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EXHIBIT 6:1 ■ Motion to Dismiss Complaint

STATE OF COLUMBIA CIRCUIT COURT CAPITOL COUNTY

MARY ANN JAMES,Plaintiff

v. Civil Action, File No. 22222ALLEN HOWARD,

Defendant

MOTION TO DISMISS COMPLAINT

Defendant moves the court pursuant to Rule 12 (b)(6) of the Columbia Rules of Civil Procedure to dismissthe action because the complaint fails to state a claim against the Defendant upon which relief can begranted.

_________________________James McDuffAttorney for Defendant(Address)

© 2008 Thomson Delmar Learning

EXHIBIT 6:2 ■ General Demurrer




Defendant

DEMURRERDefendant demurs to Plaintiff’s complaint, specifying:

That said complaint does not state facts sufficient to constitute a cause of action against Defendant.WHEREFORE, Defendant prays that Plaintiff be awarded nothing by reason of his complaint and that he

be dismissed with his costs of suit paid by Plaintiff._________________________James McDuffAttorney for Defendant(Address)


EXHIBIT 6:3 ■ Memorandum of Law in Support of Defendant’s Motion to Dismiss Complaint




Defendant

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS COMPLAINT

Defendant argues to the court that the Plaintiff’s complaint should be dismissed on the grounds that it doesnot state a claim against the Defendant on which relief can be granted. In support of said motion, Defendantstates the following:

That Plaintiff’s complaint does not allege facts in support of a critical element of a claim for negligence. Along-standing precedent in the state of Columbia is the case of Winthrop v. Walters, 200 Col. 392, 105 W.W.63 (1934).* That case established the rule of law that a civil complaint must allege and state facts in supportof each element of the cause of action, and that failure to do so made the complaint defective and upheld thelower court’s dismissal of the complaint for its failure to state a cause of action.

In the recent case of Arnold v. Taggie, 592 Col. 365, 354 S.W.2d 615 (1992)* where the plaintiff failed toallege that the defendant’s negligent operation of a van was the cause of plaintiff’s injuries, the court held thedismissal of the complaint for failure to state a cause of action was proper.

Plaintiff’s complaint in this action does not allege that the Defendant’s conduct caused her injuries, nor doesit allege any facts to support such a conclusion.Therefore, Plaintiff’s complaint is defective and should be dismissed.

Date _________ ________________________James McDuffAttorney for Defendant(Address)(Phone number)

* Citations in this memorandum are fictitious.


EXHIBIT 6:4 ■ Order Granting Motion to Dismiss Complaint




Defendant

ORDEROn ____[date]____ Defendant motioned this Court for an order dismissing Plaintiff’s complaint for failure to statea cause of action. The Court considered the motion, memoranda of law, and oral arguments heard by thisCourt on ____[date]____.For GOOD CAUSE SHOWN, this Court finds that facts in support of several elements of the cause of actionare insufficiently alleged failing to state a cause of action and that Defendant’s motion to dismiss should begranted. SO ORDERED.Date _______ __________________________

Signature of Judge


EXHIBIT 6:5 ■ Joint Application for Extension of Time




Defendant

JOINT APPLICATION FOR EXTENSION OF TIMECounsel for Plaintiff and Defendant in the above action jointly request the Court to issue an order granting Plaintiffan extension of time to October 1, _____, to respond to Defendant’s memorandum of law in support of themotion to dismiss the complaint in this action.

Date _________ ____________________________Attorney for Plaintiff(Address)(Phone number)____________________________James McDuffAttorney for Defendant(Address)(Phone number)


EXHIBIT 6:6 ■ Federal Rules of Civil Procedure Form 19: Motion to Dismiss, Presenting Defenses ofFailure to State a Claim, Lack of Service of Process, Improper Venue, and Lack of Jurisdiction UnderRule 12(b)

The defendant moves the court as follows:1. To dismiss the action becuse the complaint fails to state a claim against defendant upon which relief

can be granted.2. To dismiss the action or in lieu thereof to quash the return of service of summons on the grounds (a)

that the defendant is a corporation organized under the laws of Delaware and was not and is not subject toservice of process within the Southern District of New York, and (b) that the defendant has not been properlyserved with process in this action, all of which more clearly appears in the affidavits of M.N. and X.Y. heretoannexed as Exhibit A and Exhibit B respectively.

3. To dismiss the action on the ground that it is in the wrong district because (a) the jurisdiction of this courtis invoked solely on the ground that the action arises under the Constitution and laws of the United States and(b) the defendant is a corporation incorporated under the laws of the State of Delaware and is not licensed todo or doing business in the Southern District of New York, all of which more clearly appears in the affidavitsof K.L. and V.W. hereto annexed as Exhibit C and D respectively.

4. To dismiss the action on the ground that the court lacks jurisdiction because the amount actually in con-troversy is less than seventy-five thousand dollars exclusive of interest and costs.

Signed: _____________________Attorney for Defendant

Address: ____________________

Notice of Motion

To: ________________________Attorney for Plaintiff

____________________________Please take notice that the undersigned will bring the above motion on for hearing before this Court at

Room _______, United States Court House, Foley Square, City of New York, on the _____ day of ________,_____, at 10 o’clock in the forenoon of that day or as soon thereafter as counsel can be heard.

Signed: _______________________Attorney for Defendant

Address: _____________________


EXHIBIT 6:7 ■ Motion to Make More Definite and Certain

[Caption omitted ]

MOTION TO MAKE MORE DEFINITE AND CERTAIN

Defendant, pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, moves this court for an order requir-ing Plaintiff to provide a more definite statement of the claim against the Defendant.

As grounds, Defendant states the Plaintiff’s complaint is so vague and ambiguous that Defendant cannotreasonably frame a response thereto.

The complaint is defective for the reasons stated below:

1. In both Counts One and Two Plaintiff does not state on what date the alleged incident occurred.2. Nor does Plaintiff indicate the location of said occurrence, and3. Insufficient facts are alleged in support of the claim of negligence or any other cause of action.

Defendant requests Plaintiff provide the following:

1. The date of the alleged incident.2. The specific location of the incident, and3. Facts describing how the Defendant was negligent.

(Attorney’s signature, address, and telephone number)(Notice of motion omitted)


EXHIBIT 6:8 ■ Motion to Strike Redundant, Immaterial, Impertinent, or Scandalous Matter fromPleading

(Caption omitted )

MOTION TO STRIKE

Defendant, pursuant to Rule 12(f) of the Federal Rules of Civil Procedure moves the court for an order strik-ing Count Two of the Plaintiff’s complaint on the grounds that it is redundant, repeating the same cause ofaction as Count One, causing confusion and prejudicing Defendant at trial.

(Attorney’s signature, address, and telephone number)(Notice of motion omitted)


EXHIBIT 6:9 ■ Notice of Removal

[28 U.S.C.A.§§] 1441, 1446]

[Title of Federal Court and Cause as in State Court]

To: The United States District Court for the ______ District of ______, ______ Division; and to: _______ Counselfor Plaintiff(s) from: _________, Counsel for Defendants.

1. Pursuant to 28 U.S.C. §§ 1441 and 1446(b) take notice that the above entitled action is removed to theabove mentioned United States District Court.

2. The above entitled action was commenced in the _______ Court of _______ county, State of _________ andis now pending in that court. Process was served on the petitioner on the ______ day of ________, ____. A copyof the plaintiff’s _________ (complaint, declaration or other initial pleading) setting forth the claim for relief upon whichthe action is based was first received by the petitioner on the ______ day of ______, ____.

3. The action is a civil action for _________ [state briefly nature of case] and the United States District Courtfor the District of _________ has jurisdiction by reason of the diversity of citizenship of the parties.

4. Plaintiff is a citizen of the State of _____ and defendant is a citizen of the State of ______. The matter incontroversy exceeds, exclusive of costs and disbursements, the sum [or value] of $75,000. No change of cit-izenship of parties has occurred since the commencement of the action.

5. All defendants have joined in this removal action (if applicable).6. Copies of all process, pleadings and orders served upon petitioners are filed herewith.

Dated _______, ____ _____________________Attorney for Petitioner

Address:_________________

Source: Reprinted with permission of West Group.


EXHIBIT 6:10 ■ Forms of Denial in Pleadings

FORM [each answer after “reasonable inquiry”must be accurate and submitted in good faith

TYPE (Rule 11)] EFFECT

Deny Defendant denies the allegations Denies each allegation of that of paragraph ____ of the complaint, paragraph; any allegation not denied or Denied (depending on jurisdiction). is admitted [Rule 8(d)].

Without Defendant is without knowledge Works as denial but provides knowledge or information sufficient to form a flexibility as more information

belief as to the allegation that (state comes to light. Defendant has specific allegation) of paragraph ____ burden to make “reasonable of the complaint. inquiry.”

Admit in part As to paragraph ____, defendant Makes the admission specific, but admits to operating the van on denial of remainder of paragraph (date) but denies the balance of the avoids having to list and possibly allegations in the paragraph. omitting a response to some of the

items.

Leave to proof As to paragraph ____, defendant Works as denial by requiring neither admits or denies but leaves plaintiff to prove facts at trial.plaintiff to his/her proof.

Own allegation Defendant denies the allegation in Gives defendant the opportunity to paragraph ____ and alleges (own be free from certain implications of version of facts). plaintiff’s langauge and to state

more accurately what happened.

No answer/ The allegation in paragraph ____ of Protects defendant but points out conclusion of law the complaint improperly states a that pleadings are not to allege

conclusion of law. conclusions of law, just facts in support of the conclusions.

Denial on Defendant, on information and belief, Generally used by corporations to information denies the allegation in paragraph ____ deny based on the best information and belief of the complaint. they have at the time from their

employees. Permits change if necessary.

Not applicable Paragraphs ____ to ____ of the Provides notice that defendant feels to defendant complaint do not apply to this the allegation does not apply to this

defendant, but insofar as they do defendant but protects defendant in refer to, may refer to, or may apply to case it is intended to apply.this defendant, each allegation is denied.


EXHIBIT 6:11 ■ Forrester Complaint: Notice Pleading

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF COLUMBIACivil Action, File No. _____

ANN FORRESTERand

WILLIAM FORRESTER,Plaintiffs

v. COMPLAINT FOR NEGLIGENCE RICHARD HART Jury Trial Demanded

andMERCURY PARCEL SERVICE, INC.,

Defendants

COUNT I

1. Plaintiffs are citizens of the State of Columbia and Defendant Hart is a citizen of the State of Ohio; DefendantMercury Parcel Service, Inc., is a corporation incorporated under the laws of the State of Delaware, havingits principal place of business in the State of Ohio. The matter in controversy exceeds, exclusive of inter-est and costs, the sum of $75,000.

2. On February 26, ____, on Highway 328 in Capitol County, Columbia, Defendant Hart, an employee ofDefendant Mercury Parcel, Inc., negligently drove a motor vehicle striking down Plaintiff who was cross-ing said highway.

3. As a result, Plaintiff fractured her left leg and hip bones and was otherwise seriously injured; has been pre-vented from transacting her business; has suffered, and continues to suffer, great pain of body and mind;has incurred, and will continue to incur, expenses for medical attention and hospitalization, all to the sumof $750,000.

WHEREFORE Plaintiff demands judgment against Defendant in the sum of $750,000.

COUNT II

4. Plaintiff William Forrester hereby alleges and incorporates by reference paragraphs 1 through 3 of CountOne.

5. Because of Defendant’s negligence, Plaintiff has suffered loss of the consortium of his wife, Ann Forrester,in the amount of $20,000.

WHEREFORE, Plaintiff demands judgment against the Defendant in the sum of $20,000.__________________________Arthur WhiteAttorney for Plaintiffs(Address)(Phone number)––––––––––––––––––––––––––


EXHIBIT 6:12 ■ Answer and Counterclaim to Forrester Complaint: Notice Pleading

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF COLUMBIACivil Action, File No. ____

ANN FORRESTERand


v. DEFENDANTS’ ANSWER AND COUNTERCLAIM

RICHARD HARTand

MERCURY PARCEL SERVICE, INC.,Defendants

COUNT I

1. Admitted.2. Denied that Defendant drove vehicle negligently.3. Defendant lacks knowledge sufficient to form a belief regarding the truth of the allegation in paragraph 3

of Plaintiff’s complaint, and therefore denies same.

FIRST AFFIRMATIVE DEFENSE

Plaintiff was more than 50 percent negligent in causing the accident, and is therefore barred from recovery.

COUNT II

4. No answer required.5. Denied.

COUNTERCLAIM

On February 26, ____, on Highway 328 in Capitol County, Columbia, Plaintiff Ann Forrester negligently tried tocross the road in front of Defendant’s vehicle, causing injury to Defendant Hart.

As a result of plaintiff’s negligence, Defendant Hart suffered lacerations and contusions and lost days of workall to the sum of $2,200.

SECOND COUNTERCLAIM

Defendant Mercury Parcel incorporates by reference the facts as alleged in the first counterclaim and allegesthe Plaintiff’s negligence caused damage to the defendant’s vehicle and required the hiring of an extra employeefor one week all to the sum of $4,250.

WHEREFORE, Defendants request that Plaintiffs’ action be dismissed and demand judgment against thePlaintiffs for $2,200 for Defendant Hart and $4,250 for Defendant Mercury Parcel Service, Inc., plus interestand costs.

_____________________________Attorney for Defendants(Address)(Phone number)


EXHIBIT 6:13 ■ Fact Complaint for Forrester Case

STATE OF COLUMBIA CAPITOL COUNTY CIRCUIT COURT

ANN FORRESTERand


v. Civil Action, File No. _____RICHARD HART


Defendants Plaintiff Demands Trial by Jury

COMPLAINT FOR NEGLIGENCE

Plaintiffs allege the following facts:

1. The jurisdiction of this court is based on the amount in controversy in this action which is more than$2,500.

2. Plaintiff Ann Forrester is a teacher and homemaker and resides at 1533 Capitol Drive, Legalville, inCapitol County, Columbia.

3. Plaintiff William Forrester is the husband of Ann Forrester and resides with her.4. Defendant Richard Hart is a driver employed by Defendant Mercury Parcel Service, Inc., and resides at

1223 Penny Lane, Cincinnati, Ohio.5. Defendant Mercury Parcel Service, Inc., is incorporated in the State of Delaware with its principal place

of business located at 603 Stoker St., Cincinnati, Ohio.6. On February 26, ____, at approximately 7:30 A.M., Plaintiff Ann Forrester was walking across a hilly and

partially icy section of Highway 328 in the City of Legalville, County of Capitol, in the State of Columbia.7. At that time, Defendant Hart was driving a van on behalf of his employer and the owner of the van,

Defendant Mercury Parcel Service, Inc.8. Defendant Hart operated the van negligently by:

a. driving the vehicle at an excessive rate of speed under the circumstances;b. failing to exercise a proper lookout;c. failing to exercise adequate control of said vehicle; andd. otherwise failing to exercise due and adequate care under the circumstances.

9. As a direct consequence of Defendant’s negligence, Plaintiff was struck down by Defendant’s van andseriously injured.

10. Because of said negligence, Plaintiff suffered fractures of the left leg and hip; damage to the lowerspine; torn muscles, tendons, tissue and nerves; insomnia; paralysis that confines her to a wheelchair;depression; and other maladies, all of which cause her intense pain, great suffering, and considerableinconvenience, and will continue to do so in the future.

11. As a consequence of defendant’s negligence and the aforesaid injuries, the Plaintiff has incurred, andwill incur, considerable expense for hospital and medical care, loss of income and benefits, domesticservices, and property damage to her coat and clothes.

WHEREFORE, Plaintiff demands judgment in the amount of seven hundred and fifty thousand dollars($750,000), together with the costs and disbursements of this action and for such other relief as this courtmay deem just and proper.

(continued )


COUNT II

12. Plaintiffs hereby allege and incorporate by reference paragraphs 1 through 9 of Count I.13. Because of Defendant’s negligence, Plaintiff William Forrester has suffered loss of the consortium of his

wife, Ann Forrester, in the amount of twenty thousand dollars ($20,000).WHEREFORE, Plaintiff William Forrester demands judgment against Defendants in the sum of twenty

thousand dollars ($20,000) and costs and for such other relief as this court may deem just and proper.(verification) __________________________

Arthur WhiteWhite, Wilson, and McDuffAttorneys at LawFederal Plaza BuildingSuite 700Third and Market StreetsLegalville, Columbia 00000(111) 555-0000

EXHIBIT 6:13 ■ Fact Complaint for Forrester Case (continued )


EXHIBIT 6:14 ■ Answer and Counterclaim to Forrester Complaint: Code (Fact) Pleading

STATE OF COLUMBIA CAPITOL COUNTY CIRCUIT COURT

ANN FORRESTERand


v. Civil Action, File No. _____RICHARD HART


Defendants Jury Trial Demanded

DEFENDANTS’ ANSWER, NEW MATTER, AND COUNTERCLAIM

1. Admitted.2. Admitted.3. Admitted.4. Admitted.5. Admitted.6. Admitted.7. Admitted.8. Denied. Defendant specifically denies negligence in the following areas:

a. Driving the vehicle at an excessive rate of speed under the circumstances.b. Failure to exercise a proper lookout.c. Failure to exercise adequate control of vehicle.d. Failure to exercise due and adequate care under the circumstances.

9. Admitted in part, denied in part. Defendant admits the Plaintiff was struck by Defendant’s van and deniesthe balance of the allegations in the paragraph.

10. Denied. Defendant, after reasonable investigation, lacks sufficient knowledge to form a belief regarding thetruth of Plaintiff’s allegation of injuries, and therefore denies same.


11. Denied. Defendant, after reasonable investigation, lacks sufficient knowledge to form a belief as to the truthof Plaintiff’s allegation of loss of money, and therefore denies same.

WHEREFORE, Defendants request the Plaintiffs’ complaint be dismissed and that judgment be entered forDefendants for their costs and disbursements.

NEW MATTER

12. Defendants incorporate by reference paragraphs 1 through 11 of their answer.13. Defendant alleges that Plaintiff is more than 50 percent responsible for the accident and resulting injuries

and therefore barred from recovery due to the following:a. Failing to stop, look, and listen for oncoming traffic prior to stepping onto the highway.b. Failing to maintain a lookout for oncoming vehicles while crossing said highway.c. Not taking care for her safety and the safety of others in light of the ice on the highway.

WHEREFORE, Defendants request that Plaintiff’s complaint be dismissed and that judgment be entered forDefendants for their costs and disbursements.

ANSWER TO COUNT II

14. No response to Plaintiff’s paragraph 12 is required.15. Denied. Defendants specifically deny being negligent or responsible for Plaintiff’s alleged injuries. Defendant,

after reasonable investigation, lacks suficient knowledge to form a belief regarding the truth of Plaintiff’sallegation of loss of consortium of his wife and the amount of the loss.

WEREFORE, Defendants request that Plaintiffs’ complaint be dismissed and that judgment be entered forDefendants for their costs and disbursements.

NEW MATTER COUNT II

16. Defendants incorporate by reference paragraphs 12 and 13 of their answer alleging the Plaintiff is morethan 50 percent responsible for the accident and is barred from recovery.

WHEREFORE, Defendants request that Plaintiffs’ complaint be dismissed and that judgment be entered forDefendants for their costs and disbursements.

DEFENDANTS’ COUNTERCLAIM

17. Defendants incorporate by reference paragraphs 1 through 16 of their answer.18. On February 26, ____, Plaintiff Ann Forrester negligently walked onto Highway 328 in Capitol County,

Columbia by failing to take the following precautions:a. Stop, listen, and look for oncoming trafficb. Maintain a lookout while crossing said highway.c. Exercise due care for her own safety and that of others in light of the ice on the highway.

19. As a result of Plaintiff’s negligence, Defendant Hart had to take emergency evasive action, unsuccessfullyavoiding Plaintiff, and causing his vehicle to leave the road and strike a tree.

20. Because of Plaintiff’s negligence, Defendant Hart suffered lacerations to his head and legs, bruises to var-ious parts of his body and head, intense emotional anxiety, insomnia, and substantial pain and suffering.

21. As a further consequence of Plaintiff’s negligence and the aforesaid injuries, Defendant Hart has incurred theexpense of hospital and medical care, and a loss of income totaling two thousand two hundred dollars ($2,200).

COUNT II

22. Defendants incorporate by reference paragraphs 1 through 21 of their answer.

(continued )

EXHIBIT 6:14 ■ Answer and Counterclaim to Forrester Complaint: Code (Fact) Pleading (continued )


23. Becaue of Plaintiff Ann Forrester’s negligence, Defendant Mercury Parcel Service suffered damage to theirdelivery van and expenses necessitated by a replacement employee for Mr. Hart for one week, totalingfour thousand two hundred and fifty dollars ($4,250).

WHEREFORE, Defendants demand judgment against Plaintiff Ann Forrester for Defendant Hart in the amountof $2,200, and for Defendant Mercury Parcel Service in the amount of $4,250, plus their costs and disbursements.

________________________Attorney for Defendants(Address)(Phone number)

State of Columbiass.

Capitol _______

Richard Hart, being duly sworn on oath according to law, deposes and states that he has read the fore-going Answer and Counterclaim, and that the matters stated therein are true to the best of his knowledge,information, and belief.

________________________Richard Hart

Subscribed and sworn to before me this _____ day of ________, ____.

________________________Notary Public

My commission expires January 1, ____.

State of Columbiass.

County of Capitol _____

Sandra Franz, being duly sworn on oath according to law deposes and states that she is the presidentand duly authorized representative of Mercury Parcel Service, Inc., and has read the foregoing Answer andCounterclaim, and that the matters stated therein are true to the best of her knowledge, information, andbelief.

________________________Sandra Franz

Subscribed and sworn to before me this _____ day of __________, ____.

My commission expires January 1, ____.

________________________Notary Public

EXHIBIT 6:14 ■ Answer and Counterclaim to Forrester Complaint: Code (Fact) Pleading (continued )


EXHIBIT 6:15 ■ Fact Complaint Case II

STATE OF COLUMBIA CAPITOL COUNTY CIRCUIT COURTCARL AMECHE

andZOE AMECHE,

Plaintiffsv. Civil Action, File No. _____

MARGIE CONGDENand

LEROY CONGDEN,Defendants Plaintiffs Demand Trial by Jury

COMPLAINT FOR NEGLIGENCE

Plaintiffs allege that:

1. The jurisdiction of this court is based on the amount in controversy in this action which is more than $2,500.2. Plaintiff Carl Ameche is an accountant and resides at 222 2nd Street, Thorp, Ohio.3. Plaintiff Zoe Ameche is the wife of Carl Ameche and resides with him.4. Defendants Margie and Leroy Congden are the owners of the Maple Meadows Campground and reside at the

campground which is located at Star Route 2, Highway 66, in the city limits of Legalville, Capitol County,Columbia.

5. On August 21, ____, Plaintiffs rented campsite 36 in the Maple Meadows Campground.6. Defendants had negligently placed a worn extension cord running to campsite 36.7. As a direct consequence of the Defendants’ negligence, a fire was started that encircled the Plaintiffs’ son, Zachary,

requiring Carl Ameche to place himself in peril in order to rescue his son.8. Because of said negligence, Carl Ameche suffered severe burns to his face, hands, and legs that have caused

him intense pain, suffering, physical disability, considerable inconvenience, and permanent scarring.9. As a consequence of the Defendants’ negligence and the aforesaid injuries, Carl Ameche has incurred and will

incur considerable expense for hospital and medical care, loss of income and benefits, and property damageto his clothing and camper.

WHEREFORE, Plaintiff demands judgment in the amount of three hundred and fifty thousand dollars ($350,000),together with the costs and disbursements of this action, and for such relief as this court may deem just andproper.

COUNT II

10. Plaintiffs hereby allege and incorporate by reference paragraphs 1 through 8 of Count I.11. Because of the Defendants’ negligence, Plaintiff Zoe Ameche has suffered loss of consortium of her hus-

band, Carl Ameche, in the amount of fifteen thousand dollars ($15,000).

WHEREFORE, Plaintiff Zoe Ameche demands judgment against Defendants in the sum of fifteen thousand dollars($15,000), together with costs, and for such relief as this court may deem just and proper.

___________________________Arthur WhiteWhite, Wilson, & McDuffAttorneys at LawFederal Plaza BuildingSuite 700Third and Market StreetsLegalville, Columbia 00000

(verification)


EXHIBIT 6:16 ■ Summons Against Third-Party Defendant

[FED. R. CIV. P. Rule 14]

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ________Civil Action, File Number _____

A.B., Plaintiffv.

C.D., Defendant and Third-Party Plaintiff Summonsv.

E.F., Third-Party Defendant

To the above-named Third-Party Defendant:

You are hereby summoned and required to serve upon ________, plaintiff’s attorney whose address is____________ and upon ________, who is attorney for C.D., defendant and third-party plaintiff, and whoseaddress is ____________, an answer to the third-party complaint which is herewith served upon you within20 days after the service of this summons upon you exclusive of the day of service. If you fail to do so, judg-ment by default will be taken against you for the relief demanded in the third-party complaint. There is alsoserved upon you herewith a copy of the complaint of the plaintiff which you may but are not required toanswer.

________________Clerk of Court

[Seal of District Court]Dated: ______________


EXHIBIT 6:17 ■ Third-Party Complaint


[Title of Court and Cause]

1. Plaintiff A.B. has filed against defendant C.D. a complaint, a copy of which is hereto attached as“Exhibit A.”2. (Here state the grounds upon which C.D. is entitled to recover from E.F., all or part of what A.B. mayrecover from C.D. The statement should be framed as in an original complaint.)

WHEREFORE C.D. demands judgment against third-party defendant E.F. for all sums that may be adjustedagainst defendant C.D. in favor of plaintiff A.B.

Signed: ________________Attorney for C.D.,Third-Party PlaintiffAddress: _______________


EXHIBIT 6:18 ■ Motion to Bring in Third-Party Defendant



Defendant moves for leave, as third-party plaintiff, to cause to be served upon E.F. a summons and third-partycomplaint, copies of which are hereto attached as Exhibit X.

________________________Attorney for DefendantC___________ D__________Address: ________________


EXHIBIT 6:19 ■ Amended Complaint

[FED. R. CIV. P. Rule 15(a),]


The plaintiff in accordance with Rule 15(a), Federal Rules of Civil Procedure, amends the complaint in thisaction as follows:

[State amended pleadings.]

_______________________Attorney for Plaintiff

Address: _______________



EXHIBIT 6:20 ■ Notice of Motion and Motion for Leave to Amend Complaint

[FED. R. CIV. P. Rule 15(a)]


To Attorney(s) for the Defendant _____ :

Please take notice that the plaintiff in the above-entitled case upon the affidavit of C_____ D_____ heretoannexed as Exhibit A, will at Room _____ , United States Courts and Post Office Building, City of _____ on the[date], at the hour of _____ o’clock _____.M., or as soon thereafter as the court will hear counsel, move for anorder permitting the plaintiff to file her proposed amendment to her complaint, a copy of which is hereto annexedas Exhibit B and herewith served upon you.

Dated: [date]._________________________Attorneys for Plaintiff

Address:_________________

Phone:___________________



EXHIBIT 6:21 ■ Motion for Summary Judgment by Plaintiff



Plaintiff, by his attorneys and pursuant to Rule 56 of the Federal Rules of Civil Procedure, moves the Court toenter summary judgment for the plaintiff on the ground that there is no genuine issue as to any material fact,and the plaintiff is entitled to judgment as a matter of law.In support of this motion, plaintiff refers to the record herein including the amended complaint, the answerthereto, the defendants’ amendment to the answer, plaintiff’s annexed affidavit sworn to the ___ day of _____,_____, and ______.

______________________Attorney for Plaintiff

Address: ______________



EXHIBIT 6:22 ■ Notice of Motion and Hearing on Motion for Summary Judgment



Sir:

Please Take Notice, that upon the complaint herein, the affidavits of ________, sworn to [date], ____, andthe affidavit of _________, sworn to [date], ____, and [the annexed statement in accordance with Rule 9(g) ofthe General Rules of this Court], the undersigned will move this Court at a motion part thereof, to be held atRoom ____, United States District Courthouse, _______, ________, on the ____ day of ______, ____, for an ordergranting plaintiff summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the groundthat there is no genuine issue as to any material fact, and that plaintiff is entitled to judgment as a matterof law.

Dated: ________________________________Attorney for Plaintiff

Address: ______________To: ________ [Address]



EXHIBIT 6:23 ■ Affidavit in Support of Motion for Summary Judgment—General Form

[FED. R. CIV. P. Rule 56(e)]

State of _______

ss.

County of ______

_______, being first duly sworn, deposes and says:

I am _______, and have personal knowledge of the facts herein set forth.This affidavit is submitted in support of the plaintiff’s [or defendant’s] motion for summary judgment herein,

for the purpose of showing that there is in this action no genuine issue as to any material fact, and that theplaintiff [or defendant] is entitled to judgment as a matter of law.

[State all the evidentiary facts within affiant’s personal knowledge in support of motion.]

______________________[Jurat]



EXHIBIT 6:24 ■ File Pleading Log

Title of Case _________________________________ Client ____________________________________

_________________________________ File No. ____________________________________

Opponent Opponent Our Our Date Date Acknowl. Response Opponent Date of Response

Pleading Filed Served of Service Due Pleading Service Due

Summons Answer and and counterclaimcomplaint

Reply to counter-claim


EXHIBIT 6:25 ■ Pleadings, Motions, and Time Limits

Purpose If Federal State Pleading/Act Not Clear Due Rule Rule/Due

PLEADINGS/PARTIES

Complaint

Service of summons For personal 120 days after filing 4, 4(m), 5and complaint jurisdiction complaint

Request for Entry of To prevent defendant’s Entry may be sought 55, 54(c)Default and Judgment response after time on first day after of Default limit for answer, to get expiration of time

judgment concluding limit for answer. case and awarding Judgment sought remedy as soon after as

possible. Notice of hearing on application for default—three days prior to hearing when required.

Motion to Set In reasonable time 55(c), 60(b)Aside Default and not more than one Judgment year after judgment

Motions Attacking To dismiss action for Within time permitted to 12(a), (b), (e), Complaint or Action lack of subject matter answer complaint, which (f), 28 U.S.C. (in general) jurisdiction, personal depends on method used § 1406(a),

jurisdiction, improper for service of process. 28 U.S.C. venue, insufficiency of Could be 20, 60, or 90 § 1404service, failure to state days. Twenty days a claim, and failure to generally; motion to join a party, or to make dismiss for lack of complaint more definite subject matter jurisdiction or to strike language, or can be made any time, for forum non conveniens including on appeal.

Notice of Motion Served at least five 6(d)plus Affidavit days before hearing

unless ex parte

(continued )© 2008 Thomson Delmar Learning


Responsive Motion Served not later than 6(d)plus Affidavit one day before hearing

on motion, generally, or pursuant to local court rule

Amendment to To correct errors, Prior to service of a 15(a), Pleadings (generally) vagueness, or other responsive pleading or 12(e)

inadequacies within twenty days after service if no responsive pleading is permitted. If in response to order to make more definite,ten days after notice of order.

Answer To admit, deny, or state Twenty, sixty, or ninety 12(a)defenses to plaintiff’s days, depending onallegation; may include method used for servicecounterclaim and of process (U.S. has motions attacking sixty days) or in ten dayscomplaint after decision on motion

attacking complaint

Answer in Response In remaining time to 15(a)to Amended respond to original orComplaint within ten days,

whichever is greater

Counterclaim To state a claim At same time answer is 13defendant has against served or as permitted plaintiff, usually arising by courtout of same transaction alleged by plaintiff

Cross-Claim To state a claim against With answer, reply to 12(b)a party on the same side counterclaim, or other of the action and may appropriate pleadingallege that the party isthe one fully or partially liable for claim alleged in complaint or counterclaim

Reply to To admit, deny, or state Twenty days after service 12(a)(2)Counterclaim or defenses to allegations in of answer or twenty days Cross-Claim counterclaim or cross- after service of notice of

claim. May include order to reply to counter-motions attacking these claim or as otherwise pleadings directed (U.S. has sixty days)

EXHIBIT 6:25 ■ Pleadings, Motions, and Time Limits (continued )



Third-Party Complaint To bring in third party Ten days after service 14(a)who may be liable to of original answer one of the original (counterclaim) or by parties for the claim or leave of courtcounterclaim brought against the original party

Third-Party Answer To attack, or to admit, Twenty days after 14(a), deny, or state defenses service of answer 12(a)to the third-party complaint (may include counter and cross-claims)

Motion to Dismiss: To attack jurisdiction of Within time permitted 17(a), Not Real Party in court and to avoid for regular response to 12(a), (b)Interest harassment of defendant complaint

by parties having no right to claim

Motion to Join a Party To add either plaintiffs In reasonable time after 19, 20or defendants for the action beginspurpose of adjudicating all claims of all parties arising from same or series of transactions

Motion to Add To add a party to In reasonable time after 22Interpleader resolve all possible action begins

claims against a third party

Motions Regarding To certify a group of As soon as practical 23(c)(1)Class Actions plaintiffs as a class or to after start of action

dismiss or compromise

Motion to Intervene To permit party to enter In reasonable time after 24, 5lawsuit so can protect start of actioninterest or where statute permits intervention

Motion for Substitution To permit continuation Ninety days after death, 25of a Party of action by substituting etc., made part of

a party in the case of recorddeath, incompetency, transfer of interest, or resignation of office

(continued )




Motion for To gain extension from In time within which 6(b)Enlargement of Time original date pleading pleading is originally

is due due or after if due to excusable neglect

Motion for Judgment To get final judgment in After pleadings closed 12(c)on the Pleadings case based solely on but not so late as to

the pleadings delay trial

Motion of Application To secure property so After filing of lawsuit 64 for Seizure of Property that if suit is successful, (generally) or after (incorpor-(Writ of Attachment) judgment can be paid. judgment ating state

Also final remedy to law)collect judgment

Motion or Application To prevent irreparable After filing of lawsuit 65for Injunctions damage to persons or (temporary restraining including Temporary property involved in order good for up to ten Restraining Order, the original action, to days unless extended by Preliminary Injunction, require another party court for good cause); and Permanent to do some act or to after ten days must Injunctions refrain from some act secure preliminary

injunction

Motion for Seeks final judgment Plaintiff: twenty days 56Summary Judgment based on pleadings after filing complaint or

and supporting affidavits after being served with (may come after such motions by adverse discovery). Alleges no party. Defendant: Any genuine issue in case. time after action filed.

Notice: Served ten days prior to hearing on motion

DISCOVERY

Parties’ Planning To decide on a plan for As soon as practical and 26(f)Meeting disclosure and at least 21 days prior to

discovery 16(b) schedulingconference

Planning Meeting Within 14 days after 26(f)(4)Report parties’ planning

meeting




Initial Disclosure Within 14 days of 26(f) 26(a)(1)(E)meeting unless otherwise and (2)(C)stipulated or ordered. At least 90 days before trial if expert witness information.

Pretrial Disclosure Witnesses, documents, At least 30 days prior 26(a)(3)(C)exhibits, and other to trial. Objection to information for trial admissibility within

14 days after disclosure.

Petition for To preserve testimony Notice to each party 27(a)(1–2)Deposition Before or other evidence due twenty days before Action or Pending before action or hearing on petitionAppeal appeal started

Notice to Take To gather evidence After parties’ 26(f) 26(d), Deposition (notice from the oral or written meeting 30(a), to all other parties) statements of others 30(b)(1)

Motion to Enlarge or 30(d)(2)Shorten Time for Taking Deposition

Notice to Take Requested when oral After parties’ 26(f) 31(a)Deposition on deposition impractical meeting; cross questions Written Questions within fourteen days

of service of original questions; redirect and recross questions within seven days of service of follow-up questions

Objections to Form In time permitted for 32(d)(3)(C)of Written Deposition response as stated above Questions and in five days after

service of the last question

Interrogatories To discover evidence After parties’ 26(f) 26(d), through written questions meeting; limited to 33(a)to any party twenty-five

interrogatories

Answers or Within thirty days after 33(b)(3)Objections to service of questions; Interrogatories must be written

(continued )




Request for To inspect documents After parties’ 26(f) 26(d), Production of (writings, photos, data meeting 34(a)(b)Documents and collections, etc.) and Things and Entry land to gather to Land evidence

Response to Request Within thirty days after 34(b)for Production, Etc. service of request.

Objection waived if no written responses served.

Motion for Order to To require a party to After parties’ 26(f) 26(d), Submit to Physical submit to exam when meeting 35(a)or Mental Exam condition in question

(injury, emotional illness, other) relates to cause of action or damages

Request for To get opponent to After parties’ 26(f) 36(a)Admission(s) admit to certain facts meeting

so they do not have to be proven at trial by separate evidence

Answer or Objection Within thirty days after 36(a)to Request for service of requestAdmission

Duty to Supplement To keep discovery Seasonably 26(a)(1) Discovery Responses current and (2), (e)

Motion to Compel To get court to order On reasonable notice 37(a)(d)Discovery party to provide to all parties and all

discovery persons affected and after attempt to resolve

Motion for To get order permitting In reasonable period of 26(c)Protective Order party to not respond to time and after attempt

certain aspects of to resolvediscovery or to prevent abuse of discovery by opponent

Motion to Enforce To require person to Any time after objection 45(c)(2)(B)Subpoena appear and/or produce to subpoena is made and

documents for upon notice to personexamination commanded to produce




Objection to To change or stop the Before time for 45(c)(2)(B)Subpoena for enforcement of compliance with Production and subpoena subpoena or within Inspection 14 days after service

of subpoena

PRETRIAL

Demand for Jury To all parties any time 38(b)Trial after action starts but

no later than ten days after the last pleading directed to such issue. Check local rules.

Motion for To dismiss action for 120 days after filing of 41(b), Involuntary failure of plaintiff to action absent service of 4(m)Dismissal prosecute summons and complaint

Consolidation of To combine actions for In reasonable time 42(a)(b)Actions or Separation the sake of judicial before trialfor Trial economy or to provide

separate trials where combined trial would cause prejudice or inconvenience

Motion for Voluntary So plaintiff or parties By notice of dismissal 41(a)(1)Dismissal can agree to action at any time before service

dismissal by adverse party of an answer or motion for summary judgment, whichever occurs first, or by filing stipulation signed by all parties appearing in action

Motion to Use To use deposition as Reasonable time before 32(a)(3)Deposition at Trial testimony at trial trial and on reasonable

notice

Motion in Limine For protective order Pursuant to scheduling 16(b)against prejudicial order and usually a questions or statements reasonable time before by adverse party trial or reasonable time

after selection of jury

(continued )




Motion to Exclude To exclude evidence Pursuant to scheduling 16(b)Evidence for a variety of reasons order and usually a

reasonable time before trial or as matter arises at trial

Offer of Judgment To settle case by Any time more than 68defendant offering to 10 days before trial.accept judgment for a Ten days to accept offer.specified amount

TRIAL

Motion for Judgment To have court enter Any time before 50(a)(2)as a Matter of Law judgment for moving submission of case (Directed Verdict) party for failure of to jury

opponent to prove prima facie case

Renewal of Motion To have court enter Within ten days after 50(b)for Judgment as a judgment contrary to that entry of judgmentMatter of Law (JNOV) returned by jury on basis

jury verdict goes againstweight of evidence(may be joined with motion for new trial)

POST-TRIAL

Motion for New To have judgment set Within ten days after 59, 52(b)Trial or to Alter or aside and new trial entry of judgmentAmend Judgment ordered because of

error or other injustice at first trial

Response to Motion To oppose motion Within ten days after 59(c)for New Trial/ for new trial service of motion or Affidavits twenty more days with

leave of court

Motion to Correct Any time 60(a)Clerical Errors in Judgment

Motion for Stay of Within ten days after 62(b)Execution of entry of judgment or Judgment Pending with motion for Post-Trial Motions post-trial relief




APPEAL

Notice of Appeal To notify all parties of Within thirty days after Rule 4(a) appeal judgment or order; sixty of Appellate

days if U.S. or officer or Procedureagency

Stay on Appeal To prevent execution At filing notice of 62(d)of judgment until appeal appeal or soon afterdecided

