Civ
Pro 2 Notes
Judicial management of litigation
All
of the Rules provide ways in which judges can manage litigation. Should judges be a neutral arbitrator, or
should the judge be more active? How can
judges push their docket along and actively manage their cases? Rules 8, 9, 12 and 56 are tools the court has
to manage cases. The discovery rules, 26
and 37 are more tools. Rule 16 is the
pretrial conference rule. The judge can
bring the parties together before trial for whatever they want, basically. There are very specific things that the court
can do that are listed in 16(c). There
are 16 different things listed that can be done! The intention of this Rule was to have the courts
use this Rule to get rid of cases that they perceive have less merit. If you don’t comply, you get sanctions under
Rule 16(f), which are exactly the sanctions you can get under Rule 37(b)(2)(B), (C) and (D).
You can refuse the right to go forward with evidence to support specific
claims and defenses, you can strike pleadings or dismiss the action, or you can
hold them in contempt for failure to comply with the pretrial order. The bottom line is that there are a lot of
things the district court can do, and some pretty heavy sanctions it can use if
you fail to do what it wants you to do.
Sanders v.
Union Pacific Railroad
Sanders
got hurt. Sanders filed suit under FELA
against the railroad. There’s a pretrial
conference. Usually, these pretrial
conferences will set deadlines. Judges
aren’t happy when you miss the deadlines of their pretrial orders. They were even warned about the sanctions
within the actual order itself! The plaintiff
did lots of bad stuff! The plaintiff
bungled lots of deadlines! They show up
at the conference, and the law clerk is there instead of the judge. The plaintiff isn’t ready! He has excuses. He proposes that the case be dismissed without
prejudice. But the court instead dismisses
the case with prejudice! Is this an appropriate sanction? The panel of the Ninth Circuit says that it’s
not an abuse of discretion, on a 2-1
split. But then when it goes en banc (a
panel of 11), the court reverses.
McKey v. Fairbairn
It’s
a slip ‘n’ fall case! There’s a roof
that leaks. A tenant mops it up once,
twice, then falls!
The tenant sues the landlord for breach of the lease. The plaintiff agrees at the pretrial
conference that it’s only about the
lease. But later on, the plaintiff wants
to amend the pleadings to bring in a charge under a violation of statutory/regulatory
duty. The court says: “Too late!” The court issues a directed verdict for the landlord! The appellate court found no abuse of
discretion on the part of this judge.
But think about this: the judge knew
that the plaintiff would probably want to amend the pleadings down the road,
but then didn’t allow the plaintiff to do so.
What if the judge had allowed
the amendment? Would the appellate court
have reversed as abuse of discretion?
Wouldn’t it be unfair to the defense?
Would it constitute unfair surprise at trial? But shouldn’t a landlord be responsible for
knowing the regulations that govern his industry?
What
would the landlord have done differently during the course of litigation if he
had known that the D.C. regulation could be an issue? This is before a significant amendment to
Rule 16. The judge here was very
traditional: if you come with a theory, you can go with it, but you’re going to
find out soon that you lose.