppel is the wait and see behavior it encourages.
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Parklane and Other Factors
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POMPFAN P - Prior Judgments O - Opportunity to litigate M - Motivation to fully litigate P - Procedural differences F- Foreseeable subsequent action A - Actually litigated N - Not easily joined in action
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State to State Preclusion
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Governed by Full faith and credit clause of constitution requires that the courts of each state enforce a judgment of a court in any other state to the extent that the judgment would have been enforced in the rendering state. Exceptions: Court must have had proper jurisdiction – due process. More FF&C – If 1st JN uses STO and 2nd uses Primary rights can another suit be brought by P as part of the STO. SC has not ruled on this.
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Federal to State Preclusion
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"If it is Federal Question: Supported by supremacy clause, If it is Diversity: Courts are required to apply the law of the forum state of the prior action to determine the preclusive effect of prior diversity actions"
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Any State Agency to Any Fed
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Comes from federal common law - federal court would give the effect that a state court will give to prior administrative decisions (are they sufficiently judicial like?)
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Any Nation to Any U.S. Court
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Treaties and Comity
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