The Rules Flashcards
Rule 1:
Scope and Purpose – rules civil actions and proceedings in district courts to be followed by court and parties for just, speedy, and inexpensive actions and proceedings
Rule 2:
One Form of Action – there is only the civil action
Rule 4:
Summons – feat. Contents, service and waiving service
Rule 8:
General rules of pleating feat. Claims for relief, concision, directness, alternative statements and inconsistencies
8A
Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.
- In General. Each allegation must be simple, concise, and direct
- Alternative Statements of a Claim or Defense. – you get two or more and pleading is sufficient if at least one is sufficient
- Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.
Rule 11
Pleadings - feat. signing, motions, other papers, representations to the Court, sanctions
11A
Signing Pleadings ¬
- pleading/written motion/other paper must be signed by at least one attorney—or by party themselves if unrepresented.
- include signer’s address, e-mail address, and number.
- If not promptly corrected upon call-out, court must strike unsigned paper
11B
Pleadings – presenting pleading/written motion/paper = certification that
- Not presenting to harass/delay/run up costs
- Contentions warranted by existing law or nonfrivolous arg to change law
- Contentions have evidentiary support or will after discovery
- Denials of contention are warranted by ev or are reasonably believed based on lack of ev
11C
Pleadings – sanctions
- Rule 11b violated + (notice + opportunity to respond fail) -> sanctions
- Firm responsible for employee - Motion for sanctions
- separate from other motions
- name violation from 11B
- served under rule 5
- if violation in complaint corrected within ~21 days of service -> don’t present to court
- court may award prevailing party reasonable expenses including attorney’s fees - on the court’s initiative – can order a party to prove an action didn’t violate 11B
- nature – limited to deterrence, could include: nonmonetary deterrence, order to pay into court, payment for expenses and fees resulting for violation
- monetary sanction limits – must not use:
- against represented party for violating 11b2
- on its own (unless it used 11c3 before voluntary dismissal/settlement of claims against party/lawyers to be sanctioned)
11D
Pleadings – Inapplicability rule doesn’t apply to disclosures, discovery requests, responses, objections or motions under rules 26-37
Rule 16:
Pretrial Conferences – scheduling order, attendance, pretrial orders, final pretrial conference and orders, and sanctions
Rule 56:
Motion for summary judgement – “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” – feat. timing, procedures, availability and supportability of facts, judgement independent of motion (judge power), failing to request all requested relief, affidavits or declarations submitted in bad faith
56a
- A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought.
- The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
- The court should state on the record the reasons for granting or denying the motion.
56b
Timing of summary judgement – any time until 30 days after end of discovery (ELR)
56c
Procedures of summary judgement – how to determine whether there is dispute over a fact
- Is a fact genuinely disputed in ev? Party must support that it is by pointing to evidence of dispute in material record or support that it is not disputed by showing that there is no admissible evidence to contest it
- Admissibility objection – a party could object that the fact is not disputed by admissible evidence
- Not cited – judges can make rulings based on other parts of the record, not just the parts the parties point to
- Affidavits or declarations – if used to support or oppose motion, they must
- be made on personal knowledge
- set out facts admissible in evidence
- show that affidant/declarant is competent to speak to this issue
56d
Summary judgement – when facts are unavailable to nonmovant
• they need to specify why the facts are unavailable
• facts need to be essential to justify opposition
• the court could 1. Defer consideration of motion, 2. Allow time for affidavits, declarations or discovery, 3. Issue any other order
56e
Summary judgement – failure to properly support/address a fact – if they fail, the court can
- grant opportunity to support/address
- consider fact undisputed
- 2 + grant summary judgement
- Any other order
56f
Summary judgement – judgement independent of motion – after giving notice & time to respond, a court may
- Grant summary judgement for nonmovant
- Grant summary judgement for grounds not raised by a party
- Consider summary judgement on its own
56g
Summary judgement – failure to grant requested relief – if the court doesn’t grant summary judgement, they can still declare a fact is undisputed/established in case
56h
Summary judgment – affidavit or declaration in bad faith – if affidavit or declaration submitted in bad faith or just for delay + notice & reasonable time to respond -> may order submitting party to pay other party reasonable expenses, including attorney’s fees occurred as a result and/or held in contempt/otherwise sanctioned
38
Right to a jury trial – demand –
(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution—or as provided by a federal statute—is pre-served to the parties inviolate.
(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:
(1) serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served * * * .
(c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may—within 14 days after being served with the demand or within a shorter time ordered by the court—serve a demand for a jury trial on any other or all factual issues triable by jury.
(d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the par-ties consent.
rule 42
Consolidation; Separate Trials
(a) Consolidation. If actions before the court involve a common question of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
U.S. Constitution, Article III
Section 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. * * *
Section 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other
public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdic-tion; to Controversies to which the United States shall be a Party; to Contro-versies between two or more States; between a State and Citizens of another State; between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
28 U.S.C. § 1331
Federal Question
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
28 U.S.C. § 1332
Diversity of citizenship
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state, * * * ; [or]
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; * * *
