Civ Pro II

Good outline, clear up facts of law, and then practice problems.

syllabus
COMPLAINTS.
Jan 9, complaints
Rules 8a: short and plain statement of the jD and claim.

12B6- motion to dismiss for failure to state a claim

11B- Can't file harassing claim, can't file claim which is not grounded in the law, there's evidence to support claim, enough evidence for denials. Atty's have to do enough research to show diversity & present evidence

8e- allowed for alternative, hypothetical and inconsistent pleadings. Opposing counsel can't use inconsistent statements against other party.


Rule 11, CB 354-365

Rule 9b: Fraud and mistake must be pled with particularity: Stradford: know what exactly constituted the fraud and when exactly you think it occurred.

rule 18: Joinder of claims, a party asserting a claim to relief may join as many claims as party has against another party, even if unrelated. Can do separate trials on different claims per 42B. Still subject to jD/venue requirements.

Rule 20: allows us to bring in other parties, if claims rely on same transaction/occurrence and common question of law or fact, Joinder can create jD problems, for example if we have a federal claim and a state claim. 28 $ 1331 - if it's a fed question, the feds get it, arising under Constitution, laws, treaties of US. takes care of federal claim. What about the state law claim if there's no diversity and claim is under state law, must go under supplemental jurisdiction 28 USC $ 1367- if related to claims within original jurisdiction. Long discussion of supplemental jD, cts can decline if

claim raises a novel or complex issue of State law;

Claim substantially predominates over the claim/s over which ct has original jD.

Dist ct has dismissed all claims over which it has original jD

in exceptional circumstances, there are other compelling reasons for declining jD.

Rule 20: allows us to bring in other parties, if claims rely on same transaction/occurrence and common question of law or fact, Two tests, "substantial overlap of the evidence" and "logically related claims" depending on jD for same transaction/occurrence.

Cts can sever where jury confusion or undue delay.

19: pl master of complaint and ct can order parties to be joined when they need to be

22: Interpleader, if a bunch of pls have related claims against def, then we may be required to join them together so def not exposed to multiple liability.

24: intervention of right, we can allow someone to come into a suit when they have question of law/fact in common with existing suit. Man dies, his exwife claims she's the beneficiary of life ins policy, widow also claims to be beneficiary, so both of them might sue. Ins co uses interpleader action to bring two parties together to make sure they don't pay twice.

Responding to the complaint: 12(b) motions, deny, admit, or ignore.

Answer and pre-answer motions

8b: Party can respond to pleaders allegations by admitting, denying specifically, denying generally, or denial based on insufficient information.
8d
If a response is required and you don't that's considered admitting it.

12B: Every defense ~~ shall be asserted in the responsive pleading EXCEPT for these made by motion:
1) lack of subject matter jD
2) Lack of personal jD
3) improper venue
4) insufficiency of process
5) insufficiency of service of process
6) failure to state a claim upon which relief can be granted
7) Failure to join a party under Rule 19.
12C: Motion for Judgment on the pleadings, after pleadings are closed, any party may move for judgment, If, on such a motion, matters outside the pleadings are presented to and not excluded by the ct, the motion shall be treated as one for summary judgment as in rule 56.
12 D Defenses 1-7 and summary judgment come before trial.
12E Motion for a more definitive statement, if pleading to which a responsive pleading is permitted is so vague or ambiguous -~~ party can move for a more definite statement before interposing a responsive pleading, motion must point out defects complained of and details desired. If not taken care of ct may strike pleading.
12G: Party making a motion under this rule may join any other motions available. If you make a motion and in response leave out defense/objection, (not sure who is what here) can’t bring it up ever again. As stated: If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision h2 hereof on any of the grounds there stated.
12H Waiver or preservation of certain defenses, Defenses as to 12 B 2,3, 4, and 5 are waived if omitted from a motion described in the circumstances, or just left out. Defense of 12B6 or failure to join a party can come in any pleading or by motion for jDt on the pleadings or at the trial on the merits.

Affirmative Defenses, 8C: fact which vitiates the opponent's claim, not a trial on the merits as in she sez you did it and I say it wasn't me, she sez you did it and I say yah but it was self defense or the SOL has run.

13 a; Compulsory counterclaims: if you have it and want it to be heard against opposing party, you have to put it in now.
b: You don't have to put it in there if it's not part of same transaction or occurrence.
g: Co-Party, can bring against a coparty as long as same Transaction or occurrence.
h: What if not a coparty or party? Can join under 13h using 19/20 tests.

Impleader
Rule 14, 28 USC 1367





Stradford v. Zurich ins co
Defendants are insurers, insured from 18 Aug '99-19 Aug '00, Stradford didn't pay, and cancelled from 10 Oct '99- 13 Dec '99, policy reinstated after no claims letter 14 Dec, Stradford notified 9 Jan.
Less than 10 days later, he files a claim, 17 Jan '00, pipes burst causing extensive water damage.

"certain dental implants worth more than $100,000 had become wet and ruined" ? but they're supposed to go in your mouth- which is wet. Claim for 151,154. Then new claim for 1,385,456, they investigate, and discover losses were when he didn't pay. Stradford files suit to get $, defs counterclaim, asserting fraud, want original payment back. Stradford sez; claims not stated w/sufficient "particularity" and dismiss other counterclaims for failure to state a claim.

Body of complaint, should be in chronological order. Who reads the complaint, who are you trying to influence, why try and tell a story?
Do you want to be more factual or argumentative? factual is better than argumentative. Needed to show ownership, def. dolt was driving a vehicle owned by defendant Drip Electrical
Alternatively defendant drip was driving a vehicle owned by defendant Drip electrical
It's better to separate out into this one did alternatively this one did, instead of combining the allegations as I did. Put ALL of your facts in.
say negligent in, but not limited to, the following ways, -
Pl was injured in, but not limited to, the following ways-

2nd claim, willful and wanton negligence of Drip
third claim negligence of dolt
Respondeat Superior liability of defendant drip Electrical.

How do you find out what damages you are entitled to?
Where would you look? Statutes and cases, what does Fl allow?
JURY TRIAL DEMANDED included, don't forget to ask for it. .

Rule 9(b) In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind of a person may be averred generally. - defendants allege facts that serve to provide strong inference of fraudulent intent.
But, don't satisfy "time, place, and nature of alleged misrepresentations have to be disclosed to party alleged of fraud. We don't know which statement by Stradford is false. Are his claims improperly inflated? Did it never flood? Did it flood but not during the term of the policy?
Bring it back, amend it. Stradford misrepresented date.

Defs requested summary judgment per 56(b) Pls have breached their contractual obligations by failing to cooperate in the investigation, so can't recover.

Which ct has jurisdiction? Fl state.

Fraud particularity, Elements of fraud are 1) false representation or omission of material fact, 2) knowledge of or belief in its falsity by person making it 3) belief in its truth by receiver of statement 4) intent that the statement will be acted upon and 5) detrimental reliance by the person who was deceived.

rule 9 requires specificity when pleading fraud and mistake because of the potential for reputational harm, desire to avoid in terrorem suits, and because pl usually has specific information in the cases

Yes, you have to do all the caption part

Each jurisdictional allegation is separate, Pl is a citizen of NY, dolt is a citizen of _, Drip is a citizen of _, dolt is a corporation incorporated under the laws of the state, etc.
Matter in controversy exceeds, exclusive of interests and costs, the sum specified by 28 U.s.c. $ 1332
Venue is proper in the _ District of _ because-

Joinder:
Rule 18: Can join together everything against opposing party
b) two claims are independent, even if normally one claim is dependent on winning the first one. Can join both claims together

Multiple plaintiffs, multiple defendants, under Rules 18 and 20

Rule 18- must a plaintiff's complaint contain every possible claim that she has against a defendant? Perhaps negligence, breach of warranty, and wilful and wanton negligence.
No- Pl is master of complaint.

Caveat is claim and issue preclusion, if it's not included, it may be barred from later suit, we'll come back to this.

18- what claims can can't be joined? No limits under the rule, anything against party 2 may be brought? Why? Judicial efficiency.

Rule 42 allows ct to sever claims if too unwieldy.

What's the main issue going to be in a joinder of claims problem? Issues will be subject matter jD.

Barbara- ann sues barbara in Il ct for violation of fed'l civil rights statute, and then she seeks to add state wrongful discharge,
These two claims arise from CNOF, and rule 28 USC $ 1367- allow us to join these two claims.

Ann sues Barbara for federal civil rights violation and seeks to add state law claim alleging B caused her injuries when her car backed into A's car in parking lot, this can't be joined b/c not CNOF. Why is it not CNOF, one claim involves one set of facts with firing, one set of facts involved negligence in backing into her. - Unless the one hated the other so much that she fired her and then backed into her?

Ann v. Barbara, alleging violation of Fed civ rights statute by allowing co-workers to engage in sexual harassment. Ann wants to join Charles, coworker who joined state tort law, is this ok under 1367a? No reason why not, related to claims w/in original jD.

Ann Il, v. B (WI) There is no supplemental jD in diversity.

Ann In Il, Barbara in WI and Charles in Il, Federal civil rights claim based upon Sexual harassment occurring in WI, can she sue them in Il? Can the parties be joined? If the suit is filed in IL what's the potential problem? Personal jD. She probably can't sue in Il, b/c barbara's in WI and events occurred in WI.

What rule governs joinder of parties? Rule 20. What does Rule 20 require when joining pls or defs?

What's the underlying policy?

Ct retains discretion to separate even if Rule 20 applies, what Factors does the ct take into consideration in exercising its discretion to order separate trials.

Permissive joinder, all the people involved as pls can come together to press charges and suit.

We can separate if we want to avoid jury confusion and undue delay.

Joinder by Plaintiffs,

Mosley v. General Motors.

Mosley and 9 other people alleged that GM and Union violated their Race/colour civil rights. Each had filed EEOC charges, EEOC told them go sue. Many counts, dist ct decided to sever into 10 separate causes of action. They just don't have enough to do with each other and are unmanageable. So Pls appeal this, interlocutory order,a nd affirmed in part and reversed in part.

Was it proper? Rule 20 wishes to make it more convenient and faster to litigate. Must have right to relief asserted by/against each plaintiff or def relating to or arising out of the same transaction/s or occurence/s, and some question of law or fact common to all the parties must arise in the action. (CNOF)
Each of the pls alleged that he had been injured by the same general policy of discrimination on the part of GM.

Ok, so they have the same series of transactions/occurrences.

Pls need a question of law/fact common to all the parties in the transaction. Usually these rules (23b) are permissive. discrimination is basic to class, we don't have to describe individual effects.
Second element of Rule 20 met by the complaint. Dist ct shouldn't have severed the complaints.

Question of law arising is -were they unfairly discriminated against b/c of race/sex, denied hiring opportunities.

What would have happened if joinder improper? They'd sever it, not dismiss the claim.

How do we know it's a single transaction or occurrence? All "logically related" events.

Rule 20:

A & B are injured when C crashes her car into a tree, we have CNOF so they can join their claims.

A is a passenger in B's car, she is injured when B & C collide in a car accident Can A join both B and C- yes, it is a CNOF, she would have alternate claims against B and C. Damages.

A does not want to sue B b/c suing him destroys diversity, can A sue only C? Yes.

A suffers severe head injuries when D crashed into him while A was visiting family in GA, Ambulance gets in wreck on way to hospital increasing A's injuries. Can A sue both ambulance driver as defs?

I don't think so? I think they're really two separate incidents of operative fact and not really logically related. Different acts of negligence, two different questions of law, two sets of witnesses. Ct would probably allow claim to go forward, on facts. Lawyers splain Rule 20 to judge, and then set out advantages on facts.

Brief overview of Rules 19, 22, and 24, just to have passing familiarity, not responsible for knowing them in depth, you may see on exam.

Rule 19, allows court to order parties to be joined when their absence will either materially reduce the likelihood that the ct can provide justice for those already - or where their absence will be detrimental to the non parties.

(ct can force joinder if necessary.)

when is this necessary? Prominent lawyer, carl warner gets a divorce, remarries, wife 1 is mad b/c she thinks she should be Mrs. Carl Warner and sues phone co. She really needs to have Wife 2 included in lawsuit.

A and b have contract w/C , C fails to perform, A sues C, is B a necessary party? What if B no longer wants specific performance but only damages?

A, B, & C are joint owners of the property, C sues for partition of the property but only sues A, ct can force B to join.

If missing party cannot be joined b/c of jD issues, then ct may have to dismiss, ct does a balancing test looking at the interests of the absentee, the existing parties, and whether there is some way to protect the missing party.

Does not apply when there are joint or multiple tortfeasors.

Rule 24, Opposite of Rule 19, someone is left out and wants to be included b/c the case has an impact on them and interests not adequately represented.

Environmental grp sues Nuclear Regulatory Commission and certain mining interest to have the ct determine whether certain expensive admin procedures must be followed in all mine applications, mining companies not involved sought to intervene b/c the rule of law determined in that case could impact them and they felt that the existing pl might settle and they felt that the existing plaintiff might settle or agree to a judgment that would adversely impact the other companies in future applications.

Rule 24: Interpleader, avoid risk of multiple liability by requiring two people w/related claims to come together in a single action. Man dies, his exwife claims she's the beneficiary of life ins policy, widow also claims to be beneficiary, so both of them might sue. Ins co uses interpleader action to bring two parties together to make sure they don't pay twice.

Summary of rules
Rule 19, you need to add someone in order for the existing parties or the missing party to be fully protected and all the issues fully decided (Note: does not apply to joint tortfeasor cases)

R. 22 I have no dog in this fight

R 24 I have a dog in this fight and you didn't invite me to participate.
Whatever that means!

8a: Claims for relief, short and plain statement of the grounds upon which ct’s jD depends, unless ct already has jD and claim needs no new grounds of jD to support it, 2) a short and plain statement of the claim showing that the pleader is entitled tor elief, and 3) a demand for judgment for the relief the pleader seeks.
8b: Defenses: form of denials. A party shall stat ein short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends to deny in good faith only a part or a qualification of an averment, the pleader shall specify so much of it as true and material and shall deny only the remainder. (goes on at length)
12B: Every defense ~~ shall be asserted in the responsive pleading EXCEPT for these made by motion:
1) lack of subject matter jD
2) Lack of personal jD
3) improper venue
4) insufficiency of process
5) insufficiency of service of process
6) failure to state a claim upon which relief can be granted
7) Failure to join a party under Rule 19.
12C: Motion for Judgment on the pleadings, after pleadings are closed, any party may move for judgment, If, on such a motion, matters outside the pleadings are presented to and not excluded by the ct, the motion shall be treated as one for summary judgment as in rule 56.
12 D Defenses 1-7 and summary judgment come before trial.
12E Motion for a more definitive statement, if pleading to which a responsive pleading is permitted is so vague or ambiguous -~~ party can move for a more definite statement before interposing a responsive pleading, motion must point out defects complained of and details desired. If not taken care of ct may strike pleading.
12G: Party making a motion under this rule may join any other motions available. If you make a motion and in response leave out defense/objection, (not sure who is what here) can’t bring it up ever again. As stated: If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision h2 hereof on any of the grounds there stated.
12H Waiver or preservation of certain defenses, Defenses as to 12 B 2,3, 4, and 5 are waived if omitted from a motion described in the circumstances, or just left out. Defense of 12B6 or failure to join a party can come in any pleading or by motion for jDt on the pleadings or at the trial on the merits.
17- Complaint for negligence, then once defendant has filed, we have two choices (or can do both) motion attacking summons or complaint, or responsive pleading answering allegations.

Preanswer motion- motion requests the ct do something! Pl can say this is not in the right place, you have no claim, or I don’t understand what you’re wanting. None of these take a tack on allegations.
If you choose not to make a pre-answer motion, can you add all 12B defenses to your answer? No-
Motion to dismiss, use caption pl used in complaint, def moves ct to dismiss claims under 12B- whatever. We can go through and answer complaint, take caption off, put answer, and deny allegations. Can also include 12B motions in pre answer motion or in answer itself.

I love the way she says, "and if you get through these two, Katherine, you're done, and beams. She sounds just like Bob Barker.

Lawyer drafts answer after meeting w/client, does reasonable investigation, Lawyer signs off, sends to other party and files it w/ct.
Answer can deny/admit whatever allegations necessary, or use affirmative defenses- even if what you say is true, you can’t get me, like SOL. Def can now assert claims against pl also.
Responding to the complaint. Def MUST respond to pl’s complaint or face default jDt- can’t wait until trial.
Def receives complaint, must answer either w/in 20 days of being served w/summons or complaint or B if service waived within timely manner w/in 60 days after the date when the request for waiver was sent, or w/in 90 days after that date if outside U.S. If you have a crossclaim bring it w/in 20 days. Pl has to reply to counterclaim w/in 20 days, U.S. & other agencies have 60 days. Answer served on other party- or perhaps it goes to the ct.
Why does def want to do pre- answer motion? ‘Cos there are certain things that must happen before trial- like a 12 B 2,3, 4, 5 motion, and also it is more efficient for them, + indicates to other party to watch out for us. buys them a little extra time.
If ct denies motion, responsive pleading is to be served within 10 days of notice of the ct’s order, so it b

Why do lawyers sometimes not file a pre-answer motion and file these 12b motions with answer. Maybe it's weak, Rule 11ish. 12B motions may be weak but you want to preserve them. To show your hand and strength of case, we can combine them. If it's important to public image, might resolve faster. Can't get into discovery until answer is filed. Sometimes people bury the 12B motions in answer. If someone is close to SOL, People don't always read answer in conjunction w/complaint. If your defense is improper service, you can throw that in answer, wait until SOL has run, and then perhaps judge will hear and grant.
If you want to draft a pre answer motion, where would you look to know how to draft it? Local rules.



Motions cannot be frivolous attempts to delay the proceedings, must satisfy Rule 11.
12 g/h set out consequences for not making and making a rule 12 motion, so can’t just delay on and on. If Betty’s Rule 12 b 6 motion is denied, all the others go away too, she cannot now move to dismiss for improper venue, but she can for failure to join an indispensable party- that’s preserved, (b/c we need discovery to see who’s indispensable?) Can’t dismiss for lack of subject matter jD- under 12H it’s ok, but once you’ve left it out and made a motion, can’t ever bring it up again, so failure to join an indispensable party might run into that. Arrgh, let her answer questions tomorrow.
Denial- if not dismissed by motion def can either deny or present affirmative defenses. 8b requires that he deny only the allegations that are actually disputed, and 8d provides that if it’s not denied, it’s admitted.
Zielinski v. Philadelphi piers, Inc. F. Supp 408, PA ‘56
Pl requests a ruling that fork lift driven by Sandy Johnson was owned by def, and Johnson was its agent acting in the course of his employment.
Pl was injured as a result of a collision btw two fork lifts, it was negligently driven,
Defendants deny. Pl was riding on McCarthy fork lift which had the initials PPI, Carload contractors made report to ins co. complaint served on def forwarded to ins co, Carload Contractors was employer. Why is complaint against Philadelphia piers. Philadelphia had sold business over a year before incident on 9 Feb ’53, Johnson had no idea, Defendant admits that it did own forklift on date in question, which was then leased to Carload, pier also leased by defendant.
I have no idea what actually happened.

Ask her about 12G/H

What's an affirmative defense, what you say in your complaint is true, but even so, you lose. What do you have to do if you have an affirmative defense? Give the other side notice so that they know what the issues are going to be. If you don't do so, then you may not be able to use it at trial.


Layman v. Southwestern Bell Telephone Co, Mo Ct App '77

Pl Layman sues after SWB has telephone wires and cables- property depreciated by $7,500, and then they done dug it up. She doesn't really own the land anymore, she has a life estate. Def's defense was that they had an easement per Joint Use AAgreement.
TC shouldn not have allowed SWB to introduce evidence of easement when it pleaded only a general denial and not the affirmative defense of the easement. Ct allowed this, despite pl's objection
Issue: is right of entry by easement an affirmative defense in an action for trespass.

Rule 8C sets out the named affirmative defense. does def intend to rest his defense upon some fact not included in the allegation necessary to support the pl's case.
License specifically mentioned as affirmative defense, but here pls objection shoulda been sustained and so reversed and remanded.

What happens if you don't know at the outset but find out in discovery? Amend your answer and add it. Co

Rule 13

a) Compulsory counterclaim, Pleading must state as counterclaim if it arises out of the transaction or occurrence that is the subject matter of the opposing parties claim and does not require third parties. Need not state the claim

b) permissive counterclaims- can state as counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

c) counterclaim may or may not diminish or defeat recovery sought by opposing party.

Logically related says same aggregate of operative facts in that the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights otherwise dormant in the defendant.

Exam, avail 9 am Fri 2 May, and then due noon 5 May, have outline and everything completed by 2 May, can't learn

Shoulda studied Rule 14 which is difficult.

Impleader is based on the substantive law principles of indemnity or subrogation, contract, or derivative liability, tort law.

Indemnity or subrogation deals with contractrual right under eithe rK or via statutory or common law, one party has the duty to reimburse the other. Derivative liability looks at substantive law and it may be statutory or common law, like respondeat superior?
Ct's summary of Rule 14, def may assert a claim against ANYONE NOT A PARTY to the original action if the third party's liability is in some way dependent upon the outcome of the original action.

Could Latco implead ITW if Latco's theory was-it's ITW's fault,not ours? No, Latco's liability is dependent upon the liability of the party bringing them in. Policy is judicial efficiency.
Will she give the handout problems she was going to give? The book problems are much better.
I smell marker. I wonder if I can can posole, I bet that would be good and make Julio a good birthday present. But I don't have any jars!

Awww, I really like Curcio, she's so nice and I do like the reflective exercises. It had bad timing but it was useful, sort of. next time we'll do the exercise in class and then do some other part later?

Know your judge! Argue the case in such a way that convinces your judge, ex- her judge wanted the client to get religion, so they did.

13 Feb,
Amendments, Rules 18, 20, 13, and 14
CB 394-400, handout case.

Handout case: Ridge v. Utiliquest. W.D TX ? yr

Def made motion to strike pl's failure to promote claim. ? it was in def's motion for summary jdt. Pl opposes motion and wants to amend.

Pl filed petition against his employers alleging discrimination and retaliation- he was fired b/c of race and then we have failure to promote which pl wants to add.

The problem here is that ct is about to grant summary judgment for def, and lawyers all of a sudden say, we have to throw something in here to pull the claim through summary judgment.

It's in fed ct on diversity jD.
Def files for complete summary jdt, Pl files new response with new claim for discriminatory denial of promotion. Def says take that out! (failure to promote claim) Pl sez no, I've got the facts in my deposition and it's reasonably related to what's in my claim.

Then also pl files leave to amend, ok, not timely, but def doesn't suffer by allowing it.
Def sez; no good cause for late request, unfair prejudice would result b/c dispositive motion deadline has passed. Futility argument.

15(a)
A party may amend the party's pleading ONCE as a matter of course at any time before a responsive pleading is served, or if ~~ no responsive pleading is permitted and ~~ no date for trial, the party may amend it within 20 days, or party may amend the party's pleading only by leave of the court or by consent of opposing party, leave given when justice requires.

15a evidences a bias in favour of granting leave to amend. 5 factors considered.

1) undue delay
2) bad faith or dilatory motive
3) repeated failure to cure deficiencies by previous amendments
4) undue prejudice to the opposing party
5) futility of the amendment
If none of these factors present, grant leave.

15 b- if issues not raised by the pleadings are raised by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Amendment of the pleadings may be necessary to make them conform to the evidence and anyone can move to amend this at any time, even after jdt, but failure to amend does not affect the result.

Do we care about the rest? ask her. She is going to talk about 15c but not 15b- What is the policy underlying statutes of limitations?

Here it was untimely. Everyone agreed file everything 1st Dec 2003, but then motion to amend was not filed until 27 July 04. No good reason for this, he was aware of this,
Def would suffer prejudice if motion granted. We don't want to start discovery all over again. We can't even consider this even if we wanted to, and we don't , so go away.

Rule 15a- can amend at anytime before responsive pleading, or within 20 days ~~~ may amend only by leave of court or by writ,

Beeck v. Aquaslide N Dive. 8th cir '77
Appeal from TC's exercise of discretion on procedural matters in a diversity personal injury action. Beeck injured while using waterslide, he and wife sued
Aquaslide, we made it, then wanted to amended to deny manufacture, and motion resisted, DC granted leave to amend. Separate trial granted on who made the thing., also resisted by plaintiffs. Issue tried by jury, for def, and TC entered summary jdt. Pl took appeal,
Did the tc abuse its discretion in granting leave to amend to the manufacturer to deny these admissions after sol had run.
Was it an abuse of the TC's discretion to give a separate trial?

Many people discussed slide and concluded it was made by Aquaslide. Much later def goes to see slide and decides it wasn't.
Pl has to show prejudice and other factors, ct said, no bad faith because- Def didn't get the ins. cos to lie about who they thought made it to delay the trial.

Def used 42B to separate trials- it would be easier to decide this issue and then we don't have to deal with everything else.
Notes:
Leave to amend freely given means:
a) would be amender has to have a reason for not getting it right the first time.
b) prejudice means shouldn't hurt other party too much to allow change now.

Ct decided that the reason they didn't get it right the first time is they listened to ins cos.

What was the prejudice to pl? SOL has run, and can't find who actually manufactured slide now, so SOL = SOL for plaintiffs. I have no idea why the ct thinks pls shoulda known who manufactured the slide.
Aquaslide and its insurers acted in good faith and it was difficult to tell the real from the counterfeit slide? How or why would pl be able to tell? Once they had said we made it, why go further.
Aquaslide was aware of counterfeiting. That might have changed the outcome, could it really be bad faith? Beecks were apparently from IA?

Well, spose wrong def stayed, how would def been able to respond to negligent manufacture charges? 'Member Zielinski v. Philadelphia Piers, ct forced def to admit something patently false, what's the difference?

Undue delay- not will it cause undue delay, but did you have the information and sit on it for a while?

Un bel di je l'attraperai et mangerai ses oreilles.

2/18/08
Rule 15c
Relation back of Amendments.
An amendment of a pleading relates back to the date of the original pleading when
1) relation back is permitted by the law that provides the statute of limitations applicable to the action
2) The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
3) The amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) (120 days) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the insitution of the action that the party will not be prejudiced in maintaining a defense on the merits and B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. (both of these elements must be met before amended pleading may relate back.
Process has to be served to- u.S. atty, Atty Gen of U.S., or agency or officer who would have been a proper def if named as relates to U.S.
(how would this have worked as relates to Beeck? Couldn’t we have used these standards? Are they conjunctive or disjunctive- disjunctive, any of the three circumstances are good. ) Authority to file amended pleading are in 15 a-b. Other docs not pleadings can be amended per 15c.
Part 1- when SOL provides for relation back, relation back is permitted.
Rule cannot contravene SOLs specifically permitting relation back, if statute is more generous to amended pleading. Rule defers only if statute is more generous on relations back. Does NOT apply if statute is more restrictive.
2- same transaction or occurrence, varies widely.
3- both elements of fair notice and awareness of a mistake in identity are explained below.
1) notice- the notice required is that which ensures that the party joined is not unfairly prejudiced by an amended pleading that relates back to an earlier date. If party to be joined in amended complaint learnt of suit w/in 120 day period provided for service of the original complaint, and that party’s opportunity to prepare a defense was not hindered by the time lag between the original pleading and the amended pleading, notice satisfied.
Ex: corporation w/sub-entity sued would generally have notice of the original action, remember Grace/Beatrice? If there’s a misnomer, then complaint relates back- (see example, Teledyne inc. v Teledyine industries, But if only aliases cited and not actual names, no notice. Ex, police officers cited under (Pac Man, Crater face, etc) not sufficient notice. If def not in original complaint but added under Rule 14, had fair notice if impleader served w/in 120 day period
2) Knowledge of Mistaken Identity- before the amended pleading may relate back under Rule 15-c-3 the pleader has to show that w/in 120 days person to be joined knew or shoulda known that the person woulda been sued under the original pleading but for some mistake in identity, see subsidiary/parent corporation problem, if subsidiary sued when parent shoulda been sued, then- notice. (but spose it’s the other way round, parent sued instead of subsidiary) W/natural persons requirement may be satisfied when the name of the proper def is similar to the name of the person originally designated as a def, and proper def knew of mistake w/in 120 days.
3) Mistake- relation back permitted only if party joined by amendment knew or shoulda known that it woulda been sued originally but for a mistake. Mistake may be either one of fact, or of law, see police officers joined under professional responsibility shoulda known they could be sued individually.
Moore v. Baker, 11th Cir ‘93
Moore consulted baker about an artery blockage, Baker provided surgery, and it went badly, she was paralysed, she alleged violation of informed consent by failing to advise her of an alternative therapy. Amended to assert negligence, in the performance of the surgery and in the post-operative care of Moore. TC barred new claim as amendment per SOL. Does it relate back? Whenever the claim or defense arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading-
Did original complaint give notice to the def of new claim?
No, it did not. allegations in complaint don’t say anything about negligence. Original complaint talks about what happened before surgery, but then amended complaint focuses on during/after surgery. Different times, separate and distinct conduct, completely different facts have to be proven. So barred, good bye!
(Is this a crappy job of lawyering or what)

Bonerb v. Richard J. Caron Foundation. NY ‘94
! Bonerb! originally sues alleging he slipped and fell on negligently maintained basketball court of non profit Rehab in Western PA. Pl is from NY. Case is in NY. New counsel, then new cause of action for malpractice, Def argues barred
Amendment which changes the legal theory of the case is appropriate if the factual situation upon which the action depends remains the same and has been brought to def’s attention by the original pleading.
1st complaint: Pl injured when he slipped and fell on wet, muddy basketball court, alleges negligence such as failure to maintain the premises safely, etc.
2nd complaint- all of the above + negligent, careless, and unskillful rehab and counseling care.
Ct thinks: CNOF involving pl’s injury. professional malpractice is an entirely different duty and conduct by def as compared w/negligent maintenance of the premises. But original complaint advised def of the CNOF giving rise to these different theories, injury caused by mandatory exercise, and that injury caused by def’s failure to properly supervise /instruct pl. ct decides sufficient notice + alerted def to possibility of a claim based on negligent performance of professional duties, so all required for relation back.
Def contends that it will be unduly prejudiced by amendment b/c must come up w/entirely new defense. But period for discovery has not yet expired, depositions are due, expert witnesses exchanged. No showing of undue delay or bad faith on the part of pl.
1a. What’s up with SOLs? We have SOLs so that stale claims cannot continue to rise from their well earned rest/grave. Judicial economy, we don’t want someone to continue pressing frivolous claims into eternity, - but if all the evidence/witnesses are similar and we have CNOF, then why not let the claim go forward. We don’t want to dig up witnesses and evidence from 1978, but- we need to let related/reasonably related things go forward and we need to give parties time to prepare, we need to allow for Beecky mistakes.
So why isn’t it more liberal? Why don’t we allow relation back of any subsequent amendment, related or no? B/c then we’d have people throwing random elements of legal theory to see what sticks and dragging cases on and on and on.
Why don’t we define relatedness on legal theory?
HellifIknow.
3- CNOF rule. Two different outcomes, look odd under CNOF rule and looks odd under legal theory rule- Moore, she’s trying to change legal theory, Bonerb, just fact theory to support negligence.
Focus on stage of litigation at which it appears, timing of motion to amend occurred after motion for summary judgment in Moore, very late, original complaint was on last day. Bonerb, came after substitution of counsel. Moore, seems like effort to drag out case?
What about if we want to change the party sued, won’t fair notice prevent this, no amendment to relate back can work under some conditions, normally it is for corp sued under wrong name or misspelt individual, right defendant is normally served w/ process, knows of the suit and of mistake.
Real def not served with process sometimes. Pl served person named in complaint rather than the real def. did newly named party know enough about the suit not to be prejudiced (at a disadvantage) and knew that she would have been named but for pl’s mistake. Difficult- ind names an institution and decides to sue individuals w/in institution.

I need to meet with her and talk about the answer.

2/20 Discovery
Rule 26 a1, 3, and 4 and 26 b 1 and 2
CB 407-414

Rule 26 a1- (prediscovery)
Except in categories of proceedings specified in 26a1e, or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

a) name, contact info for people who have info needed to support claims or defenses and subject matter of information
b) copy of or description of all documents necessary
c) Amounts of damages claimed by disclosing party and supporting documentation
d) insurance agreement that may be relevant to the action
e) exemptions
Action for review on an admin record
petition for habeas corpus or other proceeding to challenge a conviction
Action brought w/o counsel by person in gov't custody
Action to enforce or quash an admin summons or subpoena.
Action by US to recover benefit payments
Action by US to collect on student loan
proceeding ancillary to proceedings in other cts
Action to enforce an arbitration award.

Disclosures have to happen w/in 14 days after Rule 26f conference, party can object. If party served or joined after conference, they have 30 days to make disclosures. Must make disclosures on information reasonably available to it, not excused from making disclosures 'cos not ready.

You hafta tell them who your expert witnesses will be, and provide written reports of testimony.

These disclosures have to be made at times and sequence directed by ct, at least 90 days before trial date or if evidence is contradictory or rebuts other party's evidence, w/in 30 days of other party's disclosure.

Disclosures have to be in writing, signed and served.

26 (b) 1 &2
Parties may obtain discovery to anything not privileged relevant to the claim/defense of any party, ct can order this and even if it's not relevant in itself, if it leads to relevant information, good.

Limitations,
Ct can alter the limits on # of depositions and interrogatories or the length of depositions, ct can limit the # of requests under rule 36, based on-

discovery sought is unreasonably cumulative or duplicative, can be obtained from more convenient/less burdensome source, party seeking discovery coulda gotten it by discovery, or burden/expense outweighs its likely benefit,

Discovery; next stage once complaint survives demurrer. Most suits end at pretrial stage, why? Discovery, allows everyone to evaluate each other's strengths- and then we can settle or summary judgment (Ok, you stop thinking that. Yes it may be like that kind of contest. No you don't have to write that) Or lengthy and $$$ process of discovery (A Civil Action) can wear parties out.

We're the only country that does this (wait a minute, remember that movie w/Isabelle Huppert in which she was some kind of judge, didn't they have fairly extensive discovery?)

Rule 26 b 1 allows parties, w/o ct approval, to seek discovery "regarding any matter, not privileged, that is relevant to the claim or defense of any party."

(so you see we have to look at privileged and relevant.) If a party shows "good cause" the court may grant even broader discovery "of any matter relevant to the subject matter involved int he action.

relevance both grants and limits power, privilege is only a limitation.

Davis v. Precoat Metals, Ill, '02

Plaintiffs sued employer alleging race and national origin discrimination and retaliation in violation of Title VII

Allege hostile work environment per racially insulting/derogatory comments, Def discriminated against them and retaliated

26(b)(1) permits discovery into any matter, not privileged, relevant to the claim/defense of any party, Discoverable information not limited to that admissible at trial, Pl wants discrimination complaints against def by similarly situated employees,

Parties disagree on whether pl can get these things. Pls have limited requests to 98-02 period, same plant, and similar complaints, def sez; overbroad!

Ct concludes: Pl's requests seek discoverable information.

We can't get all unrelated, age/sex discrimination complaints- we can't get complaints from all places, so these are narrowly limited.

Steffan v. Cheney
DC '90

Resigned after recommended discharge based on his statements to be homosexual, he challenged claiming constructive discharge and challenging constitutionality of these regulations.

He refused to answer deposition questions related to his homosexual conduct, Dist Ct dismissed for refusal to comply w/discovery order.

No sanction can be upheld if imposition based upon an error of law, so reversed.

Dist ct said he was dismissed based upon admissions v. actual evidence of misconduct, questions were thought highly relevant 'cos could refuse reinstatement 'cos individual has engaged in homosexual acts.

Steffan challenges determination that he is unfit for continued service b/c he stated he is a homosexual, he seeks reinstatement as a relief for an allegedly invalid separation does not put into issue the question whether he engaged in potentially disqualifying conduct unless such conduct was a basis for his separation.
Inquiry is not relevant.

How are these different outcomes?

1st case broader discovery granted, second case, not so. In one case, the discovery is relevant to proof needed and legal question, in second case, no. Statements do not equal conduct.

Procedural moves, in first case, def just wants to limit discovery, in second case, def moved to dismiss based on failure to comply w/discovery per Rule 37 b 2.

Could Davis have sought review in Dist ct? Probably not, because they're def and can't challenge motion for discovery once granted? It isn't privileged information?

4a- no, size of bank account not discoverable (ins policy is)
4b- for punitive damages I think so.
4c, originally no, but the rule makes it discoverable.

5a- what disclosures must Albert make? None of these things are relevant?
Bystander's really the only person w/information relating to a negligence claim, unless there's something about the mechanic related to why she ran the red light.

Wed's problem was an exam question 2 years ago, from an in class exam, one hour. Reflective questions at end.

AEP Fri 1-2:15, 2:30-3:45

She has a coffee cup that looks exactly like a flowerpot with a handle!? Ok!?

AFTER SOL, if you want to amend complaint, new claim must relate back to claim in original complaint, new claims must arise from same t/a or occurrence as claim in original complaint.

New parties, claims must arise from same T/a or occurrence, new party must have received adequate notice and not be prejudiced and new party knew/shoulda known that but for a mistake, they would have been named in the original lawsuit.

Discovery is the new thing, and that's what people spend their time doing.

Oooh, Clinton's attacks on Obama are based on he plagarised speech lines from his campaign manager? There's an issue that resonates with the voters! Find one person in this country who cares. If I were Clinton I would stand on my record, sure I got us into Iraq and it's going to take someone willing to make tough choices to get us out? Obama's the most liberal senator in the country? We need change but this is not it, under hubby we had 8 years of economic expansion, a surplus, peace etc. I can bring country into another golden era. You know what you've got and you like it.

next time, at noon for AEP.

Supplemental jD- adding parties, 2 ways, diversity, or federal question to get it into fed ct.

Problems. Situations in which ct has power over some claims but not others, so - if claims so related, we'll allow add'l claim to tag onto original claim which should be there in fed ct.

See 28 U.S.C 1367, don't just cut and paste it.
Yes, this is bloody important, how does it relate to what I already know.

We know subject matter jD- power over the claims, distinct from power over the people. Big picture and working down.

Section B, talking about 1332, how do I get this into some sort of idea that I can apply.

That mans, he is not dressed for interviewing, he is not going to have any trouble getting a job apparently. He could be like Hulk smash! Get job. Here are my insecurities talking again, they could be like a whole nother personality.

We really have to worry about 1367 B.

What was 1332, was that diversity jD? i think so, I'd have to look at last terms outline. Section B, in diversity only cases, cts don't have supplemental subject matter jd over parties added.

Pl v. Def, pl not allowed to bring claims against parties that are impled into action. That's what it's telling you. So if def adds another party, pl can't bring claims against this 3rd party, we can't manipulate rules to bring claim against this other party.
Pl from GA, Def from Fl, Def 2 is from GA, if in fed ct b/c of diversity, can't sue both parties, Pl can't bring claims against parties that are added.

Pl sues fl and Fl impleads CA, we still have diversity, we can't use supplemental SMJ to get power over some claim.

No, I do not understand, the theme of the day is "stuffing my face with cream-filled ding dongs"

How do I read section b and get out that cts don't have supplemental subject matter jD over added parties?

Um. I don't. Strike through unnecessary words, he sez. The two classes that are most statutorily based, are this and evidence and you have to memorise all of evidence. Don't cut and paste, what do I know and how can I apply it later.

Supplemental smjD is not mandatory, they can if they feel like it, can use discretionary factors.

14- Impleader. Def can add party into action, 'member that nails and chicken coop case?
A defending party, as a 3rd party pl, serve a summons & complaint on a nonparty whois or may be liable to it for all or part of the claim against it. But

Ok, so Def now becomes kinda pl against 2nd def, and 2nd def becomes liable to 1st def, not pl. Pl sues Def 1 and Def 2 when both of them are in the car and they hit him. THIS IS NOT WHAT IMPLEADER IS FOR. Impleader is for contract situations where def 1 is liable, and then can find def 2 liable to him, but not to original pl. Dmitri is dressed up.
Indemnify- if sub messes up and gen contractor is sued, sub is to indemnify main Kor. Joint tortfeasors is a huge area of this. If 2 people hurt you at the same time, jointly and severally liable, both people owe,

3rd party def- proceedings btw. two defendants are a complete nother suit.

Must assert any defense against 3rd party pl's claim under rule 12- that was that 12 b1, 12 b 2 stuff. Procedural defenses must be asserted. If we see must, it means if he doesn't do them, they're lost. May assert Counterclaims- back to the person who sued you, crossclaims- same side of the v. All the rules apply now. What rule allows us to bring all unrelated claims against def? Rule 18.

I dunno, I think I'm going to work through his outline, and someone else's outline, and be done. And I hope I get to join the study group, Christina didn't seem terribly enthused though. CHRISTINA, BRING ME THE BOOK!!!! No she does not deserve that, I really like her.

What on earth? Who can claim and counterclaim who? Pl can't bring any claims against 3rd party defendants added in.

Lawsuit, pl, v. def. Pl harmfully touched by Copperfield in tort, copperfield sez, I have K w/MGM, if I get sued for anything, MGM pays me, I want to implead them. Are they diverse? Pl from GA, Copperfield was from TX, MGM is from GA. What does it say, Two elements, they're possibly liable to Copperfield, so we can implead them. O now we're going to rename everyone. Lawsuit 1- Pl v. Copperfield, Lawsuit 2 Copperfield is third party pl, suing MGM, MGM is 3rd party def.

3rd party def must assert any defense against 3rd party pl's claim under Rule 12.
All that 12b6, lack of subject matter jD, served wrong, wrong process.
13a- compulsory counterclaim, something like CNOF, arises from the same transaction must bring or lose.

B- have to assert 13a counterclaims. Discretionary counterclaims are optional, or can come up with crossclaims,

13g- crossclaims. So Copperfield can bring in yet another party, like his agent.

Def against pl's claim if pl is something to third party pl.

D- may also assert against the pl, any claim arising out of the same transaction or occurrence that is the subject matter of the pl's claim against the third party pl. Girl is drunk, makes out w/ copperfield, and girl tears curtain, so MGm sues her, same CNOF.

Ok, now we combine all these rules.

Pl can't bring action against MGM, they're added to lawsuit, under our rule it can't happen in diversity, she can bring flashlight claim later though.

If there's a fed question about # of restrooms required and they don't have enough, then we can still bring it against MGM.

Why do people eat applesauce but not pear sauce? Pears get mushier than apples.

Spose I made a dressing w/curry mayonnaise, how would that be?

Aagh, if Alex took Visual Basic and C++, that would be- way too much nerdiness. He would be, like, pulsing with nerdiness, like a- - pulserd? Somehow I doubt pulserd is going to enter the vernacular any time soon. He would be an accountant and a computer geek and that would be scary, he would have to have an emergency punkish infusion from Trey. You could start carrying a murse, like Trey, I suggested. Trey is very not nerdy, obviously.

How do we read C3 knowing 1367?

Write down translations of rules, how you interpret it.

That's too metro, he responded, besides, I have the car-

No that car is not cool, it is

Don't forget to wear the mink for Tuesday.

That crab thing would not be good with the din-din today.

I'm pretty sure you can't wear boots to an interview. I'm sorry, she was right.

On to the hypo! Ask him that question about the whole CNOF thing.

Al wants to sue McCain. Why, for what, where do all these people live, do they have jD?

Al wants to sue McCain for IIED and Tort.

McCain wants to sue Obama/Ted for breach of K?

Obama /Ted want to sue

Apparently, no new reading for Wed 27th.

Do lots of hypos. One per day, very vague in many cases. Don't worry about things like can he sue on the basis of the planet? Be more creative in Torts, you're trying to find the issue, but here, not so much. What happens if he fails to bring certain claims to certain parties, may lose so he has to figure out mandatory claims/discretionary claims.

Joinder of claims, could come up, all in list, we don't have to worry about amendments- 12 huge topics- have a checklist. Joinder, bring any potential claims against parties, ct doesn't have to hear them but can, McCain has defamation claim. He might have Joinder of parties, permissive, can we satisfy both tests.

Break down facts by rule, circle important facts.

If he keeps talking like that, he's going to talk as fast as the MicroMachines man.

Al presents several simple questions, however several of those questions require in-depth analysis of the federal rules of civil procedure.

He did mention policy, in Rule 18 ? .

2/27/08
Deposition, who may be deposed?
Anyone, party, witness, non party, anyone with relevant information.

What must you do if you wish to depose someone? Depends on status, if they're a party, you send notice of deposition. If non party, must send a notice of deposition to opponent and subpoena the witness. If you fail to subpoena the witness and they fail to show up, you have to pay the costs. If you want the non party to bring documents, you do something called Subpoena duces tecum, which means, bring it with ya. What about for a party? What do you do? Request for production.

How many times do you usually get to depose a witness?
Once. What do you do if you don't know who in a corporation to depose about a particular subject matter? Rules provide for 30(b)(6) deposition, you don't name party but describe wanted information, person with relevant information about company's hiring practices and background checks, so you don't have to give a name.

When is it proper to instruct a witness not to answer a deposition question? You need to have deposition read and signed as to verification by witness so that you can say that if witness sez something different in trial, if she hasn't read and signed it she can say, ct reporter got it wrong or I didn't say that.

How it works,
coordinate date,

See all the slides.

What must you do if you

Deposition, search youtube, and drunk lawyer.

10 March Discovery, Medical Examinations, Rule 35 433-438

Schlagenhauf v. Holder, US ‘64

Passengers of a bus injured in accident with 18-wheeler, defs were greyhound, Schlagenhauf, the owner of the tractor, etc. Bus driver had to submit to mental and physical examinations, could he see the trailer- under Rule 35? and he had to have 9 examinations v. 4 requested in petition. Petitioner thinks that this rule should not apply to a defendant, that it would be an invasion of his privacy. Rule 35 is free of constitutional difficulty and can apply to pls and defs.
His mental/physical condition was not in controversy and not shown by good cause. Movant has to show that the condition examined for is really and genuinely in controversy and there’s good cause for ordering each thing. Schlagenhauf doesn’t assert his mental or physical condition in support of or defense of a claim, There’s some allegations that he was not mentally/physically capable of operating the bus. But that’s not good enough, he wasn’t sick, there’s no reason to believe that. Vacated and remanded, so no exams.
Two requirements of Rule 35, condition has to be in controversy- has to be disputed in the suit or has to be part of claim, etc. and party seeking discovery has to show good cause, there’s some basis on the claim.
Schlagenhauf reached an appellate ct apparently through interlocutory motion? Mandamus is an interlocutory action alleging that the order is unlawful, rarely granted.

Dunham can have her examined, but if she’s claiming injuries, there should already be records. Is Pat entitled to see this, yes, per her request under 35a. Can Dunham get copies of her physicians reports? I think so. Aha, Rule 35b If they’re entered into evidence, then
Party moving for the examination must provide report of examiner to examined party, after this examined party must provide reports of the results of any other examinations for the same condition, whether before/after the Rule 35 exam.
Dunham and Jones- maybe she’ll answer this tomorrow, I suppose there might be good cause to have Jones take an eye exam.

Rule 35: Mental/physical condition of a party is in controversy can order examination. (have to show good cause, easy for personal injury claims)
a) Party requesting exam has to give other party detailed report upon request, Party requesting exam can get exam previously or thereafter of same condition. Once party examined gets report, then party examined waives all rights to confidentiality of everyone else who has examined, or may thereafter examine party with respect to physical/mental condition.


Did I tell y'all about M. Francais?

So there is this guy, and I like him but only as a friend, because he is sort of- not huge- but still big and beardy, like Comic Book Guy-

so y'all know I do not do that.

I know that opposites attract so it would make sense that big fat white guys would like skinny brown guys like me but why can't it be big muscly guys who like skinny brown guys?
Well I will continue my quest.
Anyway, so I met M. Francais and we canned together- that is what counts as a hot date for me, I'm like, I can't leave the house, but you can come and help me study if you feel like it- and then both of his exes started hitting on me, which is - strange.

Do y'all understand the primary/caucus distinction?

Anyway, last class, Rule 35, physical/mental examination, opponent can get copy, has to be in controversy and good cause. You waive privilege by asking for copy.

I. LIMITS TO DISCOVERY

March 13 - General limits & work product

Work product: similar to our outlines, my thoughts and how I've arranged the information. Work product /= atty client privilege. Atty client communication deals w/confidential communications btw atty and clientmade for the purpose of giving/receiving legal advice. For corporations, until UpJohn in the '70's, it's a legal entity but can't speak for itself someone has to do it. At time of Hickman, only person who was client on behalf of corp were managers in control group, lower level people were'nt considered clients until Upjohn.
Rule 26c
Protective orders, ct may enter orders designed to protect the parties and witnesses during the discovery process, obtained by motion, by party or witness. Must have good cause. limits discovery if justice requires to protect a party or witness from annoyance, embarrassment, oppression, undue burden, or expense.
(26B1) limits discovery if it's unreasonably cumulative, burdensome, party seeking has had ample opportunity to discovery, too expensive, can be obtained elsewhere
Party which wants protective order has burden of proof.

Motions for protective orders are most common for depositions, with interrogatories, document requests, and requests for admission, parties can object without providing substantive response.

8 kinds of protective orders, but this is not an exclusive list:
1) order that disclosure or discovery not be had, generally for interrogatories or document requests
2) specified terms and conditions, can designate time and location of deposition, order expense payments, deadlines, etc.
3) Method of Discovery, ct can restrict method of discovery
4) Limit of Scope or time, ct can limit automatic disclosures, discovery, can also stay discovery
5) Persons present, ct can limit to parties/attys, excluding public, press, other witnesses, non parties
6) Sealed transcript, can order deposition to be sealed away from public record.
7) Confidential information, ct can restrict disclosure of trade secrets and confidential information - extraordinary relief- party can move for protective order and then party seeking discovery has to show why it's needed. Ct can limit to relevant necessary information.
8) simultaneous exchange, can make parties exchange info simultaneously. good for patent cases.

Non parties cannot appeal discovery, can disobey and hope to win contempt. Generally parties can't appeal either until end of suit, b/c interlocutory.

Rule 26(b)(4)
Experts may testify at trial, only very limited discovery for nontestifying experts.
& work product

CB 438-446
Hickman v. Taylor, leading discovery case, Sup Ct 1947
How much can party inquire into oral and written statements of witnesses secured by adverse party.
Tug sank, we don't know why, law firm employed to defend and to sue rr for damages to tug. Survivors interviewed, Fortenbaugh from this firm interviewed them, One representative of deceased continues this suit. Pl wants survivors' statements, Def doesn't want to give them up. Ct ordered this, he refused, was imprisoned,
Facts gathered by one party should be given to the other party. Some things are privileged but not this. But Pl can get at these things through petitioner or interrogatories.
This is an attempt outside of Rule 26 to secure information without necessity or justification. It is outside the arena of discovery, we can't get mental impressions of atty, he has privacy.
They want oral statements made by witnesses to Fortenbaugh
We have other means of doing this and have to protect atty's privacy. No granting of request.

This is now covered by 26B3, limited protection to otherwise discoverable trial preparation and work product materials, only must be produced in discovery when the information in it is not reasonably available from any other source.

Work product here means documents prepared in anticipation of litigation, doesn't apply to facts known or gathered relating to the litigation, those are generally discoverable. Protection does not apply to electronic images of documents created for the use in the litigation.

March 17 - Expert discovery
Expert discovery
Rule 26(b)(3)
provides limited protection to otherwise discoverable trial preparation and work materials, such materials must be produced in discovery only when material is not reasonably available from any other source, this is broader than atty client privilege but less absolute.
Work product protection is only for docs prepared for litigation, not facts, which are discoverable.

& 26 (a) (2)

Each party must disclose the identity of its expert witnesses and produce an expert report for each expert witness. Time for expert disclosures can be stipulated by the parties or set by the ct, if not ct ordered/stipulated, must be 90 days before trial date, if expert testimony is purely to contradict or rebut, then must be within 30 days after disclosure by the other party. We have to know who they and they have to have a report of what they're going to say. We have to know a whole list of things on p 546.
No report, no testify.

Where's Mary Jo?

First exam Thurs 24 April 9am, Mattingly Property
Second: Torts Mon 28 April 9am,
Third: Contracts Thurs 1 May 9am,
Fourth: Civ Pro, take home,
Fifth: Crim Law Thurs 8 May 1 pm.
Handout Case(Ager v. Stormont - on website & distributed via email)

Ager: Incompetent has father represent her in negligence case against hospital, hospital wants certain information about experts, pl refuses to give it,
What didn't they want to disclose?
Experts gave some opinions detrimental to case. They wanted to know with whom the case was discussed and what was discussed. We held lawyer in contempt but did not actually arrest until appellate ct decides. What do we want district ct to decide, whether they were informally consulted or retained/specially employed but not to testify for trial.

magistrate orders it, Pl sez, they're informally consulted, not retained or specially employed.
Retained or specially employed means: they got paid. Can a party routinely discover the names of retained or specially employed consultative non-witness expert.
Categories of witnesses:
1) Experts a party expect to use at trial, opponent can use interrogatories to get these names and substance of their testimony

2) Experts retained or specially employed in anticipation of the litigation or preparation but not to use at trial, can be discovered only by showing exceptional circumstances

3) Experts informally consulted in preparation for trial but not retained. No discovery.

4) Experts whose information was not acquired in preparation for a trial. (just witnesses) (maybe where the treating physicians would fall)

(did this define what constitutes expert?)
Sometimes expert witnesses might not be used for various reasons, but still could be retained or specifically employed in anticipation of litigation.
Party resisting discovery determines status of expert.

(1) manner in which the consultation was initiated
(2) the nature, type and extent of information or material provided to, or determined by, the expert in connection with his review
(3) the duration and intensity of the consultative relationship
(4) the terms of the consultation if any, such as payment, confidentiality of data/opinions.
Additional factors may be considered if relevant.
.

Thompson v. The Haskell Co.
MD. Fla '94
Pl wants to shield from discovery records generated by a psychiatrist for her previous counsel. But she hada give it up, cos it was immediately relevant. Now for int'l reefer, they had ample opportunity to inspect and coulda gotten it through other means.

O y'all know I like to tell y'all about my Mom's cooking. She has recently hatched a Plot to Make Gravy for the Fried Chicken she buys on markdown at Kroger. Ingredients for planned gravy: Tinned soup, possibly tomato, wine, and half and half.

That's not how you make gravy, I tell her.
She is undeterred by this.

m. francais is talking about reiki healing. Something about giving someone else your energy in the places where they hurt to heal them. Hah.

Final writing exercise distributed - DUE March 24

March 20 - Discovery sanctions

Rules 26(g): Every disclosure, discovery request, response and objection has to be signed by at least one attorney, it complies with Rule 11 (consistent w/Rules and existing law, or has a good faith argument for extension, modification, or reversal of existing law, not an improper purpose, requested info not unduly or unreasonably burdensome or expensive,

37 : Sanctions for failure to cooperate in discovery. After reasonable notice a party can apply for an order compelling discovery, application for an order to a party has to go to ct in which action is pending. Application for person who is not a party shall be made to the ct in district where discovery made/taken.

if party fails to make a disclosure required by Rule 26A then other party may move to compel disclosure or for appropriate sanctions. (basically, if we need to know more, let's let her talk about it.

451-464
Discovery abuses: Too little discovery: one party refuses or resists appropriate requests for discovery. too much discovery: asks for everything and the kitchen sink to annoy/delay opponent, mismatched discovery: when the two parties have substantially unequal wealth. Stonewalling is "prevented" by 26g which sez that the document is complete and correct.

Lots of questions which if she wants us to know, I'm sure she'll slide them.

Thompson v. Dept of HUD, '01 MD
Pls are class black representatives of the public housing developments, they allege racial segregation going back to 1933. Pls want answers to rule 33 and rule 34 discovery requests. Maybe what we can do is give recent information and then if they really need the information from 1933-198? then we can give it to them.

Poole v. Textron, MD '00
Pl sued Textron for injuries incurred from defects in a golf cart. Pl moved for sanctions, pointing out 6 instances of discovery abuse by def. Ct awards expenses but not sanctions. Textron did many bad, bad things. But not entirely bad faith, so we are going to sanction and award atty's fees but go no further. Just let her explain it tomorrow.


III. RESOLUTION OF CLAIMS

March 24 – Default Judgments (R. 55)
Default judgment – Rule 55(a)-(c)
466-471
FINAL WRITING EXERCISE DUE TODAY

March 27 –Voluntary and Involuntary Dismissal
Rules 41 (a) & (b)
471-482

March 31 - Summary Judgment
Rule 56
34-39
513-526

April 3 - Summary judgment cont’d & JMOL & New Trial
Visser (handout case)
JMOL – Rule 50
New Trial Rule 59
Handout questions

April 7 – Claim preclusion
Begin Claim preclusion via handout cases TBD

April 10 – Claim and Issue Preclusion
Handout cases

April 14 -
Finish Issue Preclusion
If time we will briefly cover Rule 6 - the timing rule

April 16
Review class (finish issue preclusion???)

Ok now, that Vacuum, I need to deal with that. The smart thing to do would be figure out what's wrong with the old one and send it back, check out what the new ones cost and see if they're better than the old one.

Law Review- wRITE ON FOR IT, b/c very few people try and

Take MPRE after professional responsibility next year. Ethics bar, know about fall recruiting, How does that work?
Do one of: Law review, Moot Ct, STLA. Evidence and Con Law are longer and more tedious. Get a GRA position. Saves $ pays for tuition.

Don't forget to meet w/mattingly after 3 Mon.

Curcio's exam is take home, learn it all before you take the exam.

Res judicata and collateral estoppel. Default judgment.

Summary judgment is like, Bob hit me but we have evidence that Bob was in Canada at the time, look out for differences btw 12B6 and summary judgment.
Pl has burden of proof at trial. What happens when moving party does not carry burden of proof? But sometimes we have counterclaim by def and then def would have burden of proof.

It's the 4th of April. It's been nearly 3 months since we ended.

Evidence has to be admissible at trial to survive summary judgment, we don't like hearsay evidence, I heard Jim say Bob was in Canadia, that is inadmissible. For summary judgment, witnesses don't actually have to appear, they just have to submit affidavits. Only admissible if, I saw Ola in Canada, not Sheridan told me that Ola was in Canadia. Affidavits are not admissible at trial, but admissible for these purposes.

JMOL is from Rule 50, can take away from jury b4 entering judgment. Has to be a jury trial, party has to be fully heard on the issue, for example, pl has to present the entire case before it is entered.

Rule 59 deals with a new trial granted for major problems in trial process.

Res Judicata/Claim preclusion: definitely to be on Exam, we haven't written about this.
Pl sues def for physical injury in car wreck, can also sue for emotional distress, Mental injuries have to be brought at the same time, why? CNOF. May argue that physical injuries and mental injuries occurred at different times, not CNOF.

Substantial control, ex would be Pl is small child and suit is brought by next friend, if Mother as next friend brings her own suit, that's substantial control

Virtual Representation, husband and wife, but just because all the people are in the bus, there may not be the same unity of interest or identity of interest in the outcome.

has to reach final judgment on the merits. On merits are like Verdict, JMOL, summary judgment, 12b6 w/prejudice- Know the difference for claim preclusion btw 12b6 and summary judgment.

If ct didn't have the power to hear the claim, such as tax fraud in a divorce case, then not claim precluded. Or tort claim in a divorce, some tort for assault and battery.

Collateral estoppel is issue preclusion, once the issue is decided, you shouldn't have to decide it again.

Same issue of fact or law
Actually litigated and determined
by a valid final judgment
Essential to the judgment.

Ex, we find bob drunk and he punched Andy, does he have to have been drunk to punch/injure Andy? Probably not.

Defensive Non-mutual issue preclusion. Pl sues Microsoft for defective laptop screen, loses. Now sues apple for using the same laptop screen, apple can now bring in this jury verdict to say these laptops aren't dangerous.

Defensive and Offensive non-mutual issue preclusion, once def has lost, pl can say, ok they lost in this case so I should win.

But if we have different plaintiffs, then no issue preclusion.

We won't have to know timing to determine whether complaint is good or not, but we want to throw them in and say, Bob has to file his motion w/in 10 days. We look smart then.

ARGUE BOTH SIDES, don't be conclusory.

Hypo w/Maya Alexander:
Two main issues:

Who is Edmina? Don't talk about stuff for which there aren't any facts. We don't want to get into a long dealing with who's Edmina, etc, all we'd say is there is no information, so we won't address it.

Amendment oin the complaint for the relation back. Rule 15, State the problem, here's the problem and here's the rule that governs it. What does Rule 15 do. and expert witnesses. Start with best argument first.
Go back and forth on Rule 15, Jan will argue that there is no prejudice, etc. Conclusion is not as important as argument. Pl will argue that issue #1 is satisfied because, blah, Def will argue it is not b/c Blah. Force yourself to spend time making sections longer. Expert disclosures, Two main witnesses, Virginia and jack. Virginia under 26a1.
Off merits

Ooooh, I am not feeling so good. It's cold and damp. Very Springy but- also exhausting.

if Movant has burden of proof at trial, must produce un-refuted affirmative evidence.