Civil Procedure Ii

Spring 99 CIVIL PROCEDURE II

I. Pleadings

A. People ex. rel. Department of Transportation v. Superior Court Cal. App. 1992

FACTS: People, the Ps and the car drivers, are suing Cal Trans for “dangerous condition of public property”. The pleadings were in the form of a Judicial Council Form (complaint for personal injury). Cal Trans filed a demurrer b/c complaint did not set forth adequate “circumstances of injury” and “reasons for liability” (Calif. requires facts explaining/defining each element for a cause of action to prevail).

 Superior CT: form = non-demurrable.  Cal Trans files writ of mandate (emergency and extraordinary review)… before this CT…

H/R/Notes:

Issue: Form = Non-demurrable?

No. A fair amount of detail is necessary despite the completion of a form. Demurrer sustained with “leave to amend” for P.

1. “X” not enough. Must state facts essential to state a cause of action. 2. Real parties merely allege that motorist crossed the dirt median of Highway 101 and struck their vehicle. Not enough info. 3. Cal Trans is entitled to the theory upon which Ps are seeking relief so it can prepare its defenses.

Notes:  “Sufficiency” = legal theory behind claim and factual allegations that fit within its framework.  “Leave to amend” = results in delays; demurrer is final only if P cannot ethically amend complaint to fit into legal framework.  Conley v. Gibson US SC 1957: FRCP require no detailed facts…simply a “notice pleading” which makes a successful 12(b)(6) motion difficult.

A complaint cannot be dismissed unless it appears beyond doubt that the P can prove no set of facts AT TRIAL in support of his claim that would entitle him to relief (assuming that the facts in the complaint are true). So the Q for the judge is “If he can prove what he says, will he win?”. It must 2

be beyond doubt, to a legal certainty that he cannot. This standard for dismissal is based on 12(b)(6).

B. Duncan v. AT&T S.D. NY 1987

FACTS: Duncan, P and a former AT&T employee, alleges race and disability discrimination and breach of duty of fair representation against AT&T and the Union. Ds file 12(b)(6).

H/R/Notes: Ds’ 12(b)(6) motion granted…Insufficient complaint…  Ware: Case is more like Calif. law than federal law.  Usually, well pleaded factual allegations are assumed true and viewed in a light most favorable to P unless they are insufficient b/c 1. illegible or 2. fail to give notice of basic elements.  Duncan’s complaint: - groundless and conclusory - substantive: a. McDonnel Douglas Corp. v. Green requirements not met for race/disability discrimination. b. State claim for IIED dismissed with federal claim (United Mine Workers v. Gibbs).

Notes: - Maybe better reason for 12(b)(6) would have been no legal basis. - Duncan received no “leave to amend”. - False allegations/Facts in the complaint = Rule 11(b) and (c) sanctions. - Rule 8(a)(2) – “short and plain statement of the claim showing that the pleader is entitled to relief”. - Ware: CT should not have dismissed the complaint based on the above reasons…Judge here is telling the lawyer that the complaint is sloppily drafted.

C. Rannels v. S.E. Nichols, Inc. 3rd Circ. 1979

FACTS: Rannels, P, buys a pair of jeans that require a $2 repair. D store and manager filed criminal complaint under Pa. Bad Check Statute. P was acquitted and paid D $6 settlement. P files malicious prosecution, slander, libel suits.

DIST CT: granted D’s 12(b)(6) b/c P could not show lack of probable cause and malice.

H/R/Notes: Rule 8(a) met, so 12(b)(6) not allowed. DIST CT reversed, P wins. 3

1. Lack of probable cause shown - Bad Check Statute used despite knowledge of why P stopped payment. - Knew there was not a criminal act or fraud. 2. Conley: FRCP – no details necessary; only notice and grounds… “notice pleadings” (fair notice of claim and grounds upon which it rests) given… have discovery and pre-trial hearings make this possible. 3. No Code Pleadings – do not have to distinguish between a “fact”, “evidence”, or “law” allegation. 4. Do not want to avoid a decision based on merits over a technicality. 5. Malice present: Pres. “supported the malicious prosecution”. 6. Rule 9(b) – “malice, intent, knowledge, etc. may be averred generally”. Only circumstances regarding fraud or mistake must be stated with particularity.

FEDERAL REQUIREMENT: NOTICE PLEADINGS (FACTS ONLY… DETAILS COME OUT IN DISCOVERY).

CALIFORNIA REQUIREMENT: EVIDENCE TO MEET DISCRETE ELEMENTS.

Law firms plead in more detail for style and strategy.

D. Rule 8(e)(2): Pleadings are sufficient regardless of inconsistency. - Separate claims or defenses that are inconsistent are ok. ex. A says no K and that A kept her side of the bargain. - Why allowed? 1. At pleadings stage: early: ; Lawyer is setting out possible versions of law and facts. 2. Burden of Proof Strategies. 3. Alternative versions that lawyer hopes one of which will ultimately persuade the judge or jury. 4. The statements must be made subject to Rule 11 obligations.

E. Business Guides v. Chromatic Communications Enterprises US SC 1991

FACTS: BG, P, trade magazine publisher, uses “seeds” to protect against copyright infringement. CCE, D, allegedly had 10 BG “seeds” in its publication. BG sued for criminal infringement, conversion, unfair competition, and seeks TRO. DIST CT clerk investigation revealed that 9/10 of “seeds” listings provided by BG were in fact correct.

DIST CT: No TRO and to Magistrate for determination as to whether Rule 11 sanctions ought to be imposed. Law firm and client were sanctioned. Action 4

dismissed with prejudice and $13,865.66 in sanctions (CCE’s legal expenses + out-of-pocket costs).

H/R/Notes: DIST CT affirmed.  BG explained correct “seeds” by saying that the questionnaires were incorrect, so the “seeds” came out correct = honest mistake.  CT accepted the explanation, but still imposed sanctions. Why? 1. No proper inquiry or investigation by BG before suit. 2. Failure to inquire into remaining “seeds” after initial discovery. 3. No logic in representations; use of “coincidence” defense.  Rule 11 standard = “Objective Reasonableness” which was violated here.

11(a): Signature: By attorney or if no attorney, by the party…To evidence warranted facts and allegations.

Research into: 1. Facts 2. Law

If omitted, paper is stricken unless lack of signature promptly corrected.  Legal Arguments by BG: 1. Rule 11 applies only to attorneys, not to the represented parties. CT: No, b/c BG actually signed the pleadings…put themselves on notice.

Both attorney and parties sanctioned and equally responsible even though the represented parties may be less able to investigate the legal basis. Is this fair? Ware says no. Parties should know only of the facts.

2. Violates Rule of “Impermissible Fee Shifting” (Parties must bear own costs). CT rejects.

3. Wrongful prosecution. CT rejects.

F. Religious Technology Center v. Gerbode US DIST CT Ca. 1994

FACTS: RTC, Ps, allege Ds violated RICO by engaging in acts of mail and wire fraud in connection with non-profit corps. Mayo and Church of New Civilization, Ds, seek attorney fees of $80,030 under Rule 11.

Ps say motion should not be considered: “Safe Harbor” amended Rule 11 – 21 days after service to file for sanctions. Rule effective same day as dismissal, so not applicable here.

H/R/Notes: Rule 11 regulates attorney behavior…frivolous suits, lack of reasonable investigation, etc. will result in sanctions. 5

1. Rule 11(b)(2): Claims and Defenses must be “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law”. – Ps’ RICO theory was neither. “Reasonable” inquiry fails. 2. Rule 11(c)(2): Sanction is limited to what is sufficient to deter repetition of such conduct. (CT has discretion…sanction is weighed against the violation…non-monetary sanctions are available). This case: Partial award of attorney fees is necessary as a deterrent to bringing frivolous suits. Non-monetary sanctions are unavailable for such violations by attorney. An equal amount goes to the CT as a deterrent as well.

Rule 11(c)(2)(A) For violations of 11(b)(2), monetary sanctions may not be awarded against a represented party – REVERSES BUSINESS GUIDES DECISION. [may impose monetary sanction for (b) (1), (3), (4) violations – review!]

Rule 11(c)(1)(A) states that a law firm can be held jointly liable for violations committed by its partners, associates, and employees absent exceptional circumstances.

This case: Law firm (for attorney) will pay fees to Ds and to the CT. 3. Can impose against co-counsel law firm if they had a “part in causing the violation” even if they did not sign the pleadings. This case: co-counsel played no such part.

G. DiLeo v. Ernst & Young 7th Circ. 1990

FACTS: DiLeo, Ps in a class action, claimed that E&Y violated §10 of the Securities Exchange Act of 1934…1. Fraud 2. Aided and Abetted Bank for Fraud.

DIST CT- dismissed suit; settled under another suit; P failed to show scienter by Ds; have not pled w/ specificity as required by FRCP Rule 9(b).

H/R/Notes: Reviewed and DIST CT affirmed…For Ds.  Complaint does not give examples of problems that E&Y should have caught or recognized as inaccurate.  Poor timing of the write-off does not equal fraud.  Securities laws do not protect against reverses and unsound business practices…would increase costs of ordinary business.  Ps fail to show why their situation is different from other business reverses affects  Rule 9(b): For fraud or mistake, “circumstances” must be in detail, “stated with particularity”. 6

Why? Because to allege fraud is stigmatizing with respect to moral perpitude, etc.

Opposite of Rule 8 (generalities are sufficient)…need who, what, when, why.  Complaint suggests that the differences between 2 statements of the firm’s condition = Fraud.  Ps lose on merits, so addressing dismissal is unnecessary.

Notes: Problem for P: need salient facts to explain fraud…these may not come out until discovery.

H. Schultea v. Wood 5th Circ. 1995

FACTS: Police chief investigates city council criminal activity. Council demotes him. P sues council for: 1. Violations of due process 2. First Amendment infringements.

Council members move to dismiss, stating that 5th Circ. case, Elliot v. Perez (Issue: Should P anticipate “qualified immunity” defense and plead specific acts to overcome it?; Requires specific pleadings for civil rights) survives Leatherman (SC 1993- More specific pleadings are not required of civil rights Ps and violators survive “qualified immunity” if actions took place under a “reasonable misapprehension of the law”; 42 U.S.C. § 1983: if acted under the “color of law”, get qualified immunity, but P deprived of Constitutional rights may bring suit).

H/R/Notes:  P can be required to engage affirmative defense of qualified immunity when invoked, but P need not fully anticipate it in complaint at risk of 12(b)(6) dismissal for failure to do so.  QI defense is a barrier to discovery.  Rule 7(a): CT may order a reply to an answer…This is where P should counter the QI defense.  In response to Leatherman, the CT may require P to: 1. make a “short and plain statement” that rests on more than conclusions. 2. reply to QI affirmative defense. 3. have limited discovery as to QI affirmative defense.  Concurrence: “Heightened Pleadings”, not Rule 7(a) reply approach. Rules Enabling Act – cannot “modify, enlarge, abridge” FRCP; QI is a substantive, not procedural immunity. Gov’t. official will be willing to go and give up some substantive rights to avoid burden of preliminary litigation. 7

 This case is inconsistent with Leatherman – TENSION. H: When D pleads QI defense, DIST CT may order a reply by p pursuant to Rule 7(a) to give more detail/answer to an affirmative defense.  Q: Given Leatherman and Rule 8, was the 5th Circ. justified in invoking Rule 7(a) to require P to give more detail? No. Lower CT cannot go against the SC.

I. Gomez v. Toledo US SC 1980 Burden of Pleadings

FACTS: Petitioner, Gomez, was transferred to a non-investigative position after asserting that 2 other agents had offered false evidence in a criminal case investigation. Gomez was later subpoenaed to testify against the two at which time allegations of unlawful wiretapping to get the info were brought against him. Investigation, Prosecution, & Appeals Commission of Puerto Rico revoked Gomez’s discharge. P is claiming violation of due process and damages for injury to reputation and embarrassment. D denied, offered affirmative defenses and filed 12(b)(6).

DIST CT and CT of APP- granted D’s 12(b)(6) motion. - 42 U.S.C. § 1983 – QI for acts done in good faith within the scope of his official duties. Gomez must plead and prove bad faith, which he failed to do = dismissal.

H/R/Notes: Reversed. Found for Gomez.  P must only allege: 1. Deprived of a federal right. 2. Person who deprived him acted under State or Territorial Law. – DOES NOT HAVE TO PLEAD BAD FAITH…only D must allege good faith for the QI affirmative defense.  Complaint must only satisfy Rule 8.  QI is a defense – not essential to P’s cause of action…P does not have to anticipate it in pleadings and D has to prove it.  To impose burden on P would be unfair…D has more knowledge as to subjective belief.

J. Rule 8

8(b): D can deny only those allegations he actually disputes… “pleader shall specify so much of it as is true and material and shall deny only the remainder”.

8(d): Any allegation not denied is admitted (for averments in a pleading to which a responsive pleading is required – other than amount of damage; averments in pleadings to which no responsive pleading is required or permitted shall be taken as denied or avoided)

K. Zielinski v. Philadelphia Piers, Inc. E.D. Pa. 1956 Denial 8

FACTS: Zielinski, P, filed suit against PPI or Carload Contractors, D, for forklift injuries. PPI in an answer to the complaint, stated “Paragraph 5 – Denied” because PPI had handed ownership over to Carload Contractors.

H/R/Notes: PPI should have filed a more specific denial to warn P he had sued the wrong D.

 Equitable Estoppel: To keep a D from depriving P of his right of action when D knows statements in the record are inaccurate.  Ps learned at the pre-trial conference that they were suing the wrong D.  Ware: Even though Ds did not meet Rule 8(b), did they not meet it more than they did not meet it? Are the sanctions justified? Was there bad faith here? Should have said: “Deny, except to admit that…”  Rule: Denials should meet the subjects of the averments.

L. Layman v. Southwestern Bell Telephone Co. Mo. CT of APP 1977 Denial v. Affirmative Defense

FACTS: Layman, P and a Jefferson County property owner, seeks damages against SW Bell who installed wires and cables without her consent. Count I: Trespass to property; $7500 + $2000 punitive (willful and forceful). Count II: Damages to be restored to possession of real property.

TR CT: For D b/c of insufficient evidence.

H/R/Notes: Is the claim of an easement an affirmative defense? Yes, so P wins.

D gave an easement defense – P says D should have raised as an affirmative defense at trial instead of a general denial in the answer.

 Easement, though not specifically listed in Rule 8(c) as an affirmative defense (D argued this), falls under “any other matter constituting an avoidance or an affirmative defense” [review specific affirmative defenses listed].  Rule 55.08 says that license = affirmative defense.  “Affirmative Defense” – If D intends to rest his defense upon some fact not included in the allegations necessary to support the P’s case. Rule: So, since P did not need easement info. to support a trespass case, D’s defense is affirmative.  If D were to go onto the land the next day, P would file a new case and D would know to put affirmative defense in the answer (or in Fed CT, pleadings could be amended). D would win. So why hold SW Bell to this 9

pleading technicality? Because P needs to be aware at pleadings stage of affirmative defenses…FAIRNESS.  AFFIRMATIVE DEFENSES NEED TO BE ASSERTED WITH THE ANSWER. FOR THE SAME REASON P MUST GIVE D NOTICE OF ALLEGATIONS, D MUST GIVE P NOTICE OF PLEADINGS.

M. Beeck v. Aquaslide ‘N’ Dive Corp. 8th Circ. 1977 Prejudice

FACTS: Beeck, Ps, were injured on a waterslide manufactured by D. After an on-site inspection of the slide, D admitted to manufacturing the slide, but then moved to amend its answer to deny manufacturing it.

DIST CT: Granted motion to amend after statute of limitations had run.

Rule 15(a): May amend (after issue has been joined – before answer) by leave of CT or written consent of the adverse party; leave shall be given freely when justice so requires (Should be given unless doing so would prejudice other party or cause inefficiency/delays; Strong presumption in favor of allowing the amendment unless: 1. Bad faith, or 2. Undue delay)

H/R/Notes:  To overcome amendment, opposing party must show “prejudice” Hanson. This case: S of L run, but DIST CT said not enough…to not grant would be prejudicial to D. So, DIST CT did not abuse discretion.

PREJUDICE = impairing the party’s legal rights. Not hurt/disadvantage or party losing!

Amending does not do this to P b/c Aquaslide did not manufacture the slide. P has sued the wrong D, so P does not lose anything. No bad faith here. P will still be able to sue correct D.

So, Leave to Amend granted to D.

 Separate Trials: 1. For efficiency. 2. To protect D from prejudice. 3. Since judicial economy is beneficial to all parties, TR CT did not abuse discretion…Rule 42(a) Consolidation of actions.

 If D wrongfully hides that they are the manufacturer, equitable estoppel applies out of fairness to P.

N. Moore v. Baker 11th Circ. 1993 10

FACTS: Moore, P, sued D, Dr. Baker, for violation of Georgia’s informed consent law by failing to advise of an alternative therapy. 8/6/91: D moves for summary judgment. 8/26/91: P moves to amend the complaint to include N allegations.

DIST CT: Denies P motion b/c S of L would run and claim would be futile; P appeals claiming abuse of discretion.

Rule 15(c): Amendment can relate back to the original filing “whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading”

H/R/Notes: Issue: Did the original claim give D notice of the new claim?

 Azarbal: Original claim did provide adequate notice of any claim arising from the amniocentesis. CT distinguishes this case: 1. No notice to D of N claim – no reference to acts of N; focuses on actions of D before surgery. 2. Amended complaint does not Relate Back to the original complaint; New claims are barred by the applicable S of L (informed consent is distinct from N count).

P’s motion to amend is denied…no abuse of discretion.  Relation Back Doctrine: Amendment, if it relates back to the original pleadings, is treated as if it was filed on the same date the original complaint was filed. Must arise out of “same conduct, transaction, or occurrence” set forth in the original pleadings. - Notice is key to the CT’s decision…notice to D to prepare/anticipate defenses, etc. - Rule 15(c) – Review all parts!

O. Bonerb v. Richard J. Caron Foundation W.D. NY 1994 Expansive View of Relation Back

FACTS: P slipped and fell playing on D’s CT. P sued for a negligently maintained court. Later, P wanted to amend and add a cause of action for “counseling malpractice”. D objects…barred by Pa.’s 2 year S of L b/c does not relate back to original pleadings.

H/R/Notes: Amendment relates back b/c same “operational facts”. D had notice b/c of a “mandatory exercise program” and “rehabilitation care was negligently performed” (assertions in amendment). 11

 2 Theories of N, but of same transaction or occurrence.  Original complaint had D’s failure to “properly supervise and/or instruct P”…this is notice of a possible claim based in N performance of professional duties.  D says no time to prepare defenses. P says there has been no discovery, witnesses, etc. yet.  No undue delay or bad faith on the part of the P.  Ware: This “same operative facts” is a stretch.

II. Discovery

A. Blank v. Sullivan & Cromwell S.D. NY 1976 Scope of Rule 26

Discovery: Information is relevant if it tends to prove or disprove something the law says matters.

FACTS: Ps were female lawyers who were not hired as associates and sued alleging sexual discrimination in hiring.

CT order denied Ps’ discovery as to interrogatories for which the CT said the info. was about D partners and irrelevant to the subject matter before the CT.

H/R/Notes: P’s discovery request upheld; D directed to answer interrogatories: 1. Rule 26: Entitled to discovery of information which “appears reasonably calculated to lead to the discovery of admissible evidence”. 2. General info. of D’s labor hierarchy may be reflective of exclusionary or restrictive hiring practices. 3. Royall, Koegel & Wells – CT granted similar discovery rights to P… whether or not females make partner is relevant to an employment discrimination inquiry. 4. Evidence of sexual discrimination at the partner level may lead to evidence of sexual discrimination at the associate level (which is admissible). Demonstrates the broad scope of Rule 26.

B. Steffan v. Chaney DC Circ. 1990

FACTS: P resigned from the U.S. naval Academy and filed suit for constructive discharge and challenged constitutional regulation that permitted discharge of admitted homosexuals.

P asserted 5th amendment right against self-incrimination and refused to answer Qs as to his homosexual activities. Claimed that they were irrelevant, privileged, and beyond the scope of Rule 26. 12

DIST CT – dismissed P’s action for failure to comply with discovery order. Rule 37(b)(2) Sanctions for Failure to Comply with Discovery imposed.

H/R/Notes: REVERSED based on an error of law.  Cannot force P to disclose homosexual activity unless it was the basis for his discharge. This case: His admitting he was a homosexual was the basis of his discharge, so P does not have to answer the deposition questions.  Navy must show: This regulation is rational and supports a gov’t. goal.  Ware: Would argue: Homosexuals would undermine morale, etc…would make it difficult to maintain order (a gov’t. goal)…need conduct evidence to show this rationale.

C. Rule 26

Scheduling and voluntary disclosure: 1. List of things to disclose. 2. Obligates meeting and proposed list of disclosure. 3. Obligates voluntary disclosure of things. * To move discovery along, but in reality, people find ways to slow it down.*

“Privileged” Information: Information that may not be available even though relevant.

C. Seattle Times Co. v. Rhinehart US SC 1984

FACTS: Rhinehart, a member of a spiritual group, filed suit against the Seattle Times for publishing “fictional and untrue” articles about his group (defamation and invasions of privacy). During discovery, Rhinehart refused to disclose certain financial information about the group.

TR CT: Granted petitioner’s motion to compel, but also granted a protective order based on Washington’s version of Rule 26(c). Both parties appealed the portions of the decision adverse to them.

H/R/Notes: Deference to TR CT:  Trials are public, but pre-trial depositions and interrogatories are not public (So, R must provide financial information).  Civil litigant has no 1st Amendment right to access – right to information is from the CT’s motion to compel disclosure.  Protective order can be granted if Rule 26 is satisfied…Rule 26(c): CT may limit discovery in a number of ways if, after a good faith effort to resolve the dispute without the CT’s intervention has been shown, on matters relating to the deposition, justice requires to “protect a party or 13

person from annoyance, embarrassment, oppression, or undue burden or expense”.

D. Schlagenhauf v. Holder US SC 1964

FACTS: Holder, Ps and passengers of bus, were injured when the bus collided with the rear end of a tractor trailer. Ps are suing Schlagenhauf (bus driver), Greyhound, Contract Carriers (tractor owner), and National Lead Co. (trailer owner) for N. Ds denied the allegations. A cross-claim (one D against a co-D) was filed by Greyhound against Contract Carriers for N. D denied this allegation as well, stating in a letter in the answer: Bus driver was not “mentally or physically capable of driving the bus at the time of the accident”. The bus driver was to take 4 examinations:

1. internal medicine 2. ophthalmology 3. neurology 4. psychology

DIST CT: Ordered 9 exams, but petition only requested 4. CT of APP: Denied mandamus by the bus driver to set aside DIST CT exam orders.

H/R/Notes: Issue: Does Rule 35 apply to this case since bus driver is not a party to the cross-claim?

Rule 35: Physical and Mental Examinations of Persons

(a) If physical or mental condition is “in controversy”…The order may be made only on motion for “good cause” shown and upon notice to the person to be examined and to all parties…

Note: TR Judge decides “in controversy” and “good cause”.

(b) Report of Examiner…

 Bus driver says that the exams are a modification of his substative right to privacy. Sibbach: Rule is procedural, not substantive, so allowed within the Rules Enabling Act…WAIVER THEORY (P waives right to object b/c brought the suit).  Schlagenhauf was a party to the action by virtue of the original complaint…this is enough for examination under Rule 35 “parties” is sufficient…need not be an “opposing party vis-a-vis the movant”. 14

 “Good cause” showing not required. Guilford Nat’l. Bank: If a showing is required, Rule 26(b) will cover it b/c it will be relevant (to lead to admissible evidence…) to the case.  This case: Movants did not show “in controversy” or “good cause” b/c the affidavits only had a specific allegation in regard to vision (ophthalmology exam allowed).

NO EXAMINATIONS!

Why could Rule 35 be justified in this case? Because the P has a right to obtain physical exams out the right to relief for injuries. D’s privacy rights do not outweigh P’s right to recover for injuries from D’s alleged misconduct.

E. Hickman v. Taylor US SC 1947 Relevant v. Privileged Information

FACTS: After an accident, tug owner attorneys interviewed witnesses and the injured in preparation for trial. These opposing parties requested copies of these statements in interrogatory.

H/R/Notes:

 Tug owners said that the information was privileged as attorney-client. CT rejected: No attorney-client privilege b/c the information was from witnesses. Attorney-client privilege requires an attorney, a client, and an expectation of confidentiality.  Work Product: Rule 26: Attorney preparations (not necessarily filed with the CT). Exs. observations, lists of potential witnesses, strategies, conclusions, impressions, legal conclusions, etc.

CT said the information was privileged as work product…Ware: - Not effective to give away the attorney’s thoughts, etc. - The legal authority for this is not from statutes, but from policy considerations – Some degree of privacy is necessary or implicit in the legal process (especially in discovery).

1. Qualified Privilege: “Substantial need” – memos, witness statements, etc. 2. Absolute Privilege: “Legal Theories” – strategy, mental impressions, legal theories.

F. Expert Testimony

1. Relevant and Unprivileged Information. 2. Concern similar to that of work product:  freeloading off of others work v. access to trial info. 15

 Cross-examination…need: - opportunity to depose witness. - documents upon which the expert bases their opinions 3. Rule 26(a)(2): - requires information about the expert and basis for testimony. - adversary must receive:  written report signed by witnesses w/ statement of opinions and reasons and other info.  deposition takes place only after this report is given. 4. Rule 26(b)(4): Distinction b/c one may be better suited to take the stand: - TESTIFYING EXPERT (discoverable): Experts must submit trial deposition. - NONTESTIFYING EXPERT (nondiscoverable): Party may discover facts or opinions under exceptional circumstances (if it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means) or pursuant to Rule 35. 5. Objective: To protect the mental processes of those using facts to prepare for litigation, not the underlying facts themselves.

6. Cases:

Thompson v. The Haskell Co. M.D. Fla. 1994 Balance: Protection of preparation process v. Possibility that non-testifying expert has the only access to the facts.

FACTS: P was depressed and her employment was terminated after she did not acquiesce to the advances of her supervisor. P, pursuant to Rule 26(b)(4)(B), wishes to shield her psychologist’s records from D. A report was made for the prior counsel.

H/R/Notes: Motion is denied. Rule 26(b)(4)(B) does not apply, but if it did, exceptional circumstances apply and motion would be still be denied.

 Examination report is “highly probative” with regard to the allegation of severe depression, an essential element to her case (b/c the report was made 10 days after her termination). - No other comparable report was made in the weeks that followed, so under Rule 26(b)(4)(B), there were no other means of obtaining the 16

information, so “exceptional circumstances” apply. - Independent exams pursuant to Rule 35 would not contain equivalent information b/c the timing is not the same.

 CT: Rule 26(b)(4)(B) does not apply b/c the information was “highly probative” and could not be shielded. Even if rule did apply, “exceptional circumstances” kick in and allow information to be given to the employer.

Chiquita Int’l. Ltd. v. M/V Bolero Reefer S.D. NY 1994

FACTS: Shipper, Chiquita, sues carrier, Int’l. Reefer Services, for cargo loss and damages. Int’l. Reefer has applied to compel discovery of Joseph Winer, a marine surveyor who examined the vessel and loading gear for Chiquita in Germany.

Int’l. Reefer: characterizes Mr. Winer as a fact, not expert witness, and even if he was an expert witness, “exceptional circumstances” allow discovery b/c he was the only surveyor to observe the vessel shortly after it docked in Germany.

Chiquita: Nontestifying expert is protected by Rule 26(b)(4) (B).

H/R/Notes: Int’l. Reefer is denied discovery.  Mr. Winer is not merely a fact witness just because he made observations and learned facts for the basis of his opinion rather than basing opinion on observations of others.  Rule 26(b)(4)(B) precludes discovery of “facts known or opinions held” by nontestifying expert…ANTICIPATES THAT EXPERT MAY MAKE OWN INVESTIGATION.  Distinction: Mr. Winer was hired to make an evaluation in anticipation of trial…not an expert testifying in the ordinary course of business (ex. routine autopsy, treating physician, etc.).  ****Best Argument****: No “exceptional circumstances”: - Int’l. Reefer could have sent its own experts to the scene. If the CT allowed discovery, the “exceptional circumstances” exception would become the rule itself.  Information simply conveyed to a nontestifying expert is not exempt from discovery. 17

G. Controlling Discovery Abuse

Anatomy of Discovery Abuses: 1. Too little = “stonewalling”. 2. Too much = discouraging or hampering opponent by seeking more than the case justifies. 3. Mismatched = parties are of unequal wealth…no abuse, but unfair advantage.

1. Rules

Rule 26(g) – Rules for lawyer behavior…signature on disclosure to verify that discovery is complete and correct as of the time it was made; signature on discovery requests, responses, objections for good faith, consistent with rules/law, not “unreasonable or unduly burdensome or expensive” given the needs of the case (if not signed, stricken unless signed promptly after brought to attention); CT may sanction reasonable expenses for violation, including reasonable attorney fees.

Rule 26(c) – Protective order to limit discovery…discoverable, but produces “annoyance, embarrassment, oppression, or undue burden or expense”…CT tells how discovery will take place (ex. protects trade secrets).

Rule 37 (2) Motion For Order Compelling Discovery or Disclosure (A) good faith effort to secure disclosure w/o CT action. (B) Request for inspection not responded to…need good faith effort to secure info. or material w/o CT action.

Rule 30(d) Depositions: Schedule and Duration; Motion to Terminate or Limit Examination (1) Can instruct deponent not to answer when… 1. To preserve privilege. 2. To enforce a CT directed limitation on evidence. 3. To preserve a motion. (2) CT may limit time, but may allow additional time if needed for fair examination or if other party impedes or delays (sanctions – including reasonable expenses and attorney fees) examination or conduct that frustrates fair examination of deponent. (3) If motion of party or deponent AND a showing of bad faith in examination, or conducted to annoy, embarrass, or oppress the deponent or party, CT in which the action is pending OR district where deposition taken may order officer to cease deposition or may limit the scope pursuant to 26(c). 18

If terminates, resumed only by CT order where action is pending.

Can me suspended by parties or deponent by making motion for order.

2. Cases

Phillips v. Manufacturers Hanover Trust Co. S.D. NY 1994

FACTS: Employment Discrimination suit; attorney asked D to produce a witness who could testify to employment in a certain sector of the company. D’s lawyer made it difficult to conduct the deposition (interruptions, etc.). P wants to suspend the deposition for the time necessary to make a motion.

H/R/Notes:  Rule 37 – Not applicable here ---not applicable here b/c there was no existing motion to compel – no violation of such an order and no failure of the deponent to appear as scheduled.  28 USC §1927 – attorney who acts in bad faith to increase the costs of the proceedings may be personally liable for those costs…BAD FAITH NOT SHOWN… “conduct not so egregious”.  Inherent CT power – to “manage their own affairs so as to achieve orderly and expeditious disposition of the case”---bad faith showing requirement not met.  Rule 30 – objections during a deposition are to be stated concisely in a non-argumentative and non-suggestive. manner…costs to attorney otherwise---rule met, but no sanctions to P b/c P could still complete the deposition (D only got notice).

Kotes v. Super Fresh Food Markets, Inc. E.D. Pa. 1994

FACTS: P motion to preclude the testimony of witness and D’s cross motion to preclude testimony of a witness.

H/R/Notes: Both Motions Denied…  Rule 26(a)(1) – must disclose potential witnesses w/o awaiting formal discovery requests and supplemental info. as trial date approaches (not for information made known in writing or otherwise during the discovery process). 19

If not dine, witnesses are excluded unless failure to disclose is 1. Substantially justified, 2. Harmless, 3. Evidence for impeachment.  Sanction if no good faith effort.  Pre-trial in E.D. Pa. – must id each witness and provide a brief statement of evidence each will provide. ---- Why all this? So as not to prejudice the parties.  P delays caused some problems and D had opportunity to depose eventually (cured), etc…NO MOTIONS GRANTED!

III. Resolution Without Trial

A. Peralta v. Heights Medical Center US SC 1988

FACTS: Hospital is suing to recover $5600 due under appellant’s guarantee of a hospital debt incurred by one of his employees. Summons was served to appellant, and returned marked, “personal untimely service”; appellant did not appear in court. The court entered default judgment for $5600 plus attorney fees and costs.

Peralta wants to set aside the default judgment. 1. Service served 90 days after issuance so defective. 2. Property attached and sold for less than its true value – claimed he would have sold the property himself to satisfy the judgment if he had had notice. 3. Constitutional due process argument.

Hospital files for summary judgment …says D must have a “meritorious defense” (a winning or good defense to the underlying action).

H/R/Notes:  Mullane: Notice is essential for due process. This case: Despite lack of notice, TX CT asks him to give a meritorious defense.  CT: Reverses…Notice is necessary for Due Process and the 14th Amendment. Rules on constitutional grounds that the meritorious defense argument lacked due process.

Notes: 1. Rule 55: Default Judgments: If D fails to plead or otherwise defend. 2. Rule 41(b): Involuntary Dismissal: If P initiates suit but then fails to respond to his litigative cues.

B. Kalinauskas v. Wong D. Nev. 1993

FACTS: Former employee sues Caesar for sexual discrimination. Employee wants to depose former employee, Donna Thomas, who settled a sexual 20

harassment suit against Caesar. Thomas had negotiated a confidentiality settlement agreement with Caesar, so D filed a protective order to keep the info. sealed.

H/R/Notes:  Enforcing the confidentiality clause encourages buying the silence of witnesses and undermines the public interest in such suits.  Disclosure discourages settlement.  CT: No enforcement of the confidentiality clause (despite binding K). Ps would have eventually gotten to this information, so CT must modify the protective order to allow disclosure so long as forcing a disclosure does not prejudice D (D must show actual prejudice) (Wilk).

C. Neary v. University of California Ca. 1992 Vacating Judgment

FACTS: Libel Action. $7 million dollar jury verdict. Neary wants judgment vacated due to a post judgment settlement.

H/R/Notes: Issue: Whether the parties can vacate the decision from the trial court to effectuate the settlement.

This is the right of the Court of Appeals.

Rule: Stipulated reversal. Parties should get the reversal unless there are exceptional reasons why they should not. Policy: Efficiency and fairness; Policy favoring settlements to save judicial resources. Makes no difference that it was a post judgment settlement.

D. U.S. Bancorp Mortgage Co. v. Bonner Mall US SC 1994 Vacating Judgment

FACTS: Bonner claimed no jurisdiction here because the claim was moot. Bancorp had voluntarily entered into a settlement agreement. Bancorp seeks review of the lack of jurisdiction due to mootness.

H/R/Notes:

Rule: A party seeking appellate review who is frustrated by mootness has a right to review in the SC.

Issue: Does this rule apply since the case has been settled? 21

* Bonner claims that the SC should reject review appeal because there there is no actual case or controversy and the Court does not give advisory opinions. * SC: General rule does not apply here because Bancorp entered voluntarily into the settlement and forfeited the right to take advantage of the rule.

Difference between Neary and US Bancorp: Neary: Parties are entitled to review; does not undermine judgment just because the review is post judgment. Can nullify or vacate a judgment and apply the settlement.

US Bancorp: Party who seeks review of an adverse judgment, frustrated by mootness, should get review. The rule does not apply in this case because Bancorp entered into the settlement agreement voluntarily.

E. Ferguson v. Writers Guild of America, West Ca. App. 1991 Arbitration

FACTS: WG had a credit arbitration procedure for resolving disputes which involves 3 arbitrators who deliberate separately and sect is notified of decision. F filed in CT against the WG because of procedural flaws (said did not get a fair hearing).

H/R/Notes: F loses…Judgment is affirmed. Narrow standard for judicial review…but if CTs need to review for a fair and unbiased hearing, they may even though it does not fall into one of the 3 categories below.

Three grounds for which arbitration could be challenged: Look at… 1. Whether or not the arbitrators overstepped their powers granted by the arbitration agreement. 2. Whether the parties agreed to the arbitration. 3. Whether the procedures denied the parties the opportunity to be heard.

Three main points on which F’s claims were rejected: 1. **** Should have appealed to policy review board…did not exhaust the remedies before coming to court. 2. Even if F could come to CT, CT thinks correct procedures were followed. 3. Secrecy procedures were proper (not disclosing arbitrators identity so as not to pressure them).

Also, WG more familiar with how credits are given than the CTs. 22

 In this case, the “paper review” (no hearings w/ witnesses) was appropriate b/c the writers have knowledge of peculiarity of the industry…no need for the burden of an expensive trial.

F. Engalla v. Permanente Medical Group, Inc. Cal. 1997 Arbitration

FACTS: K between Kaiser and Engalla. Any claims were to go to arbitration. Engalla files claim and dies before the arbitration resolution. Family files malpractice claim in Ca. St. Ct.

H/R/Notes: Arbitration Agreement will not be enforced.

* Family said K was unenforceable: - Self-administered corrupt agreement (in house arbitration). - Fraudulent misrepresentation that arbitration would be expeditious. - Deliberate conduct by Kaiser to delay resolution of claims and as a result, Engalla’s death prejudiced his wife’s loss of consortium action. - Arbitrators: 2 Kaiser and 1 Neutral. Unconscionability – Kaiser administered the program in a non-neutral way. CT rejects: K itself was not unconscionable, only the manner in which it was carried out…so, doctrine of fraud out to be applied.

H. Celotex Corp. v. Catrett US SC 1986 Summary Judgment (When, at the close of discovery, no dispute as to the facts…seek decision as a matter of law).

FACTS: Celotex moved for summary judgment, saying P had failed to produce evidence that an asbestos was the proximate cause of the injury.

DIST CT: granted Celotex’s summary judgment b/c no evidence of exposure. CT of APP: Reversed.

H/R/Notes:  Catrett: Submitted 3 documents in response and support; claims that this is enough to overcome the summary judgment motion. [A showing of existence of evidence is enough to overcome summary judgment ---does not need to prove anything as far as the merits are concerned.]  Celotex: P has not shown proof of asbestos exposure, so no need to go to trial…if you cannot show exposure, you cannot show proximate cause. 23

ISSUE: Has the moving party met its burden of making a showing sufficient to establish the existence of an element essential to its case (Rule 56(c))?

- Burden of Proof - Moving party: D must point out absence of evidence to support nonmoving party’s case, not an absence of a genuine issue of material fact; P (to oppose motion) must show that it has enough evidence to win and D does not have enough evidence to overcome P. - Burden of proof in civil cases: P has burden (51% balance). - Ware: Must be appropriate to decide the dispute as a matter of law, not simply that there is no genuine dispute as to material fact. - Before Celotex, D had to affirmatively prove the P has no evidence. - Remanded to CT of APP so that the standard defined in this case could be applied…Celotex still got summary judgment.

I. Visser v. Packer Engineering Associates 7th Circ. 1991

FACTS: Visser filed for violation of the Age Discrimination Employment Act when Packer fired him (at age 64 – 9 months short of his pension plan – 2/3 lost) allegedly b/c of a refusal to pledge loyalty to Packer. Undisputed: Packer had a domineering personality and dissident board members went to start their own firm. Visser: Evidence for opposition to the motion for summary judgment: 3 dissident affidavits that termination was related to age and that Packer knew of Visser’s closeness to pension (CT rejects b/c knowledge of being close to pension is not enough…needs evidence that Packer was concerned about pension costs, “Visser will never get pension” statement, etc.)

Visser lost and appealed.

H/R/Notes: Reversed…Visser loses:

 The witness testimony and affidavits did not comply with Rule 56…were not made based on persona knowledge (Rule 56(e)).  Inference from primary facts is ok, but no such primary facts were known to witnesses here.  Age motive must meet the “but for” test.  No indication of a pretext here.  “Mixed Motive” case: P argued disloyalty and age. Disloyalty is not an illegal reason…P must show an illegal reason. P must show at trial that age was a substantial factor in the termination. 24

For it to not go to trial: A reasonable juror must not be able to conclude that age was a substantial factor in the termination.

Probably was enough for it to go to the jury.

J. Lockhart v. Patel E.D. Ky. 1987 Pretrial Conferences

FACTS: Summary trial for claim of medical malpractice. Jury awarded P $200,000. During a telephone conversation, D’s insurance carrier said that the maximum settlement would be $125,000. P wanted $175,000.

CT ordered the parties to have a settlement conference and D’s insurance carrier was to bring a representative who was authorized to enter into a binding settlement offer. Insurance Co. failed to comply, sending an adjuster who could not offer any more than $125,000.

CT striked pleadings and declared D in default, relying on Rule 16(f) – sanctions to parties not attending settlement conferences.

H/R/Notes: Issue: Does the CT have authority to order the ins.co. to attend the settlement conference and to sanction for failure to do so?

 Ins. Co. is not a party, but CT said the hearing would be meaningless if they did not include the party’s liability ins.  Heilman: The point of settlement is to manage caseloads effectively and efficiently; must pressure settlement.

Ware: Was the pressure undue here? Ware says yes! - no obligation to settle for more than $125,000. - striking the pleadings – default judgment: harshest sanction should not be imposed first.

 CT cannot require settlement, but can require reasonable efforts to do so.  CT said disobedience was “disrespect and disregard for the authority of the CT”.

K. McKey v. Fairbairn DC Circ. 1965

Pretrial Statement: Keeps trial focused and parties know arguments. 25

Cannot introduce new theory at trial especially when there was: 1. A pretrial order by the CT, and 2. It would introduce surprise or prejudice.

Dissent: Any surprise could have been cured by allowing a delay in the trial.

IV. Identifying the Trier

A. Chauffeurs, teamsters & Helpers, Local No. 391 v. Terry US SC 1990 FACTS: Respondents claimed that the employer violated their collective bargaining agreement and the Union violated their duty of fair representation.

H/R/Notes: Issue: Were respondents entitled to a jury trial under the 7th Amendment (Right to jury for suits at common law)?

Ware: Law CTS: handle Ks, Property Rights, etc. Equity CTS: created remedies not available at CTS of law.

Two step process to 7 th Am. analysis:

1. Nature of the issues – kind of case; what substantive area of law? 2. Nature of remedy – legal or equitable?  Historical Test: Was there such a case or claim deemed as legal/equitable? If not…  Look at an analogous situation to the modern situation.

- Union: This was an action to vacate an arbitration equitable award. But CT rejects: no grievance process so there was no award to vacate (not analogous enough).  trust/beneficiary: analogous fiduciary relationship (union/employees).  SC: persuasive b/c of good faith requirement and no direct control over trustee and union in such relationships, but too many differences. - Respondents:  Right to jury b/c claim like CT of law claim (by analogy).  Attorney malpractice.  SC rejects: Client controls the significant decisions concerning his representation. Client can fire attorney; union members must rally together to effectuate change.  Respondents must prove this for the nature of the issues: 26

1. §301 breach of the collective bargaining agreement = K and legal. 2. Union breached duty of fair representation = fiduciary duty and equitable.

 Respondents want back pay and benefits.

SC says the nature of the remedy is legal, not restitutionary b/c: 1. if grievances had been filed properly, back pay would have been received. 2. $ award only, no intertwined injunctive relief, so legal.

So, Respondents are entitled to a jury trial.

Ware: If legal claim, right to jury trial. Terry Test: 1. Nature of the issues, and 2. Nature of the remedy.

B. Markman v. Westview Instruments, Inc. US SC 1996

FACTS: Interpretation of a patent claim: Specification: description sufficient to permit another duplicate. Claim: prevents exact duplication of invention and de facto infringement (cannot put a non-critical change).

H/R/Notes: Issue: Jury Q or Q reserved for the CTs?

CT: Rests in the meaning of the word “inventory”.  Test for judges: 1. Historical test (as in Terry) (at time Constit. was adopted); not just precedent, but the handling of matters historically. If no answer here… 2. Whether as a matter of sound judicial administration, a judge or jury is in a better position to decide.  This case: 1. No history for “inventory”, so… 2. “Sound Judicial Administration” ---What is it that juries do that make them in a better position to decide? Fact-finding – credibility determinations. 27

So, CT here says that the judge is better equipped b/c it is a matter of interpretation within a technical background (used to written technicalities)…EX. Patent judges with special judges to better determine “inventory” meaning.

JUDGE b/c the occupation has special needs and b/c encourages uniformity of result, and therefore, invention will be encouraged (b/c PROTECTION IS PREDICTABLE).

Difference between Terry and Markman:

General Rule: Right to a Jury under the 7th Amendment if it is a claim in law (no right if in equity). If fact Q --- jury. If law Q --- judge.

Patent Law: “Inventory” definition may seem like a factual Q, but in the patent law context, it has special meaning and becomes a Q of law for the judge… specialized area of law.

C. Beacon Theaters v. Westover US SC 1959

FACTS: Fox, D, had “first run” rights and other theaters had to get “clearance” to show movies. Beacon, P, wanted to show films in their new drive-in theaters. Beacon told Fox they were violating anti-trust laws. Fox filed for declaratory relief and injunction while the suit was pending. P filed counter-claim for violation of antitrust laws and demanded a jury trial.

DIST CT: No jury b/c D’s claim was for equitable relief…P’s anti-trust counter-claim is at law and had right to jury, but D’s claim must be tried first.

P objected to this “sequencing” b/c of res judicata and collateral estoppel.

CT of APP: Entire claim is equitable…no jury trial.

H/R/Notes: Rejects the prior “Clean Up Doctrine” that said when issues were mixed, the equitable court had “supplemental jurisdiction” of sorts over the legal claim…

Declaratory Judgment is not an equitable proceeding b/c of the Declaratory Judgment Act: Nothing in it said it was to be equitable; rights and legal issues are at hand.

* Bifurcation of claims (sequencing) violated P’s right to jury b/c of subsequent claims being barred. *

Standard this case provides: 1. Legal issue tried to jury first. 2. Equitable claims tried by a judge second.

What about the need for interim injunctive relief if the legal issue is tried first? Extraordinary interim relief will be granted without the jury by the CT, then legal issues with jury, then equitable issues with judge.

D. Dairy Queen v. Wood US SC 1962

FACTS: DQ wanted temporary and permanent injunction to keep D from using their trademark, an accounting action ($ D owed), and an injunction to prevent the D from collecting $ from DQ stores, and damages.

DIST CT: D did not get jury b/c the issues were equitable and the legal issues were incidental.

H/R/Notes: Reversed… D entitled to a jury trial because “accounting” is basically for damages (legal) DQ wanted.

Ware: DQ probably trying to avoid jury trial. SC wants us to look to the real meaning of claims, not the spin the P puts on the allegations or claims.

E. Edmonson v. Leesville Concrete Co. US SC 1991 Jury Selection

FACTS: N suit. D used 2 peremptory challenges to exclude 2 Blacks. P (Black) challenged these exclusions.

P invokes Batson, a criminal case, which states the nonracial factors for the exclusion of African Americans must be given. DIST CT rejects b/c this is a civil case.

5th Am. (Equal Protection Clause) applies to states and not to private parties. Action challenged has to be discrimination by a state actor; here, a private litigator is making the allegedly racial strikes.

H/R/Notes: Issue: Whether a private litigant in a civil case may use peremptory challenges to exclude jurors on account of their race? 29

P may sue…  SC applies a “functionality test”: A jury is an instrumentality of the state---serve important government functions.  Standing issue: 3rd party injury to juror (actual case or controversy?) SC: usually no, but since the injury is redressible because of relationship to the litigant and cannot protect his or her own interests.

JURY SELECTION… 1. Voter registration lists. 2. Smaller pool selected. 3. Pick actual (6 federal or 12 state).

Then… A. voir dire – jurors may be excluded if seemingly biased (“for cause” challenges).  relationships, employer/employee, financial relationship, etc.  no limit on # excluded. B. peremptory challenges – “no reason” or “any reason” exclusions.  Thile – juries must reflect a fair cross section of the community---none can be excluded, but need not accurately reflect the community (% teachers, lawyers, etc.).  limit is 3.

F. Liljeberg v. Health Services Acquisition Corp. US SC 1988 Judge Selection - § 144 and § 455.

FACTS: To open a hospital, need “Certificate of Need”. L refused to turn it over to HS as agreed upon. HS sued L. Timing Issue: Jan. 21 & 22, 1982 – Tried without a jury. Mar. 24, 1982 – Judge became aware of agreement between L and HS.

H/R/Notes: Under 28 USC § 455(a), Judge should have disqualified himself when “impartiality might reasonably be questioned”.

§ 455(b)(4) – When the judge knows “that he, individually or as a fiduciary, has a financial interest in the subject matter in controversy or in a party to the proceeding, or in any other interest that could be substantially affected by the outcome of the proceeding.” 30

Judge here had a fiduciary obligation to the board, and therefore, had an interest, BUT it was not a pecuniary interest.

Cannot disqualify himself based on facts he did not know…which he did not know at trial, so no harm done. CT: Still should have disqualified himself b/c he should have kept apprised of the hospital’s involvement.

* Mere appearance of impropriety is enough for judge to have disqualified himself.*

V. Trial

A. Burden of Proof

P must prove by a perponderance of the evidence their case (51-49; tipping the scales; lower standard than criminal “beyond a reasonable doubt”).

Inference needs a sufficient evidentiary foundation---if not, then speculation. Reasonable conclusion based on facts proven.

B. Reid v. San Pedro, LA & Salt Lake RR Utah 1911

FACTS: Cattle, on the land of an agreed owner who had a fence/gate put on his land by the RR for his own benefit. A heifer was run over by a train (RR was allegedly supposed to maintain the fence and owner was to keep the gate closed---LAW).

P filed for damages for the injured cow: RR N for failure to maintain the fence and keep the gate closed.

TR CT: For P, D appeals.

H/R/Notes: P failed burden b/c no strong inference for P. Do not know if cow entered through the open gate or broken fence. P could not show by perponderance of the evidence that cow entered through broken down fence.

Evidence alone show: open, broken, dead cow.

Equal Inference Rule: When 2 separate, but equal inferences, 1 causing P to win, 1 causing P to lose, P loses b/c has not proven the claim by a perponderance of the evidence. 31

Hypo 1: What if cow 25 feet away from broken fence and 2 miles from open gate? Does equal inference rule work? YES.

Hypo 2: What if cow 25 feet away from broken fence and 2 miles from open gate and testimony that cows do not tend to stray? Does the equal inference rule work? NO.

POINT: The further the testimony, the less equal the inferences become.

Circumstantial Evidence: Upon proof of X, it would be reasonable to infer Y (must be reasonable evidence and flow from X---cannot be remote).

C. Tittle v. Aldacosta 5th Circ. 1977

FACTS: P slipped and fell when deboarding a boat injuring herself and losing a kidney. Fiberglass floor that must be kept dry with a towel and mates must assist passengers off the boat. Other boats have used mats, rubber, etc.

D seeks exoneration from liability under an admiralty law. TR CT for D…1. Mate did not have the time to put the towel down because the passengers hastily got off. 2. Absence of towel is not N b/c deck was reasonably dry.

H/R/Notes: Reversed…  Duty is ordinary care; reasonably safe means.  Absence of towel significantly contributed to the accident.  Securing lines or haste does not relieve owner of duty.  Under Rule 52(a), the standard of review is “clearly erroneous”, but here no towel is clearly N! Deference should have been given to the CTs…there was evidence to support the jury’s findings.  Dissent: Despite N, P missed the dock with her foot and fell.

Rule 52(a) – Findings of fact must be “clearly erroneous” and “due regard must be given to the opportunity of the TR CT to judge of the credibility of the witnesses”.

“ clearly erroneous” = TR CT, after seeing and making judgment on the evidence, decides for X even though there is o evidence to support it.

Evidence for support is the key! Appellate courts review and confirm if evidence exists. 32

D. Pennsylvania RR v. Chamberlain US SC 1933

FACTS: P died while working at RR – 1 person could testify as to events in P’s favor, but the evidence was circumstantial b/c “crash” heard, but the witness had looked away.

DIST CT: Circumstantial evidence, so directed verdict was in order. CT of APP: Reversed.

H/R/Notes: Issue: Is it conflict in testimony or rebuttal inference which allows for a directed verdict?

 P’s theory of liability: N and collision of 2 strings of RR cars passing; 1. Evidence testimony (Baimbridge) (heard “loud crash”). D evidence: Witnesses who observed both strings of cars and said no collision occurred.  Standard for directed verdict = Jury could only go one way, so does not need to go to the jury…for jury, need “legally sufficient evidentiary basis”…here, there was evidence, but it was circumstantial.  No conflict in testimony of witnesses b/c Baimbridge did not testify that he saw a collision, only that he heard a crash.

If Baimbridge had testified, but there had been no D witnesses, probably no directed verdict. Baimbridge’s inference would have stood. But here, the inference was rebutted. There was no evidence for the theory that the 2 cars collided, so not enough evidence for the inference to go to the jury.

RULE: When inference is rebutted by facts, inference must yield (standing alone against the witnesses, it must yield).

Class notes on Directed Verdict:  Judge takes the case away from the jury b/c the facts or evidence at hand suggest that a rational and reasonable jury could only rule one way.  Standard: Like summary judgment: facts are not in dispute and judge must apply the law to the facts.  Motion made at the close of evidence. At the end of P and/or at the end of D…could be 2 motions.  A directed verdict, if granted, says that the P has failed to meet his burden.

E. Lind v. Shenley Industries 3rd Circ. 1960 Post-trial Motions 33

FACTS: Employee sued for oral promises of pay increase. Jury found that agreement did not exist. D appealed and wanted the verdict set aside and a new trial. D’s 3 grounds for the verdict to be set aside: 1. Contrary to the weight of the evidence. 2. Contrary to law 3. A result of error in admission of evidence. H/R/Notes:

 See Rule 52 and Rule 59 and Rule 50.  Legal standard for “contrary to the weight of the evidence” = findings of fact should not be set aside unless “clearly erroneous”…evidence must be so weak that no reasonable person would find on such evidence.  2 circumstances in which a new trial should be granted: - Internal factors: internal to the jury (jury verdict against the weight of the evidence). - External factors: improperly admitted evidence, new evidence, prejudicial statement by the attorney…  Maj: external factor here…fact-finding is the exclusive obligation of the jury in a civil system, so internal factors lead a judge to be more hesitant in granting a new trial. The standard here is that the CT has narrower discretion than the trial CT had to grant the new trial.  DISSENT: Both Maj and Dissent are correct. If a motion is made to set aside due to the weight of the evidence, you will probably lose unless NO reason exists b/c not going to change jury’s verdict w/o extremely good reason. Must be so impossible for the jury to have gotten that finding or no evidence exists to support the finding.

VI. Respect for Judgments

A. Res Judicata and Collateral Esptoppel

Res Judicata - Same Parties may not re-litigate the same case.

Hypo: F teacher. M teacher criticizes her and F receives “notice of nonrenewal”. Over summer, a good friend tells her that principal thinks that women do not make good teachers and other schools may have settled suits against him. She files a sexual discrimination suit for 5 counts… 1. Title VII – Civil Rights. 2. Mo. Human Rights Act. 3. Breach of K. 4. Defamation. 5. I.I.E.D. – at meeting calls her dumb and says he will not renew her K. 34

2-5 are state law. Fed. CT dismisses all the state claims based on attorney'’ motion to dismiss them. Goes to trial and D wins. P attorney files 2nd claim in state court for those claims dismissed. D says barred by res judicata.

Will D be successful? For 2 and 3 yes b/c based on the same evidence/merits/facts as 1. 4 and 5 will not be barred b/c based on different evidence.

Collateral Estoppel – Focus on the claims; parties may differ from original case, but if issue has been decided, issue cannot be re-litigated (fact finding done). Exception: Civil and Criminal –Between 2, may be re-litigated.

B. Frier v. City of Vandalia 7th Circ. 1985

FACTS: Frier’s car was towed after police officer left note asking him to move it. Frier filed replevin suit and lost. Then filed due process claim that entitled to pre-hearing before the car was towed.

DIST CT: no due process denied – 1. Notice, and 2. Opportunity to be heard.

H/R/Notes: Claim barred by res judicata (RJ) b/c from “common nucleus of operative facts” from state court decision.

RJ – If the same facts/evidence used to sustain the first claim, and parties are identical, claim is barred---CLAIM PRECLUSION.

 But replevin and due process different. Here, towing of car (conduct) is generally the same.  Causes of action are essentially the same even though different legal theories.  Concurrence: Should have been viewed as summary judgment (Frier would have lost on merits, not RJ) – If RJ were applied correctly, it would not have precluded the federal claim b/c of the state claim. The 2 cases were different b/c the claims/theories were different.  Restatements of Judgments – All claims arising under a single transaction must be tried in one suit and any other claims are barred.

C. Martino v. McDonald’s Systems, Inc. US SC 1979

FACTS: M and bros. entered franchise and agreed that neither partners nor immediate family would compete in a similar enterprise. M’s son opened a Burger Chef. McD. Sued M for settlement breach. 35

“Consent Decree” = fact and law conclusions that lead to a settlement with a judgment that is filed with the CT and becomes a CT order.

M then sued McD. For violation of Anti-trust Act. McD. objects, saying that: 1. Rule 13(a) – Compulsory counterclaims must be stated in the pleadings. 2. Res Judicata

H/R/Notes: - No Rule 13(a) b/c no pleadings here. M never filed an answer. - RJ: P said no mutual release signed, so no RJ and b/c it was a settlement agreement.

CT: Settlement operated as an adjudication on the merits (a consent decree is based on facts and evidence) and so RJ bars this claim.

- CT believes that the second claim was raised as a backlash from the decision of the first claim.

Note: Counterclaim exception to RJ – Allows counterclaims that could have been brought in the first claim to be brought in the second claim if it CONSTITUTES A DIFFERENT CAUSE OF ACTION.

Different causes of action, for example, breach of K and anti-trust claim (counterclaim). So, anti-trust claim not barred normally, but in this case, the anti-trust claim would have nullified the breach of K decision. So, Martino should have raised the anti-trust claim in the first suit.

D. Searle Brothers v. Searle Utah 1978

FACTS: H/W property to wife in divorce. H and sons claim to be partners in the property --- Partnership claims undivided ½ interest is held by them, so divorce CT could not award the interest to wife (b/c husband does not own)

H/R/Notes: Issue: Does RJ apply to bar the son’s claim to property?

RJ – same parties or party in “privity”; same cause of action; final judgment on merits.

CE –different cause of action; prevents same parties or privies from re- litigating facts and issues from the first suit. 36

Privity/Privies: Involved in the same legal subsequent interest; “mutual or successive relationship” to rights in property.

 4 part test to see if CE applies: Consideration in light of these… 1. Same issue? 2. Final judgment on the merits? 3. Party or in privity w/ party to the first suit? 4. Was issue competently, fully, fairly litigated?  Here: Privity between H and partnership? No, H was not acting in the first suit as representative for the partnership. Dissent says yes (notice of property dispute, family consideration = privity, control by H = privity).  Here: H was not acting as an agent of the partnership, so no RJ/CE and sons could bring the suit for property.  What would happen in the second suit? Partnership must show right to property by title, etc. and that divorce court should not have awarded it to the wife.  H and partnership = 2 legal entities – no “mutual interest”, so no privity.  Agrees with the dissent…there should have been privity.

E. Saylor v. Lindsley 2nd Circ. 1968

FACTS: 1st suit: Derivative action dismissed with prejudice b/c Hawkins failed to post bond for security for costs as required by NY statute. 2nd suit: Saylor brought derivative action on basis of same transactions and against the same Ds --- D claims RJ.

DIST CT: Summ. Judg. For D – RJ bars suit. CT of APP – Reverses.

H/R/Notes:  The first suit was not dismissed on the merits, but on the failure to post bond.  Rule 41(b) – Dismissal = adjudication on the merits unless: 1. Lack of jurisdiction. 2. Improper venue. 3. Failure to join a party.  P abandons, so case never goes to trial, but has effect on the adjudication on the merits – FAILURE TO PROSECUTE – Policy: P abandons, so cannot sue again and inconvenience the D.  This does not apply here b/c no abandonment by P and the merits were never touched. The purpose of the dismissal was a collateral issue/matter (bond issue).  No RJ here.  Adjudication on the merits = real cause of action decided, not a collateral issue/matter.