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  1. Rule 8(a) - Complaint
    Claim for relief

    • 1.  SMJ
    • 2.  Short and plain statement of the claim
    • 3.  Demand for relief
  2. Rule 8(b) - Response
    3 responses              

    • a. Admit
    • b. Deny
    • c.  Do not know (8b5) – if matter in your control (ex. Contract)
    •                                                                        
    • i.  Failure to deny is an admission
    •      1. True on anything except damages
  3. Rule 8(c) - Affirmative Defenses
    • a.  Injects a new fact; denial does not
    • b.  Ex. SOL, SOF, res judicata,
    • c.  Raising something, if I’m right, I win.
    • d.  Must plead – put in ANSWER; if not you’ll waive
  4. Rule 8(d) - Pleading to be concise, direct; alternative statements; inconsistencies
    8(d)(2) - may set out two or more statement of a claim or defense alternatively or hypothetically.

    8(d)(3) - a party may state as many separate claims or defenses as it has, regardless of consistency.
  5. Rule 8(e) - Pleading must be construed so as to do justice.
    who construes the pleading - judge/court
  6. Rule 8(a)(3) - demand for relief
    Demand for relief south, which may include relief in the alternative or different types of relief (law + equity).
  7. Fact pleading
    issuable, essential, material facts needed to support claim
  8. Gillispie v. Goodyear Service Stores
    plaintiff's complaint alleged that def trespassed and assaulted plaintiff but with no facts in support of allegations.
  9. Notice Pleading
    sufficient notice to the defendant so they would be able to respond.

    Purpose to liberalize pleading requirements to lower barrier of entry into litigation system.
  10. Dioguardi v. Durning
    Immigrant with limited English filed a complaint about goods at an auction that he paid for was sold to another person and was seeking recovery of costs.
  11. Federal moves toward fact pleading with...
    Twombly and Iqbal
  12. Twombly
    Plaintiff allege anti-trust due to parallel business practices (included with conspiracy and discrimination cases).

    Reinterpretation of Conley's no set of facts language/standard.

    Must have plausible possibilities in order to establish the set of facts.

    Defines "plausible" as enough facts to raise reasonable expectation that discovery will reveal sufficient evidence.

    Holding applicable to all civil complaints or just anti-trust complaints?
  13. Conley
    Complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that P can prove "no set of facts" to support his claim of entitlement to relief.

    If you have no set of facts in your pleading that could arise a cause of action would fail, but if there is something then all good.  Very liberal view.
  14. Iqbal
    Plausibility standard = asks for more than sheer possibility that defendant acted unlawfully.

    Iqbal states Twombly's plausible standard applies in all civil cases.

    Two prong test:

    • 1) Collect and disregard threadbare mere legal conclusions of law.
    •     -threadbare - factual allegations need not be presumed true by court.
    •          -complaint not specific enough for court and are making allegations or bald conclusions of law.

    2) Examine remaining NON conclusory statements and see if they are a plausible claim for relief (w/ assumption that they are true).

    Dissenting opinion:  majority improperly equated plausible with probable.
  15. Rule 9(b)
    Pleading with particularity for fraud and mistake.  Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

    Exception to twiqbal.

    Heightened pleading standard.

    Discourages people claiming fraud and deterring frivolous pleading.
  16. 1995 Public Securities litigation reform act
    Super-heightened pleading standard under Rule 9(b).
  17. Twiqbal
    Modern rule:

    • 1.  eliminate legal conclusions
    • 2.  P must include allegations as to all the elements of his claim.
    • 3.  each of those elements must be alleged with sufficient factual detail to make the claim 'plausible.'
    • 4.  the court must use their experience and common sense to determine if it is plausible. (subjective)
  18. Webb v. Nashville
    Tennessee supreme court rejected new Twiqbal standards.
  19. Rule 9(g) - Special damages
    got to give detail to have to plead with specificity.

    -must plead special but not general damages

    -General damages provable as a logical and necessary result of the injury.
  20. Rule 54(c)
    Damages awarded can exceed damages pled.
  21. Rule 12
    • Governs responses
    • -must respond w/in 21 days with
    •     -motion (not a pleading) request for a court order, or
    •     -answer (pleading - admit, deny, & affirmative defenses)

    • *if allegations not denied in answer, deemed admitted (risk default).
    • *without knowledge or information denials and matters presumptively within defendant's knowledge.
    •     -if party lacks knowledge must so state and the statement has the effect of a denial.
    • *answer has effect on discovery, summary judgment and evidence at trial.
    • *affirmative defenses injects a new fact, not a denial, raising something new, and if correct P cannot win.
  22. American Nurses (1986)
    Plaintiff alleged discrimination based on comparable worth.

    Demurrer is improper unless "beyond doubt."  Less than Conley's "no set of facts."

    Dismissal is improper if glimmerness of viable legal theory. 

    Need not set forth "Complete & Convincing Picture" of claims.
  23. Rule 12(b)
    Defenses by motion:

    • 1.  lack of smj
    • 2.  lack of pj
    • 3.  improper venue
    • 4.  insufficient process
    • 5.  insufficient service of process
    • 6.  failure to state a claim upon which relief can be granted.
    • 7.  failure to join a party under Rule 19.
  24. Demurrers under CCCP
    Hybrid of motion to dismiss and motion for more definite statement.
  25. Motion to Dismiss - Jones v. Clinton
    Not device to test allegations "truth" or supporting "evidence."
  26. What must be put in first Rule 12 response, or it will be deemed waived?
    12(b)

    • 2.  lack of pj
    • 3.  improper venue
    • 4.  insufficient process
    • 5.  insufficient service of process
  27. What Rule 12 defense responses can be raised at anytime?
    Rule 12(b)

    • 6.  failure to state a claim upon which relief can be granted.
    • 7.  failure to join under Rule 19.
  28. What defense can be raised at anytime because it is never waived?
    Rule 12(b)(1) - subject matter jxn
  29. Rule 12(e)
    Def may motion for a more definite statement that is so vague or ambiguous that defendant cannot reasonable prepare a response.
  30. Rule 12(f)
    Motion to strike any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

    • Court may act:
    • 1.  on its own, or
    • 2.  motion made by party w/in 21 days
  31. Rule 15
    Amended and Supplemental Pleadings
  32. Rule 15(a)
    Amendments by right, with opposing party's consent, or by leave of court

    • Reasons:
    • 1.  Add new parties
    • 2.  Add defendants
    • 3.  New causes of action
    • 4.  New allegation or additional fact in support.
    • 5.  New types of relief - punitive, injunction
    • 6.  Change admit, deny or add or drop affirmative defense
    •       a.  difficult to prove
    •       b.  discovery costs not worth pleading affirmative defense.
  33. Rule 15(a)(1) - Amendment by right
    • May w/in 21 days after service
    • Before answer is filed
    • If responsive pleading, w/in 21 days after service of responsive pleading.
  34. Rule 15(a)(2) - Amendment by stipulation or leave of court
    • stipulation - all parties must consent
    • leave of court - should freely give leave when justice so requires.  Court's discretion
  35. Limited grounds to deny leave to amend include:
    Dilatory motive, which is strategic delay to amend, and undue prejudice, which takes into account the point of time in trial and whether there would be undue prejudice in granting motion.
  36. Rule 15(c)
    Relation back of Amendments

    An amendment to a pleading relates back to the date of the original pleading when:

    • a.  law provides the applicable SOL allows for relation back.
    • b.  claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out in the original pleading, or
    • c.  the amendment changes the party or the naming of the party against whom a claim is asserted, if rises out of T/O and meets summons, the party to be brought in by amendment:
    •    i.  received such notice of the action that it will not be prejudiced in defending on the merits; AND
    •   ii.  knew or should ave known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
  37. Rule 15(d)
    Supplemental Pleadings

    • On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the leading to be supplemented.
    • -court may order that the opposing party plead to the supplemental pleading within a specified time.
  38. Rule 11
    To deter frivolous pleading.

    • 11(a) - must have attorney's signature, or a party personally if the party is unrepresented.
    • 11(b) - attorney/party certify that to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
    •     a.  not presented for any improper purpose, such as to harass, cuase unnecessary delay, or needlessly increase cost of litigation.
    •     b.  claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.
    •     c.  the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
    •     d.  the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information
  39. Violation of Rule 11(b)
    Rule 11(c) -

    If after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.
  40. Safe Harbor Provision
    11(c) - Motion is not filed with the court.  Served to opposing counsel to give 21 days opportunity to review and decide whether to withdraw counts.  After 21 days, the motion can be filed with the court including a declaration stating that motion had been served on opposing counsel.

    *court can impose sanctions on its own (sua sponte) via an "order to show cause."
  41. SLAPP Suits
    Strategic lawsuit against public participation

    Intended to silence/discourage defendant's public criticism o plaintiff's actions/project.

    Large project and a group of people in community are concerned about the impact.  The developer knows the group doesn't have a lot of money so file a lawsuit against them individually, in order to get project done.
  42. Anti-SLAPP motion
    motion to strike, if successful will strike down the complaint.

    • 1.  Def must prove constitutionally protected activity.
    • 2.  Plaintiff must prove they're likely to prevail on merits.
  43. Pre 2003 revisions, anti-SLAPP motions improper if plaintiff's claim brought in Public Interest
    • -found that there was abuses with the anti-SLAPP motion when things had a public interest.
    • -2003 provision said that if the SLAPP suit is for a public venture then can't do Anti-SLAPP motions, private is still possible.
  44. Rule 18(a)
    Joinder of Claims

    Plaintiff can bring as many alternative claims against defendant unrelated to the original complaint.
  45. Rule 42(a)
    Consolidation

    If actions before the court involve a common question of law or fact, the court may join or consolidate.

    No right to consolidate.  Asking for the court's discretion to consolidate for efficiency and uniform judgments.

    Avoids unnecessary cost and delay.
  46. Rule 42(b)
    Separate Trials

    For convenience, to avoid prejudice or to expedite and economize, the court may order separate trials.
  47. Rule 13(a)
    Compulsory counterclaim

    def must assert any claim arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

    use it or lose it:  bring it in now or you will lose your right to bring up the issue another time.

    "if logical and immediate relationships"
  48. Rule 13(b)
    Permissive Counterclaim

    A pleading may state as a counterclaim against an opposing party any claim that is NOT compulsory.  *does not have to arise out of the same transaction or occurrence.

    Can if you want, but if you don't, you're not barred like compulsory claims.

    Cross-claim permitted if "logical relationship"
  49. Rule 13
    Counterclaim

    benefit:  Def does not need to file a separate lawsuit.

    might not want to bring counterclaim, in order to resolve original suit quickly, could open up to a world of expansion that you don't want or give more resources to other side.
  50. Rule 13(g)
    Crossclaim against a co-party, includes plaintiff and defendant.

    Any claims that related to the underlying occurrence that is the subject matter of the original action or any in-rem claims, but limited to those types of claims.
  51. Supplemental jxn in crossclaims
    -1367a – common nucleus of operative fact -1367b – only over claims by plaintiff
  52. Rule 20
    Permissive joinder of parties if

    • logically related to series of occurrences
    • common question of law or fact
    • plaintiff and defendant don't need to be interested in obtaining or defending against all the relief demanded.  Only according to the rights and liabilities.
  53. Historical limits on joinder of parties
    only if damages common to all or caused by all
  54. Consolidation of lawsuits under Rule 42
    mechanism to help ensure efficiency and uniform judgments.
  55. Rule 21
    Misjoinder and Nonjoinder of parties

    Not a ground for dismissing an action.

    on motion or on its own the court may at any time on just terms, add or drop a party, or sever any claim against a party.
  56. Rule 19(a)
    Required joinder of parties

    • 1)  Required party - a person who is subject to service of process and whose joinder will not deprive the court of smjxn must be joined as a party if:
    •      a.  in that person's absence, the court cannot accord complete relief among existing parties; or

         b.  that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:

    •           i.  as a practical matter impair or impede the person's ability to protect the interest; or
    •           ii.  leave an existing party subject to the substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

    2)  Joinder by court order.  If a person has not been joined as required, the court must order that the person be made a party.  A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.

    3)  if joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.
  57. Rule 19(b)
    When joinder is not feasible

    If required person cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed amon the existing parties or be dismissed.

    Considers:

    • 1.  Extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;
    • 2.  The extent to which any prejudice could be lessened or avoided by:
    •      a.  protective provisions in the judgment
    •      b.  shaping the relief; or
    •      c.  other measures

    • 3.  whether a judgment rendered in the person's absence would be adequate.
    • 4.  whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
  58. Indispensible party
    When court dismisses case and can't go forward to fashion relief then the necessary absentee becomes indispensable.
  59. Prelude to FRCP required parties
    traditional concepts of necessary and indispensable parties.
  60. Bank of CA (1940)
    joinder may not be required if parties are necessary but not indispensable.
  61. Impleader
    Permissive rather than compulsory

    Rule 14

    Clam by defending party (plaintiff/defendant) against absentee who may be liable.

    Def's liability doesn't need to be established before impleader is proper.  If possibility it's ok.

    • By Right if filed early, by leave of court if filed later
    •   i.  within 10 days after answer filed, don't need to seek leave of court because it's by right.
    •   ii.  after 10 days after the answer if filed, must seek leave of court.
  62. 4 factors considered by court for impleader
    • 1.  deliberate delay?
    • 2.  would impleading unduly delay or complicate the trial?
    • 3.  would impleading prejudice the 3d party def?
    • 4.  does the 3d party complaint have a claim upon which relief can be granted? (standard for motion to dismiss)
  63. Stake
    property or money
  64. Stakeholder
    party holding the stake
  65. claimant
    are the parties that are arguing for the stake
  66. Interpleader
    Rule 22

    permits a person in the position of a stakeholder to require two or more claimants to litigate among themselves to determine which, if any, has the valid claim where separate actions might result in a double liability on a single obligation.
  67. Pure/True Interpleader
    where the stakeholder is not a party in the lawsuit. 

    stakeholder has no interest in the lawsuit at all.
  68. Actions "in the nature" interpleader
    Stakeholder is denying there is an action to pay out the stake (has an interest).
  69. Rule Interpleader
    • by plaintiff (stakeholder) who may be exposed to double or multiple liability may be able to interplead even though.
    •   1.  lack of common origin or independent and adverse rather than identical; or
    •   2.  plaintiff denies liability in whole or in party to any or all of the claimants (in the nature).

    By def can interplead through crossclaim or counterclaim.
  70. Statutory Interpleader
    28 USC 1335, 1397, 2361

    1335:  minimum diversity - "two or more adverse claimants, of diverse citizenship"

    Stakeholder has to deposit money with the court (not in rule interpleader)

    • 2361 - provide explicitly the need for nationwide service of process
    •   a.  restrain parties from instituting an action in any state or US court proceeding until a judgment is determined.
  71. State farm
    interpleader device discourages "race to judgment" against insure (stakeholder)

    interpleader not all purpose bill of peace for claims/parties on related to bond.
  72. Intervention
    Rule 24

    Can be by right or permissive
  73. Intervention by right
    court must permit to anyone who:

    • 1.  is given an unconditional right to intervene by a federal statute; or
    • 2.  claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
  74. Permissive intervention
    Court may permit anyone who:

    • 1.  is given an unconditional right to intervene by a federal statute; or
    • 2.  has a claim or defense that shares with the main action a common question of law or fact.

    • -court's discretion
    • -may be denied if intervention would unduly delay or prejudice original parties.
  75. Smuck
    interests covered by frcp 24 not limited to monetary/pecuniary interests
  76. §1367 supplemental jurisdiction rules for Rule 24 and Rule 19
    the anomaly and its fix
  77. Name representatives
    Plaintiff in class action lawsuits

    Party of the lawsuit.
  78. Putative class
    plaintiff in the outset of the lawsuit is a named representative of a proposed class action.

    proposed class with a proposed representatives, what the class covers and the outset.  Attorneys propose for the putative class to be certify.
  79. Class Member
    everyone else is a member. 

    not parties but their interests are represented with the plaintiff.

    has privity and is bound by the judgment and precludes them from filing suit against defendant.
  80. Certification
    In a class action, takes a putative class and become actual class members, and representatives and have a class action.  Approval by the court.

    Case is not class action until court certifies class, and court cannot proceed.

    If win certification, means can proceed with class action.
  81. Rule 23(a) prerequisite
    • 1.  numerosity - class is so numberous that joinder of all member is impractical
    •    -25 class members often too few, 40 often enough.
    • 2.  commonality - some common question of law/fact to the class
    • 3.  typicality - claims or defense are typical of the claims or defense of the class.
    • 4.  representative adequacy - representative parties will be fairly and adequately protected.
    •   a.  1995 PSLRA - lead plaintiff designation in securities fraud class action.  The person with the largest financial stake should be named class representative.
  82. Rule 23(b) - Types of Class actions
    • 1.  prejudice - establish incompatible standards of conduct (disuniformity).
    •         a.  impede the rights of the interest of other members not parties to the case.

    • 2.  injunctive or declaratory relief
    •   a.  wanting to change policies or change prospective behavior.  Ex.  discrimination or civil rights.

    • 3.  Damages
    •     i.  additional requirements
    •          a.  question of law/fact predominate (heightened standard).
    •          b.  class action superior to any other courses of action.
    •    ii.  class member may reserve the right to opt out of the class and retain your own right to sue.  must affirmatively act.
  83. Castano v. American Tobacco Co.
    TC certified a class of all nicotine-dependent persons in the U.S.

    predominate:  there were differing questions of law and fact especially because a claim of fraudulent inducement is subjective (each person must have been induced).

    superiority:  def would be more likely to settle.  Differing state laws re:  class actions or fraud.  There's difficulty managing so many claims and sending notice.
  84. Class action dismissal/settlement subject to court approval
    to avoid "sweetheart" deals.
  85. Class members have 2 chances to opt out
    • 1.  at the time of certification
    • 2.  at the time of settlement
  86. Rule 23(c)(1)(c)
    power of court to alter/amend certification order before judgment

    court has the right to decertify or even adjust the class throughout the litigation
  87. Wal-mart
    Debates over relavence of disparate impacts in discrimination cases

    claims of centralized policy in which gender bias guided personnel choices

    5-4 majority holds failure to satisfy FRCP 23(a) commonality prerequisite

    unanimous court fids FRCP 23(b)(2) certification improper due to "bay pay"

    dissent finds evidence that gender bias suffused defendant's corporate culture

    both demand something "more" at preliminary stages of civil litigation
  88. Hansberry
    adequate representation when conflicting interests among class members
  89. Look to representatives not class members
    diversity in citizenship and amount in controversy.
  90. Rule 23(e) Settlement, Dismissal
    Have to ask the court to dismiss the case if you want to withdrawal or dismiss, even if you think it is a frivolous lawsuit.

    Court acts as a protector of the members who are not there, why you need to seek approval for everything.
  91. Rule 23(f) Appeals
    permits immediate appellate review of class certifications (14 days);

    can appeal an order granting or denying class-action certification.
  92. Interlocutory appeals
    Appeal that occurs before the trail.  Can appeal on certification stage, once a case is certified the cost can be great, so have right to appeal after certification.
  93. 2005 CAFA:  New Aggregation rules & minimal rather than complete diversity
    open broader doors to get class actions out of state courts

    look at class for amount in controversy not individual claims of representatives.  Look at damages of the class, focus on the aggregated amount of the class - exceed $5 million.

    Diversity:  complete diversity (no P from same place as any D) v. minimal diversity (on D different from P):  now look towards minimal div.

    If filed in state court can file for notice to removal if you want to be heard in Fed court.
  94. Shutts:  Horizontal Choice of Law:  State-class members relationship required to apply state law
    Vertical choice is when going state to federal law.

    but horizontal is we know state law is to be applied but what state law to apply

    applied kansas law to all the claimants and nothing really was related to the state of kansas.

    violated due process to most of the members since kansas law did not apply to the other parties.
  95. Motion for Summary Judgment
    Looks outside the four corners of the complaint--> evidence from discovery

    Purpose is to pierce the pleading and assess proof to determine the need for trial

    • Material facts may hinge upon witness credibility
    •   a.  lundeen:  witness was disinterested, 3d party in singapore
    •   b.  cross:  MSJ inappropriate where inference which the parties seek to have drawn deals with questions of motive, intent and subjective feelings and reactions.
  96. Permanent Injunctive Relief
    After judgement, once fully litigated, ultimate decision.
  97. Preliminary injunctive relief
    is anything ales of injunction relief issue, provisional injunction prior to final decision.

    can happen at any time before judgment

    trying to preserve the status quo of the parties as the trail moves forward.
  98. Sufficient grounds for preliminary injunction
    • 1.  likely to prevail on the merits of the case; heightened showing you will prevail before discovery.
    • 2.  balance of harms:  weighs in favor of party seeking injunction.  Good name or integrity was harmed, damages, pecuniary interests.
    •     i.  some type of nonreversible harm.  If sever and irreparable (slander, bio diversity, public health)(money won't fix) more likely, but if they can be made whole at end of trail thorough compensation or repay - less likely to grant preliminary injunction.
    •     ii.  look at issues around the injunction.  Harm for party seeking the injunction and harm for the party opposing the injunction.  Burden is on the party seeking the injunctive relief.
  99. Rule 26(a)(1) - Initial Disclosure
    w/o discovery request, provide to the other party; information and names of parties intended to be used to prove a claim or defense.

    • a.  names of witnesses whose testimony will be supplied live or through deposition.
    • b.  evidence of docs the parties intend to offer

    within 14 days of the parties' 26(f) conference
  100. Rule 26(e)
    supplement disclosure and responses

    if you later find out it was incomplete or wrong, you must fix it.
  101. Rule 26(b)
    Discovery scope & limits

    1.  unless otherwise limited by ct. order, parties may obtain discovery regarding any non-privileged mater that is relevant to any party's claim or defense.  Relevant information need not be admissible at the trial of the discovery.
  102. Rule 26(b) exceptions
    1.  undue burden - unreasonably cumulative or duplicative, expenses of discovery outweighs its likely benefit.

    • 2.  privileged material (attorney-client privilege)
    •   a.  communication
    •       i.  from a client to a potential client.
    •       ii.  make to a lawyer (or her agent)
    •       iii.  acting in her capacity as a lawyer
    •       vi.  in private
    •       v.  for the purpose of seeking legal advice or services.

    • 3.  Attorney work product
    •    a.  qualified:  not discoverable unless party shows substantial need for the materials and shows that it cannot, w/o undue hardship, obtain their substantial equivalent by other means.
    •   b.  if ct orders discovery, can impose a protective order to protect the attorney's mental impression
    •   -forbid disclosure, specify terms of discovery, prescribe a particular discovery method, forbid inquire into certain terms, designate who may be present for discovery, or requires that a deposition be seated.

    • 4.  Rule 26(b)(4) - Trial preparation: experts
    •     a.  experts who may testify may be deposed.
    •     b.  experts employed only for trial preparation:  can only be deposed on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts/opinions on the same subject by other means.
  103. Claiming privilege:  Rule 26(b)(5)
    When a party withhold info otherwise discoverable by claiming that his information is privilege or subject to protection as trial preparation material, the party must:

    • a.  expressly make the claim and
    • b.  describe the nature of the documents and do so in a manner that, without revealing the information itself, will enable other parties to assess the claim.
  104. Methods of discovery
    • Rule 30:  deposition by oral examination
    • Rule 32:  use of deposition at trial
    • Rule 33:  interrogatories
    • Rule 34:  producing documents
    • Rule 35:  physical and mental examinations
    • Rule 36:  Request for admissions
    • Rule 37:  Failure to make disclosures or to cooperate in discovery; sanctions
    • Rule 37(a)(5):  payment of expenses; protective orders
    • Rule 37(b):  failure to comply with a court order
  105. Rule 30
    Deposition by Oral Examination

    • a.  a party may, by oral questions, depose any person (including a party) without leave of the court, except if the parties have not stipulated to the deposition and it would result in
    •   -more than 10 depositions taken
    •   -deponent already deposed
    •   -party seeks to take the deposition before the time specified in Rule 26(d)
    •   -the deponent is confined in person
    •  
    •   -the deponent's attendance may be compelled by subpoena under rule 45.

    b.  a party who wants to depose a person must give reasonable written notice; must have time and place of deposition if known, deponent's mane and address.
  106. Rule 32 - Use of deposition at trial
    • a.  can be used at trial if the party was present or represented at the deposition and had notice of it.
    •   -it is used to the extent it would be admissible under the FRE if the deponent were present and testifying.
    •   -the use is allowed by rule 32(a)(2)-(8)
    • b.  unavailable witnesses - may depose of a witness, whether or not a party if the court finds that the witness is dead, more than 100 miles away from trial or hearing, can't testify because of age, illness, infimity or imprisonment, the party offering the deposition could not procure the witness' attendance by subpoena.
    • c.  exceptional circumstances make it desirable to permit the deposition to be used.
  107. Rule 33 - interrogatories
    • a.  under 25 unless otherwise stipulated.
    • b.  30 days to respond
    • c.  must be answered by party whom they are directed, or if that party is a non-person, by any officer or agent, who must furnish the information available to the party.
    •   -not objectionable because it asks for an opinion or contention.
    •   -parties may be required to compile information for an interrogatory unless its too burdensome.
    • d.  contention interrogatories
  108. Rule 34
    Producing Documents

    • can request inspection or production
    • must describe w/ reasonable particularity
    • anything kept in the ordinary course of business
  109. Rule 35
    Physical and mental examinations

    requests a court order; only for very good cause
  110. Rule 36
    Request for admissions

    • a.  a party may serve on any other party a written request to admit the truth or any matters within the scope of rule 26(b)(1) relating to
    •    -facts, the application of law to fact or opinions about either, and
    •    -the genuineness of any described documents.
    • b.  respond w/in 30 days, or matter is presumed admitted.
    • c.  can sometimes be withdrawn rule 36(b)
    • d.  used to narrow the issues further and determine what is actually contested before trial; avoid compound questions.
  111. Rule 26(e)
    Duty to supplement discovery responses that are incomplete or inaccurate that would be a material issue in the case.
  112. Rule 37:  Failure to Make Disclosures or to cooperate in discovery; sanctions
    1.  any party may move to compel discovery if there is first a good faith attempt.

    • a.  motion for an order to party must be made in the court where action is pending
    • b.  motion for an order to anon party must be made int eh court where the discovery is or will be taken.
  113. Rule 37(a)(4) - evasive or incomplete discovery, answer or response
    must be treated as a failure to disclosure, answer or respond.

    may move to compel
  114. Rule 37(a)(5) - payment of expenses; protective orders
    if the motion to compel is granted, the losing party must include a payment of expenses and attorney fees.

    if the motion if denied, the court may issue a protective order.
  115. Rule 37(b):  Failure to comply with a court order
    • 1.  sanction in the district where the deposition is taken...contempt.
    • 2.  sanctions in the district where the action is pending....court can affect actual actions
    •    a.  facts being taken as est.
    •    b.  prohibiting the disobedience party from supporting or opposing designated claims or defense
    •    c.  striking pleadings.
    •    d.  dismissing the action.
    •    e.  rendering a default judgment
    •    f.  contempt of court
  116. Rule 37(c) - Failure to disclose, to supplement an earlier response, or to admit
    • 1.  failure to disclose or supplement
    •   a.  may result in the party not being able to use the evidence he didn't disclose, or
    •   b.  may order payment of reasonable expenses
    •   c.  any of the sanctions under rule 37(b)(2)(A)(i)-(vi)
    • 2.  Failure to admit
    •   -if the requesting part later proves a document to be genuine or a matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses incurred in making the proof.
  117. Res Judicata (the thing has been decided)
    Claim preclusion

    same claimant against same defendant

    rule against splitting a claim.

    claimant only gets one opportunity to assert a claim.  "one bite of the apple"

    if one tries to sue a second time under the same claim, it will be dismissed (claim preclusion)

    ii)    Claim preclusion claim that “should have been raised” in first case between same parties

    • iii)   Claim preclusion first suit + second suit arose from same “operative facts” or
    • “transaction/occurrence”

    iv)   Claim preclusion: also applies to counterclaims (FRCP 13 “compulsory counterclaims”)

    • (1)  Compulsory counterclaim: arose out of the same transaction so if you want to bring it,
    • bring it
  118. Issue preclusion
    collateral estoppel

    it precludes relitigation in case 2 of a particular issue that was litigated and determined in case 1.

    does not dismiss case 2, but narrows the scope of what must be litigated in case 2.
  119. res judicata/issue preclusion - 3 policies that support doctrine
    • 1.  interest in finality.
    • 2.  def has a right to repose-to know that she cannot be sued repeatedly on the same claim.
    • 3.  interest in consistency - different result if litigated multiple times.
    • 4.  interest in efficiency.
  120. CA’s “primary rights theory” of res judicata:
    different, sort of
    • (1)  Not really a rights theory, not saying of you have different COA or damages that it is a
    • different right that allows you to bring a different type of case

    (2)  What they are saying is there is a primary crux of what you are alleging

    (3)  Be aware that the language used is different in CA
  121. One type of order entitled to preclusive effect
    • 1.  must be valid
    • 2.  must be final judgment - ends litigation on the merits and nothing left for the court but to execute judgment.
    • 3.  must be on merits - what is disputed
  122. issue preclusion requisites
    • 1.  valid judgment on the merits
    • 2.  same issue presented in case 2 must have litigated and determined in case 1.
    • 3.  issue must have been essential to case 1.
    • 4.  only be against party involved or privy to case 1.
    • 5.  court in case 2 must assess mutuality

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