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Civil Procedure Outline

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Incentives to Litigate-Remedies Substitutionary Remedies-Yeazell pp. 288-303 State Farm - SC determines that large punitive damages can't be given. 3-part test: 1)reprehensibility of D (was the harm physical/not economic? Reckless disregard of others' health? Was the target of conduct financially vulnerable? Was the conduct repeated? Did the harm result from intentional malice, trickery, etc?) ; 2)proportionality of punitive/compensatory damages (145-1 = too much, usually only single-digit proportion); 3)disparity between punitive damages and civil penalties allowed for the offense Specific Remedies & Temporary Remedies-Yeazell pp. 304-15, 345-54 P. 346 - Winter v. NRDC, 4-part test for issuing preliminary injunction. 1) likely to succeed on merits 2) likely to suffer irreparable harm without injunction 3) balance of equities tips in party's favor 4) injunction is in public interest Pleading The Story of Pleading-Yeazell pp. 365-83 See Rule 8 and 12(b) Sorting Weak from Strong-Yeazell pp. 384-413, and the Iqbal complaint (on CTools) Twombly - conceivable claim not sufficient, need plausible claim to reach discovery Iqbal - Interprets Rule 8 to make it much more difficult for claims to get to discovery. Complaint's version of the facts must be more likely than any other explanation. Iqbal says legal conclusions are not acceptable in a complaint; in a "short and plain statement of the claim showing that the pleader is entitled to relief" (R. 8) one must show (plausibly, not just conceivably) through providing facts that one is entitled to relief. At issue is the word "showing" from 8(a), so only applies to complaints, not answers. Ethical Limits-Yeazell pp. 413-26 Rule 11 sanctions - Christian v. Mattell Responding to the Complaint-Yeazell pp.426-42 Rule 55 Default Judgment Rule 12(b)2-5 WAIVED if not raised in a motion (b)2 - lack of personal jurisdiction (b)3 - improper venue (b)4 - insufficient process (b)5 - insufficient service of process Zielinski - p. 433, P sued the wrong party. Complaints and answers must be VERY specific, broken down into component parts to avoid this type of problem Amendments & Relation Back-Yeazell pp. 443-56 Rule 42 Consolidation; Separate Trials Rule 15 Amended and Supplemental Pleadings 1

Can relate back amendments when they arise from the same transaction or occurrence (see Moore v. Baker as compared to Bonerb; Moore has a very narrow view of "conduct, transaction or occurrence" from 15(c) whereas Bonerb is more liberal) Claim preclusion hinges on this same test (implication - if Bonerb can't amend now, might not be able to bring any claim later) Discovery The Possibilities and Stages of Discovery-Yeazell 457-64, 469-85 Discovery allows parties without the full facts to get to trial, and makes trials more efficient Rule 26 Duty to Disclose; General Provisions Governing Discovery Davis v. Precoat Metals - P files Motion to Compel Discovery, and J grants it because J determines it is sufficiently "narrowly tailored to the specific claims of the case." "Court can limit discovery if it determines
... that ... the burden or expense of the proposed discovery outweighs its benefit." Rule 37 Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Steffan v. Cheney - Rule 37 was invoked by district court, dismissing P's suit for constructive discharge after he refused to answer deposition questions about "homosexual conduct." Appeals court reverses, saying questions about conduct not relevant (not discoverable) because he had resigned (his "constructive discharge") after a board recommended his discharge based on his STATEMENTS. (Conduct =/= statements, so statements outside relevant discoverable material.) Limitations on Discovery-Yeazell pp. 487-503 Judges generally stay out of discovery except for motions to compel or protect; these mostly handled by magistrate judges If info at oral deposition isn't privileged but still don't want to answer, can object; still have to answer, but can maybe keep it out at trial; if info privileged, assert privilege and court later decides if you need to go back into deposition to answer 26(b)(1) says anything nonprivileged and relevant to a claim or defense is discoverable Privileged info may also still be available through a different source 5th Am. protects in criminal AND civil cases, but in civil cases adverse inference allowed If you don't waive privilege, it stands, though can inadvertently waive it Hickman v. Taylor - tug boat sank, and the owners employed lawyers to interview the crew in preparation for litigation by the survivors of the decedents. P then sought to have the tug's lawyers turn over their prep work/interviews, but lawyer refused and appealed the resulting contempt order. SC ruled he didn't need to turn over these materials; 26(b) (3) incorporates this ruling into the rules, protecting parties from having to turn over "mental impressions, conclusions, opinions, or legal theories" Controlling Abuse of Discovery-Yeazell pp. 508-23

2 Fact vs. expert witnesses: fact wits testify to personal knowledge of events, while experts have little or no actual knowledge of the facts but testify to opinion Thompson v. Haskell - P had a psychologist commissioned, and D wants to discover the psychologist's records on patient. J grants right to discover the records, because there's no other way to get the (relevant) info. P had raised the issue of mental state, which opened the door to D discovering psychologist's info Chiquita Int'l v. M/V Bolero Reefer - 26(b)(4)(D) Non-testifying experts don't need to be subjected to discovery. Judge denies D right to discover P's expert b/c D had the opportunity to assess its own equipment at issue, simply missed it Zubulake v. UBS Warburg LLP - P suing for gender discrimination on a lucrative job. P wants D to pay to re-depose people and to find tapes with evidence she believes will prove her case, but she really wants an adverse inference instruction from the judge. Motion for adverse inference and extra tapes denied, with J saying that $20k for discovery of tapes would be reasonable but $300k not (her suit over a $650k salary she lost) - J said they should uncover a sampling of tapes and check to see what's on them, and P might then be able to show there is more relevant evidence out there. J notes that D has responsibility to preserve relevant info from the moment it reasonably anticipates litigation (but some question when that is) - court will hold spoliation against you if it's willful, though here it was just reckless spoliation so P has to show relevance of the evidence for the court to give adverse inference instruction. E-discovery and the Sedona Conference (C-Tools) Avoiding Trial Summary Judgment-Yeazell pp. 581-96 R. 56. Summary judgment weeds out cases where no reasonable jury could decide other than one way. Adickes v. Kress - changed by Celotex. Adickes sues restaurant on civil rights claim. Needed to show that restaurant was acting in collusion with authorities. J put the burden on D to rule out ALL possibilities of collusion to get summary judgment. Celotex - 1986 case changing Adickes standard. Simple tort case against asbestos company. Under Adickes' standard, to get summary judgment, D would have had to show absolutely no way P was ever exposed to their product. SC creates new standard: might be enough for D to show P's lack of evidence. Summary judgment thus linked to same standard used trial. Shifts burden against D in cases of affirmative defense. Evidence offered for purposes of supporting/combating R. 56 has to be admissible at trial (doesn't have to be purely admissible on face, but 3

must be a way of getting it in; e.g., can offer up deposition of a person who would then testify trial.) Writing a motion as P against summary judgment, drawn from Bias:

1. "R. 56 (only) allows summary judgment when there is no genuine dispute of material fact."

2. Then, cite Celotex standard that there is an initial burden on D to show no genuine issue.

3. "They claim no genuine issue bc..."

4. Specific evidence that creates dispute (witnesses, drug tests, etc.) P doesn't have to show they SHOULD win, just that they might. But in Bias, it was enough for D to show P hadn't found a co. that would give a policy to P (a drug-user) - that's the lack of evidence for P, resulting in D prevailing. Use plain English to cite questions of fact!
Trial Divided Authority in Civil Litigation-Yeazell pp. 602-18 7th Amendment provides right for jury trials in common law suits exceeding $20 Some suits (in equity) have no such right bc not part of 18th century common law Reid v. San Pedro RR - juries can be biased. J verdict for P, even though less than 50% chance that facts were favorable to P. Jurors only supposed to rely on common sense and evidence in record. Challenging Jurors and Judges-Yeazell pp. 618-42 Race and gender can't be reasons for challenging jurors. Challenges: "peremptory" or "for cause." Judges Controlling Juries, etc.- Yeazell pp. 643-56 28 USC SS455: Reasons a J can be requested to recuse. Appearance of bias 455(a) (J's impartiality could "reasonably be questioned"). Objective reasons to think the judge is biased 455(b). Caperton - P raises due process claim because J elected largely through D's campaign donations. SC finds inherent debt, calls it due process violation. Pennsylvania RR v. Chamberlain - Petitioner RR moved for directed verdict (now called judgment as a matter of law.) R. 50 - after party fully heard, other party can move for judgment as matter of law. Standard for summary judgment and judgment as matter of law should be the same, but can have different results because things can change during trial (witnesses recant, etc.) New Trials-Yeazell pp. 656-71 Lind v. Schenley Industries - P works for liquor store, alleges oral k for pay raise and share of commissions. Jury found for P; D moved for j.n.o.v. and, alternatively, a new trial, and trial court granted both. 4

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