Civil Procedure II - SW

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3rd Party Claims (Impleader): Rule 14
Under what circumstances is an impleader permissible?: Any time after commencement of the action, a defending party, as a 3rd party (P) may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the (TTP) for all or part of the (P)'s claim against (D)(TPP)
When is secondary or derivative liability appropriate?: Only where (TPD) would be liable to (D) if (D) is held liable to (P).
3rd party complaints and the (P): If (D) files a counterclaim against (P), (P) can seek to implead a 3rd party for the liability that (D) is alleging of (P)
Compulsory Joinder (Rule 19): (P) sues (D) - (D) wants to have lawsuit dismissed by claiming that 3rd party (X) is an indispensable party to the action, and without joining (X) to the suit, it should be dismissed
Motion to dismiss: Can bring a motion to dismiss in the pre-answer motion under Rule 12(b)(7), or can reserve it for an affirmative defense in the answer
Three step process for analyzing a Rule 19 issue: 1. Is the party necessary?
- if so, party should be joined
- if not, end analysis

2. Can the party be joined?
- looks at jurisdictional issues
- if yes, party is joined
- if no...

3. If party can't be joined - is the party indispensable?
- if yes, and party should be joined but can't be joined, the court should dismiss the case
Is the party necessary?: - Would there be complete relief to those already parties in the absence of this 3rd party?

- Does the absent party have an interest in the litigation, and would it either:
-- impede the absent parties' ability to protect that interest, OR
-- subject those already parties to multiple or inconsistent obligations by reason of claimed interest
Of the party indispensable?: - To what extent, if any, would a judgment rendered in the person's absence be prejudicial to the person or those already parties?
- The extent to which the prejudice can be lessened or avoided
- Whether a judgment rendered in the person's absence will be adequate
- Whether the (P) will have an adequate remedy if the action is dismissed for nonjoinder
Compulsory joinders are most common in the following situations:: 1. Cases involving an obligation on which 2 or more persons are joint obligees or obligors
2. Cases involving ownership of, or interests in, real or personal property in which some persons claiming and interest are not included as parties
3. Cases involving representative parties in which either the rep or some parties being represented are not included
4. Cases involving claims to a limited fund or pool of assets
Class Actions: Rule 23
Implicit requirements: 1. Identifiability
- court has to define the class

2. Membership
- named class representative must be a member of the class
Explicit requirements: 1. Numerosity
2. Commonality
3. Typicality
4. Adequacy
Commonality: Do the members of the class share important commonalities with respect to the lawsuit?

Are questions of law and fact shared by all class members?
Typicality: Is the representative's individual claim typical of the class?
Adequacy: - Adequacy of class rep
- Adequacy of class counsel
Adequacy of class rep: - Class rep needs to have a stake in the litigation

- Rep or counsel needs to be able to fund the action

- No clash between class rep and class counsel
Adequacy of class counsel: - Must be approved by the court
- Has to fairly and adequately represent the class (no conflicts)
- Has to be sufficiently skillful and equipped with sufficient resources
- Should be familiar with substantive law surrounding the suit
- Should be someone who has proven himself qualified to represent a class action
- Should have financial resources to fund the case
Types of class actions: 1. Prejudice class action
2. Injunction/Declaratory Relief class action
3. Damages class action
Prejudice class actions: Class action is necessary to prevent prejudice where individual actions create a risk of:
- inconsistent standards of conduct created by inconsistent adjudications
- imparining the ability of absentees to protect their interests
Injunction/Declaratory relief class action: Remedy is not primarily damages, but instead the issuance of an order by the court
Damages class action: (P) class seeks damages
- "small claims" actions
- "mass tort" actions
"Small Claims" class actions: If there is a minimum amount in controversy or minimal amount of damages a person has against (D), there aren't significant incentives for (P) to file an individual lawsuit to recoup damages
"Mass tort" class actions: Potential to claim significant amount of damages

Each individual has an viable claim, but individual lawsuits are not a very efficient way to deal with a class action
Requirements for damages class actions: - (P) needs to be seeking damages

- Predominance - "super-commonality" - individual class members claims share not only common questions of law and fact, but that those questions predominate over individual issues

- Superiority - is the class action the best way to handle the dispute?
Notice: Individual notice must be given to all class members damages class action cases.
- At minimum, must be mailed notice of pendancy of action

Injunctive and prejudice class actions - notice may be given to class members, but is not required
"Opt out" provision: Allowance for those who do not want to be a member of the class action lawsuit

Only applies to damages class actions
"Mootness": Requires that the (P) have in fact suffered a harm, and that by the time litigation is over the (P) is still suffering from that harm and can benefit from the settlement, etc. from the court
Absent class members: Doesn't require that each class member have minimum contacts with the forum state, but the forum state must have sufficient interests in the claims to assert its state law to all claims
Subject matter jurisdiction: - Diversity - don't look at the citizenship of absentee class members, only look at named class representatives

- AIC - (Zahn) each class member must be able to independently satisfy the AIC
- 1367(b) - doesn't speak to the issue
Settlements of class actions: Requires court approval of any settlement
- before approval, notice about pendancy of settlement is required
- fairness hearing
Attorney's Fees: - Court may award reasonable attorney's fees
- Class counsel must make a motion for attorney's fees
- Court may require a hearing
- Court must make a finding of fact and state conclusions as to why a particular amount of fees goes to the attorney
- Many times in class action for damages, settlement will provide provide for common fund and attorney's fees get taken from the top
Two ways of computing fees: 1. Percentage of recovery (like contingency fees) - % of what is in the common fund
- usually around 25%

2. Load star method
- calculate the number of attorney hours put into the case multiplied by the counsel's hourly rate (average billing rate)
Meet and confer: Counsel are to meet and confer as soon as practicable after the suit is filed

Allows parties to discuss the nature and basis of their claim and defenses, and specify material that should be included in the prediscovery disclosures.

Must be completed before formal discovery is undertaken
Three stage process of discovery: 1. Initial (required) disclosures
- parties don't need to request this information

2. Formal discovery
- parties can request information from each other that is relevant to their claim or defense
- don't need court (only gets involved if there is a discovery dispute)

3. Subject matter discovery
- can get information relevant to subject matter of the lawsuit
- party making a motion to the court to seek SM discovery must make a showing of good cause(significant reason)
- broader than formal discovery
Rule 26(b)(1): A party may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party so long as the request cannot be obtained from a more convenient, less burdensome source
"Relevance": 1. Information sought must be material

2. Information must have probative value
Information sought must be material: Is information important to the disputed issue?
- look at pleadings and determine substantive law

Non-substantive component of materiality
- may also relate to witness credibility
Information must have probative value: Does the information sought make an allegation more likely or less likely?
- low threshold - does not need to be significantly more or less likely
Rule 26(a)(1): Required disclosures
Must disclose...: 1. Information about witnesses if they are being used to support claim or defense (unless solely for impeachment)

2. Documents and tanbible things that are in possession/control of the party

3. Computation of damages

4. Insurance policies
Privilege: Exception to the rule that all relevant matter is discoverable

Blocks information from a particular source, not meant to block underlying information

Can be waived
Attorney/client privilege (elements): - Communication
- Confidentially made
- From or to attorney/from or to client
- Communication must be made for a legitimate purpose
- No waiver
Who claims the privilege?: Attorney on behalf of his client
3-Step process in determining whether information can be handed over: 1. Is the information you are asking for relevant?
- materiality
- probative value

2.Is the information privileged?

3. Is the information work-product?
Rule 26(b)(3): Work Product
Is work product a privilege?: No
Questions to ask: 1. Is the information work product at all?

2. If so, can work-product be overcome such that requesting party can have access to it?
Work product (elements): 1. Applies only to documents or tangible things

2. Materials have to be obtained or prepared by an adversary's counsel with an eye towards litigation
2 Categories of work product: 1. Opinion work-product
2. Ordinary work-product
Opinion work-product: Absolutely immune from discovery - cannot be overcome

E.g. mental impressions, conclusions, opinions, legal theories, etc.
Ordinary work-product can be overcome if...: 1. Party seeking discovery has substantial need for the material to prepare for their case (must be essential to their case)

2. Party is unable, without undue hardship, to obtain the substantial equivalent of the material by other means
Hickman v. Work product: Hickman
- protects work of lawyers, assistants, and perhaps experts hired at their discretion
- not limited to documents and tangible items
- e.g. depositions

Work product
- broader
- also includes trial preparation by party's "consultant, surety, indomnitor, insurer, or agent"
- more limited in protecting only "documents and tangible things"
Depositions: An examination of a witness under oath in the presence of a court reporter
Do parties have a right to be represented by counsel during depositions?: Yes
Can counsel examine and cross-examine witnesses?: Yes
Numerical cap: Rule 30 imposes a 10 deposition limit

Each witness can only be deposed once

depositions are limited to one 7-hour day
Corporations and depositions: Corporation must designate the appropriate witness, and the corporation is bound by the deponent's answers
Distance: Deposition must be within 100 miles of where the witness resides, is employed, or transacts business
Can depositions be oral or written?: Yes
When can a deposition be used at trial?: May be admitted at trial for impeachment purposes, or to prove facts testified to at deposition if deponent is "unavailable" at trial
Interrogatories: Written questions from one party to another party requiring written responses
Can interrogatories be addressed to non-parties?: No
- distinguished from depositions which can be from a non-party witness
How much time does a party have to answer or object to the interrogatories?: Within 30 days after service
Requests for admission: Imposes a duty on the party served to acknowledge the existence of facts that are not in doubt and should not be necessary to prove at trial
Subject of the request: 1. Facts or application of law to facts

2. Conclusions of law
Can a party refuse to answer on grounds of self-incrimination?: Yes
If a party fails to respond to a request for admission...: ...the matter will be deemed admitted
Requests for inspection of documents and other things: Material discoverable:
- documents, photographs, maps, records, and correspondence (including computerized information)
Scope: May include testing and sampling of materials and may involve entry onto property of party, or access to party's computer system
Can general statements requesting info be made?: Yes
E.g. "All documents that relate or refer to meeting on Jan. 1, 2000", rather than specifying individual items
Medical examinations (conditions to be met): 1. Condition that is the subject of the exam is in issue, AND
2. The court determines that there is good cause for the exam
If examinee requests a copy of the examiner's report...: ...he/she waives the doctor/patient privilege with respect to any previous examinations of the same condition by his own physician
Protective orders (court should grant if): 1. The information is confidential, AND
2. Disclosure will likely cause a specific harm
Appropriate grounds for a protective order include:: 1. Confidential information
2. Inconvenient place of exam
3. Unreasonable conduct of deposition
4. Unduly burdensome discovery
"Confidential information": E.g. trade secrets or other confidential research, development, or commercial transaction
Failure to disclose or to comply with discovery: Party seeking discovery must usually obtain an order compelling discovery before sanctions can be imposed
Exception (to previous card): If a party completely fails to file a response to a discovery request or to attend his properly noticed deposition, discovery sanctions can be sought immediately
Before filing a motion to compel discovery...: ...a party must attempt to meet and confer with the opposing party in an effort to secure compliance without a court action
Sanctions for failure to disclose: 1. Exclusion of evidence
2. Jury may be informed of counsel's failure to disclose
3. Court may order that matters pertinent to the discovery be taken as established in the favor of the party seeking discovery
4. Dismissal or default of the offending party, rendering judgment in favor of party seeking discovery
5. Contempt
- only appropriate where party or witness refuses to make disclosures in defiance of a prior court order
Situations in which a default can be taken:: 1. Where (D) fails to respond
- never appears at all, or
- (D) appears, but does not formally answer the complaint

2. When court sanctions (D)
Significance of default judgment: It is binding - and therefore may have claim preclusion impact
How does (P) obtain a default judgment?: 1. Entry of default by court clerk
2. Obtaining the default judgment
Entry of default by court clerk:: 1. (P) goes to court clerk and submits a formal request to enter the default

2. When clerk enters the default, it cuts off (D)'s right to appear

3. Entering of default is not a judgment in itself, and can't be enforced by (P) yet
What does (P) need in order to obtain entry of default by court clerk?: - Must go to clerk and submit formal request to enter the default

- Accompany request with affidavit or declaration indicating:
1. (D) has been served with summons or waived service
2. Time for responding has expired
3. And (D) has failed to file a response
Obtaining the default judgment:: Either
1. Get clerk to enter the default judgment, OR
2. Get the court to enter the default judgment
When can the clerk enter the default judgment?: Restrictions:
1. Can enter if claim against (D) is for a sum certain, or for a sum by which computatiion can be made certain

2. Only where (D) has not made an appearance

3. (D) is neither an incompetent or infant
Can the clerk enter the default and the default judgment at the same time?: Yes, as long as the (P) brings the formal request, supporting info, and entering of judgment all in one process
When does the court enter the default judgment?: In all other situations (where the clerk is limited)
How does the court enter the default judgment?: Typically through a prove-up hearing
- court takes evidence as to (P)'s damages
- if (D) has already appeared in the action, (D) must be given at least 3 days notice of the prove-up hearing
Can (D) file a motion to vacate the default judgment?: Yes
Procedure for setting aside a default judgment: For good cause:
- (D) was out of town, in the hospital, never saw the papers, etc.
Involuntary dismissal: Operates against the (P) - person bringing the claim
Types of involuntary dismissal: 1. Failure to prosecute
2. Sanction against the (P)
3. Other dismissals
- lack of jurisdiction, improper venue, failure to join a rule 19 party
Failure to prosecute: - Foot-dragging/procrastinating (P)

- both judge and (D) can bring this up

- considered an adjudication on the merits, and claim preclusion may apply
Difference between defaults and involuntary dismissals: Default
- against (D)
- only adversary (P) can raise the issue

Involuntary dismissals
- both (D) and judge can raise issue of whether (P)'s lawsuit can be dismissed
Voluntary dismissal: (P) of own volition decides to drop the lawsuit
Significance of voluntary dismissal: It is a dismissal without prejudice ((P) can re-file the lawsuit)
Exception to (P) re-filing the lawsuit: 2 dismissal rule
- if it's the second time (P) has voluntarily dismissed, the second dismissal may act as an adjudication on the merits of any claims included in the dismissal
- precludes (P) from filing claim a 3rd time
When can (P) voluntarily dismiss a lawsuit?: 1. As a matter of right
2. By stipulation
3. By court order
"As a matter of right": Occurs at any time before (P) has been served with (D)'s answer, OR

Summary judgment has been filed by (D) but not received by (P)
"By stipulation": All parties agree that (P) can dismiss

Can occur at any time
"By court order": (P) can make a motion to the court to voluntarily dismiss

Court has wide discretion in determining whether to allow (P) to do so
Equipoise: Where 2 equal inferences exist to prove a fact, but only one of which can establish liability
- there is insufficient evidence to support a verdict
Statistical probability: Evidence based ONLY on statistical probability has not been accepted by courts in most cases
Exception to statistical probability: When the only proof available is statistical proof - no other methods are available
Burden of pleading: Whoever has the burden of the pleading also has the burden of production and persuasion

- (P) has burden of pleading facts of her case
- (D) has burden of pleading affirmative defenses
Burden of production: If party bears burden of production, bears the burden of producing evidence in the first place
- (P) has burden of producing evidence that makes up elements of her claim
- (D) has burden of producing elements of affirmative defense
Burden of persuasion: Defines the extent to which a trier of fact must be convinced of some proposition in order to render a verdict for the party who bears it
Does it matter who bears the burden of persuasion?: No
- UNLESS the evidence is in equipoise
Motion for Judgment as a Matter of Law (directed verdict) - JMOL: Based on one party failing the burden of production

No rational trier of fact could find for non-moving party, so there is no reason to give it to the jury
When is the JMOL made?: Either:
1. At the close of (P)'s case, OR
2. At the close of all evidence - (P) and (D) have both rested - and before the case goes to the jury
Renewed Motion for Judgment as a Matter of Law (judgment notwithstanding the verdict): Made after the verdict has been reached

Asks court to reverse the verdict as a matter of law
What is usually made concurrently with RMJMOL?: Motion for new trial
Prerequisites for RMJMOL: 1. Must have made motion for JMOL after close of ALL evidence

- most make the motion for JMOL at the end of all evidence in order to preserve the right to request RMJMOL
Standard for RMJMOL: Same as for JMOL
What can court/judge NOT do?: - Waive evidence
- Make credibility determinations
Can RMJMOL be appealed?: Yes, it is a final judgment that can be appealed
Motion for a New Trial: There is a verdict and the losing party wants a new trial

- the loser DOES NOT become the winner, case just starts over from scratch
Who can make the Motion for New Trial?: 1. Court can order a new trial on it's own initiative

2. The party
On what grounds can the court order a new trial?: 1. Flawed procedure (garbage in)

2. Flawed verdict (garbage out)
Flawed procedure: Must be prejudiced

E.g. evidentiary issues that shouldn't have been let in affected the verdict; juror misbehavior; incorrect jury instructions
Flawed verdict: Jury reaches a verdict that court finds incorrect

A new trial is necessary in order to prevent injustice
What analysis used to determine flawed verdict?: The verdict is against "the great weight of the evidence"
Can the judge substitute his own judgment for that of the jury?: No
Does Motion for New Trial need to be filed at the same time as RMJMOL?: Yes
Conditonal New Trial: Jury awards what appears to be excessive or inadequate damages
Remittitur: (P) appears to be getting too much

Court can order a conditional new trial unless the (P) agrees to accept reduced damages - (P) gets the choice
What is the test for remittitur?: Whether the jury award shocks the conscience
Additur: Damages award appears to be inadequate

Court can order a conditional new trial unless (D) agrees to pay a larger award of damages
Lawyer's Duties: 1. Duty to investigate
- (P)'s attorney has duty to investigate legitimacy of a claim before filing/signing a pleading
2. Duty to mitigate
- If (P) is suing for lawyer's fees, he has duty to mitigate by attempting to dismiss the case early on
Requirements for Sanctions: 1. (P) attempts to bring a frivolous suit, OR
2. (P) brings insubstantial claims to court
Signature: Lawyer respresenting the party has to sign every pleading or legal motion and any other paper filed with the court
Signature signifies:: 1. Reasonable factual investigation
2. Competent level of legal research
Representations to the court: Before a party files anything with the court, they should "STOP, THINK, INVESTIGATE, AND RESEARCH"
Sanctions: If representation to the court subdivision has been violated, court may impose an appropriate sanction upon attorneys or parties that have violated the subdivision or are responsible for the violation
Types of sanctions: Monetary
- exception: monetary sanctions will not be awarded against a represented party for a violation of Rule 11(b)(2)

Non-monetary
- reprimand
- censure
- issuing an admonition
- striking the offending paper
- requiring participation in seminars or other educational programs
Purpose of sanctions: Deterrence of future misconduct
How are sanctions initiated?: By motion
Sanction process: 1. Service of Rule 11 motion on the opposing party
2. Opposing party has a "safe harbor provision"
3. If appropriate corrections are made witin the time limit, then no ground for making a rule 11 motion with the court - the problem has been fixed
4. If no corrections have been made, the party seeking sanction will fle a rule 11 motion with the court
"Safe Harbor" provision: Allows opposing party to rectify the error within 21 days of service of the motion.
Rule 11 sanctions and discovery: Sanctions are not available for discovery abuses

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Number of cards 142