Federal Rule Of Civil Procedure

Rule 1

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81.

Should be construed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

Rule 2

There is one form of action - the civil action

Rule 3

Commencing an action

- A civil action is commenced by filing a complaint with the court as amended 2007

Rule 4

Summons

Rule 4a

A summons must:

- Name the court / parties

- Be directed at defendant

- State info of plaintiffs attorney or if unrepresented, the plaintiff

- State the time defendant must appear

- Notify failure to appear will result in default

- Be signed by the clerk

- Bear courts seal

Rule 4b

Issuance:

On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal.

If properly completed, clerk must sign, seal, and issue to the plaintiff for service on the defendant.

Copy addressed to multiple defendants must be issued for each defendant

Rule 4c

Service:

- Summons must be served with copy of complaint

- Any person 18 years old and not a party may serve

- Upon request a U.S. marshal may issue service

Rule 4d

A defendant can agree to waive service of process;

essentially meaning that the plaintiff doesn't have to serve them, one can solely mail the service along with complaint

Rule 4e

May be served by:

- Personal service

- Dwelling house or usual place of abode

- Mail

- Agent appointed to accept process

- In Illinois must be attempted first by a sheriff deputy; problematic because they're lazy; so you have to hire process served BUT fed rule 4 would trump if in diversity

Rule 4h

Serving Corporation, Partnership, or Association:

-Service of process must be made on a "representative so integrated with the organization."

-Does not have to be someone with a formal title i.e., it could be a long-time janitor

Rule 4m

Time limit for service:

- Defendant must be served within 120 days of filing; upon failure to do so, court or plaintiff can motion to dismiss w/o prejudice

- Can get it extended if having trouble filing it in person

Rule 7

Pleadings Allowed, form of motions and other papers:

- Complaint

- Answer to complaint

- An answer to a counterclaim

- An answer to a cross claim

- A third party complaint

- An answer to a third party complaint; and

- If the court orders one, a reply to an answer

Rule 8

General Rules of Pleading

Rule 8a

You must only have a short plain statement of:

1. Grounds for jurisdiction

2. Entitled to relief

3. Demand for relief sought

Rule 8b

Defenses: admissions and denials

- A short and plain statement defenses to each claim asserted and admit or deny allegations asserted

- General denial

- Specific denial

- Lacking knowledge

- If you fail to deny it is an admission

Rule 8c

Affirmative Defenses:

In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense including:

- Accord and satisfaction

- Arbitration and award

- Assumption of risk

- Contributory negligence

- Duress

- Estoppel

- Failure of consideration

- Fraud

- Illegality

- Injury by fellow servant

- Laches

- License

- Payment

- Release

- Res judicata

- Statute of frauds

- Statute of limitations

- Waiver

Rule 8d

Pleading to be concise and direct; alternative statements; inconsistency

- In general each allegation must be simple, concise and direct

-Alternative statements of a claim or defense: a party may set out two or more statements of a claim or defense alternatively if a party makes alternative statements, the pleading is sufficient if any one of them is sufficient

- In consistent claims or defenses: a party may state as many separate claims as it has, regardless of consistency

Rule 9a

Capacity

Except when required to show court has jurisdiction, pleading need NOT allege:

-Capacity to sue/be sued;

-Authority to sue/be sued in representative capacity;

-Legal existence of organized association of persons that is party.

To raise these issues, do by specific denial, state supporting facts

Rule 9b

Fraud or Mistake; Conditions of Mind.

In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.

Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

- 12e enforces this

- Exception to rule 8a2

Rule 11

Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

Rule 11a

Signature.

Every pleading, written motion, and paper must be signed by attorney or party.

The paper must state the signer's info, unless otherwise stated

Pleading need not be accompanied by an affidavit.

Court must strike unsigned paper unless promptly corrected after called to attention.

Rule 11b

Representations to the Court.

By presenting a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or party certifies that to the best of knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

Rule 11b1

It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation

Rule 11b2

The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

Rule 11b3

The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

Rule 11b4

The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Rule 11c

Sanctions

Rule 12

Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

Rule 12a

Time to Serve a Responsive Pleading.

Rule 12a1

Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is:

Defendant must serve answer:

-Within 21 days after service with summons and complaint; or

-If timely waived service under Rule 4d, within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

If the court grants motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served

Rule 12b

Defenses must be asserted in response.

Assert by motion:

1-lack of subject-matter 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

7-failure to join a party under Rule 19.

Rule 12c

Motion for Judgment on the Pleadings.

After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

Rule 12e

Motion for More Definite Statement.

Responsive pleading is allowed but is so vague that party cannot respond

Motion must be made before filing a response and must point out defects complained of and details desired.

If ordered and not obeyed within 14 days after notice of order or within the time the court sets, court may strike the pleading or issue any other appropriate order.

Rule 12f

Motion to Strike.

The court may strike any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Court may act:

1. On own; or

2. On motion made by party before responding to pleading or, if response not allowed, within 21 days after served with pleading

Rule 15

Amended and Supplemental Pleadings

Rule 15a

Amendments Before Trial.

Rule 15a1

Amending as a Matter of Course.

Party may amend its pleading once as matter of course within:

- 21 days after serving it, or

- If 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

Rule 15a2

Other Amendments.

- In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.

- The court should freely give leave when justice so requires.

Rule 15a3

Time to Respond.

Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later

Rule 15b

Amendments During and After Trial.

Rule 15b1

Objection at Trial

-If, at trial, party objects evidence is not within issues in pleadings, court may permit pleadings amendment.

- Court should permit an amendment when it will aid in presenting merits and objecting party fails to state that evidence would prejudice party's action or defense

Rule 15b2

Issues Tried by Consent

Issues not raised by pleadings tried by parties' express or implied consent, must be treated as if raised in pleadings.

Party may move—at any time, even after judgment—to amend pleadings to conform them to evidence and raise an unpleaded issue.

Failure to amend does not affect result of trial of issue.

Rule 15c

Relation Back of Amendments

Rule 15c1

Amendment pleading relates back to date original pleading when:

-Statute of limitations allows relation back;

-Amendment asserts claim or defense that arose out of occurrence set out—or attempted to be set out—in original pleading; or

-Amendment changes party or the naming of party against whom claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

1.Received notice of the action that it will not be prejudiced in defending on the merits; and

2.Knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity

Rule 15c2

Notice to United States.

When United States, officer, or agency is added as defendant by amendment, notice Rule 15c satisfied if, during stated period, process was delivered or mailed to United States attorney United States attorney's designee, Attorney General, or to officer or agency.

Rule 15d

Supplemental Pleadings.

On motion and reasonable notice, court may permit party to serve supplemental pleading setting out any transaction, occurrence, or event that happened after date of pleading to be supplemented.

Court may permit even though original pleading is defective in stating a claim or defense.

Court may order that opposing party plead to supplemental pleading within specified time.

Rule 16

Pretrial Conferences; Scheduling; Management

Rule 16a

Court may order one or more pretrial conferences for:

1.Expediting disposition of action;

2.Establishing early / continuing control so case will not be protracted because lack of management;

3.Discouraging wasteful pretrial activities;

4.Improving quality of trial through more thorough preparation; and

5.Facilitating settlement.

Rule 26

Duty to Disclose; General Provisions Governing Discovery

Rule 26a

Required Disclosures

Rule 26a1

Initial Disclosure

Rule 26a1A

Party must, without awaiting discovery request, provide to other parties:

-Name and info of each individual with discoverable information

-Copy or description of all documents, electronically stored information, and tangible things that may use to support claims or defenses

-Computation of each category damages and documents or other material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

-Any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment

Rule 26a2

Disclosure of Expert Testimony

Rule 26b

Discovery Scope and Limits.

Rule 26b1

Unless otherwise limited by court order, scope of discovery is:

May obtain discovery regarding any nonprivileged matter relevant to claim or defense and proportional to needs of case, considering importance of issues at stake in the action, amount in controversy, parties' relative access to info, parties' resources, importance of discovery in resolving issues, and whether burden or expense of proposed discovery outweighs its likely benefit.

Information within this scope of discovery need not be admissible in evidence to be discoverable..

Rule 26d

Timing and Sequence of Discovery.

Rule 26d1

Timing

A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.

Rule 26d2

Time to Deliver

More than 21 days after summons and complaint are served on party, request under Rule 34 may be delivered:

-To that party by any other party, and

-By that party to any plaintiff or to any other party that has been served.

The request is considered to have been served at first Rule 26(f) conference.

Rule 26d3

Sequence

Unless parties stipulate or court orders otherwise for parties' and witnesses' convenience:

-Methods of discovery may be used in any sequence; and

-Discovery by one party does not require any other party to delay its discovery.

-Supplementing Disclosures and Responses.

Rule 26f

Conference of the Parties; Planning for Discovery.

Rule 26f1

Conference Timing.

Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).

Rule 26f2

Parties' Responsibilities.

In conferring, parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.

The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan.

The court may order the parties or attorneys to attend the conference in person.

Rule 26f3

A discovery plan must state parties' views and proposals on:

-What changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;

-Subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;

-Any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

-Any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

-What changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and

-Any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c)

Rule 26f4

Expedited Schedule.

If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:

-Require the parties' conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and

-Require the written report outlining the discovery plan to be filed less than 14 days after the parties' conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.

Rule 30

Depositions by Oral Examination

Rule 31

Depositions by Written Questions:

- You can give the court reporter the deposition questions and they will ask them for you

- GREENBERGER: never seen this happen

- Limit on deposition: 10 hrs/day

- Limit on time: 7 hrs/day

Rule 33

Interrogatories to Parties:

Important tool—basic questions:

B. Answers are prepared by the lawyers and have to be signed by the

lawyers

C.You can only serve interrogatories on parties NOT third parties

D. Intention Interrogatories; IE: are you contending this or that—they have to tell you

Rule 34

Request to produce

a. Along with depositions, this is the most significant

b. Request to inspect and copy documents or inspect real property

c. You tend to ask for documents by category

d. Documents are to be produced as they are in the ordinary care of business

Rule 35

Physical or Mental Examination

A. You have to go to the court to get the order and need to show good cause

B. Most common in personal injury

Rule 36

Request for Admission

A. Not used often and doesn't work well

B. Only can be used against parties—served a list of request for admission

-List of what you want party to admit or deny

C. Don't respond deemed admittance

D. Useful for getting genuineness of documents

-For eliciting basic facts

Rule 45

Subpoena

Rule 54

Judgment; Costs

Rule 54c

Demand for Judgment; Relief to Be Granted.

-Default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.

-Every other final judgment should grant the relief which each party is entitled, even if party hasn't demanded that relief in its pleadings

Rule 54d

Costs; Attorney's Fees

Rule 54d1

Costs Other Than Attorney's Fees.

-Unless a federal statute, rules, or court order provides otherwise, costs—other than attorney's fees—should be allowed to prevailing party.

-Costs against United States, officers, and agencies may be imposed only to extent allowed by law.

-Clerk may tax costs on 14 days' notice.

-On motion served within next 7 days, court may review clerk's action

Rule 54d2

Attorney's Fees

Claim by Motion. A claim for attorney's fees and related nontaxable expenses must be made by motion unless substantive law requires those fees to be proved at trial as an element of damages.

Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must:

-Be filed no later than 14 days after entry of judgment;

-Specify judgment and statute, rule, or other grounds entitling movant to award;

-State the amount sought or provide a fair estimate of it; and

-Disclose, if the court so orders, terms of any agreement about fees for services for which claim is made

Rule 55

Default; Default Judgment

Rule 55a

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, clerk must enter the party's default

Rule 55b

Entering a Default Judgment.

Rule 55b1

If plaintiff's claim is for sum certain or sum that can be made certain by computation, the clerk—on plaintiff's request, with affidavit showing amount due—must enter judgment for amount and costs against defendant who has been defaulted for not appearing and who is neither a minor nor incompetent.

Rule 55b2

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 hearing.

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:

-Conduct an accounting;

-Determine the amount of damages;

-Establish the truth of any allegation by evidence; or

-Investigate any other matter.

Rule 55c

Setting Aside a Default or a Default Judgment.

The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60b.

Rule 55d

Judgment Against the United States.

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.

Rule 56a, 56b, 56c

Refers to affidavits, if any, meaning they are not required—a and b allows for summary judgment with or without supporting affidavits

Rule 56d

You can get partial summary judgment

- Utilized very frequently

Rule 56e

Affidavits must be sworn

Rule 56f

Judgment dependent on the motion—explaining why at the time it would

have been impractical for her to do so.

Rule 57

Governs procedure for obtaining declaratory judgment under 28 U.S.C. §2201.

-Rules 38 / 39 govern demand for jury trial.

-Existence of another adequate remedy doesn't preclude declaratory judgment that's otherwise appropriate.

-Court may order speedy hearing of declaratory-judgment action.

Rule 65

Injunctions / Restraining Orders

-Lasts 14 days,

-Can be entered ex parte (only one party needs to be there)

-Can be granted in emergency

-Must give reason to other party why they didn't notify them

-Preliminary Injunction: issued only after a hearing

a. Looks to the future—will be denied if conduct has already ceased

-Permanent Injunction

a. Ordered After Trial of case

b. Have to give clear notice what they can and cannot due