Civil Procedure II Flashcards

Question

PHILLIPS PETROLEUM V SHUTTS APPLICATION

Answer 1

In this case, we hold that a forum state may exercise jurisdiction over the claim of an absent class action P, even though that P may not possess the minimum contacts with the forum which would support personal jurisdiction over a D. The P must receive notice plus an opportunity to be heard and to participate in the litigation. The notice must be practicable and reasonably calculated under the circumstances Additionally, due process requires at a minimum that an absent P be provided with an opportunity to remove himself from the class We hold that the protection afforded the P class members by the Kansas statute satisfies the Due Process Clause. The interests of the absent Ps are sufficiently protected by the forum state when those Ps are provided with a requests for exclusion that can be returned within a reasonable time to the court

Answer 2

The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. In order to justify a departure from that rule, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members. Rule 23(a) ensures that the named Ps are appropriate representatives of the class whose claims they wish to litigate. four requirements are Numerosity, Commonality, Typicality, and Adequate Representation.

Answer 3

The crux of this case is commonality, the rule requiring a P to show that there are questions of law or fact common to the class. Commonality requires the P to demonstrate that the class members have suffered the same injury. The class's claims must depend upon a common contention, for example all of the female walmart employees must have been subject to a discriminatory bias by the same supervisor A class cannot be certified on the premise that Walmart will not be entitled to litigate its statutory defense to individual claims. And because the necessity of that litigation will prevent backpay from being incidental to the classwide injunction, respondents' class cannot be certified even assuming that the incidental monetary relief can be awarded to a 23(b)(2) class.

Answer 4

Rule 12 describes 3 motions that D can file in lieu of an answer 1. A motion to dismiss 2. A motion to strike a more definite statement of the complaint (R 12(b)) • Lists 7 defenses that can be the basis for a motion to dismiss • Raise these defenses by making a motion or by pleading the defenses in the answer • Only procedural defenses are relevant 3. A motion to strike redundant immaterial or scandalous matter (R 12 (c)) • Rule 12b motion to dismiss is decided on the complaint (considers sufficiency of complaint against Rule 8 standards set and Twombly/Iqbal plausibility) • Dismissal under Iqbal: 1. Courts may ignore legal conclusions (unless sufficient facts are pled to support them) 2. Courts assume truth of well-pled factual allegations and applies judicial experience and common sense to determine if pleader stated plausible claim for relief o Must plead facts more consistent with liability than nonliability o Requires more than possibility

Answer 5

• Rule 12b motion to dismiss is decided on the complaint (considers sufficiency of complaint against Rule 8 standards set and Twombly/Iqbal plausibility) • Dismissal under Iqbal: 1. Courts may ignore legal conclusions (unless sufficient facts are pled to support them) 2. Courts assume truth of well-pled factual allegations and applies judicial experience and common sense to determine if pleader stated plausible claim for relief o Must plead facts more consistent with liability than nonliability o Requires more than possibility

Answer 6

• FRCP12(b)(6) de novo and, in doing so, we “view the pleadings in the light most favorable to, and draw all reasonable inference in favor of, the non-moving party • Factual allegations must “state a claim for relief that is plausible on its face,” which requires pleading facts that “permit the court to infer more than the mere possibility of misconduct.”

Answer 7

We hold that the district court neither erred in granting defendants' motions to dismiss nor abused its discretion in denying Betts leave to replead. Affirmed. Holding for Defendants • No changes to the complaint would undermine the existence of arguable probable cause for Officers Rodriguez and Doe to arrest Betts. Additionally, Betts has identified no facts that, if alleged, would bolster his allegations that the officers coached Shearman to make false accusations. Likewise, Betts has identified no facts that would sufficiently allege that Shearman should be treated • The original accusation without the possibility of any police complicity was sufficient to sustain the arrest, thereby undermining the claim that it was the police whose false accusation denied Betts a fair trial. Moreover, it is not plausible that, without more, a complaining witness who had originally conceived of false accusations on her own accord also required “coaching” in making substantially the same accusations again. • Betts’ version of events did not suggest that officers did not have probable cause to arrest him (therefore no factual plausibility) • No legal plausibility for claims against the wife Betts will not survive a motion of summary judgment in the case against his wife in which she called the police and falsely accused him of assaulting her, because his story of police having no probable cause to arrest had no factual plausibility and there was no legal plausibility in his complaint for the claims against his wife

Answer 8

• Judgment against D based on failure to respond when obliged to do so o Typically entered for failure to file Answer if obligated to do so o Technically fault rather than judgment on the merits • Must be entered by clerk • P may seek default jud. On entry of default • If claim is for a sum certain (debt, liquidated damages, etc.) clerk can enter judgment for amount and costs • For other claims, party applies to court for def. jud. On liability. Damages may be assessed or contested later

Answer 9

• A nonsuit (dismiss w/o prejudice) ONCE • May be done for many reasons o P thinks suit cannot be won on the facts or law (or not at this time) and does not want to risk further costs o P and D settle the case • Procedure: o File notice pre Answer or by agreement of parties o Must seek court permission after Answer if D does not stipulate to a voluntary dismissal

Answer 10

Converse of a default judgment • Dismisses Ps case over his/her objection for failure to fulfill an obligation of the litigation process (in FRCP, court order, etc.) • Usually occurs only after repeated and extreme delays or obstructive behavior by P during litigation

Answer 11

Party D may offer in writing to agree to judgment on specified terms • If P accepts, in writing, within 14 days, may file offer and acceptance and clerk enters judgment based on terms of the offer • If P rejects, cost consequences to P o Unaccepted offer admissible in court proceeding o If eventual judgment is not more favorable than rejected offer, P must pay D’s costs incurred after the offer was made

Answer 12

The information parties can obtain and the techniques by which the parties can obtain it • Discovery is the required exchange or production of information, documents, evidence relevant to a pending case • Purpose: to enable parties to resolve disputes on the merits • Discovery supports the adversary system and due process by allowing parties to determine and present their best available evidence and it provides notice of evidence that opponents will offer, and permits a party to expose false or misleading evidence which would otherwise be surprising at trial

Answer 13

1. Method: what specific devices are available to obtain info. 2. Scope: what type of info. can and cannot be obtained 3. Enforcement: what happens if persons refuse to provide requested info. or ask for info. they are not entitled to

Answer 14

FRCP 30 and 31: depositions (oral and written) FRCP 33: Interrogatories FRCP 34: Production of documents and things FRCP 35: Physical examinations FRCP 45: non-party subpoenas FRCP 26(a) required disclosures

Answer 15

• Discovery can produce highly litigated and very expensive disputes • If discovery obligations are not met, parties or attorneys may be subject to costs/sanctions separate from the underlying action

Answer 16

attorneys must first confer in good faith about whether settlement possible, making initial disclosures, preserving discoverable info., and developing a discovery plan o No discovery before conference

Answer 17

parties may obtain discovery regarding any o NON PRIVLEGED MATTER o RELEVANT TO ANY PARTY’S CLAIM OR DEFENSE AND o PROPORTIONAL TO THE NEEDS OF THE CASE (proportionality = costs/benefit balancing analysis  PROPORTIONLITY FACTORS • Importance of the issues at stake • Parties relative access to relevant info. • Importance of discovery in resolving the issues • The amount in controversy (cost) • Parties’ resources (cost) • Whether the burden or expense of the proposed discovery outweighs is likely the benefit

Answer 18

required disclosures MUST be automatically made without request unless proceeding is exempt or otherwise ordered 1) initial disclosures 2) expert testimony if used 3) pre-trial disclosures

Answer 19

 Persons likely to have discoverable info. you may use to support claims or defenses (name and contact info. unless discoverable info. relates solely to impeachment  Documents and things in your possession you may use to support claims/defenses  Categories of damages claimed (ID and compute categories of damages and evidence on which computation is based  Any relevant insurance agreement

Answer 20

 Identity of expert may use at trial  Written expert report (usually mid to late in discovery period) with all expert opinion to be offered, basic and reasons for the opinion, data/info. considered, exhibits to be used, witness qualifications as expert, list of other cases testified as expert, and compensation to be paid

Answer 21

 What must be disclosed: witnesses (name and contact info for both may call and will call witnesses)  Witnesses to testify via deposition  Document or exhibits you will offer at trial (ID each by bates number) • Basic discovery limitations • Discovery Timing 26(d) • And other generally applicable rules to all discovery procedures

Answer 22

• Parties need not to provide discovery of ESI if not reasonably accessible due to undue burden or cost o Party withholding has burden to show ESI not reasonable accessible o Court may still order discovery if requester shows good cause, within general limits, and court may require cost sharing

Answer 23

• Destruction, alteration, or loss of evidence = spoliation (spoiled) • Duty to preserve evidence BEFORE discovery if litigation is anticipated • Not a smart move b/c legal and ethical ruled prohibit it and its usually unsuccessful b/c there is always another way to get evidence

Answer 24

• Discovery may be limited if: o Unreasonable and cumulative/duplicative o More easily obtained from other source that is less burdensome or expensive o Party seeking has had ample opportunity to discover already

Answer 25

• R30 – oral • R31 – written • Used to clarify document. gather unrehearsed testimony. And test witnesses Limits: must seek court permission if more than 10 depos and not agreed to by parties

Answer 26

• Federal Rule of Civil Procedure 26(b)(1) permits discovery into “any matter, not privileged, that is relevant to the claim or defense of any party.” Discoverable information is not limited to that which would be admissible at trial. Information is relevant for purposes of Rule 26 “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). However, a plaintiff is not necessarily entitled to all discovery that is relevant under Rule 26. A court can limit discovery if it determines, among other things, that the discovery is unreasonably cumulative or duplicative, obtainable from another source that is more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(2).

Answer 27

• The plaintiffs' motion seeks the following two categories of information: (1) discrimination complaints made against the defendant by non-clerical/non-administrative employees who worked at the same plant as the plaintiffs (i.e., the Chicago plant); and (2) personnel and disciplinary files of non-clerical/non-administrative employees who worked at the Chicago plant, the plaintiffs have limited their requests to: (i) the 1998–to–February 2002 time period; (ii) complaints by employees who worked at the same Chicago plant where the plaintiffs worked; and (iii) complaints of race and national origin discrimination–the same types of discrimination alleged in the plaintiffs' complaint • The plaintiffs claim that the defendant discriminated against them (i) when they were hired by assigning them to lower-paying entry-level positions, (ii) during their employment by enforcing disciplinary rules in a discriminatory manner, by passing them over for promotions in favor of less-qualified white employees, and by retaliating against them for filing complaints of discrimination; and (iii) at the end of their employment by terminating at least one plaintiff based on her race and by including a term in the severance agreement that disadvantaged minority employee • Accordingly, the Court orders the defendant to produce the personnel and disciplinary files of all non-clerical/non-administrative employees who worked at the defendant's Chicago plant between January 1, 1998 FOR EDUCATIONAL USE ONLY Page 4 Not Reported in F.Supp.2d, 2002 WL 1759828 (N.D.Ill.) (Cite as: 2002 WL 1759828 (N.D.Ill.)) © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. and February 28, 2002. However, the defendant may redact or remove the following information: unlisted addresses and telephone numbers, social security numbers, marital status, medical and health insurance information, criminal history, and credit information

Answer 28

District courts are entitled to broad discretion in managing pretrial discovery matters, including when ruling on the applicability of the work product doctrine. Rule 26(b)(1) entitles the Republic to all relevant, non-privileged information

Answer 29

• Because Chevron relied on Hinchee’s expert reports both in the Lago litigation and in the treaty arbitration, the Republic contended that Dr. Hinchee and his documents were relevant to the Treat arbitration, there is no dispute that Dr. Hinchee’s notes and email communications with non-attorneys, including other experts are relevant so these documents are discoverable unless Chevron and Hinchee can meet the burden of establishing that a privilege or the work product doctrine exempts these documents from discovery • It is undisputed that the documents at issue were prepared in anticipation of litigation or for trial, and that Hinchee and his colleagues prepared these documents as part of their work for Chevron. • Rule 26 (b)(3)(A) mentions a party or its representative including an attorney, consultant, surety, indemnitor, insurer, or agent, the word expert is noticeably absent. This silence speaks volumes • To the extent any attorney core opinion work product is embedded in the 1200 documents at issue here, they may be redacted, subject to providing a privilege log under rule 26 (b)(5) and submitting the documents for in camera review if requested by the Republic or ordered by the court. Any redaction beyond attorney core opinion work product is not allowed

Answer 30

• Used to determine physical or mental health of party • Limits: requires court permission

Answer 31

• Used to narrow issues in case (can be issues of fact or law), remove matters from dispute, and avoid issues of proof • Limits: None • If not responded to in 30 Days, deemed admitted

Answer 32

• Used to compel discovery from Non party : production of documents and things AND deposition testimony • Deponent may move to quash for good cause

Answer 33

• Matter protected by legal privilege is not discoverable under 26(b)(1) • Two types of privilege: (1) absolute privilege (complete privilege from production e.g attorney-client, 5th amendment (steffan v cheney) • (2) Conditional Privilege (privileged under most circumstances – trial preparation r 26(b)(3).

Answer 34

FRCP rules 26-37 restrict the pleadings to the task of general notice giving and invest the deposition-discovery process with a vital role in trial preparation • FRCP 26 (b): Limitations inevitable arise when it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass, or oppress the person subject to the inquiry

Answer 35

When Rule 26 and the other discovery rules were adopted, this court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries, and we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result. Holding for P. Affirmed. • Petitioner emphasizes the FRCP dep.-dis. Rules were designed to enable parties to discover the true factors and to compel their disclosure, wherever they may be found. And since the materials here were secured by Fortenbaugh from third persons rather than from his clients the materials are proper subjects for discovery under FRCP 26. Also that prohibiting discovery would give a corporate D a tremendous advantage in a suit by an individual P. • Court states, discovery is not a one way proposition. It is available in all types of cases at the behest of any party, individual or corporate, P or D. • The memoranda, statements, and mental impressions in issue fall outside the scope of the attorney client privilege and hence are not protected from discovery • Petitioner has sought discovery as of right of oral and written statements of witnesses but makes no suggestion that the tug owners were incomplete or dishonest in the framing of their answers. In addition, petitioner was free to examine the public testimony of the witnesses. • Forcing an attorney to repeat or rewrite all that witnesses has told him and to deliver that account to the adversary gives rise to grave dangers of inaccuracy and untrustworthiness • We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice

Answer 36

When Rule 26 and the other discovery rules were adopted, this court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries, and we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result. Holding for P. Affirmed. • Petitioner emphasizes the FRCP dep.-dis. Rules were designed to enable parties to discover the true factors and to compel their disclosure, wherever they may be found. And since the materials here were secured by Fortenbaugh from third persons rather than from his clients the materials are proper subjects for discovery under FRCP 26. Also that prohibiting discovery would give a corporate D a tremendous advantage in a suit by an individual P. • Court states, discovery is not a one way proposition. It is available in all types of cases at the behest of any party, individual or corporate, P or D. • The memoranda, statements, and mental impressions in issue fall outside the scope of the attorney client privilege and hence are not protected from discovery • Petitioner has sought discovery as of right of oral and written statements of witnesses but makes no suggestion that the tug owners were incomplete or dishonest in the framing of their answers. In addition, petitioner was free to examine the public testimony of the witnesses. • Forcing an attorney to repeat or rewrite all that witnesses has told him and to deliver that account to the adversary gives rise to grave dangers of inaccuracy and untrustworthiness • We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice

Answer 37

based on Hickman v Taylor • Documents/things “prepared in anticipation of litigation” = trial prep. • Trial prep materials not discoverable unless requester shows all 3 o Otherwise discoverable o Substantial need o Undue hardship to obtain elsewhere • If disclosure ordered, court must protect against disclosing mental impressions, conclusions, and legal theories of attorney

Answer 38

• If party withholds responsive discoverable material, claiming protection by any legally recognized privilege, party must nevertheless produce list/log of all responsive withheld material o Describing nature of document or thing withheld and o Expressly identifying claimed privilege for that document

Answer 39

Party may move the court to compel discovery: • If discovery not responded to or responded to improperly • Only after good faith attempt to resolve the dispute • May obtain costs of motion if granted or other sanctions under FRCP 37 (b)(c) or (d)

Answer 40

• Protective order can limit evidence produced, how it is produced, who may see it, or use to which it is put • Party from whom discovery sought may move for protective order limiting discover for good cause if: o Annoyance, embarrassment, oppression o Undue burden/cost o Release of trade secret or confidential research or business information

Answer 41

• Pretrial material (as trial) presumptively public • Party seeking protection bears burden to show good cause o Balancing test of public and private interests re: non-disclosure to public o Must show specific harm or prejudice to result from disclosure o Court may consider factors in 26(c) to decide if protective order necessary  Court has broad discretion here  26(c) factors are not limited

Answer 42

• Most frequent motion in federal practice  Either party can move R56 or court 56(f)  May decide all issues or only some o Purpose: to avoid trial where unnecessary due to lack of factual dispute or inability to establish evidence for a necessary element of a party’s case

Answer 43

To obtain SJ, movant must show: (1) no genuine dispute as to any material fact (2) movant is entitled to judgment as a matter of law 56(a) o Opponent must demonstrate real (actual) material (relevant to elements of claim) Factual dispute to overcome SJ and get to trial o Language and standard under rule 50(a) is identical to evidentiary evidence in 56(a) o A jury is not needed when there is no disagreement o CELOTEX case sets out the meaning of Rule 56 and Anderson, Harris, and cases are examples of how they can be used in practice

Answer 44

Where the 1st amendment mandates a clear and convincing standard, the trial judge in dispensing of a directed verdict motion should consider whether a reasonable factfinder could conclude, for example, that the P had shown actual malice with convincing clarity • Our holding that the clear and convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury • The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor • A Court ruling on a motion for summary judgment must be guided by the New York Times clear and convincing evidentiary standard in determining whether a genuine issue of actual malice exists, that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity. Because the court of appeals did not apply the correct standard in reviewing the District Court’s grant of summary judgment, we vacate its decision and remand the case for further proceedings consistent with the opinion.

Answer 45

A Celotex motion happens when the party who doesn’t have the burden of proof at trial moves for SJ based on the fact that they are attacking the party’s, with the burden of proof, pirma facie case, they are attacking one of the elements of the party who has the burden of proof case

Answer 46

Under FCRP 56, summary judgment is proper if the pleadings, dispositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. • Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial • The moving party is entitled to judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden

Answer 47

One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish that purpose • We find no express or implied requirement in rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim • The federal rules as a whole are designed to secure the just, speedy, and inexpensive determination of every action • Rule 56 must be construed with due regard, not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis. The judgment of the court of appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion

Answer 48

Courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion. Thus usually means adopting the Ps version of the facts.

Answer 49

The video tape shows respondent’s vehicle racing down two lane roads in the dead of night at shockingly fast speeds. We see it swerve around more than a dozen other cars, cross the double lines, and force traveling cars to the side of the road. We see it run multiple red lights and travel in the center lane chased by numerous police cars forced to engage in the same hazardous maneuvers to keep up • Respondent’s version of events was so utterly discredited by the record that no reasonable jury could have believed him. The court of appeals should not have relied on such visible fiction, it should have viewed the facts in the light depicted by the video • Judging the matter on that basis, we think it is quite clear that Deputy Scott did not violate the 4th amendment. The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise. Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment. Reversed. Holding for D

Answer 50

To avoid summary judgment, Williams was not required to adduce the most reasonable explanation for the accident, nor was she required to eliminate all other possible causes for her fall. She was only obligated to establish a reasonable probability that the accident was caused by KFC’s negligence

Answer 51

None of Williams’ excuses were contested, and her motion, without opposition, was granted • The issue of special use is waived here. The special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use, and is therefore required to maintain a portion of that property. KFC’s use of the sidewalk was not special, it was entirely routine use • For summary judgment purposes, Williams presented sufficient circumstantial evidence to render the probability that someone other than KFC was responsible for the grease sufficiently remote or technical in comparison to her explanation • The grease on her clothing, the statement by the police officer, the statements of the private investigator all point to grease being on the sidewalk. Additionally, the testimony of the KFC employee points to KFC being responsible for the existence of grease on the sidewalk • We conclude that Williams carried her burden of establishing that a reasonable factfinder could conclude that KFC was responsible for the grease on the sidewalk and that summary judgment was not warranted on the basis of the facts before the district court. Reversed. Holding for P.

Answer 52

Rule 56 (c) of FRCP provides for sum. Judg. Where the pleadings, dispositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law • Once the moving party has carried its burden, the responsibility then shifts to the nonmoving party to show that there is, in fact, a genuine issue of material fact o The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial

Answer 53

For the insurance issue: There is no genuine issue of fact regarding Bias’ status as a cocaine user because of the testimony of his former teammates and the Estate’s generalized evidence that Bias was not a drug user did not contradict the more specific testimony of the teammates. The estate provided passed drug tests, but these only show that Bias did not use drugs in the periods the tests were administered. • Bias would not have been insured anyways because insurance inquire about drug use before issuing a policy, and if Bias would have lied that misrepresentation would have rendered any policy void. • The Estate argued that not all insurance companies ask about drug use before issuing a policy, but did not offer any evidence that a company such as this existed at the time • For the Reebok contract, neither the language of the representation agreement between Bias and Advantage, nor any other evidence could support a finding that the Ds breached any duty to Bias by failing to push to obtain a signed contract on June 18, 1986 • Even if Ds were under some duty to try to sign a contract as quickly as possible, the Estate has offered no evidence to rebut the Ds’ showing that an endorsement contract cannot be negotiated, drafted, and signed in a single day • We affirm the order of the District court’s granting to the Ds sum. Judg, with respect to the estate claims, and we do not address the district court’s order with respect to the D’s counterclaim

Answer 54

For the insurance issue: There is no genuine issue of fact regarding Bias’ status as a cocaine user because of the testimony of his former teammates and the Estate’s generalized evidence that Bias was not a drug user did not contradict the more specific testimony of the teammates. The estate provided passed drug tests, but these only show that Bias did not use drugs in the periods the tests were administered. • Bias would not have been insured anyways because insurance inquire about drug use before issuing a policy, and if Bias would have lied that misrepresentation would have rendered any policy void. • The Estate argued that not all insurance companies ask about drug use before issuing a policy, but did not offer any evidence that a company such as this existed at the time • For the Reebok contract, neither the language of the representation agreement between Bias and Advantage, nor any other evidence could support a finding that the Ds breached any duty to Bias by failing to push to obtain a signed contract on June 18, 1986 • Even if Ds were under some duty to try to sign a contract as quickly as possible, the Estate has offered no evidence to rebut the Ds’ showing that an endorsement contract cannot be negotiated, drafted, and signed in a single day • We affirm the order of the District court’s granting to the Ds sum. Judg, with respect to the estate claims, and we do not address the district court’s order with respect to the D’s counterclaim

Answer 55

In Suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law

Answer 56

• 7TH Amendment right to trial only applies in federal court, in state court one would need to find a right to jury in state constitutions or statutes • Right to jury applies only to suits at common law o Equitable claims have no jury right o Right to jury under 7th amendment is inviolate (R38)  BUT party must demand jury of the right is waived (demand must be in writing and be served)  Court may6 decide which issues are triable to jury n(R39)  Jury – min. 5 max. 12, unanimous verdict (R48)

Answer 57

• Usually occur after closing arguments, but before submitting the case to jury, judge issues oral instructions on law • Judge’s instructions are based on proposed instructions submitted by each party (R51)

Answer 58

• Jury renders its verdict o It is the jury’s decision on the facts of the case, applying the law as judge instructed o Verdict may be Genera: ex – judgment for D (default) o Special: specific findings on issues of fact o General with Interrogatories or Written Questions: Answers to a set of questions

Answer 59

Terry and other members of the union go to the union because of lost seniority • The respondents filed 3 grievances with the Union, alleging that the layoffs and recalls violated the collective-bargaining agreement • Union compared a breach of fair representation is most analogous to an action by a trust beneficiary against a trustee (because fair rep. was not a claim during the common law period being examined) so this is the closest cause of action

Answer 60

• The 7th amendment provides that in suits at common law, where the value in controversy shall exceed 20 dollars, the right of trial by jury shall be preserved • If there is a right to jury at common law, there is a right to jury now (7th am.) • The two-part test used to determine if there is a right to jury is 1) examine the nature of the issues and 2) examine the nature of the remedy sought • Right to trial only applies for legal remedies and bench trials are for equitable rights

Answer 61

• The union wants a bench trial because a jury could be easily persuaded to side with the employees • The first part of the test, finding an analogous 18th century England cause of action since unfair representation did not exist then, is not as important as the second part of the test (which the court relies on to come to a decision) • The remedy of backpay sought in this fair representation action is legal in nature because backpay is compensatory (thus not equitable). This part of the test is more convincing, and respondents are entitled to a jury • First, we have characterized damages as equitable where they are restitutionary, the backpay sought by respondents is not money wrongfully held by the Union, but wages and benefits they would have received from McLean had the Union processed the employees grievances properly, such relief is not restitutionary • Second, a monetary award incidental to or intertwined with injunctive relief may be equitable. Because respondents seek only money damages, this characteristic is clearly absent from the case • We hold, that the remedy of backpay sought in this duty of fair representation action is legal in nature. Considering both parts of the 7th amendment inquiry, we find that respondents are entitled to a jury trial on all issues presented in their suit

Answer 62

• If reasonable jury would not have a sufficient evidentiary basis to find for a party, a court may grant a motion for judgment as a matter of law against a party FRCP 50(a)(1) o Rule 50(a) motion may be made after a party rests but before submitted to jury o Movant may file renewed motion after verdict under 50 (a), under FRCP 50(b)  You must make a 50(a) motion before making one for 50(b)  The court does not go back and review the 50(a) motion in a 50(b) motion

Answer 63

• Similar to FRCP 56 summary judgment • Evidence is treated the same as in 56 except under rule 50 the court may consider actual evidentiary rulings and tender, since evidence has already been presented at trial o Evidence is viewed in favor of non-movant o Credibility determinations are not proper

Answer 64

explicitly “pierce the pleadings” and requires that a party do more than simply allege facts. The party with the burden of proof must produce or “point to” record evidence which supports each allegation required in their pleading. However, credibility determinations or weighing the evidence is not appropriate at this stage o You obtain such evidence during discovery and investigation by understanding what elements you must establish or refute under the governing law. So, IF THE QUESTION IS WHETHER THERE IS EVIDENCE THAT FACTS ARE AS A PARTY CLAIMS, THEN YOU CAN BRING A MOTION UNDER R 56 AND (1) INCLUDE THE EVIDENCE TO DEMONSTRATE FACTS YOU HAVE THE BURDEN OF PROOF ON OR (2) SHOW THE COURT THAT THE OTHER PARTY HAS NO EVIDENCE IN SUPPORT OF MATTERS ON WHICH S/HE HAS THE BURDEN OF PROOF. If there is SOME evidence towards a material issue in dispute—regardless of its quality— of an element of a claim, then a party has met its burden to resist summary judgment. However, the evidence must be BOTH genuine AND material

Answer 65

are basically a consideration of THE SUFFICIENCY OF THE EVIDENCE PRESENTED BY A PARTY AT TRIAL. R50(a) motions can be brought against a party who has been ‘fully heard’ at a jury trial (rested his/her case) and before the case is submitted to jury deliberation. R50(a)(1) and (2). The court may grant the motion for judgment as a matter of law if it finds that a ‘reasonable jury’ would not have a ‘legally sufficient evidentiary basis’ to find in favor of the party against whom the motion is brought. R50(a)(1). If the court denies the pre-verdict motion under R 50(a), the movant can renew the motion after the verdict under R 50(b). A post-verdict motion under 50(b) is ONLY possible by ‘renewing’ a pre-verdict motion made under R 50(a) before the verdict • The Eleventh Circuit has declared that motions under R 50 and R 56 should be considered under similar legal standards. “A genuine issue of material fact [on a motion for summary judgment] exists only if sufficient evidence is presented favoring the nonmoving party for a jury to return a verdict for that party. “In making this assessment, we review all facts and inferences reasonably drawn from the facts in the light most favorable to the nonmoving party • the most obvious distinction between a motion for summary judgment R56 and one for a judgment as a matter of law [R50] is the timing of the two motions. But this difference also has an . . . effect on the character of the court's deliberations. For example, the ability to take [some] account of the evidence's credibility depends on whether the motion is brought under Rule 50 or Rule 56. On a summary-judgment motion the court is not permitted to rule on the credibility of the material that is presented. When there is an issue whether the testimony of an affiant or deponent would be credible if presented at trial, the court must deny summary judgment and leave that question to be resolved by the fact finder. In contrast, a Rule 50 motion typically would be made after the witness had testified and [the court could appropriately take account of whether a jury would be legally required or legally prevented from accepting some evidence as adequate.

Answer 66

However, leave the judge considerably freer to evaluate the quality of evidence presented at trial. Although the court still may not simply substitute its judgment for that of the jury, the judge may grant a new trial for several reasons, including where a verdict is “against the weight of the evidence.” The Court may order a new trial on motion of a party or sua sponte, and the determination whether to grant a new trial lies within the sound discretion of the trial court. o Rule 59 gives the trial judge ample power to prevent what the judge considers to be a miscarriage of justice. It is the judge's right, and indeed duty, to order a new trial if it is deemed in the interest of justice to do so o Indeed the more sharply the evidence conflicts, the more reluctant the judge should be to substitute his judgment for that of the jury. But on a motion for a new trial on the ground that the verdict is against the great weight of the evidence, the judge is free to weigh the evidence. Indeed, it has been said that the granting of a new trial on the ground that the verdict is against the weight of the evidence “involves an element of discretion which goes further than the mere sufficiency of the evidence. It embraces all the reasons which inhere in the integrity of the jury system itself.”

Answer 67

• A motion for a new trial on the ground of newly discovered evidence is subject to the same time limit as any other motion under Rule 59 and must be made within 28 days after entry of judgment. • Under Rule 60(b) a party may move for relief from the judgment on this ground within a year of the entry of the judgment • The same standard applies to motions on the ground of newly discovered evidence whether they are made under Rule 59 or Rule 60(b)(2), and decisions construing Rule 59 in this context are authoritative in construing Rule 60(b)(2). Under both rules, the evidence must have been in existence at the time of the trial, but if it was in the possession of the party before the judgment was rendered it is not newly discovered and does not entitle the party to relief. • Examples of R 59 or 60(b) newly discovered evidence rulings: o Personal-injury plaintiff was not entitled to a new trial based upon newly discovered evidence, the testimony of the police officer who filled out the accident report following the crash, when plaintiff was aware of the police officer's identity and substance of his testimony before trial, but did not seek the police officer out due to expense involved. Parrilla-Lopez v. U.S., 841 F.2d 16 (1st Cir. 1988). o Alleged victim of wiretapping could not have learned through the exercise of due diligence at the time of trial of matters referred to in a recorded conversation in which a private investigator allegedly admitted involvement in wiretapping, for purposes of Rule 60(b)(2); the investigator admitted that he evaded the alleged victim's attempts to speak with him before trial, and the alleged victim's decision not to call the person who made the recording as a witness at trial without confirming her credibility did not demonstrate lack of diligence in light of her less than illustrious background. Kettenbach v. Demoulas, 901 F. Supp. 486, 494 (D. Mass. 1995), citing Wright, Miller & Kane. o Requirement that newly discovered evidence be likely to change the result, before the evidence could support relief from an order or judgment, was satisfied by the transcript of a “National Day of Prayer” meeting held in the village hall following a court order authorizing the meeting; the order was predicated upon a limitation of the prayers on behalf of the leaders and communities, and the transcript showed that the meeting also included noncivic activities of an overtly religious nature. DeBoer v. Village of Oak Park, 86 F. Supp. 2d 804 (N.D. Ill. 1999), aff'd in part, rev'd in part on the merits, 267 F.3d 558 (7th Cir. 2001).

Answer 68

Petitioner Roger Reeves was 57 years old and had spent 40 years in the employ of respondent • Reeves supervised the Hinge Room, which was the regular line in this establishment, and there was complaints from higher supervisors that production in the Hinge Room was down due to attendance issues • An audit of the Hinge Room’s timesheets was done, and the company president was recommended by another supervisor to fire Reeves • Reeves filed suit claiming he had been fired because of his age in violation of the Age discrimination in Employment Act • Respondent contended that it had fired petitioner due to a failure to maintain accurate attendance records

Answer 69

FRCP 50 - If “reasonable” jury would not have a “sufficient evidentiary basis” to find for a party, the court may grant a motion for judgment as a matter of law against a party • Under Rule 50, a court should render judgment as a matter of law when a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue o In doing so, the court must draw all reasonable inferences in favor of the non-moving party, and it may not make credibility determinations or weigh the evidence • The burden of persuading the trier of fact that the D intentionally discriminated against P remains at all times with the P • P may attempt to show that the employer’s proffered explanation is unworthy of credence

Answer 70

• Evidence that is used is prima facie, pretext (against D legitimate discriminatory reason for negative employment action), and animus (disparaging remarks about the protected class; superior talking to him as if he was a child)discrimination, introduced enough evidence for the jury to reject respondent’s explanation, and produced additional evidenced of age-based animus, there was sufficient evidence for the jury to find that respondent had intentionally discriminated. The district court was correct to submit the case to jury, and the Court of Appeals erred in overturning its verdict • D showed evidence of attendance violations but P offered evidence that that respondent’s evidence was false and that he had properly maintained the attendance records • Based on this evidence Reeves presented sufficient evidence that his age motivated respondent’s employment decision, thus petitioner very well be correct that a jury could have found that respondents explanation for its employment decision was pretextual • Given that petitioner established a prima facie case of discrimination, introduced enough evidence for the jury to reject respondent’s explanation, and produced additional evidence of age based animus, there was sufficient evidence for the jury to find that respondent had intentionally discriminated

Answer 71

Haney was working in a switch yard one dark night when he was struck in the back of the head • Petitioner’s theory is that Haney was struck by a mail hook hanging from the side of the trains • Repondent’s theory is that Haney was murdered by a homeless person

Answer 72

• Whenever facts are in dispute or the evidence is such that fair minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion

Answer 73

• The evidence was uncontradicted that it was very dark at the place where Haney was working and the surrounding ground was high and uneven. The evidence also showed that this area was entirely within the domination and control of Illinios Central. • It is not unreasonable to conclude that these conditions constituted an unsafe work environment and that such condition s contributed in part to Haney’s death, assuming that it resulted primarily form the mail hook striking his head • There is sufficient evidence to justify the submission of the case to the jury

Answer 74

• A judgment is a decree and order from which an appeal lies. Its is an order ending action o It is possible to have final judgment with regard to fewer than all claims or parties BUT ONLY when the court determines there is no just reason for delay in issuing judgment o Normally, adjudication of less than all claims, rights, or parties does not end in action o Judgment must be entered (R58)

Answer 75

• General rule: Costs should be allowed to prevailing party (unless federal statute. The FRCP, or a court order provides otherwise) • Costs is US litigation refers to expenses and fees of litigation, NOT attorney’s fees, unless the above exception applies o So, court filing fee, photocopy costs, transcripts, witness fees are all taxable to loser and paid to winner o Billed attorney time and attorney fees are not a cost o The clerk can tax costs unless they are objected to. If so, court then reviews costs

Answer 76

• Attorney fee motion must be filed within 14 days of entry of judgment, specify the judgment and basis of entitlement to fees, state amount sought or a fair estimate of it (records and affidavits required), and provide terms of the fee agreement • But this does not apply to attorney fees sought as sanctions for rule violations

Answer 77

• May move for new trial within 28 days of entry of judgment • Grounds are any reason for which new trial has been granted in action in federal court (R59(a)(1)(a) • Court may grant new trail when o Verdict is against the weight of the evidence o Damages are excessive o For other reasons trial was not fair or o Any substantial and prejudicial error of law

Answer 78

Conagra claimed that Unitherm, one of its competitors, was infringing on one of its patents. Unitherm sought a declaratory judgment that the patent was invalid, and further claim that ConAgra’s accusations constituted an antitrust violation • In this case, the respondent filed a Rule 50(a) motion before the before the verdict, but did not file a Rule 50(b) motion after the verdict. Nor did respondent request a new trial under Rule 59

Answer 79

FRCP 50(b) renewed motion for judgment as a matter of law: sets forth the procedural requirements for renewing a sufficiency of the evidence challenge after the jury verdict and entry of judgment • FRCP 59 motion for a new trial: May move for new trial w/n 28 days of entry of judgment for “Any reason for which new trial has been granted in action in federal court.” • Normally, a party in a civil trial that believes the evidence is legally insufficient to support an adverse jury verdict will seek a judgment as a matter of law, by filing a motion pursuant to FRCP 50(a) before submission of the case to jury, and then if the Rule 50(a) motion is not granted, and the jury decided against the party, a motion is filed pursuant to Rule 50(b) • Rule 50(a) sets forth the procedural requirements for challenging the sufficiency of the evidence in a civil jury trial and establishes two stages for such challenges – prior to submission of the case to jury, and after the verdict and entry of judgment

Answer 80

• The text of Rule 50(b) confirms that respondent’s preverdict Rule 50(a) action did not present the district court with the option of ordering a new trial • The text provides that a district court may only order a new trial on the basis of issues raised in a preverdict Rule 50(a) motion when ruling on a renewed motion under Rule 50(b) • Accordingly, even if the District court was inclined to grant a new trial on the basis of arguments raised in respondent’s preverdict motion, it was without the power to do so under Rule 50(b) absent a postverdict motion pursuant to the rule • For the foregoing reasons, we hold that since respondent failed to renew its postverdict motion as specified in Rule 50(b) there was no basis for review of respondent’s sufficiency of evidence

Answer 81

• Clerical mistakes/oversights (R60(a)) • Other grounds (R60 (b)) o Mistake, excusable neglect o Fraud o Judgment satisfied/reversed/etc. o Any other reason justifying relief • Unless error was harmless (R61)

Answer 82

Petitioner and wife are natives of Germany, they were naturalized in 1938 and reside in Taylor, Texas • Complaints were filed to cancel their naturalization on the grounds of fraud • Petitioner alleges that his failure to appeal is excusable for the reason that he had no money or property other than his home, and court costs were to high • He also relied on a public defender’s advice to refrain from appealing

Answer 83

FRCP 60(b) - Other grounds, Mistake, excusable neglect, Newly discovered evidence, Fraud, Judgment satisfied/reversed/etc, or “any other reason” justifying relief • Rule 60(b)(1) – a motion for relief because of excusable neglect must be made not more than one year after the judgment was entered

Answer 84

• The judgment here sought to be relieved was more than 4 years old. It is immediately apparent that no relief on account of excusable neglect was available to this petitioner on the motion under consideration • The comparison to the situations in Klapprott (when D was in jail before, at the time, and after default judgment was entered) only have a slight resemblance. The comparison points up the difference between choice and no choice, imprisonment and freedom, trial and no trial, no counsel and counsel, and no chance for negligence and inexcusable negligence • The motion for relief was properly denied and the judgment is affirmed

Answer 85

For appeal you need to know (1) timing, (2)standard or review, and (3) What to do to file an appeal (notice and 30 days) • A party should appeal if she/he/it was DISADVANTAGED by outcome of lower court decision. o Either or both parties (winner, loser, or both) may appeal. o To appeal, party must have both:  appropriate reason for appeal (legal question presented for appellate court to decide) and  appropriate timing for appeal (procedural).

Answer 86

(1) . From “final decision” of federal district court o 28 USC 1291 o Judgment issued & nothing left for D. Ct. to do, judgment must be final o See FRCP 54(b) & FRAP 4(a)(4) o Usual time to appeal (errors merge into judgment)

Answer 87

• Interlocutory (in the middle of things) appeal o Can be done in the middle of the trial 2 Circumstances for 28 USC 1292 • Grant/denial of injunctive relief—1292(a)(1), OR • Dist. Ct. certifies appeal under 1292(b) (certified question) o Allows for inefficiency when the district court does not have a basis for answering a question, so they move it up to the appellate court to certify o First impression is not enough (seeing a question for the first time), it has to be something they lack enough law on to make a judgment and something the district court feels it inappropriate to decide on

Answer 88

• Judicial doctrine permitting interlocutory appeal on narrow grounds (3-part test)

Answer 89

• Allows immediate appeal when a trial court has made a final ruling on an important issue involving an asserted claim of right that is separate from the merits of the case and effectively unreachable on review after final judgment • Interlocutory Appeal can be had where: (1) Order appealed “conclusively determines disputed question” • The question could get rid of the whole action (2) Order resolves important issue completely separate from merits (ie, imp procedural issue) • Procedural issue (3) Appeal after judgment is insufficient to preserve party’s position (eg, immunity) • Waiting will cause irreparable damage • Ex: in immunity, waiting for appeal will undue to point of immunity, which is to not have to go to trial • Time to appeal runs from entry of Order appealed from • The classic basis for collateral order is immunity

Answer 90

• Case appealed by filing: o Notice of Appeal w/ Dist Ct, FRAP 3(a) o Within 30 days of judgment or order appealed from, FRAP 4. • Notice of Appeal removes case from jurisdiction of trial court (District Court) except as to preparation of record • So, further proceedings—including opposition to appeal—continue in appellate court

Answer 91

• Federal Courts of Appeal (“numbered” Circuit Courts 1-11 and D.C. Circuit) have jurisdiction of appeals from final decisions of US trial courts (District Courts) unless direct review in USSC is provided by statute. o 28 USC 1291 • Exception is Court of Appeals for the Federal Circuit, which by statute hears nation-wide appeals on specific subject-matter, esp. patent appeals. o 28 USC 1292

Answer 92

(1) De novo: “As new” o Appeals court reviews with no deference to trial court on issues of law (2) Clear error: o Appeals court defers to trial court findings of fact (eg, bench trial, injunction) unless judge made “clear error” (obvious) (3) Abuse of discretion: o most deferential, lower court decision stands if “judicial” basis for decision o Applies, eg: R 11, R 20, R 59, R 37, etc

Answer 93

Respondents filed a complaint alleging that petitioner's employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964 • The district court ruled for respondents but did not award them anything

Answer 94

• Rule 54(b) FN2 “does not apply to a single claim action. It is limited expressly to multiple claims actions in which ‘one or more but less than all’ of the multiple claims have been finally decided and are found otherwise to be ready for appeal • When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express o It is sufficient to recognize that a complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that right, states a single claim for relief.

Answer 95

• There is only one defendant and one claim so 54(b), multiple claim multiple party standard will not be met • It is directed that final judgment be entered in favor of Plaintiffs that Defendant's policy of requiring female employees to return to work within three months of delivery of a child or be terminated is in violation of the provisions of Title VII of the Civil Rights Act of 1964; that Defendant's policy of denying disability income protection plan benefits to female employees for disabilities related to pregnancies or childbirth are (Sic ) in violation of Title VII of the Civil Rights Act of 1964 and that it is expressly directed that Judgment be entered for the • The district court and court of appeals apparently took the view that because the District Court made the recital required by Fed.Rule Civ.Proc. 54(b) that final judgment be entered on the issue of liability, and that there was no just reason for delay, the orders thereby became appealable as a final decision pursuant to 28 U.S.C. s 1291. We cannot agree with this application of the Rule and statute in question. • For 1291(a) finality relief must be granted or denied, and it was not here • If the District Court had granted injunctive relief but had not ruled on respondents' other requests for relief, this interlocutory order would have been appealable under s 1292(a)(1). FN5 But, as noted above, the court did not issue an injunction. It might be argued that the order of the District Court, insofar as it failed to include the injunctive relief requested by respondents, is an interlocutory order refusing an injunction within the meaning of s 1292(a)(1). But even if this would have allowed respondents to then obtain review in the Court of Appeals, there was no denial of any injunction sought by Petitioner and it could not avail itself of that grant of jurisdiction • Nor was this order appealable pursuant to 28 U.S.C. s 1292(b). FN6 Although the District Court's findings made with a view to satisfying Rule 54(b) might be viewed as substantial compliance with the certification requirement of that section, there is no showing in this record that petitioner made application to the Court of Appeals within the 10 days therein specified • We believe that Congress, in enacting present ss 1291 d 1292 of Title 28, has been well aware of the dangers of an overly rigid insistence upon a “final decision” for appeal in every case, and has in those sections made ample provision for appeal of orders which are not “final” so as to alleviate any possible hardship. We would twist the fabric of the statute more than it will bear if we were to agree that the District Court's order of February 20, 1974, was appealable to the Court of Appeals. The judgment of the Court of Appeals is therefore vacated, and remanded

Answer 96

The individual respondents were, or represent the estates of persons who were, passengers aboard the cruise ship Achille Lauro when it was hijacked by terrorists in the Mediterranean in October 1985 • Respondents filed suits against Lauro Lines in the District Court for the Southern District of New York to recover damages for injuries sustained as a result of the hijacking and for the wrongful death of passenger Leon Klinghoffer. • Respondents argued that the cruise ship crew was sympathetic to the terrorists • Lauro Lines moved before trial to dismiss the actions, citing the forum-selection clause printed on each passenger ticket. This clause purported to obligate the passenger to institute any suit arising in connection with the contract in Naples, Italy, and to renounce the right to sue elsewhere

Answer 97

Title 28 U.S.C. § 1291 provides for appeal to the courts of appeals only from “final decisions of the district courts of the United States.” For purposes of § 1291, a final judgment is generally regarded as “a decision by the district court that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment • Section 1291 permits an appeal only if an order denying a motion to dismiss based upon a forum-selection clause falls within the “narrow exception to the normal application of the final judgment rule [that] has come to be known as the collateral order doctrine.” • That exception is for a “small class” of pre-judgment orders that “finally determine claims of right separable from, and collateral to, rights asserted in the action [and that are[ too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” o To fall within this exception, an order must satisfy at least three conditions: “It must ‘conclusively determine the disputed question,’ ‘resolve an important issue completely separate from the merits of the action,’ and ‘be effectively unreviewable on appeal from a final judgment • An order is “effectively unreviewable” only “where the order at issue involves ‘an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.’

Answer 98

• A contract to avoid suit altogether, and an entitlement to avoid suit is different in kind from an entitlement to be sued only in a particular forum. Petioner's claim that it may be sued only in Naples, Italy, while not perfectly secured by appeal after final judgment, is adequately vindicable at that stage—surely as effectively vindicable as a claim that the trial court lacked personal jurisdiction over the defendant—and hence does not fall within the third prong of the collateral order doctrine • Petitioner argues that there is a strong federal policy favoring the enforcement of foreign forum selection clauses, and that “the essential concomitant of this strong federal policy is the right of immediate appellate review of district court orders denying their enforcement.” • A policy favoring enforcement of forum selection clauses, however, would go to the merits of petitioner's claim that its ticket agreement requires that any suit be filed in Italy and that the agreement should be enforced by the federal courts • Immediate appealability of a prejudgment order denying enforcement, insofar as it depends upon satisfaction of the third prong of the collateral order test, turns on the precise contours of the right asserted, and not upon the likelihood of eventual success on the merits. The Court of Appeals properly dismissed petitioner's appeal, and its judgment is • This is not a typical case of immunity usually seen in collateral doctrine cases • Immunity presumes no trial, and a forum selection clause presumes a trial, so collateral doctrine is not applicable

Answer 99

In 1975, respondent city set about to hire a new Recreation Director to manage the city's recreational facilities and to develop recreational programs. A committee, consisting of four men and one woman, was responsible for choosing the Director • 8 people applied for the position, including petitioner, the only woman applicant. At the time, petitioner was a 39-year-old schoolteacher with college degrees in social studies and education • The job was offered to a 24-year-old male applicant, who had recently graduated from college with a degree in physical education • Charlotte District Office of the Equal Employment Opportunity Commission. In July 1980 (five years after petitioner filed the charges), the EEOC's District Director found that there was reasonable cause to believe that petitioner's charges were true and invited the parties to attempt a resolution of petitioner's grievance through conciliation proceedings. The EEOC's efforts proved unsuccessful, and in due course, petitioner received a right-to-sue letter. • Petitioner then filed this Title VII action in the United States District Court for the Western District of North Carolina. After a 2-day trial during which the court heard testimony from petitioner, Mr. Kincaid, and the five members of the selection committee, the court issued a brief memorandum of decision setting forth its finding that petitioner was entitled to judgment because she had been denied the position of Recreation Director on account of her sex

Answer 100

Under Federal Rule of Civil Procedure 52(a)—which provides that findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witness”—a finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. • Federal Rule of Civil Procedure 52(a): “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” • The clearly erroneous is a fact finding standard (similar to Rule 50 standards) and plainly does not entitle reviewing court to reverse finding of trier of fact simply because it is convinced that it would have decided case differently

Answer 101

Because our reading of the record convinces us that the Court of Appeals misapprehended and misapplied the clearly-erroneous standard, we reverse. • First, the court found that at the time the selection committee made its choice, petitioner had been better qualified than Mr. Kincaid to perform the range of duties demanded by the position • Second, the court found that the male committee members had in fact been biased against petitioner because she was a woman. The court based this finding in part on the testimony of one of the committee members that he believed it would have been “real hard” for a woman to handle the job and that he would not want his wife to have to perform the duties of the Recreation Director • Also critical to the court's inference of bias was its finding that petitioner, alone among the applicants for the job, had been asked whether she realized the job would involve night work and travel and whether her husband approved of her applying o The court's finding that the committee had pursued this line of inquiry only with petitioner was based on the testimony of petitioner that these questions had been asked of her and the testimony of Mrs. Boone that similar questions had not been asked of the other applicants • Finally, the court found that the reasons offered by the male committee members for their choice of Mr. Kincaid were pretextual. The court rejected the proposition that Mr. Kincaid's degree in physical education justified his choice, as the evidence suggested that where male candidates were concerned, the committee valued experience more highly than formal training in physical education. • The court also rejected the claim of one of the committeemen that Mr. Kincaid had been hired because of the superiority of the recreational programs he planned to implement if selected for the job. The court credited the testimony of one of the other committeemen who had voted for Mr. Kincaid that the programs outlined by petitioner and Mr. Kincaid were substantially identical. • Such a finding is entitled to deference notwithstanding that it is not based on credibility determinations. When the record is examined in light of the appropriately deferential standard, it is apparent that it contains nothing that mandates a finding that the District Court's conclusion was clearly erroneous. • Our determination that the findings of the District Court regarding petitioner's qualifications, the conduct of her interview, and the bias of the male committee members were not clearly erroneous leads us to conclude that the court's finding that petitioner was discriminated against on account of her sex was also not clearly erroneous

Answer 102

In 2007, respondent Norman Carpenter, a former shift supervisor at a Mohawk manufacturing facility, filed suit in the United States District Court for the Northern District of Georgia, alleging that Mohawk had terminated him in violation of 42 U.S.C. § 1985(2) and various Georgia laws • According to Carpenter's complaint, his termination came after he informed a member of Mohawk's human resources department in an e-mail that the company was employing undocumented immigrants • Carpenter filed a motion to compel Mohawk to produce information concerning his meeting with retained counsel and the company's termination decision. Mohawk maintained that the requested information was protected by the attorney-client privilege. The District Court agreed that the privilege applied to the requested information, but it granted Carpenter's motion to compel disclosure after concluding that Mohawk had implicitly waived the privilege through its representations in the Williams case. • In this case, petitioner Mohawk Industries, Inc., attempted to bring a collateral order appeal after the District Court ordered it to disclose certain confidential materials on the ground that Mohawk had waived the attorney-client privilege. The Court of Appeals dismissed the appeal for want of jurisdiction

Answer 103

In applying the collateral order doctrine, we have stressed that it must never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered • The justification for immediate appeal must therefore be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes. • More significantly, third Cohen question, whether a right is ‘adequately vindicable’ or ‘effectively reviewable,’ simply cannot be answered without a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement

Answer 104

• The crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders • Mohawk is undoubtedly correct that an order to disclose privileged information intrudes on the confidentiality of attorney-client communications. But deferring review until final judgment does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel • Permitting parties to undertake successive, piecemeal appeals of all adverse attorney-client rulings would unduly delay the resolution of district court litigation and needlessly burden the Courts of Appeals • In sum, we conclude that the collateral order doctrine does not extend to disclosure orders adverse to the attorney-client privilege. Effective appellate review can be had by other means.

Answer 105

Distinguishing Claim Preclusion and Issue Preclusion in Prior Judgments • Means “a thing decided” • Places value on the finality of decisions o Relies on adversary, due process, & efficiency principles • Means that parties to previous suits (and those in privity), may be barred from bringing certain claims or issues in subsequent proceedings • Is really a defensive form of equitable estoppel o Prevents “two bites @ the apple”  Defendant must raise or defense may be waived. • Two basic types: o Claim Preclusion o Issue Preclusion

Answer 106

• CLAIM PRECLUSION: prevents re-litigation of entire CLAIMS (CoA), • ISSUE PRECLUSION: prevents re-litigation of ISSUES decided in prior action • Both affirmative defenses must be pleaded and proven by Defendant. FRCP 8(c) • Both require valid judgment in prior suit. • Each type has different elements/tests

Answer 107

• Claim preclusion: Prohibits parties or their privies from re-litigating claims resolved between the same parties in a prior action • The CLAIM = the cause of action raised in the first suit, including all specific damages claimed under it. • THE CATCH: Claim preclusion also bars re-litigation of claims or defenses which MIGHT HAVE BEEN RAISED in the prior action whether they were or not. Example: For negligence- • Another suit for the cause of action of negligence is claim preclusion • Using the facts or issues that proves each element is issue preclusion

Answer 108

• The SAME CLAIMS o Transactional test  Same transaction = logical relationship or “common nucleus of operative fact” • between SAME PARTIES / PRIVIES o Successor in interest/controlled original suit/interests represented adequately by original party • Based on prior FINAL & BINDING JUDGMENT o Finality is SAME rule as 28 USC 1291

Answer 109

1. Same claim 2. Same parties 3. Final and Binding judgment

Answer 110

• Look at pleadings to find claims/defenses. • Separate “transactions/occurrences” are separate claims for preclusion purposes. • If litigant was prohibited by substantive or procedural law (including ruling from judge in earlier suit) from bringing claim in earlier suit, that claim is not precluded. • Would decision in second suit be “legally inconsistent” w/ outcome of prior suit?

Answer 111

• A claim can be precluded because it has the same transaction and a compulsory counterclaim HAS to be bought with the answer, if a compulsory counterclaim is not bought with the answer, any following identical claims are precluded

Answer 112

• If someone opts out of the class their claim will not be precluded because opting out preserves the right to sue later • A claim would be precluded because an unnamed plaintiff is part of the class, so it’s the same party • A claim can be precluded if a person would be considered a part of the class by the way the class is defined (all people who contracted the disease as a result of the negligence between specified dates)

Answer 113

• A default judgment is when there is no answer given, so there is no obligation to bring a counter claim so a claim is not precluded

Answer 114

P was hurt in a fall off her motorcycle as a result of the D’s city negligent street maintenance. • The state court awarded her 100 dollars, and after being affirmed on appeal this litigation was complete • P then filed a second action against the city for personal injuries and the jury awarded her 12,000 dollars • Claim splitting is suing for one piece of a claim in one suit, and then another piece of the claim in a second suit (an attempt to use the favorable judgment on the smaller claim as evidence for the bigger claim)

Answer 115

The majority rule is that only one cause of action arises, the reason of that rule being that as the D’s wrongful act is single, the cause of action must be single, and that the different injuries occasioned by it are merely items of damage proceeding from the same wrong

Answer 116

• There appears to be no valid reason in these days of code pleading to adhere to the old English rule as to distinctions between injuries to the person and damages to the person’s property resulting from a single tort • It is the view of this court that the so called majority rule conforms much more properly to modern practice, and that the rule in Vasu should not be followed • Where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises, the different injuries occasioned thereby being separate items of damage from such act. Vasu is overruled

Answer 117

2 suits – 1) Divorce of Mr. and Mrs. Searle and 2) ownership of the Slaugh House • The two Searle brothers are suing their mother, Edlean for half ownership of their house • The wife won the house in the divorce suit as part of her judgment against Woody • The brothers claimed that their father, Woody told them they had half ownership of the Slaugh House, so they sued their mother for half of the house

Answer 118

In general, a divorce decree, like other final judgments, is conclusive as to parties and their privies and operates as a bar to any subsequent action. In order for judicata to apply both suits must involve the same parties or their privies and also the same cause of action, and this precludes the re-litigation of all issues that could have been litigated as well as those that were, in fact, litigated in the prior action. If the subsequent suit involves different parties, those parties cannot be bound by the prior judgment • Questions to ask, was the issue decided in the prior adjudication identical with the one presented, was there a final judgment on the merits, was the parties identical, and was the issue fully and fairly litigated?

Answer 119

• The two claims were different (divorce and ownership of the house) and the parties in the two suits were different (Edlean v Woody) and (Brothers v Edlean) so their claim cannot be precluded • Appellants cannot be bound by the decree entered in the previous suit nor are they estopped from litigating their own claim against the property in a subsequent suit since they were not parties or privies in the first action, and the issue raised in the second action was never litigated in the prior suit.

Answer 120

Charles Frier had lost of cars, and constantly parked them blocking roads • The city left him notes to move the cars, but eventually towed the cars after frier’s noncompliance • In Frier’s first suit of replevin he sued to get one of his cars out of the tow lot, and the city just gave him his car without him having to pay the fee • Charles files another suit for constitutional violation of due process under 1983, because he received no notice that his cars were towed

Answer 121

One suit precludes a second where the parties and the cause of action are identical. Causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first, where the causes of action are based upon a common core of operative facts • Two suits may entail the same cause fo action even though they present different legal theories and the first suit operates as an absolute bar to a subsequent action, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose

Answer 122

• The actions involve both the same common core of operative facts and the same transactions • If Frier had filed the current suit in state court, he would have lose under the doctrine of claim preclusion, he therefore loses in federal court too.

Answer 123

In suit number one Merrill lynch (an investment company) was the plaintiff, the suit involved debt collection for a brokerage account in which 17,000 dollars was owed. This suit occurred in a state court in Ohio. • Gargallo counterclaimed for negligence, misrepresentation, and churning (which is a violation of federal securities laws) • The churning claim is problematic because it has exclusive federal subject matter jurisdiction, and it was bought in state court • Merrill Lynch won the first suit because there was discovery abuse (so the judgment was not reached on the merits), it was won with prejudice, which means it cannot be bought again • So, Gargallo sued in federal court for violating further securities laws regarding deceptive investment practices (the were based on the same purchase as the churning claims)

Answer 124

Appellate court will look to see if the original court (the court who made the first decision) viewed the judgment as final and binding • Res Judicata, or claim preclusion, is the doctrine by which a final judgment on the merits in an action precludes a party from bringing a subsequent lawsuit on the same claim or cause of action or raising a new defense to defeat a prior judgment • It precludes not only relitigating a claim or cause of action previously adjudicated, it also precludes litigating a claim or defense that should have been raised, but was not, in a claim or cause of action previously adjudicated • Collateral Estoppel, or issue preclusion, precludes prelitigation of issues of fact or law actually litigated and decided in a prior action between the same parties and necessary to the judgment, even if decided as part of a different claim or cause of action

Answer 125

• There was the same claim and same parties but the state court did not have the ability to dismiss the federal claim • The appeals court looks back to see if the Ohio state court meant the judgment to be final and binding • There is no preclusion so Gargallo’s second suit can go forward

Answer 126

• Must be SAME ISSUE raised in 1st litigation resulting in final judgment. • Issue must have been o ACTUALLY LITIGATED AND o DECIDED • Issue must’ve been NECESSARY to JUDGMENT • SAME PARTIES / PRIVIES o Relaxed in some circumstances (Parklane)

Answer 127

1. Same Issue 2. Issue must have been actually litigated and decided 3. Issue must have been necessary to the judgment in the first action 4. Same parties or those in privity (except if parklane case applies)

Answer 128

• Although 1st suit held 1 set of bond coupons void b/c not a bone fide purchaser for value, • Did not litigate whether ALL SUCH coupons were held as BFP or not. • Therefore, no Issue Preclusion

Answer 129

• Trial o If bench trial: look at judge’s findings of fact & conclusions of law to determine if actually litigated o If jury trial, answer the questions, were there interrogatories, evidence or special verdict? To determine if it was actually litigated o If a party withdrew an issue then it was not litigated or decided on o If summary judgment is based on the issue it was actually litigated and decided • Other rulings: o Were some issues or evidence excluded? o Did party withdraw an issue? If so, not actually litigated

Answer 130

• 1st Suit: P v D for B/K. J/P. • If D later sues P, can D argue that there was insufficient consideration for the contract between P & D in 1st suit? o For B/K suit to succeed, there MUST NECESSARILY have been a valid contract with sufficient consideration, so, as long as validity of the contract was litigated in 1st action, it cannot be relitigated

Answer 131

Bertha and Jessie were injured on March 2, 1975, when the automobile which Jessie was driving and in which Bertha was a passenger collided with a train operated by Illinois Central Gulf • Mr. and Mrs. Parks filed two complaints in Vanderburgh Superior Court, naming Illinois Central Gulf and Waltrip as defendants in each and requesting a change of venue in each. The companion case, in which Bertha had a claim of negligence and prayed for damages for her personal injuries and Jessie prayed for damages for loss of Bertha's services and consortium because of her personal injuries • On June 3, 1977, judgment was entered in the companion case in Posey Circuit Court after a jury verdict for P (bertha) in suit one, but Jessie’s judgment was for D • Jessie filed a second suit for personal injury for himself (no claim preclusion because it’s a different claim, his injuries vs her injuries) • RR argues issue preclusion on Jessie’s second suit

Answer 132

• One branch of the subject deals with prior adjudication as a bar. Under it a cause of action finally determined between the parties on the merits by a court of competent jurisdiction, cannot again be litigated by new proceedings before the same or any other tribunal, except by way of review according to law • The other branch of the subject applies where the causes of action are not the same, but where some fact or question has been determined and adjudicated in the former suit, and the same fact or question is again put in issue in a subsequent suit between the same \*145 parties. • To protect the integrity of the prior judgment by precluding the possibility of opposite results by two different juries on the same set of facts, Nichols, supra, the doctrine of estoppel by verdict allows the judgment in the prior action to operate as an estoppel as to those facts

Answer 133

• Illinois Central Gulf's first allegation of error is an attempt to apply estoppel by judgment in the case at bar, but the railroad concedes its own argument by admitting that Jessie's cause of action for loss of services and consortium as a derivative of Bertha's personal injuries is a distinct cause of action from Jessie's claim for damages for his own personal injuries • Jessie's cause of action in the case at bar is a different cause of action from the one he litigated in the companion case; therefore, estoppel by judgment does not apply. • We hold that Illinois Central Gulf has failed its burden of showing that the judgment against Jessie in the prior action could not have been rendered without deciding that Jessie was contributorily negligent in the accident which precipitated the two lawsuits • Consequently, the trial court was correct in granting partial summary judgment estopping the railroad from denying its negligence and in limiting the issues at trial to whether Jessie was contributorily negligent, whether any such contributory negligence was a proximate cause of the accident, and whether Jessie sustained personal injuries and compensable damages • No issue preclusion because it isn’t clear whether the litigation was necessary to the judgment

Answer 134

o Could new party (the party asserting issue preclusion) have joined prior action? o If yes, offensive issue preclusion should not be allowed o If no, offensive issue preclusion should be allowed

Answer 135

o Adequate opportunity & incentive to fully litigate prior action? o Was prior judgment inconsistent w/ any previous decision? o Does 2d action have procedural options that were not available in prior action?  Does party to the second action have the decision to dismiss its claim, instead of having a judgment against it, when the first did not

Answer 136

1. Is it efficient? 2. Is it fair?

Answer 137

Respondent bought this stockholder’s class action in the district court for damages and other relief against petitioners, a corporation, its officers, directors, and stockholders, who allegedly had issued a materially false and misleading proxy statement in violation of the federal securities laws and securities and exchange commission (SEC) regulations. • In suit one, before the action came to trial the SEC sued the same Ds in the district court alleging that the proxy statement was materially false and misleading in essentially the same respects as respondents had claimed. • The district court entered, in a nonjury trial, a declaratory judgment for the SEC and the court of appeals affirmed. They found false statements by Parklane that violated the SEC • In suit two shareholders sued as owners of the company claiming mangers are misusing company and diving down the stock of the company, they used the false statements made by Parklane found in suit one so they would not have to prove he made the statements themselves (how issue preclusion can be used offensively by P to prove a claim) • Issue is whether a party who has had issues of fact adjudicated adversely to it in an equitable action may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action bought against it by a new party

Answer 138

Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. • Until relatively recently, however, the scope of collateral estoppel was limited by the doctrine of mutuality of parties. Under the mutuality doctrine, neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment. The mutuality requirement provided a party who had litigated and lost in a previous action an opportunity to relitigate identical issues with new parties

Answer 139

• Defensive use of collateral estoppel precludes a P from relitigating identical issues by merely switching adversaries, thus defensive collateral gives a P a strong incentive to join all potential Ds in the first action if possible. • Offensive use of collateral estoppel, on the other hand, creates precisely the opposite incentive. Since a P will be able to rely on a previous judgment against a D but will not be bound by that judgment if the D wins, the P has every incentive to adopt a wait and see attitude, which will increase the total amount of litigation • In the present case, none of the circumstances that might justify reluctance to allow the offensive use of collateral estoppel is present. The application of offensive collateral estoppel will not here reward a private P who could have joined in the previous action, since the respondents probably could not have joined in the injunctive action bought by the SEC even had he so desired. Similarly, there is no unfairness to the petitioners in applying offensive collateral estopped in this case • First, in light of the serious allegations made in the SEC’s complaint against the petitioners, as well as the foreseeability of subsequent private suits that typically follow a successful gov. judgment, the petitioners had every incentive to litigate the SEC lawsuit fully and vigorously. Second, the judgment in the SEC action was not inconsistent with any previous decision. Finally, there will in the respondent’s action be no procedural opportunities available to the petitioners that were unavailable in the first action • We conclude therefore, that none of the considerations that would justify a refusal to allow the use of offensive collateral estoppel is present in this case. Since the petitioners received a full and fair opportunity to litigate their claims in the SEC action, the contemporary law of collateral estoppel leads to the conclusion that the petitioners are collaterally estopped from relitigating the question of whether the proxy statement was materially false and misleading • Parklane using decision on issues from prior case is efficient because they could not be joined in the first suit, so it would be efficient for the shareholders to use statements that were already decided to have been made, as proof to their current claim • It was fair because there was adequate opportunity and incentive by SEC to fully litigate the first claim

Answer 140

• If in doubt, issue should be litigated. • Why? o Preclusion is an efficiency doctrine. Efficiency cannot override litigant’s right to due process (opportunity to be heard). o So, if unclear whether issue was necessary to judgment or actually litigated, or if preclusion is not fair or efficient, litigant should be heard.

Answer 141

The fire giving rise to this litigation started early one Sunday morning in the summer of 1968 • Suit number one was tried to a jury, a judgment for D, but it was appealed and retried, found for P on bench trial • Suit two was a jury trial, with a judgment for D • Suit three was a jury trial with a judgment for P, and affirmed in appeal • In suit 4 P sued D and argued that D should be precluded from arguing negligence on the basis of the judgments in the prior suits • Shortly thereafter various actions, eventually totaling over 50, were filed against defendant to recover for losses from the fire. Three of these actions proceeded separately through trial to final judgment • To summarize the posture of these cases, the question of defendant's negligence has been tried four times and three final judgments have been rendered. Defendant has procured one favorable judgment (and two jury verdicts) and the claimants have received two • The issue was which insurance company was going to be responsible for the damage from the fire

Answer 142

• Parklane exception test: Fair and Efficient • For Efficiency: It was possible for P in suit 4 to join in prior suit, but not necessary for them to be joined, However, there was an incentive for P in suit 4 to sit back and wait to see what happens • For Fairness: the suits were for different amounts, so it suggests that there were differing incentives to fully litigate, there were also inconsistent judgments, so no preclusion • We discarded the requirement of mutuality as a prerequisite to collateral estoppel because mutuality is not a relevant basis on which to determine the finality of litigation • We set forth two essential conditions for the application of collateral estoppel by a non-party against one who was a party to a prior action. First, there must exist an identity of issue between the prior action and the action in which estoppel is asserted; and second, the party against whom estoppel is sought must have had a full and fair opportunity to contest the issue decided adversely to him • However, that even when these two prerequisites are satisfied, ‘the unlimited use of collateral estoppel by a person who was neither a party nor in privity with a party to the original litigation may, in some instances, lead to unfair results.’

Answer 143

• We first point out that our subsequent decisions have made clear that the question whether preclusion would be fair under all the circumstances is independent of, and in addition to, whether a party had a full and fair opportunity to present its case in the action resulting in an adverse judgment The latter consideration relates to the circumstances affecting the preparation and conduct of the Trial of the prior case and those that might bear upon the strategy and conduct of a second trial, whereas the former relates to variables (not necessarily connected to the actual trials) concerning the equity and justice of applying collateral estoppel in a given case. • In addition, plaintiffs' argument, if taken too literally, would prove too much, since defendant presumably also had a full and fair opportunity to litigate the case it Won. Plaintiffs maintain, however, that the circumstances of the second Pacific N. W. Bell trial clearly • We conclude that the prior determinations are basically inconsistent and that the circumstances are such that it would be unfair to preclude defendants from relitigating the issue of liability.

Answer 144

 How to determine what law applies to a dispute before a particular court.  Each common-law jurisdiction has body of law called “choice of law” or “conflicts of laws” rules. ◦ They specify which law controls in given case. ◦ State-state = “horizontal” choice of law ◦ Federal-state = “vertical” choice of law  In US federal courts, modern vertical choice of law rules begin with ERIE.

Answer 145

 The Erie Doctrine began as a set of legal principles which set forth how to apply a “simple” federal statute—the Rules of Decision Act (RDA), 28 USC 1652 (passed in original form in 1789).  The Rules of Decision Act states: “The laws of the several states . . . shall be regarded as rules of decision in civil actions, . . . in cases where they apply.”  SO WHEN WILL STATE LAWS APPLY TO DECIDE CASES IN FEDERAL COURT?

Answer 146

* issue is because the case was in federal court in New York on diversity jurisidiction grounds, the question was which doctrine applied, the New York Doctrine favoring Tyson, or the holder in due course doctrine favoring swift * D Tyson gave a bill of exchange (like a check) to a thrid party in payment for land that the third party did not in fact own and could not sale * The third party gave the bill to Swift for a pre-exisiting debt, and when Swift tried to collect from Tyson he argued that the third party's fraud nullified the bill * NY courts held fraud was a defense agaisnt payments and other courts followed the holder in due course doctrine, which states that one that accepts a bill without knowledge of its fraudulent origins can still recover

Answer 147

The Rules of Desicion Act furnishes a rule obligatory upon this court to follow the decisions of the state tribunals in all cases to which they apply

Answer 148

* And we have now the slighest difficulty in holding, that this section of the rules decision act, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature * The decisions of local tribunals cannot furnish positive rules, or conclusive authority by which our own judgments are to be bound up snd goverend by

Answer 149

 Rules of Decision Act: “Laws of the several states shall be regarded as rules of decision.”  The facts: Diversity suit, fed ct in NY, suit over payment under bill of exchange.  The issue: Whether Fed Ct sitting in diversity is required to apply law as found by NY state courts where rule of law arises from common law rather than statute? ◦ NY common law allowed fraud defense to block recovery by 3d party not involved in transaction  NY courts developed principles from general commercial law, not statute. ◦ “General” commercial law recognized “holder in due course” doctrine to protect innocent holder like BFP ◦ The holding: When law to be applied is “general principles” of common law, state court decisions are NOT “themselves laws” under the RDA, but only evidence of laws.

Answer 150

TT injured by RR in PA. Sued RR in federal court in NY. • D RR wanted PA law to apply, b/c PA courts limited RR liability to “wanton” negligence • TT hoped “general federal law” would apply to hold RR to ordinary negligence. • Harry Tompkins lost his lost his right arm but got a jury verdict for $30K. Then the RR was granted certiorari

Answer 151

* Except in matters governed by the federal constitution or by acts of congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. * Congress has no power to declare substantive rules of common law applicable in a state whether they be local in nature or general

Answer 152

* The authority and only authority is the state, and if that be so, the voice adopted by the state as its own whether it be of its legislature or of its supreme court should utter the last word * We declare that in applying the doctrine this court and the lower courts have invaded rights which in our opinion are reserved by the constitution to several states * FEDERAL COURTS IN DIVERSITY MUST APPLY STATE SUBSTANTIVE LAW AND MUST ONLY APPLY FEDERAL PROCEDURAL LAW

Answer 153

 Equality between litigants in state and federal courts within a single state. ◦ (vertical) non-discrimination  Preventing incentives to choose federal forum due to which law applied. ◦ preventing forum shopping  Restoring independence of States and preventing federal courts from unconstitutional assumption of power not granted in Constitution. Federalism

Answer 154

 Klaxon v Stentor Elec. = Erie requires federal courts (in diversity jurisdiction) to apply choice of law rules of forum state where district court sits.

Answer 155

◦ Breach of Trust claim filed in federal ct after state S/L expired. ◦ Fed ct adjudicating state-created right “cannot afford recovery if right to recover is made unavailable by the State nor can it substantially affect the enforcement of the right as given by the State.”

Answer 156

◦ Issue was statue of limitations on tort claim in federal ct tolled by filing complaint (FRCP3) or by service as under KS law? ◦ Ct Ap reasoned that Guaranty v York required KS law. ◦ SCOTUS = “COA created by local [state] law, … carries same burden and subject to same defenses in federal as state ct.”

Answer 157

 ERIE was decided on Constitutional grounds of FEDERALISM and EQUAL PROTECTION.  YORK tipped balance in favor of state law with its focus on differences in OUTCOMES. ◦ Substantive law – apply state law ◦ Procedural law – apply federal law ◦ IF there is confusion of whether procedural or substantive law, use Eerie doctrine

Answer 158

 Equality between litigants in state and federal courts within a single state. ◦ (vertical) non-discrimination  Preventing incentives to choose federal forum due to which law applied. ◦ preventing forum shopping  Restoring independence of States and preventing federal courts from unconstitutional assumption of power not granted in Constitution. Federalism

Answer 159

 BYRD brought back consideration of the importance of federal procedure and the RDA (28 USC 1652). ◦ So, “Erie Doctrine” became a question of whether a state law was SUBSTANTIVE as a rule of decision under the RDA or PROCEDURAL, so that federal law applied. ◦ In state law the judge decides who is the deemed employer ◦ In federal law the jury decides who is the deemed employer  From Guaranty v York test, no clear answer on the outcome because it is not certain whether the judge and the jury would have disagreed (this is why we use the Byrd balancing test)  Because the outcome determinative test does not help to answer the question, the court in Byrd begins to question the effectiveness of the outcome determinative test (causing the same problems Swift was causing before Eerie)  Federal Procedural Policy is equally important and reinjects the importance of federal decision making (not just focusing on outcome determinative test)  Byrd court uses Byrd balancing (the policy reasons behind the state procedure vs the federal procedure)  Policy reasons behind state law and giving the decision to the judge instead of the jury, is for efficiency  Policy reasons behind federal law and giving the decision to the jury, is for due process Holding: We do not think the likelihood of a different result is so strong as to require the fereal practice of jury determination of disputed factual issues to yeild to the state rule in the interest of the uniformity of the outcome * Byrd used when the use of federal rule would result in an impermissibly different outcome in federal court and in order for York to apply there must be ahigh liklihood of different outcomes

Answer 160

* Petitioner, a citizen of Ohioh, filed her complaint in the district court of massachussettes claiming damages for personal injuries resulting from an automobile accident * Respondent, was also a mass. citizen * Service was made by leaving copies of the summons and the complaint with respondent's wife at his residence in compliance with FRP 4(d)(1) * Respondent argued that service was made in violation of Mass.'s General Laws, which says that service must be delivered in hand

Answer 161

* The holding of prior cases was not that Erie commanded displacement of a federal rule by an inconsistent state rule, but rather that the scope of the federal rule was not as broad as the losing party urged, and therefore, there being no federal rule which covered the point in dispute * The Erie rule has never been invoked to void a federal rule * The opinion in Erie involved no federal rule and dealt witha question which was purely substantive * To hold that a federal rule of procedure must cease to function whenever it alters the mode of enforcing state created rights would be to disembowel either the constitution's grant of power in the enabling act. Rule 4(d)(1) is valid and controls the instant case

Answer 162

* Hanna reinterprets Byrd case • Question of federal power to enact the federal rule or statute that is at issue o If the federal court DOES have the power, federal law controls * Based on the supremacy clause in article 6 of the US constitution * Twin aims of Eerie is equitable administration of the law (equal protection) and avoiding forum shopping * Focus on the rules enabling act 2072 (statute that gives courts power to create FRCP) o If the court has the power to create a FRCP and they do so fairly, then that rule will supersede any state procedural rule (basis for Hanna case)

Answer 163

1. Look for a written down FRCP or procedural statute AND 2. If that rule or statue would apply, does the statute or rule directly clash with the operation of the state procedural statute that is offered up by one of the litigants (is it within 2072(b)) 3. If there is a direct clash and you cannot do both, then the federal law will prevail (is the rule unconstitutional) a. No court has ever held No on one of the two Hanna questions

Answer 164

◦ If FRCP applies, is it consistent with the REA (esp 2072(b))?  In other words, is the FRCP REALLY procedural? (Because if the rule changes an underlying substantive right, it is behaving as a substantive rule.) ◦ Is federal procedural statute at issue Constitutional?  Ie, does federal govt have power to enact it?  If FRCP @ issue, relevant stat is 2072. Otherwise, consider procedural statute itself (eg, 1332, 1391, 1441, etc). ◦ If yes on both, use federal law.  To date, no court has held no on either question.  But if court DID decide an FRCP violated REA or a procedural statute were unconstitutional, what law should be used?

Answer 165

No specific FRCP/Stat applies, but federal procedural practice or policy different: 1) Is STATE procedure “bound up with” state-created rights/obligations? 1. If Y = state law, If N, go to next step. 2. An example is statute of limitations, because they appear procedural (because they tell you when you can bring a claim) but they also cut off your substantive rights to sue 2) If fed law used, is there NECESSARILY different OUTCOME which would violate “twin aims of Erie? 1. Would difference CAUSE forum shopping? or 2. RESULT in inequitable treatment of same state Ds? 3. If Y = state law 4. If it would cause P to chose federal or state forum or it would result in a n inequal treatment of Ds based on their state citizenship based on diversity 5. If No on both = Byrd balancing situation (no clear outcome determinative situation) 1) There must be a clear winner, either federal or procedural policy wins If no on both, weigh/balance POLICY behind state procedural rule at issue with POLICY behind federal procedural rule at issue – most important policy controls

Answer 166

HANNA (IF Y FRCP/STAT) 1) FRCP consistent w/2072(b)? 2) Statute constitutional? (IF N USE STATE LAW) 3) If both Y = Fed L BYRD (IF NO FRCP/STATE) 1) State procedure “bound up w/ state-created rights? 2) Would diff Outcome cause forum shopping or result in inequality betw. Ds in same state? 3) If both N, weigh/balance federal & state policy behind procedures. IF Y TO ANY USE STATE LAW

Answer 167

• Purpose = to decide whether State rule to apply in Federal court is really SUBSTANTIVE (affecting underlying rights and obligations) (York, Ragan) or PROCEDURAL (process/method) (Byrd, Hanna), b/c RDA (28 USC 1652) = If substantive, use state law; if procedural, use federal law. • Focus = Federal power to make law? (Hanna) • Step 1: In a federal diversity action, does a Federal procedural statute or FRCP control and is in direct conflict with a state statute that arguably should apply in the federal action? • If Y, use Hanna analysis / track. If N, use Byrd analysis / track.

Answer 168

• HANNA = If FRCP, does Rule stay within boundaries of 28 USC 2072(b)? Is statute at issue constitutional (statute at issue will be 2072 if FRCP controls)? If Y to both, Federal law controls. • BYRD = Is state procedure “bound up with” state substantive law? Would outcome of federal and state suits NECESSARILY differ if the state statute is NOT applied and cause a violation of “twin aims” of Erie? If Y, use state law. If N, balance policy behind the adoption of the state procedure & federal procedure. Most important policy controls.

Answer 169

• HANNA = If FRCP, does Rule stay within boundaries of 28 USC 2072(b)? Is statute at issue constitutional (statute at issue will be 2072 if FRCP controls)? If Y to both, Federal law controls. • BYRD = Is state procedure “bound up with” state substantive law? Would outcome of federal and state suits NECESSARILY differ if the state statute is NOT applied and cause a violation of “twin aims” of Erie? If Y, use state law. If N, balance policy behind the adoption of the state procedure & federal procedure. Most important policy controls.

Answer 170

Facts similar to Ragan: Injury was 8/22/75. Negligence Action Complaint filed W.D. OK 8/19/77. Service 12/1/77. * State S/L required service to toll S/L. Defendant moved to dismiss for S/L. * Ct granted under Ragan. * P said Ragan implied overruled by Hanna v Plumer. * York “led logically to Ragan.” Hanna distinguished Ragan rather than overruled it. Hanna requires “direct collision” between FRCP and state law. In Hanna clash unavoidable. Here, R3 governs date from which requirements of federal rules begin to run Bf

Answer 171

Gasperini (P) loaned 300 slides (transparencies) to Center for Humanities to use in a videotape. Center (D) lost slides. * Gasperini sued in federal court for negligence, conversion, & B/K. Expert testimony valued slides at $1500 each. Jury awarded $450K ($1500 x 300 slides). * D moved for New trial on grounds of excessive verdict * On appeal, 2d Cir applied NY state statute requiring appeals court to find award excessive if it “materially deviates from reasonable compensation.” 2d Cir ordered new trial unless P agreed to $100K.

Answer 172

Shady Grove sought payment for care rendered to patients insured by Allstate. Allstate delayed in payments, violating NY state law. * NY law provides for statutory interest for late payments but specifically provides that actions to recover penalties may not be maintained as class actions. * Shady Grove brought a class action in federal court on behalf of itself and others similarly situated under FRCP 23 to whom Allstate owed interest. * Notice that here the court majority and dissent splits at the very first issue: whether FRCP 23 and the NY statute are in direct conflict.

Civil Procedure II Flashcards

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