Вы находитесь на странице: 1из 18

1

Civil Procedure I
Fall, 2009

Table of Contents

Pleadings .................................................................................................................................... 2

Pre-answer Motions, Counterclaims, Special Pleadings ............................................................... 7

Amendment How to Answer an Exam Question ................................................................... 6

Amendment, Relation Back and Variance ................................................................................... 7

Disclosures and Discovery How to Answer an Exam Question ............................................. 9

Disclosures ............................................................................................................................... 11

Discovery, QualiIied Immunity (AOL, OCB) ............................................................................ 12

E-Discovery How to Answer an Exam Question ................................................................. 16

E-Discovery, Sanctions, and Spoliation ..................................................................................... 17

Discovery ConIerence, Pre-Trial ConIerence, Scheduling Order (FRCP 26, 16) ........................ 18

Right to Trial by Jury - How to Answer an Exam Question ................................................... 19

Constitutional Right to Trial by Jury ......................................................................................... 20

Trial, Dismissal to the Jury, Verdicts......................................................................................... 22

MJML How to Answer an Exam Question ............................................................................ 23

Dismissals, MJML, Motion Ior New Trial ................................................................................. 24

Interlocutory Appeals How to Answer an Exam Question ................................................... 27

Appeals ..................................................................................................................................... 28

Judgment and RelieI ................................................................................................................. 30

Collecting the Judgment ............................................................................................................ 32



2

Pleadings

FRCP 8(a)
W Short and plain statement oI the grounds upon which the court`s jurisdiction depends,
unless the court already has jurisdiction and needs no new grounds
W Short and plain statement showing the pleader is entitled to relieI
W A demand Ior judgment Ior the relieI the pleader seeks


MRP 2-305
A pleading that sets Iorth a claim Ior relieI, whether an original claim, counterclaim, cross-claim,
or third-party claim, shall contain a clear statement oI the Iacts necessary to constitute a cause oI
action and a demand Ior judgment Ior relieI sought.
W Scott v. Jenkins- P seeking punitive damages must allege them in detail in complaint
W #ead Drug v. Colwill- InsuIIicient because complaint Iailed to allege speciIic elements
required to establish D`s negligence


ote
FRCP 8(a) requires a jurisdictional allegation while MRP 2-305 does not.
Unlike FRCP 8(a), MRP 2-305 uses the term 'cause oI action (Greater particularity is required
in certain cases, ie #ead Drug v. Colwill)

FRCP 15
W Leave to amend is liberally allowed when justice requires
W Limited ability to amend as a right
W When making a motion to leave to amend the later the amendment is sought, the less
likely justice will require that it be granted (II very late in trial, justice may not require it)
W II there has been a pretrial order, then pleadings can be corrected only on a showing oI
maniIest injustice
W Will there be prejudice? II so, what is the prejudice? (Ex the D has prepared Ior
litigating based on original pleading) What can be done to alleviate the prejudice?
W When issues are not raised by pleadings, but are tried by express or implied consent oI
parties, then they are treated as iI part oI pleadings
W An amended pleading relates back to date oI original pleading when 1) Relation back is
permitted by the law that provides the statute oI limitations applicable to action; and
2) The claim or deIense asserted in the amendment are Irom same conduct, transaction or
occurrence in original pleading; OR

3) Amendment changing name oI party relates back iI (2) is satisIied and party to be brought in
by amendment has received notice and was not prejudiced by late notiIication.


lair v. Durham- original complaint and amendment based on same violation oI duty owed to
her, her injury is the same, thereIore amendment relates back to original date oI pleading and
3
statute oI limitations does not bar amended complaint

MRP 2-341
W Liberal amendment as a right, subject to motion to strike
W Right to amend until 15 days oI the scheduled trial date
W Might not be Iair to the other side
W II the party Ieels aggrieved by the amendment, can make motion to strike







































4


Pre-Answer Motions, Defense and Counterclaims, Special Pleadings

Pre-Answer Motions

Rule 12(b) prior to Iiling an answer, D may, iI he chooses, Iile a motion and raise any or all oI
the Iollowing deIenses
(1) Lack oI SMJ
(2) Lack oI personal jurisdiction
(3) Improper venue
(4) InsuIIicient process
(5) InsuIIicient service oI process
(6) Failure to state a claim upon which relieI can be granted
(7) Failure to join a party needed Ior adjudication


- First deIense may be raised at any time even Ior Iirst time on appeal
- DeIenses (2) through (5) must be raised at time he Iiles a motion or his answer
whichever is Iirst. II he doesn`t, then he waives these deIenses.
- DeIenses (6) and (7) can be made at any time prior to trial or at trial
- D can choose not to Iile a motion and simply include these deIenses in his answer.


TE re 12(b)(6) motion - A complaint should not be dismissed Ior Iailure to state a claim
upon which relieI may be granted unless it appears beyond doubt that the H can prove no set oI
Iacts in support oI his claim which would entitle him to relieI. (Conley v. Gibson). Usually a H
will be given at least one chance to amend under FRCP 15 in order to rectiIy the complaint. In
Md., this 12(b)(6) motion must be made beIore trial (although the court may deIer decision until
trial MD 2-322(c))

Maryland diIIerence - MDR 2-322
W Asserting any oI the mandatory deIenses (2-5) must be done 5rior to giving an answer.
W Permissive deIenses (1,6 and 7) may be asserted by motion, with or beIore the answer,
or later (i.e. lack oI SMJ, Iailure to state a claim upon which relieI may be granted, Iailure to join
a party needed Ior just adjudication, governmental immunity, discharge in bankruptcy).
W In Md., iI the mandatory deIenses are not provided beIore the answer, then they are
considered waived.


Motion for More Definite Statement Rule 12(e) and MD Rule 2-322(d)
Can be made beIore responding to a pleading that is too vague Ior a response. Opposing party
has 10 days to obey iI court orders; Iailure to obey may result in striking pleading. DisIavored
why help other party Iix pleadings?

Motion to Strike Rule 12(f) or MD Rule 2-322(e)
5
BeIore responding to a pleading or w/i 20 days aIter service oI a pleading with no responsive
pleading, party can move to have stricken any insuIIicient deIense, or any redundant, immaterial,
impertinent, or scandalous matter.
Answer


Must Contain Denials or Admissions and Any Affirmative Defenses (FRCP 8(b, c and d)
W SpeciIic denial or admission oI each claim oI the complaint OR
W General denial denies all allegations
W SpeciIic denial denies speciIic portion(s) oI allegations
W Failure to deny constitutes an admission
W Must also include any aIIirmative deIenses, or they are not part oI case and evidence is
irrelevant
o Statute oI limitations
o Statute oI Irauds
o Res judicata
W D has burden oI prooI w/r/t aIIirmative deIenses
MD Rule 2-323 lets D plead deIenses outside oI the 21 listed aIIirmative deIenses
(1) en Lewis Plumbing v. Liberty Mutual


Time for Answer Rule 12(a)
W Must present answer within 2 days of service of com5aint, unless waive Iormal
service
W II waive Iormal service, get 60 days aIter request Ior waiver mailed

W II a Rule 12 motion is made, responsive pleading due 10 days aIter court determines
outcome oI Rule 12 motion.
W US Agency gets 60 days to answer


Counterclaims and Cross-Claim Rule 13
i) om5:sory co:ntercaims iI the counterclaim D has against P arises out oI same
transaction or occurrence as one oI P`s claims, it MUST be pleaded with the answer or it will be
barred under res judicata
ii) Permissive co:ntercaims may be asserted even though no connection between it
and P`s claims
iii) Maryland considers all counterclaims permissive under MD Rule 2-331
(1) Recoupment - if D proves a claim, it can only diminish P`s recovery, not put
money in D`s pocket


Third-Party Procedure Rule 14
W D can bring in a non-party as a third party deIendant
o II done w/i 10 days aIter Iiling answer, don`t need court permission
o II done more than 10 days aIter Iiling answer, need court permission
6
W Third-party has to assert any available claims/deIenses as req`d
W P may assert against third-party D any claims arising in that 2nd suit
W II claim asserted against P, P is allowed to bring in a third party D iI D is permitted to
do so


Special Pleadings Rule 9
W Required to plead with more detail when addressing
o Capacity
o Fraud or mistake
o Conditions oI the mind
W Allegations oI Time and Place FRCP 9(f)
W iI you allege time and place you have to get it right otherwise c/b Iatal variance
W MD Rule 2-304(c) doesn`t require time or place to be alleged unless they are part oI the
claim or deIense (i.e., deIense is statute oI limitations, must claim time and place)
W Special damages FRCP 9(g)
W P req`d to plead any special damages, such as
o natural but not necessary consequence oI the act complainant
o out-oI-pocket costs
o wages paid, money paid to doctor
o other speciIic economic losses people suIIer
o any other odd things that other party won`t expect urlington v. Josephson doctor
claimed Ior loss oI money spent on contractor when Ialsely imprisoned
W You have to give the deIendant notice about what they are b/c they would be
unexpected damages
W HYPO tools not delivered when due; you lose opportunity to do lucrative job; the job
you lose might not be considered ordinary damages; he should have put them in the complaint


Reply by P - addressed in FRCP 12(a)
a) req`d only when D`s answer contains a counterclaim
b) Must be served within 20 days aIter service oI answer
c) P need not reply to an aIIirmative deIense; he is deemed to deny the allegation oI the
deIense












7
Amendment Relation Back Variance


#P 8)

WShort and plain statement oI the grounds upon which the court`s jurisdiction depends, unless the
court already has jurisdiction and needs no new grounds
WShort and plain statement showing the pleader is entitled to relieI
WA demand Ior judgment Ior the relieI the pleader seeks

WPurpose Provide notice and deIine boundaries oI the litigation ('Notice pleading)
WBUT see e Atantic & Iqba
WOn certain subjects w/ high risk oI abusive litigation, P must state Iactual allegations with
greater speciIicity
WIs Iederal pleading moving back to Iacts-based pleading?

Maryland
(M#P 2-35)
A H`s pleading is supposed to serve Iour purposes
1.Provide notice oI the nature oI the claim
2.State Iacts oI claims and deIenses
3.DeIine boundaries oI the litigation and
4.Provide Ior a speedy resolution oI Irivolous claims or deIenses (make P be speciIic and put all
cards on the table)
Greater particularity is required in MD than in Federal court Iacts-based pleading, not notice-
based pleading
(#ead Dr:g & hemica o. of atimore ity v.
owi onstr:ction):



8

Any ambiguity or want oI certainty must be construed against the pleader.
Thus, iI pleadings don`t allege the speciIic elements required to establish a case (such as duty,
breach, cause, and damages in a negligence case) then P`s complaint will FAIL.
($cott v. 1enkins):

To properly plead claim Ior punitive damages, H`s complaint must
W make speciIic demand Ior that relieI and
W allege in detail Iacts to support conclusion that the act complained oI was done with
actual malice.
(%ierco Md., Inc. v Wiiams)
Poor pleadings lead to poor results.
Thus, a party may not recover on the basis oI diIIerent theories oI recovery when they were not
pled in the complaint. Irrelevant considerations (i.e. legal theories not pleaded, like racial
discrimination) may not be the basis Ior a jury`s verdict.
The purpose oI MRP 2-305 is to give As notice oI the claims against them and allowing this type
oI behavior would go against that.

#P 15(a)
Allows an amendment once as a matter oI course at any time beIore a responsive pleading is
served (or A makes motion Ior summary judgment).
Otherwise a party may amend the pleading only by leave oI court or by written consent oI the
adverse party.
Leave sha be freey given when j:stice so req:ires
#P 15(b) - Variance (Issues Tried by Consent)
II party complains something not raised in pleadings, judge may allow amendment (Ireely allow
unless D shows prejudice)
When issues not raised in pleadings are tried by express or implied consent, they will be
considered to have been raised in pleadings, and a Iailure to amend does not aIIect the result on
these issues. (Wasik v. org).
II evidence is admitted without objection, any contention that the issue was not pleaded is
WAIVED. (ox v. remont o. P:bic dg. A:thority).

9

o equivalent in MD Rule 2-341: that`s why %ierco turned out the way it did!
#P 15(c) - Should the Amendment Relate Back if it CHAES A PARTY?
YES IF
1.Amended complaint relates to same conduct, transaction, or occurrence set Iorth in original
pleadings
AND
2. New party received notice and was not prejudiced by late notice
MD Rule 2-341
Md. allows up to 30 days before trial to amend as oI right; iI the other party doesn`t like it then
they can make a motion to strike the amendment
Wmore liberal timeIrame than the Iederal court
Analyzing a motion Ior an amendment
1.Is there a pretrial order? iI so, only will allow amendment to prevent maniIest injustice
2.Will it prejudice the non-moving party (identiIy the prejudice, how late in trial is it, is it a jury
or bench trial, are they prepared to deIend against it)?
3.Is there any way to alleviate the prejudice (continuance, additional discovery, mistrial)?











DISCVERY, QUALIFIED IMMUITY, AL and CB, EXPERTS

WPurpose is to aid in preparation Ior trial, eliminate surprises

FRCP 26(b) Discovery Scope and Limits
(b)(1) Scope in eneral - (~Atty/Client Privileged is excluded)
4Any non-privileged matter relevant to the party`s claim or deIense (atty/client privileged
10
inIormation does not have to be disclosed in discovery)
4Any inIo reasonably calculated to lead to discovery oI admissible evidence
4Any inIo not constituting work product (special showing required Ior materials prepared in
AOL)


(b)(3) Limitation for Trial Preparation Materials (~Work Product - prepared AL)
W(A) Docs prepared in AOL or Ior trial are immune Irom discovery, but it`s qualiIied. Immunity
can be overcome only under certain circumstances, when party seeking discovery shows 4They are
otherwise discoverabe under FRCP 26(b)(1); and
4It has s:bstantia need Ior the materials to prepare its case AND
4It cannot, without :nd:e hardshi5, obtain s:bstantia eq:ivaent any other way
4Time, memory, death oI witness, hostile witness, distance, unavailability oI materials all relate
to substantial need & hardship

W(B) Protection against Disclosure 4II court orders discovery oI AOL materials, must protect
against disclosure oI mental impressions, conclusions, opinions or legal theories oI a party`s attorney or
other representations re the litigation ('attorney work product privilege)

W(C) Anybody can get their own previous statement


When Qualified Immunity for Work Product is Involved, Must Determine if Material athered in
CB or in AL
OCB
4Is this process done every time an incident like this takes place?
4You do this every day in a business I`m reading grant reports and making notations about
grants, etc.
4Discoverable based on standard oI relevancy


AOL
4Unique circumstances aIter possibly unique event traIIic event
4ie, gotten into accident, investigator goes out and looks at the scene that`s done in anticipation
oI litigation


Court`s reasoning
4Prevents others Irom riding on coattails
4Protects attys Irom winding up as witnesses iI they contradict
4Would lead to lawyers not keeping written records


Basically, iI it is OCB the standard is relevance; iI it is AOL, the standard is substantial need and undue
hardship to obtain substantial equivalent.

DiIIerence in the burden oI prooI Ior work product doctrine disputes between Federal Rules and
Maryland Rules
4Federal puts burden on seeking party (must show substantial need and undue hardship)
seeking party must make strong case
11
4In MD, party may obtain discovery regarding any matter not privileged iI relevant to subject
matter involved in the action under MD 2-402(a) (Has to speciIically relate to the claim being made)
4DiIIerence Irom Iederal rules re work product doctrine (elch v. MTA) MD presumes
material acquired in OCB
Thus, everything discoverable simply by showing relevance to claim
So, party that doesn`t want to disclose has burden oI prooI, must make strong, coherent
argument to establish by preponderance oI evidence (must convince Judge) that it was AOL, not OCB



x5erts

WDiIIicult to obtain discovery Irom an expert who will not be called to testiIy (must show
exceptional circumstances). A regular testiIying expert can be subject to regular discovery.


FRCP 26(b)(4) Trial Prep Experts
Experts who may testiIy
WExpert`s identity and location are automatically discoverable
WA report under 26(a)(2) containing the expert`s opinion, basis Ior opinion, data considered in
Iorming that opinion, compensation Ior being expert, publications and the number oI times he/she
testiIied as an expert are all discoverable
WCan only depose other party`s experts aIter any required report is provided

Experts NOT to be called at trial (hired just Ior trial prep or in AOL)
WNormally, not discoverable; interrogatories or depositions only permitted in accord with FRCP
35(b) or a showing oI exceptional circumstances, (e.g. it is impracticable Ior opposing party to obtain
similar Iacts or opinions by other means)

ote. Unless manifest infustice will result, the party seeking discovery will pay the expert a reasonable
fee for deposition


MD 2-402(g) Experts
Experts to be called at trial
WCan be deposed as a matter oI course
WCan send interrogatories to the party asking what witness`s testimony is going to be
WCan get witness`s report iI witness has given the party a report

Experts NOT to be called at trial, but retained in AOL or Ior trial prep
WSeeking party must show substantial need and inability to obtain without undue hardship

ote. Unless manifest infustice will result, the party seeking discovery will pay the expert a reasonable
fee for deposition

(b)(5) Claiming Privilege or Protecting Trial- Prep Materials
4II a party claims inIormation is protected b/c it`s privileged (atty/client communication) or its
AOL material, he must Expressly make the claim; and
Describe nature oI docs, communications, or tangible things not produced in a manner that
enables other parties to assess the claim
12

4Court may issue a protective order to protect against Annoyance, embarrassment, oppression,
or undue burden or expense



FRCP 26(d) Timing and Sequence oI Discovery
W Can`t seek discovery beIore Rule 26(I) conIerence or when court permits or stipulates










e-discov
E-DISCVERY, SACTIS and SPLIATI
General rule burden oI paying Ior discovery is on party producing but in e-discovery, courts
willing to consider cost shiIting

Test set Iorth in Zubulake regarding cost shiIting Ior E-discovery
1.Extent to which request is speciIically tailored Ior relevant inIo
2.Availability oI such inIormation Irom other sources
3.Total cost compared to amount in controversy
4.Total cost oI production, compared to resources available
5.Relative ability oI the parties to control costs and its incentive to do so
6.Importance oI the issues at stake in the litigation
7.Relative beneIits to the parties oI obtaining inIormation


FRCP 26(b)(2)(b)
WParty resisting discovery oI ESI must show the inIo is not reasonaby accessibe b/c oI
undue burden or cost
WJudge can order discovery n/w/s expense iI requesting party shows good ca:se, but can
make order to impose costs and conditions on requesting party, instead oI producing party
WReIers to FRCP 26(b)(2)(C)(iii) cost burden v. beneIit, needs oI case, amount in
controversy, parties` resources, importance oI issues, and the importance oI the discovery in
resolving the issues
WEmbodies principles oI Zubulake

Remember, the more it costs, the more unhappy the court will be with it, and the more likely it
will be to Iorce the other party to cough in some cash.

Enforcing Disclosure and Discovery
13
a)Motion to Compel and Sanctions Ior Violation oI Order to Compel i)Motion to
Compel Disclosures and Discovery Rule 37(a) (1)Must certiIy that moving party has made a
good Iaith attempt to obtain discovery


b)Sanctions Ior Violation oI Order to Compel i)II party Iails to comply, court may (1)
Order matters to be treated as admitted
(2)Prohibit the party Irom supporting or opposing designated claims or deIenses
(3)Strike pleadings, stay or dismiss the action, or render a deIault judgment
(4)Hold the delinquent party or witness in contempt (except Ior reIusing to submit to
physical or mental exam)
(5)Assess reasonable expenses incurred because oI reIusal, including attorneys` Iees

ii)WillIulness usually required
iii)Can`t hold a party in contempt Ior disobeying an order to submit to physical or mental exam
because such exams are invasive



Spoliation - Rule 37(e) provides that no sanctions Ior ESI lost in the ordinary good faith
operation oI an electronic inIormation system so, when companies merge, stuII happens;
nothing done on purpose. (Is it reasonable to have a normal procedure that purges aIter 90 days?)






















Disclosures and Discovery Devices

14
DISCLSURES - Rule 26

Disclosure Requirements
Parties are required to disclose certain inIo to other parties w/o waiting Ior discovery
request
O A discos:res m:st be signed by at east one attorney of record, in writing, and served,
with signer's address, emai address and 5hone n:mber Rule 26(g)
O Include everything not privileged or protected as work product.
O MD has no required disclosures only MD Rule 2-504(b)(1)(B) requires disclosure oI
expert witnesses who will testiIy at trial
1) Mandatory Initial Disclosures (Rule 26(a)(1)) w/i 14 days aIter Rule 26(I) conIerence (at
least 21 days beIore Rule 16(b) scheduling conIerence)
a) Names and addresses oI parties, each individual likely to have discoverable inIo; witness
inIormation
b) Documents and things the disclosing party has and may use to support deIense
c) Computation oI claimed damages (how calculated)
d) Copies oI insurance agreements which might relate
e) Impeachment material does not have to be disclosed
I) II party joined aIter Rule 26(I) conIerence, m/b disclosed 30 days aIter joining
g) EXEMPTIONS these initial disclosures not required in actions to review an
administrative record, to enIorce an arbitration award, in pro se litigation brought by
prisoners, actions to quash or enIorce subpoenas, or habeas corpus petitions

2) Disclosure of Expert Testimony and Detailed Report (Rule 26(a)(2)) at least 90 days
beIore trial
a) Identities oI expert witnesses expected to be used at trial (not non-testiIying experts)
b) Must include written report prepared and signed by each expert witness iI retained or
specially employed to provide expert testimony in the case, detailing
i) QualiIications and pubs Irom last 10 years
ii) Opinions to be expressed, their basis and reasons
iii)List oI other cases testiIied as an expert in last 4 years
iv) compensation
c) II evidence is intended solely to rebut other party`s disclosure oI expert testimony, it must
be made within 30 days aIter disclosure oI evidence being rebutted.

3) Pre-trial Disclosures (Rule 26(a)(3)) at least 30 days beIore trial
a) Name, address and phone number oI every witness, including those who will be
presented by depo






15

APPEALS

28 U.S.C. 1291
Generally only Iinal orders are reviewable (i.e. orders that dispense with the whole case on the
merits).

28 U.S.C. 1292(a)
Interlocutory orders as oI right

28 U.S.C. 1292(b)
Statutory interlocutory appeal is permitted when the judge believes there is an unresolved
question upon which opinions can reasonably diIIer and iI the question was answered it would
materially advance the litigation. Trial judge and appellate judge certiIy it and then it goes into
interlocutory appeal.

Collateral order doctrine
This is an important exception which allows immediate appeal oI an interlocutory judgment or
order that meets certain criteria. These criteria are
1.Conclusively determine the disputed question
2.Resolve an important issue completely separate Irom the merits oI the action
3.Be eIIectively unreviewable on appeal Irom a Iinal judgment


II a matter is tied up with the merits, and/or it is not a Iinal order, then proceed using 1292(b)
instead oI the collateral order doctrine. IdentiIy particular issue and whether it is separate Irom
the merits and unreviewable on appeal.


DISMISSALS, M1ML, MTI FR EW TRIAL

Motions at ose of vidence

1udgment on Partial Findings - Rule 52(c)
WApplies to actions w/o a jury
WAt end oI P`s evidence, Judge can Iind Ior D w/o D even putting on case
WD can move Ior a ruling on partial Iindings aIter P makes case


Motion for 1udgment as a Matter of Law (f/k/a Directed Verdict) Rule 50(a)
WMJML can be made mid-trial (at close oI P`s evidence, by D) or at the end oI all evidence, to
prevent unreasonable verdict 4II done mid-trial, D is claiming that P`s evidence would not permit a
reasonable jury to Iind in Iavor oI P and no need Ior D to present his evidence

WMotion must speciIy judgment sought and law and Iacts that entitle movant to the judgment
WJudge can direct a particular verdict whenever evidence is such that reasonable persons could only come
to one conclusion (thus, jury would have nothing to decide.)
16
WEvidence a)Is viewed in the light most Iavorable to party opposing the motion (usually P) i)
Must seem to court that no reasonable jury can Iind in Iavor oI the opponent to the motion

b)includes entire record
c)draws all reasonable inIerences in Iavor oI the non-moving party
d)does not consider the credibility oI witnesses

WMotion may be made by any party at any time beIore case goes to jury
WMoving party must speciIy judgment sought and law and Iacts on which it is entitled to judgment
WCan only grant motion aIter non-moving party 'has been Iully heard
WCourt must Iind that 'a reasonable jury would not have a legally suIIicient basis to Iind Ior the party on
that issue.
WWhere the evidence shows Iactual impossibility court can grant (Connor v. Penn.## weather
records dispute snow levels)
WII D proceeds with trial aIter mid-trial MJML is denied, he must renew it aIter all evidence presented in
order to appeal it later
WWhen a D makes it against P as to issues in P`s case, all D has to do is show that evidence is even-
steven, or in equipoise. WHY? B/c P has BOP, not D! And D just needs to show P has Iailed to meet
that burden.
WWhen party with burden oI prooI makes motion, must show can 5revai by preponderance oI the
evidence, and judge would have to conclude as a matter oI law that no jury could conceive other than that.
WThis is diIIerence b/w 50 and 51. You`re asking a judge to say a jury could not reasonably do
anything other than believe the evidence
WMotion for 1udgment - MD Rule 2-519 4In MD - you look at all oI the evidence that
supports the non-moving party AND any uncontroverted evidence that supports the moving party
NARROWER than scope oI evidence that Iederal court says should have been reviewed
4A party doesn`t waive the right to make the motion by providing evidence
4Remember iI no controversy, nothing Ior jury to do
4No objection to motion Ior judgment is required



Renewed Motion for 1udgment as a Matter of Law (f/k/a 1V) (Rule 50(b))
WMovant may renew request Ior MJML by Iiling RMJML no later than 10 days aIter entry oI
judgment
W(could, instead, request a new trial or join a motion Ior new trial under FRCP 59)
WMust have asked Ior MJML at some time during the trial
WM/B Iiled w/i 10 days aIter entry oI judgment
WMD Rule 2-532 (k/a M1V) 4Must have made Motion Ior Judgment under MD Rule 2-519
at close oI all evidence
4II made only at close oI P`s evidence, must have renewed at close oI ALL evidence
EXCEPTION iI court reserved ruling on Motion Ior Judgment at close oI all evidence, then that motion
becomes Motion Ior JNOV iI verdict is against moving party or no verdict is returned

4M/b Iiled w/i ten days oI entry oI judgment on verdict or w/i 10 days oI discharge oI jury



Motion for ew Trial (Rule 59 and MD Rule 2-533)
WMust be Iiled w/i 10 days aIter judgment entered.
17
WMay be granted because oI a) error during trial i)Aggrieved party must timely object when
error is committed to successIully complain oI it later (1)May renew objection by moving Ior new trial
aIter verdict
(2)Gives judge time to reconsider his ruling

ii)Harmless error does not entitle to new trial

b) verdict is against weight oI evidence (judge Iinds it erroneous)
c)juror misconduct
d)verdict is excessive (a)iI award is so high it 'shocks the conscious, judge may order new trial
or oIIer remittitur. P chooses b/w award Ior less $ than jury gave or new trial.
(b)NOTE iI P and D both disagree with new amount, both must appeal the order Ior new trial
(c)II award is too low, Iederal courts do not allow additur b/c it takes away D`s right to jury trial
on the award.


W Party can make motion Ior new trial iI it thinks Iishy stuII went on with verdict; judge can deny or
grant; appellate courts are unwilling to disturb the grant or denial oI a motion Ior new trial, based on
something that may have happened in deliberation process. (remember %ierco dissent said we don`t
overturn trial judges, it`s their job to smoke out wrongdoing in the jury room)
WMD case exception MD has very, very Iirm rule that jurors will not be heard to impeach their own
verdict. Cts will not receive testimony Irom jurors about what went on in the jury room.



Renewed M1ML with Motion for ew Trial (in the alternative)

WAIter jury issues verdict, you can combine the two (renewing your MJML and requesting a new
trial iI court won`t grant your MJML)
WWho does this? Unhappy losing party; possibly unhappy winning party (iI don`t like award
granted)
WII You Fail to Move Ior Renewed MJML or Ior a New Trial - you can`t raise questions re
suIIiciency oI the evidence on appeal


If RM1ML and Motion for ew Trial Before Court - must dispose oI both
Court May
1.rant RM1ML and Deny MT DeIendant might argue Ior a new trial because JML is very
high and has the likelihood oI being overturned leaving the deIendant with the plaintiIIs original verdict
again

2.Deny RM1ML and Deny MT PlaintiII might argue Ior a new trial in case the MJML is
reversed thereIore ending all opportunity Ior the plaintiII

3.rant RM1ML and rant MT (Conditional) The new trial only happens iI the court
reverses the grant oI the motion Ior judgment as a matter oI law
All considered in one appeal

4.Deny RM1ML and rant MT Not a Iinal order, interlocutory order
The grant oI the new trial sets aside the jury`s verdict
II party ends up unhappy argue that the grant Ior motion oI new trial wrong can you appeal the
18
grant aIter the Iirst trial aIter the second trial? YES



Why doesn`t a judge grant M1ML:
1.Standard is very high and thus, great chance of reversal on appeal Must view all
evidence in the light most Iavorable to the opponent oI the motion, and determine no reasonable jury will
Iind in Iavor oI the opponent to the motion
High standard because oI the constitutional provision Ior trial by jury.

2.1udge is sure that no jury could find for the party opposing the motion Judge believes
that the jury will Iind with the party making the motion
Very hard to overturn on appeal b/c iI jury is instructed properly, appellate court is reluctant to
disturb a Iactual Iinding by jury

3.If the jury does the unreasonable and gives a verdict for the opponent to the motion,
Judge may still grant a RMJML (this serves judicial economy b/c iI the appellate court overrules they just
reinstate the jury`s verdict instead oI having a whole new trial).



Why a court might grant a motion for a new trial:
Where the verdict is against the weight oI the evidence or will result in a miscarriage oI justice,
even though there is evidence in Iavor oI the prevailing party
Provided a timely objection was made, where the court ruled incorrectly at trial (excluded or
permitted evidence, improper jury instruction, etc.) unless it was 'harmless error
Where the jury`s verdict is inconsistent with its own Iindings oI Iact
Where the damages are excessive or inadequate in light oI evidence presented (new trial could
be conditioned on a remittitur, but not an additur)
Where improper conduct by the attorneys or jurors could have aIIected the outcome oI the case