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95 Cards in this Set

  • Front
  • Back
public policy behind the interpretation of the FRCP?
"They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and
proceeding." Rule 1.
how do you commence a civil action?
by filing a complaint with the court. Rule 2.
how is service done?
by giving the defendant(s) a summons and a copy of the complaint. "Actual notice" alone is not enough.
Contents: A summons must (7):
1) name the court and the parties
2) be directed to the D
3) state the name and address of the P's atty - or if unrepresented - of the P him/herself
4) state the time within which the D must appear and defend;
5) notify the D that a failure to appear and defend will result in a default judgment against the D for the relief demanded in the complaint
6) by signed by the clerk
7) bear the court's seal
who may serve process?
1) Any person who is at least 18 years old and not a party
2) by a U.S. Marshall or other person appointed by the court (this is done by court order upon the P's request - and the court must order if the P is proceeding in forma pauperis or as a seaman)
7 requirements for requesting a waiver of formal service
The notice must:
1) be in writing and addressed to the D (individual or corporate agent)
2) name the court where the complaint is filed
3) be accompanied by a copy of the complaint and 2 copies of the waiver form, and a prepaid means for returning the form
4) using the text from Form 5, inform the D of the consequences of waving and not waiving service
5) state the date when the request is sent
6) give the D a reasonable time of at least 30 days after the request was sent (60 if the D is outside of the US), to return the waiver.
7) be sent by first-class mail or other reliable means.
effect of a failure to waive formal service
If the D fails, without good cause, to sign and return the waiver the court may impose on the D:
1) the expenses later incurred in making the service
2) reasonable expenses, including atty fees, of any motion required to collect those service expenses.
time to answer complaint after wavier of formal service?
60 days after the waiver was SENT (or 90 days for a D outside of the US)
General effect of filing a waiver
Proof of service is not required and the Rules apply as if a summons and complaint had been served at the time of filing the waiver.
(waiver of service) Effect on jurisdiction and venue
Waiver of service of a summons does not waive any objection to personal jurisdiction or venue.
5 ways to serve an individual
1) following state law for serving summons where the district court is located; or
2) personal delivery of the summons and complaint; or
3) leaving a copy of summons and complaint at the individual's home with someone of suitable age and discretion who resides there; or
4) delivering a copy to an agent authorized by appointment or by law to receive service of process.
5) by waiver of service
3 ways to serve a corporation
1) By delivering summons and complaint to an officer or agent authorized by law or appointment to receive service on behalf of the D
2) By waiver of service
3) Pursuant to PR law
Service upon the United States
1) By serving the U.S. Attorney in the district or delivering summons and complaint by certified mail to the civil process clerk at the U.S. Attorney's Office; AND
2) By sending summons and complaint via certified mail to the Attorney General in Washington, DC.
Service upon a U.S. government corporation or agency or an officer sued in his/her OFFICIAL capacity
1) All the steps taken for the U.S. AND
2) Sending summons and complaint via certified mail to the agency of officer.
Service upon a U.S. government officer or employee in their PERSONAL capacity
1) All the steps taken for the U.S. AND
2) Serving the official in any of the ways for serving an individual
Service on State or local governments (2 ways)
1) By service summons and complaint on the chief executive of that government entity, OR
2) Pursuant to law of PR on serving a government agency
Service on a foreign individual outside the U.S. (4 ways)
1) By any internationally agreed means reasonably calculated to give notice
2) By law of the foreign country
3) Through letter rogatory, which involves the court asking foreign authorities to effect service
4) Unless prohibited by that country's laws, service may also be done by (a) personal service OR (b) by mail requiring signature for receipt, dispatched by clerk of court
serving a minor or incompetent person
Must be served by following state law for serving process or such a D in an action brought in the courts of general jurisdiction
Service on a foreign government
Must be served in accordance with 28 USC 1608
how to prove service of process was made (when made within the US)
Unless service is waived, proof of service must be made to the court by the server's affidavit.
how to prove service of process was made (outside of the US)
1) as provided the applicable treaty or convention, or
2) by receipt signed by the addressee or by other evidence satisfying the court that delivery was made
how many days does the P have to serve process?
120 days from the filing of the complaint
What happens if the P does not serve the D within the given time limit?
The court - on motion on on its own after notice to the P - MUST dismiss the action WITHOUT PREJUDICE against the D.

If the P shows GOOD CAUSE (e.g., sudden illness, natural catastrophe, or evasion of service of process), the court must extend the time for service for an appropriate period.

This subdivision does not apply to service in a foreign country.
How to provide service of a paper (motions, pleadings, etc.)? (6 ways)
1) handing it to the person;
2) leaving it at the person's office with a clerk, other person in charge, or in a conspicuous place in the office;
3) mailing it to the person's last known address (service is complete upon mailing)
4) leaving it with the court clerk if the person has no known address
5) sending it by electronic means if the person consented in writing (service effective upon transmission, unless the sender learns that it did not reach the person to be served)
6) any other means by which the person consented in writing.
Redaction may be made to the following information in a document:
1) SSN numbers (can use last 4 digits)
2) Tax-payer ID numbers (can use last 4 digits)
3) Person's DOB (just the year)
4) Minor's name (just initials)
5) Financial account number (only last four digits)

Court may order the filing of unredacted documents under seal.
A pleading, written motion or other paper must by signed by the attorney or pro se litigant and contain the following contact information (3 things):
1) signer's address
2) email address
3) telephone number
The signature on a pleading, written motion or other paper certifies that: (4)
to the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances:
1) it is not being presented for any improper purpose
2) the claims, defenses, and other legal contentions are warranted by existing law or by non-frivolous argument for extending, modifying or reversing existing law;
3) the factual contentions have evidentiary support, or will likely have evidentiary support
4) the denials of factual contentions are warranted on the evidence
TIME PERIOD: A defendant must serve an answer:
1) within 21 days after being served with summons and complaint; or
2) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent (or 90 days if the D is outside the US)
3) in the case of a counterclaim or crossclaim, within 21 says after being served with the pleading that states the counter- or crossclaim.
4) if a reply is ordered by the court, the party being ordered to reply has 21 days.
TIME PERIOD: When sued, the U.S. govt, its agencies, officers or employees have ___ days to answer
60 days after service on the U.S. Attorney.

When a gov't EE is sued in their personal capacity, they have 60 days to answer after service on the officer or on the U.S. Atty, whichever is later.
Rule 12(b) defenses:
(1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party an indispensable party under Rule 19.
When a Rule 12(b) Motion to Dismiss MUST be filed:
Before a responsive pleading (the answer) - except for lack of subject matter jurisdiction, which may be raised at any time.
What is a motion for judgment on the pleadings?
Similar to a 12(b)(6) motion - one party moves for the court to issue judgment just on the pleadings.
Which motions are treated as motions for SMJ and when?
Rule 12(b)(6) motions and 12(c) motions are treated as motions for SMJ when the party presents matters outside of the pleadings to the court and the court does not exclude them. The motion is then treated a SMJ and the parties are given a reasonable opportunity to present all the material that is pertinent to the motion.
When to use a motion for a more definite statement?
When another party's pleadings are so vague or ambiguous that the party cannot reasonably prepare a response.
When to use a motion to strike?
When a pleading presents an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
Which Rule 12 motions must be brought together or risk waiver? (and exception)
-- motion to dismiss
-- motion for judgment on the pleadings
-- motion for a more definite statement
-- motion to strike pleadings

Exception: if the defense or objection was not available at the time the previous Rule 12 motion was made
Which Rule 12 defenses are waived if not raised in a motion or in the answer?
1) lack of personal jurisdiction
2) improper venue
3) insufficiency of process (i.e. error in the summons)
4) insufficiency of service (i.e. error in the actual service)
Tolling effect of Rule 12 motions:
File a Rule 12 motion tolls the time for serving a responsive pleading (but only as to the Ds that filed the motion). EXCEPT: motion to strike.

If the court denies the motion, the D has 14 days to file their answer.

Or if the court grants a motion for a more definite statement, the D has 14 days after the more definite statement is served.
Time period for complying with a court order for a more definite statement
14 days after notice of the court order (or any time the court sets).
what is a compulsory counterclaim? effect if not raised?
A claim that arises out of the same transaction or occurrence as the Plaintiff's original claim AND does not require adding another party over whim the court cannot acquire Jx.

Claim may be brought under court's supplemental Jx (no independent basis for Jx is required).

If the D does not raise a compulsory counterclaim in the ANSWER, it is waived.
what is a permissive counterclaim?
A claim that does NOT arise out of the same transaction or occurrence as the P's original claim.

A D may bring a permissive counterclaim if there is an independent basis for federal jurisdiction over that claim.
what is a crossclaim and when may it be brought?
A crossclaim is a claim between co-parties (e.g. D v. D, or P v. P).

A party may bring a crossclaim against a co-party if the claim ARISES OUT OF THE SAME TRANSACTION or occurrence that is the subject of the original action or of a counterclaim.
effect of dismissal (or separation) of original action on crossclaims and/or counterclaims
If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.
what is impleading and when can it be done?
When a D brings a claim against a non-party (third party). Can also be done by P when claims are asserted against it by a co-party or a D.

It can be done without a motion within 14 days of serving the original answer, or if after 14 days, y obtaining leave from the court.
rights of the 3rd party defendant?
Has all the rights that the original D had. It can bring counterclaims against the original P, raise defenses the original D had against the original P, bring crossclaims, and even bring its own third party claims against non-parties.

To keep things under control, any party can move to strike a 3rd party claim or move to sever the claims to be tried separately.
what is an interpleader?
When a P names as Ds parties who may have a claim against it. (E.g., insurance carrier sues the two parties for the court to resolve which of the two the insurance premium goes to).
what is an intervention?
When a person wants to join an ongoing suit, either as a P or as a D.
intervention as of right (2 ways)
ON A TIMELY MOTION, the court MUST permit anyone to intervene who:
1) is given an unconditional right to intervene by a federal statute; or
2) (a) claims an interest relating to the property or transaction that is the subject of the action, (b) is so situated that disposing of the case may threaten the movant's ability to protect its interests, (c) the existing parties are not adequately representing its interests.
permissive intervention
On a timely motion, the court MAY permit anyone to intervene who:
1) is given a conditional right to intervene by federal statute; or
2) has a claims or defenses that share with the main action a common question of law or fact.
When a party may amend its pleadings:
Once as of right within:
a) 21 days after serving it, or
b) 21 days after service of a responsive pleading or a Rule 12 motion, whichever is earlier.

After these time periods, a party may amend only with the opposing party's written consent or the court's leave.
Time period for answering the amended pleading:
1) within the time remaining to respond to the original pleading, OR
2) within 14 days after service of the amended pleading, whichever is later.
When does the amendment to the pleading "relate back" to the original? (3 ways)
1) when permitted by the statute of limitations of the applicable law, or
2) when the new claim or defense arises out of the same transaction as in the original claim, or
3) If the amendment adds a new party, (a) when the new claim arises out of the same transaction AND (b) when the new party received notice of the action and the defense would not be prejudiced and knew or should have known that, but for a mistake, he would have been a D in the original action.
Requirements for permissive joinder:
More than one P (or more than one D) may be joined in a single action if:
1) the claims (or defenses) arise out of the same transaction or occurrence, AND
2) there are common questions of law and fact.
When is a party a required/feasible party?
1) in its absence, complete relief cannot be afforded among the existing parties; or
2) the new party claims an interest in the subject matter of the case and resolution of the case in its absence may threaten the new party's ability to protect its interests OR leave a current party subject to a risk of double or inconsistent obligations.
Factors the court considers to decide whether to proceed with the existing parties or dismiss the case:
1) extent to which a judgment rendered in the person's absence might prejudice that person or existing parties
2) extent to which any prejudice could be lessened or avoided by (a) protective provisions in the judgment, (b) shaping relief; or (c) other measures.
3) whether a judgment in the person's absence would be adequate, and
4) whether the P would have an adequate remedy if the action were dismissed for nonjoinder.
Prerequisites for certifying a class action:
1) numerosity - class is so numerous that joinder of all members is impracticable
2) commonality - there are questions of law or fact common to the class
3) typicality - the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
4) adequate representation - the representative parties will fairly and adequately protect the interests of the class
The three categories of class actions:
1) prosecution of the separate actions would create risk of (a) inconsistent adjudication which would establish incompatible standards of conduct for the D, OR (b) adjudications that would dispose of or impair the interests of other would be class-members who are not parties;

2) D has acted or refused to act on grounds that apply generally to the class so that final INJUNCTIVE or declaratory relief is appropriate respecting the class as a whole; or

3) Common Qs of law and fact predominate, such that class action is the best way to resolve the controversy.
CLASS ACTIONS: Factors relevant to finding that the action is a 23(b)(3) class action:
1) Interest of individual members in controlling the prosecution of the case; AND
2) Extent and nature of any litigation already begun by or against class members; AND
3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum, AND
4) the likely difficulties in managing a class action
TIME PERIOD for appealing an order granting or denying class-action certification.
14 days after the order is entered
what is a shareholder derivative suit?
Derivative suits permit a shareholder to bring an action in the name of the corporation against parties allegedly causing harm to the corporation. If the directors, officers, or employees of the corporation are not willing to file an action, a shareholder may first petition them to proceed. If such petition fails, the shareholder may take it upon himself to bring an action on behalf of the corporation. Any proceeds of a successful action are awarded to the corporation and not to the individual shareholders that initiate the action.
pleading requirements for a shareholder derivative suit?
Complaint must:
1) be verified (sworn) and notarized (USA style)
2) allege that the P was a shareholder or member at the time of the transaction complained of
3) allege that the action is not a collusive one to confer Jx that the court would otherwise lack; and
4) state with particularity (a) any effort by the P to obtain the desired action from the directors and (b) the reasons for obtaining the action or not making the effort.
what happens when one of the parties dies or becomes incompetent? (and TIME PERIOD)
If the claim is not extinguished with the person's death:
1) have to file a Notice of Suspicion of Death
2) File a motion for substitution of party within 90 days after service of the statement noting the death.

If a motion is not submitted, the case must be dismissed.
Mandatory initial disclosures: (5 things)
1) name, phone number, and address of any person likely to have discoverable information that the party may use in the case, and
2) the nature of the information this person may have, and
3) a copy or description of all documents, electronically stored information, or other evidence in the disclosing party's control that it might use in the case to support its claims or defenses; and
4) a computation of any damages claimed, along with evidence on which the computation is based, and
5) any INSURANCE agreement which might make an insurance company liable
Cases exempt from automatic disclosures (8)
1) actions for review of an admin record
2) forfeiture cases
3) post-conviction collateral attacks of a criminal sentence (habeas corpus)
4) prisoner's pro se claims
5) action to enforce or quash an adminstrative summons or subpoena
6) action be US to recover benefits or collect on student loans
7) proceedings ancillary to a proceeding in another court; and
8) action to enforce an arbitration award
TIME PERIOD for automatic disclosures:
14 days after the parties' Rule 26(f) conference (discovery conference), unless a different time is set by stipulation or court order
TIME PERIOD for automatic disclosures for a party was joined or served after the discovery conference
30 days after being served or joined
Pretrial Disclosures: The following information must be disclosed before trial:
1) the name, and if not previously provided, the address and telephone number of each witness;
2) the designation of those witnesses whose testimony the party expects to present by deposition, and
3) identification of each document or exhibit, including summaries of other evidence.
TIME PERIOD: Pretrial disclosures and objections
disclosures: 30 days before trial
objections: 14 days after the disclosures are made, unless the court sets a different time
scope of discovery: discoverable materials include:
(a) any matter that is not privileged that is also (b) relevant to the claim.

The evidence need not be admissible to be discoverable, as long as it is REASONABLY CALCULATED TO LEAD to admissible evidence.
When court can limit the scope of discovery otherwise allowed:
a) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive
b) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action, or
c) the burden or expenses of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, and the importance of the discovery in resolving issues.
When can a party can seek a protective order?
A party from whom discovery is sought may move for a protective order. The motion must include a certification that the movant has in good faith confered or attempted to confer with other affected parties in an effort to resolve the dispute without court action.

The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or under burden or expense.
What must an expert witness's disclosure report contain? (6)
1) complete statement of all opinions the witness will express and the basis and reasons for them;
2) the facts or data considered by the witness in forming them;
3) any exhibits that will be used
4) the witness's qualifications, including a list of all publications authored in the previous 10 years;
5) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
6) a statement of the compensation to be paid for the study and testimony in the case.
TIME PERIOD for disclosure of expert testimony and for rebutting opposing party's expert testimony
90 days before the date set for trial, absent stipulation or a court order.

to contradict or rebut evidence on the same subject matter, within 30 days after the other party's disclosure.
A party may seek to discover the opposing party's work product if: (3 requirements and 1 exception)
1) the documents and tangible things prepared in anticipation of litigation are otherwise discoverable;
2) the party shows a substantial need for the materials to prepare its case; and
3) the party is unable without undue hardship to obtain the substantial equivalent of the materials elsewhere

EXCEPTION: An atty's mention impressions, opinions, theories and conclusions are NOT discoverable under this rule (protected by Word Product Rule).
what is the purpose of a Rule 26(f) discovery conference?
1) consider the claims and discuss settlement, and
2) arrange for mandatory initial disclosures of discovery as required in Rule 26(a), and
3) develop a discovery plan.
When must the attys celebrate the discovery conference?
"As soon as practicable" but at least 21 days before a scheduling conference is to be held with the court or a scheduling order is due.

A party MAY NOT seek discovery until the attys have this conference.
TIME PERIOD for submitting a written discovery plan to the court?
14 days after the discovery conference
The discovery plan must state the parties' views and proposals on the following 6 items:
1) timing of 26(a) mandatory disclosures
2) the subjects for which discovery will be needed, when discovery should be completed, and whether discovery should be conducted in phases
3) any issues about disclosure or discovery of electronically stored information discovery, including in which form the info will be produced
4) any issues about claims of privilege
5) what changes should be made, if any, in the limitations on discovery imposed under the rules or local rules
6) any protective or scheduling orders the court should issue
5 Requirements for a petition for deposition to perpetuate testimony:
Petition must show:
1) the why --> that the petitioner expects to be a party to an action but cannot presently bring it or cause it to be brought;
2) the what --> the subject matter of the expected action and the petitioner's interest
3) the what --> the facts the petition wants to establish
4) the who --> the names or description of the persons whom the petition expects to be adverse parties and their addresses, so far as they are known; and
5) the who --> the name, address and expected substance of the testimony of each deponent.
TIME PERIOD for serving the expected adverse parties with copy of the petition for deposition to perpetuate testimony
21 days before the hearing date
who make take a deposition within the US?
1) a person authorized by the laws of the US or the state to administer oaths; or
2) a person authorized by the court
who make take a deposition in a foreign country?
persons authorized:
1) pursuant to a treaty
2) under a letter of request "letter rogatory"
3) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or
4) by a person designated by the court to administer any necessary oath and take testimony.
who MAY NOT take a deposition:
Any person who:
1) is any party's relative, employee, or attorney;
2) who is related to or employed by any party's attorney; or
3) who is financially interested in the action.
When must a party obtain leave of the court to take a depo? (4)
The parties have not stipulated to the depo and
1) the depo would result in more than 10 depos being taken
2) the deponent has already been deposed in the case, or
3) the party seeks to take the depo before the Rule 26(k) discovery conference (when the deponent is expected to leave the US and/or be unavailable for examination after that time)
4) the deponent is confined in prison
The notice of a depo to an individual must: (3)
1) give reasonable time before the depo;
2) state the time and place; and
3) state name and address of deponent.

If the party seeks the production of documents during the depo, a subpoena duces tecum should be included.
Notice of a depo to a corporation or agency must
describe the material sought. Then the corporation designates who shall appear to the depo.
During a depo, an atty can instruct a deponent not to answer ONLY under the following circumstances:
1) to protect a privilege,
2) to enforce a court-imposed limit, or
3) to move under 30(d)(3) to stop the depo on the grounds that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.
depositions are limited to the following length:
1 day of 7 hours. The court must allow for additional time if needed to fairly examine the deponent or if th deponent, another person, or nay other circumstances impedes or delays the examination.
TIME PERIOD - time the deponent is allowed to review the transcript and make changes in form or substance
30 days after being notified by the officer that the transcript or recording is available
maximum number of questions in an interrogatory
25 questions - leave may be granted for more questions
TIME PERIOD for answering an interrogatory
30 days. A shorter or longer time period may be stipulated by the parties or when ordered by the court.
TIME PERIOD for responding to a request for documents (or inspection of property) under Rule 34
30 days, or a shorter or longer period stipulated by the parties or ordered by the court.
TIME PERIOD for responding to a request for admission
30 days, or a shorter or longer period stipulated by the parties or ordered by the court.
TIME PERIOD for filing an objection to a subpoena
The earlier of the time specified for compliance or 14 days after the subpoena is served
TIME PERIOD for court to issue scheduling order for pretrial conference
As soon as practicable, but in any event, the earlier of 120 days after the D has been served with the complaint, or 90 days after the D has appeared.