Federal Rules Flashcards
Federal Rule 4 - Summons
Hanna v. Plumer - Service of process can be made at D’s resident to any competent adult at that residence
(a) Summons - name court and parties, directed to D, name and address of P or P’s atty, time w/in D must appear and defend, signed by clerk, bear court’s seal
(c) Service - served with copy of complaint by any non-party that is 18+
(d) (1) Requesting a Waiver - at least 30 days to return
(d) (2) Failure to Waive - Court must impose expenses incurred to make service and reasonable expenses of any motion required to collect service expenses if D fails to sign and return the waiver
(k) (1) Territorial Limits of Effective Service - serving a summons or filing a waiver establishes personal jurisdiction over a D who is subject to jurisdiction of a court in the state where the district is located, who is a party joined under Rule 14 or 19 and is served within a judicial district of US and not more than 100 miles from where the summons was issued, and when authorized by federal statute
(l) Proving Service - Affidavit required to prove service to court unless service is waived
(m) Time Limit - D must be served within 90 days after the complaint is filed with the court
Federal Rule 8 - General Pleading Rules
(a) Modern complaint ingredients:
(1) recitation of basis for jurisdiction
(2) short and plain statement of the claim showing that pleader is entitled to relief
a demand for judgment for relief sought (Conley v. Gibson; Twombly; Iqbal)
does NOT need to state a COA
(b) Affirmative Defenses - state its defenses to each claim asserted against it and admit or deny the allegations asserted against it by an opposing party
denials respond to specific factual allegations (general denial is a mistake unless you have 100% confidence that everything in the complaint is inaccurate) or say they are “without knowledge or information sufficient to form a belief”
Alleging a lack of information will have the effect of a denial
If D fails to respond the allegation will be deemed admitted
(d) pleadings must be simple, concise and direct
Federal Rule 9 - Pleading Special Matters
(b) Fraud or Mistake; Conditions of Mind - in alleging fraud or mistake a party must state with particularity and circumstances constituting fraud or mistake. Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally (generally is relative - allows complaints to be allowed generally, but not to evade Rule 8 requirements)
Federal Rule 11 - Signing Papers; Sanctions
(a) all papers filed in court must be signed by an atty of record or by an unrepresented party - does not have to be verified or supported by affidavit unless separate statute requires
(b) atty, or unrepresented party, certifies that “to the best of the person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances: that the representation are not made for an improper purpose (delay or increased costs); that the claims, defenses and other contentions are warranted by existing law or by a non-frivolous argument for extending, modifying or reversing existing law or for establishing new law; that the factual contentions have evidentiary support or, if specifically identified, will likely have evidentiary support after discovery; or that the denials of factual contentions are warranted on the evidence or if specifically identified are reasonably based on belief or lack of information - applies to papers and oral representations that repeat written representations
(c) (1) after notice and opportunity to respond, the court may impose sanctions on a law firm, lawyer or party
(c) (2) M/Sanctions must be made by separate motion and must describe the specific conduct that forms the basis of the motion - “Safe Harbor”: must serve motion on the other party before filing with the court and allow the other party 21 days after service of the motion to cure the defect in their papers
(c) (3) sanctions on courts initiative - no motion needed
(c) (4) types of sanctions - monetary, non-monetary
Hadges v. Yonkers Racing
Federal Rule 12 - Defenses and Objections
(a) Time to Serve a Responsive Pleading - answer within 21 days of service of S&C, if service was waived under 4(d), then within 60 days after the request for a waiver
filing a Rule 12 motion sometimes delays the answer until the judge rules
(b) (6) motion to dismiss for failure to state a claim (Conley; Twombly; Iqbal)
(c) motion for judgment on the pleadings - court must accept the factual allegations as true based solely on the pleadings - requires that an answer be filed first - allows resolution of an issue or an entire case prior to discovery
(e) motion for a more definite statement - pleading is so vague as to make it impossible for D to frame a responsive pleading - should not be used as a substitute for discovery
(f) motion to strike a portion of the pleading or to strike irrelevant and prejudicial allegations
(g) Joining Motions
a motion under this rule can be joined with any other motion under 12.
also, limitations on further motions
(h) Waiving/preserving defenses.
1. when 12b2-5 can be waived
failing to either make it by motion or include it in a responsive pleading or in an amendment allowed by 15a1
2. allows other defenses to be raised at other times.
- Lack of subject-matter jurisditiction cane be raised at anytime and is never waived.
Federal Rule 15 - Amended and Supplemental Pleadings
(a) (1) pleader can amend ONCE without having to obtain permission from the court BEFORE a responsive pleading is filed, or, if no responsive pleading is required, within 21 days
(a) (2) In all other cases, a party may amend its pleading only with the opposing part’s written consent or the court’s leave. The court should freely give leave when justice so requires (“freely given” unless: undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies in previous amendments, undue prejudice to opposing party etc..)
(a) (3) guarantees 14 days to respond to the amended pleading
(b) concerns formally amending the pleadings if there has been consent to try issues not originally raised - failure to amend will have no effect on the result, but that amendment can be obtained at any time, even after judgment
(c) allows amendment to “relate back” to the date of the original pleading under specified circumstances: statute of limitations, claims or defenses that arise out of the same, transaction, conduct, or occurrence “set out - or attempted to be set out” in the original pleading
Beeck v. Aquaslide ‘N’ Dive Corp
Federal Rule 16 - Pretrial Conferences; Scheduling; Managment
Allows judge to do “active case management”
Represents the mechanism that our adversarial system has become more like inquisitorial models (judges more active in scheduling)
(a)(1-5) Make parties appear at pre-trial conferences
Narrow scope of issues for trial - Court can dismiss claims that the Court deems frivolous - Expert Witness Disclosure by such date, motions by such date etc…
Federal Rule 26 - Duty to Disclose
(a) (1)(A) - Must Disclose in Initial Disclosure (Unless exempted by 26(a)(1)(B)) - 1) Name, address, telephone number for every individual likely to have discoverable information and a list of the subject matter that the individual would testify to/information they provide would entail, unless that information is used solely for impeachment (to question somebody’s credibility), 2) a copy of all documents (including electronically stored info (ESI) and tangible things - unless used solely for impeachment, 3) computation of damages claimed by disclosing party, 4) insurance agreement under which insurance business may be liable to satisfy all or part of the possible judgment
(b) (1) can seek/obtain Discovery for: any non-privileged matter relevant to the party’s claims or defense proportional to the needs of the case
Info does not have to be admissible at trial in order to seek it in discovery
(b) (2)-(5)- limits on scope of discovery: privileged and work product materials, unreasonable cumulative or duplicative material, material that can be obtained from some other source that is more convenient, less burdensome, or less expensive, material that seeking party has had ample opportunity to obtain, burden or expense outweighs likely benefits of the material (considering needs of case, amount in controversy, parties’ resources, importance of issues at stake, and importance of discovery in resolving the issues)
(e) Duty to Supplement - duty to disclose this additional information in a timely manner that was received after initial disclosure
(f) Conference - parties must arrange for the disclosures in Rule 26(a)(1)(A), talk about the case to narrow issues and explore settlement options, discuss the preservation of potentially relevant evidence, develop a proposed discovery plan (which will be submitted to the court for approval or modification)
Federal Rule 30 - Depositions by Oral Examination and Rule 31 - Depositions by Written Questions
(a)(1) Served Upon Whom: parties and non-parties (Rule 45) - non-parties cannot be forced to attend a depo more than 100 miles from place of residence/employment/regular transaction of business AND must be served within that district or within 100 miles of depo site
Limits: limited to 10 depos, 1/person, 7 hours each
Info Sought: Depo can seek sworn testimony from specific individuals or subject matter if corporation. can also seek documents.
Effect of Testimony: can be used to impeach trial witnesses and transcript may also be admitted into evidence at trial. Objections can and should be made in order to preserve them for trial, but the witness will be instructed to answer the questions unless it seeks privileged info or the deponent is being asked questions beyond the limits imposed by the court
Look everywhere for info and then go to depo – you go to depo with all information you already received and studied in order to ask questions about the documents you have
Federal Rule 33 - Interrogatories to Parties (written requests for information)
Timing: Responses within 30 days
Serving: can only be served on parties
Limited in Number: Limit of 25 questions, unless permitted more by court
Responses: Party is obligated to make “reasonable investigation” to determine answer to the interrogatory
Types of Questions: can probe legal theory/factual support thereto with the questions
Signors/Effect: Interrogatories must be completed and signed by parties and have the same effect as admissions
(a)(2) Information being sought is relevant to the claims or defenses
(b)(4) Objections must be stated with specificity and if they are not stated in a timely objection if waived unless the court excuses the failure
Federal Rule 34 - Requests for Production
Served Upon Whom: Parties and non-parties (Under Rule 45)
Timing: Responses must be served within 30 days
Order of production: documents must be produced in the order in which they are normally stored
Includes ESI
Federal Rule 35 - Physical and Mental Examinations
Whom: only parties and only with a court order
When Allowed: Order of the court when mental or physical condition is “in controversy” and “for good cause”
Effect of Request for Report: if a party who is examined requests a copy of the report, they effectively waive privilege of their own medical reports involving the same condition (for all matters)
Federal Rule 36 - Requests for Admission
Served Upon Whom: Only parties
Effect: has the effect of admission in responsive pleading - If not admitted and it is later proved at trial, then parties are collaterally estopped from denying it in all other cases
Timing: 30 days to respond
Responses: if not admitted, need to deny or state in detail why answering party cannot truthfully admit nor deny - Can state lack of knowledge, but must state that reasonable inquiry was made
Get the party to admit something – to take it out of the controversy, so that the parties can focus on what is in dispute – narrow scope of litigation
Federal Rule 37 - Failure to Make Disclosures or to Cooperate in Discovery
(a)(3)(B)(iii) Move for an order compelling an answer to discovery - Party fails to answer interrogatory submitted under Rule 33
Federal Rule 38 - Procedure to Invoke Jury Right
Right to jury may be waived
At least one party must request a jury – it will not be provided as a matter of right without requesting it - Only one party must request a jury
