Arsenal: Federal Rules of Civil Procedure

Rule 4 Summons
 The only pertinent sections are:
o Rule 4 (e) a complaint may not be filed against infant or incompetent
person. Policy: they can’t defend selves.
o Rule 4 (k)(1)(A) a Federal court has personal jurisdiction over person
who could be subject to jurisdiction in the analogous state court.
o Rule 4 (l) person serving notice has burden of proving service.
o Rule 4 (m) service of summons and complaint must be made within
120 days of filing of complaint.
 What kind of entity is defendant?
o Individual
o Infant/incompetent
o Corporation/association
o US Government/agency/employee
o Foreign, state, or local government
 Is defendant eligible to waive service under 4(d)?
o If so, do you want to seek a waiver?
 Is defendant located outside the US?
o If so, look to 4(f) or 4(h)(2)
 If no waiver and defendant is within the US, how do you
accomplish service?
o Individual – 4(e)
o Infant/incompetent – 4(g)
o Corporation/Association – 4(h)
o US Government/agency/employee – 4(i)
o Foreign, state or local government – 4(j)

Rule 8 requires PLANTIFF to state THREE (3) things:

1) Reasons for courts jurisdiction.
2) Short and plain statement of facts alleging WHY plaintiff is entitled to relief.
3) Demand for RELIEF.
Subsections of Rule 8
a. Short plain statement setting forth claim for relief, reason for claim for
relief, and court’s jurisdiction. Subject to Rule 11 sanctions.
b. Short plain terms of the party’s defenses to each claim & admit or deny.
c. State affirmative defenses. Subject to Rule 11 sanctions.
d. If no response, then statements in pleading are taken as admitted.
Likewise, answers without a response is taken as properly denied.
e. Be concise in and direct
1. There is no technical form of pleading
2. Parties may plead in the alternative
Rule 11 requires that ATTORNEY SIGNING CERTIFIES that:
1) ATTORNEY has made a reasonable inquiry into facts and into the law.
2) Filing by PARTY is not for improper reason (such as to harass).
3) ATTORNEY believes that the complaint is justified by law.
4) ATTORNEY believes that the complaint is justified under the facts.
Subsections of Rule 11
a.Every pleading must be signed by an attorney.
b. Do not bring suit to court to harass, if there is no law, or no proof.
c.Sanctions for violation against upon lawyer, firm, and responsible party.
1. On Court’s initiative, or Motion after 21 day SAFE
HARBOR
2. Sanctions are to deter. Monetary and non Monetary.
Money should be paid to court because probative and not retributive.
d. Not applicable to discovery because covered in 26 (g) and 37.

Under Rule 12, if ANY RULE 12 MOTION IS MADE then party WAIVES:
1) Right to bring 12 (b) (2-5) and 12 (e)
a. 12 (b) (2) is PERSONAL JURSIDICTION.
b. 12 (b) (3) is IMPROPER VENUE.
c. 12 (b) (4) is INSUFFICIENCY OF PROCESS.
d. 12 (b) (5) is INSUFFICIENCY OF SERVICE OF PROCESS.
e. 12 (e) is MOTION FOR A MORE DEFINITE STATEMENT.
BUT following are NOT WAIVED, EVEN DURING TRIAL
2) 12 (b) (1, 6-7)
a. 12 (b) (1) is SUBJECT MATTER JURISDICTION
b. 12 (b) (6) is FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN
BE GRANTED
c. 12 (b) (7) is FAILURE TO JOIN INSDISPENSIBLE PARTY RULE 19.
3) 12 (b) (1) SUBJECT MATTER JURISDICTION is not waived even on APPEAL
Subsections to Rule 12
a. When to present defenses and objections
b. Possible motions. 1 subject matter, 2 personal jurisdiction, 3 venue, 4
process, 5 service, 6 failure to state a claim, 7 failure to join party.
c. Motion to have judgment on pleadings. Treated as a Rule 56.
d. A hearing will be had to decide 12 b (1-7) or e motions.
e. Motion for a more definite statement. If pleading is vague or ambiguous.
f. Motion to strike redundant, immaterial, scandalous, etc. material.
g. Consolidate defenses or they are waived. See above.
h. Preserved = 12 (b) (1, 6, 7). Waiveable= 12 (b) (2-5). Duty to report lack
of subject matter jurisdiction and it is revisable even at appeal.

Rule 13 Joinder
a. Compulsory Counterclaims
b. Permissive Counterclaims
g. Crossclaim against co-party
Rule 15 Amended and Supplemental Pleadings
a. “Amendments shall be freely given as justice requires.” Pleadings may be
amended once “as a matter of course” before pleading is served or if case
is not on trial calendar then within 20 days after service. Otherwise, by
leave of court or consent of parties.
b. If issues were not raised in pleadings, but are tried by consent of parties,
then they are treated as having been in pleadings.
c. Relation back is permitted by law if before statute of limitations or if the
claim or defense arises out of the same transaction, occurrence or conduct.
d. Supplemental pleadings are permitted to inform the court of what has
happened since the pleadings were filed.

Rule 18 Joinder of claims and remedies

Party may add in an unrelated claim against same party.
If one claim can only go forward after adjudication of another, then the claims can be
joined. (i.e. negligence against A and negligence against A’s employer)

Rule 19 Joinder of persons needed for just adjudication

a. Person shall be joined if 1) without them no relief can be granted 2) person
claims interest and is situated so that i) will impede ability to protect
interest or ii) will leave other persons incurring inconsistent risk.
b. If joinder of party is not possible court decides if action can continue.
c. If person is not joined, and maybe should be, state why they are not

Rule 20 Permissive joinder of parties

 Anyone can join an action claiming relief from same TOC or get a
separate trial to prevent prejudice.

Rule 21 Misjoinder and Non-joinder of parties

 A claim cannot be dismissed if a party improperly joined or failed to
properly join another party. Court can add and drop and sever parties.

Rule 23 Class Actions

 Many parties claims are represented by one party if a) there is definable
class b) representative is a member of class c) many, so joinder
impracticable d) common Q’s of law e) claims/defenses of reps are typical
of class and f) reps do adequately represent and protect interests of class.

Rule 24 Intervention
 Anyone can intervene (become part of suit) if 1) permitted by statute 2)
claim might impinge upon ability to protect ones interest. To intervene,
make a motion under Rule 5.

Rule 25 Substitution of Parties

  If a parties 1) dies 2) becomes incompetent 3) transfers interest 4) is a
public official who dies or separates from office then court will allow a
substitution of proper party.

Rule 26 Discovery
a) Parties are required to initially1 disclose 1)
witnesses 2) tangible things i.e. documents 3) damages 4) insurance
coverage. Parties are required to disclose who might present expert
testimony at trial and provide a written report of said expert. 30 days before
trial parties must disclose 1) trial witnesses 2) deposition testimony 3) trial
exhibits. Parties are required to disclose any supplemental or altered info.
b) “Any matter not privileged, which is relevant to
subject matter,” or may reasonably lead to relevant information. If a party
claims privilege, then they have the burden of demonstrating privilege.
c) If info is annoying, burdensome, embarrassing etc.
then party can request that: 1) info not discoverable 2) special terms2 3)
another method of discovery 4) certain matters not be inquired into 5) limit
persons present during discovery3 6) deposition open only by court order 7)
trade secret revealed in special way 8) that parties simultaneously file sealed
documents.
d) Discovery should wait until after parties have met
pursuant to Rule 26 (f).
e) Parties are under duty to supplement or correct
information in discovery.
f) Parties are required to meet to discuss their case to discuss discovery.
g) Every disclosure (request, response, and objection)
shall be signed by an attorney signifying certification. (3) Court shall
impose appropriate sanctions, monetary or non-monetary, for a violation
of this rule.

Rule 30 Depositions Upon Oral Examination

a) A party may take ten depositions of parties or non-
parties without leave of court. Parties are required to show up, others may be
compelled by Rule 45.
b) Party will give reasonable notice to all parties of a
deposition. It will be recorded by recognized means. Institutions let a
representative be deposed. Telephone is okay for deposition.
c) Objections to questions will be noted, but answer
will be given. Unless:
d) If deposition becomes hostile or is in bad faith, then
deponent may stop deposition and not answer.
e) Deponent has 30 days after completion of record to
change and sign.

1
Initial discovery shall be made within 10 days after parties first meet (see Rule 26 f) following pleading.
2
i.e. Coke recipe only seen by counsel to protect it from becoming widely known. Also 7) trade secret.
3
Coke again. Coke wanted only counsel present because if competition sees recipe, its harmful to Coke.
 f) Officer will certify deposition and party filing
deposition will notify others.
g) If a party fails to appear or fails to obtain a
subpoena to compel outsider to appear at a deposition then that party is
responsible for all fees.

Rule 31 Depositions Upon Written Notice

 A party can write a list of questions and have court reporter read them to
the deponent and record the answer.

Rule 33 Interrogatories to Parties

a) Interrogatories may be served to any party. Up to 25
without court ok.
b) Within 30 days party will respond to all questions
or will respond with reason for objection4 and with non-objectable reply.
c) May be used to discover anything under Rule 26 (b)
(1) and used at trial.
d) Party may give all records to interrogator to find
desired info in records.

Rule 34 Production of Documents and Things and Entry Upon Land for Inspection
 Party can motion to request inspection of individual enumerated
documents or things. 30 days to reply with permission or reasons for
denial. Non-party can be subject to inspection by subpoena under Rule 45.

Rule 35 Physical and Mental Examinations of Persons

 Party can compel physical or mental examination by certified examiner if
there is some question. Motion will include notice, time, place, scope, etc.

Rule 36 Request for Admission

 Party may serve any other party with a binding request for admission.
Policy- stops discovery from having to over prove things.

Rule 37 Failure to Make Disclosure or Cooperate in Discovery: Sanctions

a) A party can move to compel disclosure or
discovery. Evasive or incomplete answers are to be treated as failure to
disclose. Court can award sanctions of cost incurred to bring motion or
grant a protective order pursuant to 26 (c).
b) Failure to comply with an order to compel allows
court to 1) establish facts as true 2) refuse right of party to accept or deny
allegations 3) strike pleadings pertaining to that area 4) find party in
contempt 5) or any combination of these.
c) Failure to disclose evidence makes evidence
inadmissible at trial. Failure to admit evidence may result in reasonable fees
incurred to discover evidence.
4
Party need not answer despite objection like in deposition, but shall answer part of Q not objectionable.
Rule 38 Jury Trial of Right
 Reassures 7th Amendment right to a trial by jury on any triable issue of
fact. A party may motion to demand jury trial or waive jury trial.

Rule 41 Dismissals of Actions

a) An action may be voluntarily dismissed without
prejudice by the plaintiff [by dismissing before answer or by consent of all
parties] or by order of the court.
b) Plaintiff can have an involuntary dismissal with
prejudice for failure to adjudicate in a reasonable time in accordance with
the rules unless the dismissal is for lack of jurisdictions, venue, or violation
of Rule 19.

Rule 42 Consolidation; Separate Trials

a) The court may consolidate unrelated actions against a party by the adverse
party to avoid cost or delay.
b) The court may order separate trials to avoid prejudice or to preserve 7th
Amend./Rule 38 right to a jury trial.

Rule 45 Subpoena
 Parties can invoke subpoenas to compel non-parties to do stuff.

Rule 46 Exceptions Unnecessary

 A party must object to the admittance of evidence, testimony, etc. to
preserve right on appeal, but no formal objection is necessary. Simply
must make objection known to the court.

Rule 50 Judgment as a Matter of Law (JMOL & JNOV), Alternative Motion for New
Trial, Conditional Rulings
 The standard of a JMOL is to view all evidence and credibility in the light
most favorable to the non-moving party. If the evidence viewed in that
light is not sufficient for a reasonable jury to find for the non-moving
party beyond the preponderance of the evidence, then JMOL.
 The standard for JMOL and JNOV are the same, regardless of the fact that
the court is setting aside the jury verdict. This is reflected in the name
renewed motion for a judgment as a matter of law.
 A party moving for JNOV should always alternatively ask for new trial5.

Subsections for Rule 50

5
Policy reason for conditional ruling of new trial: Judge believes JNOV is warranted. New trial is a lesser
standard. So judge at least believes that new trial is warranted. If JNOV is overturned at appeal, then
moving party would be out of luck altogether. So, conditional new trial is awarded so that if JNOV is
overturned, then party at least gets the lesser standard of a new trial to remedy the faulty jury verdict.
 a) [Any time before submission to the jury] If there is no
legally sufficient evidentiary basis for a reasonable jury to find for the
party on that issue then court may grant a JMOL.
b) [Before 10 days after entry of judgment] a party may renew
a motion for judgment as a matter of law and may alternatively grant a
request for a new trial.
c) If JNOV granted, court should alternatively state reasons
for a new trial. Conditional grant of new trial does not affect finality of
judgment.
d) Party losing at trial can move alternatively for JNOV and
new trial.

Rule 51 Instructions to Jury: Objections

 Parties may file written requests for jury instructions. No party may assign
as error in appeal the giving or failure to give an instruction to the jury
unless objection is made.

Rule 54 Judgments: Costs

 Rule 54 (b) allows entry of final judgment one or more claim or party, but
not all. This is final judgment and party can appeal decision immediatly.

Subsections of Rule 54
a) Judgment is any order from which an appeal lies.
b) If there is greater than one claim or party, then the court
can enter final judgment on as to one or more, but less than all of the
claims or parties if there is no reason for delay of the entry of judgment.
c) A judgment in default shall not be treated differently in
respect to relief one way or the other. No more no less granted than is
reasonable.
d) Except as otherwise stated, court may attach attorney’s
fee’s by own volition or upon motion made within 14 days of entry of
judgment. Attorney fees can only be had against U.S. gov’t as specified by
statute.

Rule 55 Default
 A default is the entrance against the party seeking relief of an already
defaulted matter; say for failure to make factual defense or a Rule 41 (b).

Subsections of Rule 55
a) A default judgment is entered for failure to plead or
otherwise defend.
b) The clerk can enter judgment if the amount is set or
calculateable, otherwise the court will have a hearing on amount.
c) Defaults may be set aside before entry by this motion, or if
after entry then set aside judgment pursuant to Rule 60 (b).
 d) Defaults in this Rule apply to plaintiffs, defendants, 3rd
party D’s, cross claimers or counterclaimers.
e) No default judgment can be entered against the U.S.
government unless claimant establishes claim of right or evidence
satisfactory to the court.

Rule 56 Summary Judgment

 Burden is on moving party to demonstrate that there is no factual dispute
regarding matter upon which summary judgment is sought.
 Non-moving party’s burden is a) none if moving party fails to carry
burden b) must give information which, if believed, demonstrates a
genuine issue of fact.
 But, if responding party has burden of production at trial, then they
must produce some evidence.
 Generally, courts will deny hearing motion until after pre-trial discovery.

Subsections of Rule 56
a) A party may move for declaratory judgment any time after 20 days
from commencement of the action generally up until trial.
b) If one party moves for declaratory judgment, then the other party
can move w/ or w/out supporting affidavits for summary judgment.
c) Motion must be made prior to 10 days before hearing on motion.
Summary judgment is interlocutory.
d) If motion adjudicates only part of claim, the court shall state which
issues are interlocutory and which remain in controversy.
e) Affidavits may be put forth to substantiate or defend motion.
f) If affidavits are unavailable, court shall grant continuance or deny
motion.
g) If affidavits are made in bad faith, then party may incur reasonable
fees and any offending party or attorney may be held in contempt.

Rule 58 Entry of Judgment

 Upon: 1) Jury verdict 2) decision by court 3) decision by court granting
other relief 4) special verdict- the court shall enter judgment.
 Every judgment shall be in separate document. Entry is effective when
clerk enters it. Entry shall not be delayed.

Rule 59 New Trial

 No official grounds for new trial in Rules. Statutes state “in the interest of
justice.” Some normal grounds: irregularity in proceedings, excusable lack
of preparations, errors at trial, decision against weight of evidence6.
 Conditional new trials also possible. Additur(not allowed in Fed) and
remittitur are conditional new trials. Conditional on acceptance of
remittitur or there will be a new trial.

6
In conjunction with a JNOV or simply not egregious enough to for a JNOV, but new trial is justified.
 Subsections of Rule 59
a) Grounds according to the rules 1) custom reasons for new
trial injury trials in case law 2) same as 1 for bench trial.
b) Motion for new trial no later than 10 days after entry of
judgment.
c) If motion for new trial is based on affidavits, then they
shall be included in motion and opposing party has 10 days after service to
file opposing affidavits, but the court may extend that period to 20 days.
d) Up to 10 days after judgment, court may grant new trial on
initiative.
e) Motion to alter or amend judgment shall be made in 10
days from filing.

Rule 60 Relief from Judgment or Order

 If final judgment is entered and time to act eclipsed, then only non-appeal
based recourse is motion for relief from judgment.

Subsections of Rule 60
a) Clerical mistakes by court may be rectified on courts
initiative or by motion.
b) Court may grant relief from final judgment within a
reasonable time because of 1) mistake, inadvertence, surprise, or
excusable neglect 2) newly discovered evidence in time frame of 59(b) 3)
fraud or misrepresentation of adverse party 4) if judgment is void 5) if
judgment has been satisfied, released, or prior judgment overturned 6) any
other reason justifying relief.

Rule 61 Harmless Error

a) No appeal for error that is found to be harmless.
 Appellate Rules
App. Rule 3 Appeal as of Right- How Taken
a. File notice of appeal with district clerk. Untimely
appeal does not affect validity of appeal, but is grounds for court to act as
appropriate.
b. If two or more parties are entitled appeal, and
joinder is practicable, then they may be joined or consolidated.
c. (1) Notice of appeal must contain: A) all parties in
appeal B) state judgment C) name court of appeal (4) appeal won’t be
dismissed on form.
d. District clerk serves notice of appeal. Clerks failure
won’t harm appeal.

App. Rule 4 Appeal as of Right-When Taken

a) Time for filing a Notice of Appeal
(1) 30 days from judgment to appeal except
when U.S. or its officer is party then 60 days.
(2) If appeal filed before entry, then treated as
if it were on day of entry.
(3) If one party appeals, then any other party
has 14 days to appeal.
(4) Time to appeal begins to run from
judgment or entry of: i) 50 (b) motion ii) amend findings under 52
(b) iii) attorney’s fees under 54 iv) alter or amend judgment under 59
v) new trial under 59 vi) relief under 60 so long as motion to set
aside is filed no later than 10 days after judgment.
(5) The district court may extend time for
appeal if party shows good cause and moves within 30 days after
time elapses. 30 + 30 Rule. NO extension beyond the 30 +30 or 10
days after date when order for extension is given, whichever is
longer.
(6) Court may reopen time for appeal for a 14
day period if all conditions are satisfied: A) motion is filed within
180 days after judgment or within 7 days after moving party receives
notice of entry, which ever earlier B) court finds moving party
receives was entitled to notice of entry, but did not receive it within
21 days after judgment C) no party would be prejudiced.
b) *Appeal in Criminal Case*
c) *Appeal by an Inmate Confined in an Institution*
 United States Code
28 U.S.C. § 1291 FINAL DECISIONS OF DISTRICT COURTS
 The courts of appeals have jurisdiction of all final decisions except where
review may be had by Supreme Court.

28 U.S.C. § 1331 FEDERAL QUESTION

 “The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”

28 U.S.C. § 1332 DIVERSITY OF CITIZENSHIP; AMOUNT IN CONTROVERSY; COSTS

 Diversity jurisdiction exists if: 1) amount in controversy greater than $75k 2) case
between citizens of different state or foreign country or party is another state or
country.
 If diversity jurisdiction is not met, this is a failure of subject matter jurisdiction.

28 U.S.C. § 1367 SUPPLEMENTAL JURISDICTION

 Common Nucleus of Facts
 Reach of Jurisdiction Limited Only in Diversity Cases
 Courts have disrection to reject claims if 1) novel or complex; 2) controlling
claim is state law; 3) DC has dismissed all claims over which it has jx

28 U.S.C. § 1391 VENUE

 (a) Diversity Cases:
 (b) All other cases
 (c) corporate

28 U.S.C. § 1404 TRANSFER OF VENUE

 See Outline: Only goes from State to Federal

28 U.S.C. § 1441 REMOVAL

 Common Nucleus of Facts
Timing

Pleading
Plaintiff has 120 days to serve notice upon defendant from date of filing complaint or
the action will be dismissed without prejudice. (4 m)

Answer-
If there is no Rule 12 motion, then a defendant who was formally served has 20 days to
answer after service. (12 a 1 A)

If a Rule 12 motion is made, then a hearing on that motion will be had and then D has
10 days after the decision to answer. (12 a 4 A).

If a Rule 12 (e) motion is granted, then D has 10 days to answer new complaint. (12 e)

If waives formal service, then D may answer in 60 days. (12 a 1 B)

If pleadings are amended, then party has 10 days following service of newly amended
pleading to answer. (Rule 15 a)

Appeal
If judgment is entered, then party has 30 days to appeal. (App. 4 a 1)

If party fails to appeal in the required 30 days, then can move for extension within 30
days from end of the original required 30 days. (App. 4 a 5)

If party is granted extension, then party has 10 days to file appeal. (4 a 5)