The Civil Action

"There is only one form of action -- the civil action."

Commencing an Action

"A cause of action is commenced by filing a complaint with the court."

Summons

(a) P must serve D with the complaint and a summons.

(c) Summons are served either by a federal marshall or by a process server.

Contents of a Summons

A SUMMON MUST:

(a): Name the court and parties.

(b): Be directed at D.

(c): State the name/address of P or her attorney.

(d): State the time when D must appear.

(e): Notify D of the consequences of noncompliance.

(f): Be signed by the court.

(g): Bear the court's seal.

Service

P is responsible for having D served w/ a copy of th esummons and complaint within the appropriate time.  Service can be made by:

(2) any person at least 18 yrs old and not a party.

(3) a federal marshal or process server.

Waiving Service

D may waive the service of summons.

Waiving Service

Waiving service grants D an additional 40 days to respond to the complaint.

Extending Personal Jurisdiction

Courts can establish personal jx by serving a D located up to 100 miles from the point of issuance.

Service

P is responsible for serving D with a copy of the summons and the complaint within the appropriate time (120 days from filing).

Pleadings

ONLY the following pleadings are allowed:

1. A complaint.
2. An answer to a complaint.
3. An answer to a counterclaim specified as a counterclaim.
4. An answer to a cross claim.
5. A third-party claim.
6. An answer to a third-party claim.
7. A reply to an answer.

Motions

Motions are requests for court orders. They MUST:

1. Be made in writing or in person to the judge.
2. State the particular grounds for seeking the order.
3. State the relief sought.

Contents of a Pleading (Well-pleaded complaint rule)

A pleading MUST contain "short and plain" statements addressing:

1. The grounds for the court's jx.
2. The basis for suing.
3. A demand for relief.

Denials and Admissions

D's answer MUST state her defenses to each claim asserted.

Denials and Admissions

D MUST admit or deny every allegation asserted by P.

Denials and Admissions

D may deny generally all allegations (including jx), specifically deny allegations, or deny all allegations except those she specifically admits.

Denials and Admissions

D MAY claim that she lacks sufficient knowledge regarding a particular allegation; this counts as a denial.

Denials and Admissions

D admits any allegation that the fails to deny.

Affirmative Defenses

D MUST identify each affirmative defense it asserts against P.

Inconsistent Claims

Parties are free to assert inconsistent claims in a pleading.

Fraud or Mistake

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

Form of Pleadings

Pleadings MUST be appropriately captioned and numbered.

Signature

An attorney MUST sign every document that it presents to the court.

Good Faith Representations

Either party, in presenting documentation to the court, certifies that the information filed is in good faith and is comprised of warranted or justifiable factual and legal contentions.

Sanctions

Courts have discretion to sanction parties for failing to satisfy Rule 11(b).

Grace Period

Attorneys have 21 days following service of a motion to address the alleged violation before the motion may be presented to the court.

Providing an Answer

A party has 20 days to serve an answer to a complaint, counterclaim, or crossclaim.  Ds who waive service of a complaint, as specified by Rule 4(d), gain an additional 40 days to respond.

Motions to Dismiss

Motion to dismiss for lack of SMJ.

Motions to Dismiss

Motion to dismiss for lack of DJ.

Motions to Dismiss

Motion to dismiss for improper venue.

Motions to Dismiss

Motion to dismiss for insufficient process.

Motions to Dismiss

Motion to dismiss for improper service.

Motions to Dismiss

Motion to dismiss for failure to state a legal claim.

Motions to Dismiss

Motion to dismiss for failure to join a required party.

Motion for Judgment on the Pleadings

After pleadings are closed, parties MAY move for a judgment on the pleadings, as well as move for a 12(b)(6).

Presenting Matters Outisde the Pleadings

Information outside the pleadings that is raised on a motion and is not excluded by the court transforms the motion into one for summary judgment. 

The court MAY grant, deny, or hold the motion in abeyance until the completion of further discovery.

Contesting Jurisdiction

D waives her right to contest jx, venue, and service if she fails to do so in her first pleading to the court.

Courts MUST dismiss an action at any point that it determines it lacks SMJ.

Compulsory Counterclaims

A pleading MUST state all counterclaims against an opposing party that "arise out of the transaction or occurrence" that is the subject matter of the opposing party's complaint.

Permissive Counterclaims

A pleading MAY state any counterclaim that is not compulsory under 13(a)(1).

Counterclaims

A pleading MAY state any claim against a co-party that "arises out of the t/o" that is the subject matter either of the original action or of a counterclaim.

Joinder

Rules 19 and 20 address adding parties to a counterclaim or crossclaim.

When D May Implead a Third Party D

Impleader: D MAY serve TPD if TPD might be liable for all or part of P's claims against D.  If D fails to serve TPD within 10 days, then she MUST seek court approval before doing so.

Rights and Responsibilities of Third Parties

As a TPD:

(A) TPD MUST serve a defense against TPP as outlined in Rule 12.

(B) TPD MUST assert compulsory counterclaims against TPP, and MAY assert permissive counterclaims against TPP or crossclaims against another TPD, as outlined in Rules 13(a), 13(b) and 13(g).

(C) TPD MAY assert against P any defense that TPP has against P.

(D) TPD MAY assert against P any claim "arising out of the t/o" that is the subject matter of P's original claim against the TPP.

Rights and Responsibilities of Third Parties

TPDs MUST serve a defense against TPP as outlined in Rule 12.

Rights and Responsibilities of Third Parties

TPD MUST assert compulsory counterclaims against TPP, and MAY assert permissive counterclaims against TPP or crossclaims against another TPD, as outlined in Rules 13(a), 13(b), and 13(g).

Plaintiff's Claims Against Third Parties

P MAY assert against TPD any claim "arising out of the t/o" that is the subject matter of P's claim against TPP.

The TPD MUST 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).

When Plaintiff May Implead a Third Party

When a claim is asserted against P, the P may bring in a third party if this rule would allow a D to do so.

Leave to Amend

Courts should freely give parties leave to amend a pleading when justice so requires.

Relating Back an Amendment

An amendment relates back to the original pleading when it asserts a claim or defense arising out of the same t/o.

Supplemental Pleadings

Courts MAY permit the service of a supplemental pleading that concerns a "transaction, occurrence, or event" taking place after the original pleading, even when the earlier pleading defectively stated a claim or defense.

Matters for Consideration

During a pretrial conference, the court may consider and take action on nearly any issue that might arise during the pretrial life of a lawsuit, including: elminating frivolous claims/defenses, amending pleadings, stipulating agreed-upon facts, framing discovery, setting a timetable for pretrial briefs, and in other ways assuring that Rule 1 is satisfied.

Pretrial Orders

Following a conference, the court MUST produce an order reciting the action to be taken by the parties.

Final Pretrial Conference

The final pretrial conference will be used to craft a trial plan, which may include a list of witnesses and evidence.

Sanctions

The court MAY sanction a party for failing to take part in or prepare for a conference, or for failing to obey a pretrial order.

Joinder of Claims

A party asserting any anchoring claim against a party MAY join together as many claims as it has against that party.

Necessary Parties

Provided the court has jx, N MUST be joined if:

(A) The court cannot accord "complete relief" among parties in her absence, OR;

(B) N claims an interest related to the original subject matter such that litigating the action without N may:

  (i) Impair or impede her ability to protect the interest, OR;

  (ii) Leave an existing party subject to inconsistent obligations because of her interest.

Joinder by Court Order

If both sides fail to join N, the court MUST do so.

When Joinder is Not Feasible

If N cannot be joined, the court MUST determine whether litigation of the action can continue in her absence or whether the action must be dismissed for reasons of equity.

Joinder of Plaintiffs

Ps MAY join a single action if:

(A) They assert a right to relief arising out of the same t/o, and;

(B) Any common question of law or fact will arise.

Joinder of Defendants

P MAY join defendants if:

(A) She asserts rights to relief against them arising out of the same t/o, and;

(B) Any common question of law or fact will arise.

Protective Measures

Courts may take steps -- including ordering separate trials -- to prevent delay, embarrassment, expense or prejudice from joining unrelated parties.

Misjoinder and Nonjoinder

Misjoinder of parties is not a ground for dismissing an action.  The court may at any time add a party, drop a party, or sever a claim against a party.

Interpleader

In order to avoid multiple liability, a person MAY join several parties and require them to interplead.  This rule supplements permissive joinder as set forth in Rule 20; it also interects with USC S.1335, 1397, and 2361.

Interpleader by a Plaintiff

Persons with claims that may expose a P to multiple liability may be joined as Ds and required to interplead.  Joinder for interpleader is proper even though:

(A) The claims of the several claimants, or their titles, lack a common origin or are adverse and independant rather than identical; or

(B) The plaintiff denied liability in whole or in part to any or all of the claimants.

Interpleader by a Defendant

A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim.

Reviewing Class Action Settlement

A class action settlement MUST be reviewed by an appeals court for the purpose of protecting absent plaintiffs.

Intervention of Right

Courts MUST allow N to intervene if:

(1) N has an unconditional, statutory right to intervene, or;

(2) N claims an unrepresented interest relating to the "property or transaction" that is the subject of the action such that disposing of the action without her would impair or impede N's ability to protect her interest.

Permissive Intervention

Courts MAY permit N to intervene if:

(A) N has an unconditional statutory right to intervene, or;

(B) N has a claim or defense that shares a common question of law or fact with the main action.

Notice

N's motion MUST state the ground for intervention and provide a pleading stating the grounds for which intervention is sought.

Initial Disclosure

Without waiting for a discovery request, parties MUST disclose evidentiary material and contact information for witnesses that are likely to support the party's affirmative case.

Timeframe for Initial Disclosures

Initial disclosures MUST be made no later than 14 days following the conference stipulated in Rule 26(f).

Disclosure of Expert Testimony

Parties MUST BOTH disclose the identity of possible expert witnesses and provide a written report detailing the expert's qualifications and recent testimonial history.  Disclosures MUST be made no later than 90 days before trial, or 30 days for rebuttal witnesses.

Pretrial Disclosures

Parties MUST disclose a list of potential witnesses and exhibits to be present at trial.

Timeframe for Pretrial Disclosures

Pretrial disclosures MUST be made no later than 30 days before trial.

Scope of Discovery

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defence.  With good cause, a party may seek discovery for any non-privileged matter relevant to the subject matter of the action.

Relevant information need not be admissable at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.  Discovery is subject to the limitations of Rule 26(b)(2)(C).

Required Limitations on Discovery

When required, the court MUST limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or could be obtained from a more convenient, less burdensom/expensive source.

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery, or;

(iii) the burden or expense of the proposed discovery outweighs its likely benefit considering the needs of the case, the amount in controvery, the parties' resources, the importance of the issues, etc.

Work Product Privilege

Parties cannot recover facts or opinions produced by the opposing party in preparation for or in anticipation of litigation, unless the materials are discoverable and discovery is beyond the moving party's capacity to discover by other reasonable means.

Experts Who May Testify

A party may depose any person who has been identified as an expert whose opinions may be presented at trial.

Non-Testifying Experts

Parties cannot recover facts or opinions from the opposing party's non-testifying expert unless the material must be provided under Rule 35(b), or there are exceptional circumstances that make discovering the material impractical.

Protective Orders

Upon motion by a party, the court may take action to protect persons from undue embarrassment, annoyance or burden caused by discovery.  Those actions include: forbidding disclosure or discovery, limiting the scope of discovery, and sealing depositions.

Timing of Discovery

No party may begin discovery before completing the Rule 26(f) conference.

Supplementing Disclosure and Discovery

Parties MUST promptly update disclosures and responses to discovery requests upon receiving supplemental or contradictory information.

Discovery Conference

Parties MUST confer, no later than 21 days before the court's scheduling conference, to outline a roadmap for discovery.

Certification

Attorneys MUST sign all discovery documents to affirm the filing is complete, consistent with the rules, and made in good faith.  Violations of this certification are subject to sanctions, including attorney's fees.

Oral Depositions

Without seeking court approval, parties may depose up to 10 individuals; parties may issue a subpeona to compel attendance.

Notice and Attendees

Parties must provide all parties notice of a deposition; the notice should state the time and place of the deposition.  If the party is deposing an organization, the organization MUST designate an individual to testify on its behalf.  The party MUST ALSO ensure that an officer of the court is present for the deposition.  If the party desires that the deponent bring particular materials to the deposition, sh emay issue a subpeona duces tecum.

Objections to Depositions

Objections made by the deponent's attorney MUST be noted on the record; nevertheless, the deposition will continue.

Duration of Depositions

Unless otherwise ordered, depositions are capped at 7 hours per day.

Scope and Numbers of Interrogatories

The party MAY serve another party with up to 25 written interrogatories related to any matter discoverable under Rule 26(b).

Answers to Interrogatories

The party to whom an interrogatory is addressed MUST respond to it, fully and under oath, within 30 days.

Requests for Production

The party MAY serve on the opposing party a request to produce discoverable materials, including: documents, electronically stored info, and tangible things.  The party may also request permission to enter the opposing party's private property to inspect an object or operation.

Contents of a Request for Production

The party's request MUST describe with "reasonable particularity" the item or collection of items sought.

Time to Respond to Request for Production

The party MUST respond to the other party's request within 30 days, unless otherwise ordered.

Non-Parties in Production

A party MAY subpoena documents, items or inspections from non-parties.

Order for Examination

The court, upon a good cause motion, may order the examination of a party whose mental or physical condition is in controversy.

Examiner's Reports

The movant MUST provide the other party a copy of the exam results, as well as any copies of any similar previous examinations.

Sanctions in Discovery: Good Faith

The party MUST certify if any motion to compel or sanction the opposing party is made in good faith to resolve her disagreement.

Sanctions in Discovery: Motions to Compel

The party may move to compel the opposing party to disclose, to answer an interrogatory or admission, to produce material, or to allow inspection.

Sanctions in Discovery: Failure to Comply w/ Court Order

Courts may sanction a party who fails to comply with a court order.

Sanctions may include: barring a claim or defense, dismissing an action, entering a default judgment, holding in contempt, paying expenses, and paying attorney's fees.

Sanctions in Discovery: Failure to Disclose

A party that fails to disclose witnesses or evidence is barred from raising either at trial.  Alternatively, the court may inform the jury of the failure to disclose, or may apply a sanction from Rule 37(b)(2).

Sanctions in Discovery: Failure to Admit

A party who fails to admit information MUST pay the expenses, including attorney's fees incurred by the other party in discovering the error.

Sanctions in Discovery: Failure to Attend, Answer or Respond

A party is liable for sanctions, outlined in Rule 37(b)(2) for failing to attend her own deposition, failing to answer interrogatories or requests for materials, or failing to allow inspection.

Requesting an Admission

During discovery, either party can ask the other side to make an admission of fact.

Unaddressed Admissions

Admissions are binding if they are not addressed within 30 days.

Withdrawing or Amending Admissions

A party may withdraw or amend an admission if the courts find that doing so would not prejudice the other party.

Voluntary Dismissal by Plaintiff

SUBJECT TO CLASS ACTION RULES 23 & 66 -- P 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.

Effects of Voluntary Dismissal by Plaintiff

Unless the notice or stipulation states otherwise, the dismissal is w/o prejudice.  But if P 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.

Involuntary Dismissal

If P fails to comply with the rules, D may seek to dismiss the action. 

Unless otherwise stated, a dismissal under 41(b) is treated as an adjudication on the merits.

Separation of Trials

The court has discretion to order a separate trial for any claim(s).

Bench Trial Verdicts

A bench trial verdict MUST separate findings of fact from matters of law.

Judgment: Shifting Costs

The court has discretion to (and should) allocate costs, but not fees, to the prevailing party.

Entering a Default Judgment

When a party fails to plead or otherwise defend against a judgment for relief, the clerk MUST enter the party's default.

Summary Judgment by Plaintiff

P may move for summary judgment on all or part of the claim at any time after 20 days have passed from the commencement of the action; OR the opposing party serves a motion for summary judgment.

Summary Judgment by Defendant

D may move at any time for summary judgment on all or part of P's claim.

Preliminary Injunction

The court may issue a preliminary injunction, but only on notice to the adverse party.

Injunctions: Temporary Restraining Orders

The court may issue a TRO w/o notice to D.  A TRO expires after 10 days.

Injunctions: Securing a Preliminary Injunction

In order to secure a preliminary injunction, P MUST purchase a security bond for the amount of potential costs/damages to D caused by the injunction, which is forfeited to D if P loses the lawsuit.

Offer of Judgment

If P rejects an offer of settlement from D, then goes on to win less than the settlement offer, P MUS pay D's costs from the time of the rejection forward.

If P fails to respond to the offer, it is automatically rejected after 30 days from the initial offering.

Substantive Law and the Rules

The rules of civil procedure do not "extend or limit" jx or choice of venue for a district court.