Civ Pro 2 Notes 12/2/04


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 donít 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.Thereís a pretrial conference.Usually, these pretrial conferences will set deadlines.Judges arenít 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 isnít 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 itís 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


Itís a slip Ďní fall case!Thereís 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 itís 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: ďToo late!ĒThe 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 didnít allow the plaintiff to do so.What if the judge had allowed the amendment?Would the appellate court have reversed as abuse of discretion?Wouldnít it be unfair to the defense?Would it constitute unfair surprise at trial?But shouldnít 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 youíre going to find out soon that you lose.


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