1. CIVIL PROCEDURE CLASS 20 Professor Fischer Columbus School of Law The Catholic University of America October 30, 2001

2. WRAP-UP OF LAST CLASS We wrapped up jury selection and began to learn about summary judgment.

3. WHAT WILL WE DO TODAY? We will review summary judgment and discuss Practice Exercise 19(b) We will learn about directed verdicts under FRCP 50(a) We will learn about trial, including jury instructions and verdicts In next class, we will study j.n.o.v.s and also motions for a new trial. Please read pp. 507-512 of CB as well as next assignment

4. Addickes v. S.H. Kress & Co. What is the historical background to Addickes? What are the key facts of Addickes? What is the procedural history?

5. Addickes v. S.H. Kress & Co. Did the Supreme Court uphold or reverse the District Court’s grant of summary judgment? Why?

6. Burden on Moving Party Under Addickes What is the burden of a party moving for summary judgment according to the Supreme Court in Addickes? Was this an easy burden to satisfy? What evidence would have satisfied it?

7. Celotex Corp. v. Catrett What are the key facts of this decision? Who had the burden of proving element of causation at trial?

8. Celotex Which party or parties moved for summary judgment? On what ground? How did the district court rule? What about the Court of Appeals? Why?

9. Celotex: Appeal to U.S. Supreme Court How did the Supreme Court rule? Why?

10. Celotex: Distinguishing Addickes According to Rehnquist, was Addickes rightly decided? How should the language from Addickes quoted at CB p. 488 be construed, according to Rehnquist?

11. Celotex Did Celotex increase or reduce the initial burden on the moving party?

12. Brennan’s Dissent in Celotex Why does Justice Brennan dissent in this case? Does Brennan think that Addickes and Celotex can be reconciled? Do you agree? Why or why not?

13. Burden of persuasion for summary judgment motion Which party has the ultimate burden of persuasion on a summary judgment motion?

14. Shifting burdens on the parties on a motion for summary judgment Ask first: which party has the burden of persuasion at trial on essential element of challenged claim? (Usually the nomoving party unless the moving party is the plaintiff or a defendant asserting an affirmative defense)

15. Initial Burden on the Moving Party What is the initial burden on the moving party if that party carries the burden of persuasion of challenged element at trial? The burden then shifts to the opposing party What must that opposing party show?

16. Initial Burden on the Moving Party What is the initial burden on the moving party if the non-moving party carries the burden of persuasion at trial on challenged element at trial? The burden of production then shifts to the opposing party What must that opposing party show?

17. Inferences for Summary Judgment motions The court will believe the evidence of the non-moving party as true All reasonable inferences will be drawn in the non-moving party’s favor

18. PRACTICE EXERCISE 19B Oral argument on summary judgment motion of McGill and the Garage against Ultimate Auto Last Names: H-T must argue on behalf of Ultimate Auto Last names: Any other letter must argue for McGill and McGill’s Garage in favor of summary judgment motion

19. MORE ON PRETRIAL ADJUDICATION MOTIONS FOR DISMISSAL - FRCP 41 MOTIONS FOR DIRECTED VERDICT - FRCP 50(a)

20. MOTIONS FOR DISMISSAL Voluntary Dismissals - FRCP 41(a) - Plaintiff wants to dismiss the action: 3 kinds: (1) unilateral and without court permission (41)(a)(1)); (2) stipulated and without court permission (41)(a)(1)); (3) with leave of court (41)(a)(2)) Involuntary dismissals - FRCP 41(b) Plaintiff wants the action to continue

21. VOLUNTARY DISMISSALS CONCEPT: P, as “master of her own lawsuit” can dismiss voluntarily so long as D is not unduly prejudiced Jane files an action against Barbara for personal injury. Barbara serves an answer denying causation. Jane thinks better of her lawsuit. Can she voluntarily dismiss without the court’s permission? In what circumstances, if any? BROAD QUESTION: When can plaintiff VOLUNTARILY DISMISS her action without the court’s permission?

22. VOLUNTARY DISMISSAL If voluntarily dismissing under FRCP 41(a)(1) no motion is required Party dismissing files a NOTICE OF DISMISSAL Notice is effective when it is filed, but it must be served on all the parties under FRCP 5.

23. TWO DISMISSAL RULE What’s the Two Dismissal Rule?

24. TWO DISMISSAL RULE The first unilateral voluntary dismissal without leave of the court is without prejudice - [what does that mean?] The second such dismissal is a final adjudication on the merits. A third action after 2 voluntary unilateral dismissals is thus not possible. Are stipulated voluntary dismissals without prejudice?

25. FRCP 41(d): Costs for previously dismissed actions If a plaintiff has already dismissed an action once AND plaintiff brings the same claim in a subsequent action against the same defendant The court can order costs of the previously dismissed action as it deems proper and can stay the second action until plaintiff complies with the order This provision protects against harassment of the D

26. Example: A Copyright Case P brings an action for copyright infringement. P finds out after he sues that he does not own the relevant copyrights. P voluntarily dismisses his action under FRCP 41(a)(1). P then obtains an assignment of the relevant copyrights. P brings a second action. The court may make a costs order against P, if the court deems this “proper”.

27. VOLUNTARY DISMISSAL Can you unilaterally voluntarily dismiss part of an action under Rule 41(a)(1)?

28. VOLUNTARY DISMISSAL BY COURT ORDER FRCP 41(a)(2) Appropriate in situations not covered by 41(a)(1) Is a court order granting voluntary dismissal with prejudice? Within court’s discretion: made “on terms and conditions as the court deems proper” What is an example of such a “term and condition”? What if there are counterclaims?

29. INVOLUNTARY DISMISSAL FRCP 41(b) governs 2 types of such dismissals 1. Failure to prosecute : [what does that mean?] 2. EGREGIOUS failure to comply with FRCP or Court Order Can be dismissed on motion or sua sponte SUCH DISMISSALS ARE RARELY GRANTED Are these dismissals with prejudice?

30. DON’T FORGET OTHER KINDS OF DISMISSALS E.g. FRCP 12(b) dismissals E.g. FRCP 37(b)(2)(C) dismissals

31. DIRECTED VERDICTS Either party can, at the conclusion of the party’s presentation of its case, ask the court to “direct a verdict” A directed verdict effectively takes the case away from the jury A directed verdict is also known as “Judgment as a matter of law” What FRCP governs directed verdicts?

32. TIMING OF DIRECTED VERDICT MOTIONS When can a motion for a directed verdict be made under FRCP 50(a)? Can both D and P move for a directed verdict? Can a judge grant a directed verdict sua sponte?

33. STANDARD FOR A DIRECTED VERDICT Similar to summary judgment -- just at a different stage in the action “No legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue” In other words, party carrying burden of production has failed to meet this burden by coming forward with sufficient evidence in support of a claim or issue Like a summary judgment motion, can seek a directed verdict on entire claims or partial claims or issues

34. PENNSYLVANIA RR v. CHAMBERLAIN What was the plaintiff’s claim in this action? Which party moved for a directed verdict? When did this party move for a directed verdict? Could this party have moved for a directed verdict earlier? Why or why not?

35. PLAINTIFF’S THEORY OF LIABILITY What was plaintiff’s theory of liability? What evidence supported the plaintiff’s theory? What evidence supported the defendant?

36. CHAMBERLAIN: RULINGS How did the trial court rule on the motion for a directed verdict? Did the Court of Appeals reverse or uphold the trial court? What was the basis for Swan’s dissenting opinion What about the Supreme Court?

37. CHAMBERLAIN Was the Supreme Court making a judgment as to plaintiffs’ and defendants’ credibility? If so, is that proper? Is there reason to suspect the credibility of the RR workers’ (on the 9 string of cars) testimony? Can you construct an argument that, on the evidence, it is reasonable to infer that these workers caused Chamberlain’s death?

38. HYPO Assume that Bainbridge claimed to be standing right next to where death occurred and testified to the collision, but D presented 25 witnesses, including a busload of visiting priests, who contradicted Bainbridge’s story. Should the court direct a verdict for the RR?

39. PRACTICE EXERCISE 20 D has moved for a directed verdict on all 4 counts What is your advice to the judge (as his law clerk) on whether you would grant directed verdict on any of the counts? Why or why not? Don’t worry about the J.N.O.V. until tomorrow.

40. JURY TRIAL (Review) Right to a jury is governed by Amendment VII of the U.S. Constitution The procedure for demanding a jury trial is in FRCP 38 (note timing requirements) Failure to TIMELY demand a jury trial results in waiver under FRCP 38 If the parties fail to demand jury trial, does this mean that the court has no discretion to order jury trial? See FRCP 39 Parties can stipulate to a non-jury trial after one party has demanded a jury trial - FRCP 38

41. SELECTING A JURY First order of business in a jury trial is to select a jury (voir dire) -- (See FRCP 47; Slides for Class 23) Are 12 members required for a jury in a civil case? If not, what is the minimum number of jurors permitted under the FRCP? See FRCP 48.

42. CIVIL JURY TRIALS After choosing a jury, the procedure is usually as follows (depends on local rules) 1. Ps opening statement 2. Ds opening statement (option to do this after P’s direct evidence) 3. P presents direct evidence (D can cross- examine) 4. D presents direct evidence (P can cross- examine) 5. P presents rebuttal evidence 6. D presents rebuttal evidence 7. Closing arguments (usually P speaks first and last)

43. BENCH TRIALS Less formal procedure than jury trials Often, the judge does not require/permit opening statements or closing arguments. Why do you think this is the case? Obviously, there is no need for jury instructions in a bench trial!

44. EVIDENCE Types of evidence include: 2. Deposition testimony 3. Documents 4. Other relevant items Elaborate rules of evidence apply to determine what is and what is not admissible There are Federal Rules of Evidence Many states follow these federal rules

45. CLOSING ARGUMENTS Because evidence is presented in a piecemeal fashion, it is hard for the jury to get a coherent picture of the case The purpose of closing arguments is to give the jury such a coherent picture of one party’s case