Civil Procedure.

•	Trail on the Merits, after a full and complete discovery
▼	What is Civ Pro
	▼	The process of how a cases makes it through the legal system
	•	Dispute resolution- how a case progresses through the system
	•	We want to avoid ad hoc proceedings in civ pro- it leads to uncertainty in the legal process.
	•	fundamental fairness comes from established procedures in how we behave.
	▼	What Process is Due?
	•	Fair and uniform, Ability to appeal, Reasonably quick preceedings, Impartiality, Open hearing, ability to call witness, ability to testify
	•	Established procedures are as important to the actual attainment of justice as the factual matters.
	▼	2 levels of burden on the plaintiff in civil claims.
	•	Preponderance of the evidence 50.5%
	▼	Clear and convincing proof 70-75%
	•	Heightened standard of proof
	•	found in some tort claims
	▼	Types of Rules
	▼	Substantive Rules
	•	The rules that govern behavior
	•	substantive rules say what our rights are
	▼	Procedural rules
	•	How you enforce your substantive right
	•	Fundamental fairness and due process
	▼	Bands Refuse Removal v Borough of Fairlawn
	•	Procedural rules must be followed for justice.
	•	You can't predict how actual event would play out
	•	Advisory opinions are not issued
	•	Actual parties must advance the arguments
	•	Judges rule on the arguements presented
	▼	Good Judges do what?
	•	Judge does not act on his own initiative
	•	No direct or indirect interest in the outcome
	•	Confines his opinion to the case at hand
	▼	Case involves an existing controversy
	•	we need concrete facts to judge on.
	•	decides solely on the evidence and arguments presented
	•	each side gets ample time to present their case.
▼	Justiciability-Article 3 of Constitution
	▼	Ripeness
	•	Controversy must already erupt, not just show that it might one day
	▼	Standing to Sue
	•	P must be among those injured by the controversy.
	•	Able to zealously advance the arguments
	▼	Mootness
	•	The doctrine of standing set in a time frame.
	•	Personal interest must exist at the commencement of the litigation, and must continue through its existence
	•	Except cases "capable of repetition, but evading review." - Eg Abortion cases, 10 day sentences.
	▼	Feigned or Collusive Cases
	•	P must actively desire to assert his interest.
	•	The adversarial nature of the court might not be maintained if a P didn't genuinely want to win.
	•	Could actually harm a future case by setting a bad precedent
▼	Due Process- Timely notice & an opportunity to be heard. 5th Amd Feds, 14th Amd to States
	▼	When does the government take your property?
	▼	Prejudgement Seizure
	▼	Was not allowed under common law-except to compel the defendant to attend.
	•	Plaintiff assumes the risk of filing the lawsuit
	▼	Fuentes v. Shevin
	•	Fuentes Rule: Unconstitutional unless they get timely notice and an opportunity to be heard, unless there are extraordinary circumstances.
	•	State is not keeping control of its rights of enforcement. There is little barrier to persons bringing frivolous charges against others.
	•	Immediate after-seizure hearing is not enough to satisfy due process. A seizure without safe guards does not follow due process. 
	▼	Mitchell v W.T. Grant
	•	Mitchell Rule: Prejudgement seizure is unconstitutional unless the debtor receives timely notice and an opportunity to be heard pre-seizure , unless there are adequate procedural safeguards.
	•	Creditor files with court, Judge rules on it and issues and order for sequestration. Facts must clearly appear to be in the favor of the creditor in order for the writ to be issued. Damages could be liable otherwise.
	•	There is judicial oversight in this case which distinguishes it from Fuentes.
	•	Fuentes went too far, and this case overruled part of Fuentes.
	▼	Goldberg v Kelly- welfare payments cannot be cut off pre-hearing they support peoples welfare.
	•	A written hearing is not sufficient- It doesn't allow for cross examination
	▼	Mathews v Eldridge- Social Security benifits can be cut off- they do not support a persons welfare
	▼	3 step test to determine if benifits can be cut off
	•	Private interest that will be affected
	•	risk of erroneous deprivation
	•	governments interests
	▼	North Georgia Finishing v Di-Chem
	•	No Judicial Officer, or bond required.
	•	On the facts case more like Fuentes, but the reasoning is more like Mitchell
	•	Di Chem rule reaffirms Mitchell
	▼	Connecticut v Doehr
	•	Doehr had a lien attached to his house by DiGiovanni as a result of a civil action. DiGiovanni was in a fight with Doehr and made the attachment in an effort to secure 
	•	Doehr sues the State in Federal District Court alleging the the prejudgement seizure statute is unconstitutional
	▼	3 part balancing test of Mathews is used here in a lien against real property.
	▼	Doehr's private interest
	•	Use of his property is impacted, can't borrow money on the title, it clouds title. 
	▼	Risk of erronious deprivation
	•	Highly factual basis of the original assault that resulted in the action -- High risk of error
	•	Probable value of additional safeguards-  Highly probable
	•	Interest in the Property --DiGiovanni has no interest in his property
	•	Somethings cannot be defined with a black letter law rule- we end up with this balancing test.
	•	In this opinion, SCOTUS said that due process is hard, and we need to look at each case individually- there is no bright line rule for Due process of prejudgement seizure.
	▼	Due process costs money, and if in the process of serving debtors notice, we all will share in the costs associated through higher prices at the register.
	•	Notice must be given of a preliminary injunction FRCP 65(a)1
	•	If you are in federal court, you can use the state rules for seizure in the state that you are in. 
	▼	Sniadach v Family Finance Corp
	▼	Court garnished half of P's salary
	•	SCOTUS ruled that 14th amd requires some procedural protections in connection to such remidies
	▼	Post Judgement Relief
	▼	FRCP 55 Default Judgement
	•	Judgement against the party who doesn't show up
	•	Can only be the amount prayed for in the complaint
	•	Can be entered by the clerk if it is a certain sum, or is easily computed. Otherwise it must be judged by the court.
	▼	Carey v. Piphus-- Suspended for drugs in school
	•	Rule: actual injuries are required for compensatory damages when there is a violation of due process.
	▼	How does enforcement work-No one ever pays after the trial. except insurance companies
	•	Garnishment, Lien
▼	Rewards and Costs of Litigation
	▼	 Damages
	▼	Compensatory
	•	Compensation for the actual injury. Car wreck, $20,000 car- $20,000 in damages 
	•	Punitive -car wreck, malicious intent, $200,000 to punish you to stop it in the future
	•	Exemplory-to make an example of an act to deter the public from engaging in it in the future
	•	Nominal Damages.- $1 and a pat on the back
	•	Cannot be grossly out of proportion.
	▼	Equitable Remedies
	▼	Equity arose because of the desire for remedies not available by the court of law.
	•	Equity pissed off the nobles by allowing for additional causes of action in equity.
	▼	4 differences
	•	Pleading Rules were different
	•	couldn't combine causes (ARE YOU SURE?)
	•	discovery was allowed in equity
	▼	Equity was trial by judge, NOT Jury.
	•	In 1938 we still had two distinct systems in the US. 
	▼	Smith v. Western
	•	P has health problems resulting from cigarette smoke at work. Claim was dismissed for failure to state a claim. Dismissal was appealed to the court of appeals. Case was remanded. A good cause of action was found. 
	▼	Is there a claim for which relief can be granted.?
	•	Yes, and the employer has a duty to provide a reasonably safe working environment.
	▼	Smith is suffering harm- he thus has standing because he has been injured.
	•	We don't need to make him wait until he's dead, the harm in the future is irreparable in the future
	▼	Injunction is appropriate if it will prevent future harm
	•	Clearly there is the possibility of future harm if there already has been some harm
	▼	12(b)6 Motion to Dismiss, Also called a Demurrer.
	•	Motions to dismiss are viewed in a light most favorable to the plaintiff. 
	▼	6 Criteria of a permanent injunction
	•	Whether P has actually succeeded on the merits
	•	Is there an adequate remedy at law
	•	Whether he risks irreparable harm
	•	balances of the hardships against and injunction
	•	would an injunction serve the public interests
	•	Can the court administer the injunction
	▼	FRCP 65(d)
	▼	Preliminary injunctions must:
	•	State reasons why it is issued
	•	State its term specifically
	•	describe in reasonable detail
	▼	Types of Contempt
	▼	Criminal Contempt
	•	Your charged with a crime- you are charged and tried like any other crime. 
	▼	Coercive CIvil Contempt
	•	Answer the questions presented and you will get out  of jail
	▼	Compensatory Civil Contempt
	•	Ordered to pay the expenses
	▼	Collateral Bar Order
	▼	Can't contend the injunction against them that they were found of violating.
	•	The contempt proceeding hinges on whether or not the court order was violated or not.
	•	The appropriateness of the court order to begin with in immaterial to the original order
	▼	You should just appeal the original order, not violate it and claim that it is unlawful.
	•	Its a judge order- we treat them as more sanctity than general laws. 
	▼	Costs of Litigation
	▼	42 USC 1988 - encourages private parties to take up cases for the public good. Private Attorney's General
	▼	Venegas v. Mitchell
	•	Contingent fee contract for 40% of any gross recovery, also any awarded attorneys fees. Won 2 million judgement. Venegas tries to get out of paying the 40%. Venegas said that the fee schedule wasn't reasonable, and Mitchel should only be compensated the amount under 1988. 
	▼	Does Section 1988 violate contingent fee agreements? Does it set a ceiling on atty fees?
	•	No- 1988 fees go to the P, they can pay their atty whatever that was agreed between the parties.
	•	P's can contract away whatever they want from a potential award. 
	▼	ADR
	▼	Negotiated Settlement. - No real formality.
	•	FRCP 16: pretirail hearings should try to facilitate settlement.
	▼	Mediation - Can be binding if they make a contractual agreement.
	•	Using a third person to try and facilitate a voluntary agreement.  
	•	The person is objective.
	•	Doubt is created by the mediator.
	•	They can be creative in the way that they enforce  the contract.
	▼	Arbitration- Result is binding.
	•	Impartial third party.
	•	No precident, or written opinion.
	•	Doesn't tell us how to proceed in the future. 
	▼	Litigation
	•	Litigation is public good. It guides future behavior. If all we do is arbitrate, then how do we guide future action?
	▼	Service of Process- 1:Proper Delivery of 2:Summons and 3:Complaint
	▼	Summons
	•	A direct order to you to file a response within 20 days. If you fail to respond- default judgement
	•	Complaint- Included with the summons. 
	▼	Service
	•	Anyone over 18 and not a party to the complaint can serve another party.
	▼	Waiver of service-- You have duty to save cost. 
	•	If you don't waive service: if you loose- you have to pay the service fees and the attorney fees required to collect  those service expences.
	•	If you do waive- you get 60 days to file a response instead of 20
	▼	How do you serve process-
	▼	To an individual
	•	Personal service.
	•	Leaving it at their home with a person of suitable age and discretion
	•	delivering it with their suitable agent. 
	•	according to the laws of the state in which it is filed
	•	according to the laws of the state in which the person resides. 
	▼	A corporation
	•	service to an officer director or other authorized person
	▼	The US:
	•	The ag
	•	OTHER WAYS TO SERVE the US write them 
	•	Service person then files an affidavit saying that they were not a party to the suit and that they are over 18
	▼	Bradley v. Deloria: process was insufficient
	•	Rule: Statutorilly defective service  of process deprives the court of personal jurisdiction
	•	Service on a reservation must be done in accordance with the rules of the reservation, not the state. 
▼	Pleadings
	▼	Code Pleading - Oregon
	▼	Must plead ultimate facts
	▼	Gillispie v. Goodyear. Complaint dismissed for failure to state a cause of action.
	•	Rule: Complaint  must state facts sufficient  to constitute a cause of action.
	▼	Notice Peading
	▼	Feds are notice pleading
	▼	"Liberal Ethos"- The prefered resolution is a trial on the merits, after a full discovery
	•	Hence- courts are going to try to make your bad pleadings as good as they can
	•	Does the complaint give the defendant enough notice
	•	Conley v. Gibson "A complaint should not be dismissed for failure to state a claim unless it looks beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."
	•	Posner says dismissals should happen all the time because of judicial economy.
	•	Rule 7. Pleadings Allowed; Form of Motions and Other Papers
(a) Pleadings.Only these pleadings are allowed: (1) a complaint;(2) an answer to a complaint;(3) an answer to a counterclaim designated as a counterclaim;(4) an answer to a crossclaim;(5) a third-party complaint;(6) an answer to a third-party complaint; and(7) if the court orders one, a reply to an answer.
	▼	Notice pleading is conclusory, you don't have to allege the facts about it. 
	•	As long as you plead something that can be proven by the facts that you will present.
	▼	Affirmative defenses must be included in the answer to the complaint- See rule 12(b)
	•	there will be no other chance to claim affirmative defenses, other than in the responses to the complaint.
	•	Certain things, capacity, authority to sue, existance of a corporation do not need to be alleged in a complaint. It can be raised through a specific denile.
	▼	Rule 11
	•	Signature on the complaint- FRCP rule 11(a) Acts as a certifying statement by the attorney, saying that the complaint isn't frivolous, and that the facts available support the allegations.
	•	You  must specifically identify facts that you have not personally investigated, but will likely be found to be true given discovery.
	▼	Sanctions 11(c)2- if you move for sanctions against someone, you must serve them under rule 5, and not file or present the motion to the court for 21 days after service to give the other party the ability to amend the complaint. 
	•	Sanctions are to deter repetition of the conduct-11(c)4
	▼	11(c)5(A)- Monetary sanctions under 11(b)2 are not allowed against a nonrepresented party
	•	11(b)2- requires knowledge of the law- sanctions shouldn't be imposed against those who don't know the law.
	•	Rule 11 sanctions are not meant to punish, only deter. 
	▼	Rule 12 Defenses and objections
	•	b motions must be raised in your answer if you can -otherwise you waive your right to raise them again. 
	•	b(1)- can be raised at ANYTIME- subject matter jurisdiction.
	▼	12(e) motions are not made for lack of detail, but for lack of intelligibility. US v. Board of Harbor Commissioners
	•	In notice pleading-just about everything survives a 12(e) motion
	•	12(b)6- cannot be used against factual discrepancies. The facts are assumed as they are pled in pretrial motion. 
	•	You only get one rule 12 motion. 
	▼	Rule 8
	▼	(d)2- Alternative and Hypothetical claims or defenses are allowed
	•	You can plead factually mutually exclusive claims, but you cannot recover under 2 factually exclusive claims. 
	▼	"Sound policy weighs in favor of alternative pleading, so that controversies may be settled And complete justice accomplished in a single action." McCormick v. Koppman
	•	But- you can't plead alternate facts if you know one set to be true. 
	•	A reasonable investigation is still required under rule 11. If it comes up with multiple possible factual situations- you can go ahead and plead them both.
	•	Policy: The D's are going to blame each other in each of their cases, and both will create a reasonable doubt and no one will be liable. It's also judicial economy to join them together. 
	▼	Allegations of fraud -rule 9(b)- heightened standard of pleading. 
	▼	particular conditions must be alleged in cases of fraud
	•	Can't just allege fraud and get support for it though discovery. 
	•	You must allege dates and specifics enough to support an actual case of fraud. 
	▼	ordinarily corporate offices are not personally liable for the actions of the corporation. - 9(b)- higher standard
	•	the sue the corp. officers personally, the P's must show active participation in the allegedly illegal activity. 
	▼	Employment discrimination cases do not need meet a heightened standard of pleading- a short plain statement will be fine. 8(a)2
Swierkiewicz v. Sorema, NA.
	•	Need not make a prima facia case for employment discrimination.
	•	If you want to change the FRCP's- there is a process that allows that to happen-it should not happen in an ad hoc manner.
	▼	8(a)2 under Twombley - Sherman Act cases and conspiracy cases require heightened pleadings not simply aledging conspiracy, but you must present FACTS that on their face would lead you to beleave the conspiracy claims had merit.
	•	Souter says that the "showing" requirement of 8(a)2 mean, in sherman act cases, that facts must be alleged.
	•	Now- what happened to notice pleading? After Twombley- we've got a mish-mash of heightened pleadings and plain statements.
	▼	Defence Actions
	▼	You can't sue a Gov. entity unless it is allowed by statute
	•	Tribes can be sued only if their sovereign immunity has been waived, or congress has passed a statute allowing the action.
	•	12(b)1 motions for lack of jurisdiction are judged first- if you lack jurisdiction you can;t decide everything.
	•	Exaustion Doctirine- you must exhaust the tribal court system before moving into the federal system out of respect for tribal sovereign immunity
	▼	Failure to answer-Default
	•	Entry of default comes first, judgement
	▼	55(c) entry of default-
	▼	Criteria controlling 55(c) decisions- 3 part test as to if the 55(c) order should be vacated. 
	▼	Whether the plaintiff will be prejudiced
	•	Like statute of limitations has run and P can't sue anyone anymore
	•	Whether the defendant has a meritorious defence
	•	Whether culpable conduct of the defendant led to the default.
	•	60(b)-Judgement of default- 
	▼	The answer
	▼	Stating that you don't have enough info to answer is allowed and is generally considered a denial.
	•	But when a D should have all of the information available at their disposal, and instead of answering certainly yes or no, the claim of lack of information can be construed as an admission and not a denile. 
	•	8(c) - 19 defences
	▼	Affirmative defences
	•	If you don't plead you affirmative defence in you answer- you can never get that chance back.
	▼	Counterclaims rule 13
Wigglesworth v. Teamsters
	▼	Compulsory counterclaims do not need to stand on their own jurisdictional merit
	•	Must arrive out of the same transaction or occurrence as the original action
	•	Must be alleged at the correct time
	•	If a counter claim is compulsory, and it is not invoked, it is barred from being invoked again.
	▼	Permissive counterclaims must stand on their on jurisdictional grounds.
	•	Counterclaims that do not arrise out of the same transaction.
	•	P counterclaims are allowed anytime
	▼	The rule from Wigglesworth that comes from another case, Bose, in determining whether the Counterclaim is compulsory and permissive, is whether the same evidence would support or refute the opposing claims.
	•	Thus if the facts are different between the claims, the claims are supplimental, and they must stand on their own, but may be joined for judicial .economy.
	▼	Amendments
	▼	1 amendment is allowed as a matter of cource.
	•	The court shall freely allow amanedments AS JUSTICE REQUIRES.
	▼	Permission to amend.
	▼	"A court may deny a request to amend if it bases such denial upon a valid ground"
David v. Crompton and Knowles
	•	If the D activly misleads the P, then tries to amend, they will usually be denied because they clearly were not acting in good faith.
	▼	Voluntary dismissal
	•	w/o prejudice means the P can refile the claim- in the same court, or in any other appropriate venue.
	•	prejudice precludes you from refilling on the the same
	•	Adjudication on the merit means the same as  w/prejudice. 
	▼	Relation back of Amendments 15(c)
	•	Make sure you know who to sue-especially w/ Statute of limitations
	•	John Doe defendants are allowed in pleadings, but it is assumed that after discovery they will be named and those that arn't discovered, will be dropped from the complaint.
	•	
	•	12(c) or 12(b)6 become motions for summary judgement if the parties bring in info outside of the pleadings and the judge considers it.
▼	Discovery
	▼	Rule- 26-30
	•	Discovery is allowable in any non-privliged matter that is relevant. Doesn't have to be admissable under evidence rules.
	•	Courts must do a cost benifit analysis- they will stop you from discovering things that cost a lot, and are not likely to yield important results
	•	The whole depo must be used at the request of the otherside at trial- this prevents you
	•	Ask for the right to review the authorized text and make any corrections. Must request this right- if you don't you waive this right. 
	▼	Experts
	•	Can be deposed prior to trial.
	•	Experts can be retained, and designated that you are using them only for trial preparation. They cannot be deposed if they are designated in this manner. You can depose retained, but not expected to testify, experts if it is impractical to get the info otherwise.
	•	 This  Prevetns one party from buying up all the experts and limiting the other sides options for discovery.
	▼	Who can be deposed?
	•	Any party can be deposed without a court order, with reasonable notice.
	•	Subpoenas can be used to compel attendance. 
	•	Requests for documents to be brought to the depo must give 30 days notice to allow for document production
	•	If you are suing a company they get to designate the best person to be deposed. They are in the best position to detrmine who knows the answers to the questions you are going to ask.
	▼	Rule 31
	•	you can depose by mail, but it s a bad idea.
	▼	Depositions can be used for any purpose
	•	Person might be unavailable at trail.
	▼	Physical and Mental Conditions Rule 35
	•	A motion for a physical or mental exam must be made to the court. Can't just order them to happen.
	•	BUT by requesting a copy of the the other sides medical report, you open yourself up to disclosing all of your medical records.
	•	Interogatories-25 max now
	▼	If privacy rules prevent someone from getting at something that you have control over, they can compel you to produce the documents- Like driving records.
	•	If you have docs in another country, under a subsidiary corporation, you can be compelled to produce them - even if they would not be discoverable in the country where they are located. 
Swiss bank account info is discoverable in american courts.
	▼	Evidence of a defendants wealth is admissible only when determining special damages
	•	A person wealth isn't material to determine liability.
	•	Punitive damages are measured in a proportional manner.
	•	Attorney fees between a party and their council are not material, and not discoverable.
	▼	Requesting Documents.
	•	Rule 33(d) You go through the documents
	•	Rule 34- they give you the documents.
	▼	It is no excuse to not produce documents by claiming " our filing system is too complicated to produce the documents" it would be too expensive to produce
	•	The burden to produce documents rest on those who must produce them
	•	Can't be held to sanctions for the deletion of electronic records that happen in the ordinary course of buisness. 37(e)
	•	Spoiliation: Destroying evidence before discovery can take place.
	▼	Documents relating to the work product of the opposing coununcil is not discoverable, unless it is absolutly necessary. 
	•	But even then, mental impressions of the attorney may be redacted from anything produced.
	•	Privilge is absolute, its called work product because it is not absolute.
	▼	Attorney Client Privildge
	▼	Only protects the communication between the attorney and the client
	•	Can only be waived by the client.
	•	The point is to encourage full disclosure to attorneys
	▼	How far does it go with  regards to corporations?
	▼	Control group- Only those who control the action of the corportion.
	•	Who is that? we don't know
	▼	Upjohn extended the priviledge to the everyone involved in the litigation in the corporation.
	•	Now there becomes a zone of silence within the corporation- discovery is limited
	•	But priviledge doesn't bar you from discoveing facts- it only bars you from getting communication documents. 
	▼	Expert Witnesses
	•	Allowed to give opinion at trial
	•	Experts retained, but not expected to testify, cannot be deposed.
	▼	Interviewing Witnesses
	•	If its not a real depoesition, it can't be admitted as such.
	•	Interviewing witnesses is just fine- they don't need to
	▼	Sanction in Discovery
	•	
	•	37 is the sanction rule for discovery- it acts the similarly to a rule 11
▼	Summary Judgement
	▼	Rule 50
	▼	Judgement as a matter of law
	•	Used only at trial
	•	If the P has failed to present a legally sufficient case, then the D moves for judgement as a matter of law. The judge must exercise some control over what the jury hears. 
	▼	Rule 56
	▼	Summary Judgement
	•	Bringing a Summary Judgement Motion early is a waste of time.
	▼	56(f) will be issued if:
	▼	No genuine issue as to any material fact AND the movant is entitled to judgement as a matter of law.
	•	If there is a genuine issue of fact, then summary judgement is always inappropriate- facts are decided by the jury.
	▼	Moving party must shift the burdon to the non-movant by showing the absence of a genuine issue of fact.
	•	they must forclose every posibility of the P's claim in their reponse
	•	You vouluntarily take on the burdon to show the P claim is bad when they move for SJ
	▼	Summary Judgement is acceptable on part of the complaint.
	•	Maybe the D is found liable as a matter of law, and the only question in dispute is damages- trial then would happen on the question of damages only .
	▼	Summary Judgement is important because it identifies claimants who would lose anyway. It allows some claims to go forward who would otherwise fail under old rules- Allows for discovery
	•	In old english system, these claims were axed a lot earlier in the system
	▼	Palintifs can also bring summary judgement
	•	But the standard is much highed
	▼	Responce ot a SJ motion must set out specific facts that are in dispute.
	•	Can't just rely on your pleadings o make
	•	Credibility of witnesses is always a question of fact- if this is called into question, then the motion will almost always be denied.
	▼	56(c) Movant takes on a burden by filling a motion
	•	The non-movant now has a burden  to respond.
	▼	Celotex, Anderson, Matsushita, the summary judgement trilogy
	▼	Celotex- What does the movant have to show to shift the burden under 56(C)
	•	IT OK TO SAY "the P didn't have any contact with celotex asbestos."
	▼	Celotex
	•	Entry of summary judgment is mandated, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish that existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.
	•	Where party will have burden of proof on an element essential to its case at trial and does not, after adequate time for discovery, make a showing sufficient to establish the existence of that element, there can be no genuine issue as to any material fact since a complete failure of proof concerning an essential element of the nonmovant's case necessarily renders all other facts immaterial. 
	•	Party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.
	•	There is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.
	•	Where nonmoving party will bear burden of proof at trial on a dispositive issue, summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file and such a motion, whether or not accompanied by affidavits, will be “made and supported as provided in this rule” so that the nonmoving party must go beyond the pleadings to show that there is a genuine issue for trial.
	•	Celotex did not overrule Adickies
	▼	Adickies
	•	Summary judgment for defendant store owner in civil rights action by plaintiff who alleged that she had been denied service because she was in company of Negroes, that there had been policeman in store restaurant, and that she was arrested for vagrancy while leaving, was improper where defendant's showing did not foreclose possibility that there was policeman in store while plaintiff was awaiting service and that this policeman reached understanding with some employee that plaintiff not be served.
	•	Defendant moving for summary judgment had burden of showing absence of genuine issue as to any material fact, and material it lodged must be viewed in light most favorable to opposing party.
	•	Plaintiff who, in Civil Rights Act complaint, alleged that there had been policeman in defendant's store before plaintiff was refused service was not required to come forward with suitable opposing affidavits to establish presence of policeman, on defendant's motion for summary judgment, where defendant's affidavits failed to foreclose possibility that there was policeman in store
	•	Plaintiff who alleges that there was policeman in defendant's store must, if defendant moves for summary judgment and submits affidavits from policeman in question denying his presence in store at time in question, either come forward with affidavit of someone who saw policeman in store or affidavit explaining why at that time it was impractical to do so, in order to avoid conceding fact; preferable course for plaintiff would be to submit such affidavit even though it is not essential to defeat motion due to defendant's failure to submit specific affidavit on question. 
	▼	Matsushita
	•	Get head notes
	•	You can shift the burden by saying: the other party has no evidence of an element essential to the case.
	•	Its the P's burden to prove the elements of the complaint
	▼	Adickies and celotex are the same- just applied to different facts.
	•	Adickies did not shift the burdeon because it was difficult to prove the conspiracy
	▼	Celotex did shift the burdeon and the question was if it ok to respond with "they have no evidence"
	•	It is ok
	•	It is easier to shift the burdon in celotex and not on adickies.
	▼	Cases do not go to the jury unless they could find for the nonmoving party
	•	If there was no evidence presented, a reasonable jury couldn't find for the nonmovant.
	•	You can't prove the absence of a negative.
	•	After full discovery you must have more than metaphysical doubt as to material facts to withstand summary judgeemnt against you.
	▼	You must judge the evidence presented for a motion for summary judgement AT THE SAME STANDARD AS IT WOULD BE PRESENTED AT TRIAL: eg rule from NY TIme v Sullivan- for defimation- you must act wiht actual malice. The evdence should be judged to a clear and convincing standard to see if there was any actual malice.
	•	Clear and convincing standard at trial= clear and convincing standard at summary judgement.
	•	Genuine dispute: a reasonable jury could find evidence supporting the claim
	•	Material fact: something the substantive law requires
	▼	Scott- qualified immunity is a question of law-
	•	There was no genuine factual issue because the evidence was clear that the P was speeding and drivign recklessly- therefor the cop was acting reasonably. 
	▼	Objective evidence(like a video) can overrule the conflicting testimony of two witnesses. 
	•	Thus is dangerously close to the judge deciding the credibility of the witnesses though
▼	Issue/Claim Preclusion
	▼	Res Judicata / Claim Preclusion - Sledgehammer
	▼	Same claim as one previously litigated- Between the same D's and P's
	▼	Is the new claim barred by res judicata? Transactional test
	▼	When a valid and final judgement is found on one transaction, all further claims arrising out the same transaction that could have been brought in the origonal claim are barred
	•	"What constitutes a "transaction" is to be determined pragmatically- giving weight to whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties expectations or business understandings or usage"
	▼	On the Merits-
	•	Judgement that the plaintiff has or has not established his claim. 
	•	12(b)6, summary judgment, default judgement are all considered "on the merits" though they do not have real merit consideration. The P had a fair opportunity to state their claim.
	•	 41(b)- a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.
	▼	Whose judgement is final-
	•	In Fed Jurisdiction- it is final even if currently being appealed. Preclusion attaches on entry of judgement. 
	▼	And Valid
	•	A judgement is valid unless: court lacks subject matter jurisdiction,  notice to D was insufficient, court lacked personal jurisdiction. If the question of validity was litigated, then that issue is directly estopped. (Barred)
	▼	That Precludes Parties and Privities
	•	Privity is bound to the same extent as the party. Legal relationship- successor in interest, beneficiary of estate.
	•	A nonparty who controlled the original suit.
	▼	A nonparty whose interests were represented adequately.
	•	example: a president and sole shareholder of a company and the company would be in privity.
	•	Using the same lawyer does not create a privity.
	•	Private parties cannot re-litigate to enforce an ordnance after the public body fails in its attempt to enforce the same statute
	•	From Re-litigating Claims that were or could have been litigated in suit 1
	•	Once litigated- it is barred from re-litigtion forever for finality, consistency, and the integrity of the system
	▼	Semtek
	•	Because the claim-preclusive effect of a federal court's dismissal "upon the merits" of a diversity action on state statute-of-limitations grounds is governed by a federal rule, which in turn (in diversity cases) incorporates the claim-preclusion law that would be applied by state courts in the State in which the federal court sits, the Maryland Court of Special Appeals erred in holding that the California federal court's dismissal "upon the merits" necessarily precluded the Maryland state-court action.
	▼	Federal common law governs claim-preclusive effect of dismissal by federal court sitting in diversity
	▼	Under federal common law, federal diversity judgment is to be accorded same preclusive effect that would be applied by state courts in state in which federal diversity court sits.
	•	Hence- Maryland court has to use the federal common law rule of the California federal court- which used California state law- Maryland State court applies california state law.
	▼	Suit 1 filled in cal state court- removed to federal court on diversity grounds
	•	Dismissed on Summary Judgement on the merits
	▼	Suit 2 filled in state court in Maryland. - removed to federal court on fed. question grounds
	•	Lockheed was a citizen of maryland and diversity grounds were not available to them- like the earlier case
	•	But it was remanded back to state court
	•	Suit 3 Contests all writs act w/ crt denied
	▼	What's the preclusive effect of a federal case tried in one jurisdiction and then other suit tried in another state
	▼	Semtek argues that the california case should preclude the maryland one- even though the previous case applied state law
	•	this would give the effect of making california law applicable in maryland.
	•	41(b) is the default rule 
	▼	Collateral Estoppel / Issue Preclusion - Scalpel
	▼	Identical  issue essential to first judgement
	•	An issue is essential only if it appears that the judgement could not have been reached without it. 
	•	Issue must have been identical, not just similar.
	▼	There must be a definitie determination that the fact decided in the previous case was actually decided
	•	EG Jury trial - general verdict vs special verdict
	▼	Actually Litigated in suit 1
	•	difference between CE and RJ
	•	the FACT MUST have been fully and fairly litigated in suit 1- even against entirly new people. 
	•	Default judgement has no CE effect. (In most jurisdictions- major split here, but this is the better rule)
	▼	with a full and fair opportunity to litigate
	▼	CE does not apply when:
	•	appellate review was unavailable, nature of the proceedings was informal (eg small claims court), stakes involved in the second suit are much larger, burden of proof is materially different, issue is one of law and the claims in the two actions are substantially different.
	▼	Has the person had a full due process trial once before?
	•	Trial Judge has wide discrestion in Preclusion issues
	•	There is no binding affect on non-parties.They haven't had due process yet. 
	▼	EG: Taxes are new every year, so they are new facts
	•	A previous tax judgement is not estopped on trials on future tax years when new precident has been established.
	▼	Mutuality of Estoppel-- no longer good law.
	▼	Estoppel binds the parties only if they are litigating the same facts and the same parties
	•	Abandoned Mutuality of Estoppel in Blonder-Tongue- Mutuality is stupid, rarely does this ever play out
	•	You have one full and fair opportunity to litigate- thats it.  Blonder-Tounge.
	▼	Defensive CE
	▼	A sues B and losses on an issue- A then sues C over same issue- C can assert CE against A defensivly-
	•	A has had a chance to fairly litigate the point- they are barred from litigating it again in the new suit. 
	▼	Offensive CE
	▼	New Plaintiff uses CE against a defendant who had a case judged against him before. Parklane Hosiery. 
	•	Judges may allow the use of this. "Wait and See" palintiffs are still not allowed.
	▼	Simple Justice is even handed application of cosistant principles
	•	Living off of the judgments of others does not
	▼	Offensive v. Defensive CE    FIX THIS TABLE
	•	S1   A v Bwin       Awin v B      Awin v B      A v Bwin 
	•	S2   A v Cwin      Awin v C      Awin v C      A v Cwin
▼	Joinder 17,18,19, 20,21
	•	Consolidation of claims, and parties
	•	Joinder of parties is more restrictive than joinder of claims.
	▼	Real Parties in Interest.
	▼	We want the real parties effected for a real adversarial process (rule 17)
	•	This is to ensure that the case will be fully advocated by those with real interests at stake.
	▼	Joining as a Plaintiff
	•	Given a conditional right to intervene by a federal statute, or
	•	has a claim or defense that shares with the main action
	▼	Joining Defendants
	•	Can be joined if there is alegidly a conspiracy umungst D's
	▼	It must be fair to both parties
	•	If it is prejudicial to join the D's- the judge will split the claim and order separate trials.
	▼	19- Required Joinder
	•	if the court cannot accord complete relief without the party
	▼	If the party if neccessary to join under 19 a- they may not be required under 19b as "required."
	▼	A persuasive precident does not prejudice a potentially joining party enough to the point that they must be joined 
	•	"persuasive precident" is estblished in ALL cases. of course they will be prejudiced.
	•	If you don't meet the 19(a) test, there is no joinder and not reason to examine 19(b)
	•	If one party winning, and by doing so would destroy the rights of a third party, that third party should be required to join the case so that their rights may be asserted.  
	▼	Anonymous Plaintiffs
	▼	Generally not allowed
	•	Who would the defendant depose in a case proceeding annomously? D's would be prejudiced against.
	▼	Except in cases of highly personal matters,
	•	Like sex, religion, abortion, children involved, adoption cases.
	•	Can contest the standing of Doe P's
	•	Also can properly preclude claims, and issues.
	▼	Impleader
	▼	Can bring in 3rd party anytime
	•	Leave of the court is required if more than 10 days after serving origonal answer
	▼	Any possible person liable to the DEFENDANT in all or part of the suit may be brought in as a third party
	•	THE THIRD PARTY D LIABLE TO MAIN D
	•	Must raise any affirmaitve defences
	•	Must bring in compulsory counterclaims or cross claims.
	•	Judge retains discrestion about when to split the case into smaller cases to limit it for the jury. 
	▼	Interpleader rule 22
	•	Protects a plaintiff from multiple claims
	•	Tascher v. Statefarm- perfect example. 
	▼	The stake must be limited for an interpleader action
	•	An unlimited liability by any party gets them out of the party.
	•	Insurance companies-
	•	El Greco painting.
	▼	Statutory- Far superior. 
	•	2 OR more P's for diversity
	•	$500 minimum
	•	National service of process
	▼	Rule- FRCP 22 Crappy- lots of requirements. Requires:
	•	complete diversity
	•	$75,000 min claim
	•	FRCP 4 summons
	▼	Intervention Rule 24 looks like 19a1B
	▼	Who can come into the suit as either P or D on their own accord.
	•	As long as judicial economy is preserved. It is the discrestion of the judge.
	▼	Your interest must be represented by the case, and it must not be adequatly represented by the parties already in the case.
	•	A general public interest in not sufficient
	▼	It need not be direct interest- PROVIDED that it was an interest that would be impaired by the outcome.
	•	Must be a significantly protected interest.
	▼	Potential Stari decisis claim is not a significant interest in ANY litigation
	•	Rule from Janey- if we were to allow this, then anyone in the world could be brought into the suit.
	•	Significantly Protectible interest
	▼	Economic interests count
	•	But a solely economic interest is insufficient
	▼	Intervention must be timely
	•	When the intervenor knew or should have known of his interest in the case
	•	Whether there was prejudice to existing parties from the delay in seeking intervention
	•	whether there would be prejudice to the intervernor if intervention were denied
	•	and any unusual circumstances.
	•	you can intervene when no appeal is taken, and you interest is affected by the lack of appeal.
▼	Class Actions 23
	•	Really began in earnest in 1966
	•	Allows small claims that would otherwise not go to court to join together and present a real legal chalenge.
	▼	Prerequisites
	▼	Numerocity
	•	Class of people must be so many as to make joinder impracticable
	•	No magic number- 29 have been found to be adequate, 350 have been found to be not enough.
	▼	Commonality
	•	questions of law or fact common to the class 
	▼	Typicality
	•	Representative party is typical of the claim or defense of the class
	•	NOT identical situations required- but typical. 
	▼	Adequacy
	•	The rep. will fairly and adequately protect the interest of the class
	•	Fiduciary duty to the class
	▼	Types of Class actions
	▼	b(1) - prescuiting  seperate actions would create a risk of inconsistent or varying adjudication OR the rights of others would be impaired or impeaded.
	•	Like when there is a limited fund. The rights of others to collect  would be impeaded by previous settlements
	•	Court decides what appropriate notice is
	▼	b(2) Commonality is minimal Injunctive or declaratory relief is sought
	•	Civil rights claims-
	•	Court decides what appripriate notice is
	▼	b(3) Questions of law and fact must be substantially the same for all of the class members.
	•	Seeking monetary damages
	•	MUST GIVE THE BEST NOTICE PRACTICABLE
	▼	Class Representative
	•	Judge picks the class representative and class council.
	•	Can't reach an agreement before the actual filing of a lawsuit if the class contains future possible claimants
	▼	Agreements before filling must be approved by the judge to prevent misuse of the system.
	•	Plus the judge must approve the class rep- so even if you do settle before trial- there is no guarantee the atty will get a pay day. 
	•	Class certification can be appealed interloquatorily
	▼	Walters v. Reno
	▼	Aliens accused of document fraud- first hearing was optional, but if they didn't take it then the second manditory hearing would turn into a deportation hearing
	•	Violation of due process- notice and an opportunity to be heard. The opportunity to be heard was violated because the documents were confusing in that people could be led to believe that they still had rights if the first hearing was not requested.
	•	Government has no legal interest in deporting people solely because they cannot understand the paperwork.
	▼	Rules for a writ of mandamus to judge a class certification void
	▼	Irreperable harm to the defendant
	•	If the class prevails then the amount of the potential liability would be huge- enough to cause bankruptcy-
	•	The pressure on the D's to settle- regardless of the true merits of the case- would cause unjust settlement maybe,
	•	The industry would be out of buisness
	•	Userpation 
	▼	Notice to the class
	•	must be paid for by the P
▼	Last Day Notes
	•	Motion- consists of a simple request of what they want the court to do. and includes a memo of law that shows that you
	•	Celotex- you can win a summary judement that says "they have no evidence that shows what they are alledging"-- this is enough for summary judjement
	▼	Offencive CE
	•	Parklane Hosury- It lost first suit- Shure enters new suit and uses the prior case offencivly to prevent them from relitigating the point in the previous case.
	•	CF: Wait and see plaintif- they judge will not allow the use of offencive CE if it determines that they are wait and see
	▼	Defencive CE
	•	Burnhart best case for Defencive CE- Same P sues another party after loosing the first suit. The new D is using it defencivly against the P.
	▼	Semtek
	•	does a federal case dismissed with
	•	when a fed dist court sits in diversity its is just another state court
	•	41b is not the rule that determines preclusion in fed div cases
	•	rule: state court must look to state law where the federal district court sits in the first case to determine the preclusive effects of the case.
	•	fed common law rule
	•	rule 20 states who can be brought into a case- it doesn't actually bring in people
	•	zubaltate v ubs warbird test know it- its from a note somewhere
	•	counterclaims and cross claims are aledged in the answer.
	•	rule 50 judgement as a matter of law- made at trial. 
	▼	declairatory relief
	▼	must be an actual controversy
	•	insurance companies- will seek this if there is a question about the insured's policy coverage- Joes doesn't pay his premium- joe's insurance company will ask if they have to cover joe.
	•	rule 11 santctions stand alone for plredings ruling
	•	rule 37 is for discovery violations
	•	If there is no genuine issue(50a) there is no reason to waste the court's time. 
	▼	shifting burdeon
	•	when you move- you assume the burdeon of convincing the court