CIVIL PROCEDURE TOOLBOX

TOOL              AUTHORITY                                    APPLICATION/INTERPRETATION
Commencing        Rule 2 Combines equitable and legal actions into one cause of action. Civil action.
The Action        Rule 3 Commencing an Action
                   Lawsuit begins with complaint being filed with the court
                  AFTER COMPLAINT IS FILED
                  Rule 4 Summons
                   Service must be made upon defendant within 120 days of filing of complaint, unless good cause is shown for not doing so
                  Claim by Plaintiff
                  Rule 7 Pleadings Allowed
                  pleadings take the form of a complaint and an answer
                  May include cross- and counter-claims that also involve answers as well
Time is of the    Rule 6(a) Computing Time Rule
Essence           Exclude the day of the act, motion, or order that begins the period
                  Exclude weekends and holidays when the period is less than 11 days.
                  Include the last day.
                  Rule 6(b) Extending Time Rule
                  For good cause the court may extend time with or without motion before the original time expires or on motion after the time has
                  Exceptions: time must not be extended under Rules; 50(b) Renewing JML; 50(d) Conditional Motion for a New Trial; 59 Motion
                  for a New Trial/Judgment; 60(b) Relief from Judgment Order. Except as those rules allow.
How to Make       Conley v. Gibson (1957) (notice                Rule 8(a) Claims for Relief
the Claim         pleading)                                     (1) Short plain statement of the grounds of court’s jurisdiction
Rule 8(a)         Gordon v. Green (Gordon Complaint             Federal Statute establishing subject matter jurisdiction (1331, 1332)
                  Shorten) (1979) (A short and plain            (2) Short & plain stmt of claim showing pleader is entitled to relief
                  statement required in Rule 8 is a rule that   Claim involving facts or good faith beliefs about the potential for discovery to uncover
                  must be followed)                             necessary facts sufficient to show entitlement to relief
                  Bell Atlantic v. Twombly (Bell Atlantic              Rule 15 will typically be invoked if the claim is insufficient for relief
                  Antitrust Panic) (2007) (complaint                   Subject to reasonable inquiry requirements of Rule 11
                  under antitrust law must allege facts         (3) Demand for judgment for relief – what do you want?
                  sufficient to infer conspiracy                Rule 8(d)
                                                                       Multiple claims (or defenses) can be made alternately or hypothetically
                                                                       Claims may stated regardless of consistency
Pleading          Stradford v. Zurich Insurance Co.             Rule 9(b) Fraud or Mistake
Special Matters   (Stradford Fraud Claim Can’t be               In a general sense special pleading rules requiring particularity for fraud cases.
Rule 9            Heard) (2002) (fraud pleading require         Rule 9(g) Special Damages
                  hire particularity)                           For example in a breach of contract case there would be expectation damages however, if
                  Tellabs v. Makor Issues & Rights Ltd.         the party against whom fraud is alleged never intended to perform there can be no
                  (2007) (in order for fraud complaint to       expectation damages and so punitive damages are made available by the Rules.
                  survive inference of scienter must be
                  cogent and compelling)
Form of           (A): Caption; Names of Parties
Pleadings         EVERY pleading must have caption with
Rule 10                 Name of court
                        Title of action (including name of parties in complaint)
                        File number
                        And type of pleading -7(a)
                  (B): Paragraphs; Separate Statements
                  Required to divide ideas/claims into separate, numbered statements (paragraphs)
                  Conjunctive Pleading -when too many ideas/claims are placed in one paragraph
                  Note: this requirement is rarely enforced
                  (C): Adoption by Reference; Exhibits
Ethical           Walker v. Norwest Corp. (Walker               Rule 11 Ethical Considerations in Claims
Considerations    Diversity Mocker) (1997) (sanctioning         Enforces honesty and integrity in the judicial process as regards pleading
Rule 11           attorney for failing to allege complete       (a) Motion must be signed and inclusive of add’l personal information
                  diversity)                                    (b) Signature indicates that the info contained was obtained through reasonable inquiry
                  Christian v. Mattel (2002) (holding that a          (1) not for improper purpose
                  court may not impose Rule 11 sanctions              (2) claims warranted by existing law or by nonfrivolous argument for extension,
                  for misconduct not involving signed court              modification, reversal or establishment of new law
                  submissions. Court has inherent power to                   *represented party will not be sanctioned for this violation
                  punish bad faith courtroom conduct and              (3) evidentiary support for factual support or are likely to do so after discovery
                  power to punish discovery misconduct                (4) denials are warranted or reasonably based on lack of information or belief
                  under Rule 26g)                               (c) If (b) has been violated attorney, client, and law firm can be subject to sanction
                                                                      (1)-(2): Safe harbor provision: serve motion pointing out the problem and allow

                                                                   amendment within 21 days. (some courts do not apply this to the complaint)
Answer by the                                                 Rule 12 Answer
Defendant                                                      20 days to respond, unless service of process is waived, then at least 60 days
Rule 12                                                        Time can be extended by leave of court via Rule 6
                                                              There are three possible responses by the Defendant when served with a complaint:
                                                              1) Ignore it – Default Judgment – Collateral attack
                                                              2) Pre-trial Motions via Rule 12
                                                              3) Answer via Rule 8
Pre-Trial       Conley v. Gibson (1957) (in granting a        Rule 12 Pre-Trial Motions
Motions         Rule 12(b)(6) motion the court essentially      Can be filed along with answer, but this buys time for preparation and forces the
Rule 12         says “even if everything you allege is            other party to spend more money in the process
                true, the law affords you no relief)            Rule 12 Defense and Objections
                Haddle v. Garrison (1998) (in ruling on a          (b): Defenses
                12(b)(6) motion for failure to state a                  (1): lack of SMJ
                claim the court must take all facts alleged             (2): lack of PJ
                in plaintiff’s complaint to be true)                    (3): improper venue
                                                                        (4): insufficiency of process
                                                                        (5): insufficiency of service of process
                                                                        (6): failure to state a claim upon which relief can be granted
                                                                        (7): failure to join a party needed for just adjudication under Rule 19
                                                                    (c) Motion for Judgment on the Pleadings: halfway house between 12b(6) and
                                                                        summary judgment. File when further development of facts will not assist a
                                                                        decision b/c assuming all facts in pleading are true the party still loses. Must
                                                                        be after pleading but early enough not to delay trial. Affirmative Defenses
                                                                        cannot be ruled on as a matter of law.
                                                                   (d): Result of Presenting Matters Outside the Pleadings
                                                                        Any motion on 12(b)(6) or 12(c) grounds that includes add’l evidence shall be
                                                                        treated as a motion for summary judgment via Rule 56
                                                                   (e): Motion for More Definite Statement
                                                                           If no response to court order on this motion, the pleading may be stricken
                                                                           Rarely used, rarely granted. If claim is really too vague use 12(b)(6).
                                                                            Otherwise preciseness will come in discovery.
                                                                   (f): Motion to Strike is raised for the purpose of striking any insufficient defense
                                                                           In other words: a pre-trial motion to a defendant’s answer
                                                                   (g): Joining Motions All pre-trial motions can be consolidated, but any left out in a
                                                                      motion or answer will no longer be available, except for those in (h)(2)
                                                                   (h)(2): Defenses of failure to state a claim (6); failure to join a party (7); and lack of
                                                                      subject matter jurisdiction (1) can be raised in any pleading, motion for judgment
                                                                      on pleading, or at trial on merits
The Answer      King Vision Pay Per View, Ltd. v. J.C.        Answer Rule 8
Denials         Dimitri’s Restaurant Inc. (N.D. Ill.            Defendant’s answer is governed by restrictions in Rule 8
Rule 8(b)       1998) (imposing Rule 11 sanctions in            Defendant may admit all or part of an allegation, deny an allegation and/or assert
Defenses        response to a general denial)                     an affirmative defense.
Rule 8(c)       Layman v. SW Bell (Mo. App 1977)                    o Denials place burden on plaintiff, defenses on the defendant
                (affirmative defense is waived if not         Rule 8(b) Denials
                raised in the answer)                         Denials must be made in good faith and must fairly meet the allegations in the complaint
                Zielinski v. Philadelphia Piers (Zielinski      General denials may invoke the wrath of Rule 11
                Rule 8(b) is Silly) (1956) (a general               o Plaintiff must be on notice of what they have to prepare for – no undue surprise
                denial will not be valid if any of the                  or hardship on plaintiff
                allegations being denied have been              Allows plaintiff to state lack of sufficient information to form a belief which acts as a
                admitted by both parties as true)                 denial
                                                                Rule 8(b)(6): Failure to deny a constitutes admission to all allegations except
                                                                  damages if responsive pleading is required. Damages must be proven at default
                                                                  hearing. If a responsive pleading is not required the allegation will be considered
                                                              Rule 8(c) Affirmative Defenses
                                                                Defenses not raised in answer may not be available at trial
                                                                Mistakenly identified defenses may be given proper designation by court if justice so
                                                              Rule 8(d) Alternate Statements and Inconsistency Allowed
Burden of       Jones v. Block (Jones No Burden to            Rules 8(c) and 12(b) are classified as defenses, therefore the defendant carries the
Pleading        throw Exhaustion Stones) (2007)               burden of pleading.
                (holding that in a prisoner litigation suit   Court decides: for other issues, the court must determine who bears the burden of
                the defendant is in a better position to      pleading. Although there is no mechanical test used in these cases, courts consider the
                carry the burden of pleading regarding        following factors:
                exhaustion of administrative remedies.              1) Whether the facts necessary to establish the defense are more likely to be
                Classifies exhaustion as an affirmative               known by one party than the other;

               defense)                                           2) If the underlying claim arises under a statute, whether the language of the
                                                                    statute treats the issue as part of the claim or as an exception; and
                                                                  3) Whether analogous issues are usually treated as elements of a claim or defenses.
Amended and    Foman v. Davis (1962) (under Rule 15(a)       Rule 15(a) Amendments Before Trial
Supplemental   in the absence of undue delay, bad faith,     Allows a party to amend once as a matter of course before a responsive pleading is filed,
Pleadings      or dilatory motive leave to amend should      OR within 20 days if no responsive pleading is permitted and action is not yet on trial
Rule 15        be freely given when justice so requires)     calendar.
               Beeck v. Aquaslide ‘N” Dive Corp.                Otherwise, consent must be given by court or by adverse party and shall be freely
               (1977) (allowing defendant to amend an             given if justice so requires
               answer from admitting to denying              Rule 15(b) Amendments During and After Trial
               responsibility for manufacture of the         Allows amendments in order to conform to evidence presented at trial if issues are tried
               product at issue)                             that were not brought up at pleadings as long as no prejudice to other party
               Moore v. Baker (Moore Claims Consent          Rule 15(c) Relation Back of Amendments
               then Negligence) (1983) (holding that a            (1)(A) Statute of limitations can not have been passed prior to filing of complaint
               claim based on informed consent prior to           (1)(B) Must also arise out of the transaction or occurrence set forth in original
               surgery does not put the doctor on notice          pleading
               about a claim of negligence during the             (1)(C) Changing the Party
               operation. Thus the negligence claim                        Still must arise out of the same transact or occurrence AND
               does not relate back and is barred by the                   Within the Rule 4(m) deadline (usually 120 days) for serving the
               sol)                                                           summons and complaint the party
               Bonerb v. Richard J. Caron Foundation                             (i) received informal notice sufficient to prevent prejudice AND
               (Bonerb Balls Negligence to Mal)                                  (ii) knew or should have known that they would have been sued but
               (1994)                                                            for a mistake concerning proper identity
               (a claim for failure to properly supervise                **Should be no surprise to defendant if arose out of same
               provides notice that a claim of negligent                    transaction/occurrence
               performance of professional duties could
               be brought. When the amended claim is a
               narrower version of the original,
               operational facts in the original will put
               the defendant on notice)
               Worthington v. Wilson (1992) (in order
               to relate back under Rule 15(c)(1)(C)(ii),
               an actual mistake about the identity must
               be shown)
Discovery in   Rule 26(f) requires opposing parties have a conference to discuss the process of discovery
General             Determines timing and scope of disclosure – typically held 21 days before Rule 16 pre-trial conference
Rule 26             Document outlining the process submitted to court within 14 days of conference
                    Also arrange for and make mandatory disclosures according to Rule 26(a)(1)
               Rule 26(a)(1) Mandatory Disclosures
                    (i) Name, address, phone number of individuals likely to have discoverable information that the disclosing party may use to
                     support [not as broad as “relevant”] its claims or defenses, unless solely for impeachment.
                    (ii) Copy or description of all documents and tangible things in the possession, custody or control of the party and that the
                     disclosing party may use to support its claims or defenses, unless solely for impeachment.
                    (iii) Computation of any category of damages claimed by the disclosing party – materials bearing on the nature and extent of
                     injuries suffered.
                    (iv) Any insurance agreement which the person may be liable to satisfy part or all of a judgment or indemnify for a judgment.
               26(a)(2) Disclosure of Expert testimony
               Parties must disclose the identity of all experts who are going to testify. Must include a report w/ what the expert has written, what the
               expert is going to be paid, and what other cases the expert has worked on.
               26(a)(3) Other pre-trial disclosures
                    (i) Name, address and phone number of witnesses
                    (ii) Designation of deposition witnesses
                    (iii) Identification of documents/evidence planned on being introduced
Discovery      Steffan v. Cheney (1990) (when Naval           Rule 26(b)(1)
Scope and      Officer is discharged for admitting to be      Parties may obtain discovery regarding any matter, not privileged, that is relevant to
Limits         gay (status) and sues, discovery into past     the claim or defense of any party
Rule 26        homosexual conduct is not relevant to the          Includes: books, documents, tangible things, identity of people
               defense.)                                          Privilege = protected relationship (atty – client, doctor – patient)
                                                                       Can be waived if such information is brought up by the party seeking to protect
                                                                  Court may order discovery of any matter relevant to subject matter involved
                                                                  Relevant info need not be admissible at trial; however, must be reasonably
                                                                   calculated to discovery of admissible evidence
                                                                  Limitations on Discovery devices
                                                                       Cannot be unreasonably duplicative – ask whether obtainable by more
                                                                        convenient, less burdensome (expensive) means
                                                                         Must ask whether party seeking discovery has had ample opportunity to obtain
                                                                          information sought
                                                                         Balance between burden to produce and benefit to be gained
                                                                         Financial information: a P may want information concerning D’s assets to see
                                                                          if it is worth their time to seek a judgment. This is not relevant to a claim or
                                                                          defense and thus generally not discoverable unless the P is seeking punitive
                                                                          damages or liability insurance coverage.
Production of     Davis v. Precoat Metals (Precoat Show         Rule 34
Documents,        the Notes) (2002)                             Allows party to request inspection and copies of: docs, photos, charts, data, or tangible
Megabytes,        Facts: Davis (P) and others make a            items that come within scope of Rule 26 test for relevance
Things, Entry     motion to compel under Rule 37 when               Further, permits entry upon land or property in control of opposing party
Onto Land         they are refused discovery of past            (b) Procedure
Rule 34           discrimination complaints lodged against      Determines the procedure by which this is possible:
                  the defendant in the plaintiffs’ workplace        Requests must be submitted with reasonable particularity such that the party
                  under Rule 34.                                     receiving the request can reasonably respond and furnish info
                  Analysis: Since the request is narrowly       Within 30 days, response must be given with permission or objections
                  tailored and relevant to the plaintiffs
                  claim a motion to compel is granted.
Duty to           Silvestri v. General Motors Corp.               Duty to preserve material evidence arises not only during litigation but also extends to
Preserve and      (Silvestri Spoilation is Messy) (2001)          that period before the litigation when a party reasonably should know that the evidence
Spoliation        (holding that when a party cannot fulfil        may be relevant to anticipated litigation.
                  the duty to preserve because he does not
                  own or control the evidence he still has an
                  obligation to give the opposing party
                  notice of access or of possible destruction
                  of evidence)
                  Zubulake v. UBS (Zubulake No
                  Adverse Inference from lost Copies)
                  (2003) (where there is a duty to preserve
                  but destruction of evidence was not
                  willful an adverse inference will not be
                  granted unless the party can show the lost
                  evidence would have supported her
Methods of        Rule 27 Depositions to Perpetuate Testimony
Gaining           Allows for potential party to perpetuate testimony of a witness or party w/discoverable information before the action is filed if they
Discovery         may not be available at trial or appeal
                  Rule 28 Persons Before Whom Depositions May be Taken
                  States that depositions must be taken before person authorized by court or agreed to by parties [part (b) discusses how to do this
                  w/reference to a person in foreign country]
                  Rule 29 Stipulations About Discovery Procedure
                  Together, parties can make up their own rules regarding discovery
Depositions       Rule 30 Depositions on Oral Examination
                  (a)(1) Without Leave A subpoena is required to compel witness (non-party) to attend (Rule 45). Leave of court not required to take
                  deposition of anybody except when.
                  (a)(1) With Leave
                         (A)(i) Proposed deposition would result in more than 10 by any single party
                         (A)(ii) Person has already been deposed
                         (A)(iii) The party is taking the deposition early b/c the person to be deposed is expected to leave the US
                         (B) Person is confined to prison
                  (b) Notice, Requirements, Methods, Companies, etc.
                         All parties must be notified of impending deposition and method of recording
                  (c) Will have examination and cross – objections will be noted but answers will typically be given unless objection is based upon
                  privilege, court order, OR:
                  Where examination is shown to be conducted in bad faith, or used to embarrass, annoy, or oppress deponent or party – subject to 37
                  (d) One deposition should not exceed one 7 hour day. Also sanctions for abuse of depositions.
                  Rule 31 Written Depositions
                         Subject to same restrictions as depositions on oral in 30(a)
                         Notary or court reporter asks questions – no follow-up
                          o Cross questions can be served along with redirect in same manner
                         Less expensive, but also less informative than oral counterpart
                  Rule 32 Depositions in Court Proceedings
                  governs how depositions may be utilized in court proceedings
Interrogatories   Rule 33 Interrogatories to Parties
& Requests for     Cheaper – use for simple question (who, what, where) that might lead to helpful information with regard to depositions or further
Admission            discovery
                   Write out the question and send it over to the other side – limited to 25 questions
               Only parties have to answer interrogatories.
                  o If you need information from a witness and do not want to depose them, you can use the subpoena – Rule 45(a) – to obtain
                     information in a written form w/o deposing a witness.
               Other side must send back answers/objections w/in 30 days.
                  o Might object if the answer to the question is privileged or irrelevant.
               Answers are usually signed by person making them; however, attorney generally answers for the plaintiff after discussing the
                questions with them to give them as little or as big effect as necessary for the purposes of the lawsuit
                  o If answer can be derived from biz records, party can specify where to find them
              Rule 36 Requests for Admissions
               Not particularly helpful except to limit scope of trial to pertinent issues
               Not getting any new information – simply trying to eliminate that matter from the case by gaining admission of the other party
               Supplement to the pleading rules – since notice pleading is pretty generic
               Must be admissions of ‘fact’ not admissions about what other people might testify to
               Such an admission is for the purposes of the pending action only – will not have effect on subsequent trials involving the same
                subject matter
                                                            Limitations on Discovery
Claiming      Rule 26(b)(5) Privilege and Protection of Trial Preparation Materials
Privilege     (A) When info is withheld
                   (i) must expressly claim privilege
                   (ii) must describe the nature of that which is withheld
              (B) The Clawback Provision
              Allows for assertion of privilege after production of documents
Protective    Stalnaker v. Kmart (1996)                      Rule 26(c) Protective Orders
Orders        Facts: In sexual harassment case plaintiff Outlines the way in which a party from whom discovery is sought may protect
Rule 26(c)    seeks to depose K-Mart employees about         Two Requirements for Order
              romantic conduct with the defendant and            1) Must make motion to court for good cause (privilege, work product, etc) Motion
              others. Defendant seeks protective order.              may be made to court where the action is pending or district court where
              Black Letter: The court has the                        deposition will take place.
              discretion to limit discovery into private         2) Must certify that attempted to confer w/other party in effort to resolve dispute
              matters. In this case discovery is limited         3) Reasonableness: Court may make any order which justice requires to protect
              to conduct with the defendant but not                  party from: annoyance, embarrassment, oppression, or undue burden or expense
              others since such info was highly relevant             by:
              to the case.                                             i. Not allowing the discovery at all
                                                                      ii. Limiting the discovery to particular issues.
                                                                     iii. Restricting the manner in which the discovery may be had.
Privileges    Upjohn Co. v. US. (1981) (with                 *Any Privilege May be Waived *
              corporations attorney-client privilege         A privilege protects information from being disclosed by a particular source. The party
              extends beyond the control group when          may still obtain the information from other sources.
              employee has relevant info needed to
              advise the client)                             Common privileges- vary from state to state but common ones are:
                                                             1) Self-incrimination: allows a person to refuse to disclose information that constitutes
                                                             admission of a criminal act. Guaranteed under the 5th amendment.
                                                             2) Attorney-client: past or present client right to prevent an attorney from
                                                             disclosing information pertaining to legal representation.
                                                             3) Doctor-patient: past or present patient right to prevent doctor from disclosing
                                                             information pertaining to treatment.
                                                             4) Priest-penitent: right to prevent a religious leader from disclosing
                                                             information relayed in confidence.
                                                             5) Spousal: right to prevent spouse from disclosing information relayed in
Trial         Hickman v. Taylor (Hickman Look at             *Not an actual privilege b/c a privilege is absolute.*
Preparation   the Shipman) (1947)                            Trial Preparation Protection
Protection    Facts: Ship sinks and five crew members Rule 26(b)(3)
              drown. Defense counsel interviews                  Protects against trial prep. Materials of atty, including:
              survivors in anticipation of litigation.           Mental impressions, conclusions, opinions and legal theories
              Plaintiff seeks to discover the contents of        This info must be gathered in anticipation of litigation, not regular course of biz
              these statements.                                  Interview statements may be discoverable. Lawyer notes are unlikely to be
              Black Letter: Lawyer work product                   discoverable. Lawyer’s mental impressions are never discoverable. However, no
              prepared in anticipation of litigation is not       work product is discoverable unless some level of necessity is shown ie loss of the
              discoverable without a strong showing of            opportunity to interview a witness.
              necessity.                                         Certain elements of prep materials may be discoverable upon a showing that:
              Thompson v. The Haskell Co. (Haskell                     (i) There is a substantial need of the materials in preparing the case
              Shows Expert Hassle) (1994)                              (ii) The party is unable, without undue hardship, to obtain substantial equivalent
              Facts: Plaintiff consults with                 Rule (b)(4) Experts
              psychologist within 10 days of alleged             May depose any person id’d as expert whose opinions will be presented at trial
              sexual harassment.                                     o If report from expert required, deposition conducted after receipt of report
              Black Letter: Expert reports that will not         Can get discovery from other party experts not expected to be called, or retained for
              be presented at trial are only discoverable
               under exceptional circumstances (ie no              trial preparation only as provided in 35(b) (examination) or upon showing of
               other way to obtain info in the report)             exceptional circumstances where party seeking can’t get discovery otherwise
               Chiquita Int’l Ltd. v. M/V Bolero Reefer               o Protective order for non-testifying psychiatrist not allowed b/c opposing
               (1994) (non-testifying expert is immune                   counsel could not get equivalent info. on mental state 1 year later
               from discovery)                                Party seeking discovery is typically required to pay fees for expert’s time – either to
                                                              expert or to opposing party who paid for services
Privacy        Schlagenhauf v. Holder (1964) (a               Rule 35 Physical and Mental Examinations
               physical or mental exam may be ordered         Lays out rules for how and when an examination of a party whose mental or physical
               when good cause exists, and when a             condition is in controversy may be ordered
               party’s physical or mental condition is in     (a) Test:
               controversy)                                       Condition must be ‘in controversy’ – pertinent to issue of claim
                                                                  Examination must be for ‘good cause’ – not in bad faith
                                                              Both elements of the test are easy to prove in personal injury suit for plaintiff, BUT:
                                                               (b) Availability of Reports
                                                                  Entitles party to reports from examiner that were requested by other party
                                                                  Likewise, the party who delivers the requested report will also be entitled to any
                                                                   reports of examinations requested by the party representing the individual examined
                                                                  Person that an exam can be requested from is any person a party or in custody of, or
                                                                   under the legal control of a party
                                                               Ensuring Compliance
Signing Off    Rule 26(g) Signing Off
and Fixing     Disclosures, requests, objections, etc. have to be signed by the attorney or party indicating that the information or request is complete
Mistakes       to the best of the signer’s knowledge and was formed after reasonable inquiry that:
                     Warranted by existing law or good faith argument for modification or reversal
                     Not interposed in bad faith or improper purpose
                     Not unduly unreasonable, burdensome or expensive
               Sanctions may be imposed by court by motion or sua sponte on atty or party or both that have caused the other party to jump through
               hoops unnecessarily.
               Rule 26(e) Supplement Disclosures
                     Provides for supplementing responses and disclosures if information is gained afterwards that would change the answer
                       previously given
               Rules impose duty of full disclosure of information that comes to light through discovery which would alter answers previously given
Failure to     Zubulake v. UBS (2003) (denying a              Rule 37 Failure to Make or Cooperate in Discovery
Make or        motion for adverse inference and setting         *Once there is a court order, you can use sanctions not available under Rule 26.
Cooperate in   the standard for Rule 37(e))                     Can’t use a motion to compel against a non-party unless it is in relation to a
Discovery                                                         deposition.
Rule 37                                                         Lawyers must show they have conferred or attempted to confer w/ the party not
                                                                  making the disclosure on every one of these elements.
                                                                37(a)(2) Appropriate Court
                                                                  An application for an order to a party shall be made to the court in which the action is
                                                                  pending. An application for an order to a person who is not a party shall be made to
                                                                  the court in the district where the discovery is being, or is to be, taken.
                                                                37(a)(2) Specific Motions
                                                                  (A) Motion to Compel Disclosure. If a party fails to make a disclosure required by
                                                                  Rule 26(a), any other party may move to compel disclosure and for appropriate
                                                                  (B) Motion to compel a discovery response
                                                                   If a deponent fails to answer a question, answer an interrogatory, or respond to a
                                                                  Rule 34 inspection, the discovering party may move for an order compelling an
                                                                37(a)(4) Expenses
                                                                  If a motion to compel is granted the court shall require the party whose conduct
                                                                  necessitated the motion or the attorney advising such conduct or both of them to pay
                                                                  to the moving party the reasonable expenses incurred in making the motion,
                                                                  including attorney’s fees – unless the court finds that the motion was filed w/out the
                                                                  movant’s first making a good faith effort to obtain the discovery w/out court action.
                                                                37(c) Failure to Disclose or Supplement an Earlier Response, or Admit
                                                                37(b) Failure to Comply with a Court Order
                                                                  (2)(A) Sanctions
                                                                     (i) Matter might be taken as established (adverse inference)
                                                                     (ii) Prohibit the party from using evidence on that matter.
                                                                     (iii) striking pleadings in whole or in part
                                                                     (iv) staying proceedings until order is obeyed
                                                                     (v) dismissing in whole or in party
                                                                     (vi) rendering default judgment
                                                                     (vii) treat any order except for order to submit to medical exams as contempt
                                                                  (C) In addition, or in lieu of these orders, the party or the attorney or both could have

                                                                  to pay the reasonable expenses, including attorney fees, caused by the failure.
                                                              37(d) Failure of party to attend at own deposition or serve answers to
                                                               interrogatories or respond to request for inspection [no show sanction – don’t
                                                               need court order]
                                                                 o Movant must in good faith confer or attempt to confer w/ the party failing to
                                                                   answer or attend.
                                                                 o Then, the party failing to act or the attorney advising that person or both will have
                                                                   to pay the reasonable expenses, including attorney’s fees, caused by the failure
                                                                   unless the court finds that the failure was substantially justified.
                                                                 o Rule 37 prohibits the fees from going against the lawyer’s firm.
                                                              37(e) Electronic Info.
                                                                 o Absent exceptional circumstances sanctions will not be imposed for losing
                                                                   electronic info as a result of routine good faith operation.
                                               RESOLUTION BEFORE TRIAL
Offer of     Plaintiff has to decide to accept/deny offer
Judgment     If don’t get more than original offer, have to pay costs incurred by opposing party after the offer was made
Rule 68
Dismissal    Texaco v. Pennzoil, 481 US 1                   Rule 41(a)(1) Voluntary Dismissal
Rule 41                                                     Action can be dismissed by plaintiff without order of court if:
                                                               (A)(1)(i): Def. has not answered or filed motion for summary judgment
                                                               (A)(1)(ii): All parties agree in writing
                                                               (B)(1)(ii): Unless otherwise stipulated the effect of the voluntary dismissal is w/o
                                                                 prejudice and thus are w/o res judicata effect; however, if it has already been
                                                                 voluntarily dismissed before, the second is accorded res judicata effect
                                                            Rule 41(b) Involuntary Dismissal
                                                            1) Involuntary dismissal may be filed for by defendant for failure of plaintiff to prosecute
                                                            or comply with rules or order of court
                                                                 In most cases this results in adjudication on the merits/final decision and thus has
                                                                  res judicata effect.
                                                                 Provides that all dismissals not under Rule 41 are also w/ prejudice
                                                                 Prejudice does not apply to dismissal for lack of jurisdiction, improper venue, or
                                                                  failure to join under Rule 19.
                                                            2) Not a bright line rule like Default Judgment. Judges discretion.
Default      Default Judgment
Judgment     If defendant defaults, the only remaining possibility for defense is the very risky collateral attack on personal jurisdiction of the court.
Rule 55      Rule 55 lays out the manner in which default judgment can be entered for the plaintiff.
             (a) Entry
                     Affidavit to court that Def. has not responded within allowable time – notify def. lawyer about application for default judgment
                     Get entry of default
             (b) Judgment
                     Clerk may enter judgment on debt if sum certain
             Court may hold hearing to determine unspecified damages – defendant must be notified within 3 days of hearing only if they have
Motion for   Adickes v. S.H. Kress & Co., 1970                No genuine issue of material fact – in other words, we know what happened
Summary      (holding that on a motion for summary            Rule 56(c) – no issue of material fact AND that moving party is entitled to judgment as a
Judgment     judgment defendant must foreclose the            matter of law
Rule 56(c)   possibility that plantiff could prevail at          Combination of both law and fact, as opposed to merely law as per Rule 12(b)(6)
             trial)                                              On motions for summary judgment, the court cannot determine the credibility of
             Celotex v. Catrett (Celotex Genuine                  witnesses
             Issue Test) (1986) (movant may meet its                o Testimony does present an issue of material fact
             burden by showing nonmovant failed to               Affidavits are submitted to court as evidence of testimony attesting to particular
             supply evidence of a genuine dispute of              facts – must be admissible as evidence at trial
             material fact)                                      Cannot rely on allegations or denials through pleading to controvert facts; rather,
             Matsushita Electric v. Zenith Radio                  evidence through depositions, etc. must be submitted Rule 56(e)
             (1986) (non-moving party must do more                 o Pleadings may be verified but you must counter the affidavits of the party
             than simply show that there is some                      moving for summary judgment with your own affidavits that illustrate a genuine
             metaphysical doubt as to the material                    issue of material fact/law
             Anderson v. Liberty Lobby (1986) (court
             must draw all justifiable inferences in
             favor of the nonmovant)
             Bias v. Advantage Int’l (1990) (upon a
             movant’s showing of absence of genuine
             issue of material fact nonmovant must
             come forward with specific facts to
             demonstrate a genuine issue for trial)

Elements for      56(a) Summary judgment for claimant
Motion for            Have to wait 20 days to allow defendant time to get a lawyer, etc.
Summary           56(b) Summary judgment for defending party
Judgment              May move for summary judgment at any time, but the party will likely need time for discovery.
Rule 56           56(c) Motion and proceedings
                      Motion must be served at least 10 days b/f the hearing.
                      Moving party must establish
                           1) No issue of material fact in the case and
                           2) The moving party is entitled to judgment as a matter of law.
Judicial          Sanders v. Union Pacific R.R. Co.,             Rule 16 Pre-trail Conferences; Scheduling; Management
Management of     (Sanders Dismissal Flanders) (1998) (a         Establishes that a pre-trial conference must be held to determine issues that will be tried
Litigation        court may dismiss with prejudice when          and an order will be issued. regarding:
Rule 16           failure to comply with pretrial obligations        The pre-trial order supplant the pleadings and establishes what the case is about
                  lead to unnecessary delay and expense.             Scheduling for motions, discovery, and other essential elements
                  However, where the judge lets his clerk            (e) The order shall only be modified to prevent manifest injustice to a party
                  perform the final pretrial conference and          The longer you wait to amend or change after the final pre-trial conference, the less
                  dismisses the case sua sponte w/ out a              likely it will be modified
                  hearing an appellate court will show the       Rule 6(b) Extending time rule.
                  judge’s discretion no deference)
                  Mckey v. Fairbairn (McKey Held to
                  Theory) (1965) (Trial judges have large
                  discretion in holding litigants to the issues
                  identified in a pretrial order)
Carrying the      Reid v. San Pedro, Los Angeles & Salt         Burden of Production – much bigger issue
Burden            R.R. (Reid’s Evidence in Need) (1911):        Establishes who has to produce evidence consistent with their theory of relief or defense.
                  plaintiff satisfied burden of pleading for    Burden of Persuasion – typically not a big issue
                  negligence but not burden of production       Did the plaintiff prove their case or not?
                  for causation – no evidence produced that     Standards – preponderance of evidence, clear and convincing, etc.
                  made it more likely than not that cow         Did defendant prove the defense?
                  went through hole or gate.
                                                                  Identifying the Trier
Types of Trial    Bench Trial: no jury, judge acts as fact-finder and rules on applicable law
                      Rule 52(a)(1): in a bench trial the court must make findings of fact and conclusions of law separately. Roles must be divided and
                       judgment is entered under Rule 58
                      Rule 52(a)(6): In order to overturn the judge’s findings of fact on appeal the findings must be clearly erroneous.
                  Jury Trial: Judge tells jury what the law is and how it is to be applied
                     In order to win at jury trial, need jury verdict and an entry of judgment by the court via Rule 58
                     Jury doesn’t have to show their work, which explains reluctance of appellate court to disturb jury findings of fact
Right to a Jury   Colgrove v. Battin (Colgrove 6 Jurors          Seventh Amendment states, “right to jury trial shall be preserved”
Trial             Goes) (1973) (upholding constitutionality          In Federal Court, jury trial is available if:
                  of 6 person jury. Right to a jury trial is           o It is a suit in which there would be jury trial at common law pre-1791(law v.
                  preserved not the number of jurors. Each               equity distinction)
                  juror must participate in verdict unless             o Congress has specifically provided for jury trial by statute. Congress can expand
                  excused. Unless otherwise stipulated by                jury right but cannot contract it.
                  parties verdict must be unanimous)                 In State Court, jury trial is available if is less common b/c of expense, but available
                                                                       when State Constitution or statute provides
                                                                       o Congress has specifically provided for jury trial by statute
                                                                       o Under the 14th Amendment the 6th Amendment Right to a Jury in a criminal
                                                                         prosecution is incorporated and made applicable to the states. The 7th
                                                                         Amendment right to a jury in a civil proceeding is not
                                                                 *parties may stipulate to a non-unanimous verdict
                                                                 Rule 47 Selecting jurors.
                                                                 Rule 48 Number of Jurors: at least 6 no more than 12. Must be unanimous unless the
                                                                 parties stipulate otherwise.
                                                                 Rule 49 Special Verdict; General Verdict and Questions: asks for an answer to
                                                                 specific questions
Determining a     Historical Interpretation
Right to a Jury      In order to determine whether the right to a jury trial exists, must look at historical distinction between law and equity as it
Trial                  was in 1791 and the nature of the remedy b/c FRCP merged both into a single action called a civil action under Rule 2
                     Right to a Jury Trial is Preserved When...
                          1) The nature of the case is analogous to a case that was historically categorized as an action at law
                          2) The remedy sought is consistent with an action at law
                     Law: trespass, debt, covenant, ejectment, trover, replevin and assumpsit, breach, malpractice
                     Equity: Injunction, declaratory relief, specific performance , rescission, accounting, derivative suits, class actions, breach of
                       fiduciary duty

Right to a Jury   Dairy Queen v. Wood (1962) (granting a jury trial based on an accounting request. Legal/equitable distinction will not be limited to
Trial             mere labels. Must determine what the nature of the issue and remedies are)
                  Ross v. Bernhard (1970): Shareholder derivative action triable to a jury. Shareholder derivative action did not exist in 1791. Most
                  famous for footnote: “ determination of a legal claim (1) premerger custom with reference to such question (2) remedy sought (3)
                  practical abilities and limitations of juries. The third prong supports decision in Markman.
                  Markman v. Westview (Patent the Bench Markman) (1996) (reduces scope of long held right to jury trial in patent cases. Because
                  of increasing complexity of patent claim court found it to be a new claim which a judge is better suited to hear)
                  Chauffers, Teamsters & Helpers, Local No.391 v. Terry (Terry Backpay not Restitutionary) (1990): While the action for breach of
                  a unions duty of fair representation is analogous to a trustee case (equitable) the court grants a jury trial anyway. Since elements of
                  both legal and equitable claims are present the court looks to the remedy sought. An award for back pay is compensatory and not
                  restitutionary so there is a legal cause of action.
Blended Law       Beacon Theatres v. Westover (Beacon’s            Blended Law and Equity Claims
and Equity        Blended Teaching) (1959) (if there are               Equitable cleanup doctrine: Until Beacon Theatres in 1959 equity cases with legal
Claims            both legal and equitable issues and                   issues will be dealt as equity claim with judge deciding both.
                  remedies, the legal issues must first be         (1)Right to a jury trial exists in case with overlapping legal and equitable claims (2)
                  tried by jury, whose conclusions will be         Jury trial comes first with findings of fact binding on judge in subsequent bench
                  binding on the judge in the remaining            trial.
                  equitable portion of the trial)
                  Parklane Hosiery v. Shore (Parklane
                  Hosiery’s Binding Totally) (1979)
                  (holding that fact finding in a bench trial
                  is binding in a subsequent jury trial)
                  Amoco v. Torcomian (1983) (Amoco L
                  and E jury show) (Court holds that legal
                  claim necessitates right to a jury trial
                  which must come first and will be
                  binding in bench trial on equitable
Requesting a      Rule 38(b) Jury Demand
Jury Trial        Can demand a jury trial by:
Rule 38               Putting it in your complaint if you are a plaintiff
                      Putting it in your answer if you are a defendant or
                      Serving upon the other parties a demand in writing at any time after the commencement of the action and not later than 10 days
                        after the service of the last pleading directed to such issue. [Either party can make jury demand.]
                  Rule 38(d): Jury trial is waived unless it is properly served and filed.
Administrative    Atlas Roofing v. Occupation Safety               Administrative Law: presupposed to be constitutional. Issues awards not judgments.
Proceedings       Commission (Atlas Roofing Admin                  SCT has upheld administrative adjudication so long as Congress entirely removes the
                  Pushin) (1977): Upholds administrative           claim from the court system. Problems arise when adjudication takes place in an agency
                  scheme by distinguishing between public          called a court.
                  rights (no 7th A right to a jury trial) and
                  private rights (7th A right to jury trial).
                  Supreme Court has held that
                  administrative courts with no juries do
                  not violate the Seventh Amendment.
                  Katchen v. Landy (No jury in Katchen
                  Bankrupty Action) (1966): contract
                  claim made in bankruptcy court does not
                  require jury.
                  Granfinaciera v. Nordberg
                  (Granfinaciera Bankruptcy Terror)
                  (1989): trustee sues Granfinaciera
                  alleging fraudulent transfers before
                  bankruptcy. Jury trial required.
                                                                        Judge vs. Jury
Judgment as a     Reid v. San Pedro, Los Angeles & Salt            Judgment of a Matter of Law
Matter of Law     R.R. ( Reid Evidence in Need) (1911)             When it is clear from the evidence that one side should prevail, the judge may effectively
Rule 50           (where the plaintiff’s evidence equally          take the case from the jury by entering judgment as a matter of law (JML) under Rule
                  supports two inconsistent inferences, one        50.
                  of which renders the defendant liable and            Availability: JML motion may be made…
                  the other does not JML should be entered               1) At the close of the plaintiffs case (directed verdict)
                  against the plaintiff)                                 2) At the close of all the evidence (directed verdict)
                  PA Railroad v. Chamberlain (1933)                      3) After the verdict but only as renewal of a JML motion made at the close of the
                  (Court assesses the sufficiency of the                   evidence (Judgment Not Withstanding the Verdict. JNOV.)
                  evidence. Where direct testimony is                  Rule 50(a) Pre-verdict JML motion
                  countered with an inference JML is                     o (a)(1) JML may be entered once a party has been fully heard on the issue if there
                  appropriate.)                                            is no legally sufficient evidentiary basis for the jury to find for the party. May
                  Unitherm Food Systems Inc. v. Switch-                    be entered by the judge or granted by a motion.
                  Eckrick, Inc. (Unitherm Renew JML or                   o (a)(2) Motion for JML may be made any time before submission to the jury and
                Burn) (2006) (JML must be made before                  must specify law and facts entitling movant to judgment sought
                jury verdict in order to be renewed after         Rule 50(b) Post-verdict JML motion: states that a motion for
                verdict or it would be asking for an                o JML can be renewed within 10 days after entry of judgment. This 10 day
                improper reexamination of jury verdict in              period cannot be extended (Rule 6(b)). A party cannot take action to collect or
                violation of 7th A)                                    enforce a judgment until after this 10-day period expires (Rule 62(a)).
                                                                    o Pre-verdict JML motion is a prerequisite to post-verdict JML in the federal
                                                                       courts and some states. A party may not seek a post-verdict JML unless they
                                                                       filed a motion for JML at the close of all of the evidence.
                                                                  Standard for granting a JML is that no reasonable rational jury could find for the
                                                                    party opposing the motion.
                                                                    o Similar to the “no genuine issue of material fact” in summary judgment.
                                                                  Applying the standard: Courts have established basic guidelines for applying the
                                                                    “no reasonable jury” standard.
                                                                    1) Although the court may weigh evidence its power is limited. If there is
                                                                         satisfactory evidence on both sides, the court must let the jury weigh the
                                                                    2) Jury determines credibility: the judge should leave credibility determinations
                                                                         to the jury. A judge may determine credibility only when a witness’ testimony is
                                                                         inconsistent, impeached, or impossible.
                                                                    3) Issues within the province of the jury
                                                                  JML and burden of production:
                                                                    In JML the court has somewhat more authority to rule that a party has failed to meet
                                                                    the burden of production than determining whether there is a genuine issue of
                                                                    material fact under the summary judgment standard.
                                                                       New Trial
Motion for      Lind v. Schenley (Judge in Lind Can’t         Rule 59 Motion for New Trial
New Trial       Respin) (1960) (a trial judge abuses his      (a) Allows for a new trial for any reasons a new trial had been granted in the past
Rule 59         wide discretion for granting a new trial      Three most common reasons a new trial is granted
                b/c the verdict is against the weight of the    1) Serious procedural error affected the outcome
                evidence when he substitutes his                     Waivable violations must be objected to and preserved.
                judgment for that of the jury. When there            ie Improper admission into evidence, inappropriate explanation of the law
                is a simple question regarding credibility      2) Verdict is manifestly against the great weight of evidence the or contrary to law
                of a witness the judge should let the jury           The judge cannot supplant their opinion for jury
                decide)                                              Verdict must be so wrong that constitutes a miscarriage of justice
                                                                3) Verdict is inherently inconsistent with the nature of the case
                                                                           o Otherwise, must get a writ of mandamus to force judge to do their job
                                                                                 and such denial would be basis for appeal – or they can just settle
                                                              Conditional Motion for New Trial
                                                              Conditional new trial can be granted: new trial is only granted as to one aspect of the
                                                              case ie plaintiff must agree to less damages in order to be consistent with what a
                                                              reasonable jury should have awarded or new trial will be granted.
                                                              Rule 60 Relief From A Judgment Order
                                                              Allows a federal court to reopen a judgment under exceptional circumstances.
Alternative     Rule 50(c) Alternative Motion for New Trial
Motion for         Motions for JML and MNT can be raised simultaneously
New Trial          Allows grant of new trial conditional on unfavorable JML ruling on appeal
Rule 50(c)         MNT not appealable; however, if JML is granted as well, then there is a final judgment which is subject to appeal
7th Amendment   Dimick v. Schiedt (Dimick Additur             Jury as Black Box
Reexamination   Gimmick) (1935) (holding that additur         Cannot ask jurors about their rationale for ruling in order to determine whether a new
Clause          violates the 7th A where it applies)          trial should be granted. This is abuse of discretion
                (JML must be made before jury verdict in May only constrain jury rationality and verdicts through proper MNT, voir dire, and
                order to be renewed after verdict or it       limitations on introduction of evidence and explanations of the law.
                would be asking for an improper               Juror Impeachment Federal Rule of Evidence Rule 606
                reexamination of jury verdict in violation    Jurors may only testify as to whether any extraneous prejudicial information was
                of 7th Amendment)                             improperly introduced to a juror or whether any outside influence was improperly
                Unitherm Food Systems Inc. v. Switch-         introduced.
                Eckrick, Inc. (Unitherm Make Motions          Damages
                or Burn) (2006) (reinstating a jury           Quotient Verdict: every juror submits a number and an average is taken. Although this is
                verdict unsupported by the evidence b/c       not correct way to find an award it will not be grounds for a new trial.
                the defendant failed to make the              Remittur
                appropriate post-verdict motions)             There is case law to support a reasonable jury standard and lowest common denominator
                Peterson v. Wilson (Peterson Post             standard.
                Verdict Impeacherson) (1998) (new trial
                cannot be granted based on post verdict
                statements from jurors relating to the
                mental processes of the jurors during

Harmless         On appeal a judgment will not be reversed due to an error unless the outcome would have been different but for the error.
Error Rule
Rule 61
                                                                     Joinder of Claims
Joinder of       **Additional claims will only be entertained by the court once it has established jurisdiction over the original claim as
Claims in        between those parties
General          Court can order separate trials or consolidation if “conducive to judicial convenience and economy” according to Rule 42
Joinder of       Rule 18 Joinder of Claims and Remedies
Claims and          Party asserting claim as an original claim may join as many claims as the party has against an opposing party
Remedies            Might be combination of federal and state law claims
Rule 18             Broad assertion of authority – doesn’t necessarily imply that all claim will eventually be adjudicated, just that they will be allowed
                     to be made
                    Plaintiff may aggregate claims against a party to meet the jurisdictional amount
                    Qualified by Rule 42(b), which gives judge option to sever or combine
                    Jurisdiction provides further limitations on this broad grant
                    While this is not compelled per se the claim may be precluded in a second suit involving similar questions of law and fact
Compulsory       Rule 13(a) Compulsory counterclaims – USE IT OR LOSE IT!
Counterclaims       Counterclaim is compulsory if it exists at the time the pleading is served and arises out of the same transaction or occurrence
Rule 13(a)           as the claim against the defendant
                    If it involves joining parties over which the court does not have jurisdiction it is not compulsory
                    Doesn’t need to have an independent jurisdictional basis: supplemental jurisdiction applies in this case because it arises out of
                     the same nucleus of operative fact
                    According to Article III – constitute the same case or controversy
                    § 1367: allows for supplemental jurisdiction over claims that don’t carry their own jurisd. basis but form part of same case or
                     controversy under the Constitution.
                        o Easily applicable when court has § 1331 jurisdiction over original claim.
                        o Limited in diversity cases by requirements in part § 1367 (b) particularly when plaintiff seeks to get around diversity
                        o No jurisdiction over claims by plaintiffs against persons made parties under 14, 19, 20, 24 or over claims by parties proposed
                            to be joined under 19 or seeking to intervene under 24 if inconsistent with 1332 diversity
                 Excepted Claims
                    Claims being litigated when the action commenced
                    The opposing party’s suit is based on in rem or quasi in rem jurisdiction
                    The claim requires joinder of a party that would destroy diversity
Tests for        Plant v. Blazer (Plant’s Compulsory              The Tests
Compulsory       Debt Grant) (5th Cir. 1979) (using the           1) are the issues of fact and law raised by claim and counterclaim largely the same
Counterclaims    logical relationship test to determine that      2) would res judicata bar a subsequent suit on defendant claim
                 an action on an underlying debt in default 3) will the same evidence support or refute plaintiff’s claim and defendants counterclaim
                 is a compulsory counterclaim that must           4) is there a logical relation btw claim and counterclaim.
                 be asserted in a suit by the debtor on a         Logical relationship test
                 truth in lending action.) but see Whigham         This test asks if the two claims are logically related in any significant way. This is the
                 v. Beneficial Finance Co.(Whigham                majority rule. The relationship need not be logical in the strict sense. In other words,
                 Plant Fippum) 1979) (coming to the               the outcome of one claim need not turn on the outcome of the other. Instead, they must
                 opposite conclusion using the same test          derive from the same underlying set of facts, even if the subset of facts relevant to each
                 and holding that Truth in Lending Act is         claim differs.
                 designed to protect borrowers)                   Same evidence test
                                                                  This test asks if there is a significant overlap between the disputed elements of the two
                                                                  claims. A significant minority of courts use this analysis. This test is narrower than the
                                                                  logical relationship test. It is not enough that the claims arise from the same identifiable
                                                                  event, rather, the core facts giving rise to the claims must overlap to some degree.
Permissive       Rule 13(b) Permissive counterclaim
Counterclaims    Pleading may state a counterclaim not arising out of same transaction
Rule 13(b)       As such, it requires an independent jurisdictional basis for SMJ.
Crossclaims      Rule 13(g) Crossclaims are filed by one co-party against another (i.e. one D against another D).
Rule 13(g)       1) Same transaction test a party may file any claim against a co-party arising from the same transaction or occurrence as either the
                 original complaint or a counterclaim.
                 2) Always voluntary- cross-claims are never compulsory. However, once a party is served with a cross-claim, they and the claiming
                 party become “opposing parties,” and they are required by Rule 13(a) to file any factually related counterclaims.
                 3) If a party files a valid cross-claim arising out of the same transaction or occurrence as the original claim or cross-claim Rule 18
                 allows that
                 same party to file other claims even if those claims are completely unrelated (must be independent basis for jurisdiction).
                                                                     Joinder of Parties
Compulsory       Temple v. Synthes (Temple Rule 19                Rule 19 lays out a two part analysis of compulsory party joinder:
Joinder of       Dispensable) (1990) (holding that patient (a) Joinder Required if Feasible
Parties Needed   with bad back implant is not required to           (1) As long as there is PJ and SMJ, must be joined IF:
for Just         join all joint tortfeasors under Rule 19.               (A) W/o party to be added, complete relief cannot be accorded OR
Adjudication     Respect for plaintiff’s choice of forum                 (B) Person claims interest relating to subject of action and w/o them:
Rule 19       and defendants)                                            (i) As a practical matter will be impeded from protecting their interest
               Helzberg v. Valley West (Helzberg                              (might take stare decisis into consideration)
              Shops no Joinder Props) (1977)                             (ii) Leaves persons already parties subject to substantial risk of incurring
              (holding that a party does not become an                   multiple or inconsistent obligations
              indispensible b/c their rights under a            (3) If joinder destroys venue the joined party must be dismissed
              separate contract may be affected. Court       (b) If Joinder is not feasible:
              probably got it wrong. Lords impaired as       Court must determine whether to proceed (in equity and good conscience) or dismiss
              practical matter and VW prejudiced b/c         based on the following factors:
              of possibility of multiple inconsistent            (1) Prejudice to person not joined or to those already parties
              obligations)                                       (2) Alternatives available through judgment or relief
              Clinton v. Babbit (1999) (dismissing               (3) Whether judgment will be adequate in their absence
              under Rule 12b7 b/c Indian tribe has               (4) Alternatives available to plaintiff if dismissed for joinder ie Could it be brought
              sovereign immunity and cannot be                          in another court?
Permissive    Mosley v. General Motors (Mosley               Permissive Joinder: not as broad an allowance as Rule 18
Joinder of    Permissive Posey) (1977)                             1) May join in action as plaintiffs if assert any claim to right to relief in jointly,
Parties       Facts: Mosley and nine others joined                    severally, or in the alternative in respect of or arising out of same transaction
Rule 20(a)    together to bring suit against GM for                   AND any question of law or fact common to the people will arise
              discrimination against blacks and women.                      Same standard applies for joinder of defendants
              Black Letter Rule: The difficulties in               2) Joinder of parties requires a higher standard for application than claims:
              ultimately adjudicating damages to                           i) Claim arising out of same transaction or occurrences
              various plaintiff’s in a class are not so                    ii) Some question of law/fact common to claimants will arise
              overwhelming as to require severance of                      iii) Does not require all questions of law and fact raised be in common
              the plaintiffs’ causes of action                Rule 21: misjoinder/nonjoinder are not a ground for dismissal – on motion or on its
              United States v. MS (1965) (same                 own the court can add or drop parties or sever claims.
              transact: state wide policy of voting
              discrimination allows for joinder of six
              county registrars to be held jointly liable)
              Hicks v. Crown Zellerbach Corp. (Hicks
              Permissive Trip) (effects of
              discriminatory policy may differ among
28 USC        District courts shall not have supplemental jurisdiction over claims by plaintiffs against persons made parties under Rule 14, 19, 20,
1367(b)       24.
Severance     Rule 20(b) and Rule 42(b) are essentially the same thing. That is turns one case into two or more. Repeat service is not required and
Protective    pleadings are not required to be resubmitted.
Measures      Reasons for severance
Rule 20(b)    1) Case is unmanageable or unduly complex
              2) Presence of one claim may prejudice another claim
Impleader     Price v. CTB, Inc. (Price Impleader            Rule 14(a) When defendants can bring in 3rd party
Third Party   Nice) (2001)                                       Must be filed within 10 days of receiving complaint, otherwise need permission of
Practice       Facts: After Price (P) sued Latco (D) for          the court
Rule 14       negligence in construction of chicken              Defendant may bring in a third-party who is or may be patially or totally liable to
              coups, Latco (D) impleaded ITW (3D)                 defendant for indemnification (K) or contribution (tort)
              seeking implied indemnity.                                     *i.e. There must be some basis for third party liability to the defendant under
              Black Letter Rule: 1) A defendant may                          the substantive law.
              assert a claim against anyone not a party          Claim of derivative liability
              to the original action if that third party’s                   *“If me, then him” NOT “it was him, not me” That’s a defense.
              liability is in some way dependent upon            No such thing as compulsory impleader. Court must have a basis for SMJ and PJ
              the outcome of the original action. 2) In          Pleading and Jurisdictional Implications of Impleader
              order to implead a third party there must                    1) Supplemental jurisdiction extends to the claims by 3PP and 3PD
              be a basis for liability to the defendant                    2) Impleaded party (3d party defendant) can:
              under the substantive tort or contract law.                        Assert defenses against 3d party plaintiff according to Rule 12
              Watergate Landmark Condominiums                                    Make counter-claims against 3PP and cross-claims against 3PD
              (Watergate Impleader Father Case)                                    according to Rule 13
              (E.D. VA 1987) (holding that a third
                                                                                 Assert defenses made by 3PP against original plaintiff’s claim
              party claim is not appropriate where the
                                                                                 Assert any claim against P arising out of same transaction or occurrence
              defendant says, in effect “it was him, not
              me.”)                                                                that is subject matter of original claim against 3PP
                                                             Rule 14(a)(3): Plaintiff can only assert claims against 3PD if it has independent basis for
                                                             jurisdiction: cannot defeat 28 USC 1332. 28 USC 1367 Supplemental jurisdiction does
                                                             not extend to claims by Plaintiff’s against parties joined under Rule 14.
                                                                 Once a plaintiff files a claim against 3PD Rule 13(a), the compulsory counterclaim
                                                                  rule takes effect.
Joining       Provides that additional parties to the counterclaim or crossclaim can be added in accordance with Rule 19-20
Rule 13(h)

100 Mile Bulge    100 mile bulge rule in service of process.
Rule 4(k)(1)(B)   Personal jurisdiction can be extended 100 miles for party joined under Rule 14 (impleader) or Rule 19 (compulsory joinder).
                  Usually, the party would have minimum contacts under International Shoe anyway.
Consolidation;    Rule 42(a) Consolidation
Separate Trials   Allows the court to consolidate and join actions into one trial.
Rule 42           Rule 42(b) Separate Trials
                  For convenience, to avoid prejudice, or expedite and economize the court may turn one trial into two or more. Must preserve any
                  federal right to a jury.
Intervention      NRDC v. U.S. Nuclear (1978) (allowing         Rule 24(a) Intervention of right: gives outside parties the right to intervene in certain
Rule 24           intervention although parties not likely      situations.
                  bound by decisions via res judicata;          1) Timely application: cannot prejudice the parties in preparing their suit.
                  however, precedent or findings of fact        2) Grounds:
                  may have a detrimental effect on                  a) federal statute grants a party the right to intervene
                  subsequent litigation)                            b) May also intervene as of right if threshold reqs are met
                  Martin v. Wilks (1989) (intervention is                i) claims an interest relating to the property or transaction that is the subject of
                  never mandatory)                                          the action (can be public/economic interest), and
                                                                         ii) the applicant is so situated that the disposition of the action may as a practical
                                                                            matter impair or impede the applicant’s ability to protect that interest,
                                                                         iii) the applicant’s interest is adequately protected by existing parties.
                                                                Rule24(b) Permissive Intervention (court has much wider discretion)
                                                                A party may seek permission to intervene either when a federal statute grants a
                                                                conditional right to intervene or when the applicant’s claim or defense shares a common
                                                                question of law or fact with the existing suit.
                                                                **If potential intervener destroys smj (ie diversity) intervention will not be allowed.
Interpleader      State Farm v. Tashire (holding that           A special type of joinder designed to deal with the situation where
                  Strawbridge is a statutory and not a          a party faces multiple, inconsistent claims. Usually used by someone who is liable to
                  constitutional interpretation therefore       someone but not sure to whom.
                  Congress can pass a statute that only         Rule 22 Interpleader
                  requires minimal diversity)                   Typically only used when there is complete diversity under 28 U.S.C. 1332 and personal
                  Cohen v. The Republic of the                  jurisdiction for service of process under Rule 4.
                  Philippines (Cohen Interpleader               28 USC 1335: provides for SMJ in fed. interpleader action. Only requires minimal
                  Commotion)                                    diversity. Original jurisdiction for $500 or more if two or more adverse claimants of
                                                                diverse citizenship may claim to be entitled to the money.
                                                                28 USC 1397: Any venue where a claimant decides
                                                                28 USC 2361: Deals with personal jurisdiction. Allows for nationwide service of
                                                                process. Also allows court to enjoin parties from filing any other lawsuits over the
                                                                stake until stake is settled. If another case is already filed in state court file in fed ct
                                                                and seek an injunction to stop state court suit.
                                                                Pure intepleader: stakeholder throws the stake to all potential claimants and winner gets
                                                                paid. (stakeholder turns money over to the court and leaves)
                                                                Action in the nature of Interpleader: stakeholder files the suit in interpleader and stays
                                                                b/c they want the money so they are also a claimant.
                                                                Intepleader uses the same joinder devices as usual. You can file cross claim to


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