Constitutional provisions

Transcription

1 FRCP 3 Commencement of action 4 Summons 8 General Rules of Pleading 9 Pleading Special Matters 11 Signing of Pleadings; Representations to the Court; Sanctions 12 Defenses and Objections; Motions 13 Counterclaim and Crossclaim 14(a) Third party practice (3rd party Ds and Ps) 15(a), (c) Amended and Supplemental Pleadings 18 Joinder of Claims and Remedies 19 Joinder of Parties Needed for Just Adjudication 20 Permissive Joinder of Parties 21 Misjoinder / Nonjoinder 23 Class Actions 26 Discovery 30 Depositions 33 Interrogatories 34 Document Productions 37 Failure to cooperate in discovery; sanctions 38 Jury trial of right 41 Dismissal of actions 42 Consolidation & Separate Trials 50 JML, Motions for New Trial, Conditional grants 55 Default Judgment 56 Summary Judgment 57 Declaratory Judgment 59 New Trials, Amendment of Judgments 65 Injunctions 28 U.S.C Federal Question 1332 Diversity 1367 Supplemental jurisdiction 1391 Venue Generally 1392 Ds, Property in different districts in the same state 1404 Change of venue 1406 Cure or waiver of defects 1441 Actions Removable Generally 1446 Procedure for Removal 1447 Procedure after Removal 1631 Transfer to cure want of jurisdiction 1652 State law as rules of decision 1738 Full Faith & Credit to State & Territorial Statutes & Judicial Proceedings 2201 Declaratory judgments; creation of remedy 2202 Declaratory judgments; further relief Constitutional provisions Article III Article IV, 1 Amend. VII Amend. XIV, 1 Judicial Power Full Faith & Credit Right to Jury Trial Due Process Clause 1

2 Personal Jurisdiction - Does the court legitimately have power over this particular person? - Concerned about both fairness and power o Fairness to D, who might be held to answer in a foreign area o Power of the court to exercise its authority only w/in its territorial limits - Only worry about D being dragged into court involuntarily; whatever forum P chooses is OK, b/c P is consenting to jurisdiction - Policy reasons for / against: o States have interest in protecting their citizens, providing means of redress for them o Increasing commerce o No longer as inconvenient for D to travel to defend In personam jurisdiction & the International Shoe standard - Have to serve notice of suit to the person while they re in the forum state, whether or not they re a citizen; but if they re in the forum state, they re fair game. Pennoyer o Also, based on the idea that you can t always wait on a determination of rights until the person returns to the forum state - Constructive service is no good for an in personam action. Pennoyer - Exceptions under Pennoyer: o Can determine status relationships, even for those not in-state (i.e. divorce) o Business relationships: states can force Ds to have an agent in-state, who can be served with process OK for corporations, but trickier for persons, who have a constitutional right to travel State can imply that a person consents to the appointment of an agent, who may be served with process, from a person s activities in-state. Hess Don t take it too far part of it is that there is a concern about reckless driving & that the state can t do a thing, otherwise. Hess Also, implicit consent only applies to things relating to the activity that gave rise to consent (i.e., the accident relating to the reckless driving). Hess. - Minimum contacts: o Corporations can always be sued in the state of incorporation and in the state where HQ is located o Also, can be sued in any state in which they have minimum contacts. International Shoe Minimum contacts must be such that the suit doesn t offend traditional notions of fair play and substantial justice Fair play and substantial justice may also be a separate consideration from minimum contacts also consider burden on D, interest in forum state of resolving the 2

3 dispute, judicial sys s interest in efficient res of controversies, social policies of states BK Or, that it s reasonable to ask the corp. to defend suit Minimum contacts only justify suit against a corporation where there is a relationship btw contacts and underlying dispute A contract w/ someone in the forum state is a substantial contact or at least a minimum contact sufficient for a lawsuit relating to that contract. May or may not be substantial for general jurisdiction. McGee Minimum contacts can be established where a corp. purposefully avail[s] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws but when this hasn t happened, no minimum contacts. Hanson Unilateral action of one party (not D) not sufficient under Hanson o o To determine the type of contact, look to nature of corp. s activity, whether court has availed itself of the forum state s laws, etc. o Minimum contacts analysis applies to people too, and to adjudications about property. Shaffer o Minimum contacts may be established by injecting goods into the stream of commerce, but only if the seller so injects them, expecting that they ll make it to the foreign state (like selling to people there) Worldwide VW NOT sufficient for minimum contacts if you sell a product and then the buyer takes it to the forum state (Brennan) o Due Process clause does have some teeth, concerned about state power & not just state interests & actual inconvenience to D (as Brennan is) Worldwide VW o Foreseeability (or fair warning) is relevant to minimum contacts, in the sense that you have to ask whether it s foreseeable that a certain amount of contact will justify hauling D into court Worldwide VW, Burger King Foreseeability in terms of was it foreseeable that the product would end up there does not matter WW VW D does have fair warning when D purposefully directs his activities at residents of the forum state, and litigation results from injuries arising from or relating to D s activities BK - Asahi it is unreasonable and unfair to ask a foreign corporation to defend suit in the US against a foreign plaintiff, when the original US citizen plaintiff dropped out o This result even though there s a dispute over whether minimum contacts existed o Dicta (only joined by 4): No minimum contacts if you sell a product, knowing that it will end up in the forum state, if you re not targeting that state (i.e. you sell to a middleman who sells some of your stuff there) o Minimum contacts & fair play & substantial justice now treated as 2 separate tests 3

4 - General personal jurisdiction: If a corporation has substantial contacts with a forum state, then people may sue the corp. there even for things not having to do with its activities in the forum state. International Shoe o Must be so substantial as to justify jurisdiction on causes of action unrelated to its in-state activities. Coastal Video o In old economy, look to: does it have a store there, how much business, is there an agent appointed to receive service o In high-tech economy, look at: # of hits, sales in forum state from the co s website; how is the website set up (how interactive) o State has general jurisdiction over any person traveling within its borders, when that person is personally served. Burnham Question about whether this always applies, or whether an independent fairness inquiry is necessary SC was divided in Burnham In rem jurisdiction - Property must be attached before the suit, & constructive notice is OK based on the legal fiction that people are in control of their property at all times. Pennoyer - Now, in order to have a lawsuit about property, the presence of property is relevant insofar as the dispute is over a piece of property. Shaffer o Proceedings in rem no longer sufficient to establish jurisdiction, unless it otherwise exists under minimum contacts analysis. Shaffer Quasi-in rem jurisdiction - Person could attach property and then sue a nonresident D up to the value of the attached property. Allowable under Pennoyer. - Can also attach debts: A (FL) owes $ to B (FL), who owes $ to C (ME) o A travels to ME; while there, A s debt to B is attached by C o Maine obtains jurisdiction over B, w/o B having ever been to ME - Abolished by Shaffer since property is the relation of people to things, attachment no longer enough now, need to ask the minimum contacts question for all suits vs. Ds Statutory limitations on personal jurisdiction - State, federal courts might limit themselves to less jurisdiction than the constitutional maximums, tighten their jurisdictional requirements - Long-arm statutes o Allow state courts to reach beyond their borders to serve Ds, in the post- Pennoyer world o Some grab as much jurisdiction as the US Constitution allows (CA) (i.e. International Shoe, minimum contacts), others do not (FL) o It was not substantial activity under a long-arm statute requiring this that a person brought an earlier suit in state court. Gibbons. o Bringing one suit is isolated activity and does not suffice to show substantial activity for the purpose of establishing jurisdiction under the 4

5 FL long-arm statute, as to other, unrelated matters would be OK for subsequent court proceedings on the same subject matter of the action. Gibbons o Northwest Airlines v. Friday MN s long-arm statute was very factspecific, and for the most part conformed to the constitutional max of jurisdiction but there were some limitations. Really have to change facts to establish minimum contacts Example of how you can have minimum contacts, but not necessarily jurisdiction under long-arm statutes - Venue o Strictly statutory creation, not a constitutional concern o Personal jurisdiction locates w/in a state (or federal system for that state), venue w/in a particular federal district o Venue statutes: 28 USC , pp o 1391 will need to look to the rule for test, but generally allows suit in any district where any D resides, or where a substantial part of the events occurred, or where a substantial amount of the property is located (if the suit is about property) These rules, exclusively, for supplemental jurisdiction Some slight changes for gov t, foreign governments Statute defines where corporation is Also, rules differ slightly depending on personal / subject matter jurisdiction Aliens can be sued anywhere o 1392 for a civil action that involves property in different districts of a state, suit may be brought in any district o 1406, p. 326 if venue s wrong, district court may dismiss or transfer But, district court has power to keep the case if the venue objection isn t timely or sufficiently made - Forum non conveniens o 1404(a), p. 325, allows transfer of case to any other district or division where it might have been brought o Rest of 1404: allows transfer to another division, w/in district o Forum non conveniens is not statutory at all, purely common law o FNC is a Discretionary doctrine Piper case Ordinarily respect P s choice of venue But, may transfer if this venue is oppressive and vexing to D out of all proportion to P s convenience o Look to 3 factors: Whether another forum exists in which the case could be brought, Burden of D is out of proportion to P s interests (private interests) Forum is inappropriate b/c of legal problems presented to the court (public interests) o Private factors include: access to evidence, ability to subpoena witnesses or implead 3rd party Ds, costs of obtaining attendance, all sorts of 5

6 practical problems, whether or not remedies are available or restricted in other fora o This forum has more favorable law to me does not count, for either side o Public interests include: which law will apply, and if that s a problem (US courts applying Scot law), avoidance of conflict of laws, strength of the forum s interest in the case, unfairness of burdening citizens in unrelated forum with jury duty Summons & Service - Service effectuates power, but doesn t create it need both power and notice - Rule 4 governs summons & proper service of summons o Forms 1-A and 1-B examples of waiver request & waiver - Parties have a duty to keep costs of service down; P can ask D to waive service o Carrot: If D does, he has longer to respond to the complaint (60 instead of 30 days) o Stick: if D does not, he may bear the cost of service - Service cannot be a mere token gesture. Mullane o Must be of the nature to reasonably convey the information and must accord a reasonable time to make an appearance o If you have the names & addresses of the affected parties, then you at least have to mail notice to them (but don t need to personally serve) o On the other hand, notice by publication may be adequate for: Seizure of tangible property for in rem proceedings might still be good, but Pauline is unsure it s a matter of state law When persons are missing / whereabouts unknown o State need not require more certain notice for those whose interests are future, conjectural, or unknown Subject Matter Jurisdiction - Does the court legitimately have power over this particular dispute? - Article III defines the judicial power; Congress can establish lower courts w/ power to hear cases and controversies arising under laws of US (federal question) or btw citizens of different states (diversity) - May want to bring cases in federal vs. state court b/c: o Party s interests Different law might apply Different procedures (maybe faster in federal court) More / less favorable jury pools Fed courts can transfer to other fed courts; states can t o Political theory interests Preserve separation of powers Have cases with broader policy implications tried in federal court, rather than more private disputes? - While personal jurisdiction objections are subject to raise it or lose it, subject matter jurisdiction issues can be any time, including by the court, sua sponte 6

7 o Personal jurisdiction its about these parties o Subject matter jurisdiction about the powers of the courts, preserving space for the states & limiting federal power Federal Question , p. 313 Federal district courts have original jurisdiction over all civil actions arising under laws, treaties, Constitution of US - Well pleaded complaint rule, Mottley: o A suit only arises under the Constitution or laws of US when P s own claim is based on the laws / constitution o P s claim must appear in a well pleaded complaint, which states only the basis for P s cause of action; does not anticipate D s defenses o D s defenses cannot get a case into federal court o This sorts out the beginning of the lawsuit - Aising under has narrower meaning in statute than in Constitution Harms o Constitution: arising under = any case in which there s a necessary federal ingredient, even if that ingredient is uncontested (CJ Marshall in Osborn) o Holmes: different test for statute: whether the cause of action was created by federal or state law - The SC has the full Article III power, if a case starts in the state system and works its way up, so they are not limited by well pleaded complaint rule Diversity - Reason for diversity jurisdiction: fear of bias against litigants from out of state & in favor of in-state litigants o Might not be as big a factor today, but we still have it - Citizenship measured as of the date of filing , p. 313 is diversity jurisdiction statute o Matter in controversy must exceed $75,000 Or, $5,000,000 total for a class action If P ends up recovering less than $75,000, court can deny recovery and/or impose costs o Must be between citizens of different states Need complete diversity on both sides, anything else defeats diversity (Has been accepted since Marshall in 1806) Requirement is statutory, not constitutional Can only be a citizen of one state not like minimum contacts A person is a citizen of the state in which he is domiciled, which involves 1) physical presence, and 2) intent to remain there. Hawkins v. Masters Farms A person living in the US is going to be domiciled somewhere, even if there is difficulty only time you might not have state citizenship is for person abroad 7

8 If there s a question (physically present one place, intent to remain elsewhere) courts would probably find intent more important Vague ideas, plans to move don t count if you don t do anything about it It is possible for an American living abroad not to be a citizen of ANY state, but they are not treated as foreigners under the FRCP rather, they just can t bring their claim in federal court if it s on diversity grounds. Redner v. Sanders Could always sue in state court, which has jurisdiction over D (P consents to jurisdiction by filing) An alien permanently residing in US is a citizen of the state of his domicile. 1332(a)(4) This was done for the purpose of reducing jurisdiction, so that P (MO) v. D (Alien in MO) can t get into fed.dist.ct. Though read literally, it does NOT grant jurisdiction over a suit btw 2 aliens, when 1 is a permanent resident. Saadeh v. Farouki BUT 3rd circuit came out the other way Statute defines residencies of corporations, insurers, legal representatives of another party o Cases involving foreign states or nationals also involve this provision Challenging Jurisdiction Personal - Used to make a special appearance so that you wouldn t be conceding jurisdiction - Rule 12(b) allows following defenses to be made in answer or pretrial motion: lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service, failure to state a claim, failure to join a party (Rule 19) o These defenses can be heard b/f either party s application, unless court determines that they ll be deferred to trial 12(d) o D may join these defenses in 1 consolidated motion, 12(b, g) Joining them in one motion doesn t waive them, 12(b) But, D does waive them by omitting them from the motion, with some exceptions, 12(g) o Lack of personal jurisdiction, insufficiency of venue, of process, or of service is waived if: Not included as part of a pretrial motion under 12, 12(h)(1)(A) Not raised in pretrial motion, answer, or amendment 12(h)(1)(B) - What do you do when D challenges personal jurisdiction? Data Disc o If you only have affidavits + discovery materials (papers): Make a prima facie showing of jurisdiction Must prove trial, by preponderance o If you have more: 8

9 Court holds hearing Prove jurisdiction by a pretrial hearing o If jurisdiction is really tied up w/ merits, court can postpone the issue to trial , p. 333 when a case is brought in the wrong jurisdiction, trial court may transfer it to the correct jurisdiction Subject matter - Court can dispose of it under 12(b)(1), lack of subject matter jurisdiction o This is the only method for diversity cases - Or, can dispose of it under12(b)(6), failure to state a claim, b/c arising under depends on the substance of P s claim - SC has expressed preference that it be handled under 12(b)(6), if there s an arguable basis for federal claim o Affects the preclusive effects under issue preclusion; o Also affects power of the court to adjudicate ancillary claims Direct waiver if not if court agrees if D defaults Challenge outset? No jurisdiction? collateral attack? Personal by motion yes P must find another yes (attack Jurisdiction 12(b)(2) 12(h)(1) forum w/ sufficient jurisdiction only, Contacts not merits) Pennoyer Subject by motion never Refile in state court Pro ly not Matter 12(b)(1) 12(h)(3) (rarely arises) Jurisdiction or 12(b)(6) Supplemental Jurisdiction - Combination of pendant and ancillary jurisdiction, another way of giving federal courts power over state claims Pendant claim jurisdiction - Jurisdiction over state claims by the same P against the same D - Old test: o Do the state and federal claims comprise a single cause of action (if so, then pendant jurisdiction) or separate and distinct causes of action (no jurisdiction) o Before the FRCP, no longer makes sense now - New test: Gibbs o The two claims must derive from a common nucleus of operative fact Are there similar elements requirements in both claims, are the facts intertwined so that it makes sense to bring them together, etc. Look to what P will have to show for both claims. o Federal claim must be real, not makeweight o State issues can t substantially predominate 9

10 - This is a discretionary doctrine; court need not take up state cases. Might want state court to decide if: o New issue of state law o 2 different bodies of law, might confuse jury o Claims are predominantly state claims o If the federal claim goes away (dismissed, etc.) - Might want federal court to decide if there are important questions of federal law at play. Also, concerns about efficiency, fairness to the parties, etc. Pendant party jurisdiction - Jurisdiction over a different party - Initially could be raised under the same standards as pendant claim o Where congress has either implicitly or explicitly not granted jurisdiction over a particular type of D for a particular claim, then the court cannot exercise jurisdiction over that D through pendant party jurisdiction. No pendant party jurisdiction for civil rights violations under 1983 against municipal corporations (counties). Aldinger Finley v. US flipped this unless Congress has explicitly granted jurisdiction, we ll assume there is none (reversed by 1367) o Pendant party jurisdiction also can t be used to get around diversity requirements, even if the lawsuit is completely diverse at the outset; no pendant jurisdiction in a diversity claim when such an exercise would destroy complete diversity. Owen Equipment , supplemental jurisdiction statute (p. 321) o (a) codifies Gibbs language & includes joinder & intervention under the same test o (b) Court does not have jurisdiction over people joining / being joined under 14, 19, 20, 24 when that would destroy diversity (undermine 1332 requirements) o (c) Why district court can decline supplemental jurisdiction (pretty much for reasons above) o (d) affects statute of limitations Removal o (a) Ds can remove cases to federal court, when fed.d.ct. would have original jurisdiction o (b) Federal question, can always be removed; Diversity cases can only be removed if none of Ds is a citizen of the state in which suit is brought o (c) If a federal question claim is joined w/ non-removable CoAs, district court may remove the entire case & determine all the issues, or may remand the state claims to state court o Suits vs. foreign states; foreign state may remove to fed.dist.ct. for the district within which the original suit was brought, case is tried w/o jury procedure for removal, includes time limits, sequencing, when D can file, etc. (p. 331) 10

11 o Case that may be removed for diversity jurisdiction can t be removed more than a year after the case is filed; but if the case were amended so that there s a federal cause of action added, then it s removeable , procedure after removal, includes filing of information w/ court, time limits for motion to remand back to state court, how court is to treat joinder that would destroy diversity (p. 332) - Ordinarily, the well-pleaded complaint rule applies to removal, too. But when a federal law so completely pre-empts a state claim that there are effectively no more state & only federal causes of action, then the case is removeable even without a well-pleaded complaint. Met Life v. Taylor. o Only 3 areas of law (statutes) ERISA, NLRA, something financial - A case won t be overturned on appeal for failure to remand an improperly removed case to state court if, by the time of the final judgment, the jurisdictional requirements were met. Caterpillar o A party who s in the process of settling isn t dropped until the settlement is final o Efficiency concerns override at this point o Different from Mottley b/c, by the time of judgment in Caterpillar, the court did have power to hear the case. It just got there the wrong way What Law Applies: The Erie Doctrine - Becomes an issue b/c of concurrent jurisdiction; Easy in pretty much every situation besides diversity (federal claim gets federal law, whether in fed or state court; state claim gets state law in state court) - S. 1652, p. 333 the laws of the states are rules of decision, in cases where they apply, & where the constitution, federal laws, and treaties don t otherwise provide (i.e. diversity) o Originally, Swift v. Tyson held that the wording of the above statute applied only to state statutes & not to state decisional law, or the common law of the states Expected this to lead to uniformity among states, but states continued to develop their own common law Also, lead to forum shopping, as between federal and state systems, uncertainty for the parties as to which law applies, equal protection issue (different outcome in different court) o Then, Erie Swift was unconstitutional Concurrence doesn t want to dispose of the case this way, b/c it denies Congress the authority to empower judges to create a federal common law Federal courts have no power to declare common law rules, and under the above statute have to apply the relevant state court decisional law there is no federal common law Caveat: there is still federal judge-made law, in the sense of judicial interpretation; this can be considered common law, but not as it pertains to creating duties of care in tort 11

12 Residual language: no one doubts federal power over procedure Post-Erie - The outcome determinative test: state law must be applied in a diversity case if the state law would determine the outcome of the case. Guaranty Trust v. York o Substantive / Procedural distinction does not matter o More concerned with forum shopping and different outcomes see this as the core of Erie o It s not outcome determinative if it merely affects the manner and means by which the case is tried o Example of outcome determinative: a statute of limitations - Byrd v. Blue Ridge doesn t overrule Guarantee Trust, but does soften & take away from it o Goes out of its way to articulate a different test for which law applies Is the state law merely a form and mode of enforcement, or is it bound up with the definition of rights and obligations Then, have to consider the affirmative, counterveiling considerations of the federal courts in following their own rules Bound up with rights & obligations deals with the legal standards for people s conduct outside of court, not how they conduct themselves in court o Burdens of proof are more bound up with rights and obligations Says something about nature of claim Also, deals with forum shopping concern, as burdens are likely to affect choice of forum o Trial by judge vs. jury is just a form and mode, also the federal system has an important (& constitutional) interest in preserving the division it sets up between judge & jury o Plus, not clear that judge vs. jury choice is outcome determinative, since judge & jury could come to the same conclusion - Hanna v. Plumber: Guaranty Gone! o Outcome-determinative was never the real test o State law can t trump the FRCP; follow federal law on procedural matters, follow state law on substantive matters Know it s procedural if it falls within the FRCP, and that s within the authority of the Rules Enabling Act Only deals with situations where a state law conflicts with a FRCP consistent with the rules enabling act just means that the Rule was properly enacted Hanna doesn t apply outside those situations; apply Byrd otherwise o In determining whether to apply state law, look to the policies underlying Erie: block forum shopping and provide against inequitable application of the laws - Sometimes judges are called upon to determine what state law would be, when courts haven t ruled on the issue 12

13 o There is a process of certification to state courts; but state courts must have certification procedure (not all do) o Sometimes, federal courts change their interpretations of state law after state decisions, or will reverse themselves b/c of a change in state law but not always - For the purposes of determining the 7th amendment right to jury trial issue, federal courts must follow federal law to determine whether the claim was legal or equitable (not the state characterization of the claim or relief). Amoco Oil Co. v. Torcomian Incentives to Litigate Remedies: - Different lawsuits have different bundles of remedies (see sheet); some are legal, some are equitable this has play in jury trial rights - Substitutionary remedies (money) aim to restore a party to the position the party would have been in, but for the harm caused by D o This can include punitive damages - Specific remedies: court orders a party to act or not to act o These were historically equitable remedies, but some are legal o Exceptions (specific legal remedies): Damages - Punitives without appropriate procedural constraints o 14th amendment requires due process before deprivation of property o More concerns about punitives than compensatory damages Process for figuring out $$ is less guided To the extent that punitives are punishment, that s a lot like criminal law o There must be some sort of state review power based on the size of punitives alone (new trial, damage reduction) b/c of the fear of unreasonable / arbitrary verdicts; it is insufficient for due process to grant no review over punitives unless there s no evidence to support the award. Honda Motor Co. v. Oberg - Overly large punitives SC refuses to lay down bright line rules, State Farm v. Campbell o Analyze punitive award in light of: Reprehensability of D s conduct (physical vs. economic harm, isolated vs. repeated actions, accidental vs. recklessness vs. malice) Disparity between the harm (compensatory) and punitive award Difference btw punitive damages awarded by the jury and civil penalties authorized or imposed in comparable cases o A single digit multiplier btw comp and punitives is presumptively constitutional; a multi-digit multiplier is presumptively unconstitutional More might be OK, when compensatory damages are really low and/or reprehensibility is really high Less might be required when above circumstances are reversed 13

14 o The defendant s wealth cannot justify otherwise unconstitutional awards of punitive damages - This federalizes rules about punitive damages, though such damages are given in tort (traditional state area) - Such a rule might lessen deterrent effect; companies can now do a better job of identifying likely punitive awards & factoring that into their budget - If juries are aware of caps or multiplier, might provide perverse incentive to raise compensatory damage award - Might huge punitives be appropriate in cases of egregiously bad behavior? Injunctive and Declaratory Relief Injunctive - 2 part test, Sigma Chemical v. Harris: o Is there no adequate legal remedy Developed in law vs. equity system to establish hierarchy among the courts As a practical matter, this comes up when damages cannot be calculated, or when D couldn t pay them o Balance hardships to P if injunction denied vs. to D if injunction granted No adequate legal remedy might be double-counted - Decision to grant made by judge Declaratory , p. 368 so long as an actual case or controversy exists, a court may grant a declaratory judgment, declaring the legal relations, obligations, and duties between the parties, without granting further relief, so long as appropriate pleadings are filed , p. 368 further relief may be granted based on a declaratory judgment - Rule 57 declaratory relief may be granted under 2201 pursuant to the FRCP o Right to trial by jury may be demanded as under 38 by deciding the issue, the jury essentially renders such a judgment, in certain areas at common law o Declaratory judgment may be entered even if parties entitled to other relief o Court can order a speedy hearing for DJs & advance them on the calendar - Sometimes nominal plaintiffs are one that would be D in the actual action can complicate jurisdictional issues Provisional Relief Preliminary Injunction - May be granted if: o P will suffer irreparable injury if the injunction s not granted o P is likely to win on the merits o Balance the equities: D won t be harmed more than P s helped by inj o Granting the injunction is in the public interest - 2nd test, for when the balance of hardships is hugely in P s favor: o Balance of hardships tips highly toward P o Must show probability of success and permanent injury, but probability of success requirement isn t as great P must have raised a colorable case 14

15 - Review for a grant of preliminary injunction is abuse of discretion - Rule 65(a) o 1) Grants courts the power to grant preliminary injunctions o 2) Court may consolidate PI hearing with trial Evidence presented becomes part of trial record, need not be repeated Due process requires notice & opportunity to be heard. Fuentes v. Shevin - Must be a hearing prior to a right being affected or deprived (ex: injunction), even for temporary deprivations of rights - State may still secure property prior to final judgment, but must be a hearing first - Reasons: value upon hearing people s side, efficiency (don t take the property to give it back), make sure there s no mistake, can t undo the wrong, can t contest if you don t have notice - Exception to this: cases of emergency Temporary restraining order (TRO) covered in Rule 65(b) - TRO may be granted (without notice) if: o Immediate & irreparable harm will happen before D or D s attorney can be heard (there s a hearing? Let s dig up the land before the court tells us we can t), and o P s attorney certifies to court any efforts made to give notice & why notice shouldn t be required - Ends w/in 10 days unless extended for good cause - TRO hearings have very, very high priority on the calendar Pleading Complaints & Responding to the Complaint - Pleadings are about getting the lawsuit started, putting D on notice, identifying the issues in dispute, shaping discovery o Not about developing factual proof; that s what discovery is for - FRCP 3, filing a complaint commences a civil action - Rule 8 o A) A pleading shall include short & plain statement of jurisdiction, of facts, and a demand for the judgment sought o B) Defenses & denials stated in short or plain form, D must admit or deny each averment (or can say w/o knowledge or information sufficient to form a belief, which counts as denial), general admits or denys OK, pursuant to Rule 11 limitation o C) Party must set forth affirmative defenses; if a counterclaim is mistakenly set forth as an affirmative defense or vice versa, court corrects the mistake o D) Failure to deny in response = admit; If a pleading doesn t require or permit a responsive pleading, averments therein are taken as denied or avoided o E) Averments are to be simple, concise, & direct no forms of pleadings 15

16 Party may set forth 2 claims or Ds alternatively; insufficiency of 1 doesn t defeat sufficiency of pleading; party can state all claims / defenses regardless of consistency - In Rule 8 denials, sometimes if a response doesn t admit what s true and deny the rest, D may be estopped from denying something later. Zielinski v. PPI o Ex: guy is injured in an accident, PPI answers in a way to make Zielinski think they re denying liability generally, not saying it wasn t us. Statute of limitations tolls, Zielinski can still sue PPI rather than the right D o Prevent misunderstanding, trying to find a way to do justice to injured P o If P hadn t been injured, probably no issue here o This sort of thing is very rare, may have depended on particular fact situation (SoL tolling, the fact that PPI and other potential D were both insured by the same co. and represented by same D attorneys) - For Rule 8 affirmative defenses, they have to be pled in the responsive pleading; insufficient to just make a general denial. - Determining if sth s an affirmative defense: o What P says happened, didn t vs. It did or might have, but even so we re not liable because of some other facts o If it requires evidence not presented in P s complaint. Layman v. SW Bell Telephone o 3 part test in Ingraham: Are the defenses necessary or extrinsic to P s cause of action Which party is more likely to have access to the evidence Policy considerations for favoring/disfavoring the defense: why & when courts should raise the issue, whether & when it will constitute unfair surprise to P - An affirmative defense is waived if not timely pled. Ingraham v. US o Timely pled? Standard is very mushy; if you should have raised it in the answer but didn t it will be waived, but you can amend the pleadings o After the trial is appeals stage, is definitely not timely o Ingraham suggests that you might be able to get away with raising the trial for the first time; you could, sometimes, particularly if the issue emerged at discovery but wasn t formally in pleadings - Rule 9 pleading special matters - Rule 12(b) defenses, objections, defenses as motions (to dismiss) o 12(b) motions are pre-answer b/c they save the time of discovery, don t themselves require discovery, easy(ier) to resolve preliminarily, all based on legal arguments o Under a 12b6, court must assume that everything P says is true; tests legal sufficiency of the claim o If P has a claim and D has a defense, but D brings 12b6 and adds facts about that defense, treat 12b6 as MSJ o Case dismissed under 12b6 for: Lack of facts (factual sufficiency): P can return with more facts Legal insufficiency: no amount of that will help o A 12(b) motion changes the time frame for filing an answer see 12a4 16

17 - Forms 2-18: examples of allegation of jurisdiction, complaint forms - A person need not suffer injury to a constitutionally recognized interest in order to have a sufficient complaint: can be injured in his person or property without that injury being constitutionally cognizeable. Haddle v. Garrison (at-will employees) - Rule 11: for all papers presented to the court, attorneys by signing represent that: o Aren t being presented for frivolous purposes o Claims, defenses, legal arguments warranted by either existing law or nonfrivolous argument for change in law Can t award sanctions against parties for this one, only atty s o Claims supported by evidence or are likely to be, after discovery o Defenses/denials are supported by evidence or a lack of knowledge - Sanctions may be imposed, pursuant to Rule 11 o Prior to 1983, it was meaningless no sanctions provision o Btw 1983 and 93, was used as a weapon by litigators o Now, there s a middle ground may instead of shall impose sanctions o Law firms held jointly liable for violations brought about by their employees - Business Guides v. Chromatic example of sanctioning - Religious Tech v. Gerbode deals with the safe harbor provisions times allowed for changes b/f sanctions can be imposed Amendments - Usually permitted with no big deal; rules aren t intended to trip up parties on technicalities. Usually only gets to be an issue if SoL has run - 15(a), p. 41 o A party may amend once as a matter of right before responsive pleading is served, or w/in 20 days if no responsive pleading is permitted & the case isn t yet on the calendar o Otherwise, amendment only w/ written permission of adverse party, or leave of the court to be given when justice so requires o Sets time limit for pleading in response to amended pleading - When justice so requires is broad and in trial court s discretion, and should be given unless factors exist such as bad faith, dilatory tactics, repeated failure to cure deficiencies, unfair prejudice. Beeck v. Aquaslide - Relation back = treat the amendment as filed on the date of the original pleading - 15(c) An amendment relates back to the date of the original pleading, when o The law providing the statute of limitations permits relation back, or o Claim or defense set forth in amended pleading arose out of the conduct, transaction, or occurrence set forth in original pleading, or o 15c3 deals with amending to change a party - A claim/defense arises out of conduct, transaction, or occurrence when: o Anything in the original pleading might have put D on notice of the new complaint against him. Moore v. Baker o Also, if the facts alleged in the original complaint could have given rise to a number of claims, then any of these claims arises from same CTO 17

18 o Does not arise from same CTO when the new claim deals with a different time or situation (post-op negligence v. pre-op counseling). Moore o The stage of the litigation also matters, i.e. whether discovery s closed, any prejudice to D s ability to defend o Might also matter why P didn t bring the claim originally Discovery Scope & Limits - 26(b)(1): scope & limits in general o Parties can obtain discovery about anything that s not privileged and is relevant to a claim or defense; court can compel discovery if need be o Relevant doesn t mean admissible at trial, but reasonably calculated to lead to discovery of admissible evidence. o Where a party limits the scope of its request to only relevant information, and doesn t sweep too broad, that s OK. Davis v. Precoat Metals Narrowing includes such things as w/in a time period, or in looking at past claims against a D, claims brought by similar Ps at the same job site o The relevance relationship is to the claim or defense, not to the grant of recovery. Even if the existence of some fact would prevent injunctive relief (gay guy reinstated in the military), that doesn t make the fact relevant. Steffan v. Cheney Bigger point figuring out what s relevant turns on substantive law; there s a particular rule about these administrative proceedings Damages are often part of the claim hard to separate, might be an artificial question - 26(b)(2) Limitations o Court can limit # of interrogatories & requests, # and length of depositions o Court may limit discovery if Unreasonably cumulative/duplicative, or if info can more easily be obtained elsewhere Party seeking discovery has already had ample opportunity to get information through discovery Burden of the expense outweighs its likely benefit o Court may act on its own initiative or pursuant to 26(c) - 26(c) Protective orders o Party from whom discovery s sought may seek protective order; must provide certification that they have in good faith attempted to resolve the discovery dispute w/o court action o Court, for good cause, can order limits, including those enumerated in the rule, to protect from annoyance, embarrassment, oppression, or undue expense o If the court denies a protective order, it may simultaneously order disc - Court s decision to compel discovery is reviewable under an abuse of discretion standard. Marrese v. American Academy of Orthopedic Surgeons 18

19 o Ex: when discovery order isn t calculated to meet both P & D s interests, doesn t properly factor in D s interests in not having material discovered o Discovery of things like membership rolls, membership applications butts up against our freedom of association. Marrese - In order compelling discovery, judge can (and sometimes should) do things like review the material in camera or redact info to protect D. Marrese Privilege - Only communications are privileged; the facts upon which they are based are not - Examples: attorney-client, doctor-patient, psychotherapist-patient, priest-penitent - Communications must be treated as confidential, otherwise privilege is waived o Don t talk about it where 3rd parties can/do hear o If it s documents, make sure they say confidential and explain that they re privileged - How does a corporation work, for privilege? o Old test: control group: the people in a position to direct company activities in response to legal advice are the corporation as a client, for atty-client privilege purposes o That was no good, b/c part of atty s job is gathering information in order to give legal advice; that info probably won t come from control group o No bright-line rule laid out Very least, control group still counts If you re talking to other company employees in order to gather information for the sake of giving legal advice and it s kept confidential, then it s probably privileged (within reason) - Trial preparation materials, prepared by the attorney for litigation, are protected as work product even though they re not privileged. Hickman v. Taylor o Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary Jackson s concurrence - 26(b)(3) now sets the standard for work product protections o A party may obtain discovery of work product only if The party has substantial need of the materials in preparation of their case, and The party can t, without undue hardship, obtain the materials through other means o If discovery is ordered, court must protect the mental impressions, conclusions, opinions, or legal theories of the other attorney o Without the above showing, a party can obtain previously made statements concerning the action or its subject matter, previously made by himself: includes: Written statement signed or adopted by author Transcript or copy of statement, if it s substantially verbatim - 26(b)(5) A party claiming privilege or work product must do so expressly and with enough detail that, though the information isn t given, others can assess the applicability of privilege / work product Procedures & Methods 19

20 - 26(d) Timing & Sequence o Parties can t seek discovery before 26(f) conference o Other than that, free to conduct discovery in any order, and one party s discovery doesn t delay another party s - 26(f) Conference of parties, planning for discovery o At least 21 days before scheduling conference, parties must get together to exchange or arrange for exchange of the 26a1 mandatory discovery info, form a discovery plan, come up with any changes to ordering of 26a1 exchange, any limitations on discovery o Attorneys and unrepresented parties are responsible for setting this up; court can order personal attendance, alter timing - 26(a)(1) Required disclosures, methods to discover additional matter o Party must disclose, w/o discovery request, certain things which may be used to support its claims or defenses, w/in 14 days of 26(f) conference - 26(a)(2) Disclosure of expert testimony o Party must disclose identity of expert o Expert must provide report, detailing all sorts of stuff o 90 days notice b/f trial date of expert testimony, or 30 days if the expert is just for rebuttal - Rule 30 depositions - Rule 33 interrogatories (no more than 25 Qs, including discreet subparts) - Rule 33 document requests, entry upon land - Rule 37 Failure to participate in discovery; compulsions and sanctions Resolution w/o Trial Defaults, Dismissals, & Settlements - Rule 41: Voluntary dismissal o A1) P can dismiss w/o leave of court, and such a dismissal is without prejudice the first time. After that, dismissal of an action based on or including the same claim counts as an adjudication on the merits o A2) Except as above, suit won t be dismissed just b/c P wants to must be on order of the courts. If D has counterclaimed, P s suit won t be dismissed over D s objections unless the counterclaim can remain by itself Unless otherwise specified, dismissal under A2 is w/o prejudice o B) Involuntary dismissal: C) D can move for dismissal pursuant to violations of this rule or orders of court Dismissal under 41(b) or any other outside 41 is an adjudication on the merits, unless the court says otherwise This doesn t apply to dismissals for lack of jurisdiction, improper venue, or failure to join a party under rule 19 o C) Dismissal of counter-, cross-, or 3rd party claim 41(a)(1) applies to voluntary dismissals of these claims; those shall be made before responsibe pleadings are served, or if there is none, before introduction of trial / hearing 20

21 o D) Costs of previously dismissed action - Rule 55: default o A) entered for failure to plead or defend o B) how it may be entered o C) Entry of default may be set aside for good cause shown, judgment by default can be set aside in accordance w/ 60(b) o D) Rule applies whether parties getting judgment by default are Ps, 3rd party Ps, or parties pleading cross-claims and counterclaims o E) No judgment by default against US unless P proves her claim. - Most common reason for the voluntary dismissal is the settlement o Only 2% of cases end in trial o Parties create agreement and contract, court will enforce it to the extent that they ll enforce any contract Ds usually want the dismissal with prejudice, so that the case goes away forever (usually in exchange for money) Settlement agreement, contract not filed with the court o Sometimes, parties get a consent judgment Ex: need them in class action lawsuits If parties want the court s stamp of approval, more assurance of enforcement o Sometimes settlement agreements will include P s silence about her claim. When this happens, and someone in another case seeks to discover information pertaining to P s claim, courts might enforce the settlement agreement in that P can t talk about the terms of the agreement, but might allow P to answer questions about the underlying facts. Kalinauskas v. Wong - Growing hostility to secret settlements, as evidenced by the South Carolina rule change Voluntary & Court-ordered Mediation - Federal law requires courts to adopt local rules requiring some form of early ADR - Mediation: someone hears both sides, helps them discuss, but does not try to issue any sort of judgment or provide agreement position - Also, early neutral evaluation, like summary jury trial - Courts keep lists of neutrals - Usually, facts and information presented in mediation is not useable r in court - Obligation to participate in good faith is very important. Nick v. Morgan Foods Summary Judgment - Rule 56 Summary judgment o 56a claimant may move for summary judgment after 20 days from commencement of action, or after service of motion from adverse party o 56b D may move for summary judgment at any time For both, they may do so with or without supporting affidavits and as to any or all issues o 56c motion to be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law 21