Civil Procedure

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hayleyrayscott
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288149
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Civil Procedure
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2014-11-05 18:45:51
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Civil Procedure
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Civpro
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  1. FRCP 1
    They should be construed in and administered to secure the just, speedy, & inexpensive determination of every action and proceeding.
  2. Plaintiff's Opening Moves: (2)
    • 1) Complaint (FRCP 8)
    • 2) Notice (FRCP 4)
  3. The Complaint

    8(a)(2):

    Parts (2)
    "A short and plain statement of the claim showing that the pleader is entitled to relief."

    • 1) FAIR NOTICE
    • 2) SUBSTANTIVELY SUFFICIENT
  4. The Complaint

    8(a)(2)
    Part 1: FAIR NOTICE

    Fair notice of...
    ...and...
    CASE & RULE:
    • Fair notice of the nature of the claim
    • and the ground on which it rests

    • CASE & RULE: Sweirkiewitz;
    • a complaint needs a short and plain statement of the claims showing why they are entitled to relief.
  5. The Complaint

    8(a)(2)
    Part 2: SUBSTANTIVELY SUFFICIENT

    Allege...
    Low...
    Move from...
    Case:
    Case:
    Twombly is...
    Specific...
    • Allege facts that the law recognized as being actionable.
    • Low standard, pro-plaintiff
    • Move from SPECULATIVE-->PLAUSIBLE (Twombly)
    • Case: Twombly; throws out "no set of facts", replacing it with plausibility test
    • Case: Iqbal; many allegation are conclusory, so court 1) Strike conclusory and 2) Look at remainder of complaint to determine if it moves from speculative-->plausible
    • Twombly is universal
    • Specific allegation, not bare assertions
  6. The Complaint

    FRCP 8(a)(2)
    Policy question?
    • Merits v. Technicalities
    • Role of judges as gatekeepers
  7. FRCP 4
    Provides in general constitutionally adequate notice.
  8. Notice (4)

    MUST FOLLOW...
    _______ includes notice...
    _______ not...
    DUE PROCESS

    • DP: notice reasonably calculated, afford them an opportunity to present their objections
    • DP: NOT guaranteed, NOT most effective
  9. NOTICE (4)

    EXCEPTIONS:

    4(e)
    CASE:

    4(f)
    CASE:
    • 4(e)-"Unless federal law provides otherwise, an indiv. may be served...consistent with state law."
    • SOOO state law must be consistent with DUE PROCESS, must follow constitutional provisions
    • CASE: Mullane; must comply with FRCP and Constitution to provide reasonably calculated notice

    • 4(f)-"Unless federal law provides otherwise...may be served outside US."
    • Not about ACTUAL notice, just comply with federal rules (just, speedy, inexpensive)
    • CASE: Rio; FRCP notice is sufficient, do not have to exhaust all requirements of 4(f)
  10. Defendant's Opening Moves: (2)
    • 12 Motion (Lose, must file answer)
    • Answer
  11. 12 Motions

    Opportunity to...
    Can make...
    Merits:
    All others:
    • Opportunity to attack complaint
    • Can make multiple defenses
    • Merits: 12(b)(6)
    • All others: technicalities
  12. 12 motions

    12b1-7
    • 1-Lack of subject matter jurisdiction
    • 2-Lack of personal jurisdiction
    • 3-Improper venue
    • 4-Insufficient process
    • 5-Insufficient service of process
    • 6-Failure to state a claim upon which relief can be granted (failure to comply with FRCP 8)
    • 7-Failure to join a party under Rule 19
  13. 12 motions

    12b6
    Failure to state a claim upon which relief can be granted (Failure to comply with FRCP 8)

    MERITS
  14. 12 motions

    Rulings:

    Granted (2)
    Denied
    • Granted: 1) With prejudice (case over) 2) W/o prejudice (lost, but go refile)
    • Denied
  15. 12 motions

    12(e)
    12(e)-A more definite statement
  16. 12 motions

    12(f)

    Ex.
    Ex.
    12(f)-Strike a pleading

    • Ex. Insufficient defense, lacking merit, scandalous
    • Ex. "Mr. Brown was very friendly with his secretary."
  17. 12 motions

    Why file 12(e) (more definite statement) or 12(f) (strike pleading) if generally not successful? (3)
    • 1) Legitimate 
    • 2) Delay
    • 3) Not possible for P to respond
  18. The Answer

    FRCP 8

    Must be...
    1 (of 2 musts...other is "assert any defenses")
    • Must be fundamentally responsive to the complaint.
    • 1) Admit 2) Deny 3) Without sufficient info (effect of denial)
  19. The Answer

    FRCP 8

    What if an answer does not admit, deny, or claim without sufficient info? (2 views)
    Do none=admitted

    BUT courts are SPLIT on whether to uphold this or give leave to amend.
  20. The Answer 

    FRCP 8

    CASE:
    CASE: General Dynamics; UNACCEPTABILITY of a response other than admit, deny, lack knowledge (cannot just generally deny an allegation, judge showed mercy and allowed D to amend answer)
  21. The Answer

    FRCP 8

    MUST...(2)
    • 1) Be fundamentally responsive to the complaint
    • 2) Assert any defenses (can use 12b motions for this)
  22. The Answer

    FRCP 8

    Must...
    1) Be fundamentally responsive to the complaint
    2) 

    Must state...
    TWIQBAL...
    CASE:
    • 1) Be fundamentally responsive to the complaint
    • 2) Assert any defenses (can use 12b motions)

    • Must state in short and plain terms its defenses
    • TWIQBAL applies equally to pleading of defenses as it does to pleading of complaint (applies to 8b language as 8a language)
    • CASE: Racick; Plausibility standard applies to complaints and affirmative defenses.
  23. Amending the Pleading

    FRCP 15

    When something is...
    Fix...
    Outside...(2) 15(a)(2)
    • When something is wrong with complaint, to amend you can...
    • Fix automatically within 21 days
    • Outside this window of time, you need: 1) Opposing party's written consent or 2) Judge's leave to amend
  24. Amending the Pleading

    FRCP 15

    15(a)(2)

    When justice so requires? (5)

    None of 5?
    • 15(a)(2)-"...a party may amend its pleading only with the opposing party's written consent or the court's leave.
    • The court should freely give leave when justice so requires."

    • Foman issues:
    • 1) Undue Delay
    • 2) Bad faith
    • 3) Dilatory motive (delay)
    • 4) Repeated failure to cure deficiency 
    • 5) Undue prejudice (futility-no point: SOL, relating back)

    None of 5? SHOULD give leave to amend; intended to be liberal and broad
  25. Amending the Pleading

    FRCP 15

    CASE:
    CASE: Williams v. Citigroup; If you do not meet Twiqbal standard (8a & 8b), case is not over-you can move for leave to amend
  26. Amending the Pleading 

    FRCP 15

    Relating back and SOL problem (Futility)

    15(c)

    AN AMENDMENT RELATES BACK WHEN:
    a) The law...
    b) The amendment...
    c) The amendment...

    CASE:
    15(c)

    • AN AMENDMENT RELATES BACK WHEN:
    • a) The law that provides the applicable statute of limitations allows relation back
    • b) The amendment asserts a claim or defense that arouse out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading
    • c) The amendment changes the party or the naming of the party against whom a claim is asserted...

    CASE: Tran; Bribery claim does not relate back to back pay issue
  27. Policing Pleadings and Motions 

    FRCP 11

    11(a)
    11(b)
    11(d)
    • 11(a)-Requires signature
    • 11(b)-Documents applied to-every pleading, motion, and other paper
    • 11(d)-Does NOT apply to Discovery
  28. Policing Pleadings and Motions

    FRCP 11

    11(b) VIOLATIONS
    1-4
    11(b) VIOLATIONS

    1) "It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation" (subjective, what party was thinking)

    2-4) Objective unreasonableness; even if subjective good faith, does not save you from discretionary

    • 2) "Claims, defenses, and other legal contentions are warranted by existing law"
    • CASE: Frantz; problems of evidentiary support and wrongly accusing Cotter (warranted by existing law, 2&3), no reasonable inquiry into the law; each claim must have sufficient support under 11

    3) "factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery"

    4) "Denials of factual contentions are warranted on the evidence..."
  29. Policing Pleadings and Motions

    FRCP 11

    11(c)
    11(c)-After 11(b) violation, court MAY...

    Discretionary, not mandatory, permissive
  30. Policing Pleadings and Motions

    FRCP 11

    11(c)(2)
    11(c)(2)-Motion for sanctions made by OPPOSING PARTY

    21 day safe harbor provision
  31. Policing Pleadings and Motions

    FRCP 11

    11(c)(3)
    Motion for sanctions SUA SPONTE, on court's own initiative

    NO safe harbor provision

    CASE: P&E; Since no 21 day safe harbor under sua sponge motion for sanctions, COA relied on abuse of discretion taking "subjective good faith" as a fact-->only used when no safe harbor; dissenters say plain meaning (TWO VIEWS)
  32. Policing Pleadings and Motions

    FRCP 11

    Purpose: (2)
    • 1) Deterrence against lawyers
    • 2) No intended to necessarily be punitive or compensatory
  33. Jury Trial

    FRCP 38(a)

    Amendment?
    7th Amendment-In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be PRESERVED, and no fact tried by a jury, shall otherwise be reexamined in any court of the US, than according to the rules of common law.
  34. Jury Trial

    FRCP 38(a)

    Congress can...
    38(a)-Right Preserved. The right of trial by jury as declared by the 7th Amendment--or as provided by federal statute--is preserved to the parties inviolate.

    Congress can enact a statute that provides for a jury, but can never take away that right.
  35. Jury Trial

    FRCP 38(a)

    Test for Statutory Action (2)

    Law:
    Equity:

    CASE:
    • 1) Nature of Issues involved
    • Compare the statutory action to 18th century actions brought in the courts of England prior to the merger of the courts of law and equity

    • 2) Remedy sought
    • Determine whether remedy sought is law or equitable in nature
    • 2 WINS EVERY TIME, 1 DOESN'T MATTER

    • Law: Money, torts, contracts-->Jury trial
    • Equity: Things that are not money; injunctions, giving seniority rights, money is equity if restitutionary-->No jury trial

    CASE:Chauffeurs; Union said most like a truss beneficiary while respondents said most like attorney malpractice; collective bargaining issue was legal. Remedy was legal, so JURY TRIAL
  36. Jury Trial

    FRCP 38(a)

    HYPO: Pat sues Danny in negligence following a car accident. Pat seeks compensation for medical bills paid as well as future medical bills. Jury trial?
    YES

    • LAW: asking for remedy of money, so jury trial
    • Tort=law every time

    ***AS LONG AS SHE MADE A DEMAND 38(b)***
  37. Jury Trial

    FRCP 38(a)

    HYPO: Pat sues Danny for negligence for B/Kx. She asks the court to compensate her for the breach. Jury trial?
    • YES
    • LAW: B/Kx
    • Contracts, generally law every time

    ***AS LONG AS SHE MADE A DEMAND 38(b)***
  38. Jury Trial

    FRCP 38(a)

    HYPO: Pat sues Danny for B/Kx. She asks the court to enforce the terms of the Kx. Jury trial?
    • NO
    • Equity: INJUNCTION, asking the court to do something, so no jury trial
  39. Jury Trial

    38(a)

    38(b)
    38(d)
    38(b) Demand. Must make jury demand, usually in complaint.

    38(d) Waiver. A party waives a jury trial unless its demand is properly served and filed.
  40. Jury Selection

    FRCP 47/48

    Some people...
    Some people...
    Rest:
    • Some people disqualified automatically
    • Some people are eligible, but excused for personal reasons (vacation, hearing problems)
    • Rest: POOL
  41. Jury Selection

    FRCP 47/48

    48(a)
    48(a) Number of Jurors. 6-12
  42. Jury Selection

    FRCP 47/48

    47(a)

    Federal:
    State:
    • 47(a)-Examining Jurors.
    • The court MAY permit the parties or their attorneys to examine prospective jurors or MAY itself do so. If the court examines the jurors, it MUST permit the parties or their attorneys to make any further inquiry it considers proper, or MUST itself ask any of their additional questions it considers proper.
    • Federal: usually judge
    • State: usually attorneys
  43. Jury Selection

    FRCP 47/48

    VOIR DIRE
    Lawyers try...
    Challenges: (2)
    VOIR DIRE

    Lawyers try to corrupt jurors, get them on your side, tell your story and GET RID OF PEOPLE THAT SUCK

    Challenges: 1) For Cause Challenge 2) Preemptory Challenge
  44. Jury Selection

    FRCP 47/48

    VOIR DIRE

    For Cause Challenge:Number? When? FRCP? How?
    For Cause Challenge:

    • Unlimited
    • Can be at any time
    • FRCP 47(c)-Excusing a Juror. During a trial or deliberation, the court MAY excuse a juror for good cause.
    • How? Prejudice-try to get them to admit they are prejudice
  45. Jury Selection

    FRCP 47/48

    VOIR DIRE

    Preemptory Challenge: FRCP? Number? Why?

    MUST articulate...
    Preemptory Challenge:

    • 47(b)-The court must allow the number of preemptory challenges provided by 28 USC §1870
    • Limited-3
    • Why? I just do not like you
    • MUST articulate race neutral rationale for dismissing a juror (if asked)
  46. Jury Selection

    FRCP 47/48

    VOIR DIRE

    Preemptory Challenge:
    OK PC's:
    JUST NOT...
    • OK PC's:
    • Age
    • First generation America
    • LDS
    • Wearing a rolex
    • Green Party
    • Cop/hate cops
    • Long hair
    • You smell
    • JUST NOT RACE OR GENDER
  47. Jury Selection

    FRCP 47/48

    VOIR DIRE

    Preemptory Challenges

    Cannot be based on...(2)
    • 1) RACE
    • 2) GENDER
  48. Jury Selection

    FRCP 47/48

    VOIR DIRE
    Preemptory Challenge: Policy Concerns? (2)
    • Policy Concerns:
    • 1) Jurors are affected by race-based decisions
    • 2) Jurors have a right to serve in civil cases (litigants can raise claims themselves)
  49. Jury Selection

    FRCP 47/48

    VOIR DIRE

    Preemptory Challenge: State actor analysis (private parties, but subject to constitutional constraints considering...)
    • State actor analysis:
    • 1) The extent to which the actor relies on governmental assistance and benefits.
    • 2) Whether the actor is performing a traditional governmental function.
    • 3) Whether the injury caused is aggravated in a unique way by the incidents of governmental authority.
    • CASE: Edmonson v. Leesville; used 2/3 PC's on black jurors, although private P and D, state actor analysis proves subject to constitutional constraints in this case (civil cases)
  50. Jury Selection

    FRCP 47/48

    VOIR DIRE
    Preemptory Challenges:
    Courts MUST entertain...
    Courts MUST entertain a challenge to a private litigant's racially discriminatory use of preemptory challenges in civil trial.
  51. Motions for Judgment as a Matter of LAW

    FRCP 50(a)
    • 1) If a party has been fully heard on an issue...and...
    • 2) the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on the issue, the court MAY:

    Grant motion for JMOL
  52. Motions for Judgment as a Matter of LAW

    FRCP 50(a)

    Parallel:
    Denied...?
    CASE:
    Case continued...
    Parallels 56 (no genuine dispute of material fact)

    Denied...? go to jury or judge for bench trial 

    CASE: Reeves; For JMOL, court should review all the evidence in the record; draw reasonable inferences in favor of nonmoving party; may NOT make credibility determinations or weigh evidence

    Reeves continued... The court should give credence to "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses."
  53. Jury Instructions 

    FRCP 51

    51(a)
    51(b)
    51(c)
    • a) Requests. Party MAY draft jury instructions
    • b) Instructions. Court MUST inform parties of proposed instructions...before giving to jury; Court MUST give parties an opportunity to object; Court MAY instruct the jury at any time before jury is discharged
    • c) Objections. MUST make timely objections.
  54. Jury Instructions 

    FRCP 51

    51(d)
    AE:
    PE:

    More...
    Suggested PE factors: (4)

    MUST...
    d) Assigning error, plain error. 

    AE:A party may assign error for...reading instruction wrong, failure to give instruction. 

    • PE: Court MAY consider PE in instructions that as not been preserved in 51d1 (AE) if the error affects substantial rights.
    • MORE DEFERENTIAL than abuse of discretion
    • Suggested PE factors: Obviousness of mistake, importance of error, cost of correcting it, impact on nonparties

    ***Must object right away; if not, subject to PE and extremely deferential***
  55. The Verdict

    General:
    Specific:
    Bad for...
    Forces...
    General: "We find in favor of D/P, damages=..."

    • Specific: Series of questions, yes or no, which lead jury to either continue or end
    • Bad for P, lots of opportunities for D to win
    • Forces jury to confront the law they are given through jury instructions
  56. Bench Trials

    Judge...
    Can have...(2)
    • Judge ALONE
    • Can have 1) Advisory Jury 2) Special Master
  57. Bench Trials

    Advisory Jury:
    Don't...
    Give...
    Waste...
    • Advisory Jury:
    • Don't decide anything
    • Give advice, take or not
    • Waste of money either way so not favorable
  58. Bench Trials 

    Special Master:
    FRCP:
    • Special Master:
    • FRCP 53-Expert who helps the judge, who may not necessarily be experienced in the area
  59. Bench Trials

    52(a) (2 parts)
    • 52(a)-
    • Court must find the facts specially and state its conclusions of law separately 
    • Judgment on partial findings-->JMOL for bench trial (still must be fully heard)
  60. Bench Trial

    Verdict Timing:
    Jury:
    Bench:
    • Jury: Immediate
    • Bench: could be months
  61. Renewed Motion for Judgment as a Matter of Law
    FRCP 50(b) (JURY)/52(b) (BENCH)

    50(b)
    Timing:
    Standard:
    • 50(b) Jury RJMOL.
    • Within 28 days of entry of judgment
    • Standard: 50(a)-reasonable jury would not have a legally sufficient evidentiary basis to find for the party
  62. Renewed Motion for Judgment as a Matter of Law
    FRCP 50(b) (JURY)/52(b) (BENCH)

    52(b)
    Timing: 
    Motion MAY...
    • 52(b) Bench Trial JMOL.
    • Timing: 28 days entry of judgment
    • Motion MAY accompany motion for new trial under 59
  63. Renewed Motion for Judgment as a Matter of Law

    FRCP 50(b) (JURY)/52(b) (BENCH)

    TO FILE:
    • TO FILE:
    • MUST have filed JML (50a/52a) before, then can RJMOL
  64. Motions for a New Trial (MNT)

    FRCP 59

    59(a)
    • 59(a)-MAY grant new trial on SOME or ALL issues
    • For ANY reason that has heretofore been granted
  65. Motions for a New Trial (MNT)

    FRCP 59

    GROUNDS (4)
    • GROUNDS:
    • 1) Verdict against the weight of evidence (Excessively large verdict)
    • 2) Damages are excessive (Too big or small)
    • 3) For other reasons, the trial was not FAIR to the party moving (misbehavior by court, parties, juries, new evidence, impermissible things during trial)
    • 4) Questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury
  66. Motions for a New Trial (MNT)

    FRCP 59

    Jury got money wrong: (2)
    • 1) Remittur: too much money, all we do in federal court
    • Court tells P got too much money, so accept something less or new trial
    • 2) Additur: too little money, active in state court, not federal
    • Not enough money, so more or new trial
  67. Motions for a New Trial (MNT)

    FRCP 59

    Concerns: (2)
    • Concerns:
    • 1) Check on crazy juries
    • 2) Thinking about cost/benefit analysis; 50-cheap, doesn't cost time or money, 59-expensive, new jurors, evidence, time
  68. Motions for a New Trial (MNT)

    FRCP 59

    Moving parties often ask for...
    Moving parties often ask for 50(b) RJMOL and in alternative 59 of it doesn't get first one.
  69. Motions for a New Trial (MNT)

    FRCP 59

    50(c)
    50(c)-If courts grant 50(b) RJMOL, it must also grant or deny 59 MNT
  70. Motions for a New Trial (MNT)

    FRCP 59

    59(b)
    50(d)

    59(d)
    • 50(b) 28 days after entry of judgment (jury)
    • 50(d) 28 days after entry of judgment (bench)

    59(d) New trial on court's initiative SUA SPONTE; MAY after giving notice and opportunity to be heard, within 28 days
  71. Motions for a New Trial (MNT)/RJMOL

    FRCP 59, 50(b)

    ON APPEAL

    50(e)
    Review...
    Arguing...
    Want court to...
    CASE:
    • 50(e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal 
    • Review de novo on appeal-->question of law
    • Arguing as a matter of law you should have won because reasonable jury...
    • want court to change the verdict, REVERSE JUDGMENT
    • CASE: Unitherm; D filed 50(a) before verdict, but no 50(b) renewal. 50(a) cannot be appealed UNLESS it is renewed by 50(b)
  72. Motions for a New Trial (MNT)/RJMOL

    FRCP 59/50(b)

    ONLY order to appeal:

    Or else...?
    • 50a (JMOL)
    • verdict
    • 50b (RJMOL)
    • 59 (MNT)
    • appeal

    Or else YOU LOSE IT (50(b))
  73. Relief from a Judgment or Order-Last Chance at DC

    FRCP 60

    60(a)
    • 60(a) Right to challenge a clerical error.
    • Wrong math on damages, wrong name on verdict
    • When this happens, go straight to 60(a), no need to get 50a/b denied
  74. Relief from a Judgment or Order-Last Chance at DC

    FRCP 60

    60(b)...(6)
    60(b) MAY relieve party from final judgment...

    • 1. Mistake, inadvertance, surprise, excusable neglect
    • 2. Newly discovered evidence
    • 3. Fraud, misrepresentation, misconduct by opposing party
    • 4. Judgment is void
    • 5. Judgment satisfied, released, or discharged
    • 6. ANY REASON JUSTIFIES RELIEF
  75. Relief from a Judgment or Order-Last Chance at DC

    FRCP 60

    60(b) 1-3:

    60(b) all about...
    Reserved for...
    CASE:
    60(b)1-3: Made no more than 1 year after entry of judgment (mistake, inadvertence, surprise, excusable neglect, new evidence, fraud, misrep., misconduct by opposing party)

    • All about FINALITY
    • Reserved for EXTREME CASES
    • CASE: Ackerman; circumstances do not show failure to appeal was excusable pursuant to 60b6 because not extraordinary; over a year so cannot use excusable neglect, even though court thought it was; 60b6 not met because could have piggybacked bro's appeal, should not have trusted ICE officer
  76. Relief from a Judgment or Order-Last Chance at DC

    FRCP 60

    When 50a (JMOL) and 50b (RJMOL) denied-->
    Clerical error:
    -->60(b)

    Clerical error: go straight to 60(a)
  77. Discovery

    FRCP 26

    Court...
    Broad:
    Mutual...
    • Court mediated search for documents necessary to build a case
    • Broad: The deposition-discovery rules are to be accorded a BROAD and LIBERAL treatment
    • MUTUAL KNOWLEDGE of all RELEVANT FACTS gathered by both parties is essential for proper litigation
  78. Discovery

    FRCP 26

    Timeline (5)
    • 1. Discovery Planning Conference (parties) 26(f)
    • 2. Joint Discovery Report & Initial Disclosures 26(a) (ID requires each party to disclose their witnesses and docs used to support claims/defenses) (ID within 14 days of DPC)
    • 3. Scheduling Conference (from Judge) 16(c)
    • 4. Scheduling Order (from Judge) 16(b)
    • 5. Discovery starts
  79. Discovery

    FRCP 26

    26(d)(2)
    26(d)(2)-Methods of discovery may be used in any sequence.

    Depositions usually come last
  80. Discovery

    FRCP 26

    TYPES (6)
    • 1) Requests for Production (RFP)
    • 2) Interrogatories
    • 3) Request for Admission
    • 4) Oral Depositions
    • 5) Written Depositions
    • 6) Physical/mental exam
  81. Discovery

    FRCP 26

    Types: Request for Protection
    FRCP:
    Type of Info:
    Limit on # requests:
    Court approval:
    Ex.
    • FRCP: 34, 35 (45-nonparties)
    • Type of Info: electronic, paper
    • Limit on # of requests: UNLIMITED
    • Court approval: No
    • Ex. Any and all docs concerning customer confusion between DC's products and Gotham Garage's products.
  82. Discovery

    FRCP 26

    Types: Interrogatories
    FRCP:
    Type of Info:
    Limit on # requests:
    Court approval:
    Ex.
    • FRCP: 33
    • Type of Info: Written questions asking parties questions (written answers)
    • Limit on # of Requests: 25, including subparts
    • Court approval: No
    • Ex. Please describe in detail the basis for DC Comic's claim to damages.
  83. Discovery

    FRCP 26

    Types: Request for Admission
    FRCP:
    Type of Info:
    Limit on # requests:
    Court approval:
    Ex.
    • FRCP: 36
    • Type of Info: Admission, denial, or lack of knowledge (parties)
    • Limit on # of requests: None, but local rules can limit
    • Court approval: No
    • Ex. Admit that DC Comics does not sell motor vehicles.
  84. Discovery

    FRCP 26

    Types: Oral Depositions
    FRCP:
    Type of Info:
    Limit on # requests:
    Court approval:
    Lots of...
    • FRCP: 27, 28, 30, 32, 45
    • Type of Info: Oral Testimony (any person)
    • Limit on # of Requests: 10 per side
    • Court approval: No
    • Lots of client prep ahead of time
  85. Discovery

    FRCP 26

    Types: Written Depositions
    FRCP:
    Type of Info:
    Limit on # requests:
    Court approval:
    Not...
    • FRCP: 31, 32, 45
    • Type of Info: Oral testimony (any person)
    • Limit on # of Requests: Included in 10 per side
    • Court approval: No
    • Not very common
  86. Discovery

    FRCP 26

    Types: Physical/Mental Exam
    FRCP:
    Type of Info:
    Limit on # requests:
    Court approval:
    Show...(2)
    • FRCP: 35
    • Type of Info: Exam
    • Limit on # of Requests: UNLIMITED
    • Court approval: Yes; show in controversy and good cause
  87. Discovery

    FRCP 26

    Scope: (4)
    • 1) Relevance
    • 2) Proportionality
    • 3) Privilege
    • 4) Work Product
  88. Discovery

    FRCP 26

    Relevance and Proportionality

    26(b) two-tier discovery process:

    When a party...
    Up to parties...
    1) Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense (attorney-managed)

    2) For good cause, the court may still order discovery of any matter relevant to the subject matter involved in the action (court managed) 

    When a party objects that discovery goes beyond the relevant claims or defenses, the court gets involved to determine if relevant, and if NOT, whether good cause exists.

    Up to parties to argue if relevant to 1) claim or defense or 2) subject matter
  89. Discovery

    FRCP 26

    Relevance and Proportionality

    26(b) two-tier discovery process:
    What is the good cause standard that allows discovery of things relevant to the subject matter? (3)

    Scope...
    • Good cause standard: The court may permit broader discovery in a particular case depending on the 
    • 1) Circumstances of the case
    • 2) The nature of the claims and defenses
    • 3) Scope of discovery requested

    Scope of discovery should be determined according to the reasonable needs of the action; FLEXIBLE
  90. Discovery

    FRCP 26

    Relevance and Proportionality

    26(b) two-tier discovery process:

    What is relevance?
    26(b)...RELEVANT if discovery appears reasonably calculated to lead to discovery of admissible evidence
  91. Discovery

    FRCP 26

    Relevance and Proportionality

    26(b)(2)(c)

    (3)
    COURT LIMITS DISCOVERY

    26(b)(2)(c)-Courts can limit discovery if...

    • 1) Unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive
    • 2) Party seeking discovery has ample opportunity to obtain the info by discovery in the action
    • 3) Burden or expense of proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues
    • PROPORTIONALITY
  92. Discovery

    FRCP 26

    Relevance and Proportionality

    26(b) two-tier discovery process:
    CASE:
    CASE: Cooper Tire; relevant to claim or defense because of broad theory of the case, Cooper wanted 26b2c3 burden/benefit-court said no
  93. Discovery

    FRCP 26

    Relevance and Proportionality

    26(b)(2)(b)
    26(b)(2)(b)-Electronically Stored Information

    • A party need not provide discovery of ESI from sources the party IDs as not reasonably accessible because of undue burden or cost
    • On a M2C or PO, the party from whom discovery is sought must show that the info is not reasonably accessible because of undue burden or cost. 
    • If that showing is made, the court may NONETHELESS order discovery from such sources if the requesting party show good cause, considering the limitations of 26(b)(2)(C).
    • Court may specify conditions for such movement (Cost movement)
  94. Discovery

    FRCP 26

    Relevance and Proportionality

    26(b)(2)(b) ESI:
    Accessibile: (3)
    Inaccessible: (2)
    • Accessible: 1) Active on-line storage (hard drives) 2) Near-line data (robotic storage devices, optical disks) 3) Offline storage/archives (stored disks)
    • Inaccessible: 1) Backup tapes 2) Erased, fragmented or damaged data
  95. Discovery

    FRCP 26

    Relevance and Proportionality

    Other good cause factors: (7)
    • 1) Specificity of discovery request
    • 2) Quantity of information available from other and more easily accessed sources
    • 3) Failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources
    • 4) Predictions as to the importance and usefulness of the further information
    • 5) The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources
    • 6. The importance of the issues at stake in the litigation
    • 7. Other relevant considerations (MONEY)
  96. Discovery

    FRCP 26

    Relevance and Proportionality
    ESI
    37(e)
    • 37(e) Document Retention Policy. 
    • Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI lost as a result of routine, good-faith operation of an electronic information system.
    • NOT Spoliation: destroying stuff in advance of litigation
  97. Discovery

    FRCP 26

    Relevance and Proportionality

    ESI
    CASE:
    CASE: Aubuchon; The docs were inaccessible, so court must consider 26b2c issues and 7 good cause factors, held requested info should be produced because although inaccessible, movant established good cause to compel them to produce.
  98. Discovery

    FRCP 26

    Privilege and Work Product

    Attorney Client Privilege: (2)
    Simple Elements:
    CASE:
    • ACP: 
    • 1) Confidential communications made by a client to his lawyer for the purpose of obtaining legal advice
    • 2) Any communication from an attorney to his client when made in the course of giving legal advice, whether or not that advice is based on privileged info from the client. 
    • Elements: Communication b/t client and lawyer, secret

    CASE: Hickman; Interrogatory requesting interviews lawyer took from the crew, which were publicly available; ACP elements were not met here (third parties, gathering factual info/not legal advice) but clearly RELEVANT-->Work Product Privilege
  99. Discovery

    FRCP 26

    Privilege and Work Product

    Work Product Privilege: 26(b)(3)(a)
    The fact...
    Promotes...
    Not even...
    • The fact that something is relevant and not protected by ACP does not mean you have to produce it; something a lawyer created in anticipation of litigation is not producible 
    • Promotes the adversary system directly by protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation
    • Not even the most liberal discovery theories can justify unwarranted inquiries into the files and mental impressions of an attorney
  100. Discovery

    FRCP 26

    Privilege and Work Product

    Work Product Privilege: 

    26(b)(3)(a)

    Can be overcome...(2)
    CASE:
    a) Documents and tangible things generally protected, NOT factual knowledge or prepared in anticipation of litigation.

    Can be overcome if party shows 1) substantial need for the materials to prepare the case AND cannot, without undue hardship, obtain their substantial equivalent by other means. 

    CASE: Hickman; 4 survivors testified publicly about what happened, so no way P could show they had a substantial need and couldn't get it without undue hardship...so Protected by work product privilege
  101. Discovery

    FRCP 26

    Privilege and Work Product

    Work Product Privilege: 

    Even if...

    26(b)(3)(b)-
    • Even if movant gets discovery owing to the other party showing substantial need and undue hardship (26b3a), STILL cannot get core work product
    • 26(b)(3)(b)-Still cannot get core work product; must protect against disclosure of mental impressions, conclusions, opinions, or legal theories of a party's attorney concerning litigation
  102. Discovery

    FRCP 26

    HYPO: Witness interviewed by F has died. 
    Substantial Need:
    Undue Hardship:
    • Substantial Need: Yes, if no other way to get info and nothing else out there
    • Undue Hardship: Dead

    SO DISCOVERABLE
  103. Discovery

    FRCP 26

    HYPO: Witness interviewed by F no longer remembers what happened by the time of her deposition.
    Substantial Need:
    Undue Hardship:
    • Substantial Need: Yes, if unavailable and no other way to access info
    • Undue Hardship: Memory loss, no way to get it

    SO DISCOVERABLE
  104. Discovery

    FRCP 26

    HYPO: A witness interviewed by F has related different versions of the events to different people.
    Substantial Need:
    Undue Hardship:
    • Substantial Need: Maybe to discredit witness, but hard to show if witness is still accessible to you, no matter what story they say
    • Undue Hardship: Not obviously a hardship

    NOT DISCOVERABLE
  105. Discovery

    FRCP 26

    HYPO: A witness interviewed by F is willing to be deposed--but only in Abu Dhabi to which he recently moved. Traveling to Abu Dhabi and back would cost $7,000 and take four days.
    Substantial Need:
    Undue Hardship:
    • Substantial Need: If witness is crucial to the case
    • Undue Hardship: Cost, although it is their job and they are expected to spend money to build a case

    MAYBE DISCOVERABLE
  106. Discovery

    FRCP 26

    HYPO: Suppose F has in his possession pictures taken within an hour of the accident by the tug owner's general counsel, who was called to the scene of the accident.
    Substantial Need:
    Undue Hardship:
    • Substantial Need: No other way to get it, in past and may be key evidence for the case (Attorney may not have known he was attorney yet to go get pic)
    • Undue Hardship: In the past, impossible to get, unless possibly security cameras (A picture is a "fact", doesn't really show attorney's thoughts)
  107. Discovery

    FRCP 26

    26(b)(4)(B)
    26(b)(4)(C)
    AEC Exceptions (3)
    EXPERTS

    • DRAFTS:
    • 26(b)(4)(B)-Protects expert's drafts (regardless of form); drafts are reflective of core work product

    • ATTORNEY/EXPERT COMMUNICATION:
    • 26(b)(4)(C)-Protects a/e communication

    AEC Exceptions:1) Relates to compensation for expert's study or testimony 2) Identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed 3) Identify presumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed
  108. Discovery

    FRCP 26

    26(b)(5)(A)
    • 26(b)(5)(A) Withholding information.
    • When a party withholds information otherwise discoverable by claiming it is privileged or subject to protection as trial-preparation material, the party must: expressly make a claim to opposing counsel  (usually Privilege Log)
  109. Discovery

    FRCP 26

    26(b)(5)(B)
    • 26(b)(5)(B) Accidental Production.
    • Accidentally produce stuff that is privileged, notify counsel, return or destroy it.
  110. Discovery

    FRCP 26

    CASE:
    CASE: Bjorkman; B can withhold drafts of B's expert reports of disclosures, as well as docs containing attorney/expert communication. B may not withhold any docs or info based on WPD set forth in 26b3, except those specifically protected by 26(b)(4)(b)&(c) (expert drafts & AEC)
  111. Discovery

    FRCP 26

    Timeline of Discovery Disputes (6)
    • 1) Discovery Request
    • 2) Non-response/Partial Response (think something is privileged, irrelevant, can only answer some)
    • 3) Meet & Confer (b/t parties to discuss dispute, must show you conferred b4 involving courts)
    • 4) Motion to Compel (37a) AND/OR Motion for Protective Order (26c)
    • 5) Courts get involved for 1st time-grant or deny (MINOR SANCTIONS)
    • 6) Disobey court (MAJOR SANCTIONS)
  112. Discovery

    FRCP 26

    Timeline of Discovery Disputes

    37a
    Motion to Compel
  113. Discovery

    FRCP 26

    Timeline of Discovery Disputes

    26c
    Motion for Protective Order
  114. Discovery

    FRCP 26

    Timeline of Discovery Disputes

    MINOR SANCTIONS:

    FRCP:
    Purpose:
    "MUST"...but...
    MINOR SANCTIONS:

    • FRCP: 37(a)(5)(A)
    • Purpose: To decide whether the info should in fact be disclosed, NOT to impose sanctions
    • "Must" pay reasonable expenses incurred in making the motion...BUT 3 exceptions:
    • 1) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action
    • 2) the opposing party's nondisclosure, response, or objection was substantially justified
    • 3) other circumstances make an award of expenses unjust
    • (LOTS OF OUTS FOR COURTS)
  115. Discovery

    FRCP 26

    Timeline of Discovery Disputes

    MAJOR SANCTIONS:

    FRCP:
    "MAY"...
    Can end...
    ONLY available...
    NO DISMISSAL:
    Purpose: (2)
    CASE:
    • FRCP: 37(b)(2)(A) If a party fails to obey an order to provide or permit discovery, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
    • "MAY" (broad discretion)...
    • Designate certain facts as established for action
    • Cannot pursue certain claims or defenses
    • Strike pleadings
    • Stay proceedings
    • Dismiss action, whole or part (NHL)
    • Default judgment
    • Treat as contempt of court, end up in jail

    • Can end case for either D (judgment) and P (dismiss)
    • ONLY available when party violates a court order that compels the party to produce the requested discovery
    • NO DISMISSAL: if noncompliance is due to inability, instead of willfulness, bad faith, or any fault of the petitioner. 

    Purpose: 1) Punishment 2) Deterrence

    CASE: NHL; M did not answer interrogatories ordered by DC in a timely manner, so DC dismissed per 37, harsh, but harsh sanctions must be available to court to penalize and deter
  116. Discovery

    FRCP 26

    Timeline of Discovery Disputes

    26(c) Protective Order. 

    Discretion:
    CASE:
    • 26(c) The court may, for GOOD CAUSE, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...including...
    • Agree to maintain confidentiality
    • Range of docs with different rules (confidential, highly confidential)
    • Parties often come to joint agreements to confidentiality of docs because it will make discovery easier

    • Discretion: broad
    • CASE: Phillips v. GM; GM had share PO, LAT (third party) wanted access to discovery for news story, court must determine if good cause exists for PO
  117. Discovery

    FRCP 26

    Timeline of Discovery Disputes

    26(g)
    26(g) Sign, certify, fail=strike or sanction, no safe harbor

    11) DOES NOT APPLY TO DISCOVERY
  118. Case Management 

    FRCP 16

    Discretion: 
    Active...
    • Discretion: ENORMOUS, BROAD
    • Active role of managing case; worried about time, money, all issues in FRCP 1
  119. Case Management 

    FRCP 16

    Timeline (9)
    • 1) Discovery Planning Conference (parties) 26(f)
    • 2) Joint Discovery Report and Initial Disclosures 26(a)
    • 3) Scheduling Conference (w/ Judge) 16(c)
    • 4) Scheduling Order (from judge) 16(b)
    • 5) Discovery starts
    • 6) Discovery ends
    • 7) Motions/Rulings (ex MSJ)
    • 8) Final Pre-trial conference and order
    • 9) Trial
  120. Case Management 

    FRCP 16

    16(b)
    MUST...
    MAY...
    • 16(b) Scheduling Order.
    • MUST set timeline (Limit time to join parties, amend pleadings, complete discovery, file motions)
    • MAY modify things (timing of disclosures, discovery, ESI, anything else)
  121. Case Management 

    FRCP 16

    16(b) Scheduling Order.

    Amending Pleadings:

    Timing Matters:
    Amend...
    Amend...
    Timing Matters:

    • Amend before 16 deadlines-->Look only to 15(a) (21 days after serving or with opposing party's consent or sua sponge)
    • Amend after deadlines set under 16-->Look to 15(a) AND 16(b)(4) (Judges consent AND good cause)
  122. Case Management 

    FRCP 16

    Amending pleadings

    16(b)(4)

    Good cause factors: (4)
    16(b)(4) A schedule may be modified only for GOOD CAUSE and with JUDGE'S CONSENT

    • Good cause factors:
    • 1) Explanation for the failure
    • 2) Importance of testimony
    • 3) Potential prejudice in allowing the testimony
    • 4) Availability of a continuance to cure such prejudice
  123. Case Management 

    FRCP 16

    16(c)(2)
    Broad:
    MAY...
    • 16(c)(2) Matters for consideration at a Pretrial Conference (not final one)
    • Broad range of power for judges
    • MAY...
    • eliminate frivolous claims 
    • amend pleadings
    • admissions of facts
    • limit testimony
    • send to magistrate judge
    • settle case
    • order separate trial (Ocean Atlantic)
    • facilitate in other ways the just, speedy, and inexpensive disposition of the action
  124. Case Management 

    FRCP 16

    16(f)

    CASE:
    CASE:
    • 16(f) Sanctions. Court may issue any just orders including 37(b)(2)(A) major sanctions, if a party or its attorney...
    • 1) Fails to appear at a scheduling order or other pretrial conference
    • 2) Is substantially unprepared to participate--or does not participate in good faith--in the conference
    • 3) Fails to obey a scheduling order or other pretrial order
    • CASE: Tower Ventures; did not meet original SO deadline, judge extended at parties' request, still did not meet and gave no reason for noncompliance...so no good cause and case dismissed
    • CASE: Acuna; class action suit, judge issued Lone Pine Order (produce more evidence for mass toxic tort suit), failed twice to comply with SO, so dismissed.
  125. Case Management 

    FRCP 16

    16(f) Sanctions 
    Interest protected:
    Problem:
    • Interest protected: Docket control, moving cases forward
    • Problem: consistency from court to court due to broad discretion, punishing client for lawyers' bad conduct
  126. Case Management 

    FRCP 16

    How judges handle cases, get discretion: (3)
    • 1) FRCP 16
    • 2) Manual for Complex Litigation 
    • 3) Case law-Lone Pine (defendant's benefit, mass toxic tort suit)
  127. Case Management 

    FRCP 16

    16(e)
    Can be...
    Supplants...
    Allows courts...
    Includes...
    Works with...
    Consequences...
    16(e) Final Pretrial Conference & Order

    • Can be modified only to prevent manifest unjust
    • Suppplants pleadings as a basis for framing the issues (so original complaint now irrelevant)
    • Allows courts to stipulate facts they agree on
    • Includes all exhibits
    • Consequences: 37(c)(1) failure to comply with final pretrial order &
    • 16(f) sanctions
  128. Case Management

    FRCP 16

    42(b)
    CASE:
    42(b) Bifurcation. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims...

    CASE: Ocean Atlantic; Because distinct possibility issue of damages will never be reached, bifurcating discovery as to liability will serve the goals of convenience, expedition, and economy
  129. Adjudication

    FRCP 56

    56(a)

    Looking at...
    • 56(a) Summary Judgment.
    • The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

    Looking at EVIDENCE
  130. Adjudication 

    FRCP 56 MSJ

    50(a)(1)...proof for...
    50(a)(1) JMOL is PROOF for MSJ

    If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would NOT have a legally sufficient evidentiary basis to find for the party on that issue, the court MAY (grant JMOL)
  131. Adjudication

    FRCP 56 MSJ

    56(c)(1)

    Cite...
    Everything is...
    56(c)(1) Supporting Factual Positions. 

    • Cite items in the record, say it proves there is or is not a dispute.
    • Everything is submitted through affidavit; include exhibits attacked
  132. Adjudication

    FRCP 56 MSJ

    56(c)(4) Affidavit

    56(h)
    56(c)(4) An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

    56(h) Affidavit in bad faith. May pay opposing attorney fees, sanctions, held in contempt (not 11, only applies to motions)
  133. Adjudication

    FRCP 56 MSJ

    56(c)(2)
    56(c)(2) A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
  134. Adjudication

    FRCP 56 MSJ 

    56(c)(3) Materials not cited.
    The court need consider only the cited materials, but it MAY consider the materials in the record.
  135. Adjudication

    FRCP 56 MSJ

    Photos/Videos

    Sometimes...
    Two options:
    CASE:
    HYPO: Snapshot of Text
    • Sometimes conclusive, sometimes not
    • Two options: Definitely answers it and all we are left with is metaphysical doubt which is NOT a genuine dispute of material doubt; or less like Scott, so not definitive
    • CASE: Scott v. Harris; Because SCOTUS views the video evidence in the record as conclusive, there is no genuine dispute of material fact, so MSJ should be granted 
    • HYPO: Do words definitively say one thing to another? Multiple interpretations. Like Scott and conclusive, or ambiguous? NOT DEFINITIVE-do not know tone, although firm in sense Scott was firm, interpreting words is different than interpreting pictures
  136. Adjudication

    FRCP 56 MSJ

    56(e)
    • 56(e) Failing to properly Support or Address a Fact as Required.
    • A court MAY...
    • give opportunity to address
    • consider the fact undisputed for purposes of the motion
    • grant SJ
    • issue any other appropriate order

    BROAD discretion, varies from court to court
  137. Adjudication

    FRCP 56 MSJ

    Burden on party moving for SJ:
    Initial responsibility of informing DC of basis for its motion, and identifying portions of the pleadings...if any, which it believes demonstrates the absence of a genuine dispute of material fact.
  138. Adjudication

    FRCP 56 MSJ

    Party moving for SJ had NO BURDEN to...(2 views)
    • 1) Support SJ with affidavits or other similar materials NEGATING the opponent's claim
    • 2) (White) Both sides need evidence for SJ; not enough to move for SJ without supporting the motion or with a conclusory assertion that the plaintiff has no evidence for SJ
  139. Adjudication

    FRCP 56 MSJ

    Burden on party opposing SJ:
    Can produce evidence in a form that would be inadmissible at trial in order to avoid SJ

    Just must have potential to be admitted in admissible format at trial
  140. Adjudication

    FRCP 56 MSJ

    56(g)
    56(g) Failing to grant all requested relief.

    If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact as established in the case (partial SJ)
  141. Adjudication 

    FRCP 56 MSJ

    56(f)
    56(f) Judgment Independent of Motion. SUA SPONTE SJ

    After notice and a reasonable time to respond, court may consider SJ on its own after identifying for the parties material facts that may not be genuinely in dispute
  142. Adjudication

    FRCP 56 MSJ

    Policy:

    Ideally:

    Fessler:
    SJ is...
    Court does...
    Genuine:
    Material:
    Ideally: Ensures just, speedy, and inexpensive determination in every action

    • Fessler: Suggests inexpensive, simple BUT really expensive, time consuming, complicated
    • SJ is extreme remedy. 
    • Court does NOT weight evidence or make credibility determination; only determines whether there are disputed issues and if so whether they are GENUINE AND MATERIAL
    • Genuine: Evidence is sufficient to persuade a reasonable jury to return a verdict for nonmoving party (50)
    • Material: Factual disputes that are irrelevant or unnecessary will not be counted
  143. Adjudication

    FRCP 56 MSJ

    Everything is viewed...
    Everything is viewed in light most favorable to party opposing SJ
  144. Adjudication

    FRCP 56 MSJ

    HYPO: Pat alleges Danny slandered him in the presence of 2 other witnesses. Danny files
    an MSJ attaching his affidavit and affidavits from the 2 alleged witnesses all saying Danny didn’t utter the contested words. Pat offers no admissible evidence that the statement was made.
    MSJ Granted.

    • Danny provides evidence
    • Pat offers no evidence

    SO no genuine dispute of material fact (the slander itself)
  145. Adjudication

    FRCP 56 MSJ

    HYPO: There is an auto accident at an intersection. Pat says Danny ran a red light. Would SJ be appropriate if:
    § Danny moves for SJ and submits the affidavit of a witness who says the light was green.
    § Pat responds by pointing to the allegation in her complaint that the light was red.
    MSJ Granted

    • Danny-affidavit
    • Pat-her complaint

    • Considering actual evidence, so Pat did not submit actual evidence
    • At this point, allegation is not enough 
    • Caveat-Cali, some states: verified complaint turns complaint into affidavit
  146. Adjudication

    FRCP 56 MSJ

    HYPO: There is an auto accident at an intersection. Pat says Danny ran a red light. Would SJ be appropriate if:
    § Danny moves for SJ and submits the affidavit of a witness who says the light was green.
    § Pat responds with an affidavit of a witness who says the light was red.
    MSJ Denied.

    Both submitted affidavits with conflicting factual assertions, so there is a genuine dispute of material facts.
  147. Adjudication

    FRCP 56 MSJ

    HYPO: There is an auto accident at an intersection. Pat says Danny ran a red light. Would SJ be appropriate if:
    § Danny moves for SJ and submits the affidavits of 10 witnesses who say the light was green.
    § Pat responds with an affidavit of 1 witness who says the light was red.
    MSJ Denied.

    • Not weighing evidence or making credibility determinations.
    • There still exists a genuine dispute of material fact.
  148. Adjudication

    FRCP 56 MSJ

    HYPO: There is an auto accident at an intersection. Pat says Danny ran a red light. Would SJ be appropriate if:
    § Danny moves for SJ and submits the affidavit of 10 witnesses who say the light was green.
    § Pat responds with her own affidavit saying the light was red.
    MSJ Denied.

    • Pat's own affidavit is enough to get her past SJ, because it is considered evidence.
    • There still exists a genuine dispute of material fact.
  149. Adjudication

    FRCP 56 MSJ

    HYPO: There is an auto accident at an intersection. Pat says Danny ran a red light. Would SJ be appropriate if:
    § Danny moves for SJ and submits the affidavit of a witness who says the light was green.
    § Pat responds by submitting the affidavit of a witness who says that she did not see
    the light, but she say that the cars in the other lane of traffic that were going the same direction as Danny’s car (and were controlled by the same traffic light) had stopped.
    MSJ Denied.

    Although Pat's witness did not see direct evidence, a genuine dispute of material fact can be IMPLIED.
  150. Adjudication

    FRCP 56 MSJ

    HYPO: Pat sues Danny in negligence for injuries arising out of an auto accident. Pat alleges
    Danny ran a red light and hit her car. She also sues Danny for slander, asserting that after the accident Danny came up to Pat and said, in front of Pat and three of her friends, “this is all your fault and clearly stems from your loathsome disease.”
    § Danny moves for SJ, filing an affidavit stating that the light was green.
    § Pat opposes the motion for SJ, filing affidavits for herself and her 3 friends affirming Danny’s statements after the accident.
    MSJ Granted.

    • Danny put the burden on Pat to respond about the light, which she failed to do. 
    • This would result in partial SJ. 56(g)
    • Look to 56(e) for relief
  151. Adjudication

    FRCP 56 MSJ

    56(b) Time to file of motion.
    Unless different time is set by local rule or the court orders otherwise, a party pay file a motion for SJ at any time until 30 days after the close of discovery.
  152. Adjudication

    FRCP 56 MSJ

    HYPO: The Judge sets the MSJ deadline for 60 days after the close of discovery in his Pretrial
    Order under FRCP 16.
    § Danny moves for SJ 59 days after the close of discovery.
    OK-Not in 30 days, but judge set time to 60
  153. Adjudication

    FRCP 56 MSJ

    HYPO: The judge sets the MSJ deadline for 60 days after the close of discovery in his Pretrial
    Order under FRCP 16.
    § Danny moves for SJ 61 days after the close of discovery.
    NOT OK-did not meet deadline

    BUT remedy in 16(b)(4): Modifying the schedule-->for good cause with judge's consent
  154. Adjudication

    FRCP 56 MSJ

    HYPO: Pat sues Danny in negligence for injuries arising out of an auto accident. Pat alleges
    Danny ran a red light and hit her car.
    § Danny moves for SJ saying there is no evidence that the light was red.
    MSJ Granted.

    Danny does not have to NEGATE the opponent's claim.
  155. Adjudication

    FRCP 56 MSJ

    HYPO: Pat sues Danny in negligence for injuries arising out of an auto accident. Pat alleges
    Danny ran a red light and hit her car.
    § Danny moves for SJ saying there is no evidence that the light was red, noting Pat
    refused to respond to Request for Admission #1: “Admit the light was green.” Danny also notes that Pat refused to answer, when asked during the deposition, “what color was the light at the moment of the accident?”
    MSJ Granted.

    • Pat refused to respond.
    • Danny said there was no evidence, and pointed to two moments when she would not give evidence (complicit with White's concurrence)
  156. Adjudication

    FRCP 56 MSJ

    56(d)
    • 56(d)-When facts are unavailable to nonmoving, the court MAY...
    • defer considering motion or deny it 
    • allow more time
    • issue any other appropriate order
  157. Adjudication

    FRCP 56 MSJ

    HYPO: Suppose that the dispute involved whether driver Danny ran a red light and hit
    pedestrian Pat. Pat never saw what happened, but eyewitnesses Wanda tells Pat: “I saw Danny run a red light.” Wanda dies before being deposed.
    § Danny moves for SJ and includes an affidavit from witness Sam who says Danny went
    through a green light and Pat wasn’t paying attention.
    § Pat submits an affidavit saying “Wanda told me Danny ran the red light.”
    MSJ Granted.

    • Evidence needs potential that it could be admitted at trial in an admissible format.
    • Here, does not hint at evidence that can later come in because Wanda is deals and her statement is hearsay.

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