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Author:  	Mr. Neal A. Davis (ndavis@mail.utexas.edu)
School:		University of Texas School of Law
Course:		Civil Procedure
Year:		Fall 1995 and Spring 1996
Professor:	Edward Sherman
Book:		Civil Procedure:  A Modern Approach, Second Edition (1995), by Marcus,
Reddish, and Sherman

Message from the Author:

Thank you for downloading this outline.  I hope it is as helpful to you as it was to me.  If you use this outline, please send $1 cash to help cover my time and effort in making this and future outlines available.  My address is:

Neal A. Davis
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If you have any questions, feel free to e-mail me at:  ndavis@mail.utexas.edu

Your support will be greatly appreciated.  Good luck!

Sincerely,
Neal A. Davis

Civil Procedure Outline
1995-96
Prof. Edward Sherman

Recommended study aids:  UT Prof. Charles Wright’s hornbook on the federal rules is outstanding, and is often relied on and cited by federal courts in their opinions.  I highly recommend your purchasing this book.  The Gilbert’s on Civil Procedure is very good, particularly since it is written by Marcus (a co-author of Sherman’s casebook).  Since Wright’s hornbook covers only the federal rules, it is worth consulting Arthur Miller’s hornbook on civil procedure for non-rule issues (i.e., personal jurisdiction).  There is one simple rule to follow in Sherman’s course—make sure you read the notes following the cases.  Often times, the answers on his exams can be found in these notes.  

Choosing a System of Procedure

I. Substantive Law v. Procedural Law

	A. The line between substantive and procedural law can sometimes
	be difficult to draw, but there are some basic distinctions:				

		1. Substantive law defines legal rights and duties in everyday conduct.

		2. Procedural law sets out the rules for enforcing substantive rights in the 			court.

			a. Without procedural law, there would be no 						standardized method of litigation, all cases would 
			be decided ad hoc, and there would be no 							procedural consistency in similar cases.

			b. The hardest and most important job of a 
			procedural system is to strike a wise balance
			throughout the various points of conflict.

			c. The courts often seek to accomplish
			substantial justice by adhering to established
			substantive law while manipulating procedural
			rules in favor of the "right" party. This causes
			the worst procedural rulings, and is unjust.

II. Adversary (or Anglo-American) System v. Continental (or European) Law

	A. Our procedural system is adversarial. In civil disputes, it is up to the
	parties, not the court, to initiate and prosecute litigation, investigate
	the pertinent facts, and present proof and legal argument.

 		1. The Court

			a. The court's function is generally limited to 
			adjudicating the issues raised by the parties and 
			providing appropriate procedural sanctions to the parties.

			b. The court is an essentially passive arbiter, or what
			Frankel calls a "passive umpire," while counsel	 					handles the presentation and prosecution of a case.

				(1) Depending on the case, a judge can play a more
				active or passive role. In "public question"
				litigation such as school desegregation and
				prison administration, or in dispute resolution,
				the judge plays a more active role. 

				(2) A fair generalization is that federal judges 
				are traditionally more active than state judges.
		2. Counsel

			a. Handles presentation and prosecution of cases.

			b. Prosecution and defense should have a balanced
			opportunity to investigate and present proof and legal
			argument.

		3. Advantages and Disadvantages of Adversarial System

			a. The adversarial system operates under two assumptions, which 	
			are its supposed advantages:

				(1) The truth is likely to emerge more from bilateral
				investigation and presentation, motivated by the
				strong pull of self-interest, than from judicial
				investigation motivated only  by official duty 
				(as is the case in Europe)

				(2) The moral force and acceptability of a decision
				will be greatest when it is made by someone--in
				our system a judge--who is not (or supposed to
				not be) biased toward a certain side or position.

			b. Another advantage of our adversarial system is its
			system of "checks and balances" between attorneys
			and judges.  Counsel can try to pursuade a judge to
			rule a certain way, and can appeal judge's decisions
			during or after trial.

			c. The disadvantages of our system:

				(1) Poorly prepared judges or counsel, which could
				easily lead to unjust or unfair results.

				(2) Overzealous judges or counsel who violate the
				law or do unethical things in order to forward their 						own cause.

	B. The Continental system in Europe involves a much more active
	judge with counsel playing a more passive role than their Anglo-
	American counterparts. The chief function of the court in the
	Continental system is to find out the truth and not merely decide
	which party has adduced better evidence.

		1. Lawyers

			a. The lawyers, through an examination of the facts,  					determine what the specific question will be in 						litigation. As result, counsel draws the perimeters of 
			the dispute and within these the court must determine 					the issues raised by the parties.

			b. Counsel asks the witnesses supplementary questions, 					after the judge has finished interrogating witnesses. 

		2. Judges

			a. The judge advances the course of the proceedings and
			conducts the hearings at the trial. 

			b. It is the judge's duty to find and apply the law to the
			issues in the case at hand.

			c. A judge can do many things not normally allowed in
			our system:

				(1) He interrogates the witnesses and experts

				(2) He can appoint his own experts, even if counsel
				has not requested him to do so.

				(3) He is heavily involved in "document production," and 					has the ability to request documents from litigants or 					witnesses.

		3. Advantages and Disdvantages of the Continental System

			a. Advantages

				(1) The search for truth and justice is given 
				priority over what party merely produces the
				best evidence.

				(2) A poorly prepared attorney does not hamper
				the pursuit of justice as much as it would in
				the Anglo-American system, where counsel
				plays a much more active role.

			b. Disadvantages

				(1) The judge, because he is officially appointed, 						might not take the kind of interest in a case that counsel 					does in Anglo-American system.

				(2) Often times, the lawyers do not question witnesses at 					length because they are afraid that extensive questioning 					might appear to be critical of the court.

III. The Judge's Role in our Anglo-American System

	A. Legal Theory: the Role of the Judge

		1. Fuller, "The Problems of Jurisprudence" (13)

			a. The moral force of a judgment or decision will be maximum 				when these six elements are all present:

				(1) J doesn't act on his own initiative, but on the application 				of one or both disputants.

				(2) J has no direct or indirect interest in outcome of case.

				(3) J confines decision to controversy before him and 					doesn't attempt to regulate parties' relations beyond that 					controversy.

				(4) Case presented to J involves an existing, as opposed to 					future, disagreement.

				(5) J decides cases solely on the basis of evidence and 					arguments presented to him by parties.

				(6) Each disputant is given ample opportunity to present his 				case. 

		2. Zeidler, "Evaluation of the Adversary System" (14) -- SEE 				COMMENTS ABOVE (IIB) ABOUT CONTINENTAL SYSTEM 

		3. Frankel, "The Search for Truth: An Umpireal View" (15)

			a. The judge is a "passive umpire" who views cases "from a peak 				of Olympian ignorance." This can have negative consequences:

				(1) J is often unprepared and ignorant about the case at 					hand. As a result, his interruptions are sporadic and out of 					character, and can sometimes mislead the jurors.

				(2) "The judge is a blind and blundering intruder; acting in 					spasms as sudden flashes of seeming light may lead or 					mislead him at odd times." 
		 
	B. Cases: Judicial Power

		1. What a judge can and cannot do:

			a. Rule 16 in Rules of Civil Procedure (RCP) outlines how much 				power a judge has in establishing pretrial conferences, scheduling 				and management.

				(1) Although the law favors the voluntary settlement of 					civil suits, it does not sanction efforts by trial judges to 					effect settlements through coercion. In short, pressure 					tactics to coerce settlement simply are not permissible.  					Rule 16(f) of  FRCP "was not designed as a means of 					clubbing the parties--or one of them--into an involuntary 					compromise." Kothe v. Smith.

				(2) Rule 16(f) says that if a party or his lawyer fails to 					participate in the pretrial conference, fails to do so in good 					faith, or fails to comply with scheduling or pretrial order, 					the judge may apply whatever sanctions are “just.”

			b. A judge must use the "greatest restraint" in calling witnesses. 				Band's Refuse v. Borough of Fair Lawn

			c. A trial judge is supposed to be impartial, but this does not mean 				that he cannot occasionally ask questions of a witness in an effort 				to clarify testimony for the jury. Band's

			d. Unless the circumstances require it, a judge should avoid 				meeting with a party ex-parte (appearance of impartiality). If he 				does this, he must notify the opposite party that he is meeting with 				a party ex-parte. Band's 

			e. A judge cannot add a new issue in a trial without giving counsel 				appropriate amount of time -- a "full and fair opportunity" -- to 				respond to issue. Band's

			f. If an amicus curiae is appointed or allowed, he should not be 				given a great deal of power, or at least more power than we 					normally see in our adversary system. Band's

			g. There should be a balancing of judicial power against the 				interests of a litigant. Judicial self-restraint and impartiality 				are crucial to the legitimacy of the judicial system. Band's
  
			h. "Courts may not only be impartial; they must give the 					appearance of impartiality."  In Band's, this especially refers to 				meeting with an attorney ex-parte.

NOTE: The extent of judicial power has been re-considered over the last few decades as the number of large-scale lawsuits and class-action suits has dramatically increased. If a manufacturer of breast-implants is sued by 10,000 plaintiffs, should the judge try his best to force a settlement so that the courts are not flooded with these lawsuits?  Just how far should a judge go in dispute resolution?  See the Agent Orange case on p. 23-24.  Should a judge exercise more power if the interests of the “public good” are threatened? Remember that the judge in Band's tried to justify his active judicial role by arguing that he was trying to "protect the public interest." Also, see Reserve Mining Co.  on p. 11.

IV. Procedural Complications of our Federal System (24-25)

	A. Subject Matter Jurisdiction

		1. There are basically two situations in which federal courts have such 			jurisdiction:

			a. If there is a federal question, such as a violation of civil rights 				or federal antitrust laws.

			b. If there is diversity of citizenship, in which two conditions 				must be met:

				(1) No plaintiff can be a citizen of the same state as any 					defendant (this does not prevent a pair of plaintiffs, or 					defendants, from being co-citizens).  There is no diversity if 				there is a suit between two aliens (or non-US citizens), but 					there is diversity if there's a suit between a citizen of one 					state and an alien or foreign national. 

					Example: P1 and P2 are citizens of Texas. P3 is a 						citizen of Alaska. D1 and D2 are citizens of 							California.  D3 is a citizen of Alaska. There is no 						diversity here because P3 and D3 are citizens of the 						same state. There must be complete diversity.

				(2) P contends in good faith that the matter in controversy 					exceeds $50,000.

				NOTE:  There must be complete diversity when applying
				FRCP, unless specifically stated otherwise in rule.
						
		2. If they so desire, the parties can have their case heard in a state court of 		"general jurisdiction" instead of a federal court.

		3. If a case goes to federal court because of diversity of citizenship and the 			case does not involve federal claims, then a federal judge should 				apply substantive state law to determine claim and should apply 				federal procedural law. 

		NOTE:  The rationale for the existence of diversity jurisdiction has 			traditionally been that it offers a federal forum for out-of-state 				litigant who would be exposed to local prejudice if suit was held in 			a state court.

Prejudgment Seizure and the Due Process Clause

I. Important Definitions 

	A. The Due Process Clause of the Fourteenth Amendment states:  "[N]or shall any 	State deprive any person of life, liberty, or property, without due process of law..." 	In order for there to be a violation of the Due Process Clause, the State must be 	involved on some level (i.e., a writ of replevin is issued by the court or enforced 	by the sheriff).

	B. A prejudgment seizure of the defendant's property is a means of insuring that 	property will be available for execution in case the plaintiff prevails. All states 	have developed statutory procedures for some prejudgment seizure of assets under 	a variety of names -- replevin, garnishment, attachment and sequestration.

II. Procedural Protections of Property Seizure

	A. Fuentes v. Shevin

		1. A notice and a hearing should be provided before seizure of property, so 		that a deprivation can still be prevented. The hearing should take place 			before a judge.

		2. Even if the title to property is not in defendant's name, he owns property 		because he has made payments on it. Thus, he is entitled to certain 				protections, such as a pre-attachment hearing, under the Due Process 			Clause.

		3. There are "extraordinary situations" that justify postponing notice and 		opportunity for a hearing.

			a. Seizure must be directly necessary to secure an important 				governmental or general public interest.

			b. There has been a special need for very prompt action.

			c. The state has strict regulations regarding enforcement
			of seizure; and the person initiating the seizure has been a
			government official responsible for determining, under
			the standards of a narrowly drawn statue, that it was 
			necessary and justified in the particular instance.

	B. Mitchell v. W.T. Grant Co.  

		1. There must be a verified affidavit that includes specific facts
		as to why attachment is necessary.

		2. There must be some allegation of extraordinary circumstances

		3. There must be judicial authorization

		4. An immediate post-deprivation hearing is required. A PRE-
		DEPRIVATION HEARING IS NO LONGER REQUIRED.

		5. There should be a bond requirement (twice the value of property)

		6. There should be damages awarded for wrongful seizure.

	C. North Georgia Finishing, Inc. v. Di-Chem, Inc. 

		1. The Supreme Court ruled that a couple of state statutes were 				unconstitutional because they:

			a. Allowed a clerk, not a judge, to issue a write of replevin.

			b. There was no provision for a prompt pre- or post-
			deprivation hearing.

			c. There was no requirement for a bond to protect 
			against wrongful seizure.

			d. It was easy to allege that lessee might hide or transfer
			property.  No personal knowledge was required to make
			allegations.	

	D. Connecticut v. Doehr (Sherman says that this is a reaffirmation of the spirit of 	Fuentes.)

		1. The Connecticut Statute was unconstitutional because:

			a. It authorizes prejudgment attachment of real estate
			without prior notice (this is to prevent arbitrary deprivations of 				property)

			b. A lengthy period of time often passed before a 
			defendant was allowed a post-deprivation hearing (weigh costs of 				this against constitutional rights)

			c. The statue does not require a bond 

		2. What is required to make statute constitutional:

			a. There should be a timely notice to defendant that his property is 				going to be seized AND

			b. There should be a prompt pre- or post-deprivation hearing. 

			c. Four of the nine justices -- not a majority of the court --
			argued that a bond should be required to protect the
			defendant against wrongful property seizure. 

		3. The court in Connecticut applied a three-part test (as enumerated in 			Matthews v. Eldridge), normally used in government seizures, to seizures 			between private parties (51).  These three factors, used to judge the 			validity of a state statute dealing with pre-judgment attachment, must be 			balanced against each other:

			a. Strength of D's private interest:  The interest of the private party 				being harmed by the attachment, which places a severe restriction 			on the property’s alienability and encumberability (i.e., 					diminishes  property’s value). The more important D's property 				right, the harder it is for due process to be satisfied.

				Example:  A record player would be considered a less 					significant private interest than a refrigerator (especially if 					D needs to take her medicine cold) or a house (which, after 					a seizure, D will have difficulty selling or remortgaging).

			b. Risk of erroneous deprivation:  The greater the risk that the 				particular procedures being used will result in an erroneous 					interference with D's property rights, the harder it is for the 					procedure to pass due process scrutiny.

				NOTE:  This is why a bond is posted by P -- so that the 					individual will have recourse if wrongfully deprived of his 					property.  Sherman says that in some cases a bond that is 					double the value of the property may not be enough.
		
				NOTE:  It is more difficult to gauge the risk of erroneous 					deprivation for a suit for battery than, say, a suit for breach 					of contract.  This is because the former is so much more 					fact-laden, and thus an affidavit doesn’t seem to help much 					(two people are likely to have different versions of what 					really happened).

			c. Interest of the party seeking the remedy:  If the party seeking 				attachment has no reason to fear that the property may be secreted 				(i.e., covertly appropriated), then his interest is not all that 					compelling.

	E. Clues to a bad statute -- These are statutory provisions that make it more
	likely that a due process violation will be found:

		1. P doesn't post bond -- Due process could be violated if the statute 			doesn't require P to post a bond (even if there's a hearing and some 				showing of exigency), from which D can collect damages should there be 			a wrongful attachment.  (No bond heightens the risk of erroneous 				deprivation.)

		2. Deprivation before hearing -- If D does not get notice for a 
		hearing until after the attachment, a due process violation
		is much more likely to be found than if the notice arrived
		before attachment. But even a pre-attachment hearing does
		not completely protect the statute, if the risk of an erroneous
		deprivation is too high or P's interest in having attachment
		is too weak.

			NOTE:  Even if D’s property is attached before a hearing, Mitchell 				offers a number of safeguards which, if followed, can perhaps still 				make the statute constitutional.  These safeguards include:

				(1) allegations of extraordinary or exigent circumstances

				(2) verified affidavit authorized by judge (or, less 						favorably, a justice of the peace)

				(3) damages for wrongful seizure (i.e., a bond)

				(4) immediate post-deprivation hearing

		3. Clerk rather than judge -- If decision whether to allow the 
		attachment is made by a clerk rather than a judge, a due
		process violation is more likely to be found.  (One who is personally 			knowledgeable about the matter.)

		4. Conclusory statements -- If P is able to obtain attachment
		by making conclusory statements rather than by making a 
		detailed disclosure of the underlying facts of the dispute, due 
		process is more likely to be violated.

		NOTE:  Sherman says that we should approach a possible Due Process 			violation by first applying the three-fold inquiry from Connecticut.  (That 			is to say, a statute can be found unconstitutional if it falls short under 			Matthews.)  He says there are really no hard-and-fast “rules" about an 			unconstitutional statute.

Postjudgment Remedies

I. Three Types of Damages: Monetary, Equitable and Declaratory

	A. Monetary damages -- This is the usual remedy in our legal system.

		1. Three primary types of monetary damages

			a. Actual or compensatory damages -- These are damages that 				will compensate the injured party for injuries sustained,
			and nothing more. The rationale behind compensatory
			damages is to restore the injured party to the position he
			was in prior to the injury.

			b. Punitive or exemplary damages -- These are damages on an
			increased scale, awarded to P over and above what will
			compensate him for his injury.  The purpose of these
			damages is to punish D and/or set an example for
			similar wrongdoers, and they are most often awarded in cases of  				defamation, civil rights violations, and 4th Amendment violations.

			c.  Nominal damages -- These are a trifling sum awarded to P in
			an action where there is no substantial loss or injury to the 					compensated, but still the law recognizes a technical invasion of 				his rights or a breach of D's duty.  These are also awarded in cases 				where, although there has been a real injury, P's evidence entirely 				fails to show its amount.
	
			NOTE:  Sherman says that nominal damages (like for $1) vindicate
			the cause of a plaintiff's case, and that they are a way “for courts to 				speak out.”

		2. Attaining monetary damages

			a. Our legal system's concept of damages:  "The cardinal
			principle of damages...is that of compensation for the
			injury caused to plaintiff by defendant's breach of duty...
			[damages are available for actions] found to have been
			violative of constitutional rights and to have caused
			compensable injury."  Thus, just as tort law requires
			actual injury for compensation to be merited, violation
			of constitutional rights requires actual injury for 
			damages to be merited.  Carey v. Piphus

				NOTE:  Must be actual damage -- In the absence of actual 				harm, such as proven emotional suffering or mental anguish 				that resulted from constitutional violations, only 						nominal damages can be awarded.  Thus, a violation of 					constitutional rights does not automatically result in 					punitive or compensatory damages -- actual damage 					must be shown.  Carey.

			b. There is not always a scientific measurement for damages. There 			are occasions, such as with mental anguish, where there is 					no single formula for damages.

				(1) Often times, the reality is that pain and suffering
				are difficult to measure and prove, so Ps are
				routinely allowed to recover without a specific
				showing of the extent of these damages. (77)
			
					Example:  In Mieske v. Bartell Drug Co., Ps 							recovered $7,500 for loss of their home movies, 						which included their wedding, honeymoon, 							vacations and their children growing up. The jury 						was instructed not to compensate for sentimental 						value, but it's doubtful they really followed these 						instructions.

				(2) Market value is not the appropriate measure for 						damages in all situations.  Damages are meant to 						compensate for the loss actually sustained, or the "actual 					worth to the owner" (sentimental value excluded).  No 					general rule can be laid down as to how to determine the 					amount of such loss.  Wall v. Platt

					Example:  In Wall, a railroad started a fire that 						destroyed P's house and the contents of the house. 						Although the house would cost $5,250 to rebuild, 						rebuilding it would only add $3,250 to the value of 						the lot without the house. Ct. awarded P $5,250 on 						the ground that it reflected the "real value" of the 						house. Although D attempted to argue that the items 					in the house were used and second-hand items could 					be obtained very cheaply, the court upheld a 							significantly higher amount as proper for the 						"intrinsic value of the articles," looking at the cost 						of new replacement articles and then determining 						their "worth to the owner" in light of their condition 					at the time of the fire. 

		3. Enforcing monetary damages	
	
			a. A money judgment is "not an order to the defendant;
			it is an adjudication of his rights or liabilities. No one may
			be held in contempt for failing to pay some debts as 
			adjudicated by the law court" (78).  If D does not pay
			judgment, P, now known as "judgment creditor,"
			must take further action against D, now known as 
			"judgment debtor."

				(1) P's methods of acquiring money judgment:

					(a) Since judgments ordinarily can be enforced 						against assets, as opposed to income, P only has a 						limited opportunity to reach D's earnings (i.e., 						Deducting child-support and alimony payments 						from income of "dead-beat" parent).

					(b) Try to locate assets of significant value. If
					they're located, P can obtain a writ of 
					execution from the court directing a sheriff
					or similar officer to "levy" assets. "Levying"
					can be the physical seizure of assets, or 
					service of an order on a debtor of D, such
					as a bank or employer, ordering them to pay
					the money over to court.

				(2) D's methods of avoiding paying judgment:

					(a) Certain of D's assets, such as his car,
					clothing, furniture, etc. are exempt from 
					seizure.

					(b) D can declare bankruptcy, which can
					protect him against creditors and judgments.

	B. Equitable relief:  The court can impose an injunction or specific performance

		1. Injunction v. Temporary Restraining Order (TRO). Rule 65.

			a. An injunction can be issued only after notice (and opportunity to 			be heard) to the adverse party and can last indefinitely.  In 					order for a temporary or permanent injunction to be granted, the 				court must ask (as listed in Note 1, page 85):

				(1) whether P has actually succeeded on the merits

				(2) whether he has an adequate remedy at law

				(3) whether he risks imminent, irreparable harm

				(4) whether the balance of hardships weighs
				against issuance of an injunction

				(5) whether an injunction would serve the public
				interest; and

				(6) whether the court can, as a practical matter,	
				administer the injunction	

			b. A TRO may be granted without notice to the adverse party -- 				It can be done ex-parte, but cannot remain in effect for more than 				10 days.  If "good cause" is shown, the TRO can be extended for 				the same period as the previous TRO.  In order to get a TRO, P 				must show:

				(1) Irreparable injury -- P's interest far outweighs D's; AND

				(2) That P has a good chance of winning the suit on its 					merits.

			NOTE:  Rule 65(b) permits TROs on a verified complaint showing 			that the petitioner will suffer “immediate and irreparable 					injury, 	loss, or damage” if restraining order is not granted.
 
			c. Both an injunction and TRO are similar in that they direct a 				party to do, or cease doing, something.

		2. Attaining equitable relief

			a. Where monetary damages would prove inadequate, an
			individual may seek an injunction enforcing some right
			he claims has been violated. "Money damages, even
			though inadequate, are the best possible remedy once
			physical damage is done, but they are certainly
			inadequate to compensate permanent injury which
			could have been prevented. Plaintiff should not be
			required to await the harm's fruition before he is entitled
			to an inadequate remedy."  Smith v. Western Electric Co.

		3. Enforcing equitable relief -- There are three ways to enforce equitable 			decrees:

				(1) Criminal Contempt -- Violation of a court's order
				can be prosecuted as a crime. The distinguishing
				feature of criminal contempt is that the penalty
				imposed is not designed either to compensate P or
				to prompt compliance in the future. Guilt must
				be proven beyond a reasonable doubt.

				(2) Compensatory Civil Contempt -- The court can direct D 				to pay P an amount that will compensate P for the harm 					caused by violation of decree. 

				(3) Coercive Civil Contempt -- The court may impose a 					penalty on D in order to prompt future compliance with the 					decree (rather than punishing D for past violations). The 					penalty can be severe, including imprisonment for an 					indefinite period or hefty fines (i.e. in a lawsuit, IBM was 					fined $150,000 per day until it turned over documents).  					This would be best contempt remedy for Smith if D did not 					comply with injunction.

	C. Declaratory Judgment -- This is a court order declaring the respective 			rights of the parties.  For example, A is using a process that violates B's 			patent.  B lets A know that A is in violation of B's patent rights.  A 				responds to B by saying that he is not violating B's rights.  A and B can go 		to court and have the judge decide the issue in what is known as a 				"declaratory judgment."  This judgment allows A not to go through all the 			actions and consequences -- what Sherman calls "taking the fatal steps" -- 			before going to trial.  Thus, A does not have to continue violating B's 			patent and wait until B brings a lawsuit that claims all sorts of damages.  A 		and B can simply seek a declaratory judgment. 

		NOTE:  A declaratory judgment is neither equitable or legal. 				Generally, it is decided by a judge, and it can involve a full trial.

	D. Collateral bar rule -- D cannot challenge the validity of the injunction 			in the "collateral" contempt proceeding.  In other words, once an 				injunction is issued, then it must be followed.  If D wants to challenge the 			injunction's validity, then he can appeal it, but in the mean time he must 			follow 	injunction. (93)

			NOTE:  D’s following the injunction (like with the MLK march) is 			predicated on the belief that there must be some certainty within a 				legal society.

II. Justiciability

		A. In the federal judicial system, courts are to decide only "cases" or 			"controversies." The controversy must be definite and concrete, touching 			the legal relations of parties having adverse legal interests. It must be a 			real and substantial controversy, as opposed to an opinion advising what 			the law would be upon a hypothetical set of facts. 

		B. Justiciability--whether it is feasible for a court to carry out and enforce
		its decision--has been broken down into a number of doctrines, each of 			which must be met in order to bring suit:

			1. Ripeness -- It is not enough that a controversy might
			one day erupt; P must show that it has already done so,
			thereby presenting a legal issue in a concrete context.

			2. Standing to sue -- P must demonstrate that he is 
			"himself among the injured," and that he has a direct
			stake in the case or controversy.  P must suffer an "injury
			in fact" and have a "personal stake" in the outcome that
			differentiates him from the public at large; and

			3. Mootness -- The requisite personal interest that must
			exist at the commencement of the litigation (standing)
			must continue throughout its existence (mootness). In
			a sense, an amalgam of ripeness and standing--the suit
			may be pursued only if there's an actual controversy
			in which plaintiff still has a personal stake. 

				NOTE:  Where the controversy would seem to unavoidably 				expire before adjudication, the mootness problem may be 					disregarded if the problem is "capable of repetition, but 					evading review."

			4. Feigned or collusive cases -- P must assert himself:  P 
			himself must assert his own interest. Thus, a landlord cannot get a 				tenant to sue him over a "rent control" regulation just to test the 				regulation's validity.
			
				NOTE:  In issues involving the First Amendment, there
				is a more lenient standard for ripeness. The rationale
				for this is two-fold: 1) there tends to be a chilling effect
				from something, such as a speech code or local ordinance,
				that curtails free speech and 2) we hold particularly sacred
				our First Amendment rights. For example, if Stanford has 					an arguably unconstitutional speech code written into the
				Code of Student Conduct, a student can challenge the 					speech code, even though he has not actually violated it or 					suffered an "injury in fact," since he is in general subject to 					the speech code. 

Alternatives to Litigation

I. Types of alternatives to litigation

	A. The means of dispute resolution range from the parties' informally discussing 		and negotiating the conflict, to more formal processes outside the court system 	(like mediation and arbitration), and finally to reliance on alternative processes 	integrated into the court system (like summary jury trials and court-annexed 	arbitration).  Judges today are very much involved in the promotion of settlement, 	whether through informal jawboning, or more formal ADR devices.  There are 	three alternatives to a full trial:

		1. Negotiation and settlement promotion -- This is when the lawyers of 			parties meet together and try to resolve the dispute. The court, under Rule 			16, can try to facilitate settlement by suggesting to parties that they 				negotiate. 

		2. Third-party intervention -- This is when a third-party intervenes to 			help settle the dispute. This mediation is different from negotiation 			because a third-party, called the "mediator," is involved. 

			a. Unlike a judge, the mediator lacks any authority to decide who is 			right.  Furthermore, the parties are not bound by legal rules about 				behavior.

			b. The mediator performs primarily two important tasks: 		

				(1) Reducing the level of antagonism between the 						parties, and persuading them to trust each other.

				(2) Being creative and suggesting alternative approaches 					which may facilitate agreement. 

		 	c. Once the parties agree voluntarily to a specific solution, the 				mediator will put the agreement in writing and have the parties 				sign it.  This agreement is legally binding, if it satisfies the 					requirements of contract law.

			NOTE:  Mediation is what Sherman calls “bargaining in the 				shadow of the law.”

		3. Arbitration -- This form of dispute resolution resembles adjudication 			more than mediation because a third person, the "arbitrator," has the 			authority to decide the dispute, not merely to try to get the parties to agree 			on a decision.

			a. An agreement to arbitrate could occur after the dispute arises, 				but ordinarily it is part of an agreement on some other subject 				between the parties prior to the dispute (i.e., a clause in a contract 				that states, should there be a dispute, it shall go to arbitration).

				NOTE: These arbitration clauses are being challenged as a 
				"coerced abdication of the right to jury trial," and as						protecting companies and corporations from large monetary 				awards by juries.

			b. Evidence-gathering, calling witnesses, the timing and place of 				hearing, etc., are all part of arbitration, and are decided on by the 				parties.

			c. After a hearing, the arbitrator renders a decision, called an 				"award," which does not contain the reasons for the result (except 				in labor arbitration). In reaching this decision, the arbitrator does 				not have to follow the law, and his judgment can be obtained in 				court on the basis of this award. His award is final, and there can 				be no appeal -- absent something like bribery.

			NOTE:  Sherman considers arbitration to be an extra-judicial 				measure, in which parties in essence waive their 7th Amendment 				right to a trial by jury.
			
	B. Adjudication v. alternatives to litigation:

		1. Alternatives to litigation are conducted privately and extrajudicially.

		2. Alternatives are not bound by court procedures nor strict standards of 			evidence, and there is no "robed judge and ritual."
		
	C. Advantages and disadvantages to alternative litigation:

		1. Advantages

			a. Savings of cost and time both to litigants and court system

			b. Tends to be a better outcome for parties in a flexible system 				structured by the parties, as opposed to rigidity of court procedure.

			c. Finality -- If the settlement is legally binding, then it cannot be 				appealed. 

			d. Case can be kept out of courts and is not part of the public 				record, which can be an advantage or disadvantage depending on 				how you see things.
					
		2. Disadvantages

			a. Does not explicate and give force to the values embodied in 				Constitution and statutes. Prof. Fiss (110)

			b. Arguably diminishes the judicial development of legal rights for 				disadvantaged. Judge Edwards (110-111)

			c. Arguably is "coerced abdication of the right to jury trial," and 				protects companies and corporations from large monetary awards 				by juries.
 
Describing and Defining the Dispute

I. Historical Evolution of Pleading

	A. The word "pleading" derives from the practice that developed after the Norman 	Conquest (1066) by which the persons filed pleas in the royal courts for a remedy 	against one who had wronged them. 

	B. The courts responded to a pleading by issuing a writ -- an order to the sheriff to 	bring the person before the judge on a certain day to answer.

		1. The standardization of writs resulted in the development of forms of 			action, and a suit had to be cast in one of the forms of action. Examples of 			different common law forms of personal actions:

			a. Trespass -- An action for damages for direct, unlawful injury to 				plaintiff's person, property or rights (i.e. hitting a person with a 				stick)

			b. Case -- Action that developed from the situation in
			which the injury was an indirect consequence of D's act
			(i.e. leaving a stick on a walkway where a pedestrian is
			injured tripping over it).

			c. Covenant -- An action for damages for b/K

			d. Debt -- Action to recover a specific sum of money due
			under an express agreement. 

			e. Assumpsit -- Action for damages for non-performance
			of a contract not under seal. It was based on the premise 
			that D had promised to do something and injured P
			in his person or goods by failing to perform.

			f. Detinue -- An action to recover personal chattels from
			one who acquired them lawfully, but retained them w/o
			right (i.e., a bailment).

			g. Replevin -- Action to recover possession of stolen goods.

			h. Trover -- Action for damages against a D who had found
			another's goods and wrongly converted them. 

	C. There were numerous disadvantages to the system of common law pleading, 	which was used in U.S. until the 1830s.

		1. The process of pleading was designed to reduce the dispute to a single 			issue, which reached an extraordinary degree of complexity in by the 19th 			century.

		2. The old common law form of pleading began to change because of the 			pigeon-hole strictness of writs.

	D. "The American Reform Experience" -- Changes in Pleading since 1830s

		1. "Code pleading" came into existence in 1848. It abolished
		the existing writs and mandated that there be only one form
		of action. The complaint only had to contain "a statement of
		the facts constituting the cause of action, in ordinary and concise
		language."

		2. Under code pleading, pleadings were limited to complaint,
		answer, reply and demurrers.

		3. Code pleading had a profound impact on the Federal Rules
		of Civil Procedure (FRCP).

	E. The following functions may be served by pleadings:

		1. Demonstrate that the court has jurisdiction of the subject
		matter of the action (Rule 8(a)(1)).

		2. To give notice of the nature of party's claim to adversaries.

		3. To identify and separate the legal and factual issues in an
		action.

		4. To present evidence

		5. To narrow the issues for trial

		6. To provide a guide for discovery and trial

		7. To expose insubstantial claims

	F. Typical Pleadings under the FRCP

		1. The pleadings allowed in federal courts are: complaints, 
		answers, replies (to counterclaims), answers to cross-claims,
		third-party complaints, and third-party answers. Rule 7(a).

			a. The complaint is the initial pleading filed in any civil
			action and contains the basic allegations that describe P's
			reason to complaint of D and the relief or response P seeks.
		
			b. Answers contain D's responses to the material in 						pleadings and can add additional material constituting
			defenses of sorts. The answer may also contain a 
			counterclaim that presents allegations D makes against P,
			and a cross-claim in which the defending party would 
			make against a co-defendant. P has to respond to this 
			counterclaim. Likewise, a co-defendant would have to
			respond to a cross-claim.		
		
			c. Finally, a third party complaint is made by a defending
			party against additional people who are not yet parties
			to the controversy and the responses of those parties. 

				Mnemonic:  CAT PaC
			
		2. As with any pleading seeking relief, there are the three essential 			parts of all claims (Rule 8(a)):

			a. Jurisdiction: A short and plain statement of the grounds
			on which the court’s jurisdiction depends (unless the court
			already has jurisdiction and the claim needs no new grounds of
			jurisdiction to support it, e.g., a compulsory counterclaim.

			b. Claim: a short and plain statement of the claim showing
			the pleader is entitled to relief. It need only identify the
			occurrence from which the claim arose so as to notify
			defendant of the claim; AND

			c. Relief: A demand for judgment for relief the pleader seeks.

		NOTE:  These elements apply to crossclaims, third party claims, and
		counterclaims, as well as complaints.
		
		NOTE: There is a difference between pleadings and motions. If
		a D files a 12(b)(6), this is not treated as a pleading, but as a motion.
		This has important ramifications. For example, FRCP require that
		a P is free to amend his complaint one, as of right, before D files a
		responsive pleading. If D, instead of filing a pleading, files a motion
		for 12(b)(6), then P still has the opportunity to amend his complaint.

II. Describing and Testing the Plaintiff's Claim

	A. "Notice Pleading" (Rule 8 of FRCP)

		1. Rule 8, in an effort to get away from "facts" and "cause of 				action," requires only that P provide a "short and plain 
		statement of the claim showing that the pleader is entitled
		to relief."  This "statement" essentially serves the task of
		general notice-giving.

			a. Some federal courts have resisted the
			liberal pleading requirements associated with
			"notice pleading." As Judge Posner argues, it
			is too much of a burden on federal courts to simply
			admit pleadings in which "there is no reasonable
			prospect that the plaintiff can make out a cause of
			actions narrated in the complaint."
		
			b. Some courts, though, will uphold the sufficiency
			of the complaint even though there is a failure to
			state the specific claim in the pleading. 

			EX: In Conley v. Gibson, black union-members accused 					their union of racial discrimination. Though the 						complaint contained no specific, direct factual allegation 					indicating conscious discrimination by the union, the
			U.S. Supreme Court upheld the sufficiency of the
			complaint, arguing that the complaint gave the union fair 					notice of the legal issue at hand.

	B. Motion to dismiss the complaint (Rule 12(b)(6)) and Rule 12(c),
	12(e) and 12(f)

		1. If D believes that P's complaint does not state a legally
		sufficient claim, he can make a 12(b)(6) motion to
		dismiss for "failure to state a claim upon which relief may	
		be granted.”  The motion should assert that the facts are true as 
		indicated in P's complaint, but that no recovery is possible under any
		legal theory.  Rule 12(b)(6) is similar to what was once called
		a "demurrer" in old common law.
	
		2. A Rule 12(b)(6) motion must not be granted "unless it appears
		beyond doubt that the plaintiff can prove no set of facts in
		support of his claim which would entitle him to relief."
	
		3. If a motion under 12(b)(6) is granted, P can either:
			
			a. Continue the action in trial court by amending the
			pleading without prejudice OR 

			b. Appeal the decision on the motion. If P loses on appeal, the
			court can allow P to re-plead, or remand to the trial court and
			let the trial court decide whether to allow re-pleading. It is
			doubtful, though, on remand that a trial court would be 
			sympathetic to a plaintiff who gambled on appeal rather than
			re-pleading.
			
		4. Summary Judgment vs. a 12(b)(6) Motion

			a. Like a 12(b)(6) motion, a summary judgment is
			another way to dismiss a complaint. However,
			there is an important distinction between these
			two motions:
		
				(i) A 12(b)(6) motion tests the allegations of the 						complaint and does not get into factual issues.  A 						motion for summary judgment, on the other hand, 						tests the factual support of a complaint, even if the 						complaint is adequate.

		5. Rule 12(c) is what Sherman calls the "plaintiff's 12(b)(6).” 
		Under 12(c), the plaintiff scrutinizes the defendant's answer to
		see if by law the plaintiff is automatically entitled to judgment.
		Rule 12(c) applies primarily to the plaintiff after there has been
		an answer that is inadequate to stand up to the complaint, while
		12(b)(6) applies to the defendant if he thinks the plaintiff's 
		complaint does not allege a cause of action.

		6. Rule 12(e) is a motion for a more definite statement

			a. Under 12(e), if the complaint is "so vague or ambiguous that
			[the defendant] cannot reasonably be required to frame a 				responsive pleading," then the defendant may move for a more 				definite (or specific) statement.
		
			b. The defense has recourse if the complaint does not
			give them enough evidentiary information.  They
			can seek discovery under Rules 26-36. For this reason,
			courts are reluctant to grant a more definite statement. Board of 				Harbor
			
			c. If the pleading is "unintelligible," rather than lacking detail, 				then the complaint must be clarified.  U.S. v Board of Harbor 				Commissioners

			d. There are strategic reasons to being evasive in a 
			complaint (i.e. plaintiff or prosecution does not have
			to "flesh out" its case and "tip its hand" to the defense). 					Board of Harbor
			
			NOTE:  Rule 12(e) applies to the plaintiff as well as the defense.
			For example, if P thinks D’s counterclaim is, say, unintellgible
			or too vague, then he can file a 12(e) motion.

		6. Rule 12(f) provides a motion to strike "redundant, immaterial,
		impertinent, or scandalous matter" or "any insufficient 					defense."  It applies to all parties involved.

III. Consistency and honesty in pleading

	A. Inconsistent allegations (Rule 8(e)(2))

		1. Numerous allegations, even if they are contradictory or
 		inconsistent, are permissible in a case, so long as the plaintiff 				does not have knowledge of the true facts. McCormick v. 					Kopmann
		
		EX: P sought damages for a broken kettle, which he alleged
		D had borrowed and returned in cracked condition. D 
		responded that: a) he never borrowed the kettle, b) it was
		never cracked, and c) it was cracked when he borrowed it.
		So long as D did not have actual knowledge of what exactly
		happened, he can plead these three different, inconsistent
		answers.
		
		NOTE:  Inconsistent allegations are allowed because of the uncertainty
		in outcome of different trials.  P is not forced to file different suits
		because this puts P in a disadventageous position, since separate trials
		could lead to inconsistent results.  (Note that this may lead to unfairness 			for Ds, as there is now a chance that P can be in cahoots with one D.)

	B. Honesty in pleading and preventing frivolous lawsuits (Rule 11)

		1. Rule 11 applies to all papers filed with the court, whether they are 			papers, motions, answers, etc.  Its central purpose is to discourage 				frivolous lawsuits, which have several adverse impacts:  

			a. unduly denigrate reputations of companies

			b. burdensome on the court system (this has been a particularly 				salient concern over the last 10 years, in which ADR has become 				more popular)

			c. burdensome on society (see Albright v. Upjohn)

		NOTE:  Most people feel that the 1993 amendments to the FRCP
		weaken Rule 11.

		NOTE:  Sherman points out the tension here between access to the court 			system and abusive lawsuits.

		2. The pleader's lawyer must sign the pleading, "certifying that
		to the best of his knowledge, information, and belief, formed
		after an inquiry reasonable under the cirumstances" that (this is Rule 			11(b)(1-4)):

			a. the pleading is not presented for any improper
			purpose (i.e., to harass or to cause unnecessary delay).

			b. the claims, defenses and other legal contentions are
			supported by existing law or by a non-frivolous argument
			for the extension, modification or reversal of existing
			law or the establishment of new law.

			c. The allegations and other factual contentions have
			evidentiary support

			d. the denials of factual contentions are specifically
			warranted on the evidence or are reasonably based
			on a lack of information or belief.

			e. Under 1993 amendment to Rule 11(b)(3), the allegations
			for which there is a lack of present evidence must be
			specifically identified in the pleading, as long as there					is "likely to be evidentiary support," as opposed to 
			"factual support," after a reasonable investigation.
			What precisely "likely" means depends on how a judge
			decides to interpret it.
			
		3. Defining "reasonable inquiry" -- a "reasonable inquiry" refers
		to what a reasonable person would do in investigating the 
		facts of an allegation.
		
			a. If a lawyer makes a "reasonable inquiry" before
			filing the pleading, then later learns that the pleading
			is not meritorious, then he must withdraw the pleading
			or face sanctions.

			b. A lawyer is not responsible for launching independent
			investigations if he has no reason to doubt his client's
			story.  But he should ask client if his story can be
			corroborated. 140-41

			c. Sanctions can be awarded without a showing that the
			lawyer behaved in bad faith. If he honestly believes
			the inquiry to be true, but a reasonable person would have 
			made inquiries that would have shown complaint to
			be false, then sanctions may be imposed.
			
		4. Rule 11 allows the court to impose a number of sanctions
		on lawyers who violate Rule 11. Sanctions are limited to
		what will "deter repetition of such conduct" by others in a 
		similar situation. 

		NOTE:  Normally, the opposing party makes a motion to impose 				sanctions, but the court can also impose sanctions on its own 				initiative.

			a. Monetary sanctions -- The most common sanction is a 
			monetary fine.  In the 1993 changes of the Rule, the 					penalty is paid to the court, and will paid to the other 					party only if "warranted for effective deterrence." Rule 					11(c)(2).
			
				NOTE:  The judge decides whether the lawyer or the
				client is responsible for the violation of Rule 11,
				and fines him accordingly.
		
			b. Other sanctions -- These can include non-monetary
		 	measures such as censuring the offending lawyer,
			striking the offending pleading, etc. 

			c. Sanctions discretionary -- Since 1993, sanctions are no longer 				required.

		5. "Safe harbor provision" -- Under the 1993 amendments to
		Rule 11, if a party seeking sanctions serves a motion on the
		other party, then the offending party has a 21-day "safe
		harbor" in which to withdraw or correct any bad pleading.
		If the offending party does withdraw the pleading, then there can 				be no sanctions, no matter how outrageous the original 
		misconduct.
			
			NOTE:  Even if a party withdraws a bad pleading, they are
			still responsible for the opposing party's attorney's
			fees and other "reasonable expenses."

IV. Scrutinizing the Legal Sufficiency of Plaintiff's Claim

	A. Failure to include facts under 12(b)(6)

		1. A complaint that fails to include facts constituting a cause
		of action can be dismissed under 12(b)(6).  Mitchell v. A&K Inc.

		EX: Mitchell (P) filed a complaint against A&K (D) for 
		injuries he sustained from a robber's shotgun blast
		after D asked P to park and wait on a close side street
		before making a delivery.  The U.S. Appeals
		Ct. upheld the lower court ruling to dismiss the complaint
		on the grounds that the adjacent street was not part
		of D's "premises." 

		2. The facts of a complaint cannot be amended between the
		trial court and the appellate stage.  The complaint should
		be amended at the lower court stage.  Mitchell.

		EX: Mitchell did not claim in his lower court complaint that
		adjacent street was part of D's "premises." However, 
		he amended the complaint after the lower court ruling,
		arguing to the U.S. Appeals Court that the street was part of D's 
		premises. The Appeals Court, though, noticed the complaint was 				altered and affirmed the lower court’s dismissal of the complaint.

V. Heightened Requirements for Specificity
	
	A. Claims based on fraud or mistake (Rule 9(b))

		1. When claims are based on fraud or mistake, Rule 9(b) requires
		that the plaintiff plead "with particularity."  Ross v. A.H.
		Robins Co.  The detailed evidentiary pleading applies to disputes 				like common law fraud, securities fraud, and actions to rescind 
		or modify a contract for mutual mistake.
	
			a. For securities fraud it must specifically be shown that:
	
				(1) There were misrepresentations, which have to
				specifically be pleaded, AND
				
				(2). There was knowledge of misrepresentations,
				or of what rule 9(b) calls "malice, intent, 
				knowledge, and other conditions of mind."  Ross.

		2. Different courts view pleading "with particularity" differently. They
		usually look to whether P has provided specifics concerning the
		date and content of representations on which a fraud claim is
		based.  If there are multiple Ds, it may be necessary for P to
		specify the involvement of each one, sometimes requiring
		great detail. However, some courts say that to satisfy Rule
		9(b), P need provide only "slightly more" than that required
		in "normal" pleading under 8(a)(2).
		
		3. Courts explain that the added specificity is important to
		provide added notice and that it protects Ds against
		unfounded claims that damage their reputations.  However,
		there are criticisms:

			a. Some argue that it is difficult to understand why the 					claims covered by Rule 9(b) give rise to especially 						troubling problems compared with other types of claims. 			
			b. Sherman adds that a judge can capriciously rule under 					9(b) what cases require heightened specificity in pleadings.
			
			c. Sherman also feels that at the early pleading stage, 
			where there is no discovery yet, a great burden is put on
			P to plead specifically. 
			
			d. Sherman's solution is to have some abbreviated form
			of discovery in issues of fraud or mistake, instead of 
			simply dismissing complaints that do not conform to
			Rule 9(b).

		4. Supreme Ct. has disapproved of heightened specificity
		requirements in civil rights cases, which are not governed
		by Rule 9(b).  However, the Ct. argues that suits involving
		government officials might very well fall under the
		strict pleading standard of Rule 9(b).  Leatherman.
	
		5. Supreme Ct. has ruled that under "qualified immunity," 		
		which applies to government officials, the official's state of
		mind at the time of the violation of a citizen's right should
		be judged by a "reasonable person" standard, not by the
		official's actual state of mind. The Ct. also ruled that "unless
		the plaintiff's allegations state a claim of violation of clearly
		established law, a defendant pleading qualified immunity is
		entitled to dismissal before the commencement of discovery."
		Harlow v. Fitzgerald. (The rationale for this burden on P 					is that these sorts of claims directly interfere with governmental 				functions.)

		NOTE:  Sherman points out that this puts a heavy burden on
		the plaintiff -- a case can be dismissed if the official raises an
		affirmative defense and D cannot state a "violation of clearly
		established law,” which must occur before discovery.
		P must prove that D acted in bad faith.
	
	B. "Special matters" under Rule 9 that must be pleaded with
	particularity.
	
		1. In addition to the general requirement of a "short and
		plain statement of the claim" imposed by Rule 8(a), certain
		"special matters" must be pleaded with particularity if they
		are to be raised at trial. These "special matters" are ones
		of notice which are thought to be necessary in order for the
		defendant to be able to prepare for trial. They are typically
		claims which the adversary will not be expecting unless his
		attention is specifically called to them.

			a. any denial of any party's legal capacity to sue or be
			sued. 9(a)

			b. the circumstances giving rise to any allegation of
			fraud or mistake. 9(b))
	
			c. any denial of the performance or occurrence of a 
			condition precedent. (9(c))

			d. the existence of judgments or official documents and
			acts, on which the pleader plans to rely. (9(d)) and (e))
			respectively
	
			e. material facts of time and place

			f. special damages. (9(g))

			g. certain aspects of admiralty and maritime jurisdiction
			(9(h))

			NOTE:  According to Rule 26, discovery is limited by pleadings.

	C. Two rules of construction in interpreting statues and contracts:

		1. Expressio unius est exclusio alterius -- "Expression of one 
		thing is done at the exclusion of others."  Supreme Ct. employs
		this phrase in Leatherman to make the point that Rule
		9(b) applies to what it says it applies to -- fraud and mistake --
		and to nothing else (i.e., civil rights). 163

		2. Ejusdem generis -- Refers to idea that when a general term is 				followed by an enumeration of specifics, the general term should
		be limited to its specifics, not construed to its widest extent.

		EX: There is a lean against all property on a person's premises,
		including jewelry, clothes, and antiques.  However, the general
		term of the lean is limited to machinery, followed by an
		enumeration so specifics such as "computers," "electric tools,"
		"automotive vehicles," etc. Is the lean against the property
		legal? The answer is no, because this violates the general term of the lean, 			as well as its enumerated specifics.

Defendant's Response

I. The General Function of a Motion and an Answer for Defendant
	
	A. The answer		
	
		1. Makes denials of factual allegations and asserts affirmative
		defenses. Rule 7, 8(b), 8(c) 
	
			a. The FRCP provides that all objections--except a request
			to make the complaint more definite and certain (which
			should be raised in the motion)--can be raised in the 
			answer.
	
			b. The answer may accordingly include denials, 
			affirmative defenses, a demand that complaint be 
			dismissed for failure to state a claim (Rule 12(b)(6)),
			an objection to service of process, a request for change of
			venue, etc.

	B. The motion
	
		1. Deals with appropriate remedies--dismissal for defect in 
		service of process, want of jurisdiction, failure to state a claim,
		expiration of statute of limitations, a requirement that P join
		additional parties, or a requirement that P make the complaint
		more definite and certain. Rule 12(b),(c),(e),(f)  
	
			a. The FRCP provides that D can have an optional 						preliminary stage by means of motion. As a preliminary, 					D can raise any objection--other than factual
			denials and affirmative defenses, which are made in the
			answer--by motion before answering (this is what Rule 12
			calls a "pre-answer motion"). 
			
				(1) If D makes a motion at this preliminary stage,
				though, all preliminary or formal objections
				must be included.
			
	C. Objections not raised in either the answer or preliminary motion are 
	waived except for:

		(1) failure to state a claim;

		(2) failure to join an indispensable party; 

		(3) lack of jurisdiction over subject matter. 

	These exceptions can be raised up until the commencement of the
	"trial on the merits" (the actual trial where the merits of the cause of
	action are judged). 

	D. Affirmative and negative defenses

		1. The answer to the complaint can either deny one or more of
		the allegations, or set forth new facts that avoid the legal effect
		of the allegations, or both.

			a. Denials of allegations are sometimes called a "negative"
			defense.  Rule 8(b).

				(1) A denial based on lack of information will be
				deemed an admission by the court if the facts
				relevant to the issue are within the denying
				party's knowledge and control.  A party has 
				the duty to use "due diligence" in denying or
				affirming allegations.  David v. C&K Corp. 

			b. Setting forth new facts are called an "affirmative" 
			defense.  Rule 8(c).
			
			c. Failure to deny an allegation results in it being 
			admitted. Rule 8(d)
			
			d. FRCP carry forward a form of pleading that is neither a 					denial nor an admission but has the same legal 
			consequence as a denial. When a pleader is "without
			knowledge or information sufficient to form a belief
			as to the truth of an averment, he shall so state and this 					has the effect of a denial." Rule 8(b)
			
			EX: In David, D denied on lack of information that
			it manufactured a machine.  Ct. ruled that had D used
			"due diligence" and investigated the issue--which the
			evidence showed was within D's knowledge and
			control--then their averment would not be deemed an
			admission by the court.  

II. Pleadings Under Rule 12

  	A. The pre-answer

		1. If D files a pre-answer motion within 20-day period following
		service of the summons and complaint, the deadline for filing
		an answer is extended. Rule 12(a)(1).

		2. If ct. denies the pre-answer motion or postpones its
		disposition, D has until 10 days after the notice of the court's
		action to file an answer.

		3. If ct. grants the motion, in most cases the suit will be 					dismissed.
	
		4. But if a motion for a more definite statement is
		granted under 12(e), then D has until 10 days to file his answer 				after service of an amended complaint containing a more definite 				statement. 

		NOTE:  The reason for filing a pre-answer motion is primarily
		financial -- it saves D money since he does not have to go through
		investigations, discovery, and so on.

	B. Consolidation and waiver provisions concerning Rule 12 Motions 
	(Rule 12(g) and (h))

		1.  The purpose of Rule 12(g) and (h) is to prevent the pleader
		from using multiple pre-answer motions for different
		defenses and from omitting certain defenses from motions
		or answers. 

			a. Rule 12(g) provides that if a party makes a pre-answer
			motion, but omits one of the Rule 12 defenses then
			available, that party cannot make any further motions.

			b. Disfavored defenses--lack of jurisdiction over the
			person, improper venue, insufficiency of process, or
			insufficiency of service of process--will be waived forever
			if omitted from a pre-answer motion or, if no motion
			is made, from the answer. Rule 12(h)(1)

			c. Favored defenses--failure to state a claim upon which
			relief can be granted, failure to join an indispensable party,
			and failure to state a legal defense to a claim--can be made
			in any pleading, or by motion for judgment on the 
			pleadings, or at the trial on its merits.  Rule 12(h)(2).
			
			d. Finally, the most favored defense--lack of jurisdiction of 				the subject matter--may be made at any time.  Rule 12(h)(3).
			
			EX: A files a tort action against B, the one-armed man, in
			federal court, alleging diversity jurisdiction. B then makes
			a motion to dismiss for lack of personal jurisdiction. The motion
			is denied. B then makes a motion objecting to venue. Can
			it be granted?  No. When D files a Rule 12 motion, he must
			include in it all defenses and objections raisable by motion at
			that time (in order to avoid waisting time). Thus, the
			disfavored motions cannot be made after the pre-answer or,
			as in this case, the answer. Favored defenses can be raised 
			until judgment is rendered. 		 

	C. Motion to strike (Rule 12(f)) and motion for a more definite statement 		under Rule 12(e) must be made before responding to the challenged pleading. 

III. Pleadings Under Rule 15

	A. Rule 15 sets forth an extremely liberal policy on the amendment of
	pleadings. 

	B. Under the following circumstances, a pleading can be amended
	as a matter of course (i.e., without leave of court):

		1. If the pleading is one to which the adversary must make a 				response (i.e., a complaint must be responded to by an answer --
		Rule 7(a)), the pleading may be amended any time before the
		answer is served.  Rule 15(a).
	
		NOTE:  Motions like a 12(b)(6) are not considered an answer for 				this purpose.

		2. If the pleading is one to which a responsive pleading is not
		required, it may be amended within 20 days after it was served.  
		Rule 15(a).

	C. If the requirements for amendment are not met, the pleading may be
	amended only by leave of court, or by consent of the other side.

		1. Leave by court to amend "shall be given when justice so 					requires" (Rule 15(a)).  "Justice so requires" is a very loose
		standard. 
		
		NOTE:  The court, though, cannot undercut Rule 12 by granting,
		say, an amendment to add a defense that is unfavored under
		Rule 12(h). The court is also, of course, subject to the waiver
		provision of Rule 12(b).
		
		2. Normally, leave to amend should be denied only if it would
		cause actual prejudice to the other party. 

		EX: In David v. C&K Corp., D denied, on lack of information, 				that it had manufactured a machine that injured P. D later moved to amend 		its answer to deny this allegation. The court held that if a party waits a 			lengthy period of time between discovery of facts making an 				amendment appropriate and moving to amend, the motion may be 			denied since it often times prejudices P.  (For more on this case, see 			"Defendant's Response" above.) 

		NOTE:  The are several ways in which the passage of time can
		prejudice a party.  One example is cited in David.  The other
		common instance is loss of evidence over time (memories also fade).

		3. In addition to the general principle that leave to amend shall
		be given if justice so requires (Rule 15(a)), amendment is 
		generally allowed at trial when the evidence is objected to as
		being outside the scope of the pleadings.  Rule 15(b).

	D. Rule 15(c) is specifically designed to circumvent potential problems 	
	with the statute of limitations, and allows P to add new defendants. There are 		three conditions that must be met in order to add a new D:
	
		1. Amendment arose out of same transaction or occurrence as
		stated in the original complaint. Swartz v. Gold Dust Casino
	
		2. New D was aware of the original litigation before the 
		limitations period ran. Swartz
	
		3. The D added to complaint knew, or should have known,
		that he was a proper D. Swartz

		EX: In Swartz v. Gold Dust Casino, Inc, P slipped and fell down a 				stairway. She sued Gold Dust (D). alleging negligent 					maintenance. Upon discovering a basis for an allegation of 					defective construction, P amended the complaint to add
		Cavanaugh (the other D), a partner in the partnership owning 				the building. Cavanaugh was also president of Gold Dust Casino, 				Inc. Cavanaugh's addition was after the statute of limitations
		had run. Cavanaugh moved for summary judgment. The
		court held that under Rule 15(c), when a newly added defendant 				has been aware of the litigation, the statute of limitations may
		not apply to him. Here, Cavanaugh, as president of Gold Dust,
		certainly had notice of the suit. 

		NOTE:  Rule 15(c) cannot "abridge or substitute" the state laws
		concerning the statute of limitations. 

	E. Under 15(d), supplemental pleadings can be filed. The function of
	supplemental pleadings is to call the court's attention to material
	facts that have occurred subsequent to the filing of the original complaint. 
	The most typical kind of supplemental pleading under
	Rule 15(d) deals with medical conditions.

	EX:  In an action for personal injuries, a supplemental pleading might 
	allege aggravation of injuries or increments of damage sustained after 
	filing of the original complaint. 

	NOTE:  There is even less chance of prejudice in supplemental 
	pleading than amending pleading, since the supplemental pleading 
	just adds to the original pleading and does not alter the claim or defense originally 	asserted.

		1. There is no right to file a supplemental pleading. The filing
		of such pleadings is permissive, within the sound discretion
		of the court. 
		
		2. The function of supplemental pleading is merely to add to,
		not modify, the original pleadings. If permitted, it does not
		replace the original pleading (as would an amended pleading), 
		but it is a supplement to the original. 

		3. Rule 15(d) gives the court discretion to allow supplemental
		pleadings despite the fact that the original pleading is defective,
		or that the supplement would change the nature of relief sought.

		EX: In Swartz, P sued Gold Dust (D) alleging negligent 					maintenance. Upon discovering a basis for an allegation of 					defective construction, P was allowed to amend the complaint
		under Rule 15(d).		

IV. Default under Rule 55

	A. Under Rule 55(d), if D has asserted a counterclaim, and P neglects
	either to serve a reply or to move against  the counterclaim, a default
	judgment may be entered against the P on the counterclaim. 

		1. Under Rule 55, a default entry may be set aside for "good
		 cause." Shepard Claims Service, Inc. v. William Darrah &
		Associates.  Three factors should be considered when deciding
		"good cause": 

			a. Whether P will be prejudiced. 

			b. Whether D has a meritorious defense.

			c. Whether culpable conduct of D led to default. This
			culpable conduct has been considered to be at least 						a willful  disregard for the rules of civil procedure. 						Thus, this culpable conduct must be worse than mere 					negligence.  Shepard Claims.

V. Counterclaims and Cross-Claims under Rule 13

	A. The Federal Rules, in order to promote judicial economy, have
	gone beyond the codes with respect to counterclaims.  Rule 13
	provides for both "permissive" and "compulsory" counterclaims.

		1. Permissive counterclaim: Rule 13(b) allows assertion as
		a counterclaim at the defendant's discretion of "any claim...not
		arising out of a transaction or occurrence that is the subject 				matter of the opposing party's claim."  This means that no claim 				is too far removed from the subject of the plaintiff's claim to be 
		allowed as a counterclaim. (Exceptions are indicated in Rule
		13(d), and in the "presence of third parties" clause of 13(a), but
		these are minimal).  D may assert this counterclaim in an independent 			action.  It is up to the judge whether or not to grant a permissive
		counterclaim.

		2. Compulsory counterclaim: If a claim does arise "out of the 				transaction or occurrence that is the subject matter of the opposing 			party's claim...," its assertion is compulsory, under Rule 13(a). 				“Compulsory” here means that it must be asserted in the action or it will 			be barred.  A counterclaim is compulsory when:

			a. It arises out of the transaction or occurrence that is 					the subject matter of P's claim; AND
	
			b. Does not require the presence of third parties 						over whom the court has no jurisdiction.

		EX: In Wigglesworth V. Teamsters Local Union No. 592,  
		Wigglesworth (P) sued the Union (D) for violation of his
		First Amendment rights. At the same time, P accused D
		of being associated with organized crime. D filed a counterclaim
		almost two months later for defamation. P moved to have D's
		counterclaim dismissed for lack of jurisdiction (apparently,
		defamation is a state issue, not a federal one). If D could
		prove that the counterclaim was compulsory, though, it
		could be raised in federal court. The court denied
		D's compulsory counterclaim, arguing that it did not have
		any "logical relationship" or share the "same evidence" with P's 				original claim. The counterclaim was dismissed. 

		NOTE:  Sherman says that the court in Wigglesworth is wrong
		and that there is indeed overlap between the claim and
		counterclaim in this case. He also says that the court is not quite clear
		in deciding how much evidence a claim and counterclaim
		should share in order for the counterclaim to be admitted
		(i.e., should it be substantial evidence, or some lesser amount?). 				Sherman thinks that the compulsory counterclaim should have 				been granted in this case. 

		NOTE:  The most accepted verbal formula is that a compulsory 				claim arises out of the same "transaction or occurrence that is 				the subject matter of P's claim" if it is "logically related" to P's 				claim. Many courts, in deciding whether a counterclaim meets 				the "transaction or occurrence" test, are especially interested in
		whether there is a substantial amount of evidence that bears
		upon both the claim and the counterclaim, and which would
		therefore have to be considered twice if the counterclaim were
		not allowed. Judicial economy, along with the “logically related
		test,” play a major role in determining whether a compulsory
		counterclaim will be allowed.

		3. An important issue is whether a counterclaim is barred by the
		statute of limitations (SoL) where it is filed after the statute has
		run, but the action (P's complaint) was filed before the statute
		ran. The question is considered "substantive" for Erie doctrine
		purposes, and hence is resolved by appropriate state law.

			a. The general view is that if the counterclaim arises out 					of the "same transaction" as P's claim, it will not be barred 
			if P's complaint was filed before the running of the
			statute.

	B. Under Rule 13(g), the defendant may set forth in the answer
	any claims that he has against a co-defendant that relate to the
	"transaction or occurrence" or to any property that is the subject of P's
	complaint. Such cross-claims are not compulsory, however. 

	EX: P sues D1 and D2, claiming they were jointly negligent in causing
	his injuries. Either defendant may cross-claim against the other on
	any claim arising out of the same accident. Alternatively, either 
	defendant could file a cross-claim for contribution against the other,
	asserting that both are jointly liable to P and requesting that any
	judgment be fashioned accordingly. Also, if one defendant is
	only secondarily liable, he may cross-claim for indemnification
	against the other who is primarily liable. 

		1. Like a counterclaim, the cross-claim should be set forth
		as part of the defendant's answer rather than as an independent
		pleading. Also, the co-defendant against whom the claim is 
		asserted must file an answer to cross-claim under Rule 7(a).

	C. There are important differences between cross-claims and counter-
	claims. A counterclaim lies only against the opposing party (plaintiff),
	whereas a cross-claim is against a co-party (D2). Also, a counterclaim is
	sometimes compulsory, whereas a cross-claim is always permissive.

	D. In both cross-claims and counterclaims, if the party subject to the
	cross-claim or counterclaim does not serve a reply or move against
	the cross-claim or counterclaim, a default judgment may be entered 	
	against that party. Rule 55(d)

Voluntary Dismissal by Plaintiff

I. Filing for Voluntary Dismissal under Rule 41

	A. Under the FRCP, the plaintiff retains the right to dismiss his own
	action by filing a notice of dismissal. Rule 41(a)(1)(i)

	B. P is limited to one (voluntary) dismissal by notice. Thereafter, any
	dismissal operates as a dismissal with prejudice, meaning P cannot
	bring suit again.

	C. P in federal court may voluntarily dismiss his complaint without 	prejudice any time before D serves an answer or moves for summary 	judgment. Thus, P may dismiss his suit without leave of court and 	without prejudice, meaning that he can bring suit again (Rule 41(a)(1)).
		
	EX: In D.C. Electronics Inc. v. Nartron Corp., P dismissed an antitrust
	action before D had filed an answer or motion for summary judgment.
	The district court entered an order vacating the dismissal, holding
	the action had proceeded too far to permit a dismissal without court
	approval. The appeals court sharply disagreed with the lower court,
	holding that a plaintiff has an absolute right to dismiss an action
	before the defendant files an answer or motion for summary judgment.

	D. After D serves an answer or moves for summary judgment, P 			cannot dismiss without D's consent or a court order. The following is
	a list of what is involved in a court order:

		1. The court may grant P's motion for leave to dismiss without
		prejudice at any time prior to judgment -- i.e., even after the
		trial on its merits has commenced. Rule 41(a)(2).

		2. The discretion of the court to refuse a dismissal without
		prejudice is limited. 

		EX: P making a good faith request based on newly discovered
		evidence has been held entitled to a dismissal without 
		prejudice (to allow re-filing of the action and a new trial) unless
		D's substantial rights would be jeopardized. But the court in this case 			should not order a dismissal without prejudice merely to accommodate P's 			desire to get another 10-day period within which to demand a jury trial. 

		NOTE:  The court cannot dismiss over the objection of a D who
		has filed a counterclaim prior to P’s motion to dismiss unless the 				counterclaim can remain pending for independent adjudication. Rule 			41(a)(2).

		3. The court is not limited as to the number of times it may
		grant motions to dismiss the same action without prejudice --
		provided, of course, that there is a legitimate reason for the
		repeated requests.

		4. P seeking dismissal without prejudice may be required to 
		bear the full cost of litigation to date, including the 
		adversary attorney's fees (Rule 41(a)(2)). But such condition
		may not be imposed on P seeking to dismiss his claim with
		prejudice. Under Rule 11, however, sanctions may be imposed
		on P who voluntarily dismisses a groundless suit.

		NOTE:  When deciding whether to dismiss P's suit, a court
		must consider if the dismissal will prejudice D.  This 
		is essentially the test of dismissal. 

Establishing the Structure and
Size of the Dispute

I. Proper Parties to a Suit under Rule 17(a)

	A. Rule 17(a) provides that "every action shall be prosecuted in the
	name of the real party in interest."  This means that the plaintiff
	must sue in his own name, since it is he who will benefit from the
	judgment. 
		
		1. The same rule covers subrogation. Suppose an insurer has
		already compensated its insured, who is a tort victim. The
		insurer is said to be subrogated to the rights of the insured,
		and may sue the tortfeasor just as the insured himself could.
		Under Rule 17, subrogee insurers have been held to be "real
		parties in interest," and must therefore sue in their own
		name, not in the name of the insured. 

		2. The citizenship of the real party in interest (assignee or 
		subrogee) controls for diversity purposes.
	
		3. The reason for requiring the real party in interest to be named
		relates to the res judicata effects of the judgment.

		EX: Insurance Company pays off claimant, the victim of a tort
		allegedly committed by Tortfeasor. Insurance Co. is, by the
		usual common-law rules of subrogation, entitled to sue
		Tortfeasor just as Claimant could have. If Insurance Co. is
		permitted to sue in the name of Claimant, and loses, it might
		try to sue again in its own name. Since res judicata is often
		determined, at least preliminarily, from the pleadings, 
		Tortfeasor might have difficulty showing that Insurance Co.
		had already had its day in court, and lost.  Therefore, Rule 17(a) 
		requires Insurance Co. to sue in its own name.  See Advisory
		notes to Rule 17(a).

		4. Executors, administrators, bailees, and other types of persons
		listed in Rule 17(a) are considered as being themselves "real
		parties in interest," and do not need to bring suit in the name of
		the person they represent. This makes explicit the fact that the
		real party in interest need not have a beneficial interest in order
		to sue so long as it has sufficient interest in the outcome. 

II. Fictitious Names under Rule 10(a)

 	A. Rule 10(a) provides that an action shall contain the names of the
	parties.  Courts have carved out an exception to this rule in certain
	types of cases involving particularly private matters, such as abortion
	and homosexuality, to protect those people's identities.  Furthermore,
	plaintiffs that have previously been anonymous challenged the 
	constitutional, statutory and regulatory validity of governmental
	activity, not a private party (i.e., individual, business or corporation) whose 	reputation could be damaged. 

	EX: In SMU Association of Women Law Students v. Wynne and Jaffe, various 		individuals brought an action under Title VII of the
	1964 Civil Rights Act Against various law firms for alleged gender
	bias.  Several individual plaintiffs sued anonymously.  Several
	defendants moved to compel disclosure of their true names. The
	trial court required disclosure since the plaintiffs' case challenged
	a private party and did not involve a particularly private matter.  

	NOTE:  Sherman thinks the court's logic in SMU is dubious.  He
	thinks the women's case does involve a particularly private
	matter, and that they should probably be able to file suit anonymously.

III. Joinder of Claims under Rule 18(a)

	A. Rule 18(a) provides that "a party asserting a claim to relief as an
	original claim, counterclaim, cross-claim, or third-party claim, may
	join, either as independent or alternate claims, as many claims,
	legal, equitable or maritime, as the party has against an opposing
	party."  In other words, once a party has made a claim against some
	other party, he may then make any other claim he wishes against 
	that party. There are limitations to multi-party cases, as explained
	below.
	
	EX: P sues D, claiming that D intentionally assaulted and battered
	him. Rule 18(a) allows P to join to this assault and battery claim 
	another claim that D owes P money on a contract entirely unrelated
	to the alleged tort.

		1. Joinder of claims is never required by Rule 18(a), but is left at
		the claimant's option. However, the rules of res judicata,
		particularly the rule against splitting a cause of action, will 
		often as a practical matter induce the claimant to join claims.
	
		EX: P is involved in a car collision with D, and suffers both
		personal injury damage to his car. If P were to sue only for the
		bodily injury, the rule against splitting the cause of action might
		result in his losing his claim for property damage, whether he
		wins or loses the bodily injury suit.

		2. While there are no restrictions on the number or nature of
		claims that may be joined where a single plaintiff is suing a 
		single defendant, the rules on joinder of parties impose
		limitations where there are several co-plaintiffs or co-					defendants. Where there are multiple parties, at least one of
		the claims by or against each party must arise out of "the
		same transaction or series of transactions" and must 
		involve a "common question of law or fact" affecting each of
		the parties joined. 

		EX: In Kedra v. City of Philadelphia, Kedra (P) and her children
		filed a civil rights action against the City of Philadelphia (D),
		stemming from an alleged series of incidents constituting
		police brutality. The incidents involved various individuals
		over a 15-month period. Several defendants moved to dismiss,
		contending that the joinder had been improper due to the 
		expansive length of time involved. The court held that the fact
		that certain claims and parties span a lengthy period of time will
		not, in itself, prevent joinder.  The court also held that the
		various events over the 15-month period were part of an alleged
		pattern and therefore a sufficient relationship for joinder exists.

		3. In its discretion, the trial court may remedy any possibility
		of prejudice or inconvenience caused by the joinder of claims by 				ordering separate trials. Rules 20(b) and 42(b).

IV. Permissive Joinder (may be joined) of Parties under Rule 20 (Plaintiff’s measure)

	A. Determining which parties are to be joined as plaintiffs or 
	defendants requires a consideration of the rules of permissive and
	compulsory joinder. Compulsory joinder covers parties who
	must be joined ("indispensable parties") and those who should be 	
	joined if possible ("conditionally necessary parties"). The rules of
	permissive joinder apply to parties who may be joined ("proper 
	parties").

	B. Under Rule 20(a), persons may join or be joined in one action if:
		
		1. A right to relief is asserted by (or against) them jointly,
		severally, or in the alternative 

		2. The right to relief arises out of the same transaction or series
		of transactions; AND

		3. There is at least one question of law or fact common to all 
		parties sought to be joined.

	C. What these three different requirements mean is:

		1. Relief sought:

			a. Separate or joint: Each plaintiff is not required to have 
			in interest in every cause of action in all the relief prayed
			for. If there are several Ps, they have the option to seek
			separate relief or joint relief. Likewise, if several Ds are
			joined, the relief sought may be against each separately
			or against them jointly.

			b. "In the alternative" -- plaintiff "in doubt":  Sometimes,
			a P may be in doubt as to which of several Ds is liable
			for his injuries (i.e., P is injured by a bullet fired by either
			D-1 or D-2). In such case, it is proper for P to set forth a 
			claim against each D in the alternative, so that their
			respective liabilities can be determined.

		2. "Same transaction" requirement: The requirement that the 
		right to relief arise from the "same transaction or series of 
		transactions" is construed very broadly. Some causal 
		relationship or interrelation among defendants' conduct, or
		in the interest being asserted by multiple Ps, is sufficient. This
		tends to merge with the "common question" requirement, 
		below.

		3. "Common question" requirement:  It is sufficient if there is a
		single question of law or fact common to all parties joined. 
		However, it is not necessary that the "common question" be
		in dispute. 

	EX: P-1, a driver, and P-2, a passenger in the car, sue D for injuries sustained in 	an auto accident.  The “common question” was whether D was negligent.  This is 	sufficient for joinder purposes, even though there are also many separate 	questions involved (i.e., injuries sustained by each, any contributory negligence 	barring P-1’s claim, etc.)

	D. Additional unrelated claims: As long as the requirements for 	
	joinder of parties (above) are met, each of the parties joined may assert as many 	claims as he has against any opposing party. Rule 18. The policy of the law is to 	allow unlimited joinder of claims as long as there is a transactional connection 	among all of the parties.

	EX: P joins D-1 against whom he claims injuries while a passenger in
	D-2's vehicle, and D-2 against whom he claims for the same injuries
	in the accident, and also for failure to pay a promissory note that
	D-2 executed in favor of P. This joinder is proper.

	E. To curb expense, delay or other prejudice that might result from the
	joinder of numerous parties asserting numerous separate claims 	
	against one another, the court may order separate trials for various
	claims joined, or otherwise regulate the proceedings to minimize
	the difficulties involved. Rule 20(b)
			
	NOTE: Unlike compulsory joinder of parties under Rule 19 -- which is for
	both plaintiffs and defendants -- permissive joinder of parties is a plaintiff’s 	measure. The reason for this is that the plaintiff, not the defendant, should be able 	to choose what parties are inolved in a suit if those parties are not necessary to
	the suit. 

V. Compulsory Joinder of Parties under Rule 19

	A. Joinder is required for any person who has a material interest in the
	case and whose absence would result in substantial prejudice to the
	absentee or to other parties before the court. Rule 19.

	B. Person to be joined if feasible: Rule 19(a) provides that any person
	with an interest in the subject of a pending action shall be joined as
	a party if:
	
		1. In his absence, complete relief cannot be accorded those 
		already parties (Rule 19(a)(1)); OR

		2. His interest is such that to proceed without him would be
		substantially prejudicial as a practical matter because it would:

			a. Impair his ability to protect his interest in later
			proceedings. Rule 19(a)(2)(i); OR

			b. Expose the parties already before the court to the risk
			of double liability or inconsistent obligations. Rule 19(a)(2)(i).

		Situations in which compulsory issues commonly arise:

		EX: Tortfeasors: Although the plaintiff may join in one action
		all defendants potentially liable to him as a result of a given
		transaction or occurrence, ordinarily he is not required to do so,
		and a joint tortfeasor is not considered a necessary party. Often,
		there is a right of contribution among joint tortfeasors. Where
		this is so, those defendants who are sued can file third-party
		complaints or cross-complaints (depending on the jurisdiction)
		against the other torfeasors for indemnity (this is called an
		impleader, and is explained below).

		EX: Partial assignees or subrogees:  In an action by a partial 
		assignee or subrogee to enforce its share of a debt, all other
		partial owners are necessary parties who should be joined if
		feasible. This was one of the central issues of Janney
		Montgomery Scott, Inc. v. Shepard Niles, Inc.

	NOTE:  Sherman often uses the terms "necessary" and "indispensable"
	to refer to the parties. He urges us to avoid such intellectual laziness
	and follow the recent amendment of Rule 19, which refers to parties as
	"feasible" and "non-feasible." 

	C. Effect of nonjoinder--possible dismissal:  If a person to be joined 
	cannot be made a party (i.e., because he is not subject to the court's
	jurisdiction), the court must determine whether "in equity and in
	good conscience" the action can proceed without him or whether the
	action should be dismissed. The court's determination is based on the 
	following practical considerations (Rule 19(b)):

		1. The extent to which any judgment rendered in the action
		would be prejudicial to the interest of the absent party, or the
		interests of those already before the court;

		2. The extent to which such prejudice could be lessened or
		avoided by appropriate court action;

		3. Whether relief rendered without the absent party would be
		adequate; AND

		4. Whether the plaintiff has any other adequate remedy if the
		action is dismissed for nonjoinder of the absent party.

	D. There are procedures for compelling a joinder:

		1. In the complaint, plaintiff should set forth the names of all
		necessary persons who have not been joined, and the reasons
		for the nonjoinder.  Rule 19(c).

		NOTE:  This provision is not really effective because Ps rarely
		concede that nonparties are necessary parties. 

		2. If the plaintiff has failed to join necessary parties, the court
		will order that they be joined unless it is impossible to do so
		because their joinder would destroy subject matter jurisdiction
		or because the court lacks personal jurisdiction over them.

			a. Involuntary plaintiff: If the absentee should be aligned
			as a plaintiff, he may be joined as an involuntary plaintiff.
			Rule 19(a)

			b. Necessary parties too numerous: Where the necessary
			parties are too numerous to be joined, it is possible that 
			the case might be handled as a class action.

			c. If addition of the necessary party would make venue
			improper, the added party must be dismissed if he objects
			to venue. Then the court must decide whether to dismiss.

		3. Where the court cannot order the necessary parties
		joined because of lack of personal jurisdiction or because their
		presence would destroy diversity of citizenship (as the defense
		argued in Janney), then the court must decide whether to 
		dismiss the action.

VI. Impleader under Rule 14

	A. Third-party defendant: Under Rule 14(a), a defendant alleging that a third 	person is liable to him “for all or part of the plaintiff’s claims against him” may 	“implead such a person as a ‘third-party defendant.”  Sherman says the test of
	Rule 14(a) is whether third-party defendant is liable or not to defendant.
	The typical fact pattern in which federal courts have permitted impleader
	is where one event gives rise to double liability, defendant to plaintiff and
	third-party defendant to third-party plaintiff. Under impleader, the defendant  	is called a “third-party plaintiff,” and the third-party defendant is, naturally, the 	“third-party defendant.” 

	EX: An employer who is sued on the theory of vicarious liability wishes to
	recover from his allegedly negligent employee on an indemnity theory. Rather
	than wait for a judgment against himself, and then bring a separate action against
	the employee, the employer may choose to bring the employee into the original
	action. The employer is called a “third-party plaintiff,” and the employee is a
	“third party defendant.”

	EX: In Cappellini v. Unification of World Christianity, P sued a “deprogrammer” 
	who had been hired by P’s parents to hold P against his will for five weeks and 
	make him give up his association with the Unification Church. He alleged D
	violated his constitutional rights. D filed a third-party complaint seeking 
	compensatory and punitive damages against the Church, its President, and its
	attorney. The proposed third-party complaint in this action, though related to
	the original action, does not bear an adequate causal connection to the main 
	action to warrant impleader. P’s claims arose out of the events from 1977 to
	1978, when D tried to persuade P to abandon membership to the Church.
	D’s claims, on the other hand, arose out of the filing of P’s lawsuit and the
	events that occurred afterward--the signing of the contract between P and
	the church, and the alleged harassment and injuries to the third-party plaintiff
	as an individual. The court found that if the church were liable to D on these
	claims it would not be as a direct result of the determination of the main claim.
	These third-party claims are independent. 

	B. Claim must not be derivative: For a third-party claim to be valid, the third
	party P may not claim that third-party D is the only one liable to P, and he 
	himself is not liable at all. The third-party P’s theory must be one that has the
	third-party P’s liability as a prerequisite for throwing liability on the third-
	party D. Thus, impleader is confined to those situations in which the
	defending party has a right to indemnity, in whole or in part, against the 
	impleader third party (i.e., where D asserts that if he is held liable to P, he
	would be entitled to collect all or some part of the judgment from third part D).

	NOTE:  Sherman points out that impleader does not require same transaction
	or occurrence. It deals with derivative liability -- third party D is liable to
	third party P.

		1. The third-party P is not precluded from claiming in an alternative
		pleading that neither he nor the third-party D is liable.

	C. Impleader by Plaintiff:  Just as D may implead a third-party D, so a P
	against whom a counterclaim is filed may implead a third person who is liable to
	him for the counterclaim. Rule 14(b).

	D. Leave of court is not needed if D serves a third-complaint and summons
	upon the third-party D within 10 days of the time the original D served his
	answer to P’s claim.  After this 10 day period, the court’s permission to plead
	is necessary.

	E. If the main claim is dismissed before or during trial, the court still has
	the authority to hear the third-party claim based on it. Whether to exercise
	this authority is left to the court’s discretion.

VII. Interpleader under Rule 22 and 28U.S.C.A. 1335

	A. Interpleader is a technique whereby a party (called the “stakeholder”)
	who owes something to one or two more persons (called the “claimants”), but 		isn’t sure which, may force them to argue out their claims among themselves 	before coming to sue him. It is designed to prevent the party from being made 		to pay 	the same claim twice. 

	EX: X and Y both claim a bank account at Bank Two. Y alleges that is was
	assigned to him by X; X denies the assignment, claiming that a document Y
	offers as evidence was a forgery. Y demands the money from the bank. Bank
	Two interpleads to have X and Y argue out their claims among themselves.
	If the bank did not have this remedy of interpleading, it could not avoid the
	possibility of having to pay X and Y.

	NOTE:  It is common for insurance companies to try to interplead.

	B. In federal practice, there are two distinct interpleader actions:

		1. Statutory interpleader: Interpleader is permitted by 28 U.S.C.
		section 1335, which contains special provisions as to jurisdiction, venue,
		and service of process, if:

			a. Two or more claimants (defendants) of diverse citizenship
			are making adverse claims to the same property owed or held by 				the plaintiff; AND

			b. The value of the property is more than $500.

			c. Service of process can be made anywhere in the U.S.

			d. Venue is residence of one or more claimants

		2. FRCP interpleader: Interpleader is permitted under Rule 22 if:

			a. Stakeholder cannot have the same citizenship as any of
			the claimants (this is diversity of citizenship) AND

			b. The value of the property is more than $50,000.
	
			c. Service of process is limited to personal or individual
			service (Rule 4). This means that the summons has to be
			served at the residence of the claimant(s). Long-arm
			statutes will allow claimant(s) in different states to be served.

			d. Venue is the residence of all claimants, or where the
			events occurred or where property is located.

	C. Other suits restrained under 28 U.S.C.: To further the goal of
	protecting the stakeholder from double liability, 28 U.S.C. 2361 allows a
	court hearing a section 1335 action to enjoin (prohibit) all claimants from
	starting or continuing any other action, in any state or federal court, which
	would affect the property.

	EX: Insurance Co. is sued in state court by the son of a recently deceased policy-
	holder; the son asserts that he is entitled to the policy’s proceeds. The widow
	of the policy holder also files a claim, in federal court. Insurance Co. may bring
	an interpleader action in the federal court of the district in which either the
	son or  the widow resides, as long as the two are citizens of different states. The
	federal judge will then enjoin both the son’s suit and widow’s suit, and decide
	the matter himself.

	D. Cross-claims and counterclaims: The interpleaded claimants may (and
	usually do) cross-claim against each other, counterclaim against the plaintiff,
	and implead third parties, unless jurisdictional problems prevent their doing so.

		a. Subject matter jurisdiction:  Such additional claims must have an
		independent basis of jurisdiction unless they relate to the original
		impleaded claim (and thus fall within supplemental jurisdiction).

VIII. Intervention under Rule 24

	A. Intervention generally: Rule 24 allows certain persons who are not 
	initially part of the lawsuit to enter the suit on their own inititiative.  Such an
	entry is called “intervention,” and the person who intervenes is called an
	“intervenor.”

		1. Rule 24 recognizes two types of intervention:

			a. “Intervention of right” (Rule 24(a)) does not require
			leave of court for entry into case.
		
			b. “Permissive intervention” (Rule 24(b)) is left to the
			court’s discretion. 

	B. Who may intervene as a matter of right: A stranger to an existing action
	has an automatic right of intervention, under Rule 24(a), if he meets all of the
	following criteria: 

		1. Interest in subject matter: The Supreme Court has said that a 				“significantly protectible interest” suffices to support intervention of
		right. Some lower courts emphasize that a direct, substantial and legally
		protectible interest to satisfy the standard, while others take a more
		relaxed standard.

		EX: Rate-payers of a utility could not intervene in a contract action 
		between the utility and a supplier concerning the amounts the utility
		would have to pay for boiler fuel. Although the outcome of the litigation
		could affect the rates intervenors would have to pay, they had no
		legally protectible interest in the contract dispute. New Orleans Public
		Service Inc. v. United Gas Pipe Line Co.
		
		2. Impaired interest:  The intervenor must also show that the
		resolution of the litigation would impair his interest. What is examined
		is the practical impact of resolution of the litigation on the intervenor’s
		interest. 

		EX: In an action challenging issuance of licenses to operate uranium mills
		without environmental impact statements, intervenors with applications
		pending would be affected, as a practical matter, by the litigation’s
		outcome if it caused defendant’s agency to alter its mode of operation and 
		require more of applicants for licenses.  Natural Resources Defense
		Council v. U.S. Regulatory Commission
			
		3. Inadequate representation: Where the intervenor claims the right 
		kind of interest and shows a threat of practical impairment, intervention
		could be denied on the ground that the intervenor’s interest is 
		adequately represented by the present parties. Many factors can be
		taken into consideration, including the ability and resources of the 
		present parties to litigate effectively, and the existence of any conflicts
		of interest between the present party and the intervenors.

	C. Rule 24(a)(1) states that intervention is granted as a matter of right where a 
	federal statute confers an unconditional right to intervene (i.e., 28 U.S.C.
	2403, which allows federal intervention of rights in actions involving the
	constitutionality of an act of Congress).

	D. Compare--intervention of right with compulsory joinder: The criteria
	which allow a person to intervene as of right are the same as those which require
	that he be “joined if feasible” under Rule 19(a)(2)(i).  As the Advisory
	Committee’s Notes to Rule 24(a) put it, “where, upon motion of a party in an
	action, an absentee should be joined so that he may protect his interest which as
	a practical matter may be substantially impaired by the disposition of the action,
	he ought to have a right to intervene in the action on his own motion.”

	E: Permissive intervention:  The court has discretion to permit a nonparty
	to intervene if:

		1. A federal statute confers a conditional right to intervene; OR

		2. A question of law or fact in common with the main action is part of
		the applicant’s claim or defense. For example, in a suit to set aside a
		zoning ordinance, property owners may intervene if their claims present
		common questions of law or fact. The court has a great deal of
		latitude in granting or denying a permissive joinder. 

IX. Class Actions under Rule 23

	A. One or more members of a class of persons similarly situated may sue or
	be sued on behalf of all members of that class.  Such lawsuits are permitted
	where considerations of necessity or convenience justify an action on
	behalf of the group rather than multiple actions by (or against) the class
	members individually.

	B Rule 23 provides that members of a class can sue or be sued with binding
	effect on the class as a whole. 

	C. Prerequisites to Class Action: Under Rule 23(a), all four of the following
	conditions must be established in any type of class suit.  

		1. Numerous parties: The class must be so numerous that joinder of
		all members individually is impractical (Rule 23(a)(1));

		2. Common question: The actions must involve at least one question
		of law or fact common to the class (Rule 23(a)(2));

		3. Representative’s claims typical: The claims (or defenses) of the
		persons maintaining the action on behalf of the class must be
		typical of those of the class generally (Rule 23(a)(3); AND

		4. Adequacy of representation: The persons representing the class
		must be able fairly and adequately to protect the interests of all 
		members of the class. Rule 23(a)(4)

	D. No fixed minimum: There is no fixed minimum number required to make
	a class “too numerous” for joinder of all member individually. Some cases have
	held 25 enough, while others have held that 39 is not enough. Usually, permitting
	a class depends on a number of different factors:

		1. The size of each member’s claim (the smaller the claim, the more
		likely a class suit will be allowed);

		2. The practical likelihood that individual suits will be brought
		(the lower the likelihood, the more likely a class suit be allowed); AND

		3. The public importance of the right being enforced (the greater the
		public importance, the more likely a class action will be permitted); 

	E. Common question requirement: There must be at least one “question of law 	or fact common to the class.”

	F. Typical claim requirement: The claims of the representatives suing on
	behalf of the class must be typical of the class generally.

	EX: A Mexican-American employee who challenged the denial of a promotion
	was not typical of a class of Mexican-American job applicants who had not been
	hired, even though he alleged that the job application had, like him, allegedly
	been discriminated against on grounds of national origin. His claim of denial
	of a promotion in a specific instance was not typical of the claims of other
	Mexican job applicants who were never hired.

	G. Adequate representation requirement: The requirement that the
	representatives “fair and adequately protect the interests of the class”
	has often been seized upon by the defendant in a plaintiff class action to show
	why the class action should not be allowed. The class representatives must no have any conflict of interest with the absent class members, and they must further
	competent legal counsel to fight the suit.

	H. If the above four elements are met, the most common basis for a class suit
	is under Rule 23(b)(3)--the situation in which questions of law or fact common
	to the class predominate over questions affecting only individual members, and,
	on balance, a class action is superior to other available methods, for
	adjudicating the controversy.

		1. In deciding whether common issues “predominate” and whether a 
		class action is “superior” to individual litigation, the court must consider:

			a. The interest of individual members in personally 
			controlling their cases;

			b. The nature and extent of any litigation in progress 
			involving the same controversy;

			c. The desirability of consolidating all claims in a single action
			before a single court; AND

			d. Any probable difficulties managing a class action.

	I. Defendant Class Actions: Rule 23 states that suits may be brought against
	a defendant class. For such actions, the Rule does not provide any procedures
	different from those for actions on behalf of a plaintiff class.

Obtaining Information for Trial

I.  Discovery in general

	A. Discovery under the FRCP takes several forms:

		1.  Automatic disclosure, in which each party
		must disclose in writing the names of occurrence
		witnesses, facts about documents, etc., early on in
		the litigation without a request from the other
		side.  Only about 50% of jurisdictions have adopted
		automatic disclosure.

NOTE: Scalia says that mandatory discovery puts a lawyer in the awkward position of helping the other side more than assisting his own client.  Also, he says that what is “relevant” to “disputed facts” will produce massive litigation.

		2.  Depositions, taken from both written and
		oral questions (this is probably the most important
		part of discovery)

		3.  Interrogatories addressed to a party

		4.  Requests to inspect documents or property
		(second most important part of discovery)

		5. Requests for admission of facts

		6. Requests for physical or mental examination

	B.  Non-privileged relevant material: Any relevant material which is non-	privileged may be discovered.

	C.  Objectives of discovery:

		a.  Narrow and clarify the basic issues between
		the parties AND

		b.  Ascertain the facts relative to those issues.

	NOTE:  Courts generally will not allow discovery for the
	purpose of determining whether or not there is a factual
	basis for a cause of action not yet made. 

	D.  General scheme:  Determining whether material falls 
	within the scope of discovery can be accomplished by 
	addressing the following seven questions:

		1.  Is the material subject to "Initial Disclosure" 
		provisions of 26(a)(1) or the "Pretrial Disclosure"
		provisions of 26(a)(3) (remember only 50% of
		jurisdiction adopt mandatory discovery)?  

		"Yes"--automatically discoverable, regardless of 						questions below.

		"No"--go to step 2.

NOTE: Scalia says that mandatory discovery puts a lawyer in the awkward position of helping the other side more than assisting his own client.  Also, he says that what is “relevant” to “disputed facts” will produce massive litigation.

		2. Is the material relevant to the subject matter in
		the pending action?  

		"No"--discovery will not be allowed.  
	
		"Yes"--go to step 3.
	
		3.  Will the material be admissible at trial?  

		 "No"--discovery will not be allowed unless
		the information appears reasonably calculated to 
		lead to the discovery of admissible evidence. If
		it is calculated to lead, go to step 4.
	
		"Yes"--go to step 4

		4.  Is the information sought privileged?

		"No"--go to step 5

		"Yes"--if it is privileged, it is not discoverable, 
		unless the privilege is waived.
		
		5.  Is the information outside of the work product 
		immunity?

		"No"--Discovery is allowed only if there is a showing of
		substantial need of the material, and an inability to
		acquire it by other means without undue hardship.
		If this showing can be made, go to step 6.  Examples of
		this include:  other attorney has a deposition of a 
		witness that has died.

		"Yes"--go to step 6

		6.  Is the material composed of facts and/or opinions
		held by experts?

		"No"--go to 7

		"Yes"--It may or may not be discoverable. See Rule 	26(b)(4)

		7.  If the material sought for the purpose of discovering
		whether the other party has evidence to impeach the
		discovering party's credibility (i.e. a witness whose
		sole goal is to impeach credibility)?

		"No"--then material is probably discoverable

		"Yes"--It may or may not be discoverable.  Rule 26(a)(3)
		suggests not--names to not have to automatically be
		provided for evidence that is expected to be "solely
		for impeachment purposes."
	
	D.  Discovery Scope and Limits (Rule 26(b))

		1.  Rule 26(b)(1):  Rule 26(b)(1), which applies to all forms of discovery, 			provides that the parties may obtain discovery regarding any matter that is 			relevant to the subject matter involved in the pending action.  This 			"relevance requirement" is very lenient--it is sufficient that the material is  			relevant to the subject matter of the action, and not to the precise issues 		which will arise at trial.  This matter must not be privileged (i.e. attorney-			client privilege).  But Judge Brazil states that accessing this material 			involves common sense and good faith, not using discovery for ulterior
		motives or for totally ineffective and inefficient reasons.  Convergent 			Technologies Securities Litigation

		2. Rule 26(b)(2):  Rule 26(b)(2) is very important, according to Sherman, 			since it limits discovery.  One major purpose is to limit wealthier parties 		from bullying or over-burdening less wealthy parties during the 			discovery process.  The court must limit discovery if it finds 				one of the following circumstances to exist: 

			a.  Discovery unreasonably cumulative:
			If discovery is obtainable from some other 
			source that is more convenient, less burdensome,
			or less expensive, the court may limit or forbid
			discovery (but court must be careful of letting
			a party freeload and get information at the
			other party's expense).

			b.  Party has already had the opportunity
			for discovery:  If the party seeking discovery
			has already had ample opportunity in the action
			to obtain discovery of the information sought,
			the court may limit or forbid discovery.

			c.  Discovery unduly burdensome:  If discovery
			is unduly burdensome or expensive in view of the
			needs of the case, the amount in controversy, the
			limitation on the parties' resources, and the
			importance of the issues at stake in litigation, the
			court may limit or forbid the discovery.  This
			is essentially a proportionality test that
			requires considering cost-benefit principles.

		EX:  There is a $500 case, and it would cost $10,000 for 					discovery.  The judge could use 26(b)(2) to limit 
		discovery.

		NOTE:  Rule 1 is in accord with Rule 26(b)(2),
		since it states that the purpose of FRCP is "to
		secure the just, speedy, and inexpensive
		determination of every action.

	E.  Sanctions (Rule 37): Applied if there is an abuse
	of discovery, such as when discovery is used to harass or
	club an opponent into settlement.

II. Discovery Devices

	A.  General characteristics: The various forms of 
	discovery (including depositions, interrogatories, and
	document requests) are set out in Rules 30, 31, 33, 34, 
	and 36.  With the exception of Rule 35--requests for a 
	physical or mental examination--each of these forms shares
	several characteristics:

		1.  These modes of discovery operate extrajudicially,
		without the intervention of the court.  It is only when
		one side refuses to comply with the other's discovery
		request that the court intervenes.

		2.  The material sought to be discovered must be 
		relevant to the subject matter of the lawsuit,
		and unprivileged.

		3. Every request for discovery of any type, and any
		response or objection to discovery, must be signed
  		by the lawyer preparing it. (Rule 26(g))

		4.  Rules 26(g)(3) and 37 can be used for sanctions (depending on the 			discovery violation).

	B. Planning for discovery (Rule 26(f))

		1. At least 14 days before a scheduling conference with the judge occurs 			under Rule 16(b), there must be a meeting between the parties to discuss 			their claims, defenses, and possibility of prompt settlement of their 				case, and to develop a proposed discovery plan.   The discovery plan 			will be submitted to the court meeting under Rule 16.  No formal 				discovery can take place until counsel meets under Rule 26(f) (unless a
		witness is about to leave the country).

	C. Document Inspection (Rule 34)

		1. Materials discoverable:  A party is entitled to inspect and copy a 			variety of items in the possession of the other party, including documents, 			photographs, maps, records (however kept), and correspondence.  				Information stored on computers can also be inspected.

		2.  Designation of items:  The moving party must
		describe the items to be produced with sufficient
		certainty.  

			a.  Category (most common):  Most often, a party will request all 				material that falls within a category (i.e., "all documents that relate 				to the meeting on January 4, 1994") rather than specifying 					individual items.

		NOTE:  Rule 26(a)(1)(B) calls for parties to 
		automatically disclose pertinent documents, or
		provide a listing of them by category, before
		formal discovery begins.  Thus, these documents may
		not need to be formally discovered.

		3.  Writing/interpreting discovery requests:  The producing party will 			interpret discovery requests as narrowly as possible.  The moving party 			will  draft discovery requests as broadly as possible.

		4. "Control" and "Influence" of documents: A party must produce all 			requested items that are within its possession, custody, or control.  The 			"control" idea can be extended to making the party obtain documents 			from others if it has "influence" over the possessor (i.e., docs in 			possession of D's British affiliate were in D's custody or control for 			purposes of discovery).			
			
		5. Organization: The responding party must produce
		documents as they are kept by the producing party,
		or grouped according to the specifications of the
		request.

		6.  Difficulty of obtaining docs not an excuse: The 					responding party cannot avoid producing documents by claiming 				"impossibility" or "great difficulty" if it can obtain information from 			sources under its control.  This generally requires a  good faith effort.  			Also, the burden should not be on the moving party to go on a gigantic 			treasure hunt to find the documents in the possession of the producing 			party, since the producing party is generally more familiar with their 	
		organizational systems.

		EX:  Fact that a record search of 2.8 million invoices would requires a 			great deal of time and money is not sufficient to avoid doc production (of 			course, the proportionality test of 26(b)(2) would apply here).  

		EX:  Fact that Sears had a poor indexing system and it would be a 				"Herculean effort" to locate requested docs is not an excuse not to produce 		docs or put burden on moving party to locate docs.
		
	D.  Non-party production (Rule 45)

		1.  Non-party production:  Rule 45 authorizes a subpoena to produce 			designated documents in its control or permit inspection of premises.  But 			"reasonable steps" should be taken to "avoid imposing undue burden or 			expense" on that non-party.

	E.  Interrogatories (Rules 33)

		1.  Interrogatories are written questions from one
		party to another party requiring written responses
		under oath.

			a. Interrogs v. Depositions: 

				(i) Interrogs may be addressed only to a 							party to the action, while depos can be taken 						from a party or nonparty witness.	
			
				(ii) Interrogs are prepared in writing, 							usually by counsel for the answering party.  
				Depo questions may be oral or written, but
				the answers are always given orally
				before the court and are transcribed.

				(iii) Interrogs require the party to answer 							not only of his own knowledge, but also on 							the basis of information to which she has 							reasonable access.  But a deponent may 							limit his answers to only matters of which 							she has personal knowledge.

		2. Who must answer:  
			
			a. A non-party witness is not subject to interrogs.  But oral or 				written depos are available (which of these two depos are 
			available depends on how far the witness lives).
				
			b.  Interrogatories served on a corporation
			may be answered by any officer or agent
			designated by the corporation.  (Rule 33(a))
			
		3.  Limiting interrogs:  A party, under Rule 33(a), is limited to 25 			interrogs absent stipulation or court order.

		4. Use of interrogs:  Interrogs are very helpful
		for identifying witnesses and discovering
		the location of documents and other tangible
		items, although 26(a)(1) may mandate disclosure of
		many of these things.

		5.  What is and is not appropriate in 							interrogs: 

			a.  Appropriate: to ask what the other
			side's position is, what their opinion is,
			even what their opinion is about the
			application of law to fact.  These are
			known as contention interrogs.
			Rule 33(c)

			b.  Innapropriate: Getting into the
			details of the other side's strategy.  This
			is known as "work product."

		6.  Extensive search required:  Since an answering party must give all 			info under his conrol in response to an interrog, he might have to conult 			his own files or employees.  This requires a "good faith" effort.  If the 			answer can only be supplied by an extensive search of docs, then it is 			sufficient to specify the pertinent records and allow the inquiring party 		to examine and copy them.   Rule 33(d)

		EX:  P sought detailed statistical info from D in an
		employment discrimination suit. D objected, invoking
		Rule 33(d).  P responded that D could find info easier
		than P could.  Held: Rule 33(d)'s applicability depends 
		not on familiarity but with the difficulty of analyzing
		thos records to derive the info. for P's request.  P is
		just as capable as D of finding docs, and a kowledgeable
		employee shall help P locate those docs.

		NOTE:  Unlike Rule 34 (Sears case), Rule 33(d) allows the burden to 			be shifted onto the moving party.

		6.  Objections:  Objections during interrogs are
		later ruled on by the court. Rule 36(a)--3rd para

	E. Depositions (Rules 30, 31, and 45)

		1.  Depositions: A deposition is the examination of a witness under 			oath in the presence of a court reporter. Counsel can examine and 			cross-examine the witness.  If the witness is recalcitrant, the 
		examination may be held in front of a judge. 

		2. Form of notice:  A party wishing to depose a witness must give 				reasonable notice in writing, not a subpoena, to the party (deponent) 			and every other party, identifying the deponent, and time and place 			of depo.  Rule 30(b)

			a.  Non-parties:   Non-party witnesses must be told to attend by 				means of a subpoena under Rule 45(a).  Under Rule 45, the 				moving party must pay non-party.  Moving party may also end up
			antagonizing non-moving party.

		3.  Production of documents: A subpoena or notice
		may direct the witness to bring along and produce at
		deposition any docs that could properly be sought by
		a request for production (this can be very efficient,
		since it allows the moving party to go through the
		whole process of requesting documents).  Rule 30(b)(5)

		4. Place of depo: Depo must take place within 100
		miles of the place where he resides, is employed, or
		transacts business.  Rule 45(c). 

		5.  Numerical cap on depos: A 10-deposition limit is not per party, but 		cumulative (for Ps, Ds, and third-party Ds).  A witness' depo can be taken 			only once.  (Rule 30(a)(2)(A))

		6. Advantages and disadvantages of depos:
		They are very expensive, but an important part
		of discovery (2/3 of discovery consists of depos)--
		they are the workhorse of discovery. The advantage
		of depos is that they are spontaneous--witnesses 
		cannot prepare their answers in advance.

		7.  Oral (Rule 30) v. Written (Rule 31) depos

			a. Oral (Rule 30):  A party may take the oral
			testimony of any person (party or non-party)
			thought to have information within the scope of
			discovery, by asking oral questions.  This is
			more expensive than written depos, but it 
			allows the examiner to follow up answers
			effectively and does not allow deponent to
			sit and think about their answers.

			b. Written (Rule 31):  An examining party can
			submit its answers in writing.  This may be
			less expensive than oral depos, but it does not
			allow for follow up answers.  The written
			depo is a midway point between the prepared 						answers of interrogs and high cost of spontaneous depos.  Written 				depos are much less common than oral ones.  

				(i)  Two main purposes--deposing distant non-party 					witnesses and low cost: Deposing distant non-party 					witnesses who cannot be served with interrogs (since these 					apply only to parties) and saves the expenses of 
				making a trip to interview that witness.
		
		8.  Objections:  Objections during interrogs are
		later ruled on by the court.  Rule 36(a)--3rd para

	F.  Physical or mental examination (Rule 35)

		1. When the physical or mental condition of a party
		(not a non-party) or of a person in the custody or under
		legal control of a party is in controversy, the court
		may order the party to submit a physical or mental
		examination only if good cause is shown.  Notice
		must be given to the person examined and to all other
		parties.

			a.  Good cause means that the exam sought must
			be shown to be reasonably likely to produce 
			information about the condition in issue.

		2.  Rule 35 v. other discovery devices:  There are two important 				differences between Rule 35 and other discovery devices discussed 			previously:

			a.  Motion required:  Unlike the other discovery
			devices, Rule 35 does not operate 								extrajudicially.  The discovering party must
			make a motion showing good cause.

			b.  Controversy:  Mental or physical condition
			must be related to an actual issue in controversy that is raised 				directly in pleadings or in the factual contentions of 					parties through discovery (this is a stricter 							standard than other discovery devices, where
			the material simply has to be relevant to the
			subject matter in the pending action).

		EX:  P sued D for defamation, alleging that D's letter to
		potential employers stating that P was a bad 
		employee caused her mental anguish.  D issued a motion
		for the mental examination of P, but P objected. Ct. 	upheld a mental 			examination, holding that that P's claims and her desired compensation 			went directly to the issue of mental anguish.

		NOTE:  Many cases, such as those involving sexual 
		harassment, fall into the gray area of whether or not a 
		mental exam should be ordered.

		3.  Counsel cannot attend the exam.

	G.  Sanctions for discovery 

		1.  General sanctions:  Several types of orders and
		sanctions are available to parties to enforce the 						discovery process.  

		2.  Abuse of discovery:  A party may use discovery
		to harass or bully his adversaries, such as requesting
		that discoveree reveal trade secrets. There are two
		ways discoveree can react:

			a.  He can object to that particular request.
			The usual ground for such an objection is that the
			request does not fall under the scope of 
			discovery under Rule 26(b)(1), or that it is
			priveleged (i.e., attorney-client privelege).  OR
			
			b.  He can seek a protective order under Rule 						26(c).  A proptective order may be issued to 							prohibit an entire line of questioning, the use of
			a particular form of discovery, or the examination
			of a particular witness. Rule 26(c) lists the eight
			different kinds of protective orders.

		3.  Compelling discovery:  Under Rule 37(a), a party
		seeking discovery may seek an order compelling 						discovery.  Such an order is sought when the 						discoveree refuses to divulge the requested 			
		information.  Rule 37(a) applies to when the discoveree
		fails to answer, or provides an evasive or incomplete answer, and so on.  

		4.  Sanctions:  Rule 37(b) provides for a number of
		sanctions, such as attorney's fees or contempt of court,
		depending on how serious the lack of compliance is.

	H.  Admissibility at trial 

		1.  Use of results generally:  Once a party has
		obtained discovery through trial, he may wish to
		put that information into evidence at the trial.  
		Whether or not this info is admissible is set out
		in the various rules.
		
		2.  Requested documents under Rule 34 are 
		generally admissible, as long as they are 
		authenticated as to their genuineness.

ASK SHERMAN TO CONFIRM THIS.

		3.  Depositions (Rule 32(a)): Admissibility of depos 					depends on whether the depos would fall under the 
		exceptions listed or whether they would be hearsay.	
		
			a.  Generally inadmissibe:  Statements in depos
			are hearsay and thus are generally inadmissible.

			EX:  Deponent stated, "X told me that D went through
			the red light."  This statement would probably not
			be allowed  on P's behalf at the actual civil trial 						because of the hearsay rule.  Thus, since the
			statement could not be made at trial, the 
			deposition likewise would not be admissible at rial.

			b. Exceptions:  However, if the statements fall
			under the following circumstances then they may
			be admissible.

				(1)  Party admissions:  The depo of an
				adverse party, or of a director or officer
				of an adverse corporate party, may be 
				admitted for any purpose at all

				(2)  Impeachment:  The depo of any 
				witness, whether he is a party of non-party,
				may be used to impeach the witness'
				credibility on the stand.  

				EX:  W testifies at trial that he saw X run the    
				light and kill his friend Y.  In his depo, W
				admits to having once falsified a job 								application.  Even though W is not a party to the suit, his 					deposition testimony can be used to impeach his credibility.

				(3)  Unavailability of deponent:  If
				deponent is dead, more than 100 miles from 
				the trial, too ill, or there are "exceptional
				circumstances," then the deposition of any
				of that deponent can be used for any purpose,
				including at trial.
			
				(4)  Exceptional circumstances:  If there
				are "exceptional circumstances" and in the
				interest of justice, a depo can be used at 							trial.

			NOTE:  A party cannot introduce a depo to buttress
			he own case or to bolster witness' credibility. 

			EX:  D is testifying.  His manager, X, is in the 
			courtroom.  P wants to put X's depo into
			evidence to impeach D.  Under 32(a)(2), a party's
			manager's depo can be used, even though that
			manager is sitting in the courtroom.

			EX:  P took depo of an engineer, who is not a party
			to the lawsuit.  The engineer lives in the same
			city.  Can the engineer's testimony be used?  If
			it is to impeach a witness, it can be used under
			32(a)(1).  But if not, then it can only be used under
			"exceptional circumstances" as required by Rule
			32(3)(E).
			
		4.  Interrogatories (Rule 33(c)):  The interrogatory answer of a party 			can be used by an adverse party for any purpose, including substantive 			as well as impeaching purposes.  

			a.  Not binding:  Statements made in depos and 
			interrogs are not irrefutably binding on the
			maker, and he can contradict them in court.	
		
		5.  Physical and mental exams (Rule 35):  The
		results are almost always admissible at trial.

	J.  Request for admission (Rule 36)  

		1. Acknowledge issues:  A request for admission may
		be served by any part on any other party, whether adverse or not.  Such a 			request imposes a duty on the party to acknowledge the existence of facts 		that are not in doubt and that should not be necessary to prove at trial.

		2. Subject of request:  A party can request that the
		other party admit the genuineness of a document,
		admit an opinion (i.e., extent of damages), and so on.

		3.  Requests and responses:  A request can be served any time after the 			26(f) conference and must be responded to within 30 days.

			a.  If there is no response to the request, then
			the matter is deemed admitted. Sherman
			says this is one strategy available to get the
			other party to admit things.

	K.  Duty to supplement responses (Rule 26(e))

		1.  Supplementing disclosure:  If party makes a
		disclosure that is accurate but later learns it is no
		longer accurate, or the party is honestly mistaken
		about some fact at the time of disclosure and later
		learns of his mistake, then that party has a duty
		to amend or supplement his disclosure.  This
		duty to supplement includes interrogs, document
		requests, requests for admission, expert 
		opinion (if it changes), and any automatic
		disclosures under 26(a).  Rule 26(e)(1) and (e)(2)

ASK SHERMAN TO DEFINE PARTY

	L.  Discovery sequence and tactics 

		1.  Streamlining complaint:  A carefully drafted
		complaint can narrow the issues and streamline the
		discovery process.  It should make clear as to what
		the acknowledged facts are.
		
		2.  After pleading stage: After the pleading stage,
		many lawyers launch into interrogs, followed by doc
		requests based on interrogs, followed by depos.  But
		an alternative approach is to use depos to 
		accelerate discovery since they get a case moving
		better than any other discovery device.  See rules 27
		and 30(a) for time requirements. See Sherman p. 329

III. Managing the Scope and Burden of Discovery

	A.  Exemptions from discovery

		1.  Privelege (Rule 26(b(1)):  Rule 26(b)(1) allows
		discovery of any matter that is not priveleged.  
		Examples of privelege would be an attorney-client
		privelege, doctor-patient privelege, and whatever
		other priveleges are protected under the state law of the applicable state.  

			a.  Attorney-client privelege:  Protects
			only legal advice between an attorney and his
			client.
		
			b.  Corporate client privelege: Many courts 						previously limited the privelege to communications 						between lawyers and the "control group" of the 						corporation--the employees who were high up and
			controlled the corporation, and could act on
			attorney's advice.   But the problem with this
			"control group" test is that it did not allow
			the high up employees to investigate middle
			and lower eschelon employees about a certain
			issue (i.e., Union Carbide polluting the Amazon),
			since there is no attorney-client privelege.
			It created a zone of silence.

				(1)  "Control group" test rejected: But in 							Upjohn v. U.S., the Sup Ct rejected the 							"control group" test and adopted a test that 							can extend the privelege all levels of 								employees.  This privelege--or confidential
				relationship--would allow a corporation to
				better prepare for litigation.  The
				corporate client privelege is really an 
				extension of the attorney-client
				privelege in that it protects all
				eschelons of corporate employees.

		2.  "Work-product" immunity (Rule 26(b)(3) and
		(b)(4)):  Certain immunity from discovery is given to the materials 			prepared by counsel fo trial purposes (26)(b)(3), and to the opinions of 			experts 26 (b)(4) that counsel has consulted in trial 	preparation.  This 			immunity is referred to as  "work-product" immunity, and applies to all
		preparation for trial done by the lawyer or any representative of the 			party unless the discovering party can show substantial need and an 			inability to obtain equivalent material without undue hardship.

					(a)  Prepared for trial purposes
					means that materials being sought
					were prepared for litigation, and for
					materials not to fall under this 								immunity, there must have been no 								foreseeable possibility of litigation.
			
		Rationale:  Without this rule, there could be a problem of
		attorneys getting a free ride, and using opposing 
		counsel's (or his expert's) notes, investigations,  etc., gratis.
 
			a.  Qualified v. absolute:

				(1)  Absolute immunity: Documents 
				containing the subjective thoughts
				(i.e., legal theories, opinions, mental
				impressions) of a party's lawyer or
				other representative are given absolute
				immunity, which is impossible to 
				overcome.  Rule 26(b)(3).  

				Caveat: Sup. Ct. in Upjohn stated briefly that 						such an "absolute immunity" may be overcome
			 	if at the very least a substantially
				stronger showing of need, along with
				unavailability, can be made over and
				above the requirements for overcoming 							qualified work-immunity. In Hickmen, the Sup. Ct. held  					that discovery of mental impressions will be possible only 					in exceptionally rare circumstances.

				(2)  Qualified immunity:  All other 
				documents in anticipation of litigation by a 							party or his representative (i.e., notes on 							what prospective witness said when 								interviewed) are given qualified immunity.  						This immunity may be overcome by a strong
				showing that the discovering party had
				a substantial need for the materials and
				that the substantially equivalent docs were 							not available through other means 								without undue hardship (i.e, experts, who 							were going to be called at trial, examined 							and xeroxed important docs that were later
				burned in a fire before the opposing experts
				could scrutinize them--xeroxes should be
				turned over to opposing experts).	

					(a)  Substantial need means that
					the material sought is of  substantial
					importance to its case, not just
					minimally relevant

					(b)  Party must show that it is unable					 			to obtain the substantial equivalent 								without undue hardship.

3  Hickman v. Taylor is the leading case dealing with work-product immunity.

Facts: A tugboat sank, drowning most of the crew-members (including P’s decedent).  Counsel for Ds, the tug owners, interviewed
each survivor separately and obtained signed statements from each.
Counsel for P requested that the lawyer “attach exact copies of all
statements [by the survivors] if in writing, and if oral, set forth in detail
the exact provisions of such oral statements and reports.”  Counsel for
Ds refused the request, claiming that it called for “privileged matter obtained in preparation for litigation” was an attempt to get at his
work-product.

Held:  P’s discovery request was improper because it violated the trial-
preparation or “work-product” immunity of D’s counsel.  But it did not
violate the attorney-client privilege, since this privilege only protects 
communications from client to lawyer, not from lawyer to witnesses.  The attorney’s mental impressions in this case were absolutely privileged, but the transcriptions of the interviews and signed statements were only
qualifiedly privileged.

a. 	In order to gain access to qualifiedly privileged materials,
the discovering party has the burden of showing: 

(1) 	That materials are essential AND
(2) 	That witnesses are no longer available or are
difficult to locate, and that there is no altenative
source for the information.

b. 	If the discovering party can obtain the desire qualifiedly
privileged information elsewhere, then he has not met the
burden of special circumstances to overcome qualified privilege.

c. 	Discovery of mental impressions will be possible only in 
			exceptionally rare circumstances.

NOTE: A minority of courts have held that mental impressions can be discoverable with no showing of relevance or only when they are compelling and relate to a pivotal issue.

		EX:  What if a third party—a witness of P’s—is wanted by D for a
		deposition, but he does not say anything? He can be subpoened, and if
		he refuses to speak or is hostile, then D could make a strong argument
		for seeing any written statements between P’s attorney and witness.
		Remember, any conversations between P’s attorney and witness is
		not protected by the attorney-client privilege and is considered “work
		product.”

4.  Hickman contrasted with Rule 26(b)(3):  In federal court, the
protections of both Rule 26(b(3) and Hickman apply, although they
usually overlap.  There are significant differences, however:

a. 	Rule 26(b)(3) only protects “documents and tangible items.”
It thus has no application to mental impressions.  But Hickman is not limited to tangible items and does protect mental impressions.

b. 	Rule 26(b)(3) is broader than Hickman, protecting the work of
			lawyers as well as trial preparation by any other representative
			(i.e., an agent or consultant) of the party.
			
5.  Experts under Rule 26(b)(4)(A) and (b)(4)(B):  Lawyers are increasingly dependent on experts, whether to help them prepare for trials and testify at trials. 

a. 	Non-testifying experts (Rule 26(b)(4)(B)):  Facts known to,
			and opinions held by non-testifying experts, are discoverable
only in exceptional circumstances.  The test for whether these facts and opinions are discoverable is very similar to 26(b)(3):  

(i) The information must be essential AND

(ii)  There must be exceptional circumstances (i.e., one party has monopolized qualified experts, or one party had access to material that disappeared or was destroyed before the other party looked at it).

(1) 	Non-testifying expert for opponent: If
P’s lawyer decides not to use one of his non-testifying expert’s assistance in a case since it might contradict P’s cause of action, can D’s attorney hire that expert? No,
only if he can show extraordinary circumstances (i.e.,
there are no other experts that D can hire). 

(2)  In-house experts: Shell Oil Refinery dealt with in-house experts.

(i) 	If an in-house expert is being used for a 
specific case, then they are protected under Rule
26(b)(4)(B)

(ii)  If in-house experts are not retained or specially employed for the case, then they are treated as normal witnesses under Rule 26(b)(1)
					
(iii) 	If in-house experts prepared work in 
anticipation or in preparation of trial,
then they fall under the work product doctrine of
Rule 26(b)(3).

				Rationale:  This encourages parties, whether they are poor
				or not, to do their own research and not free-load.

ASK SHERMAN TO CONFIRM THIS.  What is the diff. Between (i) and (iii).

b. 	Testifying experts (Rule 26(b)(4)(A)):  Under Rule 26(a)(2)(B) and (C), mandatory disclosure of testifying experts, along with their complete reports, must me made by both parties at least 90 days before trial (or a judge can intervene and decide when this mandatory disclosure must be made).  Also, after the reports are provided, any party has the right to take the deposition of the testifying expert.

	General Hypo:  P sues Ford for defective design of a steering mechanism.
	How would P go about discovery?

	First, under Rule 26(f), the parties have a meeting to come up with a discovery
plan.  Within 10 days after this meeting, mandatory discovery occurs, and any documents that fall under 26(a)(1) must be turned over. Under 26(a)(1)(B), all docs related to the disputed facts, alleged with particularity in the pleadings, must be either turned over or described.  (This is why it is best for parties to allege their facts with particularity in their pleadings—separating each thought or factual allegation into separate paragraphs).  This assumes these docs are not protected by any privileges, or that these privileges are not overridden (as in Dianna Ross case).  If P requests “all docs related to the steering mechanism,” then under 26(b)(2), it would probably be denied since it is so burdensome on D and the discovery outweighs its benefit.  But if documents are requested that relate to a specific ballbearing, then under Rules 34 these documents must be turned over.  After these docs are turned over, then interrogs and depos will usually occur.

IV. 	Enforcing Discovery—Sanctions (Rule 37)

A. 	Motion to compel response:  Before any sanctions can be enforced, there
must be a motion to compel under Rule 37(a).  After court compels the party to
	respond to the discovery request, and it does not, then sanctions under Rule
	37(b) or (c).

B. 	Serious sanctions for intentional as well as negligent disobedience:  Rule
37(b) covers a variety of sanctions.  The more serious ones under Rule 37(b)(2)(B), such as dismissal or contempt, can be used, even if the offender’s conduct was not willful or intentional but negligent.  In Cine Forty-Second Street v. Allied Artists, the Second Circuit held that severe sanction was appropriate where the discovery to comply with the discovery order was grossly negligent.  Even if the offender finally filed the required interrogatory answers, he can still be sanctioned severely.

Rationale:  Gross negligence delays litigation as much as intentional disregard of
court discovery rules.

EX: When P failed to provide adequate answers to interrogs regarding dams, the ct precluded P from introducing evidence of dams, leaving P only a claim for
injunctive relief.   Cine Forty-Second Street

1. 	Interlocutory appeal (28 U.S.C. 1291):  An interlocutory appeal can be used by a  judge, as long as he can show a controlling question of law is involved.  In Cine, an appellate judge, after overruling the lower ct. judge, made an interlocutory appeal to the Second Circuit.

Adjudication Before Trial: Summary Judgment

I. 	Summary Judgment (Rule 56)

A. 	The burden of proof:  Saying that a party has the burden of proof can mean two different things:

1. 	Burden of production:  Unless that party produces some evidence
that A exists, the judge must direct the jury to find that A does not exist.
The party in such a situation bears “the burden of production,” which means that there must be sufficient evidence that a reasonable trier of fact could render a decision without having to speculate.   If this burden is not met, then the judge can  grant, say, a motion for summary judgment or an order a directed verdict.

2. 	Burden of persuasion:  Or, it can mean that if at the close of
evidence, the jury cannot decide whether A exists or not, it must find
that A does not exist.  The party seeking to prove A bears the “burden
of persuasion,” which is a preponderance of the evidence (more than 50%).

	The burden of production is not necessarily placed on the same party as the
	burden of persuasion.  Indeed, the burden of production may itself shift
	throughout the course of the trial:  

	EX:  A trial consists of only one issue, A, which P asserts and D denies.  P starts
	out bearing initially the burden of producing some evidence of A.  If he produces
	just enough evidence so that the judge finds that a reasonable jury might find that
	A exists, P had met  his burden of production.  If P produces so much evidence 
	that he is, in the absence from D, entitled to a directed verdict, P has shifted
	the burden of production to D.  If D now produces the evidence, he can either
make a jury issue of A (in which case neither P nor D bears the burden of production any more) or he can produce enough evidence so that P must once more meet the burden of production, or suffer a directed verdict against him.

B. 	Summary Judgment: Summary Judgment (SJ) is a method for getting beyond the allegations of the pleadings and examining evidentiary material without holding a full trial.  If this material reveals that there is actually no genuine controversy or issue of material fact—even if one party claims there is—then SJ motion may be granted.   

1. 	Pleading motions (12(b)(6)) contrasted:  Pleading motions, such
as a 12(b)(6), look only at the face of the pleadings and test only if they are legal sufficient (i.e., they state a legitimate cause of action).  A summary judgment, though, allows the court to go beyond just the pleadings and look at evidentiary material.

2. 	How shown:  The movant (the person seeking SJ) can show lack of a genuine issue of fact by two main means:

a. 	Affidavits:  These affidavits must recite only must recite
matters as to which the affiant has personal knowledge and
which would be admissible at trial.  Rule 56(5)

b. 	Discovery materials: Second, the movant can submit
the fruits of discovery (i.e. depositions, interrogatory
answers, etc.), no matter which side they were obtained
from.  Rule 56(e)

3. 	Showing by movant:  Regardless of who has the burden of
persuasion on an issue at trial, the movant  bears the initial burden of 
of production on that issue.  That is, as part of his SJ papers, he bears the burden of coming forward with info. that clearly shows there is no factual dispute and that warrants granting a motion for SJ.

a. 	Early view (Moore and Addickes):  The party without t
the burden of proof had to make as strong a showing as one with the burden of proof to invoke SJ.  Addickes v. S.H. Kress  (where D moved for SJ, and Sup. Ct. held that, even though P could not prove in a conspiracy charge the presence of police earlier in the day, the burden was on D to prove they were not there).

b.  Modern view (Celotex):  Celotex v. Catrett altered the early view.  The Sup Ct in this case liberalized the burden on a moving party and made it easier to obtain SJ.  Normally, the movant will,
as already mentioned, use affidavits or discovery materials 
to show the lack of a genuine issue of fact.  But in those
situations where the responding party will bear the burden
of persuasion at trial, the movant will not necessarily
have to come up with affidavits, depositions, or other
evidentiary materials.  Instead, he may be entitled to SJ by
merely showing that the existing record contains no evidence
that the other side (which bears the burden of persuasion at
trial) will be able to prove an essential element of its case.

			EX:  P claimed to have been injured by exposure to asbestos
			manufactured by D.  After discovery, D moved for SJ on 
			the grounds that there was no evidence in the record that any
			of D’s products caused the injury, an issue on which P would
			clearly have the burden of persuasion at trial.  D did not produce
			affidavits, depos, or any other info. In support of the proposition
			that its products were not the ones that caused P’s injury—it
			simply pointed out to the court that P had no evidence 
			implicating D’s products.  Held:  SJ is granted to D.  Under
			Rule 56, there is no express or implied requirement that
			the moving party support its motion with affidavits or other
similar materials negating the opponent’s claim.  Celotex.  This is modern view (the traditional view would have required that D affirmatively proved that he was not the manufacturer of asbestos).

				(1).  Bald assertions not sufficient: Even under 
Celotex, however, the moving party must do more than
merely state in a conclusory fashion that there is no
evidence for an essential element of the other party’s
claim. 	The moving party must review all affidavits,
depos, interrogs, and other parts of the record, and must
explain to the court in some detail why these materials
fail to establish the existence of an essential element in
the other side’s case.  

				Rationale:  SJ could be converted into a tool of harassment.  

c. 	Burden on the moving party:  The party moving for SJ
			under Addickes and Celotex can do two things:

(1) 	Present affirmative evidence that rejects the
non-moving parties claim, and thereby show that
there is no genuine issue of fact, OR

(2) 	Point out that the non-moving party has failed to 
establish the existence of an essential element (i.e., other side could not prove D made asbestos)

NOTE:  It is usually easier for moving party to opt
for #2 instead of #1.

d. 	Currie approach: Currie says SJ should have the same
standard as a directed verdict.  He thinks that the moving party
puts on the opposing party, with the burden of proof, the task of
producing evidence sufficient to sustain a verdict in its favor.
The problem with this is that it would require basically a full
trial at the SJ stage.

		4.  The jury and SJ

a.  “Slightest doubt” standard contrasted (and overturned):  Some App. Ct. cases hold that a jury should decide issues of slightest doubt.  Arnstein v. Porter (where 2d Cir held that SJ was not appropriate since, even though D had never met P and P claimed D stole his music compositions, D’s music was similar to P’s and P’s compositions were widely distributed).  Nowadays, though, judges are skeptical of juries, and so SJ is often granted. 

b.  “Disbelief evidence”:  The theoretical possibility that a jury could disbelieve an uncontradicted witness and render a judgment 
against that witness, is irrelevant to an SJ motion.  Dyer v. MacDougal (where SJ in a defamation action was granted in favor of D when D produced evidence that everyone to whom the alleged defamation was published denied receiving such statements).  Thus, in order to get past SJ, it is smart for an attorney to try to get the witness during depos to be recalcitrant, evasive, etc. (however, attorney would not be acting in very good faith).

NOTE:  This case differs from Arnstein in that:  In Arnstein, SJ was
inappropriate if there was any doubt whatsoever, while in Dyer
SJ can be granted even though there is some theoretical doubt.

6.  Complex cases and clash of the experts:  In complex case, court have
		have evinced more willingness than in the past to entertain SJ, even
		when discovery reveals that the experts disagree with each other.  

		EX:  Ps, a group of American TV manufacturers, accused Ds, a group
		if Japanese TV makers, of conspiring to lower prices (“predatory
		pricing”) in an attempt to take over the market.  P’s experts affirmed
		P’s theory, while D’s experts said that “predatory” pricing is not
		economically efficient and that they had virtually no chance anyway
of monopolizing the market.  D moved for SJ, saying they would never 
		engage in such a conspiracy since it would be economically inefficient.
		Held:  Even though there is a clash of the experts, SJ is granted since
		D would have never engaged in “predatory pricing” for economic reasons.
		Ed adds that this ruling is good, since experts will say anything for
		the right amount of money.  Matsushita v. Zenith

		NOTE:  In Eastman Kodak, the Sup. Ct. limited the extent of Matzushita,
		arguing that the nonmoving party’s inference--that based on the
evidence the moving party is guilty—must be reasonable, and that
there is no special burden on Ps in antitrust cases.

ASK SHERMAN TO CLARIFY WHAT EXACTLY THE “INFERENCE” TEST IS (he mentioned that it also replaced the “slightest doubt” test).

Judicial Supervision of Pre-Trial 
and Promotion of Settlement
		
I. 	Pretrial Conference (Rules 16 and 26)

A.  Pretrial conference generally: 1993 changes to the FRCP provide for
mandatory meet and confer sessions among the parties (Rule 26(f)), numerous
pretrial conferences (Rule 16(a)-(c)), and a final pretrial conference (Rule 16(d)).
The following is order for scheduling sessions:

1. 	Scheduling order (Rule 16(b)):  Courts are required to enter a 
“scheduling order” within 120 days after service of complaint.  This scheduling order must set a time limit for joinder of additional parties, amendment of the pleadings, filing of motions, and completion of discovery.

2. 	Discovery Conference (Rule 26(f)):  As has been mentioned above 
under discovery, at least 14 days before the Rule 16(b) scheduling conference order, the parties must meet and confer regarding “the nature 
and basis of their claims and defenses” and to develop a discovery plan.
Within 10 days after this meeting, they are to submit a written report
to the court on their plan.

NOTE:  As has been previously discussed, for certain reasons (i.e.,
discovery is “unduly burdensome”) then judges can limit discovery
under Rule 26(b)(2).

3. 	Required disclosures (Rule 26(a)):  Under 26(a)(1), unless otherwise 
stipulated or directed by the court, initial disclosures shall be made at or 
within 10 days after the meeting under Rule 26(f).  Under 26(a)(2),
disclosure of expert testimony must be made at least 90 days before
the trial date.  Responses to this testimony must be filed within 30 days after disclosure by the other party.  

4. 	Court-ordered meeting (Rule 16(a)):  The court may in its
discretion direct the attorneys for the parties to appear before it
for a conference, or have a conference before the trial to prepare
for the trial.  The court can order counsel to appear at a pre-trial 
conference, and it can also order litigants represented by attorneys to appear (i.e., a “corporate representative with the authority to
settle”).  Of course, these litigants must show up to court on their
own terms, not those imposed by a judge who might want them to
settle for a certain amount of money, in order for there not to be
abuse of discretion by the court.  G. Heileman Brewing v. Joseph Oat.

	Rule 16(f) allows judge to apply sanctions where just.  It gives the judge
	authority to use the sanctions imposed under Rule 37(2)(b)(2)(B) and (C).

II. 	Settlement Devices (non-binding)  SEE p. 460 in Casebook

A. 	Non-binding settlement devices (in order from least formal to most)

1. 	Mediation (least formal)

2. 	Judicial settlement conference: This is the oldest form, but not the
best, since the judge attempts to settle the case and his neutrality
could be undermined in court (Hofstra case)

3. 	Early neutral evaluation:  Parties sit down with voluntary, neutral
lawyer who offers his views.

4.  Court-annexed arbitration:  Three arbitrators rule on the dispute.

5. 	Mini-trial:  A summarized trial before CEOs and other people. 
These people decide the case

6. 	Summary jury trial (most formal):  Normal trial with a jury, but the 
decision is not binding. 

ADD HERE INFO CONERNING ATTORNEY’S FEES, PARTS OF A TRIAL, ETC. ?

III. 	Right to Jury Trial

A. 	Seventh Amendment:  The Seventh Amendment provides that “in
suits at common law…the right of trial by jury shall be preserved.”
This provision clearly applies to federal trials. 

B. 	Federal Rule protection (Rule 38):  Rule 38(a) confirms this right of trial by jury for suits at common law. But Rule 38(b) states that the party must demand this right—it is not self-executing—within 10 days after the service of the last pleading directed to that issue.

C. 	Historical test:  Prior to when the Seventh Amendment became
effective, there was a split between equity and legal issues.  In courts of
equity, there was no right to trial by jury, while in the law courts, this right
existed.   Nowadays, a federal court will consider whether the claim is “legal”
or “equitable” as such terms were understood in 1791, the year in which the
Seventh Amendment became effective.

1. 	Vague distinction—law v. equity:  The line between “law” and
“equity” was vague and shifting.  The main distinction related to the
remedy sought. 

a. 	Equity generally afforded remedies when actual monetary
damages were not available, such as injunctions, specific 
performance, recission,  etc., or an adequate remedy at law
was unavailable.  Contempt sanctions would be enforced in the event of disobedience.

b. 	Law courts, on the other hand, afforded monetary damages
and other remedies (i.e., replevin, ejectment) that could be
enforced by court officers with or without the cooperation of
the parties.  For an issue to be tried by jury, there must have 
been an adequate remedy at law available.

D. 	Broadening trial by jury (Dairy Queen v. Wood)

1. 	Facts: The facts of Dairy Queen were as follows:

a. 	Licensing:  D has been licensed by P to use the latter’s
“Dairy Queen” trademark.  The K terms provided that D make
certain payments for the use of the trademark.

b. 	P’s claims: D fell behind in payment, and P sought two
kinds of relief: (1) an injunction preventing D from further
use of the trademark, and (2) an “accounting” to determine
the amount D owed, and a judgment for that amount.

c. 	D’s jury trial motions:  D moved for jury trial on the
accounting demand, arguing that since it was a demand for
a money judgment, it was clearly legal, not equitable.
(Obviously, D thought it would have better luck with a 
jury as the trier of fact instead of the judge).

d. 	P’s response: P countered that the demand was equitable,
since it asked not for dams but for “accounting.”

2. 	Supreme court ruling:   Of course, P’s seeking an injunction was an equitable claim.  While the district and appeals court denied a jury on the money judgment claim, the Supreme Court held that a jury trial must be allowed for this claim:

a. 	Claim is legal:  No matter whether the claim was for
			dams or trademark infringement, or for the sum owed under
			the contract (it was not clear which was being sought), the claim
			dealing with “accounting” was definitely legal.  

(1)  Use of certain language does not necessarily
determine nature of claim:  The use of the word “accounting” in the complaint  did not make the
claim equitable.  To say that its money claim was
equitable because it was cast in terms of an “accounting”
instead of an action for “debt” or “damages” would be
to make the constitutional right to trial by jury depend
on the choice of words used in pleadings.

(2)  Legal relief not adequate:  The claim would have
only been equitable if no adequate legal remedy was
available.  Where a money judgment is sought, the only
reason legal relief might be inadequate is because the
accounts between the parties are so complicated that a
jury cannot understand them.  But now that special
masters are available under Rule 53(b) to assist the
jury in understanding such complicated matters, it 
certainly cannot be said that legal relief is inadequate.

E.  Actions joining legal and equitable claims (as in Dairy Queen):

1. 	In actions where there are both legal and equitable claims, all
issues affecting the claim for legal relief must ordinarily be tried
first to the jury.  Then, after the jury makes its decision, the judge
will decide whether equitable relief (i.e., an injunction) will be
granted.

NOTE:  A party can seek interlocutory injunctive relief (a TRO or preliminary injunction) if they would suffer irreparable harm from delay
		in granting an injunction. The party need only show provisional findings.

IV. 	Judicial Control of the Verdict

A.  Judgment N.O.V. and Directed Verdict (now combined as
“judgment as a matter of law”)—Rule 50:  Prior to its amendment in 1991, Rule 50 provided for two different motions to control the 
	jury’s verdict—JNOV and directed verdict.  Under the prior Rule 50,
	a party could move for directed verdict before the case was submitted
	to the jury, while a party could move for JNOV after the jury verdict
	was rendered.  Other than the difference in timing, the two motions
	were identical.  In 1991, JNOV and directed verdict were merged				and subsumed by the term “judgment as a matter of law.”  In
	many jurisdictions, though, the traditional terms are used.		

1.  Judgment N.O.V v. Directed Verdict:  At the close of proof, motions may be used to determine whether a party has carried the burden of producing evidence.  A judge who is requested to grant a directed verdict is in a dilemma.  If he grants the directed verdict, the appeals court may find that he erred, and a whole new trial will be necessary, wasting the
original jury’s work.  But he can avoid this problem by reserving
judgment on a motion for a directed verdict, and submit the case to
the jury.  Then if the jury decides against the movant, the judge can
evaluate the legal sufficiency of the evidence on a motion for JNOV.
A JNOV results in the entry of judgment for the party who lost
the verdict it is a finding that the verdict had no sufficient legal 
basis.

a. 	Rationale of JNOV:  JNOV avoids the need for a second 
			trial if the appellate court holds, contrary to the trial court,
			that the evidence was not sufficient to take the case from
			a jury, since the jury’s verdict can simply be reinstated.
			But if the appellate court holds there was an error in granting
			a directed verdict, a new trial will be necessary.

NOTE:  Motions for a judgment as a matter of law (JNOV and 
Directed Verdict) effectively acts like a delayed summary judgment,
in that it determines whether there are genuine issues of fact for
the jury to decide.

2. 	Standard for granting motion for judgment as a matter of law
(Summary Judgment, JNOV, Directed Verdict):  The general standard for granting motion for judgment as a matter of law is whether there is a legally sufficient evidentiary basis on which the jury could find for the nonmoving party.  The jury can draw inferences from the evidence, as long as they do not involve great leaps of logic.  The application of this standard depends on whether or not the moving party has the burden of proof on the issue raised.  

a. 	Moving party with burden of proof:  If the moving party
			has the burden of proof, judgment as a matter of law is 
			appropriate only if the evidence favoring the moving party is
of such compelling strength that the jury could reasonably find for the opposing party.  

b. 	Opposing party with burden: If the party moving for
judgment as a matter of law does not have the burden of
proof, then the motion should be granted only where the opposing party has no substantial evidence to permit a jury to reasonably find in the opposing party’s favor. Galloway v. U.S. (where P had such large gaps in his story—including an eight year period with just a few incidents that only he could testify to—that a directed verdict was granted since there was no substantial evidence to permit the jury to reasonably find for P).

(1) 	“Scintilla rule” (minority view) contrasted: In some 
jurisdictions the “scintilla rule” is evoked. Under this rule, a party with a scintilla of evidence would be allowed to have
his case presented to the jury.  “Scintilla” has not been
defined—some say the tiniest bit of evidence that a
reasonable jury could believe and come to a conclusion,
but this definition still begs the question.

c. 	Case-by-case determination:  The court’s evaluation
process really must be made on a case-by-case basis, but
a number of governing principles are helpful in analysis:

(1) 	The court is to make all reasonable inferences in
favor of the non-moving party, and to view the evidence in the light most favorable to that party.

(2) 	The court is to determine whether there is a genuine
issue to present to the jury; it may not choose between 
two versions of events and grant a judgment as a matter
of law to the party whose version seems more persuasive.

(a) 	The fact that the jury’s decision will involve
some speculation is not a ground for taking the
case from the jury.  If facts are in dispute or
reasonable people may draw different inferences
from the evidence, the jury may use speculation and
conjecture to choose the most reasonable inference.  Lavendar v. Kurn (where Sup. Ct. held that a jury verdict cannot be reversed if there is at least some
plausible evidence from which a jury could draw
reasonable inferences and rule).
	
(b) 	“Equal possibilities” analysis: It is sometimes
said that the case should be taken from the jury
when the evidence presented on any essential
fact by the party with the burden of proof shows only an equal possibility of that fact. This
analysis has been rejected in most jurisdictions
and by the Lavendar court, as long as there is some basis on which the jury could choose between conflicting versions of events.  

(3) 	Issues of credibility:  Generally, issues of credibility
should go to the jury.  However, there are limits to this if:

(a) 	Evidence is incredible or implausible OR
	
(b) 	There is perception testimony that is not
truly perceptive.

				EX:  A claims to see B run a red light and hit a car. Two
				witnesses say B did not run red light.  This case would
				probably survive a judgment as a matter of law and go
				to the jury.  But if A could not see the red light, perhaps
				because it was proven a building obstructed his view, then
				a judgment as a matter of law would probably be granted.

B. 	Motion for a new trial (Rules 59):  A judge has the power to order a new 
trial on all or part of the factual issues in dispute.  Unlike a directed verdict or NOV, a judge under Rule 59 weighs the evidence.  

1.  Appropriate grounds include the following:

a.  Judicial error:  A judge that, say, oversteps his bounds and 
forces parties to settle against their will.  Or judge gives bad
jury instructions.

b. Error during trial:  Someone in audience screams “this
company is uninsured,” which has an indelible impression on
juror’s minds.  

c.  Jury misconduct: From fights in the jury room to strange,
capricious verdicts.  Also, if jurors lie during voir dire.

			d. Jury verdict against the evidence:  A new trial may be ordered
			if the evidence is not legally sufficient to support the verdict.	
(A judgment n.o.v. may also be appropriate here if requirements are met).

e.  Newly discovered evidence:

(1) 	Evidence must be highly significant AND

(2) 	Party must show that the evidence could not have
been obtained by due diligence before trial.

2. 	Procedural requirements and timeliness of motion:

a. 	A court may grant a new trial on its own motion.

b. 	A motion for new trial must be served not later than 10
days after the entry of judgment.  Rule 59(b)

C. 	Motion for Relief from Judgment (Rule 60)

1. 	Grounds:  A judgment may be re-opened if there is fraud or 
misconduct, newly discovered evidence, etc.

		2.  Time limits:  A motion for relief from judgment must be made within
		a reasonable time.  But if the motion is for an issue of fraud, misconduct,
		etc., then it must be filed within a year.

D. 	Jury Deliberation and Verdict under Rule 49

1. 	Types of verdicts:  Jury verdicts may take several forms, depending
on the form of jury instructions.

a. 	General verdict:  The most common and traditional form
of the verdict, in which the jury makes a decision in favor of
one party or another.

b. 	Special verdict:  A special verdict consists of the jury’s 
answers to specific factual questions that it is instructed to
			decide.  In this situation, the jury does not decide directly
			which party should prevail on the law.  Instead, the special verdicts
			should resolve all the material issues so the court can then enter
			judgment.  Rule 49(a)

(1) 	Advantage:  Less burden on the judge to explain to the
jury what the law and reduces jury’s need to understand the
law.

(2) 	Disadvantage: Where a special verdict is used, the
jury may find it harder to reach a unanimous verdict.
Moreover, inconsistent findings on an issue may
necessitate a new trial.

c. 	General verdict with special interrogatories:  The judge, in
what is a combination of a general verdict and a special verdict,
can instruct the jury to return a general decision as to which party
should prevail on the law, while simultaneously answering
specific questions of fact posed by the evidence.  Rule 49(b)

(1) 	Purpose:  Allows jury to decide whole case, while 
letting cross check that the jury understood and adhered
to the instructions on the law.

(2) 	Disadvantage:  Like special verdicts, the general 
instruction with special interrogs carries the risk of 
inconsistency necessitating a new trial.  In considering motion for new trial based on inconsistencies in jury's answers to special interrogatories, the court is required to harmonize the answers if  possible under a fair reading of them, and try to make the jury’s answer consistent by reading the verdicts as expressing a coherent view of the case.

(a) 	Inconsistency between finding and verdict:
If there is an inconsistency between the special 
finding and the general verdict, the judge may
disregard the general verdict and enter judgment according to the special finding.  Rule 49(b)

(b) 	Inconsistency among findings: However,
if there are inconsistencies among several of
the finding, the judge must order a new trial
unless he can reconcile the inconsistencies.

EX:  Administrator of estate brought civil rights action against state police  officer and sheriff's deputies, arising out of death of arrestee.  Recovery was  sought against state police officer on the basis of unreasonable excessive  force in a seizure, denial of medical treatment in violation of due process,  wrongful death, and assault and battery.  Recovery was sought against deputies  for excessive force in violation of due process, wrongful death, and assault  and battery.  After jury verdict finding defendants liable for battery only,  and awarding compensatory and punitive damages, plaintiff moved for a new trial on basis of inconsistencies in jury's answers to special interrogatories.  The District Court, McKinney, J., held that:  (1)  plaintiff did not waive right to challenge alleged inconsistencies in special  interrogatories submitted under rule governing "special verdicts," by not objecting to allegedly inconsistent answers to interrogatories prior to jury's  discharge, and (2) it was not inconsistent for jury to have found that  defendants battered decedent, and that defendants should be liable for punitive  damages, but that defendants were not liable for torts of a constitutional  magnitude.  There was evidence supporting the finding that after striking arrestee officer left the scene and had no additional involvement in securing medical treatment  for arrestee; but jury properly found that any delay in securing medical  treatment that might have been caused by officer's acts or omissions was not  sufficient to rise to level of constitutional violation.  Motion denied.  Fed.Rules Civ.Proc.Rule 49(a). Whitlock v. Jackson

2. 	“Dynamite charge”:  Where the jury cannot come to unanimous 
	      decision, it is not improper for the court to emphasize to the jury the
	      expense of a new trial and the unlikelihood that another jury would reach
	      a better verdict, and ask each juror to make a renewed effort to reach
	      unanimity.

E. 	Jury deliberation and impeachment of verdict

1. 	Federal Rule:   The Federal Rules of Evidence now permit a juror
to testify to any “extraneous prejudicial information” or “outside
influence” that may have altered the verdict.  Fed. R. Evid. 606(b)
	
a. 	Under the federal rule, it is difficult to attack the verdict
through juror testimony (i.e., through affidavits of jurors).

ASK SHERM TO CONFIRM     E. 1. a. 

EX: Where polling of jury in open court disclosed a unanimous verdict for defendant  in action arising out of automobile accident, affidavits of jurors respecting  their own observations at scene of accident before returning verdict were  inadmissible to impeach verdict rendered by jury who had been taken to scene of  accident at commencement of trial. 	Sopp v. Smith

2.  State rules:  Some states, such as CA, are much more permissive in allowing juror testimony to attack verdicts.  In CA., any improper influence—inside or outside of the courtroom—may be shown.

EX:  An L.A. judge entered a  judgment convicting the defendant of possession of marijuana and he appealed  from the order granting probation and order denying new trial.  The CA. Sup. Ct. held that the affidavit of a juror, which related to the remarks and tone of delivery by bailiff, was admissible on motion for new trial to prove bailiff's statements and alleged misconduct.   Orders vacated with directions. People v. Hutchinson

Sherman Hypos (note 5, page 664):

The quotient verdict:  All 12 jurors write down how much they think D owes, divide that number by 12, and award that amount.  This award could be vacated by the statutory prohibition of resorting to chance.  
	
Using juror notes created during private deliberation to impeach its verdict:  Would result in the destruction of all frankness and freedom of discussion and conference.
	
Juror says jury intended higher amount:  Extrinsic v. Intrinsic.  What if a juror says after the verdict is announced and the jury has been excused that the jury intended to award P a much higher amount?  In Attridge v. Cencorp, the court upheld a decision to refuse to hear the juror’s affidavit on the ground that there was no assertion the jury had read a different verdict, but only revealed perhaps the jury’s though processes.  Extrinsic evidence suggests that the verdict the jury delivered was not the actual verdict it intended.  Intrinsic evidence suggests that the extrinsic evidence is merely a manifestation of the jury’s thought processes.

Getting into Federal Court

I. 	In order for a case to go to federal court, all of the following must be met:

A. Subject matter jurisdiction:  The court must have the power to
adjudicate the controversy (i.e., either there is a “federal question” 
involved, or there is diversity of citizenship).

B. 	Venue:  Which district the suit can be brought in.

C. 	Personal jurisdiction:  There must be personal jurisdiction. 

1. 	In personam
2. 	In rem
3. 	Quasi in rem
	
D. 	Service of Process:

1. 	Adequate notice:  Rule 4 deals with notice (in hand, long-arm via a 
		letter, or notice by publication if D could not be located within a particular
state).  KNOW SOP under RULE 4 (c) (d) (e).

2. 	Substantive due process:  It must be fair to submit D to a particular
jurisdiction (there must be sufficient contact between D and the state).

a. 	Service on corporations:  There are several means which are
commonly available for giving notice of suit to corporations:

(1) 	Federal Rule 4(h)(1):    This rule allows for service to
be made on an officer or agent of the corporation.  Usually,
the Constitutional test is whether this official or agent is
likely to pass on the process papers to corporate lawyers or directors.

NOTE:  Often times, it is very difficult just getting past the reception desk of a large corporation.  Cts are split over whether
leaving service with the receptionist is Constitutional.

Choosing the Forum—Geographical Location
 
I. 	Jurisdiction over the Parties—General Principles

A. 	Two kinds of jurisdiction: Before the court can decide a case, it must
have both subject matter and personal jurisdiction.

1. 	Subject matter jurisdiction:  The court must have the power to
adjudicate the controversy (i.e., either there is a “federal question” 
involved, or there is diversity of citizenship).

2. 	Jurisdiction over the parties:  There are three kinds:

a. 	In personam (personal jurisdiction):  Jurisdiction over the
defendant’s person.  All of D’s assets can be seized to satisfy
the judgment.  There are two kinds of in personam jurisdiction:

	1.  General in personam:  Appropriate when D’s activities
in the state are so systematic, substantial and continuous that he would expect to be subject to a suit there and would suffer no inconvenience from defending there.  Examples include a major American oil co. that has extensive activities and facilities in a state, or a CEO would fall under in personam if he very often visited a state where he had a branch office.

2. 	Specific in personam: Can be obtained when claims
arise out of contact with the state.

			NOTE: Because general jurisdiction is more difficult to 
			obtain than specific, it is easier to argue first for spec. jurisdiction.

b. 	In rem:  Jurisdiction over a thing (i.e., a piece of property).
An action to quiet title to real estate, and an action to pronounce
a marriage dissolved, are examples.  The presence of property
in a state vests the state with jurisdiction to adjudicate the rights
of any individual—whether in the state or not—in that property.
How does one distinguish in rem from personal jurisdiction?
If the property was located in the state but the defendant was not
subject to service, then P could claim in rem jurisdiction.  But if
prop was beyond the state’s borders but D was subject to 
service of process, then P could claim personal jurisdiction.  The key to in rem jurisdiction is that the cause of action must arise
out of the property (A breaks his leg on Ed’s Austin estate, but Ed is domiciled in Louisiana.  A could claim in rem jurisdiction.

c. 	Quasi in rem jurisdiction: In quasi in rem jurisdiction, the
action is begun by seizing the property owned by (an attachment), or a debt owed by (a garnishment), the defendant, within the
forum state.  This is different from in rem jurisdiction because here
the action does not arise out of the property seized; instead, the thing seized is a pretext for the court to decide the case without any
personal jurisdiction.  Any judgment affects only the property seized, and cannot be sued upon in any other court.  Shaffer took
the bite out of in rem jurisdiction, requiring that in rem jurisdiction
could not be exercised unless D has such “minimum contacts” with
the forum state that Int. Shoe was satisfied.

B. 	Personal Jurisdiction (in personam)

1. 	The following is a list of how personal jurisdiction can be exercised 
	      when the person is physically within the state at the time of service:
	
a. 	Presence:  Personal jurisdiction may be exercised over an 
individual by virtue of his presence within the forum state. D must be served within the forum state.  But nowadays, there
are statutes in states allowing for out-of-state service.

1. 	Transient jurisdiction: The state can serve D, even if
D is within state for a very short period of time (i.e., man
who was served over Arkansas on a flight from NY to TX.) But Brennan in concurring opinion of Burnan says that there should be some minimum contact with the forum
state and person served should voluntarily enter the state.
Thus, under Brennan, the man on the plane should probably not be served since he was in Arkansas for a short time and could not control, and probably did not know, he would be flying over Arkansas.

2. 	Fraud:  D cannot be served under fraudulent pretenses
(TX lures A, a resident of OK and a Longhorns fan, into Austin by giving him football tickets and then serves A).

3. 	D justifiably in forum state for judicial reasons:  If D 
was justifiably in the forum state for judicial reasons, i.e., because of an quasi in rem case or depositions for another case, then he cannot be served.

b. 	Domicile:  Jurisdiction may be exercised over an individual
who is domiciled within the forum state, even if he is 
temporarily absent from state (A, who is domiciled in TX with his
family, leaves his wife and lives in CA, where he tries to avoid
child-support payments, but is served by TX in CA for being
a “dead beat dad.”  If notice is proper, TX has personal jurisdiction
over A and he must return to his domicile to stand trial).  

Rationale:  D receives privileges and protection by virtue of 
citizenship of a state, so state can exact reciprocal duties.

A person is domiciled where:

(1) 	He has his true, fixed permanent home and principal establishment AND
			
(2) 	He intends to return to that domicile if living in another state.

			Domicile is changed if:

(1) 	He physically moves from his domicile state AND

				(2)  He intends on severing his relationship with that state.

c. 	Consent:  Jurisdiction over a party can be exercised by
virtue of his consent, even if he has no contacts whatsoever with
the forum state.

a. 	Express consent:  A person formally contracts to fall
within a state’s jurisdiction (i.e., filing a suit there, agree
to jurisdiction, etc.).

	      2.   The following is a list of how personal jurisdiction can be exercised 
	            when the person (or corporation) is not physically within the state at 
	the time of service.  Two questions must first be asked:

(1) 	Is there a long-arm statute that will hold someone
out of the state liable?  (Today, all states have different kinds of long-arm statutes, which allow courts in a state to obtain jurisdiction over persons not physically present within the state at the time of service.)  If no long arm
statue exists, then cases like International Shoe would apply.

(2) 	If there is a long-arm statute, is it applicable and is it 
Constitutional? That is, does it cover the case presented?
Does it satisfy the two-prong test (“minimum contacts” and reasonableness of D going to the forum state)?  

a.  In-state tortious act and the long-arm statute:  Many states have statutes allowing their courts jurisdiction over persons committing tortious acts within the state.  The Illinois long-arm statute—the first far-reaching long-arm—permits Ill. Courts to exercise jurisdiction over any person in a cause of action arising from “the commission of a tortious act within the state” by that person or his agent.  

(1)  Out of state acts with in-state consequences:  The 
				clauses in long-arm statutes referring to “a tortious act” or
				“tortious conduct” within the state have sometimes been 
				interpreted to include acts done outside the state which 
				produce tortious consequences within the state.  This has
				happened most often in products liability cases.

			EX:  Titan, an Ohio co., makes valves which it sells to another
			co., which incorporates them into a boiler that is sold to P. The 
			boiler explodes in Ill., injuring P, who sues Titan in Ill.  The Ill. 
			long-arm allows suit in Ill. Based upon a “tortious act within the
			state.”  Held:  A tortious act is committed where the resulting
			damage occurs. Thus, the Ill. Courts have jurisdiction in the 
present case. Also, the ct. inferred that surely it was not the first time that a valve produced by Titan ended up in Ill. (although dissent disagrees with this inferrence), and that sale was made knowing the valve would be placed in interstate commerce and could conceivably end up in Ill.  Gray v. American Radiator Corp. (1961). 

NOTE: Ed says Grey has often been cited as saying that if one
(1) 	puts a product into the stream of commerce and (2) the
product flows through the normal course of commerce, then the
maker of the product is subject to the long-arm statute of the
state where the product leads to injury.

b.  Federal Court jurisdiction: 

c. Corporations (also applies to individuals):  The Supreme Court has dealt with many cases involving jurisdiction and corporations.  Nevertheless, the two-prong test of these cases applies to individuals just as well.

	1.  International Shoe’s approach has generated a two prong
				test, which subsequently was refined:

(1) 	Minimum contacts—purposeful availment  AND

(2) 	Fair play and substantial justice—
Reasonableness

2.  In detail: minimum contacts and purposeful availment:  Purposeful availment focuses solely on the 
activities of the defendant and not on P’s interest.

(1)  Purposeful availment:  The purposeful availment inquiry looks to some voluntary action by D establishing a relationship with the forum, usually one in which D seeks to benefit from the relationship (i.e., selling his products there, advertising in the forum state, designing products for that state, etc.).  International Shoe.  How do we
know if this action is enough to establish 
jurisdiction? The Supreme Ct. has defined
“minimum contacts” differently in the cases.  No
contact with the state, or isolated contact,
will not meet the minimum contacts test.  But a 
single act or continuous and systematic contact with
the state will most likely lead to specific jurisdiction. Systematic, substantial and continuous
contact will most likely lead to general jurisdiction.
				
(2) 	Reasonable anticipation of litigation:  D must
reasonably foresee being taken to court into forum state.  But this forseeability alone is not sufficient for jurisdiction.   World-Wide Volkswagon

3.  In detail: Fair play and substantial justice—reasonableness:  While the first prong focused on D’s interest, this second prong focuses on P’s interest.  This
prong is only analyzed when the first prong has been satisfied.  P’s interest, the forum state’s interest, and other fairness issues (i.e., inconvenience to D if he is forced to
defend away from “home”), are taken into consideration.
Remember:  It is only when deliberate contacts exist between the forum state and D that this prong will become
an issue and need to be analyzed.  International Shoe

			Cases dealing with the “minimum contacts” test, and refining it:

1.  International Shoe (1945):  A Washington statute set up a scheme of unemployment compensation which required contributions by all employers. The statute authorized the state, Washington (P), to issue an order and  notice of assessment to delinquent contributions by mailing the notice to nonresident employers.  International (D), a Delaware corporation having its principal place of business in Missouri, employed 11 to 13 salespersons under the supervision of managers in Missouri.  These salespeople resided in Washington and did most of their work there.  But they had no authority to enter into contracts or make collections. D did not have any offices in Washington and made no contracts there, but the salesmen occasionally rented display rooms.  Notice of assessment
was sent to one of D’s employees in Washington, and a copy of 
it was sent by registered mail to D’s address.  

Held:  Ct. establishes two prong test.  The majority held:

--D’s activities were neither irregular or casual; rather, they were systematic and continuous. 

--The obligation sued upon in this case (i.e., payment for insutance) arose out of these systematic and continuous contacts, which were sufficient to establish “minimum contact.” 

--D benefited from its sales in Washington—over $30,000—which is a lot of business.  D must stand trial in Washington.  

Other:  What if International Shoe shipped shoes to 30 customers in Washington from Delaware, and they sued for bad shoes?  Yes, this would probably be minimum contacts, since Int. Shoe benefited from sale and knew where it was shipping.  What if shoes were shipped to Washington, but fell apart in Oregon?  Int. Shoe could not anticipate being brought to trial in Oregon and there is no availment, so no minimal contact.

2. 	McGee (1957):  McGee’s (P) son purchased a policy of life 
insurance from International Life’s (D) predecessor. When D assumed the obligations of the predecessor, it mailed a certification of insurance to the son, who lived in CA. P paid the premiums by mail to D to its home office in TX for two years. He was the only CA policyholder, and D solicited no other business in that state. Upon his son’s death, P, as beneficiary, filed a claim which D denied, claiming the son died because of suicide. P sued in CA, basing his long-arm jurisdiction on a statute allowing suits on insurance contacts with CA residents.  This statute was passed after P had begun his relationship with D.  P obtained a default judgment in CA, because D did not show up to court. P sued on the
judgment in TX, but TX ct. refused to enforce judgment.  

Held:  The majority held:  

--Since insurance was involved, the CA long-arm did apply
to D (the fact that the statute was created after P and D 
entered into a relationship is irrelevant).  

--There were sufficient contacts to allow jurisdiction in CA because CA has a substantial interest in protecting its citizens, by giving them a local forum.

--There was also sufficient contact because P and D had entered into a contract (an insurance policy), which
lasted two years.

--The fact that D had not actually entered the state is irrelevant.  Because of technological developments—fast mail, modern transportation, etc.—a D need not enter into
the forum state any longer in order for there to be minimal
contacts.

--It was less of an inconvenience for D to go to CA than for P to go to TX (this is the second prong of test).  TX must enforce the judgment.  

Other:  If insurer had bought policy in TX and then moved to CA, there would almost surely be no jurisdiction in CA (lack of availment, forseeability and minimum contacts).

NOTE:  This case represents a very liberal approach to min. contacts.

3.  Vergara (1975):  Generally, courts have rejected jurisdiction in cases where the out-of-state defendant advertises in the estate inviting residents to sample its wares elsewhere.  But in Vergara, Ps had booked an around-the-world flight with their travel agent in Omaha, but their Tashkent-Kabul link on Aeroflot (D0, a Soviet airline, was canceled due to the Afghanistan revolution.  P sued Aroflot, and court held that the Russian airline had authorized Pan Am to act as its agent, and that Pan Am had in turn authorized the local travel agent to act as its agent, thus showing that D transacted business in Omaha and that there was minimum contact for jurisdiction.

4.  World Wide Volkswagon (1980):   P sued Seaway (D), an Audi distributor (not a manufacturer), for negligent placement of a gas tank which caused the car, bought in New York, to explode in a crash in Oklahoma.  

Held: The majority found:

--The foreseeability alone of the car going into OK, without “affiliating circumstances” (i.e. purposeful availment), was
insufficient to establish jurisdiction.  Otherwise, every seller of chattels would have to face suit wherever his chattel ended up and there was a cause of action.  Specifically, the ct. said that the dealer had not sold cars there, advertised there, cultivated OK customers, or focused on OK market.  In short, it did not avail itself of—or directly benefit from—OK. (However, the tri-state area in the Northeast could gain personal jurisdiction over these Ds should an accident occur there, since Ds purposefully availed themselves in this area and had established min. contacts).

--The Audi’s presence in OK was the result of P’s unilateral activity, not D’s efforts.

--In dicta, the ct. explained that OK could assert jurisdiction over the manufacturer and national importer of Audis, since they cater to a national market, distribute their product across the country (either themselves or through dealers),
and receive economic benefit countrywide and expect to
reasonably be subjected to lawsuits in any state.

			To summarize, WW VW indicates that the ct must find purposeful
conduct either by direct acts of D in the forum state (not P’s unilateral acts) or by conduct outside of the state that, because of its character, D should have foreseen going to court in the forum state.

Dissent (Brennan):  Brennan’s dissent stated that Ct. should not
distinguish between goods taken into the state by a consumer from
those taken into the state by the normal stream of commerce.  Also, Brennan argued that the sale of a car purposefully injects the
vehicle into the stream of interstate commerce and that D should thus have anticipated litigation from any of the states.  Finally, he
says that the state has an interest in protecting its own citizenry (CA’s arg in McGee). 

5.  Asahi (1987):  WW VW establishes that the mere fact that the consumer takes the product into the forum state is not sufficient to confer jurisdiction over the manufacturer, even if the latter should have foreseen that the user might do so.  Suppose, however, that a
			Manufacturer, a foreign company, repeatedly sells to Merchant,
a non-forum-state business, who repeatedly resells some of the goods in the forum state, that Manu. knows this is happening, but that Manu. makes no other efforts directed at the forum state  (i.e,
advertising, sales office, etc.).   In Asahi, the court split on just
this issue.  P lost control of his motorcycle while riding in CA,
and was seriously injured.  He brought suit, claiming the cycle’s
rear tire and tube were defective.  One of the co-defendant’s
was Cheng Shin, the Taiwanese manufacturer of the tube.  Cheng
Shin in turn impleaded Asahi, the Japanese manufacturer of the tube’s valve assembly, and sought indemnity from Asahi for the full amount of Cheng Shin’s payment to Zurcher.  P settled all of his suits, leaving only Cheng Shin’s impleader suit against Asahi.
Over a five-year period, Asahi shipped over a million valve assemblies to Cheng Shin, and was aware that valves sold to Cheng Shin would end up in the U.S. and CA.  However, Asahi made no direct sales in CA, had no offices or agents there, and did not control the system of distribution that carried its products into the state.  

Held:

--As to the first prong of the min. contacts test, the maj. of the Ct. (except for O’Connor) agreed there were minimal
contacts, but there was no majority in terms of which test ought to be used: 

	--O’Connor’s “stream of commerce plus” test:  
	O’Connor, in her plurality opinion, stated that
a manufacturer’s contacts must be “more purposefully directed that the forum State than the mere act of placing a product in the stream of commerce.”  Asahi’s mere awareness that the valve
assemblies it sold would eventually end up in CA was not sufficient to establish min. contacts.

--Brennan (“regular and anticipated flow” test):
Brennan said that there were sufficient contacts,
and that any additional contact, outside of just
the regular and anticipated flow of products in the
stream of commerce, was not necessary to establish
min. contacts.

--Stevens (“quantity test”):  A very similar test to Brennan, focusing on how often, how much, and value, to determine minimum contacts.  Also agrees Asahi had minimum contacts.

--As to the second prong of the min. contacts test, the majority says it would be unreasonable and unfair for
CA to hear the case because of the: (1) Burden to Asahi of defending itself in a foreign legal system; (2) slenderness of CA. and Cheng Shin’s interests in having the indemnity claim hear in CA; (3) CA. jurisdiction would create foreign relation problems between two foreign defendants—their 
indemnity claim should be dealt with in one of their countries.  Thus, CA has no jurisdiction over Asahi.

d. 	Minimum contacts in dom. relations cases (Kulko):  The 
min. contacts rule has been applied in the dom. relations context.

EX:  P, a divorced wife residing in CA, brought an action in CA against D, her former husband, who was domiciled in NY, to
gain custody of their children and to increase the husband’s
child support obligations.  The couple entered into a  separation agreement in NY under which the children, a son and a daughter,
were to live with the father in NY and spend vacations with the
mother in CA.  Shortly thereafter, D’s son and daughter decide
they want to live with their mother, and move to CA., the son
w/o his father’s consent.

Held:  The majority held:

	--CA. does not have jurisdiction over D for lack of 
	minimal contacts.  D did not benefit in anyway from
	the CA by his children moving there (he did not derive
	any financial benefit from the move, and any dimunition
	in his household costs was not due to the children’s 
presence in the forum state but their absence from NY).

	--D’s act had not been purposeful and volitional; rather, 	his kids unilaterally acted and moved to CA on their 
own accord—he did not make them move.

	--The cause of action arose not from D’s comm. 
	transactions in interstate commerce but rather from his 
personal, domestic relations.

--For policy reasons, CA should not have personal jurisdiction.  If it did, parents would be deterred from cooperating in custody agreements that were in the best interests of the children.

--Even though CA may had a strong and substantial state
interest in the case, the existence of min. contacts remains the essential criterion for jurisdiction.
			
e. 	Claims unrelated to in-state activity: Where the cause of 
action does not arise from the company’s in-state activities (as
in the previous cases above),  contacts between D and the
forum state must be so “systematic and continuous” that they
establish general jurisdiction.

EX:  Helicopteros (1984):  D, a Columbian corporation which provided helicoptor transportation for oil construction companies in South America, signed a contract to provide such services to Consorcio.  Ps, the estates of Consorcio employees, brought suit for these employees’ deaths when a helicopter piloted by D crashed in Peru.  D’s contacts with TX, the forum state, included:

(1) 	One negotiating session between president of D and 
Consorcio officials

(2) 	D’s purchase of 80% of its helicopter fleet from Bell 
Helicopter Co. of TX, at a cost of more than $4 million.

(3) 	Sending pilots and maintenance personnel to Bell Helicopter for training. AND

				(4) The receipt in two non-TX American banks of payments
				by Consorcio drawn upon a TX bank.

			Held:  The majority held:

--Since D’s activities did not arise out of its in-state activities, Ps must prove that there were substantial,
continuous activities sufficient to create general
jurisdiction.  Here, these contacts are lacking.

--The single trip to negotiate was not a “continuous,
systematic” contact.

--The receipt of checks drawn on a TX bank was a
“unilateral activity of another party” (Consorcio) and
thus should not be taken into account (Kulko was cited
on this point).

--The sending of personnel to be trained did not have any
independent significance; it was “part of the package of goods and services purchased by D.”

--In the most significant part of its decision, the Court
held that “mere purchases, even if occurring at regular
intervals, are not enough to warrant a State’s assertion
of in personam jurisdiction over a non-resident corporation
in a cause of action not related to those purchase transactions.   

Dissent (Brennan—“cause of action ‘related to’ test”):  Brennan, the only dissenter, argued that the cause of action was related to (although not “arising out of”) D’s in-TX contacts.
After all, D bought its product in TX, negotiations occurred in TX,
and the pilots trained in TX, so it was “fair and reasonable” to 
allow the suit to go forward in TX.

Other:  If a Bell-manufactured part on the helicopter led to the
			crash, or if the helicopter pilots who were negligently trained in TX 
caused the crash, then TX would have general jurisdiction over Bell.

NOTE:  Helicopteros is a good example of a case where Ps could not establish personal jurisdiction (since the cause of action did not
arise out of D’s activities in the forum state), and thus had to make
the very difficult argument for general jurisdiction.

Publications (“effects test”):  In libel cases, where the cause of action does not arise from contacts with the forum state, the
court has employed an “effects test,” which examines where the focal point is of both the story and harm suffered (it focuses on P’s on harm to P).

1.  Calder v. Jones (1984):  D, the National Enquirer (which is a Fla. Corporation), wrote a story about Shirley Jones, who lives and works in CA.  It said that she was a drunk.  P, Jones, sued the Enquirer for libel in CA state ct.  Perhaps because some 12% of its nationwide circulation of 5 million is sold in CA, nearly twice the distribution of any other state, the paper answered without raising any objection to jurisdiction.  Jones also sued Calder, the paper’s editor, and South, the reporter whose byline appeared on the story. Both were Fla. residents and rejected jurisdictions.  Calder and South said they went to CA only a couple of times for research.  

Held:  The court established the “effects test.”  The majority held:

	--Ds wrote an article knowing that the brunt of the
					effect of the harm would be felt in CA, where P 						lives and works and where the Enquirer has its
					largest circulation of any state.  CA’s personal
jurisdiction is justified, since “effects test” is satisfied.

--Ds should also have foreseen the possibility of going to court in CA, because of their article (although mere foreseeability alone will not 
justify personal jurisdiction).
					 
2.  Hustler (1984):  P, a NY resident, sued D, an Ohio
corporation, in Ohio, but the suit was dismissed due to
an SoL problem.  P (who was not a resident and had no 
other contacts with it) filed suit in NH, where SoL had not 
expired, and claimed that Hustler injured her reputation
in NH and elsewhere.  D’s contact with the forum state
consisted solely of the circulation there of from 10-15,000
copies per month of its magazine, Hustler.

Held:  The majority held:

	--The cause of action arose “out of the very
	activity being conducted, in part, in NH”—namely,
	the regular monthly sales of thousands of
magazines, which could hardly be described as random, isolated or fortuitous.

--NH had a state interest in redressing D’s injuries,
which occurred within the state.  Even though she
was otherwise unknown to NH, D’s misrepresentations harmed her.

g. 	Contractual relationship: What should happen when the 
in-state P and the out-of-state D have a contractual relationship?
The Sup. Ct. has held that, even though one party to the contract is a resident of the forum state does not automatically mean that the other party has “minimum contacts” with that state, the whole contractual relationship may well, in a particular case, be sufficient to confer jurisdiction.  In Burger King, the Ct said the following must be taken into consideration when deciding whether the contractual relationship establishes personal jurisdiction:
	
(1) 	The prior negotiation of K

(2) 	Terms of K itself (i.e., is there a “choice of law” clause)

(3) 	The consequences of K  AND

(4)  The parties’ actual course of dealings.

EX:  Burger King (1985):  The K allowed D, an individual 
residing in MI, to run a fast-food restaurant in MI under a
franchise from P, Burger King, which had its headquarters in
Fla.  BK brought suit in order to terminate the franchise agreement
and to collect payment alleged to be due under it.  The agreement
provided that Florida law could control, but expressly stated that this choice of Fla. law “does not require all suits concerning this
Agreement to be filed in Fla.”  D never went to Fla., but there 
were some mail and phone negotiations between P and D.  K 
required all payments and notices to be sent by D to Fla. office.
The Fla. long-arm provided for service if there was any b/K.

Held: The majority held there was personal jurisdiction:

--D, in the present case, entered into a long-term (20 yr.),
highly structured K with P involving continuing and
wide-reaching contacts with P in Fla.

--Negotiations were made, through the mail and phone, with the Fla. office (not a local office, say, in MI)

--His refusal to vacate the premises and continuing to use
the BK trademark after termination caused foreseeable
injuries to P, along with the “choice of law” agreement, put him on notice that he could be taken to court there.

--D’s connection with Fla. was hardly “random” or “fortuitous.”

--The court attached special importance to the contract’s
designation of Fla. law as the controlling law.  By signing
such a contract, D has purposely availed himself of the benefits and protections of the forum state’s law.

--D’s only defense to personal jurisdiction here would be
that there was fraud or unequal bargaining power, but that
is not the case (both parties were sophisticated).

--Finally, as to the second prong of the test, D’s lesser
financial resources are not sufficient to make P go to 
court in MI.

			Dissent (Stevens):   1) D had few actual contacts with Fla; 2) D’s
			negotiations were mostly with people in MI, not Fla., office; 3) D
			had reason to believe that since MI office was the office that
			negotiated and supervised K, any suit would be brought in MI;
			4) There was substantial inequality in bargaining power.  
			
			NOTE:  BK establishes several useful principles:

(1) 	Significance of K:  The existence of a contractual
relationship will go a significant distance towards establishing minimum contacts (but is not dispositive).

(2) 	Choice of law:  A “choice of law” provision making
the forum state’s law the law to be used in any lawsuit will
carry significant weight, since such a provision indicates that the out-of-stater has chosen to receive the benefit of the
forum state’s legal system.

(3) 	Payment stream: The fact that the out-of-stater is 
required by K to send payments and reports into the forum state will also be a significant factor.

(4) 	Limitations:  If the size of K claim is small, if it is for
a very short period of time, if K terms are obtained through fraud or unfair bargaining power, if franchise if “primarily
intrastate in character” or if the franchiser’s decision-making structure are different (i.e., more authority is vested in the local office and less in the forum-state-based office),
then there may not be jurisdiction.  The underlying question is whether the franchisee should reasonably
anticipate out-of-state litigation.