Term
| Band’s Refuse Removal, Inc. v. Borough of Fair Lawn |
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Definition
- was ordinance only allowing one trash collector allowed? (Judge threatened DFs, called own witnesses, introduced new issues, etc.) - NO
- RULE: judges must be impartial, and cannot advocate for a certain side or introduce new issues that were not brought up by the parties, and may benefit one side over the other. |
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Term
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Definition
- Judge wanted case settled for a certain amt before trial, parties didn’t settle, but during the trial settlement according to the amt were set. Judge then punished the DF.
- RULE: FRCP 16 allows judges to encourage settlements, but they CANNOT impose or coerce parties into them. 16f – sanctions are meant to discipline parties who fail to participate, do not show good faith, or fail to comply with scheduling or pretrial order.
- Here, judge overstepped his bounds by coercing and punishing re. his settlement. |
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Term
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Definition
•SMJ
when a ct has jurisdiction over certain types of cases
o Fed cts: re. 1) fed question, 2) diversity citizenship
•PJ
When state courts can hear a case |
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Term
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Definition
•purpose of Prejudgment seizures:
o to return the parties to the status quo before the hearing
o and to make available the goods in question for the winning party. |
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Term
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Definition
- SCOTUS case re. FL and PA writ of replevin laws
- Bonds are not enough on their own, because although they deter some, there’s still a seizure of prop without a hearing (DPC violation)
- RULE: hearing or notice of some kind is needed prior to issuing a writ of replevin/seizure of any kind.
o Exception: states seizure of prop in the public interest. (or Fed Gov doing the same)
- So issues here with these statues: (really the Mitchell issues) |
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Term
| Fuentes v. Shevin, Cont. (reasons law was not const. sound) |
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Definition
o 1) issued by clerk, not judge.
o 2) contains conclusory statements, not proof/facts re. prob cause
o 3) bond has to be posted by Firestone to get items out of custody, but this doesn’t help DF;
o 4) DF to regain possession, has to post counter-bond;
o 5) no hearing required (in PA statute) |
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Term
| Mitchell v. W.T. Grant Co. |
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Definition
- LA statute for prejudgment seizure better than FL/PA
- Safeguards found here, but lacking in Fuentes
o 1) written affidavit, detailed info, no conclusory allegations, but particularized facts (problem with this: only shows one side);
o 2) judge has to issue writ;
o 3) has to have prompt (“immediate”) post-seizure hearing;
o 4) bond, error provides for recovery of attny’s fees.
- = threat of wrongful possession is minimized here. DPC not violated. (proof was established, approved by judge, immediate hearing to dissolve writ allowed) |
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Term
| N. Georgia Fishing Inc v. Di-Chem |
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Definition
- writ of garnishment (bank accts)
- (not ok – fails re. Fuentes standards: conclusory allegations; filed by clerk; no provision authorizing a hearing) = DPC violation. |
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Term
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Definition
- Seizure of a house in order to insure avail of funds for remedy in battery case
- Adopts test to Book-end Fuentes/Mitchell
- 3- part Matthews v. Eldridge test (Matthews holding: no evid hearing req before termination of disability benefits):
o 1. private interest of the party affected
o 2. risk of erroneous deprivation
• (Fuentes/Mitchell considerations) (re procedures used, probative value)
o 3. PL’s interests
- (some dissenting judges say But even if pre-dep hearing, need a bond, and vice-versa. This means bond issue is left open by the case) |
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Term
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Definition
- re students being deprived of pre-suspension hearings in violation of due process. PLs sought compensatory and punitive damages, saying dep of const right was itself their injury. Court disagreed - Nominal damages awarded.
- RULE: Must show actual damage because rights were violated in order to receive anything greater than nominal damages as post-judgment remedy. Can’t sue for inherent money value of const. right. |
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Term
| - Steps to obtain monetary judgments awarded |
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Definition
o Discovery Hearing to find out where assets are located
o Lien against anything owned by debtor. (a right to keep possession of property belonging to another person until a debt owed by that person is discharged.) (writ of execution needed – tells sheriff what to do)
o Garnishment to get actual monies
o Seizure of Goods when money is not available |
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Term
| - 2 main types of injunctions - |
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Definition
o prelim injunction – granted after notice, in an opp to be heard by adverse party is satisfied. Can last indefinitely (??) FRCP 65 (a)
o temporary restraining order – can be granted without notice, can only last 10 days FRCP 65 (b) |
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Term
| Req for a prelim injunction |
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Definition
o 1. Determination that there is a likelihood of success
o 2. Irreparable harm to PL
o 3. Harm to DF |
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Term
| Smith v. Western Electric Co. |
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Definition
- PL wanted an injunction placed on smoking in the workplace because of irreparable harm incurred from being exposed to smoke there (sued under statute that said DF had duty to provide a safe workplace)
- Ct ruled that an injunction can be given because of 1) the foreseeablility of future irreparable harm and 2) there is no adequate remedy at law (money damages are not going to help prevent future irreparable harm). |
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Term
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Definition
- Art. III §2 Const. (Cts can’t hear hypothetical cases, advisory opinions, unrealized disputes.. )
- Ripeness
o Controversy must have erupted.
o City of LA v. Lyons – Injunction against choke hold couldn’t be issued because there was no evid that it would be used again on the PL.
- Standing to Sue
o Injury must have happened to PL
- Mootness
o Must have status to sue, it must be present throughout litigation. Pregnant stewardesses.
- Feigned/Collusive Cases
o PL must actively assert his interests, not through the pressure of others |
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Term
| Walker v. City of Birmingham |
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Definition
| • MLK should have challenged injunction through ct of appeals, not collaterally bringing suit from ala trial ct to fed ct |
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Term
| Shuttlesworth v. City of Birmingham |
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Definition
• The same princip NOT used when a person is prosec for violating a statute she claims is unconst (no injunction, but challenging a STATUTE)
• Held: you can violate unconst law, challenge the const of that law on appeal (only way to challenge const of law) |
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Term
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Definition
- DF represented PL in civil rights lawsuit, and promised to pay him contingency fee. Ct awarded reasonable attnys fees under statute (42 USC §1988), but DF wanted the agreed upon fee, PL said he didn’t have to pay it because of ct awarded amount.
- Ct says §1988 not intended to supersede rights of attnys on contingent fee Ks. (= PL still has to pay that fee) (instead, § meant to allow access to courts for poor PL’s, and isn’t meant to violate contracts) |
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Term
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Definition
- DF offered PLs everything requested except attny fees (= created conflict between attny interests and client interests)
- Upheld – said free market system at work in our legal system |
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Term
| Private Ordering Through Alternatives to Litigation |
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Definition
Negotiation and Settlement promotion
– most disputes settled this way.
Third—Party Intervention = Mediation.
3rd party facilitates dispute, doesn’t have power to decide who is right.
Arbitration
- intervening 3rd party can decide who is right (parties agree to this)
- many times companies prefer this because juries are unpredictable and often pro-PL
- fastest-growing form of ADR |
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Term
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Definition
• PL exec filing suit against bar that made deceased intox as well as against DF for jumping the median (= inconsistent). (PL death either because he was intox, or because DF jumped median)
• FRCP 8(e)(2): competing claims can be made regardless of inconsistencies (which can be sorted through during disc)
• Exception: if PL has sufficient knowledge of facts to know that there is no way that one claim can be true. |
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Term
| Surowitz v. Hilton Hotels |
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Definition
• stockholder deriv action, PL = polish imm, didn’t speak English. Filed suit because son-in-law had discovered alleged fraud class action under FRCP 23 – verification clause. only type of complaint where party has to verify statements alleged in the complaint are true. 23.1
• PL entitled to rely on lawyer, even in cases without language barrier. Individual not expected to be responsible for knowledge of law. (+ no higher standard for class action suits) |
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Term
| Zuk v. Eastern Penn Psych Inst of the Med College of PA |
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Definition
• lawyer did not do proper inquiries into the law re copyrights.
• FRCP 11(c)(1): sanctions can be imposed when lawyer has not conducted a proper inquiry into the facts before filing a suit
• SAFE HARBOR: gives PL the opportunity to withdraw a claim if they see that it is unreasonable 11(c)(2) because courts were clogged. This could allow friv suits, because no fear of penalty.
• Ct says sanctions are unfair. Penalty under FRCP 11 should be lowest amt to get desired result. (Doehring). |
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Term
| Mitchell v. Archibald & Kendall |
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Definition
• re. truck driver who was mugged and shot in the street across from his destination. DF’s moved for 12b6
• FRCP 12(b)(6) – test legal sufficiency of the complaint, but can amend under FRCP 11.
• Here, argument that jury could find the street as part of the property is not in the complaint, so there’s not enough to state a claim. Failure to amend (under FRCP 11) allows for dismissal on original claim. |
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Term
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Definition
• re. fraud with stocks and info concerning the defectiveness of Dalcon Shield.
• Ct ruled that there must be specifics shown re DFs actually knowing of defectiveness before reports. PLs needed to show DF knowledge of it all, malice, etc. FRCP 9b not satisfied. |
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Term
| PSLRA – Priv. Sec. Litigation Reform Act. |
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Definition
• legs made laws describing pleading reqs. PL must specify each statement, give reasons why the statement is misleading, etc. Circuits interpret this differently. (very pro- defendant, pro-business)
• *issue – how much $$ can PL spend before discovery even happens? |
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Term
| Cash Energy, Inc v. Weiner |
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Definition
• case against oil refineries where PL claimed executives were part of the actions (polluting). (2 issues: adding in officers without factual data about their control; modern trend toward more specific fact pleading with business interests at stake?)
• Ct extended FRCP 9(b) to this case, because filing the claim can be used as a tool of intimidation. |
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Term
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Definition
• re. age and nationality discrimination. Employment descrimination.
• SCOTUS says fraud is the ONLY exception at the FRCP 12b6 level – if rule makers intended for there to be other exceptions, they would have included them. (expressio unius…)
• Here, just enough info is provided to pass 12b6 level. Don’t need same specificity under 9(b).
• PL’s pleading was sufficient, discovery will come later, as will SJ motion. |
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Term
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Definition
• have baby bells conspired to prevent local telephone companies from competing? (anti-trust)
• SCOTUS not finished figuring out how much specificity is required in pleadings.(some cts read this to only apply to anti-trust cases)
• More is req than simple, plain statement. Need to have enough evidence to infer conspiracy.
• it’s not ct’s job to make case out for PL. PL better allege adequate facts by which a reasonable finder of fact can find cause of action. ???
• But FRCP 9 – how can you plead knowledge of opponent without access, discovery? |
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Term
| Shepard Claims Service, Inc. v. William Darrah & Associates |
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Definition
• Misunderstanding re when an answer needed to be filed by lawyers after extension was granted. FRCP 55.
• (see guidelines above) There was no culp conduct, so client should be allowed a day in court. No prejudice, etc.
• Strong policy in favor of deciding cases on their merits > inconvenience to lower ct or PL resulting from short delay in answering. |
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Term
| David v. Crompton & Knowles Corp |
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Definition
• product lawsuit in which DF co claims they discovered info that would allow them to deny, and want to amend their answer to a denial
• Ct denied the amendment, because the info was within their knowledge and therefore the averment will be taken as admittance |
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Term
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Definition
• blanket denial issued and DFs knew another (non) party could be held liab, but didn’t say so in their denial. PL then suffered from statute of limitations
• Ct ruled that even though they entered a denial, they did not say why and PL was then not allowed his day in ct. So ct estopped them from denying. (DF not acting in good faith) |
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Term
| Wigglesworth v. Teamsters Local Union No. 592 |
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Definition
• slander/libel on the steps, DF wanted to bring this into the union suit.
• Ct rules that in order to determine of counterclaim is in same TOC, there must be the SAME EVIDENCE TEST: (can be some same evidence, not all. This is also the logical relationship test))
• *Rationale: convenient trial package/judicial economy. |
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Term
| David v. Crompton & Knowles Corp (amendments to pleadings issue) |
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Definition
• amendment not allowed because statute of lims had run, PL wouldn’t get day in ct.
• FRCP 15(a) – you can amend a pleading at any point before an answer has been filed… |
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Term
| Swartz v. Gold Dust Casino, Inc. |
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Definition
• Cavanaugh properties (owners of casino) claim they cannot be added because they were added after statute of limitations. PL also wanted to amend her complaint to be re. a different kind of neg than that orig claimed
• Ct held that FRCP 15(c) was satisfied here – party was on notice. (should have been on notice that stairs were not up to code, too, even though orig complaint alleged threadbare. Because same notice centering on duty, not partics of stairs) |
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Term
| SMU Assoc of Women Law Students v. Wynne and Jaffe |
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Definition
• Sex discrim case where women did not want to use their real names.
• Ct held that only certain matters will allow for anonymity of parties:
• Sexual matters; matters that would outrage the community; threats against PL, matters where PL is showing a want to break a law, or already has. (legit fear of retaliation)
• (identities could be given to defense counsel and judge as compromise?) |
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Term
Doe v. Shakur
5 times doe permitted |
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Definition
- 1) whether PL is challenging gov activity
- 2) whether PL would be required to disclose info of the utmost intimacy
- 3) whether the PL would be compelled to admit his or her intention to engage in illegal conduct, thereby risking crim prosec
- 4) whether the PL would risk suffering injury if identified
- 5) whether the party defending against a suit brought under a pseudonym would be prejudiced |
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Term
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Definition
- Harrassment of family by police on mult occasions over a period of time
- Ct ruled FRCP 20 is liberal. If all events are reasonably related, it’s satisfied
• Here, same TOC = continuing pattern of harassment. Events are reasonably related. Time doesn’t cancel out logical relationship. |
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Term
| Insolia v. Philip Morris, Inc. |
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Definition
- Attempt to join mult PLs and DFs for a suit against tobacco companies.
- Ct held that PLs and Cos were not all connected in a consolidated way. (all smoked different brands, at different frequencies and for different durations. Some even quit). Joinder not allowed. |
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Term
| Janney Montgomery Scott, Inc v. Shepard Niles |
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Definition
| - DF’s owner co, Underwood, was left out. -Joinder not necessary just because J+S system; PL can still only get compensated once. Ct held that possible impleader suits do not count towards double liability. |
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Term
| Clark v. Associates Commercial Corp |
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Definition
| - DF co had agents who allegedly beat up PL. DFs wanted to add their agents to suit. - This was allowed, because the 3rd party could be held liable as agents of the DFs, so under the agency theory they could be brought in as impleaders. • Liab/duty does not have to be to the PL, but to the DF when they become a PL to recover damages from impleader in a new suit. • Liab for 1st DF has to be already est to implead a 3rd party. (subrogation, indemnity, etc) |
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Term
| State Farm Fire & Casualty Co v. Tashire |
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Definition
- A Greyhound collided with a pickup truck in CA. Among the injured were Canadians and citizens of 5 different U.S. states. The driver of the pickup had a $20,000 insurance policy from State Farm. State Farm brought a statutory interpleader action and asked for an injunction against any further suits against it in any jurisdiction
- PL could seek interpleader because they had one fund, but they could not bring all other parties in because of prejudice, lack of common fund.
• Existence of fund cannot, via interpleader, be used to accomplish purposes that exceed the needs of orderly contest re the fund.
- 1335 can’t be used to stop lawsuits outside of this action, but can be used to join all lawsuits against PL’s interests.
- “don’t let the tail wag the dog” |
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Term
Cascade Natural Gas v. El Paso Natural Gas
Intervention (rule 24) |
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Definition
| • Non-legally protected interests allowed. V. broad. |
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Term
Donaldson v. US
Intervention (rule 24) |
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Definition
| • ** Interest must be “significantly protectable” |
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Term
Trbovich v. United Mine Workers
(Intervention) |
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Definition
• Non-legal interests were allowed to intervene
• Must be within “zone of interest” intended to be protected by a statute if it’s in question. (even though the statute only gave legal right to secretary, not intervening union members. ) |
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Term
Sierra Club
(Intervention) |
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Definition
| • If members have standing, then organization can participate on their behalf. |
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Term
Planned Parenthood
(Intervention) |
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Definition
• PP sued city, challenged their moratorium banning abortion clinics
• Community group wanted to intervene. They were found to have sig protectable interest because of their property value interests. |
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Term
| Natural Resources Defense Council, Inc. v. US Nuclear Regulatory Commission |
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Definition
- 24(a)(2)Interest: direct interest is too narrow. Decide if interveners are affected by case. Religious or social issues aren’t enough.
- Impairment: does not just need to be res judicata, but can also be in form of stare decises.
• Also re. practical matter – is yr business impaired?
• Here, intervening party is affected because they’d have to file more forms, their plans would be impaired
• Inadequate representation: just have to show their interests may not be represented adequately
• V. minimal level of misrep needed. Just need to show a slight different in facts could lead to a misrep |
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Term
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Definition
- SCOTUS case with covenant of racial segregation in a neighborhood.
- Held: original class was inadequate, because it represented all the neighborhood regardless of whether or not they were for/against the covenant. The class did not represent the PLs here, so they were not bound by the judgment. |
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Term
| Stephenson v. Dow Chemical |
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Definition
- class defined as “all service men who came in contact with agent orange”
- PLs here filed suit after depletion of original fund.
- Held that the class was inadequate because it didn’t cover those who had developed symptoms after the 20 yrs (?) |
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Term
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Definition
- class was for those people who were being deported because of the waived right to trial
- Commonality, because every individual would be raising the same constitutional challenge. Even though some offices explained the waivers, this wasn’t common, so the cause of action was more common than not. Adequate representation because same cause of action/question, even with slightly different facts. |
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Term
| Matthews v. Eldridge Test for DPC constitutionality of the forms. |
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Definition
- must balance:
• interest of the individual
• interest of the gov
• risk of erroneous deprivation. |
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Term
| In re. Convergent Tech Securities Litigation |
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Definition
- DF wanted to use interrogs to get PL to lay out every item of evid they might use to lay out case against them. (uses FRCP 33)
- imposes Proportionality Test for discovery.
• discovery can be limited if it would 1) impose undue costs on one party, and 2) if the information can be recovered through other means.
• Test to see if the burden of obtaining such info > the potential benefit from the info.
- Ct says spirit of rule 26 was violated. Counsel must make common sense + good faith cost/benefit analysis before moving on with discovery.
- (also, no contention interrogatories) |
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Term
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Definition
- PL wanted to discover 1) DF’s complete financial records, 2) Payment amts to lawyer, and 3) complaints by other employees.
• Not allowed. 1) Breach of privacy, only to be allowed in event damages were awarded. 2) admissible that this person (a witness) was paid, don’t need to be discovery because actual amount will not effect the judgment of bias. Employee/employer relationships don’t = bias. 3) these don’t determine DF’s ability to tell the truth, and are therefore irrelevant.
- DF wanted to discovery PL’s treatment by psych.
• Allowed, because PL is claiming psych injuries, so DF has right to investigate those. |
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Term
| Kozlowski v. Sears, Roebuck, Co |
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Definition
- PJs caught fire. PL wanted info re. similar accidents. DF claims it can’t find the spec type of documents requested because of their filing system.
- FRCP 26(b)(1) – info re. similar accidents, even if not admissible in evid, could lead to admissible info.
- FRCP 34: info must be presented in normal business way, OR according to categories specified in complaint.
• Party cannot avoid discovery because their system is inefficient.
- Ct rejected DF’s offer to let PL’s search for themselves, because costs must be born by producing part |
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Term
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Definition
- e-discovery case (sexual discrimination allegations). PL requested all emails and files from server.
- Under FRCP 26, ct adopted the marginal utility test to prevent undue burden/expense. Test run – 1yr period of tapes to be produced, then both parties to report on whether or not this should continue. (Ct found this wasn’t useful – not enough info could be recovered to justify the expenses involved) |
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Term
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Definition
- like Ashcroft, also sex-descrm case.
- 7-factor test adopted to determine who should bear the costs:
• main points: need to narrow request. Consider total cost of production vs. resources. Consider the importance of the issues (constitutional > mere contract issues) |
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Term
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Definition
- SCOTUS. DF ship sank, crewmembers died. DF hired counsel, who interviewed survivors, took statements. Year passes, PL sends interrogs asking for statements from counsel – both in writing, and recounting of oral statements
- Work-Product Privilege: Ct ruled that info from an attny’s mind is privileged.
• All recreated oral conversations are privileged.
• All strategy is confidential.
• Want to encourage each side to do their own investigation.
• Lawyers need incentive to write things down.
• EXCEPTION: There must be good reason for the written preparation to be given (substantial need or lack of equivalent on other side) . |
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Term
| After Hickman, FRCP 26 was amended |
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Definition
- FRCP 26(b)(3): party may NOT discover documents or tangible things prepared in anticipation of litigation for another party or its representative (this does not include things done in the normal course of business).
- NEW RULE ** Material IS discoverable if: 1) it’s not privileged and relevant; 2) there’s a substantial need; 3) substantial equiv can’t be obtained without hardship.
- Broad reading of docs/tangible things. Extended not just to lawyer, but anyone working for the other side. Want to protect against disclosing mental impressions, legal theories, etc. |
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Term
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Definition
- re. FRCP 26(b)(3)(A)
- Held: DF’s tax pool analysis for potential exposure to liability for taxes = part of ordinary business procedure, so they can be discovered.
- Anticipation of Litigation Test: when documents are dated, date attny hired/started working on this, date when suit was first filed/threatened. |
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Term
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Definition
does a party have enough evidence to go to trial? (what SJ is concerned with). Could a jury find for him? If not, SJ is proper.
• Triggered by party moving for SJ or JAML.
• Shifts back and forth.
• Party moving for SJ has to prove not just that a jury could find for him, but that a jury must find for him. Then the burden is shifted to the opposing party. If they don’t meet it, the moving party gets SJ |
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Term
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Definition
| which party must convince the trier of fact of the accuracy of their claim? Ultimate burden the jury will have to decide at end of trial. Usually on PL, unless DF has affirmative defense. |
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Term
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Definition
- SJ:
• When: before trial
• Why: to decide that there is no genuine issue of material fact that would warrant a trial.
• What: based entirely on written docs as viewed by judge. No hearings, nothing oral.
- JAML:
• When: during trial
• Why: to decide that the non-moving party hasn’t produced enough evidence to justify a verdict in their favor
• What: based on evidence, after PL has presented his case, or after DF has also made a case. |
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Term
| Addickes v. SH Kress and Co |
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Definition
- re. burden shifting. PL white school teacher brought black students to DF store. PL had B O Per – must establish police were involved in conspiracy (because under statutory action, violation of right has to be made under color of law). DF moved for SJ after some discovery.
- SJ not proper, because moving party (DF) did not present any evidence to show that no policeman was present, and therefore there was still an issue of material fact.
- CRITICISM: places too great a burden on the moving party, who doesn’t have burden of persuasion at trial.
- * not the law anymore |
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Term
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Definition
- DF Celotex moved for SJ, claiming there was no evidence that PL’s husband ever had contact with chemicals. Ct held that SJ wasn’t premature here.
- SCOTUS held that FRCP 56(c) does not explicitly state a duty for a moving party to present evidence negating the original claim. Their burden is simply to show that there is no claim, and it can do so by using evidence already presented
- THIS IS THE LAW. Distinguishes Addickes. Like Currie. No affirmative evidence needed by moving party, just pointing out weakness of other side’s case.
• BUT says burden shouldn’t be on moving party to produce evidence
o Instead, burden may be discharged by a moving party showing (pointing out to ct) that there is an absence of evid to support the non-moving party’s claim.
o Rule 56 b – specifically says “with or without affidavits” = they’re not necessarily required.
• (this results in “out of the box” SJ motion – add a motion to an answer.)
• When party that doesn’t have burden of persuasion (usually DF) moves for SJ, he is only required to point out the absence of proof as to any essential element.
• * PL has burden of persuasion. DF does NOT have to negate possibility that he was (x). PL has to present evid that DF was (x) |
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Term
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Definition
- PL sued famous songwriter DF, saying he stole his songs. DF moves for SJ, uses his depo stating he has no knowledge of PL.
- Under Celotex, DF’s depo is enough to shift burden of production to PL.
- Ct holds that a reasonable jury could find for PL – the songs are similar, there’s potential circ evidence that DF had access to PL’s songs. Nothing so inherently false about PL’s case that jury would have to not find in his favor.
- Credibility – this is an issue for jury to decide. It can weigh demeanor, credibility of witnesses). Belief jury will sort out false claims. |
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Term
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Definition
- Libel case that rested on two witnesses that PL thought heard the libel. Witnesses denied it. No depositions here, so PL didn’t know if there was any way he could change their denials on the stand.
- Even though there is a chance a jury could disbelieve the witnesses/DF, SJ is still proper here because on the surface, and with what docs are avail at SJ stage, there isn’t enough evidence to support the PL’s claims. |
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Term
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Definition
- est in Dohler Metal Funiture Co v. US, based on Arnstein – if there’s a slightest doubt as to the facts, case must go to trial. V. liberal.
• Rejected in Matsushita. Lower cts don’t accept slightest doubt test.
• CLEAR AND CONVINCING EVIDENCE STANDARD – higher standard for finding malice in a defamation case |
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Term
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Definition
1. Jury Selection – should be unaware of facts
2. Opening Statements – roadmap of case
3. Presentation of Evidence
4. Argument
5. Instructions
6. Jury Deliberation and Verdict
7. Post-Trial Motions and Judgment
- FRCP 50(b): Renewed motion for JAML. Moving party must have made a motion for JAML at the close of all evidence. Made when mover things jury returned the wrong verdict.
- FRCP 59: loser asks for verdict to be set aside for a new trial.
* in Fed cts, judges can comment on evidence, but they can’t be too one-sided. |
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Term
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Definition
Dairy Queen, Inc v. Wood
- PL breach of K action against franchisee DF. PL stated claim for damages as “accounting,” trying to circumvent 7th amendment jury trial (which could be pro-DF because it’d be with a local jury sympathetic to francisees)
- SCOTUS sez: Language doesn’t matter. Awarding damages are a matter of law, which can go to a jury. Law courts can do accounting now (special masters)
- Even though case also seeks equitable remedies, the legal remedy is determining. No longer law/equity split, but single court. If it were only equitable remedies, it would not go to jury. But legal remedies can be determined before equitable remedies. |
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Term
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Definition
- re. judicial control of the verdict. Soldier seeking disability payments for his insanity, but to be covered he must prove that he was insane during his time in the military.
- SCOTUS found that huge gap in time in the evidence = burden of production wasn’t met. PL’s evidence couldn’t survive a DV motion, or go to a jury. Jury shouldn’t be able to draw inferences from speculative evidence (sketchy witness)
• This doesn’t offend the 7th amendment, because juries shouldn’t make these inferences. |
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Term
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Definition
- re judicial control of the verdict. unknown death of railroad worker. Jury finds for PL, appellate court reverses, says DV of DF should have been granted.
- SCOTUS says there was enough to go to a jury. Evidence does not have to negate the possibility that there was another cause, just has to have enough evidence that a jury could rule in your favor. Jury should weigh both sides’ evidence.
• Only in COMPLETE ABSENCE of probative facts to support a conclusion reached does a reversible error appear. Otherwise, jury can believe or disbelieve what it wants. |
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Term
| Penn. RR Co. v. Chamberlain |
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Definition
- burden on Chamb (PL) to prove Neg. PL didn’t really have evidence, just knew where body was.
- Ct says no conflict of facts, so no inference is established. JAML must go against a party who has to sustain an inference but hasn’t been able to do so (PL here).
• Vs. Lavender, where 2 conclusions could actually be inferred, so the case could go to the jury. Here, there’s no perception evidence, just circumstantial.
• ** = need perception evidence, not circumstantial. Witnesses have to have adequately perceived events. Must be real controversy re. the facts. |
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Term
| ** New standard: JAML after Penn |
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Definition
| JAML is proper when the record contains no proof beyond speculation to support a verdict. |
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Term
| Guenther v. Armstrong Rubber Co. |
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Definition
- PL said the tire submitted into evidence wasn’t the one that exploded, but witnesses disagree.
- Ct said SJ not proper, because jury’s job is to resolve/decide discrepancies in testimony. |
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Term
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Definition
- Territorial theory of jurisdiction: a state can’t extend its process beyond its territory so as to subject persons/property to their decisions.
- State boundaries define the power of the court. No power beyond this.
o = need presence in state – physically within it – but does not have to be permanent. Can’t be fraudulently obtained. |
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Term
| International Shoe Co. v. Washington |
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Definition
- this is a due process question, not presence (like Penno).
- New test: minimum contacts, so that maintenance of a suit does not offend traditional notions of fair play or substantial justice.
• Fair play (convenience to DF); and substantial justice (purposeful availment of the law)
• Corporate presence should be 1) continuous and systematic (indicating duration of contact) 2) large volume interstate business (indicating amount of benefits received by co by being in state); 3) received benefits of the state’s laws in conducting business; 4) cause of action should arise out of the activities in the state. |
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Term
| = ISC min contacts due process test: |
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Definition
1. systematic and continuous
2. large volume
3. benefits received
4. cause of action arose out of same activities |
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Term
| McGee v. International Life Ins. Co |
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Definition
- TX co insures PL CA resident. Tests CA long-arm statute against DPC Min contacts test.
- Ct finds there were minimum contacts, because PL sent payments from CA, DF sent letters to CA.
- Establishes forum state interest: CA has an interest in protecting its citizens
- = less emphasis on volume of business. Makes test more of a balancing test. |
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Term
The States’ Response – Long Arm Statutes'
o need to ask: |
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Definition
• 1) is there a long arm statute?
• If so, 2) does it conform to due process/const, ISC?
• = statute existing is not enough. statute has to be constitutional |
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Term
| Gray v. American Radiator |
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Definition
- OH co makes valves sold to Penn co that sells radiators to Ill. Radiators caused an accident.
- Min contacts established by OH co because of Stream of commerce theory:
• If you know that putting your product into the stream of commerce it could end up in a certain forum (or market in that forum), then you should be subject to process there.
• Too broad. Limited in subsq cases |
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Term
| Mullane v. Hanover Bank and Trust |
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Definition
- justification for NY jurisdiction of trust. It was granted in NY, under NY law.
- State had interest in overseeing trust, because it was receiving benefits of NY laws |
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Term
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Definition
- also trust case. No min contacts. Trust est in Delaware, but run by someone in FL.
- No min contacts with FL because trust was set up in Del, with Del laws.
• It is not enough that there is some connection with the state. You have to purposefully avail yourself to be subjected to jurisdiction. |
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Term
| Personal Jurisdiction in Federal Court |
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Definition
o Fed courts use minimum contacts test for a state in which they sit, with 2 exceptions:
• FRCP 4(k)(2)
• Interpleader: fed court can assert jurisdiction by nation-wide service of process to accomplish the purpose of interpleader. (to resolve all claims at once)
• Bankruptcy: fed court can assert nation-wide jurisdiction of process to est the purpose of bankruptcy (to resolve all claims at once)
• FRCP 4(k)(1)(B)
• Bulge jurisdiction: |
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Term
| World-Wide VW Corp v. Woodson |
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Definition
- should a car distributor who sold only to two states and aimed his sales only at those states be hailed into OK court?
- Test laid out:
• Foreseeability in terms of whether or not the corp can anticipate being sued in the state. (not just foreseeability that car would go to OK).
• DF has to have taken some affirmative action re the benefits of that state. Purposeful availment needed. Unilateral actions aren’t enough. |
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Term
General Jurisdiction
vs.
Specific Jurisdiction |
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Definition
o General Jurisdiction: permits all claims, whatever their origins, to be asserted against the DF.
o Specific Jurisdiction: when a claim arises out of or is related to the DF’s conducts within the forum |
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Term
| - Buckeye Boiler co v. Superior Ct. |
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Definition
• CO did lots of business in CA, but the boiler wasn’t brought their as part of this.
• Held: if DF does enough business in the state to derive substantial benefits from its laws, it’s not unfair to bring them in for suit even though the particular action isn’t related to their actions in the state. |
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Term
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Definition
- actress living in CA can sue magazine published in Florida, because 12% of National Enquirer’s readership is in CA.
- Impacts/Effects test re. foreseeability: being able to foresee that article would be read in CA isn’t enough, but their actions were aimed at CA and they knew there could possibly be effects in that state (Jones lived there, her business is there, etc).
• (ask where tortious injury occurs) |
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Term
| Keeton v. Hustler Magazine |
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Definition
• PL not from NH, but DF sent magazines there.
• Ct held there was jurisdiction and min. contacts because the effects of the article could be felt in that state. Sales were not random, isolated, but regular. Each issue of publication as a tort – single publication rule |
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Term
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Definition
- tend to come out of intentional torts.
• theory: each libel contains a pernicious effect. Each magazine is impact on reputation of person it’s written about
- Avoids question of purposeful availment when conduct is intentionally aimed at a state.
- Once it’s in a commercial context, look to purposeful availment. Still, single act of another (unilateral act) does not = purposeful availment. |
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Term
| Burger King Corp. v. Rudzewicz |
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Definition
- MI franchisee brought into court by headquarters in FL
- *** 2 step analysis:
• 1) look to purposeful availment
• 2) if this is satisfied, determine whether the exercise of jurisdiction would be reasonable.
• Balancing test – WWVW –
o a)PL’s interest,
o b)DF’s inconvenience,
o c)State’s interest, all states’ interests, etc.
- Here, test satisfied. 1) franchise = long term business arrangement. 2) balance test is in favor of PL. (FL has strong interest, and DF failed to show MI has a stronger one). |
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Term
| Re. Purposeful Availment, internet: |
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Definition
| - putting something on the internet that’s read in another state isn’t personal availment, unless it’s an interactive thing, in which case it’s considered reaching out to that state. |
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Term
| Asahi Metal Industry Co. v. Superior Court |
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Definition
- suit of a Taiwanese co against a Japanese co brought in CA (originating in tort action by CA resident against Tai co, who brought in Asahi as a 3rd party)
- Plurality test: purposeful availment. Limits on stream of commerce
• Must do something more than putting it in the stream of commerce. Instead, stream of commerce PLUS: put something in stream of commerce + the action should be purposefully directed at the state
- 2-part BK test:
• 1) purposeful availment? – no. must have intended to serve the market.
• 2) reasonable? ( in terms of fair play, substantial justice)
• no. CA’s citizen isn’t even in the suit. International interest in this, not CA.
• foreseeability can be outweighted by reasonableness. |
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Term
| to be in fed ct, you have to have 3 things: |
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Definition
• 1. SMJ – federal questions, diversity citizenship, or specialized fed. Jurisdictions (trademark, bankruptcy)
• 2. PJ – min contacts.
• 3. Venue – most states only have 1 fed district, but some have more (TX has 4) USC § 1391 – DF has to reside there, or conduct giving rise to suit has to happen there. |
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Term
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Definition
- French husband, Miss. Wife, living in LA. Sue in fed. Ct., awarded damages under min amt.
- Diversity found, because: neither had made LA their domicile, and woman’s state was MS, not France. Amt in controversy is re. the claim, not the award. |
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Term
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Definition
o part of SMJ
o min amt: 75k. this is the amount in the claim, as made in good faith, not what’s actually awarded. (to deny jurisdiction because of amount, have to have legal certainty that the claim isn’t worth the amount)
• when non-monetary damages requested, most cts say that if it’s worth 75k to either the PL or DF, it meets the requirement.
o No parties on the other side can be from the same state.
o State citizenship is determined by domicile, which can only be changed by 1) taking up residence in another state and 2) intending to stay there. Must be in the state voluntarily.
o Can’t have aliens on both sides of a dispute = diversity.
o Corporations: total activity test – where a corp has it’s principal place of business, not necessarily where it is incorporated.
o For class actions: diversity only of representative need be considered. Same thing for trust – only trustee’s citizenship will be considered.
o Unincorporated groups: take into acct every member/partner |
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Term
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Definition
o Jurisdiction is determined by the face of the complaint only. Defenses and counterclaims are not going to be considered.
• Well-pleaded complaint rule: if your lawsuit is just a matter of state law, then you can’t anticipate a federal question defense. (to determine whether federal question jurisdiction is natural)
o SMJ limitations are not waivable, but PJ limits are easily waived.
o Eerie Doctrine: fed ct has to apply the substantive law of the state in which it sits in a diversity case. Does NOT apply to federal question cases. |
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Term
| Louisville & Nashville RR v. Mottley |
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Definition
• Claim arises out of K, which is based on state law. PL assumed defense would be a federal statute, but this is improper for purposes of invoking federal jurisdiction the grounds of a federal question.
• Counter claim arising out of fed question doesn’t = fed jurisdiction |
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Term
| HOW TO TAKE A CASE AWAY FROM A JURY |
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Definition
• FRCP 12b6 (don’t look beyond allegations of complaint if the allegations in the complaint are inadequate)
• FRCP 12c – judgment on the pleadings. (after complaint/answer. Either party can move – generally PL – on grounds that in answer DF admitted critical elements of cause of action)
• FRCP 56 – SJ – party can move on basis of materials submitted to ct (not oral info) which show that there is no genuine issue of material fact. (*before trial is held)
• FRCP 50a – JAML (JMOL) (used to be DV)– test: whether a reasonable jury could find for the party with the burden of persuasion in the case. (*in middle/end of trial, so based on actual evidence at trial. Typically at close of PL’s case, or at end of all evidence. Rare for PL to get judgment of JMOL, because PL’s usually have burden of persuasion)
o more likely that appellate court would overrule this, vs. jury verdict.
o risk: if this gets reversed, have to have whole new trial, which is wasteful
• FRCP 50b – JMOL (used to be JNOV) – even though jury has found for opponent, no reasonable jury could find this way, because insufficient evidence to support the verdict. (prerequisite: have to have moved for 50a before case went to jury) (*made after the case has gone to a jury. Moving party has 10 days to rule for this after case has gone to jury). If granted, reverses verdict, judge enters new verdict to opposing party. New party has right to appeal, NOT new trial. Same test as 50a: insufficient evidence on which a reasonable jury could find for non-moving party.
o Judge lets it go to jury not to waste a trial. Appeal ct doesn’t have to order new trial
o Risk: appellate court is more inclined not to overturn jury verdict
• FRCP 59 – New Trial – judge can move for this.
o when judge shouldn’t have given a certain instruction, etc. |
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Term
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Definition
| • People present during settlement meetings/hearings must have the capacity to settle. Wal-Mart Case. |
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Term
| purpose of Prejudgment seizures: |
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Definition
o to return the parties to the status quo before the hearing
o and to make available the goods in question for the winning party. |
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Term
| Enforcing Equitable Decrees - Contempt |
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Definition
- Contempt
o Crim contempt – violation of ct order prosec as crime; fines
• Compensatory civil contempt – ct orders party to pay for violation of decree
• Coercive civil contempt – imposing penalties until compliance with decree. Punishing till compliance achieved.
- Collateral bar rule – precludes the DF from challenging the validity of the injunction/decree in the “collateral” contempt proceeding
• Exception: if injunction is prima facie unconst, you can jump collaterally to fed system |
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Term
| Cost of Litigation - attny's fees, etc. |
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Definition
• American Rule: Each party pays their own fees (= our contingency fee system – percent of award. Usually up to 50%)
• EXCEPTION – civ rights cases
• Lodestar method: hours worked by lawyer * usual hourly rate
o City of Burlington v. Dague - ct held that fee enhancement for contingency should not be allowed
o Allowed to increase for certain things: (risk, creativity, fronting expenses)
• FRCP 54- a, b, c = form of judgment. d= costs
• 28 USC §1920 – what is recoverable as exception to American Rule – on motion |
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Term
| Desc and Def the Dispute: The American Reform Experience |
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Definition
- Fed pleading is NOT fact pleading, but NOTICE pleading.
- FRCP 8: complaint and answer. |
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Term
| Describing and Testing the Plaintiff’s Claim |
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Definition
• FRCP 8(a)(2): requires only that PL provide a short and plain statement of the claim showing that the pleader is entitled to relief
• FRCP 12(b)(6): allows for motion to dismiss for failure to state a claim for which relief can be granted. Challenges the legal sufficiency of the allegations in the complaint. |
|
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Term
| Certification by Signing – Rule 11 |
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Definition
- FRCP 11: allows for sanctions against attnys who bring unreasonable law suits without making proper inquiries into the suit (can also be brought on PLs)
- FRCP 11(b) vs. FRCP 8
• FRCP 11: lawyer has to certify he’s done adequate invest.
• NOT contrary to FRCP 8 because just have to certify you’ve done the work, no proof of it needed.
• FRCP 11(b)(3) – you do need to ID allegations in notice that req. further invest/discovery (~fact pleading in that situation) |
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Term
| Heightened Requirements for Specificity |
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Definition
- FRCP 9(b): circs concerning fraud must be stated with particularity. Knowledge of intent or malice can be generally averred.
• Purposes:
• Give DF fair notice of accusations
• Protect DFs from harm to their reputation and goodwill that could come from one of these suits.
• = the more complex the suit, the more info needed in a claim.
• Not inconsistent with FRCP 8, because need to go to extra lengths to make sure allegations are true. |
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Term
| PSLRA – Priv. Sec. Litigation Reform Act. |
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Definition
• legs made laws describing pleading reqs. PL must specify each statement, give reasons why the statement is misleading, etc. Circuits interpret this differently. (very pro- defendant, pro-business)
• *issue – how much $$ can PL spend before discovery even happens? |
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Term
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Definition
• Lack of juris; improper venue; insufficiency of process; insuffic of service of proc.
• Must be mentioned in pre-trial motions, or they are waived forever. |
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Term
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Definition
• Failure to state a claim, failure to join an indesp party, failure to state a legal defense to a claim
• Can be made in any pleading by a motion for judgment on the pleadings, at trial. |
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Term
|
Definition
• Lack of SMJ
• Can be raised any time, even 6 months later. |
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Term
| Failure to Answer – Default |
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Definition
o FRCP 55(c): default can be set aside if “good cause” is shown.
• More lenient than req of 60(b)
• Guidelines to set aside default
• PL not prejudiced
• DF has meritorious defense
• Default did not arise out of any culp conduct of DF. (he didn’t intentionally thwart/disregard the pleadings)
o FRCP 55(b)(1): if damages to PL are certain, and DF has defaulted, clerk can enter judgment for that amount. |
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Term
The Answer
Admitting or Denying the Averments |
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Definition
• FRCP 8(b) : allows party to deny or admit all allegations in the pleading (deny all, deny parts, claim lack of knowledge)
• If a party is without knowledge of info then they should say this, which has the effect of a denial (unless the info they claim not to have is within their control, in which case the averment will be taken as admitting it.)
• FRCP 12(a)(1): DF must file answer within 20 days. |
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Term
|
Definition
• FRCP 8(c): lists 19 affirmative defenses (not exclusive)
• Allegations are taken as denied. They did commit the act, but can’t be guilty of charges for some reason.
• Once answer is filed, chance to file affirmative defense is lost.
• Rule 15(d), Supplemental Pleadings, which permits a party to serve a supplemental pleading setting out an event that happened after the date of the pleading. That applies to plaintiffs and defendants. If something happens after the complaint was filed that shows that the defendant has an affirmative defense what was not apparent from the complaint, the defendant can file a supplemental pleading. But that affirmative dfense must still arise out of or relate to the claims pleaded in the complaint. |
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Term
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Definition
• FRCP 13(a): Compulsory counterclaims must arise out of the same transaction or occurrence of the subject matter
• FRCP 13(a): Compulsory counterclaim: claims against the opposing party that a pleading MUST state
o same TOC (of subject matter), can be brought into the same suit in fed ct regardless of jurisdiction.
• FRCP 13(b): Permissive counterclaim: any claims that aren’t compulsory. (logical relationship test???)
• Ancillary Jurisdiction : arises when a claim belongs in fed ct, but compulsory counterclaim belongs in state ct, but fed ct is hearing it.
• Allowed under FRCP 13(a) |
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Term
|
Definition
• after an answer/motion has been filed, the courts are the only ones who can grant a dismissal (they may not because they want to justify the expenses the parties have already gone through, though this will only lead to more expeses…)
• FRCP 41(a)(1): case may be dismissed early in the proceedings without judicial review when it’s signed by all the parties
• FRCP 41(a)(2): judicial discretion must be used in all other cases of dismissal and only when there is no prejudice towards the PL. |
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Term
|
Definition
| - FRCP 15: amendments allowed “whether justice requires” and thus only when they don’t prejudice the PL. |
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Term
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Definition
- FRCP 15(b): if evid is presented for another case and DF does not object, then the claim is automatically amended to include the new case.
• lack of objection = consent. |
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Term
| Relation Back of Amendments |
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Definition
- FRCP 15(c): a pleading may be added or amended after the statute of limitations if
• The change asserted arose out of same TOC of orig pleading
• The new DF received notice that they would be brought in before the statute of lims runs out
• Had it not been for mistake, the party would have been brought in originally. (they knew/should have known….)
o This is re. fairness to DF, so not about same evidence, but same notice.
o FRCP 15(c)(1)(C)(ii) “mistake”: cts don’t agree on this
• in Barrow, ct held that not knowing identity and then adding it later is not a mistake.
• in Centouri v. Experian, ct held that not knowing identity and adding it later should count as a mistake for purposes of rule 15.
• = some cts have anti-Doe attitudes. Issue of whether DF is properly on notice by “Doe” |
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Term
| Statute of limitations: 2 reasons/concerns |
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Definition
- 1) fairness re staleness of claim
- 2) in market econ, there should be certain period of time when you’re liab, and thereafter should be able to resume normal life. = Repose interest |
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Term
| Real party in Interest (Rule 17(a)) |
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Definition
- FRCP 17(a): every action shall be prosec with the real party of interest.
• Only party with real, not just beneficial, interest can sue
• Interest must be sufficient (protectable?) |
|
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Term
|
Definition
| - possible way to ensure against friv suits. Idea that you should stand up for what you’re fighting for. (FRCP 10 needs names listed) |
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Term
| Joinder of Claims (Rule 18(a)) |
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Definition
- FRCP 18(a): completely permissive as to joinders of claims against the same party in a suit
• Claims do not have to be related
• PL can bring multiple, unrelated claims against same DF
• For reasons of efficency, since both parties are already in court.
- FRCP 42(b) – court may sever unrelated claims, order sep trials. |
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Term
| Permissive Joinder of Parties (rule 20) |
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Definition
- FRCP 20: allows joinder of mult parties if they assert any right to relief jointly or in the alternative, re all claims arising out of the same transaction, occurrence or series of TOC
• PLs can be joined if they assert a right to relief
• DFs can be joined if the claims arise out of same TOC
• (convenient trial package!) |
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Term
| Compulsory Joinder of Parties (rule 19) |
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Definition
- FRCP 19: indispensible parties must be joined. If they can’t be joined, the suit must be dismissed.
• FRCP 19(a)(1): determines if party is necessary. If it is, then it also needs to be feasible to join them.
• FRCP 19(a)(1)(A): can complete relief be given without the party?
• FRCP 19(a)(1)(B)(i): will the interests of the missing party be impaired if they aren’t joined?
o Interests = as a practical matter. Don’t need to be legally affected by it, but just adversely affected
• FRCP 19(a)(1)(B)(ii): would the DF be subject to double liab/damages if party is left out? |
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Term
| Rule 19(b) Determination Whether to Proceed or dismiss if joinder is not feasible |
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Definition
- indispensible or not?
- Only considered if 19(a) tests are satisfied, and parties are necessary.
- If they are necessary but not feasible, then this is a list of circs in which the parties can still continue without the party. If the party is indispensible, case must be dismissed.
1. whether a judgment rendered in the parties absence would prejudice any of the existing parties
2. the extent to which prejudice can be relieved by the framing of the judgment or the shaping of relief (Sherman says this is esoteric and rare, not important)
3. whether the remedy that can be granted in the party’s absence is adequate and
4. whether the plaintiff will have an adequate (alternative) remedy if the action is dismissed—This is most impt!! |
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Term
|
Definition
- FRCP 14: DF has a right to bring in any party who may be held liable for damages.
- FRCP 14(a): re impleader, 3rd party practice – when 3rd party is or may be liable. |
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Term
| Counterclaims and cross-claims (rule 13) |
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Definition
- permits the expansion of the issues to be discussed, as well as allows for more parties to be brought in
- rationale: efficiency, fairness
- counterclaims serve fairness by allowing people to make claims against those who are making claims against them.
- FRCP 13(a): compulsory. Same TOC. Do it or lose it.
- FRCP 13(b): allows a party to bring a counterclaim. Liberal rule.
- FRCP 13(g): claim against a co-party (cross-claim)
• Limited to claims arising out of same TOC
• Because don’t want to allow co-parties to use trial as forum to settle something not related to orig lawsuit.
- But once co-parties have sued each other (cross claim), one is a third-party PL, one is third party DF. = opposing parties, = counterclaim (not cross claim) |
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Term
|
Definition
- (people who are going to be sued pull people into one large suit. Allowed when there is one large fund.)
- method by which someone who is subject to rival claims (for a fund in case of trustee, obligation in case of ins cos) to defend liability can bring in rival claimants
- Rationale: DF should be able to go into court and get all people claiming entitlement into the same claim. |
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Term
Interpleader
(rule 22 and 28 USCA § 1335) |
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Definition
- FRCP 22:
• Diversity: must be between all parties
• 50k in controversy
• service: as under FRCP 4.
- 28 USC §1335:
• diversity: only required between claimants
• 500 in controversy
• Nation wide service |
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Term
|
Definition
- a device for an outside party who may have an interest in joining the suit
• FRCP 24(b): Permissive Intervention there may be some helpful reasons to let others intervene who do not qualify under FRCP 24(a)
- v similar to rule 19
- FRCP 24(a): parties who have a right to intervene
• FRCP 24(a)(2): must have
• 1) an interest in the case, (significantly protectable interest) and
• 2) that interest must have the chance of being impaired, and
• 3) can’t be adequately represented by the parties already in the suit. |
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Term
| Intervention definition of interest |
|
Definition
Consider:
a) “standing” to sue;
b)pocketbook interest;
c) affected by the result of the case;
d)entitlement to have a say in suit. If you have any of these, you have an interest. ) |
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Term
|
Definition
| • ct can bind them to certain rules for efficiency’s sake. They’re bound to prior rulings of the case. |
|
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Term
|
Definition
| • must be timely. Ct will look at time considering when the intervener knew or should have known about their interests in the case, and will consider any unusual happenings affecting timing. |
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Term
|
Definition
- FRCP 23 (b) : 3 types of class actions
- Prerequisites for Class Actions (TEST)
• Numerosity: the number has to be so big that individ suits would be inefficient or impossible
• Commonality: must be common issue of law or fact. Each PL’s claim must arise out of same cause of action or question.
• Typicality: Claims of the class reps must be the same and seek the same relief as the rest of the class
• Adequate representation: reps must be in same position as rest of the members of the class. Must be able to represent the class’ interests.
• FRCP 23(g): attnys for the class will be scrutinized to prove they will be adeq rep for entire class. |
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Term
| Notice and Opt-out Rights |
|
Definition
- Notice in (b)(1) and (b)(2) Classes
i. these two classes are mandatory, so there is no requirement of notice and no right to opt out
ii. This is controversial and many have argued that the policy should be to “opt in”
iii. Ex: Wal-mart in handout is an ex of when you have to “opt in” b/c it is a lawsuit against ur employer.s
iv. It is the P’s duty to notify class members. Another option is to have “sub-classes.” |
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Term
| The Promise and Reality of Broad Discovery |
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Definition
o FRCP 26(a): mandates pre-trial disclosure
o FRCP26(b)(1): permits broad discovery, but this can’t be used to develop new claims not mentioned in the original.
• (2): Proportionality Test
o FRCP 26(f): discovery plan scheduled with judge, under FRCP 16
o FRCP 27-35: tools through which parties can obtain info during discovery
o FRCP 37: sanctions against those who don’t comply with the discovery rules
o FRCP 37(c)(1): prohibits the use of evidence/info that should have been handed over in discovery but was not.
o FRCP 45(c): requires that parties not unfairly burden nonparties. |
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Term
The Discovery Devices
Initial Disclosure |
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Definition
| - FRCP 26(a)(1): parties need to give an initial list of witnesses and possible evidence they could use to support their case. No harmful info need be given. Names and addresses are needed, as are *** other parties who may be liable (usually for insurance reasons- need to know how much money is at stake) |
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Term
The Discovery Devices
Document Inspection |
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Definition
- FRCP 34: includes all electronic info. Must describe with reasonable particularity the category/type of docs that you’re requesting. Can also inspect premises.
• The producing party has a choice between organizing the documents in accordance with the request, or as they are kept in the normal course of business.
- FRCP 45(a)(1)(C): allows a subpoena to command a non-party to produce docs in it’s control.
- FRCP 45(c): party should not impose undue burden on non-party who is under subpoena |
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Term
The Discovery Devices
Interrogatories |
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Definition
- FRCP 33: party can send questions that must be answered under oath. Useful in trying to find the other party’s contentions and positions
- FRCP 33(a): limits number allowed to 25/party, unless stipulation/court order allowing for more
- FRCP 33(c): questions are not improper because they elicit opinions.
- FRCP 33(d): re business records: if burden of getting the info out of the records is the same to both parties, the offering party has the option of just showing it to the requesting party….? |
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Term
The Discovery Devices
Depositions |
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Definition
- FRCP 30(b)(1): any party can schedule a depo on reasonable notice, in writing. If the witness is a party to the suit, don’t need to compel them to give a depo.
• Objections: not ruled on, just noted by court reporter. The question still has to be answered, but if it’s a valid objection the info won’t be allowed in court.
- FRCP 30(d): lawyer’s objections in a depo cannot lead the witness.
- FRCP 30(b)(2): depos can be taped – video or audio.
- FRCP 27(a): depo can be used before suit is filed to perpetuate testimony, where a party is anxious to take the depo for fear the witness may be come unavailable once the case has been filed.
- FRCP 45: can subpoena non-parties to give depos. |
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Term
The Discovery Devices
Physical or Mental Examinations |
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Definition
- requires a court order, approval in advance. Lawyers cannot be present during the exam.
- FRCP 35(a): when the mental/phys condition of a party is in controversy, the court can order the person to submit to examination by a licensed examiner. If they aren’t a party, then it’s almost impossible to get their health info, unless they bring it up |
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Term
Discovery
Protective Orders |
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Definition
- in cases concerning corporations, these will be issued to prevent someone from showing the document to anyone else, to limit who can see such info.
- Coca Cola Bottling v. Coca Cola – diet coke case. PLs allowed to discover formulas, despite trade secrets, but the trade secrets were protected by strict protective orders. |
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Term
| The Nature of the Summary Judgment Device: the Concept of Burden Shifting |
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Definition
o FRCP 56(a): SJ can be made at any time after the expiration of 20 days from the commencement of the action, or after service for SJ by the other party.
o Allows either party to win a case prior to trial by demonstrating that there is no genuine issue of material fact, and that the moving party is entitled to a judgment as a matter of law. |
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Term
| 3 Approaches to SJ standards: (don’t really need to know) |
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Definition
1. Moore (Traditional): moving party must come up with affirmative evidence to disprove one of the elements of PL’s case, to foreclose any possibility of recovery. This shifts Burden of Prod to other party.
2. Currie (Opposite end of Traditional): SJ only if evidence before the court would justify a JAML. Moving party must produce evidence sufficient to sustain a favorable verdict at trial. ** No burden on movant who wouldn’t have it at trial (= not much that movant needs to do other than say they’re entitled to SJ unless other party comes up with more evidence. Could have one-line SJ)
3. Louis: moving party needs to meet burden of production, or ** show absence of proof of essential element of non-movant’s case. Moving party has to present some evid, not just move. (Addickes is this type) |
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Term
| Seventh Amendment Right to Jury Trial |
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Definition
o 7th amendment: only allowed for common law cases, not equity.
o Bankruptcy cases can’t have trial by jury. Statute trumps 7th amendment.
o The REMEDY SOUGHT determines whether or not there’s a jury trial. If it is for $, you get a jury trial.
o Legal matter is determined first, then equitable (if there are both) |
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Term
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Definition
- FRCP 50(a): ct can determine whether 1) there is any question of fact to be submitted to a jury, and 2) whether any finding other than the one requested would be erroneous as a matter of law.
• Used to be directed verdict.
• There must be insufficient evidence to go to a jury, or the evidence is so compelling only one result could be reached.
- Versus FRCP 50(b) – delayed matter of law. After jury has found for opponent, still assert that no reasonable jury could find this way (have to have filed 50(a) first at trial). Same sufficiency of evidence test as 50(a).
• Risk: appellate ct more inclined not to overturn jury verdict. But could make appeal easier- appellate ct could just reinstate jury verdict, not have to order a new trial. |
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Term
| The Shift to Minimum Contacts |
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Definition
o sufficient contacts or ties. A unilateral act will NOT justify jurisdiction
o must be reasonable and just according to traditional conception of fair play and justice. V. vague. |
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