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RULES
A. OVERVIEW: RULE 11 — Signing Pleadings, Motions, and Other Papers. ▪ Rule 11(a)— Lawyers must sign all the legal documents before filing a complaint in court
- Signed by Attorney or Party, if pro se.
- Must have signer’s address, email, and phone number. ▪ Rule 11(b)— The lawyer must stop, investigate, and complete research prior to signing the documents.
- Signer certifies to do the best of his/her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances. (1) Document is not being present for the following reasons: Cl (2) Claims, defenses, and other legal docs. Are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law. (3) The factual contentions must have evidentiary support, or will have evidentiary support after a reasonable opportunity for further investigation (must be identified in documentation) (4) Denials of facts (Answer by ∆) must be warranted on evidence or reasonably based on belief or lack of information (must be identified in documentation) ▪ Rule 11(c)— Failure to verify the information the lawyer is filing will result in a sanction.
- This will reduce wasting the court’s time. We want to make sure that we are using our federal resources only when its warranted and not making groundless claims. (1) Law firm is held jointly responsible for a violation committed by partner, associate, or employee. (2) A motion for sanctions must be made separately and state the specific conduct that violated 11(b) ▪ The motion must be served under Rule 5 , but must not be filed or presented to ct. if the challenged document is withdrawn or appropriately corrected within 21 days after service (or when court sets date). (3) The court may allow the party who is being accused of a violation to explain why their conduct did not violate 11(b) (4) Sanction must be limited to what suffices to deter repitiion of the behavior. (5) This rules does NOT apply to disclosures or discovery requests, responses, objections, and motions under Rules 26-37.
- Sanctions will not necessarily be given where the mistake is procedural rather than substantive o Example: failure to exhaust administrative remedies (Bridges)
- OVERVIEW: RULE 8 —General Rules for Pleadings o provides the basic parameters of what a complaint should contain. o 8(a) a pleading that states a claim for relief must contain: 1. “a short and plain statement” for the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support. 2. “a short and plain statement” of the claim showing that the pleader is entitled to relief. 3. A demand for the relief sought, which may include relief in the alternative or different types of relief. o In responding to a pleading, a party must:
- State a “short and plain statement” its defense to each claim asserted against it AND
- Admit or deny the allegations asserted against it by an opposing party.
- SUMMARY OF SECTION: A. Plaintiff’s complaint—rule 11 →stop, think, investigate, and research (stir) B. Plaintiff’s provide a short and plain statement of what they want in their complaint C. Factual and legal investigation, RULE 8—permits not to reveal everything he or she uncovered in their investigation You know that you “stirred” before filing D. You can make a motion for a rule 11 sanction later.
- OVERVIEW: RULE 3—Commencing an Action A. A civil action is commenced by filing a complaint with the ct
- OVERVIEW: RULE 7—Pleadings Allowed; Forms of Motions and Other Papers A. Pleadings: a formal statement of the cause of an action or defense. ▪ Complaint ▪ Answer to Complaint ▪ Answer to a counterclaim designated as a counterclaim ▪ Answer to a crossclaim ▪ A third-party complaint ▪ An answer to a third-party complaint ▪ If the court orders one, a reply to an answer. B. Pleadings must be in writing, state with particularity the grounds for seeking the order, and state the relief sought.
- OVERVIEW: RULE 12—Defenses and Objections to Pleadings o Raised by the ∆. o Court will decide motion on paper, no hearing necessary, but there may be a hearing. ▪ It is about the legality of the lawsuit, not about the facts yet. A. defendant must serve an answer: i. Within 21 days after being serviced with the summons and complaint OR ii. If ∆ has timely waived service under RULE 4(d) , within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the ∆ outside any judicial district of the US.
▪ 12 (b)(1 & 6) motions can be filed at any moment in the process, they want to get the case out of the federal government (save resources).
- OVERVIEW: WHEN TO RAISE 12b MOTION TO DISMISS o 12(b) (2- 5 ) must be raised PRIOR to ∆’s answer or you will lose it. [ PRE-ANSWER MOTIONS] → must be the very first thing you file with the court. o 12(b) (1 & 6) at any point o Pre-answer motion cost money (analyze cost and benefits), you may want to do one to show them that you are going to fight them on everything.
- Implications of Granting Motions to Dismiss o Motion to Dismiss for Failure to State a Claim—( 12(b)(6) ) ▪ the π would be precluded to bring the same lawsuit in a state court. o Motion to Dismiss for Lack of Personal Jdx.—( 12(b)(2) ) ▪ π is precluded from filing in state courts, the power of the courts in the State does not exist over you regardless is state or federal court o Motion to Dismiss for Lack of Subject Matter Jdx.—( 12(b)(1) ) ▪ can generally refill in state court. - There may be an issue on timing, statute of limitations (set by common law or state statutes based on the cause of action you are bringing) if it has run you may still be able to file in state court due to “saving clause” if originally filed during the statute of limitations but was dismissed by some reason. - FLORIDA: does not have a general “saving clause” but it does have one for about 8 things [you cannot serve the person b/c fictitious name, in hiding; incapacity about the person you want to sue; failing to pay bill cause of actions, but you have been doing a payment; pending arbitration] o Filing in the wrong court accidently does not fall within FL’s saving clause. OVERVIEW: RULE 8—The Answer A. RULE 8(b) and 8(c)— the ∆ must file an answer if they don’t file a motion or the motion is denied. B. A ∆ responds to each paragraph of the complaint, everything you don’t respond to is admitted as if what the π says as being truth. C. You must take a stand point. You must respond to all parts of the complaint. Thus, if you can use a pre-answer motion to get the case dismissed it is better for ∆.
- Denials 8(b) a. Denies the truth of the allegation i. What you are saying about the facts is not true ii. General v. Specific Denials a. General--∆ may in good faith deny all the allegations of a pleading- including the jdx. grounds. b. Specific--∆ may deny designated allegations or generally deny all except those allegations.
i. Must admit the part that is TRUE and deny the rest. b. If they don’t know if the allegations are truth after reasonable investigation i. I refuse to admit, need to investigate more to fully deny it
- Affirmative defense 8(c) a. Defeat the π’s claim i. What you say is true, but here is my argument against you b. Other defenses provided to you by law (i.e. contributory claim)
- Own claims 8(c) a. Counterclaims—∆ v. π (not only was I negligent, but you were too—you caused it) i. Now that you mention it, I have a problem with you b. Crossclaims—a claim brought by one defendant against another in the same proceeding. c. Third party claims—a claim against a person who should be sued but we don’t know who they are.
- OVERVIEW: Denial Examples o ∆ cannot deny they are a citizen of the state (usually) BUT they can deny there is subject matter jdx. ▪ You admit things that are just true facts. Knock out everything you agree on and fight about what we don’t. It saves everyone the time, money, and effort. o “Without information sufficient to form a belief as the truth of the allegations…denies the allegations…” ( RULE 11 ) o I am not this but after I get through this discovery, I will most likely deny it—I think we could disprove it
- OVERVIEW: Affirmative Defense Examples o Subject matter jurisdictions—they are not citizens of different states o This is a contributory defense (π loses—I have a defense to what he was claiming I did)
- OVERVIEW: RULE 13 o Counterclaims: ▪ This is means the π was not only contributory negligent, but caused the argument (this is a counterclaim)—the ∆’s own claim of negligence against the π ▪ 13(a) Compulsory Counterclaim A. Arises out of the same transaction or occurrence that is the subject matter of the opposing party’s clam AND B. Does not require adding another party over whom the court cannot acquire jdx. ▪ 13(b) Permissive Counterclaim A. Any other claims that do not arise out of the same transaction or occurrence ▪ A counterclaim must not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.
- OVERVIEW: Article VI o Where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the US, then according to the rules of common law.
• Defendant contended that the jury could not determine whether a safety device on the
mower could have eliminated or lessened Plaintiff’s injury. However, after reviewing the
law on product defects, the Appellate court concluded that the jury could have reasonably
found the mower defective. Defendant was given every opportunity to point out the
weaknesses in Plaintiff’s proof, but was unpersuasive.
• JMOL—After the evidence (discovery), but before the case goes to the jury. I am taking
away the jury’s power to make the decision and directing the verdict.
• RJMOL—After trial
o The Rule that applies is RULE 50→ We are trying to get rid of the cases that do not have legitimate evidence. ▪ Rule 50(a)—Directed verdict (DV) [JMOL] ▪ Rule 50(b)—Judgement notwithstanding verdict (JNOV) [renewed JMOL]
- After the jury makes a verdict, notwithstanding the jury’s verdict. Overrules the juries ruling. The party that lost may also move for a JMOL, and the judge denies the motion. o The legal test that the court has to decide on whether to grant the trial motion/JMOL: ▪ The test is whether a reasonable people on a jury could not disagree on their result. This test applies on both 50(a) and 50(b). ▪ The court is deciding who the evidence was in favor of, is there an issue of evidence? Was the evidence so clear that there is only one thing to do which is apply the law—matter of law, not fact. ▪ Given all of the evidence at trial, no reasonable jury could have disagreed. The reasonable people on the jury could not arrive to different decisions. o If you don’t let the jury decide, there is no verdict on the record, thus you must start trial all over again if the judge is overturned by the appellate court. Thus, a lot of judges wait to apply the JNOV. ▪ With a JNOV, if it is overturned the jury verdict gets reinstated, there is no need for a new trial. o Why do we still have JMOL? ▪ To reduce the cost of the whole system. ▪ There is no true reason for the case to go to the jury. ▪ You can have JMOL on pieces of the lawsuit.
- You can move on directed verdict on one or more of the charges the ∆ has.
- The π presents their whole case and before the ∆ presents his defense they can move for DV on either the whole or part of a case because the π did not met the burden of proof.
- The ∆ presented their affirmative defense—the ∆ has the burden of proof on affirmative defenses, the π can move for directed verdict on an affirmative defense. o In a perfect world, if you have a motion passed for Rule 56, you will also have a motion for Rule
▪ However, you may pass on Rule 56, but not Rule 50.
- You may think you have a fact, but at trial the information evaporates.
- Example: a witness that recant the story. Thus, there is no evidence or lack of evidence.
- OVERVIEW: RULE 15—Amended and Supplement Pleadings o You will constantly change your complaint and answer throughout the case. You amend your pleadings. A. 15(b)—Amendments Before Trial ▪ Amending as a Matter of Course A party may amend its pleading ONCE as a matter of course within:
- 21 days after serving it OR
- If the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under RULE 12(b); 12(e); or 12(f) , whichever is earlier. ▪ Other Amendments o A party may amend a pleading ONLY with the opposing party’s written consent OR the court’s leave. The court should freely give leave when “justice so requires.” ▪ Responding to an Amended Pleading o Any response must be within the time remaining to respond to the original pleading OR within 14 days after service of the amended pleading, whichever is later. B. 15(b)—Amendment DURING and AFTER Trial ▪ 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 party’s action or defense on the merits. C. 15(c)—Relation Back of Amendments ▪ An amendment to a pleading relates back to the date of the original pleading when:
- The law that provides the applicable statute of limitations allows relation back; OR
- 15(c)(1)(B) The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; OR
- The amendment changes the party or the naming of the party against whom a claim is asserted, if RULE 15(c)(1)(B) is satisfied and if, within the period of RULE 4(m) for serving summons and complaint, the party to be brought:
- Received such notice of the action that it will not be prejudiced in defending the merits AND
- Knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity. D. 15(d)—Supplemental Pleadings ▪ On motion and reasonable notice, the court may on just terms , permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened AFTER the date of the pleading to be supplemented.
COMMON LAW (DISCOVERY)
Relevance is important to get information in discovery. Case: BUTLER V. RIGSBY Requested Information: The list of the doctors current patients, list of the doctors patients referred by π attorney and the portion of money doctors make from lawsuits. o Privileged information about current patients should not be used in trial. ▪ This does not mean this information is irrelevant. Some patients may have been litigating, they may have been coerced. Some patients may have current litigation. If it is potentially highly relevant, why does the court not allow it to be allowed? Because it is a privilege (it can be excluded if it is privileged by law)
- This is a policy choice, it is more important that doctor and patients have a conversation without fear of litigation o Privilege trumps relevance. However, the privilege goes to the doctor, not the information (this is between the relationship). You can get the information some other way. o How much they get from litigation and how much is coming from this attorney is relevant. o The court also split some of the costs. We will let you get this evidence because we understand it can be related to credibility, but it splits the cost against the parties. ▪ This forces the ∆ to say that they don’t need it to 20 years but 5 years (this reduces the amount of evidence they need)
- This reduces the depth of investigation.
- OVERVIEW: RULE 56—Summary Judgment a. Motion for Summary Judgement or Partial Summary Judgement ▪ A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. ▪ The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. ▪ The court must state why the motion is granted or denied COMMON LAW (SUMMARY JUDGMENT) o Either parties, but usually ∆ file them. Trials and juries are unpredictable, so you as the ∆ are trying to knock the case out (there is still no legal basis) ▪ Why would a π want to summary judge?
- “Clearly the ∆ has no defense, so we want summary judgement in our favor.”
- π may want to have partial judgements for summary judgments for counterclaims and contributory claims. ▪ Definition: The court should grant summary judgment when there is no genuine dispute as to any material fact. And the party who is moving to summary judgement is entitled to as a matter as law (we are not fighting about facts, but
based on the law—if you apply the law to these set of facts there is a clear loser and a clear winner). ▪ Summary judgment is to eliminate the waste of resource in trial when we know that there is no case after a deep discovery.
- Case: HOUCHENS v. American Home Assurance Co. o On a motion for summary judgment the parties bare the same burden of proof as they would at trial. ▪ Any factual inferences must be presumed in favor of the party NOT asking for the summary judgment (since they are taking away the opportunity to trial) ▪ The court is not weighing the evidence, the judge is not deciding whether one group wins, but whether there are two versions of the fact. Accessing the weight and credibility is for the jury. ▪ If both parties put up their best arguments and there are NO disputes, then the motion of summary judgment must be granted. - If the court does not grant summary judgment, then both parties go to trial (genuine issue of material fact).
- OVERVIEW: After Trial o Preclusion (raes judicata) – former adjudication ▪ Comes at the end of one case, but have to consider it at the beginning of another case. ▪ Whether a π can bring a claim at different times, or they must do it all at one time? (idea of not allowing multiple bites at the apple) ▪ When dealing with preclusion write down the two cases and see if they are the same. COMMON LAW (PRECLUSION) Case: ISON v. Thomas
- Case 1: I v. T/T’s insurer—for property damage → jury verdict for $
- Case 2: I v. T—personal injuries o The problem is whether the claims are related? A valid final judgment extinguishes the π’s claims out of all the transactions or series of connected transactions. ▪ The transaction or series of connected transactions is the car accident. ▪ Since both claims stem from the car accident they are not allowed to be separated. o Preclusion reduces the number of trials to protect resources. We are concerned about the concept of criminal law’s “double jeopardy.” ▪ It is not fair, if you are suing me for a car accident tell me everything you are suing me for. It is unfair for the defendant. ▪ Where does this leave the personal injuries? Does “I” ever get a hearing on the injures?
- No. ▪ Can he do anything else for his lost?
▪ At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. o 4(2)(d)—Waiving Service ▪ An individual, corporation, or association has a duty to avoid unnecessary expenses of serving the summons. ▪ The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. ▪ The notice and request must: (A) be in writing and be addressed: (i) to the individual defendant; or (ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process; (B) name the court where the complaint was filed; (C) be accompanied by a copy of the complaint, 2 copies of the waiver form appended to this Rule 4, and a prepaid means for returning the form; (D) inform the defendant, using the form appended to this Rule 4, of the consequences of waiving and not waiving service; (E) state the date when the request is sent; (F) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of the United States—to return the waiver; and (G) be sent by first-class mail or other reliable means. o 4(d)(2)—Failure to Waive. o If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant: (A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses. o 4(d)(3)— A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States. o 4(d)(5) Waiving service of a summons does not waive any objection to personal jurisdiction or to venue o 4(d)(e) SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE UNITED STATES. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. o 4 (h) SERVING A CORPORATION, PARTNERSHIP, OR ASSOCIATION. Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served: (1) in a judicial district of the United States: (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant; or (2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i). (i) SERVING THE UNITED STATES AND ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES. (1) United States. To serve the United States, a party must: (A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought—or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or (ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office; (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and (C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer. (2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee. (3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g). (4) Extending Time. The court must allow a party a reasonable time to cure its failure to:
assets under the circumstances and in the manner provided by state law in that district. RULES: PERSONAL JURISDICTION—CON ART IV—AMEN. XIV §1— 12 LONG-ARM STATUTES—RULE 4K1A VENUE—28 USC §§1391, 1406 TRANSFER AND FORUM OF NONCONVENIENS—28 USC §§1404, 1631 SUBJECT MATTER—28 USC §1331; CON ART 3 §§1- 2 —12H SUPPLEMENT—28 USC §1367, REMOVAL—28 USC §1441, 1446 JOINDER PARTIES—1447, 18,20, 21, 22 CUMPULSORY JOINDER-- 19 JOINDER—42, 28 USC § ERIE—28 USC §2072 (1652) PLEADINGS—7, 8, 12b, 9, 11, 12, 15 DEFAULT— 55 DISCOVERY—16, 26, 34, 45, 33, 36, 30, 35 DISPOSITION—41, 55, 60 SUMMARY JUDGMENT—56,1,2,38, RIGHT TO JURY TRIAL--CON AMEND 7 JMOL— 50 JMOL MOTION FOR A NEW TRIAL— 59 AMENDING— 59 CLAIM PRECLUSION— 59 ISSUE PRECLUSION— 13
