CivPro - Vitiello

When can an amendment relate back? What’s the main case on point?

1. The law that provides the SOL also allows relation back
2. The amendment asserts a claim/defense arising out of the same conduct/transaction/occurrence as the original pleading; or
3. The amendment changes the party/naming of the D

Main case on point is Marsh. A claim raised in an amended complaint relates back to the date of the original complaint only if the new claim is derived from allegations originally pled.

What factors do we consider in determining the status of an Expert?

1. Manner in which consult took place
2. Nature/type/extent of info or material provided to expert for their review
3. Duration and intensity of consult relationship
4. Terms of the consult (payment, confidentiality, etc)

What are the primary two factors to consider for cost-shifting under Zubulake? Where are these also found in the FRCP?

1. Extent to which the request is specifically tailored to discover relevant information
2. Availability of such information from other sources
These are also the same a court would eval under 26(b)(2)(b)

What is the main takeaway from Anderson?

1. Rejects idea that non-moving party can overcome SJ by producing a "scintilla" of evidence in their favor
2. Instead, Party opposing SJ must produce "sufficient evidence from which ar reasonable jury could find in her favor"

What does Coble tell us about SJ?

If the moving party’s evidence does not fully discredit the non-moving party’s claims, then SJ may not be proper based on that alone.

What must a party do prior to filing a complaint or answer?

Reasonable investigation under Rule 11. Reasonability will depend on the circumstances

When is a heightened pleading standard specifically required?

Under Rule 9, required for claims of fraud or mistake. Requires particularity regarding the circumstances

What is the main takeaway from Dioguardi?

While this pro se complainant was "inartistic" in his pleading, court found that he had sufficiently stated a claim that, if true, would entitle him to relief

What is the general scope of discovery in the U.S.? What is the main theory backing it?

26(b)(1): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case
US supports a very liberal theory of discovery

What Rule governs the discovery of Experts?

26(b)(4)

How can a party obtain information if the responding party fails to answer or completely answer?

Rule 37 motion to compel

What happens if a party does not respond after an order to compel?

Sanctions, which could include: Contempt of court, Striking pleadings fully/partially, Dismissing action/rendering default judgment

What is Rule 26(g)? What can happen if a party violates it? Case on point?

Certification for discovery requests/responses/objections. Violation can result in sanctions. Fisons is the case on point, where D purposefully held back smoking gun letters demonstrating knowledge their medication was toxic

What is a material fact?

One that tends to prove or disprove an element of a claim or defense

What are the 3 cases in the SJ Trilogy?

Celotex, Matushita, Anderson

What cases are in the BTP SJ trilogy?

Lundeen, Cross, Dyer

What is the main takeaway from Cross?

Summary judgment may not be granted if the case contains disputed questions of fact, and D's cross-ex was necessary to break down P's various trip expenses

What is the main takeaway from International Shoe?

Minimum contacts between D and the state make application of personal jurisdiction proper.
Minimum contacts requires:
1. Contact must be systematic and continuous
2. OR, single or occasional acts in a state could be enough, depending on nature and circumstances

What does Rule 1 provide for?

"to secure the just, speedy, and inexpensive determination of every action and proceeding"

What is required of a complaint under 8(a)(2)

A short and plain statement of the claim showing that the pleader is entitled to relief

What are the two types of sufficiency that a complaint must meet?

1. Legal Sufficiency: Claim cognizable by law
2. Factual Sufficiency: Enough facts that, if true, would result in recovery

What is the main takeaway from Conley?

Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief

What is the main takeaway from Twombly?

Heightened fact pleadings of specifics are not required, but only enough facts to state a claim to relief that is plausible on its face

What is the two step test established by Iqbal?

1. Distinguish facts from legal conclusions, then
2. Based on the facts, use their "judicial experience and common sense" to evaluate whether there is a plausible claim for relief

What is the main takeaway from Erickson?

1. Re-emphasizes that Federal Rules establish a notice-pleading focus
2. Specific facts are not necessary; the 8(a)(2) statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."

What is the main takeaway from Swanson?

1. ""plausibility"" means that P must provide enough detail to present a coherent claim
2. It's not necessary to stack up opposing inferences side by side and determine which is more compelling. They must only identify if P's central assertion is plausible

What is the primary distinguishing factor between Twiqbal and Swanson/Erickson?

Look to the case complexity
-More complex cases = more notice and facts needed = follow Twiqbal
-More straightforward cases = less notice and fewer facts needed = follow Swanson/Erickson

What are Defendant's general options in response to a complaint?

File an Answer and/or File a Motion

What happens if D fails to Answer timely? Why doesn't policy like this result?

Failure to respond in timely manner can lead to Default. Issue though is that we prefer to decide cases on merits rather than technicalities

What are D's options when responding to each allegation within a Complaint?

1. Admit
2. Deny
3. Assert lack of sufficient information

What happens if D fails to respond to an allegation in a complaint?

It is treated as an admission

What must be raised by a D in an Answer?

Any Affirmative Defenses. Otherwise, may be waived

Under what circumstances can a party amend their pleading before trial?

1. One free amendment within 21 days after their own pleading, or 21 days after responsive pleading/motion
2. Or, at any other time with party's written consent or court's leave. Court should freely give leave when justice so requires.

Under what circumstances can a pleading be amended during/after trial?

1. Court can permit pleadings to be amended if evidence at trial is objected to for not being within the issues raised in the pleadings
2. If tried by consent, an issue not listed in the pleadings is treated as if they were raised in the pleadings

What rule governs amendments to pleadings?

Rule 15

What are the requirements for an amendment changing the party/naming of the D?

1. Still has to relate to same claim/defense per 15(c)(1)(b)
2. And the party being joined received notice of the action such that it won't be prejudiced, and
3. Knew or should have known action would be brought against it

What is the historical trajectory of Rule 11 prior to today's version?

1. Original Rule 11: Bar for sanctions was quite high, so very few instances of this being invoked
2. 1983 Version: Required certification about various specifics. Chilling affect, also tons of satellite litigation

What is the current version of Rule 11?

1. Pleadings and motions to be signed by attorneys
2. Confirms doc submitted for improper purpose, harassment, delay, costs
3. Confirms reasonable inquiry and that contentions are not frivolous
4. Asserts contentions have evidenciary support or likely will

What happens when a party violates Rule 11? What case speaks to this issue?

Court can impose sanctions, including monetary sanctions. Best illustrated by Mata v Avianca (ChatGPT case)

What are the three types of disclosures under 26(a) and what do they require?

1. Initial Disclosures: Anything that the responding party would use to support its claim/defenses, including names of people with discoverable info.
2. Expert Witness Disclosures: For experts testifying at trial
3. Pre-Trial Disclosures: Disclosing what evidence will be submitted, what witnesses will be called

What are the 4 Types of Experts and what is their discovery status?

1. Those expected to be used at trial (discoverable under 26(a)
2. Those retained/specially employed in anticipation/preparation of trial but not expected to be used at trial (discoverable only on a showing of exceptional circumstances)
3. Those informally consulted in preparation for trial but not retained (no discovery for names or views of these experts) (Addressed by Ager)
4. Those whose info was not acquired in prep for trial. Included reg employees of a party not specially employed on the case as well as experts who were actors or views of the occurrences that gave rise to suit. (Discoverable as any ordinary witness)

What are the main Discovery Devices available?

1. Depositions
2. Interrogatories
3. Requests for Production
4. Medical Examinations
5. Requests for Admission

What are the main objections to Interrogatories or Depo quesitons?

1. Lack of relevance
2. Privilege

When may a Medical Examination take place?

When case involves health, physical, or mental condition of party in controversy, could be ordered to submit to an examination by a suitably licensed or certified examiner.

What happens if the examined party requests copy of the report from the exam?

Opens up discovery to the other side for past medical records related to the condition

How is Relevance defined? What is the main case on point and its rule?

An item of evidence is relevant if it tends to prove or disprove an element of a claim or defense
United Oil Co is the primary case on point: requesting party must demonstrate a nexus b/w info sought and a claim or defense. Objecting party then must prove why info sought is irrelevant, unduly burdensome, etc.

If requested information is deemed relevant, must it automatically be provided?

No, it can still be protected under 26(c)

Define Work-Product. Is it a privilege?

Def: Materials obtained/created in preparation for litigation. It is not a privilege

When might Work-Product be discoverable? What is the main case on point?

Not discoverable unless the requesting party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Hickman is the primary case on point; requesting party must make a special showing of undue prejudice

What is cost-shifting and when might it occur?

Judge can order P to pay for a portion (or all) of production of discovery in certain circumstances under 26(c). The producing party bears the burden of demonstrating good cause for a cost-shifting order.

What are some examples of privileges? What is it that they protect?

Attorney-client, priest-penitent, physician-patient. Only the communication is protected, not necessarily the content. This protection is absolute

What must a party do when asserting a privilege?

They must 1. expressly make the claim, and 2. Describe the nature of the of the documents/communications in a manner that, without revealing the info itself, will allow the other parties to assess the claim

How can a party prevent certain material/information from being discovered?

Rule 26(c) protective order. Can be issued to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense

What rule governs Summary Judgment? When may the court grant it?

Rule 56. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law

What happen to the burden of proof/production when a party moves for Summary Judgment?

Burden then shifts to the non-moving party to put forth evidence/demonstrate why SJ is not proper

What is the main takeaway from Celotex?

""Put up or shut up"
Ds may move for SJ when discovery demonstrates that P has no proof with respect to an element of her claim. Reflected in Rule 56(c), which allows SJ when "a fact cannot be...supported"

What is the main takeaway from Matsushita?

"If the factual context renders the respondents' claim implausible...[P] must come forward with more persuasive evidence to support their claim than would otherwise be necessary"

What is the main takeaway from Lundeen?

P cannot survive summary judgment merely on an assertion of the right to cross-examine at trial

What is the main takeaway from Dyer?

P cannot survive summary judgment when the only potential evidence in favor of his slander claim was the potential demeanor of the witnesses when they testified at trial

How do the Rules treat the pleading of alternative theories?

Rule 8(d)(3) allows pleader to state as many separate claims/defenses, regardless of consistency. However, Rule 11(b)(3) requires factual contentions to have evidentiary support

What are supplemental pleadings and what do they entail?

Under Rule 15(d). Allowed only with permission of the court. These amendments set forth additional events occurring AFTER filing the pleading.

What type of evidence can a court consider for Summary Judgment?

Only written evidence. There is no oral witness testimony for SJ like that of a trial

What constitutes a “genuine dispute” of material facts in considering SJ?

A dispute would not be genuine if one side has so little evidence that no reasonable jury could find for that side

How should a court typically view the non-moving party’s allegations when considering a SJ motion?

The non-moving party should receive the benefit of “all reasonable doubts” as to whether there is a genuine dispute of material facts. Though if the claim is implausible (Matsushita), then P must produce more persuasive evidence than the typical standard

What did the Scott v. Harris case tell us about SJ?

In deciding a summary judgment motion, all facts are viewed in the light most favorable to the non-moving party unless the record blatantly contradicts their side