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I. Eliminating a Case Without a Trial
A. Default Judgment
1. FRCP 55
a.
Clerk enters default 55(a)
Default may be set aside under 55(c)
b. If
sum certain and defaulting party hasn't appeared, clerk may enter default judgment
55(b)(1)
c. In
all other cases, judge enters default judgment 55(b)(2). It is within the judge's
discretion whether to enter judgment or not.
Must serve written notice to defaulting party at least 3 days before the hearing.
Judge may hear testimony to determine the amount of damages.
d.
Defaulting party may seek relief from judgment under FRCP 60(b).
2. When it happens: Before
discovery.
3. Policy Reasons
a.
Keep the litigation moving court is expensive for society and the parties
b.
Makes the parties take responsibility for the litigation
4. Problems and
Countervailing Concerns
a.
The case is determined without ever hearing one side the clerk or the court decides the
case without hearing the evidence.
b.
Not usually the fault of the defaulting party usually the attorney's fault.
BUT, a party should be responsible for what her attorney does. A defaulting party can
still sue her attorney for malpractice.
5. Peralta v. Heights Medical
Center
a.
FACTS: Medical Center served Peralta improperly. Peralta didn't show to trial and ct.
entered default judgment against him, putting a lien on his land. Medical sold the land
and Peralta demanded that the ct. relieve him from the judgment and return his land. Ct.
required him to show a meritorious defense.
b. In
a default judgment case, a court (federal or state) can require a showing of a meritorious
defense before it hears the case again.
c. If
the party is not served properly, the court cannot require a meritorious defense.
B. Dismissal of an Action
1. FRCP 41
a.
Voluntary 41(a) May only be done by P
(1) By the Plaintiff 41(a)(1)
(a) Two ways to for P to voluntarily dismiss:
i) File a notice of dismissal before D serves an answer or a motion for
summary judgment 41(a)(1)(i).
ii) File a stipulation of dismissal signed by all parties 41(a)(1)(ii).
(b) This type of voluntary dismissal must be made before D serves a
responsive pleading or before introduction of evidence at the trial 41(c).
(c) Unless otherwise indicted, dismissal is without prejudice
If the case is voluntarily dismissed under (a)(1)(ii), the D should insist on a dismissal
with prejudice.
(d) P may only dismiss the same case twice. The second dismissal acts
as a judgment on the merits.
i) If the P brings the same action into court a second time, the court
may order P to pay D's costs of the previous litigation, as it deems proper 41(d)
(2) By Order of the Court 41(a)(2)
(a) P moves for dismissal.
(b) Court may dismiss a case upon the terms and conditions that it
deems proper.
(c) Court will usually consider the prejudice to D.
i) D's cost is not prejudice P can pay 41(d)
ii) Very fact specific; case by case
b.
Involuntary 41(b) May be done by D or by the court
(1) If P fails to prosecute or to comply with rules, D may move for
dismissal.
Sup. Ct. read "may" to mean that court may dismiss at its discretion as well.
(2) Time frame is left to judge's discretion judge will look to see if
D has been prejudiced.
(3) Unless otherwise indicated, dismissal operates as an adjudication
upon the merits.
2. When it happens: Before
discovery
3. Policy Reasons
a.
Keep the litigation moving
b.
Make parties take responsibility for the litigation
4. Problems and
Countervailing Concerns
a.
Involuntary dismissal harms P because the case is adjudicated without ever hearing it on
the merits.
BUT, P should be responsible for his attorney.
5. Manshack v. SWEPCO
a.
FACTS: Manshacks sued SWEPCO in TX Dist.Ct. Dist.Ct. chose to use LA law wasn't
advantageous to M so they asked the ct. to voluntarily dismiss the case. The ct. dismissed
the case and M brought the case again in TX state ct. SWEPCO argues that it was prejudiced
by the dismissal.
b. A
party will be prejudiced only if the dismissal will subject them to different law
theoretically, TX Dist. and St. cts. would come to same conclusion on choice of law.
C. Summary Judgment Decided strictly on papers
submitted to the ct.
1. FRCP 56
a.
Moving party must show that
(1) there is no genuine issue as to any material fact, and
(2) the moving party is entitled to judgment as a matter of law
(56(c)).
b.
Moving party may use affidavits, depositions, answers to interrogatories, admissions, and
pleadings to show that there is no issue.
c.
The nonmoving party must set forth specific facts showing that there is a genuine issue
for trial it may not just rest on the allegations or denials already made (56(e)).
d.
Time when can they file?
(1) Plaintiff any time after 20 days of the commencement of action or
after service of a motion for summary judgment by the adverse party (56(a)).
(2) Defendant any time (56(b)).
(3) If a party moves for summary judgment before discovery is complete,
the nonmoving party can request time for discovery (56(f)).
e.
Partial Summary Judgment the moving party may move for summary judgment on any part of a
claim (56(a),(b),(d)).
f. If
a party moves for summary judgment in bad faith, the court may order it to pay the
expenses of the nonmoving party, including attorney's fees (56(g)).
2. Affidavits
a.
Must allege specific facts
(1) Can't just repeat the broad allegations of the complaint
(2) This requirement was made by Sup. Ct.; not in FRCP
b.
Must contain information which is admissible at trial under the rules of evidence
(1) The form of the evidence does not need to be admissible, only the
content.
c.
Must be relevant to the cause of action or the defense.
d.
Must be based on personal knowledge and concrete facts
(1) Can't speculate or give opinion
3. When it happens: Usually
after discovery
4. Public Policy
a.
Keep litigation moving trial is expensive for society
3. Problems and
Countervailing Concerns
a.
Throws out a case before it goes to trial
5. Celotex v. Catrett
a.
FACTS: Catrett claimed that Celotex's asbestos products were responsible for her husband's
death. Celotex moved for summary judgment, arguing that Catrett had failed to produce
evidence that its products had even been used by her husband.
b. If
the nonmoving party has the burden at trial, movant may
(1) show affirmative evidence that there's no genuine issue of fact;
(2) show that the nonmoving party has not presented enough evidence to
support the claim or defense.
6. Visser v. Packer
Engineering
a.
FACTS: Packer fired Visser nine months before V's pension came up. V alleges that P fired
him based on age discrimination. Both sides moved for summary judgment. V responded by
introducing affidavits stating that P was a bad person. Ct. granted summary judgment for P
since affidavits didn't give adequate evidence.
b.
Affidavits must (1) allege specific, personally known, material facts; (2) must contain
evidence admissible at trial; (3) must be relevant to the action or defense.
c.
Both sides may move for summary judgment; possible neither will get it.
7. STANDARD OF REVIEW: De
Novo standard
II. Pretrial Conference
A. Purposes
1. Prepare for trial
a.
Streamline the trial
(1) Parties must disclose much of their strategy
(a) Names of witnesses, issues, etc.
b.
Set dates for discovery, etc.
c.
Set timing for motion for summary judgment, etc.
2. Settlement
a.
Judge may be aggressive, suggesting settlement, amount, etc.
b.
The judge cannot require the parties to settle.
c.
The judge cannot require the parties to negotiate in good faith.
d.
The judge may require the party to attend the conference or to be available by telephone
(16(c)).
e.
Parties often settle after discovery has taken place
(1) Discovery works to show strengths and weaknesses
B. Pretrial Order (Statement)
1. Purpose
a.
Narrow the issues to what is really important/valid
b.
Pretrial order may only be modified to prevent "manifest injustice" (16(e)).
(1) What constitutes "manifest injustice" is within the
judge's discretion.
(2) Guidelines and policies that guide judge
(a) To what extent will the other party be prejudiced?
(b) To what extent will the moving party be prejudiced if not allowed
to modify?
(c) Is it something that the party knew or should have known about?
(3) Amending complaint v. Amending pretrial order:
(a) Complaint may be amended freely "as justice so requires"
(b) Pretrial order may be amended only to prevent "manifest
injustice."
(c) Policy: By the time of the pretrial order, the parties ought to
know what their claims or defenses are.
2. The pretrial order
supersedes all other pleadings.
a. If
it's not in the order, it's not part of the action.
3. McKey v. Fairbairn
a.
FACTS: McKey's mother-in-law slipped and fell on a wet spot made by a leaking roof. McKey
filed suit against the landlord for negligence, alleging negligence in the pretrial
statement. Later McKey attempted to modify the pretrial order to include a D.C. housing
regulation requiring leakproof roofs. Ct. didn't allow modification.
b.
The ct. doesn't allow modification because the housing regulation was public knowledge
(1) The party should have known about it before the pretrial statement.
III. Jury Trial
A. 7th Amendment "preserves" right to jury
trial in "suits at common law"
1. Ambiguous language
2. Only affects federal
courts
a.
Most state constitutions give the same right
3. Congress may expand the
scope of a jury trial, but may not make the scope smaller.
4. No right to non-jury
trial.
B. History
1. Common law courts
a.
usually gave money damages
b.
jury trials
2. Chancery courts (Equity)
a.
usually gave orders as remedies
b. no
jury
c.
only available when no relief at law
C. Whether or not a jury trial is allowed depends on
where the action would have fallen in 1791.
1. Often difficult because
the common law areas and equity area were overlapping in 1791 U.S. ct. system.
D. There is no Constitutional right to a non-jury
trial
1. Congress has the power to
make every action subject to jury trial Congress may add but it can't take away
E. Policy question If the case is a
complicated/complex one, should it be sent to a jury?
F. Chauffeurs v. Terry
1. FACTS: Terry sues his
Union, Chauffeurs, for breaching their duty of fair representation. Terry seeks money
damages and wants a jury trial. This cause of action was nonexistent in 1791. Chauffeurs
argues that historically this action would have been similar to a trustee action which
would have been heard in a court of equity. Sup. Ct. agrees but grants jury trial because
remedy is money damages.
2. Court applies a two-prong
test
a.
What's the nature of the issue?
(1) Look for the most analogous claim in 1791
(a) Is it law or is it equity?
(2) BURNS: Not a very good test; ct. almost always goes through a long
recitation of history and then decides that it could go either way.
b.
What's the nature of the remedy?
(1) Is the relief sought in the form of money or an order?
(a) Money damages=law; Order=equity
(b) Not always clear because sometimes equity can give money damages,
etc.
c.
Brennan argues that the Ct. should eliminate the first step and focus only on the second
(1) Would still have to look at history
G. Atlas v. OSHA
1. FACTS: Atlas roofing was
fined by OSHA. Since OSHA is a government agency, it does the reviews of its actions.
Atlas argues that it is deprived of its right to a jury trial. Sup. Ct. disagrees and says
that the right to a jury trial doesn't exist under government agencies.
2. The right to a jury trial
doesn't apply when
a.
Congress has removed the action to a new forum.
(1) Takes the fact-finding stage completely out of the ct. system
b. A
public right is involved
(1) Allows Congress to take away a jury trial.
H. Grandfinanciera
1. FACTS: Debtor gives money
to Grandfinanciera. Trustee in bankruptcy demands the money back. Grandfinanciera asks for
jury trial. Bankruptcy cts. don't have juries. Sup. Ct. orders a jury trial.
2. Jury trials are proper in
a private action.
a.
Congress can only withdraw a jury when a public right is involved.
3. Juries are proper when
they won't disrupt the statutory scheme.
a. If
a jury doesn't disrupt Congress's intent, jury should be allowed.
4. When Congress creates a
ct. of limited jurisdiction (i.e. bankruptcy), parties are not deprived of right to jury
trial.
5. BURNS: Some people believe
that the Ct. got Atlas and Grandfinanciera backwards.
Overall, Sup. Ct. tends
to give more jury trial than non-jury trials; the exceptions are the cases outside of the
judicial forum (Atlas).
I. Questions to determine if Congress may remove the
action from a jury
1. What forum has Congress
assigned the action to?
a.
Administrative agency=usually no jury
b.
Dist. ct.=usually jury
c.
Somewhere in the middle=Sup. Ct. leans towards jury
2. Is it a legal issue?
3. Is there a public right
being litigated?
J. Conflict in Law and Equity
1. History
a.
Until 1938, actions at law and actions at equity were separate actions.
b. If
both actions were in ct. at the same time, judge could decide which one to hear first
(American Life).
c.
FRCP 2 merged law and equity into one action.
(1) Everything (pleadings, etc.) became the same except for right to
jury trial.
2. Beacon Theaters
a.
FACTS: Fox had a contract with movie companies for first run movies. Beacon threatened to
sue for unfair competition. Fox brought an equity action to enjoin Beacon from suing.
Beacon counter-claimed and asked for damages. Sup. Ct. said that right to Jury was a
Constitutional right so action at law must be heard first.
b.
Overruled American Life
c.
When there's both an equity and law before the ct., ct. usually must hear law first.
3. Ross: Most current case
law.
a.
FACTS: Shareholders sue officers and directors in a derivative suit. Suit historically an
equitable procedure but shareholders seek damages. Sup. Ct. says look at case issue by
issue.
b.
Right to jury trial attaches to issues.
(1) Divide the issues
(2) Take each issue and decide if it's legal or equitable
(a) Judge decides if procedure is legal or equitable
i) If the procedure to get to ct. is equitable, judge decides whether
it may go to court
ii) "Key to the courthouse"
(b) Judge decides if damages are legal or equitable
i) If the damages are legal, jury trial
(3) Try the legal issues first
4. Cases that look like they
deserve jury trials but the legal remedy (jury trial) is inadequate:
a.
Long, complex trial
(1) Although P has a right to a jury, D has a right to due process
(2) A long, drawn-out trial may deprive D of due process b/c jury will
forget or become confused
K. FRCP 38
1. Demand 38(b)
a.
Either party may demand a jury trial
b.
Must demand a jury trial in writing
c.
Must demand a jury no later than 10 days after the service of the last pleading
d.
May demand a jury in the pleading (complaint or answer)
2. Waiver 38(d)
a. If
a party fails to demand a jury as required by FRCP 38, a jury trial is waived
b.
The court may dismiss the jury if both parties agree
c.
FRCP 39 The court may order a jury trial notwithstanding a waiver
IV. Jury Selection
A. 28 USC 1861-67 (Not binding on states)
1. 1861 "All citizens
shall have the opportunity to be considered for service on . . . juries"
2. 1862 "No citizen
shall be excluded from service as a . . . juror . . . on account of race, color, religion,
sex, national origin, or economic status."
a.
Protected classes
3. 1863(b)(2) Jurors selected
from voter registration lists and "some other source or sources of names in addition
to voter lists where necessary to foster the policy" of allowing all citizens an
opportunity to serve
a.
Most areas use motor vehicle registration
b.
Some areas use utility or phone lists
4. 1863(b)(6) Jobs exempt
from jury service:
a.
Active military
b.
Fire or police department
c.
Public officers who are currently serving
5. 1867 Party may challenge
the selection procedure within seven days after discovering or after it could have
discovered the grounds. Challenge must be done before voir dire.
B. FRCP 48
1. Jury shall have no less
that six and no more than twelve people
C. Challenging the Jury
1. Challenge to the pool
(Challenge to the array)
a.
Appropriate when a protected class (race, sex, religion, etc.) is not in the jury pool
b.
Court should look beyond voter registration
(1) Motor vehicle registration
(2) Utility or phone lists
c.
Policy:
(1) Justice We want to treat people fairly
(2) Appearance of Justice We want people to feel like they've been
treated fairly
2. Challenging individual
jurors
a.
Cause
(1) Actual bias
(a) Formed an opinion on the case
(2) Imputed bias
(a) Close contact with someone involved or similar circumstances
(3) No limit on number of jurors that may be excused
(4) Judge decides
(5) No written standard; judge looks at custom of the courts
b.
Peremptory FRCP 47(b)
(1) No reason necessary
(2) Generally, each party gets three
(3) Policy:
(a) If lawyer suspects bias, may dismiss
(b) Legitimizes the jury
3. Court may excuse a juror
at any time for good cause FRCP 47(c)
4. Policy reasons for
allowing challenge
a.
Want a diverse jury
b.
Want to make the jury appear legitimate (legitimizing the jury)
c.
Want to avoid bias
D. Voir Dire FRCP 47(a)
1. Court may permit parties
to question the prospective jurors; or
2. The court itself may
question the jurors
3. If the court conducts the
questioning, it shall allow the parties to ask additional questions or shall allow the
parties to submit additional questions for the court to ask
4. McDonough Power v.
Greenwood
a.
FACTS: Juror misunderstood question in voir dire about serious accidents; didn't respond.
Party later discovers that jurors son had been in a serious accident claims that it would
have used a peremptory challenge on him had it known. Sup.Ct. says no new trial because
there's no such thing as a perfect trial only a fair trial.
b.
Sup. Ct.'s test for allowing a new trial b/c of juror mistake/dishonesty
(1) Juror gives a dishonest answer; and
(2) A truthful answer would have given rise to a challenge for cause
(a) Concurring opinions take issue with first requirement; all justices
agree with the second
E. Limits on Peremptory Challenge
1. Can't use peremptory
challenge to strike a protected class
a.
Generally, a party can only raise her own issues
(1) Edmonson exception b/c jurors couldn't represent themselves
b.
Edmonson
(1) FACTS: Leesville used peremptory challenges to strike black jurors.
Edmonson cited Sup.Ct. case that decided jurors have Constitutional right to equal
protection in criminal cases. Sup.Ct. finds that government is involved in civil
litigation enough that jurors are entitled to equal protection.
(2) Supremes finds government involvement in
(a) Judge
i) dismisses jurors and oversees questions according to USC, FRCP
(b) Government summoning jurors
i) Jury then becomes a government body
(c) Proceeding
i) Trial taking place in government building supported by taxes
(3) Dissent argues that
(a) government is only giving the parties a forum to litigate in
(b) if one party can't strike protected classes, the other party can't
either
(c) this holding gives parties another procedural issue to fight about
and avoids the merits of a case
(d) no guidance to lower cts. on how to implement
V. Jury Instruction and Misconduct
A. Jury Instruction FRCP 51
1. Requires a written object
2. Must object to specific
instruction
a.
Can't generally object
3. Must oppose jury
instruction before the jury retires
a.
Policy: Judicial economy
B. Jury Misconduct
1. Beverly Hills
a.
FACTS: After hearing testimony on the dangers of aluminum wiring, juror goes home and
checks out his wiring. He finds no signs of problems and reports his findings to his
fellow jurors. Party objects to this experimentation. Ct. finds new trial required.
b.
Policy: Since jurors can't be cross-examined, they are not permitted to experiment or
bring in outside evidence.
2. Federal Rules of Evidence
606(b)
a. A
juror may not testify as to matter or statement occurring during the course of the jury's
deliberations
b.
Juror may testify only on the question of whether something from outside was prejudicial
c.
Policy
(1) Protect jurors from harassment
(2) Keep public confidence
(a) BURNS: Few verdicts could withstand public scrutiny
(3) Jurors feel secure not inhibited in the deliberations
(4) Finality of verdict
d.
This rule only limits what jurors may testify of; if another person sees internal actions
of jurors, testimony OK
3. Internal v. External
Matters Influencing the Jury
a.
Internal: Jurors may not testify
b.
External: Jurors may testify
Internal
External
(Hard to discern judgment call)
(Easy to discern easy to verify)
Didn't understand instructions
Bribe
Dumb
Brings in non-evidence (book, etc.)
Brings in prejudicial life experience
Unauthorized visit to site
Drinking and drugs
Experiment
Sick
Sleepy
VI. Jury Verdict
A. FRCP 48
1. Jurors must reach a
unanimous verdict
2. No verdict shall be taken
from a jury reduced to less than six people
VII. Getting a Fair Judge
A. Before WWII, judges weren't challenged often
1. Not many judges to choose
from
2. Judges were presumed to be
impartial
B. After WWII, more common to challenge a judge
1. Easier to find a
replacement
2. Judges are less likely to
take it personally if they're challenged
C. Liljeberg v. Health Science
1. FACTS: Litigation that
would affect the value of Loyola U's property. Judge Collins presided over the trial and
sat on Loyola's Board of Trustees; should have disqualified himself but didn't. Ct. finds
that parties entitled to a new trial.
2. 28 USC 455
a.
Appearance of justice
b.
Statutory construction
c. No
remedy in statute Ct. must look at each case individually
d.
(f) requires
(1) Substantial time
(2) Judge may divest himself
(3) (would not change as a result of Liljeberg)
VIII. Taking a Case Away From the Jury
A. Before the case goes to trial
1. Motion to Dismiss
2. Motion for Summary
Judgment
B. During the trial
1. Rules of evidence keep
things from the jury
C. After the case is tried
1. Directed Verdict (Motion
for judgment as a matter of law) (Non-suit)
a.
Standard is similar to standard for summary judgment
(1) Judge is not supposed to weigh the credibility of the witnesses
b.
FRCP 50
(1) "Reasonable jury" standard no legally sufficient
evidentiary basis for a reasonable jury to have found for that party with respect to that
issue
Reasonable jury could only find one way
c.
Judge essentially says that there is only one way this case can come out because the
evidence on the other side is insufficient
d.
Policy: Judicial economy
e.
When it happens: After the opposing party has put on evidence and before it goes to a jury
f.
Either party may move for directed verdict, but must wait until the end of opponent's case
g.
Court may enter a partial directed verdict
h.
Pennsylvania Ry. v. Chamberlain
(1) FACTS: Chamberlain was riding on a train. Falls off and is run
over, dies. D brings witness who claims that he heard a crash and then noticed deceased no
longer on train assumes that two sets of cars collided. P introduces witnesses that claim
no crash. Sup. Ct. decides P entitled to a directed verdict.
(2) BURNS: Ct. is actually weighing the credibility of the witness;
should be able to look at circumstantial evidence; this case could have come out either
way; Ct. can manipulate the system to give either party zero.
(3) Evidence the court considers:
(a) Evidence of the moving party
(b) Non-disputed evidence of the non-moving party
i.
Stout
(1) Directed verdict not appropriate when jury could find either way
j.
STANDARD OF REVIEW: De Novo standard
2. J.N.O.V.
a.
Standard same as directed verdict
A reasonable jury could only find one way
b.
MUST move for Directed Verdict in order to move for JNOV
(1) JNOV is a renewed motion for a DV
(2) In many cases it's malpractice to fail to move for DV
c.
Why judge would deny Directed Verdict but grant J.N.O.V.
(1) If judge is reversed, there's a jury verdict to fall back on
(2) Appearance of justice (had a chance to go to a jury)
(3) Gives the judge time to review the transcripts and the records in
her own chambers at her own pace (DV takes place in the heat of trial)
IX. Motion for a new trial
A. FRCP 59 (very broad)
B. Two basis for a new trial
1. Procedural
a.
"Harmless error" standard (FRCP 61)
b.
Mistake in instructions or evidence
2. Evidentiary
a.
Insufficient evidence to support verdict
C. Standard for a new trial
1. J.N.O.V. v. New trial
a.
FRCP 50(c) allows JNOV and grant of new trial
J.N.O.V. (Higher standard)
New Trial (Lower standard)
Only one way the trial can
come out A reasonable jury
could only find one way.
Evidentiary:
Verdict is against the great
weight of evidence.
2. Procedural standard:
"Harmless error" (FRCP 61)
3. Evidentiary standard: Jury
verdict against the great weight of the evidence
a.
Judge can weight the evidence in granting a new trial, but
b.
judge shouldn't be a "super juror"
c. Up
to the discretion of the District Ct. judge to determine the weight of the evidence
d.
The court is less likely to grant a new trial when the error is evidentiary since the
trial judge is in a good position to see if evidence is proper or improper.
e.
Factors a judge looks at when determining a new trial on evidence
(1) Complexity of the subject matter
(2) Amount of time the trial has taken
D. Appeal/Relief
1. Can't appeal a grant of a
new trial since you're already getting a new trial
2. If JNOV and new trial are
granted (as is often the case), may appeal JNOV. Then the court may look at the issue of
the new trial.
E. New Trial for All or Part of the Issues (FRCP 59)
1. Damages
a.
Court may allow new trial for damages only
b.
Remittitur Judge gives P the option of taking a smaller amount than the jury verdict or
having a new trial on damages
(1) Sup.Ct said remittitur is Constitutional any amount up to the jury
award OK
(2) OK in Federal Cts. and most state cts.
c.
Additur Judge gives D option of paying more than the jury verdict or having a new trial on
damages
(1) Sup.Ct said additur is overstepping bounds amount over jury verdict
not OK
(2) Not OK in Federal Cts., but many states allow it
F. JNOV v. New Trial: Logistics
JNOV
NEW TRIAL
Must move within 10 days of
judgment (FRCP 50(b))
Must move within 10 days of
judgment (FRCP 59(b))
(Not flexible)
Judge may not enter motion on
her own initiative
Judge may enter order for trial
on her own initiative (FRCP 59(d))
Must move for Directed Verdict
in order to move for JNOV
(FRCP 50(b))
X. Decisions from the Judge
A. FRCP 52
1. Requires judge to give
reasons for the judgment
2. Judge must state
a.
Findings of fact
(1) Since one person is making the decision, higher cts. want to be
sure that she didn't forget a piece of evidence
b.
Conclusions of law
3. Judge must give an opinion
parties cannot waive it
4. Judge may have the winning
party submit the findings of fact and conclusions of law
a.
App.Cts don't approve but won't overturn just b/c party, not judge, wrote it
B. Standards of Review in Higher Courts
1. Finding of fact
a.
"Clearly erroneous" standard
(1) Since App.Ct wasn't present to see and hear evidence, unwilling to
find fault unless it's a blatant mistake
(2) Oral or documentary findings of fact subject to "clearly
erroneous" standard
2. Conclusions of law
a. De
Novo standard either the judge was right or wrong
3. Determining if something
is fact or law
a.
Varies with different courts
b.
Courts have a lot of "wiggle room"
c. If
ct. doesn't like the result of a case, it can call it clearly erroneous and reverse
4. Tittle v. Aldacosta
a.
FACTS: Boat pulled into harbor. Passengers were getting off boat without permission. First
mate ran over to help passenger off; failed to put down a mat. Passenger fell and was
injured. Ct. finds for boat. App.Ct reverses.
5. Rule 52 doesn't give
guidelines on fact and law
a.
Determined by tradition
b.
Sometimes Sup.Ct will say that certain area is fact or law
(1) Pornography=law
6. Rule 52(b) (and last
sentence of 59) allows a judge to reopen a case and hear more evidence instead of
re-trying the case.
XI. Res Judicata (Claim Preclusion)
A. Precludes party from bringing a second case on the
same claim
1. Applies even if the claim
could have been brought but wasn't
B. D raises res judicata as an affirmative defense
1. Waived if it's not raised
C. Definitions:
1. Merger if P won, judgment
merged into the claim
2. Bar if P lost, judgment
was a bar to suing again
3. "Split cause of
action" may not split a cause of action into separate parts
4. "Election of
remedy" P can't go back and request a different remedy
D. Checklist for Res Judicata
1. Same parties
2. Same cause of action
3. Judgment on the merits
4. Final judgment
E. Policies and Countervailing Concerns
1. Policy
a.
Protects the litigants from harassment
b.
Judicial economy
c.
Protects the finality of judgments
2. Countervailing concern
we're throwing someone out of court
F. Friar v. City of Vandalia
1. FACTS: Friar's cars
blocked street; city towed cars. Friar brought litigation for replevin, then later brought
a Constitutional due-process claim. Ct. said res judicata barred second claim b/c Friar
could have argued due-process in first action. Majority says it was the same cause of
action.
a.
Differences (1) one case was equitable, one legal; (2) the issues are completely different
(first is on city taking cars, second is Constitutional)
b.
Majority looks to the questions
(1) same core of operative facts
(2) arose from same time, space, etc.
2. Res Judicata is harsh
doesn't matter if it's throwing out a Constitutional claim, federal judgment, etc.
G. Res Judicata depends heavily on how ct. interprets
the law ct. has much discretion
1. What is a "cause of
action"?
H. FRCP 42(b) allows a judge to split claims and hold
separate trials
1. Often done in complex
cases
2. Party must submit all
claims; ct. will deal with them as it sees fit
I. Federal Interpretation (Broad)
1. "Same cause of
action"=Arises out of the same transaction; any claim from same facts
2. Personal injury and
property injury often = same cause of action
J. Some States' Interpretation (Narrow)
1. Bars an action even if
it's based on different theory, Constitutional claim, etc.
K. Party may appeal a wrong judgment, but may not
bring another lawsuit on same claim
L. Res Judicata applies even if the law changes
M. FRCP 18 Joinder of claims
1. Rule doesn't spell out
penalty for failing to join claims, but
2. Common law res judicata
requires a party to join all claims or lose the right to bring them
N. If the second cause of action hasn't occurred at
the time of the first action, not required to join it (Duh!). Often occurs with paychecks,
rental payments, dividends, etc.
1. Since facts were not in
existence at the time, not precluded by Res Judicata
O. FRCP 13(a)
1. If D has a counterclaim
that arises from the same transaction or occurrence as P's claim, S shall bring the
counterclaim at the same time as P's action.
a.
Counterclaim must be raised or it's lost
2. Policy Judicial economy
3. Res Judicata bars D from
bringing the counterclaim at a later date
4. Martino v. McDonald's
a.
FACTS: Martino's son buys a Burger Chef; McDonald's sues for breach of K. Ct. finds for
McDonald's and Martino sells McDonald's. Later, Martino brings an antitrust action against
McDonald's, claiming damages from the forced sale. Ct. says it's barred by Res Judicata.
(1) It would have been barred by FRCP 13(a) except that Martino didn't
file a response in the first action.
b.
Ct. protects consistency allowing Martino to bring a counterclaim might allow a judgment
inconsistent with the first action.
c.
"Same parties"=same party or parties and parties in privity
P. A party can't be bound by a judgment unless it's a
party to the first action.
1. BURNS: Claim preclusion
requires same party or parties in privity
2. Policy due process
3. Exception part bound by
judgment if it's in privity with a party in the first action
4. Searle Bros. v. Searle
a.
FACTS: Divorce judge took all land from Woody and gave it to Edlean. Searle Bros. argues
that it has a half-interest in the land. Edlean asserts res judicata against the claim
since Searle Bros is in privity with Woody (Woody and sons owned it). Ct. says claim not
barred b/c Searle Bros. wasn't involved in the first case (and probably couldn't intervene
in divorce action)
b.
When a court determines privity, looks at all facts very fact specific
(1) Did the non-party have any control in first action?
(a) How close are the parties?
(b) Did the non-party know about the action?
(c) Did the non-party have a lawyer present in the courtroom?
(d) Was the lawyer allowed to call witnesses?
(2) Policy is due process don't want to penalize a party if it didn't
have a chance to put on evidence, etc.
(3) In Searle, although Searle Bros. knew about action, probably
weren't allowed to have lawyer in court b/c divorce action.
5. Ct. determines privity by
looking at
a.
same issue in both actions?
b.
did absentee know of first action?
c.
was absentee present at first action?
d.
was absentee effectively a part in the first action?
(1) Did absentee have a lawyer present asking questions and putting on
witnesses?
Q. Final Judgment on the Merits
1. Misleading Actually
applies in most situations
a.
JNOV, Jury verdict, Directed verdict, Directed verdict at end of P's case, Summary
judgment, Dismissal b/c of discovery, 12(b)(6) motion (and most of the other 12(b)
motions), Involuntary dismissal, Voluntary dismissal w/ prejudice, Default judgment.
2. FRCP 41(b) lists
exceptions to 12(b) motions; also allows ct. to specify that above actions are not a
judgment on the merits
XII. Collateral Estoppel (Issue Preclusion)
A. Allows party's claim into ct. but assumes that
some of the issues involved have already been decided.
B. Collateral Estoppel requires
1. The issue be actually
litigated
2. Final judgment on the
issue
3. The issue is essential to
the judgment
4. Same parties
C. Policy
1. Judicial economy
2. Consistency
D. Collateral Estoppel v. Res Judicata
1. Collateral Estoppel only
applies to issues that have already been litigated
a.
Unlike Res Judicata, Collateral Estoppel doesn't apply to issues which could have been
litigated but weren't
2. Issue is not collaterally
estopped if there's been a change in the law
a.
Res judicata keeps it out regardless of change in law
E. Collateral estoppel doesn't apply if some of the
facts have changed
1. B/c facts have changed,
the issue hasn't been litigated
2. Up to the judge to decide
if the factual change is sufficient to preclude the issue
F. Illinois Central Ry. v. Parks
1. FACTS: Bertha sues Ry for
personal injuries; husband Jessie sues for loss of consortium. Bertha wins; Jessie loses.
Jessie sues in second action for personal injuries. Ry wants issue preclusion based on
contributory negligence b/c jury found against Jessie. Ct. says no no way to tell if jury
found contributory negligence or no compensble damages.
G. Mutuality
1. Traditionally, a party
could use issue preclusion only if same parties were in both actions
2. Mutuality began to erode
in state cts first in CA
a.
Burnhart v. Bank of America
3. Federal cts. first allowed
other parties to use it in
a.
Blonder-Tongue
(1) FACTS: Patent holder sued D(1). Ct. determined that patent was
invalid and found for D(1). Patent holder sued D(2). D(2) asserted issue preclusion,
claiming that ct. had already decided issue of patent validity. Ct. decided that
non-mutual issue preclusion was OK and allowed D(2) to use it as a defense.
(2) Policy
(a) Avoids expense and good for judicial economy
(b) Avoids inconsistent decisions
(c) Not unfair to P since it's already had a chance to litigate the
issue
(3) Sup.Ct. decided that Dist.Ct may allow a non-party to the first
action use issue preclusion as a defense
(a) Up to the discretion of the Dist.Ct. judge whether to allow party
to use it
b.
Parklane Hoisery
(1) FACTS: Shareholders brought action against Parklane. While action
was pending, SEC brought action against Parklane for an injunction and won. Shareholders
sought to use issues in the SEC case and assert issue preclusion offensively.
H. Defensive and Offensive Use of Issue Preclusion
1. Supremes said that a
Dist.Ct. may allow absentee party to assert issue preclusion, whether offensively or
defensively
2. Defensive
a. Ct
more likely to allow issue preclusion defensively
b.
Policy
(1) Avoids expense and good for judicial economy
(2) Avoids inconsistent decisions
(3) Not unfair to P since it's already had a chance to litigate the
issue
3. Offensive
a.
Factors Dist.Ct must consider
(1) Could P in second action have joined with P in first action?
(2) Fairness to D
(a) Was it foreseeable that issues in first action might be used to
preclude issues in second action?
(b) Have there been a number of cases which D has already won?
i) BURNS: If a case has a possibility of producing subsequent lawsuits,
fight hard on the first one
(3) Must look at it case by case
b.
Most state cts. take same approach as fed cts. in offensive issue preclusion
c.
Party may not use offensive issue preclusion against any part of the government
(1) Especially the IRS
d.
Problems and Countervailing Concerns
(1) Not fair to D
(a) D can't select the forum
(b) D might lose on a fluke and lose every action thereafter
i) Train hypothetical train wreck; 50 passengers injured; 1-25 lose;
26th wins; issue preclusion would allow 27-50 to win
(2) No judicial economy
(a) Encourages parties to wait instead of joining together
i) If first party wins, everyone else can win; if first party loses, no
one is out anything
I. Procedural Items Affecting Issue Preclusion
1. Sup.Ct's list of things
sufficient to avoid issue preclusion (Parklane)
a.
inconvenient forum
b.
insufficient discovery
c.
inability to call witnesses
2. No jury trial is not
sufficient to avoid issue preclusion
a.
BURNS: This is stupid Jury trial is Constitutional right, convenient forum is not.
