civpro moscato fall 2023

civil procedure goals and values

1. fairness (due process)
2. accuracy
3. efficiency (judicial economy)
appellate review)
4. predictability
5. impartiality (adversarial system,
6. finality

Rule 11(b)

1. reasonable inquiry under the circumstances
2. legal contentions warranted by existing law or nonfrivolous argument for expansion
3. factual contentions have or are likely to have evidentiary support
4. denials are warranted on evidence or reasonably based on belief

Rule 11(b) reasonable factual inquiry

1. surrounding circumstances
2. objectively reasonable
3. time?
4. external verification

Rule 11(b) reasonable legal inquiry

1. plain and elementary principles
2. standard research

Rule 11(b) evidentiary support

1. notice pleading is not a license to make claims without any factual basis
2. discovery is not a fishing expedition

Rule 11(c)

if the court determines Rule 11(b) has been violated, the court may impose an appropriate sanction, limited to what suffices to deter repetition

Rule 11(c) policy purposes

1. to prevent abuse
2. not an automatic penalty for losing party
3. not wholesale fee shifting
4. does not curtail creativity and vitality (duty of zealous representation)

O'Rourke rule

Would a reasonable attorney admitted to practice in this jurisdiction file such a document?

Rule 8(a)(2)

a pleading must contain a short and plain statement showing entitlement to relief
(plausibility standard)

Rule 8(a)(2) policy purpose

1. plausibility
2. provides fair notice to D of the grounds upon which P's claim rests

Twiqbal test

1. identify and strike conclusions (threadbare recitals of the elements, naked assertions devoid of further factual enhancement)
2. remaining factual allegations are entitled to the presumption of truth (not probability but more than a sheer possibility) (pleadings make P's desired inference plausible)
3. plausibility is context specific (obvious alternative explanations)

Rule 9(b)

a party must state with particularity the circumstances constituting fraud or mistake.
w/w/w/w/h
(particularity standard)

Rule 9(b) policy purposes

1. protect reputations
2. deter frivolous suits
3. acknowledge D's incentive to quickly settle
4. assume P has equal access to evidence of misrepresentation

PSLRA

1. the complaint shall state with particularity the circumstances constituting fraud
2. scienter must be alleged
3. allegations give rise to strong inference (super-heightened pleadings standard)

PSLRA "strong inference"

at least as compelling as any opposing inference

Rule 12(a)

1. D must serve an answer within 21d of service of process
2. if the court denies a motion, D must serve a responsive pleading within 14d of notice of the court's action

Rule 12(b)(6)

motion to dismiss for failure to state a claim
1. no legally enforceable right was violated
2. pleading was factually insufficient to meet plausibility standard

Rule 8(b)

1. responsive pleadings must include short and plain statement of defenses to each claim
2. fairly respond to substance
3. general denial or specific denial
4. if D is lacking knowledge or information they must so state, effectively a denial

Crompton rule (Rule 8(c))

Answers are subject to requirements of honesty and candor in pleadings

Rule 15(a)(1)

a party may amend its pleadings once as a matter of course within
A) 21 days after serving it
B) 21 days after service of a responsive pleading or motion under Rule 12(b), (e), or (f)

Rule 15(a)(2)

1. a party may amend its pleading with OP's written consent or with leave of the court
2. leave is given freely when justice so requires
3. Foman factors

Foman factors

1. Prejudice - due process
2. Undue delay -
3. Repeated failure to cure deficient pleadings -
4. Futility - time barred, no recognized legal theory, no plausible claim
5. Bad faith - changing procedural posture or requiring OP to repeat work

Rule 15(a)(2) policy purposes

unlikely that a defective pleading can be determinative of P's entitlement to relief

Rule 15(c)(1)(B)

same CTO
1. close relationship (time, general character of facts)
2. same injuries
3. same evidence, same witnesses

Statute of Limitations policy purposes

1. finality
2. timely notice allows for preservation of evidence

Relation Back policy purposes

1. notice to D must be satisfied
2. D is assumed not prejudiced if his attention was timely directed to the grounds on which the claim rests

Rule 15(c)(1)(C)

changing/naming a new party
1. same CTO?
2. within 90d (4)m period, D had notice?
3. D knew or should have known he was the intended target?
4. but for P's mistake?

Rule 4(m)

If a D is not served within 90 days of filing the complaint, the court must dismiss without prejudice against D

Rule 8(c) affirmative defenses

D provides new facts amounting to a legal excuse or justification without negating an element of P's claim

Rule 8(c) negative defenses

D seeks to disprove an element of P's claim

28 USC § 1332 Diversity Jurisdiction

1. amount in controversey > $75,000
2. dispute between citizens of different states (or where one party is a citizen of a foreign state)

Domicile

the place of one's true, fixed, permanent home.
the place where one returns after they have been away.
1. property ownership
2. taxpayer?
3. community (church, organizations) membership
4. employment

28 USC §1441(a) Removal Jurisdiction

any civil action brought in a state court where a DC has original jurisdiction may be removed by D to the DC for the district embracing the place where such an action is pending

28 USC §1441(b)(2) Exception to Removal Jurisdiction

if an action is removable to a federal court solely on the basis of diversity jurisdiction, the suit may not be removed if any of the Defendants is a citizen of the state in which the action is brought

28 USC §1331 Federal Question Jurisdiction

DCs have original jurisdiction over civil actions arising under the constitution or laws of the US.

Well-Pleaded Complaint rule

1. a federal right of action must appear on the face of a well-pleaded complaint
2. Fed Q Jx is appropriate only if the source of P's enforceable legal right is federal law
3. anticipated defenses don't count

§1331 Fed Q policy purposes

1. uniform interpretation of federal law
2. expertise of federal judges
3. avoid state court hostility to federal law

28 USC §1367(a) Supplemental Jurisdiction

1. if DC has original jurisdiction over at least one claim
2. so related
3. same case or controversy - same operative nucleus of fact

Personal Jurisdiction policy purposes

1. Tenth Amendment - powers not delegated to the US by the Constitution are reserved to the states
2. Fourteenth Amendment - nor shall any state deprive any person of...due process
3. interstate federalism
4. states' sovereignty interest

Classical Power Approach

1. physical presence at service
2. citizenship (domicile or incorporation)
3. consent or waiver

Minimum Contacts Test

1. DC may have jx over a D if they have had minimum contacts with the forum state
2. does not offend traditional notions of fair play and substantial justice

"purposeful availment"

1. sufficiently purposeful that D can reasonably anticipate being haled into court there
2. more than a mere likelihood
3. more than unilateral activity
4. efforts to serve, directly or indirectly, the market of that state
5. prior negotiations, continuing obligations, future consequences
6. reasonable expectation

"otherwise reasonable" MinCtx

1. D v. P v. St.
2. D's burden of litigating in inconvenient forum
3. P's interest in convenient, effective relief
4. St's interest in adjudication
5. other state with overriding interests
6. efficient resolution
7. furtherance of fundamental substantive social policies

Claim Preclusion

1. final judgment on the merits
2. same CTO (convenient trial unit - related in time, space, origin, motivation)
3. same opposing parties

Claim Preclusion exceptions

1. new material facts (eg latent illness) separate transaction
2. new party, separate rights (due process)

Claim Preclusion policy purposes

1. judicial economy
2. burdensome expense
3. delay to P
4. vexatious litigation

Issue Preclusion

1. precise question (substantial overlap, same rule of law as S1, pretrial embrace of S2 matter in S1)
2. actually litigated (properly raised and submitted to the jury or SJ)
3. necessary (general vs. special verdict forms)
4. essential (critical support to S1 judgment)
5. party sought to be precluded is a repeat player

Alternative Determination exception

if P was negligent or D was not negligent, either might be sufficient to support the S1 judgment, so neither could be precluded.

Nonmutual Issue Preclusion

a party successful in prior litigation cannot invoke IP to take advantage of a favorable finding and use it against a new party (due process to bind a litigant w/o their day in court)

Nonmutual Defensive Issue Preclusion

1. not a party but may take advantage of a favorable ruling from S1 - if D lost once, a later P may invoke NDIP.
2. can't give a repeat party more than one opportunity to resolve the same issue by merely switching adversaries
3. efficiency risk as long as there are more defendants

Nonmutual Offensive Issue Preclusion

Parklane factors

1. wait and see?
2. unfair to D? (inconvenient venue, different procedural opportunities, no incentive to aggressively litigate)
3. prior inconsistent judgments?

Discovery policy purposes

1. fairness in adversarial system
2. disclosure of basic issues and facts
3. mutual knowledge of essential facts
4. preservation of evidence
5. prevent surprises
6. improve counsel to Cs, settlement, resolution without litigation

Rule 26(b)(1)

parties may obtain discovery over any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case

Attorney-Client privilege

1. confidential communications
2. between attorney and client, or their agents
3. made to obtain or provide legal advice
4. waivable only by C
5. absolute (forecloses assessment of how important the info is to the case)
6. underlying facts are not privileged

Work Product Privilege

1. materials produced in preparation for trial
2. atty's mental impressions, conclusions, opinions, legal theories, strategy
3. non-absolute, OP may show substantial need and undue hardship

Attorney-Client Privilege policy purposes

1. encourage full and frank communication
2. atty's advice/advocacy depends on C's full disclosure

Rule 26(b)(1) "Relevant"

1. tending to make any fact of consequence more or less probable
2. bearing on or reasonably leading to other info bearing on any party's claim or defense

Rule 26(B)(1) "Proportional"

1. Importance to parties, to public policy
2. Controversy $ amount
3. Access / Asymmetry of info
4. Resources of each party
5. Expense : Benefit ratio

Kozlowski v. Sears

compliance with RPD being costly or time consuming is not ordinarily sufficient to merit a protective order

Labrier v. State Farm

1. party resisting discovery has the burden of showing undue burden/expense
2. should establish P's alternative source
3. redacting sensitive info will suffice to protect privileged info

Rule 26(a)(1)

mandatory initial disclosures
1. name of each individual that the party may use to support its own claims or defenses
2. all documents, ESI, and description of tangible things in the party's possession that it may use to support its own claims or defenses
3. info re: calculation of damages
4. info re: insurance coverage

Rule 33

ROGS
1. no more than 25 without leave of the court
2. any matter within scope of 26(b)(1)

Rule 34

Requests for Production
a1. request to produce or permit inspection, testing, sampling, or copying of
A. documents, ESI
B. tangible things
2. permit entry onto land
b1A-C. must describe with reasonable particularity the item, forum, and form of production/inspection

Rule 36

Requests for Admission
1. A party may serve a written request to admit the truth of any matter within the scope of 26(b)(1)
2. if not admitted, the answer must deny it or state why the party cannot truthfully admit or deny, responding fairly to the substance of the matter

Rule 30

Oral Depositions
1. any person or entity
2. 10 max
3. 1 day, 7hr per person
4. under oath, non argumentative, non suggestive, objections noted on the record

Rule 56(a)

A. court shall grant summary judgment if the movant shows there is no genuine dispute of any material fact after close of discovery
B. predictive of evidence at trial. consider
1. deposition
2. written discovery (RFAs, ROGs)
3. documents
4. affidavits

Rule 56(a) policy purposes

some claims are not subject to 12(b)(6) dismissal, but they offer no material dispute for a fact finder (jury) to resolve

Rule 56(c)

1. must cite to particular parts of materials in the record
2. must show that materials cited do not establish the absence or presence of a genuine dispute
3. OP cannot provide admissible evidence to support
4. affidavits must be made on personal knowledge that would be admissible in evidence

"material fact"

1. might affect the outcome of the resolution
2. tending to prove or disprove a necessary element

"genuine dispute"

1. not considering credibility nor weight of ev
2. all reasonable inferences (given plausible alternatives) drawn in light most favorable to nonmovant
3. generalized evidence will not rebut credibility of specific evidence

no genuine dispute of material fact if...

1. nonmovant has no evidence
2. nonmovant has evidence but no reasonable jury would believe it
3. no reasonable jury could draw nonmovant's desired inferences

Adickes v. Kress

1. D may affirmatively produce evidence that disproves a material fact, negating an essential element of P's claim
2. foreclose the possibility that a reasonable jury could draw nonmovant's desired inference

Celotex v. Catrett

1. D may show that P failed to meet BOP on an essential element of their claim
2. affirmatively show the absence of evidence on the record
3. nonmovant may direct court's attention to ev that was ignored

Rule 50(a)

if there is no genuine dispute of material fact after a party rests case at trial, OP may MfJMOL
2. similar to Celotex "absence of evidence" showing nonmovant failed to meet BOP regardless of movant's evidence

Rule 50(b)

1. Renewed JMOL if there is no genuine dispute of material fact after both parties rest case before matter is submitted to the jury
2. must have MfJMOL before close of trial
3. similar to Adickes "affirmative disproof" showing movant's evidence is uncontroverted, foreclosing possibility that a reasonable jury could find for nonmovant.

Upjohn test

ACP applies to ee's outside control group when
1) Employee's communicate w/ counsel acting as counsel;
2) communications were within the scope of the employee's job duties; AND
3) the employees understood legal purpose of conversation (basic Upjohn warning)

Parklane Factors

1. P wait and see? (Should have joined?) 2. Unfair to D? (Appeal, evidence, forum) 3. Prior inconsistent judgments?

Final judgment rule

Generally, you can appeal only from final judgments. Ultimate decision by trail court of the merits of the entire case which leaves nothing for the court to do but enforce

Collateral Order Doctrine

1. Conclusive
2. Important
3. Separable
4. Unreviewable

28 USC 1292(a)(1)

Right of law to interlocutory appeal of orders granting or denying injunctions

28 USC 1292(b)

DC may certify an interlocutory appeal if
1. Controlling question of law
2. Substantial grounds for difference of opinion
3. Materially advance resolution
4. Ct.App. has discretion