Civil Procedure OutlineErie: In diversity jurisdiction, use substantive state law and fed procedure.

Three principles1. Lawsuits have rules

a. Constitutionb. USCc. FRCP

i. Balance: Efficiency and justice; vindicating wrong, not harassing D; getting fair and full hearing, but not re-litigating.

ii. Wiggle-room to make arguments on both sides2. Lawyers play by the rules3. Rules affect outcomes

a. Merits play a role. Rules are just as significant.

JurisdictionPersonal Jurisdiction

Limits: Due Process (5th and 14th amendment); Full Faith and Credit clause; state law

How do you dismiss if it’s missing? => Do it EARLY. Don’t want to consent. Don’t show up. Super risky strategy. Fight juris when P tries to collect. Special appearance (in some states) Rule 12b2: Lack of personal jurisdiction => Very beginning

o Rule 12g2: Must join a 12b2 motion. In the answer Rule 12c: Judgment on the pleadings => After pleadings, before delaying trial Appeal?

o Fed: Have to wait until after trial (1291)o Some states: Appeal right away

Due Process

Pennoyer elements: (case for unpaid lawyer fees; published notice in newspaper)1. Power2. Consent3. Notice

Types of suits: In personam => Lawsuit against a person Quasi in rem => Lawsuit against a person w/ property in juris In rem => Lawsuit against a thing (asset forfeiture/unpaid property)

Power1

Sue first. P has all the power in forum selection.

Sufficient Minimum Contacts (International Shoe) => Establishes presenceWA employment fund. Agents in WA, business in MO. Agents only set up exhibitions and refer. Min contacts.

Test: Does these contacts give rise to the suit?Consider “quality and nature” of contacts

Contacts No Contacts Casual or Isolated Contacts

Single Act Systematic and continuous but

limited

Substantial or Pervasive

Jurisdiction No Jurisdiction No Jurisdiction Specific Jurisdiction if of right “quality &

nature”

Specific Jurisdiction

General Jurisdiction

Cases Hanson (unilateral choice

to be in FL)

McGee(Biz soliciting &

benefitting)

Int’l Shoe Perkins (Mining co in OH

for war)

Test: Purposeful availment => Did you “enjoy the benefits and protection of the laws of that state”? (Shoe)(Hanson: Will created in DE w/ DE company. Move to FL, try to litigate there.)

“Purposefully avails itself of the privilege of conducting activities within the forum State.” (WWVW) Need to have idea that you’ll be sued in that place. Doesn’t consider P. Products

o World-Wide Volkswagen (P buys car in NY. Driving to AZ. Crash in OK. No juris) Serving market

Advertising (not calculated to make it to state) Sales Services Wholesale in that state

Expectation that they’ll be bought in that market Not mere likelihood product will make it into state

DISSENT: (Brennan) More focus on state’s interest in litigating. Evidence there. Dealer intends for drivers to go places

o Is placing in the stream of commerce, knowing it would end up in state, enough? Open question

Nicastro: Sends metal shearing overseas to OH. 4 in NJ. D injured.o Plurality: Need actions, not expectationso Dissent: Stream is enough. D is trying to make sales ANYWHERE.o Concurrence: One sale isn’t enough. Consider:

Forum state customers who attend trade sales Extent of same type of business in forum state

Asahi: Malfunctioning tire.o O’Conner’s 4: Look at D’s conduct. Stream isn’t enough.o Brennan’s 4: Benefitted from stream. Foreseeable suits.

Commercial Activityo Burger King (D has BK in MI. HW in FL. Worked with MI BK, but signed K with FL. Juris.)

Knowledge that you’re negotiating with someone in forum state2

o Jones (Nat’l Inquirer article about Jones. Know that it will have impact on him. Juris) If know it will cause harm of KNOWN third party in forum, juris. MUST BE SPECIFIC. General not enough (Pavlovich: DVD copying)

o Hanson (will in FL) NOT unilateral

o McGee (Insurance in California) Solicitation “Modern transportation and communication has made it much less burdensome for

a party sued to defend himself in a state where he engages in commercial activity.” Caveated by fair play and substantial justice

Interneto Pavlovich (releases code of DVD copying protection while in IN. Moves to TX. Sued in CA)

File transfer to another state intentionally => Jurisdiction. Just posting information that just happens to be accessible => No jurisdiction (PAV) Interactive website where user can exchange information with host computer => ???

International Shoe: Min contacts for corporate in personam.Shaffer: Min contacts for quasi in rem (suit of corporate execs in DE because stock issued there. No juris)

Forces P to file a lot of different lawsuits in a lot of different jurisdictions

General Jurisdiction: Contacts SO continuous and systematic, subject to juris even if unrelated suit.Must, in essence, become corp in that state (Perkins: During war, comp moves to OH. Juris)

Contractual agreements and frequent trips not enough (Helicopteros: visiting TX) Stream of commerce of tires not enough (Goodyear: Crash in France. Suing Euro subsidiaries. No juris) Continuous activity of some sorts isn’t enough (Goodyear)

Is individual presence enough? Open. (Burnham: Lives in NJ. CA to visit kids. Serves him. Juris) Scalia’s 4: Presence has always been enough Brennan’s 4: Where do you draw line for presence?

o In this case, availed self to benefits of state by being there. Made trips there before, etc.

Will it offend traditional notions of fair play and substantial justice? (Int’l Shoe)AFTER finding minimum contacts, consider this. (Burger King)

Apply all. Don’t worry about delineating.

Interests to consider: (Shafer) => EVEN IF ALL OF THESE, still need min contacts. Federalism (WWVW) The inconvenience to the defendant State's interest in applying its law to controversy Convenience of litigation (records and witnesses will be in the state)

BK Interests to Consider: Allows fewer minimum contacts (Maj: Brennan => WWVW dissent.)(D has BK in MI. HW in FL. Worked with MI BK, but signed K with FL. Juris.)

The burden on D Forum state’s interest in adjudicating Efficiency of resolution Furthering fundamental substantive social policies

ConsentGives jurisdiction when lacking minimum contacts. Usually set by K.

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Elements to allow K of adhesion: (Carnival: Cruise ticket said suit in FL. Sues in WA. Upheld)1. Needs notice

Carnival upholds ticket saying subject to K, then K including it2. Can’t be unfair / bad faith

Does NOT mean it can’t make suit unfeasible. Just need good intentions.

Rationale: Dispels confusion Cheaper tickets Makes suits for manageable for company

NoticeIf improper, Rule 12b5

Due Process1. Personal notice inside state => Always adequate2. Outside state => "Notice, reasonably calculated, under all circumstances, to appraise parties and afford

opportunity to present their objections." (Mullane: Trust fund. Merges. Post notice in newspaper.) Token gestures are not enough Mail is enough

i. Don’t have to make sure everyone receives itii. Have to make sure most people are reached => Those people protect all interests.

When is publication enough? When no address/location known. No alternative. When supplemented with attachment (MAYBE) => If whereabouts known, may need personal service. When interests are conjectural or future

Rule 4: Rule for service => Need to serve within 120 days of complaint. Extend with good cause. (12m) Include (4a1)

o Name the court and parties, directed to D, name/address of P’s attorney, time within which they must appear, notify that failure to appear means default, signed by clerk, with court’s seal

How to serve? (4ac)o Copy of complainto By 18+ year old, non-partyo P can request marshal

Waiver (4d)o Include: Address to D, name court, copy of complaint, 2 copies of waiver, prepaid way to

return, inform of consequences of not waiving, date request sent, reasonable time to return (30 days), first-class mail or reliable means

o MUST waive service, unless they have good reason, or they are charged costs (4d2) Benefit: Extra time to answer complaint

Regular: 21 days Waived: 30 days to respond to waive request. 30 additional days to respond.

How to serve (4e)o 4e1: Follow whatever state law is. (CA: Reasonably calculated standard after regular kinds)

Each state has catch-all that allows publicationo 4e2: (include summons and complaint)

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Deliver personally Leave at home with someone of suitable age and discretion AND resides there Deliver to agent authorized to receive service (commercial usually)

Want to have someone unconnected to case do it Server has to sign affidavit (12l)

Serving a corporation (4h)o Anything provided under 4e (4h1A) ORo Serve summons complaint to (4h1B):

Officer Managing or general agent Any other agent authorized by law/appointment to receive service.

Long-Arm StatutesWhat state can D be sued in? (Not Constitutional. State statutes)

Some states provide LESS jurisdiction than Due Process allows; can’t grant MORE

Considerations How clogged up are courts? How much control does state want? How concerned is state about convenience for residents?

Order (Gibbons: Car crash. P sues Mr. Later, Mrs. sues P. Says P availed self to state. P wins)1. Make sure you’re within long-arm2. Make sure there are sufficient minimum contacts

VenueWhat district can D be sued in?

1391(b): What district can case be in?5

a. District where any D is located if all Ds are in same state (exclude third-party defendants)b. Substantial part of events/omissions giving rise to claim occurred, or substantial part of property at issuec. If no other district can take case, any district meeting personal juris

If filed in wrong place: 12b3: Improper venue dismissal 1406: Improper venue shall dismiss, or in the interest of justice, transfer to an appropriate district

If filed in right place, but huge inconvenience: (Only federal courts) 1404: Change of venue.

If filed in right place, but better overseas: (Both federal and state) (Dismisses) => Forum non conveniens (Piper Aircraft: Crash in Scotland. Manufactured in PA. Propellers in OH. Shops to CA)

o Alternative forum available ANDo Either...

Establishes oppressiveness and vexation to D out of proportion to P’s convenience OR Court administrative and legal problems

NOT allowed because alternative law is less favorableo “So clearly inadequate or unsatisfactory that it is no remedy at all.”

Capping recovery for wrongful death of Mexican child at $2500 is adequate. Presumption towards P’s choice. Less true when P is foreign. Usually results in no suit being filed/loss. => Exceptions: Chevron/Nigeria protestors; /Ecuador toxins

Subject Matter JurisdictionState Courts => General jurisdiction. Can hear almost any case. Exceptions:

Special issues (probate)

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Exclusive federal jurisdiction => Sherman Act, etc

Federal Courts 1331: “Arising under “ Constitution, laws, treaties 1332: Diversity

Supreme Court Art III: Any question that raises an issue of federal law

Arising UnderFederal question must be in affirmative argument.

Mottley: Rail passes. Congress bans them. P argues ban can’t include them, if does, 5th amend. No juris Defense arising under Constitution not enough.

How to get it as a federal question? (Looking at Mottley) Sue government directly Get D to say it did action because of federal law

What to do if not arising under? 12b6: Failure to state a claim upon which relief can be granted. (Judgment on the merits), THEN 12b1: Lack of subject-matter jurisdiction => Can be filed at any time. Never precluded.

Diversity1332a: $75,000 AND

1. Citizens of different states Test is where domiciled

2. Citizen of state and citizens of foreign state. NOT permanent resident in the US. Does NOT include being domiciled in foreign state (Redner: Living in France. No diversity)

3. Citizens of different states when citizens of foreign state are additional parties4. Foreign state as P and citizen of state/citizens of different states as D

Domicile1. Physically present2. Intent to remain

$75k at issue Courts guess value of injunction; Settlement size doesn’t matter. If less than this, case is dismissed. P pays costs (not lawyers’ fees)

Groups Partnerships: Citizens of partners. Need complete diversity. Corporations: Principal place of business AND state of incorporation

o Principle place of business: Nerve center? Business activity?

Hypos Living in France. Office in California, but intend to stay in France. Want to sue NY company.

o New York state courto Move back to California, sue again => KS case. Diversity determined at start. Motives irrelevant

P is French citizen. D is Mexican citizen.7

o No diversity. Sue in state court. No home field advantage.

Supplemental JurisdictionMust be tied closely enough to item with federal jurisdiction to be seen as single case/controversy.

1367a: District court needs original juris. Additional claim must be same case/controversy. Not fall into b or c. Hypo: Suing for discrimination AND NIED for being called on in class. Juris.

1367b: Restrictions on 1332 claims. See chart.1367c: May decline supplement juris if:

1. The claim raises a novel or complex issue of State law,2. The claim substantially predominates over the claim which the district court has original jurisdiction,3. The district court has dismissed all claims over which it has original jurisdiction, or4. In exceptional circumstances, there are other compelling reasons for declining jurisdiction.

If original 1331 claim: (1367a) Is it same case or controversy?

o IF NO => No supplementalo IF YES, does it fall into 1367c1-4?

IF YES, court can deny supplemental jurisdiction

If original 1332 claim: Was claim brought by person made P under rule 19 (required joinder of parties) or 24 (intervention)?

o IF NO, 1367a analysiso IF YES, was claim against person made D under rule 14 (third party service), 19 (required

joinder), 20 (permissive joinder), 24 (intervention) IF NO, 1367a analysis IF YES, would claim be inconsistent with 1332 diversity?

IF NO, 1367a analysis IF YES, no supplemental jurisdiction

Restriction on diversity: Fear it will be used strategically. CA sues NY. NY brings in CA2. CA can’t sue her.

SAME CASE/CONTROVERSY MUST BE AS BROAD AS RES JUDICATA OCCURANCE If not, issue would not be allowed under supplemental jurisdiction, but P would still be barred later. Res judicata is very broad. Test: Does same set of facts answer both questions?

o Ameriquest Mortgage: Yes. Truth in lending after D inflated home value to loan more. P wants declaratory judgment of debt taking into account the inflated appraisal. Ties claims together.

o Szendrey-Ramos: Yes, BUT no juris. Lawyer finds ethical violations, reports, is fired. Sues for wrongful discharge (state) & protected class (federal). Lawyer disclosing is novel. State predoms

Needs to re-file in state QUICKLY. If ruled on merits in fed, claim preclusion.

RemovalRemoves case from state court to federal court.

If jurisdiction is based on 1331 (arising under): Is it within 30 days of service or within 30 days of when it became removable? (1441a; 1446b)

o IF YES, removal to district court where action is currently pending

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o IF NO, no removal

If jurisdiction is based on 1332 (diversity): Is D a citizen from state where action is brought? (1441b2)

o IF YES, no removalo IF NO, is removal within 30 days of service or 30 days since became removable? (1446b)

IF NO, no removal IF YES, is removal within 1 year of the commencement of the action? (1446c1)

IF YES, removable IF NO, did P act in bad faith to prevent removal? (1446c1)

o IF YES, may be removableo IF NO, no removal

Removing it BACK to state court (1447)c. Remand back to state within 30 days ONLY for lacking subject matter juris.d. Not appealable => Can only appeal decision NOT to remand after final judgment

All’s well that ends well (Caterpillar: 2 Ps, 2 Ds. P1 and D1 in KY. Settle. P2 still suing D1. District court grants removal; shouldn’t have. P2 and P1 settle. D2 wins. SC says diversity at end. All that matters. Juris.)

Policy considerations => Finality, efficiency, economy Sanctions for motions for improper removal Different from subject matter jurisdiction case

JoinderOf Parties

Rule 20: Permissive joinder of partiesa. Join Ps or Ds if:

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Claims arising out of same transaction AND ANY one question of law/fact common to all Ps/Ds.

b. Court may still have separate trials for embarrassment/convenience/delay/etc

Same transaction/occurrence is broad (Mosley: Suing GE for vary different racial employment discrimination. Join Ps. Company-wide policy designed to discrimination is same transaction.)

Beware: Arguing broad transaction can be detrimental later. May preclude claims from other Ps

Court is doing some assessment, not explicitly, of plausibility of claim Hit by two separate city vehicles. Court won’t allow joinder claiming policy of hiring bad drivers.

Rule 19: Required joinder of partiesa. Can’t afford complete relief (1A) OR disposing without party may impair ability to protect interests

(1Bi) or create multiple obligations (1Bii)b. If required to be joined, but can’t be, dismiss? (Helzberg: No. D put self in mess. Lords can still sue.)

Extent it prejudices => If party doesn’t seek intervention, probably not prejudiced (Helzberg) Extent prejudice can be avoided by:

Protective provisions in judgment Shaping relief Other measures

Whether judgment without other party will be adequate Whether there’s inadequate remedy if dismissed

Rule 12b7: Dismissal for failure to join under Rule 19

Doesn’t require most efficient (Temple: Device breaks in spine. Worried hosp & doc work together)

Rule 14: Third-party Claims Within 14 days of answer, D can become third-party-P (a) or P can bring in third-party-D (b)

o New D must be liable for all/some of claim against person bringing them in. (a1)o NOT about “your fault, not mine.” => Needs claim to contribution. TP liable even if D liable.o Still need to find jurisdiction => No counterclaim if it’s a run around lack of diversity.o Why not just sued later? Finding of negligence can be used against them. Wants estoppel.

(Price: Broken chicken house. D impleads nail manufacturer. 40 claims pending. Doesn’t want nail manufacturer to claim no defect. Etc, etc. Upheld)

Rule 24: Interventiona. Intervention of right: Court MUST allow if:

1. Statute allows unconditionally OR2. (i) Timely, (ii) Interest in subject, (iii) Risk of result, (iv) Interests not represented by parties

b. Permissive: Court MAY allow if:1. (A) Conditional right by statute or (B) claim/defense with common question of law/fact2. Government: If claim/defense based on statute/order/regulation/etc

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3. Consider: Delay or prejudice to original parties

Interest is NOT about collateral estoppel. It’s about stare decisis. (Martin: White firefighters have notice of NAACP suit. Choose not to intervene. Sue over injunction later. Allowed. NAACP should have joined.)

o No stare decisis issue because it was a consent decree.o Burden is on parties to join, not outsiders to intervene.

Incentive not to intervene. See how first suit goes.o Reversed by Congress in employment discrim. Precluded if: class action, consent decree, notice

Are interests represented by parties? (NRDC: Flexible. Suit would make it harder to have nuclear plants. Mining trade company & comp w/ license pending renewal intervene. Allowed. D could settle for self.)

Rule 42: Consolidations and separate trialsa. If common issue of law/fact, can (1) join hearing/trial, (2) consolidate actions, (3) issue other ordersb. Separate trials: For convenience, to avoid prejudice, or to expedite and economize. Needs juris still.

Rule 21: If misjoined, add/drop a party. No dismissal.

Of ClaimsRule 18: Joinder of Claims => a. Can join as many claims as you have against party.

Bring all of them in same case/controversy/occurrence. Otherwise, precluded by res judicata.

Rule 13: Counterclaim and crossclaim a. Compulsory

1. Same transaction (A) AND does not require adding a party with no jurisdiction (B)2. EXCEPTIONS: Already have pending action on claim (A)

b. Permissive: Can join any claim not compulsory => Won’t be bar later, but efficientg. Crossclaim against a coparty: Only if it comes out of same transaction/occurrence or same property

If permissive, need to prove subject matter jurisdiction (Plant: Doesn’t pay loan. Truth in lending suit. Collection counterclaim. Same transaction/occurrence. Juris.)

For juris: Efficient. Same loan. Against juris: Conflicts with goals of TILA (scares away Ps).

Class ActionRule 23: Class Actionsa. Perquisites

Numerosity: So numerous that joinder is impracticable. => Usually at least hundreds. Can be as few as ~50.Commonality: There are questions of law or fact common to the class => Not single question

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Determination of common questions should end case. Need to suffer same injury. (Wal-Mart) Must prove. Asserting isn’t enough. You’ll get discovery (Wal-Mart) Statistical analysis / social analysis not enough. WHAT COULD BE ENOUGH IN WAL-MART: Written policy, more proof of unwritten, local.

Typicality: The claims or defenses of the representative parties are typical of the claims or defenses of the classAdequacy: The representative parties will fairly and adequately protect the interests of the class

Lawyer: 23(g)(1): Use these factors when selecting class council. Can also be used for adequacy.o (A): MUST consider: (i) Work identifying claims, (ii) experience in class action/complex

litigation, (iii) knowledge of law, (iv) resourceso (B): MAY consider any factor regarding ability to fairly & adequately represent interests

Look at for personal relationships that may endanger this Named parties (Hansberry: Previous class was people excluding blacks. P overturns racial cov. ~Adeq)

o Need to be similarly situated. (Amchem: Asbestos)

b. Types of Class Actions1. Prosecuting separately would result in: (Mass Rule 19)

A. Inconsistent adjudication would make incompatible standards B. Adjudication will be dispositive to all class interests or would impair ability to protect interests

2. Only asking for injunction (monetary can’t be primary. No back pay, too individualized. – Wal-Mart)3. Monetary damages: Common issue must predominate. Must be superior to other methods.

How to decide if superior/common issue predominates?1. Is there an interest in individually controlling litigation?2. The extent/nature of litigation class members have already started3. Desirability of concentrating claims in particular forum 4. Difficulties in managing class action

c. Certification1. (A) Move for class early, (B) define class by issue and appoint counsel2. Notice

A. b(1) and b(2) classes: Whatever court decides. May just be publication.B. b(3): Best notice practicable (Shuttes: Meets due process, even jurisdiction. Gas revenue in KS.)

PERSONAL NOTICE OF: the nature of the action; the definition of the class certified; the class claims, issues, or defenses; that a class member may enter an appearance through an attorney if the member so desires; that the court will exclude from the class any member who requests exclusion; the time and manner for requesting exclusion; and the binding effect of a class judgment on members under Rule 23(c)(3).

e. Settlement => Typically comes quickly after certification => Needs court approval.a. MUST direct notice to all who would be boundb. Needs a hearing on whether it’s fair, reasonable, and adequatec. Parties must disclose any agreement made in connection => i.e. named parties get mored. IF 23(b)(3): May require new personal notice and new opportunity to opt oute. Any class member may object. Can only withdraw objection with court approval

Settlement Class (Amchem: Asbestos) => NOT CERTIFIED. Not common issues: different sickness, injuries. No adequacy: Parties already sick. Want immediate money. Future class members want more later.

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How do you give notice to people not sick yet? Dissent: Least evil solution. Without, future people may get nothing or hold not responsible responsible

f. Appeals => Class certification may be appealed (no final judgment rule).

h. Attorney’s Fees => Notice to class members. Any party may object. Court may hold hearing.

Jurisdiction: (1) Diversity requires $75k for class rep, OR $5m for entire class; (2) Only need 1 P & D diverse.

Pre-TrialPleadings

Pleadings Allowed (Rule 7a)(1) a complaint;(2) an answer to a complaint;(3) an answer to a counterclaim designated as a counterclaim;

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(4) an answer to a crossclaim;(5) a third-party complaint;(6) an answer to a third-party complaint; and(7) if the court orders one, a reply to an answer.

Truthfulness and Validity of Pleadings (Rule 11) (Applies to lawyers, law firms, and parties) (Rare)a. Have to sign each pleading to court. (ONLY pleadings. NOT disclosure/discovery).

1. (Mattel: Barbie case. Court considered discovery/interview behavior. Not permissible.)b. By presenting to the court, certifies that to the best of the person's knowledge, information, and belief,

formed after an inquiry reasonable under the circumstances:1. Not presented to harass, cause unnecessary delay, needlessly increase cost of litigation2. Warranted by existing law or by nonfrivolous argument for extending/modifying/reversing law3. Factual contentions have evidentiary support, or if specified, will likely have evidence4. Denials of factual contentions are warranted on the evidence, or reasonably based on belief

c. Sanctions (Walker: Can’t plead diversity correctly)1. Can grant appropriate sanctions. Don’t have to be monetary. Whatever will deter.2. Motion must be served. Don’t file with court unless not fixed within 21 days

d. Doesn’t apply to discovery under Rules 26 and 37.

Amendments (Rule 15) => Amend ONCEa. Within 21 days of serving (15a1A): Free amendment. Encourages working together.b. If requires responsive pleading: 21 days after service of responsive pleading or 21 days after service of

motion under Rule 12b, e, or f, FREE c. Respond to amendment within 14 days (or regular time) (15a3)

Relating back (15c): Amendment relates back to original day when (A) statute of limitations allows relating back, (B) arose out of original transaction, OR (C) changes party & same trans & not prejudiced & had reason to know that action would be brought against them & 4m (120 days to serve post-complaint)

o Only matters for SOL Not same transaction: Failing to advise of alternative therapy, switch to negligence during

surgery (Moore) Same transaction: Improper supervision in basketball, switch to counseling malpractice

(Bonerb) Differences: Same set of facts for claims. No discovery in Bonerb. General statement in Bonerb.

o Tips: Plead broadly. Amend early. (Twombly/Iqbal makes this more difficult.) Amending after 21 days => Freely allow when justice so requires (15a2)

o Test: Burden on person opposing to show bad faith or repeated failure to cure (Beeck: Slides)o Was there reliance on pleading?

Complaint

Draft a Complaint (Rule 8a)1. Short & plain statement for juris, (2) short & plain showing entitled to relief, (3) relief sought

1. Include facts and underlying legal theory (Bell: “Careless, reckless, negligent driving” was sufficiently short and plain. No longer the case)

Old Test: Only dismiss if no set of facts that P could prove would entitle her to relief (Conley) Twombly: Need to show plausibility, not conceivability. (Phone anti-trust. Not plausible.)

o Majority: Concerned about groundless claims taking up time. Need facts backing up claim.14

o Minority: Control through summary judgment, strict discovery rules, scrutinizing evidenceo Impact: Pile on circumstantial evidence. Find lots and lots of people who can say it’s plausible.

Iqbal: Assume plausible facts, don’t assume conclusions (Uncon policy of arresting for religion/sex)o Facts v. conclusions are close line. Draw on judicial experience/common sense.o This may be standard going from “plausible” to “more likely than not.”o Process

Facts: Assume them. Determine whether they plausibly entitle relief. Less plausible, more facts needed.

Conclusions: Ignore them Considerations: How detailed should you make pleading? Needs to be plausible. Don’t want to cut off

ways to win. Can amend. Not limitless right.

Alleging Fraud (Rule 9b): Need particular circumstances. Can allege malice, intent, knowledge generally. Need time/place/nature (Stradford: Sketchy dentist. Claiming he devised fraud scheme not enough.) May not always have evidence that you need at the time.

Serve D (Rule 4) => Need to serve within 120 days of complaint. Extend with good cause. (12m) Include (4a1)

o Name the court and parties, directed to D, name/address of P’s attorney, time within which they must appear, notify that failure to appear means default, signed by clerk, with court’s seal

How to serve? (4ac)o Copy of complainto By 18+ year old, non-partyo P can request marshal

Waiver (4d)o Include: Address to D, name court, copy of complaint, 2 copies of waiver, prepaid way to

return, inform of consequences of not waiving, date request sent, reasonable time to return (30 days), first-class mail or reliable means

o MUST waive service, unless they have good reason, or they are charged costs (4d2) Benefit: Extra time to answer complaint

Regular: 21 days Waived: 30 days to respond to waive request. 30 additional days to respond.

How to serve (4e)o 4e1: Follow whatever state law is. (CA: Reasonably calculated standard after regular kinds)

Each state has catch-all that allows publicationo 4e2: (include summons and complaint)

Deliver personally Leave at home with someone of suitable age and discretion AND resides there Deliver to agent authorized to receive service (commercial usually)

Want to have someone unconnected to case do it Server has to sign affidavit (12l)

Serving a corporation (4h)15

o Anything provided under 4e (4h1A) ORo Serve summons complaint to (4h1B):

Officer Managing or general agent Any other agent authorized by law/appointment to receive service.

Pre-Answer MotionsCan’t appeal denial of motion to dismiss until final judgment

Pre-Answer Motion: Reason unrelated to claim why it shouldn’t go forward (Rule 12b) (OPTIONAL)1. Lack of subject-matter jurisdiction2. Lack of personal jurisdiction3. Improper venue4. Insufficient process => Adequacy of summons5. Insufficient service of process7. Failure to join a party under Rule 19

Pre-Answer Motion: Even if complaint is true, substantive law doesn’t support relief (Rule 12b6)6. Failure to state a claim upon which relief can be granted

Claim Preclusion

Forum non conveniens

Timing: Once filed, clock on answer is stopped. If denied, 14 days to file on answer. (12a4A)

Joining Motions (Rule 12g-h) 12(b)(2)-(5) can be waived if not put in first response to case. (12h1)

o Failing to include to include in amendment as a matter of course loses it, too (12h1Bii) If you make a motion under 12, you lose the right to make another except as listed below (12g2) Failure to join under Rule 19 or 12b6, or legal defense can be raised:

o In a pleadingo 12(c)o At trial

Lack of subject matter can be raised at any time. (12h3)

Other Options before AnswerMotion for a More Definite Statement (Rule 12e): Only before answer

If statement is too vague/ambiguous to prepare response. Must point out defects and the details desired. Have 14 days to correct.

If, prior to this motion, defense isn’t available, can make another pre-answer 12 motion.

Motion to Strike (Rule 12f) => Can come before or after answer May strike “redundant, immaterial, impertinent, or scandalous matter.” Strikes bad/prejudicial claims.

Motion for Judgment on the Pleadings (Rule 12c) => Can come before or after answer

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Example: Statute of limitations. Can have exhibits.

Run away => Default judgment against you. (Rule 55) => Need affidavit/proof not participating. Might not be worth it to defend. Large percentage of results. Court decides damages. P can give brief findings. Can get things other than money, but rules not clear. Can set aside for any good reason (Rule 60b)

o Peralta: Includes defective services, REGARDLESS of whether claim would have been meritorious.

AnswerAnswer: Deny the truth of complaints (Rule 8b) => Admit, deny, admit/deny part, I don’t know

3. Can give general denial, but must actually mean it6. If not denied, admitted => If being deceptive, may be estopped from denying (Zielinski: Forklift)

a. P: Make shorter, more exact paragraphs. 12(e) motion or phone call to see what denial meant.b. D: 12(e) or phone call. Don’t be sneaky.c. Court: Allow amending under 15(c). Demand more info.

Bring 12s as defenses

Answer: Affirmative Defenses (Rule 8c) => Duress, SoF, fraud, assumption of risk, waiver, etc Failure to exhaust (Jones: Prisoner making claim. Burden on D to prove failure to exhaust.)

Timing: 21 days from when served, unless agree to take by mail. Then, 60 days.

Adding ClaimsCounterclaim / Crossclaim (Rule 13)

a. Compulsory Counterclaimi. Same transaction (A) AND does not require adding a party with no jurisdiction (B)

ii. EXCEPTIONS: Already have pending action on claim (A)b. Permissive Counterclaim: Can join any claim not compulsory => Won’t be bar later, but efficienth. Crossclaim against a coparty: Only if it comes out of same transaction or same property

Third-party Claims (Rule 14) Within 14 days of answer, D can become third-party-P (a) or P can bring in third-party-D (b)

o New D must be liable for all/some of claim against person bringing them in. (a1)o NOT about “your fault, not mine.” => Needs contribution. TP liable even if D liable.o Still need to find jurisdiction => No counterclaim if it’s a run around lack of diversity.o Why not just sue later? Finding of negligence can be used against them. Wants estoppel.

(Price: Broken chicken house. D impleads nail manufacturer. 40 claims pending. Doesn’t want nail manufacturer to claim no defect. Etc, etc. Upheld)

Changing Court

Change of Venue (1404) => Filed in the right place, but huge inconvenience. (ONLY FEDERAL)a. For convenience of parties/witnesses or interest of justice, move to another district.b. All parties can consent to move it

Forum non conveniens => If filed in right place, but better overseas (Federal/state) (Dismisses) (Piper Aircraft: Crash in Scotland. Manufactured in PA. Propellers in OH. Shops to CA)

o Alternative forum available ANDo Either...

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Establishes oppressiveness and vexation to D out of proportion to P’s convenience OR Court administrative and legal problems

NOT allowed because alternative law is less favorableo “So clearly inadequate or unsatisfactory that it is no remedy at all.”

Capping recovery for wrongful death of Mexican child at $2500 is adequate. Presumption towards P’s choice. Less true when P is foreign. Usually results in no suit being filed/loss. Except: Chevron/Nigeria protestors; /Ecuador toxins

Removal

Post-Pleadings; Pre-DiscoveryPresenting Matters Outside Pleadings (12d)

Use when there’s a small amount of evidence needed in simple case (Mattel: Fake barbies) When 12(b)(6) or 12(c) presents evidence, becomes summary judgment motion (56). Short discovery. Court can exclude the evidence to prevent this.

Voluntary dismissal (Rule 41a) => Can unilaterally dismiss before answer. All agree otherwise. No prejudice.

Involuntary dismissal (Rule 41b) => Fail to prosecute/comply with rules. Adjudication on the merits. Usually connected to settlement.

SettlementConsider both sides fee structures, price for each step of litigation.

Price of Settlement: Settlement amount ≥ (Amount if prevail – Attorney fees) *Probability of winning

Besides damages: Confidentiality (trade secrets), adjudication on merits, release of future claims. Can settle all claims pending (federal or state) (Epstein: Class action settlement in state settles federal) What can be included in confidentiality?

o Seal files => Complaints, documents during discoveryo Return of all document provisions => Judge has copy, too. Can seal with 26c motion.o Not be a witness in future cases? => Balancing ending litigation & getting truth out

Kalinkauskas: Sex discrim. Past witness can be deposed, but no terms of settlement. Settlement agreements which suppress evidence violate public policy (Kalinkauskas)

Mediator: No coercive power. Help sides see pro/cons. Very successful. Safe space.

Arbitration: Final decision. No appeals. Reasons to want it

o Change rules => Limit discovery, documents, way people testify, lax hearsay ruleso More private => Closed trialso Choose arbitrator => Specialized knowledge in the area.o More splitting of losseso Less expensive => Though arbitrator has to be paid for

Prevalent: 93% of telecom with employees. 75% with customers. Rarely used between corporations.

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How to get out of litigation? => Have to contest of grounds that contest generally in law/equityo Unconscionable: ( 1) Procedural: Extreme unequal bargaining, (2) Substantive: Claims by

employees went to arb; employer to court. P had to front fees. 1-sided discovery. (Ferguson)o NOT Uncon: No class action. D pays fees, offers favorable provisions for win, lots of customer

choice. Grounds can’t disproportionally affect arbitration. May overturn Ferguson (AT&T) Dissent: No consolidation means no claims at all.

DiscoveryHave to get past Rule 12

Pre-Trial Conference (Rule 16): Expediting disposition, establishing control, discouraging wasteful pretrial activities, improving quality of trial by thorough preparation, facilitating settlement

b. Must issue scheduling order. Contents: (3)(A): REQUIRED: Limit time to join parties, amend the pleadings, discovery, file motions (3)(B): Permitted: Timing of disclosures, extent of discovery, e-discovery, privilege agrees

Court can change almost anything under Rule 16. 16(a-b): Interrogatories, dates for trial/submission, full timeline 16b4: Schedule can only be modified with judge’s consent and good cause. 16c: Stipulations: Could say no Rule 56 motion, bifurcate case, etc. 16f: If you don’t do what they save, can give sanctions

o (1) Not appearing at pre-trial, (2) not prepared for trial, (3) not obeying ordersSanctions can include dismissal with prejudice (Sanders: Work injury. P misses all deadline. Dismiss)

(1) Complete failure, (2) D’s expenses/time, (3) other’s inconvenience, (4) not big pub policy Q En banc overturns: Should have given more notice. Law clerk shouldn’t have heard case. P got to see D’s case before writing own. Unfair.

Can only alter orders to “prevent manifest injustice.” (Rule 16e) (McKey: Can’t change at trial.) How to argue: Don’t punish P for counsel’s mistake, no bad faith, jury deserves whole story In McKey, P wanted to a statutory claim at trial. D should have been on notice. Public statute.

Duty to Preserve Evidence: If litigation is pending or reasonably foreseeable, need to preserve evidence. Even if you don’t own (Silvestri: Car crash. Kept car for 3 months. Didn’t give notice. Dismissed.)

Have to sign every request, response, or objection. (Rule 26g)

ToolsInitial disclosure (Rule 26a1A)

i. Name, address, phone number of individuals likely to have discoverable info, along with subjects of info, that disclosing party may use to support its claims or defenses

ii. Copy–or description by category and location–of all documents, electronic info, and tangible things that disclosing party has in its possession, custody, or control and may use to support its claims /defenses

iii. Computation of each category of damages claimed by disclosing party – who must also make available for inspection and copying the documents/evidence, unless privileged/protected, on which each computation is based, including materials bearing nature/extent of injuries suffered.

iv. Any insurance agreement that would cover all/part of possible judgment

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If fail to disclose a witness/information, precluded from using later (Rule 37c1)

Interrogatories (Rule 33) => No more than 25 written interrogatories to party in suit. Court can grant more. Must give answers/objections within 30 days (Court can make shorter/longer under Rule 29) Option to Produce Business Records (33d): If answer is in records, and burden is same for both

parties, responding party may: (1) specify records, in sufficient detail to enable party to locate/identify them as readily as responding party could AND (2) give reasonable opportunity to examine/audit them.

Types of questionso Identifying witnesses: “All the people that...”o Categories of documents: “Identify all the employees that have made complaints about...”

“Describe the complaint and investigation process.”

Document requests (Rule 34) => Get other party to produce & permit inspect/copy/test/sample:o Any documents or electronic info stored in any medium; any designated tangible things

Procedure (34b)o (1A) Describe with reasonable particularity each item/category, (B) specify reasonable time, place,

manner for inspection, (C) specify the form(s) in which e-info is to be producedo (2A) 30 days to respond (Court can alter). (B) For each item/category, must allow or state reasons

for objection. (C) Objection to part must allow the rest. (E) Must produce in ordinarily maintained or reasonably usable way.

Limited by 26(b)(2) and 26(c)

Depositions (Rule 30) => Sworn oral testimony. Includes follow-up questions. Can give docs, get comment. Can ask questions for 7 hours (over one day) with few limitations. Only get 10. Can ask for more; they’re expensive ($5000+) Can only cut short if in bad faith OR (1) unreasonably annoys, (2) embarrasses, or (3) oppresses (30d3) Strategy: If witness is getting torn apart, make lots of objections and talk a lot. Waste their time.

Can ask for additional time under 30(d)(1) if another person impedes/delays examination.

Requests for admission (36) => Written questions at end of discovery. Both sides agree to issue. No limit. If fail to admit, later proves to be true, can move for attorney’s fees/costs in getting proof. (37c2)

o EXCEPTIONS: Not important, reasonable ground to believe they would prevail, other good reason.

Discoverable Information Rule 26b, c, e, g

Scope: (1) Nonprivileged info that’s (2) relevant to any claim or defense. Doesn’t need to be admissible.o (Butler: Car accident. Wants total # patients in litigation & current patients. Current is privileged.

Total number is discoverable. Both sides can split the costs.) Limits: Can alter # or length. Must limit if:

o Unreasonably cumulative or duplicativeo The burden/expense outweighs its likely benefit, considering needs of the case, the amount in

controversy, the parties’ resources, the importance of the issue, important of discoveryo Protective Order: Protect from annoyance, oppression, embarrassment, expense (26c)

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o Narrowly tailor for case (Davis: Employment discrim. Requests other complaints of discrim.)o Needs to relate to precise legal claim (Steffan: Discharged as gay. No discovery of gay acts)

If had asked for emotional distress, diaries would be available.

Protective Order (26c) => Protect from annoyance, oppression, embarrassment, expense. Stalnaker: Sexual harassment. Wants to depose women voluntarily having sex. Only dep about coercion.

o If break rules, call judge. Have option to count this against time or not.

Privilege => Can be waived. Bringing claim for emotional distress waives privilege with psychiatrist. Groups protected: Info shared with doctor, lawyer, spouse.

Trial preparation material (Rule 26b3) => Documents made in course of preparing for case. No discovery. EXCEPTION: (1) It’s important AND (2) can’t be discovered by other means.

o Still protects mental impressions, conclusions, opinions, and legal theories (26b3B) Necessary doesn’t mean complete info (Hickman: D interviewed witnesses privately. D wants access

to info. Court says no. Can see public interviews/interview self. No discovery.)o Probably different result if witnesses fled the country. Can still probably get names.

Experts => If presenting at trial, has to consent to deposition. (12b4) (Thomspon: Exceptional) (Chiquita: Not) If not testifying, no deposition unless exceptional circumstances make it impracticable to obtain facts

o Exceptional Circumstances: Deposing psychiatrist P sees after firing, claiming emo distress o Not Exceptional: Malfunctioning boat. D’s expert examines. P doesn’t Had opportunity to.

Electronic information: Apply traditional rules: Relevance. Difficulty to understand w/o metadata. (Aguilar)

Discovery AbusesNeed to work in good faith to get it without court (Rule 37a1). If you don’t, pay fees.

37a3A: Compel disclosure37a3B: Compel discovery reponse

i: Deposition iii: Interrogatory iv: Permitting inspection

37a4: Evasion or incomplete disclosure counts as failure to disclose37a5A: If ordered to disclose, pay fees, UNLESS: No good faith to get info, was justified, other circumstance37a5B: If motion is denied, pay fees unless justified.

AppealsCan only be appealed after case. To get relief, have to show result of case would have been different.

Summary Judgment12b6: No set of facts to entitle to relief.

56a: No need for jury to see facts. All support me.Muddled after Twombly/Iqbal

Rule 56a. No genuine issues as to any material fact => Need to rebut with specific factsb. Happens within 30 days of the close of discoveryc. Procedure => Cite to parts of record (affidavits, declarations, documents, etc)

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Moving party does not matter. Whoever has burden at trial has burden at summary judgment. Celotex: Asbestos claim. P has letters showing it. SJ to D. Letters aren’t enough to establish element.

o (Adickes – OVERRULED: P says D conspired with police. No SJ to D because didn’t disprove.)

To rebut, need to specifically rebut facts against you with facts of your own => Even if just impeachment Bias: Teammates saw Bias take cocaine. Evidence of some clean blood tests didn’t contradict. SJ. Court is deciding some issues of fact => Case probably turns out differently if P didn’t die of OD. Horrible lawyering. Depose witnesses. Check for insurance. Find someone around him all the time.

Houchens v. American Home Insurance Co: Trying to show death overseas was accident. Neither side has any evidence. SJ to D.

TrialFormat

P Opening Statement D Opening Statement P witnesses (P has burden of proof)

o D cross examineso P rests

Earliest D can move for judgment as a matter of law D witnesses

o P cross examines22

o D rests Earliest P can move for judgment as a matter of law

P rebuttal witnesses, D cross examines

Judgment as a Matter of Law (Rule 50a) "Reasonable jury wouldn't have a legally sufficient evidentiary basis” to find for one party.

o (Norton: Juries are allowed to speculate and draw inference after inference. Mower case.) Made any time before submitting to jury Look at evidence most favorably to non-moving party

Goes to Jury; Jury decidesJudgment Notwithstanding the Verdict (JNOV) (50b) => Renewal of 50a. Must have made a 50a motion.

Can be made up to 28 days after trial

Standards to avoid Rule 50 judgment1. Must meet legal burden. (Reid: Cow killed on tracks. Equally likely gate wasn’t shut and it was

negligently maintained. Jury finds for P. Overruled. P needs preponderance. Odds are 50/50.)2. Must have conflict in the facts. Inference of a fact doesn’t directly contradict. (Chamberlain: P has

witness saying he heard bang, thought it was crash. D’s witnesses all say no crash. R50b. No conflict.) P should have looked at speeds of cars, shown how common crashes were, create plausible story.

Motion for a New Trial (Rule 59) => More flexible than 56/50a/50b Two general reasons

o Flawed Procedures => Examples: (1) impermissible args to jury, (2) error admitting evidence, (3) erroneous jury instructions, (4) juror misbehaved, (5) jury lacked evidence should have had

o Flawed Verdicts => Examples: (1) jury splits difference between parties, (2) decision is against great weight of the evidence (more flexible standard than 56/50)

o NOTE: Can’t talk to jury to determine. (Peterson: Judgment for P. Judge talks to jury, learns they misunderstood instructions, gives new trial. D wins. Appellate overrules for P.)

Different case if the jury instruction was wrong. Comparison with 50b

o Made at the same timeo 50b: You win; 56: You try again (can’t be appealed if granted)

What does against the weight of the evidence mean? (Lind: Oral argument to increase pay. 56 denied)o NOT simply that judge would have ruled differentlyo Reasons may be justified: Long & complicated trial, unique subjecto Dissent: This story wasn’t believable. Pay promised was too big.

Remittitur: Order new trial unless P accepts less damages. Common. Too risky to try again.Additur: Order new trial unless D gives more damages. Banned in federal courts.

Trial judge may give judgment as a matter of law with a conditional new trial.

Reasons to overturn judgment (Rule 60b): Mistake, newly discovered evidence that due diligence couldn’t find, fraud

Must be done within 1 year for those three reasons

Can’t appeal until judgment is final (1291)EXCEPTION: Interlocutory appeals (1292)

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Preclusion

Claim Preclusion: Prevent litigation of (1) the same claim, (2) between the same parties, (3) after FJ on merits Policy: Unfair to Ds. Would overwhelm courts. Costs. Idea that you get one shot; system works. Downside: Could create injustice to P. Claim might not be apparent until later. State preclusion can bar in federal court (Gargallo: Apply state law to check for preclusion.) No state preclusion if jurisdiction was missing in state court

o Gargallo: State claim over security law. Exclusive fed juris. FJ. No preclusion. No juris.

Same Claim (Frier: Has cars towed. State claim for replevin dismissed. Fed due process)o Majority: Same facts in the world / same transactiono Minority: Same cause of action / evidence for both is the same (Illinois)

Makes compulsory counter-claims mandatory, as well => Can’t bring 2nd claim if undermines 1o Martino: P has McDonald’s. Suit makes him sell. Sherman Act suit later. Court bars it.o Rule 13a: Compulsory counter-claim if same transaction.

Same Parties => Only parties in suit and when in privity Privity: (1) Successive legal relationship, (2) K to bind together, (3) Procedural (representing child) Close business relationship not enough. => Similar, not identical not enough. (Searle Brothers) Right to intervene in a case isn’t enough (Searle Brothers: Divorce. Property half owned by P, half

owned by H. Court gives entire property to W. H is P’s owner’s dad. P sues W. No preclusion.)o Dissent: P was sufficiently involved and interested in divorce that they should be privity.o Dissent: H represented interests of P is divorce.

Judgment on the Merits Different judgments:

o Lack of jurisdiction, improper venue, failure to join under Rule 19: NOo Summary judgment: YESo Judgment as a matter of law: YESo Rule 12(b)(6): YES. Usually have chance to amend, if don’t, judgment. (Not all states)o Involuntary dismissal (Rule 41b): YES

Issue Preclusion: (1) Issue of fact/law, (2) actually litigated/determined, (3) FJ, (4) essential to judgment Different reach. CP is about bringing all claims at once. IP is about consistency in unrelated claims. Policy: Consistency in judgment. Once actually litigated, assume outcome just. Only deals w/ 1 issue.

Same Issue => Precisely same issue. Remember standards of proof. If guilty civilly, NOT precluded criminally. If guilty criminally, may be precluded civilly.

Actually Litigated and Determined => Doesn’t include involuntary dismissal, unlike CP. Need to delineate exactly what issues prior judgment decided.

o If jury judgment could rest on two different sets of facts, must appear jury must have decided

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Parks: Railroad crash. W gets damages, D wins against H for loss of consortium. H sues for own damages. Jury must have decided either (1) H was negligent, too, or (2) no damages. No IP. Can’t prove jury didn’t find no damages.

EXCEPTION: IP for involuntary dismissal when (1) substantial participation by P, (2) has opportunity to defend self, (3) chooses not to. (In re Sammy Daily)

Essential to the Judgment If judge rules, lays out exact reasons. What if presents two sufficient reasons? (No dmg/Contrib neg)

o 1st Restatement: Preclude BOTHo 2nd Restatement: Preclude NEITHER

If appealed, first issue affirmed, second issue not determined, FIRST is precluded If jury decides, difficult

o Can use special jury verdict form.

Between Which Parties (Mutuality) Offensive: (P1 v. D), P1 wins. (P2 v. D) => Maybe. Used to not be allowed. More likely today.

o Reasons to Deny (State Farm: 48 cases. Juries go 2-2, other Ps want IP. Denied.) Verdict looks like a jury compromise Inconsistent results Finding is manifestly erroneous Newly discovered / crucial evidence not available at trial.

Defensive: (P v. D1), P loses. (P v. D2) => Yes. Preclusion. Less worried about harming P. NOT Allowed: (P1 v. D), D wins. (P2 v. D) => No preclusion. Due process.

Policy for offensive: Not always efficient. May promote wait-and-see approach. Use as defense if P2 doesn’t join P1. Unintended consequences: Company may not appeal small cases. Ends up precluding them. Inconsistent results: Lots of D wins, then 1 P win means preclusion.

IF PRECLUDED: Motion for summary judgment (Rule 56)

Incentives to LitigateRemedies

Compensatory Damages: Economic losses

o Lost wages => Pay stubs; Medical expenses => Billso Lost tuitiono Car damage => Insurance company assessment; Physical therapy => Bills

Non-economic damageso Pain and suffering => P testimony

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o Emotional distress => Psychological evaluationo Loss of consortium => Testimony of significant other

Punitive Damages: Punish D Malicious intent typically required Few awards than are more than single digit ratio will survive due process Extremely rare (6% of cases); median award is $50k

Injunctions: (Rule 65) Orders by court to do something

o Can be specific or wide-ranging (stop dumping into river v. reduce prison overcrowding) If only seeking injunction, will be heard by judge Higher standard to get injunctive relief over damages. When to give? Balance interests:

o Balance interests of partieso Is there an adequate legal remedy? => Hard to calculate damages? Is the harm priceless?o (Harris: Non-competitor agreement. Starts working for competitor anyway. Injunction.)

Preliminary Injunction: Order to do/not do something until case is decided. (Exception to FJ rule)o TESTS:

(1) Serious questions raised and (2) large imbalance of hardships. (William Inglis: Selling bread below cost. Case remanded with new test.)

(1) Probable success and (2) the possibility of irreparable harm

Declaratory Relief: Seeking declaration from a judge about the state of the law / existence or non-existence of rights

Other things people may be seeking => Respect, apology, public showing of story

Provisional Remedy (Fuentes: Seizing unpaid property before hearing. No due process) Due Process elements:

o Right to noticeo Opportunity to be heardo Granted in meaningful time and manner

Exceptionso Special need for very prompt possessiono Government official determines it was necessaryo Public interest

Remedies available (Rule 64)o Arrest, attachment, garnishment, replevin, sequestration

Financing Litigation

Three Rules:1. English Rule => Loser pays the winner’s attorney fees => Greater focus on ability to pay2. American Rule => Each party pays its own fees => Only worried about ability to pay

a. Minor shifting in some rulesb. Contingency fee: if P wins, lawyer usually gets 1/3 => Focus on merits of case / payout

3. Pro Bono / Non-Profit => No agreement between lawyer and client for payment

Fee Shifting26

1. Contractual2. Malicious litigation3. Statutes => Race/sex discrimination, discrim in education, ADA, Constitutional rights

a. Encourages lawyers to take these cases. Not enough money in them for contingencyb. Typical agreement is contingency + authorizing lawyer to seek reasonable fees.c. P can settle out of lawyer’s fees. How to get around? (Evans: Institutionalized children)

i. Ask for damages in addition to injunctive relief. Win lets you get costs.ii. Put in K that, if they settle without fees, they’re responsible => Illusion of choice.

d. What constitutes a prevailing party? => Needs judicial imprimatur (Buckhannon: C changes)i. Does preliminary injunction count as prevailing? Maybe

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