Jurisdiction over the Parties or Their Property (jop)
FRCP 32 - Use in court proceedings 32(a)(5)
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FRCP 32 - Use in court proceedings 32(a)(5) limitations Interrogatories to the parties: a set of written questions to be answered in writing, by the person to whom they are addressed. May only be addressed to a party 33(a) 33(a) A party served with an interrogatory must respond with all information it has, within its control (contractual, employee, financial), which includes information that they could compel from a third party Presumptive limit of 25 interrogatories a party may serve 33(c) – an answer to an interrogatory may be used to the extent allowed by FRE 33(b) objections must be stated with specificity Request for admission: One party may serve upon another party a written request for the admission, for the purposes of the pending action only, of the truth of any discoverable matters Rule 36 Coverage – genuineness may be requested of statements or opinions of fact, the application of law to fact, and the genuineness of any documents Expenses for failure to admit – any matter under 36(a), and the party making the request proves the truth at trial, the party who refused to admit may be required to pay reasonable expenses incurred in making that proof (including attorney’s fees) 37(c)(2) Effect – if a party makes an admission it is conclusively established at trial 30 days to respond Request to produce documents Rule 34 Only to parties Only required to produce if the document is under the party’s possession, custody, or control May inspect, photograph, and survey land 34(2)(E)(1) – produce documents as they are kept in the usual course of business Non-Parties – may be compelled by subpoena Rule 45 45(a)(1)(A)(iii) – attend, testify, produce, permit 45(b)(1) – pay fees Physical and mental examination – only if in controversy Rule 35 Applies to defendants as well as plaintiffs. Schlagenhauf Requires that the person to be examined be a party to the “action”, not that he be an opposing party of the movant Schlagenhauf Motion and good cause Controversy – must be more than relevant, must be in controversy Reports from examiner – actual medical report is discoverable Person examined may request, from the party causing the exam to be made, a copy of the examiner’s report Other examinations – Once the examined party asks for and receives the report the other party is entitled to reports of any other examinations made at the request of the examinee for the same condition Orders and Sanctions Abuse of discovery Objection – a party may object to a discovery request the same way a Q at trial may be objected to Not within scope of discovery (not relevant) Privileged Protective order 26(c)(1) – allows judge to make “an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” (trade secrets) Prohibition of public disclosure – may allow discovery, but bars public disclosure Compelling discovery – if one party refuses to cooperate, under Rule 37 a party may seek an order compelling discovery Sanctions – against parties who acted unreasonably, usually against a party who fails to cooperate Financial sanctions – 37(b)(2)(C) the court may require the discoveree to pay reasonable expenses the other party incurred in obtaining the order, may include attorney’s fees (may be against the party, the attorney, or both) Other sanctions – if a party persists in her refusal to grant discovery the court may impose additional sanctions 37(b)(2) Facts established – the court may order that the matters involved in discovery be taken to be established Claims or defenses barred 37(b)(2)(A)(ii) Entry of judgment – court may dismiss, or enter default judgment Contempt Mandatory Sanctions – If a party fails to comply with early automatic disclosure Failure to provide information or a witness, not then allowed to use information or the witness Cine Forty-Second Street Theatre A severe sanction was appropriate where the discoveree’s failure to comply with the discovery order was grossly negligent (inadequate, unprofessional, bad faith, willful conduct) Final compliance insufficient, otherwise encourages dilatory tactics Adjudication W/out Trial or by Special Proceeding Summary Judgment Rule 56 If one party can show that there is “no genuine issue of material fact,” and that he is “entitled to judgment as a matter of law,” he can win the case without going to trial Lundeen v. Cordner – Summary judgment is appropriate to decide a case when no triable issues of fact exist. SJ is like a directed verdict, same standard Court goes behind the pleadings – in deciding summary judgment – even if it appears from the pleadings that the parties are in dispute, the motion may be granted if the movant can show that the disputed factual issues presented by the pleadings are illusory. How shown – The person moving for SJ bears the initial burden of production in summary judgment motion. Movant must come up with at least some affirmative evidence that there is no genuine issue of material fact. Mainly by: 56(c)(4) Affidavits – must recite only matters as to which the affiant has personal knowledge, must state only matter admissible at trial, and must show that the affiant is competent to testify 56(c) Discovery – may submit fruits of discovery, no matter which side they were obtained from Celotex v. Catrett – when the responding party will bear the burden of persuasion at trial, movant will not necessarily have to come up with affidavits, depositions, or other evidentiary materials. Movant may be entitled to SJ merely by showing that the existing record contains no evidence that the other side will be able to prove an essential element of its case. Must explain to the court in some detail why the discovery materials fail to establish the existence of an element of the other side’s case SJ is not disfavored – designed to secure a just, speedy and inexpensive determination of every action 56(e) Opposition – the party opposing SJ usually also submits affidavits, depositions, and other materials 56(e)(2) Opponent can’t rest on pleadings – The party opposing SJ may not rest on restatements of his own pleadings, and must instead present by affidavits or the fruits of discovery specific facts showing that there is a genuine issue for trial Construction most favorable to non-movant – opponent receives the benefit of the doubt. All matters in the motion are construed most favorably to the party opposing the motion. Only if there is no way, legally speaking, that the movant can lose at trial, should the court grant SJ 54(b) Partial Summary Judgment – Summary judgment may be granted with respect to certain claims in the lawsuit even when it is not granted with respect to all claims May appeal PSJ while undisposed-of claims are being tried 56(d)(2) – court may grant SJ on issue of liability alone, where genuine issue of damages remains Summary judgment is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions Scott v. Harris – p.982 – when parties disagree about the facts courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing SJ Anderson v. Liberty p.984 clear and convincing SJ harder for P easier for D In a ruling on SJ the judge must view the evidence presented through the prism of the substantive evidentiary burden Dismissal of Actions Voluntary dismissal by the Plaintiff – A plaintiff may voluntarily dismiss her complaint w/out prejudice (doesn’t operate on an adjudication on the merits, he may bring the suit again, 41(a)(1)) any time before the defendant serves an answer or moves for summary judgment. 41(a)(1)(A)(i) Only the first dismissal of the claim is w/out prejudice Second dismissal operates as an adjudication on the merits 41(a)(2) After D has answered or moved for SJ, P may no longer automatically make a voluntary dismissal, but must get Court’s approval 41(d) if a claim has been voluntarily dismissed once before, the second time it is brought the court may order P to pay the courts costs of the 1st action before allowing the 2nd to go forward Involuntary dismissal – Court may dismiss 41(b) grounds to dismiss P’s failure to prosecute (failure to pursue the action) P’s failure to obey court orders (discovery, or pre-trial conference) Lack of jurisdiction or venue P’s failure to join an indispensable party Any other reasons listed as defenses in 12(b) 41(b) Involuntary dismissal is usually with prejudice. Those w/out prejudice: Lack of jurisdiction Venue Failure to join Otherwise specified by the court 52(c) Judgment on partial finding – if the P fails to show that he is entitled to relief, the judge can dismiss the case before D puts on case Non-jury – if the P does not prove facts entitling relief the D makes the motion, the judge makes findings as if the case has been fully tried Jury case – D’s motion at the close of P’s case is called a motion “for judgment as a matter of law” Standard of review on appellate level – abuse of discretion Default Judgment Rule 55 When a D has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter D’s default Entering default judgment By the clerk – if it is a sum certain, or be made certain the clerk (on P’s request, by affidavit) must enter default judgment for that amount By the court – if D against whom DJ is sought has appeared the D must be served of written notice of application for DJ 7 days before hearing Setting aside DJ – 60(b) Coulas v. Smith – Once an answer on the merits is filed and the case is at issue, a default judgment cannot be issued. If the defendant fails to appear at the trial, a judgment on the merits may be entered against him upon proper proof. Trial 7th amendment – “in suits at common law… the right of a trial by jury shall be preserved” Reasons for Jury trials Educates and keeps people connected with the courts, jurors often come away with a renewed appreciation for the judicial system Problems with trial by jury p.998 Do we truly have representative juries? (professionals, competent people often excluded Factual issues often very complex Legal issues take time to explain to a jury Limit to capacity of people to understand and remember the mass of complicated transactions, documents, and legal principles described in a long trial The enormous impact on the lives of the jurors Applies to federal trials, not state trials (has not been applied through the 14th A yet) Congress can provide legal v. equitable Rule 38(a) the right to a trial by jury – is preserved to the parties inviolate Party must demand – not self-executing. A party who wishes a jury trial on a particular issue must file a demand for that jury trial to the other parties within 10 days after the service of the last pleading directed to that issue 38(b) Equitable claim – there is not jury trial right as to “equitable” claims. Important distinction Only if the suit is one that would or could have been a suit “at common law” in 1791 will there be a right to a jury trial Beacon Theatres v. Westover (1959) – Both legal and equitable claims – If a case presents both legal and equitable claims, and one party wants a jury trial on the legal claims, the court must normally try the legal claims first. If the court allowed the equitable claims to be tried first, w/out a jury, this might effectively dispose of some of the legal issues as well, thwarting the party’s right to a jury trial If the party asserting equitable claims would be irreparably harmed by having these claims delayed till after hearing of legal claims, the court can hear the equitable claims first Historically equitable claims come first, but the constitution always comes first Dairy Queen p.1010 – requires any legal issues for which a trial by jury is timely and properly demanded be submitted to a jury The const. right to trial by jury cannot be made to depend upon the choice of words used in the pleadings The claim can only be equitable only if no adequate legal remedy was available Ross p.1013 – the legal nature of an issue is determined by considering, 1st, the pre-merger custom with reference to such questions, 2nd, the remedy sought, 3rd the practical abilities and limitations of juries Complications Modern statutes – often provide remedies that are different from common law remedies available for a similar wrong in 1791 Curtis v. Loether (1974) – The Seventh Amendment of the United States Constitution (Constitution) does apply to actions enforcing statutory rights and requires a jury trial upon demand if the statute creates legal rights and remedies enforceable in an action for damages in the ordinary courts of law. When congress provides for enforcement of statutory rights in an ordinary civil action in the District courts, where there is obviously no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies typically enforced in an action at law. Tull p.1020 – characterizing the relief sought is more important than finding a precisely analogous common law action in determining whether the 7th A guarantees a jury trial Granfinanciera p.1023 – Private rights - Public rights – where the Gov’t is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights Distinguishing legal v. equitable claims – the issue is whether the claim is a claim “at common law.” Is the claim one which the courts of law (as opposed to equity) would have recognized prior to the 1791adoption of the 7th A Distinct issues – no problem trying equitable claims to a judge 2 part test The court must compare statutory action to the actions available in the courts of England in 1791. If the most similar action available then was legal, that a factor in favor of the modern action’s being legal The court examines the remedy sought, and determines whether it would have been considered legal or equitable in nature in 1791 (most important) Examples Damages – money damages always legal (exception: restitution) Chauffeurs v. Terry (1990) p.1026 – Even though the action was in a sense for “backpay” (equitable, restitution) the P’s were not seeking money wrongfully kept by the union. Therefore, a claim for compensatory damages will always be legal Restitution damages are equitable Claims based on the duty of fair representation are legal in nature. Brennan (concur) – get rid of the first part of the Tull test Injunctions are equitable Declaratory judgment – both depending on the underlying issues Markman v. Westview Instruments, Inc. – Sometimes the 2 part Tull test won’t give a clear answer. Sometimes the court will consider the “relative interpretive skills of judges and juries.” In this case “judges are the better decisionmakers when the construction of written instruments is at issue” (no right of jury trial as to the written-instrument-dependent question. Limited its holding to patent claims) In some cases where it is unclear as to whether a judge or jury should decide upon terms of art in a case that is traditionally decided by a jury, judges, because of their experience may be more capable to define the terms. Could be expanded to other written documents, but has not yet FRCP 38 – Right to a trial jury; Demand FRCP 39 – Trial by jury or by court Jurors – traditionally 12 members, but this is changing Federal – 7th A does not require 12-member juries. Rule 48 provides a jury of at least 6 members Too few remaining – normally the Federal court seats more than 6 jurors, so that if some have to leave the panel there will be at least 6 at the time of verdict. If there are fewer than six at the time of verdict, the court must declare a mistrial unless both parties agree to continue State – varies Unanimity Federal – Rule 48(b) verdict must be unanimous, unless the parties stipulate otherwise States – most allow a less-than-unanimous, unless the parties stipulate otherwise Jury selection – Rule 47 called “voir dire.” In most states this consists of oral questions by both sides’ counsel to prospective jurors. These questions are designed to discover whether a juror would be biased, or has connections with a party or prospective witness 47(c) Dismissal for cause – any juror who is shown through voir dire to be biased or connected to the case must be dismissed upon motion by party (dismissal for cause). There is no limit to the number of for-cause challenges by either party Peremptory challenges – 47(b) Challenges without cause – each party may dismiss a certain number of jurors without showing cause Federal – each party receives 3 peremptory challenges 26 U.S.C § 1870 Balanced pool - must be representative of the overall community Alternates – Most states, the court orders the selection of up to 6 alt. after the “regular” members of the jury have been selected. Fed – alts. no longer used. Fed – 48(a) no alternates – “each juror must participate in the verdict” Flowers v. Flowers – Bias, are bases for the disqualification of a juror. However, to disqualify, it must appear that the state of mind of the juror leads to the natural inference that they will not or did not act with impartiality. Edmonson v. Leesville p.1056 – race cannot be a basis for a peremptory challenge. “racial discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there.” Instructions – the judge must instruct the jury as to the relevant law. Objections – a party who wants to raise the inadequacy of the instructions on appeal must object to those instructions before the jury retires. 51(d)(2) - Exception for “plain error,” even with no timely objection Judges have the right to comment on the quality and weight of evidence – Fed, and some states Nunley p.1100 - cannot be an opinion on ultimate fact that belongs to a jury 51(b)(1) – the court must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments 51(a)(1) – at close of evidence, any party may file “written requests for the jury instructions it wants the court to give” 51(d) – a party may assign as error (A) an err in an instruction (B) failure to give instruction Kennedy v. SCE p.1096 - Where an instruction would be beneficial to the jury's proper determination of the case, the court may not merely refuse a requested instruction, but instead has a duty to frame the instruction properly and give it to the jury. Harmless error – an error in instructions relating to the parties burdens of proof ordinarily requires reversal Wirtz – both parties have a duty to ensure that important instruction are phrased properly, not just the party who would be injured if the improper instruction where to be given SEC v. Koenig p.1103 - A judge may allow a jury to ask questions during a trial. Entirely up to the judge No early juror discussion Ordinarily jurors not allowed to take notes – but is allowed, even encouraged in some jurisdictions Some concern about jurors making up their minds before the end of the trial Directory: sites -> www.phideltaphi.org -> resource -> collection -> EA88E61A-F827-4590-985B-EC1F412EAE4E sites -> Glossary for Chapter 1 Algorithm sites -> North Carolina Inclusion Initiative Mapping Where Children with ieps are Being Served Purpose sites -> Northern England’s set-jetting locations sites -> Physical custody of 1033 program property accountibility form statement of Physical Custody: By signing for the below 1033 property I am a Law Enforcement Officer of the aforementioned Law Enforcement Agency sites -> Nstructions for Acquiring Excess Equipment online, through the 1033 Program sites -> Memorandum of agreement EA88E61A-F827-4590-985B-EC1F412EAE4E -> Five Juicy questions where the heck does property go upon death of decedent? Download 321.23 Kb. 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