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Florida Homeowner’s Guide to a Civil Lawsuit

02 Saturday Nov 2013

Posted by BNG in Affirmative Defenses, Appeal, Discovery Strategies, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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This post is intended to offer a general introduction to, and overview of, the course of a “typical” civil lawsuit for homeowners wishing to fight their foreclosure in other to save their homes. Because of the vast array of actions that may be pursued in Florida courts, an exhaustive discussion of the rights, remedies, and procedures available is beyond the scope of this post.

Moreover, this post will focus mainly on the pretrial proceedings, which tend to be more “mysterious” and less publicized than the actual trial. Indeed, pretrial proceedings can be a valuable way of savings your home as many banks and lenders who were in the business of illegal wrongful foreclosure with fraudulently manufactured sets of mortgage documents never take homeowners serious until it gets to that stage. The reason why they take a homeowner serious from that point on is that Banks and lenders will then start making major expenses on legal fees to attorneys retained to respond to the wrongful foreclosure complaints filed by homeowners. With an average wrongful foreclosure litigation lasting between 2 to 5 years, and many homeowners living in their homes mortgage free throughout the litigation period without making a dime in mortgage payments, most smart Lenders and Banks try to cut their loses by quickly modifying mortgage loans with terms most favorable to homeowners in order for homeowners to remain in their rightfully owned dream homes. This fit would not have been accomplished by simply asking the banks to modify a mortgage loan as most loans have been securitized to investors. Lenders and banks from that point on serves only as “servicers” (Not Owners) to the securitized investment trusts From that point after the securitization, they are no longer owners of the mortgage loans, but simply servicers of the trust, unless they later repurchase it after default. They may try to trick homeowners into thinking that they still own their mortgage loans, absolutely not! That’s why they are giving homeowners run around in order to foreclose and steal the home right behind your nose. Folks! they can’t modify mortgage loans for the simple fact that “they cannot modify what they don’t own” period! There are thousands of investors that own the mortgage pools.  Mortgage pools are controlled by PSA (Pooling and Servicing Agreement) and they must obtain consent authorizations from all investors (Real Owners), in order to modify any loans in the securitized pools that is why it is nearly impossible to modify most loans unless you take them to Court to prove their ownership, which they cannot do. Then and only then will the Lenders and Banks get those consent from investors as investors do not want to lose assets and in most times the loans will simply be repurchased from the trust by your lender after default before modification. Once repurchased, your loan is ‘get this’, “no longer a secured debt” but an unsecured debt and your “home” is no longer used as a collateral to your mortgage loan debt. Your mortgage loan may also have been paid off by forced place insurance your lender placed on your loan when you took out your loan, as that is taken out to cover their loses in the event of your default on the mortgage loan. That this why they are charging you the forced placed insurance premium when you took out your mortgage loan, in order to collect large sums of money that reduces your mortgage debt and in most cases, “pays off your entire mortgage loan” when you default. But they will still try to foreclose on you as if your loan is still a secured debt which it is not. They perpetrate those fraud due to your ignorance. That’s of course if you keep quite and let them steal your home right under your nose.

While many homeowners are familiar with the general procedures applicable in criminal cases, they may be less familiar with civil proceedings. For example, unlike criminal defendants, civil litigants enjoy no constitutional speedy trial rights. As a result, civil proceedings may seem unduly lengthy, particularly in counties where the court dockets are especially congested. Courts try to speed up the process and encourage extra-judicial resolution of disputed claims, for example, through court-annexed mediation or arbitration.

I. The Pleadings

A. The Complaint
B. Answer
C. Responsive Motions
D. Counterclaims
E. Crossclaims and Third-Party Claims
F. Amendment

II. Pretrial Procedure

A. Discovery
B. Discovery Methods
C. Protective Orders
D. Sanctions

III. Dismissal

A. Voluntary Dismissal
B. Involuntary Dismissal
C. Summary Judgment

IV. Non-Judicial Methods of Resolution

A. Mediation
B. Arbitration
C. Offers of Judgment

V. Trial

A. Demand for Jury
B. Jury Selection
C. Opening Statements
D. Motion for Directed Verdict
E. Closing Argument
F. Jury Instructions
G. Verdict

VI. Conclusion
————————–

I. The Pleadings.

The term “pleadings” often is used synonymously (and incorrectly) to refer to any documents filed with the court. However, this term has a more limited and technical meaning. The “pleadings” in a lawsuit are simply those filings that set forth either (a) the complaining party’s allegations and causes of action; or (b) the defending party’s responses to those allegations along with any defenses or causes of action the defending party may assert. This becomes significant only when the Florida Rules of Civil Procedure distinguish between “pleadings” and other documents. For example, a motion to dismiss for failure to state a cause of action is directed solely to the “pleadings” and the court may not consider any other filings, such as exhibits, deposition testimony, interrogatory answers, etc.

A. The Complaint.

A civil action is commenced by filing a complaint or petition. Fla. R. Civ. P. 1.050. This initial pleading filed by the complaining party generally consists of factual allegations, a description of the legal claims based on those allegations, and a request for relief. Fla. R. Civ. P. 1.110(b). Some pleadings are subject to special rules. For example, in actions alleging injury or death arising out of medical malpractice, the pleadings are required to include a certificate that counsel has conducted “a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” Fla. Stat. Sec. 766.104(1) (2003). “Good faith” may be demonstrated by a written expert opinion that there is evidence of medical negligence. Id. Failure to comply with this section may subject the party to an award of fees and costs. Id. These special pleading rules are in addition to the pre-suit notice requirements applicable to medical malpractice claims. See Fla. Stat. Sec. 766.106 (2003). A lawsuit may involve one defendant, multiple defendants, or even a class of defendants. The procedures and requirements for certifying a class of plaintiffs or defendants are found in Fla. R. Civ. P. 1.220. Similarly, the lawsuit may involve multiple plaintiffs or a class of plaintiffs.

A complaint may assert more than one count. It may state different causes of action, even if they are inconsistent. This common practice is called pleading “in the alternative.” Sometimes the conduct complained about may support more than one cause of action, depending on what discovery reveals. For example, Adam contracts to sell a piece of commercial real estate to Bob. Adam decides to accept a better offer from Charles. Bob brings a lawsuit against Adam after Adam reneges on their agreement. Bob may seek monetary damages because he will have to incur additional expenses in finding another suitable property. However, Bob also may sue in the alternative, for “specific performance,” which simply means that the original contract between Bob and Adam would be enforced and Adam would be required to sell the property to Bob, instead of paying Bob money damages.

Therefore, a party often does not have to choose initially which theory it will proceed on; however, the party ultimately can recover only once. Therefore, Bob cannot have both remedies and will have to choose which one he wants.

A party also may plead claims that are inconsistent with each other. As one court has noted, this is because “the pleadings in a cause are merely a tentative outline of the position which the pleader takes before the case is fully developed on the facts.” Hines v. Trager Constr. Co., 188 So. 2d 826, 831 (Fla. 1st DCA), cert. denied, 194 So. 2d 618 (Fla. 1966). This rule applies equally to defendants. Therefore, a defendant may raise defenses that are inconsistent with each other.

The relief most commonly sought is money damages. Compensatory damages are intended to compensate the injured party for its loss. Punitive or exemplary damages are awarded beyond the actual loss and are intended to punish the wrongdoer and to deter similar conduct by others. The availability of punitive damages is limited by statute and court rule. See Fla. Stat. Sec. 768.72 (2003). This statute prevents a party from even including a claim for punitive damages in the complaint until that party has presented record evidence sufficient to support a jury verdict for punitive damages. This is important because the party seeking punitive damage is not entitled to the discovery of information concerning the other party’s financial net worth until the court is satisfied that a triable claim for punitive damages has been established. Id. In 2003, these requirements were incorporated into Fla. R. Civ. P. 1.190(f).

A party also may seek injunctive relief, i.e., an order by the court directing a party to do some act (positive) or to refrain from doing some act (negative). Once such an order is entered by a court, noncompliance with that order may be punishable as contempt of court.

One form of injunctive relief frequently requested is “specific performance,” which is essentially a direction to a party to perform its contract. Specific performance may be requested in land sales contracts and non-compete agreements. However, this remedy is not available to enforce certain types of contracts, such as personal service contracts.

A party also may seek declaratory relief. The trial courts have jurisdiction “to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed.” Fla. Stat. Sec. 86.011 (2003). This may include the interpretation and declaration of rights under “a statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing.” Fla. Stat. Sec. 86.021 (2003). The declaration may be affirmative or negative and “has the force and effect of a final judgment.” Fla. Stat. Sec. 86.011 (2003). For example, declaratory judgment proceedings frequently are initiated by insurance companies seeking a determination of their obligation to defend against another action.

B. Answer.

After being served with the initial pleading, the defendant (or respondent) must respond to it. A defendant has a couple of options at this stage.

Typically the defendant files an answer, which responds to each allegation of the complaint and which may set forth one or more defenses. Fla. R. Civ. P. 1.110(c). Under the rules of civil procedure, “affirmative defenses” must be asserted in a responsive pleading or motion to dismiss or they will be waived. Fla. R. Civ. P. 1.110(d). Affirmative defenses are those defenses that “avoid” rather than deny. For example, the statute of limitations is an affirmative defense. By raising this defense, the defendant asserts that even if the defendant committed all of the horrible acts alleged by the plaintiff, the plaintiff has no cause of action because the action was not filed in a timely fashion. In that respect the claim is “avoided,” rather than denied.

C. Responsive Motions.

In lieu of, or in addition to, filing an answer, the defendant may move to challenge the legal sufficiency of the claims raised by the plaintiff. Fla. R. Civ. P. 1.140. These rules apply equally to counterclaims, crossclaims, and third-party claims. This motion is not a “pleading.” The defendant may argue that the complaint “fails to state a claim,” that is, even assuming that the facts alleged in the complaint are true, the law does not recognize a cause of action. Fla. R. Civ. P. 1.140(b)(6). For example, a store patron sues the grocery store for damages after he is assaulted by a third person in the vacant lot next door. The grocery store will move to dismiss, claiming that the store patron has failed to state a cause of action because it has no duty to protect customers off the premises. An out-of-state defendant might argue that the court lacks “personal jurisdiction” over him or her Fla. R. Civ. P. 1.140(b)(2). because he or she lacks sufficient “contacts” with the state, such as an office or business transactions in the state. This is based on the federal due process clause. Before a court may exercise personal jurisdiction over a nonresident defendant, that defendant must possess “certain minimum contacts with the state” so that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’.” Walt Disney Co. v. Nelson, 677 So. 2d 400, 402 (Fla. 5th DCA 1996) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

Other defenses that might be raised at this stage include failure to join an indispensable party, Fla. R. Civ. P. 1.140(b)(7). lack of subject matter jurisdiction, Fla. R. Civ. P. 1.140(b)(1). Subject matter jurisdiction refers to the court’s authority or competence to preside over certain matters. For example, by statute, circuit courts lack subject matter jurisdiction to hear matters involving amounts less than $15,000.00. The subject matter for such actions is vested in the county courts. See Fla. Stat. Sec. 34.01(1)(c) (2003). improper venue, Fla. R. Civ. P. 1.140(b)(3). Venue is governed by Fla. Stat. Ch. 47 (2003), except where the Legislature has provided for special venue rules. See, e.g., Fla. Stat. Sec. 770.05 (2003) (limiting choice of venue in actions involving “libel or slander, invasion of privacy, or any other tort founded upon any single publication, exhibition, or utterance”). and insufficiency of process Fla. R. Civ. P. 1.140(b)(4). “Insufficiency of process” refers to the actual document which is served. To determine if the process is adequate, one should examine it to determine that it is signed by a clerk of court or the clerk’s deputy, it bears the clerk’s seal, a correct caption, the defendant’s correct name, the name of the appropriate state, the return date, the name and address of the party or lawyer causing process to be issued, and the name of any defendant organization. If it is not a summons, it should comply with the statute or rule that authorizes its issuance. See H.

Trawick, Florida Practice & Procedure Sec. 8-22, at 170-72 (1999). or service of process. Fla. R. Civ. P. 1.140(b)(5). A defect in the “service of process” claims that the defendant was not served appropriately: for example, he or she was not served personally, when required. Service of process is governed by Fla. R. Civ. P. 1.070 and by Fla. Stat. Chs. 48, 49 (2003). Certain defenses are waived if not raised either by an answer (or other responsive pleading) or by motion to dismiss, such as personal jurisdiction, improper venue, and insufficiency of process or service of process. Fla. R. Civ. P. 1.140(h)(1).

A defendant also may move for “a more definite statement” if the pleading is so vague or ambiguous that the defendant cannot frame a sufficient response to it Fla. R. Civ. P. 1.140(e). or it may move to “strike” portions as “redundant, immaterial, impertinent or scandalous.” Fla. R. Civ. P. 1.140(f).

D. Counterclaims.

In addition to its responsive pleading, a defendant may file a counterclaim, which operates like a complaint, except that the defendant is now the counterclaim plaintiff. Fla. R. Civ. P. 1.170. Thus, a counterclaim sets out factual allegations, legal claims, and a request for relief, just like a complaint. Id. A counterclaim requires a response by the “counterclaim defendant,” who was the plaintiff in the initial complaint. See Fla. R. Civ. P. 1.100(a) and 1.110(c).

Counterclaims may be “permissive” or “compulsory.” Fla. R. Civ. P. 1.170(a), (b). A counterclaim is “compulsory” and, therefore, must be raised in he current action if it “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 over whom the court cannot acquire jurisdiction.” Fla. R. Civ. P. 1.170(a). On the other hand, a counterclaim is “permissive” if it does not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim. Fla. R. Civ. P. 1.170(b). This designation determines whether the counterclaim must be raised at this time or whether the defendant/counterclaim plaintiff can bring a separate action on the counterclaim. Fla. R. Civ. P. 1.170(a), (b).

E. Crossclaims and Third-Party Claims.

A defendant may file a crossclaim against another defendant Fla. R. Civ. P. 1.170(g). or may file a third-party complaint against a nonparty. Fla. R. Civ. P. 1.170(h). Crossclaims and third-party claims include factual allegations, legal claims, and requests for relief. They also require a response by the crossclaim or third-party defendants. Fla. R. Civ. P. 1.100(a). In practice, the pleadings can become quite complicated because of the number of possible claims which may be asserted. For example, a crossclaim defendant can assert a counterclaim against the crossclaim plaintiff and can assert a third-party claim against other nonparties. Multiple plaintiffs who are subject to a counterclaim can assert cross-claims against each other or third-party claims against other nonparties. There may be fourth party complaints. Understanding the availability of crossclaims, counterclaims and third-party claims by various parties aids in comprehension when one is faced with a lengthy caption identifying one party as a defendant, a counterclaim plaintiff, a crossclaim defendant, and a third-party plaintiff, all at the same time.

F. Amendment.

A party may amend the pleading once as a matter of right if there has been no responsive pleading. Otherwise, leave of court or written consent of the other side is required. Fla. R. Civ. P. 1.190(a). Leave of court is “given freely when justice so requires.” Id. Frequently a party will amend the pleading to cure any deficiencies addressed by a motion to dismiss. Amendments may be allowed even after trial under certain circumstances. Fla. R. Civ. P. 1.190(b).

II. Pretrial Procedure.

After responsive pleadings or motions are due, the court may schedule a case management conference to try to expedite and streamline litigation, for example, by scheduling service of papers, coordinating complex litigation, addressing discovery issues, pretrial motions and settlement issues, requiring the parties to file stipulations, etc. Fla. R. Civ. P. 1.200(a).
Later, the court may schedule a pretrial conference to address simplification of issues, amendments, admissions by one party, experts, etc. The failure of a party or its attorney to cooperate in these conferences may result in sanctions. Fla. R. Civ. P. 1.200(b), (c); Fla. Stat. Sec. 768.75(1) (2003).

A. Discovery.

Discovery occupies a large part of most civil lawsuits because Florida courts do not favor trial “by ambush.” Therefore, the rules of civil procedure encourage, indeed mandate, complete discovery. In practice, however, discovery disputes occupy a large amount of attorney and judge time.

Generally, discovery is allowed of “any matter, not privileged, that is relevant to the subject matter of the pending action.” Fla. R. Civ. P. 1.280(b)(1). In this context, “relevance” has a very broad meaning. Information is discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.” Id.

The goals of discovery are several. Each party desires to know what the other party intends to present at trial so as to avoid any nasty surprises. Each party also seeks to obtain evidence either to support its claims and/or defenses or rebut the opposing party’s claims and/or defenses, whether directly or through impeachment. Discovery permits a party to obtain information concerning what documents the other side intends to introduce, what that party’s experts and other witnesses will say and how that party intends to prove its claims and/or defenses. In cases in which punitive damages legitimately have been sought, the plaintiff may obtain financial worth information from the alleged wrongdoer. However, keep in mind that punitive damages only may be requested with prior permission of the court. See Fla. Stat. Sec. 768.72 (2003).

While discovery is very broad, it is not without limitation. For example, the other side generally cannot discover privileged information. Fla. R. Civ. P. 1.280(b)(1). Examples of evidentiary privileges recognized by statute are: journalist’s privilege, Fla. Stat. Sec. 90.5015 (2003); attorney-client communications, Fla. Stat. Sec. 90.502 (2003); psychotherapist-patient communications, Fla. Stat. Sec. 90.503 (2003); sexual assault counselor-victim communications, Fla. Stat. Sec. 90.5035 (2003); domestic violence advocate-victim communications, Fla. Stat. Sec. 90.5036 (2003); husband-wife communications, Fla. Stat. Sec. 90.504 (2003); communications to clergy, Fla. Stat. Sec. 90.505 (2003); accountant-client communications, Fla. Stat. Sec. 90.5055 (2003); and trade secrets, Fla. Stat. Sec. 90.506 (2003). The rules also restrict a party’s ability to obtain documents and tangible things prepared “in anticipation of litigation” by the other side. Fla. R. Civ. P. 1.280(b)(3). This is also known as the “work-product” privilege. The rules severely limit a party’s ability to discover information concerning experts who have been retained by the other side in anticipation of litigation but who are not expected to testify at trial. Fla. R. Civ. P. 1.280(b)(4)(B).

B. Discovery Methods.

There are several mechanisms for obtaining discovery. To a large extent, the type of discovery method employed and its timing depend on the information desired and the particular style of the legal practitioner.

1. Depositions.

A “deposition” is an oral examination of a person under oath that is recorded by a stenographer and may be videotaped or audiotaped. Fla. R. Civ. P. 1.310. A party deponent may be required to produce documents during the examination. Fla. R. Civ. P. 1.310(b)(5). Depositions of parties may be used by the other side for any purpose. Fla. R. Civ. P. 1.330(a)(2). Depositions may be taken by telephone. Fla. R. Civ. P. 1.310(b)(7). Depositions frequently are used to impeach subsequent testimony. Sometimes, depositions may be taken prior to the filing of a civil action or during appeal to preserve testimony. Fla. R. Civ. P. 1.290. Depositions may or may not be transcribed, depending upon the wishes of the parties. Depositions also may be conducted on written questions. See Fla. R. Civ. P. 1.320. This method is not used frequently.

2. Interrogatories.

“Interrogatories,” another common discovery method, are written questions that are served on a party Although the rules allow for any person to be deposed, interrogatories and requests for admission may be directed only to parties. See Fla. R. Civ. P. 1.340(a) (“a party may serve upon any other party written interrogatories”) and 1.370(a) (“[A] party may serve upon any other party a written request for the admission of the truth of any matters within the scope of rule 1.280(b)”). and that require written responses within thirty (30) days. Fla. R. Civ. P. 1.340(a). The rules limit the number of questions to thirty (30) without court approval. Id. Form interrogatories pre-approved by the Florida Supreme Court must be used if applicable. Id. Interrogatories must be answered separately, fully, in writing, and under oath unless objections are made. Id. Like deposition testimony, interrogatory answers frequently are used to impeach subsequent testimony.

A party may produce records in lieu of answering an interrogatory if the answer may be derived from those records and if it is equally burdensome for the party to determine the answer as it is for the party seeking the information. Fla. R. Civ. P. 1.340(c).

3. Production of Documents and Things by Parties.

A party may be required to produce documents or other tangible things for inspection and/or copying by the other side. Fla. R. Civ. P. 1.350(a). “Documents” are defined broadly to include writings, drawings, graphs, charts, photographs, phono-records and other “data compilations” from which information may be obtained or translated. See Fla. R. Civ. P. 1.350. The party seeking the information may test and sample the tangible items. Fla. R. Civ. P. 1.350(a)(2). A party may request to enter upon designated land or property to inspect some object or operation. Fla. R. Civ. P. 1.350(a)(3).

4. Production of Documents and Things by Nonparties.

A party also may obtain documents from nonparties by issuing a subpoena directing production of documents or things without deposition. See Fla. R. Civ. P. 1.351(a). Other parties must be notified at least ten (10) days before the subpoena issues so that they may object. Fla. R. Civ. P. 1.351(b). If another party objects, this method of nonparty discovery becomes unavailable. Fla. R. Civ. P. 1.351(c). If there is no objection, the nonparty may comply with the subpoena by providing copies of the documents or things sought. Fla. R. Civ. P. 1.351(e).

5. Mental and Physical Examinations.

In certain circumstances, a party may request that a qualified expert conduct a physical or mental examination of a party, or a person in that party’s control or custody. Fla. R. Civ. P. 1.360(a). This discovery method is utilized most often in personal injury cases and otherwise when a person’s physical or mental condition is in controversy. The party requesting the examination must demonstrate good cause. Fla. R. Civ. P. 1.360(a)(2).

6. Request for Admissions.

An important, but often under-utilized, form of discovery is the “request for admissions.” Fla. R. Civ. P. 1.370. One party serves upon another party a written request that the party admit to the truth of certain matters, including statements or opinions of fact or the application of law to fact, or the genuineness of documents. Fla. R. Civ. P. 1.370(a). If the other side fails to respond or object within thirty (30) days, the facts are considered admitted, which means that they are conclusively established. Fla. R. Civ. P. 1.370(b). The requesting party also may move to determine the sufficiency of the responses. Fla. R. Civ. P. 1.370(a). If the court decides that a response does not comply with the rule, the matter may be deemed admitted or an amended answer required. Id. If a party fails to admit a matter and the other side later proves that matter, the party may have to pay the costs incurred by the other side in making that proof. Id. Recently, the Florida Supreme Court revised the rules of civil procedure to limit the number of requests for admissions to thirty (30).Fla. R. Civ. P. 1.370(a).

C. Protective Orders.

At any time, a party or nonparty from whom discovery is sought may ask the court to enter a protective order to protect that person from “annoyance, embarrassment, oppression, or undue burden or expense.” Fla. R. Civ. P. 1.280(c). Such a protective order may prohibit discovery, limit its scope, or effectuate other protective measures. Id.

D. Sanctions.

A party who is dissatisfied with the other side’s cooperation in discovery may seek an order compelling discovery. Fla. R. Civ. P. 1.380(a). If a motion to compel is granted, the opposing party shall pay the moving party’s expenses incurred in obtaining the order, which may include attorney’s fees, unless the opposition to the motion was justified or other circumstances make an award of expenses unjust. Fla. R. Civ. P. 1.380(a)(4). Similarly, if the motion is denied, the moving party shall pay the nonmoving party’s expenses unless the motion was substantially justified or other circumstances make an award of expenses unjust. Id.

If the court orders discovery, failure to obey that order may be punishable as contempt. Fla. R. Civ. P. 1.380(b). The court has many available sanctions for discovery violations, particularly when the recalcitrant person is a party. Certain matters may be deemed established or a party may be prevented from opposing or supporting claims or defenses or from introducing evidence. Fla. R. Civ. P. 1.380(b)(2). The court may strike pleadings, dismiss the action, or enter a default judgment. Id. However, the failure to submit to a physical or mental examination is not punishable by contempt. Fla. R. Civ. P. 1.380(b)(2)(E).

III. Dismissal.

Frequently, civil actions are dismissed before a trial on the merits of the underlying claims. In addition to settlement, dismissal of a civil action may come about under a number of circumstances.

A. Voluntary Dismissal.

A party’s ability to dismiss its own action is limited by the rules of civil procedure. Fla. R. Civ. P. 1.420. The dismissal rules also apply to counterclaims, crossclaims, and third-party claims. A party may dismiss its lawsuit voluntarily without a court order prior to trial, as long as no motion for summary judgment has been heard or one has been denied and the case has not been submitted to the fact-finder. Fla. R. Civ. P. 1.420(a)(1)(A). An action may be dismissed by stipulation of the parties. Fla. R. Civ. P. 1.420(a)(1)(B). If the plaintiff previously has dismissed a similar case, this second dismissal will operate as an adjudication on the merits and the plaintiff will not be permitted to refile the action. Fla. R. Civ. P. 1.420(a)(1). Otherwise, the plaintiff may be able to refile the action. However, the plaintiff may be required to pay costs before bringing a similar action against the same party. Fla. R. Civ. P. 1.420(d).

B. Involuntary Dismissal.

The court may enter an order of dismissal as a sanction for failure to comply with court rules or orders. Fla. R. Civ. P. 1.420(b). In evaluating whether the compliance merits this drastic sanction, the court considers the intent of the noncompliant party, the existence of previous sanctions, the involvement of the client, the degree of prejudice to the other side, and any justification for noncompliance. See H. Trawick, Florida Practice & Procedure Sec. 21-5, at 335-37 (1999).

If a case is tried to the court (i.e., without a jury), a party may seek involuntary dismissal if the other side, after completing its presentation of evidence, has failed to show a right to relief. Fla. R. Civ. P. 1.420(b).
Unless the order states that the dismissal is without prejudice, an involuntary dismissal under this rule is an adjudication on the merits and precludes the plaintiff from refiling the action. See, e.g., Drady v. Hillsborough County Aviation Auth., 193 So. 2d 201 (Fla. 2d DCA 1967), cert. denied, 210 So. 2d 223 (Fla. 1968).

An action shall be dismissed by the court for failure to prosecute if there has been no record activity for one year unless the court has stayed the action or a party shows good cause prior to the hearing. Fla. R. Civ. P. 1.420(e). In practice, this rule is strictly enforced.

C. Summary Judgment.

After the lawsuit has been filed, either party may move for summary judgment, subject to certain time restrictions. Fla. R. Civ. P. 1.510. Unlike a motion to dismiss, a motion for summary judgment does more than challenge the legal sufficiency of the complaint. Of course, a summary judgment motion may be directed to a counterclaim, crossclaim, or third-party claim in the same manner. In moving for a summary judgment, one argues that the opposing party cannot present evidence that would be sufficient to demonstrate a “genuine issue as to any material fact” and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). Orders granting summary judgment are scrutinized closely on appeal.

The motion for summary judgment may be supported or opposed by competent affidavits made on personal knowledge that set forth admissible facts. Fla. R. Civ. P. 1.510(a), (b), (e). The parties also may rely upon depositions and answers to interrogatories. Fla. R. Civ. P. 1.510(e). However, in evaluating a motion for summary judgment, a trial judge may not weigh evidence or assess credibility. If the material facts are in dispute, summary judgment may not be entered and the litigation continues.

IV. Non-Judicial Methods of Resolution.

There are several ways in which a case may be resolved by the parties before trial, with the assistance of “alternative dispute resolution” techniques.

A. Mediation.

Mediation is “a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement.” Fla. Stat. Sec. 44.1011(2) (2003). The parties also may stipulate to mediation. Fla. R. Civ. P. 1.710(b). Mediation does not suspend the discovery process. Fla. R. Civ. P. 1.710(c).

Some civil actions are never ordered to mediation, including bond estreatures, habeas corpus and extraordinary writs, bond validations, criminal or civil contempt proceedings, or any other matters specified by the chief judge of that court. Fla. R. Civ. P. 1.710(b).

The mediator may be chosen by the parties or may be appointed by the court. The chief judge maintains a list of mediators who have been certified by the Florida Supreme Court. Fla. Stat. Sec. 44.102(5) (2003). When possible, qualified individuals who have volunteered their time to serve as mediators shall be appointed. Fla. Stat. Sec. 44.102(5)(a) (2003). Often parties agree on a particular mediator in order to select someone with specialized knowledge or expertise in the area under consideration.

Parties who fail to appear at mediation without good cause are subject to sanctions. Fla. R. Civ. P. 1.720(b). The mediator controls the mediation process. Fla. R. Civ. P. 1.720(d). Counsel are permitted to communicate privately with their clients. Id. If the parties and mediator agree, mediation can proceed without counsel. Id. The mediator can meet privately with the parties or their counsel. Fla. R. Civ. P. 1.720(e).

If the mediation results in no agreement, the mediator reports this to the court without comment or recommendation. Fla. R. Civ. P. 1.730(a). The mediator also may identify pending motions or outstanding legal issues, discovery process or other actions whose resolution could facilitate the possibility of a settlement. Id. If an agreement is reached, it is reduced to writing and signed by the parties and their counsel. Fla. R. Civ. P. 1.730(b). Mediation proceedings are privileged, subject to limited exceptions. Fla. Stat. Sec. 44.102(3) (2003). Written communications in mediation are also exempt from Florida’s Public Records Act.Fla. Stat. Sec. 44.102(3) (2003).

B. Arbitration.

There are generally two types of court-ordered arbitration: mandatory non-binding arbitration and voluntary binding arbitration. In addition, arbitration often is ordered when the parties previously have agreed contractually to submit their claims to arbitration. See Fla. Stat. Sec. 682.02 (2003).

1. Mandatory (Non-Binding) Arbitration.

The court may direct the parties to participate in mandatory, non-binding arbitration. See Fla. Stat. Sec. 44.103(2) (2003). Unlike mediation, which is relatively informal, arbitration is similar to a mini-trial because arbitrators may administer oaths, take testimony, issue subpoenas and apply to the court for orders compelling attendance and production. Fla. Stat. Sec. 44.103(4) (2003). The arbitrator (or arbitration panel) renders a written decision that will become final if the parties do not submit a timely request for a trial de novo. Fla. Stat. Sec. 44.103(5) (2003). If a party requests a trial de novo and does not achieve a result that is more favorable than the arbitration award, that party may be assessed costs, including fees. Fla. Stat. Sec. 44.103(6) (2003).

2. Voluntary (Binding) Arbitration.

The parties also may agree in writing to submit their action to binding arbitration, except when constitutional issues are involved. Fla. Stat. Sec. 44.104(1) (2003). The parties may agree on the selection of one or more arbitrators; otherwise, they will be appointed by the court. Fla. Stat. Sec. 44.104(2) (2003). As in mandatory non-binding arbitration, the arbitrator has the power to administer oaths, issue subpoenas, etc. Fla. Stat. Sec. 44.104(7) (2003). A majority of the arbitrators may render a decision. Fla. Stat. Sec. 44.104(8) (2003). The Florida Rules of Evidence apply to voluntary binding arbitration proceedings. Fla. Stat. Sec. 44.104(9) (2003). Appeals to the circuit court are limited to statutorily defined issues, such as failure of the arbitrators to comply with procedural or evidentiary rules, misconduct, etc. Fla. Stat. Sec. 44.104(10) (2003). Disputes involving child custody, visitation, or child support, or the rights of a nonparty to the arbitration are non-arbitrable. Fla. Stat. Sec. 44.104(14) (2003). In addition, the court may require the parties in a medical malpractice action to submit to non-binding arbitration before a panel of arbitrators consisting of a plaintiff’s attorney, a health care practitioner or defense attorney, and a trial attorney. See Fla. Stat. Sec. 766.107(1) (2003). The panel considers the evidence and decides the issues of liability, amount of damages, and apportionment of responsibility among the parties, but may not award punitive damages. Fla. Stat. Sec. 766.107(3)(b) (2003). Voluntary binding arbitration is also available in medical malpractice actions. See Fla Stat. Sec. 766.207 (2003).

C. Offers of Judgment.

Before trial, a party may submit a written “offer of judgment” that offers to settle a claim on specified terms, e.g., for a specified amount, etc. Fla. Stat. Sec. 768.79(1) (2003). The other side has thirty (30) days to accept the offer in writing. If the plaintiff rejects an offer by a defendant under this section and ultimately obtains a judgment of no liability or at least twenty-five percent (25%) less than the offer, the plaintiff will be responsible for costs and fees from the date of the filing of the offer. Id. Likewise, if the defendant rejects a demand for judgment by the plaintiff under this section, and the plaintiff subsequently obtains a judgment that is at least twenty-five percent (25%) greater than the offer, the defendant will be responsible for plaintiff’s fees and costs incurred after the date of the filing of the demand. Id. An offer or demand may be withdrawn in writing at any time prior to its acceptance. Fla. Stat. Sec. 768.79(5) (2003). Another statute provides for the assessment of costs and fees against a party whose rejection of an offer of settlement subsequently is determined by the court to have been “unreasonable.” Unlike Fla. Stat. Sec. 768.79 an award of fees and costs under this section is not mandatory. However, this section does not apply to causes of action which accrue after October 1, 1990 and, therefore, the statute is all but obsolete. See Fla. Stat. Sec. 45.061 (2003). Given the availability of fees and costs under this section, it is a powerful mechanism for encouraging parties to consider settlement offers seriously.

V. Trial.

Although the majority of civil cases are resolved without a trial, many still proceed to trial. Once all motions directed to the last “pleading” Recall that “pleading” has a specialized meaning and refers to complaint and answer, counterclaim and response to counterclaim, crossclaim and response to crossclaim, etc.have been resolved of or, if no such motions were served, within twenty (20) days of the service of the last pleading, an action is “at issue,” and a party may notify the court that it is ready to be set for trial. Fla. R. Civ. P. 1.440(b). Typically, the court directs the parties to mediation if mediation already has not occurred. Otherwise, a trial date may be scheduled.

A. Demand for Jury.

The right to a jury trial in a civil case is not absolute and, in fact, may be waived if it is not demanded in a timely fashion. Fla. R. Civ. P. 1.430(d).

Typically, the demand for a jury trial is appended to the plaintiff’s complaint. A plaintiff may choose, however, for strategic purposes or otherwise, not to assert its jury trial right. However, both parties enjoy the right to a jury trial Fla. R. Civ. P. 1.430(a); Art. I, Sec. 22, Fla. Const. and a defendant who desires a jury trial typically will demand one in its answer or other responsive pleading. If a jury trial is not demanded within the time limits imposed by the rules of civil procedure, it is deemed waived. Fla. R. Civ. P. 1.430(d). If a jury trial is demanded, the demand thereafter may not be withdrawn without consent of the parties. Id.

A matter may be tried completely or partially to a jury. Fla. R. Civ. P. 1.430(c). However, parties are not entitled automatically to a jury trial in all cases because some matters, such as injunction proceedings, are not triable to a jury.

B. Jury Selection.

Assuming that a jury trial has been demanded, the first step in the trial process is jury selection. Prospective jurors may be provided with a questionnaire to determine any legal disqualifications (e.g., felony conviction). Fla. R. Civ. P. 1.431(a)(1). Fla. Stat. Sec. 40.013 (2003), disqualifies from jury service (1) those individuals who have been convicted of a felony and (2) the Governor, Lieutenant Governor, Cabinet officers, clerk of court, and judges. Fla. Stat. Sec. 40.013(1), (2)(a) (2003). This chapter also permits other individuals to be excused upon request, including law enforcement officers and their investigative personnel, expectant mothers and non-full-time employed single parents of children under six years old, practicing attorneys and physicians, the physically infirm, individuals over seventy (70) years old, individuals who demonstrate hardship, extreme inconvenience, or public necessity, and persons who care for certain incapacitated individuals. Id. Jurors also may be provided with questionnaires to assist in voir dire, or the oral examination of prospective jurors. Fla. R. Civ. P. 1.431(a)(2). The parties have the right to examine jurors orally on voir dire. Fla. R. Civ. P. 1.431(b). The court also may question prospective jurors. Id.

The parties may challenge any prospective juror “for cause,” i.e., if the juror is biased, incompetent, or related to a party or attorney for a party or has some interest in the action. Fla. R. Civ. P. 1.431(c)(1). There is no limit to the number of “for cause” challenges that may be raised. On the other hand, a party generally is limited to three (3) “peremptory” challenges, which do not require that the party establish cause, or any other reason for that matter. Fla. R. Civ. P. 1.431(d). However, there are constitutional limitations on peremptory challenges. For example, a party may not utilize its peremptory challenges to exclude prospective jurors in a racially discriminatory manner. See, e.g., State v. Johans, 613 So. 2d 1319, 1321 (Fla. 1993); State v. Neil, 457 So. 2d 481 (Fla. 1984); Laidler v. State, 627 So. 2d 1263 (Fla. 4th DCA 1993).

After the trial jury is selected, the court may provide for the selection of alternate jurors, and the parties generally are allowed one peremptory challenge for this process. Fla. R. Civ. P. 1.431(g). Alternate jurors are selected in the same manner as trial jurors, and are in all respects identical except that they are discharged if they are not needed when the jury retires to deliberate. Fla. R. Civ. P. 1.431(g)(1).

C. Opening Statements.

After a jury is selected, the parties present opening statements. Opening statements are not supposed to be arguments; rather, the parties should advise the jury of what the evidence will prove. After opening statements, the parties or the court may “invoke the rule,” which simply means that nonparty witnesses are excluded from the courtroom while others are testifying. Fla. Stat. Sec. 90.616 (2003). In addition, the witnesses are directed not to discuss the case with anyone other than the attorneys. H. Trawick, Florida Practice & Procedure Sec. 22-7, at 356 (1999).

D. Motion for Directed Verdict.

After the plaintiff presents its case-in-chief, the defendant may move for a directed verdict on the grounds that the plaintiff has failed to present sufficient evidence to justify submission of the case to the jury. Fla. R. Civ. P. 1.480(a). If the action is being tried to the court without a jury, the proper motion is a motion for involuntary dismissal under Fla. R. Civ. P. 1.420(b), as discussed earlier. If the motion is denied or reserved, the case proceeds, subject to the defendant’s ability to renew the motion at the close of the evidence. However, in a nonjury trial, renewal of the motion for involuntary dismissal at the close of the evidence is not authorized.

Orders granting directed verdict are unusual and scrutinized closely on appeal. Courts commonly “reserve ruling” on a motion for directed verdict and allow the case to proceed to the jury. This is a preferred approach because if the trial court grants a directed verdict and does not submit the case to the jury, and the directed verdict is overturned on appeal, the entire case must be retried. On the other hand, if the judge reserves ruling on the motion for directed verdict, the judge may override a subsequent plaintiff’s verdict and if that decision is overturned on appeal, the verdict may simply be reinstated without the necessity of a new trial.

After the plaintiff presents its case and any motions for directed verdict by either side are addressed, the defendant presents its case-in-chief. At the close of the defendant’s case, either party may move for a directed verdict. The plaintiff may present rebuttal evidence.

E. Closing Argument.

After the close of all the evidence, each side has an opportunity to present closing arguments. Because the plaintiff bears the burden of proof, the plaintiff is permitted to argue first and last (i.e., in rebuttal to defendant’s argument). The attorneys are required to confine their closing arguments to the evidence presented, along with its reasonable inferences. Alford v. Barnett Nat’l Bank, 137 Fla. 564, 188 So. 322 (1939). Case law restricts the types of arguments that may be presented in closing argument. For example, an attorney may not express a personal belief in his client or his client’s case. Miami Coin-O-Wash, Inc. v. McGough, 195 So. 2d 227 (Fla. 3d DCA 1967). He may not request that the jury place itself in his client’s shoes, i.e., the so-called “Golden Rule” argument. Bullock v. Branch, 130 So. 2d 74 (Fla. 1st DCA 1961).

F. Jury Instructions.

If the judge does not direct a verdict following the parties’ respective presentations, the case is submitted to a jury. Prior to the close of evidence, the parties must submit requested jury instructions. Fla. R. Civ. P. 1.470(b). These may include numerous form instructions pre-approved by the Florida Supreme Court. Additional instructions may need to be drafted and often there will be great debate between the parties on their wording.

The judge instructs the jurors on the manner in which they are expected to deliberate and the law that they must follow. Finally, the jurors retire to deliberate. Id. Frequently, the jury has questions during the deliberation process. The parties and their attorneys are notified of such questions. There may be some discussion or debate on how such questions are to be answered and the attorneys may object on the record to the answers ultimately provided to the jury.

G. Verdict.

Once the jury’s deliberations are complete, the verdict is announced in open court. A verdict may be either a “general” verdict or a “special” verdict. A general verdict “finds for a party in general terms on all issues within the province of the jury to determine.” H. Trawick, Florida Practice & Procedure Sec. 24-2, at 399 (1999). On the other hand, the court might employ a “special verdict,” which asks the jury to answer specific questions that determine the disputed facts. H. Trawick, Florida Practice & Procedure Sec. 24-3, at 400 (1999). For example, a special verdict form in a negligence action might require the jury to determine whether the defendant owed a duty to the plaintiff. If the answer to this question were negative, the court would enter judgment for the defendant because duty is an essential element of a negligence claim. A general verdict, on the other hand, might simply ask whether the jury’s verdict was for the plaintiff and, if so, for how much. Regardless of the form of verdict that is used, a separate verdict on each count must be required if requested by either party. H. Trawick, Florida Practice & Procedure Sec. 24-2, at 399 (1999). The verdict form is written and signed by the foreperson.

In negligence actions, the verdict is required to be itemized according to economic loss, noneconomic loss, and punitive damages (if awarded). Fla. Stat. Sec. 768.77(1) (2003). “Economic damages” refers to “past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraised fair market value of real property; costs of construction repairs, including labor, overhead, and profit; and any other economic loss which would not have occurred but for the injury giving rise to the cause of action.” Fla. Stat. Sec. 768.81(1) (2003). In addition, damages must be itemized further into past and future damages. Fla. Stat. Sec. 768.77(2) (2003). Economic damages are computed before and after reduction to present value, but no other damages are reduced to present value. Id. After the verdict is read, either party may request that the individual jurors be polled. Each juror is asked then to confirm that the verdict read is his or her verdict. Once the requested polling is complete, the jury is discharged.

VI. Conclusion.

This post provides a general overview of the route of a civil lawsuit. Every lawsuit is different and the steps often vary dramatically. Pretrial proceedings frequently are overlooked as a valuable source of information. Although access to various components of the pretrial process is beyond the scope of this post, homeowners should view this post as a guide for successful wrongful foreclosure defense. Hopefully, this post will serve to “demystify” the pretrial process and assist homeowners gearing up to fight the wrongful foreclosure shops that are illegally snatching away their dream homes.

If you find yourself in an unfortunate situation of losing or about to lose your home to wrongful fraudulent foreclosure, and needed solutions to defend or reclaim your home please visit: http://www.fightforeclosure.net

27.664827 -81.515754
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Pro Se Guide To Civil Litigation

16 Tuesday Jul 2013

Posted by BNG in Appeal, Discovery Strategies, Federal Court, Foreclosure Defense, Litigation Strategies, Pleadings, Pro Se Litigation, Trial Strategies, Your Legal Rights

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Civil Procedure Outline

I.        The Adversarial System

A.     Four Lessons

1.      Doctrine

a.       Formal rules of litigation (FRCP)

2.      Strategy

a.       Practical considerations (time, money principle)

3.      Theory

a.       Different frameworks for understanding the civil litigation system

4.      Skills

a.       Actual practice (drafting a complaint, answer, negotiation)

B.     Theories of Adjudication − FRCP 1: Rules shall be construed and administered to secure the just, speedy and inexpensive determination of every action. FRCP 1 does not provide much guidance. Therefore, the three theories below are applied

1.      Fair Fight

a.       Judge is passive referee that simply follows and enforces the rules

b.      The only interests are those party to the litigation.

c.       Mitchell v. A&K − Truck on the premises

2.      Justice Between the Parties

a.       Judge is active and corrects for disparities between the parties

b.      Only interests are those party to the litigation

c.       Conley − Black workers’ complaint lacks sufficiency but is accepted because need discovery

3.      Greater Good

a.       Judge is active and considers larger interests of society

b.      Takes into account third parties (other interest than just those before the court)

c.       Band’s Refuse − Judge called own witnesses and introduced own evidence

II.     Initiating the Lawsuit

A.     Plaintiff’s Claim (Complaint)

1.      Process

a.       File − FRCP 3: Action is started by filing the complaint with the court

b.      Serve − Complaint is given to the opposing party or parties

2.      Rules for assessing a complaint

a.       FRCP  8(a) − A pleading which sets forth a claim for relief shall contain

·        8(a)(1) − A short plain statement of the grounds upon with the court’s jurisdictions depends, unless the court already has jurisdiction and the claim needs no new grounds for jurisdiction to support it;

·        8(a)(2) − Short, plain statement of a claim showing pleader is entitled to relief; and

§         Flaws to avoid

§         Missing an element

                                                                                                                                       i.      Concerns include

·        Δ cannot answer

·        Notice to the court

·        Flush out meritless claims

§         Negating an element

§         Establishing an affirmative defense

·        When flawed − Subject to motion to dismiss

§         Particularity

§         Beyond reasonable doubt that plaintiff can prove no set of facts to establish claim Connely = Mere possibility

§         Particular enough that can draw fair inference
Sutliff = fair inference

·        8(a)(3) − a demand for judgment for the relief the pleader seeks; relief in the alternative or of several different types may be demanded

b.      Background rules

·        Allegations taken as true

·        Allegations considered on their face (no evidence) Mitchell v. A&K

·        No legal argument Sutliff

3.      Notice Pleading − level of detail or specificity

a.       FRCP 12(b)(6) − complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that  plaintiff can prove no set of facts in support of claim

i.                     Mere possibility
Complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief

1.      Conely v. Gibson − Black union members sue for discrimination, defendant moves to dismiss for failure to state a claim, court holds for plaintiff

ii.                   Fair inference
Complaint must contain either direct allegations on every material point necessary to sustain a recovery or allegations from which an inference fairly may be drawn that evidence of material points will be introduced at trialSutliff v. Donovan

iii.                  Specific facts
Not good law Gillispie

b.      FRCP 12(e) – Request for the Π to give a more definite statement of the allegations in the complaint

i.                     Board of Harbor Commissioners
Facts: Oil discharged into waterway. Unclear who did it. D moves for more definite statement in order to frame an appropriate response pursuant to Rule 7. Court held for P.
Rule: Leans toward the fair inference standard. Information is specific enough b/c all of the elements are addressed.
(If P gives more definite statement that is still not specific enough can follow up with motion to dismiss)

c.       FRCP 12(f) − Motion to strike redundant, immaterial, impertinent and scandalous matter

4.      Policy considerations for determining whether the complaint is specific enough (background policy considerations for borderline cases)

a.       Sufficient notice to the D

b.      Allows investigation

c.       Provides early assessment of the merits

d.      Prevents a fishing expedition

e.       Who has access to the additional info

f.        Harm is worthy of the litigation

5.      Pleading in the alternative

a.       FRCP 8(e)(2): A party may set forth 2 or more statements of claim or defense alternately or hypothetically

i.                     If by the nature of the circumstance the P would not know which allegations are right

ii.                   Lack of knowledge – pleading in alternative is OK

iii.                  If facts should be known – pleading in the alternative not OK

iv.                 Can only collect on one of the claims

b.      McCormick v Kopmann (Car Crash Case)
Facts: McCormick dies in head on collision. Wife sues (1) bar owner (Huls) for over-serving alcohol  and (2) driver (Koppman) for crossing over the center line, causing the collision with her husband. Koppmann moves to dismiss b/c of contradicting allegations. Denied.
Rule: Pleading in the alternative is allowed where the P lacks knowledge about the key facts in good faith
Policy: Look at the models of adjudication

i.                     Justice between the parties − Should not be able to plead in the alternative if she knows the truth

ii.                   Fair fight − Should be able to use the evidence b/c it could be used against her

6.      Heightened Pleading Standard

a.       FRCP 9(b)– In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of the mind of a person may be averred generally

i.                     Strong inference standard

b.      PSLRA(Private Securities Litigation & Reform Act) − State with particularity facts giving rise to a strong inference that D acted with required state of mind

i.                     2nd Circuit – Strong Inference Standard (majority approach)

·        P must show motive and opportunity to commit fraud

ii.                   9th Circuit – Great Detail Standard

·        P must plead with great detail for deliberately reckless OR conscious misconduct (allegations in detail of who, what, when, where, how)

c.       Background policies for general particularity and heightened pleading

i.                     Giving notice to the D and the court

ii.                   Sometime giving the court the ability to assess the merits

iii.                  Preventing fishing expeditions

iv.                 Being attentive to who has the factual information

d.      Ross v. Robins (Faulty Birth Control Case) – 2nd Circuit
Facts: Ross purchases shares of Robins. Robins did not report safety and efficiency problems with the Dalkon Shield, but knew about them. After FDA made a public disclosure of the problem, stock prices fell. D moves to dismiss under 12(b)(6) for failure to comply with 9(b). Move to dismiss granted. P appeals.
Rule: Cases involving the Private Securities & Litigation Reform Act must meet a heightened pleading standard. . . strong inference standard.

e.       Cash Energy v. Weiner (Environmental Cleanup Case)
NOT GOOD LAW
Facts:
Cash Energy engaged in storage and/or transfer of chemical solvents on a site adjacent to Weiner’s property. Weiner believes his land has been contaminated as a result of this activity. D moves to dismiss under 12(b)(6) for failure to comply with 9(b). Court grants motion to dismiss. P appeals.
Rule: Court holds cases involving CERCLA to heightened pleading standard, but this is not the law.

f.        Leathermann v.Tarrant County (Drug Bust Case)
GOOD LAW
Facts: Tarrant Co. obtains search warrants. Homeowners claimed assault. Rule: Rule 9(b) only applies to cases involving fraud, mistake or PSLRA. Rule 8(a)(2) still stands otherwise. Cash Energy is NOT the law. Rely on Leatherman.

7.      Voluntary dismissal

a.       FRCP 41(a)(1) − P can dismiss the case unilaterally as long as it is before service of an answer or a motion for summary judgment. If after the answer or motion, must have stipulation of both parties.

b.      FRCP 41(a)(2) − If parties are not in agreement, will need dismissal by order of the court

i.                     First time dismissed without prejudice

ii.                   Second time dismissed with prejudice

iii.                  If court doesn’t otherwise say, it is dismissed without prejudice.

c.       Reasons for voluntary dismissal

i.                     To file in another jurisdiction (don’t like the judge)

ii.                   A way to avoid sanctions under Rule 11

iii.                  If judge may grant a motion to dismiss under Rule 12, might want to pre-empt the ruling

iv.                 The SOL may be running so just decide to go away quietly

B.     Defendant’s Response

1.      RULE 12 MOTIONS

a.       Rule 12(a) − Timing to file responsive pleading

i.               12(a)(1)(A) − Answer complaint w/in 20 days

ii.             12(a)(4)(A) − After filing and serving 12(b)(6) motion, wait to hear back from court

iii.            12(a)(4)(A) − 12(b)(6) denied then must answer within 10 days

iv.           12(a)(4)(A) − If court postpones ruling on 12(b)(6), must answer withing 10 days

v.             If court grants motion to dismiss do not need to answer

vi.           12(a)(1)(A) − Grants leave to amend, court will specify timing

vii.          12(a)(4)(A) − If court denies motion to strike then must answer within 10 days

viii.        12(a)(4)(B) − If court grants motion to strike then must answer within 10 days

Timing under 12(a)

Within 20 days

Within 10 days

Never

Answer complaint

12(a)(1)(A)

File and serve a 12(b)(6) motion

12(a)(4)(A) wait for court to rule

12(b)(6) motion is denied

12(a)(4)(A)

Court postpones ruling on 12(b)(6) motion

12(a)(4)(A) after notice by court

12(b)(6) motion is granted

Never

Grants leave to amend

12(a)(1)(A) Once P has amended, court will specify timing

Denies 12(e) motion for more definite statement

12(a)(4)(A)

Grants 12(e) motion for more definite statement

12(a)(4)(B) after P fixes complaint

 

b.      Rule 12(b)
(b)(1) − Court lacks jurisdiction over the subject matter of the suit
(b)(2) − Court lacks proper jurisdiction over D
(b)(3) − Court is not the proper location for the suit; improper venue
(b)(4) − Insufficiency of process
(b)(5) − Insufficiency of service of process
(b)(6) − Failure to state a claim upon which relief may be granted

i.                     Motion to dismiss flaws

1.      Missing an element

2.      Negating an element

3.      Establishing an affirmative defense

ii.                   Use Conely and Sutliff standards to assess whether 12(b)(6) should be granted

iii.                  Court is limited to the four corners of the complaint and must take all of the allegations as true

(b)(7) − Failure to join a party

c.       Rule 12(c) − Motion for judgment on the pleadings (after the complaint and answer are done)

i.                     Vehicle for the D to answer

ii.                   For failure to state a claim

iii.                  Motion by the P if the Δ admits all of the relevant allegations

iv.                 Can be just like motion to dismiss for failure to state a claim, but is normally after the answer; same analysis

v.                   Must be brought forward without undue delay

d.      Rule 12(e) − Motion for a more definite statement

i.                     Usually used b/c unintelligible, not for want of detail

ii.                   If you understand what the P is saying but want more detail, some courts grant the motion; others don’t (e.g. US v. Board of Harbors)

e.       Rule 12(f) − Motion to strike

f.        Rule 12(g) − All then available Rule 12 motions must be consolidated into one pleading. All defenses not brought are waived except as under 12(h)

g.       Rule 12(h): Waiver or preservation of certain defenses

i.                     12(h)(1) − Disfavored defenses

·        Lack of personal jurisdiction – 12(b)(2)

·        Improper venue – 12(b)(3)

·        Insufficiency of process – 12(b)(4)

·        Insufficiency of service of process – 12(b)(5)

ii.                   12(h)(2) − Favored defenses

·        Failure to state claim upon which relief can be granted – 12(b)(6)

·        Failure to join a party – 12(b)(7)

iii.                  12(h)(3) − Most favored defenses

·        Lack of subject matter jurisdiction – 12(b)(1)

Rule

Rule Explanation

Defenses

Timing

12(b)(1)

Lack of subj matter jurisdiction

Most favored 12(g), 12(h)(3)

Bring at any time

12(b)(6)

Failure to state a claim upon which relief can be granted

Favored 12(g), 12(h)(2)

Can be made in any pleading or by motion for judgment on the pleadings or at trial on merits

12(b)(7)

Failure to join a party

Favored 12(g), 12(h)(2)

Can be made in any pleading or by motion for judgment on the pleadings or at trial on merits

12(b)(2)

Lack of personal jurisdiction

Disfavored 12(g), 12(h)(1)

Will be waived forever if you did not bring it with other Rule 12 motions

12(b)(3)

Improper venue

Disfavored 12(g), 12(h)(1)

Will be waived forever if you did not bring it with other Rule 12 motions

12(b)(4)

Insufficiency or process

Disfavored 12(g), 12(h)(1)

Will be waived forever if you did not bring it with other Rule 12 motions

12(b)(5)

Insufficiency of service or process

Disfavored 12(g), 12(h)(1)

Will be waived forever if you did not bring it with other Rule 12 motions

2.      DEFAULT

a.       FRCP 55(a) − Default entry by the clerk when the Δ has failed to respond

b.      FRCP 55(b) − Default judgment by
(b)(1) − Clerk if the award amount is certain; have to give 3 days notice
(b)(2) − Court, P must show damages

c.       FRCP 55(c) − Setting aside entry of default for good cause shown; if judgment has been entered, may likewise set aside under Rule 60(b)

d.      FRCP 60(b) − relevant grounds for setting aside default judgment would be mistake, inadvertence, excusable neglect, surprise; this is more likely to not be set aside because it is that much more in the process

e.       Three factors courts use to evaluate setting aside (Shepard Claims)

i.                     Non-defaulting party will not be prejudiced

·        Witnesses, evidence, SOL

ii.                   Defaulting party has meritorious defense

iii.                  No culpable conduct by defaulting party

·        If no prejudice and has meritorious defense, then culpable conduct must be willful for default to the set aside

f.        Shepard v. Darrah
Facts: Shepard (independent claims adjuster) alleges that Darrah (insurance broker) failed to pay him for services rendered. After delivery of the complaint Darrah’s attorney misses filing date for answer due to confusion about extension
Rule: Default judgment will be set aside if P is not prejudiced, D has a meritorious defense and the conduct was not willful

3.      ANSWER

a.       Admitting or Denying

i.                     Admit an allegation as true

ii.                   Deny

iii.                  Lack knowledge or information sufficient to form a belief

iv.                 Hybrid- give more particular responses, combo of above

b.      Rules

i.                     FRCP 8(b) − D shall respond to each averment by either (1) admit, (2) deny or (3) lack of knowledge or information sufficient to form a belief

·        LKISFB is treated as a denial

·        If it is found that you have sufficient knowledge or info, then LKISFB is treated as an admission (David v. Crompton & Knowles)

ii.                   FRCP 8(d) − Failure to deny – All averments are taken as admitted when not denied. All averment to which no responsive pleading is required or permitted shall be taken as denied or avoided

iii.                  FRCP 10(b) − Form of pleadings. Each claim or defense should be in a separate numbered paragraph; one allegation per paragraph

c.       Purpose of the answer

i.                     Respond to the allegations

ii.                   Assert defenses

iii.                  Provide any counter or cross claims

d.      David v. Crompton & Knowles
Facts: David was injured by a shredding machine in a factory. Δ says they don’t have sufficient knowledge to respond an allegation, then want to move to amend the answer to a denial. Motion to amend denied.
Rule: If you claim lack of knowledge and are found to have knowledge, could have acquired the knowledge (“Should have known”) or the info was within your control (“Only one who could have known”), then you have improperly used lack of knowledge answer and your answer will be deemed admitted instead of denied.

e.       Affirmative Defenses (shield)

i.                     FRCP 8(c) − Affirmative Defenses (list is not exhaustive)

·        D must include in answer, answer to amended complaint, or motion to dismiss or lose them FRCP 12(h)(1)

·        D must raise the issue and the D must prove it

·        SOL is a common affirmative defense

·        15(a) says you may amend an answer to insert affirmative defense

f.        Counter Claim and Cross Claim (sword)

i.                     FRCP 13(a) − Compulsory Counterclaims must be brought or lost

·        Must arise from same T&O weigh following factors

§         Logical relationship between the claims for them to be compulsory (liberal view)

§         Substantially the same evidence/facts – If the same evidence would substantially dispose of the issues raised by the opposing claims then the counterclaims are compulsory; if not, then they are permissive

§         Substantially same law applies

ii.                   FRCP 13(b) − Permissive Counterclaims may be brought but do not have to; different T&O

iii.                  FRCP 13(g) − Cross-Claim against Co-Party may be brought if same T&O as any of claims or counter-claims

iv.                 Purpose

·        Judicial efficiency − same jury, same case load

·        Consistency − Courts could rule differently on the same case or issue if raised at different times in different courts

·        Destroys P’s image

Type of Claim

Against

Same T&O

Different T&O

Counter

Opposing Party

Compulsory 13(a)
Must be brought

Permissive 13(b)
May be brought

Cross

Co-party

13(g)
May be brought

13(g)
Cannot bring

 

v.                   Wigglesworth v. Teamster’s Union
Facts: During union meetings, Wigglesworth was prevented from exercising his free speech rights. After the complaint was filed, Wigglesworth holds a press conference at which he accused the union of being mafia run and that certain union elections had been fixed. Δ files counterclaim. Δ files motion to dismiss under 12(b)(1). Motion to dismiss granted.
Rule: Test for same Transaction and Occurrence:
Logical relationship between the claims for them to be compulsory (liberal view)
Substantially the same evidence/facts – If the same evidence would substantially dispose of the issues raised by the opposing claims, then the counterclaims are compulsory; if not, then they are permissive
Substantially same law applies
NOTE: All of the above factors do not need to be met for there to be same transaction and occurrence

C.     Amended Pleadings

1.      Process for amending

a.       FRCP 15(a) − Party allowed to amend once as of right

i.                     Before a responsive pleading is served or

ii.                   If no responsive pleading is permitted, the party may amend within 20 days after it is served

Otherwise may only amend by:

(1) leave of the court or

(2) stipulation of the parties.

Leave shall be freely given as justice so requires

b.      FRCP 15(b) − When issues not raised in the pleadings are tried by express or implied consent of both parties, they shall be treated as if they are part of the pleadings. Amended pleading allowed, but not required

c.       If a disfavored Rule 12 motion is not brought in the answer, you can still amend the answer to include this Rule 12 motion so long as it is in the 20 day period

2.      Standard for the court to allow a party to amend

a.       Leave to amend will be given freely when justice so requires

3.      Factors the court will take into account in denying leave to amend:

a.       Undue delay

b.      Bad faith

c.       Prejudice to the opposing party

4.      Relation back of an amended pleading

a.       FRCP 15(c) − Relation back of amendment

i.                     15(c)(2) − Relation back of a claim – amending to add a new claim when the statute of limitations has run from the original service of the pleading, must be same T&O (T&O test as above)

ii.                   15(c)(3) − Relation back of a party − changing a party’s name or adding a party

·        Change the D or the name of the D

·        Name T&O  (T&O test as above)

·        Timing of notice – date of filing of original complaint + 120 days (Rule 4(m))

·        Form of notice

§         Can be informal, just need to notify the party

·        D is aware that but for a mistake of identity, he would have been named

§         Some jurisdictions say ignorance is not a mistake

iii.                  Swartz v. Gold Dust Casino
Facts: Swartz falls down stairs at the Gold Dust Casino. She alleges that the stair were thread bare, worn and slippery. Also, the stair violates the building code. Π files and serves a complaint against Gold Dust and Does I through V for negligence. Δ answers by denying the allegations. After discovery and interrogatories, Π discovered the true identity of Doe I and requests leave to amend their complaint. Δ files motion for summary judgment. Judge denies the motion for summary judgment. Motion for leave to amend is granted. Amended complaint is filed and served upon John Cavanaugh. Δ Cavanaugh raises 2-year statute of limitations as an affirmative defense in answer to amended complaint and moves for judgment on the pleadings.
Rule: Meets requirements for relation back

·        Changing the party or changing the name of the party − Yes, Doe I becomes Cavanaugh

·        Same transaction and occurrence − Yes, same day, same woman, same stairs (facts and evidence are the same); they are both negligence claims (doesn’t have to be the exact same claim)

·        Timing of the notice − Notice (not filing) within 120 days of the filing of the complaint; ONLY NOTICE OF THE COMPLAINT IS REQUIRED, NOT FILING

·        Form of notice − Cavanaugh got the amended complaint in the motion for leave to amend, also companies are so overlapped it is reasonable to assume that Cavanaugh would have known of the action

·        But for a mistake about identity − Cavanaugh knew but for a mistake of identity that they would have been sued
Cavanaugh would argue wasn’t a mistake, it was ignorance

iv.                 David v. Crompton & Knowles
Rule: Meets the requirements for relation back

·        Change the defendant − Yes, change Crompton to Hunter

·        Same T&O − Yes, same accident, law, etc.

·        Timing of notice − Maybe, Hunter is a division of Crompton (overlap of corporate entities)

·        Form of notice − yes

·        But for a mistake − Hunter would recognize that they would be on the hook for the machine; David thought Crompton was the manufacture. Maybe a mistake about ownership rights, not who is the manufacturer

D.     Rule 11

1.      FRCP 11(a) − Failure to sign a pleading, written motion or other written paper

2.      FRCP 11(b) − In representations to the court attorney is certifying that he has made a reasonable inquiry and that to the best of his knowledge, information and belief

a.       No improper purpose

b.      Claims, defenses or other legal contentions are supported by existing law or by a non-frivolous argument for the extension of existing law

c.       Allegations have evidentiary support

d.      Denials of factual contentions are warranted on the evidence or are reasonably based on a lack of information or belief

3.      FRCP 11(c) − Sanctions

4.      FRCP 11(d) − Rule 11 sanctions do not apply to discovery (Rules 26-37)

5.      Rule 11 Sanctions Process – 11(b)

a.       Basis under 11(b)(1)-(4)

i.                     11(b)(1) − Improper purpose, including delay

ii.                   11(b)(2) − No basis in existing law
(two components, only have to meet one)

·        Subjective − must believe had legal argument

·        Objective − must actually have legal argument

iii.                  11(b)(3) − No basis in evidence for the allegation or assertion

iv.                 11(b)(4) − No basis in evidence for the denial

v.                   Creates standards/duty

vi.                 Notwithstanding your good faith if knowledge or information was not reasonably researched, subject to sanctions

b.      Initiating Process − by motion or by court (no safe harbor when court initiates)

                                                               i.      Serve motion on party who then has 21 days to correct problem or motion is filed in court

                                                             ii.      Motion has to describe conduct

                                                            iii.      Motion has to be separate from any other motion

c.       Decision Process

                                                               i.      Court has to give party chance to respond

                                                             ii.      Describe conduct explicitly

                                                            iii.      Describe basis for sanctions

d.      Discretion

                                                               i.      Can violate the basis and not be sanctioned

e.       Type of Sanctions

                                                               i.      Designed to deter not to compensate, because court was using as cost shifting mechanism

                                                             ii.      Only strong enough sanction to deter conduct

                                                            iii.      Court can refer to state bar, or to go to school, reprimand

                                                           iv.      A represented party can be sanctioned

·        Not monetary if basis is 11(b)(2) because client is not expected to know the law

                                                             v.      Attorney’s fees and costs only available on motion

f.        Target

                                                               i.      Attorney

                                                             ii.      Firm

                                                            iii.      Party

Identify the action

Basis for sanction

Initiation

Decision

Process

Discretion

Types of Sanctions

Target of Sanction

Signing

11(a): Failure to sign paper

Notify party, court

N/A

Shall.  11(a)

No other option

Strike

N/A

Signing, filing, submitting, or later advocating position with…

-improper purpose (b)(1)

-no basis in law (b)(2)

-no basis in evidence for allegation or assertion (b)(3)

-no basis in evidence for denial (b)(4)

Sanctioned if frivolous either:

-subjectively (belief) or

-objectively (no reasonable inquiry; frivolous legal argument) 11(b)

Party’s motion:

-serve 21 days before filing (safe harbor)

-describe conduct

-only if not corrected

-not combine with other motion 11(c)(1)(A)

Court:

-order to show cause (OSC)

-describe conduct at issue 11(c)(1)(B)

Notice and opportunity to respond 11(c)

Order:

-describe conduct

-explain basis for sanction 11(c)(3)

May.  11(c) Can use discretion

Goal: Deter, not compensate 11(c)(2)

Options:

-nonmonetary directive (go to classes)

-monetary fine to court

pay other side’s attorney’s fees or costs 11(c)(2)

Restrictions:

-represented party not pay money under (b)(2).  11(c)(2)(A)

-attorney’s fees and costs only if on motion. 11(c)(2)

-no monetary sanction on court’s initiative unless OSC before voluntary dismissal or settlement. 11(c)(2)(B)

Party, attorney, law firm, or combination.  11(c)

6.      Zuk
Facts: Zuk, psychologist, had EPPI record therapy sessions for rental. Writes books that has transcripts from session and gets copyright. Zuk furloughed (fired). Zuk requests copies of the tapes. EPPI ignores the requests. Requests them again 1994. Requests are denied.
Rule:

 

DISCOVERY

III.         Discovery

A.     Analyze

1.      Proper use of device

a.       Must be described with reasonable particularity

2.      Responsive

a.       Did the party ask for it?

3.      Relevance − Rule 26(b)(1)

a.       Reasonably calculated to lead to discovery of admissible evidence pertaining to claim or defense

                                                               i.      Merits

                                                             ii.      Background

                                                            iii.      Impeach/Corroborate

                                                           iv.      Clues

Ø      If relevant to claim or defense do not need to make showing

Ø      If relevant to subject matter, burden of proof shifts to party seeking discovery (need court order and good cause shown)

4.      Protected

a.       Privacy − Rule 26(c)

i.                     Annoyance, embarrassment

ii.                   Undue burden or expense − Rule 26(b)(2)

·        Other means, source for same information

·        Already been ample opportunity for discovery

·        Rule 26(b)(2)(iii)

§         How much is it in controversy

§         What are parties’ resources

§         Needs of case

§         How relevant

§         What are important issues

§         Are there alternative sources of information

§         Consider models of adjudication

iii.                  Trade secrets − Rule 26(c)(7)

·        Economic detriment

·        Secret not generally known

·        Injury has to be clearly defined, serious injury

·        Competitive disadvantage

·        Balance between harm of disclosure and necessity to litigation

b.      Protective Order − Rule 26(c)

5.      Privilege

a.       Elements

i.                     With client (or prospective client)

·        Upjohn − Modified control group test which stated that only those in corporation who are in a position to control or even take a substantial part in decision about any action which the corporation may take upon advice of attorney

§         Modification to protect parties (lower and mid-level employees) who disclose and in corporation will need lower level employees to disclose in order to find out what happened

ii.                   Legal advice

iii.                  Legal advisor

iv.                 Relate to advice

v.                   In confidence

6.      Product − Rule 26(b)(3)

a.       Prepared in anticipation of litigation or for trial

b.      By or for another party, or by of for that other party’s representative (including attorney)

·        Party may obtain discovery of ORDINARY WORK PRODUCT (but not opinion work product) if:

i.                     Substantial need

ii.                   Party cannot get the substantial equivalent without undue hardship

·        In ordering discovery of such materials, court shall protect against disclosure of mental impressions, conclusions, opinions or legal theories of attorney or other representative (OPINION WORK PRODUCT)

§         Courts generally abide by this and protect against disclosure of opinion work product

§         9th Circuit (minority view) − Allows discovery of opinion work product if (1) pivotal issue and (2) compelling need (not applied to attorney opinion work product)

v     Must list in privilege log

B.     Discovery Devices

1.      Initial Disclosures − Rule 26(a)(1)

a.       26(a)(1)(A) − Party must disclose (provide or describe) what she is going to use to support her claim or defense (do not have to provide that which is harmful at this stage)

i.         Potential witnesses (name, address, telephone)

ii.       Documents

iii.      Damages

iv.     Insurance

2.      Depositions − Rule 30

a.       Testimony under oath that is recorded

b.      Reasonable notice

c.       Limited to 10 depositions

d.      One day, seven hours per depositions

e.       Only get to depose person once

f.        Third parties can be deposed (special rules apply)

g.       Rule 30(b)(6) − Describe in reasonable terms the category of person you want to depose, other side must provide the person that fits that category

h.       Objections to form

i.               Compound

ii.             Confusing/Unintelligible

iii.            Vague or ambiguous

iv.           Misleading

v.             Asked and answered

vi.           Argumentative

vii.          Mischaracterized witness testimony/Assumes facts not in evidence

·        If objections not made at deposition, waive right for answer not to be admitted into evidence later

·        Even after objection witness may answer, objections only serve to make answer inadmissible later

·        Rule 30(d)(1)

§         Instruct not to answer

§         Privilege

§         Protective order in place or going to seek one

§         Any objection must be state concisely, speaking objections not permitted

3.      Request for production (RFPs) − Rule 34

a.       Describe a category with reasonable particularity

b.      30 days to respond (written response including objections)

c.       Rule 34(b) − Produce those documents that are in producing party’s protection, control or custody (as kept or in categories, but not scrambled)

d.      Rule 26(b)(5) − Privilege or work product

i.               Materials that are attorney-client privilege

ii.             Work product in preparation of litigation

·        Privilege log − Must create a log of those items that are privileged, describe in general terms with objection

4.      Interrogatories (Rogs) − Rule 33

a.       Limited to 25 in number including subparts

b.      30 days to respond

i.               Written answers by attorney and signed off by party

ii.             Obligation to answer if reasonably obtainable

·        Rule 33(d) − If have to look through a large amount of records can just give other party records in lieu of answering (shift burden to requesting party)

c.       Contention interrogatories − Identify every fact (or all evidence) that supports your contention that X

i.               Most courts will not allow early on

ii.             Used to prove negative (to prove other side has no evidence of X)

5.      Exams − Rule 35

a.       Parties or those in care, custody or control of party (read narrowly)

b.      Must be “in controversy”

c.       Good cause shown

d.      Must have stipulation by parties or court order

6.      Request for admission (RFAs) − Rule 36

a.       Extension of pleadings

C.     Limitations on discovery

1.      Rule 26(b)(2)(iii) − Undue burden

a.       Outweighs likely benefits

b.      Needs of case

c.       Amount in controversy

d.      Parties’ resources

e.       Importance of the issue at stake

f.        Importance of proposed discovery in resolving the issue

SUMMARY JUDGMENT

IV.        Summary Judgment

A.     Rule 56(a)

1.      Claimant can move 20 days after commencement of action or after opposing party moves for summary judgment

B.     Rule 56(b)

1.      Defending party can move for summary judgment at any time

C.     Rule 56(c)

1.      Motion must be served at least 10 days before hearing (most courts require at least 21 days)

2.      Standard − Summary judgment shall be granted if moving party makes showing that there is no genuine issue as to any material fact

a.       What is fact at issue and why is it material?

i.                     Material if relevant to an element or affirmative defense

b.      Is there a genuine issue about it?

i.                     Is it plausible that could come out either way?

·        Adickes v. S.H. Kress & Co.

§         Key fact − Was there police officer in store?

§         Material to whether there was a conspiracy

§         D did not come up with enough evidence to initiate

§         D cannot do nothing in moving for SJ, must make some kind of showing (vague as to what this requires)

·        Celotex v. Catrett

§         Key fact − Was P exposed to D’s product?

§         Material to causation

§         Rather than showing through affirmative evidence, D made showing that absence of evidence on other side (contention interrogatories often used)

§         Absence of evidence − Courts are split on moving party’s burden

Ø      Point out there is no evidence (just state)

Ø      Point to evidence in record to show lack of evidence

D.     Rule 56(f)

1.      Not enough chance for discovery on issue (premature)

E.      Burden of production − Whether party has sufficient evidence to go to trial

F.      Burden of persuasion − Which party must convince trier of fact

G.     Party with burden of proof moves

1.      Every reasonable jury would conclude that it is more likely than not that moving party is right

2.      Ex. − Every reasonable jury would conclude that it is more likely than not that Jacques threw the rock

a.       Required to make initial showing

b.      Only if initial showing is strongly supported does opposing party have to respond

i.                     Burden of opposing party is to provide enough evidence to undermine moving party’s evidence sufficiently such that a reasonable jury could conclude that moving party is not more likely than not right

H.     Party who does not have burden of proof moves

1.      No reasonable jury would conclude that more likely than not that party opposing summary judgment is right

2.      Ex. − No reasonable jury would conclude that it is more likely than not that Jacques threw the rock

a.       Initial showing − Logically would make sense not to require initial showing, but if this were the case could be used as a weapon too easily

·        Celotex − Ambiguous which of two standard applies

o       Either merely point out that other side has no evidence

o       Or must do discovery to show that other side has no evidence

i.                     Burden of opposing party is to provide enough evidence that a reasonable jury could conclude that it is more likely than not right

ii.                   Note that since party opposing summary judgment will have burden of persuasion at trial, if moving party has met its burden, simply attacking the moving party’s evidence will not suffice to survive summary judgment

For More information How You Can Use Some of These Pro Se Civil Litigation Guidelines To Effectively Challenge and Successfully Win Your Wrongful Foreclosure and Save Your Home Visit http://www.fightforeclosure.net

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Means Test Forms Mediation mediation program Medical malpractice MER MERS Michigan Monetary Awards Monetary Restitution money Montana mortgage Mortgage-backed security Mortgage Application Fraud Mortgage broker mortgage company Mortgage Coupon Mortgage Electronic Registration System Mortgage fraud Mortgage law mortgage lender Mortgage loan mortgage loan modification mortgage loan modifications mortgage loans Mortgage mediation Mortgage modification Mortgage note mortgages Mortgage servicer Mortgage Servicing Fraud motion Motion (legal) Motion in Limine Motions National Center for State Courts National City Bank National Mortgage Settlement Natural Negotiable instrument Nelva Gonzales Ramos Nevada Nevada Bell Nevada Foreclosure Nevada mortgage loans Nevada Supreme Court New Jersey New Mexico New York New York Stock Exchange New York Times Ninth Circuit non-appealable non-appealable order Non-judicial non-judicial foreclosure non-judicial foreclosures Non-judicial Foreclosure States Non-Judicial States non-recourse nonjudicial foreclosures North Carolina note Notice Notice of default notice of entry of judgment Nueces County Nueces County Texas Objections Official B122C-2 Official Form B122C-1 Ohio Options Oral argument in the United States Orders Originator overture a foreclosure sale Owner-occupier Payment Percentage Perfected periodic payments personal loans Phantom Sale Plaintiff Plan for Bankruptcy Pleading post-judgment pre-trial Pro Bono Process for a Foreclosure Processor Process Service Produce the Note Promissory note pro per Property Property Flip Fraud Property Lien Disputes property liens pro se Pro se legal representation in the United States Pro Se Litigating Pro Se litigator Pro Se trial litigators Protecting Tenant at Foreclosure Act Protecting Tenants PSA PTFA public records purchase a new home Quiet title Real estate Real Estate Agent Real Estate Liens Real Estate Settlement Procedures Act Real property RealtyTrac Record on Appeal refinance a loan Refinance Fraud Refinancing registered judgment Regulatory (CFPB) relief remittance reports remove bankruptcy remove bankruptcy on credit report Remove Late Payments Removing Liens renewal of judgment renewing a judgment Reno Reno Air Request for admissions Rescission Residential mortgage-backed security Residential Mortgage Lending Market RESPA Restitution Reverse Mortgage Fraud Rhode Island robert estes Robert Gaston Robo-signing Sacramento Scam Artists Scope Secondary Mortgage Market Securitization securitized Security interest Se Legal Representation Self-Help Seller servicer servicer reports Services servicing audit setting aside foreclosure sale Settlement (litigation) short sale Short Sale Fraud Social Sciences Social Security South Dakota Special agent standing state State Court State Courts state law Statute of Limitations statute of limitations for judgment renewals statute of repose stay Stay of Proceedings stay pending appeal Straw/Nominee Borrower Subpoena Duces Tecum 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