FEDERAL CIVIL PROCEDURE
Professor Crump
Fall 1988
28 US.C. § 1332 (the Diversity Statute):
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between
(1) citizens of different states;
(2) citizens of a State and citizens or subjects of a foreign state;
United States Constitution - Article III
Section 2. The judicial power shall emend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, ocher public ministers, and consuls; to all cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof, and foreign states, citizens, or subjects.
Strawbridge v. Curtiss: Congress intended for the diversity statute to apply only to situations of ‘complete diversity’, i.e., no P or D are citizens of the same state. Statutory law, rather than the Constitution, was interpreted by the high Court. This way, if Congress wanted to change the intent of the statute, it only had to pass a new Law, rather than a Constitutional amendment. Case of subject-matter jurisdiction, not personal jurisdiction.
Wyman v. Newhouse: D was fraudulently induced to enter Florida for the sole purpose of serving process. Default judgement against D relies upon the validity of process to establish jurisdiction over the person. Process was obtained fraudulently, therefore Florida Court does not have jurisdiction over D. Default judgement is null and void, and therefore unenforceable.
FRCP 8(a): Claims for Relief
1) Statement of grounds upon which the Court’s jurisdiction depends.
2) Statement showing that the pleader is entitled to relief.
3) Demand for judgement for the relief that pleader seeks.
FRCP 8(e): Pleading to be Concise and Direct; Consistency.
1) Pleading shall be simple, concise and direct.
2) No technical forms are required.
Conley v. Gibson FRCP 8(a) states that a pleading which sets forth a claim for relief shall contain a short and plain statement of the claim showing that the pleader is entitled to relief. NRAB lacks exclusive jurisdiction. FDC erred in this respect. Supreme Court went on to say that the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the P can prow no set of facts in support of/us claim which would entitle him to relief.
The task of the Supreme Court was to take the broad-based language of the FRCP and devise a standard under which the sufficiency of a pleading could be determined.
Two standards are applied.
1) Specificity standard - must give the defendant fair notice what the plaintiff’s claim is and the grounds upon which it rests.
2) Substantive standard - claim should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts to support his claim which would entitle him to relief.
Thomas v. Torres: There is not any Constitutional or inherent right to receive parole.. Therefore, there were not any grounds under which to file this suit. P had not been deprived of any rights. The court may have failed to apply the standard set forth in Conley v. Gibson. On the ocher hand, they may have been trying to modify and refine the broad-based standard for sufficiency (judicial gloss).
Wytinger v. Two Unknown Police Officers: For the persons involved to be liable, it must be shown that there are acts and omissions sufficiently harmful to evidence a deliberate indifference to medical needs. (Substantive standard of liability.) For the City to be liable, P must show that D’s employees caused the injury through an official custom or policy. 42 USC § 1963 - Deprivations of Civil Rights. A great deal of attention is paid to establishing jurisdiction. Complaint is fairly specific to give the appearance of being more substantive than it really is. Actual case dismissed by trial court. CCA affirmed dismissal, then reversed itself and remanded for trial. Actual case went to trial. J-D.
Multiple Parties and Claims
1) The Standard for Required Joinder of a "Necessary" Party
2) Permissive Joinder; Intervention
FRCP 26(b)(1N2): Discovery Scope and Limits
1) Any relevant matter that is not privileged.
2) Does not have to be admissible, as long as it appears reasonably calculated to lead to admissible evidence (standard for discovery).
3) Must not be unreasonably cumulative or duplicative.
4) Must not be a more convenient, less expensive alternative.
5) Discovering party has been afforded ample opportunity.
6) Must not be unduly burdensome or expensive given the situation.
7) Insurance agreements that may satisfy a judgement are discoverable, but may not be admissible.
Kerr v. United States District Court: The discovery requested by P is proper since it "is reasonably calculated to the discovery of admissible evidence", as well as being useful for other purposes such as cross-examination. The circumstances do not warrant the extraordinary relief of a writ of mandamus. Some protective measures are warranted, but this has already been taken into consideration by the trial court. Affirmed (US. 1976): In camera review of certain documents is eminently worthy. The trial court does not preclude this possibility, but the government must assert privilege as to specific documents. Note: This is a very important case in this course. This was a lawsuit for greater due process in the parole revocation process. The argument was that if the decision-makers are less qualified, then you need more elaborate procedural processes to protect the rights of the individual.
The State of California asserted three kinds of privilege:
1) Privileges created by the Freedom of Information Act - denied because the Freedom of Information Act does not apply to state information, only federal.
2) California Evidence Code - - denied because it does not apply to proceedings in a Federal court.
3) Common law governmental privilege (e.g. informant privilege) - Court allowed that this privilege could be claimed, but stated that it claimed be done by a department head before the court, and that it was allowable on an item-by-item basis.
Court also approved the granting of a protective order limiting who had access to the discovery.
Reasons for the Broad Scope of Discovery
1) Meritorious claims might otherwise go unproven.
2) Cards on the table policy.
3) Promote settlement.
Brady v. Ottway Newspapers, Inc: Although the State Police are a third-party who may be subjected to discovery, the trial court overstepped its bounds in this case. Public policy deems it more important that the government be able to conduct sensitive investigations, and that in a case such as this, the interests of the Litigant must be subordinated.
FRCP 56(c) Summary Judgement. Motion and Proceedings Thereon
1) 10 days notice required.
2) Adverse party prior to the hearing may serve opposing affidavits.
3) The judgement sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgement as a matter of law.
4) A summary judgement, interlocutory in character, may be rendered on the issue of liability alone although there is a general issue as to the amount of damages.
Summary Judgement
1) No questions of fact.
2) Operation of the law is dear (after the questions of law have been determined).
3) Can take facts into consideration.
Dismissal of Complaint - takes only the contents of the complaint into consideration.
Warren v. Medley: Application of FRCP 36(c) such that the judgement sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgement as a matter of law. D was not guilty of any willful or wanton conduct or gross negligence toward D. If the standard of duty owed by D to P is to be changed, that change should come from the court of last resort, not an intermediate appellate court.
Fein v. Pernanente Medical Group: Those aspects of the trial court phase which were deemed to be in error (e.g. the instructions regarding the standard of care due from a nurse) were considered not to have had an outcome on the trial. In other words, they were not reversible errors, but rather were harmless errors. Also, the judge has broad powers of diseretion in jury selection.
directed verdict - moving parry is entitled to judgement as a matter of law prior to the case being turned over to a jury.
judgement notwithstanding the verdict - after the jury has returned a verdict against the movant, the judge enters a verdict for moving party because they are entitled to judgement as a matter of law.
motion for a new trial - seeks to have the court remedy injustices on the grounds that may range from trial errors to newly discovered evidence to a verdict against the great weight of evidence.
Wilcox Development v. First Interstate Bank of Oregon: P failed to prove violation of Sherman as a matter of law. There was no reasonable way to infer from the evidence the verdict that the jury arrived upon while properly applying the law.
CIVIL PROCEDURE
THE COURT’S POWER OVER PERSONS AND PROPERTY
Pennoyer v. Neff Where the actions are in rem (i.e. associated with the property itself), the substituted service by publication may be sufficient to inform the parties of the object of the proceedings however n Mitchell v. Neff, the action is in personam (i.e. an action to determine the personal rights and obligations of the defendant); to allow Oregon jurisdiction over Neff in Mitchell v. Neff would be to violate the sovereignty of her sister states. Note: The court upholds the exclusive sovereignty of the individual states over their citizens reasoning that otherwise it would be possible for several states to attempt the same issue. In other words, one could go forum shopping if you received an unfavorable outcome. The holding of Pennoyer v. Neff was later modified by the Long-Arm Statute.
Grace v. MacArthur: Service took place within the ‘territorial limits of Arkansas, albeit in an airplane.
Hess v. Pawloski: Because motor vehicles are dangerous machines, the state is entitled to make and enforce regulations regarding its motorways which are reasonably calculated to promote care on the part of all users, citizens and non-citizens alike, of its highways (i.e. special interest in public safety as a basis for exercising jurisdiction).
International Shoe Company v. Washington: To the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits, protections, and incumbent obligations of that state. D, who had been doing a large volume of business within the state for a number of years, was the recipient of these aforementioned benefits, protections, and obligations, including the right to resort to the state courts to enforce its rights. If the defendant has met the requisite minimum number of contacts, within the limitations of the Fourteenth Amendment, then he may be served process. Note: Minimum contacts test - contacts such that the maintenance of the suit does not affect the "traditional notions of fair play and substantial justice".
general jurisdiction: contacts and the claim are unrelated; carries a more stringent "minimum contacts" test.
specific jurisdiction: contacts and the claim are related to each other.
McGee v. International Life: This is an example of specific jurisdiction. Supreme Court held that it was sufficient for purposes of due process that the suit was based on a contract which had substantial connection with the state’s courts. Jurisdiction could be based upon a single act or a single contract entered into by D.
Perkins v. Benguet Consolidated Mining: A court may assert jurisdiction over a D whose continuous activities in the forum are unrelated to the cause of action sued upon when the D’s contacts are sufficiently substantial and of such a nature to makes the state’s assertion of jurisdiction reasonable. Case of general jurisdiction with systematic and continuous contacts.
Gray v. American Radiator: The alleged negligence in manufacturing cannot be separated from the resulting injury, i.e. you cannot separate the tortious act from the tort. A tortious act performed outside the forum that produces an injury within falls within the language of the (Illinois) long-arm statute (the court interpreted ‘tortious act’ to mean ‘tort’).
Feathers v. McLucas: long-arm provisions of the governing statue do not extend to tortious conduct outside the forum; New York court took a narrow and literal interpretation of the statute.
Revised New York Long-Arm Statute covered the person who commits a tortious act without the state causing injury to person or property within the state if he:
1) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in the state, or
2) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce..
Markham v. Anderson: D’s medical practice did not constitute regular business in NY, nor did he derive substantial revenue from interstate commerce.
Hall v. Helicopteros Nacionales (Tex. 1982) rev’d on other grounds (U.S. 1984): It was not necessary for this to be an action arising out of D’s actions in the state since D already bad numerous contacts within the state. Dissent - You cannot construe a connection between D’s activities in the state and the tortious act itself.
Hanson v. Denckia: Sporadic or casual activity does not justify assertion of jurisdiction on an action unrelated to that forum activity. Jurisdiction is impermissible when the defendant’s contact with the forum was negligible and, more importantly, not purposeful on their part. Trust company did not purposefully avail itself to the Florida jurisdiction.
World-Wide Volkswagon v. Woodson: Specific jurisdiction. There must be some purposeful act on the part of the defendant in order to support jurisdiction under the minimum contacts test. That the assertion of jurisdiction us consistent with due process, and that the defendant purposefully avail himself of the stare’s benefits is more important than the interests of the forum state when determining the boundaries of jurisdiction. Purposeful availment does not mean to foresee a possibility, but rather that you must reasonably anticipate being haled into court Dissent - Choice of law and convenience of forum for the plaintiff we considered to be the major consideration in determining jurisdiction.
Hall v. Helicopteros Nacionales: The cause of action sued upon is unrelated to the Defendant’s conduct in this forum. This was considered to be a case involving general jurisdiction which carries a higher threshold for satisfying minimum contacts before considering convenience or more general fairness concerns. Dissent -
This was a case of specific jurisdiction and thus there was sufficient minimum contacts to justify jurisdiction in the Texas courts.
Burger King Corp. v. Rudzewicz: D purposefully availed himself to Florida law as was evidenced b~
3) failed to show any duress on the part of P against D in the entering into the contract,
4) the stream of payments into Florida from
5) D failed to show any unconstitutionality in the Florida statute, and
6) D was entitled to use P’s quality control systems and P’s national reputation through their trademark. Dissent - Majority opinion is inequitable because it fails to show how D availed himself to Florida’s laws. Also, this case fails the minimum contacts standard.
Court’s Discussion of Burger King v. Rudzewicz
1) International Shoe Test: Is jurisdiction supported by minimum contacts satisfying traditional notions of fair play and substantial justice?
2) Hanson v. Denckia. Did D purposefully avail himself to the jurisdiction of the court?
3) World-Wide Volkswagon v. Woodson. Did D reasonably anticipate being haled into this jurisdiction’s court?
4) A commercial business should have to show a compelling balance of convenience which must weigh heavily on the side of the commercial activity such that the presence of these other considerations would render jurisdiction unreasonable (Justice Brennan’s rule).
Kulko v. Superior Court: Minimum contacts standard bad not been met and C had not purposefully availed himself to the benefits and protections of the laws of California.
Shaffer v. Heitner: The standard for in personam and in rem jurisdiction should be the same because they both affect the rights of persons. The appropriate test is the Minimum Contacts Test and the court must find that there was a three-way nexus between the defendants, litigation and the forum. There was not any connection between the ownership of the stock and the shareholder’s derivative suit. The forum state was trying to the incidental situs of property as a hostage in order to establish jurisdiction.
SPECIAL BASES OF JURISDICTION
I. Consent
A. Consent Before Suit
1. Express Consent - e.g. Corporations doing business within the state which are typically required to appoint a resident as agent for receipt of service.
2. Implied Consent statutes
B. Implied Consent Making Directors Amenable to Jurisdiction in the State of Incorporation
C. Consent by Raising the Jurisdiction Issue. Then Failing to Follow the Court’s Orders
D. Consent by "General" (as opposed to Special) Appearance
U. Private Contracts Fixing Jurisdiction
A. National Equipment Rental v. Szukhent
B. Formal Selection Clause - Parties may contract, subject to local statutes, specifically that any dispute arising out of their contact will be adjudicated in the courts of a particular place. The agent selected to receive service by the contracting parties need not be known personally by the defendant so long as that agent actually notifies the defendant of the pending lawsuit.
III. Necessity
A. Mullane v. Central Hanover Bank & Trust
B. If there is no convenient forum for the action, then the forum may be a choice by necessity.
IV. Nationwide Contacts Federal statute will state that due to ‘nationwide contact the jurisdictional boundaries between states become meaningless. e.g. sale of securities.
CHALLENGING PERSONAL JURISDICTION
1) By Default Followed by Collateral Attack (Wyman v. Newhouse)
2) By Special Appearance, Motion to Dismiss, or Analogous Procedures
FRCP 12(b) Defenses and Objections. How Presented: Every defense, in law or fact, to a claim for relief in pleading, whether a claim, counterclaim, cross-claim, third-party claim, shall be asserted in the responsive pleading thereto, if one is required, except that the following defenses may at the option of the pleader be made by motion.
1) lack of jurisdiction over the subject matter,
2) lack of jurisdiction over the person,
3) improper venue,
4) insufficiency of process,
5) insufficiency of service of process,
6) failure to state a claim upon which relief can be granted,
7) failure to join a party under Rule 19.
A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined by one or more defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relieL If, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief ean be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgement and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material pertinent to such motion by Rule 56.
process: means used by a court to acquire or exercise its jurisdiction over a person or specific property.
service: delivery of a writ, summons, complaint. etc. by an authorized person to a person who is thereby officially notified of some action or proceeding in which he is involved.
FRCP t2(h)(l) Waiver or Preservation of Certain Defenses: A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process, is waived (A) if omitted from a motion in the circumstances described in subdivision (g) (consolidation of defenses in a motion), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
Harkness v. Hyde: The Shoshonee Indian nation is by Act of Congress a separate territory. Service of D by sheriff in the reservation was illegal, therefore, jurisdiction was not established. Right of D to object to service was not waived by special appearance of counsel, nor was it waived when he proceeded to try the case on its merits after being overruled. Only if the merits are pleaded first, will the D waive the right to object to jurisdiction. (P should have used long-arm statute.)
Baldwin v. Iowa State Traveling Men’s Association: If an opportunity for immediate appellate review is provided, and the D does not utilize that procedure, the opportunity to reassert the jurisdictional objection once a judgement on the merits has been rendered will be waived. The jurisdictional ruling also ‘will be deemed final and binding for purposes of other proceeding (i.e. in other jurisdictions).
NOTICE REQUIREMENTS AND SERVICE OF PROCESS
Due Process Standards
Mullane v. Central Hanover Bank & Trust: Reasonable considerations of economy standard utilized to-determine method of notice. Test requires only a method of service that is reasonably calculated to fulfill its constitutional purposes. Addresses on file: notice by mail. Addresses unknown: publication. Reasonableness standard did not require personal notification.
Miedreich v. Lauenstein: The officer serving process made "a false return of pretended summons". P received default judgement and a sale pursuant to a mortgage foreclosure took place. D sued to set aside foreclosure on the grounds of lack of service of notice. However, court upheld the judgement and stated that D’s recourse was against sheriff’s bond. Original P was free of fraud and collusion with sheriff and did all that the law required in the issue of and attempt to serve process. Otherwise, there would be no protection to the parties who relied on the judicial proceedings importing veracity.
FRCP 4(d)(1): (Service shall be made) upon an individual other than an infant or an incompetent person., by delivering a copy of the summons and of the complaint personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion residing therein or by delivering a copy of the summons and of the complaint to an act authorized by appointment or by law to receive service of process.
Leigh v. Lynton: The court found that D’s wife’s apartment was not his usual place of abode or dwelling as contemplated by FRCP 4(d)(1).
FRCP 4(c): Summons: Service upon a Party Not Inhabitant of or Found Within the State Whenever a statute or rule of court of the state in which the district court is held provides…. for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state, service may be made under the circumstances and in the manner prescribed in the statute or rule.
FRCP4(d)(3): (Service shall be made) upon a ... foreign corporation ... by delivering a copy of the summons and of the complaint to ... a managing or general agent.
Jim Fax Enterprises, Inc. v. Air France (5th Cir. 1981) on rehearing (5th Cir. 1983): Reversed and remanded. The 5th circuit upheld the District Court’s interpretation of FRCP 4(e), bat reversed dismissal because service of process could be accomplished under FRCP 4(d)(3). Case was remanded so that P could attempt service under FRCP 4(d)(3). On rehearing, the court considered recent state authority construing the Texas long-arm statute as applying to claims which arise outside the forum (See Hall v. Helicopteros Nationales) As a result the court reversed its earlier position and upheld service under FRCP 4(e).
Butler v. Butler: The following factors were considered by the court -
(1) Relevant custody statute allowed service. Also, D’s special appearance was a general appearance since he did not put on any evidence to contest jurisdiction.
(2) It was impractical to secure personal service, so the court ordered authorized the substitute service after holding a hearing on the matter. This complied with both due process and the state rule governing substituted service.
(3) The fact that D turned his special appearance into a general appearance does not afford him additional tune to file an answer. His answer could have filed with his sworn special appearance. D filed no answer, thus the TC was authorized to continue with the proceeding.
FRCP 4(2)(C)(ll): (A summons and complaint may be served upon a defendant) by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of notice and acknowledgment conforming substantially to form 18-A and a return envelope, postage prepaid, addressed to the sender.
FRCP 4(d)(1): (Service shall be made) upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
FRCP 4(d)(3): (Service shall be made) upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any ocher agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.
Billy v. Ashland Oil: Because Billy (P) attempted to use the notice and acknowledgment procedure as per FRCP 4(c)(2) (C) (II) which Ashland Oil (D) defeated by refusing to sign the acknowledgment, P must use personal-service mechanisms as enumerated in FRCP 4(d)(1) and FRCP 4(d)(3). Although the court recognized the inequities presented by FRCP 4, it regarded its holding affirming the above to be consistent with the rule, and called for an amendment to correct these deficiencies.
forum non conveniens: common law doctrine that allows the court to dismiss so that the action can be brought in another, more appropriate forum.
Piper Aircraft Co. v. Reyno: This is a ‘balancing act" which is at the discretion of the TC. TC approved dismissal because:
1) witnesses and wreckage were in Scotland lending credence to the theory that Scotland would be a more convenient forum,
2) the necessity of applying both Scottish and American law in an action taking place in the U.S.
3) that a foreign P was not as entitled as a domestic P to U.S. forum, and 4) alternative forum provides an adequate opportunity for real remedy.
28 USC § 1404(a): For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it may have been brought. (28 USC 1 1404(a) takes precedence over forum non conveniens).
28 USC § 1391(a): A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all defendants reside, or in which the claim arose.
28 USC 11391(b): A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as provided by law.
28 USC § 1392: stipulates that if the defendants are residents of different districts of the same state then they may be sued in either district of that state.
Hoffman v. Blaski:. Transfer on motion of D may be made only to those districts where P would have had the right, independent of the wishes of D, to bring the action. Consent by D will not allow transfer to a district where P could not have originally brought suit. Due to the specific language of the patent statute, FDC is granted exclusive jurisdiction.
Lubbock Mfg. Co. v. Sames: D attacked venue in this product liability action on the theory that the cause of action accrued in the county of manufacture, not in the county where the accident took place. Texas Supreme Court upheld venue stating that the occurrence of the harm or injury was a necessary part of the cause of action, and that this part had "accrued" in the county of current venue.
MISCELLANEOUS NOTES
Review all of the forms in Chapter 2 Appendix, George Miller Company v. Compudata, Inc. (the underlying case was handled by Professor Crump). Discovery was restricted to interrogatories and request for admissions.
Components of George Miller Company v. Compudata, Inc.
1) Demand Letter (from George Miller Company)
2) Response to Demand (by Compudata)
3) The Complaint
a) Complaint
b) Jurisdiction, Parties and Venue
c) First Claim
d) Second Claim
e) Prayer for Relief
4) Defendant’s Motion to Dismiss for Lack of Jurisdiction, to Quash Service, and to Dismiss for Improper Venue
5) Plaintiff’s Request for Admissions and Defendant’s Answers
6) Plaintiffs Interrogatories and Defendant’s Answers
7) Plaintiffs Motion to Compel Answers and Impose Sanctions
8) Court’s Order Setting Pretrial Hearing
9) Plaintiffs Brief in Opposition to Motion to Dismiss
10) Defendant’s Answer on the Merits
a) Answer
d) Prayer
11) Settlement Release and Agreement
a) Consideration and Mutual General Release
b) Agreed Dismissal with Prejudice
c) No Admission of Liability; Contract, Not Recitals
d) No Reliance on Released Parties; Acknowledgement
FRCP 11: Attorneys must sign interrogatories and admissions, and are held to have made a reasonable effort in verifying that their client’s answers are truthful.
Plaintiffs brief discusses the law and its application to the facts.
Defendant’s Answer on the Merits
First Defense - Denial of Allegations Contained in Plaintiff’s Complaint
Second Defense- Limitations Defense (Affirmative Defense)
SUBJECT-MATTER JURISDICTION
State courts can be a proper forum for a federal claim, unless federal statute declares that the action is in the exclusive jurisdiction of the federal courts, e.g. patent infringement claims.
Testa v. Katt: Federal laws are not to be considered by the states as if they are laws emanating from a foreign sovereign, i.e. to be ignored by the state if it so desires, but rather the Constitution and the laws passed pursuant to it are the supreme law of the land, and are binding upon all courts, states, and their citizens.
28 U.S.C. § 1331 (the federal question statute): The district courts shall have original jurisdiction over all civil actions arising under the Constitution, laws, and treaties of the United States.
Bell v. Hood: When the petitioner makes a claim arising under the provisions of the Constitution, then the federal courts have jurisdiction. Whether or not the petitioners ultimately recover is a matter of merits, not jurisdiction.
Louisville & Nashville Railroad v. Mottley: An initial complaint that pleads federal law to avoid an anticipated defense does not establish jurisdiction in a federal court.
Merrell Dow Pharmaceutical v. Thompson: Having a federal ingredient in a complaint is not sufficient to support federal jurisdiction. Federal law must give rise to the claim for there to be a federal question, and therefore federal jurisdiction.
The mere fact that there is a ‘federal question’ does not give rise to federal jurisdiction, there must be a claim arisin under a federal statute, treaty, or the U.S. Constitution to establish jurisdiction in the federal court.
Mas v. Perry: There was considered to be covered by 28 US.C. § 1332 (the diversity statute) because one P was a foreign national and the other P was a citizen of Mississippi, while D was a citizen of Louisiana. Note that neither P could be a citizen of Louisiana if they wanted to sue together in federal court.
D also claimed that P1 failed to reach the monetary threshold set forth in 28 US.C. I 1332 because he was awarded only $5,000. Court ruled that the final judgement amount (or settlement amount) is not what is important in qualifying under 28 US.C. § 1332, but rather the amount in controversy as claimed in good faith by P.
28 US.C. 11359 (the collusive parties statute): A district court shall not have jurisdiction over a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of the court.
Kramer v. Caribbean Mills, Inc.: The assignment from a creditor was made solely for the purpose of establishing jurisdiction in a US. federal court, and was without a bona fide business purpose; (Kramer) P was only a nominal party to the lawsuit.
Taylor v. Sandoval: Amount in Controversy- Where injunctive relief is requested, the value of the matter in controversy may be gauged by the value of the right to be enforced or protected by the injunction, and is not limited to the damages claimed by P. The value of the rights at stake need not be shown with absolute certainty.
Amount in Controversy
1) Monetary Claims: The Good Faith Complaint
2) Non-Monetary Claims
a) Value of the Object Test
b) Value of the Right (Injunctive Relief)
c) Loss to the Defendant Test
3) Aggregation Problem
a) Distinct claims made by P can be added (to achieve the monetary jurisdiction threshold) if they can produce a cumulative recovery; but if two alternative claims are asserted for the same damage, they cannot be added.
b) Claims by different plaintiffs cannot be added together to meet the jurisdictional requirement (Zahn v. International Paper Co.)
pendent Jurisdiction: discretionary matter where the court may allow assertion of a nonfederal claim for which no independent jurisdictional ground exists along with a recognized federal claim between the same pasties who are properly before the court, provided that the relationship between the federal claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional case.
United Mine Workers v. Gibbs: The Supreme Court discarded the Harm v. Oursler test, and substituted a two-step test in its place to determine the propriety of exercising pendent jurisdiction.
First, does the court have the jurisdictional power to entertain the claim, i.e. do the federal and nonfederal claims arise from a common nucleus of operative fact?
Second, if the court has the power, would the interests of judicial economy, convenience, and fairness be served by the courts exercising pendent jurisdiction.
Ancillary jurisdiction: power of the court to adjudicate and determine matters that are incidental to the exercise of its primary jurisdiction in an action.
Owens Equipment & Erection Co. v. Kroger: Jurisdiction could not be asserted even though the claim arose out of the same transaction as the main cause for which there was a diversity of citizenship. Assertion of jurisdiction in this case violates the statutory requirement of complete diversity. Ancillary jurisdiction is not proper because the nonfederal claim (claim without diversity) is not logically dependent on the main claim (federal diversity claim). As in the test for the applicability of pendent jurisdiction, the courts look for claims arising from a common nucleus of operative facts when considering ancillary jurisdiction.
Refusal to Exercise Jurisdiction
1) Abstention Doctrine
a) Decision of a constitutional question might be avoided by interpretation of state law (Railroad Commission v. Pullman Co.).
b) Federal decision might unnecessarily conflict with a state governmental affairs (Burford v. Sun Oil Company).
c) When a significant issue of state law as unsettled, the district court may ce7u~5~ the state law question to that state’s courts for an answer before proceeding further with the case.
d) Where there are parallel federal and state proceedings and abstention will reduce the federal workload (very controversial).
2) Domestic Relations Exception
3) Probate Exception
CIVIL PROCEDURE
28 USC. 11441(a): If the FDC has original jurisdiction, then D may remove from the state court to the FDC for the district and division where the case is pending.
28 U.S.C. 11441(b): If the FDC has original jurisdiction, and the claim as based on a federal questions, then the case is removable to the FDC without regard to diversity. If removal as attempted on the basis of diversity, the case cannot be removed if any D is a citizen of the Forum State.
28 U.S.C. § 1441(c): The entire action may be removed whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action. The court has the discretion to remand all non-removable claims.
28 US.C. 11445: Nonremovable Actions
(a) Suits against railroads under the Federal Employer’s Liability Act (FEL4).
(b) Claims against common centers for delay, loss, or injury to shipments under 49 U.S.C. § 11707 unless they are in the amount of $10,000 or more.
(c) Claims arising under state workman’s compensation laws.
28 USC. § 1446: Procedure for Removal
(a) D must file petition in FDC containing the facts which entitle D to removal plus a copy of all process, pleadings and orders.
(b) Petition for removal must be filed within thirty (30) days of the receipt of the instrument (e.g. pleading. motion, etc.) which made the case removable to FDC.
(c) D must put up a surety bond.
(d) D must have given written notice to all adverse parties.
28 U.S.C. § 1447: Procedure After Removal Generally
(a) FDC may issue the necessary orders to effect the removal from state court.
(b) FDC may require D to file copies of all records and proceedings in such state court.
(c) If, at any time prior to final judgement, it becomes apparent that the removal was improper, FDC will remand back to the state court.
(d) Remand is not reviewable by appellate court (unless the court as remanding without concluding the case was improperly removed).
Jong v. General Motors Corp.: Application of 28 U.S.C. 11441 (b),(c) to justify removal to FDC and to deny Ps motion to remand to state court.
American Fire & Casualty Co. v. Finn: To apply 28 US.C. §1441(c), there must be separate and independent claim or cause of action. The fact that D has had a case removed to FDC does not estop them from later challenging the jurisdiction of the court to which that they originally had the suit removed.
Review of 28 US.C. §1441(c):
IF 1) There is a separate and independent claim,
2) Removable if sued upon alone,
3) Joined with other claims which are otherwise non-removable claims. THEN, the case can be removed in its entirety.
HOWEVER, the judge can remand the non-removable claims at his discretion.
THE ERIE DOCTRINE
State Law in the Federal Courts
28 US.C. I 1652 (the Rules of Decision Act): The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.
Swift v. Tyson (US. 1542): The Rules of Decision Act applies only to the state statutes and constitutions. A federal judge sitting in diversity is not obligated to follow the previous decisions of the courts of the state. (i.e. state common law), whose law is being applied. As a result of Swift v. Tyson, courts were free to apply their own conceptions of truth justice aid the Law and disregard state court decisions (Gelpeke v. City of Dubuque).
Black & White Taxicab v. Brown & Yellow Taxicab: The court upheld the lower court decision that Kentucky state law concerning monopolies did not need to be followed since the action involved questions of general commercial concern that were within the competence of the federal courts.
Problems with the Swift doctrine
28 U.S.C. 52071: Rule making generally (the Rules Enabling Act): The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules will be consistent with the Acts of Congress and rules of practice and procedure prescribed by the Supreme Court.
28 US.C. 52072: Rules of Civil Procedure:
The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings and motions, and the practice and procedure of the district courts and courts of appeals of the United States in civil actions.
Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.
Such rules shall not take effect until they have been reported to Congress by the Chief justice at or after the beginning of a regular session thereof but not later than the first day of May, and until the expiration of ninety days after they have been thus reported.
All rules in conflict with such rules shall be of no further force or effect after such rules have taken effect. Nothing in this title, anything therein to the contrary notwithstanding. shall in any way limit, supersede, or repeal any such rules heretofore prescribed by the Supreme Court.
Erie Railroad v. Tompkins: Federal courts in diversity actions must apply the state substantive law (ie. state common law) of the state in which the federal court is located, in addition to the state statutes and constitutions of the jurisdiction in which they are located.
Purposes of the Erie Doctrine
1) Promote uniformity of decisions between state and federal courts.
2) Discourage forum shopping
3) Reduce the likelihood of state/federal conflicts due to the federal courts frustrating state policies, e.g., Black & White Taxicab v. Brown & Yellow Taxicab
CIVIL PROCEDURE
Approaches to the Erie Doctrine
Outcome Determination Test: if a rule was likely to make a difference in the result of a case, then the rule is probably substantive and the state substantive law should be followed Guaranty Trust v. York).
"Absolute" Outcome Determination Test: confined the Outcome D Determination Test to rules that had a strong likelihood or even a certainty of affecting the outcome (Byrd v. Blue Ridge Rural Electric Cooperative).
The "Interest Balancing’ Approach: Classified substance and procedure by the strength of the competing state and federal policies underlying the two different rules, e.g. if the state’s policy was definite and important and the federal interest was slight, then the state rule would be enforced (Byrd v. Blue Ridge Rural Electric Cooperative and Walker v. Armco Steel).
Deference to a Controlling Federal Rule: When the substance-procedure distinction is ambiguous, then deference should be given to the federal rule (Hanna v. Plumer).
Policies-of-Erie Approach - Apply the policies of Erie to the case. If the application of federal law will produce irrational differences in the results and encourage forum shopping, the matter is substantive and the state rule applies. If not, then the federal rule applies Hanna v. P1umer.
Walker v. Armco: The federal rule does not control, and therefore fails to meet the criteria for the Deference to a Controlling Federal Rule Approach. This case appears to have been decided by Outcome Determination Test or the "Interest Balancing" Approach.
None of these approaches have been overruled. The decisions of the court have not been fully insistent and predictable. Be prepared to apply all five approaches on an exam.
In conclusion, it would seem that matters covered by the FRCP are no linger subject to outcome-determination or forum shopping analysis Only when there is no Federal Rule directly governing a disputed matter or when both the federal and state laws can be applied concurrently is it necessary to test the competing state and federal practices against the twin aims of Erie - avoidance of forum-shopping and equitable administration of the laws.
CIVIL PROCEDURE 16
Interstate Choice of Laws
Two Different State Approaches to Choice of Laws (Conflicts of Law)
1) lex loci delicti law of the place of the injury’
2) Most Significant Relationship Test: which state has the most significant relationship occurrence
and the parties involved (advocated by the Restatement (Second) of Conflict
When there is no holding on point (or the holding is reasonably regarded as obsolete), the court must devise a manner in which to determine what state law would be if the state’s high court addressed the issue at hand. The FDC may use intermediate-court decisions as persuasive data to determine how the state’s highest court would decide if confronted with the question. Also, if there is a prior federal diversity case deciding the same issue of state law, then the FDC is bound by that court’s decision.
Federal Common Law
Although Erie makes it dear that there is not any general federal common law, there are still particular instances in which federal common law is applied and the FDC is free to disregard state law in making judicial interpretations. In most federal question cases, federal common law, not state common law applies. For example:
1) Statutory construction of a federal statute.
2) Right to ignore state precedents if the statute serving as the basis for federal question jurisdiction does not treat a problem at all, and the desirability of a uniform rule is plain.
3) Federal common law in interstate disputes
4) United States as a party
a) State common law is not automatically controlling
b) Voluntary adoption of the state rules is permitted.
5) Action with a state as a party
6) Federal common law will generally be applied to federal question issues between private litigants unless the case is such that the FDC does not have expertise, in which case it will defer to state law (e.g., the statutory meaning of children).
7) Conflicts between states.
Federal common law may also be used in diversity cases:
1) Defense based on federal law.
2) ‘Balancing test" applied.
Sometimes the federal courts will borrow analogous state law where there is not any federal law to fulfill the necessary purpose, e.g., the federal use of state long-arm statutes and statutes of limitation.
CIVIL PROCEDURE 17
PLEADINGS
pleading.: the formal allegations by the parties of their respective claims and defenses.
Defenses to an Action
1) Dilatory Pleas a) Flea in Abatement b) Plea in Jurisdiction
2) Peremptory Pleas - Defenses to the Merits
a) Demurrer
b) Traverse
c) Confession and Avoidance
dilatory pleas: a class of common law defenses, intended to cause delay, which were founded on same matter of fact not connected with the merits of the case, but as such might exist without impeaching the right of action itself.
plea in abatement: a common law pleading which, without disputing the justice of Ps claim, objects to place, mode, or time of asserting, e.g., attack based on misjoinder or non-joinder of parties.
misjoinder: the improper joining together of parties to a suit. non-joinder: the failure to join a party to a suit who ought to have been so joined. plea in jurisdiction: common law attack on subject-matter jurisdiction.
peremptory pleas: a class of common law defenses which are usually pleaded to the merits of the action, with the view of raising a material issue between the parties, and with the purpose of defeating Ps action completely and absolutely. Also know. as a plea in bar.
demurrer: an allegation by D, which, admitting the matters of fact alleged by P to be true, maintains nonetheless that they are insufficient to entitle P to relief.
traverse: common law pleading signifying denial.
confession and avoidance common law affirmative defense which bring. other mitigating facts into consideration (defense of new matter).
Steps in a Pleadings War
1) Complaint (F)
2) Peremptory Plea (D)
3) Replication (F)
4) Rejoinder (D)
5) Surrejoinder (F)
6) Rebutter (D) ... ad infinitum ad nauseam.
Each pleading must:
1) Contain only a single issue
2) Not contain duplicity of issues
3) Not constitute a departure, i.e. the pleading has to be responsive to the opponent’s pleading before it, and consistent with its own previous pleadings.
4) Must give color to the opponent’s plea, i.e. it admits the truth of the opponent’s pleading, unless it was a traverse.
CIVIL PROCEDURE 18
general demurrer: a demurrer framed in general terms, without showing specifically the nature of the objection, and which is resorted to when the objection is to a matter of substance.
special demurrer: demurrer which must distinctly specify wherein the defect lies in the structure or form of the opponent’s pleading, or portion thereof.
— of the general issue common law general denial (e.g., not guilty in a trespass action, non assumpsit in an assumpsit action).
detinue: writ which required the return of personalty; allowed only the recovery of the goods, and not damages. Replevin: an action where the owner is entitled to repossess goods from one who wrongfully taken the chattels. Trover: a remedy to recover the value of personal chattels wrongfully converted by another to his own use. debt: common law action which lies to recover a certain specific sum of money, i.e. a liquidated sum. covenant: breach of a contract under seal, generally used with respect to promises in conveyances and other
instruments relating to real estate.
account: common law form used to recover funds from a fiduciary.
ejectment: common law action which lay for the recovery of the possession of land, and for damages for the unlawful detention of its possession.
Wager of law: common law defense where if D took an oath that he did not owe the debt, and he brought with him twelve neighbors (compurgators) who avowed upon their oaths that they believed what he said was true, then D would no longer be liable for the debt.
Test of "Notice" Pleading: Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the P can prove no set of facts in support of his claim which would entitle him to relief. FRCP does not require a cause of action with a factual statement, but rather the pleading must show only that the pleader is entitled to relief.
FRCP 12(b)(6): Motion to Dismiss for Failure to State a Claim Under Which Recovery May De Granted
FRCP 12(e): Motion for a More Definite Statement
FRCP 12(f): Motion to Strike
Motion to strike is similar to, but more narrow than, a motion to dismiss. A motion to dismiss is earner for a judge to understand than a motion to strike.
averment: In pleading, to allege or assert positively.
FRCP 9(b): Fraud, Mistake, Condition of Mind.
In all averments of fraud or mistake. the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred, generally.
FRCP 9(c): Conditions Precedent.
In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
CIVIL PROCEDURE 19
FRCP 9(f): Time and Place.
For the purpose of testing the sufficiency of a pleading. averments of time and place an material and shall be considered like ail other averments of material maner.
FRCP 9(g): Special Damage.
When items of special damage are claimed, that shall be specifically stated.
forma pauperis: the ability to sue in a court without costs due to one’s poverty.
Denials are insufficient to raise an affirmative defense, it must be pled affirmatively. In general the burden of proving an affirmative defense is on the defendant.
FRCP 23.1: Derivative Actions by Shareholders
This rule provides that a shareholder’s derivative complaint "shall be verified".
FRCP 11 Certification:
1) The attorney has read the paper or pleading.
2) The paper or pleading is, "to the beat of his knowledge, information, and belief formed after a reasonable inquiry", well pounded in fact.
3) The paper or pleading has not been interposed for any improper purpose.
Always write a demand letter, not only for the purpose of trying to settle, but also to document your files for FRCP 11 purposes. The majority of FRCP 11 violations are due to a failure to make a reasonable inquiry into the questions of law (i.e. legal research), rather than a failure to make a reasonable inquiry into the questions of fact. The objective standard of FRCP 11 applies to attorneys, clients, and pro se ("or self’) litigants.
FRCP 15: Leave to amend pleadings shall be freely given when justice so requires.
Leave may be granted if:
1) No prejudice would result and request is not made in "bad faith"; and
2) A reasonable judge would decide that there would be no resultant prejudice.
Amendment must be "related back" to the original pleading.
FEDERAL CIVIL PROCEDURE
CIVIL PROCEDURE 20
MULTIPLE PARTIES AND CLAIMS
Third Party Joinder or Impleader (FRCP 14): procedure by which a third party is brought into a suit between P and D, where that third party may be liable, so as to settle all claims in a single action.
FRCP 14: Third-Party Practices
(a) When D May bring in a Third Party Any time after commencement of the action, D as a third-party plaintiff, may bring in a person who is not a party to the action, but who may be liable to D for all or part of P’s claim against D. If done within 10 days of the filing of the original answer then no leave of the court is necessary. Otherwise, leave of the court is necessary.
(b) When P May bring in a Third Party When a counter-claim is asserted against P. P may bring in a third-party under the same circumstances which D would be entitled to do so under this rule.
Permissive Joinder of Parties (FRCP 20): the joining of parties in a single lawsuit for claims arising under the same transactions or occurrences, or involving a question of law or fact common to claims against such parties; such joinder is allowed, but not required.
FRCP 20: Permissive Joinder of Parties
All persons may join in one action as Ps if:
1) They assert any right to relief jointly, severally, or in the alternative,
2) In respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and
3) If any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as Ds if:
1) There is asserted against them jointly, severally, or in the alternative, any right to relief
2) In respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and
3) If any question of law or fact common to all defendants will arise in the action.
Compulsory Joinder (FRCP 19): the mandatory joining of certain parties which are required for the just adjudication of a controversy.
FRCP 19: Joinder of Persons Needed for Just Adjudication
1) Persons to be joined if feasible. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction shall be joined if:
a) in the person’s absence complete relief cannot be accorded among those already parties, or
b) the person claims an interest relating to the subject matter of the action and is so situated that disposition in the person’s absence may:
2) The court may order the person joined, and if they refuse, they will be made a D or an involuntary P.
3) If the joined party objects to venue and joinder of that party would render venue improper, then that person will be dismissed.
4) if the joined party is dismissed, the court will determine if the action should proceed or be dismissed.
5) Factors to be considered by the court in determining if the dismissed party is indispensable are:
6) This rule is subject to the exceptions under FRCP 23 (Class Actions).
FRE 801(c): Hearsay
A statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.
FRE 503: Hearsay Exceptions
G. Present sense impressions
H. Excited utterances
I. Business records
J. Public records and reports
Ralney v. Beech Aircraft (11th Cir. 1916): Opinions, as opposed to facts, in public reports are inadmissible. Note: Overturned by the United States Supreme Court in 1988.
FRCP 49: Special Verdicts and Interrogatories
A. Special verdicts
B. General verdict accompanied by special interrogatories
McLaughlin v. Fellows Gear Shaper Co.: When there is a conflict between the general verdict and the special interrogatories, the trial judge should do one of the following:
1) Send the jury back to arrive on consistent answers,
2) Grant a new trial, or
3) Ignore the general verdict and award the verdict based upon the special interrogatories.
FRCP 51: Instructions to the Jury; Objection
A. Any party may file written requests.
B. The court shall inform the parties of the results before instructing the jury.
C. The court may instruct the jury either before or after the closing arguments.
D. Objections must be made before the jury retires.
E. Counsel is entitled to make the objections away from the jury.
Meagher v. Long Island R.R.: The trial judge charged the verdict incorrectly and the appellant’s counsel was not given the opportunity to make his objections away from the jury, but before they retired. Appellate court held that this was reversible error.
Purpose of Requiring that Objections be Made Prior to the Jury Retiring for Deliberations
1) Prevent jury from deliberating under erroneous instructions, and
2) Prevents parties from riding the verdict.
FRCP 52: Findings by the Court
The trial judge shall make specific findings of fact separately from the court’s conclusions of law for purposes of review.
recusal: the process by which a judge is disqualified, or disqualifies himself, from hearing a lawsuit because of interest or prejudice.
28 USC § 144: Affidavit Requesting Removal of Judge for Bias or Prejudice [Motion for Recusal]
28 USC § 455: Disqualification of Justice, Judge, Magistrate, or Referee in Bankruptcy
Trial to the Court Without a Jury
1) Relaxation of formalities regarding evidence and proof
2) Recusal as a means of insuring an impartial tribunal
CIVIL PROCEDURE 34
DIRECTED VERDICT AND POST-TRIAL MOTIONS
Judicial Procedures
1) Judgement on the Verdict
2) Directed Verdict
3) Judgement Notwithstanding the Verdict
4) New Trial
3) Relief from Judgement
Judgement on the Verdict: the reconciliation of issues of law with the jury’s finding of fact to arrive at a verdict
directed verdict: moving party is entitled to judgement as a matter of law prior to the case being turned over to a jury because the court in a jury trial, without consideration by the jury, because the facts elicited during the trial, together with the applicable law, make it clear that the directed verdict is the only reasonable verdict that could be returned, The motion is made at the close of evidence.
Judgement notwithstanding the verdict: after the jury has returned a verdict against the movant, the judge enters a verdict for moving party because they are entitled to judgement as a matter of law. The Motion for a Judgement Notwithstanding the Verdict is a preserved Motion for Directed Verdict. The motion is made after the jury verdict or after the jury has been discharged (after failure to reach a verdict).
motion for a new trial: seeks to have the court remedy injustices on the pounds that may range from trial errors to newly discovered evidence to a verdict against the peat weight of evidence.
FRCP 50(a): Motion for Directed Verdict
A party who moves for a directed verdict at the dose of evidence offered by en opponent may offer evidence in the event the motion is denied, A motion for directed verdict is not a waiver of trial by jury. A motion for directed verdict shall state the specific grounds therefore.
FRCP 50(b): Motion for a Judgement Notwithstanding the Verdict
A party must make a motion for directed verdict in order to preserve the right to make a motion for a judgement notwithstanding the verdict. The motion must be made no later than 10 days after judgement is entered, or, if the jury was unable to reach a verdict, no later than 10 days after the jury has been discharged.
Texas: A motion for directed verdict is not a required for a motion for a judgement notwithstanding the verdict.
FRCP 59: New Trials; Amendment of Judgments
A. Grounds: A new trial may be granted to any or all parties and on all or part of the issues in a trial by jury or in an action tried without a jury for any reasons heretofore panted in the courts of the United States. On a motion for a new trial in en action tried without a jury, the court may open the judgement if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgement.
B. Time for Motion: Not later than 10 days after the entry of the judgement.
C. Time for Serving Affidavits [when a motion for a new trial is based upon affidavits
1. Movant - Filed with Motion for a New Trial.
2. Opposing Party- Not later then 10 days after service of the motion, An extension for a period not exceeding 20 days may be granted by the court for good cause or by stipulation of the parties.
3, The court may permit reply affidavits
D. On Initiative of the Court
1. Not later than 10 days after the entry of the judgement.
2. The court shall specify the grounds for the motion.
E. Motion to Alter or Amend a Judgement: Not later then 10 days after the entry of the judgement.
CIVIL PROCEDURE 37
I. Scope of Appellate Review
A. Errors of law: "Avoidance" Doctrines L Harmless Error
a. Judicial Teats
(1) Inconsistency with Substantial Rights (Federal Courts)
(2) Probability of Erroneous Results (Tens State Courts) b. Appellant has burden o( proof.
c. Courts will sometimes "fudge" the rules to achieve a just result.
2. Preservation of Error
a. Contemporaneous Objection [generally required]
b. Plain Error doctrine
B. Errors in Fact Finding
1. Jury Trial
a. The standard is the same as for a Judgement Notwithstanding the Verdict
b. Appellant is entitled to judgement as a matter of law because no reasonable jury could find for the Appellee given the facts.
2. Trial Before the Court
a. Clearly Erroneous doctrine
b. There must be no plausible way to uphold the trial judge’s findings of fact.
c. Appellate court cannot rediscover the facts without reversible error.
II. Filing an Appeal
A. Filing Deadlines (FRAP 4)
1. Within 30 days of judgement (60 days if United States is a party).
2. May be extended another 30 days at the court’s discretion.
B. Filing of a Bond for the Costs of the Appeal (FRAP 7)
C. Ordering of the Transcript (FRAP 10)
D. Transmission of the Record (FRCP 11)
E. Docketing of the Appeal (FRCP 12(a))
F. Filing of the Record (FRCP 12(b))
G. Briefs (FRCP 28)
1. Appellant (Blue)
a. Table of Contents
b. Statement of Issues
c. Statement of the Case
d. Argument
e. Short Conclusion
2. Appellee’s Brief (Red)
a. Table of Contents
b. Statement of Issues
c. Statement of the Case
d. Argument
e. Short Conclusion
3. Intervenor’s Brief or Amicus Curiae (Green)
4. Reply Brief (Gray)
S. Appendix to Briefs (White)
III. Appealable Orders
A. Final Judgement Rule (28 USC I 1291)
1. Purpose: To prevent appeals of interlocutory (interim) issues.
2. Coopers and Lybrand v. Livesay