Motion: To Amend the Pleadings (green book page 50)*can add parties, new theories of law, more damages, more facts
Rule 15.a.=”1 as a matter of course before responsive pleading is served or…otherwise with leave of court… shall be freely given when justice so requires”
Rule 15.b=to conform to the evidence…at any time, even after judgment… (very liberal)
Rule 15.c=relation back doctrine; 1. court is using state statute of limitations and allows it or 2. amendment arose out of conduct, transaction, or occurrence (adding new claims) or 3. add new parties (mistake as to party and notice)
Reason for motion; to encourage decision of cases on merits by allowing parties to present the real issues of case.
Questions to ask;
| 1.a. Does this amendment come from the same conduct, transaction, or occurrence as the original pleading? 1.b. and if adding a new party does it conform to 15.c.3?) | test (from broad to narrow) § Is there any logical relationship? § Will same evidence support or refute both side’s claims? § Are the issues and facts the same? § Same legal theory – primary right/wrong (i.e. assault v. battery) [interpreted in Swartz ] |
| 2. What would the effects be on either party? | prejudice, When a party waits so long that amendment will derail the trial, expense, When the other side was deceived/mislead and changing the theory is terribly unfair etc. |
| 3. Why does this need to be amended? (who caused and could they have prevented) | |
| 4. At what point in the proceedings does this come? After judgment argue res judicata. | |
| 5. Does justice require an amendment to the pleadings? | |
Rules and cases supporting this;
| David v. Crompton & Knowles; their own fault that they need to amend now, so not allowed. They didn’t have good cause for their recent discovery. “may deny if amendment will result in undue prejudice to the other party, or that it has been unduly delayed. | Swartz v. Gold Dust casino; fictitous name; in this case P didn’t know and should have been given leave through discovery to find out. Not the case in all courts. Also; informal notice 15.c.3 ok. |
| Relation back (15.c); in federal courts filing of complaint stops statute of limitations. If adding new issues or parties means can use date of complaint to defend against st. of limitation defense. | Swartz v. Gold Dust casino; same transaction or occurrence test; 1. is there any logical relationship?(most liberal) 2. will same evidence support or refute both side’s claims? 3. are the issues and facts the same? 4. same legal theory – primary right/wrong (most conservative). |
| Swartz; lack of diligence on p’s part insufficient to prevent him from seeking to amend in absence of purposeful delay or bad faith. | |
Policy reasons;
Inclusive (can amend)
Statute of limitations;
Liberal pleadings per rule 8.a
Relation back used to soften harsh rule for people who don’t miss it by much.
Preference for deciding cases on their merits.
Exclusive (can’t amend)
Statute of limitations; people shouldn’t have to worry forever about being sued.
Also stale evidence, harder to defend.
Why didn’t they put do it this way originally?
1. Prejudice to case
2. Additional burden and cost of defending through discovery
3. Element of surprise, little time to reply about incident number 2 when they’re ready for 1
Motion: To dismiss for failure to state a claim (green book page 40)
Rule 12.b.6= every defense shall be asserted in responsive pleading, except the following can also be made by motion…6. failure to state a claim upon which relief can be granted…if on motion asserting defense #6..matters outside pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.
Rule 8.a.2=short and plain statement showing that p entitled to relief.
Rule 8.e.=can plead inconsistent claims or defenses (but can’t get judgment on both).
Rule 8.f=pleadings construed to do substantial justice
Rule 16.c.1 case management; can be used by court to throw out cases in lieu of this motion.
Reason for motion; test pleading for sufficiency. Sifts cases that can’t show a claim for relief.
Questions to ask (must take p’s allegations as true);
1. does the complaint show jurisdiction?
2. Does the complaint have a short and plain statement showing that p is entitled to relief? Too few (see motion for a more definite statement) too many facts (disprove own claim). Or no doctrinal law (then must articulate extension, modification or creation of one).
Rules and cases supporting this;
| Conely v. Gibson- no dismissal unless it appears beyond doubt that P can prove no set of facts in support of his claim that would entitle him to relief. | Leatherman Supra; decide this motion “without regard to whether the claim will succeed on merits, even if recovery is remote, but this is not the test”. |
| Swierkiewz v. sorema; overturned Apellate who said “insufficient as matter of law to show..” (because didn’t have prima facie case) Swierkiewz said “need only short and plain statement” | Mitchell v. Archibald & kendell; if it is a new legal theory that p is pleading, then P must articulate it in the complaint. (here p pleaded facts that disproved his claim under existing law). *Broad- difficult for Ds to argue NO set of facts |
| US v. Board of Harbor commissioners; “complaint can be fairly vague as long as d can see where it’s going”. * Did not apply Conley, shows stress of courts leading to grant more 12(b)(6)s | *Courts options; can dismiss or let P amend *if dismiss w/ prejudice= res judicata *D might not want to argue because then P not amend and could say anything not in pleadings irrelevant, and easier to disprove. |
Policy reasons;
Inclusive (keep case around for discovery…)
· Preference for deciding cases on their merits.
· If it is possible for this case to turn into a solid case, do we want to turn it away now?
· P should get the chance to flesh out allegations through discovery.
· Let P have his/her day in court.
· Don’t want to be too picky, got rid of that in code pleading. Remember writ system where it only mattered what kind of lawyer you had, not merits of case.
Exclusive (get rid of case now)
- Heightened standard;
- Courts have too much to do and not much time.
- Expensive
- P should have done investigation on own.
- Takes time away from real cases.
- Harm to D (expense, time, reputation)
Motion: For a More Definite Statement (page 41 in green book)
Rule 12.e; if a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement…the motion shall point out all the defects complained of and the details desired.
Rule 9.b. Fraud, Mistake, condition of the mind; in all averments (allegations) of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with peculiarity. Malice, intent, knowledge and other condition of mind of a person may be averred generally.
Rule 8(e)(1): Pleading must be simple, concise and direct
Rule 8(e)(2): Pleading in the alternative; Party may plead two or more statements that may seem to contradict each other in one count or in separate counts (in good faith only; not if they know which one is true)
Reason for motion; to give D (or responder) enough information about the claim alleged to write an answer.
Questions to ask; 1. Is this complaint sufficient to fulfill rule 8.a? and Does D point out the defects of the pleading?
2. Does this complaint (or pleading) give the D (or responder) enough information to respond?
Rules and cases supporting this;
| AGAINST 12(e): US v. Board of Harbor Commissioners; “complaint can be fairly vague as long as D can see where it is going”. *rule 8.f. pleadings construed to do substantial justice (can use for both sides). | FOR 12(e): We have heightened requirement for specificity in fraud/mistake cases in Rule 9(b), so we might advocate for more definite statement. |
| AGAINST 12(e): We have alternative pleading system so 12(e) motions should not be granted when plead in the alternative. McCormick v. Kopmann; rule 8.e; right to plead inconsistently, but can’t get judgment on both. Use 8.e when : P is unsure of the facts, yet can ultimately find them Complete justice can only be accomplished with such pleadings Witness unavailable – ie dead Policy for 8.e: Promotes efficiency (All claims in one case) Avoiding Inconsistent Verdicts (Going after cases in series could lead to inconsistent verdicts b/c verdict from 1st case isn’t admissible in second case) Promotes accuracy (More incentives for parties to investigate for discovery and present more data for conduct that’s at issue, More relevant facts presented to jury, better jury can come to most accurate decision) Must satisfy Rule 11. Can’t violate Rule 11 in making inconsistence pleadings. | Ross v. A.H. Robbins; A complaint alleging fraud must contain specific evidentiary factual allegations. Court said that even though P didn’t meet the 9(b) standard, P should be given a chance to replead to decide case on merits. - Arg that 9(b) is meaningless b/c specific facts in fraud allegation can be ascertained during discovery. Counter Arg – D should not have to submit to discovery on a meritless claim. |
| Cash Energy v. Weiner; extended heightened specificity (rule 9.b) to environmental pollution case. Arg – shows commitment to high specificity in pleadings Counter Arg – SC says, by applying Expressio unius est exclusion alterius, that 9(b) c 1. Leatherman- C 2. Swierkiewicz v. Sorema- Rule 9(b) does not extend to employment discrimination cases. |
Policy reasons;
Inclusive (liberal construction)
· D may be preparing to make a 12.b.6 motion- courts say not OK
· D may try to flesh out details of case- courts - say not OK- this is what discovery is for
· Preference for deciding cases on their merits.
· Don’t want to make P give everything away now.
· Also don’t want to make p know everything, that is what discovery is for.
· Let P have his/her day in court.
Exclusive (heightened standard for pleading)
· 9(b) is not transsubstantive; does not cover all litigation. Our rules are supposed to cover ALL litigation. PSLA act of 1995 continues trend of heighten BUT also example of special interest groups changing rules via policy change/lobbying to get congress to make rules
· Some have argued to extended rule 9.b’s specificity to more areas.
· PSLRA act of 1995 (fed. securities fraud action) continues trend, by requiring all allegations to be stated with peculiarity. And stay of discovery pending motion 12.
· Courts have too much to do and not much time.
· Expensive
· Harm to D (expense, time, reputation)
Motion: For Rule 11 Sanctions (page 36 green book)
Rule 11; signing of pleadings; motions, and other papers; representations to court; sanctions
a. “every…paper shall be signed by at least one attorney of record...or if not represented by attorney signed by the party. .. b. by signing…is certifying that to the best of the person’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances; 1. it is not being presented …for improper purpose (to harass or unnecessary delay..). 2. allegations...other legal contentions are warranted by existing law or a non frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. 3. these allegations have evidentiary basis or are likely to have evidentiary support after…discovery..4. denials of factual contentions are warranted on the evidence or if specifically so identified, are reasonably based on lack of information and belief.
Reason for motion; to make lawyers weed out cases even before the complaints get filed and do some research before so as not to waste anyone’s time. A check on the liberal notice pleading used now.
Questions to ask;
1. was representation or claim or defense made with reasonable inquiry?
2. Does the complaint have; proper purpose, is warranted by existing law (or argument for extension, creation of new), well grounded in fact and based on evidence (or likely to be)?
3. If any of the above are no, were the actions made in willful bad faith?
4. if yes, what punishment is sufficient to deter?
Rules and cases supporting this;
| Zuk v. easterm The purpose of the rule is to deter and not to compensate the other party. | Safe harbor provision; rule 11.c.1.a=motion for sanctions under this rule…shall not be filed with… the court unless. . .within 21 days after service of the motion the [problem] is not withdrawn or appropriately corrected. |
| Sanctions; Attorney’s fees Fines (paid to court) Rebuke censure Order to withdraw pleading (part or whole) | Ridder v. City of Party seeking sanctions should leave sufficient opportunity for opposing party to choose whether to withdraw. Court vigorous in applying safe harbor. |
| *Motion made by party (see safe harbor) or By court’s initiative; order for d to show cause why not … | *not applicable to discovery |
Policy reasons;
Inclusive (not to invoke)
· Trend of rule; used to be required (in 1983, in 1993 it was changed, now optional).
· Don’t punish client for attorney’s acts
· Policy for deciding cases on merits
· Don’t want lawyers to refuse to bring cases with merit because they are afraid of sanctions.
· P should get his/her day in court.
Exclusive (to invoke)
· Proposed lawsuit abuse act 2004; remove safe harbor, sanctions mandatory, make applicable to discovery.
· Party could be using as weapon for settlement
· Lawyers are first line of defense for weeding out bad cases
· Harm to d’s reputation
· Large work load for court
· Expense
· Takes time away from real suits.
Motion: To Dismiss for lack of subject matter jurisdiction (green book page 40) interaction with Rule 13 Counterclaim and Cross-Claim (green book page 47)
Rule 12.b.1 = …shall be asserted in the responsive pleading,…except that the following may be made by motion; (1) lack of jurisdiction over subject matter.
Rule 12.h= Can file ANY time …whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
Reason for motion; To protect the limited scope of the federal courts.
Questions to ask;
1. does this claim or issue have independent jurisdiction? (permissive)
2. if not, is this a compulsory claim? (if counterclaim)
Rules and cases supporting this;
| Rule 13; compulsive counterclaim (gn bk p47) Pleading shall state any claim against opposing party that “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. Unless…” Reason for this rule; efficiency. | Effect of compulsive counterclaim; 1. use or lose. Must state or res judicata. 2. get automatic jurisdiction. Test of same transaction or occurrence (broad to narrow); 1. is there a logical relationship? 2. will the same evidence support or refute both side’s claims? 3. Are the issues and facts the same? 4. is it based on the same legal theory? |
| Permissive counterclaim means; any claim against the opposing party not compulsive. But, must have independent jurisdiction. (don’t lose if don’t bring up). | Wigglesworth v. teamsters local union; used same evidence test and sort of logical relationship test. “where no connection is found between events giving rise to counterclaim asserted by Ds and the transaction or occurrence upon which P’s claim is based” it is not a counterclaim. |
| Counterclaims; usually put in separate doc. b/c it operates like a complaint and needs separate answer. | |
Policy reasons;
Inclusive (not grant/keep case in this court )
· Depending on stage of trial, don’t want to have to do it all over again.
· Efficiency
· Makes more sense to sort out any claims together, maybe they make more sense later on in trial.
· Less time (ditto)
· Less expensive (one trial instead of two
Exclusive (to grant/dismiss case )
- Some reason that this is allowed at any time, because so important.
- Keep federal govt. out of state business.
Motion: Default Judgment/Entry of Default Judgment(green book page 143)
Rule 55 = a. entry; when a party…has failed to plead or otherwise defend as provided by the rules…the clerk shall enter the party’s default. b. judgment; 1. by clerk when p’s judgment is for certain sum…2. by the court. ..no judgment for default should be entered…if the party [that defaulted] has appeared in the action.. (at least three days notice)…in order to determine damages or establish truth of any averment in evidence…court may conduct such hearings...as it deems necessary.
55.c=setting aside default; for good cause shown court may set aside an entry of default. [default judgment may be set aside using rule 60.b].
55.e=exception for us govt.
Reason for motion; To get parties to respond to pleadings in a timely manner. So we can decide case on merits and we don’t have to wait around for them.
Questions to ask
1. did party/attorney fail to respond to deadlines?
2. will P be prejudiced? (relative to the party who will lose entry of default-and will the other party be prejudiced) (Darrah v. Shepard)
3. does D have a meritorious defense? If so, may not get default (Darrah v. Shepard)
4. Did the culpable conduct or bad faith of D lead to this default? (Darrah v. Shepard)
5. Undue delay? (crompton case)
Rules and cases supporting this;
| Rule 60b; judgment can set aside for; 1. mistake or excusable neglect 2. newly discovered… 3. fraud 4. judgment is void 5. judgment has been satisfied, released discharged or prior judgment has been vacated. 6. any other reason justifying relief. (1-3 within a year). Principle of res judicata | Darrah v. Shepard; “conduct of…was careless and inexcusable. Nevertheless, it is not necessary that conduct be excusable to qualify for relief under “good cause” standard of rule 55.c” To be culpable; ”conduct of d must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of its conduct on those proceedings”. |
| United coin meter v. seaboard coastline R.R.; disagreement of when extension ended. DC refused to set aside default judgment. Ct of appeals reversed saying was good cause; 3 factors; prejudice, meritorious defense and culpable conduct. | Darrah. V. Shepard; to remove entry of default; 1. ask was delay lengthy? 2. Was pattern of disrespect? Also here no evidence that client had anything to do with it. Hold; reverse and set aside entry of default. |
| *Motions come up: Party know they are going to lose, so get the judgment against them and move on.(cost benefit analysis); problems of notice/screw ups [Darrah v Shepard]; party not agree that court has power of person/party – Jurisdiction i.e. Sue me in West Va. But I’m in MN, won’t come to | |
Policy reasons;
Inclusive (setting aside or not entering judgment)
· Deprives client of day in court
· Punishes client when attorney is cause
· Can still sanction attorney in other ways.
· Policy for deciding cases on merits
Exclusive (refusing to set aside or entering judgment)
- Wastes everyone’s time
- Must be firm or everyone will break deadlines
- With help clients keep eye on their attorneys if they get know they can get thrown out of court for it.
Motion; For Summary Judgment (page 145 grn bk)
Rule 56; a. party with Burden of Proof (BOP) may move for summary judgment (SJ) w/ or w/o supporting affidavits..after 20 days from the beginning of action or from service of motion for SJ from adverse party.
b. party w/o BOP may move at any time w/ or w/o affidavits for SJ.
c. must be based on; pleadings, depositions, interrogatories, admissions and affidavits. And must show; no genuine issue of material fact. (maybe done on liability alone even if question about damages).
d. if affidavits are unavailable for party opposing motion then court may refuse or order continuance or make such order as it deems just. Also party opposing motion can get more time if feels like discovery not completed.
Reason for motion; to decide cases that we don’t need a jury for. Cheaper, faster etc.
Questions to ask (IF on appeal. Standard for review is same as if tc/de novo –because it’s a paper motion);
1. Does the moving party have the burden of proof at trial? (is this their claim or defense?)
2. what is that burden of proof? (preponderance, clear and convincing)
3. what evidence may we consider for this motion? (court answers based on entire submission of paper evidence/discovery issues).
4. Did the moving party fulfill it’s burden? Show that there is no genuine issue of material fact.
5. if yes, then did non-moving party fill it’s burden?
Cases and rules that support;
| Moving party w/o burden of proof Two ways, adickes harder, celtox easier | Moving party w/burden of proof |
| Adickes; 1. MP must disprove all or an essential part of NMP’s claim; 2. MP must then affirmatively negate an essential part of the NMP’s claim using own evidence to call NMP’s claim into question. “If Respondent had met it’s initial burden then rule 56.e would have required P to do more then simply rely on the contrary allegation in her complaint.” | Cross v. US: “many of the facts remain largely within his own knowledge and the Government should have the opportunity to test his credibility on cross-examination. 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” |
| Celotex; 1. MP could show, point out or demonstrate that NMP has not proven an essential element. | Cross v. US: A reasonable disagreement about material facts means summary judgment is improper |
| Celotex; “Principal Purpose of summary judgment rule; to isolate and dispose of factually unsupported claims or defenses and we think it should be interpreted in a way that allows it to accomplish this purpose.” | Lundeen v. cordner; “Intervener(p2) having made a sufficient showing, it then rests upon the plaintiff to specify at least some evidence which could be produced at trial.” to show a genuine issue of material fact. |
| Genuine issue of material fact; means a reasonable jury could find more then one way to interpret evidence. V. (higher standard) of that a reasonable jury MUST/Could only find for MP. | Production burden: presenting enough evidence that a reasonable jury could find for you. Persuasion burden; presenting enough evidence that a reasonable jury has to find for you. |
Policy arguments;
Inclusive (denying)
-resolving disputes on merits
-things look different at trial (witnesses more or less believable)
-courts don’t like to decide mental state cases (i.e. intent etc)
-party wants her day in court and/or have her say
-have court of peers make judgment makes parties feel better about a judgment that doesn’t go their way.
Exclusive (granting)
-desire to get rid of weak cases before trial
-judge can weigh evidence as well as jury.
-we only use jury to decide cases that need to decide factual issues that could reasonably go either way
-already had discovery, won’t get more evidence
-don’t trust jurys
-now that we have notice pleading, it’s harder to get rid of cases through 12.b motions. That means we must be stricter here.
Motion; to compel discovery (page 111 green book)
Rule 37; a party upon reasonable notice to other parties…may apply for an order compelling disclosure or discovery.
Rule 37.a.2.a the motion must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure.
Rule 37.a.2.b (fails to answer question under Rule 30 or 31(depositions), etc. other discovery tools)
Rule 37.a.3 …evasive or incomplete answer is treated as failure to disclose, answer…
Rule 37.b failure to comply with order (sanctions)
Rule 37.c. false or misleading disclosure
Rule 37.d. failure of party to attend own deposition or …
Reason for motion; Courts/judges don’t really want to be bothered with discovery. For the most part it is self governing. But this is to make parties who won’t comply on their own comply with discovery.
Questions to ask:
1. Has the moving party meet and conferred (37.a.2.a)?
2.a.Was the request for information/inspection proper? (see discovery tools below)
2.b. was there a protective order or should there be?
3. did the opposing party fail to respond properly?
4. If necessary, who should bear the costs?
5. Was the refusal substantially justified? (second to last para pg. 113)
6. if not, what sanctions would be just?
| Kozlowski; If difficulty/ burden is fault of producing party production will not be excused. | *be cautious about people represented by counsel or who still work for party. *objections to discovery; say why burdensome and what grounds. | ||||
| David v. ross; mental exam, yes because p claimed mental distress. Punitive damage evidence ok to refuse, not relevant until after jury says p entitled to punitive. | |||||
| Exceptions (only time witness can refuse to answer, also defense for refusing discovery);
| |||||
Discovery page 1 of 3
Discovery tools and cases supporting this;
| RULE | TOOL | USES | LIMIT |
| 26.a.1 | Initial disclosure (amended in 1993) (cheap) | - meant to speed up the process. - Names, addresses, etc of people that may have discoverable info as witnesses, etc. that would support it claims of defences · Doc production · Damages · Insurance agreements | - Only what producing party might use to support their claim - Duty to supplement (26.e); if not, then can’t use in trial |
| 26.b | Scope | Need not be admissible at trial if reasonably calculated that it will lead to evidence for trial | |
| 33 | Interrogatories to parties (cheap to submit, expensive to answer) | - Sandpapered response by lawyers- so not soooo helpful always - Give me names of other relevant facts, etc. - Look for gossip | - 25 per party (or judge permission for more) |
| 36 | request for admissions | -Useful in authenticity of docs -Can’t deny later if you admit (unless court releases you for admission) | -only to parties -Difficult to use well - Depends on ability to write really tight Q where answer could be just Y or N. - Don’t want party to come back and say I want to answer, but too ambiguous. - |
| 35 | mental/physical exam (only non-self executing tool) | w/ judge’s orders; when condition in controversy (gd cause).Can you get it another way? can argue that mntl distress different then mntl exam. Courts no like order mental exams. | TO GET ORDER MUST: Show that facts are in controversy. i.e. personal injury. SO PHYSICAL EXAM USUALY FLIES b/c centerpiece of case. - - Mental exam more difficult to show “good cause” – means can’t get it any other way. |
| 30 | Deposition | - send notice of depo AND subpoena (RULE 45) AND duces tecum [bring those docs] | - notice to all parties, 10 per party, 1 day=7 hours. Costs when party’s witness fails to come - Both partys get to ask quest. And if 3rd party then their lawyer too. |
| 34 | document inspection | | -must describe docs w/ reasonable peculiarity, can produce as kept or tell other pty to come get -limited to parties |
| 31 | depositions on written questions | rarely used. | -Court reporter reads and records answer - lose demeanor evidence |
Discovery page 2 of 3
zubulake v. UBS Warburg LLC ; they found a fair amount of data. So judge decided rest of tapes restored and p should be 25% of cost. judge in zubulake articulated a seven factor test for deciding whether to shift cost of discovery of electronically stored information
1. the extent to which the request is specifically tailored to discovery relevant information.
2. the availability of such information from other sources
3. total cost of production, compared to the amount in controversy
4. total cost of production compared to the resources available to each party.
5. the relative ability of each party to control costs and incentive to do so
6. the importance of issues at stake in litigation and
7. the relative benefits to parties of obtaining information.
Policy arguments;
Inclusive (get all the info you want)
Policy for deciding on merits
Full disclosure allows parties to put forth most favorable case
“broad discovery is a cornerstone of the litigation process contemplated by the Federal rules of civil procedure” zubulake.
The more info out now, the more likely we can settle/decide this case now, save money and time
Efficiency-get to real issues faster
Exclusive (right to protect own infor)
Stops the “surprise” and excitement of trial.
Need to protect the strategies of parties
Burdensome; Expense and time
Does other partie’s job for them
Privacy (Diana ross and financial statement).
Discovery page 3 of 3
Motion: Rule 12(c): Motion for Judgment on the Pleadings (green book page 41)
Rule = After the pleadings are closed but within such a time not to delay trial any party can move for 12(c)…if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as SJ.
Reason for motion; Case can be decided as a matter of law – we do not need a jury. Substance same as 12(b)(6) motion except that 12(b)(6) usually made before answer and 12(c) made after answer
Questions to ask;
1.Have the pleadings closed – is it after answer?
2. Did D admit all facts but not plead any affirmative defenses?
Rules and cases supporting this;
| For D - a 12(c) motion for a judgment on the pleadings is the same as a 12(b)(6). | For P - if D has admitted all the facts in answer but did not plead any affirmative defenses, P can file 12(c) motion for judgment on the pleadings which tests the legal sufficiency of the pleadings.*see rule 12.b.6 |
Policy reasons;
Inclusive ( allow 12(c))
1. keep out weak cases
2. preserve court resources
Exclusive ( deny 12(c))
1. want to hear cases on merits
2. liberal notice pleadings
Motion: Judgment as a Matter of Law (green book page 131)
Rule 50.a Judgment as a Matter of Law = The court may grant a motion for judgment as a matter of law, if, after being heard, there is no legally sufficient evidentiary basis for a reasonable jury to have found for a party on a certain issue (because it would be contrary to controlling law)….MUST be made before case is submitted to jury and after non-moving party has been fully heard and specify judgment sought.
Rule 50.b Renewal for Judgment After Trial. Alternative Motion for New Trial = JML may be “renewed” after verdict by filing and serving it within 10 days after entry of judgment. (Alternative Motion for New Trial may be requested in the alternative or joined with renewal of the motion (as per Rule 50(c)).)
Reason for motion; Don’t need a stinkin’ jury. J If P = that there is no way a reasonable jury would find against them and they are entitled to JML. If D = the P has failed to present sufficient evidence to convince a reasonable jury by a preponderence of evidence to find for P; OR that there is overwhelming evidence that a reasonable jury MUST find for D.
Renewal: the jury was not reasonable.
Questions to ask;
1. What evidence should/did court consider?
2. How much evidence should it/will it take to defeat a JML (to go to the jury verdict or stay with the verdict?)
3. If MP for JML want:
a. All the evidence or then next Qualified
b. Substantial evidence standard
4. IF NMP for JML want to defeat JML:
a. FEO
b. Scintilla of evidence standard
Rules and cases supporting this;
| What evidence? | How much evidence? |
| 1.) FEO to NMP of JML - the court should consider only the evidence favorable to the opponent, completely ignoring any unfavorable evidence. 2.) Qualified favorable evidence approach (only in Cali book p. 254) - (a) evidence favorable to the opponent, and (b) evidence unfavorable to the opponent that is not contradicted by direct evidence and that c 3.)All evidence- “set aside” standard - the court should consider all the evidence, favorable or unfavorable, for both parties incl impeachment evidence. A. No inadmissible evidence B. HOWEVER, in theory court c | 1) Scintilla of evidence ( 2) More likely than not than reasonable jury find the fact( other phrases- preponderance of evidence, jury would not be irrational) 3) Substantial evidence (not used too often- but good to get rid of weak cases)= problem- not defined, unclear. |
| Denman v. | |
Policy reasons;
Inclusive (grant JML)
1.) Without a method to take cases away from the jury, the court would be unable to dispose of frivolous cases prior to trial and we’d waste the jury’s time.
2.) Prevent jury lawlessness- sympathetic juries, uncertainties, etc. provides a degree of control by the trial court which is controlled by an appellate court.
3.) Don’t want to waste jury time/ judge, not too much time.
4.) Can’t let a jury make a decision where there is not reasonable sense that it should be make
Exclusive ( deny JML)
1.) The jury possesses a collective wealth of common sense that allows it effectively to evaluate the testimony of ordinary witnesses
2.) The jury’s collective memory may be superior to the memory of a single trial judge
3.) Juries are less susceptible to corruption or other forms of influence including political influence or the force of public opinion.
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