CIVIL PROCEDURE: RULES

I. FEDERAL RULES OF CIVIL PROCEDURE - OVERVIEW A. Scope and Purpose B. One Form of Action C. Commencing an Action II. PLEADINGS A. Overview 1. Pleadings Allowed 2. Claim for Relief 3. Direct and Concise; Alternate/Inconsistent Allegations 4. Form of the Pleadings 5. Forms 6. Pleading Special Matters (Heightened Requirements) B. Responding to the Complaint 1. Time Allowed for Responsive Pleading 2. Motions 3. Waiver 4. Answer C. Amending the Pleadings 1. Circumstances 2. Amendments Before Trial 3. Amendments During and After Trial 4. Relation Back D. Ensuring Truthful Allegations 1. Signature 2. Representations to the Court 3. Inapplicability to Discovery 4. Sanctions III. DISCOVERY A. Scope of Discovery 1. Overview 2. Relevance 3. Admissibility B. Limitations on Discovery C. Exemptions from Discovery 1. Attorney-Client Privilege 2. Work Product Doctrine 3. Experts D. Discovery Sequence 1. Conference of the Parties 2. Sequence and Timing of Discovery 3. Duty to Supplement E. Mandatory Disclosures 1. Overview 2. Disclosure vs. Discovery 3. Initial Disclosures 4. Expert Disclosures 5. Pretrial Disclosures F. Discovery Devices 1. Requests for Admission 2. Document Requests 3. Interrogatories 4. Depositions 5. Medical Examinations 6. Subpoenas G. Enforcing Discovery Rules 1. Motion to Compel 2. Motion for Sanctions 3. Rule 26 Sanctions

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I. FEDERAL RULES OF CIVIL PROCEDURE - OVERVIEW A. Scope and Purpose R. 1 B. One Form of Action R. 2 C. Commencing an Action R. 3 II. PLEADINGS A. Overview 1. Pleadings Allowed R. 7(a) 2. Claim for Relief R. 8(a) 3. Direct and Concise; Alternate/Inconsistent Allegations R. 8(d) 4. Form of the Pleadings R. 10 a. Caption; Name of the Parties R. 10(a) b. Paragraphs; Separate Statements R. 10(b) c. Adoption by Reference; Exhibits R. 10(c) 5. Forms R. 84 6. Pleading Special Matters (Heightened Requirements) R. 9 a. Capacity/Authority; Legal Existence R. 9(a) b. Fraud/Mistake; Conditions of Mind R. 9(b) c. Conditions Precedent R. 9(c) d. Special Damages R. 9(g) B. Responding to the Complaint 1. Time Allowed for Responsive Pleading R. 12(a) 2. Motions a. Motion to Dismiss R. 12(b) b. Motion for Judgment on the Pleadings R. 12(c) c. Motion for More Definitive Statement R. 12(e) d. Motion to Strike R. 12(f) 3. Waiver a. Joining Motions R. 12(g) b. Waiving and Preserving a Defense R. 12(h) 4. Answer a. Types of Answers (Pleadings Allowed) R. 7(a) b. Defenses; Admissions and Denials R. 8(b) c. Affirmative Defenses R. 8(c) C. Amending the Pleadings R. 15 1. Circumstances 2. Amendments Before Trial R. 15(a) 3. Amendments During and After Trial R. 15(b) 4. Relation Back R. 15(c) 5. Supplemental Pleadings R. 15(d) D. Ensuring Truthful Allegations R. 11 1. Signature R. 11(a) 2. Representations to the Court R. 11(b) 3. Inapplicability to Discovery R. 11(d)

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4. Sanctions R. 11(c) III. DISCOVERY A. Mandatory Disclosures R. 26(a) 1. Overview 2. Disclosure vs. Discovery 3. Initial Disclosures 4. Expert Disclosures 5. Pretrial Disclosures B. Scope of Discovery R. 26(b) 1. Overview 2. Relevance 3. Admissibility C. Limitations on Discovery R. 26(b) 1. Overview 2. On Frequency or Extent 3. By Court Order 4. Protective Order R. 26(c) D. Exemptions from Discovery R. 26(b) 1. Attorney-Client Privilege 2. Work Product Doctrine 3. Experts R. 26(a) and (b) E. Discovery Sequence 1. Sequence and Timing of Discovery R. 26(d) 2. Conference of the Parties R. 26(f) 3. Duty to Supplement R. 26(e) F. Discovery Devices 1. Requests for Admissions R. 36 2. Requests for Documents R. 34 3. Interrogatories R. 33 4. Depositions R. 30 5. Medical Examinations R. 35 6. Subpoenas R. 45 G. Enforcing Discovery Rules 1. Motion to Compel R. 37(a) 2. Motion for Sanctions R. 37(b) 3. Rule 26 Sanctions

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I. FEDERAL RULES OF CIVIL PROCEDURE - OVERVIEW A. R. 1 Scope and Purpose 1. Govern all civil actions and proceedings in the U.S. district court, except as stated in R 81. B. R. 2 One Form of Action 1. There is one form of action the civil action. C. R. 3 Commencing an Action 1. A civil action is commenced by filing a complaint with the court. II. PLEADINGS A. Overview 1. R. 7(a) Pleadings Allowed a. Only these PLEADINGS are ALLOWED: i. Complaint ii. Answer to a Complaint iii. Answer to a Counterclaim iv. Answer to a Cross-Claim v. Third-Party Complaint vi. Third-Party Answer vii. Reply to an Answer (if the court orders) 2. R. 8(a) Claim for Relief a. A short and plain statement of the grounds for the courts jurisdiction, b. A short and plain statement of the claim showing that the pleader in entitled to relief, c. A demand for the relief sought. 3. R. 8(d) Direct and Concise; Alternate/Inconsistent Allegations a. Each allegations must be direct and concise b. Allowed alternate and inconsistent allegations (Ex. intentional and/or negligent)
Requirements of Rule 8(a): If a claim does NOT meet requirements of Rule 8(a), it will be subject to dismissal under Rule 12(b). Factually Sufficient enough facts to allege a plausible claim.

Legally Sufficient the prima facie elements of a claim the law recognizes.

NOTICE PLEADING A short and plain statement to give fair notice of what the claim is and grounds upon which it rests. Conley v. Gibson PLAUSIBILITY PLEADING Enough facts to state a claim to relief that is plausible on its face. Bell Atlantic v. Twombly Iqbal (2009): 1. Identify conclusory legal allegations (the court should reject these allegations). 2. Check to see if the remaining factual allegations plausibly suggest entitlement to relief? Twiqbal: Pleader must allege sufficient facts to move beyond level of speculation to nudge their claims across the line from conceivable plausible; it need NOT be likely or probable.

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4. R. 10 Form of the Pleadings a. R. 10(a) Caption; Name of Parties i. Every pleading requires a CAPTION with: Name of the Court Title of the Action File Number Type of Pleading R. 7(a) Name of the Parties Complaint name of all parties Other Pleadings name of first party on each side b. R. 10(b) Paragraphs; Separate Statements i. A party must state each claim or defense in a separate, numbered paragraph Limited to a single set of circumstances In later pleadings, may be referred to by paragraph # c. R. 10(c) Adoption by Reference; Exhibits i. Statements in a pleading may be adopted by reference in: the same pleading, different pleadings, OR motions. ii. A copy of any written exhibit is part of the pleadings for all purposes. 5. R. 84 Forms a. The forms in the Appendix suffice under these Rules and illustrate the simplicity and brevity that these Rules contemplate. 6. R. 9 - Pleading Special Matters (Heightened Requirements) a. R. 9(a) Capacity/Authority; Legal Existence i. A party need NOT ALLEGE: A partys capacity to sue or be sued, An authority to sue or be sued as a representative, The legal existence of an organized association that is made a party. ii. DENIAL must allege with particularity b. R. 9(b) Fraud or Mistake; Conditions of Mind i. FRAUD or MISTAKE Must place D on notice of precise misconduct, and Each element must be alleged with particularity. Who, What, When, Where, and How ii. MALICE, INTENT, KNOWLEDGE Conditions of a persons mind may be alleged generally. c. R. 9(c) Conditions Precedent i. When pleading, may allege generally ii. When responding, must respond w/ particularity d. R. 9(g) Special Damages i. Must allege w/ particularity damages direct and natural result of Ds conduct To alert the parties/court of unforeseeable damages Ex. emotional distress, attorneys fees, punitive damages

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B. RESPONDING TO THE COMPLAINT 1. R. 12(a) Time Allowed for a Responsive Pleading a. A party must answer/respond: i. Within 21 days after being served with the complaint, OR ii. If it has waived service under R. 4(d), w/i 60 days after request for waiver sent 90 days if sent outside of U.S. 2. MOTIONS a. R. 12(b) Motion to Dismiss i. Who: any party raising defense to a claim. ii. What defenses:
Lack of subject matter jurisdiction Lack of personal jurisdiction Improper venue Insufficient process Insufficient service of process Failure to state a claim upon which relief can be granted Failure to join a party under R. 19

R. 12(b)(1)-(7)

When: Before filing the responsive pleading (if one is required) Within 21 days after service of the claim 12(a) If no responsive pleading required defense may be raised at trial iv. Granted: the claim is dismissed with or without prejudice v. Denied: must answer within 14 days b. R. 12(c) Motion for Judgment of the Pleadings i. Who: any party ii. When: after pleadings are closed but within such time as to not delay the trial iii. What happens: the court looks to the evidence alone to make a judgment iv. If evidence is added: the court treats it as a R. 12(d) summary judgment motion same rule applied to evidence added to a R. 12(b)(6) motion. c. R. 12(e) Motion for a More Definitive Statement i. Why: a pleading (to which a responsive pleading is allowed) but which is so vague and ambiguous that a party cannot reasonably prepare a response. ii. When: before the responsive pleading is filed iii. What: the motion must point of defects and state details desired iv. Granted: the P has 14 days to fix pleading If adequate: the D has 14 days to file an answer If not corrected: the court may strike the pleading or issue another order d. R. 12(f) Motion to Strike i. Who: either party OR the court ii. When: before responding or if a response is not allowed, within 21 days iii. What may be stricken? Insufficient defense (factual or legal), or Any redundant, immaterial, or scandalous matter

iii.

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iv.

Can the P strike matters in an answer? YES, used to strike an insufficient defense [since P cannot use R. 12(b)]

3. WAIVER a. R. 12(g) Joining Motions i. Allows a party who raises a R. 12 defense or objection by pre-answer motion to join all R. 12 motions available to that party only get ONE pre-answer motion. ii. If the party FAILS to plead a defense or objection in the pre-answer motion, that party waives the defense (cannot make another R. 12 motion) Exceptions:
Motions after the pleadings Failure to state a claim upon which relief can be granted To join a party under R. 19(b) To state a legal defense to a claim Lack of subject matter jurisdiction issues

R. 12(h)(2)-(3)

b. R. 12(h) Waiving and Preserving a Defense i. Requirements: Step 1 find the TYPE of DEFENSE the D wants to raise, Step 2 determine if WAIVED by Ds actions thus far, Step 3 if NOT WAIVED, how can the D raise this defense? (pre-answer motion, in the answer, post-answer motion) ii. If R. 12(b)(2)-(5) [ pj, improper venue, insufficient process or service of process] WAIVED if omitted from: a pre-answer motion, a R. 12 motion a responsive pleading, or an amendment allowed as a matter of course under R. 15(a) iii. NOT WAIVED if defense is (1) failure to state a claim, (2) failure to join the parties, or (3) failure to state a legal defense. May be raised in: Any pleading allowed by R. 7(a) A R. 12(c) motion Motion for Judgment of the Pleadings At trial iv. If the court determines at any time that it lacks subject matter jurisdiction, the court MUST dismiss the action (even after judgment). 4. ANSWER a. R. 7(a) Types of Answers b. Form for Answers FORM 30 c. R. 8(b) Defenses; Admissions and Denials i. The party must state in short and plain terms defenses to each claim asserted. ii. Responding to the allegations, the options are: Admit Deny (general or specific) State lack of information or knowledge sufficient to form a belief acts as a denial iii. FAILURE to respond to any allegations to which a responsive pleading is required: Ex. complaint, counterclaim RESULT: deemed to have been admitted Exception: amount of damages

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any allegation to which a responsive pleading is NOT required: Ex. answer RESULT: deemed to have been denied d. R. 8(c) Affirmative Defenses i. The party must state in short and plain terms defenses to each claim asserted. ii. If FAIL to assert in the responsive pleading waived. C. AMENDING THE PLEADINGS 1. Two main circumstances that would lead a party to alter or amend their pleading: a. the need to remedy an inadvertent omission or mistake, or b. the desire to add, alter, or remove claims or defenses in light of new information. 2. R. 15(a) Amendments BEFORE Trial a. A party may amend the pleading once as a matter of course within: i. 21 days after serving it, OR ii. If the pleading is one in which a responsive pleading is required: 21 days after service of the responsive pleading, OR whichever is earlier 21 days after service of a motion under R. 12(b),(e) or (f). b. After this freebie a party may only amend its pleading with: i. the opposing partys written consent, OR ii. leave of the court (leave shall be freely given when justice so requires) c. Response to an amended pleading must be made within: i. the original 21-day response period, OR whichever is later ii. 14 days after service of the amendment d. The Foman Factors basis of whether a court shall grant/deny a leave to amend. Bad faith Prejudice to opposing party Undue delay Dilatory motive Repeated failure to cure Futility of the amendment 3. R. 15(b) Amendments DURING and AFTER Trial a. At trial, if a party objects that evidence is NOT within the issues raised in the pleadings, the court may permit the pleadings to be amended if: i. such an amendment would promote justice, AND ii. the opposing party cannot show prejudice. The court may grant a continuance to allow the objecting party to meet this requirement. b. An issue not raised by the pleadings is tried by the parties express or implied consent, it must be treated as if raised in the pleadings. i. Parties may make a Motion to Amend the Pleadings at any time (even after trial) Failure to amend does not affect the result of the trial of that issue. 4. R. 15(c) Relation Back a. Assuming that an amended pleading will be permitted under R. 15(a) or (b), relation back governs the circumstances in which the amendment will be treated as though it was filed on the date of the original pleadings. i. Relevant to the applicability of the statute of limitations. b. An amendment to a pleading relates back to the date of the original pleading when: i. the statute of limitations governing the cause of action permits relation back, OR

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the amendment arose out of the conduct, transaction, or occurrence of original pleading, OR iii. if the amendment changes the party: the amendment arose out of conduct, transaction, or occurrence, AND under R. 4(m), the party to be brought in is served within 120 days after the complaint is filed, AND that party will not be prejudiced and knew or should have known the action would be brought against it. 5. R. 15(d) Supplemental Pleadings a. By motion, pleadings may be amended for events occurring after service of the original pleadings if: i. reasonable notice is given, AND ii. the terms are just. D. ENSURING TRUTHFUL ALLEGATIONS 1. R. 11(a) Signature a. Every pleading, written motion, and other paper must be signed by an attorney OR party if the party is unrepresented. And must include the signers: i. Address ii. Email address iii. Telephone number b. The court may strike an unsigned document unless promptly corrected. 2. R. 11(b) Representations to the Court a. By presenting a document to the court (by signing, filing, submitting, or later advocating) an attorney or unrepresented party certifies that, to the best of that persons knowledge, after a pre-filing inquiry reasonable under the circumstances that: i. No Improper Use to harass, delay, or increase cost of litigation ii. Soundness of Legal Arguments Warranted by existing law, OR a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law iii. Basis of Factual Allegations Have evidentiary support or will have evidentiary support after a period of discovery. iv. Basis for Denials Warranted on the evidence or are reasonably based on belief or a lack of information. b. Rule for ORAL Arguments Statement in a Document + Presented i. Normally, oral arguments are NOT certification. 3. Rule 11(d) Inapplicability to Discovery a. Rule 11 does not apply to disclosure and discovery documents.
What constitutes a reasonable pre-filing inquiry? 1. Sufficient time for investigations? 2. Extant the attorney had to rely on the client for information? 3. Was the case accepted from another attorney? 4. Complexity of the facts? 5. Would discovery have been beneficial to the underlying facts?

ii.

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4. SANCTIONS a. R. 11(c) Sanctions i. After notice and a reasonable time to respond, the court may impose an appropriate sanction for violation of R. 11(b) on a Party, Attorney, or Law Firm ii. Motion for Sanctions Requirements: Must be made separately from any other motion, AND Must describe the specific conduct that violates R. 11(b). The motion must be served under R. 5 unless the violation is withdrawn or corrected w/i 21 days after service or reasonable time set by the court. Safe Harbor Period Rule 5 requires that all papers in an action be served on all parties and filed with the court. The court may award the prevailing party the reasonable expenses including attorneys fees incurred for the motion. On Courts Initiative: if the court initiates the sanctions (Order to Show Cause) the pleader must specifically show that it is not in violation of R. 11 Nature of the Sanction a sanction must be limited to what will suffice to deter repetition of the comparable conduct by others similarly situated. A sanction may include: a non-monetary directive an order to pay a penalty to the court payment of an opposing partys attorney fees and expenses Limitations of MONETARY Sanctions The court may NOT impose a monetary sanction: Against a represented party in violation of R. 11(b)(2), OR Soundness of Legal Argument Certification On its own, unless it issued an Order to Show Cause

iii. iv.

v.

III. DISCOVERY A. MANDATORY DISCLOSURES 1. R. 26(a) requires the parties to make three sets of disclosures: 2. Mandatory Disclosures vs. Discovery Devices a. Mandatory Disclosures a party is required to disclose certain information at the onset of the lawsuit, w/o awaiting a specific request for the information. b. Discovery Devices devices a party may use to seek information. 3. R. 26(a) - Initial Disclosures a. When must they be made? i. Within 14 days after the conference under R. 26(f). b. Who ALL parties c. What must be disclosed?

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Names, and if known, addresses and telephone # of people likely to have discoverable information as well as the subject of that information IF they are to be used to support a claim or defense. ii. Documents/ ESI/ Tangible Things the disclosing party has in its possession, custody, or control IF used to support a claim or defense. iii. Computation of Damages iv. Insurance Agreement d. How are they made? i. Must be in writing, signed, and served. 4. R. 26(a) Expert Disclosures a. Written reports of all experts/witnesses expected to use at trial. b. Must be made no later than 90 days before the date set for trial. 5. R. 26(a) Pretrial Disclosures a. For any evidence to be used at trial, a party shall disclose and promptly file w/ the court: i. Name, address, and telephone # of all witnesses (and subject matter) to be used at trial ii. Designation of witnesses to be used at trial. iii. Identification of all documents, exhibits, and summaries of evidence. b. Must be made at least 30 days before trial. B. R. 26(b) SCOPE of Discovery 1. What information is discoverable? a. Relevant to any partys claim or defense, b. Admissible as evidence or appears reasonably calculated to lead to the discovery of admissible evidence, AND c. NOT privileged. 2. RELEVANCE a. Must be relevant to a partys claim or defense i. The existence and location of any documents or other tangible things ii. The location and identity of persons who know of any discoverable matter b. Old Rule: any information relevant to the subject matter involved in the pending action. c. CURRENT RULE: any matter relevant to a claim or defense asserted in the pleadings. Exception on a showing of good cause the court may expand discovery to include matters relevant to the subject matter involved in the action. 3. ADMISSIBILITY a. To be discoverable, information need not be admissible. (F.R.E. admissibility) i. Relevant, inadmissible evidence is discoverable if it is reasonably calculated to lead to the discovery of admissible evidence. C. R. 26(b) LIMITATIONS on Discovery 1. Limitations on discovery may be ordered sua sponte or on motion by a party. 2. The court must order limits on the FREQUENCY or EXTENT of discovery if: a. the discovery sought is unreasonably cumulative, burdensome, or expensive, OR b. the party seeking discovery has had ample opportunity to obtain the information, OR c. the burden/expense outweighs the likely benefit. i. Needs of the case ii. $ in controversy iii. Parties resources Applies to ESI iv. Importance of issues at stake

i.

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v. Centrality of discovery to issues 3. By Court Order: The court may alter or limit: a. The number of depositions and interrogatories or length of depositions under R. 30, OR b. The number of requests under R. 36. 4. R. 26(c) Protective Orders a. Concept person from whom discovery is sought seeks protection from the court to prevent or limit discovery. b. Grounds the court may for good cause issue an order. i. to protect a party or person from ANNOYANCE, EMBARRASMENT, OPPRESSION or UNDUE BURDEN AND EXPENSE. c. Process the parties must confer, if still not resolved, a motion is filed.

D. EXEMPTIONS from Discovery 1. Attorney-Client Privilege [R. 26(b)] a. When does the privilege apply? i. The party asserting the privilege is or sought to become a client. ii. The person to whom the communication was made: is a member of the bar of a court or is his/her subordinate, AND in connection w/ the communication is acting as a lawyer. OR the client reasonably believes the person is authorized to practice law iii. The communication relates to a fact of which the attorney was informed by his client, without the presence of others, for the purpose of securing primarily either, an opinion on law, OR legal services, OR assistance in a legal proceeding, AND is NOT for the purpose of committing a crime or tort. iv. The privilege has been claimed and NOT waived by the client. b. What does the privilege protect? i. The privilege protects communications and NOT information of facts. The client must be communicating with the attorney for the purposes of securing legal advice, and does not hold if it has been waived. c. If the client is a CORPORATION: i. The privilege applies throughout the corporation if: it is internal employee communications, for the purpose of supplying the corporate counsel with a basis for legal advice the matters within the scope of the employees duties, AND were treated as confidential within the corporation. d. How do you ASSERT the privilege? i. To assert the privilege, you must: Expressly make the claim, AND Describe the nature of the documents, communications, or tangible things not produced or disclosed to enable the other parties to assess the applicability of the privilege. 2. Work Product Privilege [R. 26(b)]

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a. What is privileged? i. Documents and tangible things, ii. Prepared in anticipation of litigation, (because of or primarily to assist in) iii. By of for another party or its representative. b. Two-Step Process to ASSERT the Privilege: i. Does the work product privilege apply? ii. If so, has the other party shown substantial need and undue hardship to overcome the privilege? c. To overcome the privilege: i. The information is otherwise discoverable under R. 26, ii. The party has shown substantial need and undue hardship, AND

3. EXPERTS a. Expert a witness retained or specifically employed to provide testimony in a case. i. Testify at trial or in depositions as a witness, OR ii. Serve as part of the partys litigation team preparation of the case, development of legal strategies b. Types of Experts: i. Retained and expected to testify ii. Retained and NOT expected to testify iii. Consultant NOT retained (informally consulted) and NOT expected to testify iv. Witnesses whose information not acquired in preparation for trial c. Retained and Expected to Testify i. R. 26(a) - Disclosure MANDATED. ii. How to disclose: Provide a written report prepared and signed by the expert/witness. a complete statement of all opinions to be expressed at trial information considered in forming these opinions any exhibits to be used in support the witness qualifications and publications in the last 10 years any cases the expert has testified in the last 4 years a statement of the compensation paid to the witness iii. When to disclose: 90 days before trial If the expert is intended solely to rebut evidence of the opposing party, then w/i 30 days after the other partys disclosure. iv. R. 26(b) Discovery PERMITTED Deposition A party may depose any person who has been identified as an expert whose opinion may be presented at trial. When After the written report is provided. What may you ask? Qs that relate to compensation for the expert. For facts, data, and assumptions provided by the opposing counsel that the expert relied upon in forming opinions. d. Retained and NOT Expected to Testify

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Disclosure NOT Mandated No written report is needed if not testifying. R. 26(b) - Discovery permitted if: A showing of exceptional circumstances. the party cannot obtain the facts or opinions on the same subject by another means. R. 35(b) (Examiners Report Physical/Mental Exams) e. Consultant NOT Retained and NOT Expected to Testify i. Disclosure NOT Mandated ii. No Rule allowing discovery if no rule, no discovery. iii. To determine if #2 or #3 look at the formality of communications w/ expert. f. Opinion/Fact Witness Information NOT Acquired in Preparation of Trial i. R. 26(a) Disclosure MANDATED What the witness is expected to present evidence on, AND A summary of the facts and opinions the witness is expected to testify. E. DISCOVERY SEQUENCE 1. R. 26(d) Sequence and Timing of Discovery a. NO discovery from any source until after the conference of the parties. b. There is NO order to discovery for parties to follow or devices to use. 2. R. 26(f) Conference of the Parties a. When must it occur: i. as soon as practicable, MUST be done 21 days before scheduling order is due under R. 16(b). Who issues the scheduling order Judge b. Who must arrange the conference? i. ALL attorneys and unrepresented parties in GOOD FAITH the parties are NOT required to meet face-to-face. c. What must the parties consider? i. the nature and basis of the claim ii. their defenses iii. possibilities for a prompt settlement iv. discussing R. 26(a)(1) disclosures v. disclosure arrangements and the creation of a discovery plan vi. issues relating to preserving discoverable information d. Discovery Plan must be submitted to the court no later than 14 days after conference. 3. R. 26(e) Duty to Supplement a. A party who responded to a discovery request is required to supplement it with new information if: i. the party learns that the disclosure or response is incomplete or incorrect, OR ii. ordered by the court. F. DISCOVERY DEVICES 1. R. 36 Requests for Admissions a. A written request to admit the truth of any matters within the scope of R. 26(b)(1) relating to: i. Facts, application of law to facts, or opinions, AND ii. Genuineness of any documents described. b. Response: i. In writing and signed w/i 30 days of the request.

i. ii. iii.

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If no response deemed admitted. ii. Must be specific to related questions. iii. May claim lack of information only after a reasonable inquiry. 2. R. 34(a) Requests for Documents a. Request for access to or production of documents, ESI, tangible things, entry onto land. b. May request from any party, R. 34(a), OR non-party, R. 45(c). c. Must be in the possession, custody, or control of the party. d. Must describe each document/thing with reasonable particularity e. R. 34(b) Response: i. Written response (with objections) w/i 30 days. Organized: In business order, OR In order of requests. ESI as is ordinarily maintained or that which is useable. 3. R. 33(a) Interrogatories a. Written request to be answered in writing by another party (NOT non-party). b. No more than 25 questions (including subquestions) unless otherwise authorized. c. May ask for the application of law to facts. d. R. 33(b) Response: i. Each response must be answered: Separately Fully Under Oath ii. If answered signed by the party iii. If objected signed by the attorney Must state with specificity 4. R. 30(a) Depositions a. Deposition: oral examination of person under oath (not just a party). i. No more than 10 depositions. ii. Conducted before a court appointed officer. b. R. 30(b) Notice to all parties in the action: i. time and place ii. name and address (each person to be examined) general description if that name is not known (sufficient to ID) c. R. 30(b) Method of Recording audio, video, or stenograph. d. R. 30(b) Officers Duties i. BEFORE Officers name and address Time, date, and place Deponent Deponents oath ID of all persons present ii. AFTER Deposition is completed Who will take custody of the record Any pertinent matters e. R. 30(d) Duration i. Maximum length: 1 day of 7 hours

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A party may receive extra time for: Fair examination The examination is impeded or delayed f. R. 30(e) Review by the Witness i. The witness may review the deposition within 30 days to: Review List and changes with statements for each. g. R. 30(c) DEFENDING a Deposition i. When objecting must be concise, non-argumentative, and non-suggestive. ii. Instruction NOT to answer: When necessary to preserve a privilege, To enforce a court ordered limitation, OR To present a R. 30(d) motion to terminate or limit deposition. 5. R. 35(a) Medical Examinations a. Need a COURT ORDER i. Requesting party must: Show mental or physical condition of the party is in controversy, Have good cause, AND Have the examination done by a suitably licensed or certified examiner. b. Any party or person in the custody or legal control of the party is subject to the rule. c. R. 35(b) Examiners Report i. If the examined party requests a copy of the report: The party waives the privilege to get another examiner to testify for them past, present, and future 6. R. 45 Subpoena a. Who issues? i. Attorney OR the court b. What must the subpoena state: i. Name of the court ii. Title of the action iii. Court which it is pending iv. Civil action # c. What devices can be used in conjunction? i. Depositions ii. Document Requests d. Responding: i. If a responding party wishes not to obey: Adequate cause must be shown Move to quash Location or inconvenience Just disobey Held in contempt G. ENFORCING DISCOVERY RULES 1. R. 37(a) Motion to Compel a. Ask the court to order disclosure or discovery by a party b. ALL parties and affected persons receive a copy of the Motion. c. Moving party must certify: i. Acting in good faith

ii.

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ii. Attempted to resolve the dispute before the court action d. A party may NOT make a Motion to Compel A Request for Admission e. If a response by a party is evasive or incomplete file a motion f. Granted the opposing party must pay reasonable fees spent to file the motion i. Granted/Denied expenses are reasonably apportioned 2. R. 37(b) Motion for Sanctions a. For not obeying a discovery order, the court may impose sanction on that party. 3. Rule 26 Sanctions

CIVIL PROCEDURE: RULES I. JOINDER A. Joinder of Claims 1. Joinder of Claims 2. Joinder of Counterclaims/Crossclaims a. Key Distinctions b. Compulsory Counterclaims c. Permissive Counterclaims d. Post-Pleading Counterclaims e. Joinder of Crossclaims B. Party Joinder 1. Permissive Party Joinder 2. Compulsory Party Joinder 3. Third-Party Practice (aka Impleader) 4. Intervention C. Class Actions 1. What is a Class Action? 2. Prerequisites to a Class Action 3. Categories of Class Actions 4. Mandatory vs. Damages Class Actions 5. Notice 6. Opt Out 7. Selecting Counsel 8. Settlement II. DISPOSITION WITHOUT TRIAL A. Default 1. Two-Step Process 2. Entry of Default 3. Entry of Default Judgment 4. Setting Aside Judgment B. Dismissal 1. Voluntary Dismissal 2. Involuntary Dismissal C. Summary Judgment 1. Motion for SJ 2. Time to File a Motion for SJ 3. Standard for SJ 4. Procedure for SJ 5. When Facts are Unavailable to the Non-Movant 6. Failing to Properly Support or Address a Fact 7. If the Court Denies the Motion for SJ III. POST-TRIAL MOTIONS A. Motion for Judgment as a Matter of Law (JMOL) 1. Two Motions 2. JMOL (Before Judgment) 3. Renewed JMOL B. Motion for a New Trial C. Motion for Relief from Judgment IV. JURY TRIALS A. Right to a Jury Trial Under the 7th Amendment B. When Do You Get a Jury Trial? C. How Do You Demand a Jury Trial?

CIVIL PROCEDURE: RULES I. JOINDER A. Joinder of Claims 1. Joinder of Claims R. 18(a) 2. Joinder of Counterclaims/Crossclaims R. 13 a. Key Distinctions b. Compulsory Counterclaims R. 13(a) c. Permissive Counterclaims R. 13(b) d. Post-Pleading Counterclaims R. 13(e) e. Joinder of Crossclaims R. 13(g) B. Party Joinder 1. Permissive Party Joinder R. 20 a. Persons Who May be Joined R. 20(a) b. Protective Measures R. 20(b) 2. Compulsory Party Joinder R. 19 a. Persons Required to be Joined if Feasible R. 19(a) Why Joinder Would Not be Feasible b. When Joinder is Not Feasible R. 19(b) c. Pleading the Reasons for Non-Joinder R. 19(c) 3. Third-Party Practice (aka Impleader) R. 14 a. When a Defendant May Join a Third-Party R. 14(a) What the Third-Party Defendant May Do After Impleaded b. When a Plaintiff May Join a Third-Party R. 14(b) 4. Intervention R. 24 a. Intervention by Right R. 24(a) b. Permissive Intervention R. 24(b) c. Procedure R. 24(c) C. Class Actions R. 23 1. What is a Class Action? 2. Prerequisites to a Class Action R. 23(a) 3. Categories of Class Actions R. 23(b) 4. Mandatory vs. Damages Class Actions 5. Notice R. 23(c) 6. Opt Out R. 23(c) 7. Selecting Counsel R. 23(g) 8. Settlement R. 23(e)

CIVIL PROCEDURE: RULES II. DISPOSITION WITHOUT TRIAL A. Default R. 55 1. Two-Step Process 2. Entry of Default R. 55(a) 3. Entry of Default Judgment R. 55(b) 4. Setting Aside Judgment R. 55(c) B. Dismissal R. 41 1. Voluntary Dismissal R. 41(a) 2. Involuntary Dismissal R. 41(b) C. Summary Judgment R. 56 1. Motion for SJ R. 56(a) 2. When to File a Motion for SJ R. 56(b) 3. Standard for SJ 4. Procedure for SJ R. 56(c) a. Affidavits or Declarations Made in Bad Faith R. 56(h) 5. When Facts are Unavailable to the Non-Movant R. 56(d) 6. Failing to Properly Support or Address a Fact R. 56(e) 7. If the Court Denies the Motion for SJ III. POST-TRIAL MOTIONS A. Motion for Judgment as a Matter of Law (JMOL) R. 50 1. Two Motions 2. JMOL (Before Judgment) R. 50(a) 3. Renewed JMOL R. 50(b) B. Motion for a New Trial R. 59 1. Grounds for a New Trial R. 59(a) 2. When to File a Motion for a New Trial R. 59(b) 3. New Trial on the Courts Initiative R. 59(d) C. Motion for Relief from Judgment R. 60 1. Grounds for Relief from Judgment R. 60(b) a. Clerical Errors R. 60(a) 2. Timing and Effect of the Motion R. 60(c) IV. JURY TRIALS A. Right to a Jury Trial; Demand R. 38 1. When Do You Get a Jury Trial? R. 38(a) 2. How Do You Demand a Jury Trial? R. 38(b) 3. Specifying Issues R. 38(c) 4. Waiver/Withdrawal R. 38(d) B. Trial by Jury / Trial by the Court R. 39 1. When a Demand is Made R. 39(a) 2. When a Demand is Not Made R. 39(b) C. Number of Jurors; Verdict; Polling R. 48

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I. JOINDER A. JOINDER OF CLAIMS 1. R. 18(a) Joinder of Claims a) A party may join as many independent or alternate claims as it has against an opposing party. These include: i. Original claims ii. Counterclaims iii. Cross-claims iv. Third-party claims b) A party must have a permissible claim under the appropriate rule first then can join all other claims. c) What may LIMIT a partys ability to join? lack of subject matter jurisdiction d) What may REQUIRE the joinder of claims: i. Preclusion Rules (a.k.a. Res judicata) Pg. 508 ii. Waiver if you do not assert a related claim, may be precluded from asserting it later.

Subject Matter Jurisdiction 2. R EVERY claim against EVERY party must have one of these sources of jurisdiction to be . in federal court: a) Federal Question 1 i. usually a federally created cause of action (federal statute, Constitution) 8 ii. Ex. Congress enacts the ADA giving a private right of action to those ( injured by discrimination based on disability) a b) Diversity ) i. No plaintiff is from the same state as any defendant No matching across the v a) ii. Amount in controversy exceeds $75,000
2. R. 13 Joinder of Counterclaims/Crossclaims a) Key Distinctions i. Counterclaims: Contained in a Responsive Pleading Filed by Defendants Filed against Opposing Parties ii. Crossclaims: Contained in Motions Filed by Defendants AND Plaintiffs (Co-Defendants) Filed against Co-Parties iii. ASK has Party A been shot by an arrow by Party B? Vice versa? Once a claim is made (arrow has been shot) become opposing parties. Co-Parties are on the same side of the v and there are no claims (arrows) between them. iv. Why do we care if a claim is a Compulsory or Permissive Counterclaim? WAIVER: Compulsory can be waived, since you must bring them. Permissive cannot be waived, since you may bring them.

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b) R. 13(a) Compulsory Counterclaims i. An action that MUST be asserted and arise out of the same transaction or occurrence of the initial action. Transaction series or logical relationship Occurrence event or relative incident ii. Exceptions the counterclaim MUST be stated in the pleading unless: the claim is already subject to another pending action, OR the Defendant brings the suit by attachment or process without the courts jurisdiction. iii. Additional LIMITS: Must be Opposing Parties Transactionally Related Does not require adding another party over whom the court cannot acquire jurisdiction The party must not have already asserted the claim in his own action Must have the claims at the time of service c) R. 13(b) Permissive Counterclaims i. An actions that MAY be assert against an opposing party (NOT a new party) and that are NOT related to the case or initial action. d) R. 13(e) Post-Pleading Counterclaims i. MAY be presented as a counterclaim in a supplemental pleading if the court allows. e) R. 13(g) Joinder of Crossclaims i. ALL permissive (may be brought) no such thing as a compulsory crossclaim ii. Crossclaims: Contained in Motions Filed by Plaintiffs Filed against Co-Parties Co-Parties are on the same side of the v and there are no claims (arrows) between them. Once a claim is made (arrow has been shot), become opposing parties. iii. MAY be brought against Co-Party if Arising out of the same transaction or occurrence of either: the original action, OR a counterclaim. OR relating to any property subject to the original action. iv. Indemnity crossclaims MAY include a claim to a Co-Party to indemnify (reimburse) the claimant for all or party of the liability arising out of the action. v. *** Note Once you have a crossclaim that meets R. 13(g), R. 18(a) allows the party to join all claims the party has against the opposing party. *** Even transactionally unrelated claims. vi. Jurisdiction and Crossclaims: The court may have: subject matter jurisdiction to hear a crossclaim, OR check for a federal question diversity between the cross-claimant and cross-defendant. IF NOT there will be supplemental jurisdiction (study next year).

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B. PARTY JOINDER 1. R. 20 PERMISSIVE Party Joinder by Plaintiffs a) R. 20(a) Persons Who May Join or Be Joined i. A Plaintiff MAY join multiple Parties (Plaintiffs or Defendants) ii. Plaintiffs Plaintiffs MAY sue together in the same case: They MAY sue jointly, severally, or in the alternative. They MUST assert a claim which both: arises out of the same transaction or occurrence, AND or series of transactions or occurrences has a question of law or fact common to all Co-Parties in the action. iii. Defendants Defendants MAY be sued together in the same case: (SIMILAR) They MUST be subject to a claim which both: arises out of the same transaction or occurrence, AND or series of transactions or occurrences has a question of law or fact common to all Co-Parties in the action. Includes property subject to a case in rem. referring to a lawsuit or other legal action directed toward property, rather than toward a particular person. iv. A person MAY be joined as either a Plaintiff or Defendant if that person is only involved in one or several of the claims. There is no need for all Plaintiffs or Defendants to seek all claims of relief being claimed in the action. v. SO Plaintiffs can structure the lawsuit using R. 20 permissive party joinder vi. BUTthe Court has the power to restructure the lawsuit using: R. 20(b) and R. 42(b) to order separate trials R. 21 Misjoinder and Nonjoinder of Parties to fix misjoinder/nonjoinder by adding/dropping parties, OR to order severance any claim against a party may be severed and proceeded with separately. R. 42(a) to order that cases are consolidated for trial/other purposes. TEST if common question of law or fact. b) R. 20(b) Protective Measures i. The Court may order separate trials or make other such orders to prevent: A party from being embarrassed, Delay, Prejudice, OR A party from incurring undue expense from the inclusion of a third-party, if no claims exist between the parties. 2. R. 19 COMPULSORY (Required) Party Joinder a) R. 19(a) - Persons Required to be Joined if Feasible (Necessary Parties) i. STEP 1: WHO is Required to be Joined? The Plaintiffs Obligation A person MUST be joined if: in their absence, complete relief could not be granted to the parties already named in the case, OR that person claims an interest relating to the action, and its absence from the suit may:

CIVIL PROCEDURE: RULES CHEAT RULE: R. 24(a)(2) - R. 19(a)(2)(B)(i)

impair or impede its ability to protect that interest, OR leave an existing party subject to double liability or inconsistent obligations. The Court MUST order the joinder of a person if Plaintiff fails to do so. The Defendant would raise the issue to the Court. ii. STEP 2: WHY Would Joinder NOT be Feasible? The person MUST be subject to service of process Would deprive the court of personal jurisdiction The persons joinder would deprive the court of subject-matter jurisdiction. The person to be joined objects to venue, and joinder would make venue improper. b) R. 19(b) WHEN Joinder is NOT Feasible i. STEP 3: Apply R. 19(b) if the Court lacks personal jurisdiction, subject-matter jurisdiction, or venue is not proper over that person. If a Necessary Party cannot be joined the Court MUST determine if, in equity and good conscience the case should proceed without him. Proceed among existing parties, OR Dismiss the case Factors to be Considered by the Court: Whether the persons absence would cause prejudice to that person OR existing parties. The extent that prejudice may be avoided: protective provisions in the judgment shaping the relief, OR other measures Whether rendering judgment in the persons absence would be adequate. Whether the Plaintiff would have an adequate remedy if the action was dismissed for non-joinder. Indispensible Party The person is labeled an Indispensible Party if the court determines it must dismiss the action in the persons absence. c) 19(c) Pleading the Reasons for Non-Joinder i. The Plaintiff MUST state in his claim: the name of any person who must be joined if feasible but is not joined, if the name is known, AND the reasons for not joining that person.

3. R. 14 THIRD-PARTY Practice (aka Impleader) a) R. 14(a) When a Defending Party (P or D) MAY Join (Implead) a Third-Party i. What is the name of the document used to implead a third-party? Third-Party Complaint What should accompany the Third-Party Complaint? Summons ~ tells a defendant that he/she is being sued The Defendant may become a Third-Party Plaintiff by serving a Complaint on a Third-Party (who is not in the original action. ii. WHEN can a Defendant implead a Third-Party? At any time, but needs permission of the Court to implead if more than 14 days have passed since the Defendant served his original answer.

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TEST: Impleader is permitted where a Non-Party is or may be liable to the Defendant for all or part of the Plaintiffs claim against the Defendant. iv. Indemnity Claim responsible for ALL of Plaintiffs claim against Defendant. Ex. insurance company v. Contribution Claim responsible for PART of Ps claim against D. Ex. joint and severally liable tortfeasor b) R. 14(a) What the Third-Party Defendant can do after he is impleaded (joined). i. The 3 MUST assert all defenses against the Defendant/3 under R. 12. compulsory counterclaims against the Defendant/3 under 13(a). ii. The 3 MAY assert any permissive counterclaims against the Defendant/3 under R. 13(b). crossclaims against another 3 under R. 13(g). defense the Defendant/3 has to the original claims by the Plaintiff. claims against the Plaintiff. MUST arise out of the same transaction or occurrence as the Plaintiffs claims against the Defendant/3. iii. Once the Third-Party Defendant is impleaded (joined): P v. 3 Plaintiff MAY bring a claim against the 3, OR 3 v. P 3 MAY bring a claim against the Plaintiff MUST arise out of the same transaction or occurrence as the original claim. Whoever files their claim 2nd it is a counterclaim. This is NOT an impleader (3 is already a party) THEN 3 MUST assert: any defense under R. 12 counterclaim under R. 13(a) 3 MAY assert: permissive counterclaim under R. 13(b) crossclaim under R. 13(g) c) R. 14(b) When a Plaintiff MAY Join (Implead) a Third-Party i. When a counterclaim is made against the Plaintiff, the Plaintiff MAY bring in a Third-Party just as the Defendant under R. 14(a). 4. R. 24 INTERVENTION a) WHO may use R. 24? A Non-Party i. I dont care if I wasnt named, Im coming anyway. b) TYPES of Intervention: i. R. 24(a) Intervention by Right The Court MUST join unconditional (kinda) upon a timely motion ii. R. 24(b) Permissive Intervention The Court MAY join conditional. c) R. 24(a) Intervention By RIGHT i. WHO can intervene under R. 24(a) Anyone who is NOT a party, IF: A Federal Statute provides an unconditional right to intervene, OR

iii.

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The person: claims an interest relating to the property or transaction which is the subject of the action, AND CHEAT RULE: there is a risk that a ruling in the action may impair or impede R. 24(a)(2) - R. 19(a)(2)(B)(i) your ability to protect that interest, AND the existing parties will not adequately protect that interest. ii. LIMITATIONS: Timely The applicant may intervene upon a timely motion Jurisdiction A party may NOT intervene if Complete Diversity will not be maintained. iii. CHEAT RULE: If you can Intervene as a Right, R. 24(a)(2), then you can say that they are a Necessary Party under R. 19(a)(2)(B)(i). If you run the R. 19(a)(2)(B)(i) test, and there is prejudice to the absentee use R. (24) to join the party. d) R. 24(b) PERMISSIVE Intervention i. Any Non-Party MAY be permitted to intervene when: A Federal Statute provides a conditional right to intervene, OR When an Absentees claim or defense and the main action have a common question of law or fact. ii. The Court will then consider whether the intervention will: unduly delay the litigation, OR prejudice the rights of the original parties. e) R. 24(c) PROCEDURE Notice and Pleading Required i. HOW do you intervene? File a Motion to Intervene AND Proposed Pleading Motion must state the grounds for intervention. Pleading the claim/defense for which intervention is sought. ii. Timely Standard: How long the absentee knew of the interest before moving to intervene. Whether the absentees delay will prejudice the existing parties. Whether denial of intervention will prejudice the absentee. Any unusual circumstances affecting a finding of timeliness. C. CLASS ACTIONS (R. 23) 1. What is a Class Action? a) One or more class representatives are formally joined as parties in a case. i. Members of the class they represent are not parties & do not have to go to trial. BUT are bound by the decision. 2. R. 23(a) PREREQUISITES to a Class Action MUST Meet ALL the Prerequisites a) Define the Class A class of Plaintiffs or Defendants i. Sufficient enough that the court may reasonably be able to classify its members. b) Numerosity i. Is the class big enough? (No threshold #) ii. The class is so large that the joinder of all members is impracticable. (Tip if the class is not big enough, join the party under R. 20) c) Commonality i. Is there a common question of law or fact? (Easy standard to meet) d) Typicality i. Are claims/defenses of the class representatives typical of the whole class?

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e) Adequacy of Representation i. Will class representatives adequately and fairly protect the classs interests? f) *** Note: if there is more than one class representative, if claims are typical of one or more representative, the representative will likely adequately represent the class interests. *** 3. R. 23(b) CATEGORIES of Class Action MUST Meet ONE of the Class Categories a) Parties MAY seek certification as more than one type of class. b) Incompatible Standards Class (Prejudice to Opposing Party) i. A class will be certified if the opposing party would be at risk of incompatible standards of conduct from each individual suit. Ensures similarly situated parties are treated alike. c) Limited Funds Class (Prejudice to Non-Represented, Subsequent Claimants) i. A class will be certified if numerous claimants seek relief from a limited fund and individual claims would substantially impair or impede absentee plaintiffs from taking action. In the absence of class certification, individual lawsuits might deplete the fund before all worthy claimants have had a chance to obtain some share of the fund. d) Injunctive Relief Class i. Injunctive relief or declaratory relief must predominate as the remedy being sought on behalf of the class. The party opposing the class has acted or refused to act on the grounds that apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole. Ex. a group of citizens complain that the State is dumping waste products into the neighborhood lake and they seek an injunction ordering the dumping to stop. e) Damages Class i. The main purpose of the class action is to recover monetary damages. ii. The Court MUST finds that: the questions of law or fact common to the members of the class predominate over any questions affects only individual members, AND Is there an essential factual link between all members and the Defendant for which the law provides a remedy? that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The difficulties likely to be encountered in the management of the class action KEY FACTOR. internal disputes, notice, etc. The interest of the members to individually control their own cases. members can always opt out however, is so many BALANCING TEST are likely too, the court is unlikely to certify the class. The extent and nature of pending litigation. have individual members already began litigating their own separate actions? The desirability or undesirability of concentrating the litigation of the claims in the particular forum. efficiency ($), geography, etc. 4. MANDATORY vs. DAMAGES Class Actions a) Mandatory Class Actions i. Incompatible Standards Class

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ii. Limited Funds Class iii. Injunctive Relief Class b) Damages Class Actions i. Damages Class 5. R. 23(c) NOTICE a) All possible members of the class are made aware of the action. i. Mandatory Class Actions The Court MAY order notice to the class. ii. Damages Class Actions The Court MUST order the best notice practicable under the circumstances. 6. R. 23(c) OPT OUT a) Can a potential class member opt out of the class action and pursue his own action? i. Mandatory Class Actions No. All class members are bound by the settlement and MAY NOT bring individual suits on the matter. ii. Damages Class Actions Yes. Upon timely notice, a member of the class MAY opt out and are not bound by the settlement (may bring their own action). 7. R. 23(g) SELECTING COUNSEL a) A Court that certifies a class MUST appoint class counsel i. Mandatory Criteria: The Court must consider The attorneys work done in identifying or investigating potential claims in the case. The attorneys experience in: class actions complex litigation claims of the type asserted in the action The attorneys knowledge of the applicable law. The resources the attorney will commit to representing the class. ii. Discretionary Criteria: The Court may consider any other matter pertinent to whether the counsel will fairly and adequately represent the interests of the party. 8. R. 23(e) SETTLEMENT a) The Court MUST i. approve the settlement. ii. hold a hearing to determine if the settlement is fair, reasonable, and adequate. iii. send out notice of the settlement. b) *** Note For Damages Class Actions members are given a last chance to opt out of the class and not be bound by the settlement. ***

II. DISPOSITION WITHOUT TRIAL A. DEFAULT (R. 55) 1. Obtaining a Default Judgment is a TWO-STEP PROCESS only used by Plaintiffs a) Entry of Default R. 55(a) b) Entry of Default Judgment R. 55(b) 2. R. 55(a) Entry of Default (*Step 1*) a) The Defendant MUST fail to plead or otherwise defend. b) The Plaintiff MUST

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prepare an Affidavit, AND Showing that the Plaintiff sought a judgment for relief and the Defendant failed to plead or otherwise respond. ii. file the Affidavit with the Clerk. c) The Clerk MUST enter the Default. 3. R. 55(b) Entry of Default Judgment (*Step 2*) i. By the CLERK: The Plaintiff MUST prepare a Request for Judgment and an Affidavit. file w/ the Clerk The Clerk MUST enter Default Judgment IF Claim is for sum certain (or can be certain by computation) The Defendant has been defaulted for failure to appear, AND The Defendant is neither a minor nor incompetent. ii. By the COURT For ALL OTHER CASES Plaintiff must get a judgment from a Judge. Appear vs. Default A Defendant can appear yet still be in default. ~ Fails to Appear no presentation or submission to the court. The Defendant MUST be served with written notice at least 7 days before the hearing. Infants and Minors MUST be represented. 4. R. 55(c) Setting Aside Judgment a) The Court MAY set aside i. Default Entry for good cause shown. ii. Default Judgment for good cause shown, OR R. 60(b) Motion Relief from Judgment mistake, surprise, or neglect newly discovered evidence fraud, misrepresentation, or misconduct judgment is void judgment has been satisfied, released, or discharged any other reason that justifies relief B. DISMISSAL (R. 41) 1. R. 41(a) Voluntary Dismissal a) BY the PLAINTIFF b) Three ways to voluntarily dismiss: i. Dismissal by Notice ii. Dismissal by Stipulation iii. Dismissal by Court Order c) Dismissal by Notice i. WHAT to file Notice of Dismissal ii. WHEN at any time before the Defendant files an answer or Motion for S.J. whichever is sooner. iii. DO NOT NEED approval of the Opposing Party or the Court. d) Dismissal by Stipulation i. At any time by filing a stipulation of dismissal signed by all parties who have appeared DO NOT NEED approval by the Court.

i.

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e) Dismissal by Court Order i. WHY by Court Order? the opposing party has filed an answer or Motion for S.J. OR, the appearing parties will not agree to dismiss. ii. WHAT to file Motion for Dismissal iii. WHEN At any time but the Court is more likely to grant at earlier stages of litigation. f) Prejudice Rules / Two Dismissal Rule i. Unless otherwise stated by the Court, voluntary dismissals are without prejudice ii. Two Dismissal Rule: ONLY for Notice Dismissal A Plaintiffs first notice of dismissal is presumed to be w/o prejudice, BUT if the Plaintiff previously dismissed any federal or state court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. (aka dismissal with prejudice) 2. R. 41(b) Involuntary Dismissal a) BY the DEFENDANT b) WHAT to file Motion to Dismiss c) For what reasons MAY the Court dismiss under R. 41(b)? i. The Plaintiff Fails to Prosecute, or Fails to Comply w/ the FRCP, or Fails to Comply w/ a Court Order d) Prejudice Rules i. An involuntary dismissal under R. 41(b) is with prejudice, UNLESS the dismissal order states otherwise, OR the dismissal is based on: jurisdiction venue R. 19 Joinder C. SUMMARY JUDGMENT (R. 56) 1. R. 56(a) Motion for Summary Judgment a) WHO Plaintiffs and Defendants (typically, Defendants) b) The Court shall grant SJ if the movant shows: i. there is no genuine dispute as to any material fact, AND (there is no factual dispute for a jury to resolve) ii. the movant is entitled to judgment as a matter of law. (applying the law to these facts, the movant is entitled to judgment) 2. R. 56(b) WHEN to File a Motion for SJ a) At any time until 30 days after the close of all discovery. 3. Standard for Summary Judgment a) Burden of Proof: i. Clear and Convincing Evidence evidence that the thing to be proved is highly probable or reasonably certain. b) How should the judge view the evidence? i. In light most favorable to the non-moving party. c) Will the existence of some factual dispute in the evidence preclude SJ? i. No. Must be a genuine dispute. ii. Genuine Dispute could reasonable people disagree?

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If there is a genuine dispute it should be decided by the jury. d) Material Fact one that aligns with an element of a partys claim or defense. i. Check the substantive law (torts, contracts, etc.) to see what facts are material to the claims and defenses raised by the parties. Ex. Negligence: Injury, Duty, Breach, Causation. Plaintiff must prove each to win on a Motion for SJ Defendant may win by showing the Pl. cannot prove one. 4. R. 56(c) Procedure for Summary Judgment a) Movant Brief in Support of Motion for Summary Judgment i. There ARE NOT any genuine disputes of material fact AND the movant IS entitled to judgment as a matter of law. b) Non-Movant Brief in Opposition to the Motion for Summary Judgment i. There ARE genuine disputes of material facts OR the movant IS NOT entitled to judgment as a matter of law. c) A Party asserting that a fact [cannot be or is] genuinely disputed must support the assertion by: i. citing to materials in the record, such as: Depositions Documents ESI Affidavits or Declarations Stipulations Admissions Interrogatory Answers OR ii. showing the materials cited DO NOT establish the [absence or presence] of a genuine dispute OR iii. showing that an adverse party CANNOT produce admissible evidence to support the fact. (MOVANTS only) d) Affidavits or Declarations i. An affidavit or declaration used to [support or oppose] a motions MUST be: made on personal knowledge, set out facts that would be admissible as evidence, AND show that the affiant (person making the affidavit) is competent to testify on the matters stated. ii. R. 56(h) Affidavit or Declaration Made in Bad Faith After notice and a reasonable time to respond, the Court MAY: order the submitting party to pay the other party the reasonable expenses, including attorneys fees, it incurred as a result, OR hold the offending party in contempt or subject to other appropriate sanctions. 5. R. 56(d) When Facts are Unavailable to the Non-Movant a) If the non-movant shows by affidavit or declaration, for specific reasons, it cannot present facts essential to justify its opposition, the Court MAY: i. defer considering the motion, ii. deny the motion, iii. allow time to obtain the facts or take discovery, or iv. issue any other appropriate order.

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6. R. 56(e) Failing to Property Support or Address a Fact a) If a Party fails to properly support an assertion of fact or fails to property address another partys assertion of fact [as required by R. 56(c)], the Court MAY: i. give time to property support or address the fact, ii. consider the fact undisputed for purposes of the motion, iii. grant SJ, iv. issue any other appropriate order. 7. If the Court DENIES the Motion for SJ the case goes to TRIAL. III. POST-TRIAL MOTIONS A. MOTION FOR JUDGMENT AS A MATTER OF LAW JMOL (R. 50) 1. Two Motions: a) R. 50(a) Prejudgment Motion JMOL before judgment (Directed Verdict) i. If granted judgment is entered in favor of movant ii. If denied case submitted to the jury Motion may be renewed under R. 50(b) b) R. 50(b) Postjudgment Motion Renewed JMOL after judgment i. If granted the Court may allow judgment on the verdict (if the jury returns a verdict), order a new trial, or direct the entry of JMOL ii. If denied jury verdict is entered 2. R. 50(a) JMOL (before judgment) a) Standard (or grounds for granting the motion) i. No reasonable jury could rule for the non-movant on the issue. ii. What evidence and inferences should the court consider in ruling on a JMOL motion? ALL the evidence in the record, in doing so, must draw all reasonable inferences in favor of the non-moving party. b) WHO Plaintiffs and Defendants c) WHEN: i. When is the earliest a party can move for JMOL under R. 50(a)? After a party has been fully heard on an issue. ii. When is the latest a party can move for JMOL under R. 50(a) At any time before the case is submitted to the jury. iii. Trial Summary: P/D Opening Arguments P presents evidence (D cross-examines witnesses) and P rests D can move for JMOL D presents evidence (P cross-examines witnesses) and D rests Rebuttal evidence (or Not) P or D can move for JMOL P/D/ Closing Arguments P or D can move for JMOL Jury is instructed by the Judge and then deliberations Verdict R. 50(b) Renewed JMOL d) What MUST a R. 50(a) Motion for JMOL include? i. Specify the judgment sought, AND

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ii. The facts that entitle the movant to the judgment e) HOW Oral or Written 3. R. 50(b) Renewed JMOL a) Standard (or grounds for granting the motion) i. No reasonable jury could rule for the non-movant on the issue. [same as R. 50(a) motion] b) What MUST a Movant have done to be entitled to postjudgment relief? i. Make a R. 50(a) motion at any time before the case is submitted to the jury, AND ii. Make a R. 50(b) motion w/i 28 days after the entry of judgment. c) HOW must be written. B. MOTION FOR A NEW TRIAL (R. 59) 1. R. 59(a) Grounds for a New Trial a) WHO Plaintiffs, Defendants, or by the Court b) WHY on what ground can this motion be made? i. The Court MAY grant a new trial if: Verdict is against the clear weight of the evidence Excessive damages are awarded that would shock the conscience Procedural irregularity Evidence wrongly admitted/excluded Jury instruction error Newly discovered evidence ii. The Judge MAY weigh the evidence but is NOT required to draw inferences in light most favorable to the non-moving party 2. R. 59(b) WHEN At any time before 28 days after entry of judgment. 3. R. 59(d) New trial on the Courts Initiative a) Must be w/i 28 days after entry of judgment. b) For any reasons allowed by a party the Court must specify the reasons for ordering N.T. c) After giving the parties notice and an opportunity to be heard. 4. EFFECTS of Motion: a) If granted New trial b) If denied Judgment stands C. MOTION FOR RELIEF FROM JUDGMENT (R. 60) 1. R. 60(b) Grounds for Relief from a Judgment a) WHO Plaintiffs, Defendants, or the Court b) WHY The Court MAY relieve a party from a final judgment if: i. R. 60(a) - a clerical error was made, ii. R. 60(b): newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under R. 59(b), OR fraud, misrepresentation, or misconduct by an opposing party. iii. Note: there are others, but there are all we need to know for the Final. 2. R. 60(c) Timing and Effect of the Motion a) WHEN to file: i. R. 60(a) w/i a reasonable time whenever a party or the court discovers the error. ii. R. 60(b): Within a reasonable time, AND No more than 1 year after entry of the judgment

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IV. JURY TRIALS A. Right to a Jury Trial under the 7th Amendment 1. In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved. a) In other words if you had a right to a jury trial in 1791, you have a right today. 2. Applying the Test: a) Easy Cases the Plaintiffs cause of action and the remedy sought existed in 1791, we simply need to do historical research to see if it was then tried in a court of law or equity, and then we well know if there is a right to a jury trial. b) Hard Cases the Court has struggled to apply the 7th Amendment in two scenarios: i. Merger problem: a complaint contains claims based in both law and equity. ii. New cause of action problem: if Congress creates a new cause of action (new law) that didnt exist in 1791 examine: the nature of the issues involved, AND the remedy sought (law or equity?) B. R. 38(a) WHEN DO YOU GET A JURY TRIAL? 1. The 7th Amendment or a Federal Statute grants you a right to a jury trial and R. 38(a) merely refers to that grant. C. R. 38(b) HOW DO YOU DEMAND A JURY TRIAL? 1. WHO any party may make a demand for a jury trial. 2. FORM written, usually in a complaint or answer. 3. WHEN no later than 14 days after the last pleading on the issue. 4. WHAT must you do with the demand? serve on opposing parties and the court. D. R. 38(c) Specifying Issues 1. A party MAY specify issues to be tried to a jury (or try the entire case, all issues, to a jury) E. R. 38(d) Waiver/Withdrawal 1. Waiver: if not raised properly, the right to a jury MAY be waived. a) valid and timely demand. 2. Withdrawal: a party MAY request withdrawal of jury demand. a) ONLY with consent of ALL parties. A. R. 39(a) Trial by Jury Demanded 1. If a demand for a Jury Trial was made under R. 38, then the trial MUST be to a Jury unless: b) ALL parties stipulate to no jury, or c) The Court concludes that there is no right to a jury trial as a matter of law. B. R. 39(b) Trial by Jury NOT Demanded 1. If NO demand for a Jury Trial was made, and the window to make the demand has passed: d) The Party MAY file a Motion with the Court, and e) The Court, in its discretion, MAY order a Jury Trial. A. R. 48 What is a Jury? 1. A jury of 6-12 people is acceptable 2. All jurors must participate in the verdict unless excused for good cause. 3. A party may as the Jury to be polled to see if each actually agreed with the verdict.