Rule Description Case / Notes

Rule 1

Scope and Purpose of the Rules

Scope: the rules govern procedure for all civil cases in the US district courts

Objective: to secure the just, speeding and inexpensive determination of every action

Rule 8

General Rules of Pleading

(a) Claims for Relief1. short and plain statement re jurisdiction2. short and plain statement of the claim entitling relief3. demand for judgment for the relief

(b) Defenses; form of denials (requirements of the denial)1. the pleader shall state the defenses to each claim asserted

and admit or deny the allegations2. if the pleader is w/o sufficient knowledge or information, the

pleader may so state. In such a case, the court will consider it as if the pleader denied the allegations

3. denials must challenge the substance of the denied allegations

4. if the pleader intends to deny only a part of an allegation, he shall specify what is true and deny only the remainder

5. types of denialsa. specific denial – applying only to parts of the pleadingsb. complete denial – applying to the entire Cc. General denial – applying to the entire C, except

paragraphs specified(c) Affirmative Defenses

e.g., contributory negligence, duress, statute of frauds, statute of limitations, etc.

(d) Effect of failure to deny averments (assertion or allegation in a pleading) averments to which a responsive pleading is required (except

re damage) are admitted when not denied averments to which no responsive pleading is required shall

be taken as denied or avoided when not denied in a pleading(e) Pleading to be Concise and Direct; Consistency

1. each averment shall be simple, concise and direct

Use rule 8 for general claims:

Breach of K, negligence, civil, etc. [these claims don’t require a heightened pleading standard]

Rule 8(b) requires that general denials must be made in good faith

2. more than one statement of claim or defense may be stated, and if at least one of the statements is sufficient as a statement of claim or defense, the pleading is not made insufficient even if there are other insufficient statements contained in it.

(f) Construction of Pleadings pleadings construed to do substantial justice.

8(e)(2) is a fairness rule: allows parties to make inconsistent pleadings b/c pleadings are made before parties have full knowledge re facts of the case

Rule 9

Pleading Special Matters

(b) Fraud, Mistake, condition of Mind

in all averments of fraud or mistake, the circumstances (accusations) constituting fraud or mistake

shall be stated with particularity malice, intent, knowledge and other condition of mind of a

person may be averred (alleged) generally

Use Rule 9 for specialized claims that require heightened pleading standards:fraud or mistake; federal statutes

Olsen v. Whitney Aircraft: who, what, when and where =

particularity

Policy arguments: Fraud claims are disfavored

Essence of fraud: someone is concealing something, therefore, It’s not as easy to prove

Rule 11

Signing of pleadings, Motions;

Representations to Court;

Sanctions

(a) Signature(b) Representations to Courtby presenting to the court a pleading, an atty or unrepresented party is certifying to the best of that person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances

1. it is not being presented for any improper purpose (e.g. to harass, cause unnecessary delay or needless increase in the cost of litigation)

2. the claims, defenses and other legal contentions are warranted by existing law

3. allegations have evidentiary support4. any allegations denied by the ∆ are true

(c) Sanctions

Rule 11 is aimed at curbing abuses to the judicial system“think before you file”

Substantive issue (four req’mts):

1. No Improper Purpose2. warranted by existing law3. supported by evidence4. ∆: denied allegations are true

Rule 11(b)(2) – only the attorney gets sanctioned, and not the client

Rule 11 (con’t)

Signing of pleadings, Motions;

Representations to Court;

Sanctions

if after notice and a reasonable opportunity to respond, the ct determines that (b) has been violated, the court may impose a sanction

(1) How Initiated(A) by Motion: -motion shall be made separately from other motions-motion shall describe specific conduct alleged to violate subdivision (b)-motion shall not be presented to the ct unless w/in 21 days after svc the challenged item is not withdrawn or appropriately corrected [safe harbor provision]-ct may award prevailing party reas expenses and atty’s fees incurred in presenting or opposing the motion-a law firm shall be held jointly responsible for violations committed by its partners, associates and employees(B) On the Court’s Initiative:-ct may enter an order describing the specific conduct that appears to violate subdivision (b) and directing a party, atty or firm to show cause why it has not done so.

(2) Nature of Sanction-sanction to be limited to what is sufficient to deter repetition of such conduct by others similarly situated-monetary, non-monetary, order to pay the court, order directing payment to movant for fees & costs

(A) Monetary Sanctions may not be awarded against a represented party for violation of subdivision(b)(2) [claims warranted by existing law](B) Monetary sanctions may not be awarded on the ct’s initiative unless the ct issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party or attys that are to be sanctioned

(3) Order ~ when imposing sanctions, the ct shall -describe the conduct determined to constitute a violation of this rule and -explain the basis for the sanction imposed

Sanctions must be filed as a separate motion

Safe harbor provision – motion for 11(b) sanctions can only be filed if the pleading is not corrected w/in 21 days of service

11(c)(2) - Safe harbor provision doesn’t apply when the court orders the proceeding

Business Guides v. Chromatic: Death Penalty Sanction (complaint was dismissed with prejudice)

Policy issues surrounding Rule 11: Favors clients and atty’s who

have the means to exploit it

Rule 11’s impact on atty client relationship

Con: adversarial relationship – forced to question what they say

Pro: encourages atty’s to be more candid w/ their client re the strength of the case

(d) Inapplicability to Discovery – this rule doesn’t apply to anything covered under rules 26 – 37

Note: not every client is a good client

Rule 12

Defenses and Objections

(a) time frame for parties to respond1. ∆ shall serve an answer: A. w/in 20 days after being served

w/ the summons and C or within 60 to 90 days (see rule)2. X-C answer within 20 days (see rule)3. US, officer or an employee of answer w/in 60 days

(b) how presented (pre-answer motions)all defenses must be made in the answer, EXCEPT:

1. lack of subject matter jurisdiction2. lack of personal jurisdiction3. improper venue4. insufficiency of process5. insufficiency of service of process6. failure to state a claim upon which relief can be granted

(e) Motion for more definite statement (a pre-answer motion)1. this motion can be made if ╥’s pleadings are so vague or

ambiguous that ∆ cannot reasonably frame a response2. The motion must point out the defects in ╥’s pleading3. If granted, the ╥ must re-plead with in 10 days of the notice of

motion (otherwise the court may strike pleadings or make any other order)

(g) Motion to strike (a pre-answer motion)the court may order something to be struck from the pleadings if it contains

1. insufficient defenses2. redundancies3. immaterialities4. scandalous matter

*there can only be one pre-answer motion

Exception to one pre-answer motion

o Once you get a more definite statement in a second C, can file for defenses that were not available to you when you received the first C

12(b) states six defenses which may be raised prior to filing the answer (however, they may also be raised in the answer)

Motion to dismiss / demurrer = Rule 12(b)(6) motion

Rules 12(e) (motion for more definite statement) and 12(g) (motion to strike) are pre-answer motions and ways to raise a defense before filing an answer.

Rule 16

Pretrial Conferences; scheduling;

management

(b) scheduling and planningif the court requires, the judge shall enter a scheduling order regarding:

1. join other parties and amend pleadings2. file motions 3. complete discovery4. modify:

a. disclosure times created in 26(f) conferenceb. the extent of discovery permitted

5. include dates for pre-trial conferences and trial dates6. include any other appropriate matters under the

circumstances

the order shall be made ASAP, after the Rule 26(f) conference, yet no more than

120 days after the complaint has been served -AND- 90 days after the ∆ has made and appearance

a schedule shall not be modified except upon a showing of good cause and by leave of a district judge -OR- when authorized by a local rule, by a magistrate judge

Rule 26

General Provisions Governing Discovery;

Duty of Disclosure

(a) REQUIRED DISCLOSURES – methods to discover a party must provide, without waiting for discovery request,

(1) initial disclosures(A) People – (name, address, phone number and subject matter of the information) likely to have discoverable information that the disclosing party may use to support its claims or defensesnote: this does not include people w/ info that will be used only to impeach other testimony(B) Relevant Documents, data, and tangible things that are in the possession, custody or control of the party, and the disclosing party may use to support its claims or defensesnote: this does not include people w/ info that will be used only to impeach other testimony(C) Materials from which computation of damages arose, unless privileged or protected(D) Insurance Agreements which may indemnify or pay part of judgment(E) Exemptions from Initial Disclosure (made w/in 14 days)

(i) action for review on an administrative record(ii) petition for habeas corpus (or other proceeding to challenge a conviction or sentence)(iii) action brought by a person in the custody of

Rule 26(a) cont’d

the US or a state w/o counsel(iv) action to enforce or quash an administrative summons or subpoena (see rule for the rest, it’s mostly crap)

Exceptions: initial disclosure rules do not apply: in cases specified in Rule 26(a)(1)(E) if the parties stipulate otherwise if the court orders otherwise

Timing: disclosures shall be made within 14 days after

the meeting of the parties (per Rule 26f) a different time may be set by stipulation or

court order if a party objects to initial disclosures in general

during 26(f) conference, the court sets the time for disclosures after deciding on the objection

if a party is served or joined after 26(f) conference, initial disclosures must be made within 30 DAYS after being served or joined, unless otherwise stipulated or ordered

Note re information provided: ALL reasonably available information must be submitted. It’s NOT a valid excuse that

investigations are not fully complete, or an opponents discovery is insufficient, or opponents failed to submit discovery

(2) Disclosure of Expert Testimony(A) a party must disclose the identity of all expert witnesses who may be used at trial(B) Experts must submit and sign a written report containing

a complete statement of all opinions which may be expressed at trial – AND -

the basis and reasons for the expert’s opinion – AND –

data and information on which the opinion is based

exhibits to be used to support the opinions

Note that information re non-testifying (consulting) experts is NOT required to be given voluntarily. However, may file rogs asking who the consulting experts are and their area of expertise.

Rule 26(a) cont’d

qualifications of expert, incl all publications w/in the past 10 years, AND

compensation to be paid for the study or testifying, AND

a listing of all previous case which the expert had testified (either at trial OR deposition)

(C) The Due Date of expert disclosures, unless changed by the court

Initial expert testimony: at least 90 days before the trial

Rebuttal expert testimony: (responding to initial testimony) within 30 days of the initial expert disclosure

(3) Pretrial Disclosure – for evidence to be used at trial, a party shall disclose and promptly file w/ the court

(A) the name, address and phone of each witness and the subject matter of their testimony separately indicating which witnesses may appear at trial and which may not(B) Designation of witnesses whose testimony is expected to be by deposition(C) appropriate identification of each document and exhibit, and summaries of evidence(D) other disclosure rules

Pretrial disclosure must be submitted at least 30 days before trial

w/in 14 days after pretrial disclosure, a party may file a list disclosing(i) any objections to the use of depositions(ii) any objections to the admissibility of materials (w/ the reason for the objection)

if objections are not made before 14 days, they are deemed to be waived, unless excused for good cause

(4) Form of Disclosure; filing – all disclosures shall be in writing, and signed, and served and promptly filed in court

Rule 26(b)

(5) Methods to Discover Additional Matter – discovery may be obtained in one or more of the following ways

Depositions – oral or written (per rules 27, 28, 30, 31, 32)

Interrogatories – written (rule 33) Production of docs or things – rule 34 Permission to enter – upon land or other property for

inspection or other purposes Examinations – physical and mental (rule 35) Requests for admissions – (Rule 36)

(b) DISCOVERY SCOPE AND LIMITS(1) In General

A party may obtain disc re any matter that iso Not privileged – AND - o Relevant to the claim or defense of any party

Relevant information need only to appear reasonably calculated to lead to evidence; it does not necessarily have to be admissible

Relevant info can include info abouto Books, docs or other tangible things, ORo The identity of ppl w/ knowledge of any

discoverable matter The court may also order disc of any matter “relevant

to the subject matter in the lawsuit” but only for good cause

All disc is subject to the limitations of rule 26(b)(2)(i),(ii), and (iii)

(2) Limitations Local rules or courts may change these rules by

setting limits on the number of requests for admissions (rule 36), but only courts can set limits on the length and number of depositions and interrogatories

Disc shall be limited if the ct determines that(i) the discovery sought is

Unreasonably cumulative or duplicative – OR – Obtainable from a more convenient or less

expensive source

Rule 26(a)(5) - Ways in which discovery may be obtained

Rule 26(b)(1) expands the scope of discovery (Blank v. Sullivan & Cromwell), Privilege exception narrows the

scope (Steffan v. Cheney). Also, class action cases may be

entitled to broader discovery. Note that when an issue is

narrow, so will the scope of the discovery b/c the issues and discovery are linked.

Rule 26(b)(2) – limitations to discovery

Hickman v. Taylor – (tugboat case) Rule: absent showing of need, an attorney’s work product is beyond the scope of discovery. [trial preparation materials]

Work product = mental impressions

Rule 26(b) cont’d

- OR – (ii) the party seeking the discovery had an ample opportunity to obtain the information sought – OR – (iii) such discovery would be unduly burdensome or expensive in comparison to:

The needs of the case The amount in controversy The limitations on the parties’ resources The importance of the issues at stake in the

litigation The likely benefit of discovery

Note: the court may act on its own initiative or pursuant to a motion to limit discovery

(3)Trial Preparation: Materials (work-product) Disclosure – a party may obtain disc gathered by

another party only upon showing that heo Has a “substantial need” for the materials to

prepare his case – AND – o Cannot obtain the “substantial equivalent” of the

materials without “undue hardship” Disclosure is limited to materials themselves. Courts

will protect another party’s work product (conclusions, theories of recovery, strategies, etc.)

If a party previously made a statement concerning the action or subject matter, he does not have to present a new one when obtaining another party’s materials

o If the other party denies the materials: the party seeking discovery may

Move for a court order to obtain the other party’s materials – AND –

Apply for expenses incurred in relation to the motion (under R37a4)

o A “previously made statement” is(A) a Written statement signed or adopted by the person making it(B) a recorded transcript or recording of an oral statement by the person making the “showing”

In order to claim materials as “privileged” or to

Upjohn Co. v. United States – the atty-client privilege extended to communications btw counsel and all corporate employees, not just managers

Note re privilege:Privilege, unlike trial preparation protection, cannot be pierced by a showing of need. Privilege, unless waived, is absolute

Rule 26(b)(3) - When atty WP (trial prep materials) can be discovered

Where relevant and non-privileged facts remain hidden in an atty’s files [note that if they were privileged, then cant be discovered!] and where production of those facts is essential to the preparation of one’s case [might give more clues to the existence or location of relevant facts]

Rule 26(C)

classify them as “trial-preparation material” a party must

o Expressly claim the reason for protection – AND – o Describe the nature of the documents and

communications specifically enough to allow court to assess the applicability of the privilege or protection

(4) Trial Preparation: obtaining Expert Opinions(A) Depositions

o Depo’s of any person identified as an expert may be taken and may be used at trial

o If an expert disclosure report is req’d by local rules, the depo shall be conducted after the report is received

(B) Other party’s expertso A party may disc known facts, or opinions of

another party’s experts (via depo or rogs) who are NOT expected to be used at trial, but only if the party shows exceptional circumstances that make it impractical to obtain the expert info himself (by hiring his own expert)

(C) The court shall require the party requesting the information to pay the following

(i) a reasonable fee to the expert for her time spent in responding to its disc requests – AND(ii) a reas portion of the experts fee to the other party for the expert opinions obtained by him

(c) PROTECTIVE ORDERS Requirements for requesting PO

o A MOTION for protection must be madeo Showing of GOOD CAUSEo Certification of GOOD FAITH EFFORT or

attempt to settle the matter w/o the court A court may make any order which justice requires to

protect any party fromo Annoyance , ORo Embarrassment, OR

26(b)(4) – expert opinions

Experts testifying at trial:26(b)(4)(A) provides for additional discovery from experts: testifying experts must submit to pretrial depo

NON-testifying experts 26(b)(4)(B) Thompson v. the Haskell Co .

an opposing party’s expert’s opinions or facts retained in anticipation of litigation (non-testifying expert) can only be discovered if there are exceptional circumstances that make it impracticable for the party to discover the facts or opinions by other means.

o Eg’s of exceptional circumstances: evidence that is lost or destroyed

Chiquita – exceptional circumstances exception does not apply where the party seeking discovery had an opportunity to examine the subject of the expert’s opinion. (casebook p. 544 - policy args)

However, third party opinions are not protected

26(c) Protective orders - How do you balance privacy

interests with full and complete disclosure?

PO encourages the introduction of evidence by

Rule 26 (d), (e), (f)

o Oppression, ORo Undue burden or expense

Controls which courts may use to protect parties include one or more of the following1. that disclosure or discovery is not to be had2. disclosure or discovery may be had only on

specified terms and conditions3. discovery be had by a certain method4. discovery scope be limited to certain matters,

prohibiting inquiry to other matters5. discovery be conducted in the privacy of a court

designee6. sealed depos only to be opened by court order7. trade secrets or confidentiality not revealed, or to

be revealed in a specified manner8. parties file simultaneous specified documents and

info in sealed envelopes to be opened w/ a court order

(d) SEQUENCE AND TIMING OF DISCOVERY unless the court allows, or the parties agree, a party may

NOT seek discovery from any source until after a conference of the parties, per rule 26f

the methods of discovery may be used in any order, unless the court grants a motion based on

o Injustice, ORo Inconvenience, ORo Delays to the other party’s discovery

(e) SUPPLEMENTATION OF DISCLOSURES AND RESPONSESa party who responded to a discovery request is required to supplement it with new information if

(1) the party learns that the disclosed info or rogs are incomplete or incorrect, and new info has not been made or known to the other parties during discovery (or in subsequent writings)OR(2) there were incorrect or incomplete depos / rogs of an expert for which reports are required, per Rule 26a

(f) MEETING OF PARTIES

attempting to eliminate relevant but tangential issues that may be sensitive to the witness or party

Party opposing the PO should always ask himself: can I obtain the information in another way?

Stalnaker v K-mart – Rule: a party seeking a PO

must establish good cause for the order [b/c it limits discv’y] by submitting particular and specific demonstration of fact, as opposed to stereotyped and conclusory statements.

the court chose privacy over full and complete disclosure (b/c dealing w/ a third party – not involved in the case)

Kalinauskas v. Wong - Rule: Public policies favoring

broad discovery in federal civil case trump settlement agreements that prohibit a party from disclosing any aspect of a settled case

Rule 26 (f) cont’d, (g)

Ruleso Parties shall confer at least 21 days before scheduling

a Rule 16(b) conference or ordero Parties shall consider

The nature and basis of the claim Their defenses Possibilities for a prompt settlement Disclosure arrangements and the creation of a

discovery plano A court order may exempt the meeting

Discovery proposals shall include1. what changes should be made to rules, AND2. what subjects need discovery, AND3. due dates and phases, AND4. any protective orders needed

All parties or attorneys are required to set up the conference and make a good faith effort to reach an agreement

A discovery plan must be submitted w/in 14 days after the conference

A court may order that the parties or attorney attend the conference in person

If necessary, the court may (by local rule)(i) The conference: decrease the 21 day limit for the conference so that the rule 16b conference occurs closer to the rule 26f conferenceOR(ii) The written plan: Decrease the 14 day limit for the written plan , OR Excuse the written plan, OR Require and oral report on the discovery plan at the rule

16b conference

(g) SIGNING OF DISCLOSURES, DISCOVERY REQUESTS, RESPONSES AND OBJECTIONS

1. certification of disclosures every disclosure must be signed by at least one

atty or the party if not represented, to be valid the signature is a certification that to the best of his

Rule 26(f) conference

Rule 26(g) cont

knowledge, information and belief (formed after a reasonable inquiry), the disclosure is complete and correct (as of the time it was made)

2. certification of discovery requests, responses or objections every discovery requires, response or objection

must be signed by at least one atty or the party if not represented, to be recognized by the court

the signature is a certification that to the best of his knowledge, information and belief, formed after a reasonable inquiry, the request, response, or objection is:(A) Consistent w/ good faith and existing law, or a good faith argument to extend, modify or reverse an existing law(B) Has a proper purpose – it is not used for purposes such as harassment, delay or to increase costs of litigation(C) is not unreasonable or unduly burdensome or expensive when considering

the needs of the case, and the discovery already obtained in the case,

and the amount in controversy, and the importance of the issues at stake in the

litigationan unsigned request, response or objection will be stricken, unless it is signed promptly after the omission is brought to the party’s attention.

3. sanctions if rules are violated, appropriate sanctions (such as

in rule 11) will be imposed by- the court’s own initiativeor- motion by opposing side

sanctions may include- an order to pay the amount of the reasonable expenses incurred because of the violation including reasonable atty’s fees.

Rule 26(g)(3) - discovery sanctions Punishes parties for unjustified

requests and refusals even when the parties’ behavior does not violate the court order

Atty’s fees are the most popular sanction for most violations of its obligations

Note that Rule 37 sanctions also apply to discovery,

but R37 sanctions are triggered by failure to answer or providing an evasive answer

Rule 30 – depo’s

Rule 30

Depositions and Oral Examination

(a) When Leave Required for Depositions(1) a party may normally take depositions of anyone without leave of court.(2) Leave of court is only required if:

(A) The Proposed depo will result in more than 10 depo’s by a party(B) the person to be examined has already been deposed(C) A party requests to take a depo before a Rule 26(f) discovery meeting, unless a witness is leaving the country and will not be available later(D) The person to be deposed is in prison

(b) Notice of Examination(1) General Requirements – see rule(2) Method of Recording – see rule(3) Additional Recordings – see rule(4) Deposition requirements – see rule(5) Production of documents

o notice to a party deponent may be accompanied by a Rule 34 request for docs and tangible things (which are to be brought to the depo)

(6) Depositions of Organizations – see rule (re corps & businesses)(7) Remote Depositions – see rule

(c) Examination and Cross-Examinations – see rule(d) Schedule and Duration – Motion to Terminate or Limit Examination

(1) Objections – see rule(2) Time limit – see rule(3) The court may impose sanctions on deponents that impede or needlessly delay a deposition(4) Motion to terminate examination – see rule

(e) Review by witnesses - see rule

Answering questions under oath; therefore may be used against you

at trial if you said sth different in your depo [may be used to impeach you]

Written depo’s: sent to the party; sworn by court

officer; court officer would ask the questions; the attorney is not there

Limits: - The total number of depo’s taken by one side may not exceed 10, unless that party seeks permission from the court. - No person may be deposed a second time w/o the permission of the court or other side

(f) Certification and Delivery by Officer - see rule(g) failure to attend or serve – see rule

Rule 33Interrogatories to

Parties

(a) Availability(b) Answers and Objections(c) Use at trial(d) Option to Produce Business Records

Limits:25 rogs per side, unless seek court’s permission

Rule 34Production of Docs

and Things and Entry upon Land

for Inspection and Other Purpose

(a) Scope(b) Procedure(c) non-parties

Rule 35Physical and

Mental Examination of

Persons

(a) order of examination(b) Report of Examiner

*court order is required for physical and mental examinations

Rule 36Requests for Admission

(a) Requests for Admission(b) Effect of Admission

Cons: mostly relates to general

information; questions of law will probably be

deniedPros: to clarify information eliminates undisputed

issuesRule 37

Sanctions for failure to Make or

Cooperate in Discovery

(a) Motion for order Compelling Disclosure of Discovery1. Appropriate court

Where action is pending – motion required where deponent is a party

Where deposition is pending – motion required if deponent is not a party

2. Motion(A) if a party fails to disclose under 26a, the court may grant a motion to compel disclosure, upon showing a good faith effort to obtain the discovery without the court’s help(B) If a deponent refuses to answer, a party may make a motion for an order compelling answer. If the court denies the

Rule 37 sanctions are for failure to comply w/ discovery requests – triggered by failure to answer or an evasive answer

Note that Rule 26 also contains sanctions that apply to discovery

26(g)(3) applies to doc requests, objections and for responses

this rule covers a broader range of discovery

motion, the deponent may be granted a protective order under rule 26c.

3. evasive or incomplete answer considered a failure to answer

4. expenses and sanctions if the motion is granted, or disclosure is made after the

motion is filed, the party/deponent must pay reasonable fees spent to make the motion

if the motion is denied and the motion is not substantially justified, the party making the motion must pay reasonable fees spent to oppose the motion

if the motion is denied in part and granted in part, expenses may be reasonably apportioned

all sanctions will be determined by a court hearing.(b) Failure to Comply with Order

1. Sanctions by Court in District where Deposition is Taken Failure to be sworn or provide an answer is considered

contempt in that court2. Sanctions by Court in District Where Action is Pending, the

court maya. Conclude that matters sought to be discovered by a

party are to be found in that party’s favorb. Refuse to allow the disobedient party to support or

oppose designated claims or defensesc. Render a default judgment or strike a pleadingd. Hold the disobedient person in contempt of courte. Require the opposing party to pay reasonable

attorney’s fees resulting from his disobedience, UNLESS the court finds the disobedience substantially justified.

(c) Failure to Disclose (1) penalty for a party that does not disclose information (under rule 26a)

The non-disclosing party is not allowed to use the undisclosed information as evidence at trial or at a hearing

Sanctions may be imposed if:i. There is no substantial justification not to

disclose the information –AND-

Blank v. Sullivan & Cromwell Rule 37(a) - Motion to compel Before you file a motion to compel

must give the other party notice to file motion to compel, AND

include a certification that you conferred w/ the other party in good faith to resolve the dispute

Rule 37(b) – sanctions for failure to comply with order

Rule 37(c) – sanctions for failure to disclose information

ii. The failure to disclose was harmful The court may also impose other sanctions (see rule)

Rule 41

Dismissal of Actions

(a) voluntary dismissal(1) By ╥ or stipulation

an action may be dismissed by the ╥ w/o a court order by:

(i) filing a notice of dismissal at any time before the service of an answer or motion for summary judgment is made (whichever is sooner)-OR-(ii) filing a stipulation of dismissal signed by all parties who have appeared in the action

Dismissal shall be without prejudice, unless:o Otherwise stated in the noticeo The notice of dismissal operates as an

adjudication upon the meritso The case is filed by a ╥ who has already

dismissed the action for the same claim in another court

This subsection is subject to rule 23(e), rule 66, and any other U.S. statute

(2) By order of Court Unless dismissed under 41(a)(1), an action shall only

be dismissed upon a court order. If a counterclaim has been pleaded by the ∆ prior to

the service of the ╥’s notice of dismissal, then:o The case cannot be dismissed if the

counterclaim cannot remain as an independent action

o ╥’s claim can be dismissed if the counterclaim can remain as an independent action

(b) Involuntary dismissal ∆ may move for a dismissal of any claim if ╥

o fails to prosecute, ORo fails to comply w/ FRCP , ORo Fails to comply w/ any court order

Dismissal under 41(b) is with prejudice, unless the court

Voluntary Dismissal under 41(a) is WITHOUT prejudice

Granted by the court Standard: Plain legal

prejudice [the court will allow a party to dismiss under 41(a) as long as there is no plain legal prejudice to the ∆]

Rule 41(a)(1) limits ╥’s dismissal right to an early stage of the proceedings – attempts to safeguard ╥’s right to terminate the proceedings while at the same time preventing arbitrary dismissals (& wasting ct’s time) after an advanced stage of the proceedings has been reached

Rule 41(a)(2) gives ╥’s an opportunity to dismiss lawsuit beyond the early stage of litigation w/ only the ct’s permission, to ensure that the dismissal would not prejudice the ∆.

Involuntary Dismissal under 41(b) is WITH prejudice

Ordered by the court Things to consider: pattern of

neglect, prejudice to the ∆, atty’s conduct re the case

Encourages ╥’s to pursue their suit

o States otherwise, ORo Dismissed the case for lack of jurisdiction, ORo Dismissed the case for improper venue, ORo Dismissed the case for failure to join a party

(under rule 19)(c) dismissal of counterclaims – see rule(d) Costs of Previously Dismissed actions – see rule

An involuntary dismissal w/ prejudice acts as a J on the merits and allows the scope of the claim to be defined by the doctrines of former adjudication rather than by the K of settlement.

Rule 45Subpoena

(a) form; issuance(b) Serving the Subpoena(c) Protection of Persons Subject to Subpoenas(d) Duties in Responding to subpoena(e) contempt -

Rule 50Judgment as a Matter of Law;

Alternative Motion for New Trial;

Conditional Rulings

(a) JNOV; Directed Verdict(1) Court may grant a motion for a JNOV, if, after being

heard, there is no legally sufficient evidentiary basis for a reasonable jury to have found for a party on a certain basis. (contrary to controlling law)

(2) Requirements for a Motion for a JNOVa Must be made before the case is submitted to

the jury.b Must specify the judgment soughtc Must state the applicable rule of law and its

relationship to the factsd Must be made after the non-movant has been

fully heard.

(b) Renewal for Judgment after trial; Alternative motion for new trial

(1) Renewal of motion for Judgment after Trial: a if the original motion is denied, court is deemed

to have submitted the case to the juryb a jury verdict will be subject to a later

determination of the legal questions raised by the motion.

c The motion may be “renewed” after the verdict by filing and serving it within 10 days after entry of judgment

(2) Alternative Motion for New Trial – may be

verdict only should be directed if no rational basis to find for the party not moving

Pennsylvania RR v. Chamberlain – As a matter of law, ╥ could not sustain her burden of proof by a preponderance of evidence

where the facts give equal support to each of two inconsistent inferences, a party has not sustained his burden of proving facts by a preponderance of the evidence

Rule 50(b) - A party who wants to make a motion for JNOV must first make motion for DV at the close of the other parties case

Unconstitutional for the court to re-examine the facts

NOTE:the court can consider all of the evidence when granting JNOV

requested in the alternative or joined with renewal of the motion.

(3) Judgment on the Renewed Motion a If a verdict is returned, the court may:

1. Allow the original judgment to stand, or2. Direct entry of judgment as a matter of law

(reversed), or3. Order a new trial

b If no verdict is returned, the court may:1. Direct entry of judgment as a matter of law,

or2. Order a new trial

(c) Conditions for granting Judgment as a matter of law(1) If a motion for judgment is granted, the court may

also rule on a motion for a new trial (if it was made) as follows:a Court must decide whether a new trial should

be granted if the judgment is vacated or reversed after the JNOV

b Court must describe specific grounds for granting or denying the motion for retrial

c Even if the motion for a new trial is conditionally granted (i.e. the JNOV is later vacated or reversed), the judgment is still final. If the JNOV is later reversed on appeal, the new trial goes forward (unless Appellate court ordered otherwise.)

d If the motion for retrial is denied, the denial may be appealed. If the JNOV is later reversed on appeal, the appellate court determines what subsequent proceedings take place.1. If judgment as a matter of law has been

rendered against a party, that party may serve a motion for a new trial no later then 10 days after judgment has was entered.

(d) Denial of a motion for judgment as a matter of law(1) The successful party, may on appeal, request a

Boeing Co. v. Shipman – Standard: whether reasonable persons could differ; if they could, the court should defer to the jury on the ground that its members are reasonable persons whose verdict represents one of several reasonable views

new trial, if: the motion was denied, and the Appellate court finds that the trial court erred in denying the JNOV

(2) If the Appellate court reverses the trial court’s judgment it may also find that:a The Appellee is entitled to a new trial, orb The trial court shall determine if a new trial

should be granted.

Rule 51Instructions to the

Jury

(1) At the close of evidence (as at earlier time as court allows) any party may file a written request for the court to instruct the jury on a certain law.

(2) Prior to their arguments to the jury, the court shall inform counsel of its proposed action based on their requests.

(3) The court may instruct the jury before or after the arguments, or both.

(4) Objections to giving or failure to give jury instructions must be made before the jury retires to consider its verdict.

(5) Objections must specifically state the ground for objection.Rule 54

Judgment; Costs

Rule 55Default

(a) Entrythe clerk shall enter a default judgment when:

a party has failed to plead (or otherwise defend itself as provided by the rules) – AND -

affirmative relief is sought against the defaulting party – AND the fact that a party defrauded is provided by an affidavit or

otherwise(b) Procedures for Default Judgment

(1) By the Clerk – the clerk may enter default Judgment if: ╥’s claim is for sum certain or computable amount- and – ╥ files an affidavit with the court requesting and

attesting to the amount due

Default Judgment is designed to goad the ∆ into action; typically occurs when a ∆ refuses to respond to his litigative cues

- and - the ∆ has defaulted for failure to appear - and - the defaulting party is not an infant or incompetent

(2) By the Court – for all other cases, where the amount due is not certain:

The party entitled to a J by default shall apply to the court for judgment

If a party against whom a default J is rendered has already appeared, the defaulting party shall be served w/ a written notice of application for default J, at least 3 days before the hearing for default J.

Default J cannot be made against infants or incompetents, unless they are represented in the action by a guardian or other representative who has appeared

The court may conduct a hearing or order references before entering and default J, if necessary to

o Take an account or determine the amount of damages – OR –

o Establish the truth of any averment with evidence – OR -

o Make an investigation on any other matter The court shall extend the right to a jury trial when any

U.S. statute requires(c) Setting Aside Defaultthe court may set aside an entry for default J if

Good cause is shown- OR - Cause under Rule 60(b) is shown –

[Rule 60: relief from Judgment]Rule 60 (b)…(1) there was mistake, inadvertence, surprise or excusable neglect, - OR - (2) Newly discovered evidence was found, which by due diligence could not have been discovered in time to move for a trial, - OR - (3) there was fraud, misrepresentation or other misconduct of

Rule 55(c) and 60(b)(4)Perlata v.Heights Med. Ctr. – a judgment entered without proper service is void

an adverse party, - OR - (4) the J is void (e.g. jurisdiction is not appropriate), - OR - (5) Either

o The J was satisfied, - OR - o The J had been released or discharged, - OR -o A prior J, upon which the J s based, is reversed, -OR - o It is no longer equitable that the J should have

prospective application, - OR - (6) there exists any other reason justifying relief from operation of the J

(d) Parties Entitled to Default Judgment Default Judgment applies to the following parties

o Plaintiffso Third-Party Plaintiffso Parties pleading Cross-claimso Parties pleading Counterclaims

Default Judgment is subject to Rule 54(c) limitations [it cant exceed demand for judgment]

(e) Judgment against the United States no default judgment shall be entered against the U.S.

Government, agency or officer, unless the claimant established a claim of right to relief with evidence satisfactory to the court

Rule 56Summary Judgment

(a) for Claimant (╥):a party may move for SJ after either:

20 days form commencement of the action, OR Service of a motion for SJ by the adverse party

(b) for defendant: may move for SJ at any time

(c) Motions and Proceedings a motion for SJ must be served to the adverse party at least

10 days before the scheduled hearings the adverse party may serve opposing affidavits at any time

before the hearing SJ must be based upon

o Pleadingso Depositionso Interrogatories

Rule 56(C) governs the movant’s burden of production for SJ

Celotex Corp. v. Catrett Motion for summary judgment

not granted b/c ∆ failed to meet its initial burden of production under Rule 56(c) of showing the absence of a genuine issue of material of fact b/c ∆ made no effort to adduce any evidence in the form of affidavits or otherwise to support its motion

the standard for granting

o Admissionso Affidavits

SJ shall be rendered if, based on the above:o There is no genuine issue of any material fact shown

[discretionary], - AND -

o The moving party is entitled to a judgment as a matter of law

(d) Case not fully adjudicated on motion If only part of the case is adjudicated, the court shall

determine which facts remain at issue for trial The judge shall file an order establishing the “adjudicated

facts” and how they affect the amount in controversy.(e) Defending Motion for SJ

Requirements for Affidavits: o Must include personal knowledge of factso Shall show that the affiant is competent to testifyo The court may permit the affidavit to be supplemented

by depositions, interrogatories, or other affidavits. Responding to Motion for SJ

o The adverse party must set forth specific facts showing that there is a genuine issue for trial (cant rely on pleadings)

o If the adverse party cannot show that there is a genuine issue, SJ shall be entered against him if appropriate (given an opportunity for discovery)

(f) when affidavits are unavailable If a party opposing a motion for SJ can show in its affidavit

that it cannot obtain affidavits containing facts essential to justify it’s opposition to SJ, then the court may:

o Refuse the application for SJ, - OR - o Order a continuance to permit affidavits to be obtained

(or other depositions or discovery to be had), - OR – o Make such order as it deems just

(g) affidavits made in bad faith (to delay the proceeding) A party making an improper affidavit shall pay the other

party’s reasonable expenses (including atty’s fees) associated with the motion for SJ

summary judgment mirrors the standard for a directed verdict under rule 50(a), in which ∆ would not be required to support its motion w/ affidavits or other similar materials negating ╥’s claim.

The burden is on ╥, not ∆ to go forward w/ evidence as to ╥’s claim

Burden of proof at trial taken and applied to SJ

Visser v. Packer Engineering Assoc – Information in the affidavits of

the employees were rejected b/c they do not seem to be based on knowledge of personal facts, as required by rule 56(e); rather, they are based on opinions and seem to be self-serving and vindictive in nature;

This is a close case b/c the credibility of witnesses is supposed to be judged by the trier of the facts

Rule 56(f) allows a party who believes it has insufficient opportunity for discovery to ward off summary judgment

The offending party or attorney may be guilty of contemptRule 57

Declaratory Judgments

- The existence of another remedy does not preclude J for declaratory relief in cases where it is appropriate - The procedure for obtaining a declaratory J pursuant to 28 USC § 2201 shall be in accordance with these rules - the court may order a speedy hearing of an action for a declaratory J, and may advance it on calendar - a jury trial may be demanded (subject to Rule 38 and 39)

Rule 58Entry of Judgment

(1) The clerk shall prepare, sign, and enter judgment (without awaiting for the court’s direction to do so), upon:

The court’s decision, if:o The decision was made without a jury, - AND – o The decision either:

Denies relief, - OR – Awards a certain sum

The General Verdict (2) The Judge must first approve the clerk’s form if J is entered upon:

The court’s decision (non-jury), or A special verdict, or A general verdict w/ special circumstances

Each J shall be recorded on a separate documentThere shall be no delays in entering orders to tax costs or award feesAttorneys may provide the form of judgments (to be filed by the clerk) upon the judge’s approvalJudgment entry must be done pursuant to Rule 79(a)

Rule 59New Trial and

Judgment Amendments

(a) Grounds – A new trial may be granted on all or some of the issues in the following instances:(1) Trial By Jury – allowed for any reason courts have

allowed it until now.(2) Trial w/o Jury

a Allowed for any reason the courts have allowed a hearing

b Upon motion for new trial, courts may:1. Open Judgment, or2. take additional testimony, or

Standard: verdict is against the great

weight of the evidence

Procedural reasons: jury members participated in

improper deliberations

Note: the standard for granting a new trial is a lesser standard than that of granting

3. amend a finding of fact, or4. amend a finding/conclusion of law5. make new findings of fact or law6. direct entry for a new judgment (or affirm the

original judgment)(b) Time Limitation – The motion, no later then 10 days

after entry of judgment(c) Serving Affidavits

(1) When motion for new trial based on affidavits, they must be served with the motion.

(2) Opposing party has 10 days to serve opposing affidavits. (may be extended to 20)

(d) New Trial on Court’s Initiative (1) May do so for any reason it would have done for

my motion(2) May do so for reasons not in motion after giving

notice and an opportunity to be heard.(3) Must specify the grounds for its dicision(4) Must order new trial no later then 10 days after

entry of judgment.

a JNOV

Rule 64Seizure of Person

or Property

Rule 65

Injunctions & TRO’s

(a) Preliminary Injunction1. notice is necessary2. consolidation of hearing with trial on merits (see rule)

(b) Temporary Restraining Ordermay be granted w/o written or oral notice to the adverse party or that party’s attorney only if

1. it clearly appears from specific facts shown that immediate and irreparable injury loss or damage will result before the adverse party can be heard in opposition

2. applicant’s attorney certifies to the court that efforts have been made to give the notice and the reasons supporting the claim that notice should not be required

(c) Security PI or TRO only issued if security (deposit of money, amt

determined by the court) for payment of costs and damages

A TRO is a preliminary injunction entered ex parte (w/o notice)

payable to a party who is found to be wrongfully enjoined or restrained. (the government doesn’t need to post security to obtain a TRO or PI)

(d) Form and Scope of PI & TRO must state reasons of issuance must be specific in terms must describe in reasonable detail what is to be restrained is binding only upon parties of the action…

Rule 68

Offer of Judgment(settlement offer)

Does not pertain to oral offers (must be put into writing) Settlement offer must be made more than 10 days before trial

offer to settle Offer is withdrawn if not accepted w/in 10 days of service if the judgment for the ╥ is less than what the ∆ was willing to

settle for, the ╥ must pay the costs incurred after the settlement offer was made

when a judgment is made, but the amount has not been determined, the guilty party may make a settlement offer, which will have the same effect as an offer made before the trial, if it is served within a reasonable time (at least 10 days prior to the commencement of the hearings to determine the amount he’s liable for)

Places consequences on ╥’s who turn down a good settlement offer early on, and then recover less money than was offered.

Policy arg: ╥’s should’ve accepted the offer b/c litigation wasted costs for both parties

This rule allows ∆’s and not ╥’s to make offers; ╥’s can make informal offers, but they don’t carry the sanctions and incentives of Rule 68

28 U.S.C § 144

Bias or Prejudice of Judge

(a) Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceedings.

(b) The affidavit shall state the facts and the reasons for the belief, and shall be files no less then 10 days prior to the proceedings, of good caused for failure. May only file one such affidavit in each case, with a certificate of counsel.

28 U.S.C §455

(a) Any judge or magistrate must disqualify himself in any proceeding in which his impartiality may be questioned.

In re Jeffrey C. Hatcher, Sr. Standard in applying § 455(a)

Disqualification of Justice

(b)Shall also disqualify himself:(1) Personal bias or prejudice against a party, or

personal knowledge of disputed evidentiary facts concerning the proceeding.

(2) He served as a lawyer, or a lawyer with whom he previously practiced law served during such matter, or been witness concerning it;

(3) Served in governmental employment and in such capacity was advisor or material witness, or expressed opinion concerning the merits of the particular case in controversy.

(4) Has a financial interest.(5) He or his souse, or third degree of relationship,

above 4 criterion.

(c) Judge should inform himself of the personal and fiduciary financial interests, of his spouse or minor children living on the household.

(d) Meaning of words and phrases:(1) Proceeding(2) Degree of relationship(3) Fiduciary(4) Financial interest.

(e) No justice, judge, magistrate shall receive a waiver for the reasons in (b), and if (a) then that is provided that there is a full disclosure of the bias.

(f) Fiduciary and financial interest. Disqualification not required after substantial time in the proceedings if he divests himself form the interest.

is whether reasonable members of the public would question the impartiality of the judge

Objective standard; the party seeking to disqualify need not demonstrate actual bias on the judge’s part

POLICY: trying to instill and maintain the public’s confidence in the judicial system

In general, courts have found § 455(b) easier to apply b/c its more specific

it permits a party to seek recusal by bringing specific issues to the court’s attention

INTRAJUDICIAL BIAS Judicial attitudes acquired

during litigation itself that are so disproportionate as to be grounds for recusal

Standard : Judicial remarks must reveal such a high degree of favoritism or antagonism as to make fair judgment impossible

28 U.S.C §1738

Full Faith and Credit

Judicial proceedings of any State shall have the same full faith and credit in every court within the United States…as they have by law or usage in the courts of such State...from which they are taken.

Mastushita Elec. V. Epstein – RULE: Federal courts are required to give full faith and credit to state court J’s approving settlements, even if they release a claim within the exclusive jurisdiction of federal courts

42 USC § 1983

Two Prong TestTwo allegations are required by ╥ to state a cause of action1. Some person has deprived him of his federal right2. The person who deprived him of that right acted under the

color of the law

Gomez v. ToledoPolicy args: good faithIn general, good faith must be plead by the ∆ b/c in qualified immunity case (§ 1983) there are two things - the claim itself - the affirmative defense of qualified immunity (good faith is a part of qualified immunity)Value choice importance of the claim; how many of the cases courts want to go to trial- We think § 1983 cases are

important and we are going to put the burden of pleading on the ∆ so that civil rights cases can be brought to suit

- Insulate the public officials balanced with the people who have had their civil rights violated

- In fraud cases, P standard so high that sup court shows that they are not so concerned w/ these types of cases

U.S. Const. Article IV, § 1

Full Faith and Credit Act

Full faith and credit shall be given in each state to the public Acts, Records and Judicial Proceedings of every other state

And the Congress may by general Laws prescribe the manner in which such acts, Records and Proceedings shall be proved and the effect thereof

7th amendmentFacts not reexamined

No fact shall tried by a jury shall be otherwise reexamined in any Court of the US, than according to the rules of the common law

14th amendmentDue Process

Due process clause No state shall deprive any person of life, liberty or property

w/o due process of law

Fuentes v.Shevin – notice and the right to be heard must be provide prior to seizure of property

A significant deprivation will trigger the need for Due Process

BMW v. Gore – DP clause of 14th amd prohibits a state from imposing a grossly excessive punishment on a tortfeasor

Perlata v. Heights Med.Ctr – [actual harm comes from not being heard]RULE: A default judgment entered w/o notice or service to the ∆ violates the DP clause