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201 Cards in this Set

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When can a district court make and amend its rules?
Each district court, acting by a majority of district judges, may, after giving appropriate public notice and an opportunity for comment, make and amend rules governing its practice.
A local rule shall be consistent with but not duplicative of?
Acts of Congress and rules adopted under 28 USC 2072 and 2075.
A local rule shall conform to?
Any Judicial Conference of the United States
When does a local rule take effect?
A local rule takes effect on the date specified by the district court and remains in effect unless amended by the court or abrogated by the judicial council of the circuit.
How shall copies of rules and amendments be available?
Upon their promulgation, copies and amendments shall be furnished to the judicial council and the Administrative Office of the United States Courts and be made available to the public.
A local rule imposing a requirement of form shall not what?
Shall not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply with the requirement
What procedures rule when there is no controlling law?
A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 USC 2072/2075 and local rules. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local district rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.
Preliminary injunctions require what kind of notice?
No preliminary injunction shall be issued without notice to the adverse party.
Consolidation of Hearing with Trial on Merits
Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the action on the merits to be advanced and consolidated with the hearing of the application.
When consolidation is not ordered, what happens to the evidence received?
Any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes a part of the record on the trial and need not be repeated upon the trial.
65a2 of injunction is construed and applied to save what?
To save to the parties any rights they may have to trial by jury.
When can a temporary restraining order by granted?
A temporary retraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) if it clearly appears by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before an adverse party can be heard and (2) the applicant's attorney certifies to the court in writing the efforts, if any, made to give the notice and reasons supporitng the claim that notice should not be required.
Every TRO issued without notice shall be...
endorsed with the date and hour of issuance, filed in clerk's office and entered of record, define the injury and state why it is irreparable and why the order was granted without notice, and shall expire within 10 days, as the court fixes, unless within the time so fized the order, for good cause shown, is extended for a longer period.
What is required for an extension of a TRO?
The reasons for the extenstion shall be entered of record.
When should a motion for a preliminary injunction be set down in TRO's without notice?
The motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the TRO shall proceed with the applicaiton for a preliminary injunction and, if the party does not do so, the court shall dissolve the TRO.
In TRO cases, when can the adverse party appear and move its dissoltion or modification?
On 2 days' notice to the party who obtained the TRO without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to ehar and determine such motion as expeditiously as the ends of justice require.
What is the requirement of security regarding preliminary injunctions?
No restraining order or preliminary injunction shall issue except the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the US or of an officer or agnecy thereof.
What is the form and scope of injunction or restraining orders?
Every order granting an injunction and every restrining order shall set forth the reasons, specific in terms, describe in reasonable detail and not by referece to the complaint or other document, the act or acts sought to be restrained; is binding only upon the parties to the action, their officers, agents, servants, employees and attorneys, and upon those in active conceret or participation with them who receive actual notice of the order by personal service or otherwise.
Employer and Employee; Interpleader; Constitutional Cases
These rules do not modify any stattue of the US relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee; or the provisions of 28 USC 2361, relating to preliminary injunctions in actions of interpleader or in the nature of interpleader; or Title 28 relating to actions required by Act of Congress to be heard and determined by a district court of three judges
Does the injunctions rule (FRCP 65) apply to copyright impoundment?
This rule applies to copyright impoundment proceedings.
What is harmless error?
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the corut or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, ,unless refusal to take such action appears to the court inconsistent with substantial justice.
In regard to error the court disregards...?
The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
When can clerical mistakes be corrected?
1. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time by its own initiative or on the motion of any party and after such notice, if any, as the court orders. Additionally, during appeal such mistakes may be corrected before appeal is docketed in appellate court and thereafter while pending
When can a court relieve a party or a party's legal re from a final judgment, order, or proceeding?
On motion and upon such terms as are just when:
(1) mistake, inadvertence, surprise, or excusable neglect.
(2) newly discovered evidence which by due diligence could have have been discovered in time for a motion under 59(b)
(3) fraud, misrepresentation, or other misconduct of adverse party (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or vacated
(6) any other reason justifying reelief.
When must a motion of relief from judgment or order be made?
The mostion shall be made within a reasonable time and for reasons (1), (2), and (3) not more than one year after the judgment order or proceeding was entered or taken. (FRCP 60b)
Does this limit a court from entertaing a motion form a defendant not actually presonally notified to entertain an action?
This rule does not limit the power of a corut to entertain an independent action to relieve a party from a judgment, order or proceeding or to grant relief to a defendant not actually personally notified or to set aside a judgment for fraud upon the court.
What does Rule 60 abolish?
Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review
What are the grounds for a new trial?
A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials haver heretofore been granted in actions at law in the courts of the US; and (2) in an action tried wihtout a jury, for any of the reasons for which rehearing have heretofore been granted in suits in equity in the coruts of the US. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions and direct the entry of a new judgment.
When must a motion for a new trial be made?
Any motion for a new trial shall be filed no later than 10 days after entry of the judgment.
When must affidavits be served when there is a motion for new trial?
When a motion for new trial is based on affidavits, they shall be filed with the motion. The opposing party has 10 days after sevice to file opposing affidavits, but that period may be extended for up to 20 days, either by the court for good cause or by the parties' written stipulation. The court may permit reply affidavits.
When can the court enter a judgment on its own initiative?
No later than 10 days after entry of judgment the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion.
When is notice required for the court to grant a new trial based on a reason not stated?
After giving the parties notice and an opportunity to be heard, the corut may grant a timely motion for a new trial for a reaon not stated in the motion.
When shall the court specify the grounds of its order for a new trial?
The court is required to specify the grounds of granting a new trial when granted on its own initiative or for reasons not stated in a motion
What is the procedure for obtaining a declaratory judgment?
The procedure for obtaining a declaratory jdugment shall be in accordance with these rules and the right to trial by jury may be demanded under the circumstances and in the manner provided in rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy heraing of an action for a declaratory judgment and may advance it on the calendar.
What is the scope and purpose of FRCP
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. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.
What is the one form of action?
There shall be one form of action to be known as Civil action.
How is an action commenced?
A civil action is commenced by filing a complaint with the court.
When can a party seeking to recover upon a claim, counterclaim, or cross claim or to obtain a declaratory judgmetn may move for summary judgment?
A party seeking to recover upon a claim, counterclaim, or cross claim, or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.
When can a party against whom a claim, counterclaim, or corss claim is asserted or a declaratory judgment is sought move for summary judgment.
A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory judgment is sought may at any time move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.
When shall the motion be served in a summary judgment situation?
The motion shall be served at least 10 days before the time fized for the hearing.
When can opposing affidavits be served in summary judgment cases?
The adverse party prior to the day of hearing may serve opposing affidavits.
In summary judgment, when can the judgment be rendered?
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone althoug there is a genuine issue as to the amount of damages.
What shall the court do if on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary? (RULE 56(d))
the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall there upon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trail shall be conducted accordingly.
What is the form of affidavits for summary judgments?
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to tesitfy to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidiavtis to be supplemented or opposed by depositions, answers to interrogatories or further affidavits.
Is a defense required in summary judgment?
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary jugment, if appropriate, shall be entered against the adverse party.
What occurs when affidavits are unavailable in summary judgment?
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, THE COURT MAY REFUSE THE APPLICATION FOR JUDGMENT OR MAY ORDER A CONTINUANCE TO PERMIT AFFIDAVITS TO BE OBTAINED OR DEPOSITIONS TO BE TAKEN OR DISCOVERY TO BE HAD OR MAY MAKE SUCH OTHER ORDER AS IS JUST.
When can a clerk enter default judgment?
When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidiavit or otherwise, the clerk shall enter the party's default
When can judgment by default by entered by the clerk?
When the plaintiff's claim agianst a defendnat is for a sum certain or for a sum which upon request of the plaintiff and upon affidivit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.
When can judgment by default by entered by the court?
In all other cases the party entitled to a judgment by default shall apply to the court therefore; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein.
When can a default be set aside?
For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered may likewaise set it aside in accordance with Rule 60(b)
If the party against whom judgment by default is sought has appeared, what shall the court do?
If the party against whom judgment by default is sought has appeared in the action, the party * or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such aplication.
What can the court do to enter judgment?
If, order to enagble the court to enter judgmetn or to carry into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the U.S.
Who does the judgment by default apply to?
The provisions of default apply whether the party entitled to the judgment by default is a plaintiff, a third party plaintiff, or a party who has pleaded a cross claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c).
Can a judgment by default be entered against the US?
No - No judgment by default shall be entered against the US or an officer or agency thereof unlelss the claimant establishes a claim or right to relief by evidnece satisfactory to the court.
Who examines the jurors?
The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper.
How does the court determine how many peremptory challenges to grant?
The court shall allow the number of peremptory challenges provided by 28 USC 1870.
When are jurors excused?
The court may for good cause excuse a juror from service during trial or deliberation.
Number of jurors?
The court shall seat a jury of not fewer than six and not more than twelve.
Requirement of jurors service?
All jurors shall participate in the verdict unless excused from service by the court pursuant to 47(c).
Requirement for verdict?
Unless the parties otherwise stipulate, (1) the verdict shall be unanimous and (2) no verdict shall be taken from a jury reduced in size to fewer than six members.
Can the court request special verdicts?
The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings thereon as it deems most appropriate.
If the court asks for special directions, what must it provide?
The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
What does the court provide to the jury for general verdicts?
The court may submit to the jury, togethere with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a genreal verdict.
If the answers to the questions and general verdict do not match, what does the court do?
When the general verdict and answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the corut may return the jury for further considerations of its answers and verdict or may order a new trial.
What does the court do when the answers to interrogatories for a special verdict are inconsistent?
When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.
When can the court grant a motion for judgment?
If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgmetn as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
When can a motion for judgment as a matter of law be made?
Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.
When can one renew its request for judgment as a matter of law?
If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment - and may alternatively request a new trial or join a motion for a new trial under Rule 59.
What can the court do when ruling on a renewed motion?
The court may:
(1) if a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of jdugment as a matter of law; or
(2) if no verdict was returned;
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
What does the court do if the renewed motion for judgment as a matter of law is granted?
If the renewed motion for judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial.
What does the court do if the motion for a new trial is thus conditionally granted?
If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the cmotion for a new trial has been conditionally granted and the judgmetn is reversed on appeal, the new trial shall proceed unlesss the appellate court has otherwise ordered.
What can the appellee do if the case on motion for a new trial has been conditionally denied?
In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
When must a motion for a new trial be filed?
Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered shall be filed no later than 10 days after entry of the judgment.
What happens if the motion for judgment as a matter of law is denied?
If the motion for judgment as a matter of law is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.
When is a case designated to be a trial by jury?
When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall beby jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States.
When shall issues be tried by the court?
Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.
When can the court order a trial by a jury?
In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or, except in actions against the United States when a statute of the US provides for trial without a jury, the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
Is the right to a jury trial preserved?
Yes, The right by jury as declared by the 7th Amendment to the Constitution or as given by a statute of the US shall be preserved to the parties inviolate.
Can a party demand a trial by jury ?
Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue, and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party.
Can a party demand what issues they which to have tried?
In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be demeed to have demanded trial by jury for all the issues so triable.
What happens if the party has demanded trial by jury for only some of the issues?
IF the party has demanded trial by jury for only some of the issues, any other party within 10 days after serivce of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.
What constitutes a waiver of a right to a jury trial?
The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury.
Can a demand for trial by jury be withdrawn?
A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties
Does rule 38 regarding a jury trial of right pertain to admiralty or maritime claims within the meaning of rule 9(h)?
These rules shall not be construed to create a right to trial by jury of the issues in an admiralty or maritime claim iwthin the meaning of Rule 9(h).
What must the party without awaiting a discovery request, provide to other parties?
(A) the name and if known the adress and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifiying the subjects of the information; (B) a copy or a description by cateory and location of all documents, data compilations and tangible things in control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment; (C) A computation of any category of damages claimed by the disclosing party, making available for inspection and copying under Rule 34, the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and (d) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.
What categories of proceedings are exempt from initial disclosure under Rule 26a1?
1. an action for review on an administrative record
2. A petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence
3. AN action brought without counsel by a person in custody of the US, a state, or a state subdivision.
4. An action by the United States to recover benefit payments.
5. An action by the United States to collect on a student loan guaranteed by the US.
6. An action by the US to collect on a student loan guaranteed by the US.
7. A proceeding ancillary to proceedings in other courts; and
8. An action to enforce an arbitration award.
When must those disclosures excluded from initial disclosure be made?
These disclosures must be made at or within 14 days after the Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in the circumstances of the action and states the objection in the Ruls 26(f) discovery plan. In ruling on the objections in the Rule 26(f) discovery plan. In ruling on the objection, the court must determine what disclosures - if any - are to be made, and set the time for disclosure.
When must a party joined after the Rule 26(f) conference make these disclosures?
Any party first served or otherwise joined after the Rule 26(f) conference must make these disclosures within 30 days after being served or joined unless a different time is set by stipulation or court order. A party must make its initial disclosures based on the ifnormation then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
Is a party required to disclose any expert witnesses?
Yes.
What must accompany the disclosure of the expert witness?
Except as otherwise stipulated or directed by the court, the disclosure must be accompanied by a written report prepared and signed by the witness.
What shall the expert witnesses written report contain?
A complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information underlying opinions; any exhibits used as a summary or for support; qualifications, including publications within last 10 years; compensation to be paid; listing of any other cases in which has testified as an expert at trial or by deposition in past 4 years.
When shall expert witness disclosures be made?
At that directed by the court; without directions or stipulation, shall be at least 90 days before the trial date or the date the case is to be ready for trial or, or if intended solely to contradict or rebut evidence on the same subject matter identified by another party under 2(B), within 30 days after the disclosure made by the other party.
What other pretrial disclosures must be made regarding intended evidence except what will be used solely for impeachment?
the name, address, telephone number of each witness identifying those planned to present and those that may be called if the need arises; designation of those witnesses whose testimony is expected to be presented by a deposition and if not taken stenographically, a transcript of the pertinent poritons of the deposition testimony; and appropriate identification of each document or other exhibit, including summaries of other evience separately identifying those which the party expects to offer and those which the party may offer if the need arises.
When must other evidentiary disclosures be made regarding witness identification and depositions?
Unless otherwise directed by the court, these disclosures must be made at least 30 days before trial. Within 14 days thereafter, a party may serve and promptly file a list disclosing any objections under Rule 32(a) and any admissibility objections with the grounds Other objections except under Rules 402 and 403 are waived.
How are disclosures made?
In writing, signed, and served.
How can parties discover?
depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property under Rule 34 or 45a1c, for inspection and other purposes; physical and mental examinations; and requests for admission.
What are the general scope of discovery rules?
Parties may obtain discovery regarding any matter not privileged that is relevant to the claim or defense of any party including the existence, description, nature, custody, condtion and location of any tangible things and the identity and location of person s having knowledge. For good cause, the court may order discovery of any matter relevant - relevant information need not be admissible at the trial if the discovery appears reasonably calculated to elad tot he discovery of admissible evidence.
What are the limitations of discovery?
By order or local rules, the court may alter the limits. The frequency or extent of use of the discovery methods otherwise permitted under these rules and by local rules shall be limited by the court if it determines that: the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the purposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The corut may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).
What must the summons include?
Summons must be signed by clerk, bear seal of court, id the court and parties, directed to def and state the name and adress of plaintiff's attorney or if unrepresented, the plaintiff; must state time within which def must appear and defend and notify that failure to do so will result in default judgment. Court may allow summons to be amended.
How is the summons issued?
Upon filing, plaintiff can present summons to the clerk to sign and seal, which if proper will be done, then issue it to the plaintiff for service on def. A summons or copy if addressed to multiple def. shall be issued for each def. to be served.
How is the complaint served?
Summons plus complaint, Plaintiff is responsible within time allowed and must furnish person effective service with the necessary documents. Service may be effected by any person who is not a party and who is at least 18. At request of the plaintiff, court may direct that service be effected by a US marshal, deputy US marshal, or other person or officer specially appointed by the court for that purpose. Such an appointment must be made when the plaintiff is authorized to proceed in forma pauperis.
Can service be waived?
Yes and a def who waives service does not waive objections to the venue or jurisdiction of the court.
Is there a duty to save costs of service?
An individual, corporation or association subject to service undder e,f, or h and recives notice of an action has a duty to avoid unnecessary costs of seving the summons. To avoid costs, the plaintiff may notify such a defendnat of the commencement of the action and request def waive service.
What must be included in the notice and reques to save costs of service?
The notice and request must be in writing and addressed to defendant, or an officer or managing agent of def. ; be dispatched through first class mail or other reliable means; accompanied by copy of complaint and identify court in which filed; inform defendant of consequences of compliance and of a failure to comply with the request; shall set forth the date on which the request is sent; shall allow the defendant reasonable time to return waiver, can be 30 days from date on which request is sent, or 60 days from date if the def is addressed outside any US judicial district and shall provide def with an extra copy of notice and request as well as prepaid means of compliance in writing.
What happens if a defendant within the US fails to comply to request for waiver?
The court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.
When must a defendant serve an answer if he returns a waiver before being served with process?
The defendant is not required to serve an answer to the complaint until 60 days after the date on which the request for waiver of service was sent, or 90 days after that date if outside US.
When plaintiff files a waiver of serves court, when does the action proceed?
The action shall proceed as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.
What are the costs to the defendant for failure to comply with a request to waive service of a summons
Includes the costs subsequently incurred in effecting service under (e), (f), (h), together with the costs, including a reasonable attorney's fee, or any motion required to collect the costs of service.
How are those within US served?
Service upon individual other than an infant or an incompetent person may be effected pursuant to the law of the state or in which service is effected for the service of a summons upon the def or by delivering a copy of the summons and complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
How are those outside of the US served?
Service can be effected by any internationally agreed means reasonably calculated to give notice such as those means authroized by Hague Convention or if there is no internationally agreed means of service or allows other manners reasonably calculted: in any manner prescribed by the law of the foreign country or as directed by the foreign authority in response to a letter rogatory or letter of request; or unless prohibite by delivery to the individual personally or any form of mail requiring a signed receipt to be addressed and dispatched by the clerk of the court to the party to be served or by any other means not prohibited by international agreement as may be directed by the court.
How are infants and incompetent persons served?
By the law of the state in which the service is made

Sercie upon an infant or an incompetent person in a place not within any judicial district of US shall be effected in the manner prescribed.
How are corporations or associations served?
Service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under common name shall be effected, in a judicial district of US pursuant to law in that state or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant, or in a place not within US in manner prescribed by (foreign rules) except personal delivery
How is the US, its agencies, corporations officers or employees served?
By delivering a copy to US attorney for the district or to an assistant US attorny or clerical employee designated by US attorney in a writing filed with clerk or by sending copy by registered or certified mail addressed to the civil process clerk at the office of the US attorney and by also sending a copy ot fht summons and complaint by registered or certifed mail to the Attorney General at DC, and in any action attacking the validity of an order of an officer or agenty not made a party by also sending a copy of the summons and complaint by registered or certified mail to the officer or agency
What must be done if serving an agency or corporation fo the US or an officer or employee of the US sued only in an official capacity?
Service by serving US and by also sending a copy of the summons and complint by regesiterd or certified mail to the officer, employee, agency or corporation
How is one served when an officer or employee of the US and sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the US?
By service under rule 4(i)(1) and by serving the officer or employee in the manner for personal service.
What is considered the reasonable time to service procuess for the purpose of curing the failure to serve for the US, its agencies, corporations, officers or employees?
All persons requires to be served, in 4(i)(2)(A) action, if the plaintiff has served either the US attorney or the Attorney General of the US, or the US in an action governed by 4(i)(2)(B), if the plaintiff has served an officer or employee of US sued in an individual capacity.
Who are foreign, state, or local governments served?
Pursuant to 28 USC 1608 for foreign state or a political subdivision, agency or instrumentality; service upon a state, municipal corp, or other governmental organization by delivering a copy of summons and complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.
What are the territorial limits of effective service?
Service of a summons or filing a waiver of service is effective to establish jurisdiction over a def, who could be subjected to jurisdiciton of a court of general jurisdiction in the state in which the district court is located, or who is a party joined under FRCP 14 or 19 and served at a place within a judicial district of US and not more than 100 miles from the place from which summons issues or who is subject to the federal interpleader jurisdiciton under 1335 or when authorized by a statute of US; If exercise of jurisdiction is consistent with laws of US, serving a summons or filing a waiver is effective with respect to claims arising under federal law to establish personal jurisdiciton over preson of any defendant who is not subject to the jurisdiciton of the coruts of gen jurisdiciton of any state
What are the time limits for service?
If service is not made upon a defendant within 120 days after the filing, the court, upon motion or on its own initiative after notice to plaintiff, shall dismiss action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cuase for the failure, the court shall extend the time for service for an appropriate period. This does not apply to service in a foreign country
How notice of seizure of property completed?
Court may assert jurisdiction over property. Notice to colaimants of the proeprty shall be sent in manner provided by statute or by service of a summons under this rule. Upon a showing that personal jurisdiction over a defendant cannot in the district where action brough be obtained with reasonable efforst by service of summons in any manner authorized, the court may assert jurisdiction over the defendant's assets found iwthin the district by seizing the assets under the circumstances and in the manner provided by the law of the state in which the district court is located.
What proof of service is required?
If service is not waive, the perosn effecting service shall make proof to the court. If service is made by a person other than US marshal or deputy of US marshal, perosn shall make affadivit. Proof of service in a place not iwthin any judicial distrist of US shall, if effected under 4(f)(1), be pursuant to the applicable treaty or convention, and shall if effected under (2)or (3), include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the corut. Failure to make proof does not affect validity of the service. The court may allow proof of service to be amended.
When is service required?
Every order required by its terms to be served, every pleading subsequent to original unless court orders otherwise because of number of defendant, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal and similar paper shall be served upon each party. No serve need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served.
When is service required in an action begun by seizure of property, in which no person need be or is named as defendant
Any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the perosn having custody or possession of the property at the time of its seizure.
Making Service?
Service under 5a and 77d on a party represented by an attorney is made on the attorney unless the corut orders service on the party. Service under 5a is made by delivering a copy to the perosn served by handing it to the perosn or leaving it at the person's office with a clerk or other person in charge, or if no one is in charge elaving it in a conspicuous place in the office; or if the perosn has no office or the office is close, leaving it at the perosn's dwelling house or usual place of abode with someone of suitable age and discretion residing there. or Mailing a copy to the last known address of the person served which is complete on mailing; if the person served has no known address, leaving a copy with the clerk of the court; or Delivering a copy by any other means including electronic means consented to in writing by the perosn served. Serivce by electronic means is complete on transmission; service by other consented means is complete when the paerson making serivce delivers the copy. Service by electronic means is not effective if the party making service learns that attempted service failed.
How is service complete with numerous defendants?
The court upon motion or of its own, may order that service of the pleadings of the def and replies thereto need not be made as between the def and that any cross claim, coutnerclaim, or matter constituting avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the palitniff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parites in such manner and form as the court directs.
What must be filed?
All papers after complaint required to be served together with a certificate of service must be filed with court within a reasonable time after service, but disclosures under 26a1 or 2 and the folowing discovery requests and responses must NOT be filed UNTIL they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or to permit entry upon land and requests for admission
How is filing with the court made
Shall be made by filing with clerk of court except that the judgment may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the officer of the clerk. A court may by local rule permit papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference estbalishes. A paper filed by electronic means in compliance with a local rule constitutes means in compliance with a local rule consitutes a written paper. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.
How is time computes ?
The day of the act, event or default from which the designated period of time begins to run shall not be included. the last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, or, when the act to be done is the filing of a paper in court , a day on which weather or other conditions have made the office of the clerek of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. If the time prescribed is less than 11 days, the intermediate Saturdays, Sundays, or Holidays shall be excluded.
What constitutes a Legal Holiday?
New Year's; Birthday of MLK, JR., Washington, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, Chrismas Day, and any other day appointed as aholiday by the President or the Congress of the US or by the state in which the district is held.
Can the time period be enlarged?
Yes, at any time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period origianlly prescribed or as extended by a previous order, or upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend time for taking any action under rules 50(b), and 50c2, 52b, d, and e and 60b excpet to the extent and under the conditions stated in them.
Time for motins and affidavits?
A written motion other than those wheich may be heard ex parte and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing unless a different period is fixed by these ruels or by order of the court. Such an order may for cause shown be made on ex parte applicaiton. When a mtion is supported by affidavit, the affidavit shall be served with the motion; and except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.
Is additional time added to service under 5b2B, C, D?
3 days are added after the prescribed period would otherwise expire
What pleadings are required?
There shall be a complaint and an answer; a prely to a counterclaim denominated as such; an answer to a cross claim; if the answer contains a cross claim; a thrid party complaint; if a person who was not an original party is summoned under the provisions of Rule 14; and 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.
What is the form of motions?
An application to the corut for an order shall be by motion which, unless made during a hearing or trial, shall be in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought. Requirment of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. The rules applicable to captions and other matters of form of pleading apply to all motions and other papers provided. All motions shall be signed in accordance with rule 11.
Can demurrers, pleas and exceptions for insufficiency of a pleading be used?
NO.
A pleading which sets forth a claim for releif, whether an orginal claim, counter claim, cross claim, or third party claim shall contain?
A short and plain statemetn of the grounds ipon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiciton to support it, a short and plain statement of the claim showing that the leader is entitled ot relief, and a demand for judgment for the releif the pleader seeks. Relief in the alternative or of several different types may be demanded.
What constitutes a Legal Holiday?
New Year's; Birthday of MLK, JR., Washington, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, Chrismas Day, and any other day appointed as aholiday by the President or the Congress of the US or by the state in which the district is held.
Can the time period be enlarged?
Yes, at any time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period origianlly prescribed or as extended by a previous order, or upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend time for taking any action under rules 50(b), and 50c2, 52b, d, and e and 60b excpet to the extent and under the conditions stated in them.
Time for motins and affidavits?
A written motion other than those wheich may be heard ex parte and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing unless a different period is fixed by these ruels or by order of the court. Such an order may for cause shown be made on ex parte applicaiton. When a mtion is supported by affidavit, the affidavit shall be served with the motion; and except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.
Is additional time added to service under 5b2B, C, D?
3 days are added after the prescribed period would otherwise expire
What pleadings are required?
There shall be a complaint and an answer; a prely to a counterclaim denominated as such; an answer to a cross claim; if the answer contains a cross claim; a thrid party complaint; if a person who was not an original party is summoned under the provisions of Rule 14; and 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.
What is the form of motions?
An application to the corut for an order shall be by motion which, unless made during a hearing or trial, shall be in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought. Requirment of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. The rules applicable to captions and other matters of form of pleading apply to all motions and other papers provided. All motions shall be signed in accordance with rule 11.
Can demurrers, pleas and exceptions for insufficiency of a pleading be used?
NO.
A pleading which sets forth a claim for releif, whether an orginal claim, counter claim, cross claim, or third party claim shall contain?
A short and plain statemetn of the grounds ipon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiciton to support it, a short and plain statement of the claim showing that the leader is entitled ot relief, and a demand for judgment for the releif the pleader seeks. Relief in the alternative or of several different types may be demanded.
What must be done if serving an agency or corporation fo the US or an officer or employee of the US sued only in an official capacity?
Service by serving US and by also sending a copy of the summons and complint by regesiterd or certified mail to the officer, employee, agency or corporation
How is one served when an officer or employee of the US and sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the US?
By service under rule 4(i)(1) and by serving the officer or employee in the manner for personal service.
What is considered the reasonable time to service procuess for the purpose of curing the failure to serve for the US, its agencies, corporations, officers or employees?
All persons requires to be served, in 4(i)(2)(A) action, if the plaintiff has served either the US attorney or the Attorney General of the US, or the US in an action governed by 4(i)(2)(B), if the plaintiff has served an officer or employee of US sued in an individual capacity.
Who are foreign, state, or local governments served?
Pursuant to 28 USC 1608 for foreign state or a political subdivision, agency or instrumentality; service upon a state, municipal corp, or other governmental organization by delivering a copy of summons and complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.
What are the territorial limits of effective service?
Service of a summons or filing a waiver of service is effective to establish jurisdiction over a def, who could be subjected to jurisdiciton of a court of general jurisdiction in the state in which the district court is located, or who is a party joined under FRCP 14 or 19 and served at a place within a judicial district of US and not more than 100 miles from the place from which summons issues or who is subject to the federal interpleader jurisdiciton under 1335 or when authorized by a statute of US; If exercise of jurisdiction is consistent with laws of US, serving a summons or filing a waiver is effective with respect to claims arising under federal law to establish personal jurisdiciton over preson of any defendant who is not subject to the jurisdiciton of the coruts of gen jurisdiciton of any state
What are the time limits for service?
If service is not made upon a defendant within 120 days after the filing, the court, upon motion or on its own initiative after notice to plaintiff, shall dismiss action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cuase for the failure, the court shall extend the time for service for an appropriate period. This does not apply to service in a foreign country
How notice of seizure of property completed?
Court may assert jurisdiction over property. Notice to colaimants of the proeprty shall be sent in manner provided by statute or by service of a summons under this rule. Upon a showing that personal jurisdiction over a defendant cannot in the district where action brough be obtained with reasonable efforst by service of summons in any manner authorized, the court may assert jurisdiction over the defendant's assets found iwthin the district by seizing the assets under the circumstances and in the manner provided by the law of the state in which the district court is located.
What proof of service is required?
If service is not waive, the perosn effecting service shall make proof to the court. If service is made by a person other than US marshal or deputy of US marshal, perosn shall make affadivit. Proof of service in a place not iwthin any judicial distrist of US shall, if effected under 4(f)(1), be pursuant to the applicable treaty or convention, and shall if effected under (2)or (3), include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the corut. Failure to make proof does not affect validity of the service. The court may allow proof of service to be amended.
When is service required?
Every order required by its terms to be served, every pleading subsequent to original unless court orders otherwise because of number of defendant, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal and similar paper shall be served upon each party. No serve need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served.
When is service required in an action begun by seizure of property, in which no person need be or is named as defendant
Any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the perosn having custody or possession of the property at the time of its seizure.
Making Service?
Service under 5a and 77d on a party represented by an attorney is made on the attorney unless the corut orders service on the party. Service under 5a is made by delivering a copy to the perosn served by handing it to the perosn or leaving it at the person's office with a clerk or other person in charge, or if no one is in charge elaving it in a conspicuous place in the office; or if the perosn has no office or the office is close, leaving it at the perosn's dwelling house or usual place of abode with someone of suitable age and discretion residing there. or Mailing a copy to the last known address of the person served which is complete on mailing; if the person served has no known address, leaving a copy with the clerk of the court; or Delivering a copy by any other means including electronic means consented to in writing by the perosn served. Serivce by electronic means is complete on transmission; service by other consented means is complete when the paerson making serivce delivers the copy. Service by electronic means is not effective if the party making service learns that attempted service failed.
How is service complete with numerous defendants?
The court upon motion or of its own, may order that service of the pleadings of the def and replies thereto need not be made as between the def and that any cross claim, coutnerclaim, or matter constituting avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the palitniff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parites in such manner and form as the court directs.
What must be filed?
All papers after complaint required to be served together with a certificate of service must be filed with court within a reasonable time after service, but disclosures under 26a1 or 2 and the folowing discovery requests and responses must NOT be filed UNTIL they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or to permit entry upon land and requests for admission
How is filing with the court made
Shall be made by filing with clerk of court except that the judgment may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the officer of the clerk. A court may by local rule permit papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference estbalishes. A paper filed by electronic means in compliance with a local rule constitutes means in compliance with a local rule consitutes a written paper. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.
How is time computes ?
The day of the act, event or default from which the designated period of time begins to run shall not be included. the last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, or, when the act to be done is the filing of a paper in court , a day on which weather or other conditions have made the office of the clerek of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. If the time prescribed is less than 11 days, the intermediate Saturdays, Sundays, or Holidays shall be excluded.
What shall a claim for relief contain?
A short and plain statement of the grounds upon which the court has jurisdiction depends, unless the court already has jurisdiction and the claim needs no new groundsof jurisdictionto support it; a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.
How are defenses to be stated?
A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denialsof designated averments or paragraphs or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in rule 11.
What is the effect of a failure to deny?
The effect of a failure to deny or affirm party of a pleading that is required, other than damages, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
Each averment shall be?
simple, concise and direct.
Are any technical forms of pleading or motions required?
No.
In a pleading responding to a prior pleading what must be asserted?
A party shall assert denials, admittances and any affirmative defenses includes affirmatively accord and satisfcation, arbitratration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
What does the court do when a party mistakenly designates a defense as a counterclaim or a counterclaim as a defense?
The court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
Can a party set forth two or more statements of a claim or defense alternatively or hypothetically either in one count or defense or in separate counts or defenses?
Yes. When two or more statemetns are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11
How shall pleadings be construed?
All pleadings shall be construed as to do substantial justice.
When a party desires to raise an issue as to the legal existence of any party or the capaity of any party to sue or be sued or the authority of a party to se or be sued in a representative capacity, the party desiring to raise the issue shall do so by?
specific negative averment, which shall include such supporting particulars as are peculiarly within the pleaders knowledge.
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with _______________?
Particularity
What can be averred generally in the pleading?
Malice, intent, knowledge, and other condition of mind of a person
In pleading the performance or occurrence of conditions precedent, how must performance and occurrences be avered?
It is sufficient to aver generally that all condictions precedent hav ebeen performed or have occurred. A denial of preformance or occurrence shall be made specifically and with particularity.
In pleading an official document or official act
It is sufficient to aver that the document was issued or the act done in compliance with law.
In pleading a judgment or decision of a domestic or foreign court, judicial or quasi judicial tribunal, or of a board or officer, it is sufficient to aver the judgmetn or decision wihout
setting forth matter showing jurisdiction to render it.
How are averments of time and place treated?
They are material and shall be considered like all other averments of material matter.
How shall special damages be stated?
Specifically
A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiciton of the district court on some other ground may contain
a statement identifying the claim as an admiralty or maritime claim for the purposes of Rule 14c, 38e, 82 and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whether so identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Rule 15. A case that includes an admiralty or maritime claim within this subdivision is an admiralty case within 28 USC 1292
Every pleading call contain
a caption setting forth the name of the court, tilte of action, file number and a designation as in rule 7(a) (Counterclaim, answer...)
Every complaint shall containt
the ttile of the action shall include the names of all the parties but in other pleading it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.
Requirements of paragraphs for the pleadings
All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statemetn of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
What is adoption by reference?
Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.
What are the requirements regarding documents being signed?
Every pleading, written motion and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorny or party.
What is a person certifying by presenting to the court a pleading, written motion, or other paper?
That to the best of the person's knowledge, information and belief formed after an inquire reasonable under the circumstances, it is not being presented for any improper purpose; the claims, defenses and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
If the pary violates the requiresment of 11(b) which certifies that all is completed in good faith and to the best of their knowlwedge is factual based on evidence and for proper purposes, what can the court do?
If after notice and a reasonable opprounty to respond, the court determines that 11b has been fiolated the court may subject to limitations impose an appropriate sanction upon the attorneys, law firms, or parties that have violated it or are responsible for violation.
How are sanctions under 11(b) initiated?
By motion or on court's initiative; The motion shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision(b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or oppsoing the motion. Absent exceptional circumstances, a law firm shall be held joinly responsible for violations committed by its partners, associates and employees; Addtionally on its own initiative the court may enter an order describing the specific conduct that appears to violate subdivision b and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.
What are the nature of sanctions and limitations?
A sanction imposed shall be limited to waht is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitaitons in A and B, the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

Monetary sanctions can not be awarded against a represented party for violation of 11b2 regarding the claims and defenses being warranted by existing law.

Monetary sanctions may not be awared on the court's initiative unless the court issues its order to show cause before a voluntary dismissal the party which is, or whose attorneys are, to be sanctioned.
What shall the court do when imposing sanctions?
When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.
Does rule 11 a-c apply to discovery, discovery requests, responses, objections, and motions subject to Rules 26-37?
No.
A defendant must serve an answer__________________
within 20 days after being served with the summons and complaint or if serveice of the summons has been timely waived on request under Rule 4(d), within 60 days after the date when the request for waiver was sent or within 90 days after that date if the defendnat was addressed outside any judicial district of the US.
When must a party served with a pleading stating a cross claim against that party serve an answer?
Within 20 days after being served, or service of the answer or if a reply is ordered by the court within 20 days after service of the order, unless the order otherwise directs.
When is the US, an agency of the US or an officer or employee of the US sued in an official cpacity required to serve an answer to the complaint or cross claim or a reply to a counterclaim?
Wihtin 60 days after the US attorney is served with the pleading asserting the claim.
When is an officer or employee of the US sued in an indiivdual capacity for acts or omissions occuring in connection with the perofrmance of duties on behalf of the US required to serve a response?
within 60 days after service on the officer or employee or service on the US attorney which ever is later.
Unless a different time is fixed by court order, the service of a motion permitted under this rule alter these periods of time how?
(1) if the court denies the motion or postpones its disposition until the trial on the mertis, the repsonsive pleading shall be served within 10 days after notice of the court's action; or (2) If the court grants a motion for a more definite statment, the responsive pleading shall be served within 10 days after the service of the more definite statement.
Every defense in law or fact to a claim for relief in any pleading whether a claim, counterclaim, cross claim or third party claim shall be asserted when?
In the responsive pleaidng thereto if one is required, except that the following defenses may at the option of the pleader be made by motion (1) lack of jurisdiction over the subject matter

lack of jurisdiciton over the person

improper venue

insufficiency of process

insufficiency of service of process

failure to join a party under Rule 19

A motion making any of these defenses shall be made before pleading if a further pleading is permitted. no defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.
If a pleading sets forth a claim for relief to which the adverese party is not required to serve a responsive pleading, the adverese party may assert...
at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense of failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the corut, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opporutnity to present all material made pertinent to such a motion by Rule 56.
When must a party served with a pleading stating a cross claim against that party serve an answer?
Within 20 days after being served, or service of the answer or if a reply is ordered by the court within 20 days after service of the order, unless the order otherwise directs.
When is the US, an agency of the US or an officer or employee of the US sued in an official cpacity required to serve an answer to the complaint or cross claim or a reply to a counterclaim?
Wihtin 60 days after the US attorney is served with the pleading asserting the claim.
When is an officer or employee of the US sued in an indiivdual capacity for acts or omissions occuring in connection with the perofrmance of duties on behalf of the US required to serve a response?
within 60 days after service on the officer or employee or service on the US attorney which ever is later.
Unless a different time is fixed by court order, the service of a motion permitted under this rule alter these periods of time how?
(1) if the court denies the motion or postpones its disposition until the trial on the mertis, the repsonsive pleading shall be served within 10 days after notice of the court's action; or (2) If the court grants a motion for a more definite statment, the responsive pleading shall be served within 10 days after the service of the more definite statement.
Every defense in law or fact to a claim for relief in any pleading whether a claim, counterclaim, cross claim or third party claim shall be asserted when?
In the responsive pleaidng thereto if one is required, except that the following defenses may at the option of the pleader be made by motion (1) lack of jurisdiction over the subject matter

lack of jurisdiciton over the person

improper venue

insufficiency of process

insufficiency of service of process

failure to join a party under Rule 19

A motion making any of these defenses shall be made before pleading if a further pleading is permitted. no defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.
If a pleading sets forth a claim for relief to which the adverese party is not required to serve a responsive pleading, the adverese party may assert...
at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense of failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the corut, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opporutnity to present all material made pertinent to such a motion by Rule 56.