Last semester, we focused on what rules the Supreme Court has told us concerning Civil Procedure. Now, we explore the application of those rules by going over the lifecycle of the case. There are four main stages of the case timeline.

  • Pleadings
  • Discovery
  • Trial
  • Appeal

Before a case can move onto the next stage, it must fully complete the previous stage. However, to save time and costs on ineffective cases, the courts have placed rules that the plaintiff must overcome. If the plaintiff fails to overcome these rules, then the case can be dismissed.


The rules for the pleadings are comprised in Rule 8 of the Federal Rules of Civil Procedure. There are two kinds of pleadings. The pleadings made by the plaintiff is the complaint. The pleadings made by the defendant is the answer.

According to rule 8(a)(1-3) the requirements of a complaint include:

  1. A statement expounding on jurisdiction grounds
  2. State a claim
  3. Prayer for a remedy.

The answer contains three potential responses to the complaint. They can admit the claims, deny the claims, or say that they do not know whether the claims are true (this acts as a denial).

Some rules that need to be followed is that after the complaint is filed, the defendant must be served within 90 days (Rule 4(m)). The defendant must respond within 21 days (federal court).

The wall the plaintiff must overcome in the pleading stage is a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. This can occur when the plaintiff does not have the authority to sue (a fan can’t sue a referee), has not met the elements of the cause of action, or if the plaintiff accidentally states the defendant’s innocence.


This is the fact finding process. At this time, witnesses are questioned in depositions, records are gathered, and arguments are prepared. This can take months.

However, even after all this work, the plaintiff still has another wall to climb. They must overcome Rule 56, summary judgment. If there is no chance of the evidence convincing a reasonable jury of the potential truth, then the court can dismiss the claim before it reaches trial.

Trial and Appeal

After trial, there is another hurdle that must be faced. This is Judgment as a Matter of Law (JMOL) which acts the same way as a summary judgment. This often occurs when some of the evidence has changed in the time between discovery and the trial (maybe a witness wasn’t being truthful at discovery but was witness at trial that proves the innocence of the defendant).


Stating a Claim

As mentioned, a pleading requires three parts.

  1. A statement of jurisdictional grounds.
  2. Claims
  3. Prayer for a remedy

Our focus is on the claim. In the complaint, the claims are called “counts.” A count is comprised of two points that are necessary for the pleading to be successful. First, it needs to state a proper law (have a cause of action). Second it needs to state appropriate facts associated with that law. If either is disconnected from the other, the case is dismissed.

The rules for a the average pleading is found in Rule 8 of the Federal Rules of Civil Procedure. It asks for a “short and plain statement” of the claim. This means that the plaintiff can be very brief with their facts (not all the facts need to be listed) to pass the pleading threshold.

Doe v. Smith – Basic Complaint Example

This case is a 12(b)(6) motion to dismiss for failure to state a claim. The defendant argues that the facts in the complaint are insufficient. This is because they do not argue the “interception” (not explicitly stated) in the facts.

The court disagrees. This is because there is enough information here for the defendant to know what they are being sued by. They also say that the facts here are clear enough for you to infer that the the camera had an audio function (which was required by the statute).

Stated differently, there only needs to be enough facts to make plausible the plaintiff’s arguments. The facts will be need to be proven at trial, but is not necessary during pleadings.

Jones v. Bock – Exhausting Administrative (Prison) Remedies

In the answer, the defendant has three tasks.

  1. Respond to allegations.
  2. Provide affirmative defenses.
  3. Make counterarguments.

Before the plaintiff can go to the court, they need to exhaust all other available options. This is true in the case of prisons. If they do not exhaust all available options, the case could be dismissed in the pleading stage. However, a question arises. Does the plaintiff have to prove they exhausted all administrative remedies? Or is that the task of the defendant as an affirmative defense?

An affirmative defense is simply saying, “even though you’re suing me. . . you can’t.” For instance, the plaintiff has to go through all remedial options before going to court. They do not need to bring up all the facts, but the defendant can certainly dispute the completion of that task.

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit – Suing S.W.A.T.

The big takeaway from this is that it is hard to sue the government. You can, but during discovery you have to gather more evidence than you normally would have to. The question is, does the pleading stage also require the plaintiff to meet a higher standard?

The answer is no. Rule 9 of Civil Procedure lists out what kinds of cases require a higher pleading standard (fraud and mistake). Because suing a governmental agency is not on that list, the standard for pleadings remains the same as before “short and plain statement.”

Stratford v. Zurich Ins. Co – Dentist Insurance Fraud

The time, place, and nature of the fraud must be stated in the claim. Rule 9(b).

The only two Rules of Federal Civil Procedure that govern pleadings are Rule 8 and 9. From this case we learn that there is a hierarchy of which claims have a higher standard. 9(b) claims need to be stated with “particularity.”

Plausibility v. Conceivability

The old rule was established underneath Conley where the claims had to be conceivable. The purpose of this rule was to through out crazy claims. This changed with TwomblyTwombly was a complicated antitrust claim which stated that the claim needed to plausible. Attorneys thought this rule only applied to complicated pleadings. Iqbal changed this by applying it to all civil claims. Conley is still the standard for State courts while Iqbal is the standard in federal courts.

Ashcroft v. Iqbal – 9/11

There is a difference between conceivable and plausible. Conceivable was more objective while plausible is more subjective to the judge’s perspective. As a natural consequence, it adds another burden to plaintiffs to state a claim. How so? Because it required plaintiffs to come prepared with facts that are true, enough to make it through pleadings. The issue is that most of this information comes through discovery.

In Iqbal, was it conceivable that he was discriminated by his nationality, race, and religion? Yes, the question after Twombly was that it needed to be plausible. What was missing? His complaint was missing sufficient facts that would move it from conceivable to plausible. Something that could have pushed it over the line was a statement from a whistleblower to say that the defendants had said what they did. These facts need to come from the pre-filing investigation (which information is likely not going to be volunteered).

Why can’t he make the claim himself? It is because he needs to do something more than a mere conclusory statement. He needs to do more than accuse a violation of a law, he needs to have an additional fact that proves it.


Two Pronged rule

  1. Needs to be more than a conclusory statement. “If well-pleaded, take it as true.”
  2. Plausible, not conceivable. “Plausible claim for relief.”

The Iqbal rule only applies to factual allegations.

Judges are gatekeepers. Ultimately, it is up to the judge to determine if the claim is plausible.

Johnson v. City of Shelby – Fired Officers

The issue in here is that the complaint did not state federal code (42 USC 1983) in the complaint.

The Supreme Court took this case to say “hey, small mistakes are not grounds for dismissal.” It was clear that the defendant’s knew what they were being sued for.

Something to research more: Inconsistent pleading. “If the facts point to multiple conclusions, you can state both theories in the pleading, even though they are inconsistent.”

Ultimately, there are three ways a plaintiff fails to state a claim:

  1. Deficiency in stating a law
    1. For example, referee malpractice or state law copyright (there is only federal copyright law).
  2. Facts
    1. Inconceivable claims – Little Green Men
    2. Implausible claims – Specificity

Ethical Limitations in Stating a Claim

Federal Rules of Civil Procedure Rule 11 governs the conduct of attorneys.

Proper steps for a Rule 11 Motion:

  1. Serve the opposition with notice of a Rule 11 motion.
  2. Wait 21 days
  3. File a Rule 11 Sanctions motion with the court.

The takeaway from Rule 11:

  • It governs written representation to the court. Rule 11 does not cover any interactions with other parties.
  • This rule does not usually have anything to do with discovery.
  • The only time verbal communications are governed is if the attorney discovers that something they wrote is no longer true (and orally stands by it).
Hays v. Sony Corp. of America – Common law v. statutory copyright

“By asserting claims without inquiring whether they have a plausible grounding in law and fact, a lawyer can impose on an adversary and on the judicial system substantial costs that would have been – and should have been – avoided by a reasonable pre-pleading inquiry.”

So, to avoid Rule 11 sanctions, the attorney is expected to conduct a pre-pleading inquiry.

Walker v. Norwest Corp. – Wrong about diversity jurisdiction

If the attorney files frivioulous claims and refuses to amend those claims, then they can be subject to sanctions.

Christian v. Mattel, Inc. – Barbie

The takeaway from this case is that Rule 11 only manages the written representations to the court. So, the trial judge needs to itemize which charges are associated with written representations to the court.

Responding to the Complaint

Rule 12 outlines all the rules related to responding to the complaint by saying what should be said in the answer. We can bring 12(b)(2-5) motions to dismiss either before or with the after, just not after the answer. However, all 12(b)(2-5) motions to dismiss need to be brought together. If you “string-them-out” all other later motions to dismiss are waived. Rules 12(b)(1) and (6) are not waived. However, if the defendant brings a different 12(b) motion prior to the answer, they must wait until the answer to bring a 12(b)(1) or (6) motion.

An answer contains 3 things; responses to allegations, affirmative defenses, and counterclaims.

Matos v. Nextran, Inc.
  • 12(b)(6) motion to dismiss a claim
  • 12(e) motion for a more definite statement
  • 12(f) motion to strike a claim

For a 12(e) the writing does not have to be beautiful, it just needs to be intelligible.

A 12(f) motion to strike words from the complaint. However, 12(f) motions are rarely allowed.

As for 12(b)(6) the complaint was not dismissed but was allowed to be amended.

Hunter v. Serv-Tech, Inc.

The defendant had originally brought a 12(b)(5) and realized later (after it was unsuccessful) that they should have brought a 12(b)(2). The issue here is that it was brought later when it should have brought together. Consequently, the 12(b)(2) was waived. This is the concept of “stringing,” or rather the inability to string, in action.

Another thing to note under 12(h) is that the 12(b)(2-5) must be brought in the first responsive pleading.

Ingraham v. United States

This case outlines the rules for affirmative defenses. One example of an affirmative defense are the statute of limitations. As long as the injury occurred after the timeline, the claim could be dismissed for running past the statute of limitations. Most of the time, there is a statute of limitations timeline for 1-3 years (except for exceptional cases such as murder).

However, the affirmative defenses need to occur in the answer. Otherwise, the defense is waived. The purpose of which is to give the plaintiff fair notice of the defendant by allowing it in one particular instance.

These rules are outlined in Rule 8(c).

Amending Pleadings

Rule 15 describes the methods which a party may make amendments to their pleadings. First, Rule 15(a) discusses the methods for amending with and without leave (permission) of the court. Second, Rule 15(b) discusses amendments during trial (not discussed here). And Rule 15(c) discusses how to relate back to the original pleadings when the statutory bar has passed.

Amending Without Leave of Court

According to Rule 15(a), there are two ways to amend without the leave of the court. 1) Within 21 days of the original pleading. 2) The original pleading can be amended within 21 days of serving a responsive pleading (e.g. counterclaim). However, the party will still be allowed to amend if the opposition files a 12(b)(6),(e), or (f).

You only have one free amendment without leave. Otherwise, you must obtain leave.

Amending Before Trial with Leave of Court

Beeck v. Aquaslide ‘N’ Dive Corp. – Pool Slide Accident

Rule 15(a)(2) states:

“In all other cases, a party may amend its pleading only with the opposing party’s written consent of the Court’s leave. The court should freely give leave when justice so requires.”

Judges consider a variety of factors to determine if these amendments are appropriate.

  • Stage of litigation
  • Reason for the amendment
  • Viability of amended claim or defense
  • Why it was not included in the original pleading.
  • Bad faith, prejudice, and undue delay

Ultimately, a party will need permission if it is likely to prejudice the opposition by not providing enough time to build a defense.

Amending After Limitations Period

Amending Claims and Defenses
Bonerb v. Richard J. Caron Foundation – Rehab Basketball

An amendment may be added, even though the statute of limitations has already run, if if claim “relates back” to the original pleading.

So, there are two requirements. Otherwise, the statute of limitations renders the claims futile:

  1. The claim must relate back to the original pleading
  2. The claim must obtain leave to amend.

To show that the claim relates back, the person requesting amendment must show that both claims arise from a common nucleus of operative fact. The purpose of the facts is that it puts the defendant on notice because they have already obtained most of the information necessary to prepare a defense.

As far as obtaining leave, this was done early in the stages of discovery, so there were no complications with obtaining leave.

Moore v. Baker – Informed Consent v. Surgery

This case is an example where the operative facts did not derive from a common nucleus. Additionally, the request for leave came at the end of discovery, an unreasonable time for the court to grant leave to amend.

Amending Parties
Krupski v. Costa Crociere S.P.A. – Mistake in name

Rule 15(c)(1)(C)

If the plaintiff made a nominal mistake, then they must provide proper notice to the actual party within 90 days (See Rule 4(m)). In other words, we focus on what the defendant knew. Did they have notice? If so, there is no prejudice against them because they would have the necessary material available to make a defense. However, if the plaintiff makes a deliberate choice to sue the wrong party, then that protects against amendment.

So, if there is a mistake, not a choice from the plaintiff, they can be granted leave to amend if:

  1. The actual party knew or had reason to know that they were the wrong party, and would be sued if there was no mistake.
  2. They received notice within 90 days of the mistake.

This is true even if the statute of limitations has run.


Overview of Discovery

Discovery is about developing the facts.

Most cases are won or lost in discovery. This is the time when the defendant has the highest probability of prevailing before trial.

The key rules to discovery are Rules 16 (hearings) and 26-37.

Determining the Schedule

Rule 16 Hearings. There is a requirement for both parties to meet together with the judge to come up with a discovery schedule. This determines when discovery starts and ends (cut off), usually lasting about 6-9 months.

Knowing the Scope

Rule 26 Scope. A very quick summary is that the material needs to be relevant.

Gathering through Discovery

There are three main ways to discover evidence:

  • Rule 28 Depositions (up to ten without leave. Each one up to 7 hours long). These are interviews conducted to witnesses to gather factual testimony. The testimony here is typically recorded in video and transcribed by a court reporter. The attorney who is interviewing is described as “taking the deposition.” The opposing lawyer will “defend the deposition.”
  • Rule 34 Producing Documents. These can be paper, email, videos, etc.
  • Rule 33 Interrogatories. These are questions (25) written and served to the other party. Although always done, they do not always produce results.
Automatic Disclosure

Once discovery starts, parties are automatically required to disclose certain information.

  1. The name and addresses of the “good” witnesses.
  2. Any documents that support your claim or defense.
  3. Damage information.
  4. Insurance.

All other document gathering must be done by the means through step 3 above.

Handling Disputes

The only time the judges get involved in discovery is if there is a dispute (on exam).

Rule 37 Motion for an order to compel. The party bringing the motion must include a certification in good faith. The purpose is to meet and confer with opposing counsel in an attempt to resolve the issue without court action. The judge may also issue sanctions for failing to comply with discovery standards. Think of Rule 37 as the sword of handling disputes.

Rule 26(c) is a motion for a protective order. This is to protect certain information from discovery. Think of this rule as a shield against disputes.


  1. Discovery dispute
  2. Attempt to resolve
  3. Include in motion a certification of an attempt to resolve.

Scope of Discovery

The scope is outlined in Rule 26(b)(1). In summary, this rule states that discovery applies to documents, emails, property access, pictures, etc. regardless of whether this is admissible evidence at trial. The only limitations to discovery is that one party may be privileged to maintain sole possession of information, the requested information needs to be relevant, and the evidence needs to factor in discovery costs to the needs of the case.

Key words:

  • Relevant
  • Claim or defense
  • Non-privilege
  • Proportional


Rengifo v. Erevos Enters. – Citizenship Status in Overtime Wage Case

Rule 26(b)(1) says that discovery applies to the relevance of the claim or defense. This is our test to see if what was gathered is discoverable.

In this case, the issue here is that the request was not relevant to the case. It is not relevant because it does not bear on the claim or defense regarding his overtime case. For example, requesting the citizenship status is not a defense against an overtime recovery claim.


Oxbow Carbon & Minerls LLC v. Union Pacific Railroad Co. – Expensive search


  • Defendant’s can make discovery requests just like plaintiffs.
  • Discovery costs can be extremely high and still proportional.
  • The six factors of proportionality:
    • The importance of the issues at stake
    • The amount in controversy
    • Parties’ relative access to the relevant information
    • The parties’ resources
    • The importance of the discovery in resolving the issues
    • Whether the burden or expense of the proposed discovery outweighs its likely benefit.

Limitations of Discovery


  1. Attorney-client privilege
  2. Clergy-penitent privilege
  3. Psychotherapist-patient privilege
Attorney Client Privilege

Restatement (3d) of the Law Governing Lawyers § 38

The Attorney-Client privilege may be invoked with respect to:

  1. A communication (written or oral)
  2. Made between privileged persons (client, attorney)
  3. In confidence (no third parties present, even trusted parties! Nondisclosure agreements could allow attorney coworkers to participate)
  4. For the purpose of obtaining or providing legal assistance for the client.

If any of this information is shared outside of this relationship (with a third party), the privilege is waived and the communication is discoverable.

Work Product

Hickman v. Taylor – Tug Boat Accident

The work product of attorneys is not to be disclosed unless the lack of disclosure prejudices the other party who is unable to gather the information otherwise.

The test is to determine whether the other side had the opportunity to gather the facts themselves. If they do have the opportunity, then there is no need to gather information from the lawyer.

However, if an employee creates a report in the standard business, that report is not considered a work product. This is because the report occurs in the standard practice of business (Upjohn notice).

Process for analysis

  1. Is the material available to both parties?
  2. If not, would the material normally be discoverable?
  3. If so, is there a substantial need for the material?
    1. The statements about the material is discoverable.

Expert Information

There are two main types of witnesses. First, lay witnesses which focuses on fact. They have personal knowledge about facts or alleged facts pertaining to the case. Second, expert witnesses. Expert witnesses do not testify about the specific facts about the case. They are called to provide their “opinion” about what the facts mean. A person is an expert if they have knowledge that is outside the range of a normal person (specialized knowledge).

There are several categories of expert witnesses:

  • Testifying experts
    •  Definition: An expert that the attorney plans on using at trial.
    • Subject to discovery without a court order through 26(b)(4)(A), this includes communications between the attorneys and the expert.
  • Non-testifying experts
    •  Definition: An expert that the attorney does not plan on using at trial but employs to help prepare a case.
    • Only subject to discovery if the circumstances are exceptional through 26(b)(4)(D)
  • Consulted but not employed experts
    •  Definition: These are experts who are interviewed to be experts but ultimately the lawyer determines not to use the expert (often these are experts that disagree with the lawyer’s position).
    • Although there is no rule that determines if they are discoverable but many courts say that there is no need to disclose their identity.
  • Fact witness experts
    •  Definition: These are experts that also meet the requirements of a fact witness. That is, they have direct information about the case as well as heightened knowledge. A good example here would be an Emergency Room physician.
    • Treated as a lay witness and thus are not able to invoke a work product privilege.
  • Independent experts
    •  Definition: These are individuals who have relevant expert information but they must be reasonably compensated for that use.
    • Their information may only be subpoenaed if they are reasonably compensated. See Rule 45(c)(#3)(B)(ii).

Discovery of Non-Testifying Witnesses

Thompson v. Haskell Company – Psychological Evaluation

The plaintiff had consulted and determined not to use this expert. Thus, this expert likely benefits the defense. So, the plaintiff is trying to protect the witness from being discovered and the defense wants to have the report.

The court determines to grant the request to discover the report. A large part of the plaintiff’s claim is that she suffered damages at the time of the event. So, her mental state could be in a completely different position now than it was when she had the original evaluation. Thus, if the request is denied, then the defendants would be disadvantaged. This is because only one doctor conducted the investigation, a new report is not practical, etc.

Although there is usually a psychotherapist-patient confidentiality, this privilege was waived because the client sued for emotional damages.

Chiquita Intern. Ltd. v. M/V Bolero Reefer – We’re both on the boat

This case outlines what happens when an expert witness becomes a fact expert witness. This occurs when the expert witness discovers something “new” that was not previously known (because the expert now has some personal knowledge relating to the facts of the case).

The issue here is that the plaintiff hired a marine engineer to discover what happened (during discovery). Here, the plaintiff is arguing that the engineer’s work product is not discoverable because he is a non testifying expert witness. However, the defendant wants the document because they say that the engineer is a fact witness. So a big part of this discovery request is whether the expert witness is also a fact witness.

Here, the court determined that he was a non testifying expert witness and the material is not discoverable. As such, his report is only discoverable if there were exceptional circumstances. Here, there was no exceptional circumstances because the Reefer had the same, and often times exclusive, access to the reefer.

Ensuring Compliance and Controlling Abuse

Zubulake v. UBS Warburg LLC – Deleted Emails

This was a case where UBS was engaging in spoliation (the destruction of evidence). Because of the spoliation, the jury was instructed to make an adverse inference about the emails (view them against the destroyer). When an attorney engages in spoliation, they can be disbarred. When a client engages in spoliation, the evidence is considered against them and they could also be sanctioned.

Here, UBS claims that the emails were not discoverable because it would be unduly burdensome. However, these emails are contained in UBS’s email service so it is their responsibility to preserve those emails.

Although the plaintiff has the burden to prove that the preponderance of the evidence favors them, the defendant has the burden to produce all relevant documents (if asked for it). When the request came up with nearly no evidence, suspicion arises as to the conduct of UBS.


Do not delete stuff.

The term of art is a “litigation hold.” This is the attorney’s instruction to the client to hold all pertinent (to the litigation) documents. Facts are not privileged. FOR THE EXAM: We issue the litigation hold not only when the lawsuit is filed, but is sent as soon as litigation is reasonably expected or anticipated. In a case like this, litigation is reasonably anticipated from the moment they realize they are going to terminate the employee. If the litigation hold is ignored by the client, and evidence is deleted, then the opposing counsel will request that the judge instruct for adverse inference.

If the attorney discovers that evidence was destroyed, the attorney has to disclose that information to the court.

Process if ignored:

  1. Issue litigation hold (pending or reasonable anticipation of litigation) (make sure the issue is dated in writing).
  2. Hold is ignored and client engages in spoliation (change or destruction of evidence) (discovered during discovery).
  3. Motion for instruction of adverse inference (made during trial).
  4. Jury ruling.

So, a person who wants an adverse inference has to prove the following three elements:

  1. The party having control (custody) over the evidence had an obligation to preserve it at the time it was destroyed.
  2. That the records were destroyed with a “culpable state of mind” (fact specific)
  3. The destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
Rule 37(e): Penalties for failing to preserve electronically stored information

If a party fails to preserve ESI with the intent to deprive the other party to use the information, then we assume the information was unfavorable to the party.

Key Questions:

  1. When does the duty to preserve arise?
    • When you reasonably anticipate litigation
  2. What is the scope of the duty to preserve?
    • Material that is relevant to claims or defenses of the pertinent litigation.
  3. What documents/evidence must be retained?
    • Everything that is relevant
Liguria Foods v. Griffith Labs – Bad Pepperoni

The judge determines that the parties are involved in improper objections. Both parties are creating these improper objections. Here, the judge was brought into the proceedings because these objections created Rule 37 motion to compel and Rule 26(c) motions for protective orders.

Here, the judge issues one final warning that attorneys need to stop engaging in boilerplate objections (and does so in all caps). He can issue sanctions, but chooses not to in this case.

Gathering Discoverable Materials

Mandatory Disclosure

There are four categories of materials that are required to be disclosed:

  1. Names and addresses of “good” witnesses.
  2. Evidence that supports its claim or defense
  3. Damages
  4. Insurance Coverage

The idea is to promote settlement


Questions asked to the other party. These questions cannot exceed 25 questions per document and additional interrogatories require leave from the court. All the other rules of Federal Procedure (e.g. proportionality) continue to apply for interrogatories.

Interestingly, the number 1 question asked during an interrogatories was to list the names and addresses of all individuals who have relevant information about the case.

Request to Produce Documents

The most common request.

Other than the documents that are automatically produced, a party can request additional documents that are relevant to claims and defenses. In the request, the main requirement (in addition to discovery rules) is that the materials requested are described “with reasonable particularity.”

These are copies of paper documents.

Depositions and Subpoenas

A deposition is an interview with a witness. The attorney conducting the interview is “taking the deposition” while the opposition “defends the deposition.” Note for practice: Do not let the other party get you off the record.

The notice for a deposition is served onto the attorney of the other party, not the client. Importantly, the date and time for the deposition needs to be reasonable. If the date and time is not reasonable (e.g. scheduled over a wedding or major holiday), then the parties must meet and confer to try and resolve. If the issue is not resolved, then a protective order.

A subpoena is an order to come and testify while a subpoena duces tecum is a request to bring certain information or documents with them to testify.

Electronically Stored Information

Technology has developed significantly over time. Once upon a time, discovery was easy. You sue, compel any paper documents (usually not very many) and then try the case. With the expansion of technology, much more information is transferred and stored.

Resolution Without Trial

  1. Settlement
  2. Dismissals
    1. Rule 12 – Defendant
    2. Rule 41 – Plaintiff
  3. Judgment
    1. Rule 55 – Default judgment
    2. Rule 56 – Summary Judgment
    3. Rule 50 – Judgment as a matter of law – During trial before the jury deliberates. The main difference is when the motion is presented. The term judgment has the exact same legal effect regardless if it is in default, summary, or as a matter of law.


Over 95% of cases never make it to trial. Most of these cases settle. Note that somebody always wins a settlement. One party is always going to benefit more than another party.


Dismissals can come from either the plaintiff or the defendant. Most of the time, motions for dismissal occur from the defendant under Rule 12. However, under Rule 41, a plaintiff can voluntarily dismiss their claim as long as they do so before the defendant answers. Why would a plaintiff wish to dismiss? If the judge is looking at the case during a preliminary hearing and the plaintiffs feel like the claim is not in their favor. They could dismiss before the answer is filed to avoid a bad situation.

Usually, motions to dismiss are court orders without prejudice (at least for the first dismissal). That means that the person can refile in accordance with the proper rules. This is different than a judgment where the ruling is final (except for appeals within the same jurisdiction).

Dismissals focus on the sufficiency of facts and legal allegations.


Default Judgment – Rule 55

If a party fails to respond to a complaint within the proscribed timeline, a default judgment may be entered against them.

A party may choose to default instead of responding to the case if:

  1. They are judgment proof (have no collectable assets)
  2. The defendant does not know what default judgment means
  3. There was improper service and the defendant is unaware of the lawsuit
Virgin Records America, Inc. v. Lacey – Piracy

The moment the defendant fails to respond within the prescribed time (20 days in state court, 21 in federal court), they become in default. Importantly, default means that the defendant automatically accepts all allegations in the complaint as true.

There is a difference between default and default judgment. A person may be in default without having judgment ruled against them. At the point of default, the judge has the responsibility to determine if they want to enter a default judgment.


  1. Defendant is sued and does not respond within 21 days.
  2. Plaintiff makes a motion for default judgment.
  3. Clerk enters a “Clerk’s Entry of Default.”
  4. A judgment hearing occurs to determine if judgment is necessary (Lacey did not show up).
    1. Determine the defendant was properly served.
    2. Ensure the plaintiff established the complaint was sufficient to establish the defendant’s liability. In other words, did the complaint sufficiently state a claim.
    3. Determine the available remedies.
  5. If judgment is deemed necessary, then it is entered as a default judgment.

However, Rule 60 can offer a defendant relief from a judgment or order.

“A person may show 1) mistake, inadvertence, surprise, or excusable neglect; 2) newly discovered evidence that, with reasonable diligence, could not have been discovered in Tim etc move for a new trial; 3) fraud (whether previously called intrinsic or extrinsic [hard to do]); the judgment is void; the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 6) any other reason that justifies relief.”

Summary Judgment – Rule 56

The idea for summary judgment is that a plaintiff who fails to prove their claim (meeting the essential elements) should not make it to trial.

Summary judgment comes in one of two forms:

  1. Full summary judgment
  2. Partial summary judgment

Rule 56(a)

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitle to judgment as a matter of law.”

(b) Time to file a motion

“Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at anytime until 30 days after the close of all discovery.”

(c) Procedures

The standard used by a judge to determine the Rule 56 outcome is a preponderance of the evidence, “more likely than not.”

Celotex Corp. v. Catrett – Asbestos

Celotex outlines the standard for summary judgment.

First, the defendant has the burden of showing that there is an absence of showing.

Second, the plaintiff must rebut by pointing out specifically where the evidence sufficient is at. The plaintiff does not need to depose their witness, just point to the evidence.

Houchens v. American Home Assurance – How’d the missing husband die?

The key issue in this case is that the life insurance policy only covered accidental deaths. Because of the circumstances of the case, it was impossible to know how Mr. Houchens died (or if he did die if you are into conspiracy theories). There are no witnesses.

For Mrs. Houchens to win, she needed to produce sufficient evidence for a reasonable jury – based on a perponderance of the evidence – that Mr. Houchens died by accident. Here, the evidence is insufficient for any determination. Consequently, the insurance company wins.

The reason why this cannot go to the jury is because there are no essential facts for the jury to make any judgments on.

Bias v. Advantage Int’l Inc. – Basketball

The question to ask, “is there a genuine issue of material fact that Bias took drugs prior to his actual death?”

Evidence presented by the parents that Bias was not a drug user:

  1. Parents never saw
  2. Coach never saw
  3. Random drug test came back clean

Evidence presented by Advantage that Bias was a previous drug user:

  1. Testimony from two teammates who saw him use drugs (and distributing) at a party.

Although this sounds like contradictory testimony that goes to a jury, summary judgment is granted why? Because the estate’s witnesses failed to contradict the testimony provided by Advantage (e.g. drugs were not used at the home where the parents were; drugs were not used in the locker rooms where the coach was; test was taken at a different time of the party). What should the estate have done? Depose other witnesses who had attended the party and said he did not use drugs. Also, the estate could have questioned the credibility of the witnesses provided by Advantage (e.g. get them to contradict each other).

Tolan v. Cotton – Aggressive police stop

Summary judgment was granted in trial and the 5th circuit because qualified immunity is a difficult bar to pass. Despite the difficult bar, there were still triable issues (e.g. what was the lighting, actions of the mother, actions of the son, etc.). As such, summary judgment was not merited.

Notice the difference between the Bias case and here in the contradictions provided by the parties. Here, there was a direct contradiction to the key piece of evidence while that was not the instance in Bias.

The other thing to note is that all reasonable inferences are drawn in favor of the nonmoving party. In other words, if the case is a close call, then summary judgment should not be granted. “Tie goes to the nonmoving party.”


Jury Selection

The Right to Trial By Jury

Although there is a constitutional right to a jury, parties can waive their right to a jury. So, to have a jury trial, the parties must specifically ask for a jury within their pleadings. If even one party asks for a jury (properly) a jury will be granted. Otherwise, a jury trial will be waived and the case will be tried before only the judge. This procedure is called a bench trial. In these situations, the trial judge both determines the law and the facts.

Jury Selection

28 USC §§ 1861, 1862 outline the jury selection procedures. In federal courts, the jury is selected within the district. However, those jurors are selected from cross sections (random) divisions within the district (to minimize travel and other burdens on jurors (1861)). In state courts, the jury is selected by the county where the juror resides. Additionally, jurors are not to be excluded because of their “race, color, religion, sex, national origin, or economic status (1862).

However, jurors can be selected to try and remove their jury bias. To remove this, Rule 47 has two parts:

28 USC 1870:

  1. Voir Dire – questioning the jury pool to identify the bias to remove (e.g. racism, sexism, or economic status).
  2. Peremptory challenges – Each attorney is limited to three. These are challenges where you can remove the juror without any reason at all (except these challenges are not to be motivated by the race or gender of the jury, called a Batson hearing).

28 USC 1866(c) outlines challenges for cause. A juror may be excluded if they are unable to render an impartial jury ruling.

Offer of Judgment

Rule 68: “At least 14 days before the date set for trial, a party defendant against a claim may serve on an opposing party an offer to allow judgment on a specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer notice of acceptance, plus proof of service.

If the offer is not accepted, and the plaintiff wins less than the offer, they are subject to the costs of the court.

For example, the defendant offers 300,000 and the plaintiff refuses. Later, the plaintiff only win 200,000. The plaintiff will get their 200,000 but are required to pay the costs between when the offer was made and the judgment was given. The purpose is to encourage settlement to avoid court resources.

Rule 50: Judgment as a Matter of Law and Judgment Notwithstanding the Verdict

Trial Timeline

  1. Opening Statements
  2. Plaintiff presents evidence – Direct examination (Plaintiff’s witness, no leading questions), Cross examination (defendant can ask leading questions), and then redirect examination
  3. [Defendant may move under Rule 50(a) at this point]
  4. Defendant presents evidence – Direct examination, Cross examination, and then redirect examination
  5. [Both defendant and plaintiff may move under Rule 50(a) at this point]
  6. Closing statements
  7. Jury Instructions
  8. Deliberation
  9. Verdict
  10. [Both defendant and plaintiff may move under Rule 50(b) if they had previously made a rule 50(a) motion]
  11. Judgment
  12. Appeal

JMOL Rule 50(a) and JNOV Rule 50(b)

Rule 50 serves two purposes:

  1. To allow the plaintiff the opportunity to correct the record by including omitted evidence.
  2. To provide a judgment when the plaintiff does not have the evidence to prove their case.

JMOL is required when “a reasonable jury would not have a legally sufficient evidentiary basis . . . .”

The main difference between JMOL and summary judgment is only procedure and timing.

Rule 50(a) is a directed verdict (in state court) and Judgment as a Matter of Law in federal court (the terms mean the same thing). The party must be fully heard before a JMOL motion is made. Note that they only need to be fully heard about an issue. For example, the plaintiff needs to prove both the law and the damages. A JMOL may be made for either the law or the damages. Thus, the party bringing the motion is required to be specific to what issue the JMOL motion is targeting.

Rule 50(b) and (c-e) is a renewed motion, which is brought after the jury has deliberated and returned a verdict. However, notice that this is a renewed motion. Rule 50(a) needed to be attempted earlier or else Rule 50(b) does not apply. Because Rule 50(b) is a renewal, it only applies to those specific claims targeted in a Rule 50(a). The term for a Rule 50(b) is a Judgment Notwithstanding the Verdict (JNOV).

Most of the time, the judge chooses not to grant a Rule 50(a) because the other party will appeal. If the appellate court reverses, then the district court will have to start all over. Ultimately, the judge wants to wait to see if the jury gets it right (to save time and expense). If the rule 50(b) was wrong, then there is a verdict already there for judgment to be entered.

Pennsylvania Railroad Co. v. Chamberlain – Did you see it?

The key question here is: Was there a collision? Bainbridge’s testimony here did not actually see a collision. He only inferred that there was a collision. If he did testify that there was a collision, then this would have been to the jury. It was close, but lacking. So, alone, his evidence may have been significant but the fact that others also saw and testified that there was no collision, it pushes his lack of evidence back over the line.

Denying Judgment as a Matter of Law

Lane v. Hardee’s Food Systems, Inc. – Slip and Fall

Key facts at issue:

  1. When the plaintiff arrived at the store and went to the bathroom (between 10:26 and 10:45)
  2. When the defendant mops the floor (10:30 daily)
  3. Was there a warning sign placed?


  • Circumstantial evidence makes it possible that the defendant could have left the water. The jury then needs to determine if the defendant left the water or another customer and whether the defendant left a sign.
  • This case then survives JMOL, even if this is not the most reasonable explanation.
Reid v. San Pedro, L.A. & S.L.R. Co. – Who let the cow in?

During class we focused only on the first cow, the one that was killed by the gate and not the broken fence. The farmer has the obligation to open, close, and maintain the gates while the railroad had to maintain the fence. If the cow went in by the gate, then the farmer is responsible. However, if the cow went through the broken fence, then the railroad was responsible.

The evidence seems to point towards the cow getting in through the gate. Here, the gate was open, cow prints around it (not the broken fence), and the cow was found by the open gate (a mile away from the broken fence). Thus, there is not enough evidence to show that the cow “more likely than not” went through the broken fence. Thus, JMOL/JNOV in favor of the railroad is appropriate.

Rule 59: Motion for New Trial

There are four main categories why a new trial may be granted:

  1. The weight of the evidence goes against the jury verdict.
  2. The conduct of the trial or jury deliberations were impartial (process errors creating a miscarriage of justice).
  3. Seriously erroneous.
  4. There is newly discovered evidence (rare).

Rule 59(b) says that a motion for a new trial must be filed no later than 28 days after the entry of judgment.

When determining whether to grant a new trial, the judge may weigh the credibility of the witnesses to see if a miscarriage occurred. Note that this is different than judgment. Instead, the judge is trying to determine if they need to start over.

Weight of the Evidence Errors

Trivedi v. Cooper – Too many damages?

First, Cooper failed to properly raise a JMOL for the hostility count and thus waived the right to make the motion. Additionally, for the other two claims, the jury could find that the defendant failed to promote and had retaliated. Thus, JMOL is not appropriate for any of the claims.

Second, a new trial here should not be granted. Although there is a significant dispute as to whether the weight of the evidence is in great error, the court is averse to ruling against the jury. Particular details that showed the evidence was not supporting include the expert testimony that was not disputed by the plaintiff.

Finally (I won’t get into the choice between new trial on all issues or just damages), a remitter is appropriate. Here, there are no cases that show damages could have reached 700,000. Instead, 50,000 is the high number that would not shock the conscience based on the available evidence. Consequently, the plaintiff should choose to accept the remitter for 50,000 or have a new trial testing both the liability and the damages.

A party is not able to appeal a ruling for a new trial. You can only appeal a final judgment. Again, note that a new trial is not a grant of a judgement. The only exception to the final judgment rule are interlocutory appeals (very rare). These come from preliminary injunctions (Rule 65(a)) and Temporary Restraining Orders (Rule 65(b)). The purpose of these orders are to freeze the parties from taking any action until trial occurs. If these injunctions or orders need to be appealed because of an emergency (pending destruction of a historically valuable home), then the appeal may be granted.

Complex Litigation

Joinder of Claims and Parties

Joining of Claims

The Federal Rules of Civil Procedure allow parties to add claims broadly. According to Rules 8 and 18, a party may bring as many claims, whether related or unrelated, against another party. Although all the claims may be brought together, there may still be separate trials for the unrelated claims.

Rule 18(a):

“A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it had against an opposing party.”

However, note that you have to check multiple boxes. Just because you can add multiple claims by Rule 18, that does not mean that all claims will be heard in a federal court. For example:

  • Rules must allow it
  • Subject Matter Jurisdiction – Rule 12(b)(1)

Joining of Parties

According to Rule 20, multiple plaintiffs can sue the same defendant (or multiple defendants) if their claims arise from the same transaction or circumstances of events.

Rule 20(a): Permissive Joinder of Parties

“Persons may join in one action as plaintiffs if: (A) they assert any right to relief . . . arising out of the same transaction, occurrence, or series of transactions or occurrences, and (B) any question of law or fact common to all plaintiffs will arise in the action.”

Rule 21: Misjoinder or Nonjoinder

“Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time . . . add or drop a party. The court may also sever any claim against a party.”

Hohlbein v. Heritage Mutual Insurance Co. – Bad Job Interviews

Defendants are not a fan of rule 20 because ultimately it means that the defendant has multiple plaintiffs testifying in front of the same jury. Consequently, there is a much better chance of winning if the plaintiffs are separate.

As such, defendants often try to apply Rule 21, just like applied in this case. However, to apply Rule 21, both the elements of Rule 20 need to be met. If the answer to part 1 is “yes” then the answer to part 2 is also going to be “yes.”

To meet the elements, the plaintiffs need to show that the defendant’s actions develop a pattern of continued behavior that is sufficiently similar between operative facts.


The first to sue is the plaintiff. However, the defendant may also have a claim against the plaintiff. In this instance, they file a counterclaim.

Counterclaims come in two forms: Compulsory or Permissive

Rule 13(a)(1)(A) – Compulsory Counterclaims. A compulsory counterclaim is a requirement to countersue if your claim would arise from the same facts as the current litigation. The purpose of this requirement is to minimize the amount of court expenses for the same issue (e.g. no need to litigate the same thing twice). (Common nucleus of operative fact to the plaintiff’s claims). Failure to state a Rule 13(a) counterclaim, those claims are waived.

Rule 13(b) – Permissive Counterclaims – “A pleading may state a counterclaim against any claim that is not compulsory.” In other words, a party may make a counterclaim for any claim that does not relate to the plaintiff’s pleadings (e.g. plaintiff sues for failing to mow lawns, defendant counters for unrelated car accident).

King v. Blanton – Car Accident

Compulsory Counterclaims:

“A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”


  1. the issues of fact and law are largely the same;
  2. the same evidence is involved in each action; and
  3. there is a logical relationship between the nature of the actions and the remedies sought.

Then the defendant is required to bring a counterclaim in the original proceeding. Failure to do so requires dismissal of future claims.

In other words: compulsory claims are related.

The counterclaims appear in the answer of the pleadings.

Third Party Claims

Impleader Under Rule 14

Rule 14(a)(1)

“A defending party may, as third-party plaintiff, serve a summons and complaint upon a nonparty who is or may be liable to it for all or part of the claim against it.”

Indemnification: to compensate (reimburse) another for their loss (contract law).

Contribution: to contribute to a partial (or full) reimbursement up to the amount of the contributor’s responsibility (liability) (tort law).

Rule 14 allows these claims to be heard by the same jury. This is not a crossclaim.

Derivative liability means that one party’s liability occurs because of another’s liability. If a person is solely liable to the plaintiff (not the defendant), then Rule 14 cannot apply.

Sometimes plaintiff’s chose not to add in the additional defendants. There are two main reasons:

  1. Sometimes the plaintiff does not know who the additional defendant’s could be.
  2. Strategic reasons: put some pressure on small businesses (leverage) who does not want to sue related suppliers.
Erkins v. Case Power & Equipment Co.

Simple example of an impleader rule.

Subject Matter Jurisdiction

Owen Equipment & Erection Co. v. Kroger

Both the claim and the subject matter jurisdiction must be met for a party to be impleaded.

  1. Hypo
    1. Plaintiff is from IA
    2. Defendant is from IA
    3. Federal claim
    4. Defendant MAY bring another defendant from IA through Rule 14 applying supplemental jurisdiction
  2. Hypo
    1. Plaintiff is from IA
    2. Defendant is from WI
    3. State law claim
    4. Defendant MAY bring another defendant from WI through Rule 14 applying supplemental jurisdiction
  3. Hypo (Present case)
    1. Plaintiff is from IA
    2. Defendant is from Neb
    3. State law claim
    4. Plaintiff MAY NOT bring another defendant from IA through Rule 14

Defendants may use the plaintiff’s anchor claim to bring a third party defendant. This option is not available to the plaintiff.

Complex Joinder

Three step process for Rule 19 analysis:

  1. Deciding whether the absentee (party not originally sued) is a required party. The court considers:
    • Whether absence would fail complete relief to existing parties
    • The absence would either impair an ability to protect interest in a claim or lead to another party being responsible for more than their worth
  2. Determining whether joinder is feasible.
    • Lack of personal jurisdiction
    • Joining may destroy complete diversity
  3. Deciding whether to dismiss or continue without joining.
    • Evaluate a potential risk of prejudice to existing parties
    • Consider ways to lessen prejudice
    • Whether judgement in absence is adequate
    • Adequate remedies available if dismissed
Torrington Co. v. Yost – Trade Secrets

Ultimately, this is a rare scenario where a Rule 19 would be appropriate. The defendant is in a rare situation where they are unable use Rule 14 to bring in another defendant (derivative liability is not available). Bringing in the essential defendant is not feasible because it would destroy subject matter jurisdiction. Consequently, the case needed to be dismissed and refiled in a state court.

Temple v. Synthes Corp.

This is a situation where the defendant is requesting to dismiss for Rule 19. However, this is a situation where an impleader not dismissal is appropriate. Therefore, the defendant is able to bring the third-party defendant into the litigation because the doctor contributed to the injury. Consequently, this is derivative liability.


Intervention is the idea that a party, on their own accord, jump into the litigation. Ultimately, intervention allows an interested party to reserve their legal rights. This is because it prevents the original parties from settling and thus not considering the rights of the intervening party.


28 U.S.C. § 1335

If there are multiple potential claimants against the defendant that the defendant is not aware of (e.g. insurance companies who are not aware of all beneficiaries), then they can go to the district court and fulfill their contract with the court for all claimants to come and recover. This prevents defendant’s from being duplicately liable.

Former Adjudication

Claim Preclusion

Claim preclusion, also known as res judicata, prohibits parties from relitigating claims that was fully litigated previously. There are three main elements to argue that a claim should be precluded:

  1. The claim must be the same as previously litigated.
  2. There is a final judgment on the original litigation based on merits.
  3. The parties involved are the same.

In other words, failure to bring these related claims waives the ability to bring the claims later. It is important to note that preclusion applies to all jurisdictions, state and federal. The burden is on the defendant to show that claim preclusion applies (affirmative defense).

River Park, Inc. v. City of Highland Park

Focus is on the first element. What is the standard to show that the claim is the same?

“The assertion of different kinds of theories of relief still constitutes a single cause of action if a single group of operative facts give rise to the assertion of relief.”

In other words, if both litigations are related to the same fact pattern, then the two cases are the same cause of action.

Issue Preclusion

Issue preclusion is the idea that parties are not allowed to relitigate issues. Think of issues as a claim within a lawsuit, instead of the lawsuit itself. The main difference between claim and issue preclusion is that the focus is narrower for the latter. Instead of focusing on the claim as a whole, the focus is simply an issue, whether an issue of law or fact.

There are two main types of issue preclusion, defensive and offensive. Defensive use of the doctrine occurs when a defendant is trying to fend off liability because the plaintiff lost concerning the same issue to a previous party. See Blonder-Tongue Laboratories v. University of Illinois Foundation, 402 U.S. 313 (1971). Offensive liability is when a plaintiff seeks to use a previous finding for their advantage by arguing that the issue was previously decided in their favor.

Parklane Hosiery Co. v. Shore

Offensive issue preclusion should be allowed but limited according to the discretion of the trial judge. Things the trial judge should consider include:

  1. Whether the plaintiff could easily have joined in on the earlier litigation (avoid the “wait-and-see” incentive)
  2. If the application of the doctrine is unfair to the defendant
  3. Any other good reason the judge thinks will fit.
State Farm Fire & Casualty Co. v. Century Home Components

Issue preclusion only apples when all the previous rulings regarding the same issue have the same outcome. Otherwise, the doctrine is not available.

For example, say there are several plaintiffs from the same event (fire in a storage unit). All of these plaintiffs sue separately.


  • Plaintiff 1 – wins
  • Plaintiff 2 – loses
  • Plaintiff 3 – asks for preclusion based on the finding from plaintiff 1’s case.


  • Plaintiff 3 – will not have preclusion because there was an inconsistent ruling between plaintiff 1 and 2.

The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.