Hypotheticals

I. SMJ
Citizenship
Hypo 1
Carly, a native of NY, lived her entire life in NY until she went off to college. She attended
college in CA, but always intended to return to NY after graduation, even though she voted in
CA elections while in school there. Upon graduation, Carly decided to go to law school in D.C.
and rented an apartment there. Her plans were to return become a lawyer in NY after law
school. During her second year of law school in D.C., she is involved in a car accident in D.C.

What is Carlys citizenship?

NY intent to move back to NY

No intent to stay in CA indefinitely

Hypo 2
Meyer, a New Yorker, decides to move to Arizona. He buys an Audi from Isola Volkswagon, a
New York auto dealership and sets off with his family for Arizona. While driving through
Oklahoma, he is involved in an accident and hospitalized.
Meyer is released from the hospital after 6 months. The company he planned to join in Arizona
has rescinded its job offer since he was unable to start work when it needed him. He still has six
months of rehabilitation ahead of him in Oklahoma. After that, he plans to begin looking for a
job as a detective in the oil industry, wherever one turns up. As he begins the rehabilitation in
Oklahoma he files a lawsuit against Isola in federal court claiming the Audi was defective
What is Meyers citizenship?
NY never had residence in AZ, because he did not set up residence
Common Nucleus of Operative fact
Hypo 1
P (store owner) sues D (police officer) for:
Violating Ps federal civil rights in assaulting P at traffic stop
Breach of contract for failing to pay for goods bought at Ps store (D didnt know it was Ps
store)

Both claims against defendant police office

First: federal
Second: state
No common nucleus

Hypo 2
P (former employee) sues D (employer) for:
Failing to pay overtime as required by fed law
Breach of contract for firing P (firing was unrelated to overtime dispute)

Claim 1: overtime wages - federal

Claim 2: breach contract state (unrelated to first claim)
Minority: court said unrelated
Majority: but both related to common nucleus of employment

Hypo 3
P (former employee) sues D (employer) for:
1.
Failure to grant family leave as required by fed law
2.
Intentional infliction of emotional distress because couldnt get family leave
3. Interference with contract for badmouthing employee to next potential employer
(badmouthing wasnt about family leave)

Claim 1: no leave federal claim

Claim 2: IIED state claim

Claim 3: employer badmouthed him interference with contract state claim
Majority:
o Claim 1 & 2 common nucleus of operative fact
o Claim 3 unrelated
o ***efficiency!!

II. Venue
Proper Venue
Hypo 1
P sues D1 (resident of Northern Dist. of CA) & D2 (resident of Southern Dist. of CA) for
defamatory ad in an Eastern Dist. Of Virginia newspaper.

Where would venue be proper?

All three 1391(b)(1) defendants are citizens of the same state (North and
South CA) + substantial part of events occurred (Virginia)

Hypo 2
P sues D1 (resident of Western Dist of NY) & D2 (resident of Central Dist. of CA) for
defamatory ad in an Eastern Dist. of Virginia newspaper.

Where would venue be proper?

Only Virginia sue in any district where defendants from same state (NY and
CA) cant choose either
Change of venue
Hypo 1
ex: car crash in NY between P (CA) v D (IL) filed in IL. Defendant moves to CA after case is
filed

CA court applies whatever negligence law the IL court would have applied (IL
court applies NY substantive law for negligence laws since events occurred in
NY) prevents transfer motions where transfer wants better law applied

Hypo 2
Use substantive law that the transferring court would use
FQ in CA to FQ in NY
use the law of NY FQ
State in CA to State in NY

use law the CA court would use

III. PJ
IV. Erie
V. Pleading
Form 11: complaint for negligence
On date, at place, the defendant negligently drove a motor vehicle against the plaintiff.
Negligently drove is usually considered a legal conclusion

negligence is a legal conclusion

should say: Drove drunk or drove 10 miles over speed limit or drove
while talking on his cell-phone would be facts

Twiqbal
Plaintiffs, housekeepers at the Governors mansion, allege they were fired because they had
supported the losing party in the last election. In support of this claim, plaintiffs alleged that they
were fired without explanation immediately after the election, and that defendants had overheard
the plaintiffs speaking favorably about the losing party and its candidates.

District court dismisses complaint but notes that it would have been sufficient
before Twiqbal.

Rationale: The plaintiffs allegations are at best consistent with plaintiffs claims of
political motivation, but they do not, without more, make it plausible that the
Governor, his wife, and his staff would fire housekeepers wholesale because of their

political affiliation.
Rule 12 - Defenses
Hypo 1
On November 5, I went to the law school library to take out a book on contracts.
The book was not there because Professor Taha had already taken it out.
As a result, I received a poor grade in contracts.

Failure to state a claim leading to relief no legal right to recover based on these
facts

Hypo 2
Maria filed a complaint in which she stated her claim as follows: Judy submitted a statement
to members of a local gang falsely implicating EdMarias sonin a recent theft of some of the
gangs property, knowing that the gang might retaliate against Ed by killing him. After getting
this information from Judy, the gang members located Ed and beat him to death as punishment
for the theft they thought he committed. Based on these actions, Judy is liable for wrongful
death under Virginia law.

Assume the following about Virginias wrongful death law:

o (1)surviving parents are permitted to bring wrongful death actions;
o (2)wrongful death actions are permitted only against persons directly
responsible for causing the death; and
o (3)a recent decision by the Supreme Court of Virginia held that persons who
solicit others to kill the decedent may be held liable under the wrongful
death law.

Judy files a motion to dismiss under Rule 12(b)(6) in response to Marias

complaint. How should the court rule on the motion? =
12(f) motion to strike
The court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.

Example
o Complaint in negligence action alleges:
o D negligently hit Ps parked car, damaging it and
o D cheats on his wife
8(b)(4) - pleading
Complaint alleges P and D made a contract for the delivery of the car to the P, with delivery to
be on or before June 1, 2012.
How should D answer If D believes that the contract was for delivery on October 1, 2012?

Admit they had a contract for the car, but deny that the delivery date was June
1, 2012.
12(c) motion for judgment
Complaint:
D intentionally hit Ps parked car, damaging it.
Answer:

D admits intentionally hitting and damaging Ps car, but claims he was justified in
doing so because Ps car was in Ds parking space.

VI. Joinder

Claim joinder
Hypo 1
P hires D Painting Company to paint her house. The painter (an employee of the Painting
Company) moves a metal ladder near where P is standing. The ladder touches an electrical wire
owned by Electric Company, severely injuring P and setting her house on fire

In the same complaint, can she sue the Painting Company for:
o her personal injuries and
o for damage to her house?

YES RULE 18(a) may join independent/alternative claims

Hypo 2
In the same complaint, can Plaintiff sue Painting Company for negligence for her damages from
the painting accident and

(a)for breach of contract for painting the house badly? YES

(b)for breach of contract for painting another of her houses badly last year? YES
doesnt matter that it is unrelated efficiency

(c)for damages in an auto accident she had with a Painting employee last year? YES
factually unrelated, but allowed
counterclaim
Hypo 1
Plaintiff sues Painting Company for injuries from ladder accident.
Painting Company asserts a counterclaim against Plaintiff for the amount due under the painting
contract

Counterclaim is an addition to defenses

Hypo 2
Car crash case

Ds counterclaim (sue P for negligence)

o compulsory

Ds counterclaim (breach of K)
o permissive can be brought as a counterclaim, OR separate lawsuit
same transaction or occurrence
hypo 1
P injured his back in a Sears store
P was hospitalized for 18 days and then taken by ambulance to the airport, to be transferred to
another hospital
En route, the driver had an epileptic fit, the ambulance crashed, aggravating Ps back injury
P sued Sears and the City, which ran the ambulance service

Same transaction or occurrence

Because Sears could be liable for the aggravation of the injury caused by the
later accident as well as for the initial injury, the proof about his injuries would
be relevant to both claims.

Hypo 2
P injured in auto accident sues:
Other driver for injuries and
Ps insurance company for fraudulently inducing her too settle for very little.

Not same transaction or occurrence under logical relationship test

These are two distinct torts (negligence and bad faith claim) committed by
different defendants at different times, and they resulted in the invasion of
separate legal interests.

Crossclaim
Hypo 1
Plaintiff sues Painting Company and painter for injuries from ladder accident.
Painting company asserts a claim against painter for indemnification on Plaintiffs claim.

Indemnification

Hypo 2
Plaintiff sues Painting Company and painter for injuries from ladder accident.
Painter was also injured. May painter assert a claim against Painting Company for his injuries,
claiming the ladder they gave him was defective?

P (home owner) v. D1 (painting company) + D2 (painter)

Counterclaim: D2 v. D1 for negligence of company providing him with a faulty
ladder

Hypo 3
Plaintiff sues Painting Company and painter for injuries from ladder accident.
Painter was also injured, however Painter doesnt assert a crossclaim against Painting Company
for his injuries. May painter file a new suit against Painting Company claiming the ladder they
gave him was defective?

P (home owner) v. D1 (painting company) + D2 (painter)

Counterclaim: D2 v. D1 for negligence of company providing him with a faulty
ladder

YES pleading MAY state as a crossclaim compulsory counterclaims, not

compulsory crossclaims

Hypo 4
Plaintiff sues Painting Company and painter for injuries from ladder accident.

May painter assert a crossclaim against Painting Company for breach of contract for wages on a
previous job.
NO! It arises out of a different transaction or occurrence
Permissive counterclaims, however, can be brought even if unrelated
Permissive Party
Hypo 1
The plaintiff hired Blum, a general contractor, to construct a building. Blum subcontracted the
pouring of concrete support pillars to Caisson. Seaboard Surety issued a surety bond for the
proper performance of Caissons work. Pittsburgh Testing tested the pillars for strength as they
were poured.
The pillars failed, and Blum (and another plaintiff) sued Hands Dye & Finishing sued Caisson,
Seaboard, and Pittsburgh for damages arising from the failure of the pillars.

Claims relate to same transaction same construction and same question of why
it failed

Hypo 2
Four individuals were injured in railroad crossing accidents involving the defendant railroad
companys trains, at different times and in different cities.
The four individuals joined as co-plaintiffs to sue the railroad company.

Yes same transaction/occurrence - there is a general problem regarding

crossing rules
Multiple Claims and Multiple Parties
Plaintiff in ladder incident joins with neighbor (whose house was also damaged in the resulting
fire) to sue Painting Company.
[Rule 20(a)]
Common question of fact negligence
Same transaction
Neighbor can then also assert claim Painting Company for bad painting job last month.

[Rule 18(a)]

Not same transaction, but once there is a claim, any claim, even if unrelated
Neighbor couldnt join plaintiff if neighbor was only asserting bad painting job (i.e. no fire
damage).
[Fails Rule 20(a) thus cant use Rule 18(a)]
not same transaction/occurrence here
impleader
hypo 1

P sues D for negligence. D argues that if D is liable then 3rd Party is also at least partly liable
also. D can implead 3rd Party if state law allows for contribution among tortfeasors.

Contribution

hypo 2
P sues D General Contractor for negligence of Subcontractor. Contract between General
Contractor and Subcontractor provides that Subcontractor shall indemnify General Contractor for
liability due to Subcontractors negligence
Indemnity
Cant implead 3rd Party who would only be liable to P but not the D
Hypo 1
P sues D for negligence. D argues that if D is liable, then 3rd Party would have been also at least
partly liable.

However, state law does not allow for contribution among tortfeasors.

3rd party must be liable to D (contribution)

Hypo 2
P sues D Police Officer for civil rights violation. D claims that P has mistaken him for another
police officer.

D cannot implead that other police officer (because that other police officer would not
be liable to D even if D is found liable)

Cannot recover from someone who you would be mistaken for

Hypo 3
P sues D for negligence in car accident. D argues only that Ds insurance company is wrongly
refusing to pay D for Ds injuries in the accident.

D cannot implead the insurance company, because D is not trying to pass on Ds

liability to the insurance company.

Basis is not that Defendant needs to reimburse him for what he is liable to Plaintiff
for the D can only implead Insurance company for indemnification/contribution
for payment to the Plaintiff

Hypo can claims be asserted

Parker (MA) sues Douglass (VT) for negligence in causing an auto accident. Douglass asserts a
third-party claim against Tina (VT) seeking contribution on the negligence claim against him.
Parker then asserts a claim against Tina for negligence in the same accident that was the basis for
his claim against Douglass. Parker also asserts a claim against Tina seeking damages for an
unrelated breach of contract.

Can Douglass assert his claim against Tina?

o Yes standard contribution/indemnification

May Parker assert his claims against Tina?

o yes -any claim arising out of same transaction/occurrence (14(a)(3)) +
unrelated breach of K claim 18(a) even though unrelated, can be brought
since the other claim was proper
Hypo SMJ over each claim
Same facts as Hypo 7.3. Parker (MA) seeks $100,000 in damages in his negligence claim
against Douglass (VT), while Douglass seeks $50,000 in contribution from Tina (VT) on his
third-party claim. Parker seeks $100,000 in damages on his negligence claim against Tina and
$25,000 in damages on the breach of contract claim. The action is brought in Vermont federal
court.
Does the court have subject matter jurisdiction over each of the claims?

P v. D negligence in accident (100K)

o SMJ (DIVERISTY OF CITIZENSHIP AND OVER AMOUNT IN
CONTROVERSY)

D v. 3rd for contribution for negligence claim (50K)

o NO SMJ for contribution (NO DIVERSITY & NOT OVER AMOUNT IN
CONTROVERSY), BUT SUPPLEMENTAL BECAUSE COMMON
NUCLEUS OF OPERATIVE FACT

P v. 3rd for negligence in accident (100K) + breach of K (25K)

o SMJ 100K for negligence (DIVERISTY OF CITIZENSHIP AND OVER
AMOUNT IN CONTROVERSY AGGREGATION IS NOT NEEDED)
o SMJ FOR 25K for breach of K (A SINGLE PLAINTIFF CAN AGGREGATE
ALL CLAIMS AGAINST A SINGLE DEFENDANT)
o no aggregation if the original amount was not over amount in controversy
Intervention
Example 1 private interest (use of track)
Property owners sued a railroad to force it to close down certain storage tracks in St. Paul,
Minnesota.

property owner v. RR
Ford Motor Company moved to intervene as a defendant, alleging that those tracks
were essential to the operation of its auto assembly plant and the plant would have
to be closed down if the tracks were ordered closed.
Example 2 private interest (payment for rent)
Owner of a rent-controlled housing development applied to the city for an increase in rents.
Result was a court proceeding between the owner and the city.

owner of housing v. city

A tenant and several tenant organizations moved to intervene, wanting to challenge

the owners evidence and arguments in favor of a rent increase.

o parties do not want an increase in rent

Example 3 public intervention
Sierra Club brought suit against the United States Forest Service, challenging certain logging
practices implemented by the Service.

Sierra v. US Forest
The Texas Forestry Association and the Southern Timber Purchasers Council, two
groups representing the lumbering industry, sought to intervene to argue in support

of the Forest Service practices.

Sufficient interest
Hypo 1
A utility sued its gas supplier claiming that the supplier was overcharging under the contract.
Customers of the utility moved to intervene, claiming an interest in the case because their rates
would rise if the supplier won, leading to increased cost to the utility for gas.

Customers could not intervene as of right.

Although the customers might suffer an indirect economic impact from the case, they
had no direct interest in the contract at issue in the case.

Hypo 2
The Sierra Club sued the Secretary of Agriculture, claiming that clear-cutting in national forests
in Texas violated federal laws.
Two trade associations, representing most of the purchasers of timber from the Texas national
forests, sought to intervene as defendants, to argue that clear-cutting was authorized by federal
law.

The trade associations can intervene as of right.

The timber associations had legally protectable property interests in the dispute
because their members current and future contracts to harvest timber in the forests
would be affected.

Hypo 3
The U.S. sued Alisal Water Corporation, a water supply company. The U.S sought damages for
violation of environmental regulations and the appointment of a receiver to manage the company
and perhaps arrange for its sale.
Silverwood Estates, a housing development that had obtained a judgment against Alisal, sought
to intervene, claiming that a large award of damages to the United States or a judicial sale of
Alisal could impair its ability to collect its unrelated judgment.

Silverwood could not intervene as of right.

Silverwood does not have an interest in the underlying subject of the litigation
Alisals violation of environmental regulations. Its interest was in collecting its
unrelated judgment.

This interest is several degrees removed from the overriding public health and
environmental policies that are the backbone of this litigation.

VII. Discovery
Scope of discovery
Hypo 1
Michael sues Guns, Inc. for creating a defective producttheir JK-57 riflewhich backfired
and caused Michael serious injuries.
As part of his discovery efforts, Michael seeks to discover information relating to the design of
Guns, Inc.s JK-56 rifle, which was the predecessor to the JK-57 and was the basis on which the
JK-57 was designed. Michael wants to know whether there were any documented defects with
the previous model in order to figure out whether such defects were incorporated into the JK-57.

Does such discovery fall within the permissible scope of discovery under Rule
26(b)(1)?
o Yes; Wants design of previous gun to prove defective design basis of
57 was the 56
o If the 57 is based on 56 design, it is relevant to think the new gun would
have the same defect is it likely to make the fact more or less likely

Hypo 2
One day I was driving my car when suddenly the brakes failed. I was injured in the resulting
accident, and have sued the manufacturer.
After discovery began, I ask manufacturer to produce copies of the personal income tax returns
for the companys CEO.

Should I have obtained permission from the Court first?

o No it is irrelevant to the subject matter of the action

Hypo 3
One day I was driving my car when suddenly the brakes failed. I was injured in the resulting
accident, and have sued the manufacturer.
The defendant has not asserted a contributory or comparative negligence defense, but
nonetheless asks me during my deposition if I had been drinking at the time of the accident.

Should the defendant have obtained permission from the Court first?
o Relevant to subject matter but not relevant to the claim (whether the
brakes were defective)
o good cause must be shown

Attorney-Client
Hypo 1
Dwight goes to a happy hour and has a few beers. Driving himself home, he has a car accident
in which the other driver is injured. The next day, Dwight goes to the office of Melissa,
attorney at law. Melissa and Dwight have been friends since grade school. Dwight tells
Melissa that he thinks he is going to be sued because of the accident, and really needs help
because he was so drunk at the time of the wreck.
Is this statement privileged?

Yes because Dwight is a prospective client I need help (purpose of attaining

legal advice from an attorney)

Hypo 2
Assume Dwight made his admission to Melissa in the presence of several strangers.
Does this prevent the privilege from attaching?

Not privileged waived (presence of 3rd party)

Hypo 3
Assume Dwight made his admission to Melissa in the presence of Melissas paralegal.
Does this prevent the privilege from attaching?

Still privileged because the paralegal is an agent

Hypo 4
Assume that Dwights admission to Melissa that he had been drunk is subject to the attorneyclient privilege. Also assume that the injured driver does in fact sue Dwight, and that plaintiffs
counsel is now questioning Dwight as a witness at trial.
If the attorney asks Dwight whether he had been drinking before the accident, can Dwight
decline to answer on privilege grounds?

No because what is being protected is the communication between the client and
the attorney (if they asked if he told Melissa, then there would be a privilege)
Work Product anticipation of litigation
Hypo 1
P injured in car accident. P sues auto manufacturer, claiming he lost control of car because of
defect in autos design.
At his lawyers request, P prepares a chronology of events leading to his accident and labels it
WORK PRODUCTNOT FOR DISCLOSURE.

Hypo 2

The label is self-serving work product; clear anticipation of litigation (might sue
or plan to sue still part of the litigation process) to put facts together for the case

P injured in car accident. P sues auto manufacturer, claiming he lost control of car because of
defect in autos design.
The manufacturers design division routinely prepares a statistical summary of dealer repair
invoices to identify design defects for the purpose of correcting such defects in future models.

Not work-product: relevant to litigation, but not done in the purpose of

litigation, rather is for the purpose of correcting such defects in future models

Hypo 3
P injured in car accident. P sues insurance company for refusing to pay Ps claim.
An insurance claims adjuster had prepared a report deciding whether to pay out on a claim.

Not work product because it is an ordinary business purpose, it was not paid out in
anticipation of litigation

Hypo 4
P injured in car accident. P sues insurance company for refusing to pay Ps claim.
After the claim was denied, a second adjuster for the for the insurer prepared a report on the
claim.

Yes, prepared because of litigation not for business

The first report was to decide if they owned the claim, the second adjuster (after
the 1st is denied) is to do more investigation in anticipation of litigation

Hypo 5
P is injured when a train hits Ps car at a railroad crossing.
As per company policy, the locomotive engineer completed a report describing the accident.

Not anticipation of litigation

Litigation is possible, but the report is routine, ordinary business purpose to keep
track of the incident

The report would have been done anyways

Hypo 6
A publicly traded stock corporation is required to file an annual trading report with the Securities
and Exchange Commission. Its General Counsel prepares the report, which contains information
that may be relevant to shareholder litigation.

No because the corporation has to file this report anyways, even if it could be used
for litigation (it was not anticipated for litigation)
Overcoming work product
Hypo
P injured in car accident. P sues auto manufacturer claims he lost control of car because of
defect in autos design.

Suppose that in anticipation of litigation, the manufacture creates statistical summaries from
over 750,000 dealer repair invoices.
The Plaintiff is able to request the documents and do their own analysis
If it was a remedial business practice to log all the repairs, P may use the documents
Opinion work product
Hypo 1
Ds lawyer writes a memorandum quoting statements of witnesses and evaluating the strengths
and weaknesses of those witnesses.

Some courts have allowed redaction of everything but quotes from the witnesses
Some courts have not allowed any discovery because even the selection of the
quotes reflect the attorneys thoughts mental impressions and/or legal theories.

Hypo 2
Suit against an insurer for settling an insurance claim in bad faith. Plaintiff was allowed to
get a claims adjusters report that evaluated the insurers potential liability on the plaintiffs
claims.
The adjusters thought processes and opinions were directly at issue, necessary to establish bad
faith, and unavailable by any other means than discovery of the report.

Some courts say must show that mental impressions are the pivotal issue in the
current litigation and the need for the material is compelling.
Initial Disclosure
P sues D for injuries in a motor vehicle accident. The parties exchange required initial
disclosures under Fed. R. Civ. P. 26(a)(1).
Ds disclosure of witnesses under Rule 26(a)(1)(A) does not include W, who was present at the
time of the accident. W had told Ds lawyer that D ran a red light before he hit P.

Should D have included W in Ds initial disclosure?

o No no obligation to turn over disclosure that would hurt you; this only
supports the other partys claim
Interrogatories
Example: 5. Please state all facts on which you base your contention that Defendant was
negligent.

Purpose is to help identify strengths and weaknesses of claims and defenses, and
areas for additional discovery
VIII. Disposition w/out Trial
Summary judgment
Hypo 1

Suppose there is an auto accident at an intersection. The plaintifs theory is that the defendant
ran the red light. Would summary judgment be appropriate in the following case?
Defendant moves for summary judgment and submits the affidavit of a witness who says the
light was green. Plaintiff responds by pointing to her complaint which alleges the light was red.

D should win on summary judgment the complaint is not evidence; if she

submitted an affidavit, there would not be summary judgment

Hypo 2
Defendant moves for summary judgment and submits the affidavit of a witness who says the
light was green. Plaintiff responds with an affidavit of a witness who says the light was red.

No summary judgment, for jury to decide

General issue of material fact

Hypo 3
Defendant moves for summary judgment and submits the affidavit of 15 witnesses who says the
light was green. Plaintiff responds with an affidavit of a witness who says the light was red.

No summary judgment

Hypo 4
Defendant moves for summary judgment and submits the affidavit of one witness who said the
light was green. Plaintiff responds with the affidavit of a witness who says she did not see the
light, but she saw that cars in the other line of traffic that were going in the same direction as
defendants car (and were controlled by the same traffic light) had stopped.

No summary judgment
Based on circumstantial didnt see the color of the light, but saw that everyone
at the light was stopped can infer that the light was red

Hypo 5
Defendant moves for summary judgment and submits a videotape taken by a bystander which
shows that the light was green. Plaintiff responds with the affidavit of a witness who says the
light was red.

No summary judgment

The video could be impeached (i.e. wrong date, wrong lighting, wrong angle,
could be edited)

Fact-finder needed

Hypo 6
Plaintiff moves for summary judgment and submits the affidavit of a witness who says the light
was red. Defendant offers no evidence in response.

No summary judgment

Plaintiff has burden of proof and the jury might not believe the witness if this
happens, then there is no evidence on either side and jury would find for
defendant

If Defendant had witness and P didnt have any evidence, then there would be
Summary Judgment for D because P did not prove negligence

IX. Trial
Judgment as a matter of law
Example
P sues D, alleging in the complaint that D negligently drove through red light, colliding with Ps
car
At trial, P testifies that D hit Ps car, and that P suffered injuries.
P offers no evidence regarding color of the light
At end of Ps presentation of its case, D files motion for judgment as matter of law. Why?

P has burden of production, i.e., burden of producing evidence from which a

reasonable jury could find that she has proven every element of her case.

P has not offered any evidence concerning Ds negligence, so she has not satisfied
this burden and thus cannot win the case

Hypo 1
Penny sues Desmond, alleging in the complaint that Desmond negligently drove through red
light, colliding with Pennys car.
Imagine that Penny presents her case but fails to offer evidence that Desmond ran a red light or
was otherwise negligent. Immediately after Penny rests her case, Desmonds lawyer leaps from
her chair and says, Your honor, we move for judgment as a matter of law under Rule 50(a).
Should the motion be granted? 50(a)

Oral motion is okay, but it should not be granted because Penny didnt present
any evidence that the light was red

must specify judgment sought and the law and facts that entitle the movant to
judgment

Hypo 2
At the close of Pennys case, Desmond makes a Rule 50(a) motion for judgment as a matter of
law, arguing that Penny failed to offer any evidence regarding the color of the light when
Desmond entered the intersection. The judge denies the motion, and Desmond subsequently
presents his case.
After Desmond offers his evidence, but before the case is submitted to the jury, may
Desmond now make a second Rule 50(a) motion?

Yes, D is allowed to make as many 50(a) motions before the closing

May make his motion stronger

Hypo 3
Imagine that Penny offers her own testimony about the accident, but she fails to offer any
evidence that Desmond was at fault. Her pretrial witness list reveals that she does not intend to
call any other witnesses regarding what happened at the time of the accident. Rather, Penny
intends to have several doctors testify about the extent of her injuries. After Penny has finished
presenting her evidence on liability, but before she has offered the doctors testimony, Desmond
moves for judgment as a matter of law. Can the judge grant Desmonds motion at this stage
of the case?

Yes because Penny had been fully heard on the issue of Desmonds negligence

Hypo 4
Suppose that the case is tried, but Desmond never makes a Rule 50(a) motion for judgment as a
matter of law. The jury then returns a verdict for Penny. Can Desmond make a motion for
judgment as a matter of law under Rule 50(b)?

No, it is a renewed motion for judgment as a matter of law

If the JMOL has never been filed before the case went to the jury, it cannot be
made after

Hypo 5
Assume that Desmond makes a Rule 50(a) motion at the close of all of the evidence, arguing that
Penny failed to offer any evidence that Desmonds traffic light was red. The judge denies the
motion, and the jury returns a verdict for Penny for $50,000. Desmond renews his motion under
Rule 50(b), arguing that Penny not only failed to offer any evidence that the light was red, but
she also neglected to offer any evidence of her damages. Desmond moves for judgment as a
matter of law, both with regard to the jurys determination of liability and the damages award.
Should the court consider Desmonds renewed motion on the issue of damages?

50(a) motion was just on negligence

50(b) motion was on negligence and damages
if damages were not argued in a 50(a) motion, then it cannot be made in a 50(b)
motion

New trial
Hypo
P sues D for negligence when Ds car brushed against P while he was crossing the street in a
crosswalk. The evidence at trial was that P staggered back from the brush-by, but he showed no
visible injury at the time and did not subsequently go to the doctor. He lost no time from work.
The only testimony about his injuries was his own, that my leg throbbed. After trial, the jury
returns a verdict of $1.6 million in compensatory damages.

Why no judgment as matter of law?

Substantive excessive damages
Cant conclude that a reasonable jury would find that damages were that high; not a
complaint about the law.

X. Judgment: Preclusion Doctrine

Claim preclusion
Hypo 1
Paul was in an accident while driving a co-worker, Pam, home from work. Paul sued Don (the
driver of the other car), alleging that Don negligently caused the accident. The jury concludes
that Don was not negligent, and the court enters a judgment in favor of Don. Subsequently, Pam
sues Don for her own injuries from the accident. Don raises the affirmative defense of claim
preclusion and moves for summary judgment on these grounds. How should the court rule on
the motion?

No, the motion of affirmative defense should not be granted; Pam is not in
privity with Paul

Hypo 2
Pritchard sues Danielle for causing a car accident. The case goes to trial, and Danielle is found
not to be negligent. Subsequently, Danielle sues Pritchard for her own injuries arising from the
same car accident. Pritchards claim has been fully litigated, and the court has issued a final
judgment on the merits. Pritchard files motion for claim preclusion. How should the court rule
on the motion?

No grant for claim preclusion because it is a different claim for HER injuries,
even though it is during the same accident

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