FRCP Checklist Outline
FRCP Checklist Outline Civil Procedure
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Date Created: 02/09/15
FRCP Checklist Outline 1 Rule 4 Notes 0 Mallane Service of process must be El reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action A El afford them an opportunity to present their objections Notice must convey required information and must afford a reasonable time for interested parties to make an appearance 0 Court should analyze interest of the parties to determine how much due diligence should be expended in deciding how much effortcost should be expended to serve the parties Q Terms 0 Dwelling house or usual place of abode l Individual can have multiple dwelling house or usual places of abode provided each contains sufficient indication of permanence O Resides there I has long been held to require the recipient of the papers to be actually living in the same place as defendant Thus service on an employee of defendant who spends only a part of his time at defendant s house at service But result varies Rule 4 e How to formgllv serve individual Q 1 As provided by state law Rule 41m Time Limit for Service El Q Defendant must be served within 120 days after the complaint is filed If not then court must dismiss or order that H serve A by X date If H shows good reason for failure court will order A to be served by a reasonable date Rule 8 Q Rule 8 1 Short Plain Statement Possibilitv lt Plausibile lt Probibility As determined by quotjudicial experience and common sensequot also must determine that other outcomes are less probable rule out alternative theories to boost up your argument as quotplausiblequot Something beyond facts merely consistent with the allegations Two Step Analysis 1 Strike out all allegations that are legal conclusions 2 Analyze remaining factual allegations to see if those facts if true are quotplausiblequot If plausible then motion will survive motion to dismiss El Rule 8b Defenses Admissions Denials There are only 3 possibilities to include in an answer to a pleading Admissions Denials State a disclaimer if it can be made in the objective and subjective good faith demanded by Rule 11 El Rule 8c Affirmative Defenses O REQUIRED Rule 8cl defendant must state all affirmative defenses if not pleaded then failure to state such an affirmative defense results in a waiver and exclusion of the defense from the case 0 Other types of recognized affirmative defenses I Mitigation of damages I Alteration of an instrument OOOO FRCP Checklist Outline 2 I Condition subsequent I Impossibility of performance I Infancy I Insanity I Mistake I Novation I Privilege in defamation actions I Rescission I Breach of warranty 0 Tests to determine if a nonlisted type of defense qualifies as an affirmative defense El Allocation of burden of proof The court considers whether the allocation of the burden of proof reasoning that if the defendant bears the burden of proof on the defense it is an affirmative defense El Controvert or avoidance If avoidance then af rmative defen The court considers whether the defense simply converts the plaintiff s proof or instead avoids the plaintiff s claim To put it another way the court will consider whether the defense shares the common characteristic of a bar to the right of recovery even if the general complaint were more or less admitted to not simply controverted Regardless of the veracity of the allegations of plaintiff or lack thereof an affirmative defense under this test will still win El Purpose of Rule 8c give 11 notice of defenses consider the need for notice of the defense to avoid surprise and undue prejudice to the plaintiff Rule 9b Fraud or Mistake Conditions of Mind Rule 9 Purpose 0 Damage to reputation O The information is in the plaintiff 8 hands The plaintiff is saying hey you defrauded me or you screwed up you made a mistake That information needs to go into the pleading so that defendant has an opportunity to respond 0 Special Damages ie in the thin skull plaintiff when there is harm beyond the extent of natural harm of consequences of actions ie damages you wouldn39t expect IN this case we expect that the plaintiff likely has information the defendant doesn t have so thus plaintiff should put that information in the pleading so that the defendant has a chance to respond 0 Rule 9 applies to all fraud claims statutory or common law 0 Under Iqbal you have to plead enough facts to show that intent was plausible Contrast with Rule 8 fraud which just must be plead generally Now it looks like Rule 8 pushes the requirements for alleging intent to a higher pleading standard than Rule 9 0 In US v Community Health Systems a complaint is sufficient under Rule 9b if it alleges the 0 Who person Content of the alleged misrepresentation on which he or she relied Fradulent scheme Fraudulent intent of the defendants I Malice intent knowledge and other conditions of a person s mind may be alleged generally 0 Injury resulting from the fraud FRCP Checklist Outline 3 0 Provides fair notice to Defendants and enable them to prepare an informed pleading responsive to the specific allegations O RULE 9b requires that all averments of fraud the circumstances constituting fraud must be plead with particularity in contrast to the mens rea of fraud which may be plead generally 0 The circumstances constituting fraud must include an averment that a false or fraudulent claim for payment or approval has been submitted to the government 0 Note 9b also applies to special damages 0 Note 9b also applies to intentional misrepresentation a little different 0 Note that 9b does not require that all elements of a fraud or mistake claim be pleaded with particularity Other matters including malice intent and knowledge may be pleaded generally 0 Note additional requirement under 10b of the Securities Exchange Act Rule 91g El Rule 9g requires that special damages must be specifically related ie th e plaintiff must allege actual damages with particularity and specify facts showing that such special damages were the natural and direct result of the defendant s conduct Here the plaintiff doesn t get the benefit of the doubt It s on the plaintiff to prove that such and such special damages were due to the defendant 0 Thus you need specific examples that the book would have been purchased but for the tortious acts of the defendant s acts ie the defendant conspiringthreateningblackmailing to make sure that no publisher sold that book Rule 11 Sanctions Rule 11 purpose 0 to reduce frivolous claims defenses or motions and to deter costly meritless maneuvers thereby avoiding delay and unnecessary expense in litigation 0 Rule 11 sanctions are limited to misconduct regarding filing of court papers ONLY signed representations to the cour 0 at disclosuresdiscovery requests objections motions re rules 1127 El a REQUIRED SIGNATURE El b REPRESENTATIONS TO THE COURT Atty certifies that to the best of the person39s knowledge information and belief formed after an inquiry reasonable under the circumstances 0 reasonable inquiry objective standard Court looks at what would have been reasonable at the time Amount of time atty had to investigate Whether atty had to rely on client Whether signer depended on other counsel Less time to investigateforced reliance on others I the less an atty will be expected to do to conduct a reasonable inquiry FRCP Checklist Outline 4 0 1 Filed for the right purpose I Improper purpose 2 delay harassment vindictiveness Proper vindicate legal rights Court must analyze objective reasonableness of parties conduct based on all the circumstances to see if those warrant inference of improper purpose 0 2 Legal contentions are warranted I Argument 2 nonfrivolous I think hypothetical reasonable attorney I Inadequate research at defense Ok to argue for overturning as long as you have non frivolous basis cite something if possible 0 3 Facts have evidentiary support or will after discovery I If evidentiary support isn t obtained after a reasonable opportunity for further investigation or discovery the party has a duty not to persist in that allegation I Not required to win later 0 4 Denials have evidentiary support Q are reasonably based on belief Q a reasonable lack of information I Premised on contradictory evidence to allegations I After investigation party has no info El c SANCTIONS O 1 In General Court may impose sanctions after allowing reasonable time to respond 0 2 Motion for Sanctions A motion for sanctions I Must be made separately from any other motion and I Must describe the specific conduct that allegedly violates Rule 11b I Motion must be served under Rule 5 but it I 21 day grace period Must not be filed or be presented to the court if the challenged paper claim defense contention or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets I If granted I If warranted the court may award to the prevailing party the reasonable eXpenses including attorney39s fees incurred for the motion FRCP Checklist Outline 5 O 3 0n the Court39s Initiative On its own the court may order an attorney law firm or party to show cause why conduct specifically described in the order has not violated Rule 11gb 1 O 4 Nature of a Sanction A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated The sanction may include nonmonetary directives an order to pay a penalty into court or if imposed on motion and warranted for effective deterrence an order directing payment to the movant of part or all of the reasonable attorney39s fees and other eXpenses directly resulting from the violation 0 5 Limitations on Monetary Sanctions The court must not impose a monetary sanction I A against a represented party for violating Rule 11 b 2 or I B on its own unless it issued the show cause order under Rule 11mg 3 before voluntary dismissal or settlement of the claims made by or against the party that is or whose attorneys are to be sanctioned I NOTE Sanctions must be limited to deter similar conduct in the future I Should not be granted for trivial violations 0 6 Requirements for an Order An order imposing a sanction must describe the sanctioned conduct and eXplain the basis for the sanction El d INAPPLICABILITY TO DISCOVERY This rule does not apply to disclosures and discovery requests responses objections and motions under Rules 26 through 37 El 1 Whether the complaint is legally or factually baseless from an objective perspective El 2 Did the attorney conduct a reasonable and competent inquiry before signing and filing it 0 How do we know what is reasonable I Easily accessible documents This is an objective reasonableness standard Objectively what would have an objectively reasonable person have done I Inherent authority court can sanction someone anyway if you do something in bad faith you can be sanctioned outside of rule 11 Rule 12 Defenses and Objections Rule 12 Time to Answer Q 1Ai A defendant must serve an answer within 21 days of being served the summons and complaint Q 1Aii unless timely service waived under Rule 4d within 60 days after request sent or within 90 days if defendant internationally abroad Rule 12b How to Present Defenses Q Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required But a party may assert the following defenses by motion FRCP Checklist Outline 6 1Lack of subj ectmatter jurisdiction 2 Lack of personal jurisdiction 3 Improper venue 4 Insufficient process 5 Insufficient service of process 6 Failure to state a claim upon which relief can be granted and 7 Failure to join a party under Rule 19 Rule 12 e Motion for a More Definite Statement I Largely redundant now that we have elevated pleading standards post Twombley and Iqbal I Motion for a more definite statement not as necessary when pleadings fail to meet the pleading standard you can just bring a 12b6 motion A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets the court may strike the pleading or issue any other appropriate order Rule 12f Motion to Strike I Similar to 12e This issue just doesn t come up as frequently post Twombley and Iqbal Court may strike from a pleading an insufficient defense or any redundant immaterial impertinent or scandalous matter Rule 1323 Compulsorv Counterclaims REQUIRED Step 1 Rule 13 a 1 A partv must file a compulsory counterclaim if El A The counterclaim arises out of the same transaction or occurrence as underlying claim and only one of these tests need be satisfied El Factual Overlap Test Are the legal and factual issues raised by the claim and counter claim are largely the same from Moore v NY Cotton Exchange El Substantially the Same Test Whether substantially the same evidence supports or refutes both the claim and the counterclaim from Moore v NY Cotton Exchange El Qgical Relationship Test Whether there is a logical relationship between the claim and counterclaim from Moore v NY Cotton Exchange El Concerted Action Test Did everyone act together with the same purpose In cahoots In concert Mosley v Gen Motors Corp El Would res judicata claim preclusion bar a subsequent suit on defendant39s claim absent the compulsorycounterclaim rule p B Does not require adding party that court has no jurisdiction over I If A B satis ed the claim is a compulsory counterclaim and must be filed unless the claim qualifies as an exception p Rule 13a2 Exceptions O A The claim was already the subject of a different pending claim when the instant case was filed FRCP Checklist Outline 7 O B The opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim and the pleader does not assert any counterclaim under this rule Rule 13b Permissive Counterclaims Q Party can file any other claim that isn t a compulsory claim against an opposing party Rule 132 Crossclaim Against a CODartx Q A party may file any crossclaim against a coparty as long as the claim arises out of the same transaction or occurrence as the underlying primary claim or counterclaim only one of these tests need be satisfied El Factual Overlap Test Are the legal and factual issues raised by the claim and counter claim are largely the same from Moore V NY Cotton Exchange El Substantially the Same Test Whether substantially the same eVidence supports or refutes both the claim and the counterclaim from Moore V NY Cotton Exchange D Logical Relationship Test Whether there is a logical relationship between the claim and counterclaim from Moore V NY Cotton Exchange El Concerted Action Test Did everyone act together With the same purpose In cahoots In concert Mosley V Gen Motors Corp Rule 13h h Joining Additional Parties Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim Rule 141a Impleader When A may implead a third party Q 1 Timing and practical matters 0 Defending party may serve a summons and complaint upon a nonparty Who is or may be liable for or part of the claim against it 0 Note that defendant must get the court s permission if files 3rd party complaint more than 14 days after A files it s original answer to underlying complaint Q g Third party defendant s claims and defen O A Must assert any defense against the third party plaintiff under Rule 12 O B Must assert any counterclaim against the thirdparty plaintiff under Rule 13a may optionally assert any counterclaim against the thirdparty plaintiff under Rule 13b or any crossclaim against another third party defendant under Rule 13g O C May optionally assert against the primary plaintiff any defense that the thirdparty plaintiff has to the plaintiff s claim 0 D May optionally assert against the primary plaintiff any claim arising out of the transaction or occurrence as the main primary claim asserted by primary plaintiff Q 3 Plaintiff s Claim s Ag st 3A 0 Primary plaintiff may optionally assert against 3A any claim arising out of the same transaction or occurrence as the underlying claim against 3H 3d must then assert any defense under Rule 12 must assert any compulsory counterclaim under rule 13a may optionally assert any permissive counterclaim under rule 13b or may optionally assert any crossclaim under Rule 13g FRCP Checklist Outline 8 Q 4 Motion to strike sever or trv sep telv 0 Any party may move to strike sever or try separately 3A claim Rule 15 Amended and Supplemental Pleadings Rule 1521 Amendments are permitted Q 1 Amending as a Matter of Course A party may amend its pleading once as a matter of course within 0 A 21 days after serving it or 0 B if the pleading is one to which a responsive pleading is required 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12b e or f whichever is earlier Q 2 Other Amendments of pleadings Only by leave of court or by written consent of the adverse party and leave shall be freelv given when iustice requires 0 What does freely given when justice requires mean Beeck v Aquaslide 8th Cir 1977 Absent an element of bad faith on the part of the Defendant courts will generally grant a Defendant leave to amend his answer to a complaint unless it will clearly prejudice the ability of the Plaintiff to proceed with his suit The court reasoned that the amendment would merely allow the defendant to contest a disputed factual issue at trial and further that it would be prejudicial to the defendant to deny the amendment The court understood that the risk of harm to the Plaintiff in granting leave to amend ie the inability to refile against a proper Defendant was less than the risk of having the wrong Defendant Aquaslide pay for a harm it did not in ict I F oman v Davis 1962 Leave to amend shall be freely given when justice is so requires when If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief he ought to be afforded an opportunity to test his claim on the merits In the absence of any apparent or declared reason such as undue delay bad faith or dilatory motive on the part of the movant repeated failure to cure deficiencies by amendments previously allowed undue prejudice to the opposing party by virtue of allowance of the amendment futility of the amendment etc the leave sought should as the rules require be freely given 0 Hanson v Hunt Oil Co 8th cir 1968 The court searched the record for evidence of bad faith prejudice and undue delay which might be sufficient to overbalance the rule of 15 a Prejudice must be shown to allow an amendment the burden is on the opposing party to show prejudice I Bz nncing of factors 0 Grant 0 Rule s bias towards amending leave 0 Amendment aids decision on the merits 0 Deny O Undue delayharm to party 39 Court will want to know why didn t moving party not seek leave to amend sooner 0 Bad faithdilatory motive Party just wants tactical advantage 0 Repeated failure to correct problems 0 Futility of proposed amendment FRCP Checklist Outline 9 0 Amendment doesn t facilitate resolution on the merits O Undue prejudice to the opposing party by virtue of allowance of the amendment Rule 15b Amendments during and after trial El 1 Based on objection at trial If at trial a party objects that evidence is not within the issues raised in the pleadings the court may permit the pleadings to be amended The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party s action or defense on the merits The court may grant a continuance to enable the objecting party to meet evidence El 2 For issues tried by consent When an issue is not raised by the pleadings is tried by the parties express or implied consent it must be treated in all respects as if raised in the pleadings A party may move at any time even after judgment to amend the pleadings to conform them to the evidence and to raise an unpleaded issue But failure to amend does not affect the result of the trial of that issue 0 1 0 2 0 3 Rule 15c Relation BM of Amendments El 1 Amendment to pleading relates back to date of original pleading when 0 A REg QUIRED Statute of limitations allows relation back 0 B RES UIREDz Amendment asserts a claim or defense that arose out of the conduct transaction or occurrence set out or attempted to be set out in the original pleading El Factual Overlim Test Are the legal and factual issues raised by the claim and counter claim are largely the same from Moore V NY Cotton Exchange El Substantially the Same Test Whether substantially the same evidence supports or refutes both the claim and the counterclaim from Moore V NY Cotton Exchange D Logical Relationship Test Whether there is a logical relationship between the claim and counterclaim from Moore V NY Cotton Exchange El Concerted Action Test Did everyone act together with the same purpose In cahoots In concert Mosley V Gen Motors Corp 0 C REQUIRED The new ngmed party will be named only if Rule 15 c1B satisfied proper fairness of service as defined Rule 4m and if the following two mandatory conditions are met i Received notice of action that it will not be prejudiced in defending on the merits prejudiced this has already been decided against this amendment to the pleading will not cause the judge or jury to be swayedbiased against the party to be brought in by amendment ii Knew or should have known of the lawsuit but for a mistake concerning the party s identity 0 What is a mistake 0 Intentional wrong decision with knowledge at mistake 0 Mistake error misconception erroneous belief FRCP Checklist Outline 10 0 Flexibility from the defendant s perspective inquiry as to defendant s knowledge 0 If mistake yes relation back 0 If no mistake no relation back El 2 Provision specifically about notice to a US officer or agency is satisfied by mailing service of process to US attorney or US attorney designee Rule 15d Supplemental Pleadings El On motion and reasonable notice the court may on just terms permit a party to serve a supplemental pleading set out any transaction occurrence or event that happened after the date of the pleading to be supplemented The court may permit supplementation even though the original pleading is defective in stating a claim or defense The court may order that the opposing party plead to the supplemental pleading within a specified time Rule 18 J oinder of Claims El Once a proper claim counterclaim crossclaim or thirdparty claim may join any other claims heshe wants El A party may join 2 claims even if the outcome of one is dependent on the disposition of another Rule 19 Required J oinder of PiLies I Dismissal is usually sought under Rule 12b and the issue may be raised any time up until judgment I Analysis of a compulsory joinder issue follows a 3 step process 1 Should the absentee be joined 2 Can the absentee be joined 3 If not should the action proceed in party s absence is the absent party indispensable 1 Should the absentee be joined The absentee should be joined as a party when El Rule 19a1A Complete relief cannot be accorded among existing parties El Rule 19a1B Absentee has such an interest in the subject matter of the lawsuit that a decision in his absence will 0 as a practical matter impair or impede his ability to protect the interest Rule 19a1Bi interest legally protected interest example BLR3RD party to a contract obviously has an interest that would be interfered with Doesn t get more clear cut than that 0 leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations Rule 19a1Bii 2 Can the absentee be joined El Rule 19a2 Assuming that absentee should be joined under analysis above the next question is whether he can be joined ie whether the court can obtain personal jurisdiction over absentee and whether the court will still have subject matter jurisdiction ie lack of diversity would ruin jurisdiction under 28 USC 1332 If joinder is feasible absentee must be joined 3 Should the lawsuit proceed anyway in indispensable party s absence El Rule 19b If absentee cannot be joined the court must determine whether in equity and good conscience whether the lawsuit should proceed or be dismissed The decision requires consideration of FRCP Checklist Outline 11 0 The extent of prejudice to the absentee or available parties of a judgment 0 The extent to which the prejudice can be reduced or avoided by means of protective provisions in the judgment the shaping of relief or other measures 0 The adequacy of a judgment rendered without the absentee and 0 Whether the plaintiff will have an adequate remedy eg in another forum if the case is dismissed for nonjoinder 1 if there is no alternative forum the court should be extra cautious before dismissing suit Dawavendewa Note The Supreme Court has held that a joint tortfeasor subject to joint and several liability is not a person needed for just adjudication Temple v Synthes Corp 498 US 5 1990 Rule 20a Permissive J oinder of Parties Rule 201a 1 governs which parties may optionally join together as plaintiffs when U A Some claim is made relating to or arising out of the same series of occurrences or transactions and El Factual Overlap Test Are the legal and factual issues raised by the claim and counter claim are largely the same from Moore v NY Cotton Exchange El Substantially the Same Test Whether substantially the same evidence supports or refutes both the claim and the counterclaim from Moore v NY Cotton Exchange D Logical Relationship Test Whether there is a logical relationship between the claim and counterclaim from Moore v NY Cotton Exchange El Concerted Action Test Did everyone act together with the same purpose In cahoots In concert Mosley v Gen Motors Corp E B There is a common question of fact or law to all plaintiffs or defendants 0 Example It is very common for all persons injured in an automobile accident to join as plaintiffs The common issue is the defendant s negligence the other issues of contributory negligence and damages are tried individually for each plaintiff Rule 201an2 governs which parties may optionally join together as defendants when U A Some claim is made relating to or arising out of the same series of occurrences or transactions and only one of these tests need be satisfied El Factual Overlap Test Are the legal and factual issues raised by the claim and counter claim are largely the same from Moore v NY Cotton Exchange El Substantially the Same Test Whether substantially the same evidence supports or refutes both the claim and the counterclaim from Moore v NY Cotton Exchange D Logical Relationship Test Whether there is a logical relationship between the claim and counterclaim from Moore v NY Cotton Exchange El Concerted Action Test Did everyone act together with the same purpose In cahoots In concert Mosley v Gen Motors Corp E B There is a common question of fact or law to all plaintiffs or defendants 0 Example It is very common for all persons injured in an automobile accident to join as plaintiffs The common issue is the defendant s negligence the other FRCP Checklist Outline 12 issues of contributory negligence and damages are tried individually for each plaintiff 0 Common Question of Law or Fact Rule 20 3 Extent of Relief El Do not need to demand or obtain all relief demanded Rule 20 3 Protective Measures El Court has final discretion to allow joinder or not courts considers factors of efficiency and fairness Note that the court still must have subject matter jurisdiction over the claim Rule 22 Interpleader Rule Interpleader Attribute Rule interpleader FRCP Statutory interpleader 22 1335 Determining Diversity Complete diversity between Minimal diversity among the stakeholder and all claimants satisfied if any claimants one claimant is diverse from any other claimant Amount in controversy gt75000 must be greater At least 500 than Personal Jurisdiction All claimants must have Nationwide service 2361 minimum contacts with not bound by state limits state and state must allow Rule 4k1c service Venue based on residence Where all defendants reside Where any defendant resides Rule 22 Grounds of Interpleader El 1 Interpleader by Plaintiff Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead J oinder for interpleader is property even though 0 A The claims of the several defendants or the titles on which their claims depend lack a common origin or are adverse and independent rather than identical 0 B The plaintiff denies liability in whole or in part to any or all of the claimants El 2 Interpleader bv DefendaLt A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim Rule 22b Relation to Other Rules and Statutes El This rule supplements and does not limit the joinder of parties allowed by Rule 20 The remedy this rule provides is in addition to and does not supersede or limit the remedy provided by 28 USC 1335 1397 and 2361 Rule 23 Class Actions REQUIRED Step 1 Rule 2313 all of these conditi s must be satisfied to certify a class action FRCP Checklist Outline 13 El 1 Numerosity El 2 Commonality now strict standard see Walmart V Dukes H must show all have same injury Common contention relief would offer all same answer How much At least greater than Walmart El 3 Typicality El 4 Adequate Representation 0 Qualified experienced capable attorneys O Representatives must have same interests as other class members 0 Note that court can decertify class at any stage of litigation or remove class members if representation is inadequate REQUIRED Step 2 Rule 23b what tvDe of class action is it Lawsuit must t under one of these categories or class action will not be certi ed Q 1 a Risk of inconsistent judgments resulting in incompatible standards of conduct chainsaw b separate judgments would impede interests of other members not parties ie prevent some individuals from getting relief because ran out Notice to parties rule I 23c2a also note parties cannot opt out notice not required 2 Declaratory Injunctive Relief Not monetary damages compels specific performance ie make schools integrate Cannot file this type of lawsuit request money Notice to parties rule I 23c2a Key is indivisible nature of relief sought applies only when single order will provide relief to all class members also note parties cannot opt out notice not required El 3 Predominate question of common law or fact Litigating claims together must be superior to other forms of litigation Under Rule 23c courts will consider A The class members interests in individually controlling the prosecution or defesne of separate actions B The extent and nature of any litigation concerning the controversy already begun by or against class members C The desirability or undesirability of concentrating the litigation of the claims in the particular forum and D The likely difficulty in managing a class action E Notice to parties rule I 23 c2b Notice to parties is mandatory right to opt out Step 3 Rule 23c Practical matters Timing Appeal Notice Q 1 Certification Order 0 A Class certified at an early practical time 0 B Class defined order must appoint class counsel 0 C Order may be amended before final judgment Q 2 Notice 0 A bl b2 type lawsuits Risk of inconsistent judgmentDeclaratory relief Notice to the appropriate class is optional 0 B b3 type lawsuits Predominate question of law or fact Notice to the appropriate class is mandatory under all practical circumstances Must serve all known plaintiffs at known locations Rule 23e Settlement El Note that court must approve any settlement of the class action making sure that class representative doesn t just the best deal and everyone else gets screwed Parties must provide notice of proposedsettlement terms to class members Rule 23m Annez FRCP Checklist Outline 14 Q Appeals Unlike other appeals either plaintiffs or defendants can immediately appeal a class certification order within 14 days of the date of judgment entered Step 4 Other class action lawsuit elements to consider U Is the amount in controversy greater than 5000000 0 YES If yes 28 USC 1332d2 IOnly minimal diversity required Court will have jurisdiction as long as 1 member is diverse Court s power to hear the case is optional see below U Will the court hear the case if the amount in controversy is greater than 5000000 0 Under 28 USC 1332d3 if more than 13 of class members are from the same state as primary defendants action filed in citizenship state of defendants claim arose in that state court may decline to hear that case based on factors listed in 1332d3 0 If more than 23 of class members are from the same state as any significant defendant action filed in citizenship state of defendants claim arose in that state courts must refuse to hear the case U Is the amount in controversy less than 5000000 0 A class representative bringing suit in federal court must demonstrate that the case raises a federal question 1331 or meets diversity requirements 1332 or that the particular claims fits under one of the more specialized federal question statutes such as 1343civil rights claims Federal question jurisdiction same analysis regardless of whether class action or ordinary claim U Do the claims arise under state law 0 Plaintiff may need to make use of diversity andor supplemental jurisdiction U 1332 Are the plaintiffs trying to use diversity jurisdiction to have the claim hear in federal court 0 In determining diversity in class action lawsuits courts consider only the citizenship of named representatives Therefore diversity jurisdiction can still exist even if a number of the class members are from the same state as one more of the defendants U 1332 Do the plaintiffs satisfy the amount in controversy requirement 0 Note that when applying the amount in controversy amount not all class members must satisfy the amountin controversy requirement Exxon v Alpattah 0 Note that supplemental jurisdiction is only available if at least one of the members of the plaintiff class has a claim exceeding 75000 Intervention of Right Rule 241a 1 2 A party seeking to intervene as of right under Rule 24a1 must show that outlining statutory interventi U Does the intervening party have an unconditional right to intervene protected by statute If not maybe you still have a mandatory right to intervene See next test below Intervention of Right as interpreted by Chiles Rule 2413212 A party seeking to intervene as of right under Rule 24a2 must show that outlining rule intervention El 1 Is the application to intervene is timely no precise standard for timeliness but should be filed before seven months after action filed and before discovery Chiles efficiency rationale U 2 Does party have a significant protectable interest relating to the property or transaction which is the subject of the action FRCP Checklist Outline 15 0 Example chiles Interest significant protectable interest U 3 Is the party so situated that disposition of the action as a practical matter may impede or impair his ability to protect that interest U 4 Is intervenin ar s interest is re resented inadequately by the existing parties to the suit g P P Permissive Interventi A party seeking optional intervention under Rule 24b1 must show that U Does the intervening party an unconditional right to intervene protected by statute If not maybe you still have a mandatory right to intervene See next test below A party seeking to optional intervention under rule 24b1B must show that as interpreted by Chiles U 1 Is the application to intervene is timely no precise standard for timeliness but should be led before discovery Chiles El 2 Does intervening party s claim or defense and the main action have a common question of law or fact District court has discretion to deny intervention even if both of these requirements are met and its decision is reviewed for an abuse of discretion Rule 26a1A Required Initial Disclosures Q i Names of people wdisco info E ii Copy of all documents disclosing party has that he may use to support his claims Q iii Computation of damages supporting evidence unless priV iV Allow ins agreement for inspection Rule 26a1B Proceedings EXEMPT from Initial Disclosures i an action for review on an administrative record EIEI ii a forfeiture action in rem arising from a federal statute iii a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence EIEI iv an action brought without an attorney by a person in the custody of the United States a state or a state subdivision V an action to enforce or quash an administrative summons or subpoena Vi an action by the United States to recover benefit payments Vii an action by the United States to collect on a student loan guaranteed by the United States viii a proceeding ancillary to a proceeding in another court and EIEIEIEIEI ix an action to enforce an arbitration award Rule 26a 1 C Time for Initial Disclosures El At or within 14 days of 26f conference unless another date set Rule 26a1D Time for Initial Disclosures for parties ioined LATER El If joined after 26f conference 30 days within being servedjoined Rule 261a212 Disclosure of Expert Testimonv El D I disclose within 90 days of trial Parties are required to disclose the names of their testifying experts at least ninety days before trial together with a report concerning their opinions and the bases of those opinions their qualifications compensation and other information After disclosure testifying FRCP Checklist Outline 16 experts may be deposed as well Rule 26 b 4A Q Nontestifying experts I Nontestifying experts however are treated differently Rule 26 a does not require disclosure of the identity or opinions of nontestifying experts and Rule 26 b 4 D provides that a party may only seek discovery concerning nontestifying experts upon a showing of exceptional circumstances Rule 26a3A Pretrial Disclosures El i Witness information El ii Indicate which witnesses whose testimony will be taken by deposition El iii Identify each documentexhibit party expects to offer Rule 26a3B Pretrial Disclosures Q Disclosures Unless otherwise court ordered disclosures at least 30 days before trial Q Objections Opposing party may file objections within 14 days of disclosures 0 Any objections to the use under Rule 32a of a deposition designated by another party under Rule 26a3Aii and 0 Any objection together with the grounds for it that may be made to the admissibility of materials identified under Rule 26a3Aiii 0 An objection not so made except for one under Federal Rule of Evidence 402 or 403 is waived unless excused by the court for good cause Rule 26 b Discoverv Scope and Limits El Default standard unprivileged facts relevant to any claim or defense narrow standard Broader standard unprivileged facts relevant to the subject matter of the action but not more directly connected to the particular claims and defenses m need court s permission with good cause shown to get broader disco The rule changes additionally require that discovery of inadmissible facts which appear reasonably calculated to lead to the discovery of admissible evidence also must be within the scope of permissible discovery Thompson v Dept of Housing Rule 26b3A Trial Preparation Materials El Privileged info only if H has substantial need and is otherwise unable to obtain info even if other side was only intending to use info for impeachment purposes Gutshall v New Prime Rule 26b3B Protection A2ainst Disclosure El Priv info mental impressions Hickman v Taylor conversationintangibles El FRCP 26 protects tangibles partial codification El privilege protects documents produced in the course of case preparation and opinions of counsel but does not allow counsel to refuse proper discovery requests for factual knowledge about the issues Rule 26b4 Trial Preparation Experts 0 Can depose nontestifying experts if hired before anticipation of litigation as fact witnesses If later hired in anticipation of litigation may depose nontestifying expert in fact witness capacity Rule 26b5 Claiming Privilege or Protecting TrialPreparation Materials FRCP Checklist Outline 17 Rule 26c Protective Orders El 1 In General A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending or as an alternative on matters relating to a deposition in the court for the district where the deposition will be taken El I MUST include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action The court my for good cause issue an order to protect a party or person from annoyance embarrassment oppression or undue burden or expense including one or more of the following 0 A forbidding the disclosure or discovery 0 B specifying terms including time and place for the disclosure or discovery 0 C prescribing a discovery method other than the one selected by the party seeking discovery 0 D forbidding inquiry into certain matters or limiting the scope of disclosure or discovery to certain matters E designating the persons who may be present while the discovery is conducted 0 F requiring that a deposition be sealed and opened only on court order 0 G requiring that a trade secret or other confidential research development or commercial information not be revealed or be revealed only in a specified way and O H requiring that the parties simultaneously file specified documents or information in sealed envelopes to be opened as the court directs El 2 Ordering Discovery If a motion for a protective order is wholly or partly denied the court may on just terms order that any party or person provide or permit discovery El 3 Awarding Expenses Rule 37a5 applies to the award of expenses 0 Rule 261g Signing Disclosures and Discoverv Requests Responses and Obiections Step 11 Document signed AND Step 2 1A Document complete and correct AND Step 3 1B i consistent with law warranted ii proper purpose at harassment delay increase cost iii Neither unreasonable nor unduly burdensome Step 4 Not signed I Court must strike it unless attorney promptly signs it Step 5 Sanctions Attorney must provide substantial justification OR court will impose appropriate sanction sua sponte or by motion Rule 27 Depositjons to Perpetuate Testimonv Rule 28 Persons Before Whom Denositjons Mav Be Taken Rule 29 Stipulations About Discovery Procedure Rule 30 Depositions bv Oral Examination 0 Applies to parties AND nonparties 0 Even a party s attorney s deposition may be taken but the attorneyclient privilege may limit the scope of questioning 0 Depositions 10 tops unless otherwise specified by court order 0 Rules allow a party to describe the information sought while placing the burden on the opposing party FRCP Checklist Outline 18 to designate a specific person for deposition 0 Rule 31 Depositions bv Written Ouestions parties and nonparties Rule 32 Using Depositions in Court Proceedings Rule 3321 Interroggtories El 1 Number 25 tops El 2 Scope 26b Rule 33b Answers and Obiections El 1 Must be answered 0 by the person named O or if corp I any officer or agent El 2 Respond Within 30 days unless stip by 29 or ordered by court El 3 Answers 0 MUST be in writing answered separately and under oath El 4 Objections 0 Grounds for objecting must be stated with specificity El 5 Signature required Rule 33c Use El consistent with fed rules of evidence Rule 34g Producing Documents Electronically Stored Information and Tangible Things or Entering onto Lgnd for IqspecMnd Other Purposes Party may request within the scope of 26b El 1 To produce 0 A any designated documents 0 B tangible things El 2 Entry onto property Rule 34b Procedure Producing Documents Electronically Stored Information and Tangible Things or Entering onto Lgnd for Inspection gnd Other Purposes REQUIRED 1 Content of request MUST contain El A must describe with reasonable particularity each item or category of items to be inspected El B must specify a reasonable time place and manner for the inspection and for performing the related acts and El C may specify the form or forms in which electronically stored information is to be produced Rule 34b2 Responses and Obiecti s Producing Documents Electronically Stored Information m Tangible Things or Entering onto Land for Inspectioimd Other Purposes Q A Other party must respond within 30 days or other if stip by Rule 29 Q B Respond to each item Q C Objections must specify the part and permit inspection of the rest FRCP Checklist Outline 19 E D Respond to electronic request I may object to specified form Q E Producing Electronic Discovery Rule 35 thsicz lnd Mental Examinations at nonparties Rule 36 Request for Admissions at nonparties I narrower than interrogatories El A Scope and Procedure 0 1Scope 2 Form Copy of Document 3 Time to Respond 30 days or R29 or CO 4 Answer 5 Objections O 6 Motion Regarding the Sufficiency of an Answer or Objection El b Effect of an Admission Withdrawing or Amending it 0000 Rule 37 Failure to Mam Disclosures or to Coonerate in Discovery Sanctions Rule 37a Motion for An Order Compelling Disclosure or Discoverv Q 1 Motion to compel discovery 0 MUST certify that movant in good faith conferred or attempted to confer with the person or party failing to make disclosure in an effort to obtain it without court action El 2 Appropriate Court A motion for an order to a party must be made in the court where the action is pending A motion for an order to a nonparty must be made in the court where the discovery is or will be taken El 3 Specific Motions O A To Compel Disclosure If a party fails to make a disclosure required by Rule 26 a any other party may move to compel disclosure and for appropriate sanctions O B To Compel at Discovery Response A party seeking discovery may move for an order compelling an answer designation production or inspection This motion may be made if I i a deponent fails to answer a question asked under Rule 30 or Q I ii a corporation or other entity fails to make a designation under Rule 30b 6 or 31 a A I iii a party fails to answer an interrogatory submitted under Rule 33 or I iv a party fails to respond that inspection will be permitted or fails to permit inspection as requested under Rule 34 FRCP Checklist Outline 20 O C Related to a Deposition When taking an oral deposition the party asking a question may complete or adjourn the examination before moving for an order El 4 Evasive or Incomplete Disclosure Answer or Response For purposes of this subdivision a an evasive or incomplete disclosure answer or response must be treated as a failure to disclose answer or respond El 5 Payment of Expenses Protective Orders 0 A If the Motion Is Granted or Disclosure or Discovery Is Provided After Filing If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed the court must after giving an opportunity to be heard require the party or deponent whose conduct necessitated the motion the party or attorney advising that conduct or both to pay the movant39s reasonable eXpenses incurred in making the motion including attorney39s fees But the court must not order this payment if I i the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action I ii the opposing party39s nondisclosure response or objection was substantially justified or I iii other circumstances make an award of eXpenses unjust O B If the Motion Is Denied If the motion is denied the court may issue any protective order authorized under Rule 26 c and must after giving an opportunity to be heard require the movant the attorney filing the motion or both to pay the party or deponent who opposed the motion its reasonable eXpenses incurred in opposing the motion including attorney39s fees But the court must not order this payment if the motion was substantially justified or other circumstances make an award of eXpenses unjust O C If the Motion Is Granted in Part and Denied in Part If the motion is granted in part and denied in part the court may issue any protective order authorized under Rule 26 c and may after giving an opportunity to be heard apportion the reasonable eXpenses for the motion Rule 37b Failure to Comnlv With Court Order El 1 Sanctions Sought in the District Where the Deposition Is Taken If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey the failure may be treated as contempt of court If a deposition related motion is transferred to the court where the action is pending and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending El 2 Sanctions Sought in the District Where the Action Is Pending FRCP Checklist Outline 21 0 A For Not Obeying a Discovery Order If a party or a party39s officer director or managing agent or a witness designated under Rule 30 b 6 or 31a4 fails to obey an order to provide or permit discovery including an order under Rule 26 f 1 g or m the court where the action is pending may issue further just orders They may include the following I i directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action as the prevailing party claims I ii prohibiting the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters in evidence I iii striking pleadings in whole or in part I iv staying further proceedings until the order is obeyed I v dismissing the action or proceeding in whole or in part I vi rendering a default judgment against the disobedient party or I vii treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination 0 B For Not Producing a Person for Examination If a party fails to comply with an order under Rule 3521 requiring it to produce another person for examination the court may issue any of the orders listed in Rule 37b2Ai vi unless the disobedient party shows that it cannot produce the other person 0 C Payment of Expenses Instead of or in addition to the orders above the court must order the disobedient party the attorney advising that party or both to pay the reasonable expenses including attorney39s fees caused by the failure unless the failure was substantially justified or other circumstances make an award of expenses unjust Rule 37c Failure to Disclose To Supplement an Earlier Response or to Admit El 1 Failure to Disclose or Supplement If a party fails to provide information or identify a witness as required by Rule 2621 or e the party is not allowed to use that information or witness to supply evidence on a motion at a hearing or at a trial unless the failure was substantially justified or is harmless In addition to or instead of this sanction the court on motion and after giving an opportunity to be heard 0 A may order payment of the reasonable expenses including attorney39s fees caused by the failure 0 B may inform the jury of the party39s failure and FRCP Checklist Outline 22 O C may impose other appropriate sanctions including any of the orders listed in Rule 37b 2 A i vi El 2 Failure to Admit If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true the requesting party may move that the party who failed to admit pay the reasonable eXpenses including attorney39s fees incurred in making that proof The court must so order unless O A the request was held objectionable under Rule 3621 O B the admission sought was of no substantial importance 0 C the party failing to admit had a reasonable ground to believe that it might prevail on the matter or O D there was other good reason for the failure to admit Rule 37 d Partv s Failure to Attend Its Own Deposition Serve Naswer t0 Interrogatories Or Respond to a Request for Inspection El 1 In General 0 A Motion Grounds for Sanctions The court where the action is pending may on motion order sanctions if I i a party or a party39s officer director or managing agent or a person designated under Rule 30 b 6 or 31a4 fails after being served with proper notice to appear for that person39s deposition or I ii a party after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34 fails to serve its answers objections or written response 0 B Certification A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action El 2 Unacceptable Excuse for Failing to Act A failure described in Rule 37d1A is not excused on the ground that the discovery sought was objectionable unless the party failing to act has a pending motion for a protective order under Rule 26 c 1 El 3 Types of Sanctions Sanctions may include any of the orders listed in Rule 37b2Ai vi Instead of or in addition to these sanctions the court must require the party failing to act the attorney advising that party or both to pay the reasonable eXpenses including attorney39s fees caused by the failure unless the failure was substantially justified or other circumstances make an award of eXpenses unjust FRCP Checklist Outline 23 Rule 37 e Failure to Provide Electronicallv Stored Information El Absent exceptional circumstances a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine good faith operation of an electronic information system Rule 37f Failure to Participate in Framing a Discovery Plan El If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26 f 1 the court may after giving an opportunity to be heard require that party or attorney to pay to any other party the reasonable expenses including attorney39s fees caused by the failure Rule 41 a Voluntary Dismissal of Actions I absolute right El 1 By the Plaintl O A Without a Court Order Subject to Rules 23e 231c 232 and and any applicable federal statute the plaintiff may dismiss an action without a court order by filing I i a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment or I ii a stipulation of dismissal signed by all parties who have appeared O B E ect Unless the notice or stipulation states otherwise the dismissal is without 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 El 2 By Court Order E ect Except as provided in Rule 4121 1 1 an action may be dismissed at the plaintiffs request only by court order on terms that the court considers proper If a defendant has pleaded a counterclaim before being served with the plaintiffs motion to dismiss the action may be dismissed over the defendant39s objection only if the counterclaim can remain pending for independent adjudication Unless the order states otherwise a dismissal under this paragraph 2 is without prejudice Rule 41 b Involuntary Dismissal of Actions Effect If the plaintiff fails to prosecute or to comply with these rules or a court order a defendant may move to dismiss the action or any claim against it Unless the dismissal order states otherwise a dismissal under this FRCP Checklist Outline 24 subdivision b and any dismissal not under this rule except one for lack of jurisdiction improper venue or failure to join a party under Rule 19 operates as an adjudication on the merits Will the court grant A s request for dismissal of It s action When Rule 41a doesn39t apply because it39s too late in the case so now you need court permission The court looks at the following factors 1 the plaintiff39s diligence in bringing the motion 2 any undue vexatiousness on the plaintiff39s part 3 the extent to which the suit has progressed including the defendant39s efforts and eXpense in preparation for trial 4 the duplicative eXpense of relitigation and 5 the adequacy of the plaintiffs eXplanation for a need to dismiss Example Hinfon v Pittson I NOTE Technically you can do things within the rules but there may be consequences due to policy considerations such as faimessefficiency the court will doll out Fee awards are often made when a plaintiff dismisses a suit without preiudice In contrast courts rarely award fees and costs and when an action is dismissed voluntarily with prejudice In these cases the judge followed the rule but still found an outcome they wanted Rule 41m Dismissing a Counterclaim Crossclaim or ThirdParty Claim This rule applies to a dismissal of any counterclaim crossclaim or third party claim A claimant39s voluntary dismissal under Rule 41a1Aimust be made El 1 before a responsive pleading is served or El 2 if there is no responsive pleading before evidence is introduced at a hearing or trial Rule 41 d Costs of a Previously Dismissed Action If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant the court El 1 may order the plaintiff to pay all or part of the costs of that previous action and FRCP Checklist Outline 25 El 2 may stay the proceedings until the plaintiff has complied Rule 42 Consolidation Sena lte Tria This rule gives the court discretion over consolidating cases or splitting them up El a Consolidation If actions before the court involve a common question of law or fact the court may 0 1 join for hearing or trial any or all matters at issue in the actions 0 2 consolidate the actions or O 3 issue any other orders to avoid unnecessary cost or delay El b Separate Trials For convenience to avoid prejudice or to expedite and economize the court may order a separate trial of one or more separate issues claims crossclaims counterclaims or thirdparty claims When ordering a separate trial the court must preserve any federal right to a jury trial Rule 55a Default Judgment El Entering a Default When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend and that failure is shown by affidavit or otherwise the clerk must enter the party39s default Rule 55 b Entering a Default Judgment El 1 By the Clerk If the plaintiff s claim is for a sum certain or a sum that can be made certain by computation the clerk on the plaintiff s request with an affidavit showing the amount due must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person El 2 By the Court In all other cases the party must apply to the court for a default judgment A default judgment may be entered against a minor or incompetent person only if represented by a general guardian conservator or other like fiduciary who has appeared If the party against whom a default judgment is sought has appeared personally or by a representative that party or its representative must be served with written notice of the application at least 7 days before the hearing The court may conduct hearings or make referrals preserving any federal statutory right to a jury trial when to enter or effectuate judgment it needs to O A conduct an accounting 0 B determine the amount of damages 0 C establish the truth of any allegation by evidence or O D investigate any other matter Rule 55c Setting Aside a Default or a Default Judgment El The court may set aside an entry of default for good cause and it may set aside a default judgment under Rule 60b Rule 55d Judgment Against the United Stem El A default judgment may be entered against the United States its officers or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court FRCP Checklist Outline 26 Rule 5623 Motion for Summary IludgmentPartial Summary Judgment El Party may move for SJ identifying each piece El Yes SJ E the movant shows that there is no genuine dispute as to any material fact m the movant is entitled to judgment as a matter of law 0 I The defendant seeking summary judgment must demonstrate a lack of evidence supporting an essential element of the plaintiff s claims Jorgensen v EpicSony O I Step 1 Regardless of burden of proof on underlying substantive law moving party must show that there is no dispute then if that happens nonmoving party must show that there is a genuine dispute of fact I Need real evidence beyond the pleadings not enough to simply allege dispute 0 I Step 2 Movant must then show that they are entitled to judgment as a matter of law either by opposing party failing to make a prima facie case OR the judge must apply the law to the undisputed facts and see who wins El The court should state on the record the reasons for grantng or denying the motion Rule 56b Timing Motion for Summary J udgmentPartial Summary Judgment El I Note that this means you can file a Sum Jud very early on but 1 balances out this unfairness El Unless a different time is set by local rule or the court orders otherwise a party may file a motion for summary judgment at any time until 30 days after the close of all discovery Rule 560 Procedures Motion for Summary IludgmentPartial Summary Iludgment El 1 Supporting Factual Positions A party asserting that a fact cannot be or is genuinely disputed must support the assertion by O A citing to particular parts of materials in the record including depositions documents electronically stored information affidavits or declarations stipulations including those made for purposes of the motion only admissions interrogatory answers or other materials or O B showing that the materials cited do not establish the absence or presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact El 2 Objection That a Fact Is Not Supported by Admissible Evidence A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence El 3 Materials Not Cited The court need consider only the cited materials but it may consider other materials in the record El 4 Affidavits or Declarations An affidavit or declaration used to support or oppose a motion must be made on personal knowledge set out facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters stated Rule 56 d Facts Unavailable to NonMovant Motion for Summary J udgmentPartial Summary lIudgment Q I Basically this rule exists so the Judge can even out the playing field of fairness if soandso tries to pull a fast one and move for summary judgment right out of the starting gate Q When Facts Are Unavailable to the Nonmovant If a nonmovant shows by affidavit or declaration that for specified reasons it cannot present facts essential to justify its opposition the court may 0 1 defer considering the motion or deny it 0 2 allow time to obtain affidavits or declarations or to take discovery or FRCP Checklist Outline 27 O 3 issue any other appropriate order Rule 56e Facts Unavailable to NonMovant Motion for Summary J udgmentPartial Summary lIudgment Q Failing to Properly Support or Address a Fact If a party fails to properly support an assertion of fact or fails to properly address another party s assertion of fact as required by Rule 560 the court may 0 1 give an opportunity to properly support or address the fact 0 2 consider the fact undisputed for purposes of the motion 0 3 grant summary judgment if the motion and supporting materials including the facts considered undisputed show that the movant is entitled to it or O 4 issue any other appropriate order Rule 56 Judgment Independent of the Motion Motion for Summary IludgmentPartial Summary lIudgment E f Judgment Independent of the Motion After giVing notice and a reasonable time to respond the court may 0 1 grant summary judgment for a nonmovant 0 2 grant the motion on grounds not raised by a party or O 3 consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute Rule 561g Failing to Grant All the Requested Relief Motion for Summgrv JudgmentPartial Summary lIudgment El g Failing to Grant All the Requested Relief If the court does not grant all the relief requested by the motion it may enter an order stating any material fact including an item of damages or other relief that is not genuinely in dispute and treating the fact as established in the case Rule 56h Af davit or Declaration Submitted in Bad Faith Motion for Summary J udgmentPartial Summgrv Judgment El h Affidavit or Declaration Submitted in Bad Faith If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay the court after notice and a reasonable time to respond may order the submitting party to pay the other party the reasonable expenses including attomey s fees it incurred as a result An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions Rule 59 New Trig Altering or Amending Judgment D In General 0 1 Grounds for New Trial for any party I A after a jury trial for any reason for which a new trial has heretofore been granted in an action at law in federal court or I B after a nonjury trial for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court 0 2 Further Action After a Nonjury Trial After a nonjury trial the court may on motion for a new trial open the judgment if one has been entered take additional testimony amend findings of fact and conclusions of law or make new ones and direct the entry of a new judgment El b Time to File a Motion for a New Trial A motion for a new trial must be filed no later than 28 days after the entry of judgment FRCP Checklist Outline 28 El c Time to Serve Af davits When a motion for a new trial is based on affidavits they must be filed with the motion The opposing party has 14 days after being served to file opposing affidavits The court may permit reply affidavits El d New Trial on the Court39s Initiative or for Reasons Not in the Motion No later than 28 days after the entry of judgment the court on its own may order a new trial for any reason that would justify granting one on a party39s motion After giving the parties notice and an opportunity to be heard the court may grant a timely motion for a new trial for a reason not stated in the motion In either event the court must specify the reasons in its order El e Motion to Alter or Amend a Judgment A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment Rule 60 Relief From 2 Judgment or Order NOTE 0 If the time for appeals has past courts will not reopen a case under FRCP 60 Rule 602 Corrections based on clerical mist akes oversightsand omissions Rule 60 bGrounds from a Final Judgment Order or Proceeding On motion and just terms the court may relieve a party or its legal representative from a final judgment order or proceeding for the following reasons El 1 mistake inadvertence surprise or excusable neglect El 2 newly discovered evidence that with reasonable diligence could not have been discovered in time to move for a new trial under Rule 59 b El 3 fraud whether previously called intrinsic or extrinsic misrepresentation or misconduct by an opposing party El 4 judgment 2 void El 5 judgment 2 satisfied released or discharged it is based on an earlier judgment that has been reversed or vacated or applying it prospectively is no longer equitable or El 6 any other reason that justifies relief Rule 60 c Timing and Effect El Timing A motion under Rule 60b must be made within a reasonable time and for reasons 1 2 and 3 no more than a year after the entry of the judgment or order or the date of the proceeding El 2 Effect on Finality The motion does not affect the judgment39s finality or suspend its operation Rule 60 d Other Powers to Grant Relief This rule does not limit a court39s power to FRCP Checklist Outline 29 El 1 entertain an independent action to relieve a party from a judgment order or proceeding El 2 grant relief under 28 USC 1655 to a defendant who was not personally notified of the action 0139 El 3 set aside a judgment for fraud on the court Two parties can agree to an appeal Appeals more formalistic requirements because you theoretically already had your day in court start to care less about fairness more about efficiency 1 A winning party cannot appeal unless El Issue Preclusion The prevailing party is aggrieved by the collateral estoppel effect issue preclusion of a district court s ruling OR 0 Relitigation of an issue in a second action is precluded only if the judgment in the prior action was dependent upon the determination of the issue 0 Issue Preclusion all required to trigger issue preclusion Actually raised Actually litigated Actually decided Actually necessary 0 Situation Plaintiff s caseaffirmative case A won on the affirmative defense may appeal because he wants to win on the underlying merits El Unfairness A prevailing party can show that it is aggrieved by some respect of the trial court s judgment or decree 0 Example Electrical Fittings Corp v Thomas amp Betts Co 1939 DC entered judgment for the defendant finding that the A had not infringed the H s patent but also finding that the patent was valid SC held that DC should have entered the appeal not for the purpose of passing on the merits but to direct the reformation of the decree The Supreme Court id not disagree that the finding was immaterial but nevertheless SC directed DC to strike it from the decree The rationale of that decision was that the defendant was entitled to have it out because although it was not an estoppel it might create some presumptive Dreiudice 2 When can a party file the appeal El Option 1 28 USC 1291 When the decision is final 0 Appeal courts shall have jurisdiction of appeals from all final decisions 0 Purpose prevent piecemeal appeals avoid judges having to learn facts repeatedly 0 What s a final decision A final decision generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment Caitlin v US 1945 Must completely dispose of all the claims in the case Interlocutory appeal at final Partial summary judgment at final Summary judgment for defendant on plaintiff s claim if there s a pending cross claim at final Complete victory for A on all claims final even though no judgment FRCP Checklist Outline 30 I If not final or not an exception no SMJ court can t hear the appeal under 28 USC 1291 D Option 2 Exceptions 28 USC 1292a Interlocutory Exceptions rarely granted 0 a I 1 Interlocutory orders I 2 Receivership court takes possession of property when A unwilling I 3 Admiralty law 0 b Discretionary privilege of Judge that allows judge to grant interlocutory appeal I When a district judge in making a civil action D Option 3 Rule 54 0 Rule 54 a Judgment 0 Rule 54b Judgment on Multiple Claims or Involving When an action has more than one claim the court may direct entry of a final judgment as to any number of the claims without deciding all of them only if the court expressly determines that there is no just reason for delay I Final has no special meaning I So what s a claim 0 A claim for relief seek redress of a distinct wrong Naacp vAm F am Mut Ins C0 7 Cir 1992 0 One set of facts producing one injury creates one claim for relief no matter how many laws the deeds violate Naacp vAm Fam Mut Ins Co 7th Cir 1992 0 Different burdens may imply different claims even for purposes of preclusion Naacp vAm Fam Mut Ins Co 7th Cir 1992 0 Two claims may arise out of the same transaction for purposes of Rule 54b provided that the facts and theories are sufficiently distinct Two legal theories are sufficiently distinct if they call for proof of substantially different facts may be separate claims Naacp vAm Fam Mut Ins Co 7th Cir 1992 This is enough if just barely to justify treating a legal theory as a claim for purposes of Rule 54b Substantially sufficient hedges exible standard Claim something that substantially overlaps significantly with something else The facts and the legal theories need to be sufficiently separated that they 0 A claim is not a claim Labeling something a claim on a complaint doesn t make something a claim for the purposes of FRCP Samething for a judgment El Option 4 Writ of mandamus or prohibition 0 You can file another complaint to ask a Judge to ask another Judge to cut it out These do get filed but get filed more often in criminal law El Option 5 Collateral Order Doctrine El Option 6 Rule 23f 3 Timeline El 28 USC 2107 0 Party must appeal within 30 days after entry of judgment decree or order FRCP Checklist Outline 31 0 Unless US US agency or US employee party then 60 days
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