Federal Rules Of Civil Procedure

Front 1

What does Rule 8 govern?

Back 1

General Rules of Pleading

Front 2

Rule 8(a)

Back 2

Claim for Relief

Front 3

What are the 3 requirements for stating a claim for relief under Rule 8(a)?

Back 3

1) a "short and plain statement" of court's grounds for JX, unless such JX already exists

2) "short/plain statement" of claim showing entitlement to relief

3) demand for relief sought (may include alternative/different types of relief)

Front 4

Rule 8(b)

Back 4

Defenses; Admissions and Denials

Front 5

According to Rule 8(b)(1), a party must do what in responding to a pleading?

Back 5

(1) In General. In responding to a pleading, a party must:
a) state in "short/plain terms" its defenses to each claim asserted agst it
b) admit or deny allegations asserted agst. it by opposing party

Front 6

What must a denial do according to Rule 8(b)(2)?

Back 6

Denials---Responding to the Substance. "A denial must fairly respond to the substance of the allegation."

Front 7

What does Rule 8(b)(3) require?

Back 7

General and Specific Denials.
If in good faith party intends to deny everything (including JX), it may do so by a general denial.

If it does not so intend, it must a) deny certain allegations specifically or b) generally deny all but specific admissions.

Front 8

What does Rule 8(b)(4) require?

Back 8

Denying Part of an Allegation.

If in good faith only part of allegation is to be denied, party must admit part that's true and deny the rest.

Front 9

What happens when a party doesn't have enough information to deny or admit an allegation?

Back 9

Rule 8(b)(5) in play; Lacking Knowledge or Information.

Party must state that it lacks such knowledge/information, statement has the effect of a denial.

Front 10

What happens is a defendant fails to deny?

Back 10

Rule 8(b)(6)
If a "responsive pleading" is required and allegation not denied, then allegation is admitted.

If "responsive pleading" not required, allegation considered denied/or avoided.

Front 11

what is the one exception to 8(b)(6)?

Back 11

Allegations related to amount of damages does not apply

Front 12

What does Rule 8(c) govern?

Back 12

Affirmative Defenses

Front 13

What is required by Rule 8(c)(1)?

Back 13

In General; party must affirmatively state any avoidance or affirmative defense

Front 14

What error is governed by Rule 8(c)(2)?

Back 14

Mistaken Designation

Front 15

What happens if a party mistakenly designates a defense as a counterclaim, or vice versa?

Back 15

Court must, "if justice requires", treat pleading like it were correct, and MAY impose terms for doing so.

Front 16

What is governed by Rule 8(d)?

Back 16

Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

Front 17

What is required by Rule 8(d)(1)?

Back 17

In General. Allegations must be a) simple, b) concise, and c) direct. "No technical form is required"

Front 18

What is required by Rule 8(d)(2)?

Back 18

Alternative Statements of a Claim or Defense;
Parties are allowed to set out 2/more statements of claim/defense alternatively/hypothetically, in a single or separate counts/defenses.

If alternative statements made, pleading sufficient if 1 of them is sufficient.

Front 19

What limit is placed on the amount of separate claims or defenses a party can state?

Back 19

Rule 8(d)(3) Inconsistent Claims or Defenses.

"A party may state as many separate claims or defenses as it has, regardless of consistency."

Front 20

What is required by Rule 8(e)?

Back 20

Construing Pleadings.

"Pleadings must be construed so as to do justice."

Front 21

What subject matter is covered by rule 12?

Back 21

Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

Front 22

What is governed by Rule 12(a)?

Back 22

Time to Serve a Responsive Pleading

Front 23

Unless otherwise specified by Rule 12 or a federal statute, a defendant must serve an answer within what time of being served with a summons and complaint?

Back 23

21 days----12(a)(1)(A)(i)

Front 24

How long does a defendant have to answer if it has timely waived service under 4(d)?

Back 24

w/in 60 days after the request for waiver was sent
OR
w/in 90 days after sent to defendant outside U.S. judicial districts
12(a)(1)(A)(ii)

Front 25

How long does a party have to answer a counterclaim or crossclaim?

Back 25

21 days after being served w/ that specific pleading 12(a)(1)(B)

Front 26

Can a defendant serve an answer and compel the plaintiff to reply?

Back 26

YES, if properly served w/ an order to reply, party must do so w/in 21 days unless otherwise specified in the order.
12(a)(1)(C)

Front 27

W/in how many days must the U.S., a U.S. agency, or a U.S. officer/employee sued in an official capacity serve an answer to a complaint/counterclaim/crossclaim?

Back 27

w/in 60 days of service on U.S. attorney
12(a)(2)

Front 28

W/in how many days must U.S. Officers/employees sued in an individual capacity serve an answer?

Back 28

60 days---note, this is only for "acts or omissions occurring in connection w/ duties performed on the U.S.'s behalf"

12(a)(3)

Front 29

What are the requirements of 12(a)(4)?

Back 29

Effect of a Motion
Requires pleading served w/in 14 days if court denies motion or postpones disposition until trial, OR if court grants motion for more definite statement
12(a)(4)(A)(B)

Front 30

What is the function of Rule 12(b)?

Back 30

Covers "how to present defenses"

Front 31

List the 7 defenses a party may assert by motion under Rule 12(b)

Back 31

(1) lack of subject-matter jx
(2) lack of personal jx
(3) improper venue
(4) insufficient process
(5) insufficient service of process
(6)**failure to state a claim upon which relief can be granted
(7) failure to join a party under Rule 19

Front 32

When must a 12(b) motion be made?

Back 32

BEFORE pleading if a responsive pleading is allowed 12(b)

Front 33

What is required if there is no responsive pleading required?

Back 33

Any defense may be asserted at trial
12(b)

Front 34

What does Rule 12(b) say about joining defenses/objections

Back 34

"no defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion"

Front 35

What is governed by 12(c)?

Back 35

Motion for Judgment on the Pleadings.
Says that once pleadings are closed but early enough not to delay trial, party can move for judgment on the pleadings

Front 36

According to 12(d), what happens if matters outside the pleadings are presented/not excluded by the court after a 12(b)(6) or 12(c) motion?

Back 36

the motion is treated as one for summary judgment under Rule 56, and parties must be given "reasonable opportunity" to present all pertinent material

Front 37

When can a party make a 12(e) motion fora more definite statement?

Back 37

When a responsive pleading is allowed/required but pleading is so vague/ambiguous that one can't reasonably prepare response

Front 38

If a party chooses to make a 12(e) motion, what is required?

Back 38

Must make motion before filing a responsive pleading; must point out defects and what details are desired.

Front 39

If the court grants a 12(e) motion and it is not obeyed w/in 14 days after notice or w/in court's time frame, what may the court do?

Back 39

strike the pleading or "issue any other appropriate order"

Front 40

What may the court do under a 12(f) motion?

Back 40

strike from a pleading an insufficient defense OR any "redundant, immaterial, impertinent, or scandalous matter. May act
1) on its own; or
2) on motion by a party, either through responsive pleading or if no response allowed, w/in 21 days of service

Front 41

what is governed by 12(g)

Back 41

Joining Motions.
(1) Right to Join. Motion made under 12(g) can join w/ other motions allowed by 12(g)
(2) Limitation on Further Motions. Unless 12(h)(2) or (3), no other motion under 12(g) that raises defense/objection available earlier but omitted from earlier motion

Front 42

What is Rule 12(h)?

Back 42

Waiving and Preserving Certain Defenses.

Front 43

How can a party waive defenses under 12(h)?

Back 43

(1) When Some Are Waived. Anything in 12(b)(2)-(5) by
(a) omission by way of 12(g)(2) or
(b) failing to either: i) make it by motion under 12(h), or ii) include in responsive pleading or in amendment by way of 15(a)(1)

Front 44

What is 12(h)(2)?

Back 44

When to Raise Others.
12(b)(6), join person required by 19(b), or state legal defense to claim can be raised
(A) in any pleading under 7(a)
(B) motion under 12(c)
(C) at trial

Front 45

Under 12(h)(3), when may a court dismiss for lack of subject matter jx?

Back 45

(3) Lack of Subject Matter Jurisdiction.
If court determines this "at any time", it MUST dismiss

Front 46

What is governed and required by 12(i)?

Back 46

Hearing Before Trial.
If a party so moves, anything in 12(b) (1)-(7) either thru motion or pleading must be heard/decided before trial

Front 47

How can the court avoid the mandate of 12(i)?

Back 47

order deferral until trial (see 12(i) text)

Front 48

What is governed by Rule 11 generally?

Back 48

Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

Front 49

What are the signature requirements under 11(a)?

Back 49

That all pleadings/written motions/other paper must be signed by at least one atty. of record, or by that person if not represented. Has to state address, email address, and phone number.

Front 50

Are there any non-signature related requirements under 11(a)?

Back 50

YES, pleading does not have to be accompanied by affidavit unless a rule says otherwise.

Front 51

What does 11(a) require a court to do w/r/t unsigned papers?

Back 51

Strike said paper unless omission "promptly corrected" after being called to party's attention (or atty's)

Front 52

What is the significance of 11(b)?

Back 52

"Representations to the Court." It sets the standards for attorneys in their dealings w/ the court

Front 53

What types of representations are governed by 11(b)?

Back 53

pleading, written motion, "other paper"
whether by "signing, filing, submitting, or later advocating it"

Front 54

Under 11(b), any relevant representations to the court that are made by a party/atty assert WHAT, according to the persons "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances"?

Back 54

1) not presented for improper purpose (harrass, undue delay, needless cost increase)
2) legal contentions warranted either by existing law or "nonfrivolous argument" for extending/modifying/reversing existing law or establishing new law
3) facts supported by evidence, or will likely have it after "reasonably opportunity for further investigation or discovery
4) denials of facts are warranted or reasonably based on belief or lack of info

Front 55

What is mandated by 11(c)(1)?

Back 55

(c) Sanctions
(1) In General.
If court has given notice/opportunity, and 11(b) violated, can impose sanction on any atty, firm, party that violated or is responsible for violation...law firm jointly responsible "absent exceptional circumstances"

Front 56

What are the requirements of Motion for Sanctions under 11(c)(2)?

Back 56

Must be separate from other motions and describe specific conduct that violates 11(b), served under rule 5, withdrawn if challenged item is withdrawn or "properly corrected" w/in 21 days of service/other time court sets.
If win, court can give reasonable expenses, including atty's fees, incurred for the motion

Front 57

What power is the court given under 11(c)(3)?

Back 57

On the Court's Initiative. Court can on its own accord order a firm, atty, party to show cause why "conduct specifially described in the order" has not violated 11(b)

Front 58

In what way(s) does 11(c)(4) limit sanction?

Back 58

(4) Nature of a Sanction.
Must be limited to what suffices to deter repetition or "comparable conduct by others similarly situated".
Can be nonmonetary, or court penalty, or atty's fees/expenses from violation

Front 59

How does 11(c)(5) limit monetary sanctions?

Back 59

Court can't impose against:
(A) against represented party violating 11(b)(2) or
(B) on its own, unless 11(c)(3) followed

Front 60

What must be included in an order that imposes sanction?

Back 60

11(c)(6), Requirements for an Order.
Describe the sanctioned conduct, explain the basis for the sanction

Front 61

What is clarified by 11(d)?

Back 61

Inapplicability to Discovery.
Rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26-37.

Front 62

What does rule 15 govern?

Back 62

Amended and Supplemental Pleadings

Front 63

What subject matter does rule 15(a) address?

Back 63

(a) Amendments Before Trial

Front 64

What are the guidelines under which a party may amend its pleading once?

Back 64

(1) Amending as a Matter of Course.
Party can do this once either
(A) 21 days after serving or
(B) if responsive pleading required, 21 days after service of responsive pleading OR 21 days after 12(b), (e), or (f) motion is served

Front 65

once the party has amended as a matter of course, are other amendments allowed?

Back 65

YES, Under 15(a)(2) "Other Amendments", party can amend through written consent of other party or the court's leave.

Front 66

According to 15(a)(2) when should the court give leave?

Back 66

"when justice so requires"

Front 67

How long does the other side have to respond to an amended pleading, if a response is required?

Back 67

15(a)(3) "Time to Respond"----either within the time left to respond to original pleading OR w/in 14 days after service, whichever one is later

Front 68

What is 15(b)?

Back 68

governs Amendments During and After Trial

Front 69

According to 15(b)(1), what recourse does the court have if a party objects that evidence presented is not w/in the issues raised in the pleadings?

Back 69

It can permit the pleadings to be amended

Front 70

When should a court permit amendment under 15(b)(1)

Back 70

when it will
a) help in presenting merits of case and
b) objecting party does not prove that evidence would prejudice their action or defense.
c) to address b, court can grant a continuance to enable objecting party to meet the evidence

Front 71

How does Rule 15 affect issues not raised by the pleadings but expressly/impliedly consented to by both parties?

Back 71

15(b)(2) "For Issues Tried by Consent".
Must be treated like it was raised in the pleadings.
Party can move "at any time, even after judgment" to amend pleadings to conform to evidence and raise unpleaded issue.
BUT failure to amend doesn't affect trial's result (on that issue)

Front 72

What is the subject matter of Rule 15(c)

Back 72

Relation Back of Amendments

Front 73

According to 15(c)(1), when does an amendment "relate back"?

Back 73

(A) the law providing SOL allows it
(B) it asserts claim/defense as to something that derived from the "conduct/transaction/occurrence" set out (or attempted to be set out) in the original

Front 74

Can the amendment meet relation back standard if it changes the party or the naming of the party against whom a claim is asserted?

Back 74

YES, under 15(c)(1)(C) if 15(c)(1)(B) satisfied w/in proper period, and the other party received notice and won't be prejudiced in "defending on the merits" AND
"knew or should have known" action would be brought against it

Front 75

What happens to the rule 15 requirements when dealing w/ the United States?

Back 75

15(c)(2) "Notice to the United States." notice requirements satisfied if during relevant period process delivered/mailed to U.S. Atty. or atty's designee,or USAG, or "to the officer or agency".

Front 76

What is the significance of Rule 15(d)?

Back 76

Supplemental Pleadings.
Court may allow "on just terms" for party to serve supplemental pleading based on anything that happened after date of pleading they wish to supplement---even if original pleading is defective/ court can also order other party to reply w/ respect to it w/in a specified time

Front 77

What does Rule 26 govern?

Back 77

Duty to Disclose; General Provisions Governing Discovery

Front 78

Except as otherwise stipulated and things exempted by 26(a)(1)(B) or ordered by court, party must provide other parties w/ what w/o awaiting a discovery request?

Back 78

26(a)(1)(A)
name and if known, address/number of each likely to have discoverable information, w/ subjects of that info

(ii) copy, or description by category/location of all docs/e-info, and "tangible things" in party's control and may use to support claims/defenses

(iii) computation of all relevant damages by category, what that's based on, all materials related to this
(unless privileged or protected from disclosure)
(iv) any insurance agreement under which that company might be liable to pay part of a judgment or to indemnify/reimburse for payments made to satisfy the judgment

Front 79

What's the exception to 26(a)(1)(A)

Back 79

"unless use would be solely for impeachment"

Front 80

26(a)(1)(B) what types of proceedings are exempt from initial disclosure?

Back 80

(i) action for review on an administrative record
(ii) forfeiture action in rem arising from federal statute
(iii) habeas or other proceeding to challenge criminal conviction/sentence
(iv) action brought w/o att. by person in custody of U.S., a state, or state subdivision
(v) action to enforce/quash administrative summons or subpoena
(vi) action by U.S. to recover benefit payments
(vii) action by U.S. to collect student loan
(viii) proceeding ancillary to proceeding in another court
(ix) action to enforce an arbitration award

Front 81

26(a)(1)(C)----what is the time frame for initial disclosures in general?

Back 81

at or w/in 14 days after Rule 26(f) conference unless otherwise set by stipulation or court order, or party objects to initial disclosures up front---in this case,a court would determine if any disclosures are necessary and what they are/time frame, etc.

Front 82

What requirements does 26(a)(1)(D) set out for parties that are first served or joined after the 26(f) conference?

Back 82

make initial disclosures w/in 30 days of service/joinder, unless otherwise set by stipulation or court order

Front 83

26(a)(1)(E) what is required here?

Back 83

party must make initial disclosures based on what's reasonably then available to it----no excuse for not investigating case, challenging other party's disclosures, or other party's inaction

Front 84

26(a)(2) what is covered here?

Back 84

Disclosure of Expert Testimony

Front 85

what is 26(a)(2)(A)

Back 85

parties have to disclose ID of any witness might use under 702, 703, or 705 (expert testimony)

Front 86

according to 26(a)(2)(B) what must expert witness contain in his written, signed report?

Back 86

(i) complete statement of all opinions the witness will express and basis/reasons for them
(ii) data/other info considered in forming opinions
(iii) exhibits he may use in support/summary
(iv) witness's bona fides, all authored publications w/in 10 years
(v) list of previous 4 years' worth of expert testimony at trial or deposition
(vi) statement of compensation to be paid for study and testimony in case

Front 87

Absent a stipulation or court order, when must a party disclose experts?

Back 87

(26)(a)(2)(C)
(i) 90 days before date set for trial or for case to be ready for trial OR
(ii) if solely for rebuttal of other party's evidence under 26(a)(2)(B), w/in 30 days of that party's disclosure

Front 88

What does 26(a)(2)(D) require?

Back 88

that the parties supplement disclosures when required under 26(e)

Front 89

What does Rule 26(a)(3) concern?

Back 89

(3) Pretrial Disclosures

Front 90

Other than evidence that will solely be brought forth for impeachment purposes, what does 26(a)(3)(A) require parties to disclose about potential evidence?

Back 90

(i)name/address/number if each witness, delineating b/t ones it will call and ones it will call "if the need arises"
(ii) designation of witnesses whose testimony will be submitted via deposition, w/ relevant transcript of deposition (unless taken stenographically)
(iii) an identification of each document/exhitibit, delineating b/t what will be presented and what will be presented "if the need arises"

Front 91

26(a)(3)(B) requires that pretrial disclosures be made w/in what time frame?

Back 91

30 days before trial

Front 92

Within 14 days after pretrial disclosures have been made, what types of objections can a party make w/ regard to those disclosures?

Back 92

26(a)(3)(B) permits
"any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii)

Front 93

Rule 26(a)(3)(B) states that objections to pretrial disclosures not made are waived (unless excused by court for good cause) except for what?

Back 93

one made under Federal Rule of Evidence 402 or 403 (these cover relevance, and the prejudicing/confusing/misleading of a jury or if evidence will likely cause unwarranted delay)

Front 94

What is Rule 26(a)(4)?

Back 94

Form of Disclosures, unless court says otherwise, 26(a) disclosures must be in writing/signed/served

Front 95

What is Rule 26(b)?

Back 95

Discovery Scope and Limits.

Front 96

Under 26(b)(1), which covers "Scope in General" of discovery, does the thing in question have to be admissible at trial to be discoverable?

Back 96

NO. So long as the discovery appears "reasonably calculated to lead to the discovery of admissible evidence", it's fine. BUT all discovery is subject to 26(b)(2)(C) limitations

Front 97

26(b)(2) covers what?

Back 97

Limitations on Frequency and Extent

Front 98

What may the court do under 26(b)(2)(A)?

Back 98

It can alter the limits on the # of depositions/interrogatories OR on deposition length under Rule 30. Can also limit the # of requests under Rule 36 by order/local rule

Front 99

What is 26(b)(2)(B)?

Back 99

Party does not have to provide discovery of electronically stored info if it's an undue burden/cost----but party has that burden of proof, and court can still order discovery anyway if the other side shows good cause---at that point, the court can specify the conditions for the discovery

Front 100

According to Rule 26(b)(2)(C), when must the court limit the "frequency or extent of discovery"?

Back 100

If it determines
(i) discovery is "unreasonably cumulative or duplicative, or can be obtained from elsewhere (that is more convenient/less burdensome/less expensive)
(ii) if the party has already had enough opportunity to obtain the info
(iii) the burden/cost of the discovery outweighs the likely benefit

Front 101

In determining whether the burden/cost of discovery outweighs its benefit, what things must the court take into consideration?

Back 101

Rule 26(b)(2)(C)(iii) requires that it consider 1) the needs of the case; 2) the amount in controversy; 3) the parties' resources; 4) the importance of the issues at stake; 5) the importance of discovery in resolved those issues

Front 102

What is Rule 26(b)(3)?

Back 102

Trial Preparation: Materials

Front 103

What standard is set out be 26(b)(3)(A)?

Back 103

work product doctrine---normally can't discovery "documents and tangible things" prepared in anticipation of litigation or for trial, etc...BUT subject to 26(b)(4), materials can be discovered if
(i) otherwise can be under 26(b)(1) and
(ii) the party shows it has substantial need for materials to prepare its case and cannot obtain otherwise w/o "undue hardship"

Front 104

What protection is offered by Rule 26(b)(3)(B)

Back 104

If the court orders discovery of work product materials, has to protect against disclosure of mental impressions/conclusions/opinions/legal theories of party's attorney or other representative concerning the litigation

Front 105

What is the function of Rule 26(b)(3)(C)?

Back 105

Previous Statement----person's own previous statement about the action or its subject matter can be obtained---if refused, then party can move for a court order---this even includes a transcription that is "substantially verbatim"

Front 106

Rule 26(b)(4) provides guidelines specific to whom?

Back 106

expert witnesses

Front 107

Although a party can depose basically anyone identified as an expert w/r/t that trial under 26(b)(4)(A), what happens if 26(a)(2)(B) requires a report from the expert?

Back 107

then the report has to be provided under that rule before the deposition can be taken

Front 108

Under 26(b)(4)(B), what are the only circumstances by which a party can obtain discovery on an expert witness not expected to testify at trial?

Back 108

(i) as provided in 35(b) or
(ii) exceptional circumstances make it nearly impossible to get facts/opinions on same subject by other menas

Front 109

What are the payment requirements under 26(b)(4)(C)?

Back 109

absent "manifest injustice", court must require that the seeking party
(i) pay reasonable fee for time spent in responding to discovery under 26(b)(4)(A) or (B); and
(ii) for that under (B), also pay fair portion of fees incurred in obtaining expert's facts/opinions

Front 110

What must a party do to properly claim privilege under 26(b)(5)(A)?

Back 110

1) expressly make the claim
2) describe nature of the things not disclosed in a manner that will allow other parties to assess the claim (w/o revealing info that is itself privileged)

Front 111

Can privilege be claimed after the fact of production?

Back 111

YES, 26(b)(5)(B), party making this claim can notify any receiving party----at this point, other party must not use or disclose until claim resolved---can give it to court under seal for claim to be determined

Front 112

What is covered by Rule 26(c)?

Back 112

Protective Orders

Front 113

What must be certified in a motion for a protective order?

Back 113

that the movant has "in good faith conferred or attempted to confer" w/ the other party to resolve w/o court action

Front 114

An order to protect a party or person from annoyance, embarrassment, oppression, or undue burden/expenses under 26(c)(1) can include one or more of what?

Back 114

(A) forbidding the disclosure/discovery
(B) specifying terms (time/place) for disclosure/discovery
(C) prescribing alternative discovery method
(D) forbidding inquiry into certain matters/limiting disclosure/discovery scope as to certain matters
(E) designating who can be there when discovery conducted
(F) requiring deposition be sealed/opened only on court order
(G) requiring trade secret/other confidential research, development, or commercial information not be revealed/or if so only in a certain way
(H) requiring parties simultaneously file specified documents or info in sealed envelopes, to be opened as court directs

Front 115

What may the court do under 26(c)(2)?

Back 115

If a motion for protective order is wholly or partly denied, it may "on just terms" may order discovery

Front 116

What is Rule 26(c)(3)?

Back 116

Rule 37(a)(5) applies to the award of expenses

Front 117

Except in a proceeding exempted from initial disclosure under 26(a)(1)(B), or when authorized by these rules, stipulation, or court order, a party may not seek discovery from any source before what?

Back 117

Before both parties have conferred as required by 26(f)
rule 26(d)(1)--Timing

Front 118

Unless otherwise ordered on motion, what does Rule 26(d)(2) require?

Back 118

Sequence---
(A) methods of discovery may be used in any sequence
(B) discovery by one party does not require any other party to delay discovery

Front 119

What must a party who has made a disclosure under Rule 26(a) or responded to an interrogatory or other request do if it needs to supplement/correct a disclosure?

Back 119

26(e)(1)(A)----in a timely manner if the party learns that in some "material respect" the disclosure is incomplete or incorrect, and the corrective info has not already been made known to other parties
(B) as ordered by the Court

Front 120

What does Rule 26(e)(2) require?

Back 120

duty to supplement extends to the written report and what's given in the deposition----additions/changes must be disclosed by the time pretrial disclosures under 26(a)(3) are due

Front 121

Under 26(f)(1) what is the maximum amount of time parties have to confer?

Back 121

at least 21 days before scheduling conference held or scheduling order due under 16(b)---"as soon as practicable" (unless exempt from initial disclosure)

Front 122

What are the parties' responsibilities under 26(f)(2)?

Back 122

1) consider nature/basis of claims
2) defenses/possibilities for prompt settlement/resolution
3) arrange for 26(a)(1) disclosures
4) discuss issues about preserving discoverable information
5) develop proposed discovery plan
6) all responsible for good faith attempt to agree on proposed plan----must be submitted w/in 14 days after conference

court may order parties or attorneys to attend the conference in person

Front 123

Under 26(f)(3)(A) what must be included in the discovery plan?

Back 123

(A) any changes that should be made w/r/t timing/form/requirement for 26(a) disclosures, w/ a statement of when initial disclosures were made/will be made

Front 124

26(f)(3)(B)

Back 124

subjects on which discovery may be needed/when discovery should be completed/whether discovery should be conducted in phases or be limited to or focused on particular issues

Front 125

26(f)(3)(C)

Back 125

(C) any issues about disclosure or discovery of electronically stored info, including form/forms in which it should be produced

Front 126

26(f)(3)(D)

Back 126

(D) any issues about claims of privilege or of protection as trial prep materials, including---if the parties agree on a procedure to assert these claims after production---whether to ask the court to include their agreement in an order

Front 127

26(f)(3)(E)(F)

Back 127

(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; AND
(F) any other orders that the court should issue under 26(c) or 16(b) and (c)

Front 128

What may the court do by local rule under 26(f)(4), if necessary to comply w/ its expedited schedule for 16(b) conferences?

Back 128

Expedited Schedule.
(A) require conference less than 21 days before scheduling conference or order due under 16(b); and
(B) require written report outlining discovery plan to be filed less than 14 days after conference, or excuse from written submission requirement and permit oral report at 16(b) conference

Front 129

26(g)

Back 129

Signing Disclosures and Discovery Requests, Responses, and Objections

Front 130

26(g)(1) requires what, generally?

Back 130

that every disclosure under 26(a)(1) or (a)(3) and every request, response, or objection w/r/t discovery be signed by at least one attorney of record in his own name---or by party personally, if unrepresented---must have address, email, and #

Front 131

What does the attorney of record or signing party certify upon signing under 26(g)(1)?

Back 131

That to the "best of that person's knowledge, information, and belief formed after a reasonable inquiry",
(A) disclosure complete/correct as of time it was made
(B) w/ respect to discovery request, response, or objection, it is:
(i) consistent w/ rules and warranted by existing law or by nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law
(ii) not interposed for improper purpose (harrass, delay, increase cost)
(iii) neither unreasonable nor unduly burdensome or expensive, considering needs of case, prior discovery in case, amount in controversy, and importance of issues at stake in the action."

Front 132

What is the effect of a failure to sign under 26(g)(2)?

Back 132

Other party has no duty to act until signed, and court must strike it unless signature "promptly supplied" after omission called to attention

Front 133

What is the Sanction for Improper Certification under 26(g)(3)?

Back 133

if violation is w/o substantial justification, court must impose "appropriate sanction on the signer, the party on whose behalf the signer was acting, or both". Might include order to pay reasonable expenses, including attorney's fees, caused by the violation

Front 134

What does Rule 56 govern, generally?

Back 134

Summary Judgment

Front 135

What rights does a claiming party have under 56(a)?

Back 135

"A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim"

Front 136

What rights does a defending party have under 56(b)?

Back 136

"A party against whom relief is sought may move, with or without supporting affidavits, for summary judgment on all or part of the claim".

Front 137

What are the basic timing requirements under 56(c)?

Back 137

(1) Unless otherwise set by local rule or court order:
(A) party may move for SJ at any time until 30 days after close of all discovery
(B) party opposing motion must file response w/in 21 days after motion served or responsive pleading due, whichever is later
(C) movant may file reply w/in 14 days after response served

Front 138

What is required by 56(c)(2)?

Back 138

that judgment should be so rendered if there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law".

Front 139

What is the subject matter of 56(d)?

Back 139

Case Not Fully Adjudicated on the Motion.

Front 140

What is 56(d)(1)?

Back 140

Establishing Facts.
Court should, if SJ not granted on entire action, determine "to the extent practicable", what material facts are not genuinely at issue. After examining pleadings/evidence and questioning the attys., it should issue an order specifying what facts are not genuinely at issue

Front 141

56(d)(2)?

Back 141

Establishing Liability.
Interlocutory SJ may be rendered just on liability, even if there is a genuine issue as to the amount of damages

Front 142

56(e) governs what?

Back 142

Affidavits; Further Testimony

Front 143

What must an affidavit do in general, according to 56(e)(1)?

Back 143

1) Made on personal knowledge
2) set out facts that would be admissible in evidence
3) show that affiant is competent to testify on matters stated
4) If a paper is referred to in affidavit, sworn or certified copy must be attached to or served w/ it

Front 144

What may the court do under 56(e)(1)?

Back 144

May permit affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits

Front 145

What must an opposing party do under 56(e)(2) when an MSJ is properly made and supported?

Back 145

Must have response that, by affidavits or as otherwise provided in the rule, set out specific facts showing a genuine issue for trial----if no response, SJ should be entered against that party if appropriate

Front 146

What options are available if affidavits are unavailable?

Back 146

Under 56(f), if opposing party shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, court may:
(1) deny the motion
(2) order continuance to enable affidavits to be obtained, depositions taken, other discovery undertaken or
(3) issue any other just order

Front 147

What recourse does an affected party have if an affidavit has been submitted in bad faith?

Back 147

Under 56(g), if an affidavit submitted in bad faith or solely for delay, court must order submitting party to pay the other party the reasonable expenses, including fees, it incurred as result---offending party or atty. may also be held in contempt

Front 148

What is governed by Rule 33?

Back 148

Interrogatories to Parties

Front 149

What is the limit in number the Federal Rules place on interrogatories?

Back 149

Under 33(a)(1), unless otherwise stipulated or court ordered, party may serve no more than 25 written interrogatories (including all discrete subparts)
Leave to serve additional ones may be granted to extent consistent w/ 26(b)(2)

Front 150

What is the limit on the scope of interrogatories?

Back 150

Under 33(a)(2), it may relate to any matter tha may be inquired into under 26(b), and not objectionable just b/c it asks for an opinion or contention that relates to fact or the application of law to fact, but court may order that it need not be answered until designated discovery complete, or until pretrial conference or "some other time"

Front 151

Who must respond to interrogatories under 33(b)(1)?

Back 151

(A) by party to whom directed; OR
(B) if that party is a public/private corp, partnership, association, gov't. agency, by any officer/agent, who must furnish the info available to the party

Front 152

Is there a time limit on responses to interrogatories?

Back 152

YES, under 33(b)(2) answers must be served along w/ any objections w/in 30 days after being served---shorter or longer may be stipulated under Rule 29 or be ordered by the court

Front 153

Can the interrogatory be responded to generally?

Back 153

NO, under 33(b)(3), each interrogatory must, to extent not objected to, be answered separately and fully in writing under oath.

Front 154

How must objections to interrogatories by formulated?

Back 154

under 33(b)(4), the grounds for objecting to an interrogatory must be stated w/ specificity----any ground not stated in timely objection waived unless court for good cause excuses the failure

Front 155

Who must sign answers to interrogatories?

Back 155

the person who makes the answers, and atty. who objects must sign any objections

Front 156

How may interrogatories be used?

Back 156

to the extent allowed by the Federal Rules of Evidence, 33(c)

Front 157

What is the proper procedure when the answer to an interrogatory can be determined through a party's business records and the burden of so doing is substantially the same for either party?

Back 157

Responding party may answer by:
(1) specifying records that must be reviewed, in detail so as to enable interrogating party to locate/identify them as readily as responding party could
(2) give interrogating party reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries

Front 158

What does Rule 34 govern?

Back 158

Producing Documents, Electronically Stored Information, and Tangible things, or Entering onto Land, for Inspection and Other Purposes

Front 159

In general, what is a party permitted to serve a request on within the scope of 26(b)?

Back 159

34(a)(1) to produce/permit requesting party to inspect/copy/test/sample the following in party's possession, custody, or control:
(A) any designated documents or electronically stored information in any medium in which info can be obtained directly or after translation into a reasonably usable form; or
(B) any designated tangible things; or
(2) permit entry onto designated land/other property to inspect/measure/survey/photo/test/sample property or any designated object or operation on it

Front 160

What must the contents of the request contain under 34(b)?

Back 160

(A) must describe with reasonable particularity each item or category of items to be inspected
(B) must specify reasonable time/place/manner for inspection and for performing related acts
(C) may specify form or forms in which electronically stored info is to be produced

Front 161

What is the time frame for responses to Rule 34 requests?

Back 161

34(b)(2)(A), must respond in writing w/in 30 days after service, shorter/longer time may be stipulated under Rule 29 or ordered by the court

Front 162

Must each item be responded to under Rule 34 requests?

Back 162

YES; under 34(b)(2)(B), response must either state that inspection will be permitted as requested or state objection to request, including the reasons

Front 163

What does Rule 34(b)(2)(C) require?

Back 163

objection to part of a request must specify part and permit inspection of the rest

Front 164

What is required by 34(b)(2)(D)?

Back 164

Responding to a Request for Production of Electronically Stored Information----may state an objection to a requested form for producing electronically stored info, if form objected to or no form specified, party must state form/s it intends to use

Front 165

What does 34(b)(2)(E) require w/r/t producing Documents or Electronically Stored Info?

Back 165

Unless otherwise stipulated or court ordered,
(i) must produce documents as they are kept in the usual course of business OR must organize and label them to correspond to the categories in the request;
(ii) if no form specified, party must produce it in a form in which it is ordinarily maintained or in reasonably usable form; and
(iii) party need not produce same electronically stored info in more than one form

Front 166

What is Rule 34(c)?

Back 166

Nonparties.
"As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection."

Front 167

What is Rule 35 about?

Back 167

Physical and Mental Examinations

Front 168

What power does the Court have under 35(a)(1)?

Back 168

the court may order party whose mental/physical condition (including blood group) is in controversy to submit to physical/mental examination, and can order same for party in its custody or under its legal control.

Front 169

What are the requirements of an order for physical/mental examination under 35(2)?

Back 169

(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
(B) must specify time/place/manner/conditions/scope of examination, as well as person/persons who will perform it

Front 170

What must the party who moved for the mental/physical examination do under 35(b)?

Back 170

35(b)(1), must on request deliver to requester a copy of examiner's report, together w/ like reports of all earlier examinations of same condition---can be made by party against whom examination order issued or by person examined

Front 171

What are the requirements of the examiner's report under 35(b)(2)?

Back 171

must be in writing and set out in detail the examiner's findings/diagnoses, conclusions, and the results of any tests

Front 172

What does 35(b)(3) make available to the moving party?

Back 172

Party who moved for mental/physical examination may request "and is entitled to receive" from other party "like reports of all earlier or later examinations of the same condition"----BUT need not be delivered by the person w/ custody/control of person examined if party shows it could not obtain them

Front 173

How does a party waive privilege under 35(b)(4)?

Back 173

by requesting and obtaining the examiner's report, party examined waives any privilege it may have in that action or any other involving same controversy concerning testimony about all examinations of same condition

Front 174

What may the court do under 35(b)(5)?

Back 174

on motion it may order "on just terms" that party deliver report of an examination---if not provided, examiner's testimony may be excluded at trial

Front 175

What is the scope of Rule 35(b)?

Back 175

35(b)(6) applies to examinations made by parties' agreement, unless it states otherwise---does not preclude obtaining examiner's report or deposing examiner under other rules

Front 176

What does rule 36 concern?

Back 176

Requests for Admission

Front 177

What is required by 36(a)(1)?

Back 177

(1)Scope. party may serve on any other written request to admit, for purposes of pending action only, truth of any matters w/in scope of Rule 26(b)(1) relating to:
(A) facts/application of law to fact/opinions on either, and
(B) genuineness of any described documents

Front 178

What form must admitted matters take under 36(a)(2)?

Back 178

must be separately stated, request to admit genuineness of document must be accompanied by copy of document unless it is, or has been, otherwise furnished or made available for inspection and copying

Front 179

What are the timing requirements and consequences for not responding to a request for admission under 36(a)(3)?

Back 179

matter admitted unless, w/in 30 days of service, party serves on requesting party written answer or objection addressed to matter and signed by party or atty.Shorter/longer time may be stipulated under 29 or court order

Front 180

What is required by 36(a)(4) if a matter is not admitted?

Back 180

answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny---denial must fairly respond to substance of matter, when good faith requires qualification of answer or denial of only part of a matter, answer must specify what's admitted ---can assert lack of knowledge/info only if it states it has made reasonable inquiry and info it has is insufficient to enable admission/denial.

Front 181

What must an objection state under 36(a)(5)?

Back 181

grounds for so objecting must be stated----can't object just b/c request presents genuine issue for trial

Front 182

What can the requesting party do under 36(a)(6) if it feels the answer is insufficient?

Back 182

may move to determine sufficiency of an answer or objection---court must order answer served unless it finds objection justified---if court finds answer noncomplicit, may order either that matter is admitted or amended answer served----also may defer final decision until pretrial conference or specified time before trial. 37(a)(5) applies to award of expenses

Front 183

What is Rule 36(b)

Back 183

Effect of an Admission; Withdrawing or Amending It. matter admitted under 36 conclusively established unless court permits on motion for it to be withdrawn or amended---subject to 16(e) court can do this if it "would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits----admission under 36 not admission for any other purpose and cannot be used against party in any other proceeding

Front 184

What is governed by Rule 37?

Back 184

Failure to make Disclosures or to Cooperate in Discovery; Sanctions

Front 185

Under 37(a)(1), what options does a party have if the other party is not disclosing information it thinks is relevant?

Back 185

On notice to other parties and all affected persons, it can move for an order compelling disclosure or discovery

Front 186

What must be included in a motion to compel discovery or disclosure under 37(a)(1)?

Back 186

Certification that movant has in good faith conferred or so attempted w/ the party failing to make disclosure---basically that they tried to do it w/o court action

Front 187

What is 37(a)(2)?

Back 187

motion to compel must be made in the court where the action is pending, or court in which discovery will take place

Front 188

Under what 4 conditions may a party seeking discovery move for an order compelling an answer, designation, production, or inspection under 37(a)(3)(B)?

Back 188

i) if deponent fails to answer a question asked under Rule 30 or 31
ii) a corporation or other entity fails to make a designation under 30(b)(6) or 31(a)(4)
iii) party fails to answer interrogatory from Rule 33
iv) party fails to respond that inspection will be permitted---or fails to permit inspection---as requested under Rule 34

Front 189

Which portion of Rule 37 specifically covers motions to compel disclosure?

Back 189

37(a)(3)(A)----if party fails to make disclosure required by Rule 26(a) , any other party may move to compel disclosure and for appropriate sanctions

Front 190

What can the party taking an oral deposition do under 37(a)(3)(A)?

Back 190

party asking a question may complete or adjourn examination before moving for an order.

Front 191

How does 37(a) treat evasive or incomplete disclosure, answer, or response?

Back 191

as a failure to disclose/answer/respond

Front 192

What are the financial consequences to the party/deponent whose conduct necessitated the motion to compel if the motion is granted? (or if disclosure/discovery provided after filing)

Back 192

court must after giving opportunity to be heard require that party, the attorney, or both to pay movant's reasonable expenses incurred in making the motion, including atty's fees

Front 193

Under 37(a)(5)(A), court must not order payment of expenses after granting motion to compel when?

Back 193

(i) movant filed motion before attempting in good faith to obtain disclosure/discovery w/o court action
(ii) opposing party's nondisclosure, response, objection "substantially justified"
(iii)other circumstances make expenses award unjust

Front 194

What are the consequences of a denial of a motion to compel under 37(a)(5)(B)?

Back 194

Court may issue protective order under 26(c) and must, after giving chance to be heard, require movant/atty or both to pay party who opposed the motion its reasonable expenses incurred, including atty's fees.

Front 195

Under what circumstances must the court not order a payment of expenses, even when a motion to compel has been denied?

Back 195

37(a)(5)(B)----if motion was substantially justified or other circumstances make award of expenses unjust

Front 196

What are the financial consequences if the motion is denied in part and granted in part?

Back 196

37(a)(5)(C)----may issue any protective order authorized under 26(c) and may, after chance to be heard, apportion reasonable expenses for the motion

Front 197

What is covered by 37(b)?

Back 197

Failure to Comply with a Court Order

Front 198

What is the consequence under 37(b)(1) of failing to obey or answer a question in a deposition that has been ordered by the court?

Back 198

failure may be treated as contempt of court

Front 199

What orders may a court issue if a party or party's agent, or a witness under 30(b)(6) or 31(a)(4) fails to obey a discovery order?

Back 199

37(b)(2)(A)
(i) direct that matters embraced in the order or other facts be taken as established for purposes of the action
(ii) prohibiting disobedient party from supporting/opposing designated claims/defenses, or for so introducing into evidence
(iii) strike pleadings in whole or in part
(iv) staying further proceedings until order so obeyed
(v) dismiss action in whole or part
(vi) render default judgment against disobedient party
(vii) treat as contempt failure to obey any order except order to submit to physical or mental examination

Front 200

Unless the disobedient party shows it cannot produce the other person, what can the court do if a party fails to comply w/ 35(a) order to produce another person for examination?

Back 200

may issue any of the orders listed under 37(b)(2)(A)(i)-(vi)

Front 201

What are the financial consequences of failing to comply w/ a court order under 37(b)(2)(C)?

Back 201

court must order disobedient party, attorney advising party, or both to pay reasonable expenses, including fees, caused by the failure unless substantially justified or other circumstances make award of expenses unjust

Front 202

What does 37(c) concern?

Back 202

Failure to Disclose, to Supplement an Earlier Response, or to Admit

Front 203

Unless the failure was substantially justified or is harmless, what are the consequences if a party fails to provide info or identify a witness as required by 26(a) or (e)?

Back 203

Not allowed to use that info or witness to supply evidence on a motion, at hearing, or a trial

Front 204

In addition to or instead of sanction, the court on motion and after giving an opportunity to be heard can do what under 37(c)(1)?

Back 204

(A)order payment of reasonable expenses, including atty's fees, caused by the failure
(B) inform jury of party's failure
(C) impose other appropriate sanctions, including 37(b)(2)(A)'s previously listed orders

Front 205

If a party fails to admit what is requested under Rule 36 and the requesting party later proves the thing in question to be true, what may that party do?

Back 205

Under 37(c)(2), the party may move that the other party pay reasonable expenses, including fees, incurred in making that proof---court must order unless
(A) request held objectionable under 36(a)
(B) admission sought was of no substantial importance
(C) party failing to admit had reasonable ground to believe it might prevail on the matter
(D) other good reason existed for the failure to admit

Front 206

What failure to cooperate is governed by 37(d)?

Back 206

Party's Failure to Attend Its Own Deposition, Serve Answers to interrogatories, or Respond to a Request for Inspection

Front 207

Under what conditions may the court where the action is pending order sanctions under 37(d)(1)(A)?

Back 207

(i) a party or party's officer, director, or managing agent---or person designated under 30(b)(6) or 31(a)(4)---fails, after being served with proper notice, to appear for that person's deposition; or
(ii) party, after properly served under Rule 33 or request for inspection under Rule 34, fails to serve its answers, objections, or written response

Front 208

What must be included in a motion for sanctions for failing to answer or respond?

Back 208

37(d)(1)(B)----certification that movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action

Front 209

Is a failure described in 37(d)(1)(A) excused on the ground that the discovery sought was objectionable?

Back 209

37(d)(2) not unless the party failing to act has a pending motion for a protective order under Rule 26(c)

Front 210

Instead of or in addition to the sanctions provided by Rule 37(b)(2)(A)(i)-(vi), what must the court do under 37(d)(3)?

Back 210

that party failing to act, atty advising that party, or both pay reasonable expenses, including fees, caused by failure unless substantially justified or other circumstances make award of expenses unjust.

Front 211

What is provided by Rule 37(e)?

Back 211

Failure to Provide Electronically Stored Information----"absent exceptional circumstances", court may not impose sanctions under these rules on party for failing to provide electronically stored info lost as result of routine, good-faith operation of an electronic info system

Front 212

What is governed by Rule 37(f)?

Back 212

Failure to Participate in Framing a Discovery Plan----if party or attorney fails to do this in good faith as required by 26(f), court may, after opportunity to be heard, require that party or atty. to pay any other party reasonable expenses, including fees, caused by failure

Front 213

What is governed by Rule 57?

Back 213

Declaratory Judgment

Front 214

What is the procedure for Declaratory Judgment under Rule 57?

Back 214

Can be obtained under 28 U.S.C. Section 2201; Rules 38-39 govern demand for jury trial; the court may order speedy hearing of declaratory-judgment action

Front 215

Can declaratory judgment still be sought in situations where there exist other adequate remedies?

Back 215

YES; Rule 57---"the existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate".

Front 216

What is governed by Rule 65?

Back 216

Injunctions and Restraining Orders

Front 217

Under 65(a)(1), what is the only condition on which a court may issue a preliminary injunction?

Back 217

Only on notice to the adverse party

Front 218

Under 65(a)(2), does a court have to have a hearing on a motion for preliminary injunction before trial?

Back 218

NO. "Before or after beginning hearing on a motion for preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even if no consolidation, evidence received on motion and that would be admissible at trial becomes part of trial record and need not be repeated at trial. But the court must preserve any party's right to a jury trial"

Front 219

Under 65(b)(1), under what conditions may a court issue a temporary restraining order without written or oral notice to the adverse party/atty.?

Back 219

(A) specific facts in affidavit or verified complaint "clearly show" immediate and irreparable injury, loss, or damage will result to the movant before adverse party can be heard in opposition; AND
(B) movant atty. certifies in writing any efforts made to give notice and reasons why it should not be required

Front 220

When issued w/o notice under 65(b)(1), what must a temporary restraining order include?

Back 220

1) hour and date it was issued
2)Describe injury and state why irreparable
3) state why order issued w/o notice
4) promptly filed in clerks' office and entered in record

Front 221

When does a temporary restraining order expire?

Back 221

65(b)(2), at the time after entry set by court, not longer than 14 days, unless before that time the court "for good cause" extends for similar period or adverse party consents to extension. Reasons for extension must be entered in the record

Front 222

What affect does the grant of a TRO have on the preliminary-injunction hearing?

Back 222

65(b)(3), if order issued w/o notice, motion for preliminary injunction must be set for hearing at earliest possible time and take precedence over everything else except "older matters of the same character"

Front 223

If the obtaining party does not proceed w/ the motion at the preliminary injunction hearing, what happens under 65(b)(3)?

Back 223

the court must dissolve the order

Front 224

Does the adverse party have any recourse after a TRO has already been granted w/o notice?

Back 224

YES; 65(b)(4), on 2 days' notice to other party or shorter if set by court, it may appear and move to dissolve or move to modify the order.

Front 225

What obligations does the court have when the party against whom a TRO has been obtained moves to dissolve or modify?

Back 225

65(b)(4), court must hear and decide the motion "as promptly as justice requires"

Front 226

How do the rules account for error w/r/t to parties that may be wrongfully enjoined or restrained?

Back 226

65(c), the court is only allowed to issue preliminary injunction or TRO if movant gives security in an amount that court considers proper to pay the costs/damages sustained by any party found wrongfully enjoined/restrained---U.S., its officers, and its agencies not required to give security

Front 227

What are the general requirements w/r/t the contents of injunctions and restraining orders?

Back 227

65(d); must
(A) state reasons why it issued
(B) state terms specifically
(C) describe in reasonable detail---not by referring to complaint or other doc---act or acts restrained or required

Front 228

Who is bound by restraining orders and injunctions under Rule 65?

Back 228

65(d)(2), only binds if receive actual notice by personal service or otherwise
(A) the parties
(B) parties' officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert/participation w/ anyone described in 65(d)(2)(A) or (B)

Front 229

What laws regarding injunctions and restraining orders remain unaffected by Rule 65?

Back 229

65(e);
(1) any federal statute relating to TROs or preliminary injunctions in actions affecting employer and employee
(2) 28 U.S.C. 2361
(3) 28 U.S.C. 2284

Front 230

What is 65(f)

Back 230

Copyright Impoundment. This rule applies to copyright-impoundment proceedings.

Front 231

What is governed by Rule 4?

Back 231

Summons

Front 232

What must be contained in a summons?

Back 232

4(a)(1) Contents. A summons must:
(A) name court and the parties
(B) be directed to the defendant
(C) state name/address of plaintiff's attorney or--if unrepresented---of the plaintiff
(D) state the time within which the defendant must appear and defend;
(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint
(F) be signed by the clerk; and
(G) bear the court's seal

Front 233

Under what provision may the court permit for a summons to be amended?

Back 233

4(a)(2)

Front 234

What happens when a summons is addressed to multiple defendants?

Back 234

4(b) Issuance.
One must be issued for each defendant being served. Also, if properly completed, clerk must sign, seal, and issue to plaintiff for service on defendant

Front 235

What are the provisions for service of a summons under Rule 4?

Back 235

4(c) Service.
(1) In General....must be served w/ copy of complaint, Plaintiff responsible for having both served w/in time frame of 4(m) and must furnish copies to person who makes service
(2) only by a person at least 18 years old and not a party
(3) at plaintiff's request, court may order service made by a U.S. marshal or deputy marshal or person specially appointed by the court. Court must do this if plaintiff authorized under 28 U.S.C. section 1915 or as seamen under 1916

Front 236

What is rule 4(d)

Back 236

Waiving Service
Gives plaintiff option of notifying defendant of action and requesting that defendant waive service so long as the request meets certain qualifications (written, addressed to the individual defendant, etc.)
Must give at least 30 days to respond, 60 if out of U.S.

Front 237

4(d)(2)?

Back 237

Failure to Waive. If this happens w/o good cause, court must impose on defendant:
(A) expenses later incurred in making service; and
(B) reasonable expenses, including atty's. fees, of any motion required to collect those service expenses

Front 238

When does a defendant who timely returns a waiver need to serve an answer to the complaint?

Back 238

4(d)(3) w/in 60 days after the request was sent---90 if outside U.S.

Front 239

What is the result of filing a waiver under 4(d)(4)

Back 239

proof of service not required and rules apply as if summons and complaint had been served at time of filing the waiver

Front 240

What is 4(d)(5)?

Back 240

Jurisdiction and Venue Not Waived. Provides that waiving service does not waive any objection to personal jurisdiction or to venue.

Front 241

What are the ways in which an individual w/in the U.S. can be served?

Back 241

4(e)
(1)following state law for serving summons in an action brought in courts of general jurisdiction in state where district court located or where service is made; or
(2)any of these:
(A) deliver copy of summons/complaint to individual personally
(B) leaving copy of each at individual's dwelling or usual place of abode w/ someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process

Front 242

What does 4(h) cover?

Back 242

Serving a Corporation, Partnership, or Association

Front 243

What is 4(m)?

Back 243

Time Limit for Service. If defendant not served w/in 120 days after complaint filed, court, on motion or on its own after notice to plaintiff---must dismiss the action w/o prejudice against that defendant or order that service be made w/in specified time. But if plaintiff shows good cause for failure, court must extend time for service for appropriate period---provision not applicable to service in foreign countries

Front 244

How does one commence an action?

Back 244

Rule 3, civil action commenced by filing complaint w/ the court

Front 245

What is governed by Rule 20?

Back 245

Permissive Joinder of Parties

Front 246

Under what circumstances may plaintiffs be joined under rule 20?

Back 246

20(a)(1)If
(A) assert any right to relief jointly/severally/or in alternative w/r/t or "arising out of the same transaction" or series thereof; and
(B) any question of law or fact common to all plaintiffs will arise in the action

Front 247

What rule governs joinder of defendants & what is the rule?

Back 247

20(a)(2)--joined in one action if
(A) right to relief asserted agst. them J/S or in alternative w/r/t or "arising out of same transaction" or series thereof; and
(B) any question of law/fact common to all defendants will arise in the action

Front 248

What is rule 20(b)

Back 248

Protective measures--court may issue orders, including for separate trials, to protect agst. embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim agst. the party

Front 249

What is governed by Rule 9?

Back 249

Pleading of Special Matters

Front 250

What is 9(b)?

Back 250

Fraud or Misstake; Conditions of Mind.
Party has to state "w/ particularity" circumstances constituting fraud/mistake--but allows mindset (malice, intent, etc.) to be alleged generally

Front 251

Does one have to be specific when claiming that conditions precedent to an agreement have been met?

Back 251

NO---9(c) says can allege generally that this has been met--only have to be specific when denying that conditions precedent were met/occurred

Front 252

What does Rule 7 Concern?

Back 252

Pleadings Allowed; Form of Motions and Other Papers

Front 253

What are the pleadings allowed under 7(a)?

Back 253

(1)complaint
(2)answer to complaint
(3)answer to counterclaim so designated (required)
(4) answer to a crossclaim
(5) third-party complaint
(6) answer to 3d party complaint
(7) if court ordered, reply to an answer

Front 254

How does one make a request for a court order under the Federal Rules?

Back 254

7(b) motions and other papers
(1)--must be made by motion and motion has to be
(A) in writing unless made during hearing/trial
(B) state "w/ particularity" grounds for seeking order; AND
(C) state relief sought

Front 255

What does Rule 16 govern?

Back 255

Pretrial Conferences; Scheduling; Management

Front 256

What are the basic purposes of a pretrial conference under 16(a)?

Back 256

expediting disposition of the action;
Early and continuing control so case managed efficiently
Discourage wasteful pre-trial activities
Improve Quality of trial through thorough prep
Facilitate Settlement

Front 257

Unless exempted by local rule, when does a judge have to issue a scheduling order?

Back 257

16(b)(1)
(A) after getting 26(f) report OR
(B) consult w/ parties' attys. & any unrepresented parties

Front 258

What are the time constraints for issuing a scheduling order?

Back 258

16(b)(2)--w/in 120 days after any defendant served w/ complaint, or 90 days after any defendant has appeared

Front 259

What MUST a scheduling order do/contain?

Back 259

16(b)(3)(A)--limit time to join other parties, amend pldgs, complete discovery, file motions

Front 260

What MAY a scheduling order do/contain?

Back 260

16(3)(B)
(i)modify timing of disclosures under 26(a) and 26(e)(1)
(ii) modify extent of discovery
(iii) provide for disclosure/discovery of electronically stored info
(iv) include agreements parties reach for asserting claims of privilege/protection as work product after info produced
(v) set dates for pretrial conferences and for trial
(vi) "other appropriate matters"

Front 261

Under what circumstance may a schedule be modified?

Back 261

16(b)(4)--only for good cause and w/ judge's consent

Front 262

Is attendance at pretrial conference mandatory?

Back 262

Maybe--16(c)(1)--authorize at least one atty. to make stipulations/admissions about all matters reasonably anticipated for discussion at pretrial conference
court may require be present/reasonably available by other means to consider settlement

Front 263

What may the court consider/take action on at a pretrial conference?

Back 263

16(c)(2)
(A) eliminating frivolous claims/defs. & simplifying issues
(B) amending pleadings
(C) avoid unnecessary proof by getting admits/stips--ruling in advance on admissibility
(D) avoid unnecessary proof/cumulative evidence---limit use of testimony under 702
(E) summary judgment timing/appropriateness
(F) controlling/scheduling discovery
(G) ID witnesses/docs, schedule filing/exchg. of pretrial briefs, set confs./trial dates
(H) refer matters to magistrate
(I) settle case
(J) determine form/content of pretrial order
(K) dispose of pending motions
(L) adopting special procedures for managing potentially difficult actions--complex issues, multiple parties, difficult questions, unusual proof problems
(M)order separate trial under 42(b)
(N) order present of evidence early in trial on manageable issue that might be basis for jnov
(O) reasonable time limit on evidence presentation
(P) other ways just/speedy/inexpensive disposition of action

Front 264

What, unless otherwise modified, controls course of action after pretrial conference?

Back 264

Pretrial order under 16(d)

Front 265

Once final pretrial conference has happened, and court has issued the final pretrial order, can the court modify it again?

Back 265

16(e) only to prevent manifest injustice

Front 266

Under what conditions might an atty. be sanctioned w/in Rule 16?

Back 266

16(f)---
(A) fails to appear at scheduling or other pretrial conference
(B) substantially unprepared to participate--or not in good faith
(C) fails to obey scheduling/pretrial order

Front 267

Under what conditions does a counterclaim become compulsory?

Back 267

Rule 13(a) if at the time of service the claim
(A) arises from transaction/occurrence subject matter of opposing party's claim
(B)does not require adding party over whom court can't acquire JX

Front 268

What are the two exceptions to the compulsory counterclaim rule?

Back 268

13(a)(2)--don't have to state claim if
(A) claim was subj. of other pending action when action in question began
(B) opposing party sued on claim by attachment/some process that failed to to est. PJX over pleader, and pleader does not assert any counterclaim under this rule

Front 269

May a counterclaim request a different type or different amount of relief from the initial recovery sought in the claim?

Back 269

YES, 13(c)--counterclaim need not diminish or defeat recovery sought by opposing party, may request relief that exceeds in amount/differs in kind from relief sought by opposing party

Front 270

Under what conditions may a party state a crossclaim?

Back 270

13(g), one party against a co-party if claim
a) arises from transaction/occurrence subject matter of original action or of a counterclaim
b) if claim relates to any property subject to the original action

Front 271

May a crossclaim under 13(g) include a claim for derivative liability?

Back 271

YES--last sentence of 13(g)

Front 272

What is rule 18(a)?

Back 272

Authorizes any party asserting a claim/counterclaim/cross-claim/3d party claim to join as independent or alternative, as many claims as it has against opposing party