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Civil Procedure
Civil Procedure 1 Cases

Additional Law Flashcards




Ashcroft v. Iqbal

  • Said he was imprisoned because of descrimination
  • The Court held that the Second Court had the authority to the lower court’s ruling preventing the dismissal of Iqbal’s claim based upon the defendants’ motions.  On the second question, the Court reasoned that Iqbal failed to submit a sufficient claim with facts detailing unlawful discrimination.  
  • Thus, while the Court found that high-ranking officials cannot categorically have suits against them dismissed on the basis of qualified immunity when the matter revolves around unconstitutional discrimination, petitioners claiming such discrimination must still present sufficient facts pertaining to their claim that discrimination has occurred.
  • Rule 8
Stradford v. Zurich Insurance Co

  • Plaintiff Dr. Stradford brought an action against his property insurer seeking payment under policy for water damage to his dentist’s office, to which the insurance company responded by filing several counterclaims against the insured.
  • Counterclaims that do not satisfy the first sentence of Rule 9(b), requiring that the “time, place, and nature of the alleged misrepresentations” be disclosed to the party accused of fraud, will be dismissed.

  • Rule 9

Jones v. Bock
  • Prisoner, Jones, suffered injuries and aggravated injuries by working
  • Filed a §1983 PLRA – which states until admin remedies are exhausted, a prisoner does not have the right to do so.
  • Failure to exhaust is an affirmative defense under PLRA
  • Inmates are not required to plead or demonstrate exhaustion in their complaints.
  • Rule 8

Walker v. Norwest Corp.

  • Jimmy Lee Walker, III, his guardian, Cynthia Walker and their attorney James Harrison Massey appeal from the district court’s award of sanctions against Massey for filing a diversity case in which he failed to plead complete diversity of citizenship and pleaded facts which tended to show there was not complete diversity.
  • The attorney for Norwest Corporation informs Mr. Massey that his complaint showed on its face that there was no diversity jurisdiction and asked him to dismiss or face sanctions.  Massey did not dismiss and merely acknowledged Norwest’s correspondence.

  • Rule 11 sanctions are appropiate 

  • Rule 11

Christian v. Mattell, Inc
  • Barbie Doll copyright case
  • Plaintiff believed that her idea was stolen by Mattel; Mattel actually had copyright prior to her creation of the doll.  Attorney was held accountable because he failed to do necessary research.

  • Court ruled that it was a frivolous action and that sanctions 
  • Rule 11
Beeck v. Aquaslide ‘N’ Dive Corp

  • Plaintiff was injured while using a water slide and sued who he believed to be the manufacturer of the waterslide. Defendant initially admitted it had manufactured the waterslide, then upon realizing it had not, filed leave to amend its answer to the complaint.
  • The court held that the trial court did not abuse its discretion in allowing the Defendant to amend its answer.

  • Rule 15

Moore v. Baker
  • Moore had a bad result in surgery, and she sues Dr. Baker.  Her cause of action is for lack of informed consent: she claims that he didn’t explain to her adequately what the risks involved in the surgery were
  • The amended complaint did not relate back to the original complaint because there was no negligence mentioned in the original complaint. 
  • Rule 15

Bonerb v. Richard J. Caron Foundation

  • The plaintiff was injured while playing basketball at the rehab center.  He slipped and fell.  He was involved in a mandatory exercise program.  He claims that the court was negligently managed by the facility
  • He tries to amend his complaint with a new allegation of counseling malpractice.
  • The court decides that the original claim and new claim relate to the same facts, and so the motion to amend is granted.
  • Rule 15
Plant v. Blazer Financial Services

  • Theresa Plant, executed a note in favor of the Defendant, Blazer Financial Services, Inc., for $2,520 to be paid in monthly installments of $105.00. No payments were made on the note. After Plaintiff filed a suit based on an alleged violation of the Federal Truth-In-Lending Act, Defendant counterclaimed based on Plaintiff’s failure to pay the promised debt.

  • Four test have been suggested to further define when a claim and counterclaim arise from the same transaction; only one has to be answered yes.

  • 1) Are the issues of fact and law raised by the claim and counterclaim largely the same 2) Would res judicata bar a subsequent suit on defendant's claim absent the compulsory counterclaim rule? 3) Will substantially the same evidence support or refute plaintiff's claim as well as defendant's counterclaim? 4) Is there any logical relation between the claim and the counterclaim?
  • Rule 13
Mosley v. General Motors Corp.

  • The 10 Plaintiffs, joined in bringing an action individually and as class representatives alleging that their rights were violated by the Defendants

  • The district court ordered that the ten counts against Defendants be severed into ten separate causes of action

  • The court found that defendants' company-wide policy purportedly designed to discriminate similarly arose out of the same series of transactions
  • Rule 20
Price v CTB, Inc

  • Chicken House. 
  • Casue of action against Latco include breach of the construction contract, fraudulent misrepresentation of the caliber of materials to be used, and negligence and wantonness in the construction. 
  • ITW argues it was improperly impleaded
  • Latco has establish basis upon which it my properly implead
  • Rule 14
Kroger v Omaha Public Power District

  • The Plaintiff-Appellant, Geraldine Kroger (Plaintiff-Appellant), as administratrix of the estate of James Kroger (Decedent), brought suit based on diversity jurisdiction for damages resulting from Decedent’s wrongful death by electrocution.
  • Defendant-Appellee had no duty to maintain the lines, had not been requested to discontinue the flow of electricity on the date of the accident and had not been put on notice that a crane was being operated in the vicinity of the lines. As a result, there was no duty owed by Defendant- Appellee the breach of which would give rise to liability.

  • Rule 

Temple v. Synthes Corp

P had “plate and screw device” implanted in his lower spine the device’s screws broke off inside P’s back

(1)  Defective design

(2)  Defective manufacture

(3)  Temple v Doctor, Hospital

                                         (A)     Medical malpractice

                                          (B)     Negligence

(4)  Joint tortfeasors are not required to be joined under rule 19

Rule 19

Wal-Mart Stores, Inc v. Dukes

The named plaintiffs (Dukes) in this lawsuit, representing the 1.5 million members of the certified class, are three current or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions. A class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. Rule 23

Davis v. Precoat Metals

 Plaintiffs requested information about discrimination complaints made against the employer by non-clerical/non-administrative employees who worked at the same plant as the plaintiffs.  The plaintiffs are correct that other employees' complaints of discrimination may be relevant to establish pretext.  Rule 26(b)(1)

Steffan v. Cheney
  • Gay guy
  • Plaintiff resigned from the Naval Academy after an administrative board recommended he be discharged.

  • The Circuit Court held that whether Plaintiff engaged in homosexual conduct was irrelevant in his district court suit because it was his personal declarations, not his conduct, which was the basis of his administrative dismissal. 

  • Rule 37

Hickman v. Taylor

·      Following an accident involving one of their tug boats, two tug owners (Defendants) fearing litigation, hired an attorney who interviewed several of the surviving crew members of the tug accident. A representative of one of the victims of the accident filed an interrogatory requesting the content of the interviews conducted by the tug owners’ attorney with the survivors.  An attempt, without necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel, falls outside the arena of discovery. Rule 26(c), Rule 30(d)

Stalnaker v. Kmart Corp

Brought a sexual harassment claim

·      Plaintiff served notice of depositions for several non-party witnesses regarding their sexually related activities. Defendant sought a protective order protecting those non-party witnesses. The court precluded discovery related to voluntary and sexual activities by the non-party witnesses and only permitted discovery regarding incidents of sexual harassment by Graves involving the non-party witnesses. Rule 26(c)

Zubulake v. UBS Warburg

Plaintiff requested all of Defendants’ email correspondence concerning Plaintiff as part of discovery, and they initially agreed to a scope of discovery. Defendants did not turn over archived emails

Celotex Corp. v. Catrett

Alleging that her husband’s death was facilitated by exposure to products containing asbestos that were manufactured by the Petitioner and defendants. At trial, Petitioner’s summary judgment motion stated that Respondent could produce no evidence that Petitioner’s products were the proximate cause of any injuries and further, that she could produce no witnesses to attest otherwise. The burden on the moving party may be discharged by "showing" - that is, pointing out to the district court- that there is an absence of evidence to support the nonmoving party's case. Rule 56


Bias v. Advantage International, Inc.

Cokehead basketball player. shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record, which it believes demonstrate the absence of a genuine issue of material fact. Rule 56

Pennsylvania Railroad v. Chamberlain

Train car wreck dude dies. Where there is a direct conflict of testimony upon a matter of fact, the question must be left to the jury to determine, without regard to the number of witnesses on either side. But here there really is no conflict in the testimony as to the facts, as the witnesses for the Petitioner flatly testified that there was no collision between the cars. Where proven facts give equal support to each of two inconsistent inferences, in which event neither of them are established, judgment as a matter of law must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover. Rule 50


Lind v. Schenley Industries

a sales manager for Defendant, a liquor company, alleged that Defendant had promised him an increase in pay and a share of commission, but then breached that promise. a motion for a new trial on this ground is nonreveiewable because it is within the discretion of the trial court. But this discretion must still be exercised in accordance with ascertainable legal standards and if an appellate court is shown special or unusual circumstances, which clearly indicate an abuse of discretion in that the trial court failed to apply the proper standards, reversal is possible.

Rule 59

Rule 1. 

  • Scope and Purpose
  • Thee rule govern the procedure in all civil actions and proceedings in the US district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceedings

Rule 2. 

  • One For of action
  • There is one for of action – civil action

Rule 3. 

  • Commencing an action 
  • A civil action is commenced by a filing complaint with the court

Rule 7.  

  • Pleadings

a)    Only these pleading are allowed:

(1)  Complaint

(2)  Answer to a complaint

(3)  Answer to a counterclaim designated as a counterclaim

(4)  An answer to a crossclaim

(5)  Third-party complaint

(6)  Answer to a third-party complaint

(7)  If the court orders one, a reply to an answer

b)    Motions and other papers

(1)   A request for a court order must be made by motion. The motion must:

(A) Be in writing unless made during a hearing or trial

(B) State with particularity the grounds for seeking the order


(C) State the relief sought


Rule 8

  • General Rules of Pleading

a)     Claim for Relief. A pleading that states a claim for relief must contain: (Short and plain statement give the Defendant fair notice)

(1)   Short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support

(2)   a short and plain statement of the claim showing that the pleader is entitled to relief (showing pleader is entitled to relief)

(3)   a demand for the relief sought, which may include relief in the alternative or different type of relief.

(A)  Three things you MUST DO in order to assure this rule is satisfied

(i)    Invoke a body of substantive law

(ii)  Make sure that there is a link between facts and law


(iii) **** “plausible” – very new, big debate about meaning


Rule 10 

  • Form of Pleadings

a)     How to form a pleading

(1)  Caption; Name of parties

(2)  Stated claims

(3)  Written references exhibiting a pleading

b)    Functions of a Pleading

(1)  Rule 8(a) àSee above

(2)  Rule 12(b)

(A) Lists of defense motions


(a)   Which does not require the defendant to say whether the allegations of the complaint are true


Rule 12(b)(6)


a)     Failure to state a claim upon which relief can be granted

(1)  Doesn’t matter if the claims are true or false, this motion must be made before pleading


(2)  Attacks legal sufficiency of complaint


Rule 8(c)



c)     Affirmative defenses

In responding to a pleading, a party must affirmatively state any avoidance of affirmative defense


Rule 9(b)


(a)   In Alleging fraud or mistake a party must state with particularity the circumstances constituting fraud or mistake.

Rule 11

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

a)     Regulates the way lawyers and clients conduct themselves

(1)  Every pleading, written motion, and other paper must be signed by the attorney

(2)  This signature certifies to the best of the attorney/parties knowledge that information provided is correct and reasonable under the following conditions:

(A) Not presented for improper purpose

(B) Claims, defenses, and legal contentions are warranted

(C) Factual contentions have support

(D) Denials or factual evidence are warranted on the evidence

(3)  Covers every aspect of litigation that involves a written document


(4)  21 day safe harbor period


Rule 12(b)


How to present defenses

Each one of these defenses must be asserted in the responsive pleading if one is required. But a party may assert the following defenses 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.



  • Effect of a Motion. 

Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(1)  If the Court denies the motion or postpones it disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action; or


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


Rule 12(c). 


Motion for judgment on the pleadings


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


Rule 12(g). 

  • Joining Motions

                                         (A)     A motion under this rule may be joined with any other motion allowed by this rule. (You can only file 1 pre-answer motion). 


                                          (B)     Except as provided in Rule 12(h)(2) or (3), a praty that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the part but omitted form its earlier motion.


Rule 12 (h) 


Waiving and preserving certain defenses

(i)    Defenses waived if not included in the first responsive document

(1)  (When some are waived, a party waives any defense listed in Rule 12(b)(2)-(5) by:

(A) Omitting it from a motion in the circumstances described in Rule 12(g)(2); or

(B) Failing to either

(i)    Make it by motion under this rule; or

(ii)  Include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

(2)   When to raise others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:

(A) In any pleading allowed or ordered under Rule 7(a);

(B) By motion under Rule 12(c); or

(C) At trial

(3)  Lack of Subject-Matter Jurisdiction


(A) if the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.


Rule 12(e)


(1)  Motion for a more definite statement

(i)    Not used very often

(ii)  Used to say you do not understand what plaintiff is alleging


(A) 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 within the time the court sets, the court may strike the pleading or issue any other appropriate order.


Rule 12(f). 

  • Motion to strike

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1)  On its own; or


(2)  On motion made by a party either before responding to the pleading or, if a response is not allowed within 21 days after being served with the pleading.


Rule 8(b)



(1)  In responding to a pleading, a party must 

(A) state in short and plain term defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2)   Denials –Responding to the Substance. A denial must fairly respond to the substance of the allegation

(3)   General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading – including the jurisdictional ground –may do so by a general denial.  A party that doesn’t intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted

(4)   Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5)  Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state,  and the statement has the effect of a denial.


(6)  Effect of Failing to Deny. An allegation – other than one relating to the amount of damages – is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.




à an answer to a counterclaim designated as a counterclaim

a)     A reply is possible but not always necessary

b)    Complaint àAnsweràReply


c)     Reply is not automatically ordered if there is an affirmative defense.


Rule 15(a)

  •  Amendments before Trial

(1)  Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required 21 days aftre service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), (f), whichever is earlier.

(2)  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.

(3)  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.

(A) Reasons why courts should not grant motion to amend (Permissive (Foman Factors)

(i)    Bad faith

(ii)  Undue prejudice

(iii) Undue delay

(iv) Dilatory motive (impure motive)

(v)  Repeated failure to cure


(vi) Futility of amendment (requires court at motion to amend stage consider what you are attempting to add).


Rule 15(c). 

  • Relation back of Amendments. (Civ Pro Time Machine)

(1)  An Amendment to a Pleadings relates back to the date of the original pleading when:

(A) the law that provides the applicable stature of limitations allows relation back

(B) the amendment asserts a claim or dense that arose out of the conduct transaction, or occurrence set out-or attempted to be set out-in the original pleading

(C) the amendment changes the party or the naming of the party against whom a 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

(i)    received such notice of the action that it will not be prejudiced in defending on the merits; and


(ii)  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 13: 

  • counterclaim and crossclaim

a)     Compulsory counterclaims

(1)  A pleading must state as a counterclaim any claim that – at the time of its service – the pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and

(B) does not require adding another party over whom the court cannot acquire jurisdiction

b)    permissive Counterclaims

(1)  A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

g) 13(g): Crossclaims


(1)  a pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.


Rule 18(a)

  • Joinder of Claims


(a)   A Party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.


Rule 20

  • Permissive Joinder of Parties

(a)   Person Who May Join or Be Joined.

(1)  Plaintiffs. Persons my joining in on action as plaintiffs if:

                                         (A)     They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

                                          (B)     Any question of law or fact common to all plaintiffs will arise in the action

(2)  Defendants. Persons- as well as a vessel, cargo, or other property subject to admiralty process in rem- may be joined in one action as defendants if:

                                         (A)     Any right to relief is asserted against them jointly, severally , or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

                                          (B)     Any question of law or fact common to all defendants will arise in the action

(3)  Extent of Relief. Neither plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against on or more defendants according to their liabilities.


(b)  Protective Measures. The court may issue orders- including an order for separate trials- to protect a party against embarrassment, delay, expense, or other prejudice that arise from including a person against whom the party asserts no claim and who asserts no claim against the party.


Rule 14

  • Third-Party Practice

(a)   When a Defending Party May Bring in a Third Party.

(1)  Timing of the Summons and Complaint. A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.

(2)  Third-Party Defendant's Claims and Defenses. The person served with the summons and third-party complaint—the “third-party defendant”:

                                         (A)     must assert any defense against the third-party plaintiff's claim under Rule 12;

                                          (B)     must assert any counterclaim against the third-party plaintiff under Rule 13a, and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);

                                          (C)     may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and

                                         (D)     may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

(3)  Plaintiff's Claims Against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g)

(4)  Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately

(5)  Third-Party Defendant's Claim Against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.

(6)  Third-Party Complaint In Rem. If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the “summons” includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested

(b)  When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.

(c)   Admiralty or Maritime Claim.

(1)  Scope of Impleader. If a plaintiff asserts an admiralty or maritime claim under Rule 9(h), the defendant or a person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party plaintiff, bring in a third-party defendant who may be wholly or partly liable—either to the plaintiff or to the third-party plaintiff— for remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences.


(2)  Defending Against a Demand for Judgment for the Plaintiff. The third-party plaintiff may demand judgment in the plaintiff's favor against the third-party defendant. In that event, the third-party defendant must defend under Rule 12 against the plaintiff's claim as well as the third-party plaintiff's claim; and the action proceeds as if the plaintiff had sued both the third-party defendant and the third-party plaintiff.


Rule 19

  • Required Joinder of Parties

(a)   Persons Required to Be Joined if Feasible

(1)  Must be joined if:

                                         (A)     No complete relief in person’s absence or

                                          (B)     Absent person claims and interest in the action and moving forward in the person’s absence may (either)

(i)    impair absent person’s ability to protect the interest or

(ii)  leave a party at risk of inconsistent obligations because of the absent party’s interest.

(2)  Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuse to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.

(3)  Venue. If a joined party object to venue and the joiner would make venue improper, the court must dismiss that party.

(b)  if a person required to be joined under 19(a) cannot be joined (because there is no jurisdiction over the person), the court should consider these factors (among others) in deciding whether to proceed without the person or whether the action should be dismissed:

(1)  prejudice to absent person and/or existing parties

(2)  Extent to which prejudice could be lessened

(3)  would judgment be adequate without absent person

(4)  would the P have an adequate remedy if action is dismissed

(c)   Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state;

(1)  The name, if known, or any person who is required to be joined if feasible but is not joined; and

(2)  The reasons for not joining that person


(d)  Exceptions for Class action. This rule is subject to Rule 23.


Rule 23

  • Class Actions

(a)   Prerequisites. one or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1)  the class is so numerous that joinder of all members is impracticable; (numerosity),

(2)  there are questions of law or fact common to the class; (commonality)

(3)  the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (typicality)

(4)  the representative parties will fairly and adequately protect the interests of the class. (adequacy)

(b)  Types Of Class Actions. a class action may be maintained if rule 23(a) is satisfied and if:

(1)  prosecuting separate actions by or against individual class members would create a risk of:

                                         (A)     inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

                                          (B)     adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2)  the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3)  the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. the matters pertinent to these findings include:

                                         (A)     the class members’ interests in individually controlling the prosecution or defense 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 difficulties in managing a class action


Rule 26(b)(1)

  • Discovery Scope and Limits


(1)  Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).


Rule 30

  • Deposition by Oral Examination

(a)   When a Deposition May Be Taken.

(1)  Without Leave.

(2)  With Leave.

(b)  Notice of the Deposition; Other Formal Requirements.

(1)  Notice in General.

(2)  Producing Documents.

(3)  Method of Recording.

                                         (A)     Method Stated in the Notice.

                                          (B)     Additional Method.

(4)  By Remote Means.

(5)  Officer's Duties.

                                         (A)     Before the Deposition.

                                          (B)     Conducting the Deposition; Avoiding Distortion.

                                          (C)     After the Deposition.

(6)  Notice or Subpoena Directed to an Organization

(c)   Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.

(1)  Examination and Cross-Examination.

(2)  Objections.

(3)  Participating Through Written Questions.

(d)  Duration; Sanction; Motion to Terminate or Limit.

(1)  Duration.

(2)  Sanction.

(3)  Motion to Terminate or Limit.

                                         (A)     Grounds.

                                          (B)     Order.

                                          (C)     Award of Expenses.

(e)   Review by the Witness; Changes.

(1)  Review; Statement of Changes.

(2)  Changes Indicated in the Officer's Certificate.

(f)   Certification and Delivery; Exhibits; Copies of the Transcript or Recording; Filing.

(1)  Certification and Delivery.

(2)  Documents and Tangible Things.

                                         (A)     Originals and Copies.

                                          (B)     Order Regarding the Originals.

(3)  Copies of the Transcript or Recording. 

(4)  Notice of Filing.


(g)   Failure to Attend a Deposition or Serve a Subpoena; Expenses.


Rule 37 (a)

  • Motion for an Order Compelling Disclosure or Discovery

(a)   Motion for an Order Compelling Disclosure or Discovery.

(1)   In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

(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.

(3)  Specific Motions.

                                         (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.

                                          (B)     To Compel a 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)    a deponent fails to answer a question asked under Rule 30 or 31;

(ii)  a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);

(iii)  a party fails to answer an interrogatory submitted under Rule 33; or

(iv) a party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.

                                          (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.

(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.

(5)  Payment of Expenses; Protective Orders.

                                         (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 movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:

(i)    the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;

(ii)  the opposing party's nondisclosure, response, or objection was substantially justified; or

(iii) other circumstances make an award of expenses unjust.

                                          (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 attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.


                                          (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 26(b)(3)

  • Trial Preparation: Materials

(3)  Trial Preparation: Materials.

                                         (A)     Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

(i)    they are otherwise discoverable under Rule 26(b)(1); and

(ii)  the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

                                          (B)     Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

                                          (C)     Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:

(i)    a written statement that the person has signed or otherwise adopted or approved; or


(ii)  a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person's oral statement.


Rule 26(c)



(c)   Protective Orders.

(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. The motion 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 may, 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:

                                         (A)     forbidding the disclosure or discovery;

                                          (B)     specifying terms, including time and place, for the disclosure or discovery;

                                          (C)     prescribing a discovery method other than the one selected by the party seeking discovery;

                                         (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;

                                          (F)     requiring that a deposition be sealed and opened only on court order;

                                         (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

                                         (H)     requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

(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.


(3)  Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.


Rule 41



(a)   Voluntary Dismissal.

(1)  By the Plaintiff.

                                         (A)     Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:

(i)    a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii)  a stipulation of dismissal signed by all parties who have appeared.

                                          (B)     Effect. 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.

(2)  By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's 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.


(b)  Involuntary Dismissal; 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 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.


Rule 55. 

  • Default; Default Judgment

(a)   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 party's default.

(b)  Entering a Default Judgment.

(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.

(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:

                                         (A)     conduct an accounting;

                                          (B)     determine the amount of damages;

                                          (C)     establish the truth of any allegation by evidence; or

                                         (D)     investigate any other matter.

(c)   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 default judgment under Rule 60(b).


(d)  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 56.

  •  Summary Judgment

(a)   Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

(b)  Time to File a Motion. 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.

(c)   Procedures.

(1)  Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

                                         (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

                                          (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.

(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.

(3)  Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(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.

(d)  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:

(1)  defer considering the motion or deny it;

(2)  allow time to obtain affidavits or declarations or to take discovery; or

(3)  issue any other appropriate order.

(e)   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 56(c), the court may:

(1)  give an opportunity to properly support or address the fact;

(2)  consider the fact undisputed for purposes of the motion;

(3)  grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it; or

(4)  issue any other appropriate order.

(f)   Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:

(1)  grant summary judgment for a nonmovant;

(2)  grant the motion on grounds not raised by a party;or

(3)  consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

(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.


(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 attorney’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 50

  • Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling

(a)   Judgment as a Matter of Law.

(1)  In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

                                         (A)     resolve the issue against the party; and

                                          (B)     grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

(2)  Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.

(b)  Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:

(1)  allow judgment on the verdict, if the jury returned a verdict;

(2)  order a new trial; or


(3)  direct the entry of judgment as a matter of law.


Rule 59. 

  • New Trial; Altering or Amending a Judgment

(a)   In General.

(1)  Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:

                                         (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

                                          (B)     after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

(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.

(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.

(c)   Time to Serve Affidavits. 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.

(d)  New Trial on the Court's 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 party's 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.


(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.

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