civ pro rule's outline (2)

8/3/2019 Civ Pro Rule's Outline (2)

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I. Fed. Rule 4 Summons:a. Fed. Rule 4.c. - Service:

1. Fed. Rule 4.c.1. - In addition to filing her complaint, the must also arrange to haveprocess served on the .

2. Or the under Fed. Rule 4.d. the may waiver service of processb. Fed. Rule 4.k.1.B. provides for the Bulge Rule

II. Fed. Rule 5 Serving and Filing Pleadings and Other Papers:III.IV. Fed. Rule 6 Computing and Extending Time; Time for Motion Papers:

a. Fed. Rule 6.a. - Computing Time :1. Fed. Rule 6.a.1.- Day of the Event Excluded- makes it clear that the day of the event that

triggers the relevant period (i.e.: service of process) is NOT included in that period.2. Fed. Rule 6.a.2. Exclusions From Brief Periods. - If the time being measured is less than

11 days, then Saturdays, Sundays and legal holidays are NOT included.3. Fed. Rule 6.a.3. Last Day- states that if the last day of the period falls on a Saturday,

Sunday or legal holiday, the act mybe performed on the next business day.4. Fed. Rule 6.a.4. Legal Holiday Defined. provides list of recognized legal holidays

b.

Fed. Rule 6.b. Extending time allows a party to move for an extension of time in which she isrequired to do something.

V. Fed. Rule 7 Pleadings Allowed; Form of Motions and Other Papers:a. Fed. Rule 7.a. - Pleadings - provides list of the only pleadings that are allowed.

1. Pleadings defined =documents in which claimant set forth their claims and defendingparties respond to the claims and raise defenses.

2. Purpose of Pleadings = inform the other parties of each partys contentions.3. Fed. Rule 7.a. list provides a list of 7 acceptable pleadings, but 3basic pleadings (in a typical

2-party case):i. Complaint Fed. Rule 7.a.1.ii. Answers Fed. Rule 7.a.2,3,4 and 6.iii. Reply Fed. Rule a.7.

4. When a party makes a motion to enter a particular order that is not considered a pleading.i. Fed. Rule 7.a.1. entitles a to file a complaint against a ii. Fed. Rule 7.a.2. entitles a to an answer to respond to a who has filed a

complaint against them.iii. Fed. Rule 7.a.3. entitles a to an answer to respond to a who raises a

counterclaim in his answer against the .iv. Fed. Rule 7.a.4. entitles a to an answer to respond to another on a crossclaim.v. Fed. Rule 7.a.5. entitles a party to file complaint against a 3rd partyvi. Fed. Rule 7.a.6. entitles 3rd party to an answer to respond to the 3rd party claim.vii. Fed. Rule 7.a.7. if the court so orders it, a reply to an answer.

b. Fed. Rule 7.b. Motions and Other Papers -1. Fed. Rule 7.b.1. In General- If a party wants the court to make an order, the party MUSTfile a Motion

i. Fed. Rule 7.b.1.A. Motion must be in writing (unless made during hreaing/trial)ii. Fed. Rule 7.b.1.B. Motion must state with particularity why she is seeking the

order.2. Fed. Rule 7.b.2. Form The same rules of captions and other matters of form in

pleadinds apply to motions and other papers.

VI. Fed. Rule 8 General Rules of Pleadingsa. Fed. Rule 8.a. Claim for Relief


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1. Introductory Notes:i. Fed. Rule 8.a. Although this rule usually applies to the , it can also apply to the

if the files a counter claim against the .ii. Sets forth 3 requirements of any s complaint (aka claim of relief) (will discuss in

further detail below)a. Fed. Rule 8.a.1.- Statement of the grounds of subject matter jurisdictionb. Fed. Rule 8.a.2. - Statement of the claimc. Fed. Rule 8.a.3. - Demand for the relief sought

iii. Lacking any of these 3 requirements, the s compliant will be dismissed usuallywithout prejudicea. without prejudice = the will be allowed to file an amended complaint in

which she corrects the problemiv. Fed. Rule 8 does not contain the word complaint in it but gives the rules for the

assertion of any claim.a. Rule 8 also applies to counterclaims, cross claim and 3rd party claims

2. Fed. Rule 8.a.1.i. Requires the to provide a short and plain statement of the grounds for the fed

courts jurisdiction.ii. Refers to subject matter jurisdiction NOT personal jurisdiction

a.28 U.S.C. 1331 Federal Questionb. 28 U.S.C. 1332 Diversity of Citizenship

iii. Since the has the burden of showing that her claims can be proven in federalcourt, she must satisfy Rule 8.a.1.first.

iv. The word resides should NEVERbe used when pleading Diversity of Citizenshipa. It is the parties citizenship that is relevant to a diversity claim

i. Residence is relevant to Venue.3. Fed. Rule 8.a.2.

i. Requires the to make her statement of the claima. If a s complaint does not state a claim, the court may dismiss the case on

its own without a motion by a party.b. If a s complaint states several claims and one is defective, the court may

simply dismiss the defective claim.i. Dismissal of this claim is usually without prejudice which allows the

to try again to state a legally sufficient claimii. A s complaint can be attacked for 2 different types of insufficiency: Legally

insufficient & Factually insufficient:iii. Legal Sufficiency:

a. To determine if the complaint is legally sufficient, the court looks only to theface of the s complaint NOT at any evidence.

i. The court asks: if the proved everything she has alleged here, would win?

1. In other words, does the law recognize a right to recover on thefacts she has alleged?

ii. If the answer in NO, litigation should cease because it would be awaste of the s and Courts time.

iii. If the answer is YES, litigation should continue to see whether the indeed can demonstrate what she has alleged.

1. This does NOT mean the wins but simply that the case cango forward to the next stages of the litigation stream.

b. The issue is not whether the will ultimately prevail but whether she is entitled to offerevidence to supporther claims

c. If it becomes clear that the cannot state a legally sufficient claim the courtwill dismiss the complaint with prejudice


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iv. Factual Sufficiency:a. To determine if the complaint is factually sufficient, the court looks to see

whether the has alleged enough to justify having the case proceed in thelitigation stream.

b. A compliant should not be dismissed for failure to state a claim unless it appears beyonddoubt that the can prove no set of facts in support ofhis claim whichwould entitlehimtorelief

4. Fed. Rule 8.a.3.i. Requires the to make her demand for the relief soughta. aka Prayer for relief

i. ORad damnumwhen seeking $$ relief.ii. If demands monetary relief, damages are usually pleaded as a lump sum

a. Except when asking for special damages (which the must plead in detail)b. is NOT required to plead a specific amountc. If a asserts the min amount of controversy of $75K in her Diversity of

Citizenship claim, the court could change it for more or less during the trail.iii. can also demand equitable relief.

a. Types of equitable relief:i. Injunctionii.

Declaratoryjudgmentiii. Rescission

iv. Reformationv. Specific performance

iv. s recovery is NOT limited by what she seeks in her demand for judgmenta. Fed. Rule 54.c. (Fed. Rule 54- Judgment; Costs) makes it clear that the is

entitled to recover whatever amount and whatever type of relief shownappropriate at trial, regardless of what she asked for in the demand.

i. EXCEPTION also found in Fed. Rule. 54.c.:1. In cases ofdefault judgments, the cannot recover more (or a

different kind of relief) than she sought in her demand forjudgment

b. Fed. Rule 8.b. Defenses; Admissions and Denials:1. Introductory notes:

i. Fed. Rule 8.b. Provides for the s answer to the complainta. Although this rule usually applies to the , it can also apply to the if the

files a counter claim against the and the must respond.ii. has 2 options of responding:

a. By Motion (as discussed in Fed. Rule 12)i. Motion pleading

b. By Answeri. Answer = pleadingii. In an Answer, the must accomplish 2 goals:

1. must respond to each allegation in the complainta. Guidelines are found in Fed. Rule 8.b (this rule)2. must raise affirmative defenses

a. Guidelines are found Fed. Rule 8.c.(discussed below)iii. Fed. Rule 8.b.1.A & Fed. Rule 8.b.5- tell the that there are 3 possible

responses to the s allegations. The can:1. Admit the allegations2. Deny the allegations3. Say lacks sufficient information on which to admit or deny.


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iv. Those 3 possible responses must be assessed against the seriousconsequences of Fed. Rule 8.b.6. The failure to deny an allegation inthe compliant is considered an admission of that allegation.

iii. Fed. Rule 11 of severe importance to this Rule.2. Fed. Rule 8.b.1. In General- provides what the responding pleading must contain:

i. Fed. Rule 8.b.1.A. a short and plain terms its defenses to each claim assertedagainst them.

ii. Fed. Rule 8.b.1. B. admit or deny the allegations asserted against it by the opposingparty.

a. 1st Type of Response = Admitting:i. The may simply admit various allegations because there certain

allegations that the can NOT deny in good faith.1. As Rule 11 requires, a party (and a lawyer) may not make

unsupported assertions.a. I.e.: It would be a violation for the party to deny an

allegation that the party (or lawyer) knows to be trueii. Admitting certain issues establishes points in an allegation as facts that

do not need to be adjudicatedb. 2nd Type of Response = Denial:

i.

Under the Fed. Rule 8.b.2. warnings (below) and the Fed. Rule 11guidelines, the should respond in the preferred wayby admittingwhat can be expressly admitted and to deny the remainder of theparagraph.

ii. Negative Pregnant = occurs when a denial is so specific that it leavesopen the possibility that the allegation maybyre true in a slightlydifferent respect.

iii. Conjunctive Denial = occurs when a party denies doing A, B andC,thus leaving the possibility open that they did only1 or 2 of the threethings rather than all of them.

3. Fed. Rule 8.b.2. Denials- a denial must respond fairly to the complaint allegations.i. This tells the to keep it simple

a. Dont get argumentativeb. Dont inject new factsc. Just deny it.

4. Fed. Rule 8.b.3. General & Specific Denials:i. First sentence A party can respond by a general denial when they are sincere and

truly applicable to the entirety of the paragraphs to which they apply.a. Parties need to keep Fed. Rule 11 in mind as its almost unlikely/super rare

that a can properly use a general denial and in good faith, deny everyallegation of the complaint.

i. If there is anythingin the complaint that should be admitted, the should admit it.

ii. Second sentence instruct that when a party intends to deny only part of anallegation, she must either specifically deny designated allegations or generally denyall th allegations except those specifically admitted.

5. Fed. Rule 8.b.4. Denying part of an Allegation: a party who in good faith denies only apart of an allegation, MUST admit the part that is true and deny the rest.

6. Fed. Rule 8.b.5. Lacking Knowledge of Information:i. 3rd Type of Response = Saying that lacks sufficient information:

a. If a party lacks information that would enable it to admit or deny a particularallegation, the party is allowed to plead that there are without sufficientinformation to form a belief as to the truth of the allegation.

ii. Thishas the effect of a denial.


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iii. Under Fed. Rule 11, the cannot use this 3rd response approach if:a. I.e.: she is in possession of the relevant information or if the matter alleged is

something of public recordiv. Availability of Info Hypos:

a. If the alleges something as to which the has no precise recollection, the cannot simply use Rule 8.b.5. to deny it

i. The must attempt to find the answer and then and only then if itsappropriate, to the deny itBUT

b. If the alleged something that is reallybeyond the s knowledge andinformation, the may use Rule 8.b.5 which will then be deemed as a denial.7. Fed. Rule 8.b.6. Effect of Failing to Deny:

i. If an allegation is not denied, it will be deemed an admitted allegation.c. Fed. Rule 8.c. Affirmative Defenses:

1. Introductory notes:i. In addition to responding to the allegations of the complaint, the will also assert

affirmative defenses in the answer.ii. As governed by Fed. Rule 8.b.2. the should not inject new facts in his response.iii. However, when the invokes affirmative defenses, they are injecting new facts into

the dispute.

a.

Affirmative Defense = a material addition to what the alleged in hercomplaint which if true, entitles the to judgment. It is a justification orexcuse that would absolve the of liability to the , even if the s claim isproven.

2. Fed Rule 8.c. the must affirmatively state ANYaffirmative defenses that may existincluding any of the 19 that are listed.

i. This means the has the burden of proving the affirmative defenses at trial and thusthe Rules give the s the obligations of pleading them in their answers.

3. Fed. Rule 8.c.1. Lists 19 classic affirmative defenses (but is not an exhaustive list) that the must allege in the answer if she intends to raise them at all.

i. Each affirmative defense is an example of how the can inject new facts to the caseand avoid liability.

a. Self-defense is not in Fed. Rule 8.c. but it IS an affirmative defense.ii. Failure to assert an affirmative defense = problems for the :

a. UNLESS the court allows the to amend its pleading to include previouslynot pleaded affirmative defenses and present evidence on them, the sfailure to assert an affirmative defense can:

i. Lead to the defenses being effectively waived ORii. Result in the beingbarred from introducing evidence on those

defenses.b. Rationale behind this rule:

i. should not be able to ambush the with defensive arguments thatare not the natural outgrowth of the s claim.

ii. If the is not notified of the s affirmative defenses, then the willnot be able to prepare and present its case in a way that address thosedefenses.

iii. Equation for Affirmative Defenses.a. will win ifA + B +C are proven as true unlessthe establishes an

affirmative defense.i. has the burden of proving the ifsii. has the burden of pleading the unless.

iv. Exceptions to this Rule:a. Claim for Defamationb. Claim for nonpayment of Debt


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d. Fed. Rule 8.d. Pleading to Be Concise and Direct; Alternative Statements; Inconsistency:1. Fed. Rule 8.d.1. In General-2. Fed. Rule 8.d.2. Alternative Statements of a Claim or Defense:

i. Permits the to plead alternative or inconsistent allegationsa. The must do so under the obligations found in Fed. Rule 11.b. 1-4

ii. Permits the to plead alternative or inconsistent defenses (in response to scomplaint)

a. The must do so under the obligations found in Fed. Rule 11.b. 1-4.3. Fed. Rule 8.d.3. Inconsistent Claims or Defenses:i. Regardless of the inconsistency, a party is permitted to list as many claims or

defenses as it has available to them.

VII. Fed. Rule 9 Pleading Special Matters:a. Fed. Rule 9.b. Fraud or Mistake; Conditions of Mind- imposes a heightened pleadingburden for

allegations of fraud or mistake.1. When fraud/mistake is alleged, a party must state with particularity the circumstances

constituting fraud or mistake.i. Detailed evidence is not required. Only that there is sufficient information which

identifies the fraud/mistake circumstances such that the will be able to form a

respond.b. Fed. Rule 9.g. Special Damages-1. If party is seeking special damages, the damages must be specifically state in order to be

claimed.i. Special Damages = Damages that are not natural or an inevitable result of injuries

that are included in the complaintii. Purpose of having this requirement: To protect opposing parties from being

surprised at trial by claims of damage that would not ordinarilybe the foreseeableresult of the alleged events.

VIII. Fed. Rule 10 Form of Pleadings:a. This rule gives general guidance for the form of all pleadingsb. Fed. Rule 10.a. Caption; Names of Parties concerns with form of all the pleadings and requires

that each party must have a caption with the courts name, a title, a file number, and a Rule 7.adesignation (type of pleading)

c. Fed. Rule 10.b. Paragraphs; Separate Statements - requires the party to set forth her allegations innumbered paragraphs, each limited as far as practicable to a single set of circumstances

d. Fed. Rule 10.c. Adoption by Reference; Exhibits provides that parties may attach a written ininstrument as an exhibit to a pleading, and that the instrument thus is considered a part of thepleading for all purposes.

1. BOTH Fed. Rule 10.b& Fed. Rule 10.c- expressly allows a party to make a reference in laterdocuments to those paragraphs in the pleading

IX. Fed. Rule 11Signing Pleadings, Motions and Other Papers; Representations to the Court;Sanctions

a. Fed. Rule 11.a. - Signature 1. Every document (pleading, written motion or other papers) MUST be signed by at least 1

attorney of record and must state the signers address, e-mail address and telephonenumber.

2. Provides that unless a rule or statute specially states otherwise, a pleading does not need tobe verified or accompanied by an affidavit.

i. verified pleading = a pleading that is executed under penalty of perjuryii. Which means = parties are not required to plead under oath.


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iii. Pleadings can be executed on the basis of the best information and belief of theparties

b. Fed. Rule 11.b. Representations to the Court- whenever a party presents a pleading, writtenmotion or other paper to the court, the attorney (or party themselves if no attorney representsthem) they are certifying that to the best of their knowledge and ability, what they are presenting tothe court pertains to ALL of the following:

1. Fed. Rule 11.b.1. is not presented for an improper use2. Fed. Rule 11.b.2. the legal contentions are warranted to by existing law or by nonfrivolous

arguments seeking to extend, modify or reverse existing law3. Fed. Rule 11.b.3. the factual contentions have evidentiary support OR will likely have

evidentiary support after a reasonable opportunity for further investigation or discovery4. Fed. Rule 11.b.4. the denials of factual contentions are warranted on the evidence OR are

reasonablybased on belief of lack of information.c. FedRule11.c. Sanctions - Provides that if the court determines that that an attorney or a client has

violated any of the representations (Fed. Rule 11.b.1-4 above) , they may impose appropriatesanctions on them

1. A law firm will be held jointly responsible for a violation made by its partner, associate oremployee.

X.

Fed. Rule12

Defenses & Objections: When and How Presented; Motion forS

ummaryJudgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pre-trial Hearinga. Fed. Rule 12.a. Time to Serve a Responsive Pleading:

1. General Gist: The must respond to the s complaint in the prescribed way within agiven period, or else risks losingby a default judgment.

b. Fed. Rule 12.a.1- In General. imposes the general requirement that the respond within 20 daysafter being served with process.

1. The has a choice on how to respond to the complaint BUT the must either serve ananswer or serve a motion under Rule 12 within 20 days after being served withprocessbecause either answer or motion will obviate the risk of default.

i. Fed. Rule 12.a.1.A & Fed. Rule 12.a.1.A.i deal with the timing for an Answerii. Fed. Rule 12.a.4. deal with the timing for a Motion

2. Fed. Rule 12.a.1.A. & Fed. Rule 12.a.1.A.i. = Answer & Timing:i. Answer = Responsive Pleading replies to the merits of the allegations raised by the

opposing party and raises affirmative defenses.ii. Benefit: Filingby answer first could buy the more time to develop facts supporting

a particular motion to dismiss.iii. Fed. Rule 12.a.1.A.ii.

a. If waives service of process under Rule 4.d. this rule permits the toserve an answer within 60 days after the sent the waiver form to the .

b. If the is outside any US judicial district, the has 90 days to answer afterhe was served process.

3. Fed. Rule 12.a.4. Effect of a Motion = Motion & Timingi. Important notes:a. Motion = a partys request to the court that the court do something/enter a

particular order.b. Benefit: Filing a motion first could result in dismissal of the case thereby

obviating the need to draft and answer at allii. Fed. Rule 12.a.4 provides that serving a motion under this rule changes the time in

which to serve the answer.iii. Motion Pleading so the phrase responsive pleading in Rule 12.a.1.A.refers

ONLY to the answer.a. Fed. Rule12.a.4.A. if the responds to the complaint by motion, and the

court denies the motion (or postpones its disposition), the MUST serve his


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answer within 10 days after being informed of the courts ruling on hismotion.

c. Fed. Rule 12.b. How to Present Defenses Provides a list of 7 defenses which the may chooseto raise in either her answer (aka affirmative defense) or by motion.

1. The most important thing to remember about Fed. Rule 12.b defenses are the waiverprovisions of Fed. Rule 12.g and 12.h. (see below)

d. Fed. Rule 12.c. Motion for Judgment on the Pleadings. permits the to file a motion forjudgment on the pleadings.

1. This is the same as a Fed. Rule 12.b.6 motion and the same standards apply. The difference?i. Fed. Rule 12.b.6.= is filed BEFORE the has served his answerii. Fed. Rule 12.c = is filed AFTER the has served his answer

2. When a Fed. Rule 12.c. motion is made, the court will take all the allegation of thecomplaint as true and determine whether they state a legally cognizable claim.

e. Fed. Rule 12.e. Motion for a More Definite Statement. Permits the to bring a motion formore definite statement

1. This motion addresses a complaint that is so vague or ambiguous that the party cannotreasonably prepare a response

2. This motion does NOT address legal or factual sufficiency (like a 12.b.6. motion) but isinstead aimed at a complaint that simply cannot be understood.

3.

The s 12.e. motion must point out the defects complained of and the details desired.4. The must make the 12.e. motion BEFORE answering.5. If the court grants the 12.e. motion, the has 10 days in which to provide her pleading with

more clarity.i. Under Fed. Rule 12.a.4.B. - The then has 10 days from when he was served with

the s newly clarified complaint, to respond.6. A 12.e. motion can onlybe used to challenge a pleading to which a responsive pleading is

allowed.f. Fed. Rule 12.f. Motion to Strike BOTH and are permitted to use this motion where the

court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinentor scandalous matter.

1. Insufficient Defense = insufficient as a matter of law or a may have failed to allege it withsufficient factual detail.

2. Redundant, immaterial, impertinent = material that is extended to great, unnecessary, ortedious length.

3. Scandalous matter = could lead the parties to ridicule, either to the jury or to the public.i. Where an allegation of outrageous behavior maybe relevant to a claim, unduly

derogatory allegations maybe stricken.Fed. Rule 12.f.2. Motion to Strike:

ii. Requires that the make this motion BEFORE responding to the complaintiii. Requires the to move to strike within 20 days after being served with the s

response.iv. This Rule also provides that the court can strike on its own

4. Motion to Strike is disfavored because it is often used simply to delay proceedings and israrely grantedg. Fed. Rule 12.g. Joining Motions:

1. Fed. Rule 12.g.1. - states that can join as many defenses as it has available t themi. Multiple motions in their response is permissible.

2. Fed. Rule 12.g.2. requires a who makes a motion under Rule 12, to join in that motion,a defense or objection that was available to the partybut omitted from its earlier motion.

i. In other words, if the omits from the first motion some Rule 12 defense that isavailable to her at that time, she cannot make a second Rule 12 motion.

a. Unless Fed. Rule 12.h.2 and 12.h.3 exceptions apply


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ii. In other words, omitting a Rule 12 defense from Rule 12 motion waives the right tobring a second motion under Rule 12.

a. Unless Fed. Rule 12.h.2 and 12.h.3 exceptions applyh. Fed. Rule 12.h. Waiving and Preserving Certain Defenses:

1. Fed. Rule 12.h. When Some are Waived - Requires the to assert Fed. Rule 12.b.2.,12.b.3., 12.b.4 and 12.b.5 in her FIRST RESPONSE or in her motion because if omitted,the defenses will be waived.

a. 12.b.2 - Lack of personal jurisdictionb. 12.b.3. - Improper venuec. 12.b.4. - Insufficient Processd. 12.b.5. - Insufficient service of process

ii. This means that if the chooses to file a Rule 12.b motion as her first response, sheMUST assert these 4 defense, otherwise, she WIAVES them.

iii. If the s first response is an answer, she MUST also assert these 4 defense,otherwise, she WAIVES them.

iv. Principle #1: These defenses MUST be put in the first defensive response underRule 12 (whether answer or motion).

a. Reason: These 4 defenses are threshold issues which ought to be determinedat the outset of the case.

b.

Since they are waivable, the burden is on the to raise them in her first Rule12 response (answer or motion) or else the will lose them.2. Fed. Rule 12.h.2. When to Raise Others. States that if asserts a Fed. Rule 12.b.6 or a

12.b.7. defense, they are NOT required to raise these defenses in the s first response.a. 12.b.6. failure to state a claim for which relief can be grantedb. 12.b.7. failure to join a party

ii. Principle #2: These defenses maybe raised anytime before entry ofjudgment by thetrial court

a. This means that the can raise these defenses at anytime through the end oftrial.

3. Fed. Rule 12.h.3. Lack of Subject Matter Jurisdiction states that a Fed. Rule 12.b.1motion can be raised at any time, even on appeal. (12.b.1. lack of subject matter

jurisdiction )i. Principle #3: This defense maybe raised at any time.

a. Policy behind this principle:limited subject matter jurisdiction is a matter ofgovernmental structure so if a case does not invoke federal subject matterjurisdiction, a federal court must dismiss, even if it has invested years in thecase under the incorrect impression that it had subject matter jurisdiction.

XI. Fed. Rule 13 Counterclaim and Cross Claim:a. Introductory Notes:

1. There are 3 different types of test to distinguish compulsory counterclaim from permissivecounterclaims:

1. Logical relationship- when looking at 2 claims makes sense to bundle them together.a. If you can, then the test is satisfied.2. Overlapping evidence Test- will some or all evidence used to support/oppose the s

claim also be used to support/oppose the s counterclaima. If yes, then the test is satisfied

3. Overlapping factual issue test:a. Ask: What are the factual issues in dispute to the s claim and then ask what are

the factual issues in dispute in the s counterclaim.i. If there are nay overlapping issues, then the test is satisfied.

b. Fed. Rule 13.a. Compulsory Counterclaim:1. Review Clark v. Associate Class- Handout


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c. Fed. Rule 13.b. Permissive Counterclaim:1. A counterclaim is permissive when it does not arise out if the same transaction or

occurrence.i. Permissive = party can assert it but they are not required.

d. Fed. Rule 13.g. Crossclaim against a Co-Party:1. A claim has to meet 2 important requirements in order to be a Crossclaim:

i. Claim is against a co-partya. Co- party = multiple parties on either side of the case are co-parties to each

other.ii. Claim against the co-party must arise for the same transaction or occurrence as the

original action or of a counterclaim therein.2. To be a crossclaim, the claim must be transcationally related to the underlying dispute

between the and .3. Rule 13.g. = PERMISSIVE

i. may a party is not required to file a crossclaim in the pending case.ii. There is NO such thing as a compulsory crossclaim

a. vs. the existence of a compulsorycounterclaim.4. Last Sentence: provides that a crossclaim may include an assertion that the co-party is or

maybe liable for all or part of the claim against the party asserting the cross claim

i.

This means that a crossclaim can include a claim against a co-party thats that co-party is liable for indemnity or contribution on the s claim.e. Fed. Rule 13.h. Joining additional parties: permits a to join a new party to its counterclaim or

crossclaim, SO LONG as the partyjoined satisfied either Rule 19 or Rule 20

XII. Fed. Rule 14 3rd Party Practice (aka Impleader):a. Introductory notes:

1. Only a defending party can join an absentee through impleader2. Important definitions:

i. Defending party = is party whom claim has been asserted againsta. Remember that a can be a defending part when counterclaims.

ii. Defending party asserting impleader = 3rd party iii. Absentee joined by impleader = 3rd party

3. Difference between Impleader and Crossclaimi. Impleader = asserted by a party against a co=party

a. Arises in cases for indemnity/contributionii. Crossclaim = asserted by a party against an absentee

a. Arises out of the same transaction or occurrenceb. Fed. Rule 14.a. When a defending party maybring in a 3rd party:

1. PIG PICTURE: This Rule creates 3 claims:i. The impleader claim under Rule 14.a.1. asserted by a defending party against the

absentee (TP) who may owe her indemnity/contribution

ii. The up-sloping 14.a. claim asserted by the against the absentee (TP) under theRule 14.a.3.iii. The down-sloping 14.a. claim asserted by the absentee against under Rule

14.a.2.D.TP

14.a claim(s)

13.a ImpleaderClaim

Original Claim


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2. Fed. Rule 14.a.1. Timing of the summons and Complaint:i. First sentence: permits a party who claims a right of contribution or

indemnification from a 3rd party to protect itself from potentially inconsistentverdicts by impleading/suing an absent party

a. The language =discretionary/PERMISSIVE, not mandatory (may v. must)ii. Last sentence: states that a defending party (aka 3rd party ) has a right to implead

within 10 days after she serves her original answer to the s complaint.a. Beyond 10 days, the 3rd party must make a motion seeing court

permission to implead.3. Fed. Rule 14.a.2. 3rd party s Claims and Defenses:

i. Permits a TP to assert a claim against and the claim must arise out the sametransaction or occurrence as the underlying dispute.

a. Fed. Rule 14.a.2.D. permits TP to assert a claim against if it arises fromthe same transaction or occurrence as the underlying dispute

i. may = PERMISSIVE.4. Fed. Rule 14.a.3. s Claims against 3rd party : permits the to assert a claim against

the TP

i.

Claim must arise out the same transaction or occurrence as the underlying dispute.ii. Rules says may = PERMISSIVEc. Fed. Rule 14.b. When a maybring in 3rd party: allows a which has been counterclaimed, to

implead.

XIII. Fed. Rule 15 Amendments and Supplemental Pleadings:a. Introductory Notes:

1. Amendments = Any change to any part of a pleading which can pertain to both/either legalissues or factual mattes.

i. Once they are changed, amendments supersede the original pleadings.2. Modern pleading provisions = liberal in allowing parties to amend their pleadings.3. Dual rule: party is interchangeable between and depending on the portion of the rule

b. Fed. Rule 15.a. Amendments Before Trial: allows pleadings to be amended or supplementedbefore the trail and address 2 kinds of amendments: as matter of course & permissive amendments

1. Fed. Rule 15.a.1. Amendments as Matter of Course: provides that a may amend oncebefore:

i. Fed. Rule 15.a.1.A. before party receives a responsive pleadinga. This rule defines when the has a right to amendONCE before the is

served with a responsive pleadingi. 3 cautions with this Rule:

1. There is NO time limitation in this Rule; the right to amend iscut offby the act of the (file his answer)

2. There is a right to amend onlyONCE; a 2nd amendment, evenif attempted before the responds, can ONLYbe made withthe courts permission.

3. The serviceof the responsive pleading cuts off the right toamend.

ii. Although this rule typically refers to a , a who asserts acounterclaim would also have a right to amend his counterclaim and

ii. Fed. Rule 15.a.1.B. within 20 days after serving the pleading if a responsivepleading is not allowed and is not yet on the trials calendar.

a. This rule defines when the has a right to amend ONCE within 20 daysafter serving her answer.

i. 2 cautions with this Rule:


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1. It can onlybe amended once; a 2nd amendment, even ifattempted within the 20 days , she must seek leave of court

2. The right to amend is cut offby the passage of days and NOTby the act of another party.

b. Although this rule typically refers to a , a who answers a s counterclaimwould also have a right to amend her responsive pleading under this Rule.

2. Fed. Rule 15.a.2. Other Amendments (aka Permissive Amendments):i. Provides that a party may amend ONLY if the opposing party consents in writing

OR if the court grants leave to amend.a. Applies in all cases in which there is no right to amend, and the leave of the

court is required.b. The court is not required to permit all amendments in all cases:

i. Rather the court evaluates the totality of the circumstances, balancingthe interests ofboth parties to determine whether justice would befurthered by permitting the amendment.

ii. This standard reposes great discretion in the District Court judge andindicates a preference for permitting amendments.

3. Fed. Rule 15.a.3. Time to Respond: says that whenever the amends (either by right orpermissive amendment), the defending party must respond within the time remaining to

respond to the original pleadingOR within 10 days after service of the amended pleading(unless the court orders otherwise)i. Time remaining = the time set forth in Rule 12.

a. This is usually20 days from the date of service so unless the court ordersotherwise, the will never have fewer than 10 days after service of theamended complaint in which to respond.

c. Fed. Rule 15.b. - Amendments During and After Trial:1. Introductory Notes:

i. This rules becomes relevant, if ever, only at trail.ii. Specifically, it only comes when a party seeks to introduce evidence at trial of a claim

of defense that she did not plead.iii. Although the rule does not say so expressly, this are variances:iv. Variances = someone is trying to put evidence of something that she did not plead.

a. maybe seeking to put evidence of a claim she did not include in complaintb. maybe seeking to put evidence of an affirmative defense not in answer.

v. Rule 15.b = modern day way of treating variances.vi. Variance = basis for objection by the other partyat trail.

a. In other words, when a party (either /) seeks to introduce evidence at triathat goes beyond the scope of her pleadings, the other party may object andask that court to exclude the evidence, so it will not be a part of the litigationof the trial record the fact-finder considers in reaching their conclusion.

vii. When faced with a variance, the other party can do 1 of2 things:15.b.1/15.b.2:2. Fed. Rule 15.b.1. Based on an Objection at Trial:

a. One Variance Scenario: the other party may object to the variance.i. Here, the court is concerned with the possibility of amending thepleadings at trail.

ii. In other words, if one party introduced evidence beyond the scope ofthe pleadings and the other party objects and asserts that the evidenceshould be excluded at trial, and the court agree with the other party,then the court will uphold the other partys objection and bar theintroduction of the evidence at trial.

b. First Sentence: However, provides that when the non-proffering partyobjects to the introduction of evidence from the party proffering it on theground of variance, the court maypermit the pleadings to be amended.


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i. In other words, despite the fact that the variance points out adeficiency in the pleading of the party proffering the evidence (and thatits so late in the game), the proffering partymight stillbe able to amendher pleadings to cover the issues raised by the evidence she isproffering at trial.

c. Second Sentence: provides the standard for allowing to amend:i. The court should freely permit an amendment when doing so will aid

in presenting the merits and the objecting party fails to satisfy the court

that the evidence would prejudice that partys action or defense on themerits

1. This standard demonstrates how LIBERAL the rules foramendments are.

a. This is a rare amendment.2. The burden to show prejudice = on the proffering party

d. Last Sentence: reminds the court that it can enter a continuance of the trailto allow the objecting/non-proffering party to do what she needs to do inorder to respond to the evidence presented by the proffered party.

3. Fed. Rule 15.b.2. For Issues tried by Consent:a. Another Variance Scenario: the other party may agree to allow the variance

i.

Here, the court is concerned with conforming the pleadings to theevidence.b. First sentence: provides that when the other party agrees to allow the

evidence, the issues address interest hat evidence MUST be treated in ALLrespects as if raised in the pleadings.

i. Essentially, the variance is ignored , the evidence is admitted at trailand the pleadings are treated as though they had originally included theissues raised by the evidence.

c. Second Sentence: provides that a party may move at any time (even afterjudgment) to amend the pleadings to conform them to the evidence and toraise an unpleaded issue.

d. Last Sentence: provides that failure to move at any time to conform theirpleadings with the evidence (failure to do the 2nd sentence) does not effectthe outcome of the trial.

i. In other words, if the one party introduced evidence beyond the scopeof the pleadings and the other party neither objected nor expresslyconsented, the first party can move to amend the pleadings to conformto that evidence to mirror what was actually litigated at trial.

d. Fed. Rule 15.c. Relation Back of Amendments:1. Introductory notes:

i. This Rule deals with amendment of pleadings AFTER the Statute of Limitations hasrun.

ii. The ability of an amendment to relate back to the time filingbecomes importantwhere the applicable statute of limitation has expired and relation back is the onlyway the new allegation will be treated as if it were timely.

iii. Relation back avoids the bar of Statute of Limitations2. Fed. Rule 15.c.1- provides for the amended pleading is treated as though it was filed when

the original pleading was filed under limited circumstances ( where the will not beprejudiced) so long as certain requirements are met:

a. Fed. Rule 15.c.1.A. deals with an amendment to add a new claim after thestatutehas expiredand provides that relation back apples when the lawprovides the applicable statute of limitations allows relations


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i. Translation = if the law providing the Statute of Limitations alsoexpressly allows relation back of amendments, then there will berelation back.

b. Fed. Rule 15.c.1.B. provides for relation back of amendments:i. Relation is permitted if the amended pleadings asserts a claim or

defense that arose out of the conduct, transaction or occurrence setout (or attempted to be set out ) by the original complaint.

ii. Rationale for this rule: If the amended pleading arises from the samereal-world events as the original pleading, the was put on notice ofher potential liabilitybefore the statute expired.

1. In other words, when an amendment seeks to infuse claimspertaining to a different set of events than those described inthe original complaint, the amendment will notrelate back.

iii. Appropriate use of Relation:1. When it IS:

a. If the amendment being added advocates a new theoryof liability arising from the same real-world eventsalleged in the original complaint.

b. If the amendment being added fixes a defectivejurisdictional allegation from the original complaint butconcerns the same real-world event as the originalcomplaint.

2. When it is NOT:a. If the amendment raises a new matter for which the

was not fairly put on notice by the original complaintiv. I.e.: may seek to leave to amend her complaint to add a new claim

(or the seeks to raise a new defense) after the statute has run.c. Fed. Rule 15.c.1.C. deals with an amendment to add a new after theStatute

of Limitationshas already expired.i. Here, the court is concerned that the new is not brought into the

case until after the statutory period.

ii. This rule allows relation back to bring in the new ONLY when 3requirements are satisfied:

1. Fed. Rule 15.c.1.C. - The claim arises from the same conduct,transaction, or occurrence as that stated in the originalcomplaint

2. Fed. Rule 15.c.1.C.i. - Within 120 days after filing of the originacomplaint, the new has received such notice of the suit thatshe will not be prejudiced in defending.

3. Fed. Rule 15.c.1.C.ii. Within the 120 days the knew orshould have known that the action would have been broughtagainst them, but for a mistake concerning the partys proper

identity.a. There is basically one class that falls under 15.c.1.C1.ii.

sued the wrong originally, but the right knew about the case and knew that, but for a mistake,she would have been named originally.

iii. Importance of Fed. Rule 4.m. in Fed. Rule 15.c.1.C:1. Requirements #1 & 2 (Fed. Rule 15.c.1.C.i and 15.c.1.C.ii.)

MUST be met within the Fed. Rule 4.m. 120 day period.2. Fed. Rule 4.m.- provides service should be effected within 120

days after filing of the complaint.


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a. In other words, the only thing that MUST absolutelyoccur before the Statute of Limitations runs out, is thefiling of the complaint.

b. So long as the new is put on notice within 120 daysafter the filing of the complaint, the Rule is satisfied.

e. Fed. Rule 15.d. Supplemental Pleadings:1. Introductory Notes:

i. Supplemental pleadings Amended Pleadingsa. Supplemental = pleadings that concern the assertion of things that occurredafterthe pleading was filed.b. Amendment = pleadings that concerns setting forth matters that occurred

beforethe pleading was filed, but that were not discovered (or at least notasserted) until after the pleading.

ii. Serve to update the parties and the court on the dispute bybringing to their attentionfacts that had not occurred when the pleading was filed.

2. First Sentence:i. Although parties have a rightto amend their pleadings, parties do not have such a

right to supplemental pleadings.a. The matter MUST be raised on motion by the party seeking leave to

supplement and the District Court judge has great discretion in determiningwhether to grant the motion.ii. The pleading sought out to be supplemented must set out anytransaction,

occurrence or event that happened after the date of the pleading to besupplemented.

3. Second Sentence:i. Provides that if even if the original pleading was defective, this rule permits

supplemental pleadings.4. Last Sentence: provides that the court may order that the opposing party plead to the

supplemental pleading within a specified time period.

XIV. IMPORTANT Introductory Notes to Joinder of Claims and Parties (Rules [17] & 18-20 & [21])a. Joinder of claims and parties involves the addition of claims and parties beyond the basic lawsuit

that contains only a single and a single .b. Fed. Rules focus mainly on the transaction or occurrence giving rise to the alleged liability.c. Policy reasons for trend of packaging transcationally related parties and claims into a single case:

1. Desire to promote efficiency and consistency and avoids2. Avoid the possibility of inconsistent outcomes, which can erode public confidence in the

justice system.d. Most of the joinder provisions are permissive:

1. Permissive = means that litigants may take advantage of their packaging potential but areNOT red to do so.

e. Joinder rules provide procedural tools for joining claims or parties1. Therefore, they do NOT affect personal jurisdiction, subject matter jurisdiction or venue.2. However, Joinder provisions have a lot do with Subject matter jurisdiction.

f. Subject matter jurisdiction1. Every claim joined in federal court must be supported by federal subject matter jurisdiction2. So, for every claim asserted, you must assess whether the claim involves an independent

basis (Diversity of Citizenship, Alienage or Federal Question)i. If the given claim does not involve an independent basis of subject matter

jurisdiction, then the claim can NOT be asserted in the pending case.g. Supplemental Jurisdiction allows a federal cot to hear a claim over which it does not have one of

the 3 major independent bases of subject matter jurisdiction


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1. ONLY available if the claim meets the requirements of Supplemental Jurisdiction Statuteunder 28 U.S.C. 1367.

h. Supplemental Jurisdiction is ONLY relevant for claims over which there is NO Diversity ofCitizenship, Alienage, or Federal Question

i. Whether a claim can be asserted (or a partyjoined) requires 3 steps:1. Is there a joinder provision in the Fed. Rules that allows assertion of this claim/or joinder

of this party?2. If yes to #1, does this claim/joinder of party invoke Diversity of Citizenship, Alienage or

Federal Question?i. If yes to #2, it maybe asserted in the pending case

3. If no to #2, then can the claim/joinder of party can nonetheless be asserted in federal courtbecause it invokes supplemental jurisdiction?

XV. Fed. Rule 17 Plaintiff and Defendant; Capacity; Public Officers:a. Fed. Rule 17.a. Real Party in Interest :

1. Fed. Rule 17.a.1. Designation in General: An action must be prosecuted in the name ofthe real party in interest.

i. RPI = person or entity possessing the right or interest to be enforced throughlitigation

a.

Serves a function to similar as the doctrine of standingbecause RPI ensuresthat the one who has the legal right being vindicated is the named claimantii. RPI Non-limitations:

a. Fed. Rule 17.a.1: a fiduciary maybe the RPI suing on behalf of othersi. I.e.: a trustee suing on behalf of trust beneficiaries

2. Fed. Rule 17.a.1.A. G. = list of people who may sue in their own names without joiningthe person whos going to benefit from the actions success.

3. Fed. Rule 17.a.3. - Joinder of the Real Party in Interest: provides that the court should notdismiss a case that is brought by someone other than the RPI UNTIL it has provided areasonable time for the to fix /cure the defect.

i. In other words, if someone who is an NOT an RPI asserts a claim, the court can notautomatically grant dismissal.

ii. Fed. Rule 17.a.3. also provides that if the matter is cured within a reasonable time,the RPI is treated as though she had been joined from the outset of the case.

a. But if the matter is NOT cured within a reasonable time, the court candismiss it.

b. Fed. Rule 17.b. Capacity to Sue and be Sued:1. This rule is broader than RPI

i. RPI = determines whether one holds the legal right to bring a claim in a particularcase.

ii. Capacity = is aimed at whether one has the general ability to function as a litigant asall.

2. Fed. Rule 17.b.1. court assesses a human capacity to sue/be sued by looking to the law ofher domicile

3. Fed. Rule 17.b.2. court assesses a business capacity to sue/be sued by looking at the lawof the state where the corporation was formed.

4. Fed. Rule 17.b.3.A.court assesses a partnerships and limited liability companies (LLCs)capacity to sue/be sued by looking at the law of the state in which the federal court sits.

i. This rule also allows a partnership/LLC to sue in its own name in federal court IF itasserting a Federal Question claim.

XVI. Fed. Rule 18 Joinder of Claims:a. Fed. Rule 18.a. provides that a party asserting a claim (also counter/cross/3rd party claim) may

join as many claims of any kinds as the party has against an opposing party.


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1. This rule essentially does not have any procedural requirements:i. The claims do not have to be related in any way and can be completely unrelated

transactionally, legally, and in terms of the remedy sought.ii. They can be independent or alternate claimsiii. They can be legal or equitable

2. Important notes on Open Season rationale:i. Allows the parties to settle all their overall disputes by allowing packaging of all

claims in a single proceeding.

ii. The party MAYjoin as many claims as she wishes= permissive rule = the party isnot required to assert all her claims in a single caseiii. Rule 18 applies to both and but Rule 18 will not apply to UNTIL they assert a

counter/cross/3rd party claim.3. A party can assert a joinder claim, ONLY if it invokes federal subject matter jurisdiction.

i. 1367.a. - Grants supplemental jurisdiction over claims that are part of the samecase or controversy as a claim that properly invoked federal subject matterjurisdiction.

a. This is satisfied if the claims share a common nucleus of operative factii. 1367.b. Applies ONLY in cases that invoked Diversity of Citizenship

b. Fed. Rule 18.b. Joinder of Contingent Claims:

XVII. Fed. Rule 19 Required Joinder of Parties:a. Introductory Notes:

1. Rule 20 a. is permissive so the does not have to employ it the fullest2. Persons the leaves out = absentees3. The NEXT question becomes: Can anyone override the s structuring of the case by

forcing the joinder of absentees?i. Yes- there 3joinder devices can restructure the s case:

a. Compulsory Joinder Rule 19b. Impleader Joinder Rule14c. Intervention Joinder Rule 24

4. Policy reasons for allowingjoinder devices to override s case structurei. Efficiencyii. Avoiding harm to absenteeiii. Avoiding harm to the . Impleader is based on 1 &3

5. Fed. Rule 19 is the MOST comprehensive provision overriding the s joinder choices.6. Parties & Potential parties (to civil case) fall under 1 of three categories

i. Proper parties:a. person who maybe joined, at the option of the because they have

sufficient connection to the disputeii. Required (necessary) parties:

a. Persons who the did not join in the case, but whose presence in the case isso desirable that the court will override the s choice by requiring them tobe joined ifjoinder is possible.

iii. Indispensable parties:a. Persons whom the did not join, and who (because they are necessary)

should be joined, but cannot be joined (due to i.e.:: courts lack ofjurisdictionover that person) and in their absence, the court has decided that it willdismiss the pending case rather an proceed without the absentee

7. Applying Rule 19 is ALWAYS case and fact specific andprescribes a 3-step process:i. 1.) 19.a. The court 1st assesses whether the absentee is a required-party.

Compulsoryembraces all 3

Intervention embodies 1 & 2

P

R

I


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ii. 2.) 19.b. If court finds that the absentee is a required-party, then the court has todecide if that party can be joined in the pending case at hand.

a. Court Assessment to determine if that party should be joined:i. Whether the absentee is subject to personal jurisdiction (19.a.)

1. subject to service of process = subject matter jurisdictionii. Whether the absentee, once joined, would have a valid objection to the

venue (19.a.3.)1. If absentee objects to the venue and his joinder would make

venue importer, the court must dismiss the absentee from thecase.

iii. Whether the absentee can be joined without affecting Diversity ofCitizenship jurisdiction; (19.a.)

1. Every claim in federal court MUST be supported by federalsubject matter jurisdiction.

2. Subject matter jurisdiction limitation on federal jurisdiction arenot waivable and the parties cannot avoid them stipulation

3. Fed. Rules CANNOT affect the jurisdiction of the federalcourts

a. So a claim asserted by or against the necessary partyMUSTbe assessed for subject matter jurisdiction.4. Supplemental Jurisdiction: If supplemental jurisdiction supports

the claims by or against necessary parties, it will render joinderfeasible because it will allow the claim to be joined in thepending case.

a. 1367.a.- When an absentee has an interest in thedispute and is so closely related to it that her interestmaybe impaired or her nonjoinder threatens the (or if counterclaims) with multiple or inconsistentobligations, supplemental jurisdiction is granted overthe claims by or against a necessary party.

b. 1367.b.- Since this provision apply s only in cases thatinvoked Diversity of Citizenship and then removessupplemental jurisdiction when the has a claimagainst persons made parties under Rule 19,Supplemental jurisdiction is NOT available in Diversityof Citizenship claims where:

i. Claims are asserted by the against anecessary partyjoined as a ; OR

ii. Claims are asserted by the necessary party ifshe is joined as .

b. Ifjoinder is seen as feasible in light of these 3 inquires, the party will bejoined under 19.a.2.

i. The court may order joinder of the absentee as a or 1. If absentee joined as , will amend original complaint tohave a claim against the newlyjoined .

2. If absentee joined as , she will file an appropriate pleadingsetting forth her claim.

iii. 3.) 19.b. If the absentees joinder is not feasible, the court must determine whetherin equity and good conscience, if the court should:

a. Determine 1 of2 things:i. Allow the case to proceed without the absentee

1. Problem: Court risks subjecting the /absentee to the kind ofharm Rule 19 intended to protect


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ii. Dismiss the case1. Problem: Court denies the her choice of forum.2. If the court goes with this decision, the absentee =

indispensiblea. Case will be dismissed under Rule 12.b.7.

b. 19b. governs the courts choice between the 2 options.i. Has a list of 4 factors that court must asses.

b. Fed. Rule 19.a. Persons Required to be Joined if Feasible: absentee will be required if the presentparty structure of the case satisfies any of the 3 following situations:

1. Fed. Rule 19.a.1 Required Party: states that the absentee must be subject to subject matterjurisdiction in order to be a required party:

i. Fed. Rule 19.a.1.A. (situation #1) provides that absentee should be joined if,without her, the court cannot accord complete relief among the existing partiesalready in the action.

a. This reflect equity principle of deciding disputes as whole rather than 1by1Promotes Efficiency

i. Fed. Rule 19.a.1.B. requires that the absentee claim an interest relating to thesubject of the suit

a. To qualify, the interest must be legally protected [and] not merely a financialinterest or interest of convenience.b. 19.a.1.B requires that the failure to join an absentee will harm someone:

i. Fed. Rule 19.a.1.B.i. (situation #2) will harm the absentee1. Absentee must have some interest in dispute2. This rule deals with Practical harm to the absentee because

generally, an absentee cannot suffer a legal harm if the caseproceeded as originally structured.

3. Absentees cannot be legallybound by the judgment in that caseii. Fed. Rule 19.a.1.B.ii. (situation #3) will harm the

1. must have some interest in dispute2. The absentee must be joined to prevent potential harm to an

existing party in the dispute (usually the )

a. Remember that a can be a defending party/existingparty if the has asserted a counterclaim against her

3. This rule is aimed at a specific kind of harm to the :a. The risk ofbeing put to dbl, multiple or otherwise

inconsistent obligations because of the absenteesinterest.

i. NOTE: obligations multiple litigation.ii. Therefore, it is not enough that a partys suit

structure threatens the to potential multiplesuits.

ii. Note: Difference between Rule 19.a.1.A & 19.a.1.Ba. Rule 19 .a.1.B requires that the absentee claim an interest relating to thesubject of the suit.b. Rule 19.a.1.A does NOT require that the absentee have any interest in the

pending case but it mandates that joinder to achieve efficiency2. Fed. Rule 19.a.2. Joinder by Court order: If the court finds that joinder of the absentee

passes the 3 inquire test, it is seen as feasible and the party will be joined.i. The court may order joinder of the absentee as a or

3. Fed. Rule 19.a.3. Venue: state that if an absentee objects to the venue and his joinderwould make venue importer, the court must dismiss the absentee from the case


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c. Fed. Rule 19.b. When Joinder is not Feasible: Governs the courts choice between allowing caseto move without absentee or dismissing the case which must be made in equity and goodconscious

1. Fed. Rule 19.b.1 -4 = factors the court looks at to consider in their determination:i. Whether there would be prejudice to the outsider or any of the exiting parties by

proceeding without that outsider;a. This is concerned with outsider/existing

ii. Whether the prejudice can be lessened through creative fashioning of the relief andjudgment ,

a. This asks if there is a way to reduce/lessen prejudiceiii. Whether a judgment with that party not participating would be adequate

a. This asks if the judgment would be adequate without the absenteeiv. Whether or not, telling the to go sue elsewhere would result in her not having an

adequate remedya. This asks if that if the case is dismissed, will he have a remedy under that

other place/forum?

XVIII.Fed. Rule 20 Permissive Joinder of Parties:a. Fed. Rule 20.a. Persons who may Join or be Joined:

1.

Introductory notes:i. Fed. Rule 20.a.- Allows the to decide how to structure her case:a. I.e.: whether to have multiple parties either on the side or the side.

ii. The same 2-part test is applied to Fed. Rule 20.a.1 and Fed. Rule 20.a.2.a. Arises out of the same transaction or occurrence OR series of transactions or

occurrences; andb. Raises at least one common question

iii. The difficult part encountered in Fed. Rule 20.a. is the 1st part of the testa. The 2nd part is usually obvious.

iv. Fed. Rule 20.a. continues the theme of packaging claims arising from and partiesinvolved, in a transaction or occurrence

a. The focus on the transaction (on the real-world grouping of facts)underlies the modern definition of claim for claim preclusions purposes.

b. Also underlies several claim joinder devices seen in Rule 18.v. This concept of transactional relatedness defines the general availability of

supplemental jurisdiction.vi. Important note: Fed. Rule 20.a. is regarded as a more broad rule because of the

language Arise out of the same transaction or occurrence OR series of transactions oroccurrence.

a. As opposed to other transaction-based joinder Rules such as:i. Fed. Rule 13.a.1. Compulsory counterclaimii. Fed. Rule 13.g. Cross claims

vii. Fed. Rule 20.a. = PERMISSIVEa. The rule give the the option to take or leave the joinder opportunity andtherefore the can engage in strategic choices.

viii. Reasons why would NOT join all possible s and/or s:a. Court might not have personal jurisdictionb. Including all the parties will make it impossible to invoke Diversity of

Citizenshipix. Reasons why would prefer/like to join all possible s and/or s:

a. Its less expensive and less burdensome to sue once than to file separate casesagainst each potential

b. Advent of nonmutual defensive issue preclusion gives the an incentive tosue several s at once:


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i. In other words, if the sued separately and lose against 1 , the inanother suit maybe able to use issue preclusion against the on anynegative findings.

c. can benefit from each of the co-s effort in the litigation to shift theblame from itself to another co-

d. Suing individual s allows them to whipsaw the . Occurs when.i. the in one case might convince the jury that the harm to the s is

not her fault, but the fault of someone who is not a party in this case

x. Reasons why the would prefer NOT to have co-s suing with them:a. Suing alone may allow the to recover from the first, before the other would get the s assets

b. can conclude that her cases is more compelling than the other s andadding the other would tarnish her case and divert attention from the juryfrom her to the other

c. Single s is more fair because she doesnt have to share the recoveryi. Generally, s will use Rule 20.a.2. to join all the potential s into a

single case, and keep center stage on themselves only.2. Issues of Subject Matter Jurisdiction:

i. Once has structured her case, she must determine whether:a.

the court has in personam jurisdictionb. the court is the proper venue

c. the court has subject matter jurisdictionii. Refer to the Hypos for further analysis of subject matter jurisdictioniii. Allapattah: clarifies howjurisdiction attaches in diversity cases:

a. If there is complete diversity, the presence of a single claim for > than $75K,invokes Diversity of Citizenship jurisdiction.

b. If there is not complete diversitybetween all the s and all the s, there isno diversity case at all and nothing to which supplemental jurisdiction canattach to.

3. Fed. Rule 20.a.1. Plaintiffs: defines who maybe joined as co-si. This rule prescribes a 2-part test = 2 or more mayjoin as co-s iftheir claims:

a. Arise out of the same transaction or occurrence OR series of transactions oroccurrences; and

b. Raise at least one common questioni. Common question can be either a question of fact OR question of law

4. Fed. Rule 20.a.2. Defendants: defines who maybe joined as co-si. This rule also prescribes a 2-part test = 2 or more mayjoin as co-s ifthe claims

against them:

a. Arise out of the same transaction or occurrence OR series of transactions oroccurrences; and

b. Raise at least one common questioni. Common question can be either a question of fact OR question of law

XIX. Fed. Rule 21 Misjoinder and Nonjoinder of Parties:a. Introductory Notes:

1. This rule is invoked when the structures her case in violation of Fed. Rule 20.a.b. Fed. Rule 21- provides that such misjoinder of parties is NOT a basis for dismissal of the case.

1. Instead, the court may choose to sever anyclaim against anyparty.i. Severance = 2 or more completely separate suits

a. Each suit will have its own docket number.b. Each suit will result in its own judgment.

ii. Separate trials = separate adjudications of a claim(s) that are part of an individualcase.


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2. Important Inference from this Rule: Under severance,Fed. Rule 42 might come into playi. I.e.:If a sues multiple s on a Rule 20.a. joinder basis but looses, the still might

win because Fed. Rule 21 allows a to use Fed. Rule 42 (Consolidation; SeparateTrials)

a. Refer to Fed. Rule 42below.XX. IMPORTANT Introductory notes for Discovery ( Fed. Rules 26, 30, 33, 34, 35, 36, 45)

a. Each party has 6 tools of discovery available:1. Depositions2. Interrogatories3. Requests for production Theses 5 are augmented by #6- Required disclosures.4. Medical examinations5. Request for admission6. Required disclosures

XXI. Fed. Rule 26Duty to Disclose; General Provisions Governing Discovery:a. Fed. Rule 26.a. Required Disclosures: requires each party to disclose something even though

nobody asked them to.1. Fed. Rule. 26.a.1. Initial Disclosures2.

Fed. Rule 26.a.2. - Disclosure of Expert Testimony3. Fed. Rule 26.a.3. - Pre-trial Disclosure

b. Fed. Rule 26.b. Discovery Scope and Limitsc.

XXII. Fed. Rule 30 Depositions byOral ExaminationXXIII.Fed. Rule 33 Depositions by Written Questions (aka Interrogatories )XXIV.Fed. Rule 34 Producing Documents (etc)XXV. Fed. Rule 35 Physical and Mental ExaminationsXXVI.Fed. Rule 36 Request for Admissions.XXVII.Fed. Rule 41 Dismissal of Actions:

a. Introductory Notes:1.

b. Fed. Rule 41.a. Voluntary Dismissal: Occurs when the filed a case and then wants to dismiss it.i. Fed. Rule 41.a.1. By the :

a. Fed. Rule 41.a.1.A.- In essence, this rule limits the ability of a to take avoluntary dismissal without a court order. Court involvement and consentare not required when either of2 things occur:

i. Fed. Rule 41.a.1.A.i. - the unilaterallyfilesnotice of dismissal beforethe s answer or service of a motion for summary judgment.

1. The requirement that the notice be filed makes it clear that thatit cannot be an oral notice- it must be in writing.

2. This dismissal is without prejudice unlessthe had previouslydismissed an earlier action involving the same claims.

ii. Fed. Rule 41.a.1.A.ii. Parties can stipulate to dismiss the case at anytime.

1. This requires that the get a signed agreement of all theparties who have appeared.

2. This dismissal is without prejudice unless stipulation expresslystates that it is without prejudice.

b. Fed. Rule 41.a.1.B. Effect:i. First sentence: Already mentioned above this rules makes it clear that

the dismissal but either of the methods stated in Rule 41.a.1. A., are


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generally without prejudice unless the had already dismissed theclaim.

ii. Second sentence: Where the first voluntary dismissal is withoutprejudice, and the re-files the case and then dismissed by filing anotice of dismissal (note: NOT by stipulation) that second dismissaloperates as an adjudication on the merits.

1. Also, second sentence in this rule makes it clear that this is trueregardless of whether the first case was in federal court or state

court.2. Adjudication on the merits = means dismissed with prejudice

and the claim is extinguished.iii. Applied to Fed. Rule 41.a.1.A.i. Dismissal is without prejudice unless

the had previously dismissed an earlier action involving the sameclaims.

iv. Applied to Fed. Rule 41.a.1.A.ii Dismissal is without prejudice unlessstipulation expressly states that it is without prejudice

2. Fed. Rule 41.a.2. By the court; Effect:i. First sentence: Provides for 2 things:

a. That in any situation not covered by Rule 41.a.1, the courts involvement isrequired where the court may grant a s motion for voluntary dismissal.b. That the court may impose whatever terms and conditions it deems proper.

ii. Second Sentence: expressly addresses dismissal of the case if a counterclaim ispending.

a. A court can dismiss a case pursuant to s request only if the scounterclaim can remain pending for independent adjudication.

b. If a counterclaim cannot remain in court, the court should not allow the todismiss her claim.

i. Rationale for this rule: to ensure that the s claim against the remainon the courts docket if the so desires.

iii. Last Sentence: provides that the courts dismissal under this rule is presumed to bewithout prejudice.

c. Fed. Rule 41.b. Involuntary dismissal; Effect:1. Introductory notes:

i. Rule 41.b. is not exclusive because there are other ways that the s case can beinvoluntarilydismissed:

a. All the defenses in Rule 12.b. may result in dismissalb. A violation of Rule 11 may result in dismissal.c. A sanction for violating Rule 26 Discovery rules may result in dismissal.

ii. Rule 41.b. permits dismissal of the action or any claima. There maybe circumstances in which dismissal of less than the entire case is

appropriatei. I.e.: when the fails to comply with a court order concerning a

particular claimiii. Even though Rule 41.b. expressly provides that a may move to dismiss for any

of the enumerated reasons, the Rule permits a District Court to dismiss sua spontewithout a motion by the .

2. First sentence:i. Provides that the can move for involuntary dismissal in 3 situations.

a. s failure to prosecute the casei. Fed. Rule 4.m.

1. Based on the s failure to serve within 120 days2. Dismissal is without prejudice.

b. s failure to comply with the Fed. Rules


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i. Fed. Rule 38: Failure to Make Disclosures or to Cooperate inDiscovery; Sanctions

1. Serious violation of discovery rulesc. s failure to comply with a court order.

i. Fed. Rule 38: Failure to Make Disclosures or to Cooperate inDiscovery; Sanctions

1. Serious violation of discovery rulesii. Permits dismissal of the action or any claim

a. can invoke wither Rule 41 or Rule 15 to dismiss an individual claimi. Rule 41 = Dismissal of Actionsii. Rule 15 = Amendments and Supplemental Pleadings

b. can invoke either Rule 41 or Rule 21 to dismiss an individual i. Rule 41 = Dismissal of Actionsii. Rule 21 = Misjoinder and Nonjoinder of Parties

3. Second sentence: addressed whether an involuntary dismissal is with prejudice (aka: operatesas an adjudication on the merits)

i. An involuntary dismissal IS usually adjudicated on the merits and thus ithe claim isextinguished.

ii. 2 Exceptions to this Rule:a.

The court may provide to the contrary in its order of the dismissali. In other words, if the court dismissed the case without pre judice it

does NOT act as an adjudication on the meritsb. If the dismissal is based on lack ofjurisdiction (either personal or subject

matter), improper venue, or failure to join a party under Rule 19, the courtcan dismiss the case without prejudice where the dismissal is not consideredto be on the merits.

iii. Rationale for Exceptions: Since those dismissals essentially deal with the courts lackof power over the case, those dismissals do not address the merits of the case in anyway and thus should not bar the from reasserting the claim.

iv. General Rule = any involuntary dismissal (except one based upon jurisdiction, venueor indispensible parties) is deemed to be with prejudice.

d. Fed. Rule 41.c. Dismissing a Counterclaim, Crossclaim, or 3rd party claim:e. Fed. Rule 41.d. Cost of Previously Dismissed Action:

XXVIII. Fed. Rule 42 Consolidation; Separate Trials:a. Introductory Notes:

1. This rule permits a court in which 2 or more separate cases are pending to consolidate thecases for any or all purposes.

i. Requirements:a. That the separate cases involve at least one common question of law or fact.b. That the cases be pending in the same federal district.

2. Consolidation simply means that those cases will be treated together for whatever purposesthe court deems appropriate.

i. Consolidation does NOT merge the casesa. They are still separate cases and will result in different adjudications.

b. Fed. Rule 42.a.- Consolidation:1.

c. Fed. Rule 42.b. Separate Trials:d.e.f.g.h.


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XXIX.Fed. Rule 55 Default; Default Judgment:a. Important starting notes:

1. Fed. Rule 55 is NOT the only provision that can result in a default judgment against a .i. I.e.: default judgment can be entered against for failing to abide by discovery

provisions2. Difference between Default v. Default judgment:

i. Default = a notation made by the court clerks office on the docket sheet for thecase indicating that the has failed to respond within the rime required by Rule 12

(w/in 20 days)a. Does NOT entitle the to relief.b. Is found in Fed. Rule 55.a.

ii. Default Judgment =the actual judgment entered against a who has failed to pleador otherwise defend the s claim.

a. In order to obtain relief, the MUST obtain a default judgment.i. In other words, if gets default judgment, gets her relief.

b. A default must firstbe ordered, for a default judgment to be obtained.i. In other words, the entry of default is an absolute prerequisite to

obtaining a default judgment.c. Is found in Fed. Rule 55.b.

3.

Steps to obtain Default judgmenti. files a complaint against ii. fails to timely respond under Rule 12iii. then seeks an entry of default.iv. When this is done, can seek entry of default judgment.

4. Default is usually entered by the clerk of the court and not by the judge.i. Clerks of the court law clerks.

a. Clerks of the court = employees of the court system who are required tooversee the filing of documents and maintenance of files and otheradministrative tasks.

b. Law Clerks = recent law school graduates hired by a judge (or court itself) toprovide research and drafting assistance for the judge.

b. Fed. Rule 55.a. - Entering a Default - Provides that the clerk has no discretion in the matter.1. If the shows by affidavit or otherwise that the *** has failed to plead or otherwise

defend as provided by these rules, the clerk shall enter the s default.i. ***Although its generally the s failure to respond, remember that it can be any

defending party as a can sue a in a counterclaim.a. In a counterclaim, the becomes a defending party and must respond to it

under Rule 12.2. However, Fed. Rule 55.a. does NOT provide for the automatic entry of default once the s

time for responding has run out.i. The rule clearly requires the to actually do something (i.e.: make the request)

3. Just because the rule reads clerk, it does not mean that this rule prohibits the court (judgefrom doing so the court judge still has the authority to enter a default but generally there isno reason to go to anyone but the clerk of the court.

4. Time frame:i. According to Rule 12, must generally respond within 20 days after being served

with process.a. The person who served process on the is required to make a report to the

court indicating when service was effective.b. The clerks office records this info on the docket sheet for the casec. Even if the server failed to make the report to the court, the can present

proof of when service was effected, and show the clerk that more than 20days has lapsed.


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d. Any response on behalf of the is recorded on the docket sheet for the caseso the clerk can quickly determine whether the has respondedappropriately under Rule 12 provisions.

5. Importance of a Default entry:i. If the entry of default is made against the , the may not recover relief.ii. HOWEVER, entry of default cuts off the s right to file a response to the

complaint.6. Default Hypo:

i. What happens if the wants to serve and file his answer more than 20 days after shewas served with processa. If the has already had the default entered, the is shit out of luck and

pursuant to Fed. Rule 55.c, will have to make a Rule 60.b. motion to set asidethe default entry.

b. If the has NOT had the default entered, the is allowed (r should) movefor an extension of time in which to respond under Fed. Rule 6.b.

c. Fed. Rule 55.b. Entering a Default Judgment :1. Introduction Notes:

i. Judgment = is an order, issued under the authority of the court that creates a legalobligation from the to the .

2.

Fed. Rule 55.b.1. - By the Clerk:i. At the request of the , the Clerk of the Court can enter a default judgment undervery limited circumstances.

ii. must show FOUR (4) things to be true:a. The claim MUST be for a sum certain/or an amount that can be made

certain by calculationi. Sum certain =

b. must provide an affidavit of the damages duei. Affidavit = sworn statement executed under penalty of perjury

c. The must have failed to appear in the case.i. Default judgmentfrom the clerk is only available if the has failed to

appear at all.

d. The cannot be a minor or an incompetent.iii. If these 4 things occur/are evident, the clerk has no discretion and shall enter

judgment for the [amount shown in the affidavit] and costs against the .iv. s Relief:

a. When clerk enters default judgment, relief = sum claimed by in the saffidavit.

v. Importance of Fed. Rule 55.b.1. - The clerk enters judgment only in those cases inwhich there is no need for judicial discretion.

3. Fed. Rule 55.b.2. By the Court:i. If the cannot proveALL of the 4 things above, then they MUST seek the default

judgment from the judge/court.

a. does so through an application for default judgment.ii. The court will [usually] hold a hearing on the application of the default judgmenta. Why? Just because the for the default entry against the , doesnt mean

that she automatically gets the default judgmenti. does not have a rightto default judgment.

iii. Since the matter is in the District Court judges discretion, the judge may choose toask for evidence on any relevant matter

a. I.e.: The strength of the s claim on the merits, viability of any defense the might have, etc.

iv. Factors use by Court to Determine if to Grant DJ:a. Whether the s failure to respond was willful


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b. Whether the has been harmed/prejudicedc. Whether the has a meritorious defense to the underlying case.

v. Notice to the :a. Fed. Rule 55.b.2. - requires that the get written notice, which should be

served at LEAST 3 days before the hearing on the application, BUT ONLYIF the has appeared personally or by a representative in the case.

i. Appearance = can make a motion or answer the claim.vi. s Relief:

a. When the court/judge enters default judgment, the relief amount depends:i. If the has sued for a sum certain and the doesnt contest it, thecourt can enter judgment for that amount without further inquiry.

ii. If the has sued but the amount is not readily calculable, or the contests the amount, the court will hold a hearing to determine theappropriate remedy.

b. When a defaults on the judgment, he has basically conceded to his liability.i. But defaulting in the judgment conceding to the amount of

damages.ii. Remember that under Fed. Rule 54.c. the default judgment can never

exceed the amount of damages the demanded in the complaint, nor

can it include a type of relief that she did not seek in the complaint.1. Policy Reason: the should not be subjected to greater lossthan that for which she was given notice.

d. Fed. Rule 55.c.- Setting Aside a Default or a Default Judgment:1. Important Note:

i. is not entitled to have default or default judgment set aside from simply asking thecourt.

a. The District Court judge has full discretion2. This rule has 2 separate meanings:

i. Fist sentence/meaning- provides simply that the defaulting party may move thecourt to set aside a defaultfor good cause

a. Motion to set Aside a Default : Has 2 requirements:i. The MUST show good cause for her failure to defend in a timely

fashion.1. Good Cause = a reasonable excuse

a. It is also helpful if (it appears) that the is action ingood faith, thus, the longer a waits to bring hermotion to set aside a default, the less likely it will appearto the court that the was acting in good faith.

ii. The has a viable defense. (not explicitly in Fed. Rule 55.c, but implied)1. It makes no sense in setting aside a default and place the case

back in litigation, if the does not have a colorable defense onthe merits.

2. There is no standard for what constitutes a viable defense asthis part of the rule is discretionary to the court.a. Caselaw is not reconcilable on setting aside defaults.

ii. Second sentence/meaning provides that a court may set aside a default judgmentunder Fed. Rule 60.b. as the appropriate relief.

a. Second sentence and reference to Fed. Rule 60.b is made because courts aremore willing to set aside a default than a default Judgment.because:

i. Default = merely an interlocutory ruling in the course of the caseii. Default Judgment = official judicial order that the is entitled to

recover from the .iii. .


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b. Motion to set Aside a Default Judgment: Has 2 requirements:i. Under Fed. Rule 60.b. ANYjudgment, including a default judgment,

can be set aside.ii. Most common default judgment situation falls under Rule 60.b.1. in

which the motion to set aside is based upon mistake, inadvertence,surprise, or excusable neglect. Under this situation, has 2requirements:

1. must show good cause = the must convince the court thatshe was guilty of a mistake or of excusable neglect that shouldbe forgiven by setting aside the judgment.

2. must show a viable defense = the court will determine:a. Whether the made the required showingsb. Whether the was prejudicedc. Whether the had good faith

e. Fed. Rule 55.d. Judgment Against the United States provides that in order for a defaultjudgment to be entered against the United States, its officers, or its agencies, the claimant MUSTestablish sufficient evidence(to the court) for a claim or right or relief.