CIV PRO II

PRETRIAL PROCEDURE
Before the parties reach trial, they must (1) file their pleadings, (2) join any additional
parties or claims, (3) gather and disclose information to the other parties through the
discovery process, and (4) participate in a pretrial conference

I. Pleading
A. Complaint R8
R8 Well pleaded complaint rule: Must have a short and plain (1) statement of
grounds for jurisdiction, (2) claim showing grounds for relief, and (3) demand for
relief sought
(1) A pleading that states a claim for relief (complaint, counterclaim, third-party
claim, and cross-claim) must contain a short and plain statement of the grounds
for the courts jurisdiction
(2) Statement of claim: sufficient fact to give notice of claim and its basis, and
clear enough to enable response
Conley: Some facts std--ct should not dismiss unless it appears beyond doubt
that the can prove no set of facts in support of his claim which would entitle
him to relief (no longer used)
Twombly: Plausibility std--the complaint must contain sufficient facts to state
a claim that is plausible on its face. (>50%)
Ct cannot dismiss unless it appears beyond a doubt that the could not prove
any set of facts to support his claim.
Iqbal: (twombly applies to all civ fed cases) The facts pled in the complaint
must allow the court to infer more than a mere possibility that the defendant
acted unlawfully.
(1) ID elements of claim
(2) Well pleaded factual allegations (Disregard rebutting defenses)
(3) ask whether those allegations alone state a plausible claim.
conditions of a persons mind (Malice, knowledge) can be alleged generally
(3) needs to state what the ct can do and/or the (but ct is not bound by this
demand)
Types of relief include money damages, injunctive or other equitable relief, or
a declaratory judgment
At this point, can either file an answer AND/OR a pretrial motion
Service:
must serve with complaint and summons w/in 90 days of filing in ct
responds w/in 21 days of service

A. s Response

1
 must file answer or pre-answer motion w/in 21 days of service

ii. Answer R8
Response to a pleading must:
State in short and plain terms its defenses (R12s) not waived by pre-answer
motion (defenses not stated are waived)
Admit or deny (explicitly) the allegations asserted against it
Counterclaims or cross claims
Responds point by point to each allegation
yes (admission) <- no evidence needed after b/c
no (denial)
IDK (treated like no)
An allegation is admitted if not explicitly denied
denial must be effective by responding to the substance of that allegation
sufficient to put the on notice that they must prove the allegations
TIMING
must file 21 days to file answer unless pre-answer motion is filed
If the defendant has timely waived service under Rule 4(d), the answer must
be sent within 60 days after the request for a waiver was sent or within 90 days
if the request was sent to a defendant outside the United States
Affirmative defenses
Admits to s allegation but alleges additional facts that would require dismissal

Responses are NOT required if the answer only:

Admit or deny allegations, or
Asserts defenses
Response is required to the answer if:
Ct orders a reply, or
The answer sues somebody (counter, cross, or 3rd party claim)

iii. Pre-answer motions

Non-Waivable Defenses (can be asserted anytime)

2
 SMJ, no claim, failure to join indispensable parties
Waivable Defenses (lost if not asserted)
PJ, insufficient process, insufficient service, lack of venue
Must be filed in pre-answer motion or answer
R12: if makes pre-trial motion raising any waivable defense, she must raise all
in the motion or loose them (cannot be added later).
To get the left out defenses back, must properly amend the motion under
R12(h)(1)(B)(II) and R15(a)(1) then the case will proceed as if they were included
in the original motion

B. Default Judgment R55

Steps to default judgment
i. Entering Default R55(a)
properly files/serves complaint and if fails to respond w/in 21 days & failure is
shown by affidavit, then the clerk of the ct must enter the default
Entry of default alone doesnt entitle to relief
can move to set aside entry of default and get for good cause
(a) Whether the defendants failure to respond to the case was willful;
(b) whether setting aside the entry of default would prejudice, or unfairly harm, the plaintiff;
(c) whether or to what extent the plaintiffs claim seems to have some legal merit to it
(including whether defendant has articulated a colorable defense to the plaintiffs
claims); and
(d) whether the defendant acted expeditiously to correct its default
ii. Entering Default judgment R55(b)
Party seeking default must apply to the ct for default judgment
is entitled to notice of the hearing at least 7 days before it IF the has appeared
in the case
Ct demands proof of service and analyzes legal soundness of complaint.
The entry of default has relived of proving any liability elements BUT must still
prove damages unless there can be no dispute as to the amount due (then it is
automatically entered) (ex. Loan or law stating specific amount due)
can move to set aside DJ but held to normal std to set aside under R60(b)

C. Care in Pleading R11

i. Signature: anyone filing a paper with the court (such as a complaint, brief, or motion
papers) to sign it, so that the Court knows whom to hold responsible for the content
of the paper

3
 ct must strike unsigned paper unless promptly corrected after being partys attention
person moves quickly enough that other party is not misled or damaged by delay
signed=signed by hand or signed by mark if they cant sign by hand
if you sign it then you are deemed to have read and back it
ii. By signing, they certify to the best of their knowledge, info, and belief that:
1. the paper not be filed for an improper purpose;
harassment, delay, increase cost
2. legal contentions are warranted by existing law or non-frivolous change of
existing law or establishing new law
REQUIRED to state current state of law (even if trying to change it)
objective std: hypothetical reasonable attorney would not recognize it as frivolous
reasonable attorneys research so citing case or law review article=non-frivolous
stating law wrong=frivolous
in other words, the legal arguments must stand a reasonable chance of success at the time
they are made (even if they dont ultimately succeed); loosing sanctionable
3. facts will (likely) have evidentiary support (at that time or after chance for
discovery)
allegations must have evidentiary support or assert that there will be support
after discovery (more likely than not)
At the time the paper is filed, the party filing it must have an objectively reasonable basis for
concluding that the factual assertions in the paper have evidentiary support, or will have it after
the parties have had a reasonable chance to gather evidence.
iii. It imposes sanctions for violating the requirements of (2), so that there are real
consequences for filing frivolous papers
Duty of reasonable inquiry
Plaintiffs must conduct a reasonable investigation to ensure above is true
Objective standard: so no need to act in bad faith but only be culpably
careless
Reasonable inquiry under the circumstances
Party that signed will have to do less if they have less time to investigate and
forced to rely on others for info
Party is expected to do more if opposite
Sanctions
Ct ordered sanctions
Only need notice and hearing
Party imposed sanctions (must make same inquiry under R11 for a R11 motion)
Movant serves (but should not file) motion
Other party has 21 days to correct whats wrong
If corrected then nothing is done
If party fails to correct wrong, then movant files sanction w/ the ct
Sanctions are limited to what is necessary to deter similar conduct in future by
attorney or those similarly situated
Not for small stuff
No monetary damages against client for frivolous legal arguments

D. Motions to dismiss R12(b), (e), (f), R11

4
 i. Waiving motions
Include R12(b)(2)-(5) in first answer or
Include all R12 motions if making a pre-answer motion
R12(b) Motions to Dismiss: treats facts as alleged in complaint as a given, then ask if
recovery can be allowed based on those facts

ii. 12(b)(1) M to Dismiss for Lack of SMJ

filed any time (cant be waived)
iii. 12(b)(2) M to Dismiss for Lack of PJ
waivable, must file in first answer or motion
iv. 12(b)(3) M to Dismiss for Improper Venue
waivable, must file in first answer or motion
v. 12(b)(4) M to Dismiss for Insufficient Process
waivable, must file in first answer or motion
vi. 12(b)(5) M to Dismiss for Insufficient Service of process
waivable, must file in first answer or motion
vii. 12(b)(6) M to Dismiss for Failure to State a Claim
Plausibility Standard (Twombly and Iqbal)
(a) Does the complaint assert real facts?
(1) If no, only legal conclusions so dismissed
(2) If yes, go to (b)
(b) Do the facts state that the is plausibly entitled to prevail on the claim?
(1) If yes, offers distinct factual allegations sufficient (if taken as true) to
create the reasonable inference that the plaintiff is plausibly entitled to
prevail. Therefore, complaint must be sustained
(2) If no, complaint must be dismissed
all factual allegations (circumstances or events) in complaints are accepted as
true.
Ct doesnt need to accept legal conclusions (statement of legal elements and that they
happened)
ct can consider the face of the complaint and documents attached or referenced
in complaint.
Procedure
Cant be waived
By pre-answer motion or amendment; in the answer; by motion for judgment
on the pleadings R12(c) (considers all pleadings); or at trial
viii. 12(b)(7) M to Dismiss for Failure to Join a Party
must file in first answer or motion (waivable)

ix. 12(e) Motion for a More Definite Statement

party may move for a more definite statement of a pleading to which a responsive
pleading is allowed by which is so vague or ambiguous that the party cannot
reasonably prepare a response.

5
 Motion must be filed before filing a response and must point out the defects of
pleading and details desired
x. 12(f) Motion to Strike
ct may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.
Ct may act on its own, or on motion by party before responding to the pleading or,
if response not allowed, w/in 21 days after being served with the pleading.
xi. Post answer motion: 12(c)
ct may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.

xii. R 11 motion for sanctions

See above.
xiii. R 37 Motion to Compel
See below.

E. Amending pleadings R15

Unless ct states otherwise, party must respond to amended pleading w/in 14 days of
service or within the time remaining to respond to the original pleading (whichever is
later)
Amendments as a matter of course
Dont need permission from ct or other side
Party may amend it its pleading once as a matter of course
(a) w/in 21 days of serving it or
(b) if the pleading required response, 21 days after service of a response or 21
days after a 12(b) (e) or (f) motion, whichever is earlier.
A pleading requiring a response is a complaint, an answer with counter/cross/3rd
party claim, or pre-answer motion under 12b, e, f.

Amendments w/ leave of ct
Once the 21 days after service of the pleading has expired the party can still
amend only
w/ the opposing partys written consent OR
cts leave
Ct should freely give leave when justice so requires (especially if the amendment
aids decision on merits) UNLESS:
(1) Undue delay
If party waits a relatively long time after notice of problem, then less likely
to be allowed to amend
(2) Bad faith or dilatory (intend to delay) motive
If it is just a tactical move, then less likely to get amendment
(3) Repeated failure to cure deficiencies by amendments previously allowed
If party has already been given chances to amend

6
 (4) Undue prejudice to opposing party by allowance (short on time)
(5) Futility of amendment (proposed amendment wouldnt correct anything or
still fails to state a claim)
Party opposing the amendment has burden to prove abuse of digression (high std)

Relation Back R15(c)

Issue: If there is a statute of limitations problem, then it must meet above
reqs AND relate back (to be treated as part of original pleading and
overcome stat of lim)
An amendment to a pleading relates back to the date of the original pleading
if:
The law with the statute of limitations allows relation back; or
the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set outor attempted to be set outin the
original pleading;
Transaction or Occurrence tests:
Bonerb Notice test
o Same operation of facts (same general cloud of facts)
o Are the issues of fact and law raised in the claim and counterclaim
largely the same?
o notice-amendment overcomes futility argument b/c defendant is
on notice b/c of the original claim
o (b/c the same operative facts to the first gave rise to the second)
But for test
o but for the core of one claim, the second claim wouldnt have
happened (same act or occurrence gave rise to the actions)
o Same evidence will be used to support or refute both claims
o
Evidence overlap test (broadest)
o is there a logical relationship between the claim and the
counterclaim (or original and amendment)?
o Some factual relationship between them will make it efficient to
hear together

When new party is added b/c of mistake

the amendment changes the party or the naming of the party against,
if Rule 15(c)(1)(B) is satisfied & if, within the 90 days of filing the
complaint, the party to be brought in:
o received sufficient notice that it will not be prejudiced in defending on the
merits; and
o new knew/should know mistake in identity and would have been
sued but for the mistake. (emphasis on what new knew not )

II. Claims and Parties

7
A. Party Joinder R20
Permissive joinder of s: (R20)
Multiple persons may join in one case as plaintiffs if:
(1) they assert any right to relief jointly, severally, or alternatively based on the
same transaction, occurrence, or series of transactions or occurrences and
(2) there is a question of law or fact common to all defendants
And Ct has jurisdiction (joinder doesnt overcome SMJ and PJ over all claims
and parties)
Ct has discretion to prohibit joinder if it would result in
Unfair prejudice to parties
Confuse jury (not very similar legal or factual issues, evidence, or arguments)
Burden ct
R42 Separate trials
If the above is found, then the ct may order separate trials for one or more separate
issues, claims, crossclaims, counterclaims, or third party claims
Policy: favors joining parties

Permissive joinder of (R20)

Multiple persons may be joined as defendants in one action if:
(1) any right to relief is asserted against them (jointly, severally, or alternatively)
based on the same transaction, occurrence, or series of transactions or
occurrences and
(2) there is a question of law or fact common to all defendants
And Ct has jurisdiction (joinder doesnt overcome SMJ and PJ over all claims
and parties)

Compulsory Joinder (R19)

The court must join any necessary party. In certain cases where the necessary
party is also an indispensable party who cannot be joined, the court must dismiss
the action.
Necessary party: A person who is subject to service of process and whose
joinder will not affect subject matter jurisdiction must be joined if:
(1) the persons presence is required for complete relief among existing
parties, or
(2) the persons absence may impair his ability to protect his own interests
or subject an existing party to multiple or inconsistent obligations.
Indispensable party: If a necessary party cannot be joined, the court must consider the following factors in
determining whether to dismiss the case on the ground that the party is also indispensable:
(1) the extent of prejudice to the parties that would result from dismissal,
(2) the extent to which the judgment may be framed to lessen such prejudice,

8
 (3) whether the judgment would be adequate without the necessary party, and
(4) whether the plaintiff would have an adequate remedy if the action is dismissed.

B. Impleader R14 (joinder of 3rd party by )

A party defending against a claim (third-party plaintiff) may bring a third-party
complaint against a nonparty (third-party defendant) who is liable for all or part of the
claim.
Third-party plaintiff: The third-party plaintiff may file a complaint:
(1) without leave within 14 days after serving an answer to the original claim or
(2) anytime with leave upon a motion.
Third-party defendant: The third-party defendant must assert defenses to the
claims and may assert:
(1) the third-party plaintiffs defenses to the original claim,
(2) any counterclaims against the third-party plaintiff,
(3) crossclaims against another third-party defendant,
(4) claims against the original plaintiff that arise out of the same transaction or
occurrence as the claims against the third-party plaintiff, or
(5) claims against a nonparty by impleader.

Original plaintiff:
The original plaintiff may assert a claim against the third-party defendant that
arises out of the same transaction or occurrence as the original plaintiffs
claims against the third-party plaintiff.
Must have jurisdiction b/c it doesnt fall under supplemental jurisdiciton

Jurisdiction: Generally, the court will have supplemental jurisdiction over:

(1) the third-party plaintiffs claims against the third-party defendant and
(2) the third-party defendants claims, other than permissive counterclaims.

C. Intervention R24 (non-party joining)

A nonparty to an action may become a party by intervening.
Intervention as of right: An intervenor may intervene as a matter of right if:
(1) a federal statute grants an unconditional right to intervene, or
(2) the intervenor has a interest related to the action that is not protected or
adequately represented by existing parties.
Permissive intervention: The court may permit intervention if:
(1) a federal statute grants a conditional right to intervene, or
(2) the intervenors claim or defense shares a common question of law or fact
with the action.

9
D. Claim Joinder R18
Any party asserting any claim against another party (by complaint, counter, cross, or
3rd party claim) may join as many claims as they have against the opposing party.
So long as there is SMJ over each claim
Claim preclusion limits if claim can be brought separately

E. Counterclaims R13
Permissive counterclaims
Unrelated to opposing partys claims can be brought.
Can be brought in current case or separate later case.
Problem: SMJ problem b/c it doesnt arise out of same TorO so no supplemental j
Compulsory counterclaims
must raise it or be precluded from raising it later b/c they arise out of same TorO
Must be brought now or never
Requirements:
(a) Same T or O and
(b) Ct has jurisdiction over any required added parties
Meets supplemental jurisdiction (passes common nucleus test)
b/c part of same case and controversy that ct already has J over, not added
by the , not diversity only, and party bringing claim didnt make joinder
under rule 14, 19, 20, or 24)

F. Crossclaims R13
may cross-claim against a co-defendant
may cross-claim against a co-plaintiff
Requirement: if the claim arises out of the same T or O as the original action.
not compulsory
often brought in an answer
G. Class Actions R23
In a class action, one party or a small group of representative parties brings a
collective action on behalf of all members of a much larger group, or class, against
a single defendant or a group of defendants.
Prerequisites
Representative parties may bring a class action only if the following prerequisites
are met:
The class is so large that joinder of all the members is impracticable;
There are questions of law or fact common to the all members of the
class;
The representative parties claims or defenses are typical of the classs
claims or defenses; and
The representative parties will fairly and adequately protect the classs
interests. [Fed. R. Civ. P. 23(a)]

10
 Categories
A class action may be maintained only if:
Prosecuting separate actions by or against the individual class members would
create
(1) a risk of inconsistent decisions with respect to different individual class
members that would create incompatible standards of conduct for the
party opposing the class, or
(2) a risk of impairing the interests of class members not included in the
separate actions [Fed. R. Civ. P. 23(b)(1)];
The party opposing the class has acted or refused to act on grounds that
apply to the whole class, so that injunctive or declaratory relief for the whole
class is appropriate [Fed. R. Civ. P. 23(b)(2)]; OR
The questions of law or fact common to the class members predominate over
any questions affecting only individual members, and a class action is superior
to other available methods for fairly and efficiently deciding the controversy.
[Fed. R. Civ. P. 23(b)(3)] In deciding whether a class action is superior to other
methods, the court should consider:
(1) the class members interests in individually controlling the prosecution
or defense of separate actions;
(2) the extent and nature of any litigation already begun by or against the
class members concerning the same controversy;
(3) the desirability of concentrating the litigation of the claims in the chosen
forum; and
(4) the likely difficulties of managing a class action. [Fed. R. Civ. P.
23(b)(3)(A)-(D)]

Certification and Notice

Before an action may be prosecuted as a class action, the court must determine,
by order, whether to certify the action as a class action. [Fed. R. Civ. P. 23(c)(1)]
The representative parties must provide notice of the class action to all members
of the class. [Fed. R. Civ. P. 23(c)(2)]
Absent class members are bound if they are represented by a proper rep:
Who has interests in common w/ absent member
Who adequately reps the absentee so as to ensure full and fair consideration of
common interests
Who is formally designated as class rep by a court procedure
Jurisdiction: only consider party representatives, not absent parties.

H. Claim Preclusion Res Judicata

Prohibits re-litigation of certain claims.

11
 1. Same claim as the claim litigate in Case 1
2. Case 1 claim must be a
(a) Valid,
(b) final judgment,
(c) on the merits
3. same parties
UNLESS was originally unable to pursue the theory in question (in state ct but a fed
q came up)
Same claim
If same T or O
Transaction test: (NC) (broader preclusion so smokem if you gotem)
claim arises out of the same group of operative facts
Same evidence test:
if evidence needed to sustain or essential to case 2 would have sustained
case 1,
o focus on elements of each case
o look from case 2 to 1

Valid and final judgment
For the first judgment to be valid, it must have been rendered by a court that had
proper subject-matter jurisdiction over the case and personal jurisdiction over
the defendant
On the merits
Summary judgments, JMOL, and default judgments are judgments on the merits.
A dismissal for lack of jurisdiction, improper venue, or failure to join an
indispensable party is not an adjudication on the merits.
All other involuntary dismissals operate as an adjudication on the merits, unless
the court specifies otherwise
Same parties
The enforcement of a judgment against a person who was not designated as a
party or made a party by service of process violates the Due Process Clauses of
the Fifth and Fourteenth Amendments of the U.S. Constitution.
Thus, in general, claim preclusion only applies to parties to the initial action.
However, a non-party may be bound by a prior judgment if:
(a) The non-party agrees to be bound by the first judgment;
(b) The non-party has a pre-existing, substantive legal relationship or is in privity with
a party from the first action, for example successive owners of the same parcel of land;
(c) The non-partys interests were adequately represented by someone with the same
interests who was a party to the first judgment;
(d) The non-party assumed control over the prior litigation;
(e) The non-party is acting as a proxy for a party from the first action, for example where
the non-party brings suit as the designated agent of a party from the first action; or
(f) A special statutory scheme consistent with due process, for example bankruptcy or
probate proceedings, expressly forecloses successive litigation by non-parties

12
 I. Issue Preclusion Collateral Estoppel
Prohibits re-litigation of certain issues
1. Same issue as the issue litigate in Case 1
Issue of fact or law
2. Issue was actually litigated in Case 1
Issue is raised by the pleading, submitted for determination, and determined
Evidentiary hearing where evidence is submitted is enough
3. The issue was litigated with a full and fair opportunity to present it
Were they a party in case 1 (issue of due process)
4. The issue was actually decided
Opinion shows the issue was mechanically decided and not just a general
ruling
5. The decision on the issue was essential to judgement of case 1.
Not dictum. Finding was necessary to determining case 1
The issue was expressly decided and on the critical path of reasoning of case1
Non-mutual IP: a party was not present for the first case
Cannot loose if youre not the party who got to litigate their case.
Multiple plaintiffs
Prevents the use of non-mutuial issue preclusion is string of different s suing
same and one case is an anomaly.
It encourages strongest case to go first

III. Discovery
A. R26 and R37
Scope of discovery
Any (1) non-privileged matter that is (2) relevant to any partys claim or defense
and (3) proportional to the needs of of the case, even if inadmissible at trial
Proportional =
Importance of the issue
Importance of the discovery to resolve the issue
Amount in controversy (how much is the action worth)
Parties relative access to relevant info ***ONLY have to give WHAT U HAVE
Partys resources
Burden/expenses vs. likely benefit
Privileged matter =
Communication and work product in confidence in doctor/patient,
lawyer/client, husband/wife, priest/parishioner in the course of their
professional relationship.
For providing or obtaining legal assistance for the client
Self-incriminating evidence (5th amendment)

13
 claim to resist discovery must invoke a privilege
(1) expressly
(2) and describe nature of the doc/comm of thing not disclosed in a way that
will allow parties to assess the claim
Objections to discovery
Irrelevance to any partys claim or defense
Not proportional
Attorney-client privilege
Work product
Already had opportunity for discovery
Requested material is available elsewhere, or is unduly burdensome
NC adds that it has to be reasonably calculated to lead to the discovery of
admissible evidence.
Timing of initial disclosure: w/in 14 days of parties conference unless other date is
stipulated or ct
w/in 30 days of service for parties joined after conference
Parties cannot seek discovery before the parties have conferred.
Parties MUST supplement disclosure in a timely manner as they learn the material in
incorrect or incomplete.
Conference to plan discovery must be done w/in 21 days b4 scheduling conference
(113 days since service of complaint). MUST discuss possibility of settlement
Interrogatory Request for documents/thing may be made w/in 21 days after service
of complaint or after conference. Must reasonably describe thing, time, place, and
manner to be delivered
Response to discovery: w/in 30 days after service of request for documents or
w/in 30 days of parties first conference.

B. Mandatory disclosures: The parties must disclose certain information without waiting for
a discovery request.
Initial disclosures: Generally, each party must disclose the items set forth in FRCP
26(a)(1)(A) within 14 days after the initial discovery conference or 30 days after being
joined, unless the particular proceeding is exempt under FRCP 26(a)(1)(B).
Expert testimony disclosures: Generally, each party must disclose at least 90 days
before trial (or within 30 days after the opposing partys expert disclosure, if the
testimony is intended solely for rebuttal): (1) any expert witness that may present
evidence and (2) a written report containing the items set forth in FRCP 26(a)(2)(B).
Witness and exhibit disclosures: Each party must identify at least 30 days before
trial: (1) each witness that may be presented or called, (2) all witnesses providing
testimony by deposition, and (3) each exhibit that may be offered.
C. Methods of discovery: The parties may use these methods in any combination or
sequence.
Deposition: A party may take the sworn testimony of any person (deponent) in the
presence of an appointed officer who can administer oaths. Note: Maximum of 10
depositions (1 per deponent); may compel attendance by subpoena.

14
 1. Oral questions (FRCP 30): The deponent may be examined and cross-examined
(as if at trial) after reasonable written notice. Note: The deposition generally may
not exceed one day of 7 hours.
(a) Objection: An objection is noted in the record, but the question must be
answered unless not answering is necessary to: (1) preserve a privilege, (2)
enforce a court order, or (3) present a motion to terminate or limit the
deposition.
(b) Motion to terminate or limit: The deposition may be terminated or limited if it
is being conducted in: (1) bad faith or (2) a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party.
2. Written questions (FRCP 31): (1) The deposing party serves questions. (2)
The other parties serve cross-questions. (3) The appointed officer takes the
deponents testimony under oath in response to the written questions.
Interrogatory (FRCP 33): A party may submit a set of written questions to another
party to be answered in writing under oath. Note: Maximum of 25 questions, responses
due within 30 days.
Business records: If either party may just as easily determine the answer to an
interrogatory by examining the responding partys business records, then the
responding party may specify the relevant records, provide them to the interrogating
party, and give the interrogating party a reasonable opportunity to copy and examine
the records.
Request to produce or inspect (FRCP 34): A party may serve another party with a
request to: (1) produce documents, electronically stored information, and tangible
things in its possession, custody, or control (or control for short) or (2) inspect property
in its control. Note: Must respond within 30 days; nonparty may be compelled to
respond by subpoena.
Physical and mental examination (FRCP 35): A party may move with good cause
that another party submit to a physical or mental examination if the other partys mental
or physical condition is in controversy.
Request for admission (FRCP 36): A party may serve another party with a written
request to admit the truth of any matters (i.e., conclusively establish at trial) relating
to: (1) facts, (2) the application of law to facts, (3) opinions about facts or law, and (4)
the genuineness of documents. Note: A request is deemed admitted if not answered
within 30 days.
D. Supplementing disclosures and responses: An incomplete (or incorrect) disclosure or
response must be supplemented (or corrected) in a timely manner.
E. Signature requirement: Every disclosure and request must be signed by the partys
attorney (or unrepresented party) to certify that after a reasonable inquiry: (1) any
disclosure is complete and correct; and (2) any request is for a proper purpose, warranted
by existing law, and not unduly burdensome or expensive.
F. Court involvement: The court must ensure that the discovery process is not violated or
abused.
Subpoena (FRCP 45): A person may be compelled to testify or provide documents
and evidence by subpoena.
1. Place of testimony: A non-party may only be compelled to attend a trial, hearing,
or deposition at a place within 100 miles of his residence, his workplace, or a place
where he regularly transacts business in person. A party may be compelled to

15
 attend such proceedings within the state where he lives, is employed, or regularly
does business in person. A subpoena may command production of documents,
electronically stored information, or tangible things within 100 miles of a persons
residence, workplace, or place where he regularly transacts business in person.
2. Modify or quash: A subpoena must be modified or quashed if it: (1) fails to allow
a reasonable time to comply, (2) requires a person to go beyond the geographical
limits, (3) compels the disclosure of privileged or protected matter, or (4) imposes
an undue burden.
Protective order (FRCP 26): A person may move with good cause for a protective
order against: (1) annoyance, (2) embarrassment, (3) oppression, or (4) undue burden
or expense. Note: The movant must certify that it has in good faith conferred or
attempted to confer with the affected persons in order to resolve the matter without
court intervention.
Motion to compel discovery (FRCP 37): If a person or party fails to comply with a
discovery demand, the party seeking discovery may move for an order compelling
discovery and for appropriate sanctions for non-compliance, but the motion must
contain a certification that the movant has conferred, or tried to confer, with the target
of the motion in an effort to obtain discovery without court intervention.
Sanctions (FRCP 37): The court may sanction parties, attorneys, or other persons for
failing to comply with a proper discovery request or a court order to compel discovery.

IV. Pre-trial Dismissal

A. Voluntary and involuntary dismissal (FRCP 41): The case may be dismissed voluntarily
on the plaintiffs initiative, or involuntarily on motion of the defendant.
w/out prejudice: can be sued on again w/out claim preclusion
w/ prejudice: claim is precluded
Voluntary dismissal: The plaintiff may voluntarily dismiss the complaint by filing
notice of voluntary dismissal:
(1) (without court order) once without prejudice before the defendant answers or
moves for summary judgment or
(2) (with court order) afterward, at judges discretion to prevent dismissal that
unfairly causes prejudice to the opposing party.
Involuntary dismissal: The defendant may move for involuntary dismissal of the
complaint with prejudice if the plaintiff fails to comply with the FRCP or a court order.
Note: The court may also involuntarily dismiss by motion made under FRCP 12(b).

B. Motion for Summary Judgment (FRCP 56):

Done like a 16(b) dismissal but after discovery so evidence outside of the complaint is
considered. Last shot of ending before trial.
An adjudication on the merits is granted on any claim or defense if:
(1) there is no genuine dispute as to any material fact, and
(2) the moving party is entitled to judgment as a matter of law.

16
 The moving party must either cite to admissible evidence in the record to support
its motion, or point to the lack of evidence to support the non-moving partys claims
When a motion for sum judge is made and supported, an adverse party may not rest
on allegations or denials of the pleading, but must file a response by affidavit, setting
forth specific facts showing there is a genuine issue for trial.
TEST
1. What is the substantive law at issue (material)?
2. Which facts matter-material-to apply that rule of law?
3. Has the moving party met its burden of proof showing that there is no genuine
dispute of material fact in the record and that it is entitled to judgment under the
law at issue. (can show an adverse party cannot show a fact, absence of proof)
4. If so, has the non-moving party met its burden of showing specific facts in the
record that create a genuine dispute on facts that matter under the law at issue?

17
V. Trial/Post-trial Motions
A motion may request judgment as a matter of law before the case is submitted to the
jury at trial.
A. Motion for judgment as a matter of law (directed verdict or JMOL) (FRCP 50a):
Done after s case or after and s cases
A reasonable jury would not have a legally sufficient evidentiary basis to find for
a party on a claim or defense. (if there is a leg. suff. ev. basis, trial continues)
In reviewing a motion for JMOL, the court must draw all reasonable inferences in favor
of the nonmoving party, but it may not make credibility determinations or weigh the
evidence
Granting a judgment as a matter of law takes the case or a particular issue away from
the jury
Note: Most courts reserve judgment until after the jury verdict to avoid a new trial on
appeal.
B. Renewed motion for judgment as a matter of law (judgment notwithstanding the
verdict or JNOV) (FRCP 50b):
w/in 28 days after entry of judgment.
A party that moved for JMOL before the case was submitted to the jury may renew the
motion after the judgment enters.
Judge should do so only when a party has failed to offer a legally sufficient evidentiary
basis to support a judgment in her favor

VI. Choice of Law: State Law in Fed Cts

A. Erie Doctrine
federal courts sitting in diversity apply state substantive law and federal procedural
law
Substantive law:
a federal court hearing a diversity case must apply state substantive law
(including both statutory and common law), unless the U.S. Constitution, a
federal treaty, or a federal statute preempts state law
Procedural law:
Under the Rules Enabling Act, the Supreme Court may prescribe, the practice
and procedure in civil actions at law for all federal courts, but such rules may not
abridge, enlarge, nor modify the substantive rights of any litigant.
Thus, if there is an applicable federal procedural statute or Federal Rule of Civil
Procedure (FRCP), then the Erie doctrine and the Rules of Decision Act do not
apply.
If there is no applicable federal statute or rule & therefore no direct conflict, then
the court must apply a balancing test to determine whether federal or state law
should apply to the procedural issue

18
 Balancing test: If there is no federal rule or procedural statute applicable to the
case, or if it is not clear whether a law is substantive or procedural, then the federal
court must balance several factors:
Whether the state law is outcome determinative, that is, if the decision to apply
it or not apply it will significantly affect the result of the litigation
Whether there is a strong state interest in applying state law, in other words,
whether the state law is a rule intended to be bound up with the definition of the
rights and obligations of the parties
Whether there is a strong countervailing federal policy that overrides the state
policy; and
Whether the application of one law would work against the twin aims of the Erie
doctrine: discouragement of forum shopping and avoidance of inequitable
administration of the laws.

Erie Doctrine TEST**

1. Is this a fed-q only case?
must be a diversity case
if fed-q only -> fed law
2. Is there a conflict between fed law and state law on point?
Fed cts in applying state law are predicting how the highest state ct will rule
(so can go against past rulings for good reason)
If same, apply the law and dont care about names.
3. Is the legal std in question at least arguably procedural?
Yes, the difference would not predictively change the outcome (akin to
managing the flow of trial) -> use fed rules
No, apply state law
4. Is there a federal statute or rule on point?
Apply fed rule b/c of supremacy clause
5. If so, is it constitutionally valid and (if its a rule) valid under the Rules
Enabling Act?
If congress had authorized the ct to write the Rule and rule is arguably
procedural but may not abridge, enlarge, or modify any substantive right.
Ex) damages cap but no fed rule has ever been in this conflict
6. If no federal rule/statute, would applying the federal practice drive people to
federal court and/or cause discrimination against in-staters?
Discourage forum shopping and avoid inequitable administration of laws
7. Even if so, is there a countervailing federal interest?

19
20