QUIMBEE CIVIL PROCEDURE QUICK STUDY

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CIVIL PROCEDURE: Civil cases in federal courts are governed by the Federal Rules of Civil Procedure (FRCP), and by provisions of Title 28 of the United States Code. References below to Rules refer to the FRCP, while references to Sections refer to Title 28.

JURISDICTION: In order to hear a civil case, a federal court must have (1) jurisdiction over the types of claims asserted (subject matter jurisdiction), and (2) jurisdiction over the parties (personal jurisdiction).I. Subject matter jurisdiction: The most important

types of subject matter jurisdiction are (1) arising-under jurisdiction (Section 1331) and (2) diversity jurisdiction (Section 1332). Other claims can sometimes be added to a case under (3) supplemental jurisdiction (Section 1367). Note: subject matter jurisdiction is not waivable; any party may challenge subject matter jurisdiction at any time, even for the first time on appeal.A. Arising-under jurisdiction: The well-pleaded

allegations of the plaintiff’s complaint raise a claim under the Constitution, laws, or treaties of the United States. This type of jurisdiction is sometimes called federal question jurisdiction.

B. Diversity jurisdiction: (1) There is complete diversity of citizenship between the plaintiffs and defendants, and (2) the amount-in-controversy requirement is met.1. Complete diversity: No plaintiff is a

citizen of the same state as any defendant.a. Individual citizenship: An individual

is a citizen of her state of domicile (i.e., principal home where the person intends to remain indefinitely).

b. Corporate citizenship: A corporation is a citizen of both (1) the state where it is incorporated and (2) the state where it has its principal place of business. The latter is the location of the company’s corporate headquarters or similar place where top management makes major decisions (the nerve-center test).

c. Unincorporated associations (e.g., partnerships): An unincorporated association is a citizen of each state where any of its respective members are citizens.

d. Foreign defendants (aliens): Complete diversity exists in (1) a suit between a

U.S. citizen and an alien, and (2) a suit between diverse U.S. citizens, when aliens are additional parties. In the latter case, the aliens need not be of diverse citizenship. Diversity jurisdiction does not extend to suits solely between aliens, and probably does not extend to suits with a U.S. citizen on one side and aliens on both sides.

e. Lawful resident aliens: Complete diversity does not exist between a U.S. citizen and a lawful resident alien who is domiciled in the same state.

2. Time of determining citizenship: A party’s citizenship for diversity jurisdiction is determined as of the time the case is filed.

3. Amount in controversy: The amount of the plaintiff’s claim must exceed $75,000.a. Aggregation of claims by a single

plaintiff: A single plaintiff may aggregate (add together) claims against a single defendant, even if those claims are unrelated. A single plaintiff may not aggregate against multiple defendants unless the defendants are jointly liable.

b. Aggregation of claims by multiple plaintiffs: Multiple plaintiffs may not aggregate their claims unless (1) the plaintiffs have a joint and common interest in the relief, or (2) the plaintiffs are part of certain class-action suits worth over $5,000,000 in total.

c. Claims and counterclaims: The plaintiff may not aggregate the plaintiff’s claim and the defendant’s counterclaim. Any permissive counterclaim must independently meet the jurisdictional amount. A compulsory counterclaim need not meet the jurisdictional amount.

d. Valuing non-monetary relief: The value of non-monetary relief is measured either by the value of the relief to the plaintiff, or the cost that the relief will impose on the defendant.

e. Challenge to amount in controversy: A party can successfully challenge the claimed amount in controversy only if it appears to a legal certainty that the

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plaintiff cannot recover more than $75,000.

f. Ultimate recovery irrelevant: If a plaintiff recovers less than the jurisdictional amount at trial, diversity jurisdiction is unaffected. However, the plaintiff may be required to pay costs.

C. Supplemental jurisdiction: Supplemental jurisdiction exists over claims that do not independently satisfy Sections 1331 or 1332, if the claims arise from the same transaction or occurrence as other claims within the court’s original jurisdiction. Note: the court has discretion to decline supplemental jurisdiction, even if the same transaction or occurrence requirement is met.1. Claims by plaintiffs in diversity cases:

Supplemental jurisdiction does not exist over claims by plaintiffs against parties who are joined after filing, if those claims would violate complete diversity. This rule does not extend to claims made by defendants.

D. Removal: The defendant can remove a case from state court to federal court if the federal court has subject matter jurisdiction. Under the well-pleaded complaint rule, the basis for federal subject matter jurisdiction must appear on the face of the plaintiff’s well-pleaded complaint. Removal is made to the federal court in the district and division where the state court is located.1. Procedure: (1) The defendant files a notice

of removal in the federal court and in the state court; (2) the defendant can remove within 30 days from receipt of the complaint or service of summons, whichever is earlier. If the case is not initially removable, the defendant can remove within 30 days of learning that the case has become removable. a. One-year limit in diversity cases: If

removal is based on diversity jurisdiction, then the defendant may only remove within one year after the case is filed.

b. Amount in controversy: If removal is based on diversity jurisdiction, the rules for the amount in controversy are the

same as if the case had been filed originally in federal court.

c. Defendants may not remove at home: A defendant may not remove a case if the defendant is a citizen of the state where the case is filed.

2. Remand: The plaintiff can ask the federal court to remand (send the case back) to state court. A motion to remand based on lack of subject matter jurisdiction may be made at any time, but a motion to remand on any other basis must be made within 30 days after the notice of removal is filed.

3. Joinder after removal: In a diversity case, if the joinder of additional parties after removal would destroy complete diversity, then the court may either (1) deny joinder or (2) allow joinder and remand the case.

II. Personal jurisdiction: A federal court has the same personal jurisdiction as the courts of the state where the federal court is located. Personal jurisdiction must (1) be authorized by the forum state’s law and (2) comply with the U.S. Constitution’s Due Process Clause. In addition, the plaintiff must correctly serve process on the defendant. Note: personal jurisdiction focuses on defendants, because the plaintiff consents to personal jurisdiction by filing the complaint. A. Types of personal jurisdiction: Personal

jurisdiction includes: (1) specific jurisdiction, (2) general jurisdiction, (3) in rem jurisdiction over property located in the forum state, and (4) quasi in rem jurisdiction over a defendant based on the defendant’s property in the forum state.

B. Traditional grounds: The following traditional grounds for personal jurisdiction are valid under the Due Process Clause:1. Domicile: The defendant is domiciled in

the forum state (i.e., lives there with intent to remain indefinitely).

2. Service while present in the state: The defendant is served with legal process while voluntarily present in the forum state.

3. Consent: The defendant: (1) expressly consents to personal jurisdiction, (2) implicitly consents to personal jurisdiction, e.g., under an implied consent statute, (3) enters a contract containing a forum-selection clause that is fundamentally fair,

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or (4) appears in the case but fails to object to personal jurisdiction either in the first pre-answer motion or in the answer.

C. Modern long-arm jurisdiction: A court may also have jurisdiction over a non-resident defendant under the state’s long-arm statute, if the application of the statute satisfies due process.1. Specific and general personal

jurisdiction: Specific jurisdiction and general jurisdiction are two types of long-arm jurisdiction.a. Specific jurisdiction: Specific

jurisdiction exists when the plaintiff’s cause of action arises out of the defendant’s contacts with the forum state.

b. General jurisdiction: General jurisdiction exists when the defendant’s contacts with the forum state are so continuous and systematic that the defendant is at home in that state, and can be sued there on any cause of action.

2. State long-arm statutes: A state’s long-arm statute indicates the extent to which the state will assert jurisdiction over non-resident defendants. Some states’ long-arm statutes list the situations where the state will exercise jurisdiction. Other states’ statutes extend jurisdiction to the maximum allowed by the Due Process Clause. The cause of action must fall within the statute before a state can assert long-arm jurisdiction.

3. Due process: If the state’s long-arm statute applies, then the application of the statute to the defendant must satisfy the two-part test under International Shoe and its progeny: (1) the defendant must have sufficient minimum contacts with the forum state, such that (2) the exercise of personal jurisdiction by a court in the forum state will comport with traditional notions of fair play and substantial justice. a. Sufficient minimum contacts: The

defendant must have sufficient minimum contacts with the state to establish either specific or general jurisdiction.

i. Specific jurisdiction: The defendant has minimum contacts for specific jurisdiction if the defendant purposefully avails himself of the privilege of conducting activity in the forum state, thereby invoking the benefits and protections of its laws. The defendant’s activities should be such that the defendant can reasonably anticipate being haled into court in the forum state.

ii. General jurisdiction: The defendant must have continuous and systematic contacts with the forum state. Examples include, without limitation, a person living in that state, or a corporation having its corporate headquarters in that state.

b. Fair play and substantial justice: Relevant factors include: (1) the state’s interest in regulating the defendant’s activity, (2) the state’s interest in providing a forum to the plaintiff, (3) the relative convenience to the parties, (4) whether an alternative forum exists, and (5) the desire to avoid multiple lawsuits.

4. Other sources of federal personal jurisdiction: Regardless of state law, a federal court may exercise personal jurisdiction if (1) a party joined under Rule 14 (interpleader) or 19 (compulsory joinder) is served with process within 100 miles of the federal courthouse, or (2) a federal statute provides jurisdiction.

5. Parties not otherwise subject to state jurisdiction: If the claim arises under federal law, and the defendant is not subject to personal jurisdiction in any state, the courts has personal jurisdiction to the extent consistent with the U.S. Constitution and federal law.

D. Constitutional notice and due process: Due process requires that the defendant receive notice and an opportunity to be heard. Actual service, substituted service, or (in certain cases) constructive service can fulfill this requirement. The defendant must be served with the summons and the complaint.

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1. Actual service: The defendant receives personal delivery of the summons and complaint.

2. Substituted service: The defendant receives notice by an authorized method of service other than personal service, such as abode service or service on the defendant’s agent.

3. Constructive service: The plaintiff publishes notice, such as an advertisement in a general newspaper, if the other methods are not possible.

E. Proper service of summons and complaint under federal law: For the federal court to have personal jurisdiction over the defendant, the plaintiff must serve the defendant with the summons and complaint in a manner authorized by Fed. R. Civ. P. 4.1. Who may serve: The summons and

complaint may be served by: (1) any person who is at least 18 years old and not a party to the lawsuit, (2) a U.S. or deputy marshal if the court so orders, or (3) any person specially appointed by the court.

2. When: Service must occur within 90 days after the complaint is filed, or else the court must either (1) dismiss the complaint without prejudice, or (2) order timely service within a specified time. The court must extend the time for service if the plaintiff shows good cause.

3. Proof of service: Unless the defendant waives service, the plaintiff must submit proof to the court that service was made.

4. Where: Service may be made in any federal district or foreign locale where the defendant is present.

5. How: The method of service may differ, depending on the identity and location of the defendant.a. Individuals in the United States: The

plaintiff must: (1) follow the law of the state where the federal court sits or the state where service is made; (2) serve the defendant personally; (3) serve a defendant’s authorized agent; or (4) leave the summons and complaint at the defendant’s abode, with someone of suitable age and discretion who lives there.

b. Business associations in the United States: The plaintiff must (1) follow the law of the state where the federal court sits or the state where service is made; or (2) deliver the summons and complaint to an officer or authorized agent (while also mailing the summons and complaint to the defendant if required by statute).

c. Foreign service: Outside the U.S., the plaintiff must follow any internationally agreed-upon method (such as the Hague Convention), or serve: (1) as prescribed or directed by the foreign nation’s law, if reasonably calculated to give notice; (2) as directed by a foreign judicial authority; (3) by personal delivery or by a form of mail that requires a receipt, if such methods are not prohibited by the foreign country; or (4) as ordered by the federal court, if not prohibited by any international agreement.

6. Objections to improper service: The defendant may waive an objection to a defect in service by: (1) failing to object in the first pretrial motion or in the answer (whichever is filed first), or (2) by contract.

7. Waiver of service: The plaintiff may request, and the defendant may supply, a waiver of service of the summons and complaint under the special procedures in FRCP 4(d). The defendant then gets additional time to answer the complaint. A defendant who waives service does not thereby waive any objections to jurisdiction or venue.

F. In rem and quasi in rem jurisdiction: In rem and quasi in rem jurisdiction involve a state’s power over property within its borders.1. In rem jurisdiction: A court has in rem

jurisdiction to adjudicate the rights of all persons over all property within the state’s borders. Before adjudicating in rem, the court must provide notice to everyone known to have an interest in the property.

2. Quasi in rem jurisdiction: Quasi in rem jurisdiction exists when a court seizes or attaches (seizes) the defendant’s property within the state, and uses the property as a basis for adjudicating claims against the

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defendant. These claims usually are unrelated to the property itself. The defendant’s liability is limited to the extent of the property that is attached. A federal court may exercise quasi in rem jurisdiction only when a defendant cannot be lawfully served with process through reasonable efforts. FRCP 4(n)(2). The defendant must have minimum contacts that provide some relationship among the defendant, the forum, and the litigation. The presence of the defendant’s property in the state may or may not satisfy this requirement. In any case, reasonable notice to the defendant is required.

VENUE: Venue is the geographic location of the federal judicial district where the case is heard. A court that has jurisdiction may not be the proper venue. Moreover, there may be more than one acceptable venue in a case.I. Waiver and consent: Any objection based on

venue is waived if the defendant fails to object to venue in the first pretrial motion or the answer, whichever is filed first. In addition, a party can consent to venue, including through a contractual forum selection clause in a contract.

II. Proper venue generally: The general federal venue statute, Section 1391, establishes proper venue in any federal district (1) where any defendant resides, if all defendants reside in one state; (2) where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the subject property is located; or (3) where any defendant is subject to personal jurisdiction, if no other district is available. Venue is determined at the time the case is filed.

III.Residency: Residency is determined as follows, for purposes of venue:A. Individual residence: An individual is a

resident of the judicial district where that person is domiciled (i.e., lives and intends to remain indefinitely).

B. Entity residence: A corporation or other entity that is a plaintiff resides in the judicial district where it has its principal place of business. An entity that is a defendant resides in any federal district where it is subject to personal jurisdiction in the case.

C. Corporations in states with multiple districts: If a corporation is subject to personal jurisdiction in a state with more than one federal district, then the corporation resides in any district where it would be subject to personal jurisdiction if that district were treated as a separate state. If there is no such district, then the corporation resides in the district where it has the most significant contacts.

D. Aliens: An alien defendant is subject to venue in any federal district. An alien’s citizenship is disregarded in analyzing venue as to other defendants.

IV. Changing venue: A court can change venue in several circumstances.A. Improper venue: If venue is improper, the

defendant may seek either (1) dismissal or (2) transfer to an appropriate venue. The court may transfer the case to any district and division where the case could have been filed originally. Thus, the court in the transferee venue must have subject matter and personal jurisdiction.

B. Forum non conveniens: Even if venue is proper, the federal court may dismiss or stay (temporarily stop) the case if it determines that the case is more properly heard in another judicial system, such as a state court or a court in a foreign country. Factors for decision include: the locations of evidence and witnesses, the costs of litigating elsewhere, and whether the plaintiff can obtain an adequate remedy in the alternative system.

C. Transfer when original venue is proper: Even if venue is proper, the court may transfer the case, for the convenience of parties and witnesses, and in the interests of justice. The case can be transferred to (1) any district and division where the case could have been filed originally, or (2) any district and division to which all parties consent. A valid forum selection clause is a recognized form of consent.

D. Applicable law upon transfer: If the original venue is proper, then a transfer does not change the law that applies to the case, unless the transfer is made under a forum selection clause. However, if the original venue is not proper, then the new court is free to apply whatever law it would normally use.

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V. Proper venue in cases removed from state court: In a removal case, the proper venue is the federal district and division where the state-court action is pending.

DETERMINING THE APPLICABLE LAW: A federal court in a diversity case must apply: (1) state substantive law and (2) federal procedural law. Courts applying state law may also need to choose which state’s law to apply. In limited situations, the courts may need to rely on federal common law. I. Definitions: Substantive law defines the rights of

the parties; for example, a law that sets out the elements of a tort claim. Procedural law governs the manner and means of enforcing those rights; for example, a rule that allows each party to serve 25 interrogatories on the other.

II. Choosing federal or state law: The courts use several approaches when it is unclear whether a law is procedural or substantive. A. Federal rule addressing the issue: If a valid

federal rule (or a federal statute) directly conflicts with state law on an issue, then the federal rule applies if the rule (1) is valid, (2) is arguably procedural, and (3) does not change any substantive right. The federal rule applies even if it leads to a different outcome than the state law.1. FRCP valid: The Supreme Court has never

held that a FRCP is invalid, or that a FRCP is not procedural. As a practical matter, the FRCP will always govern in this situation.

B. No applicable federal rule: If there is no federal rule addressing the issue, then the court applies an Erie analysis. 1. Two goals of Erie: The goals of the Erie

decision are (1) to discourage forum-shopping for a better result, and (2) to avoid inequitable administration of the laws. The Supreme Court has used at least four factors in analyzing cases under Erie. Any of these factors might apply in a given case. a. Outcome determination: State law

probably applies if the choice of federal or state law will significantly affect the outcome of the litigation.

b. Strong state interest: State law is more likely to apply when there is a strong

state interest in defining the rights of the parties.

c. Countervailing federal policy: Federal law is more likely to apply if there is a strong, countervailing federal policy at stake, such as the independence or functioning of the federal courts.

d. Twin aims of Erie: The court may ask whether federal or state law better serves the two goals of Erie, supra.

C. Determining the content of state law: If state law applies, the federal court can look to state statutes and state judicial decisions to determine what the state law is on an issue. If there is no existing state law on the issue, then the federal court must make an informed judgment about what the state’s highest court would say.

III.Choosing which state’s law to apply: A federal court must sometimes decide which state’s law will apply. Generally, a federal court must apply the conflict-of-law or choice-of-law rules of the state where the federal court sits. Typically, the law of the state with the greatest connection to the issues involved will govern, but be alert on an exam for any choice-of-law rules provided in the question.

IV. Federal common law: The federal courts do not have the power to make common law in the way that the states do. However, federal common law may control in narrow circumstances. A. Areas of significant federal interest: Federal

common law may exist if the federal government has a significant interest that is either superior to, or in conflict with, the laws of the states. Examples include admiralty, foreign relations, and cases implicating federal constitutional powers.

B. Filling gaps in federal statutes: Federal common law may be used to fill gaps in federal statutes. Examples include interpreting statutory terms, or recognizing an implied right of action under a federal statute.1. When to fill gaps: The decision to fill a

gap is influenced by the strength of the federal interest, the need for federal uniformity, the expectations of the parties, and the perceived intent of Congress in passing the statute. The more detailed a statute is, the less likely the courts are to fill gaps within the statute.

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2. Sources of gap-filling law: The federal courts will sometimes fill gaps by creating a uniform federal rule. At other times, the courts will adopt state law to fill a gap.

PRETRIAL PROCEDURE: Before trial in a federal court, the parties have the opportunity to: (1) seek certain pretrial remedies, such as preliminary injunctions; (2) file pleadings; (3) join all parties and claims; (4) provide and obtain information through discovery; and (5) cooperate in the pretrial management of the case, which includes a pretrial conference.I. Preliminary injunctions and temporary

restraining orders: At an early stage, any party can move for a preliminary injunction or a temporary restraining order (TRO) to preserve the status quo during litigation, or as a precursor to a permanent injunction.A. Preliminary injunction: A preliminary

injunction requires notice and a hearing. The moving party must show that: (1) it is likely to succeed on the merits of the claim; (2) it is likely to experience irreparable harm, with no adequate remedy at law, without the injunction; (3) the threatened injury outweighs any harm caused by the injunction; and (4) the injunction is not adverse to the public interest.

B. Temporary restraining order: A TRO can be issued without notice to the opposing party if the moving party can show: (1) it will suffer immediate and irreparable injury without the TRO; and (2) the party made efforts to give notice to the non-moving party or, if no such efforts were made, why notice should not be required. The opposing party can challenge a TRO on two days’ notice. A TRO expires within 14 days after issuance unless extended for good cause or by consent.

C. Security: The moving party must provide some form of security, such as a bond, upon issuance of a preliminary injunction or TRO, in case the relief is later found to have been improper.

II. Pleadings: Each party must give notice of its claims or defenses to the other parties in a signed pleading.A. Commencement of the action: A civil case

(civil action), commences when the plaintiff files the complaint with the court.

B. Complaint (FRCP 8): The plaintiff must set forth: (1) the grounds for subject matter and personal jurisdiction, (2) a short and plain statement of the claim, including sufficient facts to make the claim plausible on its face and, and (3) a demand for the relief sought. Certain matters, like fraud, must be pleaded with particularity as required by FRCP 9.1. Timing: The plaintiff must normally serve

the complaint on the defendant within 90 days after filing. [See Proper service of summons and complaint under federal law, supra.]

C. Answer (FRCP 8): Unless the case is dismissed on motion, the defendant must file an answer to the complaint. The defendant’s answer must (1) state any defenses, (2) admit or deny the allegations of the complaint, and (3) plead any affirmative defenses.1. Timing: Generally, the defendant must file

and serve the answer within 21 days after service of the summons and complaint. The defendant has 60 days if the defendant waives formal service. Certain pre-answer motions will extend this time. [See Motions, infra.]

2. Admissions and Denials: The defendant must admit or deny each separate allegation in the complaint. An allegation is deemed admitted if not denied. A denial must fairly respond to the substance of the allegations. There are several types of denial.a. General denial: The defendant denies

all the allegations of a pleading in good faith.

b. Specific denial: The defendant denies a specific allegation, or denies all allegations except those specifically admitted.

c. Qualified denial: The defendant admits part of an allegation but denies the rest of the allegation in good faith.

d. Denial based on lack of knowledge or information: The defendant denies an allegation based on lack of sufficient knowledge or information to form a belief about the truth of the allegation. This has the effect of a denial.

e. Denial based on information and belief: The defendant lacks full

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knowledge of an allegation, but denies the allegation based on sufficient information to form a good-faith belief that the allegation is false.

3. Affirmative defenses: Affirmative defenses require dismissal of the complaint, even assuming that the allegations in the complaint are true (e.g., statute of limitations). Affirmative defenses are waived if not pleaded in the answer.

4. Compulsory counterclaims: A counterclaim is compulsory, and must be pleaded, if it arises out of the same transaction or occurrence as the plaintiff’s claim and does not add a party over whom the court cannot acquire jurisdiction. A defendant who does not plead a compulsory counterclaim will be barred from raising it in any subsequent proceeding. However, a counterclaim is not compulsory if was already the subject of a pending case when the complaint was filed.

5. Permissive counterclaims: The defendant may raise, but is not required to raise, any counterclaim against the plaintiff that is not compulsory.

6. Crossclaims: The defendant may crossclaim against a co-defendant, and the plaintiff may crossclaim against a co-plaintiff. A crossclaim must arise from the same transaction or occurrence as the plaintiff’s claim or a counterclaim. All crossclaims are permissive.

D. Signature (FRCP 11): Every pleading, written motion, and other filed paper must be signed by the party’s attorney (or by a party who is unrepresented). Note: FRCP 11 does not apply to discovery materials, but FRCP 26(g) provides a similar rule for discovery.1. Representations: By signing, advocating,

or otherwise submitting a paper to the court, the submitter certifies that to the best of her knowledge, information, and belief, formed after a reasonable inquiry: (1) the paper has no improper purpose, (2) the legal contentions are warranted by existing law or a good-faith argument for changing the law, (3) the factual contentions have evidentiary support, or if so identified, are likely to have support after discovery, and

(4) the denials of factual contentions are warranted by the evidence, or if so identified, are reasonably based on belief or lack of information.

2. Sanctions: The submitting party, attorney, or law firm may be sanctioned on the opposing party’s motion or the court’s initiative (sua sponte).a. Safe-harbor provision: (1) The

opposing party must first serve the sanctions motion on the submitting party before filing it with the court; (2) the submitting party then has 21 days to withdraw or correct the violation. i. Not applicable to sua sponte

sanctions: The 21-day safe harbor provision does not apply to sua sponte sanctions. If the court raises the issue sua sponte, the court can simply order the offending party to show cause why the party has not violated Rule 11. The court does not need to provide a 21-day withdrawal or correction period.

b. Scienter: The general standard is objective unreasonableness, i.e., a reasonable person would have made inquiries that would have shown the Rule 11 violation. Some cases require subjective bad faith if the court imposes sanctions sua sponte.

c. Types of sanctions: Sanctions can be ordered against the party, attorney, or law firm responsible for the violation. A law firm is jointly liable for violations by its attorneys and employees, absent exceptional circumstances. Sanctions are limited to deterring repetition, and may include: (1) nonmonetary penalties, (2) orders to pay a penalty to the court, or (3) orders to pay the moving party’s attorney’s fees and expenses resulting from the violation.

E. Amended pleadings (FRCP 15): A pleading may be amended: (1) once as a matter of course, (2) with the opposing party’s written consent, or (3) with the court’s leave (permission).

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1. Once as a matter of course: A party may amend a pleading once without permission, (1) within 21 days after service of the party’s pleading; or (2) if a responsive pleading is required, within 21 days after service of a responsive pleading or a Rule 12 motion, whichever is earlier. [See Motions, infra.]

2. With consent or the court’s leave: In all other cases, a party may only amend with the opposing party’s written consent or the court’s permission.

3. Leave freely given: The court should freely give leave to amend when justice so requires (i.e., no prejudice or bad faith).

4. Response to amendment: A required response to an amendment must be made within the later of: (1) the time remaining to respond to the original pleading, or (2) 14 days after service of the amended pleading.

5. Amendment at trial: If evidence on matters outside the pleadings is presented at trial, and the opposing party objects, the court may allow the presenting party to amend a pleading to match the evidence. The court may also allow amendment at any time when issues not raised in the pleadings are tried by consent of the parties. The failure to amend in this manner does not affect the result of the trial.

6. Relation-back doctrine: An amendment is considered to have been filed on the date of the original pleading if: (1) the applicable statute of limitations allows relation back; (2) the amended pleading arises out of the same conduct, transaction, or occurrence set forth in the original pleading; or (3) if the amendment changes a party or the naming of a party, and (A) the amendment arises from the same transaction or occurrence as the original pleading, and (B) within the time provided for service, (i) the new party received sufficient notice that it will not be prejudiced in defending on the merits, and (ii) the new party knew or should have known that the plaintiff made a mistake regarding the proper party’s identity.

7. Supplemental pleadings: On motion and reasonable notice, and on just terms, the court may grant a party leave to serve a supplemental pleading that presents matters that occurred after the original filing.

III.Joinder: Claims and parties within the federal court’s jurisdiction may be included, or joined, in the action.A. Permissive joinder of claims (FRCP 18):

Any party asserting a claim against any other party (whether by complaint, counterclaim, or otherwise) may join as many claims as it has against the other party, as long as there is subject matter jurisdiction over each separate claim. The claims do not need to be related to each other.

B. Joinder of parties: A nonparty may be joined by: (1) permissive joinder or (2) compulsory joinder. 1. Permissive joinder of plaintiffs (FRCP

20): Multiple plaintiffs may join in one case if: (1) they seek relief jointly, severally, or alternatively, (2) their claims are based on the same transaction, occurrence, or series of transactions or occurrences, and (3) there is some question of law or fact common to all plaintiffs.

2. Permissive joinder of defendants (FRCP 20): Multiple defendants may be joined in one case if: (1) any right to relief is asserted against them jointly, severally, or alternatively, (2) their potential liability is based on the same transaction, occurrence, or series of transactions or occurrences, and (3) there is some question of law or fact common to all defendants.

3. Required joinder (FRCP 19): The court must join certain required parties, if possible. If a required party cannot be joined, then the court must decide whether to proceed or to dismiss the case.a. Required party defined: A person is a

required party if: (1) without that party, the court cannot provide complete relief among the existing parties, or (2) judgment in the required party’s absence may (A) impair the required party’s ability to protect his own interests, or (B) risk subjecting an

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existing party to multiple or inconsistent obligations.

b. Joinder of required parties: A required party must be joined if (1) that party is subject to service of process, and (2) the joinder will not destroy subject-matter jurisdiction; for example, by destroying diversity. If a party so joined objects to venue, and venue is improper, then the court must dismiss the party.

c. If required party cannot be joined: If a required party cannot be joined, the court must consider whether to proceed without that party or dismiss the case. Relevant factors include: (1) the extent to which judgment would prejudice the absent party or the existing parties, (2) the extent to which the judgment could be framed to lessen such prejudice, (3) whether the judgment would be adequate without the required party, and (4) whether the plaintiff would have an adequate remedy if the action were dismissed.

C. Misjoinder and severance (FRCP 21): The misjoinder, or wrongful joinder, of parties is not grounds for dismissal. The court may correct misjoinder by adding or dropping parties on motion or sua sponte. The court may also sever any claim against a party for separate trial.

D. Real party in interest (FRCP 17): An action must be brought by the party who possesses the substantive right on which the action is based. This party is the real party in interest. If the opposing party objects that an action has not been brought by the real party in interest, the court must allow a reasonable time for the real party in interest to be joined or substituted.

E. Impleader (FRCP 14): A party defending against a claim (the third-party plaintiff) may bring a third-party complaint against a nonparty (the third-party defendant) who is or may be liable to the third-party plaintiff for some or all of the original plaintiff’s claim. Impleader is used for indemnity claims, and not for a third-party plaintiff to assert a direct claim against a third-party defendant.

1. Third-party plaintiff: The third-party plaintiff may file a complaint: (1) without leave of court, within 14 days after serving an answer to the original claim, or (2) after this time, with leave of court.

2. Third-party defendant: The third-party defendant must (1) respond to the allegations of the third-party complaint, (2) assert any Rule 12 defenses to the third-party complaint, and (3) assert any compulsory counterclaims against the third-party plaintiff. The third-party defendant may assert: (1) any of the third-party plaintiff’s defenses against the original plaintiff, (2) any permissive counterclaims against the third-party plaintiff, (3) crossclaims against other third-party defendants, (4) any claims against the original plaintiff that arise from the same transaction or occurrence as the claims against the third-party plaintiff, or (5) claims against a nonparty by impleader.

3. Original plaintiff: The original plaintiff may assert a claim against the third-party defendant that arises out of the same transaction or occurrence as the original plaintiff’s claims against the third-party plaintiff. However, such a claim will be barred by the supplemental jurisdiction statute if the plaintiff’s claim would violate diversity.

4. Jurisdiction: The court will usually have supplemental jurisdiction over: (1) the third-party plaintiff’s claims against the third-party defendant; and (2) the third-party defendant’s claims, other than permissive counterclaims.

F. Intervention (FRCP 24): A nonparty to an action may choose to become a party by moving to intervene.1. Intervention of right: An intervenor must

be allowed to intervene if: (1) a federal statute grants an unconditional right to intervene, or (2) the intervenor has an interest related to the action that is not protected or adequately represented by existing parties.

2. Permissive intervention: The court has discretion to permit intervention if: (1) a federal statute grants a conditional right to

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intervene, or (2) the intervenor’s claim or defense shares a common question of law or fact with the existing action.

G. Interpleader (FRCP 22 or by statute): If multiple claimants assert a right to the same sum of money or piece of property, then all claimants can be joined in one action to decide ownership. Interpleader can proceed under FRCP 22 or by statute.1. Rule 22 interpleader: Rule 22 interpleader

can be raised as a claim or a defense. The action is subject to all the normal rules of jurisdiction and venue.

2. Statutory interpleader: Interpleader is also authorized by statute under Title 28 of the U.S. Code. There are three relevant statutes:a. Section 1335 confers subject matter

jurisdiction when the amount at issue is $500 or more, and at least one claimant is diverse from one other claimant.

b. Section 1397 allows venue in a district where any claimant resides.

c. Section 2361 gives a court personal jurisdiction over all claimants.

H. Class actions (FRCP 23): One or more representative parties may bring a collective action on behalf of all members of a group (the class).1. Prerequisites: A class action may only be

brought if: (1) the class is so numerous that joinder of all members is impracticable, (2) the case presents questions of law or fact common to all members, (3) the representative party’s claims or defenses are typical of the class, and (4) the representative party will fairly and adequately protect the class’s interests.

2. Types of class actions: Class treatment is permitted in three types of cases:a. Risks presented by separate actions:

Prosecution by or against individual class members would risk: (1) inconsistent decisions creating varying obligations, or (2) disposing of or impairing the interests of other potential class members.

b. Uniform relief appropriate: The opposing party has acted or refused to act on grounds that apply to the whole

class, so that relief for the entire class is appropriate.

c. Common issues and superior method: Common questions of law or fact predominate over individual questions, and a class action is superior to other methods of adjudication, considering these factors: (1) the members’ interest in individually controlling separate actions, (2) the extent and nature of ongoing litigation involving the same members and controversy, (3) the desirability of concentrating the claims in the chosen forum, and (4) the likely difficulties of managing the class action.

3. Certification and notice: (1) The court determines whether to certify the case as a class action based on the prerequisites and type of case. (2) If the class is certified, the court may provide notice of the class action to all members of the class. If the case is certified under the common issues and superior method category, then the court must provide notice, and must advise the class members that they may opt out of the class.

4. Diversity jurisdiction: In diversity cases, jurisdiction is determined by the citizenship of the class representatives. The amount in controversy is satisfied if any class representative’s claim is greater than $75,000. Any class member’s claim that is below the jurisdictional amount can fall within supplemental jurisdiction.

5. Settlement and dismissal: Any settlement or dismissal of a class action requires the court’s approval.

6. The Class Action Fairness Act (CAFA): CAFA expands federal jurisdiction over certain class actions.a. Jurisdiction: CAFA allows jurisdiction

over most class actions (1) with at least 100 class members, (2) where the amount in controversy is greater than $5,000,000, and (3) where at least one class member is diverse from at least one defendant. The class members may aggregate their claims to reach the jurisdictional amount.

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b. Removal: A CAFA class action is removable (1) even if all defendants do not agree, (2) even if the defendant is a citizen of the state where the case is filed, and (3) in a diversity case, even after a year has passed from when the case was brought.

c. Limitations: CAFA may not apply if two-thirds or more of the class members, plus at least one defendant, are residents of the state where the case was filed.

IV. Discovery: The parties must share evidence and information about their claims and defenses.A. Scope of discovery: The parties may discover

(1) non-privileged information that is (2) relevant to any party’s claim or defense, and (3) proportional to the needs of the case. Information can be discoverable even if it is not admissible at trial1. Limits on scope of discovery: The court

must limit a party’s discovery if: (1) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from a more convenient, cheaper, or less burdensome source; (2) the party seeking discovery has already had ample opportunity to obtain the information; or (3) the proposed discovery is privileged, irrelevant to a claim or defense, or not proportional to the needs of the case.

2. Electronically stored information: A party is not required to provide electronically stored information from sources that are not reasonably accessible because of undue burden or cost.

3. Work-product doctrine: Materials prepared by a party or its representatives, for trial or in anticipation of litigation, are not discoverable unless the requesting party can show: (1) a substantial need for the materials in case preparation, and (2) it is unable to obtain substantially equivalent information without undue hardship.a. Mental impressions: If the court

orders the discovery of work-product materials, it must protect against disclosure of a party’s or an attorney’s mental impressions, conclusions,

opinions, and legal theories concerning the litigation.

b. Contrast with attorney-client privilege: Attorney-client privilege only protects confidential communications between an attorney and client for the purpose of obtaining legal assistance. Protected work product encompasses material created by attorneys or non-attorneys for a wider range of purposes.

4. Expert witness discovery: Discovery differs for testifying experts and non-testifying experts.a. Testifying experts: If an expert might

testify at trial, a party may depose the expert. The work-product doctrine applies to (1) drafts of a testifying expert’s report, and (2) communications between an attorney and expert that do not involve either the expert’s compensation or the attorney’s communication of information used to form the expert’s opinions.

b. Non-testifying experts: A party may not discover facts known to, or opinions held by, an expert who has been retained in anticipation of litigation or to prepare for trial, and who will not testify at trial. The exceptions are (1) when the expert conducts a mental or physical examination of a party under Rule 35, and (2) in exceptional circumstances, when the requesting party cannot obtain information on the same subject by other means.

B. Protective orders: A person against whom discovery is sought can move for a protective order to protect against annoyance, embarrassment, oppression, undue burden, or undue expense. The moving party must show good cause, and must certify that it has made a good-faith effort to resolve the dispute without court action. The court may forbid or limit the requested discovery, prevent inquiry into certain matters, specify specific methods for disclosure, require a deposition to be sealed, or take steps to prevent disclosure of trade secrets.

C. Initial discovery conference: The parties must: (1) confer to discuss discovery and other

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matters at least 21 days before a scheduling conference is held or a scheduling order is due, and (2) develop and submit a discovery plan to the court within 14 days after the conference.

D. Mandatory disclosures: The parties must disclose certain information without waiting for a discovery request.1. Initial disclosures: In most civil actions,

each party must disclose specific information about witnesses, evidence, damages, and insurance. The disclosures are due within 14 days after the initial discovery conference, or, if the party is joined after the conference, within 30 days after being joined.

2. Expert testimony disclosures: At least 90 days before trial (or within 30 days after the opposing party’s expert disclosure, if the testimony is intended solely for rebuttal), each party must disclose: (1) any expert witness who may present evidence, and (2) a written expert report. The report must include the information specified by Rule 26(a)(2)(B), including the expert’s opinions, the basis for those opinions, the expert’s qualifications, and the expert’s compensation.

3. Pretrial disclosures: At least 30 days before trial, each party must identify: (1) each witness that it may call, (2) all witnesses providing testimony by deposition, and (3) each exhibit that may be offered.

E. Methods of discovery: The parties may use these methods in any combination or sequence.1. Depositions (FRCP 30 and 31): A party

may take and record the sworn testimony of any person (the deponent) in the presence of an officer who can administer oaths. The deposing party must give reasonable written notice to every other party of the time and place of the deposition. A deponent may be compelled to attend by subpoena. Each party may take a maximum of 10 depositions (one per deponent).a. Oral questions (FRCP 30): The

deponent may be examined and cross-examined as if at trial. A deposition generally may not exceed one day of seven hours.

i. Objection: An objection to a deposition question is noted in the record, but the deponent must answer the question unless the objection is made to: (1) preserve a privilege, (2) enforce a court order, or (3) present a motion to terminate or limit the deposition. Objections to questions or aspects of the deposition procedure can be waived if not made promptly.

ii. Motion to terminate or limit: The court can terminate or limit a deposition if it is being conducted in: (1) bad faith; or (2) a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.

b. Deposition on written questions (FRCP 31): (1) The deposing party serves questions on the other parties; (2) the other parties serve their own questions; (3) the appointed officer takes the deponent’s testimony under oath in response to the written questions.

c. Deposing an organization: The notice of deposition must describe the topics on which the deposing party will question the organization. The organization must then designate one or more persons to testify on its behalf.

d. Using depositions at trial: A deposition can be used at trial to impeach a witness, or to present the testimony of a non-party witness who is more than 100 miles from the place of the trial, who is unavailable due to death or illness, or who could not be subpoenaed. The deposition of a party can be used at trial for any purpose. Any use of a deposition at trial must be permitted by the Federal Rules of Evidence, as if the deponent were testifying in person.

2. Interrogatories (FRCP 33): A party may submit a set of written questions to another party to be answered in writing, and under oath, within 30 days. Each party can serve a

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maximum of 25 questions, including subparts.a. Answers and objections: The response

must answer the questions and state any objections. The party must sign the answers under oath, and the party’s attorney must sign any objections.

b. Business records: If either party can just as easily determine the answer to an interrogatory by examining the responding party’s business records, then the responding party may answer the interrogatory by identifying the records and making them available to the requesting party.

3. Requests to produce documents and tangible things (FRCP 34): A party may serve another party with a request to: (1) produce and permit inspection of documents, electronically stored information, and tangible things in its possession, custody, or control; or (2) allow inspection of land in that party’s control. The party must respond to the requests within 30 days. A nonparty may be compelled to produce documents by subpoena. [See Subpoenas, infra.]a. Answers and objections: The response

must be in writing and must (1) state that the items will be produced, or inspection permitted, or (2) state any objections.

b. Electronically stored information: The requesting party can specify the form in which electronically stored information is to be produced. The responding party can object to the requested form. If the responding party objects, or if the request does not specify a form, then the response must identify the form that the responding party intends to use. Unless a different form is requested, the responding party must produce the information as it is ordinarily maintained, or in a reasonably usable form. A party is not required to produce electronic data in more than one form.

4. Physical and mental examinations (FRCP 35): The court may order a party,

or a person under a party’s legal control, to submit to a physical or mental examination, if the person’s mental or physical condition is in controversy. The parties may also agree to an examination without a court order. An order for examination may only be made upon motion, for good cause, and on notice to all parties and the person to be examined. The examiner must provide a written report of the examination.

5. Requests for admission (FRCP 36): A party may serve another party with a written request to admit the truth of any matters relating to: (1) facts, (2) the application of law to facts, (3) opinions about facts or law, or (4) the authenticity of documents. The responding party must answer or object in writing within 30 days. Matters admitted are conclusively established for trial. A request is deemed admitted if not answered.a. Wrongful failure to admit: If a party

fails to admit a matter that the requesting party proves at trial, then the non-admitting party must pay the requesting party’s reasonable expenses, including attorney’s fees, incurred in proving the matter. The court may decline to award expenses if the failure to admit was justified.

F. Supplementing disclosures and responses: An incomplete or incorrect disclosure or response must be supplemented in a timely manner.

G. Subpoenas (FRCP 45): A person may be compelled to testify or provide documents and evidence by subpoena. Failure to comply with a subpoena is punishable as contempt of court. 1. Place of compliance: A subpoena can

require the recipient:a. to produce documents, or to attend a

trial, hearing, or deposition within 100 miles of where the person resides, is employed, or regularly transacts business in person;

b. to attend a trial, hearing, or deposition within the state where the person resides, is employed, or regularly transacts business in person, if the

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person subpoenaed is a party or an officer of a party;

c. to attend a trial in the state where the person resides, is employed, or regularly transacts business in person, if the person would not incur substantial expense in doing so.

2. Modifying or quashing subpoena: A subpoena must be modified or quashed if it: (1) fails to allow a reasonable time to comply, (2) requires a person to travel beyond the geographical limits, (3) compels the disclosure of privileged or protected matter, or (4) imposes an undue burden.

H. Discovery disputes and sanctions: 1. Signature requirement: Every disclosure,

request, response, or objection must be signed by the party’s attorney (or by an unrepresented party) to certify that, after a reasonable inquiry: (1) any disclosure is complete and correct; and (2) any request, response, or objection is for a proper purpose, warranted by existing law, and not unduly burdensome or expensive. The court must impose a sanction for violation of the signature requirement, which may include an order to pay the expenses and attorney’s fees caused by the violation.

2. Motion for order compelling discovery (FRCP 37): If a person or party fails to comply with a discovery requirement, the party seeking discovery may move for an order compelling discovery, and for appropriate sanctions for non-compliance. The motion must contain a certification that the movant has conferred, or tried to confer, with the opposition to resolve the matter without court involvement. The court is authorized to award expenses and attorney’s fees to the prevailing party.

3. Sanctions (FRCP 37): The court may sanction parties, attorneys, or other persons for failing to comply with a proper discovery request, failing to obey a court order compelling discovery, or other abuses of the discovery process. Sanctions are discretionary and can cover a wide range of consequences or penalties. Some of the most severe sanctions include dismissal, default judgment, or contempt of court.

V. Voluntary and involuntary dismissal (FRCP 41): A case can be dismissed voluntarily on the plaintiff’s initiative, or involuntarily on the defendant’s motion.A. Voluntary dismissal: The plaintiff may

voluntarily dismiss the complaint: (1) by filing a notice of dismissal before the defendant answers or moves for summary judgment, or (2) afterward, by stipulation of the parties or with a court order.1. Effect: A voluntary dismissal is without

prejudice, unless the stipulation, notice or order states otherwise. However, if a plaintiff has previously dismissed the same claim in state or federal court, the dismissal operates as an adjudication on the merits.

2. Pending counterclaims: If the defendant has pleaded a counterclaim and the defendant objects to dismissal, then the court may dismiss only if the counterclaim can remain in court as an independent claim.

B. Involuntary dismissal: The defendant can move for involuntary dismissal of the complaint for: (1) failure to prosecute, (2) failure to comply with the FRCP, or (3) failure to comply with a court order. Note: the court can also dismiss upon a defendant’s motion made under FRCP 12.1. Effect: An involuntary dismissal acts as an

adjudication on the merits, unless (1) the court orders otherwise, or (2) the dismissal is based on lack of jurisdiction, improper venue, or failure to join a Rule 19 party.

VI. Offer of judgment: At least 14 days before trial or a hearing on damages, a defending party may serve on an opposing party an offer to allow judgment against the defending party on specified terms. The opposing party has 14 days from service to accept the offer in writing.A. Effect: If the opposing party accepts an offer of

judgment, then the clerk must enter the judgment. If the opposing party declines the offer, and later obtains a less favorable judgment, then that party must pay the costs incurred after the offer was made.

VII. Alternative dispute resolution (ADR): The parties may use ADR to resolve a pending case without court involvement. Federal courts have

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authority to compel the use of ADR. The primary methods of ADR are mediation and arbitration.A. Mediation: A neutral third party (the mediator)

helps the parties discuss their claims and attempt to reach a voluntary settlement. The mediator has no authority to adjudicate the claims or to require settlement.

B. Arbitration: A neutral third party (the arbitrator) hears evidence and arguments, then makes an adjudication. The arbitrator’s decision can be either binding or non-binding on the parties, depending on the parties’ prior agreement. Arbitration awards are usually enforceable in federal court, and rarely can be vacated in federal court.

VIII. Pretrial management and scheduling (FRCP 16): The court can issue scheduling orders and require attendance at pretrial conferences for case management. A. Scheduling order: The court must issue a

scheduling order after the parties submit their discovery planning report, or after a scheduling conference. The scheduling order must limit the time for joinder, discovery, amended pleadings, and motions. The order may address other matters as required for efficient case management.

B. Pretrial conference and order: The court may hold one or more pretrial conferences for case management. The court may order attorneys and unrepresented parties to attend, or may order the parties themselves to attend to discuss settlement. The court may hold a final pretrial conference to formulate a trial plan, including a plan for the admission of evidence. 1. Pretrial order: The court should issue an

order after any pretrial conference that recounts the action taken. A pretrial order that is entered following a final pretrial conference can be modified only to prevent manifest injustice.

2. Sanctions: The court may sanction any party or attorney who fails to appear at a scheduling conference or pretrial conference, fails to participate in good faith in the conference, or fails to obey a scheduling order or pretrial order.

JURY TRIALS: In a jury trial, the jury is the finder of fact, and the judge decides all matters of law.

I. Right to a Jury Trial: The Seventh Amendment to the U.S. Constitution preserves the right to a jury trial in federal civil cases at common law, where the amount in controversy exceeds 20 dollars. The right to a jury trial may also be granted by statute. FRCP 38 expressly preserves both the constitutional and statutory jury trial rights.

II. Legal v. equitable claims: The right to jury trial applies to legal claims, but not to equitable claims. Legal claims are generally claims for money damages. Equitable claims include non-monetary relief such as injunctions and declaratory judgments.A. Analyzing right to jury trial: If the right to a

jury trial is unclear, the courts will analyze: (1) whether the cause of action is analogous to any action at law that existed in the 18th century, when the Seventh Amendment was ratified; and (2) whether the remedy sought appears to be legal or equitable. The nature of the remedy is the more important factor.

B. Combined legal and equitable claims: If a case includes both legal and equitable claims, then the legal claims must be tried to the jury first, after which the equitable claims are tried to the judge.

III.Jury demand and waiver: A party who wants a jury trial must (1) serve a written jury demand on the other parties within 14 days after the service of the last pleading relating to the issue, and (2) file the demand with the court. The demand may be contained in the demanding party’s pleading. Unless otherwise specified, the demand will be extended to all issues triable by a jury. A proper jury demand may only be withdrawn with the consent of the parties.

IV. Jury composition and verdicts: A federal jury must begin with six to 12 members, selected from a fair cross-section of the community. During trial or deliberations, a juror may be excused for good cause. A verdict must be returned by a jury of at least six members. The verdict must be unanimous unless the parties stipulate otherwise. The court must poll the jurors on their verdict if a party requests.

V. Jury selection: The judge or the parties may conduct voir dire, which is the questioning of prospective jurors. Each party is allowed three peremptory challenges, for which no reason need

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be given. Each party can challenge an unlimited number of jurors for cause, if the party believes that a juror cannot be impartial. The judge must rule on each challenge for cause. A. Forbidden peremptory challenges: No party

may use a peremptory challenge based on a juror’s race, ethnicity, or gender. One party may challenge another party’s use of peremptory challenges by raising an inference of forbidden discrimination. The party challenging the juror must then provide a non-discriminatory reason for the challenge. The judge then rules on whether the challenge should be permitted.

VI. Jury instructions: The parties must submit requested jury instructions in writing (1) at the close of evidence; or (2) thereafter, if the need for the instruction could not have been anticipated, or if the court permits. A. Objections to instructions: The court must

give the parties an opportunity to object to the instructions (or to a refusal to give an instruction) before final arguments. A party must object at this point, or at the first opportunity. Otherwise, the objection is waived.

B. Assignments of error: A party may assign as error (1) any error in an instruction to which the party properly objected; or (2) any refusal to give a properly requested instruction, provided that the party made a timely objection, or the court definitively rejected the instruction on the record.

C. Plain error: A court may always consider plain error in an instruction that affects substantial rights, whether or not a party previously objected.

MOTIONS: The parties can file oral or written motions before, during, or after trial.I. Rule 12 motions: Motions under FRCP 12 address

defensive matters such as jurisdiction, venue, and the contents of the pleadings.A. Timing of motions: Most Rule 12 motions are

filed before a party files a responsive pleading.B. Combining motions: A party normally may

file only one Rule 12 motion, which must include all of the party’s available Rule 12 issues.

1. Exceptions: The following defenses are exempt from the single-motion requirement: (1) failure to state a claim on which relief can be granted, (2) failure to join a Rule 19(b) party, (3) failure to state a legal defense to a claim, and (4) lack of subject matter jurisdiction. a. When raised: These exceptions can be

raised (1) in any pleading, (2) in a motion for judgment on the pleadings, or (3) at trial. A lack of subject matter jurisdiction can be raised at any time.

C. Motion for a more definite statement (FRCP 12(e)): A party can move for a more definite statement if he pleading is so vague or ambiguous that the party cannot reasonably prepare a response. If granted, the pleader must submit a more detailed pleading. Note: if a pleading is excessively vague, a party is more likely to file a Rule 12(b)(6) motion for failure to state a claim.

D. Motion to strike (FRCP 12(f)): The court may strike from a pleading any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter. The material stricken must be completely irrelevant or truly scandalous.

E. Motions to dismiss (FRCP 12(b)): Specific defenses available in a Rule 12(b) motion to dismiss are: (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficient process, (5) insufficient service of process, (6) failure to state a claim upon which relief can be granted (i.e., not plausible under any legal theory), and (7) failure to join a party under FRCP 19. A party must file a Rule 12(b) motion before filing the answer.1. Defense (1): May be raised at any time.2. Defenses (2)-(5): Waived unless raised in a

motion to dismiss or in a responsive pleading.

3. Defenses (6)-(7): May be raised in a pleading, motion for judgment on the pleadings, or at trial.a. Matters outside the pleadings: If

matters outside of the pleadings are presented with a Rule 12(b)(6) motion, then the motion must be treated as one for summary judgment under Rule 56.

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F. Motion for judgment on the pleadings (FRCP 12(c)): A party can move for judgment based solely on the pleadings, after the time for filing pleadings has passed.1. Matters outside the pleadings: If matters

outside of the pleadings are presented with a Rule 12(e) motion, then the motion must be treated as one for summary judgment under Rule 56.

G. Motion for summary judgment (FRCP 56): Judgment can be granted on any claim or defense if: (1) there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law. The moving party must either cite to evidence in the record to support its motion, or point out a lack of evidence to support the non-moving party’s claims.1. Inferences: The court must draw all factual

inferences in favor of the non-moving party.

2. Timing: A party can move for summary judgment up to 30 days after the end of discovery.

3. Affidavits: In addition to citing record evidence, a party moving for or opposing summary judgment may submit affidavits, which are sworn, written statements from witnesses. The facts attested in an affidavit must be admissible at trial.

4. Facts unavailable: If the non-moving party shows that it is unable to present facts to oppose the motion, the court may defer a decision, allow additional discovery, or issue any other appropriate order.

5. Summary judgment sua sponte: The court may raise the issue of summary judgment on its own initiative, and may enter judgment after the parties receive notice and an opportunity to be heard.

II. Trial motions: A party can request judgment as a matter of law during trial, before the case is submitted to the jury.A. Motion for judgment as a matter of law

(JMOL) (FRCP 50): A party can move for JMOL if there is no legally sufficient evidentiary basis for a reasonable jury to find for a party on a claim or defense. 1. Timing: A motion for JMOL can be raised

after the opposing party has been

completely heard on an issue, but before the case is submitted to the jury.

2. Inferences: The court must construe all the evidence, and draw all inferences, in favor of the non-moving party.

3. Credibility and weight of evidence: The court may not assess the credibility of witnesses or weigh the evidence.

4. Renewed motion for JMOL: If the judge denies the motion for JMOL, a party may renew the motion after trial. [See Post-Trial Motions, infra.]

III.Post-trial motions: After trial, a party may renew a motion for JMOL, seek a new trial, or otherwise challenge the judgment.A. Renewed motion for judgment as a matter

of law (JMOL) (FRCP 50): A party that moved for judgment as a matter of a law before the case was submitted to the jury may renew the motion within 28 days after the judgment is entered. The same legal standards apply as during trial. This motion may be combined with a motion for a new trial.1. Interaction with motion for a new trial:

If the judge grants JMOL, the judge must also conditionally rule on an included motion for a new trial. If the judge denies JMOL, then on appeal the non-moving party may raise any grounds for a new trial.

B. Motion for a new trial (FRCP 59): Within 28 days from entry of judgment, a party may move for a new trial if: (1) the verdict is against the clear weight of the evidence, (2) the damages are excessive, (3) the trial was unfair, or (4) prejudicial error occurred. The court may also order a new trial on its own initiative.1. Credibility and weight of evidence: The

court is permitted to weigh the evidence and assess witness credibility on a motion for a new trial.

2. Remittitur and additur: Remittitur means that the judge will order a new trial unless the plaintiff accepts a reduced damages award. Additur means that the judge will order a new trial unless the defendant agrees to an increased damages award. Additur violates the right to a jury trial, and is not allowed in the federal courts.

C. Motion to alter or amend a judgment (FRCP 59): A party can move to alter or

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amend the judgment within 28 days from entry of judgment.

D. Motion to correct clerical mistake (FRCP 60): A party can move to correct: (1) a clerical mistake or (2) a mistake arising from an oversight or omission. In addition, the court may correct any clerical mistake, oversight, or omission on its own initiative.

E. Motion for relief from judgment (FRCP 60): A party can move for relief from a final judgment, order, or proceeding for any reason that justifies relief, such as: (1) mistake, inadvertence, surprise, or excusable neglect; (2) new evidence that could not have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or misconduct by the opposing party; (4) the judgment is void; or (5) the judgment has been satisfied or discharged, is based on an earlier judgment that has been reversed or vacated, or is no longer equitable. Any such motion must be filed within a reasonable time, or, under (1), (2), or (3), within one year after the judgment is entered.

VERDICTS AND JUDGMENTS: I. Defaults and default judgments (FRCP 55): If

the defendant fails to plead or otherwise defend, and the failure is shown by affidavit or otherwise, then the clerk of court must enter the defending party’s default. This default must then be reduced to a default judgment. A. Default judgment on claim for sum certain:

If the plaintiff’s claim is for a sum certain, or a sum that can be calculated, the plaintiff can submit to the clerk a request for default judgment, accompanied by supporting affidavits. The clerk must then enter judgment for the amount requested, plus costs.

B. Default judgment in all other cases: In all other cases, the plaintiff must submit a motion for default judgment to the court. The court may then hold a hearing and accept evidence to investigate any necessary matters, including the amount of damages. A defendant who has appeared in the case is entitled to seven days’ notice of the hearing.

C. Minors and incompetents: A court may not enter a default judgment against a defendant who is a minor or an incompetent person unless

the defendant is represented by a fiduciary who has appeared in the case.

D. Setting aside default or default judgment: The court may set aside a default for good cause. The court may also set aside a default judgment under Fed. R. Civ. P. 60(b).

II. Forms of Jury Verdicts: The three forms of jury verdicts are (1) general verdicts, (2) special verdicts, and (3) general verdicts with answers to written questions. The court has discretion to decide which form of verdict to use.A. General verdicts: A general verdict decides

the case in favor of one party or the other, and states the amount of damages, without stating the jury’s particular findings of fact.

B. Special verdicts: The court submits written questions or forms to the jury on each issue of fact. The court must also give the jury any instructions that are necessary to enable the jury to answer the questions or complete the forms. The jury returns a special written finding on each issue by answering the questions or filling out the forms. 1. Issues not submitted: A party waives its

right to a jury trial on any issue that is not submitted to the jury, unless the party has demanded submission of the issue before the jury retires to begin deliberations. The court may make its own findings on any issue that is not submitted to the jury.

C. General verdict with answers to written questions: The court may require the jury to return a general verdict and to provide written answers to questions on one or more specific issues of fact. 1. Answers and verdict consistent: The

court must enter judgment on the verdict.2. Answers consistent with one another but

not with verdict: The court must (1) enter judgment according to the answers, (2) direct the jury to reconsider the answers and verdict, or (3) order a new trial.

3. Answers inconsistent with one another and with verdict: The court must (1) direct the jury to reconsider the answers and verdict, or (2) order a new trial.

III.Judicial findings and conclusions: A. When required: The court must state findings

of fact and conclusions of law (1) when a case is tried without a jury, (2) when ruling on a

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request for an interlocutory injunction, and (3) when entering judgment on partial findings under FRCP 52(c).

B. When not required: A court is not required to state its findings or conclusions when ruling on a motion, unless otherwise required by the FRCP.

C. Amended or additional findings: A court may amend its findings, or make additional findings, on a party’s motion filed no more than 28 days after entry of judgment.

D. Challenge and review of findings: A party may challenge the sufficiency of the evidence supporting the court’s findings. An appellate court may not set aside the judge’s findings of fact unless they are clearly erroneous. Any conclusions of law are reviewed de novo on appeal.

E. Judgment on partial findings: In a bench trial, the court may make partial findings of fact after a party has been fully heard on an issue, but before the close of the evidence. The court may enter judgment against the party as to any claim or defense that is resolved by that issue. The court must state its findings of fact and conclusions of law in support of its partial judgment.

IV. Claim and issue preclusion: These doctrines prevent the relitigation of claims and issues that have already been decided.A. Claim preclusion (res judicata): Prevents

relitigation of claims that were or could have been decided in a prior action. Preclusion occurs if (1) the first case ends with a valid, final judgment on the merits, (2) the parties are identical in both cases, and (3) the same cause of action is involved in both cases.1. Valid and final judgment: A judgment is

valid if it was rendered by a court that had subject matter jurisdiction and personal jurisdiction. A judgment is final if it completely resolves the claim, leaving nothing to do but to execute the judgment.a. Effect of pending appeal: A federal

judgment is considered final even if the judgment is being appealed. The finality of a state-court judgment is determined by the law of the state where the judgment was entered. Some states consider a judgment final only

when the appeal, or the time to appeal, has ended.

2. Judgment on the merits: Judgment on the merits includes, but is not limited to, judgment based on the substance of the parties’ claims and defenses. This includes summary judgment, JMOL, and judgment after trial. Other preclusive judgments include default judgments, dismissals for failure to state a claim under Rule 12(b)(6), and penalty dismissals, such as for discovery or Rule 11 violations.a. Judgments without preclusive effect:

Generally, a dismissal without prejudice lacks preclusive effect. This includes dismissals for lack of jurisdiction, improper venue, or failure to join a Rule 19(b) party.

b. Rule 41 adjudication on the merits: Under Rule 41, some dismissals are considered adjudications on the merits. These dismissals prevent refiling the same claim in the same court, but they might not have preclusive effects in other courts. See Pretrial Procedure, supra at V.

3. Identical parties: Identical parties include parties who are in legal privity with the parties in the previous case. a. Other parties potentially bound: A

party who is not identical or in privity might nonetheless be bound by a prior judgment if (1) the party agrees to be bound; (2) the party’s interest was adequately represented by someone with the same interest, as in a class action; (3) the party assumed direction or control of the prior litigation; (4) the party is acting as a proxy of a previous party; or (5) a special statutory scheme, such as bankruptcy, prevents successive litigation.

4. Same cause of action: A claim is part of the same cause of action if (1) the claim arises from the same transaction or occurrence as a previously litigated claim, or (2) the claim was, or could have been, raised in the prior case. This prevents parties from splitting their claims among multiple suits.

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B. Issue preclusion (collateral estoppel): Prevents relitigation of issues that have already been litigated and determined. Preclusion occurs if: (1) the identical issue of fact or law was raised in a prior case; (2) the prior case ended in a valid and final judgment; (3) the issue was actually litigated in the prior case; (4) the issue was necessary to the judgment in the prior case; and (5) the party against whom preclusion is asserted had a full and fair opportunity to litigate the issue in the prior case.1. Valid and final judgment: This is much

the same as for claim preclusion, supra. However, some judgments that are not claim-preclusive might support issue preclusion. For example, dismissal for lack of jurisdiction might preclude relitigation of the issues underlying jurisdiction.

2. Actually litigated: This includes issues argued at trial or during motions. This can also include issues resolved against a party who fails to present sufficient evidence at a point where evidence is required.

3. Necessary to the judgment: An issue is necessary to the judgment if the record discloses that it was necessary, or if it is reasonable to infer that the issue had to be decided in order to support the judgment.

4. Full and fair opportunity to litigate: The party against whom preclusion is used must have been a party to the prior case. However, even a prior party might have lacked a full and fair opportunity to litigate if: (1) the party lacked an adequate incentive to litigate the issue (e.g., not cost-effective to litigate), (2) the procedural opportunities in the prior case were so limited that relitigating the issue might yield a different outcome, or (3) the procedures in the prior case were defective (e.g., corrupted or otherwise flawed).

5. Offensive and defensive issue preclusion: Issue preclusion can be used offensively or defensively; mutuality is not always required.a. Mutuality: Mutuality is the

requirement that the parties in the current and prior cases be identical. This is not required for issue

preclusion, as long as the party against whom preclusion is used was a party to the prior case.

b. Defensive issue preclusion: A defendant seeks to prevent a plaintiff from relitigating an issue that the plaintiff litigated in a prior case. This type of preclusion is usually allowed: it promotes efficiency by keeping an unsuccessful plaintiff from repeatedly raising the same issue against new defendants.

c. Offensive issue preclusion: A plaintiff seeks to preclude a defendant from relitigating an issue that the defendant litigated in a previous case. This is usually not permitted, because it encourages serial litigation: instead of litigating promptly, prospective plaintiffs might wait for an adverse decision against the defendant that they can use strategically in later cases. This is unfair to a defendant who is forced to relitigate until one plaintiff wins and the rest can invoke preclusion. i. Sometimes permitted: The courts

sometimes do permit offensive issue preclusion, on a case-by-case basis, only if it is fair to the defendant. Factors include: (1) whether the defendant had sufficient incentive to litigate the issue previously; (2) whether the plaintiff could have joined the previous litigation, but chose not to in order to gain a tactical advantage; and (3) whether the defendant has procedural opportunities in the current case that might change the outcome on the issue.

V. Full faith and credit: Under the Constitution, each state must give full faith and credit to the legislative acts, records, and judicial proceedings of every other state. [U.S. Const. Art. IV, § 1.] This means that if a judgment is entered in one state, all other states must give the judgment the same effect it would have been given in the state where it was rendered. By statute, the federal courts must also give full faith and credit to judgments of state courts, and vice-versa.

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APPEALS: The U.S. Courts of Appeals hear appeals from the U.S. District Courts.I. Final Judgment Rule: With limited exceptions,

an appeal can only be taken from a final judgment. A final judgment is one that ends the entire litigation on the merits and leaves nothing for the court to do but to execute the judgment.

II. Interlocutory appeals: Interlocutory appeals are an exception to the final judgment rule.A. Partial final judgments: In a case with

multiple parties or multiple issues, if the judge expressly states that there is no just reason for delay, then the judge may enter a partial final judgment as to one or more parties or issues. A partial final judgment is immediately appealable. Otherwise, a partial judgment is not appealable before final judgment.

B. Interlocutory certification of questions of law (28 U.S.C. § 1291): An interlocutory order can be made immediately appealable if the judge states in writing that: (1) the order involves a controlling question of law, (2) there is substantial ground for difference of opinion on that question, and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. A party can then seek to appeal the order within 10 days. The appellate court has discretion to accept or reject the appeal.

C. Collateral orders: Collateral orders are appealable before final judgment. A collateral order (1) conclusively determines a disputed question, (2) which is completely separate from the merits of the action, if (3) the question involves an important right that would likely be irreparably lost if review were delayed until final judgment, thereby (4) making the question effectively unreviewable except upon an immediate appeal. A decision on presidential immunity is one example of a collateral order.

D. Request for writ of mandamus: A writ of mandamus is an order from a higher court requiring a lower court to do or refrain from doing something. Mandamus might compel a lower court to reverse a ruling, or order a lower court not to act in the absence of jurisdiction. A party may seek a writ of mandamus before final judgment. The appellate court has

discretion as to whether to hear the petition for the writ. Mandamus is an extreme remedy that may be used only where other remedies are unavailable.

III.Scope of appellate review: An appellate court normally may only review matters that were properly preserved in the lower court’s record.

A. Preserving error: To preserve an issue for appeal, a party must object contemporaneously with the error and state the grounds for the objection.

B. Offer of proof: If the court excludes evidence offered at trial, the offering party must state on the record what the evidence would show if admitted.

C. Plain error exception: An appellate court may review plain error, even if the issue is not preserved for appeal. Plain errors are those that seriously affect a party’s substantial rights, or unfairly prejudice the jury.

IV. Standards of appellate review: The appellate court applies different levels of review, depending on the type of question being appealed.

A. Issues of law and mixed issues of law and fact: These issues are reviewed de novo; that is, without deference to the trial court, as if the appellate court were deciding them for the first time.

B. Issues of fact decided by a judge: The appellate court may reverse only if the judge’s decision was clearly erroneous; that is, if the reviewing court has a definite and firm conviction that the judge made a mistake.

C. Issues of fact decided by a jury: The Seventh Amendment largely prohibits review of a jury’s findings of fact. A jury’s verdict or finding will be overturned only if there is a complete lack of proof, such that no reasonable jury could decide the same way.

D. Discretionary rulings by judge: A judge’s discretionary rulings are reviewed for abuse of discretion. The appellate court will not reverse unless the judge’s decision was clearly unreasonable.

V. Harmless error: An error is a harmless error if it does not affect the substantial rights of the parties. An appellate court will not reverse the lower court if it finds that the lower court’s error probably did not make a difference in the outcome of the case.

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