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Civil Procedure II
Santa Clara University School of Law
Van Schaak, Beth

Pleading & Civil Procedure – Van Schaack

Spring 2011


I. SUMMARY JUDGMENT: FRCP 56. A “material fact” is a fact relevant to element/claim/defense that a party is advancing. It hinges on issue of substantive law; the fact goes to plaintiff’s claim or defendant’s defenses. A “genuine issue” shows that there is a dispute as to the issue in question. A jury could go either way if it is behaving rationally in regards to a genuine issue. The amendment to FRCP 56 brings no substantive change – it explicitly states/allows for partial SJ. An attorney can bring MSJ on claims and defenses.

a. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970): A Motion for Summary Judgment must be supported by evidence tending to show a lack of a genuine issue of material fact or no evidence (no genuine issue of material fact). A reasonable jury could take the evidence in this case and infer the existence of a conspiracy; thus, summary judgment was denied.

b. Celotex Corp. v. Catrett, 477 U.S. 317 (1986): Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

i. It is enough to assert a lack of evidence to shift the burden of production to the other party.

c. Catrett, Administratrix of the Estate of Louis H. Catrett, Deceased v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C. Cir. 1987): The record contains sufficient evidence to create a genuine issue of material fact with respect to Mr. Catrett’s exposure to the asbestos product Firebar while working for Anning-Johnson. The District Court’s grant of summary judgment was in error.

i. “Inadmissible documents may be considered by the court if not challenged,” 10A C. Wright, section 2722 at 60.

ii. BORK, Circuit Judge, dissenting: Concerned that the majority’s view may make decisions on SJ both more difficult and more uncertain because the majority’s rationale suggests that trial judges must consider various permutations of vague and inadmissible evidence in reaching those decisions.

d. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986): The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact for the nonmoving party, there is no genuine issue for trial.

i. “Plausibility” trumps any motive that may be there. Determination of motive should be for the jury.

ii. To survive a MSJ, a plaintiff seeking damages for a violation of Section 1 of the Sherman Act must present evidence that tends to exclude the possibility that the alleged conspirators acted independently.

e. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): There must be enough for the jury to rule on the evidence reasonably.


a. Injunctions and Contempt: FRCP 65. For TRO/Prelim. Injunction/Perm. Inj., need to show “immediate and irreparable harm.” Need heightened showing why you shouldn’t provide notice in ex parte procedures. Opportunity for expedited review by nonmoving party. Granting of preliminary injunction is subject to interlocutory appeal.

i. Walker v. City of Birmingham: In the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion.

1. Need to seek dissolution of injunction, ask for a hearing. If you violate the injunction, that violation creates another trajectory (contempt)

2. Collateral Bar Rule: Can attack whether they did not follow the injunction but cannot attack the content of injunction. Prevent self-help that says I will breach this in order to fight it. Need to fight it in regular course of process, rather than in a collateral trajectory. Shows power of judiciary

a. Exception: if transparently invalid or only a frivolous pretense to validity.

ii. New York State National Organization for Women v. Terry: The inclusion f the purge provision means that if the defendants conform their conduct, they escape all obligations to pay the fines. It is clear that punishment for past wrongdoing is not the objective of the fines, but rather coercion of the defendants to conform their conduct to the court’s order.

1. Weigh the Bagwell factors to characterize the nature of the fines:

a. Existence of a purge provision;

b. If the fines are “calibrated” to the violating actions;

c. If they are payable to the state or to plaintiffs;

d. The size of the fines (bigger it is, the more likely it is punitive).

b. The Jury: The Seventh Amendment Right: If you don’t request a jury trial it is waived. FRCP 38. Either side can request a jury trial. Look at efficiency grounds/technological issues in a case (maybe you want a jury trial). 1) Does a statute allow for a jury trial? 2) Does the cause of action belong in a Court of Equity or Court of Law? 3) What remedy is available for the cause of action?

i. Curtis v. Loether: Two prong test – history & remedy. In a Title VIII claim, look first to statutes to see if a statute permits the claim to be heard by a jury.

1. If plaintiff removed damages claim, she could have avoided jury trial.

ii. Beacon Theaters, Inc. v. Westover: Legal claims before jury first, then judge handles equitable claims. NOT the other way around (binds jurors to judge’s findings -> not free to act) Clear preference for jury by Justice Blackmun (former plaintiff’s attorney). Collateral estoppel.

iii. Markman v. Westview Instruments, Inc.: The 3-step analysis doesn’t fit perfectly here because it is a mix of equitable and legal remedies. Court makes a functional policy-based argument: better for judge to handle the case (paternalistic view of juries and their abilities).

c. Choosing a Jury

i. Thiel v. Southern Pacific Co.: If the venire has not been selected in strict compliance with statute and the local plan, either party may challenge the array (the whole group of prospective jurors) and require that a new venire be summoned.

1. The harmless error rule will not prevent reversal where the error is “egregious”. In such cases, the appellate court may reverse as a means of disciplining the trial judge, even though her error would not likely have had an adverse effect on the rights of the appellant.

2. Don’t have to show prejudice; remedy is reversal (which is drastic and has a deterrent effect). Want a fair cross-section of the community.

3. 3 peremptory challenges, unlimited for cause. Try to get as many out for cause, so you can save precious peremptories.

ii. Edmonson v. Leesville Concrete Co.: The equal protection component of the 5th Amendment Due Process Clause precludes a private party in federal civil litigation from using peremptory challenges to excuse potential jurors on grounds of their race. The same rule would apply to state court actions under the Fourteenth Amendment’s Equal Protection Clause.

1. Want jury pool to be actual cross-section; not necessarily the 12 empaneled.

2. Juror’s rights, NOT the litigant’s rights; litigants bring up these rights via third party standing.

3. Voir dire implicates state action.

iii. J.E.B. v. Alabama ex rel. T.B.: The Equal Protection Clause forbids use of peremptory strikes to remove jurors on the basis of their gender.

1. Dissent: Looking at rights of jurors. Slippery slope. Shouldn’t need to offer reasons for peremptory strikes (gut feeling/intuition). Do we deny lawyers the ability to trust their gut? Nuggets of truth in stereotypes.

d. Managing the Jury: FRCP 50(a) – pre-verdict & FRCP 50(b) – post-verdict. Must file an (a) to file a (b). Give one side an opportunity to point out weaknesses, so that that party may cure things in front of a jury. *Renewed because already brought and judge didn’t rule on it. This is a safety catch to make sure right verdict is reached. Done before the bench, out of sight of a jury. “Renewal” does it affect content of second motion? Not enough evidence to prove X in 50(a). If renewing the same motion, 50(b) can’t be about Y. “Legally sufficient evidence” – whether enough evidence for a reasonable jury to find for the nonmoving party. If not enough evidence, JMOL granted.

i. Gallick v. Baltimore & Ohio R.R. Co.: If a special verdict is used, the jury may find it harder to reach a unanimous verdict. Moreover, inconsistent findings on a crucial issue may necessitate a new trial. However, the court has the power to interpret the jury’s findings in order to “mold” them to a judgment.

1. Doctrine of Reconcilability: policy preference for letting jury find facts and make determinations regarding liability. Preserve the general verdict.

ii. Galloway v. United States: Because the motion for a new trial on this ground existed at common la

nsaction sued upon by the P. Because of relation to original claim filed by P, there was ancillary JX over the cross-claim.

4. Intervention: FRCP 24 allows persons who claim an interest in litigation to intervene and become either P or D in suit. When they could intervene of right – because litigation would inevitably affect their rights or because present parties would otherwise be subjected to risk of inconsistent judgments, it was ordinarily held that ancillary JX covered participation.

a. When intervention was merely permissive, an independent jurisdictional basis was required.

5. Necessary Parties: FRCP 19 allows certain nonparties (“necessary parties” because their rights are implicated in action or because present parties run risk of inconsistent or multiple liabilities if they are not joined) to bring forth an independent basis for JX. If no independent basis for JX, court might have to dismiss case. FRCP 19(b) enumerates factors that affect decision whether to dismiss when necessary party cannot be joined.

ii. Pendent Jurisdiction – A plaintiff with a jurisdictionally sufficient claim (usually a federal question) could join a related claim against the same defendant, even though the second claim was not itself within the court’s subject matter JX.

1. Pendent Party Jurisdiction: If a P has a claim within original federal JX against first D and a claim not within original federal JX arising out of the same event against the second D, P might seek to “append” the claim against the second D to the claim against the first D.

a. Diversity Claim: SCOTUS refused to allow a plaintiff to assert a claim against a nondiverse, third-party D because allowing this maneuver would enable Ps to circumvent the complete diversity requirement.

b. Federal Question Claim: Even where there is exclusive federal JX over a federal claim against one D, SCOTUS held that there could be no JX over a related, nonfederal claim against a nondiverse party because “a grant of JX over claims involving particular parties does not itself confer JX over additional claims by or against different parties.”

2. Class Actions: Diversity was determined only by looking to the named class representatives. SCOTUS held that where a class action was brought under diversity JX, each class member had to have a sufficient claim, unless the claims were legally joint.

a. In federal question class action, ordinarily no JX problem since amount in controversy requirement would not apply and each class member would have a claim within the subject matter JX of federal court.

iii. Supplemental Jurisdiction Statute – In 1990 Congress enacted the supplemental jurisdiction statute (28 USC 1367).

1. JX Power to Limit of Constitution: Grants federal courts that have original JX over a claim supplemental JX over all other claims that form part of the same case or controversy under Article III. 28 USC 1367(a). Focus of constitutional inquiry is whether the claims sought to be added to those within federal jurisdiction are part of one constitutional case.

a. Standard for Supplemental JX in Federal Question Case: 1) The federal claim must be sufficiently substantial to support federal question JX; 2) The federal and nonfederal claims must derive from a common nucleus of operative fact; 3) The federal and nonfederal claims must be such that plaintiff would ordinarily be expected to try them in one judicial proceeding.

b. Diversity Cases: Same test may apply to determine outer constitutional limits of diversity JX.

i. As long as one D is diverse from one P, there is no constitutional difficulty with exercise of JX over whole case, including nondiverse parties.