The relationship between fairness, finality, and flexibilty

Early in litigation (pleadings stage: Rules 12 & 15)


Early in litigation, courts tend to be flexible, favoring amendment over finality. Non-merits dismissals (such as lack of PJ or SMJ) typically do not bar refiling. Even when dismissing on the merits under Rule 12(b)(6), courts generally dismiss without prejudice or give leave to amend (at least for a first 12(b)(6) dismissal, unless amendment would be futile). Leave to amend is generally given freely, when justice requires. So barring futility, flexibility tends to be more important at this stage than finality.

Pre-trial/summary judgment (Rule 56 stage)

At the pre-trial/summary judgment stage, courts are more in a balance mode. Generally, summary judgment is not likely to be granted unless both sides have had a fair opportunity for discovery. If a non-moving party’s Rule 56(d) affidavit shows that the non-movant cannot yet present facts essential to its opposition to summary judgment, then the court has the ability to defer the motion or to allow more time for discovery or affidavits. So flexibility is still important. But if the movant shows there is no genuine dispute regarding the material facts and the moving party would be entitled to summary judgment under the prevailing law, then the court “shall” grant summary judgment. So if there is no need for a trial, then finality is given precedence.

Trial and soon after trial (Rules 50 and 59)


During and shortly after trial, finality starts to become an important consideration. The court can “take away” the case from the jury with a Rule 50 JMOL or RJMOL order. The court can also order a new trial under Rule 59. This allows flexibility at the trial/near-post-trial stage. But the standards for JMOL/RJMOL and new trial are high standards, and a court cannot grant either of those motions simply because it disagrees with the jury. Thus, finality is now outweighing flexiblity.

Further after trial (Rule 60)

At the Rule 60 stage, it is now too late to seek relief under Rules 50 or 59. The court still has some ability to give relief to a movant from a judgment, but now the bases are limited and the timing narrow. Rule 60 lists a few bases for relief from judgment, such as newly discovered evidence that could not have been discovered with reasonable diligence. But no basis for relief can be asserted under Rule 60 unless it is asserted within a “reasonable time,” and some of the bases are cut off after one year. So the court has some flexiblility, but finality is now starting to harden like cement.

Other adjudications after final judgment

What effect does a judgment have on other adjudications? Quite a lot. Under the doctrines of claim exclusion (res judicata) and issue preclusion (collateral estoppel), a final judgment may be asserted in other adjudications for preclusive effect. For example, suppose P sues D in state X for personal injuries in a car wreck. The jury finds in D’s favor. Then P decides to sue D again, in state Y, for the same claim. At this stage, finality will almost certainly demand that the enforcing court in state Y give preclusive effect to the judgment from the rendering court in state X. There are a number of elements that have to be met for claim or issue preclusion, and there are exceptions to those doctrines as well. So even at this late stage, there is some flexiblity. However, the litigants have now had their day in court, and finality is a much more important considerations. Thus, if the elements for preclusion are met, and if no exceptions apply, then finality should require that any covered claims or issues will be precluded.

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Posted April 20, 2015