Civ Pro Outline Flow Chart

1

SERVICE

Rule 3 P files Complaint commencing the civil action

Rule 4(a) (1) P writes Summons: (a) Court/Parties (b) Defendant (c) Name/Address of P's (attorney) (d) Time to Respond (e) Default Mention (f) Clerk signature (g) Court Seal

Rule 4(b)

Greene v. Lindsey BLL: In depriving a person of adequate notice of proceedings against them, the State deprived them of property without due process. Notice must be reasonably calculated Sufficiency of notice depends on the interest.

Children and doors. Try Mail Due Process Clause (5th Amendment): nor shall any State deprive any person of life, liberty, or property, without due process of law

Jones v. Flowers

*Before 1993 except under specified circumstances which include a summons and complaint served pursuant to the law of the State- was added to the end of 4c2 reorganizing the role into a who and a how suggests that they moved away from the restrictions reorganizing the role into a who and a how suggests that there was no reason to depart from the previous rules; there is no history to suggest the reason that the

Property is a significant interest and should take extra care

Failure to achieve personal service is not a person forfeiting their interest

60 days until default from R. Sent

Waiver waives objection to absence of service

Form 6

(2) Must pay expense of later Service (3) Answer within 60 days of Sent (4) Proof not required

(A) Send to P or Agent (B) Name Court (C) Copy of Complaint; 2 copies Waiver; Prepaid Return (D) Consequences of not (E) Date Request Sent (F) 30 (60 foreign) days from Sent to return

(1) Duty to Avoid Costs; Notice and Request must:

Rule 4(d)

Waiver of Service (60 days)

Give to Clerk to sign and Seal

Service Form 3: 21 days to respond or 60 if US

Rule 4(m) If not served within 120 days of complaint; dismiss or allow for time; must extend if good reason

Rule 4(c)* (1) Summons must have copy of complaint (2) Server is 18+ AND not party (3) P may request (deputy) marshal or an appointee

Rule 4(e) (1) Follow state law of D. Court or State of Service (2) Deliver to: (A) Personal (B) Person suitable age and discretion at usual dwelling (C) An Agent

Rule 4(l) Proof: (1) Server Affidavit (3) Failure to prove doesn't affect validity; can amend proof

Rule 4(m) 120 days from filing the complaint to serve or dismissed without prejudice UNLESS good reason to extend

2 Rule 8(e): Pleadings must be construed so as to do justice

Rule 8(a) Claim for Relief Must Contain (1) short and plain statement of grounds for jurisdiction unless not needed (2) short and plain statement showing that the pleader is entitled to relief (3) demand for the relief sought

Form 11 for guidance on Complaint

Conley v. Gibson "The accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" "…that will give D fair notice of what P's claim is and the grounds upon which it rests"

Bell Atlantic Corp v. Twombly

Rule 8 (d)(1):

"requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"

Allegations must be simple, concise, and direct; no technical form required

Must "nudge their claims across the line from conceivable to plausible"; decently likely; avoid discovery $$;

12(b)(6): Failure to State a claim upon which relief can be granted

Ft. Note 3: Some factual allegation for "fair notice" and "grounds" (from Conley) to meet 8a2 "showing"; but not in detail Ft. Note 6: Judicial discovery manage't fails; FRCP hollow rules here; arbiter cannot know/missing info always

Swierkiewicz v. Sorema "Must accept as true all of the factual allegations contained in the complaint" Y: Not enough to just say "is liable without giving any hint about a theory of cognizability" Papasan v. Allain "on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation""

Leatherman Courts not allowed to use heightened pleading requirement (immunity)

EXCEPTION: 9(b) Must state with particularity the circumstances constituting fraud or mistake; Malice, intent, knowledge, conditions of mind may be alleged generally

Qualified Immunity: Judicial created doctrine shields from liability a public official who is found to have acted lawfully if his actions are found to have been taken in good faith

Ashcroft v. Iqbal Not Just Antitrust Interpretation of Rule 8 which by Rule 1 "governs the pleading standard 'in all civil actions and proceedings in US district courts'" Is it conclusory? "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether that plausibly give rise to an entitlement to relief." Is it specific? "claim too chimerical to be maintained" Is it consistent? "But given more likely explanations, they do not plausibly establish this purpose"

Gillespie and Dioguardi Bivens; Iq "There is supervisory liability" with public officials

Iqbal" "Excuses a party from pleading discriminatory intent under an elevated pleading standard" as in the context of fraud and mistake before it. Not "license to evade the less rigid-though still operative- strictures of Rule 8"

Iqbal: "question presented by a motion to dismiss does not turn on the controls placed upon the discovery process" "basic thrust os the qualifiedimmunity doctrine is to free officials from the concerns of litigation, including 'avoidance of disruptive discovery.'…deficient under Rule 8…not entitled to discovery, cabined or otherwise."

3

Rule 7 (a) Pleadings allowed: (1) complaint (2) answer to complaint (3)an answer to a counterclaim designated as a counterclaim (required to answer cc) (4) answer to a crossclaim (5) 3rd party complaint (6) answer to 3rd party comp. (7) reply to answer if court orders

If 12b6 or 12c motion includes matters outside the pleadings; treat it as a motion for summary judgment under Rule 56; Give parties time gather materials

Rule 12(d)

Duplicity Rule 8(d)(2) Party may set out two or more statements of a claim or defense alternatively or hypothetically; pleading sufficient if any sufficient Rule 8(d)(3) As many claims or defenses and may be inconsistent

Rule 55(a): Failure to plead or defend shown by affidavit or otherwise is default judgement

Answer Denial (Traverse) Confession and Avoidance (Affirmative Defenses

Rule 12(a) Time (1) Unless statute or rule: (A) D must serve answer: (i) w/in 21 days after service of summons or complaint (ii) Waived under 4(d): 60 days after waiver sent or 90 outside USA (B) Party must serve answer to counter/cross claim w/in 21 days after service of said pleading

Rule 12(a)(3) US officer/employee same as above but service on the latest

Rule 12(a)(2) US gets 60 days for complaint, counter, cross claim after service on US attorney

(C) serve reply to answer within 21 days after service of order to reply unless court specifies

Pre-Answer Motion Rule 12(b) Answer asserted in the responsive pleading; these thru motion (1) SMJ & (2) PJ (3) Improper venue (4) insufficient process 4a (5)insufficient service 4e2b (6) Failure to state claim...

Rule 8(c) Affirmative Defenses (1) responding to pleading, must affirmatively state any affirmative or avoidance defense

SEE AQUASLIDE

Same Insurance Co.

Great candidate for Rule 15

8b3: Now updated so that general denial can't be used for specific denial

Equitable Estoppel

Zielinski v. Philadelphia Piers, Inc.

(2) mistakes defense as counterclaim or counter as defense, court, if justice requires, treat pleading as though correct designation and may impose terms for doing so

(6) if responsive pleading required, any allegation not denied is admitted other than damages amount; if responsive pleading not required, allegation is considered denied or avoided

(5) Lacking information or knowledge must state so and has effect of denial

(4) intends in good faith to deny only part of an allegation, must admit the part that is true and deny the rest

(3) Intend to deny everything inc. juris. may use general denial; if not: deny specific allegations or deny all except those admitted

(2) Denial must fairly respond to substance of allegation

(1) Respond to pleading, must: (A) short and plain terms defense to each claim (B) admit or deny allegations

Rule 8(b) Defenses Admission Denial

Rule 12(a)(4) Effects of Motion Unless court sets time: (A) court denies or postpones to trial: responsive pleading served w/in 14 days after notice of court action (B) More definite granted; 14 days after new statement served

(3) Must dismiss if SMJ

(2) 12b6; Join 19b; state legal defense may be raised: (A) any pleading per 7a (B) Rule 12c: JoPlead (C) at trial

(1) Waives 12b2-5 (A) 12g2 (B) Failing to: (i) make motion under 12 (ii) Include it in response by 15a1

Rule 12(h) Waiving

(1) Right to Join motions in Rule 12 (2) Except in 12h2&3; party that makes a motion under this rule must not make another motion under it raising a defense or objection that WAS AVAILABLE to the party before but omitted

Rule 12(g) Joining

Must be made before pleading is required; if not required may assert at trial [Hamilton v. Atlas Turner, Inc]

After pleading closed (complaint and answer) but early enough not to delay trial

Rule 12(c) J on Pleadings

Insufficient, redundant, immaterial, impertinent, scandalous (1) on court's own (2) on motion before response or if no response allowed, 21 days after pleading served

Rule 12(f) Strike

Rare; more definite statement of a pleading; usually will use 12(b)(6); before responsive p and details; if no response in 14 days may strike issue

Rule 12 (e): Definite

12b1-7 AND 12c motion must be heard/decided before trial unless court defers

Rule 12(i)

Failure to state a claim upon which relief can be granted; [wrongful firing]; even if true...

Haddle; 12(b)(6) Demurrer

*See Chart

Rule 11 Sanctions

(b) Motions & other papers (1) requests for court order (A) be in writing unless during hearing or trial (B) particular grounds for order (C) state relief sought

ANSWER

4 AMENDMENTS Rule 15 Amended and Supplemental Pleadings

Rule 15(a) Amendments before trial (1) Amending as a Matter of Course (pleading) once within: (A) 21 days after serving it (B) if pleading requires responsive pleading, 21 days after serving RP or 21 days after service of motion under 12b,e,f, whichever earlier

15(a)(2) Other Amendments: opposing party's written consent or court's leave. "freely give leave when justice so requires" 15(a)(3) Time to Respond Unless court says, any required response to amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later 1. Any lawyer would 1st? 2. Prejudice 3. legally insuf. (12b6 SoL) 4. earlier opportunities? 5. Strategy; Discovery? GLANNON 386

Rule 15(b) Amendments During Trial

Rule 15(c) Relation Back of Amendments

(1) Based on an objection at Trial; party objects that evidence is not within the issues raised in the pleadings, court may permit pleadings to be amended. 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. The court may grant a continuance to enable the objecting party to meet the evidence.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

15(b)(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move-at any time, even after judgment- to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. Failure to amend does not affect the result of the trial of that issue.

(A) the law that provides the applicable statute of limitations allows relation back (B) the amendment assets 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 (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if 15c1B is satisfied and if, within the period provided by 4m for serving the summons and complaint, the party be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity Note: allows 120 days from 4m + Court awarded time

15(c)(2) Notice to the US When the US or it's officer or agency is added as a defendant by amendment, the notice requirements of 15c1Ci and ii are met if, during the stated period, process was delivered or mailed to the US attorney or the designee, Attorney General of US, or officer or agency 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. The court may permit supplementation even thought the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

12c1C 1. on notice? 2. Same conduct? 3. Should have known against self?

John Doe: Singletary by 3rd Circuit, time

Prejudice: Idea that at some point the other side has to make decisions about how to present its case, decisions that become difficult if the story it has to met continually shifts -Yeazell 1. Opposing Party 2. Jury

Beeck v. Aquaslide N'Dive Corp Is there prejudice to P?

(Glannon Test) Arguments against granting leave: 1. delay in offering it 2. time to meet the claim 3. suspect strategic behavior? How would D defend self in court on falsity, Zielinski? Reckless Misrepresentation Theory: Must prove would recovered against manufacturer and collectible

Bad faith? 3 insurance Companies v. manager To accept death knell argument: 1.) Assume that D would prevail at trial on the factual issue of manufacture of the slide 2.) P foreclosed from proceeding against other parties if they were unsuccessful Trial court: "[u]nder these circumstances, the court deems that the possible prejudice to the P s is an insufficient basis on which to deny the proposed amendment" Prejudicial to Defendant?

Check 16b3 conference

Hanson v. Hunt Oil Co. 8th Circuit says "Prejudice must be shown"

D and his insurance carrier had not been lacking in diligence Deferential to the trial court Equitable Estoppel and Fraud to continue cx of action

Rule 20a2 allows joinder of D's but does not require

5 Duplicity

SANCTION

Rule 8(d)(2) Party may set out two or more statements of a claim or defense alternatively or hypothetically; pleading sufficient if any sufficient Rule 8(d)(3) As many claims or defenses and may be inconsistent

Rule 55(a): Failure to plead or defend shown by affidavit or otherwise is default judgement

Haddle; 12(b)(6) demurrer Failure to state a claim upon which relief can be granted; [wrongful firing]; even if true...

Rule 11(b) (1) no improper purpose (harass, delay, ^$) (2) warranted by existing law or non frivolous argument for extending, modifying, reversing law or establishing new law Earthgrains No sanctions in 4th Circuit when circuit precedent contrary to other circuits (Think Brown and Plessy) Notes: Consider Time (3) factual contentions have evidentiary support or will likely have evidentiary support at discovery (4) denials of factual contentions warranted by evidence or reasonably based on belief or lack of information

O'Brien v. Alexander 11b broad enough to punish oral misrepresentation if it has substantial connection to a signed document presented to court Rule 11(c)(1) After notice & opp. to respond impose sanctions; firms jointly responsible Rule 11(c)(2) Rule 11 motion made separately and describe conduct; served under Rule 5; w/draw if corrected w/in 21 days

Rule 11(c)(3) [Show cause order] Court may ask why not in violation 11b; Notes: No 21 day safe harbor Rule 11(c)(4) Limited to what deters repetition or comparable conduct; nonmonetary; $court; $movant for A.fees and other expenses Rule 11(c)(5) No $$: (A) violating Rule11b2 (B) on it own unless issued under 11c3 before voluntary dismissal or settlement by or against the party that is to be sanctioned

Rule 11 Sanctions Rule 11(c)(6) Chaplin v. DuPont Advance Creatively create or expand jurisprudence "may merit dismissal, but not punishment"

Sanction: Rule 11(a)

Does it have a chance under existing precedent?

Signature on documents with email, address, phone # Notes: Sign or duplicate

Is there a factual foundation? 11 Notes, Subdiv (b) and (c) Religion, accommodation, Caucasian but no C-discrimination, Southern Confederate is multiracial

Order imposing sanction must describe the sanctioned conduct and explain the basis for sanction

Rule 11(d) Inapplicable to discovery

6 DISCOVERY Hickman v. Taylor (work prod) NO 26b3 then "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation"; "Contravenes the public policy underlying the orderly prosecution and defense of legal claims" "inaccuracy and trustworthiness"

26(b) Scope and Limits

26(a)(1)(E)

26(a)(2)(A) Experts

26(b)(4) Trial Prep Experts

26(b)(1) In General

Disclose based on "information then reasonably available to it."

disclose any witness it may use at trial

(A) May depose expert that will testify, 26a2B requires a report then must receive it before depose

26(a)(2)(B)

(B) Read Rule; Protects drafts of the 26b3A&B and 26a2

"any non privileged matter that is relevant to any party's claim or defense" Including existence of tangibles Court may order discovery "for good cause"

26(a)(4) All disclosures under Rule 26(a) disclosed in writing, signed, and served.

26(a)(1)(A) Initial Disc. 26(b)(2) Limitations Frequency/ Extent (A) Court can alter limits of # dep, inter, length of dep, and request (B) Electronic need not be revealed by reason of "undue burden or cost" Must SHOW this; can still order (C) Court must limit freq or extent of discovery if determines: (i) "unreasonably cumulative or duplicative, or can be obtained from other source that is more convenient, less burdensome, or less expensive" (ii) party seeking discovery has had ample opportunity to obtain the information (iii) burden or expense of the proposed discovery outweighs its likely benefit (needs of case, $$ in controversy, parties resources, importance of the issues, importance of discovery)

"Without awaiting a discovery request, provide to the other parties" (i) Parties w/discover info unless solely impch. (ii) copy or desc. by category and location of docs, electronic…SI (iii) damages computation (iv) insurance agreements

Disclosure accompanied by written report 26(a)(2)(C) Witnesses without report guidelines 26(a)(2)(D) Time (i) 90 days before trial date or case ready for trial (ii) 30 days after the party's disclosure if solely rebutting a 26(a)(2)(B or C)

(D) Not permitted to interrogate or depose for facts or opinions by experts hired strictly in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness; but may if: (i) 35b (ii) showing exceptional circumstances where the party is unable to get similar information

26(a)(3) Pretrial

(E) Payment; unless manifest injustice, court requires: (i) pay the expert a reasonable fee for time spent in responding to discovery under 26b4A&D (ii) for 26b4D; pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the experts Facts/Opinion

26(a)(1)(C)

(A) Unless solely impch; provide to party and file (i)witnesses and those might call if needed (ii) designation of the deposition witnesses transcript or stenograph (iii) ID docs and exhibits will offer and might offer

At or within 14 days after 26f conference unless court or objection

(B) due 30 days before trial; 14 days to raise objections [check rule!]

26(a)(1)(B) Proceedings Exempt from Initial Disclosure [List in Rules]

26(a)(1)(D) Joined or Served party after 26f has 30 days to disclose

(C) Same as above but for attorney and experts; unless: (i) relates to compensation for study or testimony (ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed (iii) identify assumptions that the party's attorney provided and expert relied on in forming the opinions to be expressed

26(b)(5) Claiming Privilege or Protecting Trial-prep Materials (A) If claiming either of the two protections above; must: (i) expressly make the claim (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim (B) If information is found in discovery that is subject to protection, party making the claim may notify any party that received the information of the claim and the basis for it. Must return, sequester, destroy and all copies; must not use or disclose until claim resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may present to court under seal for determination ; must preserve until resolved

26(b)(3) Trial Prep Materials (A) May not discover docs and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative; by 26b4 discoverable if: (i) discoverable by 26b1 (ii) SHOWS that it has substantial need for the material to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means (B) if court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of litigation rep or attorney (C) Previous statement acquirable by party or other person without required showing; otherwise 37a5 Previous statement is: (i) written statement that the person has signed or otherwise adopted or approved (ii) a contemporaneous stenographic, mechanical, electrical, or other recording - or a transcription of it - that recites substantially verbatim the person's oral statement

26(c)(2) Ordering Discovery

26(c)

If a motion for a productive order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery

(A) forbidding the disclosure or discovery (B) specifying terms, including time and place, for disclosure or discovery (C) prescribing discovery method other than the one selected by party seeking (D) forbidding inquiry into certain matters, or limiting the scope of disclose/ discover to certain matters (E) designating the persons who may be present while discovery conducted (F) requiring that a deposition be sealed and opened on on court order (G)requiring that a trade secret or other confidential development, or commercial information not be revealed or be revealed in a specific way (H) requiring that the prties simultaneously file specified docs or information in sealed envelopes, to be opened as directed

26(c) Protective Orders

26(c)(3) Awarding Expenses Rule 37a5 applies to awarding expenses

(1) Party or any person from whom discovery is sought may move for a protective order in the court where the action is pending- or for deposition in the district where the deposition will be taken; motion must include certification that the movant has in good faith conferred or attempted to confer with affected parties in an effort to resolve without court action; court may issue order to protect from annoyance, embarrassment, oppression, or undue burden or expense for: