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

I. Trial & The Roles of the Various Players
A. Contempt Power
i. Walker v City of Birmingham 288 US 307 1967, (p.617)
§ FACT: Prelim injunction for parade, told them to at least try and get permit, help in contempt, Martin Luther King Jr. tossed in jail.
§ RULING: collateral bar rule:: Can’t argue constitutional issues from first case in the collateral case
§ EG: IF TRO, challenge on merits then, not after you break it. After all that can be challenged is the correctness of the subsequent sanctions.
ii. NY St. National Org. for Women v Terryp.634
§ Abortion protest, injunctions to not hold protest, they held them anyways, help in contempt of court.
§ Criminal (Punitive) Sanctions [ claimed by P]-
§ Backward looking to punish, Did not get const. protections – court rejected
§ Civil Sanctions [court ruled them civil] –
§ Purge provision, not looking to punish you, just want to make sure you don’t do it again.
§ Coercive: Intended to get you to change your behavior
§ Forward looking, therefore not to punish.
§ “holding the keys to your prison cell in your pocket”
iii. RULE 63 TRO
§ TRO may issue ex-parte as well as in advance of any adjudication of the merits
B. The Jury
i. Old school jury
§ white male property owner
§ 12 jurors
§ unanimity (12-0)
ii. Today Jury
§ Anyone
§ 6 in federal system
§ Push to non-anonymity (eg. 9 -3 ruling ok, rather than 12-0 needed)
§ potentially throws out minority views, bad moral incentive
· 2 part test Curtis (If statue does not expressly grant jury then …)
o COA back in 18th century, where would have this gone?
§ Legal or equity determination, then send accordingly
§ IRL unhelpful cuz at the founding it coulda gone either way
o Remedies
§ legal à money, eg tort action
· Chauffeurs (p654) compensatory damages – legal remedy -> you get a jury trial.
§ equitable remedy à controlling party behavior, injuction, judgment
· Curtis p649 she wants damages from landlord for civil rights , court said because it was not strictly equity in remedy so she gets a jury. Legal remedy involved so gets a jury as apposed to equity.
· Tull (p653) – cuz of the nature of the relief authorized by the act was traditionally available only in a court of law, the P is this present action is entitled to jury trial on demand.
· Note p.651 , admin procedures don’t get to have jury
· Beacon p657 (address legal issue first to a jury)
o Rules
§ Where there is a mixed case ( if they rely on each other) start with legal claims first if there is going to be a jury so a jury can rule on these, then judge rules on equitable claims.
§ When jury demand and you got mix claims of legal and equity, must start with legal claims that go to jury, then what is left for judge is done after.
§ Equity determined by judges not juries cuz functionally we believe judges better than juries at making/writing injunctions.
o Facts
§ Interference in contractual arrangements
§ Fox filed first
· Dec Relief from antitrust, and injunction from Beacon bringing Antitrust claims
§ Beacon counterclaim
· Fed. Antitrust claims
· Jury demand
§ Writ of mandamus on appeal
§ 9th circuit should have issued the writ on the trial judge according to USSC because you have a right to trial by jury and you can join the P claims and the D counterclaims, single cause of action
§ Bifurcate the claims dealing with jury only issues first (Law) then if needed going to judge issues (equity claims),
o Outcome
§ In reversing the court of appeals, the Supreme Court noted that the right to grant mandamus to require jury trial where it had been improperly denied was well settled. In the Federal courts the right to a jury cannot be dispensed with, except by the assent of the parties entitled to it, nor can it be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of a legal action.
§ When you don’t have to bifurcate?
§ No legal question overlap between jury Qs and judge Qs.
§ No one requests jury trial
§ Time is of the essence, TRO, Prelim injunction.
· Markman p662
o Judge defines claims terms, Markman hearing
o Outcome
§ The Court held that the construction of a patent, including terms of art within its claim, were exclusively within the province of the courts. Therefore, the judgment of the court below was affirmed.
iv. Choosing the Jury
§ Venire – pool of people, look at registered voters
§ THEIL (p672) case, jury pool missing segments, has to be fair cross section of the community.
§ Rule: show an identifiable class that has been systematically or intentionally excluded.
§ Must meet standard of fair “cross section of the community”
§ Voir Dire – The act of selecting a jury
§ Challenge for cause (unlimited)
§ related to a party, suffered something similar enough, stake in the venture/case, conflict of interest, read to much about case, predisposed judgment, expert in the field the case deals with
§ JEB – cant discriminate on account of sex
§ Edmonson – can’t discriminate on race, you can request they tell you neutral cause
§ Peremptory Challenge
1. 3 in federal system, a define number per state
II. JMOL (Rule 50 Judgment as a Matter of Law)
A. Timing of Motion
i. After P case in chief and before Jury verdict
§ Motion for judgment as a matter of law
ii. After jury verdict
§ Renewed motion for judgment as a matter of law
§ Judge will then rule as a matter of law once he has a jury verdict
B. Reasons we like reserving JMOL
i. Efficiency
§ Because its efficient, on appeal if they set aside judgment as a matter of law they have the jury verdict to fall back on and don’t need to have retrial they can simply agree with the jury verdict and reinstate verdict.
ii. Respect Jury verdict
§ we like jury verdicts, carries social weight and is trusted usually.
iii. More evidence
§ Cure deficiency of evidence for the burden of proof. Gives party that has burden of proof chance to beef up evidence by recalling witness and whatnot.
iv. Constitutionally w/ 7th amendment
§ Jury is to decide facts, if no question of fact, nothing for jury to do then no need for jury, 7th preserves jury but there are exceptions where jury is not needed, but you can’t take away from either side where a jury is needed but one side does n

wer/wealth of parties, screws the little guy
B. Mediation
i. WOODS (p778)
§ Ok to force mediation, and ok to submit as evidence of mediation.
§ Mediation, bump in the road to get to a court room and eventually a jury verdict
§ Both Parties go through selection process so does not violate due process
§ Do state substantive law apply in fed court? YES
§ Why? Erie answers this.
C. Other forms of ADR
i. Negotiation
ii. Mediation-Arbitration
§ Mediated first and if not successful then arbitrated
§ Eg. Labor-management, consumer banking
iii. Mini-trials
§ Truncated cases presented to third party who renders judgment, basis for settlement discussions
iv. Summary jury trials
§ Court ordered mini-trial, aid the settlement
v. Early neutral evaluation
§ Evaluators assigned to eyeball case and evaluate chances of prevailing, explore settlement possibilities.
vi. Multidisciplinary Practice
§ Lawyers partner with non-lawyers to offer services
V. Complex Litigation
A. State Law in Fed Courts “Erie Doctrine” Goal:
§ To determine the governing law in diversity cases.
§ General Rule: Fed rules govern procedural matters while state law (statutory & decisional) covers substantive issues.
o “Substantive” rule: characteristically & reasonably affects people’s conduct @ the stage of primary activity outside the context of litigation. Its purpose is other than assuring fairness or efficient litigation. Ex: Rules of Liability, bc they affect conduct outside of the courtroom.
1. Eg. Rules of life
o “Procedural” rule: designed to make the process of dispute resolution a fair & efficient mechanism for resolving legal controversies. Ex: rules re filing a complaint.
1. Eg. Rules of court room
§ Background: Pre-Erie => Swift v. Tyson – focused on “natural law” courts could reach there own conclusions on common law issues. Problem with forum shopping. Rules Enabling Act passed in 1934 – conferred on the Supreme Court the authority to prepare rules of procedure for the federal courts. 1938 Federal Rules of Civil Procedure – freed the national courts from state procedural rules
i. Erie RR v. Tompkins
Respondent brought a negligence action against petitioner Railroad Company, seeking damages for injuries sustained when he was hit by a door projecting from petitioner’s train while he was walking along a railroad right of way. The circuit court affirmed the judgment in favor of respondent, refusing to consider petitioner’s claim that it was not liable for respondent’s injuries under state