Civ Pro - Outline for the FINAL

8/3/2019 Civ Pro - Outline for the FINAL

1/34

CIVIL PROCEDURE: RUL

I.FEDERAL RULES OF CIVIL PROCEDURE - OVERVIEWA. Scope and PurposeB. One Form of ActionC. Commencing an Action

II.PLEADINGSA. Overview

1. Pleadings Allowed2. Claim for Relief3. Direct and Concise; Alternate/Inconsistent Allegations4. Form of the Pleadings5. Forms6. Pleading Special Matters (Heightened Requirements)

B. Responding to the Complaint1. Time Allowed for Responsive Pleading2. Motions3. Waiver4. Answer

C. Amending the Pleadings1. Circumstances2. Amendments Before Trial3. Amendments During and After Trial4. Relation Back

D. Ensuring Truthful Allegations1. Signature2. Representations to the Court3. Inapplicability to Discovery4. Sanctions

III.DISCOVERYA. Scope of Discovery

1. Overview2. Relevance3. Admissibility

B. Limitations on DiscoveryC. Exemptions from Discovery1. Attorney-Client Privilege

2. Work Product Doctrine3. Experts

D. Discovery Sequence1. Conference of the Parties2. Sequence and Timing of Discovery3. Duty to Supplement

E. Mandatory Disclosures1. Overview2. Disclosure vs. Discovery3. Initial Disclosures4. Expert Disclosures5.

Pretrial DisclosuresF. Discovery Devices

1. Requests for Admission2. Document Requests3. Interrogatories4. Depositions5. Medical Examinations6. Subpoenas

G. Enforcing Discovery Rules1. Motion to Compel2. Motion for Sanctions3. Rule 26 Sanctions


2/34


I.FEDERAL RULES OF CIVIL PROCEDURE - OVERVIEWA. Scope and PurposeR. 1B. One Form of ActionR. 2C. Commencing an ActionR. 3


1. Pleadings AllowedR. 7(a)2. Claim for ReliefR. 8(a)3. Direct and Concise; Alternate/Inconsistent AllegationsR. 8(d)4. Form of the PleadingsR. 10

a.Caption; Name of the PartiesR. 10(a)b.Paragraphs; Separate StatementsR. 10(b)c.Adoption by Reference; ExhibitsR. 10(c)

5. FormsR. 846. Pleading Special Matters (Heightened Requirements)R. 9

a.Capacity/Authority; Legal ExistenceR. 9(a)b.Fraud/Mistake; Conditions of MindR. 9(b)c.Conditions PrecedentR. 9(c)d.Special DamagesR. 9(g)

B. Responding to the Complaint1. Time Allowed for Responsive PleadingR. 12(a)2. Motions

a.Motion to DismissR. 12(b)b.Motion for Judgment on the PleadingsR. 12(c)c.Motion for More Definitive StatementR. 12(e)d.Motion to StrikeR. 12(f)

3. Waivera.Joining MotionsR. 12(g)b.Waiving and Preserving a DefenseR. 12(h)

4. Answera.Types of Answers (Pleadings Allowed)R. 7(a)b.Defenses; Admissions and DenialsR. 8(b)c.Affirmative DefensesR. 8(c)

C. Amending the PleadingsR. 151. Circumstances2. Amendments Before TrialR. 15(a)3. Amendments During and After TrialR. 15(b)4. Relation BackR. 15(c)5. Supplemental PleadingsR. 15(d)

D. Ensuring Truthful AllegationsR. 111. SignatureR. 11(a)2. Representations to the CourtR. 11(b)3. Inapplicability to DiscoveryR. 11(d)


3/34


4. SanctionsR. 11(c)III.DISCOVERY

A. Mandatory DisclosuresR. 26(a)1. Overview2.

Disclosure vs. Discovery3. Initial Disclosures

4. Expert Disclosures5. Pretrial Disclosures

B. Scope of DiscoveryR. 26(b)1. Overview2. Relevance3. Admissibility

C. Limitations on DiscoveryR. 26(b)1.

Overview2. On Frequency or Extent

3. By Court Order4. Protective OrderR. 26(c)

D. Exemptions from DiscoveryR. 26(b)1. Attorney-Client Privilege2. Work Product Doctrine3. ExpertsR. 26(a) and (b)

E. Discovery Sequence1. Sequence and Timing of DiscoveryR. 26(d)2. Conference of the PartiesR. 26(f)3. Duty to SupplementR. 26(e)

F. Discovery Devices1. Requests for AdmissionsR. 362. Requests for DocumentsR. 343. InterrogatoriesR. 334. DepositionsR. 305. Medical ExaminationsR. 356. SubpoenasR. 45

G. Enforcing Discovery Rules1. Motion to CompelR. 37(a)2. Motion for SanctionsR. 37(b)3. Rule 26 Sanctions


4/34


I.FEDERAL RULES OF CIVIL PROCEDURE - OVERVIEWA. R. 1Scope and Purpose

1. Govern all civil actions and proceedings in the U.S. district court, except as stated in R 81.B. R. 2One Form of Action1. There is one form of actionthe civil action.

C. R. 3Commencing an Action1. A civil action is commenced by filing a complaint with the court.


1. R. 7(a)Pleadings Alloweda.Only these PLEADINGS are ALLOWED:

i. Complaintii. Answer to a Complaintiii. Answer to a Counterclaimiv. Answer to a Cross-Claimv. Third-Party Complaint

vi. Third-Party Answervii. Reply to an Answer (if the court orders)

2. R. 8(a)Claim for Reliefa.A short and plain statementof the grounds for the courts jurisdiction,b.A short and plain statementof the claim showing that the pleader in entitled to reliefc.Ademandfor the relief sought.

3. R. 8(d)Direct and Concise; Alternate/Inconsistent Allegationsa.Each allegations must be directand conciseb.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 besubject to dismissalunder Rule 12(b).

Factually Sufficientenough facts to allege a plausible claim.

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

NOTICE PLEADING

A short and plain statementto givefair notice of what the claim is and grounds upon which it rests. Conley v. Gibson

PLAUSIBILITY PLEADING Enough factsto state a claim to relief that isplausible 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.


5/34


4. R. 10Form of the Pleadingsa.

R. 10(a)Caption; Name of Partiesi. Every pleading requires a CAPTION with:

Name of the Court Title of the Action File Number Type ofPleadingR. 7(a) Name of the Parties

Complaintname ofall partiesOther Pleadingsname offirst party on each side

b.R. 10(b)Paragraphs; Separate Statementsi. A party must state each claim or defense in aseparate, 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. 84Forms

a.The forms in the Appendix suffice under these Rules and illustrate the simplicity andbrevity 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. DENIALmust allege with particularityb.R. 9(b)Fraud or Mistake; Conditions of Mind

i. FRAUD or MISTAKE Must place D on notice ofprecise misconduct, and Each element must be alleged with particularity.

Who, What, When, Where, and Howii. MALICE, INTENT, KNOWLEDGE

Conditions of a persons mind may be alleged generally.c.R. 9(c)Conditions Precedent

i. Whenpleading, may allege generallyii. Whenresponding, must respond w/particularity

d.R. 9(g)Special Damagesi. Must allege w/particularitydamages direct and natural resultof Ds condu

To alert the parties/court of unforeseeable damagesEx.emotional distress, attorneys fees, punitive damages


6/34


B.

RESPONDING TO THE COMPLAINT1. R. 12(a)Time Allowed for a Responsive Pleadinga.A party must answer/respond:

i. Within 21days after being served with the complaint, ORii. If it has waived service under R. 4(d), w/i 60 days after request for waiver sen

90 days if sent outside of U.S.2. MOTIONS

a.R. 12(b)Motion to Dismissi. 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

iii. When: Before filing the responsive pleading (if one is required)

Within 21 days after service of the claim12(a) If no responsive pleading requireddefense may be raised at trial

iv. Granted: the claim is dismissed with or without prejudicev.

Denied: must answer within 14 daysb.R. 12(c)Motion for Judgment of the Pleadings

i. Who: any partyii. When: after pleadings are closedbut within such time as to not delay the trial

iii. What happens: the court looks to the evidence alone to make a judgmentiv. If evidence is added: the court treats it as a R. 12(d) summary judgment motio

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 sovague and ambiguous that a party cannot reasonably prepare a response.

ii. When: before the responsive pleading is filediii.

What: the motion mustpoint of defects and state details desirediv. 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 ord

d.R. 12(f)Motion to Strikei. Who: eitherparty OR the court

ii. When: before responding or if a response is not allowed, within 21 daysiii. What may be stricken?

Insufficient defense (factual or legal), or Any redundant, immaterial, or scandalous matter

R. 12 b 1 - 7


7/34


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

3. WAIVERa.R. 12(g)Joining Motions

i. Allows a party who raises a R. 12 defense or objection by pre-answer motion tjoin all R. 12 motions available to that partyonly get ONE pre-answer motioii. If the party FAILS to plead a defense or objection in the pre-answer motion, thparty waives the defense (cannot make another R. 12 motion)

Exceptions:Motions after the pleadingsFailure to state a claim upon which relief can be grantedTo join a party under R. 19(b)To state a legal defense to a claimLack of subject matter jurisdiction issues

b.R. 12(h)Waiving and Preserving a Defensei. Requirements:

Step 1find the TYPE of DEFENSE the D wants to raise, Step 2determine if WAIVED by Ds actions thus far, Step 3if NOT WAIVED, how can the D raise this defense?

(pre-answer motion, in the answer, post-answer motion)ii. IfR. 12(b)(2)-(5) [ pj, improper venue, insufficient process or service of proce

WAIVED ifomitted from:a pre-answer motion,a R. 12 motiona responsive pleading, oran 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 theparties, or (3) failureto state a legal defense.

May be raised in:Any pleading allowed by R. 7(a)A R. 12(c) motionMotion for Judgment of the PleadingsAt trial

iv. If the court determines atany timethat it lacks subject matter jurisdiction, thcourt MUST dismiss the action (even after judgment).

4. ANSWERa.R. 7(a)Types of Answersb.Form for AnswersFORM 30c.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 denialiii. FAILURE to respond to

any allegations to which a responsive pleading is required:Ex.complaint, counterclaimRESULT: deemed to have been admittedException: amount of damages

R. 12 h 2 - 3


8/34


any allegation to which a responsive pleading is NOT required:Ex.answerRESULT: deemed to have been denied

d.R. 8(c)Affirmative Defensesi. The party must state in short and plain terms defenses to each claim asserted.

ii.

If FAIL to assert in the responsive pleadingwaived.

C. AMENDING THE PLEADINGS1. Two main circumstances that would lead a party to alter or amend their pleading:

a.the need to remedy an inadvertent omission or mistake, orb.the desire to add, alter, or remove claims or defenses in light of new information.

2. R. 15(a)Amendments BEFORE Triala.A party may amend the pleading once as a matter of course within:

i. 21 days after serving it, ORii. If the pleading is one in which a responsive pleading is required:

21 days after service of the responsive pleading, OR

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. leaveof 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, ORii. 14 days after service of the amendment

d.The Foman Factorsbasis 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 Triala.At trial, if a party objects that evidence is NOT within the issues raised in the pleadinthe court may permit the pleadings to be amended if:

i. such an amendment wouldpromote justice, ANDii. the opposing party cannot show prejudice.

The court may grant a continuance to allow the objecting party to meethis requirement.

b.An issue not raised by the pleadings is tried by thepartiesexpress or impliedconsenit must be treated as if raised in the pleadings.

i. Parties may make a Motion to Amend the Pleadings at any time (even after tri Failure to amend does not affect the result of the trial of that issue.

4. R. 15(c)Relation Backa.Assuming that an amended pleading will be permitted under R. 15(a) or (b), relationback governs the circumstances in which the amendment will be treated as though it wafiled 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. thestatute of limitations governing the cause of action permits relation back, O

whichever is earlier

whichever is later


9/34


ii. the amendment arose out of the conduct, transaction, or occurrenceof originpleading, OR

iii. if the amendmentchanges the party: the amendment arose out of conduct, transaction, or occurrence, AN under R. 4(m), the party to be brought in is served within 120 days aft

the complaint is filed, AND that party will not be prejudicedand knew or should have known theaction would be brought against it.

5. R. 15(d)Supplemental Pleadingsa.Bymotion, pleadings may be amended for events occurringafterservice of the originpleadings if:

i. reasonable notice is given, ANDii. the terms arejust.

D. ENSURING TRUTHFUL ALLEGATIONS1. R. 11(a)Signature

a.Everypleading, written motion, and other papermust be signed by an attorney ORparty if the party is unrepresented.Andmust includethe signers:i. Address

ii. Email addressiii. Telephone number

b.The court maystrike an unsigned document unless promptly corrected.2. R. 11(b)Representations to the Court

a.Bypresenting a document to the court (by signing, filing, submitting, or lateradvocating) an attorney or unrepresented party certifies that, to thebest of that personsknowledge, after apre-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, ORa nonfrivolous argumentfor extending, modifying, or reversin

existing law orestablishing new lawiii. Basis of Factual Allegations

Have evidentiary support or will have evidentiary supportafter a perioof discovery.

iv. Basis for Denials Warranted on the evidence or are reasonably based on belief or a lack

information.b.Rule for ORAL ArgumentsStatement 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


10/34


4. SANCTIONSa.R. 11(c)Sanctions

i. After notice and a reasonable time to respond, the court may impose anappropriate sanction for violation of R. 11(b) on a Party,

Attorney, or Law Firm

ii. Motion for Sanctions Requirements:

Must be madeseparately from any other motion, ANDMust describe the specific conduct that violates R. 11(b).

The motion must be served under R. 5 unless the violation is withdrawor corrected w/i 21 days after service or reasonable time set by the co

Safe Harbor PeriodRule 5requires that all papers in an action be served on all

parties and filed with the court. The court may award the prevailingparty the reasonableexpenses

including attorneys fees incurred for the motion.iii. On Courts Initiative: if the court initiates the sanctions (Order to Show Caus

the pleader must specifically show that it is not in violation of R. 11iv. Nature of the Sanctiona sanction must be limited to what willsuffice to

deter repetitionof the comparable conduct by others similarly situated. A sanction may include:

a non-monetary directivean order to pay a penalty to the courtpayment of an opposing partys attorney fees and expenses

v. Limitations of MONETARY Sanctions The court may NOT impose a monetary sanction:

Against a represented party in violation ofR. 11(b)(2), OR Soundness of Legal Argument Certification

On its own, unless it issued an Order to Show CauseIII.DISCOVERY

A. MANDATORY DISCLOSURES1. R. 26(a)requires the parties to make three sets of disclosures:2. Mandatory Disclosures vs. Discovery Devices

a.Mandatory Disclosuresa party is required to disclose certain information at the onseof the lawsuit, w/o awaiting a specific request for the information.b.Discovery Devicesdevices a party may use to seek information.

3. R. 26(a) - Initial Disclosuresa.When must they be made?

i. Within 14 days after the conference under R. 26(f).b.Who ALL partiesc.What must be disclosed?


11/34


i. Names, and if known, addresses and telephone # of people likely to havediscoverable information as well as thesubject of that information IF they are be used to support a claim or defense.

ii. Documents/ ESI/ Tangible Thingsthe disclosing party has in its possessioncustody, or control IF used to support a claim or defense.

iii.

Computation of Damagesiv. Insurance Agreementd.How are they made?

i. Must be in writing,signed, andserved.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 daysbefore the date set for trial.

5. R. 26(a)Pretrial Disclosuresa.For any evidence to be used at trial, a party shall disclose and promptly file w/ the cou

i. Name, address, and telephone # of all witnesses (and subject matter) to be usedat 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 Discovery1. What information is discoverable?

a.Relevant to anypartysclaim ordefense,b.Admissible as evidence or appears reasonably calculated to lead to the discovery ofadmissible evidence, ANDc.NOT privileged.

2. RELEVANCEa.Mustbe relevant to a partys claimordefense

i. The existence and location of any documents or other tangible thingsii. The location and identity ofpersons who know of any discoverable matter

b.Old Rule: any information relevant to the subject matterinvolved in the pending actioc.CURRENT RULE: any matter relevant to a claim or defense asserted in the pleadings

Exceptionon a showing of good cause the court may expanddiscovery to include matters relevant to the subject matter involved inthe action.

3. ADMISSIBILITYa.To be discoverable, information need not be admissible. (F.R.E. admissibility)

i. Relevant, inadmissible evidence is discoverable if it is reasonably calculatedlead to the discovery of admissible evidence.

C. R. 26(b)LIMITATIONS on Discovery1. 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 unreasonablycumulative, burdensome, or expensive, ORb.thepartyseeking discovery has hadample opportunity to obtain the information, ORc.the burden/expense outweighs the likely benefit.

i. Needs of the caseii. $ in controversy

iii. Parties resourcesiv. Importance of issues at stake Applies to ESI


12/34


v. Centrality of discovery to issues3. By Court Order: The court may alter or limit:

a.The number ofdepositions and interrogatories or length ofdepositions under R. 30, b.The number ofrequests under R. 36.

4. R. 26(c)Protective Ordersa.

Concept person from whom discovery is sought seeks protection from the court toprevent 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 theparties must confer, if still not resolved, a motion is filed.

D. EXEMPTIONS from Discovery1. 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 l

iii. The communication relates to a fact of which the attorney was informedby his client, without the presence ofothers, for thepurpose of securing primarily either,

an opinion on law, ORlegalservices, ORassistance in a legal proceeding, ANDis 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 communicationsandNOT information of facts. The client must be communicating with the attorney for the purposes o

securing legal advice, and does not hold if it has been waived.c.If the client is a CORPORATION:

i. The privilege appliesthroughout the corporation if: it is internal employee communications, for thepurpose of supplying the corporate counsel with a basis for leg

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 thapplicability of the privilege.

2. Work Product Privilege [R. 26(b)]


13/34


a.What is privileged?i. Documents andtangible things,

ii. Prepared in anticipation of litigation, (because of or primarily to assist iiii. By of foranother 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 shownsubstantial needandundue hardship toovercome 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. EXPERTSa.Expert a witness retained or specifically employed to provide testimony in a case

i.

Testify at trial or in depositions as a witness, ORii. 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 testifyiii. ConsultantNOT retained (informally consulted) and NOT expected to testifyiv. Witnesses whose information not acquired in preparation for trial

c.Retained and Expected to Testifyi. R. 26(a) - Disclosure MANDATED.

ii. How to disclose: Provide a written reportpreparedand signedby the expert/witness.

a complete statement ofall opinions to be expressed at trialinformation consideredin forming these opinionsany exhibits to be used in supportthe witness qualifications and publications in the last 10 yearany cases the expert has testified in the last 4 yearsa statement of thecompensation paidto 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 daysafterthe other partys disclosure.iv. R. 26(b)Discovery PERMITTED

DepositionA party may depose any person who has been identifiedan expert whose opinion may be presented at trial.

WhenAfter the written report is provided. What may you ask?

Qs that relate tocompensation for the expert.Forfacts, data, and assumptions provided by the opposing

counsel that the expert relied upon in forming opinions.d.Retained and NOT Expected to Testify


14/34


i. Disclosure NOT Mandatedii. No written report is needed if not testifying.

iii. R. 26(b) - Discoverypermittedif: A showing ofexceptional circumstances.

the party cannot obtain the facts or opinions on the same subjeby another means. R. 35(b) (Examiners Report Physical/Mental Exams)

e.ConsultantNOT Retained and NOT Expected to Testifyi. Disclosure NOT Mandated

ii. No Rule allowing discoveryif no rule, no discovery.iii. To determine if #2 or #3look at the formality of communications w/ expert.

f.Opinion/Fact WitnessInformation NOT Acquired in Preparation of Triali. 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 SEQUENCE1.

R. 26(d)Sequence and Timing of Discoverya.NO discovery from any source until after theconference 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). Whoissues the scheduling order Judge

b.Who must arrange the conference?i. ALL attorneys and unrepresented partiesin 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 claimii. their defenses

iii. possibilities for a prompt settlementiv. discussing R. 26(a)(1) disclosuresv. disclosure arrangements and the creation of a discovery plan

vi. issues relating to preserving discoverable informationd.Discovery Planmust be submittedto the courtno later than 14 days after conferen

3. R. 26(e)Duty to Supplementa.A party who responded to a discovery request is required to supplement it with newinformation if:

i. the party learns that the disclosure or response is incomplete or incorrect, ORii. ordered by the court.

F. DISCOVERY DEVICES1. R. 36Requests for Admissions

a.A written request to admit the truth of any matters within the scope ofR. 26(b)(1)relating to:

i. Facts, application of law to facts, or opinions, ANDii. Genuineness of any documents described.

b.Response:i. In writing and signedw/i 30 days of the request.


15/34


If no responsedeemed 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 ofdocuments, 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 thepossession, custody, or controlof the party.

d.Must describe each document/thing with reasonable particularitye.R. 34(b)Response:

i. Written response (with objections) w/i 30 days. Organized:

In business order, ORIn order of requests.ESI as is ordinarily maintained or that which is useable.

3. R. 33(a)Interrogatoriesa.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 answeredsigned by the partyiii. If objectedsigned by the attorney

Must state with specificity4. 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 placeii. 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 Recordingaudio, 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)Durationi. Maximum length: 1 day of 7 hours


16/34


ii. A party may receive extra time for: Fair examination The examination is impeded or delayed

f.R. 30(e)Review by the Witnessi. 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 Examinationsa.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 examine

b.Anyparty orperson 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 th

past, present, and future6. R. 45Subpoena

a.Who issues?i. Attorney OR the court

b.What must the subpoena state:i. Name of the court

ii. Title of the actioniii. Court which it is pendingiv. Civil action #

c.What devices can be used in conjunction?i. Depositions

ii. Document Requestsd.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 contemptG. ENFORCING DISCOVERY RULES

1. R. 37(a)Motion to Compela.Ask the court to order disclosure or discovery by a partyb.ALL parties and affected persons receive a copy of the Motion.c.Moving party must certify:

i. Acting in good faith


17/34


ii. Attempted to resolve the dispute before the court actiond.A party may NOT make a Motion to Compel A Request for Admissione.If a response by a party is evasive or incompletefile a motionf.Granted the opposing party must pay reasonable fees spent to file the motion

i. Granted/Denied expenses are reasonably apportioned2.

R. 37(b)Motion for Sanctionsa.For not obeying a discovery order, the court may impose sanction on that party.

3. Rule 26 Sanctions


18/34


I.JOINDERA. Joinder of Claims

1.Joinder of Claims2.Joinder of Counterclaims/Crossclaims

a.Key Distinctionsb.Compulsory Counterclaimsc.Permissive Counterclaimsd.Post-Pleading Counterclaimse.Joinder of Crossclaims

B. Party Joinder1.Permissive Party Joinder2.Compulsory Party Joinder3.Third-Party Practice (aka Impleader)4.Intervention

C. Class Actions1.What is a Class Action?2.Prerequisites to a Class Action3.Categories of Class Actions4.Mandatory vs. Damages Class Actions5.Notice6.Opt Out7.Selecting Counsel8.Settlement

II.DISPOSITION WITHOUT TRIALA. Default

1.Two-Step Process2.Entry of Default3.Entry of Default Judgment4.Setting Aside Judgment

B. Dismissal1.Voluntary Dismissal2.Involuntary Dismissal

C. Summary Judgment1.Motion for SJ2.Time to File a Motion for SJ3.Standard for SJ4.Procedure for SJ5.When Facts are Unavailable to the Non-Movant6.Failing to Properly Support or Address a Fact7.If the Court Denies the Motion for SJ

III.POST-TRIAL MOTIONSA. Motion for Judgment as a Matter of Law (JMOL)

1.Two Motions2.JMOL (Before Judgment)3.Renewed JMOL

B. Motion for a New TrialC. Motion for Relief from Judgment

IV.JURY TRIALSA. Right to a Jury Trial Under the 7th AmendmentB. When Do You Get a Jury Trial?C. How Do You Demand a Jury Trial?


19/34


I.JOINDERA. Joinder of Claims

1.Joinder of ClaimsR. 18(a)2.Joinder of Counterclaims/CrossclaimsR. 13

a.Key Distinctionsb.Compulsory CounterclaimsR. 13(a)c.Permissive CounterclaimsR. 13(b)d.Post-Pleading CounterclaimsR. 13(e)e.Joinder of CrossclaimsR. 13(g)

B. Party Joinder1.Permissive Party JoinderR. 20

a.Persons Who May be JoinedR. 20(a)b.Protective MeasuresR. 20(b)

2.Compulsory Party JoinderR. 19a.Persons Required to be Joined if FeasibleR. 19(a)

Why Joinder Would Not be Feasibleb.When Joinder is Not FeasibleR. 19(b)c.Pleading the Reasons for Non-JoinderR. 19(c)

3.Third-Party Practice (aka Impleader)R. 14a.When a Defendant May Join a Third-PartyR. 14(a)

What the Third-Party Defendant May Do After Impleadedb.When a Plaintiff May Join a Third-PartyR. 14(b)

4.InterventionR. 24a.Intervention by RightR. 24(a)b.Permissive InterventionR. 24(b)c.ProcedureR. 24(c)

C. Class ActionsR. 231.What is a Class Action?2.Prerequisites to a Class ActionR. 23(a)3.Categories of Class ActionsR. 23(b)4.Mandatory vs. Damages Class Actions5.NoticeR. 23(c)6.Opt OutR. 23(c)7.Selecting CounselR. 23(g)8.SettlementR. 23(e)


20/34


II.DISPOSITION WITHOUT TRIALA. DefaultR. 55

1.Two-Step Process2.Entry of DefaultR. 55(a)3.Entry of Default JudgmentR. 55(b)4.Setting Aside JudgmentR. 55(c)

B. DismissalR. 411.Voluntary DismissalR. 41(a)2.Involuntary DismissalR. 41(b)

C. Summary JudgmentR. 561.Motion for SJR. 56(a)2.When to File a Motion for SJR. 56(b)3.Standard for SJ4.Procedure for SJR. 56(c)

a.Affidavits or Declarations Made in Bad FaithR. 56(h)5.When Facts are Unavailable to the Non-MovantR. 56(d)6.Failing to Properly Support or Address a FactR. 56(e)7.If the Court Denies the Motion for SJ

III.POST-TRIAL MOTIONSA. Motion for Judgment as a Matter of Law (JMOL)R. 50

1.Two Motions2.JMOL (Before Judgment)R. 50(a)3.Renewed JMOLR. 50(b)

B. Motion for a New TrialR. 591.Grounds for a New TrialR. 59(a)2.When to File a Motion for a New TrialR. 59(b)3.New Trial on the Courts Initiative R. 59(d)

C. Motion for Relief from JudgmentR. 601.Grounds for Relief from JudgmentR. 60(b)

a.Clerical ErrorsR. 60(a)2.Timing and Effect of the MotionR. 60(c)

IV.JURY TRIALSA. Right to a Jury Trial; DemandR. 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 IssuesR. 38(c)4.Waiver/WithdrawalR. 38(d)

B. Trial by Jury / Trial by the CourtR. 391.When a Demand is MadeR. 39(a)2.When a Demand is Not MadeR. 39(b)

C. Number of Jurors; Verdict; PollingR. 48


21/34


I.JOINDERA. JOINDER OF CLAIMS

1. R. 18(a)Joinder of Claimsa)A party may join as many independent or alternate claims as it has against an opposingparty. These include:

i. Original claimsii. Counterclaims

iii. Cross-claimsiv. Third-party claims

b)A party must have apermissible claim under the appropriate rule first then can join alother claims.c)What may LIMIT a partys ability to join? lack of subject matter jurisdictiond)What may REQUIRE the joinder of claims:

i. Preclusion Rules (a.k.a. Res judicata)Pg. 508ii. Waiver if you do not assert a related claim, may be precluded from asserting i

later.

2.R.

1

8

(

a

)

a)2. R. 13Joinder of Counterclaims/Crossclaims

a)Key Distinctionsi. Counterclaims:

Contained in a Responsive Pleading Filed by Defendants Filed againstOpposing Parties

ii. Crossclaims: Contained in Motions Filed by Defendants AND Plaintiffs (Co-Defendants) Filed againstCo-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:Compulsorycan be waived, since you mustbring them.Permissivecannot be waived, since you may bring them.

Subject Matter JurisdictionEVERY claim against EVERY party must have one of these sources of jurisdiction to bein federal court:

a) Federal Questioni. usually a federally created cause of action (federal statute, Constitution

ii. Ex.Congress enacts the ADA giving a private right of action to thosinjured by discrimination based on disability)

b) Diversityi. No plaintiff is from the same state as any defendant

No matching across the vii. Amount in controversy exceeds $75,000


22/34


b)R. 13(a)Compulsory Counterclaimsi. 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. Exceptionsthe 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 court

jurisdiction.iii. Additional LIMITS:

Must be Opposing Parties Transactionally Related Does not require adding another party over whom the court cannot acquir

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 Counterclaimsi. An actions that MAY be assert against an opposing party (NOT a new party) andthat are NOT related to the case or initial action.

d)R. 13(e)Post-Pleading Counterclaimsi. MAY be presented as a counterclaim in a supplemental pleading if the court

allows.e)R. 13(g)Joinder of Crossclaims

i. ALLpermissive (may be brought)no such thing as a compulsory crossclaimii. Crossclaims:

Contained in Motions Filed by Plaintiffs Filed againstCo-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), becomopposing parties.

iii. MAY be brought against Co-Party if Arising out of the same transaction or occurrence ofeither:

the original action, ORa counterclaim.

OR relating to any property subject to the original action.iv. Indemnitycrossclaims 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 unrelatedclaims.vi. Jurisdiction and Crossclaims:

Thecourtmay have:subject matter jurisdiction to hear a crossclaim, OR

check for afederal questiondiversity between the cross-claimant and cross-defendant.

IF NOTthere will be supplemental jurisdiction (study next year).


23/34


B. PARTY JOINDER1.R. 20PERMISSIVE Party Joinder by Plaintiffs

a)R. 20(a)Persons Who May Join or Be Joinedi. A PlaintiffMAY join multiple Parties (Plaintiffs orDefendants)

ii. PlaintiffsPlaintiffs MAYsue together in the same case: They MAY sue jointly, severally, or in the alternative. They MUST assert a claim which both:

arises out of thesame transaction or occurrence, AND or series of transactions or occurrences

has a question of law or fact common to all Co-Parties in theaction.

iii. DefendantsDefendants MAYbe suedtogether in the same case: (SIMILAR) They MUST be subject to a claim which both:

arises out of thesame transaction or occurrence, AND or series of transactions or occurrences

has a question of law or fact common to all Co-Parties in theaction.

Includes property subject to a case in rem.referring to a lawsuit or other legal action directed toward properrather than toward a particular person.

iv. A person MAY be joined as either a Plaintiff or Defendant if that person is onlyinvolved in one or several of the claims.

There is no need for all Plaintiffs or Defendants to seek all claims of relibeing claimed in the action.

v. SO Plaintiffs can structure the lawsuit using R. 20permissive party joindervi. BUTthe Court has the power to restructure the lawsuit using:

R. 20(b) and R. 42(b) toorder separate trials R. 21Misjoinder and Nonjoinder of Parties

to fix misjoinder/nonjoinder byadding/dropping parties, ORto order severance

any claim against a party may be severed andproceeded with separately.

R. 42(a) to order thatcases are consolidated for trial/other purposes.TEST if common question of law or fact.

b)R. 20(b)Protective Measuresi. The Court mayorder 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

no claims exist between the parties.

2.R. 19COMPULSORY (Required) Party Joindera)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 grantedto the partialready named in the case, OR

that person claims an interest relating to the action, and its absenfrom the suit may:


24/34


impair or impede its ability to protect that interest,OR

leave an existing party subject to double liability oinconsistent 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 ofsubject-matter jurisdictio 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 lackspersonal jurisdiction, subject-matterjurisdiction, or venue is not properover that person.

If a Necessary Party cannot be joined the CourtMUST determine if, equity and good conscience the case should proceed without him.

Proceed among existing parties, ORDismiss the case Factors to be Considered by the Court:

Whether thepersons absence would cause prejudice to that persOR existing parties.

The extent thatprejudice may be avoided: protective provisions in the judgment shaping the relief, OR other measures

Whether rendering judgmentin the persons absence would beadequate.

Whether the Plaintiff would have an adequate remedy if the actiowas dismissedfor non-joinder.

Indispensible Party The person is labeled an Indispensible Party ithe court determines it must dismiss the action in the persons absence.

c)19(c)Pleading the Reasons for Non-Joinderi. The Plaintiff MUST state in his claim:

the name of any person who mustbe joined if feasible but is not joined, the name is known, AND

the reasons for not joining that person.3.R. 14THIRD-PARTY Practice (aka Impleader)

a)R. 14(a)When a Defending Party (P or D) MAY Join (Implead) a Third-Partyi. 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?

Atany time, but needs permission of the Court to implead if more than 1days have passed since the Defendant served his original answer.

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


25/34


iii. TEST: Impleader is permitted where a Non-Party is or may be liableto the

Defendantfor all or part ofthe Plaintiffs claimagainstthe Defendant.iv. Indemnity Claimresponsible for ALL of Plaintiffs claim against Defendant.

Ex.insurance companyv. Contribution Claimresponsible for PART of Ps claim against D.

Ex.joint and severally liable tortfeasorb)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 theDefendant/3 under 13(a).

ii. The 3 MAY assert any permissive counterclaims against the Defendant/3 under R. 13(b). crossclaims against another3 under R. 13(g). defense theDefendant/3has to the original claims by the Plaintiff. claims against the Plaintiff.

MUST arise out of thesame transaction or occurrence as thePlaintiffs claims against the Defendant/3.

iii. Once the Third-Party Defendant is impleaded (joined): P v. 3Plaintiff MAY bring a claim against the 3, OR 3 v. P3 MAY bring a claim against the Plaintiff

MUST arise out of the sametransaction or occurrence as theoriginal claim.

Whoever files their claim 2ndit is a counterclaim.This is NOT an impleader(3 is already a party)

THEN3 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-Partyi. When acounterclaim is made against the Plaintiff, the Plaintiff MAY bring in a

Third-Party just as the Defendant under R. 14(a).

4.R. 24INTERVENTIONa)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 joinunconditional (kinda)upon a timely motionii. R. 24(b)Permissive Intervention

The Court MAY joinconditional.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 rightto intervene, OR


26/34


The person:claims an interest relating to theproperty or transaction which

the subject of the action, ANDthere is a risk that a ruling in the action may impair or impede

your ability toprotect that interest, ANDthe existing parties will not adequatelyprotect that interest.

ii. LIMITATIONS: TimelyThe applicant may intervene upon a timely motion JurisdictionA party may NOT intervene if Complete Diversity will no

be maintained.iii. CHEAT RULE:

If you can Intervene as a Right, R. 24(a)(2), then you can say that they arNecessary 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 absenteeuse R. (24) to join the party.

d)R. 24(b)PERMISSIVE Interventioni. Any Non-Party MAY be permitted to intervene when:

A Federal Statute provides a conditional rightto intervene, OR When an Absentees claim or defense and the main action have a commquestion of law or fact.

ii. The Court will then consider whether the intervention will: unduly delaythe litigation, OR prejudice the rights of the original parties.

e)R. 24(c)PROCEDURENoticeandPleading Requiredi. HOW do you intervene?

File a Motion to Intervene AND Proposed PleadingMotion 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 interestbefore moving to intervene. Whether the absentees delay willprejudice the existing parties. Whether denial of intervention willprejudice 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 ActionMUST Meet ALL the Prerequisites

a)Define the ClassA class ofPlaintiffs or Defendantsi. 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 theclass representatives typical of the whole class?

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


27/34


e)Adequacy of Representationi. Will class representatives adequately and fairlyprotect the classs interests?

f)*** Note: if there is more than one class representative, if claims are typical of one or morepresentative, the representative will likely adequately represent the class interests. ***

3.R. 23(b)CATEGORIES of Class ActionMUST Meet ONE of the Class Categoriesa)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 incompatiblestandards ofconductfrom 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 andindividual claims would substantiallyimpair or impedeabsentee plaintiffs fromtaking action.

In the absence of class certification, individual lawsuits might deplete thefund before all worthy claimants have had a chance to obtain some share the fund.

d)Injunctive Relief Classi. Injunctive relief or declaratory relief must predominate as the remedy being soughon behalf of the class.

The party opposing the class has acted or refused to act on the grounds thapply generally to the class, so that final injunctive relief is appropriaterespecting the class as a whole.

Ex.a group of citizens complain that the State is dumping waste producinto the neighborhood lake and they seek an injunction ordering thedumping to stop.

e)Damages Classi. 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, ANDIs 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 thefair and

efficientadjudication of the controversy.The difficulties likely to be encounteredin the management of th

class actionKEY FACTOR. internal disputes, notice, etc.

The interest of the members to individually control their own cas members can always opt outhowever, is so man

are likely too, the court is unlikely to certify the clThe extent and nature of pending litigation. have individual members already began litigating

their own separate actions?The desirability or undesirability of concentrating the litigation

the claims in the particular forum. efficiency ($), geography, etc.

4.MANDATORY vs. DAMAGES Class Actionsa)Mandatory Class Actions

i. Incompatible Standards Class

BALANCING TEST


28/34


ii. Limited Funds Classiii. Injunctive Relief Class

b)Damages Class Actionsi. Damages Class

5.R. 23(c)NOTICEa)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 MUSTorder the best noticepracticable 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 bringindividual suits on the matter.

ii. Damages Class Actions Yes. Upon timely notice, a member of the class MAY opt out and are notbound by the settlement (may bring their own action).

7.R. 23(g)SELECTING COUNSELa)A Court that certifies a class MUST appoint class counsel

i. Mandatory Criteria: The Court mustconsider The attorneys work done in identifying or investigating potential claims

the case. The attorneys experience in:

class actionscomplex litigationclaims 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 towhether the counsel will fairly and adequately represent the interests of the part

8.R. 23(e)SETTLEMENTa)The Court MUST

i. approve the settlement.ii. hold a hearingto determine if the settlement is fair, reasonable, and adequate.

iii. send outnoticeof the settlement.b)*** NoteFor Damages Class Actionsmembers are given a last chance to opt out of tclass and not be bound by the settlement. ***

II.DISPOSITION WITHOUT TRIALA. DEFAULT (R. 55)

1.Obtaining a Default Judgment is a TWO-STEP PROCESS only used by Plaintiffsa)Entry of DefaultR. 55(a)b)Entry of Default JudgmentR. 55(b)

2.R. 55(a)Entry of Default (*Step 1*)a)The Defendant MUSTfail to plead or otherwise defend.b)The Plaintiff MUST


29/34


i. 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 forfailure to appear, ANDThe Defendant is neither a minornor incompetent.

ii. By the COURT For ALL OTHER CASESPlaintiff must get a judgment from a Judge.

Appear vs. Default A Defendant can appear yet still be in default.

~Fails to Appearno presentation orsubmission to the court. The Defendant MUST be served with written notic

at least7 days before the hearing.Infants and Minors

MUST be represented.4.R. 55(c)Setting Aside Judgment

a)The Court MAY set asidei. Default Entry for good cause shown.

ii. Default Judgment for good cause shown, OR R. 60(b) Motion Relief from Judgment

mistake, surprise, or neglectnewly discovered evidencefraud, misrepresentation, or misconductjudgment is voidjudgment has been satisfied, released, or dischargedany other reason that justifies relief

B. DISMISSAL (R. 41)1.R. 41(a)Voluntary Dismissal

a)BY the PLAINTIFFb)Three ways to voluntarily dismiss:

i. Dismissal by Noticeii. Dismissal by Stipulationiii. Dismissal by Court Order

c)Dismissal by Noticei. WHAT to fileNotice of Dismissal

ii. WHENat 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 haveappearedDO NOT NEED approval by the Court.


30/34


e)Dismissal by Court Orderi. 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 fileMotion for Dismissaliii. WHENAt 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 prejudiceii. Two Dismissal Rule:

ONLY for Notice DismissalA Plaintiffsfirst notice of dismissal is presumed to be w/o

prejudice, BUT if the Plaintiff previously dismissed any fedeor state court action based on or including the same claim, anotice of dismissal operates as an adjudication on the merits.(aka dismissal with prejudice)

2.R. 41(b)Involuntary Dismissala)BY the DEFENDANTb)WHAT to fileMotion to Dismissc)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 Rulesi. An involuntary dismissal under R. 41(b) is with prejudice, UNLESS

the dismissal order states otherwise, OR the dismissal is based on:

jurisdictionvenueR. 19 Joinder

C. SUMMARY JUDGMENT (R. 56)1.R. 56(a)Motion for Summary Judgment

a)WHOPlaintiffs andDefendants (typically, Defendants)b)The Court shall grant SJ if the movant shows:

i. there is nogenuine dispute as to anymaterial fact, AND (there is no factual dispute for a jury to resolve)

ii. the movant is entitled to judgment as amatter of law. (applying the law to these facts, the movant is entitled to judgment)

2.R. 56(b)WHEN to File a Motion for SJa)At any time until 30 days after the close of all discovery.3.Standard for Summary Judgmenta)Burden of Proof:

i. Clear and Convincing Evidenceevidence that the thing to be proved is highlyprobable 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 Disputecould reasonable people disagree?


31/34


If there is a genuine dispute it should be decided by the jury.d)Material Factone 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 tclaims and defenses raised by the parties.

Ex.Negligence: Injury, Duty, Breach, Causation.Plaintiffmust prove each to win on a Motion for SJDefendantmay win by showing the Pl. cannot prove one.

4.R. 56(c)Procedure for Summary Judgmenta)MovantBrief in Support of Motion for Summary Judgment

i. There ARE NOT any genuine disputes of material factAND the movant IS entitlto judgment as a matter of law.

b)Non-MovantBrief in Opposition to the Motion for Summary Judgmenti. 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 assertby:

i. citing tomaterials in the record, such as: Depositions Documents ESI Affidavits or Declarations Stipulations Admissions Interrogatory Answers

ORii. showing the materials cited DO NOT establish the [absence or presence] of a

genuine disputeOR

iii. showing that an adverse party CANNOT produce admissible evidence to suppothe fact. (MOVANTS only)

d)Affidavits or Declarationsi. An affidavit or declaration used to [support or oppose] a motions MUST be:

made onpersonal knowledge, set outfacts that would be admissible as evidence, AND show that the affiant(person making the affidavit) is competentto testify

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 approprisanctions.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 presenfacts 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, oriv. issue any other appropriate order.


32/34


6.R. 56(e)Failing to Property Support or Address a Facta)If a Party fails to properly support an assertion of fact or fails to property address anotherpartys 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 LAWJMOL (R. 50)1.Two Motions:

a)R. 50(a)Prejudgment MotionJMOL 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 MotionRenewed JMOL afterjudgmenti. 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 entered2.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 JMOLmotion?

ALL the evidence in the record, in doing so, must draw all reasonableinferences in favor of the non-moving party.

b)WHOPlaintiffs andDefendantsc)WHEN:

i. When is the earliest a party can move for JMOL under R. 50(a)? After aparty has beenfully 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 JMOLd)What MUST a R. 50(a) Motion for JMOL include?

i. Specify the judgment sought, AND


33/34


ii. The facts that entitle the movant to the judgmente)HOW Oral orWritten

3.R. 50(b)Renewed JMOLa)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, orby the Courtb)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 awardedthat would shock the conscience Procedural irregularity

Evidence wrongly admitted/excludedJury instruction error

Newly discovered evidenceii. The Judge MAY weigh the evidence but is NOT required to draw inferences in lig

most favorable to the non-moving party2.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 partythe Court must specify the reasons for ordering N.Tc)After giving the parties notice and an opportunity to be heard.

4.EFFECTS of Motion:a)If granted New trialb)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, orthe Courtb)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 havbeen 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 timewhenever a party or the court discovers the erro

ii. R. 60(b): Within a reasonable time, AND No more than 1 year after entry of the judgment


34/34


IV.JURY TRIALSA. Right to a Jury Trial under the 7th Amendment

1.In suits atcommon law, where the value in controversy shall exceed $20, the right of trial by jurshall bepreserved.

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 Casesthe Plaintiffs cause of action and the remedy sought existed in 1791, wesimply need to do historical research to see if it was then tried in a court of law or equity, anthen we well know if there is a right to a jury trial.b)Hard Casesthe 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 refer

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 andthe court.

D. R. 38(c)Specifying Issues1.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/Withdrawal1.Waiver: if not raised properly, the right to a jury MAY be waived.

a)valid andtimely 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 Demanded1.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, orc)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 Demanded1.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. 48What is a Jury?1.A jury of 6-12 people is acceptable2.All jurors must participate in the verdict unless excused for good cause.3 A t th J t b ll d t if h t ll d ith th di t

Civ Pro - Outline for the FINAL

Documents

Transcript of Civ Pro - Outline for the FINAL