Civil Procedure II Final Outline

Civil Procedure II Final Outline I. Ascertaining the Applicable Law

 Litigation that concerns two or more states is likely to cause problems when determining what law to apply in the dispute. Applicable law is the way by which we go about determining what law to use and how to use it. What law should federal courts apply when there are more than two states concerned? State or federal (common law)?

28 U.S.C. § 1652; Rules of Decision Act (from §34 Judiciary Act): The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

State Law in the Federal Courts

Swift v. Tyson (10 L.Ed 865, 1842) – Defendant, a New York purchaser of land, and a third party Maine land speculator drew up a bill of exchange despite the fact that the speculator did not own the land. P sued D in New York federal court. The bill was dishonored at maturity and plaintiff sued defendant. D noted that bill was accepted in a fraudulent transaction, and should be moot. Was Mr. Swift a “holder in due course?” Should the court look to New York law? Language of the Rules of Decision Act said that “laws of the several states” and customary practices (common law) should be the determining factor. The court found that court decisions should not be considered law, and only statutory law should be applied according to that statute. Therefore, this meant that courts, when the law was in conflict, should use the emerging rule or any other law that it found to be best. Overturned by Erie.

Erie R. CO. v. Tompkins (304 U.S. 64, 1938) – Tompkins lost an arm after being struck by a train while walking on a path that was parallel to a railroad. Under Pennsylvania law, the pedestrian was a trespasser, while in most other venues the train owes the P for due care. P sued in federal court and won $30,000, appeals court affirmed, finding that under Swift liability was a question of general law about which federal courts were free to render independent decisions. The U.S. Supreme Court granted certiorari. Court began by criticizing Swift for its lack of foresight and inefficiency in fairly deciding disputes. (1) State courts were not willing to adapt their laws to those of other jurisdictions. In addition, Swift led to some issues that put under question the ability to be fairly treated (2) (no discrimination). On appeal, the court reversed and remanded, holding that (3) there was no federal general common law, and that except in matters governed by the U.S. Constitution or by acts of Congress, the law to be applied by federal courts in any diversity case was the law of the state in which that court sat. In so holding, the court overruled the contrary doctrine of Swift v. Tyson, 16 Pet. 1 (1842), finding it an unconstitutional assumption of law making powers by federal courts that invaded state autonomy and prevented uniformity in administering state law.

1 Swift held that laws of the several states meant state statutes and only common law dealing with localized issues. This meant that where a matter would come out in one way under state common law, it would come out differently under common law. Erie find that because state common law controls in substantive matters, Swift violated the States’ constitutional rights to make their own law.

Example of Swift Problems: Black & White Taxi v. Brown & Yellow Taxi: case where Brown and Yellow wanted to have an exclusive deal with RR and reincorporated in Tenn. to get div. of citizenship and ‘general law’ instead of the Kentucky state law which would not have allowed the practice.

Courts Perform Three Functions:  Fact Finding  Law Application  Law Declaration

Article Six: Supremacy clause. Federal first, baby! Federal laws supercede those of the states when it comes to conflicts, but only if the federal law is constitutional.

Three Sources of Law that Are Supreme:  Constitution (hard to amend 2/3 of both houses and 75% of states)  Laws (House, Senate, and President)  Treaties (2/3 of Senate and Pres)

State statutes and common law must be applied in federal court when they apply and are equal and valid sources of state law.

Guaranty Trust Co. v. York (326 U.S. 99, 1945) – P York sued D Guaranty for breach of fiduciary duties. Trial court ruled for summary judgment for Guaranty. Appeals court reversed on grounds that a federal court sitting in diversity was not bound by the state statute of limitations that barred the suit in the state court, and D appeals to present court. The Court noted that under the Erie Doctrine in cases where the federal court had diversity jurisdiction, the outcome in the federal court should be the same as it would be decided in state law. The doctrine requires the federal court to follow state law, and if the statute of limitations under state law barred recovery in a state court, the federal court could not allow recovery. The Court reiterated that the source of substantive rights enforced by a federal diversity court was state law, and that this law determined the outcome (outcome determinative test) regardless of the forum or whether the remedy was in law or in equity.

Outcome Determinative Test: York focuses on ‘outcome determinative test’ State Statutes of Limitation have more than a procedural effect, because they may destroy an action all together. Therefore, federal courts must also apply

2 state procedural rules, even if they result in a different outcome than an application of federal procedural rules, whenever the state procedural rules have a “substantial” effect on the outcome of the litigation.

Byrd v. Blue Ridge Rural Electric Cooperative, Inc. (356 U.S 525, 1958) – P was employed by a construction company that had contracted with D corporation to build power lines and stations. P was injured while working and brought negligence suit against D. D claimed that P's exclusive remedy was under the South Carolina Workmen's Compensation Act. The court of appeals directed judgment for D. The Supreme Court reversed and remanded. The Court upheld the court of appeals' interpretation of S.C. Code Ann. § 72-111, but held that P should have an opportunity to offer his own proof under that interpretation of the statute. The Court also held that P was entitled to a jury trial, even though under South Carolina law P would not have been entitled to a jury trial on this issue. The Court stated that it did not believe that the likelihood of a different result was so strong as to require the federal practice of jury determination of disputed factual issues to yield to the state rule in the interest of uniformity of outcome. The Court stated that there was a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts.

Conflicting Practices: State decisions [regarding practices] that are basically procedural are not necessarily controlling even if they are out-come determinative. This is especially true when the federal interest is stronger than the state interest in the conflicting practices. This is the “balancing test” of interests in determining which procedural rules will apply. Erie & Rules Enabling Act (§2072(b))

Rules Enabling Act- 28 USC § 2072: (a) allows Supreme Court to make federal rules of civil procedure. (b) such rules shall not abridge, enlarge or modify any substantive right. [Normally, FRCP takes precedence over state rules because they are authorized by Congress- supremacy clause.]

The Federal Rules of Civil Procedure almost always predominate over a similar state rule when there is a conflict- because they must only be arguably procedural. (To hold otherwise would be to say that Congress, the Advisory Committee, and the Supreme Court got it wrong when making the FRCP- because that would mean it violated (b).)

Hanna v. Plumer: Facts: P sues in diversity for personal injury damages. D is deceased, so she serves his executor by leaving a copy of the summons and complaint at his residence with his wife- allowed by FRCP 4; State rule required personal service (greater safeguard to ensure notice). Issue: Court assumes it is procedural, so question is whether the federal rule should displace state rule? Holding: p. 396: if federal rule, if can be classified as EITHER substantive OR procedural, that is enough- federal rule predominates. Must be arguably procedural.

3 ERIE DOCTRINE FLOW CHART

1. Is there a federal constitutional, statutory or treaty provision or a federal rule of civil procedure that applies? and Step 1: 2. Is the statute or rule valid under Constitution or Rules Enabling Act? (Must be procedural and not modify, enlarge, or abridge a substantive right.) [Hanna v. Plumer; 28 USC §2072]

Yes No

Federal Law Controls

Step 2: Is the choice between federal and state law outcome determinative? [See Guaranty Trust v. York and 28 USC §1652]

Yes No

Federal Law Controls

Step 3: Is there an important federal interest? (Both sides) [See Byrd v. Blue Ridge and 28 USC §1652]

Yes No

Federal Law Controls State Law Controls Hanna tells us that if you have a federal rule of civil procedure that is in contrast with a state procedure rule, the federal rule will be the one that will be applied. The federal rule must only be arguably procedural.

Walker v. Armco Steel Corp. (S.Ct., 1980) (FRCP does not Conflict- more procedural) Facts: Carpenter injured when nail shatters that was made by defendant. Claim filed within statute of limitation on the court, but not within the 60 day extension on the defendant. P argues that FRCP 3 should govern; D argues that Okla. State law bars the action and should be controlling. Issue: Should Okla. State law govern or FRCP?

4 Holding: Okla. Reasoning: (1) No direct conflict- FRCP say when an action is commenced, but does not say it was intended as a tolling device for the action. NOT within Scope of the FRCP.

There must be a direct conflict for FRCP to control if it is silent, then it most likely does not conflict, and state law controls. We look at substance/procedure divide to decide if FRCP encompasses state law.

Burlington RR v. Woods: (FRCP does conflict- more substantive) Alabama has a law that says that you must pay a fee of 10% to appeal. Federal rules do not have such a fee. Should the federal court apply the Alabama appeal penalty? FRCP 38 applies penalty only for frivolous appeals. Is there a conflict? Holding: Court stretched the Federal rule to ‘encompass’ the state rule- creates a conflict. ->Why does the court stretch the scope of the federal rule in Burlington, but narrow it in Walker? Burlington is more about procedure; Walker more about substance. Substance/Procedure may determine how the test applies.

Stewart Organization, Inc. v. Ricoh Corp. (487 U.S. 22, 1988) – P was to market D’s products. Agreement included a forum selection clause that all disputes were to be handled in Manhattan. P sued in Alabama and D moved to remove. The trial court denied the question based on past state law, but the Eleventh circuit reversed, citing the federal transfer laws that allowed it to occur. The court found that when a (valid) federal rule directly conflicted with state law, the federal law is superior.

Stewart tells us that if there is a valid congressionally-enacted procedural federal statute, it controls over a conflicting state statute, even though it may promote forum shopping. This is an easy Erie case, but it does point out the organization of Hanna. This case is easier than the others, because we don’t have the burden of determining whether or not the laws are substantive or procedural.

Gasperini v. Center for Humanities, Inc. (518 U.S 415, 1996) – P was a journalist who had taken pictures in Central America. He provided a set of 300 slides that were lost by D. P sued and was awarded $450,000, which was determined based on the industry standard of $1,500 per slide. The Second Circuit viewed the award as excessive, and the court ordered a new trial unless P would accept a judgment of $100,000. P argued that no federal court could reexamine a case decided by a jury unless it was under federal common law and it “shocked the conscience.” Issue: did the federal court applying a state law standard in reviewing the jury verdict violate the Seventh Amendment? No. The court held that the New York stature “deviated materially” from the federal rule, and therefore there was no direct conflict in the laws. Second Circuit was reversed and remanded to trial court.

Gasperini says that where a Federal Amendment is in conflict with Erie’s goals: State law will apply on how appellate courts regulate tort damages acts in a substantive manner. However, 7th Amendment doesn’t allow federal circuit

5 court to review jury award under state law. Supreme Court held that federal district court may do this - doesn’t conflict with 7th Amendment, therefore, State substantive law wins. You may want to avoid this case when you can. Applying Erie and Ascertaining State Law

Important Rule: In Klaxton, the courts held that in order to promote the desired uniform application of substantive law within a state, the federal courts sitting in diversity must apply the conflicts of laws rules of the states in which they sit. This is a substantive issue, according to Erie. So, if there was a suit in Delaware and Maryland, and the court sat in Maryland, it would apply Maryland’s conflict of laws statutes to determine which law would bind, Delaware’s rules would not be considered.

Mason v. American Emery Wheel Works (241 F.2d 906, 1957) – P was injured when an Emery Wheel exploded in his face. P went through the maze of buy and sells between other firms. This long road meant that there was no privity of contract. The Rhode Island court held that they must follow an old Mississippi law that said that manufacturer can not be liable to the injured when there is no privity of contract. P appealed. The appeals court held that state laws that had been undercut by subsequent decisions did not necessarily have to be followed by state courts. Instead, federal courts can apply recent trends in state law in order to come to the fairest decision.

Federal Courts must try to ascertain what a state court would decide when applying state substantive law due to Erie Doctrine. Question: Should the Federal Court go by ‘old’ rule or determine that state court would eventually go with modern law.

Three Choices: 1. Follow Old Precedent (aka the static law). 2. Predict Change (the dynamic law). 3. Certification (federal courts can certify the state supreme court to make a decision on a state issue. The state court will only clarify or declare the law, and the federal courts have the right to decide the case by considering facts, determining credibility, and applying the law.)

Follow Old Precedent Predict a Change -more fair to previous cases (who -Could lead to forum shopping- sure to had to follow this rule) get new rule in Fed. Ct., but may not in State Ct. Federal courts should be careful to predict only based on legal sources. Should not base predictions on outside sources, personnel changes on courts, etc.

6  Federal Court decision predicting state law is not binding on the state courts; they are free to overrule. See Elvis case, note 10, p. 430.

Clark likes this idea of certification. Why? Because it reduces the federal court’s need to make predictions. They all but have their answer with the state’s response. The state is now bound by their own decision. It is for all intents and purposes a standard decision. Notice the difference between how the state courts are bound by federal predictions (not bound) versus certification by the federal court that the state responded to (bound). II. Resolution without a Trial

► We are now to the point where we are looking at how to decide the case. Up to this point, it has been how to get it to the point where it can be litigated (pleadings, discovery, jurisdiction, venue, more.) Very few cases ever make it to trial. Summary Judgment

After Discovery, but before trial: either party can move for summary judgment. Why is this allowed?: If there is no real dispute, then why waste resources on a trial? FRCP Rule 1 stipulates that the rules exist to resolve disputes justly, speedily, and inexpensively. Summary judgment is an extension of this. With notice pleading, it is very easy to file a complaint- very difficult to get a claim dismissed for failure to state a claim. D resists by asking P to prove it. If D is the movant, then what? SEE last two cases.

Rule 56, Summary Judgment (a) Claimant: must wait 20 days from commencement or after defending party files for summary judgment to file summary judgment motion on all or any part with or without affidavits. (b) Defending Party: may at any time move for judgment in his favor for all or any part with or without affidavits. (c) Motion: Motion must be served at least 10 days before hearing; responding party may serve opposing affidavits before trial date. Summary judgment granted if after looking at pleadings, depositions, interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact and party entitled to judgment as a matter of law. [one can do this for liability and determine damages later] (d) Case not fully adjudicated: If whole case not disposed of by Summary Judgment, court shall if practicable make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. (e) Affidavits must be made on personal knowledge, set forth facts that are admissible in evidence, and state affirmatively the affiant’s competency to testify [court may permit

7 affidavits to be supplemented or opposed by depositions, interrogatories, or other affidavits.] An adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but must set forth specific facts showing that there is a genuine issue for trial.

Kalis v. Colgate-Palmolive Co. (231 F.3d 1049, 2000) – P was injured by a can of exploding fuel that had been purchased by her mother. P sued D as the manufacturer, but Colgate held that nothing could prove that they were the manufacturer. P submitted a depo in which the Mother admitted not knowing the manufacturer. D sent request to Admit, and they were admitted when P failed to respond. Mother later signed an affidavit post depo that said that she now remembered the manufacturer. Court ruled that parties could not create an issue of fact by submitting evidence by the same witness in direct conflict.  This case creates concern because it does not allow for mistake. Incorrect testimony by a witness will all but ruin your case.

Kalis is basically an affidavit & evidence example.

The Burden of Proof

The Burden of Proof refers to two different burdens: 1. Burden of production: usually placed on the movant, the burden of producing enough evidence to go forward with the case. One has met the burden of production if he has produced enough evidence that a reasonable jury could find in his favor. This must be met before burden of persuasion. 2. Burden of persuasion: once the burden of production is met, each side will go forward trying to persuade the trier of fact that it’s side is more persuasive. Again, this primarily falls upon the jury.

Standard for meeting the burden of persuasion: most courts agree that the three most common standards are (1) preponderance of the evidence, (2) clear and convincing evidence, and (3) beyond a reasonable doubt.

Burden of Production: The movant always has the burden of production when trying to prove affirmative facts. However, when the D is the movant, D doesn’t have to show facts affirmatively, but may only show that the record does not contain evidence that P (who bears the burden of persuasion at trial) can prove an essential element of P’s case at trial such that P could not meet its burden of proof at trial.

1. Defendant is Movant: Must prove that there is no genuine issue of material fact; in order to defeat it P (non-movant) must show by evidence superseding that of the P that SJ is proper. There is a lower standard for D than for P.

Lundeen v. Cordner (354 F.2d 401, 1966) – P was the ex-wife of a man who had died, and claimed that she and her two children should be the beneficiaries of his estate. D was

8 the current wife, and she claimed that decedent had done everything in his power to benefit her. D moved for summary judgment, and presented signed affidavits of employee of decedent’s company that had been contacted by the deceased, and moved for summary judgment. P submitted nothing to counter this, save for her own affidavit suggesting that decedent had wanted her kids to have received benefits. Issue: Where one party presents evidence that no factual issue exists, must the opposing party demonstrate that a factual issue does exist? Court found that the answer is yes. D had presented extensive evidence that the decedent had wanted his beneficiary to be his present wife, et al. P had not sufficiently contradicted that evidence, and therefore the court could not find that there was any real factual dispute.

The key issue is this: summary judgment is appropriate when no reasonable jury could find in favor of the non-movant. Clark thinks that a reasonable jury could have found for P, and this is a closer case than the court believes.

Compare to Lundeen:

Adickes v. S.H. Kress & Co. (398 U.S. 144, 1970) – P was the white female teacher of an all black freedom school. Upon entering a café with the children, she was not served, and police that were in the restaurant arrested her for vagrancy [she can’t be served, but she was arrested for not buying anything.] P alleged a conspiracy claim, and D moved for summary judgment, submitting sworn affidavits of restaurant manager, police chief, et al. P submitted her complaint, and an unsworn statement that the police had been in the restaurant previously. The court ruled that if a policeman was present in the store, it would leave a reasonable question for the jury to determine whether they were there peaceably. Overall, the court held that evidence supporting motion for summary judgment must establish a clear absence of a genuine issue, when viewed in a light most favorable to the party opposing the motion. Kress did not do this meet the burden of persuasion, held for plaintiff.

► The difference in the above cases is that the movant did (Lundeen) and did not (Adickes) meet the burden of proof required to show that there was no real issue of material fact. Since D in Lundeen had met it, and P did not respond, SJ applied. Since D did not meet it in Adickes, and P supplied some potential to show question of fact, SJ was not proper.

2. Plaintiff is Movant: If plaintiff moves for SJM, would have to prove all elements for recovery. MUCH harder for P to get SJ. Defendant (non-movant) would have to show something that would create a genuine dispute of material fact.

Cross v. United States (336 F.2d 431, 1964) – P, the United States, brought this action against Professor Cross for his questionable deductions on a tax return. Cross maintained that a transatlantic trip with his wife and poodle was a business expense. Cross moved for summary judgment, submitting affidavits from other professors that the trip was of an educational nature. U.S. claimed that they should be allowed to cross examine witnesses

9 and parties at trial in order to determine their credibility. Court held that parties objecting to summary judgment should be entitled to cross examine the witness when the witness’s state of mind is at issue and may lead to the only reasonable evidence.

This case was in conflict with Lundeen, in that the allowance of cross examination was allowed, Lundeen was not allowed to cross examine in the other case. How is this conflict consoled? In Lundeen, there was sufficient external evidence to suggest that the case was ripe for summary judgment. In Cross, the best evidence of intent was internal, in the mind of Cross, and the court felt that summary judgment was not proper without cross-examination without trial.

Celotex Corp. v. Catrett (477 U.S. 317, 1986) – On appeal reviewing reversal of granting of summary judgment. P alleged that her husband’s death was due to his exposure to asbestos in his job, materials which were manufactured by Celotex. Celotex moved for and was granted summary judgment since the P had presented only two letters and a depo of her husband to prove that Celotex had manufactured the products. Court of Appeals reversed, since D had shown no evidence to substantiate their claim. Supreme Court ruled that the party moving for summary judgment does NOT have to supply evidence to show an absence of genuine dispute of material fact. Court noted that plain language of Rule 56(c) supported this ruling. Instead, the moving party only bears the burden of explaining why they believe that summary judgment should be granted. By D simply suggesting that there was absence of evidence was enough for the court to make a decision.  However, the court stops short of actually telling us what is required of the movant!

D simply asserts that they do not have the burden of proof. The decision is based on the P’s burden to prove that it should not be dismissed. If dismissed, the plaintiff met the burden, if it did not, it did not. End of story. Court agrees. D could do absolutely nothing in response, but this is a very dangerous road.

Why is D almost always going to want to move for summary judgment? Because they want to see what the plaintiff has to offer to the court. If it is compelling, D can settle, etc. Vice versa. Sneaky.

Standard of Proof: differs from above discussion because here, court must look not only at who has the burden of proof, but to what degree. Courts must take it into consideration, but doesn’t make a large practical difference. This is a big judge/jury issue.

Anderson v. Liberty Lobby, Inc. (477 U.S. 242., 1986) – P Liberty Lobby is a right wing organization that filed a libel suit against the magazine The Investigator, for articles that they claimed defamed them. D moved for summary judgment that P could not prove malicious intent. D submitted two affidavits by authors of the articles. P responded by

10 citing numerous inaccuracies in the articles. Trial court granted summary judgment for D, and appeals court reversed, suggesting that reasonable jury could find intent. The court held that the determination of whether a factual dispute exists should be guided by “substantive evidentiary standards” (a decision about the evidence presented by the judge.) The evidence has to show that a reasonable jury could find for either side, and the judge has to make that determination. However, the jury is still responsible for credibility determinations, weighing of evidence, and more.

Should court consider the burden of proof when determining summary judgment? They almost HAVE to, because if they do not, they are really weighing the facts, which are supposed to be reserved for the jury.

Partial Summary Judgment: some jurisdictions allow courts to cast summary judgment on aspects of cases that are not in factual dispute. Clark likes this, and calls it useful. Dismissals and Defaults

Rule 41(a) Voluntary Dismissal: (1) By Plaintiff: Action can be dismissed by Plaintiff without order of court by (i) filing a notice of dismissal at any time before service by adverse party of answer to complaint or of a motion for summary judgment OR (ii) by filing a stipulation of dismissal signed by all parties. ->Without prejudice (unless stipulated in notice of dismissal), but operates as adjudication if Plaintiff has dismissed in any court an action based on or including the same claim. (2) By Order of Court: Without prejudice, unless otherwise specified. If D has counter claimed before receiving P’s notice of dismissal, then action shall not be dismissed against D’s objections unless counter claim can be resolved in a separate action.

Voluntary Dismissal: a voluntary dismissal is one that allows the moving party to extricate himself from the lawsuit without affecting his legal rights and obligations. A voluntary dismissal is designed to put both parties at the point that they were prior to litigation. A plaintiff attempting to do this more than once however (likely because they are hassling the defendant), will be faced with a grant of the motion, but this time on the merits, removing any opportunity to litigate again.

McCants v. Ford Motor Co. (781 F.2d 855, 1986) – P was the administratix on behalf of soldier McCants who was killed while riding in a military Jeep built by Ford. P brought a wrongful death suit in Alabama. Discovery lasted over a year, and the D filed for summary judgment based on Alabama’s one year statue of limitations. P filed for a voluntary dismissal so that case could be filed under Mississippi’s longer SOL. Court found for P, dismissed D’s movement.

Rule 41(b), Involuntary Dismissal: Dismissal for Failure to Prosecute (Link v. Wabash) If plaintiff fails to comply with rules or any order of the court, defendant may move for dismissal of an action or of an individual claim. Unless court says otherwise, it is an adjudication on the merits (excludes dismissal for want of Personal Jurisdiction).

11 Courts have the right to dismiss cases when the plaintiff does not move forward with their claim in due diligence. Courts disagree as to when and how this should be applied. Link offers some ideas.

Link v. Wabash R. Co. (370 U.S. 626, 1962) – P failed to attend a pretrial conference. The trial had been brewing for six years. The court sua sponte dismissed P’s claim for failing to pursue their claim, with notification to P of their intention to dismiss. P appeals. Supreme Court found that Rule 41(b) allows a court to dismiss for failure to prosecute. This is allowed for judicial efficiency and to prevent undue delays. The P freely chose his lawyer, and he had the responsibility to see that the case was moving forward. Dissent mentioned that this was unfair to Link, as his lawyer’s conduct should not preclude him from asserting his apparently valid claim. Seems a bit harsh.  Subsequent cases have suggested that fines can be imposed on attorneys under the law, while not going so far as to dismiss the action.  If dismissed in federal court, the plaintiff is not barred from pursing their claim in state court.  Just because there are lengthy delays does not mean that dismissal is appropriate. For example, if parties were actively negotiating, but come to an impasse, this is reason for a long delay.

Rule 41(c), Dismissal of Counterclaims, Cross-claims, or Third-Party claims: Must be made by claimant alone before responsive pleading, or if none, before introduction of evidence at the trial or hearing.

Rule 41(d), Costs of Previously Dismissed Action: If P dismissed action once before and files again against the SAME DEFENDANT, court may order costs of first be paid and may stay second proceeding until P pays costs for first.

I doubt the above will be relevant, but may be good to have just in case.

Rule 55, Default Judgment: (a) Entry: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made clear by affidavit or otherwise, the clerk shall enter the party’s default. (b) Judgment: (1) By Clerk: clerk can enter amount of claim against D upon plaintiff’s request with affidavit of amount due- for failure to appear if not an infant or incompetent person. (2) By Court: In all other cases, P must apply to court therefore. If D made an appearance, will be given notice of application and hearing at least 3 days before hearing is to take place. DJ given when you don’t respond to a claim, or as a penalty in the discovery process for not turning over something that you were ordered to. Court may order hearings and jury trial if deems necessary, in order to carry judgment into effect. (c) Court may set aside default for GOOD CAUSE SHOWN. (d) Default judgments may be entered on behalf of plaintiffs, couterclaimants, and cross-claimants. (e) No DJ can be entered against U.S.

12 Coulas v. Smith (395 P.2d 527, 1964) – P Smith filed a claim against Ds (Bray and Coulas) for money owed under a promissory note. Ds alleged various cross and counterclaims. There was a hearing where Bray and Smith determined that the trial shall start December 10th. Coulas was not present, missed the trial date, and default judgment was filed against him. Two years later, D filed a motion to vacate, claiming that he did not receive three day’s notice. The issue to the court was whether default judgment was proper under circumstances where the D had filed an answer but was not present. Rule 55(b)(2) only allows default judgment where the D fails to plead or otherwise defend.

Not much to say about the above, relates to Rule 55(b)(2). III. Trial

The Right to Trial by Jury

Introduction: The Seventh Amendment creates and protects the right to trial by jury. It also includes the examination clause. Pros of Juries include broader experience pools, a sense of legitimacy and fairness, and assumed application of common sense. Cons are potential bias, lack of competency, less consistency, expensive, inefficient, and a burden on those who must serve.

7 th Amendment: ‘preserves’ trial by Jury right at common law in 1700s-> 1791, where amount in controversy is over $20.

FRCP 38, Right to Trial by Jury: (a) Right Preserved: Const./statutory right to Trial by Jury preserved to parties. FRCP 38: (b) Demand: Party must demand Trial by Jury not later than 10 days after service of last pleading on such issue by serving on other parties. FRCP 38: (c) Specification of Issues: Party must specify issues for Trial by Jury, otherwise, assumed all issues (other parties may demand Trial by Jury within 10 days of demand). FRCP 38: (d) Waiver: If Party doesn’t demand, right to Trial by Jury waived. Demand cannot be withdrawn without consent of all the parties. FRCP 39, Trial by Jury or Court: (a) Jury: if demand made, will have Trial by Jury unless, (1) attorney in open court requests Tb Judge, or (2) Court finds that right to Trial by Jury does not exist on those issues. FRCP 39: (b) Court: all other issues tried by court, but despite party’s not demanding Trial by Jury, court may upon motion in its discretion order a Trial by Jury on all or some of the issues. FRCP 39: (c) Advisory Jury; Trial by Consent: In all actions not Trial by Jury as of Right, (1) Court may have an advisory jury upon its own motion/initiative; (2) with consent of both parties, may order Trial by Jury.

13 Historically, there were courts of law, and courts of equity. Courts of law (now judges) were the courts where one would go for clarification of a rule, or a new ruling on an issue, or how the law would determine the dispute. The courts of equity (injunctions) (now juries) were the ones that would determine fact, and present a judgment for restitution of some kind to one side or the other. To rectify this, the clean up rule applied. This rule allowed an equity court that had obtained jurisdiction to answer incidental questions of law. This was efficient for judicial resources, and it also reduced the burden on the client. However, this allowed for a denial of a jury on all legal issues. This placed too much power in the hands of judges to resolve remedial disputes. Courts have struggled with the way that they classify a new remedy as legal or equitable. Beacon Theatres is one such example.

Beacon Theatres v. Westover (Fox) (359 U.S. 500, 1959) – Fox Theatres, the operator of a movie theatre in San Bernadino contracted with movie distributors to have exclusive rights to first run pictures. The contract also called for a clearance period in which only Fox could distribute these films. Beacon constructed a theatre 11 miles away from the area, and notified Fox that it considered their contract to be in violation of antitrust laws. Fox moved for declaratory relief regarding such allegations, and Beacon demanded a jury trial as it related to the facts under FRCP 38. The district court viewed Fox’s claim as equitable, and held that the issues had to be tried before jury selection. Supreme Court granted certiorari. The court held that a court could not deny the right of a jury trial through a prior determination of equitable claims. Fox’s claim for declaratory relief could not overrule the right of the Plaintiff to have their counterclaim antitrust claim heard by the jury. Found for plaintiff, and reversed. - Fox tried to get declaratory injunctive relief b/c dealers were reluctant to deal w/ them during P’s allegations of illegality. - Fox v. Beacon – Fox is not violating anti-trust laws – tyr to get judge to say was right no specific relief – normally a D (prospective can’t sue to win b4 actually sued but allowed b/c of efficiency) - Fox wanted injunction enjoining Beacon from suing under anti-trust laws (injunction is equitable claim – not asserting legal claim) - Beacon answers and counter-claims for anti-trust violation – they want 3x damages (treble damages) under anti-trust laws (compulsory counter claim) - If Fox sues 1st then its equitable claim and the counter-claim is brought where no right to jury (that’s why they sued even though they knew Beacon’s suit would follow) - Does Beacon get jury that it wants? o Dist. Ct says no – Beacon attempts to get writ of mandamus contra the judge – asking higher ct to order judge to do “clear legal duty” - Dist. Ct wanted to decide FOX equitable claim 1st and then send all remaining issues to jury – but a lot of impt. Juries would then never get to jury - So Sup. Ct says dist ct has to give jury trial 1st - When cts were separate Beacon would Never have gotten jury…so how does ct reach this conclusion

14 o There is nothing precluding ct from hearing same, but issue is MUST they under 7th Amend. o Must give right to jury b/c that’s a constitutional right 1st and then let judge rule on issues of equity after - Equitable clean up – when the 2 were separate – o The equitable ct could hear the 2 together and ask for specific relief but waived trial by jury on issues that should have gone to ct at law - This effects status of something too – have to have irreparable harm and inadequacy of legal remedies – bottom p.961 o Since issue now can be tried together and there is the possibility of a jury there is no reason to deny beacon a jury trial There is an issue at CL o Esp. in this case where Fox was just clearly manipulating the system o The whole case revolves around Beacon’s suit – they just didn’t get there first . The equity claim didn’t have any merit on its own . Fox asks for a statement that B can’t sue – but that forced B to sue – so there isn’t even merit to their claim at all – they can’ get what they asked for b/c its already happened! - Ct says should give most flexibility to 7th amend - Dissent: o The fact that legal issues come up as counter claims is irrelevant – if FOX has real merit as suit then doesn’ matter – B shouldn’t get jury if res judicada aspplied then too bad – that’s what happens in equitable claims in 1791 - But does this mean that the legislature could do away with jury trials in these claims? That’s weird for the checks and balances - Very difficult case o Stds have changed, merger of cts and liberal joinder rules and this is a pretend equitable claim…so we should look at substance claim

Is this basically saying that a court of equity can never rule on an issue of law without opportunity for a jury trial? Seems like it . . .

Dairy Queen, Inc. v. Wood (369 U.S. 469, 1962) – D had contracted for trademark from P, but breached on payments and continued using trademark. P sued for injunctive relief and stop payment on further revenues to Wood from the stores. Court granted P’s request to strike Wood’s demand for a jury trial because the claims were all equitable, or any law was incidental to the equity claims. Supreme Court granted certiorari, considering the issue whether money damages could be considered equitable. The court found that it could not. P’s request for debt due and trademark infringement were both potentially matters of law, and a jury for them is appropriate. Even if the legal claims are incidental, Beacon Theatres requires that any legal issue be submitted to a jury. o Ct says that it looks like equitable claim but the issue is really breach of K

15 o A prerequisite for going to equity claim was that there was no adequate remedy at law and a breach of K case would be fine here o Treat it as a legal claim o Lean towards jury – the forum of the claim won’t take over jury right – this could be a legal claim – so hay jury

Katchen v. Landy (382 U.S. 323, 1966) – P brought suit against a bankrupt company, and wanted a jury. The lower court denied his request under the order of a statute that demanded prompt trial without jury. P appealed. Supreme Court found that statutes that provide for prompt trial without jury shall be followed, because undue delay and potential number of claimants will lead to great delay and expense in an otherwise summary declaration. In this unusual case, equitable claims may be tried prior to their legal claims. - P wants a trial jury for the counter claim o counter claims is at law and the original is not (in bankruptcy ct – equitable claims) - ct denies b/c o congress set up bankruptcy ct as equitable o no hay right to trial by jury o kind of like implied waiver of jury trial – the P chose to go to equitable ct - can we distinguish this case from Beacon and DQ? o In those habia a legal counterclaim that ct said had to be heard first o The Ds were people asserting Jury o Here statute says if sue to recover in bankruptcy you are subject to suit for fraud conveyances… . Bankruptcy proceeding is really specific – unlike the issues in B and DQ . If bankruptcy is equitable cts then not related to 7th Amend.  Not a suit at CL – wasn’t at common law to begin w/, so nothing to preserve

Ross v. Bernhard (396 U.S. 531, 1970) – P shareholders brought a derivative action against the officers of corporation. Trial court granted the jury trial, and Appeals court denied the motion, because this is typically an equitable proceeding. Supreme Court found that a court may overcome procedural impediments in a traditionally equitable proceeding, so long as there is a legal claim in the suit. This is another example of the Supreme Court liberally construing the right to a trial by jury. - This is an equitable suit b/c at law the ct didn’t recognize shareholders as a legal entity – capable of suing - P’s demand a jury trial and got it b/c one of claims was a legal claim o can’t deny trial by jury at CL, but can grant it in other cases – right to jury is floor not ceiling - note 1 p. 70

► Three Part Test for which Ruler in a Merged Equity/Law Case

16 1. Who would have ruled on each separate case before the merger? 2. What is the remedy sought? 3. What are the practical and abilities and limitations of juries?

► The Seventh Amendment is a floor, and not a ceiling. If you are going to err, you should at least do so on the side of caution, and allow a jury trial.

Curtis v. Loether (415 U.S. 189, 1974) – P was an apartment hunter who alleged that she had been denied an apartment based on her race, and she sued under Title VIII of the Civil Rights Act of 1968, which could grant legal remedies. Trial court rejected D’s attempt at jury trial, and courts of appeals reversed on jury issue. Can a jury trial be allowed in claims that create legal rights and remedies? Yes, the Seventh Amendment right applies to actions enforcing statutory rights, and a jury trial is available where the statute creates legal rights and remedies.

- Notes that Curtis was suing for injunctive relief, as well as compensatory and punitive damages. (Injunctive and punitive were equitable, and compensatory damages are legal.) - D possibly moved for jury because the time and ideology was in his favor.

Tull v. United States (481 U.S. 412, 1987) – P United States brought an action against the D Tull for dumping on wetlands. US sought injunctive relief and civil damages of $22 million. District Court denied jury request, and Court of Appeals reversed jury trial. Supreme Court found that liability statutes that codify common law rights fall under the Seventh Amendment. In addition, the court found that Congress can give the right to a judge to impose a remedy such as civil remedies, based on the liability found by a jury (much like in criminal cases). Scalia dissents, and holds that if US wanted criminal remedies, should have brought a criminal case.

Chauffeurs, Teamsters, and Helpers Local 391 v. Terry (494 U.S. 558, 1990) – Terry was an employee of McLean Trucking and a member of the D union. P filed a grievance with the union, and the Union did not refer the claims to a grievance committee. P sued the Union for not meeting their duty of fair representation, and sought lost wages and health benefits. Will this situation lead to the right of a trial by jury? The court found that the relief was legal in nature, because back pay resulted as a damages as a result of not having their job. The court found that the type of damages could be determined by nature of the claim and nature of the remedy. Brennan, in a concurrence, says that only the second factor should maintain. Other justices say that one should only look at the first factor.

The bottom line on these cases is to follow the three part test from above, but pay special attention to the damages sought. No more than that, it seems. Argue it both ways, no matter what you do. Choosing the Jury

17 FRCP 47, Jurors: (a) Examination of Jurors: Jurors may be examined by attorneys or by court; if by court, may allow attorneys to supplement questions. FRCP 47: (b) Peremptory Challenges: Court allows 3 peremptory challenges [as allowed by 28 USC § 1870]. FRCP 47: (c) Excuse: For good cause, court may excuse a juror during trial or deliberation. FRCP 48, Number of Jurors: Court shall seat not fewer than 6, not more than 12 jurors. Unless parties otherwise agree, (1) verdict shall be unanimous, (2) no verdict shall be taken from a jury smaller than 6 members.

State Courts: 7th Amendment only applies to Federal Courts, has not been incorporated into State courts via 14th. -Size of Jury: Court began a process of incorporating the bill of rights. How does that affect State process of incorporating jury size?

Selecting the Jury: Voter registration: don’t necessarily get a good cross-section of society. Pool questioned by court or by attorneys directly. Trying to find jurors who will be impartial or fair and who do not have prior knowledge of the case- only allowed to decide case on the admissible evidence at trial.

Challenging the Jurors

Challenge for Cause: allows Judge to strike a juror if they have any improper prejudice or bias. . Flowers v. Flowers (For Cause) Facts: child custody case. Juror asked what her opinions of drinking were. Mother had been intoxicated in public. Juror stated that she was against drinking of any kind and could affect her judgment; when court took over questioning, juror said she wouldn’t be biased. Later, found that she had made biased statements. PP: Trial Judge didn’t dismiss ‘for cause.’ Today, judges may grant motion to strike for cause if there is any kind of connection.  Bias: state of mind of juror leads to the natural inference that he will not or did not act with impartiality.  Prejudice: pre-judgment, and consequently embraces bias.

Preemptory Challenge: allows Attorneys to strike juror without a statement as to why- usually for assumed partiality reasons. . Intro: Traditionally allowed each side to strike 6+ jurors without any reason. (Can plead hardship to be let out.) -Why should we allow preemptory strikes? Rationale: If both sides strike extremes (those favorable to the other side), have a jury that is more in the middle and impartial. Today: is this still true in today’s diverse society? -Restrictions on Preemptory Challenges: First came up in Criminal trials- if government used preemptory challenges to strike people of a certain race/sex. S.Ct. said that if race is alleged, have to have a separate trial as to the race-neutral reasons government wants to strike them.  Doctrine expanded over time to civil cases and to defendant’s use of preemptory challenges.

18 . Edmonson v. Leesville Concrete Company, Inc. Traditional argument: In civil cases, government was not a party to the suit and so there are not any constitutional restrictions on individuals. H: Preemptory challenge was essentially a government action and the “Batson Rule” should be extended to civil cases (5th amendment-civil). O’Connor (dissent): no matter how terrible racism is, not essentially a government action and government is not responsible for everything that goes on in court. . J.E.B. v. Alabama: Extended the rule to sexism. State action, civil. . Batson Hearing: not so difficult, unless you focus all of your preemptory challenges on one part of the pool. Clash between rights of defendants and societal values regarding the ‘isms.’ -very discretionary on behalf of the judge. Hard to overturn later- because he is able to see/hear everything that later judges cannot. Judgment as a Matter of Law (DV & JNOV)

Intro: Motion for a Directed Verdict: saying to the judge that the evidence is so clear and so one-sided that no reasonable jury could find other than in my favor. -Most judges deny that motion; no downside in denying it, big downside in granting it- if reversed on appeal, have to have a whole new trial. -If you made a MDV, case goes to Jury, if you don’t like Jury’s verdict, can make a motion for “Judgment not withstanding the verdict.” More likely to be granted- if Judge reversed upon appeal, all you have to do is reinstate the jury verdict. (Usually have to have already made the MDV first to make MJNV.)

1. FRCP 50(a), Directed Verdict: (1) if there is no legally sufficient evidentiary basis for a reasonable jury to find for a party on an issue and that party has been fully heard. (2) Motion must be made any time before submission to the jury.  Galloway v. United States (S.Ct. 1943) Facts: Galloway suing for disability pension. I: should this case go to the jury? PP: court below directed verdict against the plaintiff. -is it true?; does it interfere with his right to trial by jury? Intrusive because court is intruding on the role of the jury…they should decide if the chaplain should have been believed or not. H: affirmed directed verdict- statutory standard was that he had to be completely and permanently disabled as of the date…couldn’t be on and off crazy. Dissent would argue that is the nature of the disease, but it doesn’t go away. (This case may be in part a product of its time.) Dissent: thought they should have just allowed the jury to try the facts.  Neely v. Martin: H: 10th cir. Says that trial court should have granted JNV. Reversed in favor of defendant. Why wasn’t there a new trial? Have to ask for it upon appeal. 2. FRCP 50(b), JNOV: Movant may renew JML by filing within 10 days after entry of judgment, and may ask for new trial. Court may: (1) if Verdict was returned (a) allow the judgment to stand (b) order a new trial, or

19 (c) direct entry of judgment as matter of law (2) if no Verdict was returned (a) order a new trial, or (b) direct entry of judgment as a matter of law  Denman v. Spain Facts: Plaintiff, surviving child, sues estate of D because of D’s negligence causing auto accident. Witnesses didn’t have recollection of events; no skid marks. P must prove by preponderance of the evidence that D’s N was proximate cause of accident and injury. PP: Case goes to trial, verdict for P. Motion for judgment not withstanding the verdict. Appealed. I: Should the judge have granted judgment as a matter of law and overturned the verdict? H: P did not meet evidentiary standard- at best a tie, must go to D. Evidence: two witnesses were passed at high speeds by D, but did not see him actually hit the other car. Is there enough evidence for the jury to make a reasonable inference?