Civil Procedure I

Chapter 1 – An Overview of Procedure

Where Can the Suit Be Brought

I. Subject Matter Jurisdiction: whether a court can hear a particular type of dispute
a. General Jurisdiction: they can hear any claim between any persons unless there is
a legal authority saying that they cannot hear a particular kind of case
b. Limited Jurisdiction: can hear only those cases that are specifically authorized by
the statutes that set up the particular court
i. All Federal courts are limited jurisdiction
c. Hawkins v. Masters Farms, Inc.
i. Creal killed automobile accident and representative of the estate is suing
for wrongful death
ii. Issue is whether there is diversity jurisdiction (No)
1. Should it be Federal or MO state court?
2. Diversity jurisdiction not found  Case dismissed
a. If statute of limitations has not run out in state court they
can bring suit there
iii. Where was Mr. Creal domiciled? Found it to be KS where he lived with
wife, not where he got his mail at mom’s house in MO – same state as
Masters Farms = can’t be heard in Federal Court
iv. Fed. R. Civ. P. 12 (b)(1)
II. Personal Jurisdiction: the state or federal court in a particular state which has the power to
render judgment against a particular defendant
a. Does the person have sufficient contacts within the state
i. It’s the plaintiff’s job to decide
ii. Old Navy CEO can be sued anywhere in the country
iii. Mama’s Pizza can only be sued in NY
b. Sometimes a state passes a law to make it clear that certain kind of behavior will
make it sufficient to be charged
i. Driving on a states roads can be consent to personal jurisdiction in that
state
III. Venue: place of trial, venue rules try to allocate business among the courts who have
subject matter & personal jurisdiction
a. 28 USC 1391 Federal/ State Courts – which one?
IV. Service of Process: Can mail the defendant the complaint to be signed & returned, but if he
refuses the attorney must draft a summons to be personally served (Rule 4)
a. First you must draft a complaint, file it with the court (Rule 3)

Stating the Case

V. Drafting & Filing a Complaint (Rule 11)
a. Bridges v. Diesel Service, Inc.
i. P’s attorney failed to exhaust administrative remedies with the EEOC
under ADA, D’s attorney filed motion for sanctions under Rule 11
1. Counsel must be minimally careful to do the proper research and
file to the best of your ability a legitimate lawsuit

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ii. because he didn’t do this, defense counsel filed motion for sanction under
federal rule 11, which is to deter improper conduct
1. sanction wasn’t held because before that rule 11 motion, he filed
the administrative complaint and tried to get the action he had
made suspended
2. ruled that plaintiff made a mistake but almost immediately caught
it, and in areas where people make civil rights types of complaint,
judge does not want to discourage them, because these cases when
legitimate should be litigated.
iii. Strategic move Defendant didn’t think that he’d win, he wanted to point
out that plaintiff’s counsel was a doofus
VI. Complaint: goals (1) show the other party know you have a good case (2) let the judge
know what the case is about – may not want to reveal everything
a. Bell v. Novick Transfer Co. (Rule 8)
i. Rule 8 says you only need a short & plain statement of the claim
ii. Wanted Motion to be dismissed for failure to state a claim
1. court ruled that they gave them enough for now!
2. rule 11 has to do with whether or not you conducted at least the
minimal research to make the claim legitimate
iii. Rule 8 establishes elements of claim & defenses
1. need a short & plain statement of claims
2. Defense: forms of denial & affirmative defenses
VII. Responses – Motions and Answer
a. Response: defense of the action
i. Motion: attacks the summons and complaint in some way
ii. Answer: a responsive pleading
b. Preanswer Motions:
i. There is a reason, that has nothing to do with the claim itself, why the
action should not proceed
ii. Can say that even if everything in the complaint is true under the
substantive law the plaintiff has no right to relief
iii. If the defendant is unsure of what is being asserted he can say the
complaint is too vague or confused & complicated
c. Possible Answers
i. Defendant denies the truth of 1+ allegations or he may deny the allegation
until he finds out more (Rule 8(b))
ii. Defendant can assert addition claims which will wholly or partially defeat
the plaintiff’s claims (affirmative defenses)
iii. Asserting a claim against the plaintiff (Rules 13 & 14)
1. Counterclaims
a. Compulsory: must assert it now or you have no other
chance, use it or lose it
b. Permissive: if you don’t make it now you can make it
another time
2. Cross-claims = claims against co-parties (D1 sues D2)
3. Third-party claims

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d. Amendment of pleading: Rule 15

Parties to the Lawsuit

VIII. Permissive and Compulsory Joinder (Rule 20)
a. They stole 5 seconds of music, hundreds of times.
b. Bridgeport Music Inc. v. 11C Music: P wanted to assert the 477 claims against
700 defendants as one because that way it seems worse, D wanted to break it up
because they knew P wouldn’t make 477 lawsuits, judge wanted them to settle so
he said they have to decide terms for severance
i. thus the judge has sent the case out of court and has basically had the
enormous untriable case to settlement
c. Compulsory Joinder: brings a party into a lawsuit by an order of the court
d. Courts call for joinder when the underlying substantive law in a suit involves
rights or liabilities that are joint, when 2+ parties are claiming the same property,
or when granting relief to one party would necessarily affect the right of another
party
IX. Intervention (Rule 24)
a. Right to intervene when a lawsuit conducted without him has the potential to
inflict real hardship on him
i. Intervention as of right
ii. Permissive Intervention
X. Class Action: allows some parties to stand for an entire group

Factual Development – Discovery

XI. Discovery can (1) be done through normal observation, knowledge, & conversations or (2)
be compelled
a. Means of Discovery:
i. Disclosure among parties (Rule 26(a)(1))
ii. Request for production of documents
1. From the other party (Rule 34)
2. From a non-party (Rule 45)
iii. Oral depositions: question a witness under oath before trial (Rule 30 & 45)
iv. Written interrogatories: can only be used against a party (Rule 33)
v. Physical & Mental examination: must show good cause (Rule 35)
b. Butler v. Rigby
i. Allowed documents pertaining to how many patients were referred by P’s
attorney
ii. Discovery is a broad tool and you may obtain information which will lead
to relevant information at trial
1. want names of other patients but they say that this is not allowed
iii. Privilege is a rule of law designed to keep information from the public eye
1. even here where the cost of privilege is substantial

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Pretrial Disposition – Summary Judgment

XII. Summary Judgment: provides a mechanism for deciding cases for which a trial is not
necessary and would serve no purpose, not usually granted until after discovery is complete
(Rule 56)
a. Not ordinarily available until after the parties can complete their investigation
(discovery)
b. Most cases are drafted so that there is a case
1. at some point the parties then have all information they will
achieve before trial
a. usually one or both of the parties move for summary
judgment which disposes the case
c. The judge is looking for a “Genuine issue of any material fact”
i. Genuine: a real issue
ii. Material: outcome determinative
1. not whether or not the car that ran the light was blue or green, but
whether or not it was there
iii. it frequently turns out that summary judgment is effective way of getting
rid of cases that shouldn’t be in court
1. there can be a moment where the judge says there is not a genuine
issue of material fact
a. trial is over if judge finds that
iv. It can be granted if assuming the facts are true no relief would be granted
or no reasonable could believe a party’s facts
d. Houchens v. American Home Assurance Co.
i. Insurance company files for & is granted summary judgment because the
policy only paid if there was an accidental death & since the husband
disappeared (and is legally presumed dead) there is no proof of an accident
ii. This is a final judgment, so she could appeal
e. Default Judgment: granted when a defendant fails to answer a complaint entirely
or fails to defend (Rule 55)
f. Dismissal: granted if plaintiff does not obey an order of the court
g. Voluntary Dismissal: plaintiff can ask for it if he wants to start over (Rule 41(a))

Trial
XIII. Jury selection: can challenge jurors for cause and have a certain number of preemptory
challenges, for which a reason is not necessary
a. Jury trial is disappearing, over 95% of cases files don’t go to trial
XIV. Trial Order: P opening statement, D may make opening statement, P examines his
witnesses, D cross-examines them, D may make a motion for directed verdict, if not made
already D can make opening statements, D examines his witnesses, P cross-examines them,
P may move for directed verdict, P rebuts, D rebuts, P & D rest, either can move for a
judgment as a matter of law, closing arguments, within 10 days the loser may move for a
judgment notwithstanding the verdict, loser may appeal
a. Norton v. Snapper Power Equipment

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i. Norton was using the Snapper mower and as he was going up an incline,
the breaks failed, causing him to land in the creek. The blades then
chopped off a few fingers.
1. if there had been a “dead man” device, his fingers may have been
saved
ii. Defendants filed motion for directed verdict
1. court granted it on several claims
2. judge reserved ruling on the strict liability—counsel, I’m not ruling
on that now
a. the only claim he’s worrying about is strict liability
b. he’s denying it now, trial continues
3. jury decides that superior was liable for 80% liability
iii. Jury found D 80% liable for injuries – Judge issued j.n.o.v.
1. Says a reasonable jury could not have come to his conclusion
2. the JNOV saves time and money because the appellant court can
reverse because they can appeal to the jury decision

Former Adjudication
XV. Claim Preclusion v. Issue Preclusion – Previously litigated to a conclusion
a. Claim Preclusion: the first claim precluded the second one, the claim must be the
same in both actions (res judicata)
i. in a claim preclusion, the first judgment is deposed on all matters which
were, should, or could have been litigated
ii. this claim was already the subject of the law suit, therefore the plaintiff
doesn’t get to try it again
b. Issue Preclusion: a different cause of action is filed, but one or more of the issues
have been previously litigated to a conclusion (collateral estoppel)
c. Rush v. City of Maple Heights
i. Rush was injured in motorcycle accident, judgment was for rush on
property damages—city was negligent for potholes, city must pay $100
for motorcycle damages
ii. Rush then tries to sue for personal injuries
1. sues again and its Rush against city for personal injury and claims
negligence
a. they should be prohibited from saying that they are
negligent or not causing the action because it was already
decided in the former case that they were negligent
i. ISSUE PRECLUSION
iii. Ohio supreme court decided there was claim preclusion, and case can’t be
tried twice
1. the injuries are 2 things that are for 1 case because they were
caused by 1 action!
2. moral of the story, file it all at once!
iv. P wants issue preclusion to allow a previous verdict of negligence causing
property damage in a lawsuit to be applied to the claim for personal injury

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v. D wants claim preclusion to say that this claim has already been filed 
Court found for D

Appeals
XVI. Appeals address the correction of a trial courts ruling, not every mistake can be appealed
a. Interlocutory: to speak between, not a final judgment, only a ruling on a matter in
front of the court
b. Final judgment: the trial courts ruling ends, can be appealed
c. Apex Hosiery Co. v. Leader
i. Plaintiff filed motion for discovery
1. trial court doesn’t want to get into this unless it is dire
ii. court granted the motion for discovery, which defense then took to court
of appeals, appeals court said that they have no jurisdiction on this matter,
because they can’t appeal after a motion, you can only appeal after the
case is done
1. motion for discovery is interlocutory judgment
iii. Court did not have jurisdiction to hear the appeal because it was an
interlocutory order

Part B – The Process of Litigation

Incentives to Litigate

I. Litigation in the U.S. at the Start of the 21st Century – Statistics

a. State court hold 98% of litigation
b. Family law is 20% - biggest single type of civil litigation

Public Adjudication, Private Resolution & the Alternative Dispute Resolution

Movement
II. ADR- Alternative Dispute Resolution “Mediation & Arbitration”
a. Is negotiation a form of ADR? No because there is nothing alternative in negation
b. Third party neutral- hears the dispute to assist the parties in resolution & has no
stake in the claim
c. Mediation- assist the parties to come to a resolution themselves – party controlled,
mediator never makes a prediction, mediator is a facilitator
d. Arbitration- the 3rd party neutral makes a decision for the parties – parties lose
control, like in a lawsuit, sort-of judge – parties decide whether or not the
arbitration is binding
e. Private system of justice – the parties retain control of their cases, this dispute is
out of the public domain
i. some issues should be in the public domain (Civil Rights, domestic abuse)
ii. because of this, they now have mediation standards
f. Human cost of litigation: it changes relationships

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Why Litigate?

Substitionary Remedies
III. Substitionary Remedies = $ Money Damages $
a. Compensatory Damages: the damages should compensate the plaintiff for:
i. money he has lost, had to pay – easy to calculate
ii. beyond economic losses (pain & suffering, emotional distress, loss of
consortium, humiliation, harm to reputation) – hard to measure or predict
1. Usually 3-5 times compensatory damages to cover attorney’s fees
because you cannot tell the jury to give counsel fees, but jurors
know
b. Liquidated, Statutory, & Punitive Damages
i. Liquidated: an agreed to the price of the harm set beforehand by the
parties, an estimate by the parties of what they think the breach is
1. cant be too high, it can induce sabotage
2. cant be punitive in nature
3. we have them because its easier for the courts
ii. Statutory: statutes sometimes set minimum damages not specifically tied
to the amount of the loss suffered in order to offset the costs of litigation
over monetarily small disputes & encourage plaintiffs to enforce public
policy by bringing suit
iii. Punitive: aim at punishing defendants who have acted outrageously,
deterrence & retribution
1. only given in 5-7% of cases, median amount is $50,000, ratio is
1:1
IV. State Farm Mutual Automobile Insurance Co. v. Campbell
a. The investigators & State Farms found the Campbell was liable for accident, P
offered to settle for $50,000 (State Farms limit on insurance), State Farm turns it
down & tells the Campbell’s the risk is on State Farm, Went to trial, came back
for P for $185,849 & State Farm wouldn’t pay excess, told them to put for sale
signs on their house & State Farm would not post bond for the appeal
b. Campbell’s got their own lawyer, The two victims accepted the $50,000 if they
could join in litigation with the Campbell’s against State Farm
c. Campbell’s appealed & it was denied – then State Farm paid the excess damages
d. In federal courts on appeal because question is about due process, violation of
constitution amendment
e. Litigation #2: State Farm is saying that it was an honest mistake, Campbell’s
bring in lots of evidence on State Farms scheme for cutting costs (got the info
through discovery)
f. Issue: Does the large punitive damage violate due process?
g. BMW v. Gore
i. degree of reprehensibility of the defendant’s misconduct
1. the court really found State Farm reprehensible for their national
policy – not at issue here
ii. the disparity between the actual or potential harm suffered by the plaintiff
and the punitive damages award

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1. P’s harm was being dragged through trial 1.5 years

a. What’s that worth? $1mil
2. Disparity 145:1
3. suggest single digit multiplier
iii. the difference between the punitive damages awarded by the jury and the
civil penalties authorized or imposed in comparable cases.
1. most relevant was $10,000
h. court revered Utah Supreme Courts ruling & remanded it for proceeding
consistent with their opinion

Specific Remedies
V. Civil is not obeying the order of the court: to testify on steroid investigation
a. you are incarcerated until the grand jury is done, or until you agree to testify –not a
crime, you are holding the keys to your own cell!
b. Criminal is violation of a court order “walked right through that restraining
order”—another crime
VI. Law & Equity
a. Law = common law
b. Equity = Chancellor, specific performance
c. 3 key differences
i. jury demandable: can you get a jury in this case?
1. law cases are
2. equity are not
ii. damages
1. at common law, looking back & want cash
2. equity- generally limited to specific performance, looking forward
& want to stop something
iii. how do you enforce it
1. money judgments through collection like procedures, cannot get
the defendant locked up for it
2. equity orders are enforced by compulsions (Greg Anderson)
d. money judgments are enforced through collection type procedures
e. equity orders are collected by coercion
VII. Specific remedies: courts may order parties to do things, or refrain from doing things, or
have official recapture personal or real property from defendants wrongfully possessing or
occupying it.
VIII. Sigma Chemical Co. v. Harris
a. Former employee of Sigma learns trade secrets while employed with there, Sigma
had him sign non-competitor agreement (can’t work with competitor for 2 years
& never disclose secrets)
b. Employee worked for competitor & blabbed
c. Sigma sued for equity (specific performance) – Injunction!
i. Damages would be hard to determine
ii. Even if Sigma got damages their trade secrets are still getting out
d. Balances hardship to the parties: to plaintiff if relief is denied & to the defendant
if its granted

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i. Because it is considered a potent weapon

ii. Damages aren’t an adequate remedy then they analyze the hardships
e. Why judge doing both finding of facts & law? Because there is no jury because
this is an equity case
f. difference of law and equity: cash makes the cut feel better v. stop the bleeding!

Declaratory Relief
IX. Declaratory Relief: parties seek a declaration of their rights without any coercive relief
such as damages or an injunction (Rule 57)
a. In order to retain a declaratory judgment the court must be convinced that there is
a substantial dispute—but it doesn’t have to be filed as a complaint
b. The law is set up to resolve real fights not hypothetical ones Case or
controversy must exist
c. Declaratory judgments appear to contradict this notion
i. The court must be convinced there is a substantial dispute
ii. How do you know it’s a real case?
1. person asking for relief must show that if he doesn’t get the relief
he will be in the middle of a dispute & it will be worse
d. A says he’ll build house for B using top quality material, B keeps complaining
about A’s material, B demurs stating there is no claim, A seeks declaratory relief,
granted because there is a confrontation & the damages will keep getting bigger

Financing Litigation
X. Part of the cost is provided by the public  the judge, the court, salaries of institutional
lawyers (prosecutors) -- Others a provided by the parties  form fees, expert witnesses,
attorney’s fees
XI. The American Rule: system in which each party pays its own legal fees
a. English Rule: Compensates winner with damages & cost of litigation
b. Way attorney’s are paid: contract/retainer letter, hourly fee, flat rate
XII. Insurance & The Contingency Fee
a. Contingent Fee System: lawyer agrees to provide legal representation, with the
fee to be paid from the proceeds of any settlement or recovery
b. Contingency fee attorney: (1) take every case you can get (2) be selective in what
cases you take
c. Successful cases must cover the expenses of the unsuccessful cases
d. It’s a form of insurance
i. Insurance shares costs between clients – pooling resources
ii. Same thing is happening on the P’s side
1. clients usually don’t have the money to pay the hourly fee
2. they pool the resources
3. the lawyer does all the work & is not paid if & until they win
e. There are some financial companies that will purchase an interest in your lawsuit
XIII. Public Subsidies & Professional Charity
a. If there is no potential monetary damages you cant have contingency fees
i. Persons with small claims & persons without liquid assets  holdover
tenants, spouse & parents sued for divorce & child custody

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b. Sometimes done by volunteers operating outside the formal organization- lawyers

who donate their time
c. Legal Aid- institutions funded by tax dollars, government aid & private donations,
focus on people on small means who are defendants from eviction & creditor suits
d. Private firms pledge time & money for small organizations that function as a
referral system
e. Subsidized legal services for a cause (ethnic, religious, etc.)
XIV. From Fee Spreading to Fee Shifting
a. The common fund: P brings a suit that benefits him, but also other similarly
situated people
i. P’s efforts creates a fund from which lawyer’s fees can be deducted –
shares fees
b. Contractual fee shifting: can create a contract where if litigation over the contract
arises the loser will pay the winners attorney’s fees
c. Very little by common law: maybe if P groundlessly brought the suit
a. By statute: statutes that authorize the courts to award fees to the parties, Civil
Rights, or other public interest areas
i. Generally only for prevailing P not D
XV. Evans v. Jeff D.
a. Class action, parents of institutionalized children asked for injunctive relief
i. state agreed to give it in settlement but would not give attorney fees, civil
rights statute allows attorney fees to winner
ii. he is sort of the winner because it is a victory but not quite the one the
statute would have contemplated
b. they were 1 week before trial, Legal Aid society spent a lot of time, took attorney
away from all the other clients
i. if they had gotten the attorney’s fees the society could have hired more
attorney’s to advance capacity to help the cases on the backburner
c. Legal Aid attorney’s boss told him no don’t settle because they wouldn’t get paid
i. Who’s their allegiance to?
1. all legal aid cases
2. this particular client
ii. District Court says there is no ethical conflict because it is so clear that
you have one set of clients
1. clients are getting everything they want- no conflict- must settle
iii. Not reviewing attorney’s judgment or decision they are reviewing the
lower court
d. Attorney wanted district court to change the agreement so that they could get
attorney’s fees
i. They said no & Supreme Court affirmed & said it might hurt the plaintiffs
in future similar cases if they cannot give up counsel fees
1. problem:
a. attorney’s might not take the case if they cant get counsel
fees

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b. Attorney General thought process: has to give up relief &

pay counsel fees anyway  lower the settlement offer or
just roll the dice & go to trial
ii. Supreme Court not making a policy choice, they are formally interpreting
an act of Congress (a statute)
1. waiving a right to counsel fees is allowed
2. make a policy analysis of the statute, but its under the umbrella of
the statute
e. Idaho tax payer p.o.v.: they pay all the fees  both sides are institutional
XVI. Buckhannon Board & Care Home v. West Virginia Dept. of Health & Human Services
a. Nobody won  lawsuit dismissed at moot because Legislature changes the law
(no controversy left, it doesn’t exist anymore)
b. Prevailing party: Someone who obtained a judgment from a court in his or her
favor
i. If they get everything they want didn’t they win?
c. All other cases like this uses the catalyst theory (P is the prevailing if they
achieved the desired result because brining the lawsuit brought about a voluntary
change in D’s conduct)
d. statutory review: house & senate reports discussed this issue - they meant a
prevailing party is the person who get what they want not just those who get a
judgment
i. they didn’t write it into a statute
ii. some justices believe that what the phrase is what it is, if they meant
something else, too bad
e. How can we help avoid Supreme Court’s interpretation of prevailing party rule?
How do you frame pleadings to avoid what happened here? We need to get the
attorney fees so we need a judgment
i. sue for damages & an injunction
1. the injunction can be gotten out of with a change of law (change
makes it moot)
2. damages cant get out of it, even if they’re minor  if they settle &
sign an order your entitled to attorney’s fees
ii. Injunctive relief is not just diff in kind from damages, but its different in
many diff consequences
1. the way you frame the relief & how much effects everything else
that can follow in the case

Provisional Remedies
XVII. Provisional Remedies: relief pending final adjudication of the dispute
a. Problems: (1) How should a court decide whether to grant temporary relief
without all the relevant information? (2) When does the curtailment of ordinary
procedures in granting provisional relief amount to a denial of due process?
b. If you wait for relief there will be catastrophic results, need emergency relief or
there will be irreparable harm
c. TRO Temporary Restraining Order: what you file for if there is no time to do
anything else – legal equivalent to shouting fire in a theater (You better be right!)

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i. Courts hate to do it
1. Ex parte orders: without the other party
2. most judges don’t allow if it its all possible to get the other party
there in some way
ii. Methods of TRO:
1. Stop
2. Do it right
3. Don’t Stop
iii. Rule 65(b)  just because you want TRO for an emergency doesn’t mean
you don’t produce the other side in some capacity
d. freezes the case until the preliminary injunction can be heard - to keep the status
quo until judge/jury can decide the case
e. median time between cases to trial is 18 mo., preliminary injunction hearing can
be held in 2 mo.
f. Preliminary injunction: notice & opportunity to be heard
i. TRO- ahead of the preliminary injunction
XVIII. William Inglis & Sons Baking Co. v. ITT Continental Baking Co.
a. P will go bankrupt/out of business if a preliminary injunction is not awarded -
Lawsuit is for injunction & damages
b. Case filed in 1971 under anti-trust statute, injunction filed in 1974
c. District Court made D do a cost-benefit analysis
i. Appears to defeat fast-track = case specific
d. Rule: (1) P will suffer irreparable injury if the injunctive relief is not granted (2) P
will probably prevail on the merits (3) in balancing the equities, D will not be
harmed more than P will be helped by the injunction (4) granting the injunction is
in the public interest
e. Higher court says the trial court forgot about a test
i. Serious question on the merits & the harm is much greater to P than D 
It is not necessary that the moving party be reasonably certain to succeed
on the merits, if the harm that may occur to P is sufficiently serious, it is
only necessary that there be a fair chance of success on the merits.
ii. court reversed  now have to have another hearing & apply the test, or
just apply the facts if it can be done with out a hearing
f. What if the preliminary injunction was granted but then D won? Who’s liable?
i. not judge
ii. if the suit was frivolous then P could be
iii. if they acted in good faith then “tough luck” to D
g. D’s are reducing prices in an anti-trust fashion  harm to P is staying business
fighting the market
i. Public interest: hurts poor who are buying the bread if we put in an
injunction to raise prices for P
1. If D can keep lowering the prices then they could put everyone out
of business & then shoot their prices up
h. Preliminary injunctions are interlocutory orders (grant of denials) that are
appealable
i. Garnishment & attachment are provisional monetary relief

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XIX. Fuentes v. Shevin

a. On a writ of replevin the company seized P’s goods without an opportunity for
her to be heard  Denies her due process
b. Due Process clause applies only to state action
i. the court issued an order allowing sheriff to repossess the property
ii. not private dispute because state got involved
iii. D is using state action to further his needs
c. Does this decision require a pre-seizure hearing in every case?
i. No SC says you have to give notice – you have the right to a hearing,
gives you the opportunity to assert your rights if you choose
d. Due process requires a balancing act between the parties
e. Prejudgment replevin provision work as a deprivation of property without due
process of law if they deny the right to a prior opportunity to be heard and for the
validity of the underlying claim against the debtor to be somewhat proven before
chattels are taken from the possessor.
f. The document had a reference to waiving the right, but SC says this is due process
clause & you cant just sorta sum it up in small print  that is not waiving, it has
to be clear
i. next time they draft the contract it would be explicit, highlighted – does
that make people read it? Probably not but it’s binding
g. Does not effect the repo man or bailbonds men - it’s not a state action!
XX. Notice – Chicken farmer wants to stop neighbor from setting off dynamite for 2 days: Will
he get a TRO? No– need to bring in other side
a. just because its an emergency does not mean you don’t have to bring in the other
party or explain why you cant (Rule 65 (b))
i. want the other party there because they might work it out on their own

Pleading

The Story of Pleading

I. Telling Stories
a. Rule 8(a) Claims for Relief. A pleading which sets forth a claim for relief… shall
contain (1) an allegation of jurisdiction (2) a short & plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for judgment for
the relief the pleader seeks. Relief in the alternative or of several different types
may be demanded.
b. The complaint must (1) invoke at least by reference a body of substantive law (2)
sketch a factual scenario that, if shown to be true, falls within that body of law.
i. An advocate will do more, you want to show you’re right by telling one
side of the story within the limits of the truth
c. Paul Pearson accident
i. P pulls into intersection when light turns green & car is hit by van
ii. Diana & Debbie were in the van owned by Drip Electrical, each said the
other was driving
iii. P resides in NY, D’s are in FL  how do you get into federal court?
diversity jurisdiction

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Civil Procedure I

1. Money threshold for federal court $75,000 28 USC 1332

a. Amount in controversy exceeds: (1) the minimum in 28
USC 1332 or (2) $75,000- but what if they change it
2. Venue: we’re in federal court, events took place in Fort Lauderdale
so we sue in their district
iv. Describe accident: we don’t who was driving so say “Debbie Drip or
Diana Dolt were driving”- Drip or Dolt negligently/recklessly drove a car
owned by Dolt Electrical into P’s vehicle which was lawfully driving into
the intersection
v. Describe damages & injuries- $20,000 in hospital bills, injuries force him
to drop out of school, present & future pain, etc. give details to make the
judge sympathetic
vi. Wherefore P demands judgment against Dolt electrical, and Dolt or Drip
in the sum of _ & costs of such suit
II. The Functions of Pleading
a. Dilatory Pleas: responses that delayed the suit
i. Challenges to jurisdiction “Not here”
ii. Pleas in suspension challenged P’s right to bring the action until some
problem was resolved “Not now”
iii. Pleas in abatement challenged various procedural defects in the complain
“Not until this defect has been fixed”
b. Dilatory pleas are now Rule 12(b) except (6)
c. Preemptory Pleas: grappled with the merits of the claim
i. Demur conceded the truth of factual allegation, but challenged their legal
sufficiency “So what”
1. Rule 12(b)(6)
ii. Traverse conceded the legal sufficiency, but challenged the factual
allegations “Not true”
1. An answer Rule 8(b), which is a denial not a motion
iii. Confession and avoidance conceded the legal sufficiency and factual
allegations, but alleged additional facts that changed their significance
“Yes but”
1. An affirmative defense Rule 8(c)
d. Traverse v. Demur
i. Traverse or 8(b) are a finding of fact = jury
ii. Demur or 12(b)(6) is a finding of law = judge
III. Haddle v. Garrison
a. Wrongful discharge is a state action
i. Haddle feels he was fired from his at will job for testifying before the
grand jury in the indictment for fraud of people from his company
b. Citing a federal law- cant file that in state court
i. In general a complaint can be filed in state court
ii. Federal jurisdiction cases must be filed in federal court
iii. Not in under diversity jurisdiction
1. implicit in diversity is “COMPLETE” diversity!!!
2. P & most D are from GA, one D is from SC

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Civil Procedure I

iv. Case filed under 42 USC § 1985  federal law

c. Wrongful discharge
i. Problem is with “at will” employee
ii. Bigger issue  Retaliation for grand jury testimony
1. Other reasons for wanting federal court
a. Federal courts are faster
b. Civil rights violation in fed court may be entitled to
attorney’s fees
iii. statute allows for loss to person or property
1. if he could be fired for any reason is he losing anything
2. do you have any expectations at an at will job?
a. Assume you wouldn’t be fired because your boss conspired
to do so
d. Complaint painted the picture to show bad guys & good guys
e. D filed motion to dismiss – failure to state a claim
i. District Court had to dismiss the claim because of case law, had to follow
higher courts precedent
1. Morast v. Lance  at will employment is not constitutionally
protected – issued by 11th circuit court
2. district court not powerless, he could say how he really feels in
dicta
f. P appeal to the 11th circuit
i. They 3 judges in the 11th circuit who would hear this case cannot overturn
Morast
1. if they sit en banc (all of them) then they can overturn it
2. the attorney or the court can take the case en banc
g. Why did the Supremes take the case? Because the 11th & 1st and 9th circuit ruled
differently on the issue of at will employment warranting constitutional protection
i. Civil rights should not depend on where you live for federal protection
ii. Supreme grants cert:
1. matter of national importance
2. questions answered in radically different ways in the circuit courts
h. Supreme Courts reasoning
i. Statute is aimed at intimidation & retaliation
1. looking at the at will employment is not so important
2. just like 3rd party interference in employment – a tort
ii. Sent it back to circuit court, who sent it back to district court for trial
i. If we represented D now that the motion to dismiss was overruled
i. we’re now gonna say he’s a bad employee that’s why we fired him
1. he can be fired for cause just not for retaliation
j. Haddle won the case, but got $65,000 maybe because the company went out of
business so he would have lost his job soon
i. But he also got $258,113 in attorney’s fees
IV. Rule 8(e)(2) a party can set forth 2 or more statements alternately or hypothetically &
also as many claims/defenses as you wish even if they’re inconsistent

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Civil Procedure I

a. If you don’t know & you have to file to get that info or the statute is running out
 you have a good faith reason for believing one or the other statement is true
V. Ethical Limitations
a. Rule 11 is part of the procedural guidelines but its an ethical limitation
i. so important, we want it to be so obvious to lawyers
b. To be sanctioned under Rule 11 it must be in writing
c. Rule 11 doesn’t apply to anything dealing with discovery
d. Under Rule 11 a lawyer can be for not doing proper research & party can be
sanctioned if they are responsible for the violation because he provided the
attorney false documentation
i. lawyers are required to be suspicious of their clients stories/ skeptical
about everything
e. there is a 21 day grace period with rule 11 where you can take back the complaint
i. not trying to punish, try to move along wheels of justice
f. Rule 11 doesn’t require you to correct to the complaint, but you cant refer to it
i. A good lawyer would withdraw it
ii. You are forbidden from later advocating a position you know to be false
VI. Walker v. Norwest Corp.
a. District Court granted D’s motion to dismiss the complaint (Rule 12(b)(1)) and
awarded sanctions of $4,000 worth of attorney’s fees (Rule 11) against Massey,
Walker’s attorney, for filing a diversity case in which he failed to plead complete
diversity citizenship & actually alleged facts against it. Circuit affirmed
b. P’s counsel thought it was too hard to find out the citizenship of all the D’s
i. Too hard is not believable – just do the research
ii. Bring it only against those D who he knows live in another state then you
can have it in Federal Court under diversity jurisdiction
iii. Violation of Rule 11(b)(2) he is trying to sue non-diverse defendants in
federal court – legal contention not warranted by law
1. cannot sanction a party for a violation of rule 11(b)(2) – this is in
11(c)(2)(B)
VII. Christian v. Mattell, Inc.
a. When awarding Rule 11 sanctions a court may only consider conduct regarding
pleadings, written motions, and other papers that have been signed and filed in a
given case.
b. District Court sanctions Hicks at least in part because he signed & filed a factually
meritless claim & for misrepresentations in briefing, but other examples given by
the court suggest they considered extra-pleading conduct
c. Why not move for Rule 12(b)(6) right away instead of bringing Summary
Judgment?
i. Because the copyright infringement was a valid claim but it was false
because cool blue Barbie was copyrighted first that is a denial to put in an
Answer
d. Why didn’t D move for Rule 11 sanctions right away?
i. Need to get something to show there is adequate proof of the frivolousness
e. The lawyer was obnoxious in many ways, but Rule 11 only deals with things filed
with the court

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Civil Procedure I

1. The court of appeals is telling the judge that there are other
sanctions that go with the other behavior so articulate which facts
go with which sanctions
f. Mattell wanted over $500,000 in attorney’s fees
i. Rule 11 sanctions are for what was done that did not need to be done
ii. Mattell trying to make a profit
iii. The awarded fees must be justifiable
g. Why did the lawyer for Claudene doll cry poor? What if Mattell knew he was
poor?
i. Aggressive protection of the copyright
ii. They knew they wouldn’t get the money
iii. They care about the message to the legal community
h. Rule 11 isn’t just punishment – trial courts want to fix the problem & there are
other options for sanctions
i. Can make attorney apologize, continuing legal education.
VIII. Special Claims Requiring and Forbidding Specificity in Pleading
a. Stradford v. Zurich Insurance Co.
i. Stradford was a dentist that allowed his insurance to lapse and then filed
fraudulent charges for damaged property, insurance co pays first claim,
but catches on at the second one
ii. Stradford files suit for breach of contract & Insurance co. counterclaims
fraud
iii. Stardford makes a 12(b)(6) to dismiss the counterclaim because they failed
to articulate the fraud with particularity bringing to the courts attention the
violation of Rule 9(b)
iv. Do the defendant’s counterclaims of fraud comply with Rule 9(b) that “all
averments of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity?”
1. have to be particular with fraud cause it can be damming to your
reputation – claim on your character
2. it is a legitimate exception to Rule 8
v. The counterclaims do not satisfy Rule 9(b) because it did not state the
“time, place, and nature of the alleged representations” be disclosed to the
party accused of fraud. The claims did not state which statement made by
P was fraudulent.
vi. Motion for Summary judgment granted to D because of P’s breach of
contract (failure to cooperate with investigation)
vii. Why didn’t lawyer for insurance co bring breach of contract?
1. they want to be aggressive but they also want to keep their
reputation in tact – wants to show they don’t just not pay claims
b. District court allowed D to amend their pleadings – why?
i. Rule 15(a) allows for a fairly liberal amendment policy
ii. counsel wrote the court a letter & asked for leave to amend & put in what
the new pleadings would say & showed that it would further the resolution
of the case

17
Civil Procedure I

1. P’s counsel should be very worried about Rule 11- everything they
have written has been false
a. He has to show he has records & documentation
IX. Allocating the Elements
a. Which party has the responsibility for which issues?
i. Burden of pleading
1. one must allege the element of the claim or defense
ii. Burden of production (of evidence)
1. one must produce evidence that tends to demonstrate the
proposition at stake
iii. Burden of persuasion (Proving particular elements of the claim)
1. one must persuade the trier of fact that one’s version of the facts is
more likely than not to be true
b. Deciding who has the burden can be critical - Many cases are very close & the
side that has the burden will probably lose the very close case
i. P usually bears burden of proof
c. Hypo:
i. Persons shall be liable for injuries to others caused by failure to take
reasonable care; provided that no person shall be liable if the plaintiff's own
negligence was the primary cause of the injury.
1. D has the burden of proof for contributory negligence
2. P has to bring the negligence claim
ii. A person who is not himself negligent but who is injured by the negligence
of another, has a cause of action against the injurer.
1. P has the burden to proof for negligence & disproving contributory
negligence
X. Gomez v. Toledo
a. Gomez fired for being an honest cop, reinstated, sued claiming denial of due process
– suspension without a hearing
b. Qualified immunity: The right of a gov’t agent not to stand trial in civil rights
violation where actions took place under a reasonable misapprehension of the law
c. D moved to dismiss (Rule 12(b)(6)) & the court granted it because D was entitled
to qualified immunity for acts done in good faith within the scope of his official
duties & P did not allege bad faith.
d. Must D plead good faith as an affirmative defense? Yes
e. Court held that qualified immunity is available for a defendant to assert as a
defense & a plaintiff is not obligated to anticipate such a defense by stating in his
complaint that the defendant acted in bad faith.
f. Strategic- Why didn’t P just put it in the pleading that Toledo was acting in bad
faith? Because then the burden would have shifted to him & he has to prove it
XI. Thinking Like a Fox – Mark Neal Aaronson
a. Fox knows many things & Hedgehog knows one big thing
b. Lawyers tasks are multi-centered
c. History of law school
i. Lawyers used to be taught through apprenticeship
ii. In school setting is developed very slowly, first there were legal lecture
courses

18
Civil Procedure I

iii. in 1870 Harvard hired Christopher Columbus Langdell

1. he thought you could learn everything through the study of case law
2. appellate cases were well reasoned
3. law professor used to be adjunct lawyers/judges  he hired
professors with no practice background
iv. Aaronson thinks Langdell’s views are too limited for the contemporary
lawyer
1. emotional intelligence regarding human interaction is required
a. sensitivity to addressing clients
b. ongoing interactive relationship with client
d. Role conceptualization
i. You may think you’re your clients lawyer, but what about the competing
obligations
1. the court
2. the other side
3. legal profession
4. the public
ii. Default Images of Lawyers
1. zealous advocate
2. legal expert
iii. They should be those things, but more
1. legal counselor
2. legal planner
3. mediation representative
e. Problem Solving- help novice understand what experts take for granted in
determining legal theories
i. Problem: someone’s perception that a specific situation needs to change
ii. Lawyer’s pitfall is he tries to get from point A to B based on lawyer’s
perspective not the client’s
iii. IRAC – how to analyze the legal dimensions of a problem, a good way not
the only way
iv. Ask a client:
1. What do you want to see at the end of the case?
2. What do you want to see at the end of this process?
3. What are your objectives?
v. Business Schools
1. approach an issue by case narrative model, fosters comprehensive
look at real life problems
2. law school is you get a problem & find the one answer in the rules
f. Decision Making
i. Economic model  range of factors you should consider in possible
resolution to a problem
1. psychological costs to client
a. does client need to get the money now
b. do they want to go through the stress of trial
g. Practical Judgment

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Civil Procedure I

i. The need for reflective judgment is especially critical when underlying

situations are complex & disorderly

Responding to the Complaint

I. Pre-Answer Motion
a. Responses available to plaintiff’s complaint
i. reasons why the court should not proceed with the action
ii. assertions that the complaint, even if true, provides no basis for legal relief
iii. denials
iv. Affirmative defenses
v. requests for clarification and more information
b. How and in what order can defendant make these responses?
i. Defendant can simply proceed to answer the complaint
ii. All the responses above, except (v.) may be included in the answer.
iii. Rule 12(b) permits certain defenses to be raised by a pre-answer motion
c. Why bother with a pre-answer motion?
i. P’s lawyer, unless the statute is about to run, will have a fair amount of
time to investigate facts and the law surrounding the claim.
ii. D’s lawyer will have less than 3wks, unless D waives service of process
(4d) which extends the time to answer a complaint to 60 days.
iii. What happens to D’s obligation to answer a complaint if he makes a pre-
answer motion? Rule 12(a)(4).
d. Examples Page 381
i. Rule 12(h)(1) improper venue must be brought first or it is waived
ii. Rule 12(h)(2) can make in a second pre-answer motion because failure to
join an indispensable party is not waived
iii. Rule 12(g) more definite statement must be consolidated or it’s waived
iv. Rule 12(h)(1) insufficiency of service of process is waived if you don’t
bring it up first
v. Rule 12(h)(2) can ask to join an indispensable party in an answer
vi. Rule 12(h)(3) subject matter jurisdiction can be brought at any time even
on appeal
vii. Rule 12(h)(1) can’t make a motion to dismiss for improper venue after an
answer
viii. Rule 12(h)(2) can make motion for judgment on the pleadings after the
pleadings are closed but before the trial
1. 3 Options under Rule 12(h)(2)
a. in any pleading permitted or ordered under Rule 7(a)
b. by motion for judgment on the pleadings
c. at trial on the merits
ix. Rule 15(a) there is a 20 day period in which you may amend
x. Rule 12(d) improper venue can be heard at a preliminary hearing or at
trial, but it would probably be done at a preliminary hearing because if it is
granted it would have to be sent to another court
e. What is a motion?

20
Civil Procedure I

i. A request to the court for an order (Rule 7)

ii. Consists of several different documents – or combined into one doc.
1. Motion itself, the request for the relief
2. Notice of the motion – tells other party when motion will be heard
3. If the motion in question requires or permits affidavits setting forth
any factual information necessary for granting the motion they will
be included within the motion
a. Affidavit is a sworn statement by someone competent to
testify
4. Memorandum explaining, with reference to the facts, the basis for
the motion.
5. Proposed Order – doc. judge can sign on the spot if motion is
granted.
f. Motion to Strike – Rule 12(f)
i. Acting like a rule 12(b)(6) motion directed to a single allegation
ii. Used to strike any “redundant, immaterial, impertinent, or scandalous
matter.”
1. Will be granted if the allegations have no relation to the case or are
unnecessarily confusing [uncommon].
g. Rule 12(g) and 12(h) set out the consequences of making and not making Rule 12
motions
II. Answer
a. If D can’t demur to the complaint or make an equivalent 12(b)(6) motion, or
dispose of it on any of the ground listed in 12(b), she must respond to its factual
allegations.
i. Traverse – denial
ii. Confession & Avoidance – Affirmative Defense
b. Denials – Rule 8(b) and 8(d)
i. 8(b) – requires D to deny only those allegations that he actually disputes
ii. 8(d) – provides that any allegation that is not denied is deemed admitted
iii. Court looks down on blanket denials and could sanction with Rule 11
iv. Zielinki v. Philadelphia Piers, Inc.
1. Answer contained an ineffective denial part of paragraph 5 of
complaint, sounded like they were denying responsibility but they
were denying even being the right party
2. Under the circumstances, principles of equity require that
defendant be estopped from denying agency because, otherwise, its
inaccurate statements in the record which he knew or had the
means of knowing, are inaccurate, will have deprived P of his right
or action.
3. The confusion over the responsibility for the forklift became clear,
why didn’t P voluntarily dismiss the suit as Rule 41(a) permits and
file a new complaint naming the correct D?
a. Because SOL had ran
4. This is a case in which D with complete certainty could have
denied the allegation of operation and control, had it focused on

21
Civil Procedure I

that allegation. What happens if D isn’t sure or believes P’s

allegations might be true?
a. Some Ds seek to evade the requirements of Rule 8 by
“putting plaintiff to his proof”
5. D was forced by judge to tell the jury that they were the operators
of the forklift even though they weren’t because to do otherwise
would have left P without a claim because the SOL had run
6. In the end the same insurance company would pay because both
companies had the same insurance
7. P’s counsel could have avoided confusion by splitting up
allegations
c. Affirmative Defenses – where is the line between denial and affirmative defense?
i. Layman v. Southwestern Bell Telephone Co.
1. P contends that the court erred when it permitted D to introduce
evidence of easement at trial when they had pleaded only a general
denial and not an affirmative defense of an easement in their
answer.
2. Issue: Is right of entry by easement an affirmative defense in an
action for trespass? (and thus must have been plead in the answer)
a. Rule 55.08 (similar to rule 8(c)) specifies that certain
named affirmative defenses shall be pleaded to a preceding
pleading
b. In addition to those named, which does not include
easement, the rule specifies “and any other matter
constituting an avoidance or affirmative defense.”
3. General denial places in issue all of the material allegations
contained in P’s petition necessary to support his claim and D is
entitled to prove any fact which tends to show P’s cause of action
never had any legal existence.
4. OR if D has a defense in the nature of a confession of the facts of
the P’s petition but avers that the P’s theory of liability even
though sustained by the evidence does not apply to it because of
additional facts (easement) which place D in a position to avoid
any legal responsibility for its action, then such defense must be set
forth in the answer.
a. Despite P’s claim, D had a positive right to enter & disturb
b. It is D’s obligation to affirmatively plead & prove matters
in justification
5. P’s objection to the introduction of the easement evidence when it
was not pleaded in justification of the trespass should have been
sustained
III. Reply – Rule 7
a. Rule 7(a) requires a reply if the answer contains a counterclaim labeled as a
counterclaim otherwise a reply is not given by right and you have to ask the court
to be granted a reply

22
Civil Procedure I

i. If the answer contains a supposed counterclaim that is not a counterclaim

but an affirmative defense, then a reply is not technically required.
ii. If the answer contains allegations that are labeled as affirmative defenses,
no reply is required even though such matters should have been labeled as
counterclaims
b. Rule 7(a) permits the court to order a reply on its own motion or on the motion of
a party.
IV. Amendments – Rule 15
a. Rule 15(a) allows parties to amend a pleading one time freely before it is
responded to
b. Tension between two goals
i. Easy amendment – allows the pleadings to reflect the parties’ changed
view of the case as it develops
ii. Notion of prejudice – reflects the idea that at some point the other side has
to make decisions about how to present its case
c. The Basic Problem: Prejudice
i. Beeck v. Aquaslide ‘N’ Dive Corp.
1. Case on appeal on the question of whether it was an abuse of the
TC’s discretion to grant leave to amend to D after the running of
the statute of limitations
2. After granting this motion to amend, was it an abuse of the TC’s
discretion to further grant D’s motion for a separate trial on the
issue of manufacture? No
a. Separate Trials – Rule 42(b)
3. D initially answered the complaint by admitting that they designed,
manufactured and sold the slide
4. What is P’s argument to the amendment?
a. prejudice to me
b. my lawsuit is dead
c. gets no compensation
d. SOL ran , P cant go sue the real manufacturer
i. Point 1: D started this mess, he said he was the
manufacturer
ii. Point 2: Now the SOL ran & my claim is dead, my
client who did nothing wrong cannot recover at all
5. D’s reply
a. Point 1: it was in good faith because it was based on the
assessment of 3 different insurance companies
b. Point 2: P isn’t entirely without his remedy because he can
sue the real manufacturer for counterfeiting an Aquaslide
i. Or can sue the people who ordered the slide
c. Point 3: It wasn’t my slide so it’s unjust to hold me liable, I
would have to defend on the design that I’ve never seen
before that I didn’t negligently design it
6. After the statute ran president & owner of D concluded it was not
their product and moved to amend.

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Civil Procedure I

a. Rule 15(a) – once issue is joined in lawsuit, a party may

amend “only by leave of the court or by written consent of
the adverse party; and leave shall be given when justice so
requires”
i. that the would-be amender should have a good
reason for not getting the pleading right the first
time
ii. that allowing the change now shouldn’t hurt the
other side too much
b. Prejudice must be shown – TC must inquire into the issue
of prejudice to the opposing party. Mandate can be
overruled by issues of bad faith, undue delay & prejudice
7. P lost, case dismissed, appellate court affirmed
8. DiFonzo  terrible decision
a. Of all the players D was in the only position to ascertain
whether or not D manufactured the slide
i. Why would P continue to look into it after D admitted
manufacture?
ii. D is the expert on the slides, not the insurance
companies
b. Pleadings are designed so that there is not surprise
i. Manufacture should be simple – D said yes, & to
change it to no is a surprise
ii. didn’t bother for 6 months to check manufacture after
admitting it
c. D should not have been surprised by a copycat – they knew
there were other manufacturers copying them
d. Statutes of Limitations and Relation Back
i. Moore v. Baker
1. P claims TC abused its power in denying her move to amend on
the ground that the newly-asserted claim (negligence) was barred
by the applicable statute of limitations
2. The statute of limitations bars the claim asserted in the proposed
amendment unless it relates back to the date of the original
complaint. (relation back doctrine)
a. Relates back “whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the
original pleading”
b. Rule 15(c) – determines whether the original complain
gave notice to D of the claim now being asserted
3. Informed consent & negligence are two totally different claims –
suing for informed consent does not warn the doctor that a
negligence claims might be made  Does not relate back
4. appellate court found no abuse of discretion
ii. Bonerb v. Richard J. Caron Foundation
1. P hurt on basketball court during rehab he had to participate in

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Civil Procedure I

2. Rule: An allegation which changes a legal theory of the case is

appropriate if the factual situation upon which the action depends
remains the same & has been brought to D’s attention by the
original pleading.
3. D objects to P’s amendment on the grounds that the counseling
malpractice claim does not relate back to the original pleading
4. Court ruled that counseling malpractice aside, the amended
complaint still relates back to the original and provided
notice to the possibility of a claim based on negligence

Discovery
Modern Discovery
I. Uses of Discovery
a. produces information about the merits of the lawsuit and permits parties to make
informed judgments about the strength of their and their opponent’s positions
b. because it costs time & money, enables one of the parties to wear the other down,
or both sides to wear each other down, without regard to the merits of the case
c. State & Federal courts adopted broad civil discovery rules
d. If we had open discovery both sides would need to have everything the other side
had no matter how private
e. If we had no discovery you couldn’t get anything from the other side. Trials
would be games of chance
f. What we have is closer to open discovery with important limitations  The
guardians at the gates of discovery: (1) Relevance (2) Privilege
g. Trial court rulings in discovery usually melt into what happens at trial & the
discovery issue is usually not appealable (interlocutory)

The Possibilities & Limits of Discovery: Relevance & Privilege

II. Rule 26(b)(1) allows the parties, w/o court approval, to seek discovery “regarding any
matter, not privileged, that is relevant to the claim or defense of any party”
III. Relevance: For information to be discoverable it must be relevant either to a claim or
defense.
a. Davis v. Precoat Metals
i. Claims of racial discrimination in the work place – Motion to compel
discovery
ii. Was it relevant to the complaint or defense? Both it shows other people
said whether or not it was a hostile environment
iii. Discoverable information is not limited to that which would be admissible
at trial, if it may reasonably lead to relevant evidence, it is admissible.
iv. P limited their request for discovery to those workers who suffered
discrimination due to race, who worked in the same plant so it is relevant
to the complaint or the defense
v. Motion granted

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Civil Procedure I

vi. Strategy: This will build a much stronger case, more people will join in the
action, and now there is real pressure for settlement to get this out of the
workplace
vii. Can they appeal right now? NO – it’s interlocutory!
b. Steffan v. Cheney
i. Self-proclaimed homosexual is challenging the constitutionality of the
regulations that provided for the discharge of admitted homosexuals from
the Naval Academy
1. He was let go from the navy not because he was a homosexual, but
because he said he was
ii. P objected that the questions of his conduct regarding his homosexual
behavior were not relevant to the legality of his separation. He refused to
answer deposition questions on this subject
1. DC dismissed P’s action for failure to comply with its discovery
order.
2. Could do this because of Rule 37
iii. P appealed and order was reversed b/c the nature of his conduct was not
the reason for his dismissal, therefore not relevant. What he did is not
relevant to what he said.
iv. Reversed because DC erred in dismissing claim for failure to comply with
a discovery order
v. Did the appellate court reverse district court for an abuse of discretion?
1. No they held that the question was irrelevant
2. No discretion to abuse because he had no power – don’t have
discretion over everything but over what the law allows them to do
a. reversal on the law, if they never had the power to do it in
the first place
b. have to have discretion in order to abuse it
vi. How did they get to the circuit court?
1. TC order granting sanction under rule 37 dismissed the case
a. not interlocutory, therefore appealable
IV. Privilege
a. Law of evidence creates privileges – protections for information from certain
sources
b. Common types of privilege
i. Self incrimination
ii. Attorney-client
iii. Doctor-patient
c. Rule 26(b)(1) contains an explicit exception: it makes discoverable “any matter,
not privileged, which is relevant.”
i. Relevance
ii. Not privileged

Surveying Discovery: Procedures & Methods

I. Required Disclosures
a. Rule 26(a)(1)

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Civil Procedure I

b. Time line of discovery

i. Rule 16(b) – 90 days after D’s appearance or 120 days after service, the
judge holds a scheduling conference to discuss the way discovery and
other pretrial matters should proceed
ii. Rule 26(f) – the parties meet themselves, w/o judge, to discuss the case as
soon as practicable and at least 21 days before a scheduling conference is
held
iii. Rule 26(a)(1) – at this meeting, or within 14 days after it, to exchange
disclosure lists
c. Rule 26(a)(1)(B) – must disclose all relevant documents unless used solely for
impeachment purposes
i. Impeachment: to discredit the witness and party
1. to use a document for impeachment you run this risk of not being
able to use it all if the opposing doesn’t call that witness
d. Rule 26(b)(1)(E) – lists exempt categories for discovery
e. Rule 26(d) doesn’t allow discovery via interrogatories, depositions, etc. until after
the meeting required by Rule 26(f) has taken place
II. Asking Questions: Interrogatories and Depositions (28,30,31, 32, 33& 37)
a. Interrogatories (Rule 33) typically cheaper b/c you frame a set of appropriate
questions and wait for the answers
i. Can’t follow up evasive answers, sometimes they aren’t useful for more
than names of witnesses, etc. which are already discoverable
ii. Can only be sent to a party, not nonparty witnesses
b. Depositions (Rules 28, 30, 31, 32) is like questioning a witness at trial w/o judge
i. Can ask questions that force the witness to take a position and make
follow up questions when the answer is evasive
ii. Very expensive for all concerned
iii. Limitations
1. Total # taken by one side: 1
2. Can’t exceed a day of 7 hours
3. No person can be deposed twice w/o the court’s permission
c. Deposition on written questions (Rule 31) rarely used procedure where the lawyer
writes the questions for the court reporter to ask and record
III. Examining Things & People: Production & Inspection of Documents & Things;
Physical & Mental Examinations (Rule 34 & 35)
a. Rule 34 permits inspection of land & objects
b. Requesting documents differs if it is a party or a non-party witness
i. Party – Rule 34
ii. Witness – Rule 45(a)(1)(C) [subpoena]
c. There is no limit to the documents that can be requested
d. Must show good cause for requesting physical & mental examinations (Rule 35)
i. Need a court order, not party initiated
IV. Asking Your Opponent to Admit Things: Requests for Admission (Rule 36)
a. Doesn’t uncover evidence so much as it makes evidence irrelevant by taking an
issue out of controversy

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Civil Procedure I

b. Because we only have notice pleadings, we need to establish other things, which
the parties don’t actually disagree about
V. Ensuring Compliance
a. Rule 26(g) – general
b. Rule 37 – specific
VI. Others
a. phone calls, informal interviews, examination of public records, etc.

Discovery & Privacy

I. Two devices to control excessive discovery
a. Rule 26(c) allowing a party to seek a protective order
i. gives the judge the power to protect a party from “annoyance,
embarrassment, oppression, or undue burden or expense”
b. Rule 35 places special limits on the use of discovery to compel physical or mental
examinations
II. The General Problem of Privacy
a. Stalnaker v. Kmart Corp.
i. D’s motion for protective order for 3 non-party witnesses concerning
voluntary romantic conduct
ii. D argues that discovery into voluntary sexual conduct is irrelevant in this
case and also an invasion of their privacy rights which would lead to
embarrassment that would outweigh the benefit of such discovery
iii. Rule 412(a) aims to protect the alleged victim against the invasion of
privacy, potential embarrassment and sexual stereotyping
iv. Court held that voluntary actions were not relevant except in relation to
Graves to the extent they show any conduct on his part to encourage,
solicit, or influence any employee to continue or engage in such activities
III. A Special Instance: Physical & Mental Examinations - Rule 35
a. Schlagenhauf v. Holder
i. Bus driven by D rear-ended a tractor trailer & passengers were hurt.
ii. P requested 4 exams- Court ordered D to submit to 9 examinations without
any hearing and on the basis of the petition filed by another defendant
iii. Petitioner applied for a writ of mandamus which AC denied
I. special writ, very rare, only where the lower court has gone crazy –
the lower court judge can be ordered by a higher court to do or not to
something
II. it is not an appeal it is an original order, to compel alower court to
perform mandatory duties correctly filed directly with the CofA
III. writ of prohibition – an order not to do something
iv. Filed a petition seeking a writ of certiorari to the SC, asking SC to enforce
the writ of mandamus
v. D claims that the application of the lower court ruling of examinations to
the defendant would be an unconstitutional invasion of privacy – Court
disagreed
vi. Petitioner also claims that his M&P condition was not in controversy and
good cause was not shown for the examinations – Court agreed

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Civil Procedure I

Discovery in an Adversary System

IV. Privilege & Trial Preparation Material
a. Hickman v. Taylor
i. looks at the extent to which a party may inquire into oral & written
statements of witnesses, secured by an adverse party’s counsel
ii. D’s attorney refused to surrender the testimonies of the survivors and
other witnesses, claiming it would be turning over the counsel’s thoughts
iii. Refused when the DC ordered him to produce the documents, court
ordered him imprisoned but stayed the order pending an appeal
iv. P claims attorney-client is only relevant in that case, not in relations with
third-party witnesses – Court agreed
v. Court realizes that by asking for oral & written statements made, which
could be obtained by P’s own counsel, P falls outside discovery on this
one.
vi. Attorneys thoughts are privileged
vii. The dividing line for work product is:
I. Excludable: Strategy memos
II. Discoverable: Witness testimony
viii. Rule 26(b)(3) now does what Hickman Court was saying
I. the only way you could the witness statements from the other party
is if you will be unduly prejudiced without them (witness died)
II. in ordering discovery when the required showing has been made the
court shall protect against disclosure of the mental impressions of the
lawyer
V. Expert Information
a. Before a court will let an expert testify, the party presenting such testimony must
establish that he or she is an expert and that the expertise is relevant to contested
issues
b. Rule 26 (a)(2) requires, as a part of initial disclosures, information about experts
who may testify and the basis for their testimony [automatic]
c. Rule 26 (b)(4) provides for additional discovery from experts [requested]
d. Just because the doctor is using his expertise doesn’t mean he’s testifying as an
expert
i. He can testify as a fact witness
I. what did you do, what to you see, what did you hear
ii. Expert
I. what do you think
a. first you have to qualify him as an expert
b. allowed to enter their own opinion regular witnesses are not
II. The judge will tell the jury he is testifying to his expert opinion, you
need not accept it
e. Do not have to disclose experts you don’t intend to call unless you can show that
there is information unique to that expert that will create unfair hardship to the
other party
f. Thompson v. The Haskell Co.

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Civil Procedure I

i. P is seeking to shield from discovery documents related to her in the

possession of her psychologist
ii. Court held that the information was discoverable because no other
comparable report was prepared during the weeks immediately following
the incident, thus D could not obtain the information by any other means
iii. P claims Rule 26(b)(4)(B) protects the psychological records in the
doctors possession- but nevertheless they would be discoverable her
because D didn’t have access to P at the time
g. Chiquita International v. M/V Bolero Reefer
i. D is seeking the deposition taken by P’s fact finder/expert stating that P is
wrong in saying he is a non-testifying witness and calling him a fact
finder, as well as stating that his report is exclusive, and not obtainable by
other means
ii. Exceptional circumstances clause – does not have merit because D was
not precluded from sending their own expert to the scene
iii. Rule: The failure of a party to engage their own expert in a timely manner
is not an exceptional circumstance permitting that party discovery of the
opposing party’s expert.

Ensuring Compliance & Controlling Abuse of Discovery

I. Types of discovery abuses
a. Too little discovery (Stonewalling): when one party refuses appropriate requests
for discovery
i. Rules 26(g) and 37 – can subject a party to sanctions
b. Too much discovery: one party seeks more discovery than the case justifies
i. If the information requested is irrelevant or privileged, one may simply
decline to answer
ii. Can be excessive because it is burdensome, Rule 26(g) “unreasonable or
unduly burdensome or expensive, given the needs of the case.”
iii. Mechanical limits: 25 interrogatories and a single seven-hour deposition
of each witness up to 10 witnesses
iv. For any cases in which these provisions fair to solve the problem – Rule
26(c) permits any party to seek a protective order (including what might
be discoverable but will produce annoyance, embarrassment, oppression
or undue burden or expense.
c. Mismatched discovery: when the two parties have significantly unequal wealth
and the richer party seems to have an unfair advantage.
i. Party can conduct discovery from public sources – government or public
documents, press, etc.
ii. May be possible to “ride free” on the discovery efforts of the other party
II. Remedies: Management and Sanctions
a. Limits on discovery
i. Courts can establish a discovery plan that can be less than the rules
stipulate – Rule 26(b)(2)(iii)
b. Sanctions for bad behavior
c. Judicial Supervision

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Civil Procedure I

d. Thompson v. Department of Housing & Urban Development

i. Motion by plaintiffs to compel defendants to provide responsive answers
to Rule 33 & 34 discovery requests
ii. Against an overly rigid view of the scope of discovery
1. Would make parties plead evidentiary facts in the notice of
pleading, unnecessary to “a short and plain statement of the claim
showing that pleader is entitled to relief.” Rule 8(a)(2) simply to
try and increase the chance of getting broader discovery.
iii. When disagreeing about old & new rule – try to compromise. Rule 26(b)
(2)
1. no evidence that the parties tried to compromise here
iv. Sent the dispute back to the parties with guidance on how they should
meet and resolve or narrow their differences by focusing on the
burden/benefit factors of Rule 26(b)(2) – GOOD FAITH EFFORT
COMES BEFORE JUDGE-HELP
v. If the dispute can’t be settled, it will be returned to the judge and a
discovery conference will be held.
e. Poole v. Textron, Inc.
i. Design defect leads to golf cart accident
1. P needed the designs
a. D barely even looked into it & judge said he needed to put
in a good faith effort to give P the designs
b. not a legitimate fight, bully & victim
c. answers must be responsive, effort to comply with
discovery demands must be adequate
ii. Plaintiffs are asking for attorney’s fees and other expenses related to the 3
substantive discovery motions
iii. Rule 26(g)(3): if without justification a certification is made in violation of
the rule, the court upon motion or upon its own initiative can impose
appropriate sanctions
iv. Rule 37 & 36: A party must either lodge an objection or an answer to a
request, but cannot do both
v. In almost every response D lodged both an objection and an answer
vi. P requested relief for D’s lackluster performance in producing the
requested discovery
1. Rule 26(g): Council must make a reasonable effort to assure that
the client has provided all the info and documents responsive to the
discovery demand
vii. Court declined to award sanctions beyond those provided in 37(a) and
26(g) because they did not find that D acted in bad faith and they did not
violate a court order
f. Strategy:
i. if your client is not cooperative with discovery & you are trying to comply
with the orders -- you can resign, withdraw from counsel, you can’t do it
only if your withdrawal prejudices client
ii. This ruling & Thompson are interlocutory

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Civil Procedure I

1. You have to live with them

2. This judge will likely rule that your not complying with discovery
& order it anyway & can sanction you & then you’re stuck with
this judge cause he gets to try this case
a. you have to explain to your clients you cant appeal this
iii. you have to convince your client that they should play by the rules
because it is the law & the judge will enforce it if you don’t
1. no client is important enough to damage your name
iv. how to behave when opposing counsel is too aggressive
1. don’t play dirty back
2. effective lawyers have to convince the court that there words
should be listened to
3. don’t cheat or they’ll think you’re just as bad, no matter how much
worse they were
III. If pleading & discovery has done what its supposed to you are ready for settlement
a. Even though the point of pleading & discovery is to get ready for trial
b. Once both sides have much of the same info there may be no point in litigating
i. When the pleading & discovery rules work & both sides have the same
understanding then you can talk settlement

Resolution Without Trial

The Pressure to Choose Adjudication or an Alternative
I. Default & Default Judgments
a. Stage 1- the right to the judgment
b. Stage 2- what does it get you?
c. Says nothing about the merits of the dispute, it’s given when one party doesn’t
show up
d. When are you entitled to it? When do you get one but still must stick around?
i. Depends on the damages
ii. If they’re clear then you don’t need to have a trial about that
(liquidated damages)
1. you get a judgment with dollar amount
iii. when they’re not easy to figure out (personal injury)
1. you can get a default judgment on the merits for liability but
not the damages
e. The default judgment can be undone with an excuse
i. Can still have to pay other parties attorney’s fees it took to get the
default judgment
f. Don’t file for DJ on the 21st day, like you may, wait 30-40-50days
g. Rule 55
h. Peralta v. Heights Medical Center
i. Peralta was the guarantor of his employees medical bill
ii. D did not appear or answer and default judgment was entered
iii. Appealed to have DJ set aside because he had not been served notice

32
Civil Procedure I

iv. TC held that in order to have judgment set aside, appellant was
required to show that he had a meritorious defense, on the grounds that
without a defense, the same judgment would again be entered on
retrial (so appellant had suffered no harm from the judgment entered
without his notice).
v. AC reversed because D lost his property and there is no way to say
that the same result would have occurred, because he could have
borrowed money to pay the loan, worked out a settlement, etc. instead.
i. Rule 55(c): parties seeking relief from defaults get them set aside if they can
show some plausible reason for failing to respond.
j. Rule 60(b): permits the reopening of a case even after judgment is entered on
a default.
II. Failure to Prosecute: Involuntary Dismissal
a. Does to P what default does to D: forces them to pursue the lawsuit to some
resolution.
b. Rule 41(b): provides for involuntary dismissal “for failure of the P to
prosecute” – takes the lawsuit off the books.
i. When does “standard” foot-dragging become abandonment?
c. TC decision denying involuntary dismissal is not immediately appealable
because it is interlocutory. A denial of dismissal will be reviewed only if the
victorious party on the motion also wins the case on the merits.
d. With prejudice means you are sunk, final judgment, can only appeal
e. Without prejudice to refilling the identical motion - means I’m denying it right
now
III. Voluntary Dismissal
a. Rule 41(a)(1)(i): allows P to dismiss any time before D answers
b. Rule 41(a)(1)(ii): permits P to dismiss the suit at any time if all the parties
agree.
c. Rule 41(a)(2): authorizes a voluntary dismissal after D answers only by
permission of the court.
d. Moral: if a voluntary dismissal will harm your case, answer the complaint
promptly and lock P into the forum.

Avoiding Adjudication: ADR

I. Negotiation and Settlement: Why Settle? And How?
a. Reasons to Settle
i. When a party runs out of funds to pursue the litigation: Getting something
is better than getting nothing.
ii. Settlements control risk
1. Trials are unpredictable
2. They tend to be all-or-nothing
b. Settlements
i. Both parties have flaws
ii. Contracting to dismiss: a release in which P agrees not to bring a lawsuit
or to drop one already filed. They usually want money in return.

33
Civil Procedure I

iii. Settlements do not need judge approval though they must grant P’s request
to dismiss the case if that’s part of the deal. (except in class actions &
multi-defendant cases & if minor is imvolved).
iv. Settlements are contracts and can be attacked on any of the grounds on
which one can attack any contract: fraud, duress, mistake, incapacity,
unconscionability, etc.
v. D wants the lawsuit to go away, but for a court to enter a judgment on the
merits
1. Involuntary dismissal with prejudice: Rule 41(b)
a. Acts as a judgment on the merits and allows the scope of
the claim to be defined by the doctrines of former
adjudication rather than by the contract of settlement.
vi. Parties can stipulate to liability but contest damages; or they can stipulate
to one of two damage figures, trying only the question of liability to the
jury.
c. Client question: Am I gonna win? How much?
i. Avoid saying your gonna win
ii. Avoid saying I don’t know
iii. Give a fair assessment – say I cant tell future, but this is how I assess the
possible outcomes
1. tell client & write it down
2. give reasonable assessment with reasons for that assessment[set
parameters of client’s risk; their decision]
d. Agree to settle with opposing counsel- Problems that might come up:
i. Release of liability- someone has to draft a release to do away with the
lawsuit
ii. withdraw the case if it’s in litigation (voluntary dismissal, etc.)
iii. put in the agreement money must be given within a reasonable time, if not
there will be interest
iv. confidentiality – part of the deal can be keeping it quiet in some way
v. have you settled the whole case?
1. Be clear what you’re settling
2. Can settle on liability not damages
3. Rare- but you can agree of damages & not liability
vi. Enforcement:
1. Employ contract law or make the settlement part of a court decree
a. court decree usually because its easier, can’t do it when no
suit was filed
b. cts can enforce their own decrees
2. Problem: original lawsuit for violation of civil rights law in federal
court; settle the case with a contract--- other side breaches
a. Go back to court?
i. you can only go back to the same court if you can
show jurisdiction

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Civil Procedure I

1. this is contract dispute now not civil rights,

would need diversity jurisdiction to be in
federal court
b. should have gotten court order & included in it that
violations would go back to federal court
e. Third Party Participation in Settlement: Facilitation, Encouragement &
Coercion [ADR]
i. Reasons why negotiations sometimes fail
1. Divergent estimates of the outcome
2. Bad communication
ii. Mediation
1. Mediator can improve the information flow between parties
a. Communication can be a major problem
b. Sometimes the problem is the attorney’s don’t like each
other so the mediator can see if the parties would agree
2. Cybersettle – nonhuman 3rd party that facilitates settlement
3. Jurisdictions increasingly encouraging & forcing early mediation
4. Family law – lots of mediation
5. Success depends on the level of trust the mediator is able to
establish and partly on the distance separating the parties’ goals.
6. Mandatory mediation: ex. CA requires all cases >50k in
controversy be sent to early mediation, only if the mediator reports
that the parties have been unable to reach agreement will the case
be calendared for trial.
7. Muscle Mediation: mediator threatens to report to the judge that a
party is behaving unreasonably (unethical, unlawful)
8. Approaches to mediation
a. Positional – how much/how little the parties are willing to
settle for. A piece of the pie to be divided approach.
b. Interest – discover the parties goals, defining less in
monetary than in other terms.
iii. Early Neutral Evaluation (ADR Act of 1998): volunteer lawyers or
magistrate judges listen to the parties’ cases and offer them a reality
check, enabling them to see their own cases’ weaknesses and their
adversaries strengths – Sneak preview to litigation
1. ADR works because it results in a contract
a. If the other side sues anyway you can use the contract as
your defense if it was covered in the settlement contract
2. Decree of the court- it is a judges order, violation would make you
in contempt
3. When you contemplate the resolution in anyway there is risk- risk
of failure, it wont work, cost
a. Part of the rationale for settlement is to reduce the risk
b. If one method is a knockout for one side it is going to
litigation or arbitration but the risk of losing is there so they
settle

35
Civil Procedure I

ii. Arbitration: parties need not be present, can be done through parties
iii. Binding arbitration: parties bound to arbitrators decision
iv. Non-binding arbitration: the parties present their cases to an arbitrator who
issues a decision. Decision is only binding if the parties accept it.
v. Summary Jury Trial: Small jury is chosen (>8 members) parties present
their cases to the jury in very abbreviated form, the jury is charged,
deliberates, and returns its verdict, which is not binding.
1. not a separate ADR procedure
f. Contracting for Confidentiality
i. Kalinauskas v. Wong
1. P wishes to depose Thomas who also filed a sexual harassment suit
against Caesars about the same person, but Thomas settled with a
confidential settlement agreement.
2. P wants to depose Thomas and serves notice. Caesars would file
motion for protective order [Rule 26c]– Thomas would be
violating confidentiality embodied in settlement contract
3. Pros & Cons of allowing this discovery
a. Con: To allow full discovery into all aspects of Thomas’
case could discourage similar settlements, the secrecy of a
settlement agreement and the contractual rights of the
parties deserve court protection.
b. Pro: Preventing the deposition of Thomas would condone
the practice of “buying the silence of a witness with a
settlement”
c. Pro: Likely to lead to relevant evidence, not allowing this
deposition would lead to wasteful efforts to generate
discovery already in existence.
4. Allowed the deposition of Thomas but could not disclose any
substantive terms of the Thomas settlement.
II. Contracting for Private Adjudication: Arbitration and its Variants
a. Benefits of arbitration
i. Permits the parties to design their own procedure
ii. Parties may control the applicable substantive law
iii. Faster, cheaper, more private
iv. Ensure a decision maker who is experienced in the field (because they can
arrange what kind of arbitrator to have)
v. May decide the case more “softly” than a court
b. The process is an adjudicated process- attorneys make arguments, its adversarial
c. Pre-dispute arbitration
i. Earlier courts refused to enforce pre-dispute arbitration agreements; they
would enforce arbitration only if the parties chose the method after the
dispute had arisen.
ii. Case law & statute, the rule has generally been changed in favor of
arbitration even if agreed to by the parties before any dispute has arisen.
d. Federal Arbitration Act

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Civil Procedure I

i. §2 – Consists of substantive law, broadly declaring agreements to arbitrate

valid as a matter of federal law
ii. §3 – Tells the federal courts what to do if a party, in spite of an arbitration
agreement, instead files a lawsuit.
iii. §4 – Tells the courts what to do if a party neither invokes arbitration nor
files suit
iv. Jurisdiction: §4 provides for an order compelling arbitration only when the
federal district court would have jurisdiction over a suit on the underlying
dispute – hence, there must be diversity of citizenship or some other
independent basis for federal jurisdiction before the order can issue.
v. Motion to Stay: §3 limits the federal courts to the extent that a federal
court cannot stay a suit pending before it unless there is such a suit in
existence.
vi. If a contract requires arbitration & one party files lawsuit the opposing
party can file a motion to dismiss (would most likely be granted) or can
file motion to stay the proceedings until after arbitration then present
arbitration decision and make it binding by court order (better strategy)
e. Floss v. Ryan’s Family Steak House, Inc.
i. When applying, P signed a form necessary for consideration in being hired
indicating that he would arbitrate all employment-related disputes
ii. P tried to sue D & D filed a motion to compel arbitration
iii. Employee’s agreement is not with Ryan’s, the agreement runs between the
employee and a third-party arbitration services provider
iv. Deciding whether to compel arbitration of a federal statutory claim you
have to consider whether the statutory claim is generally subject to
compulsory arbitration.
v. Even if arbitration is generally a suitable forum for resolving a particular
statutory claim, the specific arbitral forum provided by the current
versions of the EDSI Rules does not allow plaintiffs to effectively
vindicate their claims.
1. P argues that the procedures allow for the appointment of a biased
and incompetent panel of arbitrators – decide in favor of D because
they will continue using them, no benefit if they decide for P.
vi. Failure of consideration argued
vii. EDSI’s right to choose the nature of its performance renders its promise
illusory – decision in favor of plaintiff.
viii. 6th Cir. said EDSI had total control over the procedures, which they could
change anytime – no meeting of the minds
1. there is no quid pro quo
a. Floss is giving up her right to sue (gave up something of
value)
b. in exchange she got arbitration at the discretion of EDSI &
a job
f. Lyster v. Ryan’s Family Steak House, Inc.
i. DC concluded that P filed her suit after termination therefore the
arbitration agreement was denied. D appeals.

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Civil Procedure I

ii. P argues that the agreement is an unconscionable adhesion contract

1. Missouri law: “A contract is substantively unconscionable if there
is undue harshness in the terms of the contract…a contract that no
man in his sense and not under delusion would make and that no
honest and fair man would accept.”
iii. Bad lawyering – issue argued on unconscionability, never mentioned 6th
circuit court ruling
iv. AC reversed TC and held for D.
g. Ferguson v. Writers Guild of America, West
i. Special arbitration process for the writer’s guild – 3 arbitrators who all
come to their own conclusion without knowing who the other 2 arbitrators
are.
ii. The court held that the credit determination process could be handled
more skillfully, more expeditiously, and more economically by Writers
Guild arbitration committees than by courts.
iii. Can have a mediator who is unsuccessful, but that both parties trust, and
ask them to be an arbitrator instead.
iv. You can review an arbitrators’ awards, but it’s not usually useful because
the court will narrowly restrict the scope of its review
1. Only look at whether parties agreed to arbitrate in a valid
agreement
2. Did arbitrator follow the rules of the contract
v. States cant adopt this agreement it would violate due process
1. Here the parties chose it, it fits the industry & the problem
h. Baseball agreement- how MLB settles salary disputes- each party gives a number,
gives it to arbitrator who may chose either number but none others which forces
the parties to be more realistically in the numbers they pick

Curtailed Adjudication: Summary Judgment

I. Curtailed adjudication
a. Summary judgment: adjudicative alternative to trial for cases because one-sided
that trial would be pointless
b. Rule 56
i. 56(c) – provides that such motions are to be granted when the record
“shows that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”
1. Reaches both the legal and factual merits of the case.
c. Rule 50 – to order “judgment as a matter of law” is the equivalent of saying that
D has not presented a case that would permit a jury to decide in his favor.
d. One of the most common documents in summary judgment motions is an
affidavit.
i. Affidavit – a written document in which the affiant swears under penalty
of perjury that the statements made are true
1. it must set forth facts as they would be in evidence
ii. Rule 56(e) – Form of affidavits; Further testimony; Defense required

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Civil Procedure I

e. Celotex Corp – focuses on what the party moving for summary judgment must do
to justify a court’s granting its motion
i. Before this, the leading case on federal SJ was Adickes where the court
held that the D moving for SJ had the burden of showing that P could not
prevail at trial.
1. standard = anything you can prove from now until trial
2. Celotex claims to not overrule this case
f. Bias v. Advantage focuses on what a party opposing the motion must do to defeat
it.
g. Steps of Trial to Summary Judgment
i. Malpractice for losing custody of child to husband
1. D filed 12(b)(6) motion  denied
2. P made Motion for summary judgment?
a. Denied – there is nothing there yet – must do discovery –
Premature
3. D then files an answer that denies negligence, denies causation and
includes a counter-claim for unpaid lawyer’s fees - P then files a
reply to the counter-claim
a. She did not pay the lawyer’s fees because of incompetency
4. D then files a judgment on the pleadings 12(c)
a. Can the lawyer do this - this is a legal question
i. Is the refusal to pay the lawyer’s bill on the grounds
that the lawyer was incompetent a valid defense?
ii. The response is not “I need discovery”
iii. Depends on the substantive law of contract i.e. is
the defense of competency valid?
5. The parties are now ready for discovery – how and what do they
do?
a. Plaintiff
i. P is entitled to everything in D’s file for the divorce
case since she was the beneficiary of the lawsuit
that she is claiming malpractice for
ii. There are 2 cases on which work product may apply
1. The divorce case  full access
2. The malpractice case  work product
protection
b. Defendant
i. Want to retain an expert to evaluate the handling of
the case
ii. Are there any facts that would make it clear that she
would never have retained custody?
iii. Did the lawyer tell her that she would not get
custody?
6. Request for admission

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Civil Procedure I

a. Identify that the lawyer had informed client several times

that her chances of being awarded custody were slim and
she shouldn’t expend such resources
b. The P would want to be honest with answer because D may
have a letter on file that indicates everything in writing that
the request for admission stated was transmitted to the P
7. What is needed for D to successfully file for summary judgment on
the issue of malpractice?
a. D has a letter that says he informed P of the chances and it
was a bad case
b. P can rebut by saying they never got the letter
c. They contact an expert witness that reviews the case and
the letter and provides evidence that the D didn’t do the
work  this would make case go to trial
d. If P’s expert says that the level of work was appropriate
and not below the standard of case  D wins the summary
judgment motion on the issue of malpractice
e. If D gets summary judgment because there was no
malpractice – the fees are clearly owed and summary
judgment will follow on this issue by default
8. How to have summary judgment for P
a. P gets expert that says there is incompetency, D’s expert
witness says D was incompetent
b. Is this the end?
i. D can say they did their best – this doesn’t
overcome summary judgment – it does not refute or
rebut the evidence put forward by the P
ii. If the case would have been lost anyway, there will
be no recovery
9. Malpractice requires proof of a lower standard of care and
damaging consequences
II. Celotex Corp. v. Catrett
a. P said D’s company gave husband asbestosis, D claims company not linked to
death
b. DC granted the motion for SJ because “there was no showing that P was exposed
to D’s product in the District of Columbia or elsewhere in the statutory period.” P
appeals.
c. The standard for granting SJ mirrors the standard for a directed verdict under
Federal Rule of Civil Procedure – Rule 50(a).
d. Party seeking SJ always bears the initial responsibility of informing the DC of the
basis for its motion and proving the absence of a genuine issue of material fact
i. Unlike the AC, SC finds no express or implied requirement in Rule 56 that
the moving party support its motions with affidavits or other similar
materials negating the opponent’s claim.
1. Rule 56(c) refers to affidavits, IF ANY, suggesting the absence of
this requirement.

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Civil Procedure I

e. SC doesn’t think Adickes should be construed to mean that the burden is on the
party moving for summary judgment to produce evidence showing the absence of
a genuine issue of material fact, even with respect to an issue on which the
nonmoving party bears the burden of proof.
i. Instead, the burden on the moving party may be discharged by “showing”
that there is an absence of evidence to support the nonmoving party’s case.
ii. At the moment the SJ motion is before the court P must prove they have a
case
f. In this case, D can prevail on a SJ motion in 2 ways
i. Prove that Mr. Catrett was not exposed to its asbestos
ii. If Mrs. Catrett failed to show that Mr. Catrett was exposed to its asbestos
g. Celotex made the standard = nonmoving party has to prove a genuine issue of
material fact as of the SJ motion
i. discovery should be used to find all the facts, need it done by the time SJ
comes
h. A party seeking to resist SJ bears the burden of production as to the issue
i. P failed to supply an evidence of a link
i. Practical impact: more SJ granted, nonmoving party is not allowed to just go
fishing, counsel will be more thorough in discovery
III. Bias v. Advantage International, Inc.
a. DC granted SJ to D because even if D had tried to obtain a one-million dollar
policy on a cocaine user’s life they would not have been successful
i. i.e. the breach resulted in no damages
b. SC has stated that the moving party always bears the initial responsibility of
informing the DC of the basis for its motion and identifying those portions of the
record which it believes demonstrate the absence of a genuine issue of material
fact (Celotex).
i. Once they do this, the burden shifts to the non-moving party to prove the
moving party is wrong.
c. Rule: In order to withstand a summary judgment motion the nonmoving party
must come forward with specific facts showing that there is a genuine issue for
trial.
d. P’s counsel should have known affidavits from mom, dad & coach weren’t
enough & D’s witnesses should have been deposed

Judicial Management of Litigation

I. Statistics
a. Average federal district judge has a bit over 500 cases a year.
b. Many cases go away by themselves even if a judge does nothing. Typically this is
done because P wants to get D’s attention and the ensuring negotiations will yield
a quick resolution.
i. 20% of cases end this way: 6months
ii. 70% require some court action but ends before pretrial: 7.7months
iii. 10% become federal civil cases: 13.5months for those ending at pretrial
stages and 21months for the 2% of civil cases that go to trial.
c. Single management technique that consistently speeded litigation

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Civil Procedure I

i. Setting an early date for trial – setting a firm trial date will prevent counsel
(and judges) from procrastinating; deviations from schedules have to be
justified.
d. Vast majority of a judge’s time is not spent presiding over a trial, vast majority is
presiding over case management
i. At trial judges are passive, much more active in management stage
ii. Judges have become managers of the judicial process rather than to say the
focus of a court is to sit and rule on objections
iii. Affirmatively force the parties to narrow the issues
1. Significant percentage of cases require SJ rulings, including partial
SJ where on or more issues are knocked out of case
II. Sanders v. Union Pacific Railroad Co.
a. District judge issued a form order concerning preparation for the pretrial
conference. Order set forth a schedule for the filing of various motions,
oppositions, proposed instructions; and warned the parties that a failure to comply
could result in sanctions.
i. Point of schedule is to reduce surprise at trial
ii. Rule 16 allows judge to make pretrial schedule
b. Sanders counsel consistently failed to meet deadlines, submit briefs, stay on
schedule, etc., making it clear that he was not ready to go to trial.
i. On a case that went too long, didn’t tell judge
c. DC dismissed Sander’s action with prejudice as a sanction for failure to comply
with the pretrial order. Rule 37 allows him to do this. Did so because:
i. Sander’s counsel had failed to comply with the pretrial order
ii. D had already incurred great pain and expense in preparing for trial
iii. Other litigants before the DC would be inconvenienced by a delay in the
present case
iv. Sander’s case did not involve important questions of public policy.
v. Trial judges are constantly struggling to avoid the increasing problems of
delay and expense – court held that you must not allow the flagrant
disobedience of judges’ orders to bring about further delay and expense.
vi. En Banc panel reversed DC – sent to a diff judge (slap in face)
1. En banc procedure: lose at trial, file an appeal to the circuit court,
heard by a 3 judge panel, lose again, can file for rehearing to the
panel or file a petition for rehearing en banc, can be denied, or can
file a writ of cert
vii. Options for new judge:
1. Dismiss without prejudice (what P wants, he needs the time)
a. D’s counsel will be mad because D already shared all their
discovery & P can make their case based on D’s work
2. Give D attorney’s fees for the time they spent when P stopped
cooperating
3. Give P a time table (short times) & if he’s one day late it’s
dismissed with prejudice
III. McKey v. Fairbairn
a. Pretrial order important because it limited the scope to negligence

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Civil Procedure I

b. Judge gave D a DV – no reasonable juror could have found for P

i. mops the floor, acknowledges its wet & then walked over it & slipped 
contributory negligence
c. In the middle of the case P’s counsel moved to amend the pretrial order to permit
the entry of sections from the District of Columbia Housing Regulations requiring
roofs to be leak proof
d. Counsel should have:
i. done better research & put the housing code in his pleadings
ii. read over the pleadings & filed a motion to amend
iii. at pretrial when judge asked for the theories should have thought if there
was a housing code
iv. made a motion to amend after pretrial
e. What he did was try to assert the claim mid-trial
i. What could he have done? move for dismissal without prejudice – prob
wont happen
f. judge has to sit back & assume counsel is trying there case because claims they
assert & when the object are based on strategy

Identifying the Trier

Judging Judges: Bias and Recusal

I. Role of the judge
a. The only decisions made by anyone other than a party will be made by a judge
i. Jurisdiction & venue
ii. Choice of Law
iii. Pleadings
iv. Discovery Motions
v. Motions for Summary Judgment
b. Even if there is a jury, the judge not only rules on various challenges to jurors but
also has the power of setting aside jury verdicts and ordering new trials.
II. Judging Judges: Bias and Recusal
a. Some states permit peremptory challenged of judges by the filing of a timely
affidavit alleging in conclusory terms that the judge is prejudiced against the party
b. 28 U.S.C. §144 & §455 – two broad categories for disqualifying a judge
i. § 455
1. Bars a judge from hearing a case where he has served in
governmental employment and expressed an opinion concerning
the merits of the particular case or controversy
2. Bars decisions in cases in which a judge or their family had a
financial interest.
c. In re Boston’s Children First
i. P’s counsel made wrong statement to newspaper, Judge felt need to
respond out of fear of the people misunderstanding but she was a federal
judge i.e. she had life tenure

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Civil Procedure I

ii. Judge called the paper & said she had discretion to make public comments
about court procedure
1. Talk about a pending case is totally different from talking about
court procedure especially with these controversial cases
iii. Instead of public comment, could have spoken to both counsel in chamber
1. Gag order inappropriate because there was no jury involved
iv. Should not respond, she has life tenure, no need to worry
v. Issue: Should a sitting DC judge have recused herself after commenting
publicly on a pending matter?
vi. §4559(a) requires any judge to disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.
1. Seeks to balance 2 competing policy considerations
a. Courts must not only be, but seem to be, free of bias or
prejudice
b. The fear the recusal on demand would provide litigants
with a veto against unwanted judges.
vii. Although the judge’s statements may be legitimate efforts to explain
operative law, the comments were sufficiently open to misinterpretation so
as to create the appearance of partiality, even when no actual prejudice or
bias existed.
viii. After-the-fact cases appeals will often involve 2 questions:
1. Should the judge have recused himself?
2. If so, did the failure to recuse involve a sufficiently serious
likelihood of injustice as to overturn or reopen the case?
ix. Why grant a writ of mandamus? Judge denied counsels motion to recuse,
not a final order, writ was the only thing he had because he couldn’t
appeal at this point
d. Liljeberg v. Health Services Acquisition Corp
i. Leading SC case interpreting §455
ii. Reopened a judgment because it was discovered that the judge sat on the
board of directors of a university that stood to profit or lose depending on
the decision of the case.
1. §455(b)(4) requires that the judge know of the interest in the case,
this judge claimed he had no idea about the university’s interest.
2. SC required the reopening of the judgment because an objective
observer would have questioned the judge’s impartiality.
e. Blank v. Sullivan & Cromwell
i. Counsel wanted the judge recused because she was a black woman civil
rights attorney & this was a civil rights issue
1. This attorney was soooo wrong!

Judge or Jury: The Right to a Civil Jury Trial

I. Historical Reconstruction and the 7th Amendment
a. Jury: trespass, debt, covenant, ejectment (recover land unlawfully occupied),
assumpsit (recovery for oral contracts)  law
b. Judge: equitable remedies (specific performance  i.e. injunctions)

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Civil Procedure I

c. Adoption of a historical test to decide the right to jury trial.

d. Examples:
i. Breach of contract, money damages – Jury
ii. Breach of contract, specific performance, contract reformation or contract
rescinded for fraud – Judge
iii. P alleges D has stolen his ring, recover it’s value or damages for nuisance
– Jury
iv. P wants injunction of nuisance - Judge
v. Order restoring the ring to his possession – Jury (replevin)
vi. Ejectment from property – Jury
e. Jury Demandable (generally if it sounds like money)
i. Common law damages
ii. Ejectment
iii. Replevin
f. Common Law Writs- Not Jury Demandable
i. Habeas Corpus
ii. Mandamus
iii. Prohibition
iv. Certiori
g. Why do we care?
i. Preparation of trial determines how you prepare your case
ii. Framework of case is focused on the audience you are presenting it to
II. Applying the Historical Test to New Claims
a. Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry
i. P desperately wanted a jury because they wanted the sympathy towards
the workers
ii. Looking for an analogous cause of action that existed in the 18th C. to
determine whether the nature of this duty of fair representation suit is legal
or equitable.
1. Arbitration analogy: no good
2. Trust beneficiary for breach of fiduciary duty: more persuasive, but
not perfect.
3. Attorney malpractice action: inadequate (you can fire an attorney,
not a union rep.)
4. When viewed in isolation, the duty of fair representation issue is
analogous to a claim against a trustee for breach of fiduciary duty.
The §301 (collective-bargaining agreement) issue, however, is
comparable to a breach of contract claim – a legal issue.
iii. Action is both equitable and legal: 7th amendment leaves court in an
equipoise as to whether respondents are entitled to a jury trial.
iv. Because the remedy respondents seek has none of the attributes that must
be present before finding an exception to the general rule to characterize
damages as equitable, they found that the remedy was legal.
1. damages is like the tie breaker
v. Respondents were entitled to jury trial on all issues.
vi. Know that it’s hard to determine what is or isn’t jury demandable!

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Civil Procedure I

I. Rule 38 reaffirms constitutional right by setting out requirement of timely demand

a. A party may assert the demand for a jury trial in it’s pleading
b. 7th amendment can be expanded but not contracted
i. congress make an equitable action jury demandable
ii. cannot make an action at law not jury demandable
c. right to jury trial doesn’t apply to the states
i. some of the bill of rights apply to the states, some doesn’t
d. After civil war amendments made part of constitution applicable to the states
i. 14th amendment – Due Process Clause SC decided which part applied to
the states through this clause
1. selective incorporation
a. which were fundamental?
i. 1st amendment
th
b. 7 amendment didn’t make the cut
i. guarantees right in federal district court
ii. states are free to contour right to jury trial
II. Applying the Historical Test to New Procedures
a. 7th amendment & changes in judicial procedure
i. At the time of the 7th amendment, if a litigant needed relief from both law
& equity, they had to file 2 suits. Which court took precedence?
ii. American Life Insurance v. Stewart – court rules that the way to settle
such questions was to grant considerable discretion to the trial court,
guided by an appeal to historical practice.
b. FRCP effective in 1938, abolished previous system of law & equity
i. abolished distinction of Federal Judge that sits in equity or sits at law
(merger of law and equity)
ii. Judges are judges of everything not law or equity
iii. Judge has to figure out what he can try & what has to go to a jury
III. Beacon Theaters
a. Said that if you have equitable & legal issues in the same case you do not lose 7th
amendment right
i. Try legal parts to a jury
b. when you have the mixed issues the jury trial applies to legal issues & they go
first then judge tries equitable issues
i. priority has consequences for intermingled issues - the findings of fact by
jury are binding on the rest of the case, the judge must follow it
IV. Amoco Oil Co. v. Torcomian
a. P sought:
i. (1) ejectment of D from service station – jury demandable
ii. (2) permanent injunction restraining D from use of the Parkside Amoco –
no jury
iii. (3) permanent injunction restraining D from use of P’s logo, trademark,
trade name or service mark – no jury
iv. (4) $46,675 for lost profits from D’s wrongful possession – jury
demandable
v. (5) $12,000 for D’s mesne profits – jury demandable

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Civil Procedure I

1. mesne profit – mean profit, if the party gaining the profits

vi. (6) attorney’s fees – no jury
b. D counterclaimed
i. (1) injunction for P to comply with franchise agreement – no jury
ii. (2) $100,000 for lost profits for failure to comply with the franchise
agreement & fraudulent misrepresentation – jury demandable
iii. (3) attorney’s fees – no jury
c. TC denied D a jury trial
i. Wrong- just because there are not jury demandable claims you don’t lose
your 7th amendment right to jury when it is demandable
d. P didn’t want a jury trial, tried to orally amend the complaint to delete the part
about money damages, which would be legal
e. 3rd circuit says just because lower court made a mistake doesn’t mean they have to
go back & do it again if the trial had gone forward to a jury & P would have got a
DV
i. no harm no foul, only leads to reversal if somebody got hurt
ii. mistake had to have made a palpable difference in the decision
1. loser has double burden to show (1) mistake (2) it would have
made a difference
2. winner can defend TC actions or say even if they did it right the
result would have been the same
V. Hypos:
a. P only filed claim for injunction - D’s response was we want specific performance
i. Both sides demand a jury trial
1. denied – both issues are equitable, no jury issues
b. P amends to add claim for ejectment - D wants specific performance
i. Both demand jury
1. grant jury trial on the ejectment claim only, the rest follows the
jury decision
ii. Jury decides ejectment issue that D are franchisees & don’t eject them
1. judge tries specific performance claim by D – not much of trial,
had to grant the specific performance
c. the jury verdicts are final orders
VI. SC decided that 7th amendment is not an unfettered right
a. To go to a jury it must be a well pleaded case that raises a question as to which
reasonable people could differ
VII. Does it violate the 7th amendment to assign preclusive effect to the equitable claim if the
same issue arises in a second lawsuit (after being decided by a judge on a prior equitable
claim)?
a. In Parklane SC decided the judge’s finding in the previous equitable suit
controlled in the second action
VIII. Issues as to how the Constitution would deal with “fourth branch” of government-
administrative agencies
a. In general as long as the administrative adjudication is completely out of the court
system it is constitutional under the 7th amendment

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Civil Procedure I

b. Becomes cloudy area when you talk about bankruptcy court which operates
without a jury
IX. Discrediting arguments that the FR’s violate 7th amendment
a. 12(b)(6)  no claim
b. Summary Judgment  never put forth evidence to support claim
c. Directed Verdict  at the end of trial, the evidence put forth is not such that a
rational jury could make such a decision

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