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Civil Procedure FRCP Table
Civil Procedure FRCP Table
Civil Procedure FRCP Table
Governs civil suits in federal court - the goal is speedy and just legal determination
1: Scope / Purpose
2: Form of Action Law & Equity merged - All actions are a civil action 14
Clock starts when the complaint 14
3: Commencement of Filing a complaint with the court starts the action. Need to serve a summons with it - See
is filed
Action R. 4(a)
Contents: court, paties, attorneys info, time and date of required appearance; warn D that failure to appear results in default 14-18
judgment; clerk’s signature, court seal
Service:
• 4(c) serve summons with a complaint, by anyone not in case or marshal
4: Summons
• 4(d) waiving service; in which case D has 60 days to answer from time request sent
• 4(e) serve personally, leaving at dwelling with suitable person, or by certified mail
• 4(h) serving corporation: same as individual or delivering copy to authorized agent or mailing
• 4(m): Must be served within 120 days of complaint; otherwise dismissed w/o prejudice
• When other party is US government- they have 90 days to respond (instead of normal 20)
• 4(k)Serving a summons effectively establishes personal jurisdiction over D
5(a) Unless you have good reason otherwise - Serve everyone everything upon their 18-19
attorneys in person or by mail.
• Serving person by: handing it, leaving at office, or dwelling, leaving it with
clerk, mailing it to last address No need to file interrogatories,
requests for documents, expert
• Also, file everything in court from complaint forward, except for Discovery
5: Serving / Filing reports, and other discovery info,
requests and initial disclosures 26(a)(1) and Expert Disclosures 26(a)(2)
either UNLESS court orders or
• No need to serve party who loses by default judgment used in court proceedings
• Anything required to be served also generally required to be filed w/in
reasonable time
Δ must provide Δs to each claim and admit, deny, or say "I don't have the info" for each Gen. denial not a good idea.
averment. Can deny specifically (in part) or generally.; Must be in good faith in Looks lazy, doesn’t lead to good
accordance with Rule 11 – must only deny those allegations in dispute aff. Δ. Some facts will inevitably
8(b): Δs; Admissions and
• 8(b)(4) If denying part of allegation- must state specifically which part deny and be true. ‘Don’t have info to
Denials
which part admit answer’ counts denial, unless
• 8(b)(5)- lack of knowledge to deny or not- state so. patently untrue and Δ had the
• 8(b)(6)Failing to deny is to admit info.
Must provide affirmative Δs in the answer. These allow that even if the π is correct, there
is a legal reason for the Δ's action. If you do not plead in the answer, you may lose chance AD: Arbitration and award,
later if amendment is denied. R15; Test: whether D intends to rest his case on some assumption of risk, Contrib. Neg,
fact not included in the allegation necessary to support the plaintiff’s case (additional Discharge in bankruptcy, duress,
facts absolve D from liability) estoppel, no consideration, fraud,
8(c): Affirmative Δs
illegality, injury by servant,
• List not conclusive, you can state other affirmative defense not on list
laches, license, payment, release,
• In essense, the “Yes it’s true, but…” defense
res judicata, S/F, Stat. Limit,
• If mistaken designation occurs- court can if justice requires treat as though it Waiver
were correct
8(d) Concise, alternative Multiple Claims Can be stated in the alternative regardless of consistency; must be
statements, inconsistency stated clear and concise terms
Twombly Iqbal (359) immunity, fraud,
costly discovery
9(b): FRAUD or MISTAKE must be plead with particularity (with factual specificity). If not plead specifically, you can Stratford v.Zurich(364); must name time,
9: Pleading Special
Conditions of mind (Malice and intent) can be plead generally. lose the right to use later, if place, and nature of alleged
Matters; Fraud, Mistake
• Remember the who, what, why, where, when, and how amendment is not allowed. misrepresentations for fraud.
“strong inference” pleading
requirement.(369)
Separate any distinct claims or Δs Form 11
10: What Pleadings (a) Caption (Name of ct, title of case, case #, title of pleading); (b) each claim should be so that the pleading is clearly
Should Look Like made in a separate numbered paragraph; (c) adoption by reference/analogy presented
Amending is modifying or adding to. 2 ways to amend: 1) By right - automatically OK to Beeck v. Aquaslide N Dive Corp: wrong
amend if the other party has not replied yet, or if no response required, must be within 21 manufacturer could have been easily
Leave shall be freely given as
days of the original pleading; 2) By leave - If the judge says it is ok to amend (if justice so discovered by both sides. J rules that no
15(a): Amendments justice requires. Judges tend to be
requires) or if the other party agrees in writing. 3) If a pleading is amended, the deadline bad faith so amend. Leaves P without
lenient with permission to amend.
for response is 14 days after amendment or original deadline - whichever is longer. recourse due to SoL. (403).
Upon motion of a party or the court may permit the party to serve a supplemental
21 days after pleading or
15(b): Amendments to pleading setting forth transactions or occurrences or events which have happened
responsive pleading or whichever
conform to the Evidence since the date of the original pleading. Unlike an amended pleading, a supplemental
is earlier.
pleading is not supposed to alter or modify the original pleading but only ADD to it.
CANNOT RELATE BACK TO
SOMETHING THAT WAS FILED
LATE IN THE FIRST PLACE.
Moore v. Baker: “amendment relates
Relation Back of an amendment applies to the original date of pleading if: 1) Stat of
back to original finding when the
Limitations is still running; 2) SoL has run out, but the amendment arises out of same
If amendment is related back, amendment asserts a claim or defense
conduct, transaction or occurrence set forth in the pleadings (test here is ADEQUATE
15(c): Relation Back then it is treated as though it were that arose out of the conduct, transaction,
NOTICE); 3) Just changing name of party and 2) is satisfied (New party had notice of
in the original pleading. or occurrence set out—or attempted to be
action within 120 days of original service – Rule 4(m))
set out—in original pleading.”
Bonerb v. Richard J. Caron. Relation
back works! Same transaction no need to
do extensive research. Stage of discovery.
(411)
15(d): Supplemental
Pleadings
Several pre-trial conferences - 16(a) and pre-trial orders - 16(e) but only ONE final pre-trial conference 16(d). 16(b):
Scheduling order made by the court within 120 days after complaint served on Δ - this sets dates. 16(c) Pre-Trial Conferences
16(a)-(e): Pre-Trial
can be used to simplify issues/claims/Δs, figure out what is going to happen in discovery and with evidence, deal with motions,
Conferences / Orders
settlement, etc. Organize and handle issues. 12(c) judge must issue the scheduling order as soon as practicable, but in any event
within the earlier of 120 days after any defendant has been served or 90 days after any defendant has appeared.
Sanctions - If a party or attorney fails to obey an order, does not show up at a meeting, or shows up unprepared, he can be
16(f): Sanctions for Pre-
sanctioned.
Trial Conferences /
Orders
Party asserting any sort of claims against one D may join all independent or alternative claims as they have
18: Joinder of Claims • Fraudulent conveyance- suit only cognizable after other suit commences
As long as subject matter jurisdiction present and proper venue, parties may be brought into suit if remedy not sufficient to
spread over Ds already in suit; as either a D or an involuntary P
• 19(b) Should party above cannot be joined- court will determine if suit can still proceed; considers equity factors such
19: Compulsory Joinders
as prejudice to parties already in suit, how prejudice can be lessened, and whether adequate alternative available should
action dismissed
• Pleadings for non-joinder must state name of party and reasons for not joining
Any P may join in suit if claims arise out of same transaction or series of occurrences AND same question of law of fact will be
at issue for all Ps
• Under same rule- any D may be joined for same reasons
20: Permissive Joinders
• Relief may be given separately by P and D
• Court may order separate trials for reasons of delay, embarrassment, at expense of person whom party asserts no
claim or asserts no claims themself
23(f) A court of appeals may permit an appeal from an order granting or denying class action certification under this rule if a petition INTERLOCUTORY APPEAL W/O d
for permission to appeal is filed with the circuit clerk within 10 days after the order is entered. The district court need not agree DISTRICT COURT PERMISSION
All this should be disclosed
MUST disclose in initial disclosure: (A) Name, address and Phone# of every person likely
within 14 days after the discovery
to have discoverable info that disclosing party may use to support claims or Δs; (B) Copy
conference 26(f) unless ct says
26(a)(1): Automatic or description (category & location) of all documents in possession of party that may be
otherwise. Do not wait to be
Disclosure used to support claims/Δs; (C) Computation of damages claimed - making available any
asked - this is a self-executed
supporting docs (D) Any insurance agreement that may pay part of the judgment.
procedure
-must disclose all info that you will use to support your claim
26(a)(2): Expert 26(a)(2)(A) Parties must disclose names of experts likely to be used at trial; 26(a)(2)(B) - Experts should prepare written reports
Testimony of their opinions and these should be disclosed at least 90 days before trial - or as directed by the court.
(A) Names, addresses and Phone# for all witnesses to be called and (C) Exhibits to be
26(a)(3): Pre-Trial Serve all parties and file with the
used
Disclosures court
26(a)(4): Forms of Only pre-trial must be filed with
In writing, signed, and served
Disclosures the court
Oral Depositions R30, Written Depositions R31, Interrogatories R33, Production of
26(a)(5): How to get Ct tries to stay out of this - Only
Documents (& inspection of property) R34, Mental/Physical exam R35, and requests for
more info get involved in disputes.
Admissions R36
Davis v. Precoat Metals: “reasonably
calculated to lead to discovery of
admissible evidence.” Not limited to what
Intended to be lenient. Context to
26(b)(1): Scope of is admissible at trial (417).
Anything relevant and not privileged is discoverable. All privileges can be waived by the determine relevancy. Work
Discovery Steffan v. Cheney: AC says that DC fails
person invoking the privilege. Anything that can reasonably lead to admissible product not discoverable unless it
in that the claim he admitting to homo
evidence at trial. is impossible for other side to
actions while in service are not relevant
obtain information.
to reasons because he was released based
admission of homosexuality not actual
misconduct.
Hickman v. Taylor: “in anticipation of
litigation/work productlimited
Forbids discovery that is abusive privilege. Also opposing party could have
Ct can limit Discovery if (i) Unreasonably cumulative, duplicitive; or obtainable in a more or harassing. gotten the information very easily. Also
convenient, easier, or cheaper way; (ii) Party seeking discovery has had ample opportunity 1) Was information sought free to examine public testimony. Where
26(b)(2): Limits on
to get this info already; (iii) The burden or expense of the proposed discovery outweighs 2) Was it relevant relevant and non-privileged material
Discovery
its likely benefit. Ct. can decide on its own to limit discovery, with reasonable notice, or 3) Was it privileged facts remain hidden in an attorney’s
parties can file for a 26(c) protective order. 4) Why wasn’t it work file and where production of
discoverable those facts is essential to eh
preparation of one’s case, discovery
may be properly had.(442)
26(b)(4): Trial Prep: Party can depose expert witnesses who may testify at trial. If an expert report is required, then it must be provided before the 1) non testifying
Experts deposition. 26(a)(2) 90 days before trial or 130 days before rebuttal of testimony. 2)Testifying(pre-trial depo)
3)Non expert Fact witnessMUST
INCLUDE IN DISCLOSURE LIST
If statute says no jury then one can be had if both parties agree.
39(c): Trial by Consent
41(a): Voluntary 41(a)(1)(i) Π can voluntarily end case by filing notice of dismissal any time before the If the case is brought again and
Dismissal of Action answer or motion for SJ is served - OR 41(a)(1)(ii): If parties all agree in writing and file dismissed, then it is considered w/
in court. This is considered dismissal without prejudice. Can only do this once for a prejudice. No third refile.
particular claim. Otherwise 41(a)(2) the court decides whether to allow the voluntary
dismissal. Also if Δ filed counterclaim that it wants to keep, then the court decides
whether to allow the dismissal w/o prejudice on original claim and leave the counterclaim
pending.
•
If Π fails to prosecute or comply with the rules, Δ can move for a dismissal of the action or any claim in it. Unless for
jurisdiction, venue or joinder or if court decides otherwise, this dismissal is considered with prejudice.
41(b): Involuntary
• Involuntary dismissal comes from failure to prosecute
Dismissal
• Court can dismiss case for anything under this rule
41(c): Dismissing
Counterclaim, cross claim, Must be made before responsive pleading is served or before evidence is introduced
third party claim
41(d): Cost of previously
If P brings
dismissed action
42(a) Actions involving common questions of law or fact can be consolidated by court into joint hearing or trial; 42(b) - Court
42: Consolidated /
can split any claims, as long as right to jury trial is preserved, in order to expedite, make more convenient or economic, or avoid
Separated Trials
prejudice.
A judge cannot serve where he Re Boston Children’s First: ex parte
has been a lawyer in a certain conversation construed as biased. Writ of
issue, served as a governmental mandamus granted by SC. “appearance of
employee and expressed opinion partiality compromised.(584).
EACH SIDE CAN CHALLENGE BIAS OF JUDGE ONCE IN CONCLUSORY
on merits, financial interests, Thompson v Altheimer & Gray: Judge
USC 144, 455(b) TERMS. Jury must be screened carefully both sides and judge are in control of this
455(b) “any judge of the U.S should have asked, “whether her beliefs
process.
shall disqualify himself in any would have somehow impede her in
proceeding in which his giving due weight to the evidence and
impartiality may be reasonably following the judge’s instructions.”
questioned.
47(a) Examination of jurors - Court may permit party or its attorney to examine prospective jurors or court can do it with 28 USC 1863-1864, 1868
47: Selection of Jurors parties' imput. 47(b): Peremptory challenges are allowed. Challenges 1867(c)
48: #of Jurors 6-12 Jurors - Must be unanimous unless otherwise stipulated by parties. Not less than 6
Court can require a jury to return only a Special Verdict. SV must be in the form of
49(a): Special Verdict
special written findings upon each issue of fact
Court may submit forms for general verdict along with written interrogatories on issues of
fact necessary to decide GV. When GV and the written answers are harmonious,
judgment is appropriate. When there are inconsistencies among answers and the GV, the Make sure to object to these
judge will send jury back for more consideration or order new trial. If there are issues when they come back…
49(b): General Verdict
inconsistencies only between answers and GV (answers are consistent) then the judge otherwise, you may lose your
MAY affirm the verdict OR enter judgment according to the answers (against the GV) OR chance later.
send for more deliberation OR order a new trial.
Pennsylvania RR v Chamberlain:
50(a)(1): If party is done presenting side and there is no legally sufficient basis for a reasonable jury to make a favorable finding
TCjmol, APreverse SCreverse
for that party, then the court may determine the issue against that party a grant a motion for JML. 50(a)(2): Motions for JML
50(a): Judgment as a back to jmol. Court rules no real
can be made at any time before the case goes to jury. Should specify judgment sought and the law and facts which entitle party
Matter of Law (Motion contradiction of facts/evidence produced
to JML. Party with burden of production at trial has failed to carry that burden. 1) Take inference in favor of non
for a Directed Verdict) Bainbridge does not deny collision only
moving party 2) Don’t judge on issues of credibility 3) Don’t weigh the evidence.
infers from an inference it did not occur .
50(b): Renewed Motion If, for any reason, JML is denied after all evidence is presented at trial, the moving party can renew its request for JML by filing YOU WAIVE RENEWED JMOL IF
for Judgment as a its request within 28 days of the judgment. It can also ask for a new trial under rule 59. If verdict is in, then the court can 1) Let YOU DO NOT RAISE JMOL!!
Matter of Law (JNOV); judgment stand; 2) Order new trial; or 3) Direct verdict as a matter of law. If verdict not in, the court can 1) Order a new trial or
Alternative Motion for 2) Direct verdict as JML
new Trial
50(c) Granting the 1) If the courts grants a renewed JMOL, it must conditionally rule on any motion for a new trial by determining whether
renewed motion; a new trial should be granted if the judgment is later vacated or reversed. 2) Granting of a new trial does not effect
conditional ruling on a jmol’s finality. If judgment is reversed new trial must go on unless appellate courts says otherwise. If motion for new
Motion for a New trial trial is denied apellee may assert error, if the judgment is reversed, case must proceed as appellate court orders
51; Instructions to Jury; 1) Before or at the close of evidence party may provide written request for
Objections; Preserving a jury instruction. (C) must make an objection on the record if you want
claim of error to appeal on that objection.
Anderson v. Bessemer City:
Findings shall not be set aside unless clearly erroneous an due regard
TCPlaintiff, AC D reversed de
shall be given to the opportunity of the trial court to judge the credibility of
Rule 52(a)(6) De novo: Redo the entire case novo...SC said trial court judge was in
the witnesses. Finding is erroneous when there is no evidence to support it.
Impossible to find jury’s fact finding clearly erroneous. a better position to make decisions based
on the testimony since he was present.
55(b)(1) - By the clerk for sum certain (computable amount) claims - 55(b)(2) by the Court for all other cases (uncertain
amounts), party asks court for default judgment. If defaulting party has already appeared in the case, then entitled to written
notice of application for default judgment hearing at least 3 days before the hearing.
• When with clerk as opposed to by court- when you know the exact sum, no additional evidence needed to prove
55(b): Procedure for
amount of damages.
Default Judgment
• Party can appear (by filing pre answer motion) but didn’t contest with answer- must be given 3 days notice to them
• Court may conduct hearings to determine amount of damages and investigate truth of allegations >> default
essentially means that you are not there to dispute allegations, not necessarily always ruled against you
Claim Preclusion Claim preclusion forbids a party from litigating a claim that was, or could and should have Efficiency and finality Frier v. Vandalia: Federal court must use
been raised, in former litigation. Decision on the merits: 12(b)6 is on the merits. No “Transaction or occurrence state court claim preclusion doctrines
final judgment is made if case is not tried in correct jurisdiction. test”.claims need not to have because of Erie, “one suit precludes
actually been litigated to be another where causes of action are
barred if they should have been identical. Causes of action are identical
where the evidence necessary to sustain a
second verdict would sustain the first…
core operative fact even if different legal
theories more narrow than Federal.
Dissent replevin and due process
theories are out of different
transactions.(668)
Martino v. Mcdonalds: Settled out of
brought
court in which was considered a final
1) Could have brought it
judgment. Mcd’s claimed that he couldn’t
up
raise more claims due to 13(a). However
2) Privity of parties(Same
13(a) refers to pleading and none were
legal right or one whose
made. He brings a new claim but 13 years
interests have been
later. Court says although claim is ok rule
litigated at the time).
is not absolute. Can’t bring something 13
3) Opportunity to litigate
years later after mcd’s has relied on final
4) Decision on the merits
judgment.(680).
Gargallo v Merrill lynch, Pierce, Fenner
& Smith: Federal court exclusion a final
judgment in a court without jurisdiction is
not final. Also since he was sanctioned
nothing was litigated on for issue
preclusion(690).