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Civil Procedure II Outline - Part 18

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Sequencing and Timing Controls on Discovery

tt. When sensitive privacy, commercial, or first amendment interest are impacted by discovery request, an alternative control on discovery may be to delay the sensitive discovery until less sensitive discovery has been taken, or legal challenges to the complain have been heard, because the need for the sensitive discovery may thus be mooted

  1. 26d

uu. Cost-benefits controls on discovery

  1. 26b1
    1. The proportionality standard was intended to “deal with the problem of over-discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subject of inquiry.
      1. It expressly allows the court to consider the burden and expense of discovery in light of its benefits by taking into account
        1. The needs of the case
        2. The amount in controversy
        3. The parties resources
        4. The importance of the issues at stake
        5. And the importance of discovery in resolving the issues
          1. The cost benefit analysis gives a judge enormous discretion to head off the runaway discovery

vv. Summary of basics Principles

  1. When the respond party thinks a discovery request is improper it can try to
    1. negotiate a narrowing or other limitation of the request with the requesting party,
    2. make express objections in the time provided by the rules,
    3. or seek court ordered limitation by a motion for limitations under the rule 26B2 (authorizing a cost benefit analysis)
    4. or a motion for a protective order under rule 26(c)
    5. If the responding party believes that the requesting party violated the certification requirement of rule 26G, it may also seek sanctions under that rule.
  2. Silent objections or self help by non-production are never proper options under the rules.
    1. Rule 26b5 requires an objecting party to “expressly make the claim” with a proper foundation. If you object, do so in writing.
  3. Ordinary discovery sanctions involve a two step process.
    1. When the responding party expressly makes objection to a discovery request, the requesting party may move for an order compelling discovery under rule 37a.
    2. That motion places the objections before the court to resolve by issuing an appropriate order.
    3. If the responding party violates such an order, then the requesting party may seek sanctions.
  4. If on the other hand, the party from which discovery is requested, the requested “stonewalls”- ((That is fails to make any response (or fails to attend its own deposition))
    1. the requesting party may
    2. bypass the motion to compel (first step in the usual two step process) and go straight for sanctions under rule 37D.
      1. The two steps become a one-step. IN such a case, it is no excuse for the lack of response that the discovery sought was objectionable. The objections come too late.
Voluntary Dismissal

ww. 41(a)(1) provides

  1. (a)
    1. Without a court order
      1. Subject to rules 23e, 23.1(c), 23.2 and 66 and any applicable federal statue, the plaintiff may dismiss an action without a court order filing: (i) a notice of dismissal before the opposing party serves with an answer or a motion for summary judgement; or (ii) a stipulation of dismissal signed by all parties who have appeared.
  2. (b) effect
  3. Unless the notice or stipulation states otherwise, the dismissal is without prejudice.
    1. But if the plaintiff previously dismissed any federal or state court action based on or including the same claim a notice of dismissals operates as an adjudication on the merits.

xx. Three keys aspects of rule 41(a)(1)(a)(i)

  1. First filing under the rule is a notice not a motion. Its effect is automatic
    1. The defendant does ont file a response, and no order of the district court is needed to end the action.
  2. Second, the notice results in a dismissal without prejudice (unless it states otherwise, as long as the plaintiff has never dismissed an action based on or including the same claim in a prior case.
  3. Third, the defendant has only two options for cutting off the plaintiffs right to end the case by notice: Serving on the plaintiff an answer or a motion for summary judgment.

yy. Analyzing the rule

  1. The affixes a bright line test to limit the right of dismissal to the early stages of litigation.
    1. Which simplifies the court's task by telling it whether a suit has reached the point of no return. If the defendant has served either an answer or summary judgement motion it hasl if the defendant has served either it has not.
    2. The point of no return dismissal is automatic and immediate- the right of a plaintiff is unfettered.
      1. A timely notice of voluntary dismissal invites no response from the district court and permits no interference by it.
        1. A Proper notice deprives the district court of jurisdiction to decide the merits of the case.
  2. Because a motion to dismiss under 12b6 is neither an answer nor a motion for summary judgment its filing generally does not cuff off a plaits right to dismiss by notice
    1. Only when a motion filed under 12b6 is converted into a motion for summary judgment does it bar voluntary dismissal

zz. Procedure for voluntary dismissal without court order (notice dismissal)

  1. Just file the notice, no response from the court.

aaa. Reasons for voluntary dismissal

  1. To correct or redraft pleadings
  2. To facilitate consolidation with another action
  3. To defeat diversity jurisdiction
  4. To preserve subject matter jurisdiction
  5. To avoid unfavorable state law
  6. To refile in a different jurisdiction with a longer statute of limitations
  7. To delay or avoid an anticipated adverse determination on the merits
  8. To delay or avoid discovery
  9. To change federal judges by refiling in a state court.

bbb. Why the points of no return

  1. Service of an answer or a motion for summary judgment roughly fixes the point at which the resource of the court and the defendant are so committed that dismissal without preclusive consequences can no longer be had as a right.
    1. The second court held in Harvey aluminum that when the parties and the court had already expended substantial resources (on briefing, arguing, hearing, and deciding a motion for a preliminary injunction) it would be unfair to permit the plaintiff to dismiss as of right.
  2. A bright line that simplifies the court's task by telling it when a notice is no longer sufficient to obtain voluntary dismissal.

ccc. The summary judgment point of no return.

  1. Rule 12 D provides that when “materials outside the pleadings are presented to and not excluded by the court the 12b6 motion must be treated as one for summary judgment.
    1. Courts must take the well pleaded allegations of the complaint as true on rule 12b6 motion, but when the movant offers materials beyond these allegations, the court no longer takes the allegations as true.
      1. Instead when such materials are excluded by the court it considers whether they show that material facts are genuinely undisputed. ( the standard applied by a general summary judgment rule)
        1. At this point 41 point of no return has been reached because now the motion is treated as a motion for summary judgment even though it was not styled as one.
  2. A court can consider materials outside the complaint in ruling on motions to dismiss for lack of personal jurisdiction, improper venue, insufficient service of process, or insufficient process, but none of these motions with or without materials outside of the complaint converts into a summary judgment motion that cuts off the right of a voluntary dismissal.

ddd. Voluntary dismissal by court order

  1. Rule 41(a)(2)
    1. Provides for voluntary dismissal at the plaintiff's request by a court order. Though he can no longer simply notice a voluntary dismissal, he can still move for a voluntary dismissal under rule 41 (a) 2
      1. But voluntary dismissal is then discretionary with the judge and may be granted conditionally “on terms that the court considers proper”.
        1. A court can mitigate by imposing terms on the dismissal.
          1. Example, even where the plaintiff moved for voluntary dismissal because an important witness was absent when the jury was about to be called to the boxx, a court granted the motion for dismissal without prejudice on the condition that plaintiff pay defendant's expenses and reasonable attorney's fee.
  2. Primary Purpose of giving he judge this discretion is to prevent a dismissal that unfairly causes prejudice to the opposing party
    1. Sometimes called plain legal prejudice.
      1. The courts have found plain legal prejudice where a defendant has spent significant time, effort, and expense in defending the suit.
        1. Factors
          1. The suit is still in pretrial statue or further along
          2. the parties have filed numerous papers and memoranda
          3. the parties have attended many pretrial conferences
          4. there are prior court rulings adverse to plaintiffs position
          5. hearings have been held
          6. parties have undertaken substantial discovery
            1. Though the plaintiffs reasoning is usually not a factor it may become more important as the litigation progresses.

eee. Effect of voluntary dismissal

  1. The chief concern all parties have with a voluntary dismissal is whether it will permit or preclude the dismissing party from suing again on the same claim.
    1. The first voluntary dismissal is by rule without prejudice.
      1. After the first voluntary dismissal without court order, should the dismissing party sue on the same claim again and then notice another voluntary dismissal without court order, the second voluntary dismissal “operates as an adjudication on the merits” Rule 41(a)(1)(B)
        1. This part of the rule is sometimes called the two dismissal rule,
          1. Intends to protect the defendant from the harassment of repeated plaintiff's dismissal it applies only when the second dismissal is by notice without court order or stipulation.
    2. Finally a voluntary dismissal by court order is without prejudice to commencing a new action on the same claim unless the court stated otherwise. But the party of the court's discretion in ruling on motion for voluntary dismissal is to order it ‘with prejudice' ' based on the same factors that enter into the court’s decision whether to allow the dismissal at all.
Involuntary Dismissal

fff. When a court grants a defendant's rule 12b motion to dismiss the dismissal is involuntary and does not require the plaintiff's consent.

ggg. In addition rule 41 bs describes two other grounds for involuntary dismissal

  1. Plaintiffs failure to prosecute
    1. At some point the plaintiff's inaction justifies involuntary dismissal of the action, the precise point often being set by rule or statute and the actual decision of dismissal depending on plaintiffs' excuses for inaction, prejudice to the defendant and other ad hoc factors.
  2. And a party's failure to comply with the rules.
    1. Depends on the specific rules that were violated and specific litigation history of the case, with dismissal typically being reserved chiefly for serial violators who have abused the litigation process.

hhh. Rule 41 b provides that an involuntary dismissal “operates as an adjudication on the merices.

  1. Which means an action based on the same claims cannot be brought again in the supreme court.
    1. The rule accepts involuntary dismissal for lack of jurisdiction, improper venue , or failure to join a required party, because those are all defects that prevent adjudication on the merits.
Motion for Summary Judgment

iii. By this motion the defendant agrees for purposes of the motion only, that the well pleaded factual allegations in the plaintiff's complaint are true and asks the judge to decide as a matter of law whether it states a claim based on those taken as true allegations.

  1. The rules of summary judgment afford the option of making a more summary showing in advance of trial by mainly documentary evidence, including sworn witness statements called affidavits.
    1. A motion for summary judgment effectively previews usually in documentary form, the evidence that parties would put on at trial in order to determine if it would establish any dispute that requires trial.
      1. The Court must decide “whether the state of the evidence is such that, if the case were tried tomorrow the non-moving party would have a fair chance of obtaining a verdict.
    2. If the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law rule - 56a
  2. Armed with evidence you can file a motion for summary judgment any time up until 30 days after the close of discovery
    1. 56b
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