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21 Cards in this Set
- Front
- Back
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Rule 1
Scope and Purpose of Rules |
These rules govern the procedure in the US district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81. That shall be construed and administered to secure the JUST, SPEEDY, and INEXPENSIVE determination of every action.
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Rule 2
One Form of Action |
One form of action to be known as a "civil action"
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Rule 3
Commencement of Action |
A civil action is commenced by filing a complaint with the court.
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Rule 7(a)
Pleadings |
-There shall be a complaint and an answer
-a reply to the counterclaim denominated as such -an answer to a cross-claim, if the answer contains a cross-claim -a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14 -a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer. |
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Rule 7(b)
Motions |
-An application to the court for an order shall be made in a MOTION in writing and stated with particularity the grounds therefor and shall set forth the order sought. All motions must be signed in accordance with Rule 11.
-Demurrers, Please, and exceptions for insufficiency of a pleading shall not be used. |
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Rule 8(a)
General Rules of Pleading |
-A pleading must contain:
1) A short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction 2) A short and plain statement of the claim shawing that the pleader is entired to relief 3) A demand for judgment for the relief the pleader seeks. |
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Rule 8(b)
Forms of Denial |
1) General Denial- Deny Everything
2) Specific Denial- Respond to each claim 3)Qualified Denial- Affirm in part and deny in part. 4) Denial made without knowledge or information sufficient to form a belief. 5) Denial based upon a good faith knowledge or belief that claim is false. |
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Rule 8(c)
Affirmative Defenses |
-There are 19 affirmative defenses that must pleaded in the answer in order for them to raised in the trial.
-Assumption of the risk, contributory negligence, duress, estoppel, fraud, res judicata, statute of frauds, statute of limitations, waiver |
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Rule 11
Signing the pleading/Sanctions |
- Every pleading, motion, paper must be signed by at least one attorney of record. A unsigned paper shall be stricken unless promptly corrected.
- This signature states basically that the taht to the best of the person's knowledge this isn't frivolous and has evidence to back it up. STOP AND THINK. - If there has been a violation, the court may impose sanctions upon the attorney. There is a 'safe harbor' provision by allowing the person to withdraw the motion or correct it within 21 days after service of the sanction. |
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Rule 12(b)
Defenses |
- Unless otherwise stated, defendant must present an answer with 20 days after being summonsed.
- 12(b)Defense that may be made by motion 1) Lack of subject matter jurisdiction 2) Lack of personal jurisdiction 3)Improper venue 4) Insufficiency of Process 5) Insufficience of Service of Process 6) Failure to state a claim upon which relief can be granted 7) Failure to join a party under rule 19. |
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Rule 12(c)/12(e)/12(f)/12(g)/12(h)
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12(c)- Motion for a judgment on the pleadings; Must be made so as to not delay the trial, and either party may move.
12(e)- Motion for a More Definite Statement: Courts don't like this because it's shitty. 12(f)- The court may strike from any pleading any insufficient 12(g)- THE MOTIONS MUST BE CONSOLIDATED INTO ONE MOTION. If a motion is omitted it can not be later raised unless it falls under (h)(2) 12(h)- Defense of lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service are waived if omitted from the original motion. The defenses of failure to join an indispensable party, failure to state a legal defense to a claim may be made in any pleading, by motion for judgment on the pleadings, or at the trial. |
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Rule 13
Counterclaim and Cross-Claim |
- Compulsory Counterclaims: Pleading shall state any claim which the pleader has against any opposing party if it ARISES out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require the presence of third parties of whom the court doesn't have jurisdiction over.
Permissive Counterclaims: Pleading may state claims that DO NOT ARISE out of the same transaction or occurrence. -Counterclaim may not diminish or defeat the recovery sought by other party -AMENDMENTS SHOULD BE GENEROUSLY GRANTED. If party by oversight doesn't include a counterclaim, the courts may allow it. |
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Rule 14
Third-Party Practice |
- Can motion to bring in third parties, but court reserves the power to strike the motion
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Rule 15
Amended and Supplemental Pleadings |
A party may amend pleading once as a matter of course prior to response. Otherwise, amendments may be made only by leave of court. AMENDMENTS SHOULD BE GIVEN FREELY!
- If Issues not raised in the pleadings are treated during the course of the trial as though they had been raised, that shall be treated as though they were in the pleadings. If the issue is raised that it's not in the pleadings courts may allow an amendment. |
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Rule 16
Pretrial Conferences |
- Court may direct a conference in order to:
1) Expedite disposition of the action 2) Est. early and continuing control of the case to make sure it is trial worthy. 3) Discourage wasteful pretrial activites 4)Improve quality of preparation/sharpen the issues. 5) Facilitate settlement. |
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Rule 26
Depositions and Discovery What the Parties must disclose (WIDD) |
- Parties must without a discovery request disclose (WIDD)
1) Witness list 2) Documents that support claim unless solely for impeachment 3) Damages 4) Insurance - Courts may limit discovery if: 1) What is sought is diplicative or obtainable from another source 2) The party had opportunity by discovery to find the information sought 3) The burden outweighs the benefit of the information. |
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Rule 26
Depositions and Discovery Ordinary Work Product/Opinion Work Product |
-Ordinary Work Product: Party may obtain discovery of documents and tangible things otherwise discoverable under this rule and prepared in anticipation of litigation or for tiral by or for another party only upon a showeing that the party seeking discovery has SUBSTANTIAL NEED of teh materials in the preparation of the party's case and that the party is unable w/o undue hardship to obtain the equibalent of the materials by other means
-Opinion Work Product: The court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other prepresentative of a party concerning the litigation. |
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Rule 26
Depositions and Discovery Experts |
- Types of Experts:
1) Testifying: May be deposed if witness may testify at trial 2) Consulted: May be deposed even though he is not going to testify at trial/ Must show this information would place an undue burden to gain otherwise. 3) Informally Consulted: Can't be deposed. 4) Viewer Expert/Witness: Treated as any other witness, not an expert. |
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Rule 26
Depositions and Discovery Orders Requested During Discovery |
-Protective Order: Granted when there is an abuse of discovery
- Motion To Compel: Granted when a party resists discovery. |
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Rule 26
Depositions and Discovery Devices of Discovery (DIPPER) |
- Depositions
- Interrogatories - Production of documents - Permission to enter on land - Examinations: Physical or Mental - Request for Admission of truth of any matters within Rule 26 |
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Purposes of Discovery
PIESS |
-Preservation of Testimony
- Issue Formation - Evidence Uncovering - Surprises during trial are eliminated - Strategy Formulation |
