CivPro II Outline

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THE COMPLAINT Generally: F.R.C.P. 8 & 9

The pleading must contain: 8(a)(1) a short and plain statement jurisdiction for the case 8(a)(2) a short and plain statement showing that π is entitled to relief DIOGUARDI: you don’t need to state your legal theory: just include enough facts to put Δ on notice and allow Δ to begin discovery 8(a)(3) a demand for relief (AD DAMNUM clause: doesn’t state $ amount, just type of relief) 54(c) a default judgment will be for exactly what’s asked for – nothing more 9(b) allegations of fraud, mistake or “condition of the mind” must be alleged with “particularity” CANNON: Whatever this means, it’s more than required by FRCP 8 “Special Damages” need to be specifically stated *car accident, π sues because he has a permanent erection – Civ On Tape] Special damages are not the necessary and inevitable result of injury Medical Costs & Lost Wages are often special damages Inconsistent & Alternative allegations are allowed if they are made in good faith. Every claim should be set forth in a separate count, and the counts should be broken down into numbered paragraphs


8(e) 10(b)


TIME COMPUTATIONS Generally: F.R.C.P. 6 For time computations: don’t count the first day, count the last day. Do not count federal holidays. If the last day falls on a weekend or federal holiday, the filing party has until the next day that the court is open. If you serve someone by mail, that party gets an extra 3 days to respond. Service complete by handing it to the person, or at the person’s office with a clerk Service complete by mailing; service complete upon mailing. Service to court clerk when the Δ has no known address Service by any other means…


6(e) 5(b)(2)(A) 5(b)(2)(B) 5(b)(2)(C) 5(b)(2)(D)

Civil Procedure, Spring 2008 * Prof. Cannon * Justin Kerner

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Generally: F.R.C.P. 8, 12

12(a) 12(b) 12(b)(1) 12(b)(2) 12(b)(3) 12(b)(4) 12(b)(5) 12(b)(6)

12(b)(7) 12(c) 12(g) 12(h)

Δ must respond by motion or pleading within 20 days Pre-Answer motions lack of subject matter jurisdiction lack of jurisdiction over the person improper venue insufficiency of process insufficiency of service of process failure to state a claim upon which relief can be granted A “mere motion”. Generally, π will be given the benefit of the doubt. It will not be granted unless π cannot provide facts in support of his claim for relief. (CONLEY V. GIBSON: if clear that trial is fruitless, dismiss) If 12(b)(6) motion succeeds, π likely given leave to amend his complaint. See F.R.C.P. 15 (Amendments & Supplemental Pleadings) failure to join a party under F.R.C.P. 19 Motion for judgment on the pleadings If you raise a 12(b) defense without raising any other, you waive the right to do it. 12(b)(2) - (b)(5) are waived if: A) Not raised (in accordance with F.R.C.P. 12(g)) B) Not raised in a responsive pleading C) Not raised in a F.R.C.P. 15(a) amendment made as a matter of course. The court may dismiss an action for lack of subject matter jurisdiction (12(b)(1) anytime! Motion for a more definite statement. Is π’s complaint so vague that Δ cannot reasonably draft a response? The answer must contain a short and plaint statement of the defenses. Δ shall admit, deny, or plead insufficient information to each of π’s averments. General Denial – denies everything in complaint [Bad idea] Specific Denial – denies a specific paragraph [ZELINSKI V. PPI] Partial Denial – more specific that a Specific Denial (perhaps fact specific) Anything not denied will be deemed admitted to. Affirmative Defenses: must be pled affirmatively. When in doubt: plead affirmatively. Generally, Δ does not have to aver to π’s capacity (unless Δ wants to challenge π’s capacity to sue because π is not the “Real Party In Interest” – see F.R.C.P. 17)

12(h)(3) 12(e)

8(b) 8(b)

8(d) 8(c) 9(a)

Civil Procedure, Spring 2008 * Prof. Cannon * Justin Kerner

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AMENDMENTS AND SUPPLEMENTAL PLEADINGS Generally: F.R.C.P. 15 (refer to F.R.C.P. 6 (Page 1) for time computations) Amendments as a matter of course If no responsive pleading is required: 20 days If a responsive pleading is required: any time before response is filed The court may grant leave to amend if “justice so requires” and the party cannot amend as a matter of course, barring bad faith or prejudice. [BEECK V. AQUASLIDE]



REMEMBER: Motions aren’t pleadings! So: π files; Δ responds with a Rule 12 motion; π may amend his pleading as a matter of course! 15(b) “Amendments to conform to the evidence” (there’s a variance between the pleadings & what’s introduced at trial) Will be granted if: (1) it aids & promotes the merits of the action, and (2) no prejudice to the other party MOORE V. MOORE (Child custody case. Child support – in. Spousal support – out) “Relation Back” (deals with amendments, after SOL has passed) Relation Back is permitted when the SOL permits relation back. π can amend his pleading to include a new claim against Δ is it arises out of the same T/O as the original claim. π can amend his pleading to change the party / naming of a party, when: (1) The requirements of 15(c)(2) are met (same T/O) (2) The amendment is filed and served on the new party with the scope of F.R.C.P. 4(m) (120 days from when the original complaint is filed with the court), (3) The actual (new) party had notice of the claim, and (4) The actual (new) party knew or should have known that, but for a mistake concerning the identity of the proper party, he would have been served in the first place. NOTE: there’s some confusion as to whether ignorance of the party’s name gives rise to a mistake, such that amendment under 15(c)(3) is appropriate. COMPARE: Cannon’s “Jock Horney” example with WORTHINGTON V. WILSON

15(c) 15(c)(1) 15(c)(2)


Civil Procedure, Spring 2008 * Prof. Cannon * Justin Kerner

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F.R.C.P. 11 (Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions)

Applies only to civil cases; applies only at the District Level; applies to ANY REPRESENTATIONS MADE TO THE COURT 11(a) Any paper submitted must be signed. An unsigned paper will be stricken unless signed promptly after being called to that party’s attention. Representations to the Court The claim cannot have an improper purpose (frivolous; delay; harassment) It has rational legal support (existing law / good arg. for new change in law) Evidentiary Support 2nd Circuit: if client says “X” and it’s obj. plausible, you can rely on it! But: you may have to do at least some investigation. “… are likely to have evidentiary support after a reasonably opportunity for further investigation.” You have to do some checking up. Sanctions When Party 1 sees problem, must service notice to Party 2. 21 day “Safe Harbor” period  then, if not fixed, Party 1 files with court! Motions for sanctions must be filed separately, with the court. Sanctions are limited to what will deter conduct. Can be applied to client, attorney, or attorney’s firm… If it’s $$, it’s generally paid to the court – unless it’s for attorney’s/ct. fees.

11(b) 11(b)(1) 11(b)(2) 11(b)(3)




28 USC § 1927 – a Federal Statute which also carries sanctions Confined to attorneys who unreasonably & vexatiously increase costs by “multiplying the proceedings”. Requires a showing of bad faith. Sanctions may include $$ for fees to the other party. Can be applied at any level of the Federal System (Cf w/ F.R.C.P. 11) No safe harbor provision.

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JOINDER OF CLAIMS REMEMBER: Any claim joined to a lawsuit must have subject matter jurisdiction! (1) Demonstrate that a claim is appropriate procedurally (point to the F.R.C.P. #) (2) Demonstrate that the claim has independent subject matter jurisdiction, or, because of the applicable F.R.C.P., doesn’t require it.

Joinder of Claims by π 18(a) A single π can generally bring as many claims as he has against 1 Δ. Diversity: π and Δ are diverse, so each claim is ok. π can aggregate claims to meet the $75,000.01 minimum amount in controversy. Federal Question: π can bring his claims against Δ so long as: (1) Each has an independent basis for Subject Matter Jurisdiction, or (2) Meets the Supplemental Jurisdiction requirements (28 USC §1367(a)). (it must arise out of “a common nucleus of operative fact”) Counterclaims (Claims by Δ against π) 13(a) Compulsory Counterclaims Δ must assert a counterclaim against π if it arises out of the same T/O and the court does not require 3rd Parties over whom the court cannot acquire jurisdiction. NOTE: This is the only compulsory rule under Joinder of Claims! Δ does not need to assert a compulsory counterclaim if: (1) Δ had already brought the action in another court Can you not file a 13(a) claim, but file it later in a state court? Most states: No – defeats the point of the F.R.C.P.! BUT: Some state: Sure, why not? PA falls into the first category… 13(b) Permissive Counterclaims Δ can bring any claims she has against π, but each must have independent subject matter jurisdiction! Diversity: must meet min. amt. in controversy (if permissive counterclaim fails, still in by 28 USC § 1367(b)) Federal Question: likely not… If it “arose from the same T/O”, it would be compulsory – and this is ~ the same as “common nucleus of operative fact”.

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JOINDER OF CLAIMS (cont’d) REMEMBER: Any claim joined to a lawsuit must have subject matter jurisdiction! (1) Demonstrate that a claim is appropriate procedurally (point to the F.R.C.P. #) (2) Demonstrate that the claim has independent subject matter jurisdiction, or, because of the applicable F.R.C.P., doesn’t require it.

Cross-Claims (Claims by Δ1 against Δ2) 13(g) Widely interpreted as only allowing co-defendants to sue one another. BUT: π1 may sue π2, if Δ has asserted a counter-claim (thus putting πs on defense) Cross-Claims are never compulsory. If Δ wants to assert a cross-claim, it must arise from (1) the same T/O as π’s claim against Δ.  Here, subject matter jurisdiction is supplemental (28 USC § 1367) (2) the same T/O as Δ’s counter claim.  Here, subject matter jurisdiction is supplemental (28 USC § 1367) (3) a property interest which is the subject matter of the original action

If too many cases or parties are added, the court can always split them apart under F.R.C.P. 42(b).

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JOINDER OF PARTIES Generally: F.R.C.P. 19, 20 Authorized by F.R.C.P. 13(h)

 F.R.C.P. 19 not on the Spring ’08 exam…

Compulsory Joinder of Parties by π F.R.C.P. 19  Per Cannon, not on the exam. Permissive Joinder of Parties by π F.R.C.P. 20 20(a) π may join any π or Δ to the action so long as: (1) The new claim arises from the same T/O as the original claim, and (2) The new claim involves at least 1 common question of law or fact. Diversity cases, where π seeks to join additional πs: MARIA DEL ROSARIO ORTEGA V. STAR-KIST FOODS / EXXON MOBIL CORP V. ALLAPATTAH SERVICES, INC: So long as 1 π meets the minimum amount in controversy, other πs may join.

VIII. IMPLEADER Generally: F.R.C.P. 14 Authorizes Δ to bring in a non-party, when the non-party may be liable in whole or part to Δ for π’s claim against Δ. 14(a) Impleader must be made within 10 days of Δ’s answer, or with leave of the court. (refer to F.R.C.P. 6 (Page 1) for time computations) 3PΔ may file any defenses or motions against Δ that Δ could file against π: (motions, pleadings, the whole kit & caboodle) 3PΔ may assert any defenses against π that Δ has against π. Once 3PΔ has been impleaded, π can assert claims directly against 3PΔ is they arise out of the same T/O as the original claim. REMEMBER: Such a claim requires independent Subject Matter Jurisdiction! (Diversity / Federal Question / Supplemental Jurisdiction) Any party may move to strike the impleader claim, or sever it to a separate trial. π may implead a 3rd Party if an opposing party files a counterclaim against π.



14(a) 14(b)

Civil Procedure, Spring 2008 * Prof. Cannon * Justin Kerner

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DISCOVERY See Generally F.R.C.P. 26, 30, 31, 32, 33, 34, 35, 36, 37 and 45

There are 5 Discovery Devices 1- Automatic Discovery 2- Depositions 3- Interrogatories 4- Production of “Stuff” 5- Requests for Admissions 6- Examinations of Parties

[F.R.C.P. 26(a)] [F.R.C.P. 30] [F.R.C.P. 33] [F.R.C.P. 34] [F.R.C.P. 36] [F.R.C.P. 35]

Scope of Discovery: broad language, encourages discovery 26(b)(1) π / Δ can request anything relevant to the claim or defense of any party… … so long as it’s not privileged. Material obtained during discovery does not have to be admissible as evidence if it goes to trial; it only has to be calculated to uncover more discoverable evidence


Stipulations to Discovery Procedures 29 Parties can make up any rules they want. If no stipulations are made, they use F.R.C.P.

Pre-Trial Scheduling & Planning First Second Third π files the complaint Δ files the answer, or a F.R.C.P. 12 motion F.R.C.P. 26(f) Discovery Conference Before this conference, parties cannot seek discovery! (F.R.C.P. 26(f)). 20 days ASAP: at least 21 days before the Pre-Trial Conference


F.R.C.P. 16(b) Pre-Trial Conference Here, judge sets forth time limits for the parties to: - Join other parties - File motions - Complete discovery

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1- AUTOMATIC DISCLOSURE Generally: you only have a duty to automatically disclose information which helps your case! Automatic Disclosure must take place at the 26(f) conference or within 14 days of it, unless a different stipulation is made by the parties or by order of the court. If a party is joined after the 26(f) conference, he has 30 days to make automatic disclosures. Name (and address/phone number) of all individuals likely to have discoverable information that the disclosing party may use to support its claim or defense. Copies or descriptions of documents & tangible things in control of the party, that the party may use in support of its claim or defense. Notice of damages; computation of damages; evidence on which damages are based. Any insurance agreement which pertains to the case (in whole or in part)

26(a) 26(a)



26(a)(1)(C) 26(a)(1)(D)

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2- DEPOSITIONS Generally: expensive, but good for follow-up questions & subjective questioning

45 If you want to depose a non-party, you have to serve them with a subpoena. 45(c)(3)(A)(ii) The court can squash the subpoena if it requires the nonparty to appear more than 100 miles from his residence, where he’s employed regularly, or where he regularly transacts business in person. Subpoena Duces Tecum: “come and bring it with you” If a subpoena is not used, a non-party cannot be compelled to be deposed. 30(a)(2) 30(d)(2) 30(b) 30(b)(6) Each party is limited to 10 depositions. Leave of court is req’d (30(a)(1)) for more. Depositions are presumed to be 1 day of 7 hours. If deposing a party, reasonable notice must be given (in writing) to all parties. Such notice must state the time & place of the deposition. If deposing a corp., assoc., or gov’t agency, they must name a deponent & what matters he can & will talk about. An attorney may instruct a deponent not to answer when: - It’s necessary to preserve a privilege - To enforce a limitation imposed by the court, or - 34(d)(4): questioning embarrasses, annoys or oppresses the deponent. If requested by the deponent or by any party prior to completion of deposition: The deponent may get a copy of the deposition within 30 days of being notified by the recorder that a copy is available; review it; and may add and sign a statement if there are any substantive changes to the recording (deponent must also state the reasons for making the change). The deposition may be used at trial to impeach the deponent as a witness. The deposition may be used at trial in place of witness testimony, if: (A) The deponent is dead (B) The deponent is farther than 100 miles from the court (C) The witness is unable to testify due to age, illness, infirmary or imprisonment (D) The party offering the deposition has been unable to compel the witness to testify by subpoena (E) Exception circumstances exist, and justice so requires. Objections to “curable objections” are waived if not made at the deposition (assuming the deposition is used for some purpose at trial) [Relevance / Hearsay]



32(a)(1) 32(a)(3)


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3- INTERROGATORIES Generally: F.R.C.P. 33 Generally: good for objective questions. The interrogatory will be answered by opposing counsel, so you can’t expect much back in the way of substantive information.

33(a) 33(a) 33(b)

Interrogatories may only be served upon parties to a case. Each party is limited to 25 interrogatories (leave of court required for more). Every question must be answered separately & fully, under oath. Each answer should be signed by the party to whom the interrogatory is addressed. A failure to answer some or all questions may lead to sanctions. (see “Sanctions,” Page 8) Any objections must be raised, written, and (33(b)(2)) signed by the attorney. Answers and objections must be served in 30 days (see Rule 6 (page 1) for time rules). If the answer to an interrogatory can be sufficiently derived from business records, and the burden on the party seeking discovery is essentially the same, the answer may simply specify the records which contain that information. Interrogatories may be used at trial, in the same way that depositions can be used. Interrogatories may not be served before the 26(f) Discovery Scheduling Conference.

33(b)(1) 33(b)(3) 33(d)

33(c) 26(d)

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4 - REQUESTS FOR DOCUMENTS OR TANGIBLE THINGS (PROPERTY) Generally: F.R.C.P. 34 - - only applies to parties! Parties can request all items except for Privileged work product (see 26(b)(3), supra). As with all other discoveries, the scope is limited to anything reasonably calculated to produce discoverable information. You can only request what the producing party actually has. Parties cannot evade a F.R.C.P. 34 request by turning materials over to their attorney! - This would defeat the purpose of discovery – the free exchange of facts. - Also, what’s held by party’s attorney may be considered “in the possession, custody, or control of the party upon whom the request is served.” If you said it - - you’re entitled to get a copy of it. Parties can either turn over documents / things or permit the requesting party access to them (by granting access to the property, and providing instructions or an employee) “a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with categories of the request.” Since non-parties are exempt from F.R.C.P. 34, use a subpoena duces tecum

34(a) 26(b)(1)


26(b)(3) 34(a)




5 - REQUESTS FOR ADMISSION Generally: F.R.C.P. 36 Purpose: to narrow the issues… not to obtain new information! You can request an admission for anything within the scope of 26(b)(1) Like all other discovery devices, cannot be used until after the 26(f) conference. If a party doesn’t answer within 30 days, everything requested for admission will be deemed by the court as admitted to.

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6- PHYSICAL & MENTAL EXAMINATION OF PERSONS Generally: F.R.C.P. 35 - - Applies only to parties! Rule 35 does not apply, if the party consents to an examination! Only applies to parties, or persons “in the party’s custody or legal control.” This is generally interpreted as applying to the parent child relationship, but not applying to the employer / employee relationship. The order will only be made for good cause: the condition must be in controversy. (i.e., π alleges physical harm) Judicial Interpretation: (1) Good Cause (can’t get info elsewhere, or can get info elsewhere but such info is substantially less good or reliable) (2) Genuinely in controversy (a mention in the pleading isn’t enough, unless it’s a personal injury suit) The examiner’s report is delivered to the party requesting examination (generally, opposing counsel). The party that submitted to examination may request a copy from the party who requested examination. Once this has been delivered, the party which requested the F.R.C.P. 35 exam is entitled to copies of any prior or subsequent examinations for the same condition. By requesting and obtaining a copy of the examiner’s report, the examined party waives all privilege to information in this action and any other action involving the same controversy from any doctor who treats the examined party for the same condition. If an examination is performed with consent (hence not invoking F.R.C.P. 35 generally), 35(b) still applies.

NOTE: 35(a)






SUPPLEMENTS TO DISCOVERY F.R.C.P. 26(e) A party must supplement any discovery materials if: (1) That party learns that the discovery materials are incomplete or incorrect, and the complete or correct information has not otherwise been made known to the other parties. (2) As applies to Experts: supplements must be made both to the expert’s deposition and to the expert’s report, as are necessary.


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EXPERTS Generally: F.R.C.P. 26(b)(4) If an expert will be a witness, this must be disclosed under Automatic Disclosure. Disclosure of Expert Testimony must be accompanied by a report which states: - All opinions to be expressed, and the bases therefor; - The data and/or exhibits considered in forming those opinions - The qualifications of the expert (incl. all publications in last 10 years) - The compensation paid for the witness’ study & testimony - A listing of any other cases where this witness was an Expert Witness Expert witnesses needn’t be deposed until after that report has been received. If an expert will not be called as a witness, a party may only discover information through interrogatory or deposition by: (1) F.R.C.P. 35(b) (medical records – previous/subsequent examinations), or (2) By a showing of substantial need and an inability to get the information by other means.

26(a)(1) 26(a)(2)(B)

26(b)(4)(A) 26(b)(4)(B)

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XVIII. WORK PRODUCT & PRIVILEGE (ABSOLUTE & QUALIFIED) Generally: 26(b)(3) – codified HICKMAN V. TAYLOR 26(b)(1) Discovery covers anything relating to the claim or defenses of the parties, so long as it is not privileged. It doesn’t have to be admissible at trial – just calculated to lead to discoverable info! “Attorney Work Product” TEST: (1) Who prepared it? “attorney, agent, consultant, surety, indemnitor, insurer” (2) When was the information / report prepared? (3) What are it’s purposes? if prepared for trial or in anticipation of litigation, it’s work product if prepared for other purposes, it becomes more questionable (4) What is the likelihood that litigation will result? the higher the likelihood of litigation, the more likely it’s work product Two kinds of privilege: (1) Absolute privilege Attorney’s mental impressions Legal Theories Attorney / Client Privilege (2) Qualified privilege All other documents prepared for litigation (hence – work product) 26(b)(3) You can get your hands on work product if and only if: (1) There must be a substantial need for the materials, and (2) The requesting party must be unable to obtain the materials or their substantial equivalent by other means without undue hardship.

REMEMBER 26(b)(3)


26(b)(3) [CANNON] [CANNON]

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MOTIONS TO COMPEL and ORDERS OF PROTECTION F.R.C.P. 37 F.R.C.P. 26(c) Applies to failure to complete discovery requests under F.R.C.P. 26(a), 30, 33, 34 Applies to F.R.C.P. 26(a). The other party may move immediately for disclosure and sanctions. Party who does not want to reply will ask for a Protective Order: Judge may order: - the disclosure or discovery not to be had, - that it be had on specified terms and conditions - discovery may be had, but only be some method other than that demanded - that certain matters be excluded from discovery - that discovery be conducted with no one present except court designees - that a sealed deposition be opened only by order of the court - that trade secrets / confidential R&D not be revealed, or revealed only in a certain manner - parties simultaneously exchange sealed enveloped

37 37(a)(2)(A)

26(c) 26(c)(1) 26(c)(2) 26(c)(3) 26(c)(4) 26(c)(5) 26(c)(6) 26(c)(7) 26(c)(8)

Sanctions (falls under F.R.C.P. 37) For Partial Failure: Step 1: get a F.R.C.P. 37 order to compel the party to perform Step 2: if party still fails to perform, sanctions are appropriate under F.R.C.P. 37(b) Sanctions may include: - 37(b)(2)(A): assumption that the other party’s order or reasoning is correct, if the sanctioned party’s discovery was meant to oppose that point - 37(b)(2)(B): striking claims, defenses, or introduction of evidence by the disobedient party, relating to the designated matters of discovery - 37(b)(2)(C): striking the related pleadings (which may lead to a default judgment) - 37(b)(2)(D): Contempt of court (for violating the court’s order to produce) - 37(b)(2): sanction party can be ordered to pay all related costs, including attorney’s fees and court costs For Full Failure: Skip to Step 2: no need to get a motion to compel! - 37(b)(1): If Deponent fails to be sword or answer, the failure may be considered contempt in the district where the deposition is taken. - 37(b)(2)(A)-(C) are appropriate, as are attorney’s fees & court costs

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F.R.C.P. 26(g)(2) – the Discovery Equivalent of Rule 11 Sanctions Every discovery request, response and objection must be signed & certified by an attorney. The attorney’s signature constitutes a certification that the discovery request is, to the best of the signer’s knowledge after a reasonable inquiry: (A) The certified document falls within the Federal Rules of Civil Procedure (B) It has not been imposed for any improper purpose (IE: harassment, delay) (C) It is not unreasonable or unduly burdensome or expensive If such a document is not signed, it will be stricken unless signed promptly. Until it is signed, the responding party (parties) is (are) not required to take action.


If a request, response or objection is found to be in violation: - SANCTIONS! which may include: o Reasonable expenses, including attorney’s fees & court costs incurred because of the violation.

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SUMMARY JUDGMENT 12(e) is judgment on the pleadings; this is the next way to weed out claims…


States: π laid out the elements of his claims in the pleadings, but based on the facts of the case is unable to prove 1 or more of those elements. CELOTEX: Rule 56 mandates SJ is π cannot prove an essential element of his claim. If there are disputed facts, the trial must continue; to get a successful Summary Judgment, you cannot have any disputed material facts. ANDERSON: the Judge cannot inquire into truthfulness of facts. Movant can demonstrate a lack of a genuine legal issue through: (1) Admissions in the pleadings (2) Discovery materials (3) Affidavits But neither party can rest solely on the pleadings! That’s not enough.


π can move for Summary Judgment any time after 20 days have passed since the start of the action, or after Δ files for Summary Judgment. Δ can move for Summary Judgment at any time.


Examples: A sues B. A moves for Summary Judgment. A introduces D’s affidavit, which supports A’s claim. B introduces nothing.  A wins Same facts as above, except that B swears and submits his own affidavit.  The Motion for Summary Judgment is denied, and the case proceeds to trial.

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XXII. 41(a)

DISMISSAL Voluntary Dismissal π can do it by: - motioning before the answer is served - by filing a stipulation of dismissal signed by all parties The first time π voluntarily dismisses, he does so “without prejudice”. If π’s done it before, though, this dismissal is done “with prejudice”. D can move for dismissal “with prejudice” for: - Failure to prosecute - Disobedience of court orders - Lack of jurisdiction - Improper Venue - Failure to join a party under Rule 19



XXIII. DEFAULT JUDGMENTS 55(a) If a party fails to plead & the pleading party swears an affidavit to that effect, default judgment is appropriate. Judgment can be granted either by clerk (in amount π specified, if sum was specified) or by the Judge. In conjunction with F.R.C.P. 60 (Relief From Judgment or Order), Default Judgment may be set aside if good cause is shown.



XXIV. RELIEF FROM JUDGMENT OR ORDER 60(a) 60(b) Clerical Mistakes Complicated – read it if it comes up.

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JUDGMENT AS A MATTER OF LAW F.R.C.P. 50 the old “Directed Verdict” - As a matter of law - Can be done any time after the opposing party has rested their case the old “Judgment Not Withstanding the Verdict” - Cannot ask for a 50(b) motion unless you raised a 50(a) motion (essentially, you are renewing that motion) - Must be made within 10 days of the verdict KIRCHER V. ATCHISON “Impossible” evidence The evidence is not capable of rational belief. GALLOWAY V. U.S. “Have to determine if the inferences are reasonable.” AETNA V. YATES Conflicting Evidence



DENMAN V. SPAIN “Hiatus” Evidence Gap in the evidence – no way for the parties to prove what happened.

JML is Appropriate! XXVI. NEW TRIALS F.R.C.P. 59 59(b)

Difficult to say…

JML = Inappropriate

A motion for a new trial must be filed within 10 days from when the judgment is entered. The Judge can grant a new trial in full, or a partial trial. It’s up to the Judge – Entirely discretionary. MANGANI V. TROGI: Judge gave poor instructions & ordered a new trial. Generally: very hard to overturn, because it rests on Judge’s observances & discretion.


XXVII. REMITTUR & ADDITTUR Remittur: Judge gives π option to take less $ or have a new trial. To lower a verdict, the verdict must shock the conscience. Addittur: not a valid option in the Federal Courts – has been held unconstitutional.

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Description: This is part 2 of my outline for John Cannon's civil procedure class at Villanova.